CLAIM FOR DAMAGES

Manawatu Herald, Volume XLIX, Issue 3754, 14 February 1928, Page 2

CLAIM FOR DAMAGES

SEQUEL TO COLLISION,

PL A INTIFF SUCCEEDS,

Before Mr. Justice Ostler and a jury of twelve at the Supreme Court at Palmerston North yesterday of a case wherein Ernest Fleming Graham, of Foxton, labourer, sought to obtain from Jorn Alfred Russell, of Kairanga, farmer, the sum of £760 as damage/s arising out of a motor collision between a motor cycle driven by plaintiff and a car driven by defendant. Mr. Ongley appeared for plaintiff and Mr. Inhes for defendant.

. The following jury was empanalled: Messrs G. D. Pattle (foreman), IT. Swainson, A. M. . Richards, E. Giles, M. O’N. Franklin, A. W. Bearsley, J. Howard, R. Reay, L. A. Soper, C. Hanson, J. Smith, junr., and D. Christie. The statement of claim set out that, on June 3, plaintiff was riding his motor cycle along the pubdie road at Awapuni when, it was defendant so negligently drove his motor car that it came into collision with the motor cycle. Defendant, it was further alleged, was driving at a rapid pace, and, in attempting to pass another car travelling in the same direction, drove his motor car suddenly on the wrong side of the road without keeping a proper look out for traffic travelling in the opposite direction, or leaving room for such traffic to pass, and so came into collision with plaintiff, who was riding his machine on the correct side of the road. Defendant thereby caused severe personal, injuries 'to plaintiff, namely, a fractured leg, a broken nose, teeth broken and cracked and caused damage to the motos cycle. As a result of the collision, plaintiff was confined to hospital for six weeks and was still receiving medical attention. He was unable to work and had been informed that the fraitured leg could not be straightened; wherefore, he claimed to recover £IOO medical and hospital expenses, £IOO loss of wages, £6O damage to the motor cycle and £soo' general damages.

The statement of defence denied the negligence alleged and said that the alleged injuries (if any) were not caused by any act or default of defendant. Defendant alleged that the damage stated had been occasioned by reason of the negligence of plaintiff in driving his motor cycle in a reckless manner and without taking any care or keeping a proper look out for approaching traffic. THE EVIDENCE. In evidence, Dr. G. A. Forrest stated that he had attended plaintiff on his admission to hospital af-> ter the accident. He had been suffering from concussion and a compound fracture of the leg and had been discharged with his leg in •plaster on July 15. Later, he had re-fractured his leg, and it had had to be re-set.

To Mr. Innes: He did not think that there would be any permanent disability in regard to the leg, although it might take a year for plaintiff to recover the full use of it.

Plaintiff deposed that he had attended the football tourney in Palmerston North and had left for home at 3.30 o’clock carrying a ,young man named Perreau on the carrier. Approaching the Awapuni bridge at a speed of s about 30 to 35 miles per hour, witness noticed a car coming on the correct side and he swung on to the gravel on the .edge of the bitumen to pass it. From then on he remembered nothing further. Since the accident he had done only a few days’ work, his leg giving him too much trouble. The motor cycle, which was now beyond repair, had cost £lO5 three months previously. To Mr. Innes: He did not think that there was any danger in pillion riding. Before the accident he had not intended having his teeth extracted.

Gordon Arthur Perreau, of Foxton, baker, who had been plaintiff’s companion, stated that they had been travelling at about 30 miles per hour. When they were passing a car at Awapuni another one came out from behind it and struck the motor cycle. Witness remembered nothing further, being rendered unconscious, as well as receiv-" ing a fractured knee. Andrew Young, taxi proprietor, deposed that an examination of the locality after the acrident showed that the collision had happened on plaintiff’s correct side of the road. It was apparent that the motor cycle had hit the car in the centre of the radiator and had then been carried 36 yards before the car came to a standstill. During the process of coming to a standstill defendant changel on to his correct side of the road.

Thomas Powell, of Palmerston N., motor lorry driver, who had been following defendant’s car, gave corroborative evidence. He had spoken to defendant after the accident and had told him that he had been on his wrong side, defendant admitting this and saying that he would pay for it.

Louis Mair Justice, garage propritor, who had been proceeding from Palmerston N. to Foxton, said that the accident had happened on the edge of the bitumen on .defendant’s wrong side. Defendant, after the collision, pulled over to bis correct side, taking about 30 yards in which to stop. Norman Alfred Vile, motor salesman, who had been accompanying the previous witness, gave similar evidence. .

James Dawber, garage proprietor, gave evidence that the motor cycle was now not worth repairing. There was, in his opinion, no danger from pillion riding. CASE FOR. DEFENCE. This concluded plaintiff’s case, whereupon defendant, in evidence, stated that the car in front of him had been in that position for three or four miles. On crossing the Awapuni bridge he derided to pass the front car —they had both been travelling at about 15 miles per hour up to this time. He sounded his horn and, as soon as the front car pulled further over to the-left, he moved up to pass it, the collision then occurring. There had been plenty of room left for the cycle in which to ipass.

His Honour: There wasn’t ample room on the bitumen? Witness: No.

Proceeding, witness said that he had applied his brakes as soon a,s he had seen that a collision was imminent. He had pulled up in 35 feet. If the motor cyclist had been travelling at a reasonable pace and had kept on the correct side as much as possible, the accident would not have happened. To Mr Ongley: He had not seen the motor cycle until a distance of three chains separated them. He admitted that he had had a clear view of the road for half a mile and could not account for not having seen the motor cyclists sooner.

Airs Vera Russell, wife of defendant, who had been with him in the front seat, gave similar evidence.

After further evidence had been heard, both counsel delivered lengthy addresses to the jury. His Honour in summing up said two questions had to be anwered. The Art was: Was the defendant negligent, and if so, was this the cause of the accident? The second was: Was plaintiff’s conduct a contributory cause of the collision? The jury retired at 4.30 p.m. and returned at 5.45. To the first question they answered “Yes,” and to the second “No.” They l awarded £166 special damages and £52 general damages.