MOTION DISMISSED

Evening Post, Volume CXXVIII, Issue 71, 21 September 1939, Page 13

MOTION DISMISSED

ARMY LORRY GASE

MOTOR-CYCLIST'S DAMAGES

The awarding of £1000 general damages and £337 17s 6d special damages by a jury, of twelve in the Supreme, Court to Jack Francis Welsford, a Post and Telegraph linesman, who was injured when the motor-cycle he was riding was struck by an Army lorry on the main highway north of Johnsonville, on October 15 last, was upheld today by Mr. Justice Northcroft, who dismissed a motion brought on behalf of the Crown for a non-suit, judgment for the Crown, or -a new trial.

Mr. W. Perry, with him Mr. R. E. Pope, appeared for the Crown, and Mr. O. C. Mazengarb, with him Mr. H. F. Bollard, for the suppliant.

Mr. Perry said that the suppliant must prove that the skid of the lorry was due to the negligence of the driver, or that the driver was negligent in failing to correct the consequences of the skid so as to prevent the lorry from reaching a position on its incorrect side of the road. He submitted that the respondent (the Crown) was entitled to judgment on the answers to the submissions put to the jury. It was common ground that the lorry had skidded. The answers to. two of the issues negatived any evidence of negligence prior to the- skid, and counsel contended that there was no evidence whatever that the skid itself was due to the negligence of the driver. The answers to three other issues made the driver guilty of negligence after the lorry skidded through no fault of his.. ■

His Honour said he would have been happier, in view of the injuries suffered by the innocent victim of the accident, if the Crown had let the case rest with the verdict of the jury. In view of the rider of the jury—that the law seemed, to be inequitable in that an injured.party in an accident brought about by circumstances entirely beyond his control had no right of recovery in the absence of negligence being proved against the other party-^-it would have added force to the rider if the Crown had exercised its indulgence and let the matter rest.

Mr. Perry said the Crown itself was not consulted by the insurance pool as to whether the application should go forward. >

. Mr. Mazengarb said the case had to be decided on the fact of whether there had been any evidence of negligence against the lorry driver at the close of the Crown's case, or whether the Crown had discharged the onus of proving that the accident had been inevitable. It was submitted that v the. onus had not been discharged.

His Honour said that if the case had rested entirely on the jury's finding that the driver had failed to take reasonable precautions to retain. control of the lorry he might have been inclined to grant the motion; but in view of the findings that the driver improperly handled the lorry in an endeavour to get back to the bitumen and failed to steer clear of the motorcyclist, he could not, sitting as a Judge reviewing a jury's verdict, disturb that

verdict.