THE RIGHT OF WAY

Nelson Evening Mail, Volume LXI, 24 June 1926, Page 3

THE RIGHT OF WAY

MOTH IM NTS' I! ES I»< )NNI 111 LITIES MAI;ISTHATE’S j NTERESTING JUDGMENT Al Uh; Hawem Magistrate's (Joint Mr J. S. Ear ton, S.M., gave reserved jwlgJT'nt in Hi'- pps" of Wjij.'.'.:)!' HValkighan, motor garage proprietor, if llawern, v. 11. Hawke, tobacconist, of Kaponga—a claim for ,112.1(1. (lie amount of damage sustained to a motor ear in a collision on February 7, at (lie corner of 11k 1 Eltliam and Hastings roads, and a counterclaim of .1171 LSs (id arising out of the same accident. .Mr. P. O'Dea appcared for plaintiff and Mr H. ('!. Broil io for defendant.

Jn his judgment lho magistrate said (hat lie had already announced to the parties liis findings of fact. Eaeli of tiie litigants alleged negligence on the part of the other. He had found a, degree of negligence on the part of each, and the case therefore presented the whole matter of the law of contributory negligence in its most puzzling form. Ii was proved that defendant Hawke was negligent, in (hat he a preached the intersection of the roads at a high rale of speed, and was unable in consequence to pull tip or turn off in time to avoitjgi collision with the plaintiff’s ear. It. wtjp also proved that the plaintiff was negligent in that, having seen the other ear approaching, he did nothing to co-operate with the driver of that ear, and did not see it again until it struck him. On these facts the counsel for defendant argued that the negligence of the defendant Hawke was prior in time to tlial of the .plaintiffs driver, and that, therefore, the plaintiff, through his servant, had the. last opportunity of avoiding the collision, and, failing to take advantage of this last opportunity, must hear the blame and liability for the collision. The argument was that when Hawke saw the plaintiffs car approaching the intersection he at oiiee . applied his brakes and did all in his power t,) avoid the collision, that thereafter there was nothing more that he could do; that the plaintiff from the motneii! he saw the defendant’s car could have, and should have, acted so as to avoid the collision, and that, hot having done so. it was his negligence that is tlie proximate cause of the accident. This is a submission that the defendant’s negligence in driving at a last and unsafe rate of speed Ceased tiie moment he applied liis brakes and began to diminish bis speed. The magistrate did not think that was a correct view. He was of opinion that the defendant’s negligence was a continuing negligence until, by the rise of his brakes, lie had so reduced his speed that, having regard to the then position of his ear in relation to. the intersection and the other ear, it could he called a safe speed. At one and a half chains from the intersection Hawke's speed was at least 3~> miles per hour. That was an unsafe speed in those circumstances. The speed and impetus imparted to Hawke’s car was still operating, in spite of the use of the brakes, when the car reached a point, suv, one chain from the intersection, with plaintiff’s car correspondingly nearer to the same point; and the position was the same when defendant's car was half a chain from the intersection. His speed was an unsafe speed because lie had incapacitated himself by his former negligence from reducing it to a safe speed in that position. The magistrate found that defendant never, at any time prior to the collision, reduced to a safe spec l having regard to the intersection and the oilier ear, and his negligence continued to operate right, up to tiie mo monl rtf the collision.

. Considering the position and the nets of the plaintiff, the magistrate said that O’C’allaghan saw the defendant's ear approaching the. intersection, and one and a half chains away from it, at. a time when plaintiff was half a: chain away froth the same point. Plaintiff was travelling al about In miles an hour, and lie formed no judgment at all about defendant’s speed. He, however, considered it quite clear that he. had the right of way. and gave no further heed to defendant's car as a factor in Crossing the intersection safely. The magistrate said he was of opinion that plaintiff approached the intersection at a reasonable rate of speed, arid kept a sharp look-onl. Having seen the defendant’s car, it was rho plaintiff's duty to use reasonable care to ensure that he avoided colliding with it, or with any other vfliiclc or person that may be using or approaching the intersection .In tiie first place ire should satisfy himself as to what vehicles or persons were involved, in tiie problem. and having satisfied himself on this point he must decide on his course of action in'relation to each. Tt was urged hv counsel that the greater dir, la nee which the defendant's car had to travel to the intersection was so marked that the plaintiff was justified in assuming that he clearly and safely laid the right of way, and was excused from taking any further account of defendant's ear. The magistrate considered, however, that the differences in distance from the intersection did not justify the plaintiff in wholly dismissing defendant’s car from his l thoughts. It was further suggested I hat from the time he first saw defendant lie could, having regard to his duty to look the other way for other traffic, do nothing to avoid the collision. Whilst the plaintiff knew of the approaching car on his left, and on his submission required all of the one and a half seconds available to inform himself of the state of things existing on his right hand,' he had no right to maintain a speed of 15 miles per hour. With the delaying swerve, and a reasonable diminution of speed by a. driver that needed one and a half se‘onds to inform himself completely of the state of traffic at the corner, plaintiff’s driver would have had. not one and a half seconds, but probably nearer five seconds. Tiie magistrate rejected as untenable liic suggestion that plaintiff' was excused from looking for defendant again by the necessity of looking (he 11 1 her way a Iso. After quoting similar legal eases, the magistrate said lliat plaintiffs negligence was continuing negligence down to tiie point when neither driv r could do anything to retrieve the position. "In my opinion.” concluded tin l judgment, “the collision was due to tin* joint negligence of both drivers, and therefore neither party is entitled to recover."