WHOSE NEGLIGENCE?

Evening Post, Volume LXXXIII, Issue 95, 22 April 1912, Page 8

WHOSE NEGLIGENCE?

SEQUEL TO AUCKLAND TRAM ■ ACCIDENT. 'COURT OF APPEAL STATES THE LAW. ■ !An ! interesting statement of the law relating to negligence, with particular reference to tramway accidents, was contained in. the, judgment of the Court of JiAjppea! in' the case Martha, and W. H. Jung.y. the Auckland Electric Tramway j which was written by Mr. •Justice Williams and read by the Chief -Justice (Sir Robert Stout) to-day. '; At 6.30 p.m. on 30th May, 1911, Mrs, King was knocked down by a tramcar on •iNew North-road, Auckland, and she "claimed damages amounting to £560, •*and Mi\ King asked for £75 damages -as compensation for loss of hia wife's '.society' and for nursing expenses. , "^'W^'do not think it is necessary," ran *th6_~jadgnient, "to call upon the counsel ."for" file respondent. The question is ''■whether the learned Judge in the court -below, was justified in non-suiting the revfinohdent. The principles on which a 'case «f this kind should be decided are '.correctly laid dotyn in Mr. Salmond's ■work-on Torts in the following terms; — '""£he burden of proving negligence is on th> plaintiff who alleges it. When accidental harm is don© it is not for the doer •40 -excuse himself by proving that the was inevitable and due to no si^;ligeflce on hie, part; it is for the pert*ob> wfip suffers the harm to prove affirmatively that it was due to the negligence of him who caused it. Unless the Ijjlaintiff ' produces reasonable evidence the accident was caused by the defendant's negligence there is no case to gcj to the jury, and it is the duty of the Judge to cntei' judgment for the defendant. Here, as elsewhere, the term reaeonatuV evidence means such evidence as ja Reasonable jury might deem sufficient <for proof.' ■" t '"Counsel for the appellant contended Tthjifc the drivei\_of the car was negligent 6n£ three particulare — that he failed to Jtaep' a lookout, that he was travelling at jail- excessive sp^ed, and that he failed to give any-warning by sounding a gong. -It was further contended that the acci'ileht tor the , plaintiff was caused by. these acts jpf negligence. -- "As- to -the two last we are satisfied "that there, is no>.evidence. There is some '•evidejjee that the car was travelling at ■the rate of 20 miles an hour. There was -a clear run for a- considerable distance. *rhere waa no traffic on the road. The 'koaA was _an- ordinary chain wide road not very- well lighted. The fact that the , loaA^was- .not very well lighted would make^the lights of the car all the more distinguishable. Anyone who looked could have seen the car coming and kept out ol ite way. Nor in such circumstances would there be any necessity to sound the gong, 'before going round a corner the gong ought to be sounded to give notice to those who are on the other side of the corner that the car is coming. There is; no obligation, however, to sound the gong to warn persons who a*re eighty yards on the other side of the corner, because they are in a position to see the car coming in plenty of time to escape collision with it. Is there then evidence that the accident happened by • leasoni of a failure to look out on the part of the motorman? * "Now it is perfectly clear from the plaintiffs own evidence that if she had looked before crossing the tram line she could not have helped seeing the car coming. She did not, however, look, but Crossed immediately in front of the approaching tram and was caught by it before she got completely across the four ifeet, six inches of tramline. Apart altogether from any question) of contributory negligence, it i& plain that a person who crosses immediately in front of an approaching tramcar and is injured in consequence, if he wishes to show that the driver of the tramcar could have avoided the collision, must establish the fact by clear affirmative evidence. In our opinion that evidence l is not forthcoming in the present case. The whole thing was a matter of two or three seconds. It was for the plaintiff to prove affirmatively that the motorman ought to lave seen her in. a position of danger or entering into a position of danger in time either to stop the car and avoid a collision, or give her warning in sufiicient time to enable her to escape from a position of danger, or not to enter into » position, of danger, and that, if he had stopped the car or had given her warning, the accident would not have hapipeiied. We do not think that from the evidence twelve reasonable men could nave came to this conclusion. As we have said the whole affair was a matter of two or three seconds. The accident ■was the immediate result of the plaintiff's own action, and there is not sufevidence that the accident was -caused in any other way." . - _ At the hearing, Mr. H. P. Richmond teppeared for „ appellants and Mr. J. R. JBeed far the company.