WIDOW’S CLAIM

Southland Times, Issue 21089, 22 May 1930, Page 8

WIDOW’S CLAIM

RESERVED DECISION JUDGMENT GIVEN FOR PLAINTIFF MOTION FOR NEW TRIAL In the Supreme Court last week, before Mr Justice Kennedy and a jury of twelve, a lengthy civil action was heard when a widow claimed to recover the sum of £2500 as damages in respect of the death of her husband as the result of an accident. The fatal collision occurred on September 13 of last year, when, at the intersection of Kelvin and Thames streets, a car driven by a youth named Roy Rankin Wallace hit a baker’s cart belonging to Mr A. D. Derbie and driven by Andrew John Mcßeath, who died the next day from his injuries. Plaintiff was Margaret Mcßeath, who sought to recover the above-mentioned sum from the said Roy Rankin Wallace (the driver) and Fleming and Co., Ltd. (owners of the car concerned in the accident). At the hearing Messrs M. M. Macdonald and J. Tait represented the widow, while Mr J. S. Sinclair, of Dunedin, was counsel for the two defendants. Mr Eustace Russell watched the interests of Thomas Andrew Wallace, father of Roy Rankin Wallace. The jury found' that both the deceased and the defendant Wallace had been negligent, but that Wallace’s default was the real cause of the death of Mcßeath. Accordingly they awarded £1,250 damages, £750 of that amount to go to the widow and £5OO to be divided equally among the children.

After addressing the jury, Mr Sinclair applied to his Honour on a point of law that the case should be withdrawn from the jury on the ground that contributory negligence had been established beyond all doubt.

His Honour said he would make no observations at that stage, but reserved the question. The jury having given their finding, Mr Tait moved for judgment in terms thereof, while counsel for the defendants renewed his motion raised during the case and asked that, the case being withdrawn from the jury, judgment should be entered for his clients. Plaintiff Obtains Judgment. His Honour’s judgment was as follows:— “In this case the usual issues requiring answers to the question whether the deceased, Andrew John Mcßeath, was negligent, whether the defendant, Roy Rankin Wallace, (hereinafter called the defendant driver) was negligent, and, if both were negligent, whose negligence was the real cause of the death of the deceased, were agreed to by counsel for the defendants. At the conclusion of the evidence counsel for the defendants addressed the jury and then moved that the case should be withdrawn from the jury on the gronud that upon the undisputed facts of the case the only rational inference was that the deceased was guilty of contributory negligence. I reserved consideration of the motion and put the issues to the jury. “The jury found by their verdict that both the deceased and the defendant driver had been guilty of negligence and that the real cause of the death of the deceased was the negligence of the defendant driver. Upon such findings the plaintiff moved for judgment, while the defendants asked that, the case being withdrawn from the jury, judgment should be entered for the defendants. Both motions then fall to be disposed of.

“There was a contest as to the degree to which the horse and cart driven by the deceased had deviated or turned prior to the impact, and as to the space available on the right of the horse and cart through which, it was said by the plaintiff, the car driven by the defendant driver might have safely passed. I do not recollect, before the jury had returned a verdict, that it was conceded that the deceased had made a turn or deviation intending to cross into Thames street, as distinct from making such a deviation from a straight course as might occur where a vehicle was drawn by a horse, even though there was no intention to turn in the street. In argument, however, after a verdict had been returned, it was conceded by counsel for the plaintiff that the. deceased was turning slightly in the road prior to the impact. Crux of Contest. “The contest lay between whether, on the one hand, the horse and cart made a turn sufficient to block the oncoming car, or whether, on the other hand, the turn made was what was described as the beginning of a turn and so slight and gradual that it would not, at the speed at which the horse was travelling, effectually block traffic about lo pass and travelling at a much higher speed, if such traffic but kept a proper lookout. Upon this question there was, in favour of the plaintiff particularly, the evidence of Constable Melville and the witness Dale as to the marks, and an admission made by the witness Bennett in cross-examination, while there was much evidence (including evidence in chief by the witness Bennett) that the turn was substantial. In addition to the evidence I have referred to, there were facts as to the Collison deposed to by various witnesses, who observed what preceded and followed the actual impact. There was a contest as to how the car and horse and cart reached the spot where the horse broke from the cart, and, consequently, as to the exact nature of the impact. “The facts from which the inference is to be drawn that the deceased, and not the defendant driver, had the last opportunity of avoiding the accident by the exercise of reasonable care are in dispute and are not admitted facts. There was a like dispute as to facts from which it was sought to be inferred that the deceased was negligent. Vital Questions in Dispute.

“It cannot be said therefore, that, upon the admitted or undisputed facts, the only rational inference was first, that the deceased was negligent, and or secondly, that the deceased’s negligence was the real cause of his own death. The facts have to be reviewed as they appeared before the verdict of the jury, for that verdict does not convert into undisputed or admitted facts any facts found in the answers to the issues. There is conflictiii; evidence upon the vital questions of fact mentioned and consequently, although there may be a great weight of evidence to the effect that the accident was inevitable, when the deceased deviated, there was other evidence, which, if the jury accepted it and rejected the other, might permit it rationally to take the contrary view. The case, consequently, could not properly be withdrawn from the jury without the judge assuming the functions of the jury. “It was submitted in argument that the verdict was against the weight of evidence, but, upon that, no opinion is expressed. That submission may be considered when the motion for a new trial, which, I understand, is filed, comes before me for consideration. “There will therefore be judgment for the plaintiff against the defendants for £1,250. with costs according to scale, and with witnesses’ expenses and disbursements to be fixed by the registrar. I certify for an allowance of 15 guineas for the second day of the trial and for 10 guineas for each of two day of the trial for second counsel.” Motion For New Trial. The defendants have filed a motion for a new trial on the ground that the jury’s finding was against the weight of evidence. Such application, it is understood, will be argued before his Honour this morning.