WRONG DECISION

Evening Post, Volume CXII, Issue 85, 7 October 1931, Page 11

WRONG DECISION

NONSUIT OF PLAINTIFF

NEW TRIAL DIRECTED

An appeal from the decision of Mr. Justice Blair, who non-suited William ■Mattler, labourer, of Kaponga, in an action !\c brought against Hcetor Angus Koss, farmer, of Manutahi, for £10912 damages, arising out of a motor-cycle accident, was heard by the Court of Appeal yesterday afternoon. Judgment was given, to-day, allowing the appeal and directing a new trial. The plaintiff was pillion-riding on a motor-cycle ana collided with a car driven by the defendant. He alleged that the defendant's car swerved from its correct side of the road; ana alleged negligence on the defendant's part. The defendant alleged that Ham, the driver of the cycle, was riding without ; lights, and that the defendant was forced through the negligence o£ the cyclist to swerve from his correct side to avoid a head-on collision. At the same jime, Ham swerved, and a collision | oeciiT^sil. Tho defendant alleged negligence on the part of the plaintiff. 'In a memorandum, his Honour said that the onus was on the plaintiff to make out a prima facie case of negli- | gencc before there was any case for the defendant to answer. In his Honour's opinion the plaintiff had failed to produce any evidence showing negligence on the part of the defendant. "Negligence" connoted "duty" to take care, and in the present case the defendant, in attempting to avoid what he thought was two pedestrians, did not commit an act of negligence. In his Honour's opinion there was no case to go to the jury. On the Bench was the Chief Justice (Sir Michael Myers) and their Honours Mr. Justice Reed, Mr. Justice Adams, Mr. Justice Ostler, and Mr. Justice Smith. "We arc all. of opinion that the learned Judge was on the evidence before him in error in nonsuiting the plaintiff," said Mr. Justice Ostler, in delivering tho judgment of tho Court this morning. "The learned Judge did not consider the question whether tho plaintiff was himself guilty of negligence which caused the accident. He merely decided that there was no evidence upon which a jury could reasonably iind that the accident was caused by any negligence on tho part of the defendant. ..." His Honour said that the Court was of the opinion that certain facts, coupled with the defendant's admission constituted evidence upon which a jury, in the absence of any explanation on the part of tho defendant, might reasonably hold that the injury to the plaintiff was caused by the defendant s -negligence.' That being so, Mr. Justice Blair was not warranted in nonsuiting the plaintiff. . "Moreover, in our opinion," added the judgment, "the learned Judge in coming to his decision usurped the province. of tho jury m drawing inferences from the facts. I Mr. Justice Ostler said that the Court did not agree with the contention of respondent's counsel that the only reasonable conclusion to be drawn from tho evidence was that the accident was either caused by the negligence of the plaintiff, or . contributed to by the contributory negligence of tho plaintiff, ana therefore Mr. Justice Blair was right in withdrawing the case, from the jury. It might be that there was evidence fit to go to the jury both ofi the fact that the plaintiff was negligent and of the fact that his negligence caused or contributed .to the accident. On that point the Court expressed no opinion. But there was certainly no such conclusive evidence of those facts as to justify a Judge in withdrawing the case from the jury. . . The appeal was allowed, and an order was made setting aside the judgment in the Court below, and directing a new trial. Mr. North appeared for the appellant, and Mr. P. B. Cooke for the respondent.