SUPREME COURT

Hokitika Guardian, 1 March 1930, Page 6

SUPREME COURT

WIDOW CLAIMS' £IOOO

“NO CASE FOR JURY.”

GREYMOUTH, February 28

Fatal (injuries were received by Thomas Laurence Lindsay Cunliffe, 51 watersider, when a motor-car collided with his cycle in High Street, Greymouth, near tlie corner of Buecleugh Street, at 5.50 p.m. on July 3, 1929. An inquest concerning the death of C'unliffe was held on July 5, 1929, and Mr W. Meldrum, Coroner, returned a verdict that death was due to a fracture of the skull ami laceration of the brain. The evidence disclosed, added the Coroner, that the accident was due not to any negligence on the part of the driver of the car, but to the fact that the deceased swerved in front of the car and was riding without a headlight, or his red reflector placed so as to reflect directly to the rear.

To-day, in the Supreme Court, Mrs Isabel Cunliffe claimed £IOOO damages from the driver of the oar, Walter James Radford, mining engineer of Hokitika, alleging negligent driving: (a) excessive speed; (b) failing to keep a proper look-out : (c) failing to signal liis-desire to pass the cycle ridden by deceased; (d) failing to pass on bis right side of the bicycle. Damages amounting to £IOOO were claimed; also the costs of the action. The proceedings were brought under the Deaths hv Accident Compensation Act "(Section 10.) The defence was a general denial of negligence, and. in addition, it was alleged that there was contributory negligence on the part of Cunliffe: (a) hy swerving in front of the car without warning (hi riding without a light: (o) riding without a reflector placed so as to reflect directly to the rear, ft was admitted that deceased’s death was the result of the collision. His wrecked cycle was exhibited in Court. Mr Hannan submitted that, even if Cunliffe were riding without a light or a reflector, or was in the centre of the street, if the jury were of tlie opinion that the car driver should have seen and avoided him, the plaintiff was still entitled to damages. The onus was placed on the driver of a car to see that the traffic ahead of him was not placed in danger. Mi- .T. W. Hannan appeared for the plaintiff, and Mr C. S. Thomas, of Christchurch, for defendant. Tlie following jury was empanelled: John Smith,; William Boucher, Thomas Hugh Jones, Thomas Jeffries, Walter Leslie Dittos, James Collognn. Emil Percival Peters, William C. Gleeson, John Booth. Samuel Geoghegnn. William Anderson, and Cedric Walker Batty. Mr Jones was chosen foreman.

Three prospective jurors were challenged by Mr Thomas, and one by Mr Hannan.

On the application of Mr Thomas, witnesses were ordered out of Court. Mr Thomas raised a preliminary objection, on the ground that an amended statement of claim was filed only the day before yesterdav. It was agreed that the case should proceed meanwhile, and that, when the plaintiff’s case concluded. Mr Thomas should he entitled to apply for an adjournment, if desired. CASE FOR PLAINTIFF. Sergeant J. Smyth, arrived at the scene of the accident five minutes after it occurred, and stated that lie conducted the inquest later. Defendant estimated liis speed at 15 miles per hour, and his passenger, Jones, at the same rate. The only other witness of the accident, Heapliv, would not estimate the speed. Nothing was said by counsel representing the relatives at the inquest as to excessive speed. It was stated by Radford and Jones that, just prior to the accident, another car was approaching with bright headlights. Cunliffe swerved to tlie ridit tof the shadow, in front of Radford’s car. The latter swerved to the right to avoid Cunliffe, and kept on to the other side of the road to avoid colliding with the other car. Radford said that when he, first saw Cunliffe. the latter was about 10ft in front of his car. Radford immediately got in touch with the police, and his evidence was given within two days of the accident.

Cycril Heapy, assistant Town Clerk, who heard the accident, said he was on the opposite side of the road, a little behind the point of collision. He heard a “smash, a crash and a bump” He had not previously noticed the cyclist or the motorist. After the accident, lie saw the car pursue a zigzag course to the right for 70 for 80 yards. He went across the road, and found Cunliffe lying on the road, about 25ft in front of his cycle. He did not notice whether the brakes were put on . the car. He was no judge of speed. To Mr Thomas: He said at tlie inquest that Cunliffe was lying about 12ft from his cycle, but the distance had been measured since, and found to be 25ft. He did not know that the cycle had been moved before the arrival of the Traffic Inspector and the police. He did not notice whether there was a. lamp on Cunliffe’s cycle. Patrick Power, engine-driver employed at the State mine, and residing at South Beach, stated that lie a as cycling about a chain behind Cunliffe, and caught up to and passed him three or four chains on the Greymouth side of Cunliffe’s house. Deceased was riding three of four feet from the grass plot, on the usual cycle track. Witness had no difficulty in seeing Cunliffe ahead of him; the street was fairlv well lighted. Shortly after passing deceased, witness

heard a smash. He would be about 20ft ahead of Cunliffe at the time. After the crash, he heard the grinding of brakes. He glanced over his shoulder and saw a car swerving to the right in a half-circle. It pulled up about two chains away from the place where the crash occurred, and a man got out and ran back. Witness walked hack and saw Cunliffe, who was lying between four and five feet out from the grass, and about, six or seven yards ahead of tlie his cycle, which was also four or five feet away from tlie grass. The glass was smashed on the left headlight of the car, but the light was still burning. , To Mr Thomas: He had a light on his cycle, but did not notice whether C'unliffe had one. Leslie Owens, taxi driver, who was approaching Greymouth at the time stated that he noticed a car approaching him, on its correct side of tlie road. Near the intersection, the car crossed over to the right towards witness, and lie bad to swerve to the right, as lie thought the other car was going along Buecleugh Street. Had witness not swerved, there would have been a head-on collision. He did not know whether the brakes were in action on tlie other car. To Mr Thomas: The lights on his car, a Dodge, were, brighter than those on the other car. Mrs Cunliffe stated that her husband gave her between £4 and £5 per week but never -less than £4. Tn addition to working on tlie wharf be bad casual work. The two younger children bad no income. The eldest son had a taxi, but she had to help to support him. Witness started a '•ake. shop five years ago, from which her average profit was about £2 per week. There was an insurance policy if £IOO on her husband's life. To Mr Thomas: Her daughter asssited in the shop, but received -i o wages. Witness did not keep hooks, as her shop was very small. “It is very prosperous looking” said Mr Thomas. “There were two Mack cats there this morning. This closed the plaintiff’s case. Air Thomas submitted that there was no case for the jury. There was no evidence at all of any negligent act bv the defendant. There was r.o evidence of speeding, and there were no skids marks from the point of impact to the rwv’nt where tlie car {flopped. The defence submitted that <fl.nhffe swerved to his right, and dcisndaiit swerved in an effort to avoid him. It was just as possible for Cunliffo to he negligent at Radford. ' Mr Thomas quoted English authorities :n support of his contention that there was no case for the jury. After hearing further legal argument in Chambers, His Honour decided that there was no case for the jury, am) gave judgment for defendant, with costs according to scale, disbursements and witnesses’ expenses to be fixed by the Registrar.