MOTOR CAR COLLISION.

Manawatu Herald, Volume XXXII, Issue 850, 9 June 1910, Page 3

MOTOR CAR COLLISION.

CAMPBELL V. HFNNESSY

VERDICT FOR PLANTIFFS

FOR £SO AND COSTS.

The hearing of the case brought by Elizabeth Jane Campbell and her husband Duncan H. Campbell, of Moutoa, against Philip J. Kennessy, storekeeper, of Foxton, to recover £5Ol damages as a result of a motor car collision on January 27th, was resumed at the Supreme Court,Palmerston North, yesterday afternoon before his Honour, Mr Justice Cooper. Mr Innes, counsel for the defendant, who opened his case on Monday afternoon, called the following evidence : Philip J. Hennessy, storekeeper, of Foxton, the defendant, stated that on January 27th he was out driving in his motor car with his three sons and two daughters. They left Foxton lor Moutoa at 6.50 p.m., and went out as far as the Shannon Bridge, a distance of nine miles and then returned. His youngest son, 17 years of age, and himself were in the front seat. When they left the bridge on the return journey they had not lit the lights on the car, but lit them on their Way back, before reaching the scene of the accident, which is about 2Y2 miles from Foxton. He lit the lamps at 7.40 o’clock, and he considered it was sufficiently dark to warrant lights. This was one to one and a half miles from the scene of the accident. Witness said he was a competent driver and held a driver’s certificate, and had driven the car in different parts of England, Scotland and Ireland. He first saw the trap approaching about 100 yards away. It had no lights. His son had the wheel of the car, but witness also had one hand on the wheel and the other on the top lever, and therefore had absolute control of the machine. The boy had previously driven the car on several occasions. When meeting the trap witness directed the boy to keep well on one side of the road, which he did, having one wheel on the grass and the other on the metal. The car kept in that position until witness thought they had passed the trap when he told the boy to again take the centre of the road. Just as they were getting on to the centre of the horsetrack, however, the mudguard of the front wheel of the car, and the wheel of the trap collided. They then took the centre of the road. One of the members of witness’ family drew his attention to the fact that the trap had overturned. He immediately turned the car right off the road on to the north side and pulled up. The power had been cut off the car fully three chains before meeting the trap. Before bringing the car to a standstill witness looked round, and saw Mr and Mrs Campbell and the child sit up. He was then about 40 yards away. After stopping the car witness went and caught Campbell’s horse, and waited there till Campbell came up. Campbell’s first words were that it was a pure accident and no one was to blame, and witness said “ my lad was at the wheel.” He did not blame the boy, nor say anything about the boy giving the handle a twist. Said it may have been done by a sudden twist at the wheel, but did not say it was done that way. At the time witness said “We were kind of apologising to one another for the accident.” Campbell made use of the words “ Look at my wife she’s very hysterical, never mind the horse,” and told witness of Mrs Campbell’s condition. Witness was very much upset at what Campbell told him, aad immediately suggested taking Mrs Campbell in the car to Foxton to see a doctor. Campbell said, “ Never mind ; there is no harm done. I think everything is allright.” Witness said that would not suit him, and told Mrs Campbell that she had better come in the car and see a doctor, which she did, and he took her to Dr Maudl. Witness said that not more than ten minutes elapsed between the time ot the accident and going on to Foxton. They got to Foxton somewhere after eight o’clock, Mrs Campbell then asked witness to get a friend of hers, and he went to Mrs Easton’s aud enquired for the friend, and afterwards went on to Moutoa aud picked up Campbell and witness’ boy, and on the journey back to Foxton picked up some other members ot his family aud Miss Dudsou aud Miss Wright. He took Mr aud Mrs Campbell home again the same evening. The following morning he went out to Mr Campbell’s place for the purpose of asking after Mrs Campbell. He saw Campbell, who said that he was pleased to say Mrs Campbell was alright. Absolutely nothing was said about payment of damages or compensation. Witness told Campbell that there was only a mudguard of the car broken, aud he said there was a spoke broken in the wheel of his trap. Witness told him to take the trap to Barber’s and get it fixed up. His reason for this was that he was sorry that he was a party to the accident, and knew that Campbell was not in th* best position financially, also he was a customer of witness.’ Campbell said “ Thank you.” Witness paid the cost of the repairs, which amounted to £2 17s. The morning Campbell brought the trap in he again thanked witness. Witness then said he would pay the

I doctor's bill if he (Campbell) f would get the account. His reason for asking Campbell to get the account was so that the doctor would not know who was paying the account and would not “stick it on.” Campbell never produced the account nor asked for payment of it. The morning following the accident witness examined the marks on the road at the scene of the accident. He saw where the . trap struck the metal on being overturned. It was a loot to fifteen inches clear of the grass. Every time he met Campbell after the accident he always enquired how Mrs Campbell was, and Campbell always replied to the effect that she was getting on very well. Some time about the end of March, Campbell said that she was not so very well and that he had had the doctor out again. He then spoke about the loss the accident had been to him, and in reply to witness’ question as to what way he had suffered loss, he stated that he had had to sacrifice his mare. Witness told him that there was no occasion for him to have done that as he (witness) could have done with the mare and paid him the value of it. Campbell then said that he had been put to a great deal of expense, but gave no details whatever. This was the first occasion that Campbell had mentioned the matter of loss to him. When witness saw Mrs Fasten on the evening of the accident he told her that Mrs Campbell was turned out of the trap through colliding with his car. He denied telling her that his little boy was driving and he took the wrong turn and ran into Mr Campbell’s trap. He might have mentioned that his boy was at the wheel. Witness said he did not remember discussing the matter with Barber, but if he (Barberl said he did, witness said that he may have done so, but he did not think so. Witness remembered Rushton arriving at the scene of the accident, but did not remember speaking to him at all. He saw several people at the scene of the accident. It would take from seven to ten minutes to drive from the scene of the accident into Foxton.

To Mr Cooper: Witness said that he had driven his car through some of the most populous parts of London. There was a clear track when he told the boy to go back to the centre of the road. He did not see the trap capsize. Campbell’s statement as far as coming across the road was concerned was untrue. Witness denied telling anybody that the accident was caused through his son turning the wheel too far, or that it was the boy’s fault. He failed to see how his son John could know anything about the cause of the accident. Mrs Easton’s statement that he had told her it was the boy’s fault was absolutely wrong, and the only reason he could see why she should make the statement was that she and Mrs Campbell were great friends, and had been so for year*. He explained to Campbell the sensitiveness of the car, but denied telling him that the boy turned the wheel too much. Witness had one hand on the wheel, and the boy both hands on it. He considered that was quite a safe way to drive, and stated that he would guarantee to take Mr Cooper to any part of the country, driving in that manner, When witness lit the lamps of the car on the night in question the sun had gone down some time, and it was getting dark. Mr Cooper pointed out that according to the New Zealand diary the sun set on the evening in question at 7.28 o’clock.

In answer to further cross examination by counsel, witness said the night in question was cloudy. When he received Mr Cooper’s letter in reference to damages he instructed Mr Moore to reply to it. Maurice Sweeney, police constable, stationed at Foxton, iu evidence stated that on January 27th he saw defendant bringing Mrs Campbell into Foxton in his motor car. He was standing in front of the old post office. It was about 8 o’clock, and the sun had set. The car had lights at the time, and witness considered it was sufficiently dark to warrant having the lamps alight, and had been so for some time.

To Mr Cooper: Witness said he recognised Hennessy from where he was standing on the night in question. He also saw Dr Mandl the same evening, some little time later. He was standing on the footpath. John Hennessy, son of the defendant, sworn, stated that when he first saw Campbell’s trap approaching it was about 100 yards away. It was pretty dark at the time. They lit the lamps on the car at 7.40, and met Campbell at 7.45 o’clock. It was a fine night. Just as they met Campbell the car was well on its right side of the road, and Campbell was on also his right side. Witness said he was watching, and saw Campbell coming in more to the centre of the road, and the car was also drawing iu. They received a bump, caused through the mudguard of the car and the wheel of the trap colliding. He saw that the trap was upset and immediately informed his father, who brought the car to a standstill. He returned to the scene, but did not at that time have any conversation with Campbell. He afterwards returned with Campbell to the latter’s house aud waited there until his father returned with the car. He did not make any explanation to Campbell iu reference to the accident. Campbell said he was as much to blame as witness’ party were and also stated that his horse did not take kindly to the lights.

Witness said that the horse seemed to toss its head up as the car approached it. He saw Rushton at the scene of the accident aud he asked witness what was wrong. Witness replied it was an accident. Did not tell Rushton that it was their fault, and the boy turned th' •vheel the wrong way and the cc. ran into the trap. Witness sa v Campbell the next day when be (Campbell) admitted that he was as much to blame as they were aud that it was only an accident.

To Mr Cooper: Campbell said his horse was frightened of the lights. Witness said that he had never ridden a horse that shied, but had seen horses shy. Campbell’s horse came iu towards the car. Witness had never before seen a horse shy into the object it was frightened of. Mr Cooper h re commenced to cross-examine witness as to whether it was dark or not, but His Honour said that as the sun did not set that night until 7.28 o’clock he was quite satisfied that it couldn’t be dark at 7.45 o’clock.

In answer to further crossexamination the witness said that his brother was driving the car at the time of the accident and he was sitting directly behind him, and could therefore not see whether his father had one hand on the wheel or not. Witness thought that his brother was quite capable to drive having previously driven on several occasions. He could not suggest why Rushton should tell a deliberate lie. He did not remember speaking to Rushton on the night in question, further than to state that it was an accident. He may have told Rushton that it was their fault, the boy turned the wheel the wrong way and the car ran into the trap, but he had no recollection of saying so.

Walter Stephen Carter, farmer, of Moutoa, sworn said that Campbell was a very careful but a very nervous driver. The horse driven by Campbell was inclined to be flash, and plaintiff himself had admitted that the horse required driving. Two days after the accident, in conversation with Campbell, the latter had told witness that on the night in question both Hennessy and himself were each on their right side of the road aad that after passing and in turning on to the road again they collided and the wheel of the trap had struck the back of the car. Witness asked Campbell it Hennessy was travelling fast and he said no that he was travelling slowly. Asked how Hennessy took it, and Campbell said he was very much cut up about it and that he was sorry for Hennessy. Witness asked him if he blamed Hennessy and he said no it was an accident and that Hennessy had done all he could after the accident.

To Mr Cooper: Witness said that in conversation with Hennessy the same day he told him all that had passed between Campbell and himself. To Mr Innes: Witness was quite friendly with both parties. Mark Edward Perreau, baker, Foxton, said that he discussed the accident with Campbell about three weeks after the occurrence. Campbell said it was a very nasty accident, aud was a collision between the two of them, and that some one wanted him to go for damages, but as it was a pure accident he wouldn’t think of such a thing. Bertha Ellen Dudson, sworn, stated that on the night of the accident, she, in company with Miss Wright, was cycling on the Moutoa road and arrived at the scene of the accident shortly after it occurred. It was dusk when she first saw the lights of the car, which was then about a quarter or a mile distant. She saw the car stop and cycled straight on to the scene. She passed Mrs Rushton on the way aud consequently arrrived at the scene before her. Witness afterwards returned to Foxton iu the motor car with Mr Campbell and the memburs of Mr Hennessy’s family. She heard Mr Campbell say that it was a pity to blame the boy as it was a mere accident.

To Mr Cooper: Witness said she did not know what caused Campell to pass the remark he did, nor she did not know who he addressed the remark to. She did not remember Mr Hennessy showing Mr Campbell how sensitive the car was.

This closed the case for the defence.

Mr Innes in addressing the jury briefly touched on the evidence submitted. He asked if plaintiff knew that defendant was wholly to blame for the accident why had he not taken the case up before. He contended that the jury must find that either plaintiff was wholly to blame or that both parties were equally to blame — and if so then plaintiff was not entitled to any damages. If the jury found that the accident occurred through carelessness on the part of defendant or his son then the question of damages must be considered. He contended that the claim of £SOO was a monstrous one, and the case was one for the Magistrates Court and not the Supreme Court, a case where a £lO note would easily cover all damages. He impressed on the jury that they were not entitled to take up the position, in considering the amount of damages, that one was a poor man and the other a wealthy one, Mr c oo Per *kat taking all the circumstances into account h« did not think the jury would have much difficulty in coming to the conclusion that the defendant was to blame for the accident. He said the defendant himself had admitted he was the cause of the trouble. They could not disbelieve the witnesses for the

plaintffs, and John Hennesy.the defeudant’s son could not deny that he made the statement to Rushton that it was his brother’s fault. Another matter that he would draw the attention of the jury to was that they had not heard ore word from the driver of the ca . He had been studiously kept or t ol the box. Only one couclusio 1 could be drawn from this and tbi t was that he was not brought foi • ward as a witness because be would have to admit that he dii give the wheel a twist. When defendant had been approached for a settlement about the end of March he had then said the trap ran into the car. Now he had a different yarn. The defendant’s statement in reference to the necessity for lights had, he said, hopelessly broken down. He contended that there was a clear case aud in reference to the assessment of damages the jury must take into consideration the suffering and misery that Mrs Campbell has been subjected to on account of the accident.

His Honour in summing up said that an accident had occurred, aud the defence was that it was caused by plaintiffs. Defendant had submitted that plaintiffs’ trap should have had lights, but there was no evidence to support this contention. He said there was no reason to doubt the evidence of Mrs and Miss Rushton. In reference to how the accident occurred, it was evident from the evidence that the car turned in too soon. If the jury found that defendant was to blame then the jury must consider the amount of damages. He directed them as to how the damages were to be assessed.

Before retiring to consider the case the foreman asked his Honour if, in considering the amount of damages, the jury were to take into consideration the matter of contingent damages. His Honour said that the jury could consider the question of suffering which Mrs Campbell might have to undergo in the near future, as a result of the accident, and could if they considered it necessary allow reasonable damages in this connection.

After a retirement of about ten minutes the jury returned with a verdict for plaintiff for £SO damages. His Honour said it was a very fair verdict, and accordingly entered up judgment for £SO, with costs on the lowest scale, plus £5 5s allowance for counsel for second day, witnesses aud court expenses.