NEGLIGENCE PROVED

Taranaki Daily News, 19 November 1934, Page 9

NEGLIGENCE PROVED

HAWERA DRIVER SUED £630 DAMAGES FOR BIGHAM. JURY’S VERDICT IN 1% DAY CASE. PASSENGER BRINGS THE SUIT. Holding that the negligence of Dr. A. M. Young, Hawera, was the cause of the. collision between two cars the juryawarded Godfrey E. I. Bigham, Eltham, £Bl ,19s 9d special damages and £550 general damages at the Supreme Court at New Plymouth on Saturday. His Honour Mr. Justice Smith entered judgment accordingly, giving Dr. Young leave to apply for a non-suit within 14 days. Costs were fixed according to scale with £l5 15s for the second day. The case was unusual in that the claim was made by the passenger in a car and not the driver, the questions for the jury requiring a straight-out decision only upon alleged negligence of Dr. Young. The case arose from a collision between cars driven by Dr. Young and John Bigham, plaintiff’s brother, at the intersection of Manaia and Normanby Roads, after sunset on June 8. Godfrey Bigham, who was a passenger in his . brother’s car, suffered a fracture of the base of the skull, a fractured cheek bone and broken false teeth, and claimed for alleged incapacity for work following the accident for 18 months and permanently impaired eyesight, £64 Os 9d special damages, £156 loss of wages and £1250 general damages. Messrs. R. J. O’Dea (Hawera) and L. M. Moss (New Plymouth) appeared for Bigham and Messrs. A. K. North and G. J. Bayley (Hawera) represented Dr. Young. QUESTION OF SPEED. Evidence was given by Henry E. Jenkins, New .Plymouth, motor engineer, who said the weight of the Nash car would be from 33 to 35cwt and the Aus- • tin about 23cwt. He described the damage to the Nash car and said he formed the opinion that it had struck another car. The front axle was produced and the witness showed that on the righthand end it was bent to one inch out of alignment. From a photograph of the Austin car, showing the damage done to it, he was of opinion that it had been struck by another car, on an angle, between the bonnet and the front door, on the left side. ? He considered from the position of the car after the collision that its speed at the point of impact was about 35 miles an hour, said- Jenkins, continuing his evidence, to Mr. Moss. He would not agree that the front axle would be bent back by the swerve after the collision. All the weight would be on the back wheel. The other car had four-wheel brakes. In an emergency he thought that at 20 miles per hour he could stop the car in 23 feet. This concluded the defence’s case and the court adjourned for an hour while the jury inspected Dr. Young’s car and His Honour discussed issues with counsel. It was necessary to prove beyond all doubt, commenced Mr. North, that the injury to Bigham was caused by Dr. Young’s negligence and not by that of his own brother. The case had commenced with the suggestion that Dr. Young’s < car had struck Bigham’s, but surely ' ’ the weight of evidence showed that Bigham’s vehicle had struck the other. ’ -Bigham said that Dr. Young’s car had no lights and that the car was grey. ■' From the weight of evidence Mr. North submitted that plaintiff’s evidence could carry no weight. Bigham, the. driver, could not say he had even seen Dr. | Young’s car. Miss Hitchcock first heard Dr. Young’s car before she had crossed the intersection and she walked four or five chains before the collision occurred. Bigham’s car had not been within her hearing during that time. Baldwin had been a most unsatisfactory witness who apparently was unable to differentiate between what he-had seen and what he had heard. Added to that there was the flat denial of Dr. Young, Sharp and Payne of having seen Baldwin on the , road or his being first at the scene of the accident. Both Twidle children had used the same phrases but had differed in many respects. There was no evidence for plaintiff as to Dr. Young’s speed at the intersection. The evidence of the expert witness Galvin had apparently been built up on what plaintiff said had happened. Against this was the plain mark of truth on the evidence of Jenkins, Grant, Sharp, Payne and Constable Scannell. ' The right-hand rule was against Bigham. Was it not an invitation to them, to use their human sympathy towards plaintiff in the face of such weight of evidence? They might just as well take up a"subscription. They were being asked to put their hands in the insurance company’s pocket on a sympathy verdict; POINTS AT ISSUE. The action was brought not by the driver of the Bighams’ car but by the passenger, commenced Mr. Moss. The sole point was to decide if Dr. Young had been negligent.' The best of drivers made mistakes. The case was not between ''the drivers of the vehicles; if it had been much of what Mr. North had said -sSuld have been more applicable. Plaintiff Bigham took no part in the control of the car. The defence had not alleged that the driver Bigham had placed Dr. Young in an emergency. There were two or three points at issue—Dr. Young’s speed, his failure to look soon enough, and to a lesser ex'tent the necessity or otherwise for lights at the state of the evening, continued Mr. Moss. It also seemed clear that the impact occurred over the centre of the intersection on Dr. Young’s wrong side. It was not alleged that Dr. Young crossed the intersection at 5C miles an hour, but it was alleged that he crossed at a speed that was too great. Miss Hitchcock. and the Twidle children had heard the noise of the car. The Twidles were the key witnesses; Dr. Young had not contradicted them. If Dr. Young approached the intersection at 25 miles an hour after twice slackening speed what speed had he been going? At 20 miles an hour he could have pulled up in 23 feet, within which distance from the intersection he could see 110 feet up Normanby Road. He could have stopped before the centre of the intersection. The main point at issue was that Dr. Young had not looked to the left soon enough to see the car coming. What they had to consider was not what Dr. Young had done after he reached the intersection; it was what he should have done before the intersection was reached. He was not really concerned with ■ which car hit which, said Mr. Moss. The amount of damages had been increased following examination by Mr. J. M. Clarke, who took a much more serious view of the damage than did Dr. Cairney. Even then the amount claimed was considered reasonable. The action was by the passenger of the car, said His Honour in summing up. The passenger was in a better position than the driver as there was not going to be raised against the passenger the question of his negligence. The whole point was to decide if the collision was solely due to the negligence of Dr. Young or to the negligence of the driver Bigham. The plaintiff had to prove his case.

“There has been a really extraordinary conflict of evidence,” said His Honour,

“and the jury has to consider the type of persons giving evidence. The question of the evidence of children has been raised and you have to consider that their faculty of reason, speaking generally, will be affected by exaggeration. The Twidles were not asked about the case until Monday although the accident occurred in June.”

The jury had to .try. and visualise the circumstances, continued the .judge. Two cars were approaching and. at some stage danger arose. The sides of the road were wet and the visibility was half-light. The extent of • visibility was testified to by the witnesses Payne and Miss Hitchcock. There must have .been a certain amount of visibility and the jury had to determine how much. The angles of visibility had been testified to although it had .not been proved’ whether it was possible to see over the hedge. What was the condition of the cars? The Nash was heavier and had twowheel brakes against the Austin’s four. The'lights were important. There was some evidence that Dr. Young’s lights were oh and the other evidence by plaintiff Bigham and 'Miss Hitchcock that they had not ' seen ' any ' lights. Was there a light on the Nash car? This was important in connection with the right-hand rule, which had been observed for some years, whether under a valid regulation or not. It had to be decided whether Dr. Young could expect as a proper thing that the car on his left would give way. Bigham gave evidence that he had seen Dr. Young’s

car in the Nash’s reflected-lights. Against that there was •no mention of lights .on the Nash in the statement to the insurance adjuster, and the explanation ;that it had been left out because Constable Scannell had said the starting time was wrong. The speeds were mentioned in evidence and the question was one for the jury. The speeds were important having regard to the right-hand rule and the extent of visibility and lighting.' Little importance had been laid "on the sounding of horns. . . - Briefly the jury had to decide if Dr. Young had travelled at an excessive speed, had failed to keep a proper lookout, had failed to give a sufficient warning, had failed to have sufficient lighting or had failed to travel on. his correct side; or was the sole cause of the collision the conduct of the Nash car? If they found negligence there was then the question of damages to be considered. His Honour gave instructions regarding special and general damages after reviewing the medical evidence. If the jury found for plaintiff it must : give. reasonable and adequate damages for the physical pain and injury suffered. The jury retired soon after 1 o’clock and returned after two hours. . .