APPEAL TO BE LODGED

Hawera Star, Volume XLVI, 17 August 1927, Page 11

APPEAL TO BE LODGED

DAM A. 1 ES CLAIM DECISION. SUBSTANTIAL SUM AWARDED. “The light was sufficient for each to have a clear view of the other, and, in fact, the defendant saw the plaintiff one hundred yards away and the plaintiff saw the defendant ‘in the distance’," said the Magistrate (Mr. R. W. Tate) in the Hawera Court to-day, in his finding in the claim for damages made by Thomas Bailey against A. Vintcn. At reported on page 7, judgment w*as given in favour of plaintiff, though the sum awarded was £25 less than the amount claimed. Notice of appeal was given by Mr. P. O ’Dea, counsel for defendant. “There was no other traffic on the road," continued the Magistrate. “The defendant turned to the right into Egmont Street, giving, he says, signals by both hand and horn. The plaintiff saw no signal, and proceeded on along Egmont Street, and during the course of the defendant’s turn the .vehicles collided and the plaintiff was injured. . . It is obvious that the defendant was turning into Egmont Street on his incorrect side, and that he did not take the corner with sufficient care. He knew* the plaintiff was on the road—he saw* him approaching one hundred yards away. Ho was acting negligently, when turning to the right into Egmont Street, in -crossing the track of the plaintiff’s approaching vehicle without having reasonable grounds for believing that the plaintiff had seen him altering his course. CYCLE WITHOUT BRAKES. “The plaintiff had that day assembled his motor cycle and proceeded out for a trial spin without any brakes. He saw the defendant in the distance. Ilis speed was then 20 to 25 miles per hour. On approaching Egmont Street he says he kept his eyes on the defendant; that he slowed down by ‘shutting off steam’; that on reaching the junction lie looked up Egmont Street, and on looking back he found the defendant within four or five feet of him. Both vehicles were then in the northern part of the junction; they were too close for either to avoid the other and they collided. Plaintiff says his speed was then 10 to 15 miles per hour. “He was driving without brakes, and had rendered himself incapable of stopping quickly, as ho should have been able to do.' He seems to have relied entirely on lifting the decompressor, which would have the effect of causing the vehicle to gradually come to a stop, but which was inadequate in taking the place of brakes in stopping promptly.

DEFENDANT ’S CONTENTIONS.

“The defendant contends that the plaintiff was guilty of contributory negligence. First, ho had no efficient brakes. Secondly, he failed to keep a proper look-out and so failed to take due care for his own safety. Thirdly, he was riding without a license.

“Talcing the third ground first, I do not think the defendant can base an action on such a default. As to the first and second grounds, assuming that the plaintiff were negligent in these respects, the circumstances must be examined to determine whether these acts of negligence caused or contributed to the accident. It is to bo remembered that the essential basis and presupposition in every case of contributory negligence is the fact that the negligence of each party was one of the causes of the accident.' ’

Continuing, the Magistrate said that the parties saw each other for some distance before reaching the junction. He could not regard the plaintiff’s glancing momentarily up Egmont Street as a failure to look out as he had a duty to watch for traffic from that direction. COLLISION INEVITABLE. “If plaintiff had had proper brakes he might have stopped dead and avoided the collision in the form it occurred, but it is probable that he could not have stopped in time without being thrown over the handle-bars in front of the motor car. He was suddenly put into a position of peril by the action of defendant, who turned into Egmont Street and so crossed his track without having the knowledge or reasonable grounds for believing that the plaintiff had seen him alter his course. That the defendant hail no grounds for so believing he made clear in his evidence. In these circumstances the defendant was not justified in turning and crossing the street. The collision was inevitable from the time defendant made his turn. “The whole cause of the collision was the defendant’s action in crossing the street as he did,’’ said the Magistrate in awarding damages as indicated, amounting to £10.3 325, with costs amounting to £lO 18s 6d.