£3000 CLAIM FAILS

New Zealand Herald, Volume LXXIII, Issue 22344, 15 February 1936, Page 16

£3OOO CLAIM FAILS

1 MOTOR-CYCLIST'S ACTION INJURIES IN COLLISION BOTH PARTIES NEGLIGENT JURY'S LONG RETIREMENT The hearing of a claim for damages arising out of a collision that occurred between a motor-car and a motor-cycle on the Great South Road in September, 1934, was concluded before Mr. Justice Callau and a jury in the Supreme Court yesterday The claim was brought by Peter Percy Hurlstone, gardener, of Auckland (Mr. Haigh), against Harold Oscar Steadman, collarmaker, of Auckland (Mr. Goldstine). Plaintiff, who had been riding a motor-cycle along the Great South Road toward Auckland, alleged that he had been struck by defendant's car on account of tho negligence of its driver, .Tohr Ho'fernan, and had suffered sovere f>crni:n!(»nfc injuries. He had been in hospital for nearly a year and would have to loso his right leg either above or below the knee. For this he claimed £2500 general damages and special damages, amounting to £522 Is Cd. Further evidence in support of the claim was given by another eye-witness of the accident, Vernon Lyell Aley. He said defendant's car, coming from the city, made a fairly sharp swerve to tho right to enter Campbell Road, and struck the plaintiff "amidships" when the car had run three or four feet on the concrete after crossing the tram rails.

Evidence that the driver was looking over his shoulder at a woman and baby in the back seat as he made the turn into Campbell Road was given by Mervyn J. C. Miskell. • Case for Defence Tn opening the defence Mr. Goldstine Riid that even if it could be shown that defendant' had been negligent, which he denied, that negligence did not contribute to the accident. The crux of the case was, where did the accidonl occur? /If, as defendant would show, it occurred hefore the car had crossed the traip lines, that disposed of the claim. n u The driver of the car, John lietternan, said' Mrs. Steadman and a baby ■were in the front seat of the car with him and there was nobody in the back seat. He turned across the Great South Road at about eight miles an hour, and stopped right on the tramlines to let the traffic pass. The plaintiff's cycle swerved as though it was going to overtake the car ahead of it and struck witness' wheel Police measurements showed that his car was 20ft. from the kerb lino toward which he was facing. Plaintiff had all the concrete and some .of the bitumen on which to pass him. "Mistaken Kindness" In answer to Mr. Haigh, witness said -the"*: was no truth in tho typed statement he, had given to the police that the cyclist swerved to his left into Campbell Road. He swerved to the right. He did not mention to the police abcut the car ahead of plaintiff out of kindness to plaintiff, as he did not wish to make it harder for him. His Honor: Mistaken kindness. It is apt to embarrass you later. Elizabeth Steadman, wife of the defendant, said she had been sitting in the front seat of the car. It was stationary on tho bitumen just before the accident. The cycle ewurved right in and hit the car. Constable J. R. Davies said the right front wheel; from which the tyre and rim had been stripped, had cut a mark in the bjtumen just inside the tram rail. His Honor's Comment His Honor instructed the jury that ■in order to succeed, the plaintiff must have proved two things—that Hefferiian was guilty of some negligenco and that that, negligence injured the plaintiff. The'crux of the question of fact ■was whether the accident happened on the bitumen or on the concrete. The police evidence, which had not been questioned, was that it was on the bitumen, and the only explanation the plaintiff suggested was that Heffernan had fraudulently had the car moved. If the car was on the bitumen plaintiff could not succeed. The jury returned after 3i hours absence to ask whether a verdict of contributory negligence on the part of both parties would be acceptable to the Court.

His Honor said if the jury was approaching the problem in that way it would be necessary for him to address them on the doctrine of the last opportunity. After doing so, he invited them to answer the questions whether either of the parties had a clear last opportunity of avoiding the accident and, if so, which. Later, after a total retirement of 4 hourb and 20 minutes, the jury found that both parties had been guilty of contributory negligence and that neither party had the last opportunity of avoiding the collision. Mr. Goldfitine moved for judgment for the defendant, and judgment was entered accordingly, with costs.