NEW TRIAL REFUSED

Evening Post, Volume CXX, Issue 148, 19 December 1935, Page 11

NEW TRIAL REFUSED

NAPIER ACCIDENT CASE

DAMAGES AGAINST PAPER AND SUB-EDITOR

An application for a new trial in a Napier motor-accident case in which a jury awarded Mrs. Clara Capper £512 11s 3d damages against the "Daily Telegraph" Co., Ltd., and Haywood Henry McDougall, sub-editor, was heard by Mr. Justice Smith yesterday.

Mr. H. B. Lusk, on behalf of the defendants, applied for a new trial on the grounds that the jury could not reasonably find for the plaintiff,-that there was no evidence on which they could find negligence on the part of Haywood Henry McDougall, and that the jury could not reasonably find that there had been no negligence on the part of the plaintiff's driver, William Capper, husband of the plaintiff.

The facts of the case were that Capper, on' June 22, was driving a motorcar belonging to his wife, Clara Capper, from the Napier races along George's Drive, Napier, in the direction of Napier South. At the intersection of George's Drive and Kennedy Road Extension the motor-car collided with that belonging to the "Daily Telegraph" Company, Limited, and driven by its sub-editor, Haywood Henry McDougall. .Both parties alleged. against the other that there had been a failure to keep a proper and adequate lookout, that each had been travelling at an excessive speed, and' had . failed to keep to his 'correct side of the road, and that both drivers had been guilty of other elements of negligence in the circumstances. As the result of the collision the plaintiff, Mrs. Capper, suffered from severe contusion of the chest, accompanied by ah effusion of fluid tothe left side of the chest. It was alleged at the trial that for some days her condition was so serious that her recovery was in doubt and that, although making good recovery, she still had pain over the ribs and limitation of chest movement.

After hearing argument yesterday, Mr. Justice Smith stated that there was ample evidence upon which the jury was justified in. finding negligence on the part of the defendant, Haywood Henry McDougall. The question as to whether there had been negligence on the'part ot William Capper in failing to observe the off-side rule gave him more difficulty, but after hearing the evidence analysed by his counsel he considered that the jury was entitled to come to the conclusion that prior to coming to the intersection Capper had taken an adequate look at the road on his right and, not seeing^ the defendant ..McDougall's motor-car there, had justification in proceeding over the intersection at 25 miles per hour and on his correct side of the road.

The application for a new trial was dismissed with £7 7s costs, and judgment entered for Mrs. Capper for £512 11s 3d. ..

Mr. W. E. Leicester'appeared for Mrs. Capper. .