NEW TRIAL SOUGHT

Southland Times, Issue 21090, 23 May 1930, Page 5

NEW TRIAL SOUGHT

KELVIN ROAD FATALITY. JURY’S FINDING DISPUTED. “AGAINST WEIGHT Of EVIDENCE.” Lengthy legal argument was addressed to his Honour, Mr Justice Kennedy, in the Supreme Court yesterday, when a new trial was sought by Roy Rankin Wallace, of Invercargill, salesman, and Fleming and Company Limited, the defendants .in a civil claim, for £2500 brought against them by a widow, who claimed such sum as damages in respect of the death of her husband as the result of an accident. The Litigation to Date. 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 MeBeath, 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 Waldace (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 hearing argument both by Mr Tait in support of judgment being entered in favour of the plaintiff and by Mr Sinclair in arrest of judgment, his Honour, on Wed. nesday, awarded the plaintiff and her children the amount granted by the jury. New Trial Sought. The defendant now applied for the order that a new trial should be had between the parties to the action on the grounds that the verdict of the jury was against the weight of evidence in so far as it found: — (1) Was the defendant Roy Rankin Wallace, guilty of negligence in any, and if so, in which of the following respects? (a) In driving at an excessive speed ?—Answer: Yes. (b) In failing to keep a proper look-out?—Answer: Yes. (c) In failing to give audible warning of bis approach?— Answer: Yes. (d) In attempting to pass the cart driven by Andrew John Mcßeath at or immediately before the intersection of Thames and Kelvin streets?—Answer: Yes. (2) If both the defendant Roy Rankin Wallace and the deceased, Andrew John Mcßeath, were negligent, whose negligence was the real cause of the death of the deceased Andrew John Mcßeath—Answer: Roy Rankin Wallace. (3) What damages is the plaintiff entitled to recover?—Answer: £1250. (4) How do you apportion such damages between the wife and the children of the deceased? —Answer: £750 widow; £5OO to children to be equally divided. At yesterday’s hearing, Mr Eustace Russell (instructed by Mr J. S. Sinclair, of Dunedin) appeared in support of the application, while Mr M. M. Macdonald and with him Mr J. Tait were present to oppose. Mr Russell’s Argument. Mr Russell, in arguing the merits of the application, submitted that the rule was now established that the verdict of a jury ought not to be disturbed unless it was one which a jury, viewing the whole of the evidence reasonably, could not properly find. That did not mean,, contended counsel, that where there was evidence both ways that a new trial could not be obtained. The expression “against the weight of evidence” implied that there was evidence on both sides. Continuing, Mr Russell said it was difficult to resist the conclusion that, in the case in question, the jury acted unreasonably upon a contrast of the evidence of both sides and that they had not found their verdict upon the evidence having in view the real questions which they had to decide between the parties. Upon a reasonable view of the evidence the verdict ought not to stand. The plaintiff had alleged negligence in that Wallace had been guilty of travelling at an excessive speed; of failing to .keep a careful lookout; of failing to sound his horn and of attempting to pass at or near an intersection. The defendant denied negligence and denied all the aforementioned allegations. lie further claimed and, according to the jury’s finding, proved, and the jury so found, that the deceased was negligent in a contributory manner in that he started to cut the corner at the intersection, of Kelvin and Thames streets, argued counsel. Defendant further alleged that the deceased did not have his horse under control. The jury found he did have the animal in hand so, therefore, his act of turning the horse was impliedly found by the jury as being a voluntary one. “Then we, therefore, start off with the finding that the deceased was negligent in that he cut the corner or was doing so and did so voluntarily at the time of the collision” continued Mr Russell. “Were the jury justified on the evidence in their answers to the issues, particularly in finding that, in effect, deceased’s negligence in no way contributed to the accident? I submit that they were not.” There was no justification for their finding that the real cause of the death of the deceased was the ’negligence of Wallace, submitted counsel. There was no evidence at all to support that finding, and if there was it was so outweighed by the evidence for the defendant that the defence was entitled to say the jury’s finding was incontestably against the weight of evidence. It could further be contested on the evidence that, if the deceased had continued on in. the line he was going at the moment prior to the horse turning, there would have been no collision. -Mr Russell, continuing, emphasized that the onus rested upon the plaintiff to prove to the satisfaction of reasonable men that Wallace had the last opportunity, despite the joint negligence, of avoiding the accident. Reverting to the question of speed, counsel said that the witness Grieve had stated that the speed of the car was not unreasonable. Grieve was about 500 to 600 yards from the scene of the accident when he formed such estimate. Then appeared the golfer, Henry, whose evidence, suggested Mr Russell, was so obviously distorted and so contrary to fact and reason under all the circumstances that no jury could possibly have accepted the same as against that of other witnesses who saw the car on the road. Henry had been playing golf at the time on the other side of a thick inacracarpa hedge and other plantations and he could only see, if at all, at intermittent intervals through gaps of the hedge, while, moreover, he had sworn that the car was raising no dust, which, of course, was ridiculous it if had been travelling at a high speed on a road with a gravel surface. Dale was the most reliable of the plaintiff's witnesses on the'speed question. He swore the speed was reasonable and he had an unobstructed view from within a couple of- feet of the corner. His Honour (interrupting): But Dale said Wallace accelerated when passing. Mr Russell: Yes, sir, but he did not say the youth accelerated to an excessive speed. Counsel, after further exhaustively arguing from the evidence on this aspect, submitted that the jury could not possibly find, on the facts disclosed, that the speed was excessive. The evidence of Wallace, Pickford and Benpett (an entirely independent witness), the circumstances of the collision, the actual damage sustained by both the car’and the cart all supported the reasonable conclusion that the speed could not have been excessive, urged counsel. “But, 1 further, the burden was upon the plaintiff to show excessive speed but she has failed to do so. I suggest that the jury was influenced by other motives,” he said. Continuing, Mr Russell submitted that the sounding of motor-horns was an every day occurrence now, and he doubted if witnesses would even bother, to notice whether Wallace had sounded his horn or not.

His Honour: But there is the further fact that those in the car say the deceased took no notice.

Mr Russell: Yes, sir, but it does not follow that, if the deceased heard the horn, he must get right out of the road. It is a common occurrence to sound the holm, so need the deceased have given some indication that he heard it? Counsel further argued that, at the worst, the jury could not have found more than that, the accident was due to the joint negligence of the deceased and the defendant. “The finding, notwithstanding the negligence on both sides, that the real cause of the collision was Wallace’s, is unreasonable and against the weight of evidence. But even on the evidence, we say the jury were not justified in finding even that the defendant was negligent at all or that he was driving at an excessive speed. For these reasons it is submitted that a new trial should be ordered as justice has not been done. Obviously the verdict has been based on human sympathy,” concluded Mr Russell. The Other Viewpoint. “The principles upon which a new trial is granted upon the ground that the verdict is against the weight of evidence are well established,” began Mr Macdonald in opposing the application. "If it is shown that the Judge has properly directed the jury and that the verdict is one which, upon the evidence reasonable men could find, the verdict should not be set aside even although another jury might arrive at a different conclusion.” Counsel submitted that the jury were quite justified in concluding that Wallace’s speed was excessive. The witness Grieve deposed to the speed having been not less than 25 miles per hour and that it seemed to be increasing. Henry said it was a very fast speed. “My friend has suggested that Henry, through the trees, could only have seen the wheels, but your Honour will remember that the witness stated he saw two passengers in the car. Therefore the jury were entitled to assume Henry’s view was not obstructed,” said counsel. “Again, there is Dale, who distinctly swore that Wallace accelerated when passing. But there is the additional fact.that Wallace admitted he had only an hour for dinner, from 12.30 to 1.30. The witnesses agree the collision occurred about 1.25 to 1.30 so there arises an inference of haste,” emphasized counsel. “I submit that all the evidence for the plaintiff as to excessive speed far outweighs that of the defence to the contrary and it was open to the jury so to find.” Dealing with the question of the lookout, kept by Wallace, Mr Macdonald submitted that the fact the youth did not notice the deceased’s gradual turn was evidence that there was not a proper look-out. Accordingly, it was quite onen to the jury to find that such negligence amounted to direct contribution to the accident. Continuing his argument, counsel contended that the only evidence of the sounding of the horn was that of Wallace and Pickford, but it must be remembered that, according to a dictum of his Honour Mr Justice McGregor, such parties were “interested” ones. “Henry, Joyce, Bennett and Dale did not hear the horn while the action of Mcßeath, himself also inclines one to the conclusion that there was no sounding. The deceased stayed on the crown of the road. If he did hear the horn, it is only reasonable to assume that he would have deviated from such crown. But what is more important, seeing the deceased stayed on the crown of the road and gave no indication of hearing the horn, should Wallace under such circumstances have attempted to pass him?” queried counsel. Even had the deceased been guilty of contributory negligence, there was evidence of a gradual turn made by him and Wallace, had he been wide awake, would have seen the turn. It was for the jury to say if the youth could have avoided the collision. “Again,” contended counsel, “there was an 184-foot clearance between the right hand side of the motor car and a line with the telegraph post. The jury might well have conceded that there was ample room for Wallace to have turned to the right without endangering Pickford and himself in any way. Walla.ce. himself, has given somewhat contradictory evidence on that point. In this suit, he said he did not attempt to turn to the right, but at the inquest he deposed to having endeavoured to make a turn. There was strong evidence that Wallace travelled at an excessive speed and was not keeping a proper look-out and I submit,'on those two salient facts alone, that the defendant had the last opportunity of avoiding the accident. The onus on the defence to show that the verdict was against the weight of evidence hits not .been established. It is not that another jury might find another verdict, but that the present jury, as reasonable men, were justified in finding the verdict they did,” reiterated Mr Macdonald in concluding his argument. After hearing Mr Russell in reply, his Honour reserved his decision.