WIDOW’S CLAIM

Hokitika Guardian, 15 June 1938, Page 5

WIDOW’S CLAIM

appeal court hears appeal. (Per Press Association —Copyright). WELLINGTON, June 14. The Appeal Court is hearing tne appeal of Ada Payne, of Wellington, widow, against Dunstau John Burney, of Pet one. The appellant recently sued the respondent for £3(4)0 for allegedly running down anj killing her husband on June 21 of last year, while he was crossing the Hutt road. The jur.v at the trial returned a verdict that respondent was guilty of negligence materially contributing to the accident, and that Henry . Payne (appellant’s husband) was also guilty of negligence materially contributing to the accident but in a lesser degree.

At the request- of the Judge, the jury assessed damages at L 12511 On the day after the verdict the jury sonc a letter to the registrar that it was the unanimous desire that £1250 should he awarded the widow, and it they had understood the effect of their verdict they would have said Payne was .not guilty of contributory negligence.

Some days later they sent a further letter to the registrar to the effect that they had intended to find Pavne not guilty of negligence, but found him guilty of negligence to help the motorist.

The motion for a new trial was argued before the Chief Justice, the lit. Hon, Sir Michael Mvers. who held that if both parties were guilty of negligence materially contributing to the accident there was no room for the issue of last- opportunity, which, in this case, he had refused to put to the jury when the law was that plain* tiff' could not recover damages. He held that the implication in the jury’s first letter was that if they had known the effect of their honest and conscientious answers to the issue they would have returned, to the second issue, an answer contrary to that which they actually gave. The implication of the second letter was they were prepared to do an injustice to Payne by saying he had been guilty of negligence materially contributing to the accident because they thought that by doing so they might, he avoiding some to the driver of the car. He argued that the willow was not entitled to succeed, and judgment was given for Bunie.v. with costs.

It is from this judgment and flic refusal of the Chief Justice to order a new trial that the present- appeal is brought.