COUNTER CLAIM.

Auckland Star, Volume LXIX, Issue 177, 29 July 1938, Page 8

COUNTER CLAIM.

NEGLIGENCE DENIED

DEFENCE ALLEGATIONS.

DAMAGES OF £2401 SOUGHT,

Denial of negligence on his part, and eounter-allegations of negligence on the part of those injured in the accident, was the defence brought by the defendant in two actions continued in the Supreme Court to-day, in which damages totalling £2401 were claimed. The two actions, heard jointly, arose out of the death of a boy cyclist and injuries to his brother, when the machine they were riding g.nd a motor cur, driven by the defendant, collided on December 26 last, near the inter- , section of Emmett Street and Shelly Beach Road. * The lad who was killed was Ronald |. Desmond Benjamin, aged 14J years, and his brother was Noel Albert Benjamin, aged 11 years. Both actions were' brought by the parent, or parents, Charles Andrew Benjamin, father, a cloth cutter, and Annie Caroline Benjamin, mother. The claim in respect of the fatality, amounting to £1023, was brought by both-under the Deaths by Accident Act, 1908, and that arising out of injuries to the brother, £1018, by the father alone. The claims were heard before Mr. Justice Callan and a jury. Mr. Sullivan and Mr. Fleming appeared for plaintiffs and Mr. Holmden for the defendant Ernest William Coyle, waterside worker, of Auckland. The statement of claim said that the accident was due to the negligence of the defendant. It was stated that about 6.30 p.m. on the day in question Ronald was riding the bicycle and Noel : was seated on the bar. As the result of the collision Ronald was killed, while ' Noel received such injuries a* would result in permanent harm to the right leg which was broken. Value of Operation. Tn evidence yesterday Constable G. A. Olson said to Mr. Holmden that all traffic coming up Shelly Beach Road tended to swing to the right at the Emmett Street bend. That swing was due to the grsde. Dr. William Cuthbert McCaw said that a corrective operation performed now on Noel Benjamin's leg would result in a large improvement, and would be likely to remove permanent disability. His right leg would never allow him to stand up to heavy work or strain as a normal leg would. In evidence the driver of the car, the defendant, said he was travelling about 20 or 25 milea an hour, and in the middle of the road. The camber at the corner of Emmett Street fell away towards Hackett Street. The boye were well out in the centre of the.road, and travelling about the same speed as he was. He swung his car hard on the right lock that he was then on, and the impact took place almost as soon as he swung the car.

The setting sun wag reflected from the bonnet of his car on to his windscreen. There were shadows rigHt •eross the road, and a Kne of trees on both sides of it in fnll bloom. Question of Sunlight. He told Mr. Sullivan that he did not see tie boys nntil he was about five yards from them. He admitted that he was <m his wrong side of tie root when the impact took plan* hut Tie «tated that he was entirely on his correct side of the road before he caw the boys. The mam reason that he did not «ee the boys earlier was that they Trere in the shadows of the houses, and he was in the direct sunlight.

If the boy in the saddle had not had a passenger on the bar he could lave leaned over and swerved the cycle away from the car.

Dr. Kenneth MeCormick said that the lad Noel had some seven yeans of growth left to him, and it was wonderful how Nature corrected such disabilities as were present in this case. ae would advise an operation now.