SUPREME COURT.

Otago Daily Times, Issue 21103, 13 August 1930, Page 5

SUPREME COURT.

AN APPEAL-CASE. MOTOR CAR AND MOTOR CYCLE COLLISION. Hie Honor, Mr Justice Kennedy, was occupied yesterday morning in hearing the appeal lib C. W. Humphreys (the plaintiff in the Magistrate’s Court), of Soacliff, against the deoision of the magistrate in a motor car collision case in which the other litigant was M. Wilson, of Mosgiel. i . Humphreys in the lower court claimed £166 10s special damages and £l5O general damages in respect of injuries which he suffered and damage to his motor cycle arising out of a collision between his motor cycle and the defendant's motor car. The magistrate, Mr J. R. Bartholomew, SM., held that the parties were both at fault, and that the collision was the result of their combined negligence, and neither could recover against _ the other. Judgment was therefore given for defendant on the claim and for plaintiff on the counter-claim, whi,ch was for £8 la for damage to the -motpr car. The appeal to his Honor was both on point of law and fact. Mr H. E. Barrowclough appeared for the appellant (Humphreys) and Mr A. C. Hanlon, K.C., with him Mr G. M. Lloyd, for the respondent (Wilson). Mr Barrowclough said the appeal was in connection with a collision on the Main South road. The appellant was riding a motor cycle with a side-chair and was going south, and the respondent was coming north in a motor car. The magistrate had found that the road was 19 feet wide at the point of collision, that it was covered with metal screenings, and that the appellant had rounded a slight corner and had gone on 100 yards before reaching the point where the collision had taken place. /Both vehicles ought to have had each other in view- some time before the collision, and witnesses said they ' did. The magistrate also found that at the time of the accident. there were* three well defined wheel marks—one in the centre of the road and one on each side, the marks being about five feet apart. ' These were the tracks which cars usually travelled in. The magistrate further found that apparently both vehicles were travelling Just before the accident with their right-hand wheels in the centre track. Both the appellant and the respondent in evidence seemed to have considered, in point of fact, that they were more on their own side of the road, but that evidence did not bear sufficient investigation. The magistrate had found further that the respondent’s motor car had only one light bunting, on the near side. appellant relied on the fact that just before the collision there was onljr one light on the car and that that was the primary cause of the accident. The magistrate had found on that point in favour of the appellant. Mr Barrowclough said that the evidence of two boys showed that both lights of the car were burning shortly before the collision, and he had no reason to disbelieve their evidence. He was able to show, however, just what happened, and what was probably the cause of one of the lights going out. The evidence showed that the light was carried on a bracket, and apparently the plug which fitted into the socket had fallen out owing to the jolting on the road. The accident, counsel contended, could have been avoided* by each of the vehicles making a slight turn to the left. The respondent's car, however, constituted a trap which had misled the appellant. The appellant had met a vehicle which had one light only, and any action which he took had been induced by the respondents wrongful act. That took away from Humphreys any charge of negligence. If the court was going to find 'that the appellant Humphreys was guilty of neglect in that he did not keep a sufficiently keen lookout to see the outline of the car on the side of the light, then counsel suggested every motorist who met a single light on the road would be compelled to watch that light so keenly in order to be sure that there was nothing beside it that he would get himself dazzled and the probability would be that when he had passed the vehicle he would not be able to see where he was running. There was more danger, in fact, from a partially lighted car than from an absolutely unlighted car. His Honor: The magistrate found on the facts that under the circumstances the appellant could and should have seen the oncoming car. Mr Hafilon said that Mr Barrowclough had had great difficulty in trying to persuade hie Honor that he should reverse a most lucid and logical judgment given by the Magistrate. Although there was a conflict of evidence on some points, the magistrate had worked out a very lucid judgment, and one which he submitted should not be disturbed. _ Counsel referred. to the evidence regarding the lights on the car. and said that the magistrate bad held that, one of the lights had gone out- unknown’ to the The magistrate had held as much against the respondent as he possibly could. He had decided’ that both parties were at fault, that the collision was the result of combined negligence, and that neither could recover against the other. * In reply to His Honor, Mr, Hanlon said'* that even if the motor cyclist saw only one light coming in the opposite direction and inferred it was a motor cycle, he should have veered to the left. So should the car have gone to the left. His Honor: If in fact it had been a motor cyclist, would not there have been a clearance if both’ had continued on the previous course? ' Mr Hanlon replied that _ there would have been sufficient room in .that case. There would have been only a clearance of a couple of feet, that would not have been prudent driving at night. Mr Barrowclough having briefly replied, his Hohor intimated that he would take time to consider his judgment.