CLAIM FOR DAMAGES

Evening Star, Issue 21709, 2 May 1934, Page 2

CLAIM FOR DAMAGES

£2,000 INVOLVED MERTON FARMERS' DEATH Before His Honour Mr Justice Kennedy in the Supreme Court yesterday afternoon further evidence was heard in connection with the case in which Jessie Rae Bray (widow of Joseph Francis Bray, of Merton) claimed from Norman Hamilton Gilmore £2,000 damages in connection with Joseph Bray’s death on the Dunedin-Waitati road on May 12, 1933. .Mr P. S. Anderson appeared for the plaintiff, and Mr A. N. Haggitt for the defendant. Opening the case for the defence, Mr Haggitt said that the questions the jury was asked to decide were whether the defendant was guilty of such negligence that it caused the death of Bray, whether the death of Bray was caused through his own negligence, or whether the accident did not result without negligence on the part of either party. The defendant denied negligence, and asserted that if there was any negligence at all that negligence was shown by Bray, and that that was the cause of the accident; or, in the alternative, that there was no negligence on the part of either party, and the happening was mere mischance. There was but one living witness of the accident, and that was the defendant. The defendant would tell the jury exactly what took place, and if the jury believed him they must find there was no negligence attributable to him. What occurred on the night in question was this: Defendant, who carried on a carrier’s business from Dunedin to Oamaru, left liis home at North-east Valley at twenty minutes to 6 p.m. He was accompanied by his two small children. Ordinarily, a man would not drive in a negligent manner when he was accompanied by his children. He had not stopped up to the time of the accident at 7 p.m., and he therefore took an hour and twentj; minutes to cover the twenty-three miles from the North-east Valley to the scene of the accident, or an average of seventeen miles an hour. The night was dark. The deceased, approaching the bend, would have had a view of 700yds, while, on the other hand, Gilmore could not, and did not, see Bray, as he could only see what was direotly in front of his lights. Gilmore saw Bray when he was only a few yards away. . Bray was then travelling on the middle of the road, and Gilmore had no fear of a collision at that point.' As a matter of fact, Gilmore actually passed the horse, and then he suddenly saw on his right-hand side the horse hit the side of the lorry. The lorry went on for a little distance, as Gilmore did not want the children to see what had happened. A traveller, Mr Richardson, who was first on the scene, went into Waikouaiti and brought out a policeman, who investigated the position. He looked on the road for marks of the lorry, and the horse, but there were none. It would be shown that on this particular night the deceased was in a state of great excitement. He had returned from Dunedin; his application for relief had been refused, and he was engaged at Lite time in removing cattle, so that the bailiff, who was in the house, ' would not get them. Norman Hamilton Gilmore, licensed lorry driver, said he had been running from Dunedin to Oamaru and return since December, 1931. When turning the corner where the accident happened his lights were shining ahead—that was, they were shining on the bank—and he had no visibility ahead of him. He was driving about the centre of the road. His first view of the horseman showed that the horse was cantering, and at that time he had no apprehension of a collision. Bray appeared then to be about two feet in from his proper side. The instant witness saw him he steered to the left to give the horseman further clearance. The front of the vehicle actually passed the horse. The next thing that witness saw was the horse up against the cab window, and at the same time he felt a jar or thud. He carried on until there was proper clearance for anyone coming along the road. He may have gone further than necessary because he wished to keep the children out of the way. His brakes were in good order. On examining the lorry he found that the right-hand drop-side had been split for three or four feet. It was this part of the lorry the horse had bit, and not

the front part. He thought the horse must have shied oh sighting the lorry. To Mr Anderson: Witness had had two accidents'on the north road, in addition to this one. He would not admit that having travelled over the road many times familiarity had made him careless. He was travelling at twentyfive miles or thirty miles an hour when approaching the bend. He would not admit he had cut the corner. To Mr Haggitt: If they had both kept their courses when witness firstsaw the horseman there would have been no accident. Alexander Reid, farmer, Waikouaiti, said that on the night of the accident Bray brought about thirty cattle and put them in one of witness’s paddocks. Bray was excited. He had told witness his application before the Mortgagors’ Relief Commission bad gone against him, and he itould lose his place. Witness had given evidence in support of Bray. To Mr Anderson; It was a little after 6 p.m. when witness saw Bray. Robert Ernest Richardson, electrician, who was first on the scene, said that the lights of a car approaching from the south would not show on an object coming from tbo north until the car bad straightened up. Witness tested Gilmore's brakes and found them in order. The hoariug was adjourned till this morning.