MOTOR COLLISION.

Taranaki Daily News, 4 March 1922, Page 7

MOTOR COLLISION.

A MUCH DISPUTED CASE APPEAL TO SUPREME COURT. A case which was described as “rather a much litigated matter,” came before Mr. Justice Chapman in the Supreme Court, New Plymouth, yesterday. It was an appeal against the decision of Mr. T. A. B. Bailey, S.M., in a collision case heard at Eltham on July 27, 1921, and it was the second occasion on which the Supreme Court was asked to review the Magistrate’s decision in this case. The appellant was T. H. Fever, of Eltham, and the respondent was Ben. Booker, of -Wallath Road, Westown, New Plymouth. In addition to being the subject of appeal on two occasions the case was also before the Supreme Court previously on an application that the hearing be removed from the Magistrate’s Court. The amount of the claim involved is £157 7s 9d.

The circumstances concerned a collision which occurred between the parties’ cars on Burke’s Hili', near Eltham. The date of the accident was April 23, 1920. Subsequently Fever took Court proceedings to recover damages from Booker, and the Magistrate found in favor of Booker. An appeal was made against this decision, and came before His Honor Mr. Justice Hosking in the Supreme Court, at New Plymouth on February 8, 1921, when the case was referred back to the Magistrate for re-hearing. He again found for Booker. In stating the facts for appellant, Mr. O’Dea quoted Mr. Justice Hosking’s decision on the first appeal. It was stated that the Magistrate’s notes were brief, and did j not include notes of evidence in regard to ■ matters in which the plaintiff relied on his case. Briefly, the outline of the facts of the case were that plaintiff alleged Booker was on- his wrong side, and Fever thought he intended to turn into a nearby gateway. However, he saw that Booker’s car was coming straight at him. As he could not turn further to the left on account of a bank, he swung the car sharply to the right and the collision occurred. The Magistrate stated that he had viewed the scene - of the collision, and believed that there would have been no accident if Fever had kept straight on, as he would have had room to pass Booker, who had turned inwards.

. The decision of Mr. Justice Hosking remarked that it was admitted that Booker by keeping on his wrong side had placed Fever in such a perilous predicament as to necessitate his taking some course for selfprotection. Further, in substituting his own observation for that of proper evidence, it was held that the Magistrate had gone beyond a proper view, as it was understood.

Counsel thought it was unfortunate that the case had been ordered back for a new trial. He remarked that he had made application on behalf of appellant to have the action removed to the Supreme Court, but this was refused by Mr. Justice Reed. The new hearing in the Magistrate’s Court took place on July 27, 1921. The Magistrate reserved his decision, and eventually gave it -again in favor of Booker. As, showing the nature of the collision, Mr. O’Dea mentioned that the cost of repairs to Fever’s car was £157 -15 s. He quoted at length the notes of the evidence taken at both hearings, and urged that the finding in favor of defendant was not consistent with the facts.

Mr. Quilliam pointed out that the onus of proof of negligence was of course on the plaintiff. In regard to the evidence, the case might be one which could give rise to several conclusions, but counsel pointed out that it was a well recognised principle that the Magistrate was the proper person to draw the inference from the facts, as he had the best opportunity of judging. One conclusion of fact which the Magistrate came to in this instance was that no position of peril was created by Booker necessitating Fever taking the action he did. Counsel submitted that this and other conclusions come to by the Magistrate were justified by the evidence, and urged that even if His Honor had some doubt about the matter he would be reluctant to interfere with the finding. Argument was heard at length, after which His Honor reserved’ decision.