SEQUEL TO COLLISION

Dominion, Volume 27, Issue 148, 20 March 1934, Page 10

SEQUEL TO COLLISION

Motion for Judgment or New Trial f HEARING BY FULL COURT A motor collision at the intersection of Endeavour Street and Onepu Road, Lyall Bay, on August 19, 1931, had a sequel in the Full Court yesteiday, when a motion, leave to submit which was reserved at the Supreme Court trial before Mr. Justice Blair and a common jure, was moved for judgment for plaintiff, or, alternatively, for a new trial. David Lewis, draper, of Wellington, was the plaintiff in the case and Robertson McGregor Stewart, picture theatre proprietor, of Wellington, the defendant. . , The Chief Justice (sir Michael Myers), Mr. Justice Herdman, Mr. Justice MacGregor, Mr. Justice Blair, and Mr. Justice Kennedy were on the bench. Mr. 0. C. Mazengarb and Mr. H. J. V. James appeared for plaintiff, and Mr. W. E. Leicester for defendant. Mr. Mazengarb, in moving that the judgment entered in the action for defendant be set aside, and that judgment be entered for plaintiff for the amount of damages, assessed by the jury at £430/15/1, with costs, said that the facts according to the statement of claim, were that on August 19, 1931, plaintiff was driving his. motor-car along Endeavour Street at its intersection with Onepu Road. At the same time defendant was driving his motorcar along Onepu Road. Plaintiff alleged that defendant so negligently and unskilfully managed his motor-car that he brought it into violent collection with plaintiff’s car and overturned it. The alleged negligence of defendant consisted in driving at an excessive speed, failing to sound his horn, failing to keep a proper look-out, failing to slow down on approaching the intersection, and failing to steer his car clear of plaintiff’s car. Plaintiff said that as a result of the collision he received severe bodily injuries, had to receive hospital and medical treatment over a long period, and that his left hand had been permanently damaged. He claimed £1032/15/1 damages (£BOO general and £232/15/1 special damages). Question of Negligence. In support of the motion, Mr. Mazengarb submitted first that there was no evidence upon which it could reasonably be found that plaintiff was guilty of contributory negligence; secondly, that, if tbeie.was such evidence, the only rational inference from it was that defendant by the exercise of reasonable care could and ought tb have avoided the collision, notwithstanding the consequences of plaintiff's negligence; thirdly, that, alternatively, if there was evidence upon which it could reasonably be found that plaintiff was guilty of contributory negligence, the only rational inference from the evidence was that defendant, but for his having negligently incapacitated himself from so doing, by the exercise of reasonable care could and ought to have avoided the collision, notwithstanding the consequences of plaintiff’s negligence; fourthly, that the only rational inference from the evidence was that defendant’s negligence was the sumstantial cause of the accident; fifthly, that upon the pleadings and the evidence, and the answers of the jury to the issues submitted to them, plaintiff was entitled to judgment. Defendant submitted in his statement of defence that plaintiff had committed a breach of the "off-side” rule in that he failed in coming on to an intersection to give wav to traffic on his right-hand side; that" plaintiff failed to exercise due and reasonable care in converging from a side road on to the main road; that plaintiff in turning into Onepu Road “cut” the corner through not keeping to his left of the centre line of the road. Defendant also claimed that plaintiff was driving on his wrong side of the road; that plaintiff failed to sound bis horn, to keep a proper lookout. and to have his motor-car under proper and sufficient control. It was submitted by Mr. Mazengaib that it all came back to the question as to whose negligence was the cause of the accident, and that in this ease the excessive speed of defendant’s car was the effective cause. The “Last Opportunity.” Mr. James contended that the question of the last opportunity of avoiding the accident must be left to the jury in all cases, except where it was plain that on no view of the evidence could defendant have had the last opportunity. He also submitted that even in those cases where that was claimed the jury must be asked to find whose negligence it was that substantially caused the accident. For defendant, Mr. Leicester said that none of the witnesses gave any evidence showing that defendant had had the last opportunity. There was no evidence that at the critical moment defendant could have avoided plaintiff's negligence. He submitted that the onus was on plaintiff in the present case of showing that substantial wrong or a miscarriage of justice had been occasioned. Mr. Mazengarb, in reply, said that the kernel of the argument for plaintiff was that if defendant was going at a speed of 25 miles per hour, he should have been able to pull up in less than 23 feet. The court adjourned till to-day.