MOTOR CYCLE SMASH.

Pahiatua Herald, Volume XXXIX, Issue 11847, 11 September 1931, Page 5

MOTOR CYCLE SMASH.

ECHO OF YEAR OLD SMASH CLAIM FOR DAMAGES FAILS. •

Arising out of a collision near the Bank of New Zealand corner between two motor-cycles, fully ten months ago, Frederick Sedcole (Mr JS. If. Tinned) sued Ernest Henry Kilmister and Lawrence Gordon Kilmister (Mr S. K. Siddells) for the sum of £3OO. The statement of claim read: “The plaintiff by his solicitor rays: (1) That on the 17th day of November, 1930, the defendant Lawrence Gordon Kilmister negligently rode a motor-cycle on Main Street, Pahiatua, with the result —• that it came into collision with a motor-cycle owned and ridden by Frederick William Sedcole, a son of the plaintiff. (2) That on the said occasion the plaintiff was a pillion rider on his soil’s said motor-cycle and sustained a broken leg as a result of the collision. (3) That the defendant the said Ernest Henry Kilmister was the owner of the motor-cycle ridden by the defendant the said Lawrence Gordon Kilmister at the time of the collision by virtue of Section 3 of The Motor Vehicles Insurance (Third Party Risks) Act 1928 the said Lawrence Gordon Kilmister was the authoris-

-ed agent of the defendant the said E. H. Kilmister acting within the scope of his authority in relation to such motor vehicle at the time of the collision, so that the defendants are jointly and severally liable tor any damages that may be awarded to the plaintiff. (4) The plaintiff has suffered severe financial loss and much pain, suffering and inconvenience as a result of the breaking of his leg.” Plaintiff sought to recover from defendants the sum of £3OO damages, made up as follows: (1) Hospital expenses, £36 13s 6d • (2) doctor’s fees, £5 10s; (3) general damages, £257 16s 6d. „ Mr Tinney said that on 17th November last plaintiff was pillion riding on his sou’s motor-cvele. Ihey came up Manghaao Road,

crossed the intersection and turned south into Main Street on the east side of the garden square The defendant, Lawrence Gordon Kilmister, was riding his motor-cycle north along Main Street and collided with Sedcole opposite Eckerslec s Store. The father of defendant had also been sued in this ease, as the son, who was only 18 years of age, was his authorised a y e . nt - , As a result of the accident plamtifr sustained a broken leg and was taken to hospital the “same evening. The collision occurred at 7 o clock on a fine summer’s eveningPlaintiff was an inmate of the liospital for 69 days, but later returnea tor a period of ten davs and * , n , R» r another seven. His hospi"'ll, was £36 16s 6d, and Dr ~, " ®" s account was £5 10s. -r-iaintilt sustained a compound fracture of the leg. He was a dairy former, leasing a property just on the edge of the borough, and was tne father of ten children, the eldest being 21 years. His financial circumstances were poor. Sedcole was still very seriously prejudiced by the injury in working on his farm one lor. 1.:

+ l ’if le .s n°w being a quarter to half an inch shorter. The claim tor general damages was £257 10s bd. which counsel submitted was little enough under all the cireumstances. Mr I innev said the defence would be that young Sedcole cut the corner and did not give way to traffic on his right. In turn, the allegations of negligence in respect of Gordon Kilmister were that he did tad to give any warning of his approach; did fail to keep a proper look-out on a corner living fair Visibility; and that he drave at an excessive speed under the particular circumstances. Also that he did tail to stop m time to avoid the accident when he had the opportunlty, that he did fail to swerve t 0 i ~ to avoid the plaintiff, anci that he negligently swerved to the right and struck the plaintiff " ‘V? 11 Sedcole saw Kilmister he realised that the only way of avoiding him was to accelerate, as he had already broken the off-side rule Vi,, the roa f[- Sedcole swerved to the left and it was believed that dent *? ra k e d and swerved to his light. His front wheel struck the hack wheel of Sedcole’s machine ar Vr!, ' ,lo^e the plaintiff's Jeir f pla / n 4 iff ,'. Frederick Sedcole, the ° f r !, ainat "-''V said that on die date of the accident he was riding lion behind Ins eldest son on the after s motor-cycle in Manganao head irom the direction of the railway station. It was just before ‘ P- m• - and broad davlight. The road was quite dry. As they crossed -Mam Street he saw two people standing at the gate of the fhUPole square, (V. Colville and Miss fenett. Witness described bv dinson"; t l"‘ onurse taken bv his 5t,.,. t,lr ' ln ‘K to his right up Main iri, : 111 1 ''out of Eckersley’s store. . i speed was no more than 12 .... J". ‘ !,,k ‘ s a, > hour, as the corner

very had one. He passed v I 1 P aces (12 feet) of Colfeme I’, standing by the Plaintiff «-,;!?> d hood-night to him. little to Cm left i . "lelmecl a 4 . i " lion be saw the and ~",cM l, n‘ on his right, road travefl! 1 / tl! " middl e of the ~,1 to i .. , t |"~ ai w ’at he est-imat-‘k 'mile- ‘ , a " excessive speed—hm "'* Kilmister braked

-i '- l 1( ' / . fo lose control of ns machine and then bore over to bis right at an angle of 39 decrees The impact broke both bones in str"’?; H: ,' d Kilmister goie -t a -lit on and not swerved lie would have missed the rear of Sed coles cycle altogether. |[ ( . would Jia.<‘ reared it bv vnrrk im,i

' .vdHis nnci ho horn, to the left. AY-t ness said 1,7 s lied out to defendant fast as t m impact was pending. »nm«th: n «r , : ' V ’" dnmn - fool.’- Plaintiff parxicnlars of his several «n----1 ns in tfi'e Public Hospital. The l! ; u.is scraped t'.vico and even now

-was not properly set. It prevented him ploughing and doing other hard work on the fafm. It ached in bad weather and was about half an inch shorter than the other. Nine of his ten children, he said, were all at home, dependent on him. Last year he was prevented from, ploughing in preparation for winter feed and his butter-fat dropped accordingly. In reply to Mr Siddells, plaintiff said his son did not drive at an unreasonable speed. His son was travelling at about 20 miles an hour up Mangahao Road before the accident. Kilmister was travelling three times as fast as they were when they crossed the intersection. His son accelerated to cross in front of Kilmister.

Henry Thomas Dawson, medical practitioner of Pahiatua, and superintendent of the Public Hospital, gave evidence of the nature of the compound fracture. It was a bad break and it was a long time before it united at all. The leg had shortened by about a quarter to half an inch, and there is a deformity at the union in consequence of the nature of the break. He doubted if .plaintiff would ever be able to do the same hard work as before.

Frederick William Sedcole, junr., farm labourer, aged 21 years, son of plaintiff, said he was the owner and driver of the motor-cycle on which his father was pillion-riding. He corroborated the story told by his father. His speed across the intersection uas about 12 to- 15 miles an hour. He then made what counsel said was “a bad admission in a place like this”—he told the Court that he did not sound his horn because his was out of order. There ivas a smile even from the Magist a vr te ‘ Witness admitted calling out: “You d— fool, Gordon” as he saw an accident was inevitable. To Mr Siddells, witness said the fastest rate at which he had ever driven through Paliiatua was about 30 miles an hour. Under pressure, Sedcole admitted that he did cut the corner “a little bit.” He said he passed to the left of the maniwuv crossm g Main Street. illiani John Perry Colville, sliare--n.lkei at Mangamutu, said he was standing near the square gate talk>i ini°,u M ' SS - aud Miss White, c, t i Si-eeted .him as he passed on the back of Ins soil’s motor-ovcle at a pretty slow pace. He saw Kilminster approaching frem the direction. of Mr Cittadini’s mart \ 0 horns were sounded. Kilmister’s machine was not travelling fast, just musing .along. Kilmister swerved out. to las right just- before flic impact.

To Mr Siddells lie said that Sedcole vas cutting the corner till he saw the other machine and then he swerved out to his left. The impact took place m about the middle of the J'OcKl.

Constable F. Burrell deposed to i i.siting the scene shortly after the accident. He could not understand t ( K -‘ accident was not avoided. Kilmister c-ould have easily avoided K by bearing to the left, and not to the right He was riding his father s motor-cycle on the day of the accident.

Maud Sirett, on the staff of- the Pahiatua I üblie. Hospital, and niece ° ' v • 3 Colville, a previous witness, saw the accident. Neither party seemed to be travelling fast, but Kilmister was going faster than e.rdccle.

Mr Siddells applied at this stage for a. ncn-suit, alleging that so far, on the evidence given, no negligence had been established on the part of defendant.

The Magistrate agreed that the only probable negligence had been Ins emission to blow the horn. . Mr Siddells maintained that the intersection had not been reached u hen Kilmister first saw Sedcole and so there had been no duty on him to Mow it.

The Magistrate said that if this had been a case of young- Sedcole as tbe plaintiff against the defendant t.ien there would have been no question as to tlie result, but in the case m a passenger suing, the law allows him to ignore the negligence of his iiiend, whom he was riding with and proceed against the other party whose negligence might not have been nearly so great. He would hear the evidence for the defence. THE DEFENCE. Mr Siddells said that negligence lias described as the absence of care according to particular circumstances and to succeed the plaintiff must establisii neghgene on the part of defendant- It had been suggested that he railed to give* any warning of his approach. The evidence proved quite conclusn-ely that other than this possibility of failing to- give warning of Ins approach, the- whole cause of the accident was the negligence on the part of Sedcole junior. Had it not been for the fact of the third-party agreement n-o case could possibly have been held against Kilmister. Sedcole junior admitted in evidence flint his own horn was out of order yet he had wittingly gone out to- Bill lance that day where the roads made it necessary for him to use a. horn. I here was no allegation of excessive speed and Counsel submitted that the whole, and ou.lv, cause of the accident u-as the negligence of Sedcole as none had been proved against Kilmister. The defendant. Laurence Gordon Kr mister, aged 19 years, said he had he.cl ii drivers license tor 2 years. He had had three motor cycles. The

last ivas registered in his father’s name and that was the one defendant li as on when the accident occurred. His father had never ridden the motor-cycle as he found his nerve was not good enough, so- he let wit ness have it. The horn and brake* were in good order. He approached the Bank corner at 12 to 15 miles -,p hour, keeping a look-out for tvaffion his right. He glanced also to the left and was from half a chain to n chain awav when ho first snvr Sedcole round inrr th~ hei'd of t’ o sou a re- and keepmtr close- to the r-Ml Dele udant thought the other cvclisf won hi null up to let h an have the r ght-o-f-wav but instead he went across in front and witness c n ,,j;,,' f i bis brakes ■•mme-diatelv. The imiv-'-t r-me and defendant- was Grown n»,.r f he liondh-bars. Both rr.-cl b- l( . s hnrl been ta-nVeiling at about, the ' sn’lno s - '’ml He admitted that h-d he f--. cd to the left lie may have avo-' 1 , d '

the accident but he did not have time to think. He denied that he swerved to the right just before the collision and tried to duck round in front of Sedcole’s machine. H© admitted being a. bit flurried at the time. After the accident young Sedcole- said to him -. “What, did yon do that for?” The Magistrate said the case was of great importance to plaintiff, the father, as he- had been very severely injured and the- sympathy of the Court must go to him in that respect. But before he co-u-ld succeed it must be shown that the facts of law were on his side. The- facts, however, varied, and were very hard to apply. If the case had been between the two drivers, and if both had bee-a negligent, there would have been no liability on either side. But a passenger could sue- either party—ignore h ; s friend the driver, in this case his son, and proceed against the defendant. So in this case- it was possible for plaintiff’s son to have been negligent and yet Kilmister be the one to- be sued. It was clear that young Sedcole cut the corner. The question then was the allegation of negligence against Kilmiswr in that lie failed to sound his horn. The horn should, be blown on all reasonable occasions. In this case the attention of the Sedcoles should have been directed to their right. The father did see Kilmister coining, but the son did not. If he- did not then lie incapacitated himself. His Worship said he did not see, under the circumstances, that there was an obligation on defendant to blow his horn. Having found the driver, Sed-cc-le, guilty of negligence, the only question was to decide whether Kijinister was also gui-lty His speed was n-ot more than fifteen miles an hour and he was on his correct side of the road. If Sedcole had been further across the road, or his speed had been greater to indicate- his intention of getting across, Kilmister’s duty would have been to avoid the collision. It was not quite clear whether defendant took a turn to the right or not but to suddenly see- a motor cycle cutting the corner and cutting across in front of him might induce him to hear to the right. But that was not negligence as it all happened so suddenly. Mr Miller said he was not going to rule in this case that Kilmister had the last opportun" ilv of avoiding the accident or that there was negligence on his part-. But even if Kilmister ivas negligent, so was plaintiff, Sedcole senior, who saw defendant approaching through the trees in. the- square and he should have warned his son. This then brought it hack to the position as between driver and driver in which case on© could not recover from the other. Unfortunately for plaintiff lie must fail in liis action. Judgment would he for defendant for costs, comprising solicitors’ fee, £ls.