£2000 CLAIM.

Auckland Star, Volume LXIV, Issue 115, 18 May 1933, Page 8

£2000 CLAIM.

COLLISION SEQUEL. WHO WAS NEGLIGENT? ADDRESSES BY COUNSEL. The action begun at the Supreme Court yesterday, before Mr. Justice Smith, in which Michael Walter Iverews, bus-driver, claims £IGS special damages and £2000 general damages from Arthur Stanley Holton, carrier, was continued this morning. The claim arose out of an accident in Symonds Street, 011 February 23. of last year, when the plaintiff was knocked down by a truck driven by the defendant. Mr. W. Schramm appears for the plaintiff, and Messrs. Johnstone and Dickson for the defendant. The allegation that the accident was due to negligence 011 the part of Holton was denied by the defence, who in turn asserted that the plaintiff was negligent.

Karews, in evidence, 6tateil that he drove his taxi-car down Symonds Street on February 23 of last year, and about GO yards behind him was tlie lorry driven by Holtou. Just below City Road plaintiff pulled his car up and when he stepped out lie was knocked down by. the on coming lorry. lie considered tiiat Holton had not kept a proper look-out. Defendant's Evidence. The defendant, Arthur Stanley Holton, carrier, said ho had been constantly driving trucks for eight or nine years. He had never been concerned in any accident prior to the present one. On the day of the accidant he was driving at a moderate pace down Synionds Street, and about 20 yards in front of him was Karews, driving a taxi. Karews pulled in to the kerb and witness sounded his horn. He then saw the door of the taxi open, and just as witness was passing Karews got out of the car. Witness did not see him struck, as the front part of the lorry had passed. The lorry was about four feet away from the car. Witness felt the impact, and looking back saw Karews rolling along the road beside the car. He stopped the lorry at once, but did not look for any marks 011 the road, as he was too concerned with attending to the injured man, whom he accompanied to the hospital. To Mr. Schramm: He did not know if there was any traffic behind him, because he did not look. He considered in being four feet out from the taxi he was well clear. The road was clear of traffic at the time, so far as he knew. Mr. Schramm: Did you keep a proper look-out?— Yes. But you say yourself you were only four feet out from the taxi? —That is plenty, I consider. If you had been six feet out there would have been no accident? —It depends upon what Karews would have done. You saw him getting out of the ear? —Yes. And you never changed your course at all ? —No, I considered I was on a safe course. What is the overhang of the body of your lorry?— Two inches each side of the' hub of the wheels.

What pace were you travelling at?— Twenty miles an hour. Did you slacken down when you approached Karews' car?—Xo. I put it to you you did not notice Karewa at all getting out of the car? —I did. Evidence was also given by Charles E. Hayes, tramways motonnan, and Thomas G. Botterill, traffic inspector, who were on the scene of the accident, but did not actually see the lorry strike Karews. "Remarkable Features." In addressing the jury, Mr. Johnstone strongly criticised what he described as remarkable features of the case. Ho drew attention to the definite statements made on oath by Karews that he did not discuss the accident with Cheadlc and that he did not know Bayly by name. "You were told by Karews himself that some time prior to the accident lie and Cheadle had been considering ft proposed partnership in a business," said Mr. Johnstone, "so that they knew each other well. Then they are in hospital together, and, though Karews says that Cheadle told him he saw the accident and saw Karews 'bowled over,' it is amazing that Karews docs not discuss the accident with him. Here he has a witness, and a most important one, but he does not ask Cheadle what he saw. Why? Because, as we now know, Cheadle was miles away, and did not see the accident at all. Karews and Cheadle were friends, at least friendly enough to discuss a business proposition, but Karews didn't ask him, when Cheadle said lie saw Karews bowled over, why Cheadle didn't come over to his assistance? Instead of doing what any man would do, Cheadle walked away—at least, that was the only eon-j

elusion Karews could arrive at. But Cheadlo was not there, he did not see the accident, and yet lie could give evidence correct in many details. Who told him? Despite Karews' statement that lie did not discuss the accident with Chcadle, I say that it is reasonable to infer that Chcadle got the particulars from Karews. Who else could tell him?'

Mr. Jolinetone then referred to the man Bayly. Karen's had given evidence that he did not know Bayly by name, but Bayly bad interested himself in getting evidence for Karews. Why? Mr. Johnstone submitted that it wa.s unreasonable to believe that a man whom Karews said he did not know by name •should so far interest himself in the case if there was not a consideration of some sort.

Case for Plaintiff. Mr. Schramm said he confidently asked the jury to give a verdict for the plaintiff. He said that 011 the evidence of the defendant himself the jury could not find otherwise than that the accident was due to failure on the part of Holton to keep a proper lookout. Holton, in evidence, had stated that he saw Karews getting out of the car, but did not know whether Karews stood on the ground. "Here we have the driver of a lorry following n taxi-car. The taxidriver puts out his hand as the signal he is going to stop, pulls into the kerb, and then opens the door to get out," said Mr. Schramm. "But the lorry driver, about 40yds behind, doesn't even know if the taxi-driver got out of the car and stood on the ground alongside." Could it be said that a man who did not know whether the driver of the taxi actually stepped on to the roadway had exercised the reasonable care to be expected of a prudent driver? Mr. Schramm submitted that not only on the evidence for the plaintiff, but 011 the evidence of the defendant himself, the jury must find in favour of the plaintiff.

In his summing up his Honor referred to the fact that the present action was a retrial. At the first hearing a verdict had been returned for the plaintiff, but it was discovered that the evidence given by Cheadle was false, and that he had committed perjury, for which he was afterwards brought before the Court and sentenced to imprisonment. The jury had now to decide, on the evidence tendered in the present trial, whether the defendant had been guilty of negligence, or whether the correct view was that the accident was the result of negligence on the part of the plaintiff. The jury retired to consider at 12.30 p.m.