CLAIM FOR DAMAGES

Dominion, Volume 21, Issue 116, 14 February 1928, Page 6

CLAIM FOR DAMAGES

MOTOR-CYCLE AND CAR COLLIDE RIDER AWARDED OVER £2OO Palmerston North. February 13. Before His Honour Mr. Justice Ostler and a jury of twelve in the Palmerston North Supreme Court this morning a case was heard wherein Ernest Fleming Graham, of Foxton, claimed from John Alfred Russell, Kairanga, the sum of £766, for damages allegedly received in a motor collision Mr. Ongley appeared for plaintiff, and Mr. Innes represented defendant. In outlining the case, Mr. Ongley stated that on June 3, 1927, plaintiff had been riding his motor-cycle to Foxton from Palmerston North, and near the Awapuni bridge a car driven by defendant had run into him, it Being alleged by plaintiff that defendant’s car had been on the wrong side of the road. Plaintiff had sustained severe injuries as a result of the accident, and had been incapacitated from work for a considerable period.

In evidence plaintiff said that on June 3 last he came to Palmerston North on a motor-cycle, leaving for home about 3.30 in the afternoon. He was driving the cycle and he had a passenger on the back. Near the Awapuni bridge, on his way back he was travelling at about 30 m.p.h._and saw a car approaching in the middle of the road. He pulled to the left as far as he could, but the car ran into him and he suffered severe injuries. Hospital charges resultant from these injuries amounted to approximately £3O, and he had also had to pay las. a week for a period of three months for massage. His motor-cycle had not been repaired yet, and it was thought it was beyond repair. He had been incapacitated to a certain extent. To Mr. Innes plaintiff stated that he was used to taking a passenger on the rear of a motor-cycle, and in any case he considered that pillion riding was quite safe. Evidence was given by Gordon Arthur Perreau, of Foxton, who was the passenger on the rear of plaintiff’s cycle. His last recollection of the accident was being hit by a car that had come out from behind another vehicle that was proceeding in the oposite direction to the cycle, but this car had been seen only a few seconds before the collision occurred.

Andrew Young, a taxi-driver, or Palmerston North, said that he drove a constable to the accident about 5 o’clock, when it was easily apparent from marks on the road that the collision had been well on the cycle’s correct side of the road. Ihe practice of the road was that a car travelling in the same direction should not be passed until it was certain the road was clear. Further evidence was called on plaintiff’s behalf as to the position of the cycle at the time of the impact. Evidence for Defence. Defendant, from the box, said that this occasion was the first time he had been concerned in a motor accident. Up to the Awapuni bridge he had been travelling at about 15 m.p.h., and when practically abreast of a car in front, which he was endeavouring to pass, and which was driven by a man named Whelan, he first saw the motor-cy-cle, which struck his car on the lefthand corner of the radiator. He applied the brakes, but the cycle ran into the car before witness could bring it to a stop. In witness’s opinion, if the cyclists had been going at a reasonable pace, and had kept to their correct side, the accident would not have happened. To Mr. Ongley witness stated that he did not see the motor-cycle until it was only a few chains off, although he had had a clear view of the road fdr half a mile. Mrs. Russell, wife of defendant, also gave evidence. Robert Emmett, ranger of Palmerston North, stated that he bad passed Graham and Perreau some little time before the accident, and in his opinion they were going too fast, “qualifying for an accident.” He estimated their speed at 50 m.p.h. James W. Whelan, orchard instructor, of Palmerston North, said that he was returning from Karere to Palmerston North on the day in question, and when near the Awapuni bridge pulled well over to the correct side of the road on hearing the sound of a motor horn behind him. After he heard the horn be saw another car in the distance, and a motor-cycle, both approaching him, though he could not tell whether the car or the cycle was nearer. He remembered at the time that he considered the car behind him was taking a risk in trying to pass him. He could not estimate the speed of the cycle. The motor-cvcle had made a decided wobble, first' to the centre of the road and then to the left.

Mr. Innes: If the cyclist had been travelling at a reasonable pace, and if he had kept to his correct side, the accident would have been avoided ? Witness: Yes.

After further evidence had been heard, both counsel delivered lengthy addresses to the jury. His Honour, in summing up, said two questions had to be answered. The first was: Was the defendant negligent, and if so, was this the cause of the accident? The second was: Was plaintiff’s conduct a contributary cause of the collision?

The jurv retired at 4.30 p.m and returned at 5.45. To the first question thev answered “Yes,” and to the second “No.” Thev awarded £166 special damages and £52 general damages.