RE-HEARING REFUSED.

Star (Christchurch), Issue 17350, 24 July 1924, Page 7

RE-HEARING REFUSED.

HISTORY OF MOTOR ACCIDENT. COUNSEL AND BENCH DISAGREE. “ I FEEL VERY MUCH INCLINED —” On the grounds that fresh evidence was available in a motor accident case, challenging the statement of the driver, an application v/as made to Mr H. Y. Widdowson, S.M., to-day for a re-hear-ing. Last week the Magistrate heard a claim by Walter Lucas Goodail, of 77. Clare Hoad, St Albans, labourer (Mr Upliam) against L. M’Alister, of Kaiapoi (labourer) for the sum of £26 17s damages. It was alleged that plaintiffs were knocked down by M’Alister’s car. The Magistrate held that the do fondant had acted reasonably.

To-day in making application for a re-hearing Mr Upham said that the excuse given by M’Alister was that he had to swerve to avoid a motor-cyclist, but in his statement to the police he made no mention of that. There was evidence to show that he had travelled on the footpath for some distance. Tlie Magistrate said that as far as the case of the man was concerned ho thought that that was concluded by the settlement made in the hospital, and he would not grant a re-hearing in this case. With regard to the other matter, that was slightly on a different footing, but oven there the evidence of damage was practically nil. He had mentioned the fact at the time, and the question was whether she would recover am't-hing above practically nominal damages.

DRIVER TOOK BEST COURSE. Coining to the main point—that there had been a statement made by tho defendant to the police that was not made in Court—the Magistrate said defendant had admitted that he was cn his wrong side. His reason was that he had seen a motor cycle coming over or from the bridge, which would have caught him. He swerved to avoid the motor cycle, this appearing to be the best course in defendant’s opinion. If it were actually a fact then the man was quite correct —at anyrate in his (the Magistrate’s) opinion—on going on to his wrong side. The evidence was corroborated by a nurse who was sitting alongside the driver. Now it was stated that what made defendant swerve was to avoid coming into collision with two people. That statement was actually given in evidence at tho time, as a fact having occurred at a later time, after going on to his wrong side. The question was whether the statement made to the police referred to the later part of the defendant’s evidence or to the whole of it. The report did not seem to make much difference; it was a question as to how the statement was taken by the police. The man was fairly well cross-examin-ed, and it was quite feasible that the questions which were asked the witness were of such a nature as not to refer back, but to refer to the more recent events —those which occurred immediately prior to the accident. RESULT OF HESITATION. Defendant said that he swerved to avoid these two people and that when he had said he noticed a man and a woman (the defendants) near the footpath, crossing the roadway, arm-in-arm. There was a momentary hesitation on their part; they stepped forward. hesitated and then stepped back when defendant swerved the car in order to avoid them they unfortunately stepped back, and the car caught one of them, and the other was pulled down. Several of the witnesses placed the pool of blood at different points, but it was pretty well agreed that the pool was somewhere just near what would have been the line of the footpath. The point fixed on the plan might be absolutely incorrect, but it was not inconsistent with what had been stated at the hearing. He did not think there was any blame attachable to M’Alister. It had not been proved that this man, even if he did go a little on the footpath, was doing anything but what a reasonable man would have done in. the circumstances. The whole thing resolved itself right away back to what was defendant’s reason for changing on to his incorrect side on the first. instance. 1 ' He did not think it was a case for re-trial, especially in view of the fact that the damages were practically nil. Mr Thomas said that he had not asked for costs at the trial. Very substantial costs were let go as far as defendant was concerned. Counsel desired to ask for full cost 3 oii both actions now. The Magistrate: They are poor people, and Mr Upham has been trying to do the best he can for them. Mr Upkani said that the man had

gone on to the footpath and knocked, down two people. *• AN ALARMING STATEMENT.” The Magistrate: I have already stated that he was quite right in going on to the footpath to avoid the people- . Mr Upham: It is a very alarming statement, then, for pedestrians. The Magistrate: Nothing at all; no more so than if lie ran right along tne footpath to avoid people. Mr Upham : It is a very dangerous principle- If *he amount were largo enough I would certainly go to the Supreme Court. The Magistrate: 1 am not going to allow you to make statements of thatVind, Mr Upham. I have already explained that in order to avoid two set* cf people he swerved on to the path Ife has not to be judged from an armchair point of view. He is put 'n a position of emergency and does a certain thing.

Mr Thomas said that he would not press for costs. Tho Magistrate: I feel very much inclined to, after that remark.