CLAIM FOR DAMAGES.

Taranaki Daily News, 22 February 1921, Page 5

CLAIM FOR DAMAGES.

AN ELTHAM CASE. NEW TRIAL ORDERED. Reserved judgment has been delivered by Mr. Justice Hosking in the appeal of T. H. Fever v. Ben Bopker, which was heard at the -last session of the Supreme Court, New Plymouth. His Honor orders that a new trial of tbe case be held in the lower court. The facts were that a collision between cars driven by the parties occurred at night on the ElthamKaponga road on a hill known as Burke’s Hill. The appellant (Fever) sued Booker for damages ( £157 9s 9d) on the ground of negligent driving. The hearing took place at Eltham, and thejnagistrate fMr. Bailey) found in favor of Booker His Honor gives reasons for ordering a new trial, and after proceeding to deal with the facts, which included the action of the appellant in going to his wrong side, continues: “With regard to the law, as I read the magistrate’s memorandum, it appears to me that he has misdirected himself. I infer from his memorandum that he considered that because the appellant’s car would have been able to pass the respondent’s car if the appellant had kept straight on the respondent was not liable. Counsel informs me that at the close of the case the magistrate did not require authorities to bo cited to him. He had, as he has stated, made up his mind on the occasion of the inspection (of the scene of the collision). Hence, doubtless, sight was lost of the fact that the authorities are clear that, in the case of perilous predicament, created by a defendant’s negligence Justifying the adoption of a desperate measure, the circumstance that it may subsequently appear that no damage would have happened if the plaintiff had remained inactive or had not adopted that measure will not relieve the defendant from responsibility. . . In view of the irregularity with regard to the evidence, the inadequacy of the notes, and the misdirection with regard to the law, I think there should be a new trial by the magistrate at a time and place to be fixed by him, and I order accordingly.” The costs of the appeal were fixed at £lO 10s, and disbursements to be added to the costs of the successful party on the re-trial. At the hearing, Mr. O’Dea (Hawera) appeared for the appellant, and Mr x R. H. Quilliam for the respondent.