DISMISSAL OF APPEAL

Manawatu Standard, Volume LIV, Issue 149, 25 May 1934, Page 10

DISMISSAL OF APPEAL

SUPREME COURT CASE

RESERVED DECISION

Reserved decision in a case heard at the last session of the Supreme Court in Palmerston North, wherein Garret Francis O’Rourke and his wife Myrtle May 'O’Rourke, of Pahiatua, appealed against tlie judgment of the Magistrate’s Court at Pahiatua in awarding £lßl 8s damages with costs to John Henry, a teamster, of Woodville, in a claim against appellants for injuries received through being knocked down on May 7, 1933, by a ear driven by G. E. O’Rourke and owned by the later’s wife, lias been given by His Honour Mr Justice Fair.

Mr Lawson (Featherston) appeared for appellants, and Mr (Smith, of Pahiatua, for respondent, at the Supreme Court hearing. ,

His Honour, in the course of liis judgment, said that respondent swore he was walking on the metalled strip of the main highway between Woodville and Pahiatua, while appellant (G. F. O’Rourke) swore that he was driving two or three feet to the right of the left edge of the bitumen. The Magistrate had found that respondent’s statement was correct, and that appellant was probably driving with his two inside wheels running on the metal strip. The Magistrate had also found that appellant was not keeping a proper look-out, and was driving at a speed that was excessive, having regard to the conditions at the time. In his second finding the Magistrate declined to accept the explicit evidence of appellant that be was looking at the road before and l up to the time of the collision, and was keeping a proper look-out. For his finding the Magistrate presumably relied on an inference from tlie facts that the lights of the car were good and that it could have been stopped in twice its own length at the speed at which it was going. The Magistrate also held that under the conditions of wet bitumen and trees alongside causing greater darkness, as well as the possibility of pedestrians using tlie road, the speed of 25 to 30 miles per hour was too great. Those findings, continued His Honour, were not challenged on tlie appeal, hut appellant’s counsel submitted that there was no evidence that appellant knew pedestrians were using the road. They had to show that the Magistrate’s decision was demonstrably wrong. It seemed to His Honour that there was ample evidence to support the Magistrate’s finding. If the respondent’s evidence as to the position upon the road in which he was walking was correct, appellant’s statement as to the position of his ear must be, rejected. The next ground urged was that the finding of the Magistrate that the speed was excessive, and so negligent, could not be supported. The Magistrate was entitled to infer that appellant was aware of the difficulty of seeing dark objects when driving on wet bitumen. It seemed that there was evidence of negligence in appellant’s speed ,having regard to the facts.

Regarding allegations of contributory negligence on the part of respondent, His Honour said that whether or not he saw a light shining on the bitumen road ahead was immaterial. It could not be held unpeasonable for respondent to assume that any car approaching him from behind would, under the circumstances, either keep clear of the metalled portion, or see him and avoid him. A different rule might exist on roads where motorists where entitled to assume that it was unlikely that pedestrians would he walking, but that was not the present case.

Dismissing the appeal with £lO 10s costs and disbursements, His Honour held that the findings of negligence on the part of appellant and absence of contributory negligence on the part of the respondent had not been shown to be wrong.