Judge Sets Aside Jury’s Verdict In Civil Claim

Press, Volume XCII, Issue 27764, 15 September 1955, Page 3

Judge Sets Aside Jury’s Verdict In Civil Claim

SUPREME COURT

In a reserved decision given in the Supreme Court yesterday Mr Justice Adams set aside the judgment for the plaintiff in a civil claim and entered judgment for the defendant. The case, heard on November 10 and 11. 1954, was one in which Mrs Doris Lily Russell, a widow, claimed £4OOO general daniages from John Alexander Ensoll, an aircraft engineer, as the re- • suit of the death of her husband, Alfred Percival Russell, in a collision a year previously at the intersection of Burnside road and Grahams road. Ensoll and Russell were both riding motor-cycles. A jury found that both were negligent and that Ensoll was 75 per cent responsible for the accident and Russell 25 per cent. Judgment was given for Mrs Russell for a total of £3009.

Mr C. S. Thomas, who appeared for Ensoll, moved to set aside the judgment for Mrs Russell and to enter judgment for Ensoll on the ground that there was no evidence of negligence on his part. Mr E. S. Bowie appeared for Mrs Russell.

“I am definitely of opinion that, in the' circumstances of this case, it is beyond all reason to attribute threequarters of the responsibility for this accident to defendant, and to attribut only one-quarter to the man who was bound to yield him the right of way, bound to stop and ascertain that the road was clear, and bound not to proceed unless the road was clear, and who failed, as the jury found, to keep a proper look-out. There can be no doubt as to what was, on any possible view of the facts, the paramount cause of the accident. No reasonable jury could hold on the facts that defendant was three times as much to blame as

Russell,” said his Honour in his judgment.

The defendant was entitled to judgment on the ground that there was no evidence to support the findings of the jury that Ensoll was negligent in driving at an excessive speed, in failing to keep a proper lookout, and in failing to exercise proper control of his motor-cycle immediately before the collision.

“The ‘emergency’ that arose was one created by Russell who was under a statutory obligation to be prepared to avoid it; and defendant can. scarcely be said to have been under a special obligation to be prepared to meet an emergency that could not arise without a flagrant breach on the other rider’s part of more than one of the rules of the road,” said his Honour. “This was. as Mr Thomas argued, far too high an onus to place on defendant, whose only duty in this respect was to be prepared for such emergencies as might reasonably be expected to arise. Until something occurred to warn him to the contrary, he was entitled to expect that other vehicles would obey the rules, and especially the rule as to compulsory stoppage, the very purpose of which is, as Mr Thomas said, to permit main highway traffic to proceed at relatively fast sneeds as against vehicles emerging from side roads. “The judgment for plaintiff is set aside, and judgment will be entered for defendant with costs as per scale and with disbursements for fees of Court, witnesses’s expenses and other necessary payments to be fixed by the Registrar. Defendant is allowed the sum of £2l for costs of this motion with disbursements to be fixed by ‘the Registrar,” said his Honour.