DAMAGES CLAIM

Southland Times, Issue 22511, 20 February 1935, Page 3

DAMAGES CLAIM

NEGLIGENCE ALLEGED. COLLISION NEAR BRYDONE. Damages in respect to injuries sustained in a motor accident on the Edendale-Mataura Road last July were claimed in the Supreme Court yesterday by William Randolph Webb, of Invercargill, a married traveller, aged 45 (Mr B. W. Hewat), who, before his Honour, Mr Justice Kennedy and a common jury, sought to recover from the chairman, councillors and inhabitants of the County of Southland (Mr S. M. Macalister) the sum of £2500 general damage and £172 4/9 special damages on the ground of alleged negligence. Plaintiff, in his statement of claim, said that while he was seated in a stationary motor car on the Gore-In-vercargill main road near Brydone on July 20, 1934, a car owned by the defendant corporation was so negligently driven along the road by one of its servants that it was driven with great force against the plaintiff’s car and the plaintiff was thrown out and seriously injured. The negligence consisted in driving at an excessive speed, in failing to keep a proper look-out, in failing to have the car under proper control and in driving into the plaintiff’s car. As the result of the serious injuries sustained by the plaintiff, he had incurred hospital, medical and surgical expenses, had been totally disabled since July 20, 1934, and now suffered from a permanent disability. The plaintiff claimed £2500 general damagesand £172 4/9 special damages, being 30 weeks and four days’ loss of wages at £4 4/3 a week (£l2B 15/7), hospital expenses (£35 14/-), ambulance (£2 19/6) and medical exnenses (£4 8/-). The statement of defence denied the allegations of negligence and, as a further defence, contended that if the servant of the defendant corporation was negligent (which was denied), the plaintiffff had been guilty of contributory negligence; firstly, in stopping his car behind a cloud of smoke in such a position as to constitute, in the circumstances, a danger and a trap to other vehicles using the main road, and secondly, by failing in the circumstances to give the warning of the whereabouts of his car.

The following jury was empanelled: Frederick Hinton (foreman), David Milne, Andrew Lyon Keen, William Rae, John Bayne, Ernest Watson, Robert Johnston, Charles Henry Cunningham, Alfred Woollett, Alexander Edwin Gardner, George Calder Patterson and William Thomas Hannon.

Outline of Case.

Mr Hewat said that the action arose out of injuries sustained by the plaintiff on July 20 while travelling in a car on the Mataura-Edendale road. He was thrown out of the car and sustained a fractured spine. He was incapacitated from work and the injury had resulted in permanent disablement. The plaintiff, a traveller in the employ of the Para Rubber Company, had, it was alleged been struck -from the rear by a car driven by a man in the employ of the defendant County Council. Counsel then detailed the evidence he proposed to lead. The plaintiff, in evidence, said that on July 20 last year he went alone to Brydone in his saloon car to call on Mr R. Bradley, who lived on the northern side of the main road near Brydone. As witness was over the top of Brydone hill he noticed, some distance from the bottom of the hill, a man burning gorse. The road was a straight one and a northerly wind was blowing that day, causing the smoke to go at an angle of some 45 degrees across the road. The smoke’was fairly thick when he travelled through it. He could not see through it, but the smoke was not very wide. Witness pulled up to speak to Mr J. Bagrie, who was attending the fire. Witness was just starting to move off again when he felt an impact at the back of the car. The vehicle seemed to rise up at the back and that was the last witness remembered until he found himself lying on the grass on the road. His car was also over on the grass. A Mr Cameron, assistant engineer or surveyor in the County Council's employ, was the driver of the car which struck witness’s vehicle. Cameron’s car was fairly knocked about. Witness was attended by Dr Woodhouse at Mr Bagrie’s residence and later he was removed by ambulance to the Southland Hospital. There, for the first fortnight, he was propped up in a position in which he could not move. He had not worked since the accident, nor could he take on any heavy work. He had been thirteen and a-half years with the Para Company when the accident occurred. His wages had been £4 4/3 a week. He had earned nothing since the accident. To Mr Macalister: After the accident the county car was a chain away from the smoke, but he could not say how far away his own was. He did not tell Cameron after the accident that he had parked his car at the edge of the smoke. He was not moving his car in consequence of anything that Mr Bagne has said to him. He had had a previous accident in November, 1933, when he went through the Charlton bridge. He had been incapacitated for only three days. Re-examined by Mr Hewat, witness said that the county car was a chain in front of where witness was lying and not a chain from the smoke. There was never any suggestion that witness had been in the smoke. Farm Labourer’s Evidence. James Bagrie, a farm labourer near Brydone, said that about mid-day on the day of the accident he had a gorse

fire burning on the road about half-way between the gravel and the fence. When plaintiff arrived about 12 o’clock the smoke was fairly thiek. He came through the smoke and stopped near witness. They had just finished talking and plaintiff had wound up the window of his car when witness heard the other car coming through the smoke and then a crash. Witness detailed the damage to the vehicles and their position after the accident. Webb seemed to be suffering a fair bit from shock. To Mr Macalister: A statement (produced) had been made by witness after the accident. They had been jokingly discussing the Charlton accident when witness said to plaintiff: “Look out another car does not smash into you here.” He had advised the plaintiff to move his car on. It was entirely on the gravel, just beside the grass. Re-examined by Mr Hewat, witness said that Cameron wrote the statement in question and* witness signed it. wording, witness thought, was his (Bagrie’s). There was no reference m the conversation between witness and the plaintiff to the necessity for plaintiff moving his car. Percy James Patterson, a motor assessor of Invercargill, deposed to both certain road measurements on the plan (produced) and to damage caused to the cars in the collision. _ Medical evidence regarding the injuries sustained by the plaintiff was given by Dr A. Owen Johnston who said that the lower part of Webb’s spine had been fractured. Webb had previously suffered from a form of arthritis. Once solidification took place in any certain region that region could become no worse. Webb had reasonable prospects of continuing the remainder of his life free from any further trouble from arthritis. The accident had probably aggravated plaintifrs arthritis disease. The fact that for 13 years Webb had been free from pains and symptoms indicated that his arthritis was stationafln reply to Mr Macalister witness said that Webb’s back had been bent before the accident. . . Dr W. J'. Barclay was giving further medical evidence when at 6 p.m. the Court adjourned till 10 o clock this morning.