NEW TRIAL ORDERED.

Auckland Star, Volume LXVIII, Issue 234, 2 October 1937, Page 13

NEW TRIAL ORDERED.

SEQUEL TO ROAD ACCIDENT. JUDGE HELD TO HAVE ERRED. (By Telegraph.—Press Association. ( WELLINGTON, Friday. The Appeal Court heard an appeal as a pauper by Charles Edward Birt, of Lower Hutt, linesman, rrom tlie judgment of a nonsuit given against him at Palmerston North in May by Mr. Justice Reed. The appellant had brought an action claiming damages from tl.e respondent, William Findlay Leslie Robinson, of Wellington, hairdresser. for serious injuries suffered by appellant as a result of an accident on the Palmerston Nortn Toxton road in January, 1935, when a motor cycle ridden by Birt came ir.to collision with the respondent's car.

In granting a nonsuit, Mr. Justice Reed stated that his grounds for so doing were that, 011 the admissions of the appellant, lie was guilty of contributory negligence, in the sense that without his negligence the accident could not have happened, and that there was no evidence upon which a jury could properly find that the respondent had the last opportunity t of avoiding the negligence of the appellant. At the conclusion of argument by counsel, judgment was given allowing the appeal and ordering a new trial of the action.

The Chief Justice, Sir Michael Myers, stated that in his opinion the learned trial judge was wrong in nonsuiting the appellant. He had read the regulation as meaning that a driver must keep as near as possible to the left-hand side of the road, but that was not the true meaning. Sir Michael Myers was of the opinion that + he regulation

meant that every driver should as far as possible keep to the left or the centre line of the road. Apart from this, the judgment appealed from was wrong in withdrawing the case from the jury, because the question wnetiier or not the appellant was keeping his motor cycle as far as practicable to the left of the centre line of the road was a question of fact, not for the judge at all, but should have been left to the jury.

In a separate oral judgment, Mr. Justice Smith also expressed the opinion that the interpretation of the question of how far over on the road it was practicable for the appellant to ride was for the jury to determine.

Mr. Justice Fair delivered judgment to the same effect as that of Sir Michael Myers.