NO NEW TRIAL

Waikato Times, Volume 122, Issue 20501, 18 May 1938, Page 8

NO NEW TRIAL

MOTION DISMISSED ROTORUA COLLISION CASE UN USUAL CIRC UM ST AN CES The- unusual circumstances of counsel for plaintiff, after succeeding in an action for damages, moving for a re-trial on the ground that the verdict against one defendant returned by the jury was against the weight of evidence arose in the Supreme Court, Hamilton, 10-clay before the Chief Justice, Sir Michael Myers, when Mr M. 11. Hampson, of Rotorua, moved for a new U'ial in the case in which Bessie Ashton, married woman, of Rotorua, was last week awarded £638 12s special and general damages against Kathleen Gordon, nurse, of Mr B. Haggitt, as a sequel to a Rotorua street collision. The motion was dismissed. There were two defendants to last week's action, but the first defendant, ; Edward Austin Whittaker, commercial traveller, of Auckland Messrs W. J. King and A- R. Potter) was exonerated of all blame by the jury. At the hearing, Mr Hampson intimated that Miss Gordon, the driver of the car in which plaintiff had been a passenger, was only formally joined as a defendant. The motion to-day was opposed by Mr W. J. King, for defendant Whittaker, and Mr N. S. Johnson represented Mr Haggitt, counsel for Miss Gordon. In support of his motion, Mr Hampson submitted that the question at issue was whether the exoneration of Whittaker was a reasonable finding. Counsel contended that on the evi- ; dence there was no esfcape possible 1 for Whittaker from negligence and that such negligence was causa causans. He had been travelling at 15 m.p.h. and could have stopped instantaneously. Miss Gordon had been approaching at a higher speed and, therefore, counsel submitted, Whittaker had had the last opportunity of avoiding the accident. In reply, Mr King said it appeared clear that Whittaker was on the intersection first. It might be suggested that Miss Gordon, by her final swerve, • had put Whittaker in a position of I danger. 1 Concluding, Mr Hampson sub--1 mitted that the paramount obligation on Whittaker under the off-side rule was to avoid danger, which he had apprehended, on his right. “No Doubt on Matter” “I am unable to entertain any doubt on this matter.’’ said His Honour. A jury’s verdict might be set aside and a new trial ordered only if the verdict were one such as 12 reasonable men could not reasonably and properly find. | Mr Hampson's contention was that the exoneration of Whittaker was unreasonable and wrong and that no , reasonable jury could properly have . found such a verdict, but with that impression His Honour could not | agree“l do not say,” he added, “that some other 12 men might not have arrived at a different conclusion, but the mere possibility that 12 other men might have found differently does not connote that the verdict of the first 12 was unreasonable and im- ; proper.” From the evidence. Miss Gordon, I upon her assumption that she was first on the intersection had pro-rr.*ti-d at 20-25 m.p.h.. practically insisting on what she considered to be her right of way.