£1259 DAMAGES AWARDED

Southland Times, Issue 23178, 20 April 1937, Page 8

£1259 DAMAGES AWARDED

APPEAL COURT JUDGMENT

STATIONARY CAR HIT (United Press Association) WELLINGTON, April 19. “In my opinion it is necessary in the interests of justice that the court should jealously guard its controlling power over the verdicts of juries, and that juries should not have a free hand to whittle away the standard of care allowed by the law,” said Mr Justice Ostler in the Appeal Court today when delivering judgment in an appeal from the judgment of Mr Justice Fair, given in favour of respondent, arising from a collision between a motor-cycle driven by Holford Stewart, and a stationary car owned by George Alfred Francis Hancock, on the Great South road Between Te Kauwhata and Mercer during the night of December 8, 1935. Mr Justice Ostler continued: “If that controlling power is relaxed or weakened there is a real danger that the liability for motor accidents will come to depend entirely on the whim or prejudices of juries. Defendants will be liable without proof of negligence and plaintiffs will be able to recover, although their contributory negligence is manifest to all reasonable men.” _ In delivering his judgment, with which Mr Justice Johnston concurred, Mr Justice Ostler said appellant, having had trouble with his car on the road, had left it without lights and the respondent, riding his motor-cycle _ along the road collided with the stationary car, breaking his leg. At the close of respondent’s case counsel for the appellant moved for a non-suit and for judgment on the ground that respondent’s own evidence conclusively proved contributory negligence on his part. The judge refused to withdraw the case from the jury, but reserved leave to appellant to move. Thereupon counsel for appellant elected to call evidence. No issues were put to the jury but they were carefully and correctly directed. The jury found for respondent, awarding £259 special damages and £lOOO general damages. Appellant then moved for judgment, or non-suit, on the ground that the evidence proved respondent was debarred from recovering damages by his own contributory negligence. He . also moved for a retrial on the ground that the verdict was against the weight of evidence, that the damages were excessive and that the evidence had been wrongly admitted. . Mr Justice Fair decided against appellant on all grounds and gave judgment for respondent. Mr Justice Ostler’s judgment continued: “I have no hesitation in holding that the facts stated by the learned judge conclusively prove that, notwithstanding the negligence of appellant in leaving the car unlighted on the road, respondent had a later opportunity of avoiding collision by the use of reasonable care, and that had he used reasonable care he would have avoided the accident. I cannot find a single fact in the whole of the evidence upon which the jury would be justified in saying that it excused respondent from the duty of seeing appellant’s car in time to avoid a collision. Respondent’s evidence, in my opinion, conclusively proves he was the author of his own wrong. That being the case, in my opinion the judgment of the Court below is erroneous and should be reversed” In a dissenting judgment Mr Justice Smith asked: “Were the circumstances such that reasonable men might not find that the respondent was not guilty of negligence, but were bound to find that he was? I think not. _ On the question of whether a new trial should be granted upon the ground that. certain evidence/was improperly admitted, he came to the conclusion that it had been so admitted and that there had been substantial wrong occasioned to appellant and that the Court should orddr a new trial. Judgment was entered m accordance with the majority verdict.