FAILURE OF CLAIM

Taranaki Daily News, 8 November 1935, Page 11

FAILURE OF CLAIM

ACCIDENT ON JUNCTION ROAD. JUDGMENT FOR THE DEFENCE. Failing to establish his case with the jury, Raymond Garner Lander lost Jus claim in the Supreme Court yesterday for , ■ £550 general and £l2O 4s special, damages for a broken right leg received when he and his stationary unlighted' motor-cycle were knocked over on Junction Road, Mangorei, on the Evening of May .17, ' 1934. The jury found for the defendants,' ' Harrison Ashworth Nodder (owner of the motor-car concerned) and Clifford John Nodder (the driver) and judgment ; ' was entered accordingly by Mr. Justice. Reed, with costs according to scale, witnesses’ expenses and disbursemehts to be fixed by the registrar, and one extra day of trial at £lO 10s., The accident -oc- -.'■-Jii curre.d on the night of a tornado at New Plymouth, the ‘weather being stormy. Z-: In deciding in the morning that (he case could riot be withdrawn from the •. jury and judgment given for-■■Nodder, in accordance with the application L. M. Moss_ the previous day, His Honour said it was obvious that a case involving a question of the last opportunity of avoiding the accident could not be with- . ' drawn. The question whether Nodder.'by the exercise of reasonable care ,could . have avoided the accident was essentially one for a .jury. ; . > ■■.. L

Nodder, wfio had driven from Eltham, reached the locality of the accident at 5.30 p.m., said Mr. Moss in outlining the. * defence. There could be no suggestion ’ of speed, judging by the time the journey had occupied. When at the corner of . Mangorei and Junction Roads he saw. the lights of two oncoming cars. He slowed . down to pass the first. The second car. was not' very far .behind' and Nodder .y. had not picked up speed again, before • " reaching the second car. ■ ’ * u He passed this car very slowly arid just after doing so, after the lights had;-, left his eyes, he saw Lander, sitting on an ■ unlighted motor-cycle, at least t\yo feet y*! on the bitumen surface. There was no mark to show later that Lander was on the grass. Nodder, who saw the cyclist > about five yards away, did not run him down, but pulled his car round and al-, most missed Lander.-In passing, however, a protruding part of the car brushed Lan- 4 der, he and his cycle falling'over. Nodder pulled .threat up within its 1 ■> own length on the bitumen. Where was the evidence of spedd? ’lt was obvious .. a that if the car had been going fast the j-.: motor-cycle would have been badly dam- •;... { aged. The defence saw the cycle, but ' contended that Landeris negligence in. re- ’ , moving the rear light deprived Nodder of the opportunity of seeing him earlier. ' At the hearing the. previous'day, Lan-. / der had for the first time .suggested he had been dragged along. Lander could i not say that he had been dragged be-' . cause he did not know, said counsel-. Four persons who were there would say. . that Lander wds 'just brushed by ‘the car with the result thafhp and his cycle'. ; i # toppled on to the edge of the grass and ' . ? bftumen. For him to suggest now that y. rinl he was dragged indicated ah. attempt;!© ; show the .car was going fast. . "

Photograph? of the locality were pro- - ; duced by Joseph Swainson, New P!y-' . mouth, photographer. 1 * Evidence confirming Mr. Moss’s opening was given by Clifford Nodder. He Was' y®y nbt travelling at more, than 15 miles an £•’ hour, he said, and he slowed down slightly after passing the* first car; / i . v . When picke'd up Lander sai<jl he rgaUsed he should, not where he' Y ' / was and that it was really his fault. jHeV .'y • did not blame'the witness. He said he saw both cars coping, but he did not y z think they would, pass just where he was. .--y Nodder said he visited Lander. in ‘the ; ’ ■ . ' hospital. Lander at no time blamed him; Witness had driven the car for three' J years before the accident and had. not ■ had a mishap. , • ( < f&J': Evidence was given by the occupants \ of the car, Mrs. Annie E. Campbell, Newy\ Plymouth, M>.ss Doris M. Nodder, Mrs. -jA. Nodder, mother of Clifford Nodder, and , Harrison Ashworth Nodder; hotel licen- ' see, New Plymouth., • . ■ ? . i ' The last-named said Lander came to \- him and asked him about third party risk insurance. Nodder told him he / had to prove negligence. Lander said: . "Could • Cliff, help me?” Nodder replied that Clif- '• ford would speak the truth, and so would Lander. He pointed out that-: . Lander had already admitted he was at fault. . ■J; John Maxwell Clarke, New Plymouth, . surgeon,, said Lander had .had an excellent result from the mended frqctuM- ; y\ In'his opinion there should be .no inter- :'.*... ference with the • functions of the .Tlgnt. y.?*.y leg./ ' ?■ '. ' ’ At this stage members of the jury were . . taken to inspect the scene of the 'accident.. In the afternoon ; Mr. Moss and-' yij Mr. Hughes addressed /the jury', ■ . Summing lip, His ( Honour said there ’ ■ i ‘- was no direct evidence of negligence, but '. y Lander asked the jury to infer that-be-* ”.y-y cause Nodder-saw the cycle too late to ; ■ avoid it there-was negligence. That) wa? y? ~•? not the law, however. The British Court ’ of Appeal had held that it could not be '; said that where there was an unlighted ; y, obstruction on. the roadway* a. careful' '’-J motorist was bquhd to see it in tiipe to -';fe avoid it and that if he did, not he .’Was -.y-l guilty of negligence.' The jury retired at 3.22 p.m. and returned "at '4.40 pirn.; I ■■ :iy- f