DEFENCE FAILS

Waikato Times, Volume 125, Issue 20921, 28 September 1939, Page 10

DEFENCE FAILS

SEQUEL TO ACCIDENT CYCLIST AWARDED DAMAGES TE AWAMUTU COURT CASE c (Spocial to Times) - TE- AWAMUTU. Wednesday. The dcrence or inevitable accident was L raised by Hura -Martin, for whom Mr H = T. Gillies appeared, at a sitting- of the .A Mag-istrate’s Court at Te Awamutu to- 1 day. The plaintifT, Ernest Charles Ran- A dall, or Pirong-ia, rarm hand, was repre- v sented by Mr S. S. Preston. The dc- .a rence Tailed, however, the magistrate, Mr i W. 11. Freeman, S.M., holding that the .> defence had not proved that the alleged <. collapse or portion or the steering gear j occurred berorc the collision and that, : in any case, the defendant did not exer- i; cise proper care in following another car. The plaintirr claimed special damages i amounting to £23 19s and general dam- \ ages £3O. and judgment was given lor : £2O 5s special and £SO general damages : with costs. \ PlaintifT said that on February 4 0 last c he was cycling along the Kawhia Road about a mile from Pirongia. When ho was just over the then temporary bridge at Puketotara two cars approached him j i over a rise. As lie was passing the first j c car, the second came across the road as if j ; to take the deviation. This car ran j ; into him and he had no recollection or , what followed until he found himself at j • the Waikato Hospital. lie could not say anything definite as to the speed or the , To Mr Gillies, plaintifT said that lie was over the road in January but could not remember ir there were any big pot-holes then or -on the day or the accident. He ( told Mr Johnson, an insurance assessor that he saw one car behind another and j that was all he could recollect Pot-holes in Road Alec. T. Brandon, or llauturu, farmer, said that on the day or the accident he was travelling into Te Awamutu along the Kawhia Road. At the Otorohanga turn-oil’ he passed a stationary car a mile back from the scene or the collision. The driver was talking to another man. He proceeded along the road at about 3i» miles per hour as he was in a hurry to catch a bus. Soon afterwards he heard a hanging noise as he was pulling up to the entrance to a new bridge. Ho looked back and saw a car run across the road and run up a small bank. lie had just passed a cyclist who was on the correct side of the road. lie went back and saw Randall on the ro-ad injured. The bank up which the car rail was about two rcet high on a slope. The car’s right front wheel was on top or the bank and the bicycle underneath Lhc car. The road was not pot-holed and he had no trouble in traversing it at the pace he did. "Inevitable Accident' For the dercnce, Mr Gillies said that tho accident was due to inevitable, accident which had been outlined to the plaintlfT beTore the proceedings commenced Tho defence was based on the fact that the hub or the steering gear fractured through some reason which could not have been discovered by Inspection. In such case, the defendant could not be held responsible Tor the damage much as he might regret it. Defendant said that on the way from Kawhia Road he dropped a passenger at the Otorohanga turn-ofT and was just about to start off again when another car passed. He followed this car at once His car was an old model Essex sedan. The road w'as well known to him as he had been over it daily for three months before the accident. He was about threequarters of a chain behind the other car which slowed up. His car struck a pothole and was shot out to the right. Ho had seen the cyclist who was on his coi • rect side of the road. A collision followed and the cycle hit the left side of the car’s bonnet and was caught under the car. The car went up an 18-lnch water table bank of a sloping nature. There were plenty or pot-holes in the roadway. At the time of the collision his speed wav 20 miles an hour as recorded by the speedometer. Steering Gear Fault / Cross-examined, Martin denied that- i)° was late Tor work and was hurrying: He had had the car for twm months and it cost him £SO. Tie saw the front car slowing up. He did not use the brake The position was not that he had travelled too rast and as an alternative to crashing into the car ahead or him, endeavoured to pass it. Had the steering gear not gone wrong, he would have been all right. To the 'magistrate, Martin said that a? soon as he hit the pot-hole the steering went wrong. The steering had been somewhat stiff before the day of the accident but he did not think it necessary to have it attended to. Selwyn Lloyd Beedeell, service manager, said that he had examined the hub or the steering gear on Martin’s car when it was brought into a garage. The rracture was not an old one and he was satisfied that no examination beTore the accident would have led to the conclusion that the spindle was dangerous. To the magistrate, the witness said that the scouring round on the inside or one part or the hub was probably due to efforts to spin the wheel on the shaft ajter the break had taken place. To Mr Preston, the witness said that the chances of the break being caused by the hitting of the bank at a fast pace were at least equal to having been caused by striking a pot-hole. It may have been one or the other. J s Johnson, Insurance assessor, said that he had been over the particular piece or roadway on January 17. It was so bad then that he had to travel in second gear. There were numerous pot-holes. He had been over the road again on February 27 but it had been repaired. He could not say what state the road was In on the day or the accident. Defence Not Accepted

Mr Gillies submitted that the sole cause of the accident was the failure of the steering gear caused by the fracture ol tin* hub when the car struck a pot-hole in the road. This was inevitable accident. and as the derect could not have boon discovered by reasonable inspection, there was no liability on the defendant. Even ir the defendant’s speed constituted negligence, such negligence was not the cause of the collision. The magistrate ruled that ir it had been proved that the hub or the steering gear had fractured before the collision, then the defendant would not be liable, but that bad not been proved and it was just as likely that the fracture was caused by hitting the bank after the collision. The onus was on the defendant. In any case, the defendant had travelled too fast when following a car which was slowing down. He did not accept the defendant s evidence as to his speed. Tor the reason that i the driver or the Tront car had sworn that his speed was 35 miles and yet Martin had practically caught up in a short distance. Judgment would be Tor the plaintiff, whose claim for general damages was reasonable.