NEW TRIAL SOUGHT

New Zealand Herald, Volume LXXV, Issue 23067, 18 June 1938, Page 24

NEW TRIAL SOUGHT

MAORI'S BROKEN ELBOW UNUSUAL ROAD ACCIDENT JURY'S VERDICT CHALLENGED A motion for a new trial of a damages claim heard by Mr. Justice Callan and a jury during four days last August was argued before His Honor yesterday. The claim arose out of an accident on the Hukumoa Hill, near Opotiki, on February 16, 1936, when two motor-trucks were passing, and a Maori passenger in one of them had his projecting elbow struck by part of the other truck. The plaintiff was David Mikaere, of Opapa, farmer, who sought £IOOO general and £l9B 15s 6d special damages from Te Whaka Waiapu, of Omarumutu, carrier, in whose truck Mikaere was a passenger, and also from Alfred Whitman Ruff, of Nukuhou North, carrier, the owner of the other truck, which struck him. Mikaere had suffered a compound double fracture of the right elbow, which he claimed had resulted in serious permanent disability. Decision of the Jury The jury found for the plaintiff and awarded £3OO general damages and £l4B 7s 6d special damages against the defendant Waiapu only. Judgment was entered for plaintiff, and leave reserved to Waiapu to move for a new trial. At the hearing yesterday Mr. Richmond appeared for Waiapu, to move for a new trial, or for judgment; Mr. Hodgson for Mikaere, to oppose the motion; and Mr. North and Mr. Wallace for the defendant Ruff. Mr. North said the jury had absolved his client of all responsibility in connection with the accident, and he renewed his application for costs. The matter of costs was held over. Mr. Richmond said his first proposition was that there was no evidence of negligence by the defendant Waiapu. It was demonstrably impossible for the accident to have happened mechanically unless the plaintiff's elbow had been projecting well out. If it was not true that Mikaere had his elbow just resting on the edge then his evidence fell to pieces. Further Submissions There was not only no evidence of negligence on Waiapu's part, continued Mr. Richmond, but on the other hand there was clear evidence of contributory negligence by Mikaere. Unless Mikaere's elbow was projecting so far as to constitute contributory negligence on his part, it was impossible for the accident to have happened without the vehicles touching. Mr. Hodgson submitted that there was ample evidence to enable the jury reasonably to find as they did. The nature of the break itself strongly indicated that the elbow was projecting only one or two inches beyond the standard. Even if the elbow* had bct'H out nine inches Waiapu had no business to have driven so close. There weri» no decisions to say that to project a portion of the body over the edge was in itself negligence, and it was a question for the jury. Mr. North said there was no doubt the evidence disclosed grounds on which the jury could properly have found that Waiapu was guilty of negligence. His Honor reserved his decision.