CYCLIST’S CLAIM

Manawatu Standard, Volume LVI, Issue 140, 15 May 1936, Page 16

CYCLIST’S CLAIM

COLLISION WITH LORRY. ACTION FOR DAMAGES. Seeking £650 general and £ll 5s 6d special damages, Olof Augustus -Thompson, boardingliouse-keeper, of Palmerston North, brought ail action in the Supreme Court at Palmerston North, yesterday, before His Honour Mr Juslice Ostler and a jury, against Mrs Lily Rily Stephen, of Palmerston Noith, as the outcome of a collision which occurred at the intersection, or Cuba and Pascal Streets on June o last. Mr A. M. Ougley appeared for plaintiff and Mr H. 11. Cooper tor defendant. The jtirv were empanelled as follow: Messrs' IV. R. Taylor (foreman), W. Singleton, E. F. Tliwaites, TV . H. Hosking, E. Morgan, T. Kidd, H. M. Phillips, W. A. v Telford, Jfi. Ainsworth, D. Kruse. H. L. Pratt, and D. Eustace. Plaintiff, in his statement of claim, alleged that defendant’s agent, Alexander David John Stephen, so carelessly, negligently, and unskilfully drove and managed her motor-lorry at the intersection that it collided with plaintiff, who was cycling along Cuba Street. Plaintiff alleged that the lorrydriver failed to keep to the left of the traffic dome, or of the longitudinal line on the road ; that when about to turn to the right he failed to extend his arm at least 30 feet from the point of turning, and keep it there until he commenced to turn; that he failed to keep a proper look-out for approaching traffic; and that he failed to steer clear. Plaintiff said his leit foot was injured in the collision and permanently partially disabled, and he had suffered much pain. He therefore claimed the damages stated. Defendant, in her statement of defence, denied the allegations made. She alleged that plaintiff’s own negligence was the cause of, or contributed to the collision, in that lie failed to give way to a vehicle approaching from the right, failed to keep a proper look-out, was crossing the intersection at an excessive speed having regard to tlie circumstances, failed to slow down, stop, or steer clear, and by reason of cretain heavy and cumbersome goods which he was carrying, was unable efficiently to control his cycle. For a further defence, defendant said that plaintiff had the last opportunity of avoiding the collision; also that immediately after the collision, plaintiff had agreed with defendant’s agent to accept the repairs to the cycle in full settlement of his claim. Those repairs, it was stated, had been effected.

PLAINTIFF’S CASE. Plaintiff gave evidence that lie would be 60 years of age in J uly next. He bad sintered infantile paralysis as a child and it iiau left his left loot somewhat deformed, but he suffered no disability, and did not Jimp. On the day when the accident occurred he was cycling along Cuba Street towards the city and was almost across the intersection with Pascal Street when the lorry, which liad come out of Cook Street, caught him broadside on and carried him right round into Pascal Street. The front wheel of the lorry stopped six inches from the bitumen edge on the right-hand side of the road. Plaintiff was pinned under the lorry by his foot, and had to he extricated. One of the men on the lorry, not the driver, asked plaintiff not to report the accident to the police, as he had onlv had the lorry two days, and was trying to get off relief. He undertook to defray the cost of repairing the cycle, and later called for it. Plaintiff did not report the accident, then, but did so a fortnight later at the suggestion of two men who liad been on the lorry. His foot had been injured and ho continued to treat it himself until June 18, when he obtained medical attention. His ankle had not recovered its strength, and lie could walk steadily for threequarters of a mile until his foot became very tired and dragged. He could not run at all, or walk fast very far. His foot ached a lot, and be could not get about as freely as formerly. Dr. F. Ward testified that when he examined plaintiff he found him to be suffering from a foot deformity. There was no evidence of a fracture, but there was evidence of muscular injury and bruising of the bone. There was no structural injury, hut the ioot would not bo quite as good as before, because plaintiff inul lost confidence, and tlie muscles, previously damaged by disease, would not regenerate. Called to give medical testimony at this stage for the defence, Dr. E. C. Barnett stated that plaintiff had complained to him of pain in the ankle, but witness could find no actual reason for it. Witness considered that plaintiff had no disability arising out of the accident. . Mr Cyril King, F.R.C.S., stated in evidence lor the defence that he had examined plaintiff in February. Ho could not find evidence of injury such as could be attributed to the accident. Recalled to continue his evidence, plaintiff stated that though lie had a small bag of wood on the front of his cycle, and another at the back, it did not intorfero with his control of his machine. Plaintiff added that he saw tho lorry approaching and saw the course it was taking, but considering that ho had ample clearance, lie dul not take any further notice until the lorry was close to him. ' Evidence was also given by Leslie Norman Harris, labourer, of Asliliurst, and by Constable Arnold, this concluding plaintiff’s case. THE DEFENCE. Mr Cooper raised a non-suit point on tlie ground that on plaintiff’s own evidence there was no case to answer. iiis Honour said he would reserve the point. Mr Cooper characterised the action as a pure endeavour to exploit an accident to secure damages. John Power, labourer, gave evidence that last June lie leased the truck from Mrs Stephen. He was delivering wood, and A. Stephen was driving, witness being with,him in the cab. He noticed the cyclist approaching, and witness formed the impression that he was going to turn into Pascal Street. The driver apparently thought the same, but when plaintiff came on, lie swung round to avoid him, applying tlie brakes. Plaintiff was struck, hut not dragged, tlie lorry having practically stopped.. Plaintiff stated that everything would lie satisfactory if his cycle was repaired. The driver had been compelled to cut the corner to avoid plaintiff. Evidence was given by Alexander Stephen, store assistant, of Rongotea, that he was driving the lorry when tlie collision occurred. He said that when lie discovered plaintiff was comj mg straight down Cuba Street, he de- ! cided to swing to tlie right, and ap- | plied the brakes, the lorry travelling i a length before it stopped. When asked if lie was hurt, plaintiff made some remark about his “game leg,” but replied in the negative. Witness did not remember Power stating that if the accident were reported to the police, witness might lose his driving license. Witness had upset tlie lorry a week earlier, but denied that after the second accident lie was not allowed ! to drive the lorry again._ This concluded the evidence, and

proceeding were adjourned until 2.15 p.m. Counsel for each party and the Judge addressed the jury, who retired at 3.21 p.m. Five issues were put as follows, with the answers in each case: —(1) Was the accident caused by the negligence of the driver of the lorry in cutting the corner, or in failing to steer clear of defendant? —Yes. (2) Did plaintiff contribute to the accident by negligently failing to keep a proper look-out? —No. (3) After the driver of the lorry comme need to turn into Pascal fetieet, could plaintiff by tlie use of reasonable care have avoided the accident: -—No. (1) Did plaintiff make a contract with Power that in consideration of Power’s repairing the bicycle plaintiff would not make any further claim: —No. . , . (5) What damage, if any, is plaintiff entitled to recover from defendant ?—Special damages, £lO os Oil; general damages, £SO. The jury returned at 4.40 p.m. Judgment was given against defendant for £6O 5s od t with, costs.