CLAIMS FOR DAMAGES

Otago Daily Times, Issue 23247, 20 July 1937, Page 3

CLAIMS FOR DAMAGES

OUTCOME OF MOTOR COLLISION NEITHER PARTY SUCCEEDS A claim for £lls 3s 3d, arising out of a collision between a taxi and a milk van at the Leviathan Hotel corner on the morning of March 12, 1936, was entered by Harry Borland (Mr E. J. Anderson) against Walter James Napier (Mr A. N. Haggitt) at a sitting of the Magistrate's Court before Mr J. R. Bartholomew, S.M., yesterday.

In his statement of claim the defendant alleged that the collision was due to the defendant’s negligence in failing to keep a proper lookout, in driving at an excessive or unreasonable speed, having regard to the circumstances, in failing to give way to the plaintiff’s car which was approaching from the right, in failing to exercise care and caution in entering upon the intersection, and in failing to slow down or steer clear in sufficient time to avoid a collision with the plaintiff’s car. The plaintiff therefore claimed £SO 3s 3d damages to the car, £35 loss of business, and £3O depreciation to the taxi.

The defendant entered a counterclaim for £26 14s 7d, alleging that the collision was due to the plaintiff’s negligence in that he failed to keep a proper lookout, he drove at an excessive speed, and failed to apply his brakes or take other steps to avoid colliding with the defendant. Mr Anderson said that the action arose out of a collision which took place on March 12, 1936, at the corner of Lower High street and Cumberland street, opposite the Leviathan Hotel. A South End taxi was taking a fare to the Railway Station at about 8.15 a.m., and was on its correct side of the road approaching the intersection. The defendant, who was a milk vendor, was proceeding south along Cumberland street, and "the vehicles met on the north side of the intersection. It was contended that the defendant’s duty was to take particular care when coming out of Cumberland street into Lower High street, and also to obey the right-hand rule. The taxi driver approached the intersection at about 20 miles an hour, and when he was practically on to the intersection he saw the defendant’s van about 80 feet from the intersection. The van appeared to slacken its speed, which the taxi driver took to indicate that he was being given the right of way, but then it came on and struck the taxi, being capsized. The defendant was subsequently alleged to have said that he thought he could shoot across the taxi’s bows. Evidence in support of the claim was given by Lionel Harris Rathbone, the driver of the taxi, Gordon Morsborough Anderson, an insurance agent, and Harry Berland, taxi proprietor. For the defence Mr Haggitt contended that there was contributory negligence on the part of both parties, but that the last opportunity to avert the collision lay with the taxi driver. He admitted that the defendant should have seen the taxi approaching the corner, but that did not dispose of the matter. It was contended that the plaintiff’s taxi was travelling at a high rate of speed. The corner was a dangerous one, particularly for cars coming along Cumberland street, but it was idle to suggest that Napier was negligent because he did not see the approaching car, for he might have been looking for traffic coming the other way. The taxi driver admitted that his speed across the intersection was 18 miles an hour, whereas under the regulations in force at that time the speed over intersections was limited to 15 miles an hour. According to evidence, it would seem that the taxi was travelling considerably faster than that. The defendant would say that he stopped at the Leviathan Hotel, and was just moving off again, so there could be no question of excessive speed on his part. In addition, whereas the defendant did not see the approaching car, the taxi driver saw the defendant’s van and had the last opportunity to avoid the accident. Evidence was given by the defendant, George Thomas Anderson, motor body builder, William Perry, and Nathan Wood Millard, garage foreman. After reviewing the evidence, the magistrate said that it was obvious that both parties were at fault. Therefore, neither could recover. Judgment would be given for the defendant on the claim, with solicitor’s fee (£5 ss) and witnesses’ expenses (£2 13s), and for the plaintiff on the counterclaim, with solicitor’s fee (£3 3s).