DAMAGES AWARDED

Greymouth Evening Star, 23 June 1937, Page 4

DAMAGES AWARDED

SEQUEL TO LORRY SMASH. A further sequel to the collision between two lorries, which occurred on the Paroa Road on the evening of February 11, took place in the Magistrate’s Court, Greymouth, yesterday, when Mr. Raymond Ferner, S.M., heard a claim for £lB3/17/5 damages, made by Alfred Buckingham Leeming, contractor, of Kumara (Mr. A. Brown, of Christchurch), against A. J. Fraser, contractor, of Greymouth (Mr. W. D. Taylor). The claim was made up as follows: Repairs to lorry, £63/17/5; depreciation, £2O; loss of profit owing to loss of use of lorry for 20 daiys, £lOO. It was alleged in the statement of claim that the collision was due to the negligence of the defendant, in that he failed to keep a proper lookout, drove at an excessive speed, failed to keep to his correct side of the road, failed to stop in time to avoid an accident, attempted to pass a motor vehicle when the road ahead was not clear, and otherwise negligently and unskilfully managed and controlled his motor-lorry. The circumstances of the case were published in the “Star” last Saturday. James Charles Fraser appeared in the Magistrate’s Court on Friday, and was lined £2 on a charge of reckless driving.

In, the course of his address outlining the circumstances, to-day, Mr. Brown said that Leeming was driving an International lorry, towards Greymouth, on his correct side. The road was straight, and had a bitumen surface 18 feet wide, while another two feet on each side of the road could be used, making a total -width of 22 feet. A Ford lorry was parked close to the bank, facing the direction from which Leeming was travelling and the Ford occupied at least 6 feet of the road width. Fraser was driving a lorry from the direction of Greymouth, and plaintiff alleged that the defendant was driving at a high speed. Leeming applied his brakes to some extent when he saw Fraser coming, aird he had practically reached a standstill when his lorry was run into by that driven by Fraser. It was alleged that the accident was caused purely and simply through the negligence of Fraser, who went to his incorrect side of the road, to pass the parked lorry. He saw the narrow opening between the parked lorry and that of Leeming, and tried to “barge through.” Evidence was given by Alfred Buckingham Leeming who occupied the wit-ness-box until the luncheon adjournment.

It was arranged, that the S.M. should inspect the scene of the accident, and this was done before the hearing was resumed. Evidence for plaintiff was also given by Charles Prestidge, who was in the lorry with Leeming; and Israel H. Bal kind, who reached the scene of the accident shortly after it occurred. Mr. Taylor said that Fraser lud already been found guilty of negligence, and the question now before the Court was whether or not there was contributory negligence on the pan of Leeming. He submitted that the evidence of Leeming was unreliable, that he had not been keeping a proper look-out, and that he could have avoided the accident. It ought to have been obvious to Leeming that there was not room for three trucks to pass. If Fraser was negligent, then Learning should also be found guilty of negligence. Mr. Taylor also objected to the claim of £lOO for the loss of use of the lorry, which he described as too high. He did not contest the claims for repairs and depreciation. Evidence for the defence was given by James Charles Fraser, the driver of the lorry; Constable Hammond, who took measurements after the accident; and Walter Lionel Lawry, insurance adjuster, of Christchurch. MAGISTRATE’S DECISION

The S.M. said that the Court was greatly indebted to counsel for the care with which the evidence had been adduced in the case. It was admitted that Fraser was negligent. It remained, therefore, to find whether plaintiff was guilty of contributory negligence, and if he was, who, then, had the last opportunity of avoiding the accident. To ascertain whether or not plaintiff was guilty of negligence might, perhaps, involve some inquiry into what was his duty in the circumstances. It was common ground that both plantiff and defendant saw the parked lorry, and saw each other while they were a considerable distance back from the point of impact. Defendant was travelling near the middle of the road, as he said himself that his right-hand tyres were running on the crown of the road. Plaintiff had, for some time before the accident, apparently been running on his left-hand side of the road. It was certain, at any rate that 50 feet back from the point of impact, he was well over to his left-hand side of the road. One of plaintiff’s statutory obligations was therefore discharged, as he was on his correct side of the road. The point next arose, at what time would a reasonable man, a careful driver, have realised that a dangerous situation was developing, and how far was he entitled to rely upon compliance by defendant with his statutory obligations? The S.M. said that he was not very much inclined to accept the evidence of witnesses, six months after the event, as to the precise distance at which they became aware of the danger. Such evidence was speculative in the extreme after such a lapse of time; in any case, it was to be distrusted in circumstances such as these, where the parties had a considerable opportunity of assessing the situation that was developing. This was not a ease of the development of a sudden emergency. He thought plaintiff was entitled to assume that defendant saw him, and to assume that defendant would not turn out into his path. But there must have come a time at which plaintiff was no longer entitled to rest upon that assumption. He was not entitled to “barge on” in pursuance of bis rights. On a broad view of the evidence said Mr. Ferner, he did not think it could be said that plaintiff did so . He evidently, according io the skid marks, steadied up, and, al a nearer stage to the impact, applied his brakes with sufficient pressure to cause his lorry to veer slightly towards the centre of the road. That might have contributed towards defendant not being able to get through, but the S.M. said he did not think, in the circumstances, that it wap against plain tiff. Apparently, his nearside wheel was in soft sand, and his grip on the bitumen was .stronger (han that on the sand, with the result that his lorry swung in. That was a consequence nf his having to brake. It could not be found, therefore, that Looming was guilty of any breach of bis dutv, or that be was negligent, but even if the S.M. was so to find—and he did not : find that Leeming was guilty of negli- 1

gence—he still thought that defendant had as late an opportunity o£ avoiding the accident as plaintiff had. It was not denied that plaintiff had stopped, or had practically come to a stop, when he arrived opposite the door of the parked lorry. If • defendant had similarly braked, there would have been no accident, or, at the worst, only a slight collision. Defendant admitted to travelling at, 20 miles per hour. Mr. Ferner said he thought that Deeming was doing a greater rate of speed than he admitted, when he commenced to brake, but it must be remembered that Leeming’s speed as he approached the point of impact was progressively reducing, and that immediately prior to the impact, he was almost stopped. Referring to the time factor, the S.M. said that it’ both became aware of the imminence of an accident at the same moment, who ran the greater distance? Was there any reason to prevent defendant assessing the risk of a collision, any less efficiently than Deeming did? He did not think there was. It was not necessary for him to dwell on the aspect of Fraser’s negligence, as that was admitted. To his mind, added Mr. Ferner, the evidence showed that de-

fondant’s attitude was too negligent, that he was not sufficiently alert, and that, right up to the time of impact, he did not brake. Defendant had the last opportunity of avoiding the accident, and, in the circumstances, there must be judgment for plaintiff. The claim for repairs was not contested as to the amount, nor was the claim for depreciation. He was prepared to allow £BO for loss of profit. Judgment would therefore be entered for plaintiff for £163/17/5, with Court costs £3 13/-, witnesses’ expenses £l/4/-, and solicitor’s fee £lO/3/-.