MOTOR-CAR ACCIDENT

Evening Post, Volume CXVIII, Issue 50, 28 August 1934, Page 11

MOTOR-CAR ACCIDENT

CLAIM FOR DAMAGES

REMOVED TO FULL COURT

Tho hearing of a claim for damages arising out of a motor-car accident was continued in the .Supremo Court yesterday afternoon and today. The plaintiff was Martha Lillian Shirley, wife of Charles Herbert Shirley, Harbour Board employee, Lower Hutt, and the defendants were Alexander Malcolm Macdougall, grocer's assistant, and Kathleen Rebecca Macdougall, widow.

The plaintiff alleged that on March il last the defendant Alexander M. Macdougall contracted with the plaintiff, to carry in his motor-car the plaintiff and her little daughter from Lower Hutt to Hamilton for tho sum of &1. There were two other passengers in the car, Mr. and Mrs. R. Arrowsmith. The plaintiff stated that on March 11, on the road between To Awaniutu and Hamilton, tho driver so negligently and unskilfully controlled tho car that it ran off the road, and went over a bank into a ditch. The plaintiff suffered severe injuries, for which sho claimed £120 special damages and £350 general damages.

In the statement of defence- iUwas asserted that any injuries sustained by tho plaintiff were duo to circumstances beyond the defendant's control, and in respect of which lie was under no liability to the plaintiff.

Mr. Justice Ostler was on the Bench.

Mr. R. H. Boys appeared for tho plaintiff, and Mr. TV. E. Leicester for the defendants.

In opening the case for tho defend ants, Mr. Leicester said that tho evidence would show that at. tho place where the accident occurred the road had a high crown, on which there was a good deal of loose shingle. This caused the car to skid, and in order to prevent further skidding tho defend aiit turned tho car towards a grass border of tho road. The culvert on the road was obscured by some growth of vegetation, and the driver, when he did see the culvert, accelerated tho speed in order to clear it. Tho driver and Mr. .and Mrs. Arrowsmith would give evidence that Macdougall was not asleep or dozing when the accident occurred. Tho car had been overhauled prior to starting on the journey, and must be presumed to have been in good order. It was submitted that the car was not plying for hire. It had been held in other cases that unless there had been some soliciting it could not bo said that a car had been plying for hire. The second defendant, Mrs. Kathleen E. Macdougall, counsel continued, said that she bought the car some five years ago. She paid £40 for the car, which was a second-hand car. So far as she knew the car had never been used for hire. The arrangement was that the Airowsmiths wore to psiy for tho benzine. The ear was repaired before leaving on the journe}'. THE EVIDENCE. Ethel Arrowsmith, of Petone, wife of Bichard Arrowsmith, said she wished to bring her aged mother down from Auckland, and thought her mother would prefer to come down in a motorcar. It was arranged with Mr. Macdougall that she- and-her husband should pay for the petrol. She paid Maedougall £.4 15s, which was the estimate of tho cost of the petrol. Witness denied that tho driver was asleep when the accident occurred. Thero was a high crown, to the- road, and thero was loose metal there. She did not remember Mrs. Shirley complaining aborit Macdougall's driving. At tho time of the accident Macdougall said the car had skidded. Eiehard Arrowsmith said that the £4 los paid to Mr. Macdougall was a rough estimate of tho cost of tho benzine. The accident occurrod about the centre of a dip on the road. The car just cleared the culvert, which was covered with blackberries and was not visible from the road. He did not hear tho plaintiff complain about Maedougall's driving— that was, not before the accident occurred. In the course of his evidence the defendant Alexander Malcolm Macdougall said that the motor-car was never used for hire. Ho did not hear the plaintiff complain of his driving, nor did. he hear the plaintiff say ho was asleep at the time of the accident. Tho ear back-skidded and witness tried to straighten it; the front wheel, struck ilie culvert. Ho could not at first see tho culvert because of the high grass and blackberries. His Honour said he hold as proved that the accident was caused by the driver, after a long drive, dozing for a moment at the wheel and losing control of the car. j After hearing legal argument his Honour made an order removing the case to the Full Court for argument, at the sessions commencing on September 17, on two questions, (1) as to whether judgment can be entered on the facts against Mrs. Macdougall as owner of the- car, and (2) as to whether there is any liability to indemnify either Mrs. Maedougall or her son under the Third Party Risks Act, 1928. His Honour fixed the damages at £266, and judgment against Alexander M. Macdougall was ordered to stand over in the moantime.