CLAIM FOR DAMAGES

Waikato Times, Volume 124, Issue 20728, 11 February 1939, Page 8

CLAIM FOR DAMAGES

FRANKTON ACCIDENT YOUNG MAN’S INJURIES JUDGE REFUSES NON SUIT A non-suit was refused by Mr Justice Smith in the Supreme Court. Hamilton, yesterday when a motion on behalf of defendants was enter:u by Mr S. D. E. Weir (Auckland) in the case in which Thomas Alexander Clark Taylor, by his guardian. Thomas Taylor, proceeded against. Auto Replacements, Limited, Frankton. claiming £1029 19s 6d damages. The claim arose out of an accident to H.c youth while he was employed by defendants. A former employee of the defendantcompany. Jack Edward Hoffman, said he worked for the firm for nine months prior to Christmas, 1937. There was no limitation on members of the staff with regard to using the wrecker, and permission was not needed. The wrecker was often used to move cars which were being dismantled. Corroborative evidence with regard to the use of the wrecker was given by Thomas Price. Graham Seymour Smith, and Thomas Cotter, former employees of Auto Replacements, Ltd. Medical evidence of plaintiff’s condition in November. 1938. was given by Dr. W. R. Fea. Without the metal support there was a marked instability of plaintiff’s kneejoint. There was a considerable degree of wasting of the muscles in front of the thigh. An unstable knee joint was a serious disability. Plaintiff had been wearing the metal support for over six months, and witness thought he would always have to do so. At present he was 100 per cent, disabled far manual work. As he grew older the possibility of osteo arthritis setting in could not be dismissed. Dr. E. L. Wilson, assistant surgeon at the Waikato Hospital, gave evidence of the treatment plaintiff had had in Ihe hospital, and stated that in spite of the use of several plaster casts during six months ihe knee could not be prevented from swelling. It. was necessary to fit. the metal support, and witness did not think the knee would ever return to normal. Motion for Nonsuit At the close of plaintiff's case Mr Weir moved for a nonsuit, one of the grounds being that there was not sufficient evidence to show that either Waugh or Taylor was acting within the scope of his employment with the defendant company so as to make the company liable. In the first place, there was no evidence of any actual instructions for the employees to move the car. much less to use the wrecker for the purpose. It had not been shown that there was any necessity to move it for dismantling purposes. His Honour held that the youths were instructed to dismantle the vehicle, and that would justify them moving it if necessary. Continuing, Mr Weir submitted that there was no evidence of negligence on the part, of Waugh or the directors so as to make the company liable. When the driver of the wrecker received an instruction to move forward lie should not be required to wait for a second instruction after the engine stalled. Neither should he be required to look around. His Honour differed from this view and refused to grant a nonsuit. The. case was adjourned until Monday morning and the jury visited the scene of the accident last evening.