ACCIDENT AT TIMARU

Press, Volume LXXIV, Issue 22511, 20 September 1938, Page 6

ACCIDENT AT TIMARU

MOTOR-CYCLIST'S CLAIM FOR DAMAGES

DECISION REVERSED ON , APPEAL

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WELLINGTON, September 10.

The Court of Appeal to-day heard the appeal of Robert Scott McMillan, of Timaru, farmer, against .Albert Percy Greenfield, of ' Dunedin, company manager, ' * McMillan, in June, 1936, was driving a motor-cycle when he struck Greenfield's motor-car, parked, allegedly without lights, at a rjght angle to the kerb In Quarry road, Timaru v As a result, he suffered a fracture of the left leg and claimed £3OO general damages and £204 IBs 2d special damages.

Greenfield denied, negligence and claimed that McMillan was negligent in falling to carry sufficient headlight, to keep a proper lookout, and in going at too great a speed. * At the trial, leave was given to counsel for Greenfield to move for a non-suit. Evidence for the defence was heard, the jury finding Greenfield negligent, but McMillan not guilty of any contributory negligence, and awarding £354 19s 2d. In judgment on argument on the non-suit, Mr Justice Northcroft held that the facts disclosed in McMillan's case showed that as he had a proper light, he was the real cause of the damage, and this had resulted from his own failure to keep a proper lookout—that is to say, he was the author of his own injury, ■ _ -. The appeal was from entry of judgment for Greenfield, notwithstanding the verdict of the jury in favour of McMillan. v j

Counsel's Submissions

Mr W. J. Sim, in opening for McMillan to-day, submitted that Greenfield had been negligent in (a> parking his car at right angles to the kerb, contrary to the py4aw, and, <b). leaving the car parked without lights Mr Sim contended that McMillan was not guilty of contributory negligence, as, owing to the. state of the road and the position of, parked care, he rode his motor-cycle as-carefully as was reasonably possible, For the respondent, Greenfield, Mr Campbell submitted that there was no negligence on the part of the respondent, as the car was. parked in an authorised parking area, and did not require lights, as the street illumination was sufficient Further, the appellant was contributorily negligent, as he had ample opportunity of seeing and. avoiding the car, Oral judgments were then delivered by each of the Judges to the. effect that:

(U There was evidence of negligence on the part of the respondent, in parking the car unlightad and toward* the centre of the road. (3) That in view of the circumstances, the appellant was not neces' garily negligent, and contributory negligence was therefore a matter of fact, which should be decided by the jury. W Therefore, the judgment of Mr Justice Northcroft for the respondent should be .reversed, and Judgment entered in the Supreme Court for the •mount found by the jury in favour of the appellant.