LAW REPORTS.

Dominion, Volume 7, Issue 2162, 30 May 1914, Page 3

LAW REPORTS.

SUPREME COURT. I

DAMAGES FOR MOTOR MISHAP JURY FIND FOR £150. Tho action for £501 damages for bodily injuries received in a motor-car accident 011 February 1, on .the Karon Road, brought by Michael Sweeney against. Sidney Kirkcaldio and Elsio Kirkcaldie, was resumed in tho Supremo Court yesterday, before His Honour Mr. Justice Hosking and a jury of twelve. Mr. A. Gray, K.C., with Mr. E. J. Fitzgibbon, appeared for plaintiff, and Mr. E. K. Kirkcaldie for the defendants. Evidence for tho Defenoe, ; Georgo H. Scott, motor-car expert, called for tho defence, gave evidence regarding the peculiarities of tho road in the vioinity where the accident happened. i To Mr. Gray, K.C.: Tho corner where tho accident happened was, in his opinion, a dangerous corner, it being impossible to get a clear view of the road. Quito a prudent pace at which to turn tho corner proceeding up-hill was 15 miles an hour, at that speed a moder- ■ ately'-expert driver should be able to stop his car when going up hill in eight feet.

Elsie Kirkcaldie, one of the defendants, stated that. she had driven a motor-car for seven or eight years. When in England she drove a car in tho city of London and other parts of England, and took out a driver's license, to enable lier to do so. Sho also took out a driver's certificate after returning to Wellington. The car she used when qualifying for her. certificate here was a harder car to manage than the one she was driving on the day of the accident, for tho reason that it was a heavier car. On the day in question, witness was accompanied by lier two children, Mrs. Kirkcaldie, Mr. Lowater, and. a chauffeur. Before turning the cornor she sounded a'warning three times. The speed at which the car was travelling was eight to ten miles an hour. She could pull up in half a length, if told to do so, but if going round with all clear it would, of course, take a little longer. Sho had put on the;Jower gear to got up tho mil, and cut .into the left to avoid a down-coming xrjimcar. As the motorcar straightened, and when parallel with. the tramcar, sho saw eeney, walking backwards to,v'aJ,o h® r ca !"- As soon as she saw Sweeney she put out her' foot to disengage the clutch, aJid put on tho brake, and at the same time she put ° n ]iand-brake. She realised Bue could not clear Sweeney, who half fell on the radiator, and then slipped under the car. She then turned tho car right into the bank. Sweeney was 1 carried a few feet only. Had she gono to the right sho would not liavo cleared tho of the tramcar. Sweeney was not carried by the car 33 feet. He was olily carried two or three feet. Honour: With the momentum it had,'the car would not travelmore than a car's length and. a half. To Mr. Gray: Sho could not say whether tho tramcar had passed Sweeney when first she saw Sweeney. When the corner was turned anything on the road as far as the tea-rooms should be clearly seen. ■ ■ < .

To His Honour: The fact of the tramcar being in front of Iter and subsequently at her side would, .of - courso, obstruct her view of. portions of the road to the tea-rooms.

Gilbert Harry Annett, motor mechanic to Mr. John Kirkcaldie, sen., said he was a passengor in tlie motor-car, sitting in the front seat beside Mrs, Kirkcaldie, at the time of the accident. Witness gave evidence corroborative of Mrs. Kirkcaldie's statements. After first .aid had been rendered to plaintiff, witness brought him into town in tho car. When lie first saw Sweeney he did not think Mrs. Kirkcaldio could have avoided an accident. The car was practically stopped at the time it hit plaintiff. The motor-car could not have avoided, an accident by turning to the right, by reason of the closeness of the tramcar, but'had Sweeney been looking where he was going one good stop towards the rear of tho tramcar would have taken him clear of danger. As it was, Sweeney came more into lino with tho motor-car. When they removed Sweeney from under the motor-car they took him first towards the refreshment rooms, but altered their ijitention, and took him to a grassy bank on the opposite side of tho road! If there was r.lood dripping from Sweeney at the time it might verj; well have accounted for the blood stains observed by the tramway motorman and conductor on the tram track, and which they had assumed to be the actual place of impact with the motor-car. Ernest Lowater, draper, an occupant of the motor-car at the time of tho accident, gave corroborative evidence. Thomas C. Gollins, chauffeur employed by Mrs. Nightingale, said ho was driving in to town from Karori on the day of the accident, and saw Mrs. Kirkcaldie's car against the hank. Ho assisted in getting it out of the water-table. The only damage he observed was. that the glass in one of the lamps was cracked. e Francis L. Connell also gave evidence.

His Honour's Summing Up. Counsel having addressed the jury at some length* His Honour commenced his summing up at ten minutes to five o'clock. He told the jury that they could find a verdict against each defendant without discriminating. _ With regard to the rule of the road, it was one that was adopted for the purpose of persons who passed along a carriageway ; riders of horses and drivers of vehicles. That rule did not compel riders and drivers to keep on any particular side, but it imposed on them a duty to meet or pass any vehicle on a particular side of the road. On crowded streets in, a city it was found that people did ride and drive on particular sides of the road because of the frequency with which tliey had to meet or pass vehicles or horses, but on country roads it was very different. A pedestrian had a right to walk on the carriage way if ho desired to do so: but where footpaths were provided and' he walked on the roadway lie imposed on himself a greater duty of care on Ill's own part than if ho walked on tho footpath. If a man walked on tho road lie must exercise a reasonable amount of care to protect himself. The fact of the corner being dangerous had. to be considered from tho point of view of the motor-car, and also from tho point of view of the pedestrian who was on the carriage-way. In these days of motor-cars, a pedestrian had to take to the carriage-way with greater risks than ho useu to incur in tho days of the old-fashioned horse. It did not follow, however, because a man might he sauntering along a road or even walking backwards, and a car ran into him, that he had been negligent ill tho sense that lb would deprive him of any rights to damages.

, The issues For The Jury. His Honour then reviewed tho evidonee and submitted for tho jury's consideration the following issues:— 1. Did the defendant, Mr?. Kirkcaldie, throughout, manage tho motor-car with proper skill and carc? 2. Could she, by the exorcise of pi'trpai' skill and care, hare averted the accident? 8. Could the plaintiff, bj

oreise of such care as he ought to have exercised, in tiio circumstances, ha'vo avoided ttao accideflt? • 4. _ What damages (if any)?. • Tho jury retired at; 6.10 p.in.' ... An Interpretation ooslreii, . After an absence of three hours, tho jury returned to tho Court, and, Tho foreman., addressing His Honour, said it was not clear to soiac of .tho jury tho exact meaning of Qnes* tiou 2: "Could, she, by tho *;xereis& of proper skill and care, havo avoided tho accidont?" His intßrprotatiort t® the jury was that- it meant; After Mire, ICirkcaldio sasv plaintiff, d.td she exercise proper skill 4iad fittro avoid sn accident-"' Soroo of tho jttry dii not agree \with that interpratatioia. His Honour said it would really csnift to that, unless the. jury thought Aat Mrs. Kirkcaldio eamo iodtkl tho cowsr at a paco which sbo should iiot havo dono, so as to lutvti tho car perhaps moro under control when sl;o got between the tramcar and the bank. That would bo tho only citcursstatice. disclosed by tho evidences ss an absence of proper unless it might bo that slio could have seen this man at tie timo sho_rotmde.d the corner, so as to havo it in mind as somotliiiig to bo guarded against when had passed tho tramcar. Tho second issue Wis put in - under pressure from counsei. Personally, is t'hottght the first issue was enough, for, after all, tie real question was: "Did Mrs. Kirkcaldio throughout man ago t-h.4 car with proper ■ skill and care, as regards plaintiff, who j was tho only man regarding whom care j had to bo exercised, so far as the caso was concerned.

.Mr. Fitzgibbon anted His Honour to direct the jury that if Mrs. Kirkcaldio had tho least opportunity of avoiding an accident, and by reasonable eafro lad not dpne so, then she was liable; and. that the man had every right to bo Ott the roadway. His Honour: I thinfe that has been told to tho jury several times. The Foreman: Aro wo to take it that the question for us is; Whether eho could by proper skill and care, when she saw tho man, havo avoided an accident? . Tho jury again retired. His Honour; jS^s. No? Unanimous. At 10.15 the jury returned, and, in reply to His Honour's query-, the foreman said thev- had lipt com& to a uiiaiiimous yerdict. His. Honour; Then I am prepared to accept a Verdict of ninE f as against three. Tho Foreman; I think it possible such a majority- on -tho issues might bo obtained. For tho third timo the jury Sled out ! to their room, only to return again, -at i 10.40, and stato that th§y Wero agreed on the first three issues, and with $ littlo moro timo might agreo as to the fourth. Again permission was given to the jury to further confer. , \ Verdlot for £150 Oamagcs. At 11 p.m. tbo jury finally returned, and submitted answers to tho questions as underlsSije 1: So. Issue--2: No. K«. Issne 4: £150, Mr. Kirkoaldia, for defendants! said that as the- answer to Issue 2 was "No," ho would ask for lesivo to move for judgment oft the second issue. His Honour concurred, ami, with the consent of par-ties, postponed entering up judgment to & date to bo fixed. Tho Court adjourned at 11.20 p-.nl.