UNLIGHTED CYCLE STRUCK

Taranaki Daily News, 24 August 1931, Page 11

UNLIGHTED CYCLE STRUCK

DAMAGES CLAIM NON-SUITEQ.

THOUGHT HE SAW PEDESTRIANS.

NO EVIDENCE OF NEGLIGENCE. On the grounds that there was no evidence of negligence by the defendant to go before the jury, Mr. Justice Blair on Saturday withdrew the case from hearing and entered a non-suit against William Mattier on his claim against Hector Angus Ross for £92 18s Cd special and £lOOO general damages. Mattier had his right leg injured in Kaponga township about midnight on March 21 when the unlighted motor-cycle on which he was riding pillion collided with a car driven by Ross. When the hearing was resumed on Saturday morning Mr. P. O’Dea on behalf of Ross asked that in the circumstances the case should be wi'iidrawn from the jury and judgment given for the defendant. He based his application on the grounds of contributory negligence, which, he submitted, was plain in that Mat tier rode on the back of an unlighted motor-cycle and thereby associated himself with the negligence of the driver, Ham. He contended also that there was no negligence on the part of Ross.

His Honour asked for Mr. A. K. North’s views in reply to the second point. Mr. North said the evidence showed that the car swerved over to the wrong -side of the road where the accident: occurred. That in itself was a prima facie ease to go to the jury, he contended. After some argument between bench and bar oii the point his Honour, addresssing the jury, said he had not the slightest doubt about the matter. The plaintiff had to prove his case; he had to establish something, even if it were a feeble case of negligence against Ross, before he was entitled to have his claim heard by a jury. In this case the allegation of negligence against Ross was that he ought to have seen the motorcycle in time to avoid the accident, and that not having seen it he suddenly deflected his course and collided with it.

Ross thought he saw two pedestrians suddenly appear in front of him and he suddenly changed his direction in order to avoid them. , In endeavouring to avoid the imagined pedestrians, however, he collided with the. unlighted motor-cycle. When a person was placed in sudden peril he had suddenly to make up his mind what he was to do to avoid it. .

His Honour was of _ the opinion that Ross’ action in attempting to avoid what he thought was two pedestrians did not amount to negligence. The most that could be alleged against him was that he suddenly turned onto the wrong side of the road. As it turned out, he did the wrong thing, but that did not matter.' “Negligence” connoted a “duty.” It seemed to his Honour that in the circumstances the plaintiff had offered no evidence showing negligence by the defendant; that being so it was his duty to withdraw the case from the jury and enter a non-suit. Rights of appeal were reserved to Mr. North. Costs were allowed to defendant on scale, with disbursements and witnesses’ expenses to be fixed by the registrar.