SUPREME COURT

Hokitika Guardian, 10 September 1932, Page 2

SUPREME COURT

HOUSTON V. SMEATON. VERDICT FOR DEFENDANT. GRIBYMOUTH, September 9 Mr Justice Blair gave judgment this morning in the case in which Malcolm Henry ' Houston, auctioneer, ot Hokitika, claimed the sum oi £505/11/-, from’John Smeaton, miner, of Dobson, for special and general damages, as the result of a motor collision, near Dobson on the evening of April 6 last Defendant counter-claimed for £22/9/9

Judge’s Review. In delivering his decision, His Honor, stated that the case had to be decided on a question of fact, as it was singularly free from legal complications. The claim arose from a collision of two motor-.cars. He used the word “collision,” -although as a matter of fact he was satisfied that the impact between the two cars was more in the nature of a “brushing,” rather than a collision. It was ti-ue that as a. consequence

of the brushing as far -as one car was concerned the damage, was serious indeed. That.was due to the fact, that the cars touched each front, and brushed, towards the . back parts which with plaintiff’s car happened to be vital,,. The plaintiff happened to be unfortunate in that, the., part of the road he was forced upon led to a deep pit. Plaintiff’s car wa s badly wrecked, and plaintiff himself injured. Defendant was more fortunate in that he selected a ditch, , resulting in no physical damage to lmnseif, and no considerable damage to, liis car. - The cars touched when travelling ut a fairly smart speed, each . probably covering 20 miles per hour,, which brought tlieir combined speed to ,40 miles per hour, 1 which meant that they were covering 60 feet pep second at the moment of impact. Obviously therefore, the / blow, although not liead-011, had immediate serious results. The allegations’ in the statement of claim by plaintiff against defendant was that defendant had been driving on his wrong side of the road,. with the usual further allegations that he failed to keep a proper look-out, and failed to apply his brakes. Nothing had been-' said on that topic. ' The real cause was not that either party, had failed to keep a, proper look-out, as both parties saw each other approaching. There was no difficulty in arriving at a decision in that respect. . „ The actual position was.,that when the situation becanie such that a collision was inevitable, ,tlie application of brakes would not help much. The case resolved itself"’ to the allegation that defendant was‘driving on the wrong side of the road! As far as defendant was concerned, he stated of the plaintiff, exactly what the plaintiff had said of him; namely that Houston, was driving on the wrong side, with the duplication of the allegation by Smeaton, , th‘irt , ! H6iisfon ' had' only one 1 headlight burning on his car. ,r "' h “ i

Unconscious Bias.

Sis Honor added that 'he* did not mean * to-imply that either party said anything which he did not believe to be true; Evidence in all such cases showed that parties quite unconsciously looked at the matter from their own point of view, and each personally thought that he must 'have done ‘iso and so,” because he usually did such, and evidence was perhaps unsciously coloured by that. That no doubt was responsible for the marked conflicting testimony of the parties. He had to make up his mind, as to what part of the road the collision took place. One had to use one’s common sense in these matters. Both parties were highly experienced drivers, and there was not a suggestion that' neither had not been perfectly sober, ■< and in normal driving condition, or anything had occurred to interfere with their driving. Yet both cars had met in collision on what might be said to be a comparatively wide stretch of road. Something abnormal must have been done; to bring about the collision. The - detendant alleged' against plaintiff,' that the latter had only one headlight burning, and in support of that allegation called evidence. First there were the two young men, who had particular occasion to be waiting at Wallsend for a one-lighted waggon.. It was known that a person, when awaiting an approaching vehicle at night, could only see the lights, the other parts of the vehicle being obscured, until it passed by the watcher. .'One of th e young men happened to have the more or less' hobby, not unusual with schoolboys, of identifying motor cal's. Until the car passed him, the young man thought it was the lorry he was wait-| i.ng on, but it; turned out'to b e a sedan Pontiac car. That was within a mile or.two of. the,place of collision. The other young, man also identified the

car as a sedan car. On top of that positive evidence, : defendant stated that he had taken the car to be a motor cycle. Defendant gave quite positive evidence on that, 'lhe only conclusion His Honor could come to was that either Smeaton told what he saw, or that he iwas inventing it. Nothing iin defendant’s evidence suggested that it was fabricated, or that defendant did not think it was true. His evidence was amply confirmed by the evidence of two other witnesses. Another witness called by plaintiff, stated that his car might not, have been normally lighted, but there was nothing; complicated .in the evidence of a ]a;dy witness for the defence', who stated that Turley’s car was normally lighted. Her evidence was that hi 3 car was not a Pontiac, but a Chevrolet. was evidence which established fully, the allegation on the part of defendant, that at the time of the accident, plaintiff had only one light. His Honor was prepared to accept the evidence given by Housto’i that nvhen he left Reef ton both headlights were burning. It could happen, however, that one light could burn out without being detected. It had been satisfactorily established that Houston’s car, immediately prior to the accident had only one headlight. That was the explanation of the accident. Houston had been driving with only one lieht. but thought he had two. In be ieving he had two lights, h e would know that the other driver appreciated that fact, and would act accordingly. As far as defendant was concerned, the position was that he would see only one light and had taken it,., quit© properly, to be a motor cycle. Not til’ it was too late to avoid an accident, did defendant appreciate that it was not a motor cycle. One inch further and the accident would have been avoided. Smeaton had left ample room from his point, of view, to avoid a motor cycle. The < ther party natural ly assumed that the car approaching could two lights, and one driver believed the other to be equally vigilant.' The explanation of the accident was that it was due to abnormal circumstances, and that Houston had one instead of two headlights. ‘‘That, 1 think is the true explanation of tinaccident,” continued H'is Honor. “The effect of the case is that tlie allegation made against Houston is established. To have driven wtih one headlight h 6 committed a breach of the motor regulations, but his ignorance of that does not exempt him in that rc- [ spect. Plaintiff has not established his allegations. That being so, his claim must fail. The defence has established that plaintiff had only one headlight, and that, as I see it, settles the case. It '’Seems therefore, that defendant has established his allegation, and that being so, he is entitled to judgment on the counter-claim. .Judgment on the claim nvi'l be for defendant, with costs as on a claim of dSSOS 11s, with disbursements and witness’ expenses to be fixed by th© Registrar. I will certify for one extra day for leading counsel, at £l2 12s and second counsel at'£7’Vs for each day. On the counter-claim, judgment will be entered for defendant, as on a claim for. £22 9s 9d, but J do not think; as the two claims were taken gether, that under the circumstances, I should allow any costs on th© counterclaim. There are no disbursements specially referrable to the counterclaim, and therefore there will be no order 'for costs,”