WIDOW'S APPEAL.

Auckland Star, Volume LXIX, Issue 139, 15 June 1938, Page 10

WIDOW'S APPEAL.

£3000 CLAIM ECHO. VERDICT OF THE JURY. *' EFFECT HOT UNDERSTOOD." (By Telegraph.—Press Association.) WELLINGTON*, Tuesday. An interesting case is occupying the attention of the Appeal Court, the hearing or the appeal of Ada Payne, of Wellington, widow, against Dunstan •John Burney, of Petone. Appellant recently sued respondent for £3000 for allegedly running down and killing her husband on June 21 last year while crossing the Hutt Road. The jury at the trial returned a verdict that respondent wan guilty of negligence materially contributing to the accident, and that the deceased Henry Payne, was also guilty of negligence materially contributing to the accident but in a lesser degree. At the request of the judge the jury assessed damages at £1250. On the day after the verdict the jury sent a letter to the registrar that it was unanimous in its desire that the £1250 should be awarded the widow, and, if

thev had understood the effect of their verdict, they would have said that the deceased was not guilty of contributory negligence. Some days later they sent a further letter to the registrar to the effect that they intended to find deceased not guilty of negligence, but found him guilty of negligence to help the motorist. Motion for New Trial. A motion for a new trial was argued before the Chief Justice, Sir Michael Myers, who held that if both parties were guilty of negligence materially contributing to the accident, there was no room for the issue of a last opportunity which, in this case, he had refused to put to the jury, when the law was that the plaintiff could not recover damages. He held that the implication in the jury's first letter was that if they had known the effect of their honest and conscientious answers to the issues they would have returned to the second issue an answer contrary to that which they actually gave. The implication of the second letter was that they were prepared to do an injustice to the deceased bv saying that he had been guilty of negligence materially contributing to the accident because they thought that by doing so they might be avoiding some consequences to the driver of the car. He argued that the widow was not entitled to succeed, and judgment was given for Burney with costs. It is from this judgment, and the refusal of the Chief Justice to order a new trial that the present appeal brought. ! (Proceeding.)