COLLISION AT NIGHT

Evening Post, Volume CXVI, Issue 102, 27 October 1933, Page 3

COLLISION AT NIGHT

UNLIGHTED VEHICLES

NEW TRIAL ORDERED

The judgment of the Court of Appeal was delivered today in tho case of George William Bourkc against Harold Jessop and Clara Adeleander iUaindonald, all of Elthaui. The Appeal Court unanimously ordered that the judgment of the Supreme Court be set aside and that a now trial of tho caso be held. The Court was asked to determine whether Bourkc could recover damages .for-injuries received in a. collision between a. motor-cycle, driven by his brother, and on which lie was the pillion-rider, and a motor-car owned by the respondents. Both the motor-cycle and tiie car were unlighted, and the jury in-.the Supreme Court found that both drivers and the appellant, Bourke, had been negligent. Mr. Justice Reed held that Bourkc's negligence in riding on the unlighted motor-cycle continued up to the point of impact, and that therefore he could not succeed. Both brothers had been engaged in a joint enterprise. - In tho course of his judgment today, the Chief Justice (Sir Michael Myers) said:"The learned Judge in the Supremo Court, in his judgment, says: 'Some time was spent at the hearing in discussing whether tho motor-car was on tho centre of the road at the time of the collision or was crossing from right to left at the time. The jury found that the latter was the case, and, as there was evidence both ways, that finding must be accepted. I do not agree with the jury, but that does not matter. Nor do I think it matters what was the position of the motor- car. Even if it be regarded as additional negligence on the part of the driver of the motor-car that does not affect the position.' The reason for this statement is seen a little later in the judgment where the' learned Judge says that although it was found by the. jiiry that 1 the motor-car being where it was on the, road was negligence in the circumstances, nevertheless it was obvious in his opinion that the real and substantial cause of the accident was the unlighted condition of the two vehicles. In his ■view, therefore, there was a continuing act of negligence on the part of the two drivers up to the point of impact, and neither, had an opportunity'of avoiding the negligence of the other. But if, as I think, the ascertainment of the point of ijnpaet would have been material to. the question as to the real and substantial causo of the collision in an action brought by the driver of the cycle, ,it was equally material in the present,action. The fact is, however, that there has been no definite finding by the jury,l on this material point, nor has there been any determination of the matter bjr_ the learned Judge. In any event, the findings of the jury are, I think,.' so "defective and unsatisfactory as that judgment cannot be given upon thenv In my opinion there has been a mistrial, and the case, should \>c sent down to; be retried." Mr.'Justice MapGrogor, Mr. Justice Ostler, and Mr. Justico Smith concurred that a new trial should bo ordered. The Court accordingly allowed the appeal, and ordered that a new trial be held. At 'the hearing Mr. A. Chrystal appeared for the appellant, and Mr. P. B. C'ooke, with him Mr., R. H. Quilliam, for the respondents. ■