TAKAKA COLLISION

Nelson Evening Mail, Volume LXXIII, 12 February 1941, Page 6

TAKAKA COLLISION

MOTORIST’S CLAIM FOR DAMAGES MAGISTRATE GIVES RESERVED DECISION JUDGMENT FOR DEFENDANT In the Takaka Magistrate’s Court on Tuesday, Mr T. E. Maunsell, S.M., gave his reserved decision in the case heard at the December sitting in which Florence Drogemuller (with whom her father, Ernest Albert Drogemuller was later joined as plaintiff) claimed from C. H. Andrew's and Son. carriers, I Takaka, the sum of £97 13s 3d special damages, the cost of the action and i such other relief as may be just. Mr C. W. Thorp represented the plaintiff and Mr Cheek the defendant.

The case arose out of a collision between a car driven by plaintiff’s father and a motor truck driven by Clarence James Andrew's, which occurred in Commercial street, Takaka, on 20th July, 1940. Reserved decision was given as follows:

“The plaintiff had parked his car in Commercial street, Takaka, about halfway between Wood’s shop and the Bank of New Zealand. When he started his car he cut across in a curve to I the right, making for Wadsworth's Lane. When he got about three parts of the way across Commercial street, he was run into by defendant’s lorry, which was following him, allegedly through negligence. The defence alleges that plaintiff failed to signal that he was turning to his right. The evidence in support of this is the statement of defendant’s driver and Scott, w'ho w'as travelling with him, that they saw no signal. Turley, who was sitting in his car facing the colliding vehicles, also saw no signal. But plaintiff says he put the indicator out before he started to move. I realise the temptation there is for a person to swear falsely that he gave the necessary signal, but I understand the plaintiff has no personal interest in the result of I this ‘action, and I am not prepared to l hold, that he has given evidence which | was deliberately false. I cannot think j either that there has been a lapse of j memory on his part. I hold, therefore. ' that he did signal as required.

“I am satisfied that all three witnesses’' have understated the distance the defendant’s lorry was from the plaintiff’s vehicle when the latter cut across the defendant's track. The defendant must have been travelling from two to | three times as fast as the plaintiff. The I plaintiff has probably overstated the distance when he says that when he looked in his rear mirror the defendant’s truck was 180 yards away. The plaintiff’s car travelled 45 yards from a standing start before the collision. He puts his speed at six miles per hour and the defendant puts his at 18. Even putting the plaintiff’s speed at 9 miles per hour, defendant must have travelled 90 yards after the plaintiff started. I am satisfied, therefore, that the plaintiff’s driver had ample opportunity of seeing the signal, if he had been keeping a proper look-out, in time to avoid the accident, and there was accordingly negligence on his part. The plaintiff says he estimated that he had ample time to get across ahead of the defendant’s lorry. In this he was wrong and, in my opinion, it was more than a mere error of judgment. He was driving slowly and he should have realised that he would certainly be quickly overhauled. His correct course, therefore, was to allow the lorry to pass unless he was satisfied that the defendant’s driver had seen his signal and was taking steps to give way. I think therefore that he, too, was negligent.

“In the circumstances, it is unnecesI sary for me to rule on Mr Cheek’s i application for non-suit I may say, [ however, that the case relied upon by s Mr Cheek, Commoner v. Shafford Carrying Company, lends support to 1 his contention that the plaintiff had no ‘ right to take the course he did, even if the signal were given. The facts, however, were somewhat different. In ; that case the vehicles were approaching each other from opposite sides of j the road, whereas in this case they | were travelling in the same direction ! and the defendant should have been on the same side of the road as the plaint'T. Moreover, the Chief Justice in the case cited stressed the fact that when the plaintiff’s track was crossed he was only 30ft away and the other driver had no right to cut cross plaintiff’s track when the latter was within such a short distance without having first satisfied himself that the driver of the approaching vehicle had seen and appreciated the signal. In this case, as already stated, the defendant’s lorry was much farther away. The South Australian case, Green v. Harding, cited b> Mr Lawry, S.M., in Yee Wing Hee and others v. Thompson, 1940, M.C.R. 109, is some authority for the proposition that the rule applies with a following vehicle also and the act of crossing is negligent unless the driver has at least reasonable ground for believing that he can cut across without endangering approaching traffic. In this case, I think the plaintiff had no such reasonable ground.

“In my opinion, both parties were equally negligent and the negligence of both contributed contemporaneously to the accident. Judgment is for defendant.”

Costs totalling £6 10s were allowed against the plaintiff.