ACTION FOR DAMAGES

Otago Daily Times, Issue 22252, 3 May 1934, Page 7

ACTION FOR DAMAGES

SEQUEL TO COLLISION VERDICT FOR THE PLAINTIFF The case of Bray v. Gilmore, a claim for £2OOO damages in respect to a fatality on the Dunediu-Waitati road, was concluded before Mr Justice in the Supreme Court yesterday, Mr P. S. Anderson appeared for the plaintiff, Jessie Rae Bray (widow of Joseph Francis Bray), of Merton; Mr A. N. Haggitt for the defendant, Norman Hamilton Gilmore, of Main North road, Dunedin, carrier. When the hearing of the defendant’s case was resumed Constable M’Robio, stationed at South Dunedin, said that in May last year he was relieving at VVaikouaiti. He visited the scene of tho accident on the night it happened, and after looking round he took a statement from the defendant. The body was taken to Waikonaiti on the defendant’s lorry. On examining the lorry he saw, on rhe projecting edge of the drop board on the right-hand side, blood and horsehair. There were no marks on the front of the lorry. Witness had the lorry tested by Mr Richardson, who found the lights and brakes in perfect order. Next morning witness went back to the scene of the accident and took measurements. Ho prepared a plan (produced). The probable point of collision he fixed by a pool of blood on the road, nine feet out from the left-side edge, facing south. Thu lorry had pulled up 66 feet from the point of collision. By Mr Anderson: If the impact took place where witness supposed it did, and if the defendant swerved to his left just before the mishap, it would appear that the defendant had been cutting the corner.

Georgo Shaw, private bailiff, said that on the day of the accident he saw Bray come off the ,4 o’clock bus from town. Later he drove some cattle off hia farm. When witness saw him at 5 o’clock he was in a very excited state. William James Macdonald, bailiff, gave similar evidence. Witness made no attempt to stop Bray from taking the cattle, thinking it would be unwise to do so that night. Thomas Henry Robinson, company inspector, gave evidence as to the rates of wages paid on farms, and Edward William Fulton (Pensions Office) informed the court of the pension payable to a widow with children.

Addressing the jury, Mr Hnggitt said he would admit that Gilmore was aot travelling as far over to the left as he might have done. But there was no rule that a driver must always hug the leCthand side, and it was a common practice when the road was clear to keep to the centre, where the surface was good. Counsel contended that there was ample room for the horse to pass the motor without injury. As a matter of fact, the horse did pass the front of the lorry. This bore out what Gilmore said—-that he carefully negotiated the corner and then, to his astonishment, found himself faced by a horseman. The true and decisive cause of the accident was, he submitted, to be found .in what took place after the horse had passed the front of the lorry. Another question for the jury to consider was. Could Bray, by the exercise of reasonable care, have avoided the accident? The fact that Bray had nine feet clear showed he could have done so. The evidence, however, showed what Bray's condition was on that night. Ho was in a very excited state owing to his application to the relief board going against him. Ho returned from town in a very excited state; he borrowed a horse, and he proceeded to drive cattle out of his paddock for the purpose of getting past the bailiffs. It would seem the bailiffs were terrified of the man that day and did not dare to interfere with him. On two occasions they had had to invoke the aid of the police for their protection. Those facts showed that Bray’s- state of mind on that night was quite desperate, and that, counsel submitted, might have led to the accident. It was possible that the horse shied away from the lights of the lorry and then fell against the vehicle. That, at any rate, was a possible cause of the accident. Counsel algo addressed the jury on the question of damages. Mr Anderson said the rule of the road required the driver of a vehicle to keep to the left. True, in this case, the lights of the lorry would show straight ahead —iu other words, on the bank—and it was for that very reason that the rule to keep to the left was made. If the driver of the lorry had kept to his left there would have been no mishap. As for Bray’s state of mind, it had been suggested that the man bad pulled his horse on to the lorry. There was no evidence to support that contention. Thu witnesses who said Bray wag in an excised state saw him at 5 o’clock, and the accident took place at« 7 o’clock—two hours later—by which time Bray had had plenty of time to cool down. Counsel invited the jury to picture what had happened. Where was the lorry? From the evidence, it was plain the driver had been cutting the corner. The impact took place about the middle of the road, and it must be remembered that the driver had just swerved to his left. To 3 driver, therefore, must have been well on his wrong side, because, even after swerving, he was still on his wrong side. On that evidence alone the jury might bring in a verdict that the driver of the lorry was negligent. Counsel also pointed out that if the horse had shied there would have been marks of the animal’s swerve on the road, but as a, matter of fact no such marks had been found. Further, if the horse had swerved, as suggested, would (he horse not have received injuries on the head or on the- shoulder? As it was, all the injury was on the horse’s right side. On the evidence before the court, counsel submitted that the defendant had not proved what he set out to prove—that he had not been negligent. Further, he had not proved that the deceased was negligent. His Honor summed up the evidence for the benefit of the jury. At 5.30 p.m. the jury retired. They returned at 7.40 p.m. with a verdict for the plaintiff for £I3OO, to be shared as follows: —£400 to the widow and the balance of £9OO to be equally shared among the eight children, making their shares £ll2 10s each.

His Honor accordingly gave judgment for the plaintiff for £I3OO, with costs: expenses and disbursements to be fixed by the registrar.