ACTION FOR DAMAGES

Evening Star, Issue 21634, 1 February 1934, Page 3

ACTION FOR DAMAGES

COLLISION BETWEEN LORRY AND CYCLE JUDGMENT FOR PLAINTIFF . In the Supreme Court- yesterday His Honour Mr Justice Kennedy gave iris reserved judgment in the case in which, on December 8, legal argument was heard in respect to the jury’s verdict'in the case m which damages were claimed by- Robert Larkins from the Love Construction Company Ltd. for injuries arising out of a collision between a motor cycle ridden by the plaintiff and a, lorry driven, by a servant of the defendant.' The jury gave a verdict- for plaintiff for £1.271 lls. Mr A. C. Hanlon, ’ K.C., with him Mr J. M. Paterson, appeared for the defendant at the original hearing and moved for judgment • on the ground that the verdict of the jury was against the weight .of ; evidence, and that the finding of the jury was defective and inconsistent. , , Mr J. B. Thomson appeared for the plaintiff, for whom he asked for judgment. After reviewing the case'at. length His Honour gave ■ judgment for the plaintiff. ISSUES FOR JURY. Ip delivering judgment His Honour said that the issues put to the jury and the answers returned were as follow ; (1) Was the driver of the defendant’s lorry guilty of negligence in any, and, if so, in which of the following respects?:— (a) In failing to drive the said motor lorry to the left.of the centre line of the road , while approaching and turning the corner? Answer: Yes.; (b) In failing to keep the said motor lorry as near as practicable to its left edge of the road while approaching and turning 'the said corner ? Answer: Yes. (c) In failing to give warning or notice to the plaintiff of his approach by actuating his horn or other Warning device in ; a , reasonably sufficient manner? Answer: Mb. (d) In driving his-motor vehicle at what in the circumstances was an excessive speed while approaching the said coiner? Answer: No. (c) In failing to kfeep a proper lookout while approaching and rounding the said' corner? Answer: As far as possible from his position. ; (2) Was the plaintiff guilty of negligence in any, and, if so, in which of the following respects?;— (a) In tailing to keep or ride his motor cycle as near as practicable to his left of the centre line of the road while approaching and rounding the said corner? Answer: Yes. (b) In failing to give any or sufficient warning of the approach of his said motor cycle by actuating his horn or other warning device in a reasonably sufficient manner? Answer: No. (e) In driving his'.motor cycle at an excessive and improper speed while approaching and rounding the, said corner? Answer: No. (d) In failing to keep a proper lookout while approaching and rounding the corner? Answer; No. (e) In failing, to apply the brakes of his said motor cycle or to stop in sufficient time to avoid .colliding with the said motor lorry? Answer: Yes. (f) In failing to .exercise due care and skill t in the management of his said motor cycle? Answer': No. (J) If both the driver of the defendant’s lorry and the . plaintiff were negligent whose negligence was the real cause of the collision? Answer: The defendants. .. The damages were assessed at £421 lls (special damages) and general damages amounting to £BSO. HIS HONOUR'S JUDGMENT. “The negligence referred to in issues 1 and 2- was in my direction correlated with the _ collision, and the jury were directed, in case, they found negligence not so correlated, to treat it for the purpose of the answer, as non-existent,” stated His' Honour. “ The plaintiff’s notion for judgment

is based upon Hie findings of the jury, and particularly upon the answer given to the third issue. Alternatively, however, his counsel has submitted that issue 3 is the governing issue, and that issue 2, or, part of it, should be disregarded, if inconsistent with the answer to issue 3 as being unsupported by evidence. Counsel for the defendant submitted that in view of the answers to. issue 2, the only answer to issue 3 which could he returned was a different one to that given by the jury, it being claimed that, upon the other answers, issue 3 could not be answered ns it was. In considering the defendant s motion for judgment, it must be remembered that it is not for the court to determine the facts, because that is the function of the jury, and that the finding 3 may be disregarded only if there is no reasonable evidence to support it. or if, from the undisputed facts, there is only one inference which could properly be drawn, and the inference drawn was not that inference. “ There can he no question as to the. answers to issues 1 (a) and (b). There is reasonable evidence to support these answers. Issues 2 (a) and 2 (e) were found against the plaintiff. No complaint is made as to these answers by the defendant, hut, in considering their consistency with the answer to the third issue, it might well he made a question for the plaintiff whether there was evidence to support the answer to issue 2 (a). It will he observed that this issue is different in terms from that which frequently arises, in that the question is not whether the plaintiff kept as far as practicable to the left of the centre line, but whether or not the plaintiff kept as hear as practicable to the left of the centre lino. It will be observed that there is a difference between the issue asked and the issue which frequently arises. The answer to issue 2 (e) is that on which defendant rests his submission. The issue is in alternative terms, following the pleadings in this respect. It is impossible to say whether the failure was a mere failure to apply the brakes or a failure to stop in sufficient time to avoid colliding with the motor lorry, Init I think it will be immaterial to determine which was the negligent omission - because, in the circumstances, the motor cycle-'could be stopped only by applying the brakes, and to complain of the non-application of the brakes, unless the application could operate to stop the motor cycle in sufficient time to avoid the lorry, would lie to complain of inoperative negligence. The view of the.jury, as evidenced by their answer, would seem to be that, even when confronted with the meter lorry in his course, it was the cyclist’s duty to apply his brakes ami to stop. But there is no inconsistency between such a view and the view that, after the issue had passed from the plaintiff, it still remained with the defendant who could, by the appropriate movement of his car, sufficiently clear the course to prevent the negligent plaintiff from suffering the consequences of an initial failure to brake. The negligence found in answer to question 2 fe) was spent before the point of collision, and 1 think a jury might have found that the negligence was spent almost but not quite immediately after the motor lorry was observed. “ Broadly speaking, I think a jury might have taken the view that the plaintiff should, almost immediately or shortly after lie saw the lorry, have braked irrespective of the course of the defendant, but that unless he at once braked it would, as plaintiff’s evidence indicated, he too late; while the defendant, being in the track of the plaintiff and creating an emergency, should have endeavoured to get over to his own proper side and should have steered his lorry, accelerating if necessary, to its proper side - .” _ His Honour said he could not affirm, then, that the only view of the facts which the jury could take Mould be other than that taken. If the view mentioned were taken, then, notwithstanding the answer to issue 2, the answer given by the jury to issue 3 was open, and it was not excluded, as the defendant must claim, by the answer already given to issue 2. The jury’s answer must he' within the ambit of evidence. and the evidence did admit of such an answer. The extreme visibility was shown at being 74ft, or perhaps a somewhat less distance, for the motor lorry. The motor lorry driver gave an estimate of 40ft, but he deposed to keeping a proper look-ont, and the jury might well conclude that the distance at which'the motor cycle came into observation was greater than the 30tt or 40ft estimated by the driver. He had. by driving on his wrong side, diminished the visibility. The speeds of the motor cycle and the motor lorry were deposed to within limits. , ~ , . His Honour said that he thought that the jury might then nnd that effectively to pull up the cycle before it reached the point of impact required very early application of the brakes, and that, if the brakes were not applied, say, within 14ft or 20ft, or at any rate within the first second, the cycle would come into collision with the lorry if the motor lorry did not get on to its proper side. It was open to the motor lorry driver to stop, had it clearly appeared that the cyclist was stopping, but the jury may have taken the view that, failing that very shortly appearing, the only reasonable course, and the course an ordinary prudent driver Would have taken, would be, not to stop the lorry so that it substantially closed the road, but to proceed more to the proper side meeting the cyclist, and by that further movement clearing the course so that the cyclist could go through without risk. .There was, not much time, but there clearly was sufficient time available for such a manoeuvre. It was a course, he thought, which might well he taken by a' person who had by driving on his wrong side created a position of danger and one which might perhaps ordinarily be taken by vehicles meeting others on narrow roads. It followed, then, upon this view, that the defendant could not succeed upon his motion for judgment, His Honour proceeded. The considerations above discussed disposed also of the motion for a new trial. He did not think it might, be said that a jury, viewing the whole of the evidence reasonably, could not properly, after returning its answers to issues 1 and 2, conclude that the defendant, notwithstanding the plaintiff’s _ negligence, could have avoided the accident by the exercise of reasonable care. It followed that the plaintiff was entitled to judg-. ment, and that the motion for a new trial was dismissed, with £lO 10s costs to bo paid to the plaintiff. •The plaintiff would accordingly have judgment against the defendant for £1,271 .lls, with costs according to scale upon that amount, and with witnesses’ expenses and disbursements to be fixed by the registrar. His Honour certified for £lO 10s for the second day.