HUSBAND SEEKS DAMAGES FOR DEATH OF WIFE

Manawatu Times, Volume LV, Issue 6993, 1 November 1932, Page 4

HUSBAND SEEKS DAMAGES FOR DEATH OF WIFE

Motor Collision Sequel

On July 14 on the Ashhurst-Raumai road, there oe9urred a collision between a baby Austin and Ford cars which resulted in the death of Mrs. Winifred Fitz Herbert, of Eaunmi. A sequel to the fatality is at present being enacted in the Palmorston North Supreme Court, Herbert Fitz Herbert, deceased’s husband,- being plaintiff in a claim for £IOOO damages. Defendant is James Bernard Eeed, labourer, of Palmerston North, ownor of the Ford which, at the time of the accident, was driven by Horace Wilks and contained in the front seat two adult lady passengers each with a child on hor knee and a load of. furniture in the back seat. Plaintiff was driving the baby Austin and had as passengers his. son in the front seat and wife and mother-m-iaw in the back seat. The time was approximately 5.10 p.m. and. darkness had set in. ...

Plaintiff sued in the capacity of executor of his wifo’s estate for the benefit of his three children,'and Mrs. Mary Jane Walpole, of Ashhurst, motner of doceased. The collision, it was alleged, was entirely due to the negligence of the driver of defendant’s car, Horace Wilks, in the following respects:— Driving at an excessive speed under the circumstances; (2) failing to give sufficient warning of his approach; (3) failing to have his car illuminated at a time when it should have been; (4) failing to keep a sufficient look-out; (5) failing to drive on his correct side of the road; (6) failing to have his car under proper control; (7) failing to swerve so as to avoid the accident. The defence was a donial'of the allegations of negligence on the part of Wilks and an assertion that Fitz Herbert showed the negligence in that he drove at an excessive speed, failed to keep a proper look-out, failed to keep on his proper side of the road and overtook and passed another car when tho road was not clear. If it was proved that Wilks wa3 in anyway negligent, plaintiff was guilty of contributory negligence. Mr, E. Parry, of Wellington, appeared for plaintiff and Mr. H. E. Cooper for defendant.

In opening the case, Mr. Parry said it was one which usually came before a jury but there were ono or two technical points which made it desirable from plaintiff’s point of view, to have it brought before a judge alone. Plaintiff, in giving evidence, said he left Palmerston North at 4.30 with his parking lights on. He switched on the headlights when crossing the railway line at Ashhurst. Further along the Eaumai road he caught up to a cut driven by Mr. W. Howell, of Pohangina, Deciding to overtake Howell, witness pulled out to the right after having looked to seo if the road was clear. He had actually got past Howell and back on to his correct side when he first saw the Ford driven by Wilks. Tho latter was then on an angle across the road apparently endeavouring to get back to his proper side. The Ford, however, seemed to skid without alUun.ng its correct side and crashed into the Austin. , The cars finished up facing each other on the grass on its correct side of the road. There was plenty of room for Willis on his correct side, including seven feet of usable grass. The accident happened at about 5.10 p.m. and prior to tho collision tho speed of the Austin was about 30 miles per hour. To Mr. Cooper: The other car was less thau a chain in front of him when he first saw its lights. Up to tue .>«• ment of impact witness did not slacken his pace. It appeared at the time that it was a skid that got Wilks on to his wrong side of the Toad and he hit tho Austin when endeavouring to get back. William Howell said ho put his car lights on between Palmerston North and Ashhurst. He had. observed Wilks approaching before Fitz Herbert went past. Tho Ford had no lights but those wero switched on when Fitz Herbert was coming up level with witness. The road was wide enough for three cars abreast with careful oriving. Wilks was well on his proper side when witness first saw him but tho former came over to the wrong side abouz the snmo moment as witness was advised that Fitz Herbert was about to pass. Witness got the impression that Wilks was going up a side road. I 1 itzHorbci t had completed the overtaking movement, and was on his proper side again when struck.

To Mr. Cooper: Had he been an FitzHerbort’s position ho would not have attempted to overtake another His Honour: No doubt you are nght but ho says he had not known Wilks was there. Continuing to Mr. Cooper, witness said he saw danger when Wilks came over and started to pull up. Fitz Herbert cut very close in front of witness. Wilks appeared to come crown the road undecided as to which side he. should go. Janet Howell, daughter of the previous witnoss, who was in her father’s ear when tho accident happened, said she actually saw one light appear on Wilks’s 'car when it was five or six chains away. It was tho left hand light; Fitz Herbert had then commenced to overtake them.

Mrs. Julia Smart, a friend of the late Mrs. Fitz Herbert and a frequent visitor to her house, describod deceased as a capable woman and excellent mother who lived for her husband and children. The children were going to suffer a great loss. She used to teach them at home when the school was closed. " Michael FitzHerbort, 16 _ years _ of age, who was in the Austin sitting alongside his father, also gave evidence. He saw nothing of Wilts’s car until they were about two feet in front of Howell’s car. The Ford had its left light only switched on, at that moment. Mrs. Edith C. Caldwell, of Awa-hou, described deceased as above the average as-a housewife.-and-a mother .with

a wonderful influence over the children. Mr. Caldwell gave similar evidence. This concluded plaintiff ’s case. Mr. Cooper submitted that plaintiff had made out no case for relief even assuming that Mrs. Fitz Herbert’s death was duo to the negligence of defendant. There was no evidence before the Court that the son had suffered any pecuniary loss through the death of his mother. As regards Mrs. Walpole, she had her own means and was even able to give her daughter a present of the Austin. His Honour said he agreed there was difficulty in spelling out of the death of Mrs. FitzHerbort, any pecuniary loss suffered by Mrs. Walpole. Mr. Cooper submitted that the two youug daughters also, had not suffered any monetary loss. They had lost their mother’s guidanco and educational help, but that, he submitted, coulu not be measured in £ s. d.

His Honour said there was ample authority for the financial compensation of children of tender years, for the loss of a mother. In the present action, assuming negligence, there was a prima facie case for compensation.

Mr. Cooper further submitted that Mrs. FitzHerbort had not beon in a financial position to give her children monetary help even if they had needed it, so that her death was nowcauy a financial loss to them. His Honour observed that Mr. Cooper’s interpretation of tho law was not tho correct one although as far as the son was concerned and grandmother, they might' not have a claim. Tho case of the two daughters, however, was different. Mr. Cooper, dealing with the negligence alleged, submitted that litzHorbert’s duty was to ma.ke sure the road was clear before ho ventured to overtake Howell.

His Honour said that it had occurred to him that Fitz Herbert’s method of passing Howell was unusual, namely, keeping his eyes on Howell’s car all 1 the time while passing and not looking’ ahead some part of the time.

Mr. Cooper: That damns his case. His Honour: Up to a stage it does but there is more to account for than that. There is the other car on the wrong side of the 1 road. Counsel submitted that if not wholly liable Fitz Herbert was guilty of contributory ‘ negligence, Horace Wilts, employed at a. dairy factory at Oroua Downs, was the first witness for tho defence. Ho said, he observed the lights of two cars approaching one behind tho other. He switched his lights on when from 200 to 400 yards from where the collision occurred. He was on Ms correct side. Getting closer to tho two cars, tho one in the rear pulled out to overtake the other. He was close up then and immediately put on the brakes. He could see he was going to hit the Austin but

could not recall the crash as he was knocked but. To him it seemed tlie collision occurred on Ms proper side. At no time did he pull the car over to its wrong ' nor could he recollect it skidding. Witness emphasised tnat when he switched his lights on the cars were one behind the other, He immediately sensed danger when ho observed Fitz Herbert pull out. Witness did no.t know at the time that the grass on his left was usable. In any case He was not left time to get on to tHe grass if he had wanted to. A few dayß prior to the accident, the lights of the Ford had been tested and a new bulb fitted.

To Mr. Parry witness said ho could not account for getting over the centre lino if he were over it.

Counsol: Do you suggest you were prepared to meet an emergency witH two adults as well as two children in the front seat with you?

AVitness: I had come 18 miles over a twisty road with perfect control of the car. All tho time I thought I was on my correct side. To Mr. Parry witness added that the daikncss was just setting in and up to tho time he switched on his lights, fie could geo objects distinctly. • Mrs. Edith M. Reed, wife of defendant and a passenger in the Ford, gave corroborative evidence. She said Wilks had plenty of Toom in tho front seat and it was light 'enough to drive without the headlamps. AVhen Wilks was ready to pass Howell's car, FitzHerbert’s Was in front of them. There was not time for Wilks to avoid a collision.

AVilliam Barnes, farmer, of Ashhurat, said he saw Fitz Herbert following Howell along tho road and they kept practically tho same distance between them for a considerable distance along the road and a horn was sounded once or twice. Fitz Herbert had just got past Howell when the accident vccufred.

Defendant was the next witness. Ho said ho was following Wilks, driving a lorry and arrived about 10 minutes after the accident. Visibility was fair at the time, quite good enough for one to see approacMng cars. Frederick N. Rosenbock, garage proprietor, of Ashhurst, gave evidence to tke effect that he had tested the wiring of tho right hand lamp on Mica's car after the accident, and found it intact. There was a patch of water oii the- Toad yvhore he picked the Ford radiator had ■ an< i was Wilks’s side .of the centre line of the, road. The Austin must have been partly broadside on to the Ford when the cars collided. This concluded the evidence and the Court adjourned till this morning.