SUPREME COURT.

Otago Daily Times, Issue 19015, 10 November 1923, Page 17

SUPREME COURT.

(Before his Honor Mr Justice Sint.) Fkidav, November 9. CIVIL BUSINESS. The civil business of the present session of the Supremo Court was commenced with a case boiore u jury of four, of which Mr J. If. F. Ulover was chosen foreman. CLAIM FOR DAMAGES. Keith Gough (tty his guardian, Joseph Gough) "v. Ernest Edward Booth, was a claim for £404 5s for damages received in a collision between plaintiff's bicycle and defendant's motor car. Mr \V. G. Hay appeared for plaintiff, and Air J. B. Gallan for the defendant. Air Hay . said this action was brought by the father on behalf of his son, who was 16 years of age. The collision took place on February 6 last at the corner of Hicearton road and Gladstone road, not far from Mosgiel. These two roads ran at right angles to each other, and it was considered a dangerous corner. The collision was caused not so much as the result of defendant’s motor car travelling at an excessive speed, but rather owing to his endeavouring to “cut the corner.” -ii'licn Gough was hit by the car it ran right over him and dragged him for a considerable distance. His collarbone was '’broken, and be was bruised about (he body, and injuries were inflicted which would result in his right arm being permanently disabled. The faet of the matter, was the lad was maimed for life. His. bicycle was smashed to pieces, and the suit of clothes he was wearing was ruined. The statement of claim set out that defendant was guilty of negligence. The boy was on his right side of the road, and nothing was more simple titan for defendant to have swerved his car and thus have averted the collision. The. statement of defence was that defendant was not driving at an excessive speed, and that ho was wot on the wrong side of the road. The defence also set nut that the lad was travelling at an excessive speed, but evidence would lie failed fo show that tlie speed at which the plaintiff was travelling was quite reasonable. George Robert Miliward. licensed surveyor, employed by Mr B. B. Couston. civil engineer, deposed In preparing a sketch plan of the scone of the .accident. Plaintiff said he would bo- 17 years of ago in January next. He had been using a bicycle for a matter of 18 months prior to the accident. The day of the accident was a race day. and (here was a good deal of traffic on the road. His bicycle was nearly at a standstill when the car struck him. Prior to the accident he was engaged a.f the Phoenix Biscuit Factory, and was earning £1 per week. He was unable to resume work until September 3. —To Air Calkin: He was going to the pictures when tlie accident happened, and left home in plenty of time to he there at 8 p.m. Tlie road from his home to the scene of the vcident was slightly down hill. lie had ids bicycle under perfect control. He was using tile brake’, which was a back-pedal-ling brake. He would he travelling at ’>om 3. to 10 miles an hour before ho approached the corner when the accident occurred. Dr James Renfrew White said ho treated plaintiff at the Dunedin Hospital. When 1 ho saw plaintiff ho was suffering from stiffness of the elbow joint. This would bo tboul four weeks after tlie accident. The arm had lost about 50 degrees of movement out of 80 owing to stiffness. He had now reached a stage when no further irnurovnnent could be looked for. Dr John Patrick Shore said plaintiff was in n dazed condition when he was brought to him shortly after flic accident. Witness described (he injuries which plaintiff had sustained, which were unite consistent with his account of the accident. Charles Brongell, farmer and carter, residing at Outram, said he was in defendant’s car on tlie occasion of the accident. There were five others in the car. Witness was silting in the bade seat on tlie left-hand side. If defendant had kept on Hie centre of the road an accident would not have happened. As far as the hoy was concerned the accident was unavoidable. Tlie bicycle was almost at a standstill when the car struck it. The boy was thrown backwardsby the car and dragged some 27ft. The car was 65ft down the Riccarton road before it came to a standstill. He was absolutely certain of that. Booth was on the wrong side of the road. Witness had been driving on the roads for tile past 60 years.—To Air Gallan; Ho agreed that the corner where the accident occurred was a dangerous one. Bert Marshall, labourer,' residing at Outram, deposed to being a passenger in Booth’s car at the time of the accident. Plaintiff was travelling at an ordinary cycling pace. Tlie car was going at a slow pace. XI e was of opinion that Booth lost his head, otherwise an accident could have been avoided. He did not, think tlie hoy could have got past the car under the circumstances. When the car struck the lad ho seemed to fall over in front of the car. Ho thought that if Booth had kept, his head he could have avoided running him down.—To Mr Cailan: The iad would Do about Byds from the front of tlie car when witness first saw' him. Emma Marshall, wife of the previous witness, deposed that she was sitting in the front seat of (lie car when it collided with the lad Gough. The lad appeared to approach the motor car at a slow pace, and was taking a fairly wide sweep. Tlie car look the corner sharply, and gave the hoy no room to pass. Site was of opinion that (hr accident was duo to the defendant’s failure to take a wide enough sweep. The bicycle was almost at a standstill when the collision took place. The boy appeared to have come down tlie centre of tlie Riccarton road. She did not see anything that would suggest (hat anyone in tlie car was thr worse of liquor. David Gough, motor mechanic, brother of the plaintiff, deposed as to tlie value of up bicycle, which he said was totally destroyed. Air Gallan, in opening for the defence, said that people who apparently had equal opportunities of seeing the accident had formed different accounts. It was admitted by all the witnesses for plaintiff that defendant was driving his car at a moderate pace all the way from Mosgiel. Defendant’s explanation of the accident, anil it, was continued by some of thoepeople in the car, was that the lad Gough was travelling at a faster speed that ho ought to have been travelling at. It would bo shown that, the rate of speed at which he was travelling was excessive. The- course the iad was steering gave the defendant the impression that lie was not going to Mosgiei. The lad was entirely to blame for the accident. Ho did not have his bicycle under proper control, nor, did ho keep a proper lookout. Evidence would bo called to show that, the boy citric along at a fast pace and that he appeared to he making tor Outram. It would be admitted that defendant took the corner sharply, but this was necessary in, order to avoid an accident. The impression of the driver of the car that the lad was going towards Outram seems also to have been the impression formed by some of the passengers, who would be called to give evidence. Alexander William Bathgate, photographer, deposed as to the taking of photographs of the scene of the accident, which he produced. Edward Ernest Booth, plaintiff, said ho was carrying on business as a merchant at Outram. On February 3 he was driving lii« car along the Mosgiel road. The car he, was driving was practically a new one. He had been driving motor cars for about three years. When bo first saw the lad Gough on the bicycle be was travelling at: a fast speed. ' When the collision occurred he had put on one of his brakes, but someone called out: ‘‘Go on, ■ you are on the boy.” Immediately before the collision the bov lost the grip of his machine and threw up his hands. He put on his accelerator when he was told the boy was under the car. He had a speedometer on his car. and while travelling along Gladstone road the instrument showed a speed of 15 miles an hour. When he took the corner he reduced his speed to about eight miles an hour. The weight of the oar—n Dort—was 22871 b Mr Hay; Ho had previously driven a Ford ear. He admitted that the gear of the Dort and Ford cars wore entirely different. Ho did not hold a driver’s license because he was given to understand that he did not require a license so long as he did nol_ use the car exclusively in the city. The boy was travelling at about 12 miles an hour, and he lost his head when he saw the oar approaching. Notwithstanding the evidence of previous witnesses he was convinced that he did not boro in towards the corner immediately before the accident. He applied the foot brake, which was in good working order. George Wright, hotelkeeper at putram. said ho was a passenger in Booth’s ear on the occasion of the accident. He occupied the back scat on the right hand side. He corroborated the evidence of defendant as to what contributed to the accident. _ John Little, a surfaceman, emplovcd by the Taieri County Council, and residing at Outram. gave corroborative evidence as to (be accident. He was a passenger in Booth’s car on the date of the aceident. Before the oar struck him the boy seemed to wobble his rnaebine. Had the bov continued on ~t.ho course he seemed to lie travelling on when witness first saw him the accident would have been avoided, — To Air Ilav: He would not denv that ho told 'one Lindsay that the accident happened on the opposite Gde of 'the road to which he now said it did.