FAILURE TO AGREE

Dominion, Volume 25, Issue 267, 6 August 1932, Page 5

FAILURE TO AGREE

Cyclist Claims Damages COLLISION AT PETONE Judge Orders New Trial Responsibility for a collision which occurred at Petone between a motor-car and a bicycle on June 16 last was argued before Mr, Justice Ostler and a jury in the Supreme Court yesterday. William Varian Wilson, clerk of works and registered accountant, of the cyclist, aged 74, claimed £7.9/12/6 damages from' Henry No.rman Hansen, tunneller, of Moera, the motorist.. The jury was unable to agree. An orderwas made for a new trial. The statement of claim set out that plaintiff was riding his bicycle in a westerly direction along the Esplanade in Petone toward its junction with Cuba Street. At the junction of the two streets, the plaintiff's car ran into him. He claimed that the collision was caused by the negligence of defendant in failing to sound his horn on approaching the junction, failing to keep to his correct side of the road, failing to keep a proper look-out, travelling at an excessive rate of speed, failing to stop or slow down so as to avoid the plaintiff, failing to swerve, and failing to have his motor-car under proper control. As a result of the collision, Wilson suffered a compound fracture of the jaw, injury to the right knee, abrasions to the hands and face, concussion, shock, and consequential neurosis. He claimed £750. general damages, £lO for loss of earnings, £l4/2/- hospital expenses, £3 damage to clothing, and £2 for repairs to bicycle, and costs of the action. ■ ■ - Case for Defence. ■ The defence was that the collision was due to the negligence of the cyclist in failing to keep a proper look-but, failing to keep to his correct side of the road, failing to stop or slow down so a.i to avoid the motor-car, and riding a bicycle- which had no brakes. Counsel for the plaintiff said that as a result of the collision Wilson had sustained a compound fracture of the jaw, the bone being broken up into small bits. His jaw was all out of plurqb, and a big scar had been left. For the rest of his life he would be unable to open his mouth more than one inch. Evidence for the plaintiff was given by-Norman Jacob Gardiner (surveyor), Dr. W. S.! Robertson, Dr. A. Gillies, William Henry Bowen (motor specialist), and Ellen Margaret Wilson (daughter-in-law of the plaintiff); . Wilson, who appeared with his head bandaged, said he had been riding a bicycle for between 30 and 40 years. He was cycling at from two to three miles an hour on the macadam on the afternoon of the accident. He was in the hospital for three weeks as a result of the accident, and had suffered from insomnia and giddiness since. His jaw was still painful, and he 'was only able to eat soft foods. ' Travelling at Slow Pace. Defendant said he had been driving a motor-car from between four and five years/ He was travelling at a slow pace on the afternoon of the accident. When he saw the cyclist he sounded his horn, but Wilson appeared to become confused, and he could not tell which way he was going. He swerved the car, but the cyclist ran into the front part of the running-board. Cross-examined, defendant said that the cyclist made three swerves, and he could not tell which way. he was going. He appeared ,to be boring into the car. Robert' Leonard Knight, tunneller, who was in the car when the accident happened, said that Hansen swerved hard' over to the right in an effort to dodge the cyclist.. . . . . / Dr. E. iW. Giesen said Wilson would always have a scar down the side of his 'neck; and would find difficulty in making his teeth meet properly. i His Honour put the following issues io the jury: (1) Whs the accident caused by. the: negligence of the defendant? (2) Was the plaintiff guilty of contributory negligence? (3) If the defendant was responsible, what /lamages is' tbC plaintiff entitled to? After counsel had delivered their addresses, and his Honour had summed ■up, the jury retired at 3.30 p.m. The jtiry returned at 7.30 p.m., when the foreman stated that he was sorry to have to announce ■ that they had been unable to agree. “I am sorry to have kept you so long,” said Mr. Justice Ostler, “but don’t blame me; it is the law,” His'Honour discharged the jury, and mdde, a note ordering a new trial at the present sittings if possible, and if not at the next sittings of the Supreme Court.