TRAFFIC ACCIDENT

Evening Post, Volume CXV, Issue 72, 27 March 1933, Page 9

TRAFFIC ACCIDENT

JURY'S VERDICT REVERSED

CASE TAKEN TO APPEAL

The first case of its kind in the Court of Appeal iv New Zealand is being heard today by the Chief Justice (Sir Michael Myers), Mr. Justice Eeed, Mr. Justice Ostler, and Mr. Justice' Smith. The appellant, who is proceeding in forma pauperis, is Irene Addis Smith, wife, of William Henry Smith, mechanic, of Wellington, and the respondents are Caroline Priscilla Purdio and her husband, Lawrence James Purdie, battery specialist, of Wellington. Mr. O. C. Mazengarb appears for the appellant, and Mr. W. E. Leicester for the respondents, Mr. and Mrs. Purdie. In an action in the Supreme Court Mrs. Smith claimed £022 4s 7d for damages for injuries received when she was knocked down by a motor-car driven by Mrs. Puidie. The accident occurred about 9 p.m. on November 20, 1931, at the intersection of Eiddiford and Eintoul Streets while Mrs. Smith was crossing the road. After a hear* ing lasting two days, the jury found Mrs. Purdie negligent,- holding that she was driving too fast, had failed to sound the horn, had failed to observe the_ plaintiff, and had failed to slow down and steer clear. The jury also found that Mrs. Smith was not negligent either in failing to keep a proper lookout for vehicular traffic or in failing to use. reasonable care, and she ,was awarded £642 4s sd.

Counsel for Mrs. Purdie then moved to have judgment entered in favour of the.defendant, or alternatively, a nonsuit. On this motion the trial Judge (Mr. Justice MaeGregor) said there was no doubt that the plaintiff had been run down by 'Mrs. Purdie, and the only question was whether the cviderico was sufficient to justify him in entering judgment.for the plaintiff in accordance with the verdict .of the jury. At the trial he was not at all sure that the application for non-suit made by Mr. Leicester should not have been granted, but he thought it was wiser- to take the verdict of the jury. The law "'was quite plain that in order to succeed the plaintiff must establish that the defendant was negligent and that that negligence caused the collision. If it was established from her own evidence or from evidence adduced on behalf of the defendant that the plaintiff could havp avoided the collision by the exercise of reasonable care, then ,the plaintiff failed because her injury was duo to her own negligence in failing to -take- reasonable care. It seemed to him that Sirs. Smith could not have been looking where .she was going because if she had been looking she must have seen the approaching niotor-ear. In his opinion, she was the author of her own injury, and on the evidence it was impossible to say that Mrs. Purdie could have avoided the consequences of the plaintiff's negligence by the exercise of reasonable care. His Honour considered it -was his duty to enter judgment for the defendants. It is against this order that Airs. Smith is appealing. N COUNSEL'S SUBMISSIONS. ■On behalf of the appellant, Mr. Mazengarb argued that her failure to see the car could be explained without the assumption that she- did not look at all, and secondly he contended that the standard of care' which a pedestrian should exercise and the question of the credibility, of a witness were matters only for the jury. The learned Judge, he said, had treated the matter as if there could be only one possible inference from -the appellant's failure to see the ear, that, despite the cvi- j rlence of witnesses, she could not have looked. . ' .

Fpur submissions were made to the Court by Mr. Leicester. Firstly he contended that there was no room in the present case for tho application of the doctrine of last opportunity. Secondly, it was the duty of the Judge to have withdrawn the case from the jury and given judgment for the defendants as the only rational inference was that the plaintiff was tho author of her own injury. Thirdly, the. case having gone to the jury and' no support in the defendant's evidence having teen found for the plaintiff, that the legal Tights of the defendant remained unchanged. Lastly, counsel said he adopted the words of Lord Justice Bowen in the case of Brown v. the Great Western Railway that, whore the facts admit of but one reasonable construction it is the duty of the Judge to decide the case upon the only grounds upon which it can be. decided by any reasonable man.

Decision was reserved,