APPEAL UPHELD

Press, Volume LXXII, Issue 21903, 2 October 1936, Page 7

APPEAL UPHELD

' ■ . MAGISTRATE’S DECISION CONTESTED COLLISION CASE BEFORE SUPREME COURT A case where a 'magistrate held that a collision came in the category of ’inevitable . accident, and accordingly non-suited a plaintiff who claimed v damages, % was the subject of -an .appeal which was. upheld in the Supreme Court yesterday by his Honour > Mr Justice Nprthcroft. Hie 'original lower court hearing was before Mr F, F. Reid, S.M. The appellant was Nel’son Gardiner," of Early Valley; Halswell, for whom Dr. A. L. Haslam .appeared, and the respondent was Amuri Motors, Ltd., represented by Mr R. A. Cuthbert. In the Magistrate’s Court proceedings Gardiner, as plaintiff, set out in his statement of claim that on November 18, 1935, he was driving-a motorcycle and side-car on his correct side of the roadway in Madras street. At the intersection ox St. Asaph, Lower High, and Madras streets a motortruck pyrned by Amuri Motors, Ltd., and driven by Joseph Norman Harri- ( son, a servant of the company, collided with him. Gardiner claimed that he received injiiries preventing him from carrying occupation as a grower. I and that the accident Occurred through I the negligence of Harrison. He claimed £IOO general damages and £lO3 17s 2d special damages. Judgment was given by the magistrate for Amuri Motors, Ltd., and he I expressed the view that the collision I fell into the class of- inevitable accident. Unaware of Danger Dr. Haslam submitted that Harrison : was driving at excess-ve speed. HamI son had seen Gardiner come out of ; Madras street and had seen that he was concentrating on the approach of another car and was unobservant of 1 the ■ truck’s approach. Harrison should have slowed down dr stopped, as he J I was then able to do, in time to avoid * the accident. He was negligent in not ; doing so. It was admitted that plaintiff : was negligent in failing to keep a look- ! out and giving way, but where one I only of the two parties to an accident had been aware of approaching danger I the responsibility to avoid it rested on that party. Harrison had the last op- 1 [portumty.to avoid the accident. This ( { was based on Harrison’s own admis- { sion in evidence that he could have ■ I stopped aftef first seeing Gardiner, j and so avoided hitting him. \ Mr Cuthbert contended that Harrison had acted reasonaoly in going on ‘ to/the intersection. It had been em- < phasised that Harrison looked away \ after seeing Gardiner, but he had a k duty to look to his right, as Gardiner i had. Even if Harrison ,saw the first ] time, when he was 10 yards away, that c Gardiner was unobservant, he could k not then know that Gardiner would continue to be unobservant in going on to the crossing. He was entitled to assume that Gardiner would look to his right and see the truck before then. The rule of the right had .been devised to meet such conditions. The c contentions of Dr. Haslam turned the rule of the right upside down. fc A dangerous heresy had been argued p for the defence, said his Honour. This v was that at a right-hand intersection v where a motorist had another vehicle r to his left he was entitled to go .on regardless of what that other vehicle d might do, and to rely on a rule of ti law—the rule of the right—to exoner- , ate him frpm the. consequences. It was * true that the other ‘ vehicle ought to stop, but it was dangerous to assume that it would stop merely because it ought to. If a driver behaved in that ’ wsy arid on that assumption and did not make sure the other vehicle was p going to obey the law, he was acting q negligently. Accordingly he held that Harrison behaved negligently. He had a , the last opportunity to avoid the acciHpnt. - rV V. ~ His‘honour upheld the appeal, hold- b ing that plaintiff was entitled to re- r< cover. The case was referred back to ir the magistrate on the issue of damages, n