£553 DAMAGES

Grey River Argus, 13 June 1931, Page 2

£553 DAMAGES

CYCLE COLLISION i Plaintiff’s Claim Successful At the Supreme Court at Greymouth I yesterday, before His Honor, Mr Jus-1 tice Adams, a civil action for dam-1 ages, involving £1039 7s, was heard.; The plaintiff was Thomas Donnellan, horse trainer and poultry farmer, and! the defendant Frederick Robert Fairball, gardener, both of Greymouth. The action arose out of a collision between plaintiff, who was riding a push cycle' down Puketahi Street, and defendant,] who was riding a motor cycle from 5 Tainui Street into Puketahi Street on. the morning of March 18, 1930. The claim was for £B5O as general dam- ' ages, and £lB9 7s as special damages! (hospital, medical and nursing ex-1 expenses). Plaintiff was represented by Mr P. J. O’Regan, with him Mr W. J. Joyce J and Mr M. J. Gresson, with him Mr J. W. Hannan, represented defendant. The following jury was empanelled: Joseph Harper, George- Eder, Albert Henry McKane, Walter Dando, Ernest Christian Hansen, Ewart Vincent Arthur, Thomas Wilsofl., Percival Morley, Robert Hill, Arthur Basil Adams, Joseph James and Phil’-ip Ernest McDonald. Mr Wilson was chosen as foreman. Challenges were issued to four jurors by Mr Hannan, and to two by Mr Joyce. All witnesses were ordered out of Court, on the application of Mr Gresson. Mr O’Regan detailed plaintiff’s ease. He said the claim for damages was for personal injuries, arising out of an accident in Puketahi Street. Plaintiff was riding a cycle down Puketahi Street and defendant, who was coming down Tainui Street, cut the corner into Puketahi Street, and got on to the wrong side and then crossed over the road, knocking plaintiff off his cycle. Plaintiff had been fairly severely knocked about. The law depended °n the facts of the case, and plaintiff had to prove his case, which, he thought, would be done. If the accident was not the fault of either party there was no claim. Defendant’s duty was to take reasonable care and due regard for the rights of others. The defence would submit a plea of contributory negligence, but, even in that case, it did not dispose of the claim. He hoped to satisfy the jury that j there was no negligence on the part of the plaintiff. Even if plaintiff had gone this way or that way after I defendant had come along on his I wrong side of the road, that in itself was not contributory negligence. Mr O’Regan then called evidence. , H. S. Nightingale, licensed surveyIgt, said he prepared the plan of Puketahi and Tainui Streets produced, covering the scene of tlh'e collision. ' To Mr Gresson: The width of Puketahi iSlrcet f.om footpath to footpath jwa? 161't sins. I The plaintiff,. Thomas Donnellan. 1 stated he was a horse trainer and poultry farmer, living at 48 Alexander ; Street-. Hol wa<s a married man and had lived there for 13 years. On j March, 18th, 1930*,, he left his home about 8 o’clock to go to Omoto 1° ' trai n horses. He came down PuketaW street on a cycle, on his correct side, 1 and when half way down the street he noticed defendant coming around the Tainui. Street corner into Puketahi Street on the sa,me side of the road as witness wa» on. Witness was 10 feet out from the kerbing and Fairhall cut in between witness and the footpath. If defendant- had gone the right way, hd would have turned the corner on the other side qf the roadTh« rate he thought Fairhall wa s going at was 40 miles an Ihour. As soon as witness saw defendant, witness i kept going a s he thought defendant was looming up inside him. Defendant then came straight across the road a(ndl hit the front) wheel of witness’s knocking him. five- or six feet across the road towards Sunbye’s He was picked up by a man named Heffernan. The cycle was five or six feet further across the road and llib saw Fairhall go over near the telegraph pole on. the other side of the road. He did not think hie had gone more than from 4 to .5 feet from, the time he saw Fairhall until he wasi struck. The only two he saw in th'e vicinity of the accident were Heff-etrnaiii and Greaney. Defendant did not sound a horn. The brakes on witness’s cycle were quite good. Witness would not be going more than 5 or 6 miles an hour. Witness was keeping a straight course along .Puketahi Street about 10 feet off the footpath on hisi cprreet side. He had since met Fairhall and the latter said, he was very sorry the accident had happened and wanted witness to have nothing against him. Fairha.ll admitted he had cut the corner.

Mr Jo-yeel; What else did he say? H e said it would not test him any thing, as t?hle insurance company would pay.

Mr Gresso n objected to the last statement of witness that the insurance company would pay. He said that the sole object of Mr Joyce’s question was to elicit the fact that the (insurance coinpany would pay the

amount. Such a question was grossly improper.

| His Honor said he quite agreed with , Mr Gresson, stating it had been held that such questions were sufficient cause for the discharge of a jury, and j the ordering of a new trial. I M r Gresson said he did not propose to ask His Honor to discharge the I jury, but would ask His Honor later ' to have something to say to the jury on the point. Mr Joyce said he did not know Donnellan would make the statement about the insurance company. Witness, continuing, said he had 'tra/ined (horses for 16 or 17 years. He* I was getting a good profit out of the horses and. the- poultry, £3/5/- for the former 1 , and £3/12/- weekly fo r the

latter. lli s brother-in-law had since J taken over the Korses. The poultry farm was now not a payable proposition. as there wap nobody to look after it. Ho had not done any work ‘ since the accident. He had incurred J Hospital expenses fo r wHiich receipts were produced. To Mr Gresson; He wa s travelling 10 feet out from the footpath. Where he wa 3 riding it was bitumened over and the surface may have been broken since. Witness was still about JO | feet away from, the footpiath when | Fairhall struck the front wheel of the bicycle. He was 15 or 16 feet from 'the left ’hand keirbing when he was picked up. Fairhall wa s on his wrong I side. He would still have something 'to complain of if it was shown that the aciedent took place on Fairhall’s correct side of the road. i Mr Gresson said he had witnesses'. I who picked witness up that would swear that- tlhje accident wa s on Fairhajll’s correct side. I Witness: They are your witnesses. |

I Witness, continuing, said the brakes were in order when h'C” rode the cycle, ; [which was of the fixed wheel type. (From when he saw Fairhall until the accident it would only be a matter ot about half a second. Witness did not know where Fairhlall’s motor cyede had finished up. Fair- | hall in witness’s opinion did I not know witness was there and he would still be doing the same j mileage when h-ei hit witness. Wit- • ness was claiming £5O for damages and the remainder for expenses. He had claimed £25 in May, 1930, but sdncei the|n had found fit to extend his claim. He had not been able to ’do any work since. Thie partnership with his brother-in-latw had been dissolved about six months prior to the accident. He* attended race meting* and fh-om the last one he h J ffd to bd carried homo in the ambulance. He 'wais unable to attend to the fowls. jHifi wife had been an invalid for four ■ yearsi.

I To Mr Joyce: He had been authorised to go to any amusement by Dr. ' Baxter.

| Dr. H. S. Ray, medical practition ef, said he had attended the patient off and on since the accident. He first saw* Donnella n a,t his home on March 18th, 1930. at about 10 o’clock, the morning of the accident. Donnel'Tan was in. bocl and. complained of a pain on the left Sa del of his chest. On exiamination he showed a. tenderness of tlhic seventh and eighth rib near <he heart. He 1 was suffering from shock, and more so than one would | expect in that kind of accident. He 'considered Donnellan had a severe [bruising of the chesjt wall and strapped his chest. In aproximately two months his chest condition was alright. He then complained of severe pains in the heart region. For about i three months he continued to be most unusually w<?|ak and that condition had continued up to

the present time. Tie had attended him during the past twelve months and plaintiff had complained of great weakness and was easily fatigued. On occasions he fell into tramce-like states which left him considerably weak. He -had complained of pains over the heart and shortness of breath on -exertion. The most severe subjective symptoms had been ot a gastro intestinal nature. He had indigestion frequently, and also ejritraordinarily severe i attacks of diarrhoea. He had ( examined. Donnellan >on many occasions and had never been able to find any organic, disease. The history of his condition and his pros/ent appearance was very typical of a state called an anxiety state. His condition was similar to shell shock afs in war and could be brought on by shock. Th© symptoms were real and the paticjnt suffered acute distress both mentally and physically. In the present Icfifle he had no doubt the shock of the ae.cidentc had brought on DonInellan’s present condition. In such calseg it was generally conceded that a recovery could be effected and it wa s usual for a person so affected to go to ai special institution, and m Donnellan\ easel he considered it necessary. Judging by the severity of the case it should; take six months for him to recover under the special treatment. Thei weekly fee of £3/3/set outh in the claim for treatment at Hamner was not ovor the set fee. Witness could remember Donnellan having six fitsi oif a trainqe like nature.

| To Mr Gresson: Donnc3lan’ s condi tion. was caused by nerves. ■ Mr Gresson: In May last if Don nellan haid been paid £25 would he be welill now?

I Witness sai'd he could not say. It would bp about) that time the symptoms {had fThq anxiety statel was' a form of neurasthenia. One would expect tha.t from an ordinary fall from a bicycle, a normal person .would be recovered in two months.

| Dr. J. F. 0. Moore, Superintendent Grey Hospital, said he had attended Donnellan on occasion® as an outpatient and as ajn inpatiolnt. He first saw Donnellan in May, 1930, when he was suffering from a pain in the left side df his chest. I A physical dxiamination of his lungs flhiowdd minute evidence of old injury, not of a serious nature. He agreed ‘with Dr. Ray’s evidence. Donnellan i had various ne*rvou s and bodily dis- | orders. The trance-like conditions were a follow-on of the acident. <St. [Mary’s Hospital, a special institution at Hannier, wa s the most, suitable (place, where) he considered he would be recovered in six months.

To Mr ’Glresson: Witness could not Isay what the cause was, but it might be one of worrying about getting well He would expect a normal mau would get well in two months.

Patrick Heffernan, labourer, said t that on March 18th, 1930, the morning i of the aciedent, he was waiting for a i bus in Tainui Street. He did not see c the incident, but heard a cry. t He came round the ciorner and saw j t Donnellan lying on the road 15 or 16 feet from the foofpath on Dennehy’s.i side. The bicycle was about six fet}t < away from Donnellan, the front w<heelil being damaged. Withes? went over |} and lifted Donnellan on to hi s feet and ' ] a man named Murray then came along. | Donellan staid he was alright then, j

'Fairhall’s motor cycle was against the kerbing on the opposite side of the road in about a direct line with Don.' nellan.

J To Mr Gresson: He would say it was ridiculous for Mr Murray to say the accident, occurred on the opposite sidiei of the road.

David Thomas Greaney, cycle mechanici, said he lived i n Puketa'hj Street. He saw the accident. He was near Sunbye l ’s on the coirner and walking. Mr Donnellan was coming down Puketahi St., on his correct side. Fairhall was sepen feet ajway from, the footpath at the corneY. He thought Donnellan would be aibout nine feet off the footpath. Mr Fairihn.ll had cut the comer into Puketahi Street and was inside Donnellan hitting him on the left hand side. Donnellan was going very slow and Fairhan was traveling from 20 to 25 miles per hour. The collision took place on Donnellan’ s side (of the road. He saw Mr Donnellan

get up and when he collopsed soon after a good crowd had gathered. The front "wheel of the cycle wan broken and thd forks and frame were twisted. The 'cycle was in Tur'till’s shop for repairs for a fortnight before the accused and Donenllan had given orders for them to overhaul it iaud fix it where necessary. The brakes *on the cycle were alright when they i left/ the shop prior to the accident.

To' Mr Gresson: The brakes were defective after the accident. He had had a conversation with Fairhall the dayt of thei accident but could not remember about itb He wasaure it was not. about who was responsible for the accident. He did not say that Donnellan must haye lost head to- go to side of the read. at Donnellan’s house at- dinner 'time on the day of the accident, to see how he was getting on. Ho did not go inside. He saw Fairhall the nepqt day and did not tell him tfhi£t he (witness) did hot think Donnellan I had lost his head. From where the accident happened the motor cyclo went across to the opposite side of the road against the kerbing. When he first saw tlhie- motor cyclo it was on an angle turning into Puketahi Street. It then .-.traigh toned up and came on the wrong side and then cut across in front of Donnellan. There would have been no accident in his opinion if Donnellan and Fairhall had each gone on in a; straight line-. Fairhall and Donnellan must have had each' j othjea* in view for about four seconds before the impact. i To Mr O’Regan: He had been asked by Donnellan to have hi s cycle taken to be repaired after the accident.

This concluded the cia.se for the plaintiff.

At 12.45 Mr Gresson asked that the Court adjourn to allow the jury to view the scene of the accident in order that they might be quite clear on the evidence in. the afternoon.

THE DEFENCE. Mr Gresson said the defence admitted negligence in cutting the corner. Defendant would say that he came along Tainui Street, intending to go into Mr Dennehy’s place. As he approached Puketahi Street he heard another motor cycle coming up behind him, and he decided to slow down and allow it to pass 1 . He had then cut the corner, which he frankly admitted. What the jury had to decide was whether the co-lision took place On the plaintiff’s correct side or defendant’s coirect side. The defence would say that the accident did take place on Fairhall’s correct side and, if so, they would nut be liable. The defence would say that defendant wobbled about when defendant approached him. and the evidence would, therefore, be directly in conflict.

| Dr H. D. Hayes, Medical PractiI tioner, Hokitika, in charge of the Westland Mental Hospital, stated that I at defendant ’s request he made an exI amination of plaintiff. who suffered I from traumatic neurasthenia, and his I condition was a mental one. The I settlement of the accident was a necessary preliminary to his recovery. Ho would recover with appropriate treatment. He agreed with the other doctors that plaintiff should go to Hannier, i n which ease he would be cured in six months. Even if plaintiff ’s acItion had been settled in May, 1930, | his mental condition may remain if he , was not satisfied with the settlement. [ There was no danger to life at all in plaintiff’s case. To Mr O’Regan: The neurasthenia I was a result of the injury. <_ i The defendant. Frederick Robert Fairhall, said he was riding a motor cycle on the date of the accident. He | had had a motor cycle for 12 years. IHe was riding along Tainui Street, | approaching Puketahi Street. He was not coming fast, and looked around | and saw a man named Les Hughes! .coming behind, and he then slowed down, as he saw no opportunity to get , around the corner, and he signalled to 'Hughes to get past He then turned' . into Puketahi Street on his wrong side and saw Donnella n a chain away. As | soon as he got into Puketahi Street he aimed at once to get on to his correct 1 side, and he had got across to his cor-j rent side. He saw the plaintiff coming [’down the hill, and he seemed to be alI right, and he then seemed to lose his i head and did not know where he was going, swerving to the right and then to the left. By this time, witness was on hig correct side. They were very close then, and it went through witness’s mind, aod witness said, “Thank God —he’s missed me!” Witness, however, heard a bump, and then a thud. 1 Plaintiff’s front wheel had tipped the J right hand side of the carrier stand o n the back of the motor cycle. The point where the impact took place was

about 12ft from the footpath on witness’s correct side. He was doing ten miles an hour coming around the corner, but had practically stopped when the impact occurred. His feet were on the ground. Mr Murray then came along, and also Greaney and Heffernan. Witness had examined the bicycle, and in his opinion, it had never had any brakes. Witness had served his apprenticeship in a cycle shop. Donnellan had no effective brake. To Mr Joyce: He was working at Dennehy’s. He had to consult a land-

scape gardener at Dennehy’s. When, he was coming down Tainui Street he 4 ‘never dreamt of this.” The other ma n on the motor cycle was practically at the back of witness. He had to give the other motor cyclist the right of way to let him pass. O n the angle' witness was coming he saw Donnellan two yards before he got around the corner. Neither witness nor Donnellan spoke. At least six seconds would elapse before the collision occurred from when witness saw Donnellan. When witness saw Donnellan he was about three-quarters of a chain away, and plaintiff swerved to his wrong side, and then turned to his correct side about the same distance. Plaintiff then kept on across the wrong side of the road. Witness examined the cycle and was surprised to see a man of Donellan’s build riding a bicycle in such a state. The road to the racecourse was fairly rough. The motor cycle lauded on witness’s correct side of the road He did not see Donnellan as he fell, for the latter was at the back of witness. The front wheel was crumpled up like a match, and on-e could not tell where the impact o n it had occurred. Heffernan was not there first; it was Murray. Witness had been brought up at the Police Court on May sth, and fined for a breach of the by-law. He had not spoken to Murray previous to that, and had only spoken to him of it. about 'six months ago.

To Mr Gresson-. Donnellan was behind witness, and he saw Donnellan on the ground.

Frederick Murray, draper, said he was in Tainui Street on the day of the accident, just opposite the intersection. The first thing that attracted his attention was a motor cycle, and he just glanced across and saw Mr Fairhall turning the corner sharp into Puketahi Street, five or ten feet from the footpath, and then Fairhall went straight across the comer at an angle [of 45 degrees to his correct side. Witness saw Donnellan. who was coining down on his proper side. The first | thing to attract witness’s attention was Donnellan turning his cycle to the . right as though to go to his wrong I side. Donnellan hesitated and went back to his correct side again, and then almost i n a moment went straight across the road and ran into the motorist. The collision took place on Fairhall’s correct side of Puketahi Street. As soon as the collision took place, witness ran across and lifted Mi ; Donnellan’s head up to see if he could Ido anything. Witnesses who had said | the collision occurred o u Donnellan’s 'correct side were wrong. Donnellan i was lying on his wrong side of the road.

To Mr Joyce? Defendant saw Fairhall before the case came off in the Magistrate’s Court. Fairhall had asked witness to give evidence, and witness said he would give evidence of what he saw. Nothing had drawn witness’s attention until he saw Donne’lan wobbling. He did not see another motor cycle conning behind Fairhall before he came to the comer, as Fair hall was not in witness’? line of vision until he reached the corner in a direct line with witness, who was in front of Campbe-l’s house. The angle at which Fa rhall took the corner must carry him across to his right side. Fairhall was not travelling very fast. Donnellan ’s front wheel struck the motor cycle on the rear. At the impact Donnellan ’s front wheel seemed to collapse and Donnellan fell heavily to the road. Heffernan was not there before witness, and nobody touched Donnellan before witness. To Mr Gresson: He could not say whether the conversation with Fairhall was before the court case or after. For a motor cycle it was going very slowlv.

John Lewis, bootmaker, said he was coming down Puketahi Street on the day of the accident and Mr Donnellan passed witness coming to town. He did not see the collision. but saw where M r Donnellan was lying and where the motor cycle was after the accident.

To Mr Joyce: Donnellan was lying from 12 to 15 feet off the footpath on Fairhall’s correct side of the road, and i 15 or 20 feet from the corner of Tainui an 1 Puketahi Streets. He could not say if Donnellan had got up and fallen again before witness got there. Walter Leslie Hughes plumber, said he had a motor cycle. He remembered the occasion when Fairhall had an cident with Donnellan. Witness was on a motor cycle himself, and he passed Fairhall near Puketahi Street. Fair hall was travelling at about 10 miles an hour. Witness slowed up as he knew Fairhall was to turn into Pukeitahi Street. Fairhall had. however. beckoned to witness to pass by and ; he had done so and did not see the j I accident. He knew of the accident; 10 or 15 minutes afterwards when he I I returned up Tainui Street. I Mr Gresson, addressing the jury for | I half an hour, said that to find defendant liable he had to be solely the cause of the accident- He considered that the accident was not caused solely by I | defendant cutting the corner, but by I contributory -negligence on the part of I I plaintiff. He submitted that there was i i no case. In any ease, the evidence of i the defence outweighed that of the , plaintiff, there being three witnesses of the accident for the defence and only two for the plaintiff. Under the circumstances, was it not more than likely that Donnellan would lose his head, according to the medical evi-! dence? Once the jury had decided where the impact had occurred the case would be finished: if south if would be against the defendant, and if north, for the defendant. The claim fo r damages was a most grossly overestimated one. There was nothing wrong with the plaintiff as far as actual physical injury was concerned. Mr O’Regan’s address to the jury occupied fourteen minutes. He pointed out that the actual cause of the accident was defendant cutting the coiner. so as to create the situation, and. in that case, defendant should pay for [ any trouble arising therefrom. Until | Donnellan had realised the seriousness I of the accident, he had been prepared to accept £25, but it was now a differ- I ent matter. | A brief adjournment occurred at this stage, to allow His Honor to con-

isult counsel in his room, as the result* of which consultation the issues were placed before the jury as follows: (1) Was the accident due to negligence on the part of defendant? (2) Was the accident due to negligence On the part of plaintiff? (3) Assess damages without regard to the issues at all. His Honor, summing up the evidence, said if it were found that the cause of the accident was negligence on the part of defendant, the answer to Question One was “Yes,” and 1 f not the answer was “No.” If plaintiff had been found to be negligent, the answer to Question Two was “Yes.” If the accident was found to have been brought about negligently by the two of the parties concerned, then neither could recover damage* from the other. The third question was simply one asking them to assess damages. His Honor had to say something regarding the matter mentioned by counsel concerning the unfortunate reference to insurance. It was not a proper thing, and ought not to have been mentioned before a jury or a judge. The reason was quite simple as the question before the court did not depend at all upon whether or 'not there were insurance to cover damages, if awarded. All facts of the kind brought to the notice of a jury or judge would lend only to disturb the balance which the jury were bound to ho’d evenly. But for what counsel for the defence had said, and asked, it would have been His Honor’s imperative duty to relieve the jury and obtain a new jury for a new trial. He asked the jury to dismiss the unfortunate mention of insurance from their minds. Nobody was suggesting it was anything but accidental and inadvertant. In discussing damages, the jury should consdier the facts said to be proved, and ascertain a fair and proper sum to be allowed. There was no requirement of punishment, but if a case of negligence was proved, a man should pay. It had been strongly suggested that the amount of damages (£860) asked for was unreasonable, 1 and it required serious consideration. ’ There was no definite evidence making / up this greater sum, but for the fact that plaintiff was out of employment. The jury retired at 4.53 p.m.. and ■ after an interval of 47 minutes returned with an affirmative answer to the first question as to whether the accident was due to negligence on the part of defendant, and assessing general damages at £384 and special damages at £169 2*. a total of £553 2s.

Mr O’Regan asked for judgment for the amount, and judgment was accordingly entered by His Honor, with costs according to scale, and with disbursements and witnesses’ expenses to be fixed by the Registrar. His Honor also allowed £8 8s for plaintiff’s second counsel.