WITHDRAWN FROM JURY

Taranaki Daily News, 19 November 1932, Page 5

WITHDRAWN FROM JURY

MOTOR COLLISION CLAIM NO EVIDENCE OF NEGLIGENCE. ACCIDENT ON THE BREWER ROAD. - On the ground that there was no evidence of negligence, an action based on a motor collision on Brewer Road, Strathmore, on May 25 was withdrawn from the jury at the Supreme Court at New Plymouth yesterday •and a non-suit was entered. That course was taken by Mr. Justice Reed at the conclusion of . the evidence adduced for George Roy Commerer, a motor-cyclist, on his claim for £5OO general and £69 Is. special dainages against Augustine Coyne and his daughter, owner and driver respectively of the colliding car. Costs and witnesses’ expenses to be fixed by the registrar were allowed against Commerer. The hearing was commenced on Thursday, and on the resumption yesterday morning Commerer was cross-examined by Mr. C. H. Croker. His girl was thrown over the front of the side-chair, he said. She was not hurt. On account of his condition at the time he- could not remember whether Miss Coyne offered to take him to town. He denied that he had been on the motor-cycle more than a-few times in the previous month. As he approached the comer he veered to the left, and after seeing the car he veered further to the left. He would have .veered about 18 inches to the left the first time, and even further the second time. The car did not move either to right or left. To his Honour: He was about 20 feet away when, in turning the comer, he saw the car approaching. To counsel: If he had continued in his course there would have been a head-on collision. His Honour pointed' out that if the cycle was travelling at 10 miles an hour and the car at 20 miles an hour there would be only half a second between the sight and the impact. Tn connection with witness’ statement to the police Commerer said he had been summoned for not keeping to his correct side and for not having a driver’s license. He had admitted to the constable he was on his wrong side. FARMER’S EVIDENCE. Called by Mr. N. H. Moss for the plaintiff, James Dromgool, farmer, Strathmore, said he was walking on the left of the road when Commerer passed on his motor-cycle at seven or eight miles an hour. Witness was about 4$ chains from the comer. He saw Commerer from the time he passed until the accident occurred. He considered the cycle was travelling along the centre of the road, although he could hot see very plainly from the position in which he was standing; When Commerer neared the comer he veered to the left. • At the same instant witness heard the sound of Coyne’s car. Not quite- half a second later he saw the crash. He saw the bonnet and the whole front of the car. ■ ■ On arriving on the scene witness found Coyne leaning against the rear wheel, of his cycle. He said he was hurt “a little bit” Looking at the man’s foot, witness realised the injury was serious and that the first thing to do was to get him to the hospital Subsequently Commerer sat on the bank.. The car had backed about ten feet Commerer felt the shock badly, witness was sure. He thought Commerer took notice of all that went on. ' . One of the women suggested getting the police. Commerer said he was not going to bother, as his cycle was not registered. Miss Coyne, the driver, was upset Again it was suggested the police should be brought. Witness could not say what Commerer said to that, but witness said the sooner they got the man to the doctor the better. Witness went to help Miss Coyne, who was going to take Commerer to' the doctor. Witness straightened the right bumper, which had been bent on to the tyre, but the car would not start. Eventually witness’ son took Commerer to the doctor in witness’ car. The cycle was on the left side, not on the wrong side. Witness described how he had marked the position of the car and cycle with a stick. In the opinion of witness Commerer had done all that was possible to avoid the accident. He considered that if Miss Coyne had given her car a twist to the left she would have avoided the collision. He had* formed that opinion at the time. To his Honour: Owing to the rain the mud surface on the side of the road . was greasy, and had the car swerved over it would have had to go on to this greasy surface. EXPECTED AN ACCIDENT.

Cross-examined, witness said it was Untrue that one of the occupants of the car got out and got back again, ‘and that a remark was passed about benzine linking from the cycle and the danger of fire. He said that the people at his place could see the comer, and they always watched passing cars because they expected an accident. To his Honour: The question of calling the police was mentioned twice. Miss Coyne said: “If we don’t get the police I won’t be responsible for the accident.” Commerer had that he would not bother as his cycle was not registered. To counsel: He might have said, “It is all a pure acicdent.” He had not been able to give L. O. Hooker any indications of marks on the road in September as so many lorries' and cars had passed over the spot since May, the month of the accident. Miss Hanna G. Dromgool, who was in her kitchen when she heard the crash, also gave evidence. This closed the case for the plaintiff. Dr. D. Steven, Stratford, said he attended Commerer from the time of his admission to the hospital until discharge. His mental condition after the accident was quite good, and he could have discussed the details. His mental condition the next day would not have been quite so good, but two weeks later his mental condition would have been all right. , . x The functional loss to the foot as a result of the accident would be possibly about 30 per cent. Witness considered Commerer could drive a lorry or car efficiently and without any personal illeffect. He would be able to use a brake efficiently, very nearly 100 per cent of normal. To Mr. Moss: He had not X-rayed the foot. He had not seen the photographs, but had discussed them with Dr. Gordon. He considered the four other metatarsal bones were crushed rather than fractured in the ordinary sense of the word. He did not agree with Drs. Gordon and Home that Commerer would have a functional disability of 60 per cent, and would suffer permanent pain. He did not think the scar would break down. He did not agree the man would be more active if his foot were amputated. He did not see why Commerer should not be able to do the same work now as before the accident. , To his Honour: The discomfort he would suffer after walking or standing would be the same as that of an ordinary flat-footed person, with the added disability of a missing toe. His Honour asked if the plaintiff still

held to the allegation of excessive speed on the evidence. Mr. Moss said he did, on Commerers evidence and in view of the visibility of the day. Mr. Croker urged that there was not sufficient evidence to go before a i ul 'yHe applied for a non-suit. He hesitated: to do so, however, as it would mean occupying time when the Court had already intimated the case must be finished that day. His Honour said he' did hot usually hear such applications at that stage, but waited until the conclusion of the evidence. However, in view of the circumstances of the case he "would this •. time hear the application before proceeding further. • Mr. Croker then contended that on Commerer’s own evidence there had been no negligence by Miss Coyne and all ,the allegations fell to the ground. SO far as the alleged failure to stop was concerned it had been shown that Miss Coyne offered to take the injured man to the doctor. Mr. Moss replied with the contention that there was evidence to justify the allegations of negligence-especially not keeping to the left of the centre" line, of- the road formation and in travelling too fast. , • v His Honour said he was loath to withdraw a case from a jury, but in. this case the evidence could not be said to indicate negligence by Miss Coyne. It had been contended she should have been driving further to the left. That would have brought her left-hand wheels off the metalled surface on to the greasy mud, and he could not agree that she had been negligent in not doing so. The drivers of the vehicles had the first sight of one another when 20 feet apart. He did not think Miss Coyne could be said to be travelling too fast when she had stopped her heavy car within a distance of 20 feet.