RIMUTAKA HILL ROAD COLLISION

Dominion, Volume 30, Issue 174, 20 April 1937, Page 13

RIMUTAKA HILL ROAD COLLISION

Ling- Sing’s Appeal Fails

APPLICATION TO REVERSE A JUDGMENT

By a unanimous verdict, the Court of Appeal yesterday dismissed an appeal by Mr. E. Parry, ou behalf of Ling Sing, merchant, of Greytown, against a judgment of the Chief Justice (Sir Michael Myers) awarding to Thomas Walton Robertson, linesman, of Wellington, damages amounting to £1463/12/6. The case has had a protracted history.

On February IS, 1935, there was a collision on the Rimutaka Hill Road between Robertson ou a motor-cycle and Ling Sing, driving a truck. Robertson sued Ling Sing before a judge and jury and the latter failed to agree. After th§ second trial before a judge and jury defendant moved for judgment or alternatively for a new trial. The motion was heard by six judges of the IMII Court and a new trial was ordered. Again the case was argued before a judge (the Chief Justice) and a jury in a third trial in November last, and after it plaintiff moved for judgment in accordance with the verdict of the jury, and defendant moved for judgment in his favour or alternatively for a new trial. In a decision given in December, the Chief Justice held that defendant had failed ou all branches of his motion and that plaintiff must have judgment for £1463/12/6, the amount awarded by the jury. It was against this decision of the Chief Justice that Mr. Parry, on behalf of Ling Sing, appealed in the Court of Appeal recently, asking that the decision be reversed and that judgment be entered for appellant, Ling Sing, on the ground that the decision was erroneous in fact and law. Mr. W. E. Leicester appeared for respondent, Robertson. The court consisted of Mr. Justice

Ostler, Mr. Justice Smith, Mr. Justice Johustou and Mr. Justice Fair. Mr. Justice Ostler, in bis judgment, said that the jury were asked if appellant was guilty of negligence materially contributing to the injury, and if so in what respect or respects. Their answer was: "Yes. He did not a]> proach the corner with due caution!’ What the jury had found was that appellant was guilty of negligence materially contributing to the accident, because he approached the corner negligently.

“It was not a very intelligent answer,” said his Honour, “and it might have been well if the presiding judge had cleared up any suggestion of ambiguity by asking the jury to specify in what respect appellant negligently approached the corner. But in view of the course which the trial took I do not think that the answer is really so ambiguous that its meaning cannot be gathered with reasonable certainty. Every intendment must be made in favour of the verdict, and the rule has been long established that in order to make that intendment the court may look at the evidence, the conduct of the case and the direction of the presiding judge. “When the conduct of the case is looked at the meaning of the verdict in my opinion becomes clear. There were a number of allegations of negligence in the pleadings of both parties, but the whole case made by respondent at the third trial was that appellant came round the corner on his wrong side. That was the real issue for the jury, and when they found that appellant approached the corner without due care they must have meant that he approached it on his wrong side. It must be remembered that neither party saw the other until they were both rounding the corner and not more than 50 feet apart. The jury had that evidence before them.

“There was no evidence as to how appellant was approaching the corner until the moment he was seen by respondent 50 feet away. He was then ‘approaching’ on his wrong side. It must have been to this that the jury were referring. In view of the way in which the case was conducted the verdict must, I think, mean that appellant negligently approached the corner on his wrong side, and that being so, it is not defective. I agree, with the judgment of the learned Chief Justice in the court below on this point. • For the reasons given, in my opinion the appeal must be dismissed, with costs on the highest scale.”