CAR AND ’BUS.

Taranaki Daily News, 25 March 1922, Page 8

CAR AND ’BUS.

SEQUEL TO A COLLISION, . V $ AN OPUNAKE ACCIDENT. COUNTY COUNCIL’S LIABILITY. / A county council’s liability for damages arising from an accident in which its engineer was concerned was one of the points raised in a civil action heard before Mr. A. M. Mowlem, S.M., in the New Plymouth Court yesterday. A New Plymouth firm of garage proprietors, Snelling and Andrews, claimed damages amounting to £95 8s fid, from the Egmont County ' Council and Charles R. Pease, alleging that i on September 5 Pease, who was then county I engineer, drove a car in such a negligent manner as to come into contact with plaintiff’s mail ’bus. The claim was made up of two items, namely, £35 8s fid, cost of repairs, and loss of earnings for 27 running days £6O. Mr. T. P. Anderson appeared for plaintiffs, Mr. A. A. Bennett for the defendant county and Mr. H. B. Gibson for Pease. At the time of the accident, Mr. Anderson said, Snelling and Andrews were contractors for the New Plymouth-Opunake mail. On Monday, September 5, the ’bus, which was a fairly large vehicle, was proceeding from New Plymouth to Opunake. About 6.30 in the evening the ’bus was about a quarter of a mile from Opunake when another car coming from the opposite direction suddenly loomed up, and although the ’bus was well on its proper side of the road the evidence would be that the car without warning swerved right towarffir the ’bus and there was a collision. The result was that the ’bus was badly damaged, and the accident, it was contended, was due to the negligence of Pease, who was the driver of the car. In the ’bus there were two passengers, a man named Fever and a Mrs. Holmes, in addition to the driver Richard Lawson. The site of the accident was near Longfellow Road. ( POSITION OF THE COUNTY. One of the main questions, Mr. Anderson said, was whether the county was Jiab’e as regards the claim against them. It was admitted that Pease was in the employ of tbe council at the time of the accident and that it was their car which he was driving. Counsel contended that having secured this admission the onus was then upon defendant to show that Pease was not working in the course of his employ-

ment. Mr. Bennett, for the council, said his contention was the other way, namely, that the onus was on the plaintiffs, and he intended to move for a non-suit at the close of the plaintiff’s case. His Worship said the question could oe reserved. The first witness for plaintiffs was the driver of the ’bus, Richard Lawson,„ who described the accident in similar terms to counsel’s statement. Regarding Pease, witness gaid that when .he got out of the car he hung to the windscreen as if he expected to fall over, and generally looked as if he had too much to drink. He was heavy in his speech. It did not look as if he had been dazed by the accident. Afterwards Pease admitted that he was in the wrong. The evidence of Mrs. M. Holmes, a passenger in the ’bus, was to the effect that she saw the motor car approaching. Just before it reached the 'bus it seemed to wobble and then came straight at the ’bus, which was well on its proper side of the road. She did not think Lawson, the 'bus driver, could have done -anything to avoid the accident, and she could not account for Pease’s car swerving. When she saw the car wobble the first thought that came to her mind was that someone must have been drunk. Both vehicles had lights. As the car came on Lawson was pulling the 'bus further off the road. John Fever, chemist, OpunAke, a passenger on the ’bus, said thak when the car was within a short distance it turned, as if the driver intended to go up the byroad. His idea of the accident was that Pease had made an error of judf»ent by thinking that the 'bus was further awny than it really was and endeavored to turn into the side road. He did not see anything about Pease which would indicate that he, had too much liquor, as he helped in the work of salvage in a capable manner. A WAITRESS’ EVIDENCE. . Annie Langton, waitress at the Club Hotel, Opunake, said that at a quarter to six on the night of the accident she saw Pease outside the bar. He appeared to be drunk. To Mr. Gibson: She could generally tell when a man was drunk. She was not a particular friend of Lawson’s ;i she knew him fairly well, but had not gone out for motor rides with him. Lawson had not asked her about the case. She mentioned it to Andrews a couple of days after the accident. Eric Andrews, a partner of the plaintiff firm, gave evidence regarding his inspection of the scene of the accident on the following morning. He also stated that as far as he knew Lawson had never had any previous accidents and witness had not received any complaints about him. After the accident they had to use a seven-seater car for the Opunake trip, and this was running for 27 days; also, on about four i afternoons a week they had to put on au '•extra car, as there were too many passengers for the one car. Tbe ’bus cost the same to run as a Hudson car. Details of the damage to the ’bus were given by George Dewney, motor mechanic, hi the employ of the plaintiff firm, and W. R. Stephens, motor engineer, foreman of Newton King, Ltd.’s garage. The charges set out were considered reasonable, the latter witness regarding them as very cheap. At this stage Mr. Anderson intimated that he would close his case, subject, to the right, to call further evidence if necessary regarding the question of whether Pease was at the time of the accident, acting in hi* capacity as an employee of the council.

His Worship said that in- the circumstances so far related it appealed that the defendant was actually within the scope of his employment. The defendant council, therefore, had a prim a facie case to answer. On behalf of the county council Mr. Bennett, moved for a non-suit, on the principle that the person, if any, who was liable for the accident was the person who was in charge of the vehicle and if a plaintiff sought to impose a liability on a third party the onus was on 1 the plaintiff to bring the proof, jt was admitted for the purpose of the action against the county council that Pease was county engineer at the time, but it wu» not admitted that at 6.30 p.m., when he was going home, that he was in the course of his employment. His Worship: He was on his wily to a county garage, on a road within the jurisdiction of the county, > Mr. Bennett, said that 'Pease was on the way to his evening meal. The question was whether a man returning home at that, hour of the night, could be deemed to be returning the car to the shed, or rvturaiag home for hie owa purpose, Mr-

Bennett asked His Worship to notice the evidence given that Pease was intoxicated, and in this connection referred to cases under the Workers’ Compensation Act, dealing with ihe relationship of master and servant in such circumstances. His Worship asked if counsel was going to urge that there was an analogy between cases under that Act and present action. ... Mr. Bennett said this was his intention, and he quoted the remarks of Mr. justice Cooper to the effect that cases decided under the Workers’ Compensation Act, where a certain act had been committed by a workman in the course of his employment, were of assistance. There were other cases in which the same principle was expressed. Mr. Bennett quoted authorities to show that it was not. sufficient to show the relationship of master and servant, and it must be shown that the man’s actions at the time fell within the scope of his employment, or at least were incidental to his duties. This act must be shown to have been committed by defendant in the capacity of servant. Another case was cited in which it was contended that if the man had gone home when his work finished at five he would not have been at the scene of the collision. His Worship reserved the non-suit point, stating that he wanted to hear the evidence for the defendant. In stating the case for the defendant Pease, Mr. Gibson expressed surprise at the charges of drunkenness which had been brought against his client, and stated that as the case was being heard at New Plymouth, by agreement,, instead of at Opunake, he was at a disadvantage in answering these charges. His Worship: Even eliminating that you have still a case to answer.

Proceeding, Mr. Gibson said that on the night of the accident Pease was driving the county car to his home on the Longfellow Road. He had been in the hotel for the purpose of business, having gone in to see a bridge, contractor, and Pease did not mind admitting that he had a drink with the contractor. However, he was perfectly sober. After he left, the hotel Pease proceeded t on his way home. When approaching the Longfellow Road be noticed headlights of another car; these lights disappeared at a dip in the road 29 to 24 chains from the side road corner. He was then travelling at about 12 to 15 miles, it being necessary for him to keep down to this speed in order to negotiate the corner which he was approaching. He judged that if the other car was travelling at a proper speed (the by-law limiting the rate to 15 miles) he would have time to get round the corner, and that even if he was only partially round, the other driver would take the obvious course of passing behind him.

His Worship: He was going into a side road; here was a ’bus on the yiain road. | Is it urged that it was an obvious course i for the ’bus to give way? Mr. Gibson said Pease was entitled to i presume that the other driver would take . care in traversing the crossing of the roads. j However, Pease saw that, the ’bus was trying to pass in front of him; he swerved, but it was too late to avoid an-accident. Counsel said the evidence showed that the accident occurred on the real corner of the road, and after the accident occurred the ’bus travelled 40 feet. In connection with counsel’s remarks as to care, His Worship quoted an opinion of Mr. Justice Hosking as follows: “Though a plaintiff may have been guilty of negligence, and although that negligence may haw, in fact, contributed to the accident, yet if defendant, by the exercise of ordin- | ary care, could have avoided the accident, plaintiff’s negligence would not excuse him.” His Worship asked how defendant, could reconcile his argument with this decision. Defendant’s evidence was on the lines of counsel’s address. To Mr. Anderson: It was'part of his duty to return the car to the shed, and he i had not finished his day’s work till the car was put away. Regarding his condition on the night of the accident, he did I not believe that the waitress had seen I him in the hotel, because he was not in the lobby at the time mentioned; he was in the bar. Mr. Anderson: Is it not a fact that you are in the habit of taking <a “spot” or two ? . ’ Witness,- Must I answer that question, • Your Worship? ! Mr. Gibson urged that the only ques- ; tion which Pease could be asked was wheI ther he was sober on the night, of the accident. His Worship said he had told Mr. Gibson to eliminate the question of sobriety from his address, but in spite of this counsel had re-opened the matter, and' in view of this he thought counsel for the other I side was entitled to cross-examine on the point, Mr. Anderson Qo witness) : Is it not a fact that through the same reason you left the County Council?—No. Was it not a fact that for a long time you had been repeatedly warned about the same thing?—There has been persecution for a long time. • At all events you have left the council? —I resigned, I To Mr. Bennett: He did not use the j car for other than county business. I In reply to the magistrate Mr. Bennett I did not admit that taking the car to the i shed was county business. He said he ! had a number of cases to quote on the j point of whether the'defendant’s act in going home from the hotel that night 1 could be deemed to be in the course of his employment. ' No further\vidence was called on behalf j of Pease, and Mr. Bennett intimated that he was not calling evidence on behalf of i the .council, but would address the court. I At this stage the court, adjourned till ten o’clock this morning, when counsel’s addresses will be heard.