SUPREME COURT

Hokitika Guardian, 2 March 1933, Page 2

SUPREME COURT

motoring' accident.

GKEYMOUTH, MAroh 2,

A*, claim for £1527 19s damages, as tho result of' a motor „ accident "Which occurred ‘<on \the highway ,in ‘ February, 1931, occupied Mr Justice Reed -and a jury, At the Supremo Court, Greymo.Uth; ■: yesterday. The 1 plaintiff . Was William Ernest Smith;' miner, (Mr • P. J-C«egan;--otWellington), and . the defendant Frank Holling, yardman, Ngahix&pifAc Cuthhert; • df , ' Christchurch).' •;</' ■■ • • The/.statement ofclaim . ' set' out—(1) That ' -pn Sunday, February; -. ti, 1931,. he was ■ travelling' ‘ motor cycle by the Wristporl-Grey mouth highway in a " southerly-,, ; direction from Runanga,; ,->(2) /that hig -• motor.cycl e was 6 truck and overturned ,by a mo-tor-bar . travelling: in- the opposite >diireotipn, and < driven 7by - defendant • (3) that in , consequence of • th e accident his right leg was -fractured, and was amputated below the knee on .June-2, 1932.; (4) that' the 1 acci dent • Was due to negligence on.' the part of defendant, /in that -(a)-he. . failed to' keep a proper look-,put and to . manage t[he. : car •with due care And skill, and (b) he -caused' the car ..#* swerve suddenly to hW , right, and in ‘ consequAhce of - such negligence the collision occurred; (s)‘ that plaintiff’* average" Weekly,, ea-rn. iriga ypribiv to the accident - were not -leas than £6'pet'.week. ' •!: Th* atatemijnb of defence was a denial of thi allegations, And defendant said that' the collision v waa ' caused by the negligence of , plaintiff, , . ,vir i t’Rcgnji announced that it -w as practicadly /' . certain' i : ; an • agreement would be ' reached , regarding medical and (Hospital ■ expenses,, .at ' £2/6 ‘i-s. The •claim for£9 in connection the rhotor-cycle wohld bo,, withdrawn, as tile maoihne was on time-payment, land had -been- returned../ It' was also admitted / that '.the claim ' tor. at £6 per week c wa e , too much, and a» agreehaont. would,. probably'- be reached -on that matter. , /Dr j' F. C- Moore, Medical Superintendent ' oif' the G r cy 'Hospital, described -plaintiff’s .injuries, and • the Subsequent -amputation of -the, right leg, seven incheis. below the knee. It Wm 1 probable that further operative treatment- --would /j,be t . required in future. • ' " \ * - ' '

plaintiff stated that he ,-was 23 yeans of age,. -aiid- had -followed the occupaitiOn, of a, coail-miner for about five years’ before, the accident; He came from' England. six year® ago. On the of the accident- He was. travelling from -.Barrytown. to Rtinanga,:' /to -attend the (League picnic a.t. the' SevenMile. , The .accident -occurred • between 1.30 p.m. and 2.30 p.m. on the Sunday afternoon. Me sounded “hi* hom; and was traVWling afceut 10-mile*, per hour down the Eight-Mile Hiß, ’ae there wps ,'in flSjarp/ corner.., Whhni h* - flwt #aw the oar,-it wag 40 to 60 feet away, and%as going iat;‘£ Tea-sonrible speed, oh the correct aide. Witness wa» also oh- tafflLVcorrectV-side, and pulled over riiore to -his"left .when, saw tho car. The latter, suddenly swerved, however, arid knocked hiim over, into the drain at of hjs Tight leg beii^ ::: jammed' aga'insh the, cylinder.

To -Mr iOuthbeTfc:. Hie cycle was in «eeond Rear when;/ descending ithe. -hill as there were usually Rome children playing on , the road-. The ear- .wn? about 10 or 12 •feet ’away/ when it EUddenly swerved Uncross the-road on to him. ' It’ was tfayclling, roughly, at about the game speed as »c was. He suggested that the ,« car • swerved because the driver might/have lost hihead, or tlhat he -could no* contfoj. the car in the gravel/ and.: it skidded, li the driver of the car were changing gear at the time,' as stated by Mr Cuthbert, he would not £e able -to control the car pyoperiy, with only one-hand on theyleel., .>, . His Honor smilingly. remarked that Sir (Malcolm Campbell drove at over 200 mile® per hour, the . other, day, with on® arm injured, Mr O’Regan pointed out tfhat defendant was not driving on a straight load.' •

Plaintiff stated that- the whole' cause of the accident was the car swerving six; feet acrosg to it's wrong side of the''road. He denied that he 'asked Bolling, after the'accident, to say that it was "a pur© accident,” or that he skidded.

At this stag®, all witnesses were ordered out of Court, on the application of Mr O’Regan.

Pbintiff said that/he pointed out to Boiling that Ihe had . been eeriously injured, -and said be hoped 1 Homing recognised who was - responsible for the accident.. Defendant said they , would not worrylabout it at,that time, as he was anxious to get plaintiff to the hospital. William Brown, labourer, - 0 £ Runianga, who was travelling on the pillion; of Smith’s motor-cycle, . Raid that they' feft Smith’s bach at the TenMile, to go to the picnic. The cycle was ' .travelling slowly down the hill) ij-ust 'before the accident, and was on its correct side when the impact occurred. It wag the first time witness had ridden pillion. Hi« Honor ask®d whether he had (ridden 'since, and, , amidst, laughter, (Witness replied in the negative.

Witness stated that he was rendered unconscious by the accident, (had his cloflhes spoiled, and wa? off work dor a week. He did not know what' actually haunened, but Smith told him that, Helling was to blame. [All he,; knew was 'that, the cycle wa* k>n the correct ride of rend b e fore |he accident and that Smith blew the

horn. -They were on their correct - all, the - way - from the Ten-Mile.

Mfs Florence Elizabeth \yho resides near the scene of the accident stated that she was gathering grass (for her rabbits, . .and heard a motor-horn sounded. She looked up and -saw iSmith’s miotor-cycle rounding tihe corner very, slowly, on the correct side close to the bank. She could not see the accident, ae the bank on the other side -blocked -her view, .but she heal'd the crash. ,

To Mr Cuthbert; She had no idea whether Smith “cut the corner.”

'This closed the case for the plaintiff, and the luncheon adjournment was taken. THE DEFENCE. ( The defendant, Frank Holling, said that, with Archie Ross and George \Vare, he attended the League picnic and. later they left for -a ride in witness’ car, going towards "Westport. Coming to the bend near the scene of the accident, at the Eight Mile Hill, he changed gear and would then be travelling at about ten miles an hour. 'Witness sounded . his horn and after rounding the bend on hig correct side, he changed gear, and saw the motor cyclist coming towards him about two yards away. The cyclist was coming angle-wise across the road, and he appeared to be cutting the corner. Plaintiff endeavoured to get back to his own side of the rood, but did not have time and hit the right hand mudguard of the car. The handle bars of the cycle hit witness’ car. After the impact plaintiff’s cycle careered on towards the roadside. Smith’s first words to witness were: “Say you skidded and say it was a pure and simple accident.” Witness took plaintiff to the doctor. Witness reported the matter to the police that day. To Mr O’Regan: He did no actuary see what part of the motor cycle struck the car, but he -thought it wais the handle bars Witness was changing gear, and possibly that was why lie did-not .see Smith earlier. In changing gears he had only one hand on the wheel. -

George Ware, labourer, of Ngnhere, ■said the ear was just rounding the corner when he saw the motor cycle. The motor cycle appeared to be travelling at. 25 miles per hour, and appeared to cut the corner. r JTbe injured man a number of times told Holling to say it was a simple accident, and that Holling had .. skidded. Holling’s • car never skidded or swerved. Archibald Ross, labourer, of Ngahere, corroborated the evidence of Holling and Ware. William' Steer,, manager of Greymouth Motors, said he had inspected the - scene of the accident that morning, and it would be almost impossible for 1 a car tc side skid going up the hill at any speed from 10 to 20 miles per hour. It would be impossible for a car descending the hill slowly to skid!

T ; ~To7'jifr O’Regan: An experienced driver , might deviate off his> course whilst’ changing gear. ' '• > Toln - Lea-mient, surveyor, «aid the cant of tho road at the particular spot was one in seven. The seaward side of the road was about three feet lower than the upper side. The road was 19 feet wide.

After both counsel had addressed the jutjr at length, His Honour summed up, and the jury retired at 5.14 p.m. At - 7.5 p.m. the jury returned and the foreman asked His Honour to inform them as to the direction in which the motor cycle had fallen, and whether the fractured leg was on top or underneath the machine.

His IJonour said that the cycle had fallen on top of the left leg.. The Foreman said that, if plaintiff had stated he fell on the right side, the broken leg would be -underneath. His Honour concurred, but. pointed .out that,dn-.ith had stated, in evidence that- he fell to- the left, and the cycle fell on top of him. His Honour said that seemed as far as they could get on the point. The jury again retired at 7.12 p.m. The jury again returned at 8.45 p.m. after an absence of three hours and thirty-one minutes. Hi's Hoinour: Are you unanimous gentlemen ? ~

The Foreman: / No. “Any chance of unanimity,” asked His.,Honour. * , „v.

‘‘No sir,’' replied the Foreman. “How is the verdict.. Nine to three?” asked His Honour. Tiie Foreman: Yes sir.

The Foreman of the jury stated that on the first issue—“ Was defendant negligent by failing to keep a proper look-out?”—The answer’ was “Yes.” On the next issue—“ Was defendant negligent by failing to manage the car with due care and skill P”—The answer 1 wae also “Yes.” The next issue—“ Was defendant negligent, by causing the car to swerve suddenly to his right,” was the only item the jury had not given a decision on. For the next four issues the answer was “No.” Issues- three and four had .not been -answered. In answer to issue five, the jury had fixed general damages at £750 and special damages at £486 7', s', a total of £1236 7s. Mr o’Regan moved for judgment for plaintiff. Mr Cuthbert asked that, under Rule 286, the case be adjourned for - further consideration. The jury, he stated, had not been able to come to a decision on issue Q, namely, “Was defendant neglibible by causing the car to swerve suddenly to his right?” Counsel asked for judgment to be reserved for 14 days so that defendant might apnly either to- set aside the jury’s finding or for a- new • trial. Counsel suggested that His Honour adjourn the case for further consideration. He considered the case would not be re-heard here now, and perhaps be settled in Wellington before His Honour. He submitted that the findings were defective. Question Three and question C (1) were not. answered; ...

Mr ditpert suggested a new trial be held on' the grounds that the verdict was against the weight of evidence, or that the jury’s verdict was defective.

Leave was given to move within 14 clays for a new trial or for judgment for defendant. The case was adjourned for further consideration on the ground that the findings of the jurv are defective and/or are against the weight of evidence.