TRAM MISHAP

New Zealand Times, Volume XLVI, Issue 10563, 14 April 1920, Page 3

TRAM MISHAP

WOMAN CLAIMS DAMAGES INTERESTING LAW POINT BEFORE APPEAL COURT. The Court of Appeal was concerned yesterday with the Otago case of Robert, Douglas Kenny and Elizabeth Kenny (appellants) y. the Dunedin City Corporation. The Bench consisted of Mr Justice Edwards, Mr Justice Cooper, and Mi Justice Chapman. The Dunedin City Corporation was represented by Mr W. C. MacGregor, K.C., and Mr T. Neave. Mr J. B. Callan and;Mr E'. P. Hay appeared for the Kennys. The appeal was against a judgment' given for the corporation by the Chief Justice in a Supremo Court case, in which Elizabeth Kenny claimed £633 general damages for personal injuries, and Robert Douglas Kenny claimed £ll7. STATEMENT OF CLAIM. In Mis Kenny's original statement of claim It was sot out 'that she had been injured by being thrown from a Dunedin tramcar, and , that the accident was caused through a servant ol the corporation negligently re-starting the car when she was alighting. She had suffered much pain, had long beep prevented from litfeliding to Household duties, and would be lame for the rest of her life. The corporation's statement of defence was, that Mrs Kenny met with the accident through her own negligence ; that she was not prevented from attending to household, duties for tho period stated; and would not be Inmo for the remainder of her life. The issues put to., the'-fury w-ere ; ■ 1. Were the servants of the-defen-dant guilty of any negligence that caused the accident?.. And, if- - so, wbjit? 2. Was tho plaintiff, Mrs Kenny, guilty of any negligence that led to her accident? 3. What damage® (if any) are tho plaintiffs entitled to recover? (1) The plaintiff Robert Douglas Kenny; (2) the plaintiff Elizabeth Kenny. „ , The answers wore... .... 1. Yes; that tho conductor should have seen that all passengers who wished to alight were clear of the car before starting. 2. That wo hare -no conclusive evidence to prove- that- Mr®-Kenny” was stepping off or -was thrown off by the movement of tho car. 3. (1) £100; (2)-f!Bsor-NOT ANSWERED. When the verdict was delivered,* Mi MacGregor (counsel for the corporation) remarked that the second issue had not been answered. The foreman of the jury then said that the jury was unable to say boa- the accident occurred. His Honour found that the conductor’s negligence was not the oai’ra cattsans of the accident, and that "Mrs Kenny was bound not to alight when the car was moving, no matter how negligent tho conductor had been. It was clear that Airs Kenny could not recover if the jury’s finding was equally consistent with her falling off or jumping off. The plaintiffs had failed to prove their case, and judgment must bo entered for tho defendant. The appeal was for the reversal of that decision, and tho entering of judgment for plaintiffs for £IOO and £350 and for costs. ■ In tho alternative a now trial was requested. Decision was reserved.