ECHO OF ACCIDENT

Timaru Herald, Volume CXXXVII, Issue 19394, 19 January 1933, Page 7

ECHO OF ACCIDENT

CLAIM FOR DAMAGES. CONTRIBUTORY NEGLIGENCE. Arising out of an accident at the intersection of LeCren and Arthur Streets on December 15, a case was heard by Mr C. R. Orr-Walker, S.M.. in the Timaru Magistrate’s Court yesterady, in which the Rev. H. Peat claimed £ll/7/6 damages from Victor Churley. Defendant counter-claimed for £l7/2/4. Mr L. E. Finch appeared for the plaintiff, and Mr L. M. Inglis for the defendant. Mr Finch said the claim was one for damages arising out of a collision in Timaru on December 15th last. Plaintiff, on the night in question was proceeding west along Arthur Street, and when nearing the intersection of LeCren Street, he swung wide to avoid some children who were playing on the road. He proceeded to the intersection, and when he had a diagonal view to the right, and seeing no traffic, he proceeded on to the intersection. When right on to the intersection he saw a car about a chain away, on its correct side. Considering he had plenty of time to turn, he did so, but found that the defendant was travelling at a much faster pace than he had thought. He pulled his car a few feet to the left, but a collision occurred, plaintiff’s car being lifted three feet into the air. Mr Finch said that he had first to find an excuse for plaintiff committing two breaches of the regulations, firstly in cutting the corner, and secondly in not observing the off-side rule. In spite of these breaches, he contended that he was entitled to succeed, because defendant had caused him to commit a greater .breach. He submitted that not only was plaintiff entitled to assume that he had plenty of time to cross the intersection, but that his judgment in the short space of time available to him was reasonable. He further submitted that defendant had been travelling at an insane pace, as the comer was one which should have been approached at 15 miles an hour. Defendant did not sound his horn; he could have braked, but he did not; and he could have gone behind plaintiff, but he did not. Constable A. King said that he visited the scene of the accident, and found plaintiff’s car in the position it came to rest after the collision, but the other car was gone. Witness explained in detail a plan which he had prepared. Harold T. Peat, plaintiff, said that on the night of December 15th, he left his home at 7.20 and proceeded west along Arthur Street. As he approached LeCren Street, he saw some children playing on the road, and he sounded a warning. The children- were less than a chain from the corner. He had slowed down, and consequently, as he commenced to go up the rise he lost steerage way. He had a diagonal view to the right, and could s«e no traffic. He thus took it that he had the right of way. When he got a clear view of the intersection, he saw a car just commencing the rise towards Hunt Street. This car was at least two chains away, possibly a little more. Momentarily witness continued on his course, and he then realised that the other car was coming towards him at a tremendous speed. He could see there was no chance of avoiding a collision, excepting to turn away from the other car, and this he did. The other car pushed him south about 8 or 10 feet, as well as lifting him into the air, and his car finished up almost due south.

To Mr 'lnglis: He admitted that he turned into LeCren Street to the right of the centre line of the road, but he had been forced there on account of the children. It would have been easy for him to stop his car, but he considered he had the right of way.

Wilfred Richards, of St. Andrews, said that on the night of the accident, he was standing on the back verandah of a house in Church Street. From where he was, he had a full view of LeCren Street to North Street. He heard a car accelerate down the hill from Church Street, and after it had travelled a chain from Church Street, it came into view. He considered the car was travelling at 40 miles an hour, and the thought ran through his mind that if anything came out of a side street, it was gone. He saw the actual collision, and he did not think plaintiff could have done anything to avoid the accident.

To Mr Inglis: Plaintiff could have pulled his car up at the pace he came out of Arthur Street. He did not notice any swerve on the part of Churley. For the defence, Mr Inglis said that defendant denied having been travelling at 40 miles an hour. He submitted that plainUiff had been negligent in cutting the corner, and in doing so was running towards Churley's approach, and was not giving him sufficient time to stop his car. Plaintiff admitted that he could have stopped his car

within a short distance, and this was obvious from the evidence. He submitted that the evidence showed that plaintiff had the last chance of avoiding the accident, and he did not take it. and therefore defendant was entitled to-succeed, both on the claim and coun-ter-claim. Defendant’s evidence was heard after the luncheon adjournment. He said that he approached the intersection at 20 miles an hour, or perhaps a, little more. He sounded his horn prior to reaching Hunt Street, which was on the right hand side. He considered that he had the car well under control. He saw plaintiff’s car when it was a length and a half in Arthur Street. When he saw plaintiff, he' was coming straight at witness. He applied the brake, but not hard, as he realised that he could not pull up to avoid the accident. Had he pulled up. plaintiff would have crashed into him head on. From the position of plaintiff’s car, it was impossible for witness to turn into Arthur Street. To Mr Finch: He was about the length of his car away from the corner of Arthur Street when he saw that plaintiff was going to cross the road. His first view of plaintiff’s car was when- he (witness) was about 50 feet away from the corner. Mr Finch: “You told plaintiff you w-ere doing 30 miles an hour, and later you said you were doing 20 miles an hour. Why the difference?” Defendant: “I told Mr Peat I was doing 30 miles and not more. I said this to indicate that I was not doing the excessive speed he considered I was.” To the Magistrate: “Jr* saying 20 miles an hour, he gave himself the benefit of the doubt?” To Mr Finch: He could not have swerved to the left, because he would have hit plaintiff, who was going slowly* Had he braked, he would have stopped in his tracks, and plaintiff would have hit him. He did not know the corner, so was not aware that it was a dangerous one. He did not hear plaintiff sound nis horn. The Magistrate said that he would have to hold both parties guilty of negligence. Plaintiff was guilty of negligence in cutting the corner, and in failing to observe the off-side rule. The defendant was guilty of negligence in approaching the corner at an excessive speed. In his opinion both

parties had an opportunity of avoiding the accident, had they exercised reasonable care. The only question then was whether one had a later opportunity than the other of avoiding the accident. but te could not see that he could apply tais. Judgment would oe for defendant on the claim, and plaintiff on the ciunter-claim.