CLAIM FOR DAMAGES

Manawatu Standard, Volume L, Issue 119, 16 April 1930, Page 4

CLAIM FOR DAMAGES

GIRL CYCLIST’S INJURIES

MAGISTRATE RESERVES DECISION. Claiming £SO general damages and £l9 12s special damages, for injuries sustained through being struck by a motor-car on the main highway at Whakarongo, on December 15, Ethel May Lancaster, a minor, proceeded in the Magistrate’s Court yesterday, through- her mother against Rodney Goldingham, the owner of the car, which was driven by an employee, Martin William McLeod. Mr Rolling appeared for plaintiff and Mr Cooper for defendant. Mr J. L. Stout, S.M., was on the bench. David Smith Prince, farmer, of Whakarongo, said that he had sold the car concerned in the accident to defendant it being taken in part payment for a new car. Defendant’s representative, Martin William McLeod, drove the car away on the following, day. The footbrake was faulty, but effective.

Constable Goodwin gave evidence that he had arrived at the scene shortly after the accident. The girl had. already been removed to hospital but McLeod was present. Measurements mad 9 by plaintiff disclosed that the car had skidded 18 yards befpre stopping. The bitumen at this point was 16 feet wide. McLeod had stated that the footbrake was no good, but that he had not found this out until after the accident. Witness had tested the brake subsequently, in company with witness’s brother, and had found the footbrake to be useless at 20 miles an hour. McLeod had subsequently been fined £1 for negligent driving. Mr Cooper: I object to that. - Mr Relling submitted that this was evidence. The Magistrate: It is not evidence of McLeod’s negligence. That must be proved in this Court. Mr Relling:. Did McLeod give any other explanation ? Witness; There were certain statements made to me as a police officer which I cannot disclose.

His Worship: You would have to disclose the information if I’asked"for it. I understand there are certain police regulations, but if counsel asks for information you must give it. Dr. Bett gave evidence of the nature of tho injuries sustained by Miss Lancaster. She was admitted suffering from concussion and a number of scalp wounds. When discharged ton days later she did not appear to be suffering any serious after effects of the accident. Josie Rae said she accompanied Molly Lancaster homo on tho aay of the accident, the latter riding a cycle and witness running alongside her. She had to leave Molly at the cemetery road, and just before doing so she looked tip and down the t road, but could neither see nor hear’a car. After crossing the road she heard a crash and looked round to see that her friend hid been struck by. a car. The cycle tvas eleven or twelve yards behind where the girl was lying. Skid marks showed that the car had crossed the road while pulling up. Mrs Lancaster said that the driver of the car, McLeod, had spoken to her on the afternoon of the accident. Mr Cooper objected to this being allowed as evidence. McLeod was not defendant’s agent as regards what responsibility defendant might have, and could not make admissions on the owner’s behalf. > Mr Relling submitted that under the motor vehicles regulations the driver was the owner’s agent in the latter’s absence. His Worship observed that counsel could cross-examine McLeod as to whether he had made admissions. Mr Relling did not press the point, but asked leave to recall Mrs Lancaster if necessary. Mrs Lancaster added to her evidence that her daughter had no recollection of what had happened; in fact, she had been unable to remember anything from the time of leaving school.

“CASE TO ANSWER.” Mr Cooper submitted at this stage that there was no case to answer. There was no evidence of excessive speed. There was evidence that the brakes of the car were defective, but that was not sufficient. Plaintiff must prove that the driver knew or should have known that the car was in that condition before he took it out on the road. Prince had said that up to the time he had handed pver the car the emergency brake was in good order, but the footbrake wanted tightening. Mr Cooper quoted authorities in support of his submissions. His Worship, considered that there was a case to answer.

Martin William McLeod, the driver of the car, said that he was not in Goldingham’s employ permanently. He was a motor mechanic and agreed with his brother, who was employed by Goldingham, to drive the car. He had no knowledge of the condition of the brakes. When he saw the girls he was starting to descend the hill and the girls were at. the bottom. His speed Was about 20 miles an hour. When approaching them he sounded the horn and. made to pass them. One of the girls, who was walking, went to cross the road, but hesitated in the middle. Witness swung to the left of her to avoid hitting her and'.in doing so the left side of the car struck the cyclist. The whole thing happened in a fraction of a second. He had applied both his brakes and 'had pulled up in a short distance. Even if the brakes had been good he would not have been able to avoid an accident. Cross-examined by Mr Rolling, witness admitted that the car had pos-

sibly run over the cycle. He had not seen the damaged cycle until after the smash, .and it certainly appeared to have been run over by some heavy tbject. ' , . Mr Helling: What made the hole in the car’s windscreen? —It may have been the cycle. The Magistrate: You surely do not suggest that. Could it have been caused by the girl’s head? —It might have been. The Magistrate: You should know. Witness: It is possible that it was the girl. ' , The Magistrate: That would account for the nature of the cuts in her head.

Mr Relling: Doesn’t the fact that the girl was thrown through the windscreen suggest that you were travel-* ling at a fast speed ? —I was not travelling fast. Replying to a further question witness said that he was five yards from the girls when he first applied his brakes. He received no indication of the girl’s intention to cross the road. Mr Relling: Is it not a fact that you. applied your footbrake first and had travelled 60 feet before you applied the handbrake but it was then too late? —No. I applied both brakes together. Mr Relling: Did you admit to Mrs Lancaster on the night of the accident that her daughter was on the correct side and was in no way to blame for the accident? —I do not remember. His Worship: Was she on her correct side? . Witness: She was riding well on her correct side until shortly before tlie accident, when she rode towards the centre of the road and struck the car. Mr Relling: Do you think Molly Lancaster was in any way to blame ? —Partly. She gave no indication that she intended to turn towards the bitumen. His Worship: Did you know the cross-road was there?—\es.

His Worship: Why did you try to pass a vehicle on the cross-road ? Do you not know better than that ? —Yes, but! I had a clear view of the sideroaa. His Worship: Apparently you were not watching the road, but. the girls. What would you have done if the cyclist had turned to go up the side-road ? —I would possibly have turned into the ditch. This closed the defence and the Magistrate reserved his decision.