SUPREME COURT.

New Zealand Herald, Volume XLII, Issue 13049, 14 December 1905, Page 7

SUPREME COURT.

I y MOTOR CAR AND (TRAP MOTOR CAR AND tRAP COLLISION. V the hearing continued. ;i The hearing of the action brought by r, Edgar John Mile* and his wife,. Catherine fe; Harriett Miles, against Ernest swell Bennett, to recover £500 and £1500, damV ages alleged to have been sustained by plaintiffs through defendant's motor car colliding with their trap on. the Avondale Road, on March 11 last," was further con- ■/ tinued before His Honor Mr. Justice Edwards yesterday. : — Mr. J. C. Martin appeared for the plainw\'' tiffs, and Mr. Cotter, instructed by Mr. Blair, for the defendant. John Proctor, a Grammar School student, ho witnessed the accident, gave evidence corroborating the witnesses called by plaintiffs on the previous day. Ho stated he ?*j" 'was certain that the horse in the trap did lis* not turn toward the motor car, but that t{ ' the motor car turned towards the trap, and f'■ frightened the horse. - Julius Porritt, a gardener, living on the Mount Albert Road, Avondale, said he eaw the motor car and the trap goiug IBS along the Avondale Road. When the motor 'Vj-j-'.car came alongside the trap it swerved M, across the road, and crossed tne trap The horse in the trap then took fright, threw up . its head, and swerved down the embankX'- ment, and out of his view. He went up to . ■'■■■- the'place where the trap had gone over the f" cmbanknv nt, and saw the trap lying broken in the hdiow. William Nosbit, a painter, iiting at ' Mount Albert, gr.v© evidence of a simile? nature. Constable i v 3rady, stationed at Avondale, said he heard of the accident, and examined the read for the tracks of the vehicles in question. He saw where the ■' -■ track or the motor car zig-zagged up the road and curved towards the tracks made by the trap. Dr. Porter gave evidence as to the in- , •* juries sustained by the plaintiffs, and said If S' Mr. Miles' medical and surgical expenses " up to the present, amounted to £126 10s 6d, T, audi Mrs. Miles' to somewhere between i £70 and £80. ! -.To Mr. Cotter: Ho was present when | Mrs. Miles was medically examined by! f • Dr. Savage and Dr. Girdler. Dr. Lowe; r;.'' and another medical gentleman were also i present. He considered that Dr. Savage, - in examining the female plaintiff, made a: very rigorous examination. '• Mr. Cotter; Did you make any pro- j 1 test? i ■i > ■ Dr. Porter: No; I irim£ed,to control fkl; my feelings. ? Did anyone else protest? They Y~' ■ looked very uncomfortable. j During the whole of the examination? .No; only during the examination by Dr. ] -Savage. • Do you sad that the examination was unnecessarily rigorous?— I don't know what may be necessary for Dr. ;. Savage. It was not an examination that I would submit any woman to, but I do not wish to criticise Dr. Savage. But you used the term " rigorous." Was '/ I the examination conducted with vour consent? was olily to Ixuve "been a sliglat. examination. Asd jou say that, it was unnecessarily | severe?— my opinion it was. 115;: ; ' But who is the best judge—the one who is conducting the examination, or the one v ;- who is looking on?—I do not lavish to 'WM&criticise Dr. Savage. This has been forced j • V upon me. , His Honor said that he understood Dr. Porter to mean that the examination was I ''}•• [•„ a rigorous one for a woman in the condition '*•>"" that "Mrs. Miles was. Mr. • Cotter -My friend, Mr. Martin, his practically hinted that it was v owing -.-jto wis examination the premature birth j - - occurred. (To Dr. Porter): Have you not | ' _ wed t- much stronger word outside about rap^fi4liß' examination than "rigorous?" I | . His Honor said that they did not want , to try a medical squabble here. What they , • were concerned in was whether this woman s ' was injured by the defendant, and whether .■/ »i* a result she was- subjected to great pain. f , £ -Mr. Cotter (to Dr. Porter) If you had , 'jeep performing t?ae operation, doctor, any othe: niedical man might have considered 1 'yi ur methods severe, while you considered them essential. 7a that not so? Dr. Porter: Certainly. Dr. Tracey India said that he attended J Mrs. Miles subsequent to the accident. She •f was suffering from a fractured pelvis and a &' I fractured collarbone. He also attended v ■Mi - - Miles upon the night of the accident. "This closed the case for the plaintiffs. . THE : DEFENDANTS VERSION. _ Mr. Cotter, after opening the case for the defence, called the defendant. Ernest Hauswell Bennett, a merchant and forwarding agent, residing in Auck- >'> land, said that upon'the date in question lie owned a motor car. The motor. car only had seating accommodation for two, i '; i' arid travelling up the grade where the acci- , - dent happened it could only go at about ' five miles an hour. He bad driven this \ particular car for about five weeks prior to

• the accident, so that when the accident happened the was thoroughly acquainted I V," 1 with the vehicle. He bought the machine from Mr. Meadoza, who accompanied him • upon the trip in question. Going along the Avondale Road towards Auckland they passed the plaintiffs' trap. Mondoza was - driving the car at the time. Further on the car was stopped, and was passed by ■y the trap. Getting way on again, the car gained slowly upon the trap, which was ( travelling at the rate, of about four miles \an hour. The car, he thought, would then fee going about five miles an hour. As the *.*,! trap started to mount the hill its off-wheel ~ , would be about the centre of the road. "" » Witness' car, wlfich was about 20ft or 30ft behind, was a little further to the ' ■ right. On getting abreast of the trap the - horse made a jump forward, which, he ' thought, was due to the noise the car was making. As the horse jumped the driver, • Mr. Miles, gave the reins a jerk. He then r • noticed Mrs. Miles make either a grab at - her husband or the reins. The horse « turned at a slight angle towards the car, and, going on for a pace or two, struck the car with its foreleg. The animal 1 A shied, proceeded up the hill for a whort illlg; distance, swerved round to the near side, and came down the road again. He saw Miss Diuine spring out of the trap, and Mr. and Mrs. Miles fall out. At Rose's I'/- , gate the trap was overturned. Mr. Men- " - doza got out of the car immediately after • the moment of the impact, and witness rej - '' trained where he was until the iior.se < turned. Witness then slewed his car round to the near side of the road. Mr. Mendoza attended to those who _ had _ been , thrown out of the trap, while witness •t'j"' looked after the horse. Witness and Mr. | ■ Memloza. remained there until about eight o'clock, or two hours after the time of tho ;--v' accident. Next day witness went out to see how the injured persons were getting on, .and during a conversation with Mr. Miles ; the latter remarked that " accidents ; would happen." Witness said that he thought that ho (Mr. Miles) must have pulled the wrong rein. Mr. Miles, in 1 " ' reply, said that he supposed he must have ifiildone so, as he was very much mixed up. IMf ' Mr. Ootter: During that time did he y' make any accusation that you drove the car into him? Sfpr' " Witness: No, he did not. 0"' "To Mr. Martin: The car worked satisfactorily that day. Tho account of the acci- ■ ' dent which he gave was true. _ After further cross-examination by Mr. Martin, and re-examination by Mr. 'Cotter; I Martin, and re-examination by Mr. Colter, the further hearing of the case was ad- | anrned until this morning. 'IfrlMS-/: ■■■■>■■ " ■ - ;