RUNAWAY CAR

Evening Post, Volume CXIII, Issue 97, 26 April 1932, Page 11

RUNAWAY CAR

ACCIDENT RECALLED

APPEAL BY AN ENGINEER

• A mishap to a motor-car which went over a bank on Wellington terrace in October, 1930, was" recalled in the Supreme Court to-day when, before Mr. Justice.Blair, Henry Featherstou Toogooa, consulting engineer, of Wellington, appealedl from a decision of a Magistrate in giving judgment to Dominion Motors, Ltd., in an action heard in the Magistrate's Cburt in which he was the defendant.

According to a recital of the facts, on 14th October, 1930, Toogood was contemplating purchasing from Dominion Motors, Ltd., a motor-car and trading in to them his old car in part payment, of the new one. On that day a salesman from. Dominion Motors was given possession by Toogood of his old car at his residence on Wellington terrace for valuation purposes. Having had the car examined, the agent took it back to The Terrace the same day, parking it on the proper side of the road in. approximately the position from.-which he had taken it. He then went into Toogood's house to discuss with him the question of the purchase of a new ear. After he had been in the house about twenty minutes Toogood's son told them that some-' thing had .happened to the .car, and on going outside they found the car lying on its side down a bank on the opposite side of the road, and about a hundred away from, where it had been parked. The car was salvaged by Dominion Motors and subsequently Toogood agreed to buy a car for £450, Dominion Motors allowing him £70 for the damaged car. .• As to the balance of £380, Toogood informed Dominion Motors that his. insurance company had agreed to pay him £.100 to cover his loss on the old car, and he agreed to pay Dominion Motors £280 in cash and the balance, £100, as soon as he received a cheque j from <the-insurance company. The con- ! tract was signed, and on payment by Toogood of £280 delivery wasgiven of the new ear.

Later, in the Magistrate's Court, Dominion Motors claimed from Toogbod £8 10s for salvage, and £100, being the balance'due on. the new car. "Toogood counter-claimedj alleging that the salesman had been>negligent in the way tie parked the old' car, with- the result that it had run away/ He claimed £86 10s for damages to the car, £8 10s for salvage, £11 lEfs for damage to" fencing and a verandah) and £10.general damages, making a total of £116 15s. • ■ ' ■ ■ ' -:■ :■•'■•■ ..': ■:■■:■

The Magistrate held that the counterclaim was not established^ and gave judgment for Dominion Motors for the amount claimed. The appeal is from this decision. ' '. . : , - ~

Senior counsel for the appellant submitted that the Magistrate was- wrong in finding that negligence, against Dominion',Motor3 was -not proved. It was claimed that the Magistrate' did not' direct his mind to the. proper issues, and that he was wrong in.his view as to where the. onus of proof ..lay. "When the car was-returned to Mr. Tcogdod's houso after the trial spin,'it was submitted it was the salesman's duty to see that the car was securely parked so that it could not escape. For Dominion. Mot.ors to escape liability, counsel contended it was insufficient for them to bring purely negative evidence. •Dominion Motors must prove affirmatively that the car ran away through some force or intervention . againßt which the company's servant could not have guarded by taking reasonable precautions, and it was submitted that: in this case the evidence did not- show that the salesman.' took all reasonable precautions.1 '■ -'" "-;".. ■ Second counsel-for : the appellant dealt with what he termed'the "inferential finding "'of; the" Magistrate to tne effect that the•" course of negotiations entered into after the occurrence of the accident between Toogood. and Dominion Motors' representative was based on the assumption that Toogood waived or abandoned '■• any right of action he might have against Dominion Motors on. aeconnt of negligence bjr an employee. ' : .■■,.. .. The case is proceeding.". .'." ■ ; .