VERDICT FOR £2,717 STANDS

Evening Star, Issue 23444, 8 December 1939, Page 6

VERDICT FOR £2,717 STANDS

COURT DISMISSES APPEAL CHIEF JUSTICE ON DIFFICULT CASE [Pee United Press Association.] WELLINGTON, December 8. The Court of Appeal, by a majority of four judges to one, this morning dismissed the appeal in the Northern Publishing Company v. White, heard from September 19 to 26, holding that there was evidence before the court at the trial on which the jury’s verdict could be supported. The majority came to the conclusion that the operation of the bus service in question was not outside tho powers of the. company, but that tho question did not necessarily arise, as the substantial purpose of the journey on which White was killed was the delivery of the company’s papers. Furthermore, tho jury were entitled to find that the deceased (White) was not guilty of contributory negligence, or willingly incurred the risk of injury. Tho Chief Justice, Sir M. Myers, said: “That the present case is an exceedingly difficult one, is shown by the careful and exhaustive, but conflicting, judgments of Mr Justice Ostler and Mr Justice Smith. I have myself given the matter very anxious consideration, during which my opinion has fluctuated, J. have been much influenced by an. ineradicable impression that the deceased’s wife could not have. failed to know that there was something wrong with the condition of the brakes of the vehicle. I still think so', but I have come to the conclusion that as between him and the appellant (as his employer, that dobs not necessarily connote negligence on his part, or establish the case as one of volenti non fit injuria. 1 think, on the whole, though the case is a very difficult one, and though I do not entirely agree with tho reasoning of the learned Trial Judge, that the verdict in favour of respondent can, and should be, upheld.” Dissenting, Mr Justice Ostler, whilst agreeing with the majority on the evidence of the company’s power to operate the bus service, held that on other questions the jury’s verdict was unreasonable, and could not be supported on the evidence called at the trial.

[The case arose from an accident on February 16, 1938, when Henry William White, of Mangouui, a service car driver, was injured at Waimate North. The bus he was driving collided with a clay bank, and he died a few days later, leaving a widow and two young children. In August, 1938, the widow instituted an action in the Supreme Court at Whangarei against tho owner of the bus, the Northern Publishing Company Ltd., alleging, amongst other matters, that to the knowledge of the company the brakes of the bus were in a defective and unsafe condition and did not comply with the_ transport licensing passenger regulations, 1936. The case came on for trial at Whangarei from March 3 to 10 last, and the jury found that -the bus was in an unsafe condition, that the company knew of that condition, and that the accident was caused by that condition. It awarded Mrs White and her children £2,717. Counsel for the Publishing Company then moved for an order nonsuiting the plaintiff or the entering of judgment for the company on many grounds, chief amongst which were that White himself was aware of thescondition of the bus and must be taken to have consented to the risk he ran in driving it; that the carrying on of a "bus service was beyond _ the powers given to the company by its memorandum of association, and, that being so, the company was not liable for tlie injuries caused by the operation of the bus service.' These contentions were all rejected by the Trial Judge, and judgment was entered in accordance with the jury’s verdict.]