KNOCKED DOWN.

Dominion, Volume 5, Issue 1421, 23 April 1912, Page 3

KNOCKED DOWN.

TEE CAB, THE CLAIM, AND LAW. Reserved decision was delivered in the case King v. the Auckland Electric tramways Company, an appeal from a nonsuit, by Mr. Justice Edwards, of a compensation claim in the Supreme Court. The appeal was heard bv the Chief Justice (Sir .Robert Stout), Mr. Justice Williams, Mr. Justice Cooper, and Mr. .Justice Deumston. „ , , ,;. Tlic parties were Wrn. Herbert King, of Kosb Street, Mount Eden (railway employee), and Martha Kins, his wile (appellants), and the Auckland Ekctric Tramwavs Company, Ltd. (respondents). The event giving rise to the action was a tramway accident which occurred at the intersection of Xew North Road with Rose Street (Auckland), at C..10 p.m. on Mav 30, 1311. Wm. Herbert King ana Martha Kins alleged that the tramcar had been negligently driven, and that, as a result, Maftha King had been violently knocked down and received such a shock that, her health had become permanently impaired. It was aliped that she had r.ot recovered sufficiently to pursue hci business as a nurse, and was unlikely to b? able to do so for a year or more,'if at all. The .negligence alleged consisted in driving the ear at excessive speed, in failing to keen a look-out for foot passengers, and in failing to ring a warning fell. Martha Kmg claimed ~r ; '>o for ir.ed'eal expenses: JIIGO for loss of business profits fey eighteen min-i,:., }-,m:'.i I'ho i'ov; ■■■" the injuries, aiv! .C"SS nencrn! dnmngts, making a total of ,z:>o. Her husbend, W. n. King, claimed ,E7o ns co:ur,e"'at on for loss cf'his wife's society and for the expense lo which he had been put in mirsinT her. The Auckland Tramways Company ;onler:('. a general denial, and further contended tint, if its servants had been gul-ity of an act of neglir?nce (wH>b was ''<■- nied) then Martha King lind been guilty of contributory nrgligor.ce. At the cla-o of n'.aiutiff's ease in the Supreme Court, Mr. Justice Edwards, en the motion of counsel for the Auckland Tramways Company, had withdrawn the case from the jury "and had nonsuited the plaintiffs on the ground that they had adduced no evidence from which the jury could infer that tho motorman had hyn guilty of negligence. Further. Mrs. King had herself directly contributed to the accident. From this decision an nppeal was lodged on the grounds that the judgment was erroneous on the evidence, and ' in law, and that, upon the evidence, the mtestion of whether nlaintiffs were entitled to damages should have been left to the jury. At .the hearing in the Appeal Conrt, Mr. If. P. Richmond, of Auckland. _ appeared for W. If. Kins- ond Martha Kinir, and Mr. J. I?. Red, of Auckland, for tho Auckland Tram Company. After henrini nrgument by Mr. Richmond, the Court had intimated that it would look into th" r.ai=e before c.illim on the respondent romnanv. Yostonhv morning Mr. Justirc Williams delivered th" iurlamen*- of tho Court. Ee s.'a!rdr-"Wo do not think it is necessary to call upon the counsel for the respondent. The principles on

1 which a ease of (his kind should ho ilecidetMiro correctly hiid down in Mr. Snlinoiid's work on lorls in the following lorma:— " The burden »f proving ncgligcjico is_ on the plaintiff who alleges itWhen uccidt'iiliil harm is done, il is not for Ui«. doer to excuse himself by lirov-itijr flimL the otL-iilpnl was inevitable, and due to no negligence on his pari; it is for (lie pcr-mt who suffers .tlin harm lo prove affirmatively Hint il was due lo (lie negligence of liiin wlio caused if. I'nUiss (he plainlilf Pifcduces roas:)nahlo evidence that Iho accident was caused by the defcnilnnt's negligence, there"is no case lo go to the jnrv, and il is the. duty of Uio Judge, to enter judgment for the defendant. Here, a< elsewhere, Iho term "reasonable evidence" means such evidenco as a reasonable jury ■night deem sufficient for proof.' "Counsel for the appellant contended that the driver of the car was negligent in three particulars: First, that he failed lo keep 11 look-out j secondly, that he was travelling at an pxcWsivo speed; and, thirdly, that lie failed to give nny warning by sounding a gong. As to the last, wo are satisfied that thero is no evidence. Thero is some evidence that tho car was travelling at the rate of 20 miles an hour. Is thero, then, evidenco that the nceidont happened hv reason of n failure to look-out on the part of the motorman? "It is perfectly clear from the plaintiff's own evidenco that, if she had looked before crossing tho tramline, she could not haye helped seeing tho car coming, hlie did not, however, look, but crossed immediately in front of tho' approaching tram, and was caught by it bci™ *' B i, >, eoi , co "ipl«tely across. Apart a together from any question of contributory negligence, it is plain that a person who crosses immediately in front of an approaching tramcar, uml is injured in consequence, must (if he wishes to show that the driver of the tramcar could have avoided tho collision) establish the fact by clear affirmative evidence. In our opinion that evidence is not forthcoming in the present case." Tho appeal was accordingly dismissed.

KINGSLAND CASE. THE DECISION RESERVED. . In tie Court o£ Appeal yesterdaj- morning argument was concluded in the cases of Eei v. Martha Jane O'Shanghnessy and Rex r. Mary Hassell and Chariot!© C'ampbeill two criminal appeals from Auckland. The Bench was occupied by the Cliief Justice (Sir Robert Stout), Mr. Justico "Williams, Mr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Chapman.

The appeals were in connection with criminal trials in Auckland last November—commonly known as the iv'ngshnd case—when Mrs. O'Sliaughnessy was sentenced to seven years' imprisonment for manslaughter, while the prisoners Hnssell and Campbell were sentenced to twelve months' imprisonment for conspiring io defeat the course of justice. A p -hit was reserved for the Court of Appeal as to whether certain evidence (details of which have been published) was rightly admitted by Mr. Justice Chapman. Mr. R. A. Singer, of Auckland, argued the appeal on behalf of the prisoners, and the Solicitor-General (Mr. J. W. Salmond) appeared for the Crown. The Court reserved decision.