FULL DAMAGES AWARDED

Taranaki Daily News, 8 December 1927, Page 3

FULL DAMAGES AWARDED

PILLION RIDER LOSES LEG A JUROR’S STATUS QUESTIONED. PANEL OF ELEVEN CONTINUES. The Big Jim’s Hill motor collision case, in which Thomas McLeod Wnite, a pillion rider, claimed £lO9O general and £298 16s 4d special damages for negligence resulting in the loss of his right leg, from Albert Henry Smith, trading as the United Service Bus Co., Takapuna, was decided yesterday by a special if., v of 11. Th© jury retired at 12.50 p.m. and when they returned at 2.40 p.m. their verdict was that defendant had been guilty of negligence, and that the plaintiff’s 'brother had been guilty of no contributory negligence. They awarded the full amount of damages claimed — £1298 10s 4d. When the court resumed yesterday morning an unusual position was disclosed, and a unique procedure was adopted. His Honour announced that counsel had heard that one of the jurymen, Mr. F. F. W. Eberlet, was a booking agent for certain service cars in which defendant was interested. If that were so counsel had agreed that he should be discharged and that they should allow the 11 remaining jurors to decide the issues. In reply to His Honour, Mr. Eberlet admitted that his firm was agent for the Sun Motors, whereupon His Honour said the juryman would be excused from further duty, and he left the court at 10.15 a.m. Counsel then addressed the remaining jurymen. Mr. Gould, for defendant, maintained that the accident was du© to misjudgment on the part of the cyclist, and taels; of reasonable care. Another contributing factor had been the pillion rider. He accepted the evidence of the medical superintendent that the injuries to plaintiff were caused by a violent blow—probably the bracket of the spare tyre rim on the side of the bus. The available road was 23ft wide 'but, submitted counsel, the tar-sealed portion of th© 35ft was placed more to the left of the centre, so that vehicles proceeding downhill on the inside seemed to have, but actually did not have, a bigger share of the available roadway. The bus of defendant, because it was so big, would appear to be taking up still more room. It was that circumstance which had such a large 'bearing on the accident. HIS HONOUR’S SUMMING UP. Mr. Weston, for plaintiff, said that the story of the plaintiff and his brother substantially the same simple story all through in the statements to the police, in the lower court, and in the present case. The story of the defendant had, however, been different and “improved.” His speed in the statement to the police had been 20 to 25 miles an hour; -before the magistrate it had been 12 miles an hour. Again, in the statement to the police defendant said he had been occupying 12 or 13 feet of the metal, and had swerved. Later he had said he had been right over against the bank, and there had been no swerve, because that story left him no room to swerve. The improvement of the story of defendant had discounted his right to be believed. His Honour said he was glad the issues were to be decided by a special jury, and he stressed the need of banishing any feeling of sympathy for plaintiff and deciding entirely on evidence heard. There had been much said about the danger of pillion riding, but he would say that pillion riding was just as legal as the driving of such a bus as plaintiff’s. Again, the fact that then* had been a case before the magistrate made no difference to the case before them. There had been conflicting evidence and some changes in the evidence The jury would agree that human powers of observation were fallible. Even if a man changed his evidence that did not necessarily mean he was lying. Men were often self-hypnotised into -believing an issue was true.

‘‘BUS AS BIG AS A HOUSE.” There were, said His Honour, three simple issues. Firstly, was the accident caused by the defendant’s negligence? If the jury believed the evidence of the plaintiff it was clear defendant was negligent. Over most country roads, in view of the fact that his bus would take up half of the width, a greater degree of care was necessary. It seemed to His Honour, when deal ing with disagreements in different statements by the same person, that the statement of defendant made at thu time was the one to be given the most weight. Defendant had given a statement to the police, and he left it to the jury whether there was any other suggestion than that the bus, when ten yards off plaintiff, had skidded and swung round to plaintiff. Were the two accounts anything alike? If they were not alike, which was the more likely to be correct? Defendant admitted he had finalised the matter and thought it over. Was that course quite proper? Dealing with the statement that plaintiff’s cycle had been cutting the corner. His Honour asked if that was reasonable. Measurements on the plan showed the accident had occurred before the cycle reached the bend, when the bus had felt the full force of centrifugal action. “Would a man,” asked His Honour, “who was not a lunatic, seeing a bus as big as a house coming along the road 100 yards away, cut the corner? The very law of self-preserva-tion would prevent a man doing that. He would not be likely to cut the corner, as he would know he would come off second best. If, as one. witness said, the cycle was coming straight for the radia- i tor 6f the bus then, surely if that were true the bus was at fault.” The second question was, was the accident contributed to by the plaintiff’s brother? The plaintiff had no control as he had to go where he was taken. Did the plaintiff’s brother do all in his power to avoid the accident ? “What damages, if any, is plaintiff entitled to!" was the third question. The theory was that plaintiff was entitled to* be placed in the same position as though the injury had not been suffered, if negligence had. been the cause. The jury retired at 12.50 and returned at 2.40 p.m. with a verdict for plaintiff. Judgment was then entered, for £1298 10s 4d, witnesses expenses and disbursements, together with costa as per scale. Twenty-two guineas were allowed counsel for the second day and half the third day