CLAIM FOR DAMAGES

Evening Post, Volume CXII, Issue 35, 10 August 1936, Page 11

CLAIM FOR DAMAGES

ACCIDENT IN RIGHT-OF-WAY

Declaring that because of the negligent driving of the defendant he had been crushed against a wall, suffered injuries to hips and abdomen, and spent a fortnight in Wellington Hospital, William Elton, drainlayer, proceeded against Albert James Walling before a Judge and jury in the Supreme Court today for special damages amounting to £79 8s and £250 general damages. Mr. Justice Smith was on the bench. Mr. E. Ha«|ie Boys appeared for Elton and Mr. E. D. Blundell for Walling.

Elton's statement of claim set out that the accident had occurred in a right-of-way on February 7, and had been due to the excessive speed of a motor vehicle driven by the defendant, who was also alleged to have failed to keep a proper look-out, to apply his brakes in time, or to sound his horn. In consequence of his injuries, it was declared, Elton had been an outpatient of Wellington Hospital for some time, had lost wages totalling £65, and had incurred hospital and medical expenses amounting to £14 Bs.

The defendant entered a general denial of the allegations, and pleaded also that if it were proved that an accident happened as alleged it was auc solely to the negligence of the plaintiff in failing to keep a proper lookout, failing to keep to a safe part of the right-of-way, and failing to notify his presence in time to avoid an accident. Also he claimed that Elton had the last reasonable opportunity of avoiding the accident.

The accident was somewhat different from the 'ordinary case, said Mr. Hardie Boys. It had occurred in a right-of-way in Courtenay Place, where the plaintiff had gone to visit a friend, and along which he had been walking, on his way back to the street, at the time of the mishap. Elton heard someone call, turned about to see who it was, then turned back again and saw the lorry backing into the entrance. He flattened himself against a wall, and the tray of the lorry had almost passed him when ?ts course apparently changed and it closed upon Mtai, partly turned him, and crushed him. The driver, declared counsel, descended from the lorry, cursed the plaintiff for getting in his way, and then got back into the vehicle, leaving others to send Elton to hospital. Fortunately no bones were broken, and there was no permanent disability, but the plain--tiff had suffered considerable pain.

Dr. Douglas M. Paterson gave evidence as to Elton's injuries and said that he would not be fit for work for | about another month. PLAINTIFF'S EVIDENCE. Evidence in support-of his claim was } given by the plaintiff, who is a drain- | layer. Cross-examined by Mr. Blundell he said that he could not say how j much room remained in the alley-way after the lorry was in it. Nor did he know whether the lorry had a load on the back or was travelling fast or slowly. He had been "a couple of minutes" looking for the person whose call he had heard, but had not located this person before or since. Before the lorry stopped he "had been taken twice or three times round the wall." His Honour: So you were rolling like a rolling-pin, were you?— Yes, your Honour. After the accident, lie said he walked for some distance before collapsing. Mr. Blundell: Did you not call out to Walling, "I .knowyou, Walling; I'll fix you"?—No, I did not. Walling took no notice of his screaming at the time of the accident; added the plaintiff. Nor had he heard the noise of the lorry in reverse gear coming up the passage-vvay. ; Edward Lancley. employed by E. T.! Taylor and Co., said he saw the plaintiff at the top of the passage. Elton had I called on him. Next he heard someone | call, and went out and saw that the lorry was there. He described the position of the vehicle. Walling sometimes came into the passage twice a week. The walls were of white concrete and there were two doors on the right side. To Mr. Blundell, witness' said that Waiting's lorry was eight or ten yards into the passage-way when he and Elton parted. Apart from the cry [ which brought him into the passagej way he heard nothing. FIRM'S INSTRUCTION. Edward Armstrong, a casual employee of E. T. Taylor and Co., said he helped Elton into the motor-car after the accident. He admitted know- | ledge of an instruction by the firm that the right-of-way must not be used by members of the staff except to obtain petrol. DEFENCE OUTLINED. The defence, said Mr. Blundell, was that either the accident was a pure accident, in which case neither party was to blame, or that the plaintiff was the. author of his own injuries. Walling had been driving since 1910. On the day. of the accident the lorry was about one-third loaded. Walling was standing on the step looking back and driving, and sounded his horn before entering the alleyway. The tray of the lorry was 7ft 6in and the entrance to the alley was narrowed io about Bft, so he had to be particularly careful in entering and therefore could not drive at an excessive speed. After the accident there were words. Elton walked out, and Walling thought there was nothing wrong with him. Evidence along these lines was given by the defendant. (Proceeding.)