SUPREME COURT

Southland Times, Issue 20489, 17 May 1928, Page 9

SUPREME COURT

SESSION CONCLUDED. MOTOR CAR COLLISION CASE. The Supreme Court session at which his Honour Mr Justice Sim has been presiding concluded yesterday when a claim for damages arising out of a motor collision was heard- and other minor cases disposed of. CLAIM FOR DAMAGES SUCCEEDS. The case that occupied practically all the morning was a claim for damages by Elijah Mullengei, Dunedin, from Arthur Mann Ayling, Invercargill, arising out of a collision between cars owned by the plaintiff and defendant. The plaintiff claimed £ll7 10/3 damages sustained “by reason of the defendant on the second day of January, 1928, so negligently and unskilfully driving and managing a motor (ir in a public place, to wit, at the intersect’on of Yarrow and Kelvin streets, that the same was forced against a motor car belonging to and driven by the plaintiff whereby the plaintiff’s car was damaged.”

The plaintiff also claimed £7 5/- special damages for motor hire. There was a counter claim for £l5 17/6. Mr Eustace Russell appeared for the plaintiff and Mr Horace Macalister for the defendant. In opening the case Mr Russell said that the plaintiff with a party of bowlers was coming from the Te Rangi green west along y arrow street approaching Kelvin street. The plaintiff when 45 feet from the intersection saw the defendant’s car 90 feet away. The plaintiff thought he had plenty of time to cross before the defendant, but the latter apparently did not see plaintiff till nearly at the intersection. Defendant was blind in the right eye and this, submitted counsel, contributed to the accident. Mr Russell quoted the “offside rule” and put in the borough by-law on this rule which had not been observed by defendant.

Elijah Mullenger, a builder residing at Ravensbourne, Dunedin, said that he had been driving a car for ten years. On the day in question he left the Te Rangi bowling green with four other bowlers. He was driving down Yarrow street between the tram rails and the kerb on the left-hand side. Approaching the intersection of Kelvin street he looked to right and left. The right was clear, but on the left he saw Ayling’s car going north up Kelvin street. When witness saw Ayling witness was considerably nearer the intersection. Witness thought defendant would give him the right of way. Witness was travelling along Yarrow street at from 15 to 18 miles an hour. He slowed down near the intersection. When he saw Ayling’s car close upon him he swerved to his right leaving defendant room to pass behind him if he also swerved. Witness when he swerved saw that there was a chance of his hitting the kerb so he pulled the wheel over again. Before this took effect defendant struck his rear left hand wheel, lifting the car up on two wheels. Witness had no control of the car till it dropped on its four wheels. His car finished up on the tram rails. Witness asked defendant why he did not stop. He replied that he did not see witness, and added: “It was an accident; I suppose you are insured. I am. We were both travelling too fast.” Witness detailed the damage to his car, which had been .repaired. A practical man could detect that the car had been in an accident despite the repairs.

To his Honour: Had he accelerated instead of swerving defendant would have

struck the front of the car. To Mr Macalister: Witness did not think it necessary to swerve right into Kelvin street as he thought Ayling would clear him without that. Witness was not a fast driver. It was not true that he had driven down from Dunedin in four and a half hours. He did not sound his horn when approaching the corner. He did not know that the corner was a dangerous one. Clarence Carter, managing director of Carters Motors Limited, Dunedin, who was

seated with plaintiff in the front seat at the time of the accident, said they were travelling at from 15 to 18 miles an hour on their correct side. Witness described the accident almost in identical terms with the previous witness. In reply to his Honour witness said that plaintiff would probably have avoided the accident if he had accelerated.

Witness discounted this statement when in answer to Mr Russell he said that he did not think there was sufficient time for plaintiff to accelerate when he saw an accident imminent.

Herbert Cyril Hutton, painter, Ravensbourne, another occupant of the plaintiff’s car, gave evidence of the collision. Mullenger in his opinion did all he could to avoid the accident. Had Ayling not swerved to the left after his first swerve to the right he would not have struck plaintiff’s car. The other occupants of the car, Albert French and James Macpherson, both of Dunedin, also gave brief evidence. This concluded plaintiff’s case, Mr Macalister for the defence commenced by stressing the dangerous nature of the Kelvin street intersections. Defendant was travelling at a speed of from 12 to 15 miles an hour, whereas it would be submitted that Mullenger was going considerably faster. Mullenger had not seen Ayling till almost upon him and the latter had done all he could to avert the collision by pulling to the left and stopping. Counsel that he would put in the borough by-law limiting the speed at such intersections to ten miles an hour. He was satisfied the evidence for the defence would disclose that the excessive speed of the plaintiff caused the accident.

Arthur Mann Ayling, the defendant, said that he had driven almost daily for four years. iWtness was travelling at not more than 15 miles an hour up Kelvin street just before the accident. He blew his horn twice approaching the Yarrow street intersection. Within two car lengths of the intersection he saw a “streak of car” coming along Yarrow street. To avoid a collision he pulled to the left and applied his brakes. The collision then occurred. Witness was not sure whether he hit Mullenger or Mullenger hit him. After the impact witness’s car was opposite Dr Stewart’s gate and plaintiff’s car was near Bdth’s garage.

To Mr Russell: He recollected saying after the accident, “It was an accident. I am insured. Are you?” Witness had lost the sight of his right eye. To Mr Macalister: He had been without the sight of that eye for 30 years. It did not interfere with his driving. John Henry Kissell, saddler, Invercargill, who was in the back seat of Ayling’s car at the time of the collision, corroborated defendant’s evidence.

To Mr Russell: Had Ayling seen Mullenger’s car sooner and turned to the right he would have avoided the accident.

George Anderson, tailor, Invercargill, an eye-witness of the accident, was the next to give evidence. He said he was right on the corner when he saw Mullenger’s car coming along on the tram rails. The speed at which the car was travelling attracted his attention. For a crossing the speed was much too fast, being not less than 25 miles. He looked round and saw the collision, which occurred nearly opposite Dr Stewart’s gate and on the tram line. After the collision Mullenger’s car passed on for about ’A) yards and stopped. Ayling’s car was on the line facing west.

To Mr Russell: He did not see Ayling’s car before the collision because his back was to it.

Kenneth James Lindsay, claims assessor, Dunedin, said that he had interviewed Mullenger and Carter regarding the accident and had taken statements from them. The damage to Ayling’s car was confined to the right hand front side. He would estimate the depreciation to Mullenger’s car as inconsiderable. VERDICT FOR PLAINTIFF. His Honour after briefly reviewing the evidence said that it seemed to him that the real cause of the accident was that the defendant had not kept a proper lookout. Under the by-law defendant should have given way to the traffic on the right. He found for plaintiff, awarding £B9 15/damages, as he did not consider there was any depreciation.