CYCLIST INJURED

Evening Post, Volume CVIII, Issue 127, 25 November 1929, Page 11

CYCLIST INJURED

CLAIM FOR DAMAGES

QUESTION OP LIABILITY

■A claim for £552 15s damages for injuries received as a result of an accident which-occurred on Gracofield road, Lower Hutt, on the night of 4th December, 1925, was made in the Supremo Court to-day by Louis Shardlow, apprentice, of Petono (by his guardian ad liteni, Henry George Shardlow), .against Maud Louisa Wilton, milk vendor, of Lower Hutt (sued in respect of her separate estate).

Tho Chief Justice (tho Hon. M. Myers) was on the Bench. Mr. P. W. Jackson appeared for the plaintiff, and Mr. P. S. K. Macassey, with him Mr. C. Evans-Scott, for the defendant.

The statement of claim1 set out that the plaintiff was riding a bicycle along Gracefiold road when he collided, with the defendant's motor-lorry, which was standing unattended and without lights by the roadside. It was alleged that the defendant was negligent in leaving the vehicle unlighted on a public road. As a result of the collision the plaintiff received a compound fracture of the skull.

for the defence, it was • maintained that the lorry was unlighted because of a failure in the lighting and ignition system. ■ The allegations of negligence were denied, and it was urged that the accident was due to or contributed to by the plaintiff's own negligence in not having a light on his bicycle, riding at a reasonable speed, or keeping; a proper look-out. A further defence was that tho lorry was not being used by tho defendant's servant or agent, but was under the control of her husband, who was using it for his own purposes. According to Dr. E. Lynch, of the Wellington Hospital, an operation had to bo performed on the plaintiff soon after his admission, and a piece of bone was removed from his skull. It was impossible to say what the effect of the accident would be.

Tho plaintiff said he was unable to recall any details of the actual collision. He was not riding very fast when it occurred. He spent six weeks in the Hospital, and had had to wear glasses since his discharge. Cross-examined, witness said that the bicycle had an oil lamp which was not of much use.

"I saw the lorry just in time to get out of the way," said the nest witness, James Stone, who was riding with the plaintiff at the time of the accident. Ho added that the lorry was partly on tho grass by the. roadside, but there was little room for another vehicle to pass. The defendant's husband arrived on the scene about a quarter of an hour later in a car with another man. Witness and Shardlow were rid-: ing afc about twelve or fifteen miles an. hour.!

Witness told Mr. Macassey ho would not deny that ho waa pedalling down the road. His bicycle was unlighted. "If witnesses say that two motorcars passed the lorry, what would you say?"—" They would have to go slowly."

His Honour observed that it seemed to him the true ground of the action was not negligence, but nuisance. James Scotson said that the defendant's husband leased some land in Gracefield road from him for cropping, and visited it frequently in tho motorlorry. Witness saw the lorry after the accident, and found that it was pulled over as far as possible to the loft, leaving about nine feet to spare. Wilton had not applied to him for a light for the lorry.

To Mr. Macassey, witness said that he had heard cars passing the scene before ;thei accident, and- presumably there wasroom for them to pass if, care were exercised. There was no projection on the lorry to foul passing vehicles. Witness found that the backpedalling brake on tho plaintiff's bicycle was not operating to its full capacity. The oil lamp was warm and had evidently been lighted, but witness considered it would not have been of much use. ■"• ' ' '■■■ '

In reply to his Honour, witness said that Wilton could not have moved the lorry to a wider place on the road without going for assistance, as the ignition had failed.

Henry Shardlow, father of the plaintiff, said that there was a light about three chains awayfrom the scene of the accident, but it could not be seen because of trees. There was a suitable place for parking only a little distance away.

J. V. Dykes agreed that it was ridiculous to leave a lorry where the accident" occurred.

At the conclusion of the plaintiff's case Mr. Macassey submitted that a contract between Wilton and Seotson for the lease of the land had been proved, and, therefore, the lorry was being used for his purposes, and the defendant was not liable.

His Honour: "I think it is quite likely. I have quite a strong view 'on the matter, but I think it is desirable to hear any evidence you may desire to call."

The defendant said that she was the owner of tho lorry, which she had bought four months before to use on a milk round. She had not agreed to her husband taking the lease from Seotson for market-gardening purposes, nor did she know that he was. engaging in the work.

To his Honour, witness said she was unaware that herj husband was going to the section on the day of the accident. As far as she knew, he had never been there before.

In reply to Mr. Jackson, witness said that she had not given her husband any authority to use the lorryj he just took "French leave."

No further evidence was called for the defence.

Mr. Jackson argued that the use of the lorry by Wilton to visit the land was for the plaintiff's benefit, and. therefore, she was liable.

His Honour held that there was no liability on the, defendant, since, in his view, Wilton was not doing anything in connection with the defendant's business at the time of the accident. • "

■ Judgment was entered for the defendant, with costs.