NEW TRIAL REFUSED.

New Zealand Herald, Volume LXVII, Issue 20720, 13 November 1930, Page 14

NEW TRIAL REFUSED.

DIRECTION TO JURY. NECESSARY POINTS COVERED. The motion for a new trial in the case in which Edward Francis Hickey claimed damages against Hugh C. .Grierson was dismissed by Mr. Justice Smith in the Supremo Court yesterday with £7 7s costs against the plaintiff. The. claim arose through a collision between the defendant's motor-car and the plaintiff's bicycle at an intersection on tho Great South Road.

Tho jury, at a retrial last, August, found both the plaintiff and tho defendant guilty of negligence so that it could not say the negligence of either was tho real cause r,f the accident. Mr. Noble, for the plaintiff, applied for a new trial on the ground that His Honor had misdirected tho jury by failing to draw attention to certain points of law. Mr. West, for tho defendant, opposed the application. In refusing tho application Mr. Justice Smith said in his opinion the jury's verdict was a satisfactory one. He understood that the fust ground of objection to his direction referred substantially to the doctrine of last opportunity, but he had given the jury adequate direction on that point. It must have understood that tho action required in avoiding a collision was that, of a reasonable driver in the circumstances. With regard to the second ground of objection, in his judgment it was unnecessary for him to givo nny direction based on Loach's case, and that doctrine was not referred to by counsel for plaintiff in his address to tho jury, and was raised only upon this action for a new trial.

There were, further, two short grounds on which ho thought tho plaintiff must fail. It. was settled law in New Zealand that as no objection was taken at the trial and as counsel did not ask that, tho question should be left to tho jury, it. was too late afterwards to raise the objection that the question was not left to (lie jury. Furthermore, no new trial was granted on the ground of non-dirertion unless the, verdict was against the weight of evidence. It could not be contended in this case that tho verdict was against the weight of evidence.