CLAIM FOR £2000

Manawatu Standard, Volume L, Issue 137, 9 May 1930, Page 7

CLAIM FOR £2OOO

MOTOR-CYCLISTS’ DEATH. ADDRESSES TO JURY. QUESTION OF RESPONSIBILITY. Tho case in which Ada Dlessenger, a widow, proceeded against Hildus Emmanuel Bergersen tor £2OOO damages, alleging that the death of her husband had been caused by defendant s negligence, was continued in the Palmerston North Supreme Court this morning, His Honour tho Chief Justice, Sir Michael Myers, presiding. Addressing the jury, Mr Ongley, counsel for defendant, pointed out that the onus was on the plaintiff to prove that defendant had been negligent. He contended that the weight of evidence regarding the speed at which defendant was travelling was entirely in defendant’s favour. The fact that he had pulled up immediately after the accident without leaving anv bkid marks was in itself evidence that tho speed of the car was not excessive. Defendant had no doubt made contradictory statements regarding the lookout he had kept. He had apparently been confused in the witness box. The evidence of other witnesses was consistent with his statement made at the present hearing and if the jury accepted this, which appeared to be the correct version, they were entitled to infer that there had been no negligence. Mr Ongley reviewed the evidence at considerable length, and contended that the confirmatory statements made regarding the offside rule warranted the jury finding for the defendant on this count. In the course of his address Mr Cooper, who represented the plaintiff, 6aid that there was no suggestion of deceased being anything but a careful driver. The jury was not trying Bergersen for his liberty, but was being asked to determine the responsibility for Messenger’s death. - If the responsibility was Bergersen’s then proper recompense should bo paid to the widow. The weight of evidence lay entirely against defendant as regards negligence. Were tho jury able to reconcile the points of difference in Bergersen’s evidence, as was suggested by Mr Ongley, counsel would concede then a greater understanding than he had. There was not a vestige of reliable evidence that Messenger was not keeping a proper look-out, and on the point of speed the negligence, was, counsel contended, Bergersen’s.

HIS HONOUR’S CHARGE. In his charge to the jury, His Honour emphasised the fact that the accident had occurred in broad daylight, in an open crossing, when there was little traffic about. The accident could not have occurred without negligence. Plaintiff sought to recover damages for the death of her husband alleging negligence. If the accident happened as the result of the combined negligence of tho two, defendant and deceased, and defendant had the last opportunity of avoiding the accident, the verdict should be given to plaintiff. On the contrary, if Messenger had had the last opportunity, the Ending should be for defendant. The defendant contended that he had not been negligent, and in the alternative, submitted that if he was negligent so was Messenger, and that the latter had the last opportunity to avoid the accident. Regarding the allegation of excessive speed by, defendant, no eye witness to that effect had been brought forward by the plaintiff. Certainly, the old lady had stated that the speed was “above the normal.’-’ But there was no such thing as “normal speed.” He suggested to the jury that not a great deal of credence should be placed on [this point of the witness’s statement. He would hesitate to come to the conclusion that Bergersen was driving at an excessive speed, though there was evidence both ways. Regarding the second point, that of tho look-out kept by Bergersen, there was no doubt that Bergersen liad stated at the inquest that he had not seen Messenger until the former was right on top of him. It was nonsense for Bergersen to say that he had been misunderstood at the inquest and that he had been “bamboozled.” That it was utter nonsense was borne out by tho statements he made to Mrs Messenger, and tho police constable. The evidence that defendant now gave was consistent with the evidence of the eye-wit-nesses, that he now called. There was more than ample evidence that Bergersen was negligont on this count. According to the evidence given by Bergersen at the inquest, and that or the constable and Mrs Messenger, it was perfectly clear that the motorist had not been keeping a proper look-out. There was also evidence to show that Messenger had the right of the road at the intersection and that Berger*en was therefore also negligence on this score. . Touching upon the question of Messenger’s speed, His Honour pointed out that tho witnesses Dr Durward and Rona Farrelly had both given evidence that the speed was moderate. The answer to the question -whether Messenger had kept a proper look-out depended on the general view taken of the case. If what Bergersen said at the inquest were true, the position was that Messenger was entitled, entering UlO intersection, to presume that Bergersen would obey the rule, and give way. If he did not, tho only thing for Bergersen to do was to turn to tho right, which he did, and the accident occurred. If, on the contrary, Beigeraen was half on the intersection before Messenger reached it, tho fault for the accident was the latter’s, as he should have kept straight on. It had been suggested that both Bergersen and Messenger could have done more than they did to avoid the accident, but this was a matter for the jury to decide. . Reverting to the question of damages His Honour stressed the fact that tho claim was for compensation, not damages in the ordinary sense. It was for pecuniary loss only. The jury would have to consider that deceased was the plaintiff’s only support, and determine what pecuniary loss slio had suffered by his death. This closed the case and the jury retired to consider their verdict and had not returned when the luncheon adjournment was taken.