SUPREME COURT

Hokitika Guardian, 8 September 1932, Page 3

SUPREME COURT

SITTING AT GREYMOUTH.

HOUSTON V. SMEATON

GREYMOUTH, September 7

•• Before Mir Justice Blair, at the Greymduth /Supreme Court, which contmencOd the quarterly session yesterday morning, a claim for damages, as- the result of a motor col---lision, Was made by Malcolm Henry Houston," auctioneer of ■ Hokitika, against John Smeaton, miner, of Dob«(Mi.’ ■■■ '■/ '•• ; ’’■

■i^ ‘plaintiff "’seti-out that- on • April 6, 1932, while-driving-bis motor car near! -LK)b«on',!-'. : dn''thd rmatn road>-betWfeen Refefton, *and Tfokitika, - the defendant and iregligently drove 'hid Vcar, ’ thaF- 'if co’lided with ? the pl'aintiffb motor car. :i( a result* of the ’cbllisioh, the .plaitii!ife was'injured, And' his bar damaged beyond repair.; He claimed (1) special damages;- (a): hospital and medical expenses, M 13s;: X‘b) ■ Salvaging his ear £3 8s y (3) replacemerit’ value of his car £360; -(d); Toss ,6f time (7 days at £1 per day) .: and ; 9s week's partial incapacity -at -£3 per week) £3o; . .total £405 -11 s. (^) Lienerai diajn'ages £IOO. > (3) Gosts - of.the action;/(and (4) such further • of other : order as in'the ciroumstanoes may seem meet. ’ ; •- " Defendant’ lodged a counter-claim, which Was a-denial of the plaintiff’s diaim, and claimed-for £22-9s 9d,“being Salvaging of defendant’s car ' £2 -11$ 3d; and repairs to defendant’s- car £ia.d«s 6d. ‘

'. A defence to the eounter-daim was also ifiled by plaintiff. - • ! tPlaintiff-was repisesented -'b.V A. Murdoch,; and F. A.,,; Kitohing-* I ham ; defendant being*-/ropiWserited-'% S •: Thomas; and’ ff.t W.':H&n----j ''Oil the application of’.Mr Thomas, •oil 'Witnesses in the case were ordertd‘;OUt of '-’‘ Malcolm - Henry '-Honstony auctroneer i [ (Hokitikk,. stated that lie .possessed a-? adetpiate knowledge >of - the-fronds in ihe -Grey-' idietriet; ■ On rAprfli' last he 'the ■ jKoefton-races, - -his % tear heihg « [ Pontiac -aedon-.V 'Phe :party’ '<;Smpn6ed i three; in - addition id khnsdlf;-- ;: He | ddftvKeeftimson ‘return raboufcf6.4 pan., | dt> being then'idusk. He switched'fon the-4dights. of the /leaving; tahd. Wjbey • 'treret in good order. l /- J (Pher< rwa«''goed driving to the pbirtt oft'itn p«cfc.> He->was driving »t*a) moderht'f • r paoeV*/there «being /ia 3 ‘lot of - tra ffi e re !•. i turriing from the - races. A numbe)* i of cars overtook witness, who pulled ; off and allowedi them -to- pass. Hr i estimated the number at six, or more : Fr?it; oar ; on 'the j railWwy’ ferosSing on the far side'of •Totaraf Flat. Bait Andrews’and MisI Adamson Werei in the Fiat. car.v Wit . ness '/rScflgnis&l : ‘ Andrews’ car an/ I up to,see if Tie was, alright. /He- • did '; ndt ' /but,, (continued on through Dobson. Theu road, between Dobson ’ arid the accident was sub-. ■ ; st«ntiaily “in siniilay . eondition’!’now. > : to ,wha:t /it 'iWbS -at-the‘ time s of accident. The' 1 thaflic from -Iteeftop . niFturaiUy:’ sorting into the left oiy ; turhing the corner. He'- was -well in, oh- J the leftX vHe -cthen. noticed wpn 'proaoTiing--lighte. from a car in ths distance,' which he, -estimfited at 800 - yardsl ~'The approaching dar- would 'hg on t‘ tlie flat ,^below. the They mot : ineutarilyr dipped -into ia depression, l ;and (the. top-eft, the lull- would obscure ’them/ • kept 'to his left side. ! *'andt!«ia#ad!< his’ioar so as: /to' -pass-‘the ; approaching car. The lights of the -Other ear,.appeared, to/be-coming u,n ’ ; --tiie . hill-, Witness ( was .not^obstructed : hy'vihe glgipf .because he • never: looked straight iwto :tho.’lights of the other 1 oary'bpt kept ip as-cfose to-the" J . side of ths.- rcad . as-he eouid. l <• The- other -car did -not appear .to pull to-its* proper ’but conf|niued on; -Hje l : -was;;, afrar-d of being struck in the firont of His, car,. but-Ae other missed, ' and -.; crashed into;. his -OAr yim ithe '.vicinity of the rear off wheel. There was m a ; heavy rtash;, which caused his car- tc bee lairnedr across* the road, -the'/front portion. being on the wrong side of Wiitrtefew was^fthrown/’Off hin/balanceA the car- struck the 'irough portion vof theMedge of the road, and' < the reat- wefit over ; a; 'bank, to -crash, . into-dhe” bottomi-oft a -gravel .'.pit. Tlie’ it c«r ?l«nded‘ oil- dshe radiator, trien turn;: . eflr over,;-the irwheels Aeing 1 iniitho 'air; "When‘lie nwxte 'ToHed-'down -into - the - seat;-*-his Vfoot would-; *be-: on the ac-, icefera-tor, land .possibly the ear would ' 'jump > again. The " collision ‘ ‘occurred * at ‘approximately 8.15 - *p.m ; ; Witness ihad to pull the* body oft the'- car tt*. fpieces to rextricate - himself. He was ion the floor, the seat being on tor'of (%irii,- anfl' two lady‘ passengers’ ©rH j ibop-of that. BDe sustained a" broker- ! ‘collarbone, and a fractured -rib. Hr !Had ;; »cfiMp!etdly recovered from, ‘i-the } .fractures, but still suffered from 5 ,sh'ock:K rf lt < -affectwd ' , liim-- thr^utgh hbad- ' -iachfis; doss of sleep, and loss df energy, ihe ‘bdirfg unable to cphc§ ntra te, be- :• !fhn6. ; .4^he : eaf- 'whdff cost £350, and he had used it -fer three years.'* The cost 1 to renluoe - ’’wpuld bo'£36o. 'ifor 1 - Ha -Pontiac. ' It had been In • perfect ‘running order at the time of the* ac--cident; arid T 1 ts‘ mechanica t ' conditions were good. He hind ; covered about , &2,000 miles ‘ with"tho fcaft. ; of the- accident he was inca-u- - days rrt hospital, and ,"4rridd his Vight'drm -’in A” sling for ftduV "dr ' five' Weeks after ‘that.’' HO ’ re-; ! turned'to Work ’ sfter a weekr and w!ir •incapicaitdcl '-for -inboTlt' *V‘v “ Vick's. - time ht‘ ' cmdid- : .''•fteh'd to only - a'’small* portion of lti« hftkinesSj arid -Was’ uitable to traVtil, the'flargest portioM Of his biWims® ingtdone -by travelling in stodc dealing iRe lost quitO 'U lot of 'business as ; linsinese: being very keen. ’ilt ’tvas haw] r r ! i" I; ; .- - >?. • •-• V

. '---rv a */.. o'- -V.-- •’;. if to -tefitimaie but ‘kjiew*rtlhtt:ihe. -1 lost. a-..;deal of 400 -sheep. ]. ( -.To His Honor.; The- dealing .business; •; was personally. attended tp by. -witness* j/; returhs : 'dua-iUg that (period fi'dm '-' • gtock dealing, weife practically mil, as •' he was unable to go about his trade. I. •Continuing, witness -s-aid that liis. average weekly earning would be- £25-j per week, gross; Hifl normal .profits;] ,would amount to between £8 aridj £lO a week. During hts period ofj partial incapacity he 'would not make; £2 profit- per week. He -had been - driving-a'.car -for 'yeafs, diffingwhich time -he had- four' ears; and’ had: .never had a -collision previous -to this! one ; Both lights- of -:biV -ftpr-were btbh^ • ing iat the time of the' impact. ’'Had; one or both lights gone out, 'he"iiri>tild have immediately’Noticed it. ; ;,J "'Td ..]KfyTnqmas 'dropped' 'to be■f.WAr;ri aiid 20 jhil-y- when approach-. 1 ’ ing th^ ! ot'h’Ci* idai*. Defendant‘did hol'i’e-: Viate '‘from" ! hi® tx)ul*^e.‘The "'statement, ‘he made 'to ’the’police ’ was • practically. ■ : th'e same- as ’ that 'he now made. : ‘ Coiifisdl; '• 'Did'’you say, .^l' saw ’’appfqafihing' :i! thr " .feuddehly ’ swerve! acrdfes’rto ite ’ftigh’t-Karid 1 side and then;, turn Ito the -left again ?’ ”—J do not re-'i ; r membeir riiakmg' " that •’ statement. ’ . - ? J Did you say: ,‘T turned to the left! afid was struck on :my right-hand reap whe-el. at sdeh an angle tlidt it 'slOwedi :me -round, and I ran -over -into thfij gravel : pit?’-’i—l cdrtainly turned-slight--; ly to the left, -just ’before the impact.] “Why didn’t you tell us about that ?”! -asked- counsel. ’ • j His Honor: There is something on; ‘Mat topic,' said in examination in chief!] Iri •his' v mnin account lie said’ nothing! ■'rfbout the ‘tua-nihg; “but "later he said-hej ■kept- well "ort' his : correct Si die. ' ; [ ''’•••'His 'iHouof to'witness': There is a 'suggestion"thstt’ ydu 'did, not say youj 'tdrtied 'tb ‘the ~tef l : ‘when giving evidence j 1; M; -‘the' .police. What have .you rto say! -•'to’that'?—l said T thought there would] be’ )a beadibn callision.' . ' - ! To ’Counsel:- Hi’s stoi-y ’that -he was] (hit; -dA tlie (rear' wheel and turned] round,' Wag ,correct. He ;d’d viof i;e-j member’saying to 'the police that 1 he] slowed down ‘to IS miles per hour. Tr j 'he did -he must hav e . been “wdol gath-i ering.” ' ! ' i ,4 . ,Mf Thomaß: But you don’t :go woo,j gathering, Ayhen you make a -statement,’ ,to-the‘police, fdo you?'• ' -i ‘. --- !’ -. /Witness said that !s he would -be less) than two- feet , from the edge of the] grbs-s/iAt-the impact; ''-'H-e'- did ‘nut: ■know, that »ft, front Hdb tap was --Off •both ears.- /-It- --might V-v been br-frk-s ’em offi/in-the‘fall into the; gravel -pit. j 'The‘stub axle • -would also •- be - ber 4 i .-by''the’- fall into the : pit-. If pretf’feely: ’Me -.same -had . been .sustained by- defendant’s :!stdb axle;* it i wou’d Be -cau-f^'H .(hv .the "ifnpMt -of •defendant’s' car-,bni-the;; reart of Witness-’ oar.*'-'' He ’did - - r.< x agree that the rear wheels of hi-s ya;;| -would. be ' forced en to Me grass. "F j knew (that ‘SmeatoYi /said 'that hhily <’fh ■leftihanid ?light : ' -was' Burning ’f<ih- l; ivit X (BfeSs’‘!oar.i’’'He’i‘ : was :sdrd'l) e Ba'd .bofb; •I’clit-s burning when he' 'passed-/th-rdugl't,' Wailsend. Before going a, ’long . jonr/r indy‘ he -mlways’ 4 'had a-' '!dok ! i-ouhd - :l bi- l « "daprtio -seW-that evei’ythrng •'was Mi’ 'br-i 'SeirV ’lt wak ridky .’ to drive with ‘ dnej -’l’o-ht. He. could haV© 'Bp.(fiiffi| car within :.about 45 feet. He d'd yo' | •apply Mis brakes. H’o -seemfeil -to'* aicoe-, 'lerate when-his car/ Was 'hitJMs he ’lrtr. 'bis ' fdqt 'renting "‘MnN •' the ! a'Ccelefatoi’. 1 'Ffom the point of Himpftct to. the /im' ; ■ he, went into the ditch -ife' - 'wqtild ’. tru-iV: 27 feet acc-ross thg road. Defendant] /was travelling faster than witness. ‘H ,; - 'travelled ’six ".chains, '‘While *def’endrh> |

‘(triaTle'Med Seven//'-He 'would riot dea.v '’aiv stateriient that the accident deemeed ‘before 8 o’alrick. He would ‘ deny travelling . between .30 and 40 mile an hour through Wallsend-. He hid been off the Toad once previously Whe*v'turrting <fiom- ! a H race ’■ ’meeting. - ; ’'H r dnove l linto A Blackberry Bueh once’ to ; avoid a collision. He Was" -not . Sure whether his car had new wheels pu' oriri;aA;’thp ts nesul!t ■'Bf Bri’ accident.'He had.(a new .mudguaftd 'and*'' wheel',(put on-, -after -striking ’a’-'Stump in avoiding another car. The damages he olaimer

were fair/" an d J 'not exaggerated iririny Way-.- 'The -replaoernent -for -a new: ca: night'-not'Be faift: tnofi expe-ri to' get the amounrtef thri : dlaiiny £360 for the -replacement value, and c.on-

sidered r £2so wOuld be fah"'. ---He -cOUh have had“=the ■’orirdone' tip for - la' -filP

1 thie v --<3ar -to iße- repaired Varid;, ducoed;-. He -did not’ know ‘ what the

Tingyqiucker than.- 'hisJ&lhffE*,;-. other car’s lights appeared to' glare, aneftnome .straight at witness. He could I j,.safely kay. that the (lights wwe ou'till the ’time of the impact. Witness was ! up into the hood,]’ biit"< man- i Imaged ito,!get out ;-;-then he Jmuled;Mrs Hall out, and lifted the w-eight-'pf Mrs j Boyd off his father, The'to . would' Be from 'lB -to 20 feet. >ter feet defendant, who . his -father was' going fast-. (''^ 1 t n€SS contradicted '; that.’ He‘"cobld‘M|t-Bay •nt "whatrtime’ the accident occurt^ji. - -"The-'adjourhinent forYuntli Was (then (taken and prior to mesttwing, fHis * Honouv' viewed 1 the -plaintiff’ s' car. - "On I'esumihg the. witness, ’Malcolm : rEdmond Houston , juniy, was ( cross (examined ‘by dVIr Thomiisf He sta^— ■TlieMar; was right on jt-s ’ left sidh||ust prion fio the - colliVUon. -'A coMitioii looked inevithble and his father deviated’ the ’car (to the left, to avoid : a head-on collision. Witness did Hot ; know if the car ran on to the grass \ on its proper side. He might have ! b’een attefepting' to take off his coat. He did not do so. He way-yput- out ! and a little flustered and .offered to ;' fight defendant. '' If .'Smeaton Bad gobo j. Mh and- said his’HAtlfef yraO’ , tt f a J ''ifellmg ;i -fast arid liad no digbitsj-die TWbriid have i -got angrter,‘still.* - 'He ’thdught’' it Was l ridiculous-‘whien •he ’lieaftd 'tbe allegaj rtion that his -’father’s : : : ‘caT- -ha'd 'Only i One light." He •knew’ they- 'had ‘Mr | Andrews to ( support the evidence that | rthene'were*''two lights?" as they _]had ’'passed’ him’- v on ’the road. !,/ ] 11 ! " .'Aibfef''-TYoolhouse, labourer, /jvho ■ ' was a passenger' in plaintiff’s car, | evidence' in 'corrbboratioli bf that givl pn by” the previous witness. He '.saw ] defendant’s ear ' approaching. (Houston ! would bO travelling at ’from 23' M' 25 ; -niiles per liotir. The approaching 1 car j c&lrie straight' At : Houstori’ s oax,'%ver ■ ’ changirig'its posi|ion' Arid' if looked ] ; as [ though there would' be a' head-ori;]col- ] jisiori, ’but Houston avoided -it wW a S slight, swerve'.to tße. left'Arid deften’d- ; arit’; car rtfiick th'em near' the Back ■ mudguard! 'lf Houston -had gone ;pvpr ; any further? the oar Would 1 have t into the. ' bashes.! , Smeaton’s (/car ! never turned one Way or the o|ber. ] keeping a straight course. Just after ! tlie'accident, he- asked somebody j time ft Was and he* was told 8.10 |£.m. j "'"'TolMr Thomas: was rented [ to Mr Houston. He . Was told a Week : » , 0 r a fortnigjit ago that it had Been < suggested there was-only one light on i Houston’s;-car.. He remembered there i Being-'two /lights on Honstott’s car. It : (was-'only a few 'weeks?ago.;he (had j heard 'it would be ’alleged’ there was I '-only one light.' "Witness-felt thd car ■ swerv© jrtst Before the impact. The Car wetit 1 over the ipit about 10' yrirds - i,froni/the Uohsdn ;erid.' .*• (; Mri; Jpblanna "Boyd, hotelkeeper, | Hokitika, ;a paMeriger in plaintiff’s car said. she’:-v:'notieed ’ plaintiff - : 'wrilkirig | Aroiirid'his -iri! Rieefidh; -'Witrifes S was 'injured Wd waS ;'sriVen• WeelfS in (: ;MF Houston kept.;, mrikirig j /roonwffor' 'thoopther 1 orrrtO'’ jiriss'. ‘'(She '( felt the oar 1 hearing Over All the' tiriie. I She. Was Watehihg (the light# > and ( (’Wa-s I '/ffr.lid"there was-goirig to' Be ’an Acbir ) 'dent.- ; ! ■»■*»* I " ’ ’p&arfe]'Edward (Aiiifirefi's,".;" . drauihts- | 'triian, in the Land and Survey Office, ( Hokitika, said ho was in IDtefton' on ‘I r ßhe?(idpy ('Of '('the aeci'dent/’ He .‘'•‘'left : Reeftpn before -plamtiff. He pulled •! -W 'at' Tdtafta--Plat • arid •,adjusted. 'his ; Tights! He noticed' Houston? s car go ■ oasf him anci uAs ceirtain jhoth hir ] 'lfead/lights were Burning. -/.On ar- ■\ 'riving at the scene.’-of.Jthe Accident !■' ’just ‘after eight p’elooky-" h^;(rioticed

‘Mr (Smeathri’s oar op ' the' fjide -of the .(road! f t-: ciafejfind r inquired, arid when- ? he found/out it wa| Houston’s,'* he (got far/bit of ; a shock. He’ rendered what assistance, he- could. When he got upon ,the .-.'foad, Miss Adamson, fvhof was in .the car With witness was talking to/' rinrither man and woman. The other lady drew attention to the nvheelniarks of Housfoh’s '.'ear, / which . ‘•’showed -that' the tracks distinctly came nc-ross'the orowri oft the road, and- this made it obvious that .dan* Bad' Been on -the

proper side. Ho would sqv Houston’s car was ■ two feet over the crown of the road ; on the’ proper side. : The wbeelmarks on the ■ rOad that lie was able- to trace would, he considered, Be

from- 20 to; 25 yards. -The 1 wheehnarks came diagonally a«ross the road. >'

To Mr Thomas: He did not remember a -like car with one-light pass wit-

oar was'WOrfcli itoi-day; and was prepar- ness.' Witness recognised Houston’s f d'-Va- that the .'‘mount '- of ; claimed was excessive; a’go the claon It was a. few weeks • ago he -men* for- nine keeks’ -incapateitation, instead turned about the wheelmarks to Mrof. 6*-weeks.— , . .*■• - ‘ - * 'Houston. *" ' ;■ ; ...... . ' ‘Mr Thomas: • There were people-on • -To' 'Mr Kitchmghatn; There was no , . , ' • 1 4. ..• . . , 8 ... , . ... . » -the scene juist after the acoident. Ow-> ■mdntion about, one of lUsbghte number of ears returning •out. oh the;mght of' the -acfc.dexit al l ■ the Idahks .they “first suggestion he heard of the I'ight. were ; th£ , ones »«** Tue side'was when the defence was put m. The • • rfMr av> . ..» . i tpoli6e' ’iritej , vlewed ;: him' m -Witness reiterated that. he could ‘about-a We'e a r• e came ou o itrlgO© Houston's car’s wheelmarks on.hospitailT Whidh- wa S - ;a fOrtmght ; after , r . f the , TOad ■ > this accident. ' ; ■ * Frederick LovellTurley, TJhioii Sec-; ; Malcolm Edmond Houston etot-cc . T gtaTy,’ of ‘Cobden-, said he'was at the'that he was the son of the -plaintiff :R, e eft'on races rin April 6th. He came He went to Eeefton with his father on a f ew -minutes afteri Mr Houston.' SMay 6, arid left on return shortly after a Chevrolettear;- 1 and there whs: •5& p.in. He was ;in. .the front seat, with much difference’ between ' sedan! -Iris father, who was Reiving. He had ; cs , rs '- lady- asked witnetes -titf-put Tits.' driven for 12 .years, arid had driven lights ovei' "the bank ; -as ‘there •" 'had the oar in question quite a lot. There j )p g n a p accident. He then discovered 1 •Wits "mo reason for makmg haste' to re-, .'had been "driving with -orie light.* ‘turn- to \Hokitika. *He rioticed both. g e switched- On his other filament to lights were burning before leaving liis 1 lights ori tlie car over the; Heefton. They did not overtake a'!v 'hank ' ; ‘ : ™ r »" « To Mr Uamian ; He might' hove five or mx o is.. 1 - ' . driven rii-ht From lleoftoil' rvitii one he noticed, pulled up on the side el , . - . . .„ , , ’_T . ~ , XT »i „ j light. He did not think it could have the road Passing through WaHfond, .J'V , °i j- * „, • gone out on the way ns he ivould ha'-e thev slowed up to a certain extent. *» , . *, ■ . i r r_ s , ~ noticed it. After he had taken a lady mhe voeod we-ld' average •30 mites ‘ r *' * ... . ... Un . ..*•• ' 1/V e f to the' hdopital, he was aslced if he th« ioumev. His father took fh“ lo t. r , .•, I+ , I? Q J J , ~ , -. ■ ■ \vo\ild 20 bkek to the car and taKo .side of t e roa ® . oncomine ‘’ff : f.hc, sria're parts rind lodk after! %cene of .Th< > oncomrrm H ; fM hp bn d hri.l car -waa W« r °T C . i, ‘iVi fnii.er a good look round on the road, lie rivhen witness First saw U. ills nil. v One' ofI’them 1 ’them teftr "kept on t . kwa-ri off '$ iPonftac cSft progcnwig oar ■ appeared .to h- tr.a*e.-..[, , j( . ... • 1 1

pff :a-:Hudson car... The cups were just (bff the road. That: Would bo two hours after the accident. , ■l This concluded ‘the case lor the plaintiff. The Court adjburned at 5 p.m., until 10.30 o’clock this morning. " ' /("' IN DIVORCE: . GREYMOUTH, September 'B. At the Supreme‘ Cpurt yesterday, Nellie ‘Rdsalon'e ; Israeleon’ (Mr C. J. P. ’ Sellars) ’ petitioned ! for a divorce form Lawrence’' Owen Israelson, on..,the grounds of desertion; Respondent did not appear. Hetitionor stated that she’"' was in the employ of Hall’s Hotel, Hokitika. She was married to respondent ’on May 4, 1927, a copy of the riiarrie.ge license being produced. There'., was one child of the marriage. On July 4, 1929, a deed cf separation wap entered into between ! the parties, and the agreement has sintie been, in full force, and effect. Corroborative evidence was given by William Hall, hotelkeeper, Hokitika. Witness stated that petitioner had been employed by him for four yeans. He was aware that petitioner had been separated from her husband. “Decree nisi grivhtecl, with interim •rirstody of the child;” said .his-Honout “and may be moved absolvSV after tlie expiration of tliree’- : morithi?:” ‘

Costs were not asked for by" the petitioner. " : '