CLAIM FAILS

Dominion, Volume 23, Issue 33, 2 November 1929, Page 7

CLAIM FAILS

VEHICULAR ACCIDENT ACTION FOR DAMAGES Palmerston North, November 1. As an outcome of a collision between a bicycle and a motor-car in the Square on March 13 last a claim for £576 damages was heard before His Honour Mr. Justice Blair and a jury of twelve in the Palmerston North Supreme Court today. The plaintiff was Mrs. Marie Caroline Firkin, of Palmerston North, and the defendant Charles Louisson, brewery manager, of Palmerston North. Mr. M. H. Oram appeared for plaintiff and Mr. J. P. Innes for defendant. Plaintiff alleged that the collision in which she had allegedy been severely and permanently injured was due to the negligence of defendant. Defendant denied all the allegations and replied that the alleged inj’ury to-plaintiff was caused or occasioned by her own negligence. In opening the case for plaintiff Mr. Oram said it was not claimed that he was guilty of criminal or reckless negligence. Plaintiff in her evidence said she had been cycling across the Square from the Post Office towards the Commercial Hotel. She had seen a car approaching well on the other side of the railway line. She turned to the right and commenced to cross the road to go past Ross’s building, when the car rtruck the back wheel of the bicycle, throwing her to the ground.

Dr. Miller gave medical evidence stating that one of the plaintiff’s legs had been broken at the joint. There would be a certain amount of permanent disability. He estimated that plaintiff’s earning capacity had been lessened by 10 to 15 per cent. In his evidence, the defendant said that he had been driving a car for the last 17 to 19 years, and had never had an accident. He was slightly deaf, and that made him take extra care in driving. Just prior to the accident he had crossed the railway line at about six miles per hour. He was just past the Commercial Hotel corner when he saw the bicycle about four yards away at right angles to him. He had pulled up immediately, in no more than two feet at the most. Plaintiff had come right across the front of his car and struck it on the left-hand side

Several witnesses deposed that defendant was travelling at a moderate speed. Ida Dorothy Bush, the only eye-wit-ness of the accident, said that if Mrs. Firkin had not turned suddenly in front of defendant’s car “it would have been all right.” Ir; summing up, His Honour stressed that whereas there was a liability on Louisson’s part to keep a proper lookout, there was just as great a liability .on Mrs. Firkins. In her evidence she had made the astounding statement that she didn’t know what had hit her. He emphasised also that Mrs. Firkins’ vehicle was much the more “tractable steed” of the two. The evidence showed that Louisson was travelling at a very small rate of speed. If he had stopped, when he saw her four yards away, then why hadn’t she? It must be remembered also that plaintiff had a bigger object to see. She had also taken rather a strange course, coming straight across the road instead of in a curve. . “Mr. Oram invokes the doctrine of the lost opportunity,” said His Honour, “but I don’t know why he apropriates it all for his own client and does not l f ve anything for defendant.” After a retirement of twenty minutes the jury returned a finding for defendant. His Honour allowed costs for defendant on the highest scale.