FULL AMOUNT AWARDED

Taranaki Daily News, 7 November 1935, Page 15

FULL AMOUNT AWARDED

FATAL MOTOR COLLISION DEATH OF STANLEY CARLYON. NON-SUIT POINTS ENTERED. Awarding the full amount claimed, £2500, the jury found yesterday in favour of Margaret Laura Carlyon, Vogeltown, on her claim against David Vincent Roguski for damages for the death of her husband as the result of a motor collision. The accident occurred in St. Aubyn Street, New Plymouth, at 1.30 a.m. on April 28, when Stanley Carlyon’s motor-cycle struck the rear of Roguski’s unlighted lorry as it was parked ..t an angle to the footpath between Morley Street an-1 Cutfield Road. Mr. A A. Bennett moved for judgment for M: c. Carlyon, but Mr. R. H. QuilJiam suggested an adjournment to enable him to give further consideration to the question of non-suit points mentioned by him during the hearing on Tuesday. Mr. Justice Reed agreed to this course. Addressing the jury yesterday on behalf of Roguski, Mr. Quilliam said the action was peculiar in that there was no dispute between the parties regarding the main facts. There were, however, differences about the inferences to be drawn. It -was clear that Roguski iert. an unlighted lorry parked at an angle from the path in St. Aubyn Street from about 8 p.m. until next morning. Two main questions were to be decided on the facts. Was Roguski negligent? Was Carlyon negligent, or could he by the exercise of reasonable care have avoided the accident? Counsel suggested that the other side had introduced irrelevancies. Mr. A. A. Bennett had complained that Roguski had not given evidence. What, asked Mr. Quilliam, could he have explained? It was undisputed that the lorry was left under the circumstances related in evidence. Next day Roguski had made a frank statement to the detective. POSITION OF CARLYON. Mr. Bennett had said'Roguski should have been called to suggest to the jury that Carlyon could have avoided the lorry, but, continued Mr. Quilliam, he himself could show that. In fact, he would go farther and show that Carlyon should have avoided the lorry. The defence had been criticised, too, for not calling any witnesses, but what other evidence could be called when the facts had been explained by plaintiff’s witnesses, including the constable? Mr. Quilliam said frankly that Roguski had acted unfortunately in leaving his lorry as stated. It was a pity he did not go to the police or someone else for assistance in improving the situation, but his failure to do this did not necessarily mean that he was guilty of negligence causing the accident. During the four hours he tried to remedy the trouble, from 8 p.m. till midnight, vehicles went past with perfect safety. Was /Roguski not justified, therefore, in thinking other traffic would see it? The lorry must have been perfectly visible.

Counsel admitted there were motor regulations, but he pointed out that in every town in New Zealand vehicles were parked without lights. The question was whether Roguski had acted so unreasonably that he was negligent enough to cause the accident.

The next question was whether Roguski could have avoided the collision by the exercise of ordinary care. Mr. Quilliam submitted it’was established by the evidence that Carlyon did not see the lorry ,and was thus guilty of negligence. If he had been keeping a proper look-out, he must have seen the lorry in the beam of his light and he could have avoided it. They knew that Carlyon could see at least 50 feet in the beam of the light.

NOT KEEPING PROPER LOOKOUT.

It was recognised that a motorist should be able to pull t up in at least half the distance he could see, so that Carlyon should have been able to stop within 25 feet. Could proceedings have been taken against the owner of a horse, if Carlyon had struck one, on the grounds that it had no tail-light? The only conclusion seemed to be that Carlyon was not keeping a proper look-out. Perhaps he had his head down owing to the wind.

There was no evidence that Carlyon was deceived by the unusual position" of the reflector, it was contended. That was only an assumption. The reflector, no matter what its position, should have been a warning that some obstacle was there. Mr. Quilliam suggested Carlyon did not see the reflector. He submitted there was no swerve by Carlyon as suggested by Gifford, the pillion rider. That was only an afterthought by Gifford, and counsel pointed out that there were no marks on the road indicating a swerve.

His Honour in summing up discussed the evidence and set out the issues for the jury. It was clear, in his opinion, that Roguski had committed a wilful breach of the motor regulations in parking his lorry in the manner mentioned, and it was clear that this was a contributing cause of the accident. It seemed plain that Roguski had been negligent in breaking the regulation—“and. if I might say so, grossly negligent.” If the jury decided Roguski was negligent then it had to be satisfied that the defence had proved Carlyon could have avoided the consequences of his negligence by the exercise of reasonable care. In discussing the facts, His Honour said the evidence seemed to be that Carlyon was not travelling fast—a speed of 15 to 20 miles per hour had been mentioned. If Carlyon saw the reflector and the lorry, it was for the jury to say whether he was justified in assuming that _ the vehicle was stationary and parked in a proper position. Was it essential that he should keep his eyes fixed on the lorry, or, having assumed the position of the vehicle on what he saw uy the first instance, was it negligence on his part not to have kept his eyes glued on ihe lorry up to the time he was struck? That seemed to be the crux of the case. His Honour went on to deal with principles for the jury to follow in assessing damages, if that were necessary. The jury retired at 12 o’clock and returned at 2.43.