LAW OF THE ROAD.

New Zealand Herald, Volume LXVII, Issue 20619, 18 July 1930, Page 14

LAW OF THE ROAD.

ARGUMENT ON APPEAL. AVOIDING AN ACCIDENT. APPLICATION OF RULES. [by telegraph. —rnEss association.] WELLINC.TON, Thursday. Tho Court of Appeal to-day continued the hearing of tho appeal in the case Eric George Benson versus Kwong Chong, in which at a third trial damages were awarded to Benson for injuries he received in a collision between his motor-cycle and a motor-car driven by Chong's son. Motions for judgment by Benson arid for a new trial by Chong, were moved into the Court of Appeal. Mr. Cooke, for Chong. continuing his argument, said that in 90 per cent. of collision cases both drivers were to blame. The Courts in the reported cases had put too close an analysis on the surrounding circumstances of accidents, which was apt to lead a Court to false impressions of actual happenings. Tho evidence showed that the plamtiff, Benson, had been negligent right up to t'io moment of impact. Conceding for the sake of argument that defendant had been continuously negligent, then at the worst both were negligent up to the point of impact, and in that case neither had the last opportunity of avoiding the accident, and neither could recover from tho other the damage sustained by him. Contention of Defendant. Mr. Cooke submitted that there could be only two possible answers to that contention, which were:—(l) That it was open to the jury to find that defendant had tho last opportunity of avoiding the accident. But, said counsel, his examination of the evidence had shown tint such a finding could not possibly have been arrived at by the jury. (2) Lhat it was open to tho jury to find that defendant by his excessive speed had disabled himself from having tho last opportunity. That was the well-known rule in Loach's case. Mr. Cooke, however, submitted that such a rule applied only when plaintiff's negligenco ceased before the impact, not when it was continuous, as in tho case before the Court. Mr. V. B. Willis, for Benson, said the negligence of plaintiff was neither coa temporaneous with nor continuous to the point of impact. He contended that the j rule in Loach's case did apply, and thnt once Benson had made his wrong decision and started to cros3 the street there was nothing that he could have clone that would have prevented the accident. If he had stopped when he first saw defendant's car, he would have stopped right in tho track of the oncoming car. 11 is only course was to continue to cross. The Right Hand Rule. Benson was reasonably entitled to conclude that'the car would swerve to the left, and not to the right. Benson was not under a duty to give way to right hand traffic. The regulation to that effect under tho Motor Vehicles Act did not apply when ono motorist had already reamed a corner and the other was about two chains away. Plaintiff's negligence at t.he time of the accident was not continuous, but spent. The last opportunity of avoiding the accident was in the hands of defendant's driver, for ho could have continued straight on or swerved to'the left. In either case tho accident would not have happened. Defendant's driver was travelling too fast to brake his car effectively.

The finding of tlie jury that plaintiff was negligent in attempting to cross the street in front of the car was not a finding that plaintiff had broken a statutory regulation. The evidence before the Court below, on which the jury based its conclusion, was sufficient to warrant the jury's giving the answers that it. did. Mr. Pleasants, in support of Mr. Willis, contended that even if negligence on the part of plaintiff continued until the mipact, nevertheless defendant was still liable if, after he became aware, or should have become aware, ol plaintiff's negligence, ho still had an Opportunity of avoiding the accident, and did pot avail himself of it. ■ Decision was reserved.