NEW TRIAL ORDERED

Sun (Auckland), Volume III, Issue 665, 17 May 1929, Page 1

NEW TRIAL ORDERED

POINTS NOT DECIDED SEQUEL TO COLLISION CASE Holding that a magistrate had not decided questions it was necessary to decide in order to arrive at proper conclusions in a case, his Honour Mr. Justice Blair today ordered a retrial of the case in which Robert Allan Buchan, settler, of Auckland, claimed damages from D. Steele, of Maurice Road, Penrose, for injuries received through being run into by Steele’s motor-car. In t!»o Magistrate’s Court judgment had been given for the plaintiff, but an appeal was made to the Supreme Court against this decision. In evidence submitted to the Lower Court it was stated that the accident happened after plaintiff and his wife and child had alighted from a bus on the eastern side of Great South Hoad, opposite Waiohua Road. The car driven by the defendant was coming in the opposite direction, and plaintiff made an effort to cross the road. When he reached the footpath the cai mounted the kerb, knocking plaintiff down. It was stated that defendant had a look of horror on his face at the time of impact. Basing his judgment on this point, he held that a person seeking in a reasonable way to avoid an accident should not have energy, even in very trying circumstances, to waste over a look of horror, and this tends to show that defendant lost his head.

In his reserved judgment, Mr. Justice Blair said he failed to agree with this proposition. It was a well-known rule that the creator of a position of emergency calling for instant action on the part of another, could not complain if that other person did not in the circumstances do what on further consideration would have been the best thing to do. jn ordering a new trial, his Honour fixed costs at £7 7s, such costs to follow the event of a new trial. Mr. Clarke appeared for the plaintin, the respondent in the appeal, and Mr. West for the defendant, or appellant.