WHO WAS LIABLE?

Dominion, Volume 23, Issue 53, 26 November 1929, Page 9

WHO WAS LIABLE?

AFTERMATH OF COLLISION ACTION FOR DAMAGES FAILS A collision between a bicycle and an unlighted motor-lorry in Gracetield Road, Lower Hutt, on the night of December 4, 1925, formed the subject of an action heard before the Chief Justice (Hon, M. Myers) in the Supreme Court yesterday, when Louis Shardlow, of Petone, brass finisher (by his guardian nd litem,_Henry George Shardlow), claimed £552/15/damages from Maud Louisa Wilton, of White’s Line, Lower Hutt, milk vendor, for injuries received as the result of the accident. Defendant was sued in respect of her separate estate. Mr. P. Jackson appeared for plaintiff, and Mr. P. S. K. Macassey, with him Mr. C. Evans-Scott, for defendant. The statement of claim set out that on December 4, 1928, at about 9.5 p.m., plaintiff was riding his bicycle along Gracefield Road, Lower Hutt, from* the Wainui-o-matn Road, towards Parkvale Road, Lower Hutt, when he collided with a motor-lorry belonging to defendant, with the result that he suffered serious injuries consisting of a compound fracture of the skull. Plaintiff alleged that the motor-lorry had been left standing on the road without lights and that the accident was caused through the negligence of defendant in leaving an unlighted lorry on a public highway. The defence admitted that the lorry was unlighted, but stated that it was in such a condition owing to the battery terminals becoming loose and the ignition and lighting consequently failing through no fault of anyone. Defendant denied the allegations of negligence and alleged contributory negligence on the part of plaintiff in that he did not exercise reasonable care and precaution (1) in not riding at a reasonable speed, and (2) in not keeping a proper look-out, and (3) in not having a light for his bicycle. Defendant further stated that at the time of the collision she was an inmate of the Wellington Hospital and the motorlorry was not being driven or used by her servant or agent, or for her purposes, but was under the control of her husband, who was using it for his own purposes.

The Evidence. The nature and extent of plaintiff’s injuries were described by Dr. E. Lynch, of the Wellington Public Hospital. Witness said that soon after plaintiff’s admission to the hospital an operation had to be performed on him, a- piece of bone being removed from the skull. It was not possible to say what the effect of the accident would be. Plaintiff, in the witness box, stated that his bicycle was lighted, at the time of the accident, and that he was not travelling at a fast speed. It was six months before he was able to start work again, and he wqs still wearing a protection for his head. Janies Stone, who was riding with Shardlow when the accident happened, said that he saw the lorry, the greater portion of which was on the roadway, just in time to get out of the way. There ■were no lights on the lorry. Witness considered that he and Shardlow were travelling at about twelve to fifteen miles an hour. Cross-examined by Mr. Macassey, witness said that he would not say that they were not pedalling at the time of the collision. Witness did not have a light on his cycle, but Shardlow did. Witness denied that he called ont “Look out for the lorry I” Mr. Macassey then asked witness what ho would say if- witnesses said that two motor-cars passed the lorry, the reply being that the cars would have to go slowly. His Honour remarked that it seemed to him that the true cause of the accident was not negligence but nuisance. According to James Scotson, defendant's husband leased some land from him in Gracefield Road, and visited it frequently in the motor-lorry. On the night of the accident the lorry was pulled over ns far as possible on the correct side, leaving a space of about nine feet between it and the fence. Wilton had not applied to him for a light for the lorry. To Mr. Macassey, witness stated that he had heard motors passing a little while before the accident, and so he presumed that there was ample room for a vehicle to pass if ordinary care was exercised. There were no projections on the lorry which would tend to foul anything passing. On inspecting/the bicycle ridden by Shardlow, he noticed that the back pedalling brake was not operating to its full capacity. There was an o.il-lamp on the bicycle, and when witness was extricating the young man from the bicycle he found that the lamp was warm, and had evidently been alight. In the condition in which witness saw the lamp it would not have been much use on the road. Witness stated that the handles of the bicycle were low down, and were in what he described as “a racing position.” The lorry was painted cream, and had a cab. To His Honour, witness said that Wilton could not have moved the lorry to a wider portion of the road without help, as the lorry could not have been "driven owing to the ignition failing. Henry Shardlow, father of plaintiff, said that he had measured the road at the scene of the accident. The metal portion was ten feet wide, and there was a foot of grass on the side. Assuming that the lorry was six feet wide, and that it was partly on the grass, then about five feet, would be on the road. There was a light three chains away, but this could not be seen from the spot where the accident occurred owing to the presence of trees. There was a suitable parking place a short distance away. "Wrong Person to Sue.” At the conclusion of the case for plaintiff, Mr. Macassey contended that a contract between Wilton and Scotson for the lease of the land had been proved, and, therefore, the lorry was being used for his purposes, and Mrs. Wilton was not liable. His Honour said he thought that Mr. Macassey's contention was quit* likely, and that he had quite a strong view on the matter, but he considered it desirable to hear any evidence that Mr. Macassey might wish to call. Maud Louisa Wilton, the defendant, stated that she bad bought the lorry to use on a milk round. She had not agreed to her husband leasing the land from Scotson for market gardening purposes. nor did she know that be was working the land. So far as witness knew, her husband had never been to the land prior to the night of the accident. To Mr. Jackson, witness said that she really had not given her husband any authority to use the lorry, but she supposed he had taken “French leave.” Mr. Macassey then closed his case. Mr. Jackson contended that the use of the wife’s property in connection with work on the husband’s market garden was for the common benefit of both husband and wife. His Honour (interrupting): For his own purposes. I am not prepared to accept your view, Mr. Jackson. . . . You have chosen, in m.v vice/, the wrong person to sue. After further discussion. Mr. Jackson stated that in view of t '.at His Honour had said, he thought it useless to go any further. On the application of Mr. Macassey judgment was entered for defendant, with costs.