MOTOR CAR ACCIDENT

Otago Daily Times, Issue 22135, 13 December 1933, Page 15

MOTOR CAR ACCIDENT

APPEAL AGAINST JURY’S VERDICT NONSUIT AND NEW TRIAL REFUSED In the Supreme Court yesterday Mr Justice Kennedy gave his judgment on an application made by Mr A. C. Hanlon, K.C., for a nonsuit in the case in which Charles Adolph Edvert Johnson, of Dunedin, labourer, claimed £2107 10s from John Beresford Gillies, of Dunedin, salesman. for damages arising out of an accident in Princes street on the night of June 20, 1932, when the plaintiff was knocked down by the defendant’s car. The jury returned a verdict for plaintiff for £1407 ss.

Mr A. C. Hanlon, K.C., with Mr J. G. Warrington, appeared for the defendant in support of the motion for a nonsuit or, in the event of the motion being refused, for a new trial. Mr J. P. Ward said he appeared for the plaintiff in support of his motion for judgment and to oppose the other motions. His Honor’s judgment was as follows: , The plaintiff moved for judgment in accordance with the verdict of the jurv and the defendant moved for a nonsuh, pursuant to leave reserved, and for judgment,, or, alternatively, for a new trial, on the ground that the verdict of the jury was against the weight of evidence; The collision occurred at 'night between a pedestrian and a, motor car, the pedestrian being run down upon a street nmre or less from behind by the motor car. It was alleged by the plaintiff that the collision was caused by the negligent and unskilful manner in which the defendant drove, operated and managed his motor vehicle, and in particular by his failure (a) to keep a proper look-out; (b) to keep his motor vehicle under proper control so that he could have brought it to a standstill within. half the length of clear road which was visible to him. immediately in front of the said vehicle; (c) to have his motor vehicle equipped with proper headlights, and (d) to sound a warning of the approach of his motor vehicle. The defendant denied the allegation of negligence and further pleaded that if he was found to be guilty of negligence, the plaintiff himself was guilty of contributory negligence (a) in failing to keep a proper look-out for vehicular traffic while crossing the thoroughfare mentioned and (b) in failing in the circumstances to use reasonable care. No further reference need be made to the equipment of the motor vehicle, which was furnished with the usual headlights in proper order. ' The whole of the evidence may be referred to in considering the motion for a nonsuit: O’Meara and another, Mayor, etc., of Wellington, 18 N.Z.L.R. 103; Ilex v. Peddle, 26 N.Z.L.R. 9/2, Aldridge v. Paterson, l'6 G.L.R. 593. There was to some extent a conflict of testimony and credibility was involved. There was, in my view, evidence proper to go to a jury upon the management of the vehicle, the look-out, the use ol the horn and the distance in which the car was pulled up. There tverc the narratives of the circumstances in which the collision had occurred, the total failure #f the driver to see the pedestrian at any time prior to the actual collision, the driver’s admissions under crossexamination and the conflicting evidence as to the distance within which the car was pulled up. If it be assumed that the plaintiff was himself negligent, there was still evidence, proper to be considered by the jury, whether, notwithstanding the plaintiff’s negligence, the defendant might have avoided the collision by the exercise of reasonable care. It cannot, I think, be successfully contended that there was no evidence of negligence to go to the jury. I shall later in dealing with the motion for a new trial further refer to the evidence.

The rule to be applied in determining whether a verdict should be set aside, as against the weight of evidence, is that the verdict will not be disturbed, as being against the weight of evidence, unless it is one which a jury, Viewing the whole of the evidence reasonably, could "not properly find: The Metropolitan Railway Company v. Wright, 11 A.C. 152; Pipworth v. Horowhenua Publishing Company, Ltd., 11 G.L.R. 214 C.A. It is clear that the horn was not sounded and it is for the jury to say whether, in the special circumstances, detailed by the defendant, that was not a negligent omission. The jury might reasonably have taken the view that the defendant 'did not see the plaintiff, but should have earlier seen him had he kept a proper look-out, and that without rejecting the statement that the defendant was momentarily blinded, and. in that instapt struck the pedestrian. They might well have been of the opinion that the defendant should, before he was blinded, have seen the injured man as he crossed in front of the car or proceeded parallel to the pavement and that, if he did not then see him, he failed in his duty of keeping a proper look-out or they' may have thought that if he was more than momentarily blinded that he negligently drove on further than he should have without blowing his honi. There was evidence both ways as to the space within which the defendant pulled up, and it was open to the jury to prefer the view that the car travelled some little distance past the injured man before it was pulled up, negativing the defendant’s statement that he had the car in such perfect control that he instantaneously pulled it up when blinded. I cannos affirm that the jury, viewing the whole of the evidence reasonably, could not take the views mentioned.

As to the plaintiff's conduct there is evidence that lie looked before, he left the pavement, that he again looked when he left the second line of rails and that he did not seen any vehicle. Ido not think the only possible inference is that the injured man was not keeping,, a proper, lookout. It will be observed that he was not emerging from a covered .way, nor was he proceeding in a direction- in which he had as good an opportunity of seeing the motor car as the motor car driver had of seeing him. There was some difficulty in apprehending the evidence of the injured man because of what appeared his slow apprehension of the meaning of a question and his peculiar expression. Upon one view, he was going at a slight angle to the pavement and turned more to his left or directly across, at the threat of being run over by the car. Upon the other view he was going parallel to the pavement. Even if those possibilities are not exhaustive his direction would in any event be more or less away from the direction of the oncoming car, and he was not, as was the plaintiff in Smith v. P.urdie, 1033, N.Z.L.R., 392, going in a direction in which, although he was not directly meeting the car, he could more readily observe its approach. But if it be assumed that the jury found that the plaintiff was negligent, there would still remain the question whether, notwithstanding his negligence, the defendant could, have avoided the collision by the use of reasonable care. The case is quite different from the type of case exemplified by Swadline v. Cooper, 1931, A.C. 1, where, when the parties became aware of their respective positions there would have been no time for the defendant to avoid the impact. But on the contrary this case is more of the type cf case of which British Columbia Electric Railway Company, Ltd., v. Loach (1916), 1 A.C. 719, and M'Lean v. Bell, 48 T.L.R., 467, are examples. If the question arose in M'Lean y. Bell

(supra) whether the defendant could have avoided the collision by the exercise of reasonable care, as the House of Lords held it might, then a jury might well in this case take the view that, notwithstanding the plaintiff’s negligence, the defendant might have avoided the collision by the exercise of reasonable care, and might have concluded from the probable course of the plaintiff and from his being aware immediately prior to being struck and from his endeavour to avoid the car, which struck him on his right leg from behind, that by swerving, even to'a slight degree, the defendant could have avoided the plaintiff, even if the plaintiff was negligent in being where he. was at the, moment of collision. Lord Wright’s observations in M‘Lean y. Bell (supra) are in point. Ho said: “In one sense, but for the negligence of the pursuer (if she was negligent) in attempting to cross the road, She would not have been struck, and as matter simply of causation, her acts formed a necessary element in the final result, since without them no accident could have occurred. The decision, however, of the case must turn not simply on causation, but on responsibility;, the plaintiff’s negligence may be what is often called causa sine qua non, yet as regards responsibility it becomes merely evidential or matter of narrative, if the defendant acting reasonably could and ought to have avoided the collision. . . . In These days of rapidly moving traffic it is true that a foot passenger should be circumspect in crossing a road, but it is equally true that the driver of a motor car should be on the alert in seeing danger and in controlling his speed and course accordingly, and may be in a much better position to avoid a collision than the pedestrian. It must always be a question of fact and degree.” I conclude, therefore, that it cannot be affirmed that the jury, viewing the whole of the evidence reasonably, could not have come to the conclusion reached and I may say as relevant that I had no reason! to be dissatisfied with a verdict fixing th 6 /responsibility as the jufy did. The nonsuit is refused. The motion for a new trial is also dismissed, and on the motion for nonsuit and the motion for a- new trial the plaintiff will be allowed the sum of 10 guineas for costs. The plaintiff will have judgment against the defendant for £1407 6s, the damages awarded by the Jury, with costs according to scale as upon that amount, with witnesses’ expenses and disbursements to be fixed by the registrar, but with disbursements for a jury for two days only. I certify for one extra day at 10 guineas.