PLAINTIFF ALSO WAS NEGLIGENT.

Star (Christchurch), Volume XLIV, Issue 46, 24 February 1931, Page 7

PLAINTIFF ALSO WAS NEGLIGENT.

JUDGMENT IS GIVEN IN COLLISION CASE.

Judgment for defendant in the case of,-William Cameron Wall (Mr Burns) .v*; Leonard George Winnicott (Mr Thomas) was given to-day by Mr Justice Kennedy. The case was heard in the Supreme Court on February 17 and 19. Plaintiff alleged that on June 27, 1930, a motor-car driven by defendant collided with a motor-car driven by plaintiff on Yaldhurst Road, and that the 'accident was caused by the negligence of the defendant. Plaintiff alleged that, as a result of the accident, he suffered a broken rib, injuries to his nose, leg and wrist, and had to have an operation to his nose by which he had incurred much pain and suffering. Plaintiff claimed general damages £350. special damages (loss of wages, medical and dental expenses, etc), amounting to £lßl 9s 6d, the costs of the action and such other relief as the Court should see fit to grant. The following were issues agreed to by the parties, which were answered by the jury:— 1. Was the defendant negligent: (a) In failing to keep to his proper side of the road?—No. (b) In failing to keep a proper look-out?—Yes. (c) In travelling at an excessive speed?—Yes. td> In failing to have his motor-car under proper control?—Xo. (e) In failing in the circumstances to give approaching vehicles due warning of his whereabouts ?—Y es. 2. Was the plaintiff negligent: (a) In failing to keep a proper look-out?— Xo. (b) In failing to keep to his proper side of the road? —Yes. (c) In failing, in the circumstances, to give approaching vehicles due warning of his whereabouts?—Yes. (d) In driving at a speed excessive in the circumstances?—Xo. 3. If you find both were negligent, who had the last opportunity of avoiding the accident by the exercise of reasonable care?—Defendant. 4. Assess the damages to the plaintiff irrespective of your answers to the above questions.—General damages £175, special damages £176 9s 6d. On the jury’s answer to the third issue, plaintiff claimed to be entitled to judgment; while it was contended, on behalf of defendant, that judgment should be for him. There was reasonable evidence to support the finding of the jury that plaintiff was negligent in failing to keep to his correct side of the road, that defendant was travelling at an excessive speed, and that both plaintiff and defendant were negligent in that they failed to give approaching vehicles due warning. The jury found that plaintiff was, and that the defendant was not, keeping a proper look-out. The following facts were constructive ly undisputed or admitted, because found as facts by the jury: Plaintiff was on his incorrect side of the road and failed to give warning of his whereabouts; defendant drove at an excessive rate of speed and failed to give \ warning of his whereabouts. The facts following were undisputed or admitted facts: The collision occurred on a straight and open roadway , 50 feet wide. Gorse fires had been lit on the road near to the gutter on plaintiff's proper side and smoke was moving across the road. Plaintiff had either driven into the smoke or had stooped at the very edge of the smoke. If he stopped, he had only just stopimmediately before the collision. Plaintiff and defendant approached eaoh other from opposite sides of the smolce and the collision took place in the ■sxncJke. Plaintiff, whom the jury found to be keeping a proper look-out, first defendant in the smoke six feet in front of him. Defendant, whom the jury found to be not keeping a proper look-out, first saw plaintiff in the smoke from six to eight feet in front of him. There was no suggestion that the conditions of smoke were such as to enable a longer view to be obtained by either. The collision was substana head-on collision. Defendant’s speed was not lower than 25 miles an hour. Plaintiff was concerned to allege a much greater speed—from 30 to 40 miles per hour, but the speed was taken at 25 miles per hour, which was defendant’s lowest admitted speed and much less than that contended for by plaintiff. It followed accordingly that the jury, in answer to issue 3, had drawn inference that they could not properly draw. On the answers to issues I and 2 plaintiff was not entitled to recover, being himself guilty of contributory negligence in the true sense. Judgment would accordingly be entered for defendant, who would be entitled, against the plaintiff, to his costs according to scale, with witnesses’ expenses and disbursements to be fixed by the Registrar.