A COLLISION CASE.

Otago Daily Times, Issue 19622, 28 October 1925, Page 12

A COLLISION CASE.

CROWN v. DR J. FITZGERALD DECISION FOR PLAINTIFF. The case arising out of a collision between Dr Janies Fitzgerald and Inspector Craighead of the Health Department, was decided in the Magistrate’s Court yesterday morning when Mr J. R. Bartholomew, S.M., delivered his reserved judgment in favour of plaintiff on a claim for £lOl damages, and on the counter-claim for £lO6 Os 9d. Mr F B. Adams appeared for the Crown, and Mr J. B. Callan for the defendant. In the course of his judgment, Mr Bartholomew said; — “The plaintiff seeks to recover £lOl for damages resulting from a collision between a motor car driven by James Craighead, an inspector in the Health Department, and defendant’s ear, which collision plaintiff alleges was due to defendant’s negligence, (defendant counter claims for £lO6 damages sustained by him in the said collision which he claims was caused by Craighead’s negligence. “Apart from the evidence of the drivers of the respective cars, there is little direct evidence of the actual collision, and there is a most extraordinary confusion and contradiction between witnesses. I accept the evidence and plan supplied by Constable Rusbatch as establishing the of Dr Fitzgerald’s ear, the locality of impact, and the various distances. It was also proved by this witness and by other evidence that Dr Fitzgerald had applied his brakes, and swerved to the right some 18ft before the collision, the swerve being gradual at first, and very sharp at the finish. Craighead’s evidence is that he was proceeding south along Princes street, and had crossed over behind a car bound for the Flat with the intention of proceeding up the Cemetery hill, that he was then going about eight or nine miles per hour, that ho first saw defendant coming from the direction of the Kensington Hotel after he (Craighead) had passed behind the south-bound car. Craighead considered ho would be unable to cross ahead of defendant’s car, so he turned to his left parallel to the St. Kilda tails, that there was at this time no imminent risk of collision •. that if both cars hold to their respective courses they would have cleared by from 6ft to 7ft, but defendant’s car, when about 20ft away, swerved in a semi-circle and struck Craighead’s right front wheel. Craighead says be was practically stopped at the time of the. impact. "Hr Fitzgerald’s account is that he saw Craighead’s car passing behind a tranicar, and took it that the motor was going up Cemetery 11111. When he again caught sight of the car he saw that a collision was imminent, and he swerved to the right. Craighead seemed to go two or three ways afterwards, swerving towards Dr Fitzgerald’s car, and a collision resulted. At time of the collision Craighead was in motion. Mr A. G. Fox. defendant’s witness, says Craighead wobbled, afterwards lurching to the left at the point, of the collision. Defendant’s car must have been pointing towards the Oval at the .time of the impact, for it to have been struck on the right front huh. I must, therefore, conclude that the defendant is quite mistaken in his account of the incidents immediately preceding the collision. I think it is sufficiently clear that Dr Fitzgerald’s final swerve to his right was the actual cause of the cars coming in contact, and the onus is on defendant to explain or Justify his swerve to his right instead of to his left. Defendant’s counsel (Mr J. B. Callan) contends that defendant was placed in jeopardy by the course taken by Craighead, and his turn to the right was excusable, as it was due to a sudden emergenry created by Craighead. Mr Callan relies on Dr Gerald Fitzgerald’s evidence, and submits that it is supported by Fox’s evidence. Mr Little places his position as being 50 to 70 yards distant at the time of the collision, and while Dr Gerald Fitzgerald contradicts Mr Little’s evidence, it Is somewhat difficult to gather from him exactly where he places his own car at the time. Kstimates of distance are notoriously faulty, but the discrepancy is altogether too great. It has not been proved that Craighead made a wide swerve in the manner contended by defendant’s counsel. My conclusion js that the actual cause of the collision was defendant’s swerve to his right—that his own account of Craig head's movements is manifestly erroneous, and that the other evidence does not establish tbit* defendant’s swerve to his right was the result of a sudden emergency, created by negligence on the part of Craighead, but that the collision would have been avoided by defendant deviating to his proper course-‘ttf’the "left or evCn■ ■by’Atis continuing to hold his course without swerving. Judgment will' be for the plaintiff on claim and counter-claim.