A JURY'S VERDICT

New Zealand Herald, Volume LXXIII, Issue 22390, 9 April 1936, Page 17

A JURY'S VERDICT

DAMAGES CLAIM SEQUEL NEW TRIAL REFUSED COMMENT BY THE JUDGE An application to set aside the verdict of a jury and grant a new trial of ft civil claim for £3022 damages was dismissed by Mr. Justice Callan in a reserved judgment delivered in the Supreme Court yesterday. Tho action arose out of a motor collision, and in it Peter Percy Hurlstone, gardener, of Auckland (Mr. Haigh), claimed damages from Harold Oscar Steadman, collarmaker, of Auckland (Mr. Goldstine). Plaintiff, when riding a motor-cycle on the Groat South Road, collided with a car driven by defendant and suffered injuries, for which he claimed £2500 general damages and £522 special damages. After a hearing in February tho jury found that both parties had been guilty of contributory negligence, and that neither had the last opportunity of avoiding the collision. Judgment was entered for defendant with costs.

Mr. Haigh applied early this month for a new trial on the grounds that material evidence had been discovered since the trial which could not have been foreseen or known before the trial, that the verdict of the jury was against tho weight of evidence, and upon grounds set forth in affidavits. Evidence About Disputed Fact

"During the trial, much evidence and argument were directed to the question whether the collision took place, as plaintiff asserted, on the concrete on his left side of the road, or, as defendant's witnesses claimed, on the bitumen which occupies the centre of the road," Hia Honor said in his judgment. "There was evidence in support of each view of this disputed fact. "Defendant relied (inter alia) on the evidence of police officers, who came upon the scene after the collision and found defendant's car upon the bitumen. From their observations they formed the opinion that it had never been further across the road. But plaintiff had eye-witnesses who swore that the collision occurred upon the concrete."

The new evidence upon which the application was based, said His Honor, was that of a witness who swore that he assisted defendant's driver to move the car back, and the evidence of a witness who swore he saw this being done.

Various Questions Reviewed It was manifest that had this evidence been produced at the trial, added the Judge, the trial would have been substantially different from what it was, and that the difference would have favoured the chances of the plaintiff. But, viewing the present motion merely as an application based on the discovery of new evidence, that was certainly not enough. "But, it is said, the verdict actually obtained was vitiated by fraud," His Honor continued. "Where fraud is alleged, considerations arise which are not relevant when the application for new trial is based solely on the discovery of new evidence. But the fraud should be alleged." His Honor dealt with various questions of law and practice and said he did not consider a party seeking a new trial should be allowed to base on the contents of belated affidavits a successful request for the indulgence of the Court. The motion was dismissed with costs, £lO 10s, against plaintiff.