APPEAL SUCCEEDS

Manawatu Standard, Volume LXIV, Issue 140, 13 May 1944, Page 6

APPEAL SUCCEEDS

PALMERSTON NORTH CASE. (Press Assn.) WELLINGTON, May 13. The Court of Appeal has delivered judgment, allowing the appeal of Ralph Mills, of Palmerston North, retired farmer, against Maurice Keane, of Palmprston North, truck driver, and Neville Marsh, of Linton, Public Works employee (respondents). The judgment of the Supreme Court is set aside and judgment entered for the amount of the verdict, £520 9s 6d, with costs in (ho Supremo Court and the Court of Appeal. Un June 5, 1943, plaintiff was injured in the Square, at Palmerston North, when ho was run over by a motor-car owned bv Marsh and driven by Kcanc. Plaintiff claimed £2OOO damages, alleging negligence in excessive speed, failure to keep to the left, and failing to stop or steer clear. Defendants, in addition to a denial of negligence, claimed that plaintiff was guilty of contributory negligence in crossing at an angle and failing to keep a look-out. At the trial before Mr Justice Blair and a jury of 12, in October, issues were put to jury which found bpth plaintiff and defendant guilty of negligence in failing to keep a proper look-out.' A further issue was put whether cither could, by .exercise of reasonable care, have avoided the result of the other's negligence, and the jury found in plaintiff's favour. On subsequent argument before Mr Justice Blair judgment entered for defendants. Appellant appealed on the ground that the judgment was erroneous in fact and law, claiming that the jury's answers to the issues entitled plaintiff to judgment, that the last issue was rightly put to the jury, and that evidence existed on which it could find an answer. The judgment of the Court of Appeal delivered by Mr Justice Northcroft stated that the Court was of the opinion that the judgment in the Supremo Court should have been given pursuant to the answers, of the jury upon the issues put at the trial. An allegation against a mo torist of failing to ke«p a proper lookout was implicit in the charge that he failed to stop or steer clear of appellant. The point was dealt with expressly in the evidence and it was reasonable to assume that counsel would address themselves to that topic and, according to the recollection of counsel the trial Judge did in fact sum up on the subject of the opportunity of the parlies to sec each other, before the accident. _ Appellant and respondent placed the point of the collision in different positions. It was open to the jury 7 ' to accept appellant's version and fix the point.of impact as being on respondent's incorrect side. The issue as to whether cither party could by reasonable care have avoided the result of the other's negligence therefore was properly put. The jury were entitled to find appellant guilty of initial negligence, in starting to cross the road, and thereafter to find that the motor driver alone was guilty of the operative negligence which caused the collision. Mr G. I. McGregor appeared for appellant and Mr H. R. Cooper for respondent.