VERDICT IN DAMAGES CASE

Dominion, Volume 30, Issue 174, 20 April 1937, Page 2

VERDICT IN DAMAGES CASE

Motorist Wins Appeal UNLIGHTED CAR HIT BY MOTOR-CYCLE The appeal of a motorist whose stationary, unlighted car was struck by A motor-cycle on the Great South Road was upheld by the Court of Appeal at Wellington yesterday. In a claim for £1797, a jury of twelve found for the motor-cyclist, the plaintiff, and the appeal was against the dismissal by Mr. Justice Fair of a motion for a nonsuit and judgment for defendant, or a new; trial. The court consisted of Mr. Justice Ostler, Mr. Justice Smith and Mr. Justice Johnston. Appellant was George Alfred Francis Hancock, grocer, of Penrose, Auckland, and respondent Holford Stewart, freezing works tally clerk, of Auckland. Mr. R. P. Towle appeared for appellant and Mr. A. H. Johnstone, K.C., with him Mr. T. N. Holmden, for respondent. The accident occurred on the night of December 8-9, 1935, between Te Kauwhata and Mercer. Stewart was riding his motor-cycle north and collided with Hancock’s ear, which was stationary and unlighted on the lefthand side of the road. The motorcycle was wrecked and the rider’s right thigh fractured. In his Supreme Court action Stewart alleged that Hancock had ben negligent in leaving his car stationary without lights; failing to give warning of his stationary vehicle; obstructing the course plaintiff was entitled to take; failing to display the lights required by the Motor Vehicles Regulations; and allowing his car to be parked in such a position with regard to other traffic on the road that it was invisible to plaintiff. Hancock denied negligence, and alleged that if he were guilty of it plaintiff was guilty of contributory negligence. Verdict For £1259. The jurv found for plaintiff and awarded £1259/8/2 damages. Mr. Justice Fair dismissed the motion for nonsuit or a new trial. Mr. Towle submitted that there was no evidence upon which the jury could find that respondent, was not guilty of contributory negligence. Mr. Johnstone contended that there was not the slightest doubt that appellant was grossly negligent in leaving an unlighted vehicle on the highway. The judgment of the Appeal Court was given yesterday. “In my opinion,” said Mr. Justice Ostler, “it is necessary in the interests of justice that the court should jealously guard its controlling power over the verdicts of juries, and that juries should not have a free hand to whittle away the standard of care fixed by the law. If that controlling power is relaxed or weakened there is a real danger that liability for motor accidents will come • to depend entirely on the whim or prejudice of juries. Defendants will be liable without proof of negligence, and plaintiffs will. be able to recover, although their contributory negligence is manifest to all reasonable men. Author of His Own Wrong. “If a motor-cyclist who on his own admission did not look where he was going is allowed to recover in such a case as this, there is no reason why a motor-cyclist riding without a. light who runs into an unlighted stationary obstruction should not also recover if he can induce a jury to say he was not guilty of contributory negligence. Such a verdict would plainly be unreasonable except in very exceptional and special circumstances, and in my opinion respondent’s own evidence shows that this verdiet is so unreasonable as to be perverse. “I cannot find a single fact in the whole of the evidence upon.which a jury would be justified in saying that it exeused respondent from the duty of seeing appellant’s car in time to avoid the collision,” added Mr. Justice Ostler. “Respondent’s evidence in my opinion conclusively proves that he was the author of his own wrong. That being the ease, in my opinion the judgment in the court below is erroneous, and should be reversed with costs in this court on the highest scale as from a distance, and judgment should be entered for appellant iu the court below, with costs according to scale, witnesses’ expenses and disbursements.” Mr. Justice Smith dissented, holding that there should be a new trial.