CLAIM FOR DAMAGES UNSUCCESSFUL

Wanganui Chronicle, Volume 83, Issue 40, 17 February 1939, Page 3

CLAIM FOR DAMAGES UNSUCCESSFUL

ACCIDENT NEAR WANGANUI LORRY DRIVER WAS NOT NEGLIGENT VERDICT OF A JURY A verdict for the defendant was reamed by a jury in the Supreme Jourt at Wanganui yesterday in a claim for damages for death arising from a motor accident, near Pickwick Plantation, on the Main North Road, three miles north of Wanganui, on July 15 last. The plaintiffs were Sarah Jane Aston, widow, and Doris Aston, her daughter. They claimed £1250 general damages and £24 7s 6d special damages from the Wanganui-Rangitikei Electric-power Board, alleging that the driver of a lorry belonging to the board had been negligent, as a result of which Alonzo W. Aston, husband of the first-named plaintiff, lost his life. A sum of £124 7s 6d had been paid into Court by the defendant with denial of liability. When the jury gave its verdict this sum, which the defendant was prepared to pay the plaintiffs, was ordered to be returned to defendant, in whose favour costs were granted. The jury’s verdict held that the driver of the lorry had done all that a reasonable man could do in the circumstances. His Honour, Mr. Justice Reed, presided. Mr. N. R. Bain appeared for plaintiffs and Mr. A. D. Brodie for the defence. The jury empanelled was: Messrs, M. A. Winter (foreman), L. R. Goldsack, A. Foster, C. Overend, C. Belfit, A. J. Chapman. J. P. Coyle, C. F. Clark, W. G. Coombs, C. Harrison, J. Armstrong and K. R. Craig. Mr. Bain stated that Alonzo W, Aston, on the night of his death, was proceeding toward Wanganui wheeling a barrow of hay on the side of the road and was five feet off the bitumen. He was killed instantly, both legs and one arm being Constable’s Evidence i Constable J. B. Wakling stated i that when he reached the scene of the accident the right-hand front wheel of the truck was just off the edge of the bitumen. Six feet back from the truck there were skid marks. He traced the tracks of the truck 40ft. 5 inches back, and also where it came off the bitumen and reached the point where Aston senior was wheeling the barrow at the time it was struck by the truck and Aston was killed. The truck did not pass over the body or the barrow. There was a gravel surface on the side of the road where the accident occurred. The driver of the truck told the constable that he had been blinded by the lights of an approaching car and did not see Aston or the wheelbarrow. To Mr. Brodie witness stated that if the lights of an oncoming car dazzled him he would pull up but would not drive to the side of the road. Signs witness saw on the road bear out the statement the driver of the truck made to witness that he was dazzled. The police made full inquiries into the accident and took no action. Constable F. W. Edwards stated that he accompanied Constable Wakling to the scene of the accident. The night was dark but fine. The marks of the truck showed that it had made a gradual pull over on to the gravel until it reached the point of impact. The truck driver told witness that he had the brakes lightly annlied and when he was dazzled by the lights he anplied them heavily. Tf dazzled witness would consider it the best course to give the other car as much of the road as possible and stop. Questioned by Mr. Brodie, witness said the width of the bitumen was 12 feet and if the other car was straddling the bitumen and the truck driver was blinded the reasonable thing to do would be to pull off to the side. Marks showed that the

truck driver pulled up in t lengths in metal. William J. Peapell, farmer, W; ley, said on the night of July 1 was driving to Wanganui. He Aston on the left hand side of road and had no difficulty in pick: him up with the lights. Shortly afte. passing him he passed an oncoming car the lights of which were not strong enough to dazzle him. To Mr. Brodie: When he approached Aston there were no lights to dazzle him. Frank Bristol, butcher, who lived opposite Aston, said he was an active man for his years. Doris Aston said her father had always been an active man and enjoyed good health. He looked after a herd of milking cows the proceeds of these going toward helping the household. He also looked after the garden and did other work on the property. The cattle had to be sold after her father’s death. Cross-examined by Mr. Brodie, witness said that her father for years was in the habit of getting fodder for the cows up and down the main road. Mr. Brodie: Against your wishes?— No, I wouldn’t say that. You feared for him?—No, I never feared for him, because he was quite capable. Did you not fear that what did happen would ultimately occur?—No. Does it not come down to this, that the loss, because of your father’s death, to you and your mother is the value of his work on the place?—Yes, and what he supplied to the house. Supplied from what?—Butter, eggs, etc. Mr. Brodie: From the produce of your cows?—Y’es. So, in all fairness, it comes down • to this, that the loss to you and your mother was the value he was on the place?—Yes. Medical Evidence Dr. J. W. Anderson, giving medical . evidence, said that Aston’s body had , been mangled and death was due to . a fracture of the base of the skull. >i Frederick Arthur D. Barclay, man- ■ lager of the Australian Mutual Provl- : I dent Society, Wanganui, produced ‘(tables showing that a healthy male J at 73 years of age had an expectancy , | of life of 7.72 years. Witness pro- ‘ duced tables to estimate the monetary loss suffered by a man in Aston’s I circumstances on a basis of an cx- ! I pectancy of life of eight years. I Mr. Brodie, for the defence, said ' I that the case fell into two branches. ? The first, whether the death of this man was due to the negligence of the lorry driver. If he had done what a reasonable driver should do there was an end of the matter. Counsel directed attention to the evidence given by the constables, particularly that of Constable F. W. Edwards, who said that if a motorist was dazzled by oncoming lights his proper course was to pull to the left and stop. There was not the slightest evidence of undue speed. The evidence was that the lorry driver had been dazzled by two oncoming vehicles. The other branch of the case was the question of damages. Under the law as it used to stand, when a person died, even by the wrong of another, there was no redress in damages. Under the Statute now there is a limited right of | certain relatives of the deceased to damages to recoup themselves for any pecuniary loss only they may have suffered. Matthew Tremaine, lorry driver Wanganui, said he knew Berry, the driver of the Power Board vehicle. Witness was standing at a store near the intersection of the Kai Iwi Beach Road and the Main North Road when Berry passed just before the accident. The lorry was travelling at a moderate speed. Mr. Brodie: And that is within half a mile of the accident?—lt would be. To Mr. Bain: Berry was driving a small truck. Mr. Bain: What would you term a moderate speed for a light truck of that type at that place?—3o to 35. What would you call a fast speed? —6O or 70 miles. He would not be doing more than 35. Motor-truck Driver’s Evidence Charles Thomas Berry, electrical fitter, employed by the Wanganui-

/.itikei Electric Power Board, and r of the lorry which collided with Aston on July 15 last, said he had i working at Nukumaru and was his way home. He reached the ( vicinity of Pickwick plantation about 20 p.m. It was dark. As he came cowards the bottom of the slope two cars came towards him. They were one behind the other and some little distance apart. His lights were in good order and he was travelling in the normal position, slightly to the left of the road. He dimmed his lights. The oncoming cars did not respond and he put his lights back on the full. From Pickwick Road on the oncoming cars started to worry him and he eased up. Before that he had not been travelling more than 30 miles an hour. As the cars came closer to him they completely blinded him and he applied the brakes hard and pulled off further to the left. He had almost stopped and there was a crash at the front. Witness jumped out and found the body. Mr. Brodie: Had you seen Aston at all?—No. Why?—Because of the lights of the oncoming cars. What were you doing just before you hit Aston?—l was in the act of stopping. You actually did stop?—Yes. Witness said that as he did stop a car passed him and another about two chains behind passed also. Their lights were bright and they were big modern cars. Mr. Brodie: Where were they travelling on the road?—On the centre. Was there room for you to pass them keeping on the bitumen?—No. certainly not. Can you suggest anything else you could have done when dazzled?—No. Can you explain why you did not see Aston?—Because of the lights of the oncoming cars. Mr. Bain: Where were you in relation to the crest of the hill nearest Westmere when you first saw the cars?—l was just coming over the crest. You had sufficient view of the road to see that you couldn’t pass them on the bitumen?—Yes. If you could see that width of bitumen how is it that you did not pick up the deceased?—l will endeavour to explain that. When the cars were further away I was not completely dazzled and was not concerned with passing them. Submissions For Plaintiff ! Mr. Bain said that the deceased was 1 walking along /the road wheeling his barrow of hay, as he had a perfect right to do. If the driver of the lorry could see that he had not sufficient room on the road to pass these two cars on the bitumen then there was no reason why he should not have seen Aston. A motorist was bound to anticipate that there might be persons or animals in the road in front of him. A motorist was not justified in going on at all at night if he could not see. The general principle to act upon in fixing damages was to put the monetary position back as nearly as possible the same as it was before the accident. The jury had to consider the position of these people before Aston’s death and try and put them back into that position. His Honour’s Directions His Honour said that this was not an action in which the jury was to assess compensation for loss of life, but a claim for damages because of negligence. It had to decide whether the driver of the lorry had done some act which a reasonable man would not have done, or had omitted some act which a reasonable man would have performed. “That is the whole test of the matter,” said His Honour. “The greatest care it is possible to take is not demanded of the defendant, but he must take reasonable care. If the accident is not due to the negligence of the defendant the plaintiff cannot recover. If the matter is left in doubt she cannot recover. The real question is whether the driver was keeping a proper look out.” The jury retired at 4 o’clock and returned with its verdict at 4.45 p.m.