MOTOR COLLISION CASE.

Taranaki Daily News, 27 May 1921, Page 6

MOTOR COLLISION CASE.

DAMAGES SUED FOP,. 1 QUESTION OF LAW.' An application to remove a trial from the Magistrate’s Court to the Supreme Court was heard by Mr. Justice Reed at New Plymouth yesterday. The case was that of T. H. Fearer (Mr. O’Dea) v. Ben Booker (Mr. QuiHiapi), and concerned a motor accident which happened on Burke’s Hill, near Eltham, some considerable time ago. As the result of a collision between the parties’ cars, Feaver claimed the sum of £157 damages, and the claim was heard in the Magistrate’s Court at Eltham, the decision going in favor of Booker. An appeal from the magisterial decision was made, and was considered by His Honor Mr. Justice Hosking at the last sessions of the Supreme Court at New Plymouth, the result being that the case was ordered to be re-heard by the magistrate. In giving this decision Mr, Justice Hosking said:— “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 tihat he considered that because the appellant’s car would have been able to pass the respondent’s car if tile appt • lant 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 be 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 the defendant’s negligence, justifying the adoption of a desperate measure, the circumstance that it may subsequently appear that np damage would have happened if the plaintiff had remained inactive, or had not adopted that measure will not relieve the defendant from responsibility. ... I think there should be a new trial by the magistrate.

Mr. O’Dea outlined the facts on behalf of Feaver, and the application was opposed for defendant by Mr. Quilliam, whose contention was that the procedure for the other side was to appeal against the decision of Mr. Justice Hosking.

His Honor announced that he would give a written decision on the question of removal.