FARM LABOURER’S CLAIM

Wanganui Chronicle, Volume 84, Issue 179, 1 August 1940, Page 10

FARM LABOURER’S CLAIM

INJURED IN AN ACCIDENT

LOSS OF RIGHT LEG BELOW THE KNEE

COLLISION WHICH OCCURRED ON CHRISTMAS DAY

A claim for £l5OO general damages and £9O special damages was made in the Supreme Court at Wanganui yesterday by Leonard Stamey Smith, a 22-year-old farm labourer living on the Parapara Road, again.,!. Joseph Jones, public accountant, of Ohakune. Plaintiff alleged that defendant was negligent in driving a motor-car on the Parapara Road on Christmas Day, 1939, and, as a result of that negligence, plaintiff had been injured and had lost the right leg from seven inches below the knee. Plaintiff had been riding a motor-cycle at the time and was travelling from the OhotuKarioi road on to the Parapara at the Ore Ore junction. A collision occurred at the intersection. His Honour, Mr. Justice Blair, presided. Plaintiff was represented by Mr. C. J. O'Regan, Wellington, and defendant by Mr. B. C. Haggitt, Wanganui. The members of the jury panel were Messrs. A. Mills (foreman), W. T. Barron, R. J. Carthy, E. Johnson, E. J. Kimber, E. Lewis, C. F. Bates, J. W. Sutcliffe, R. Barnes, R. S. Robinson, S. J. S. Lett, and G. A. Thrush. Plaintiff’s Evidence. Plaintiff, in evidence, said that he was a farm labourer by occupation, living with his father on the Parapara Road. On Christmas day, about 10.50 a.m., he was riding a motorcycle down the Ore Ore (OhotuKarioi) Road, towards the Parapara. It was an easy grade down. He saw a little Ford 8 car fast approaching from the direction of Wanganui and going towards Raetihi. When he first saw the car it was about three chains away. He slowed down to let the car past and it went by within six feet of him. He did not actually stop, but travelled so slowly that he had to drag one foot to keep balance. The view to the right was good, he being able to see about a chain and a-half. The Ford car which passed, going to-

wards Raetihi, was on its wrong side of the road. After it had gone by he moved into the Parapara Road. He intended turning to the right and proceeded at a good walking pace on the cycle. The next vehicle he saw was the defendant’s car on his (plaintiff’s) right. It was then half a chain away, or slightly more. Defendant was travelling at a moderate speed, in plaintiff’s opinion about 20 to 25 miles an hour. Defendant was on his proper side of the road when plaintiff first saw him. Witness was on the turn to his right and proceeded on his way. Defendant proceeded straight on, never altered his course at all. There was a collision, because defendant came over to plaintiff's side of the road, the car striking the cycle on the first forward cylinder. It was a glancing blow, carried on right down the side of the cycle. It took plaintiff’s leg as it went. His shoe was torn off and his sock torn to ribbons. Nothing was said at the time as to whose fault the collision was. Plaintiff was driven to Raetihi by defendant and during that journey plaintiff observed three or four times that defendant’s right hand disappeared from the wheel and went to lift a leg (the right) on to the foot brake. Operations To Leg. Dr. H. L. Widdowson, medical superintendent at the Wanganui Public Hospital, said that the plantiff was admitted to hospital on December 28, 1939, from Raetihi and discharged on April, 17, 1940. He had a crushed right foot which had become infected with gas gangrene. He was operated upon immediately and the leg amputated about three inches above the ankle joint. It was found that the infection went further up the leg and the next month there was a second operation and the final result left a stump seven and a-half inches long below the knee. To Mr. Haggitt witness said that the stump left was a good one for an artificial leg. With an artificial leg in that position plaintiff would be able to carry on various occupations, including manual work. To Mr. Haggitt: There were two signposts at the scene of the accident at the time. If the A.A. said that one of the posts, under which he sat, had been shifted four days before the accident he would still say it was there. The motor-cycle he was riding was not his own, and, so far as he knew had no warrant of fitness. He had no licence to ride the bicycle, had never had one. The Parapara was the main highway from Wellington to Auckland. He would not expect much traffic on that road at that time, about 11 o'clock on the morning of Christmas Day. He knew that there was a regulation that he had to give way to traffic approaching from the right. A car opposite a boulder, where witness said the defendant’s car had stopped after the impact, had already entered the intersection. If the car had pulled up on its correct side, plaintiff admitted that he must have cut the corner for a collision to have taken place. When the constable arl rived on the scene he did not ask ‘ plaintiff who was responsible for the accident. If the constable said that he did ask that plaintiff would still say that he did not. He had not done any work since the accident. To Mr. O'Reagan: He had worked for many years and some 12 months before the accident had been earning £8 a week carting posts. Just prior to the accident he had linished a job at £4 a week. If the defendant said he was on the intersection as soon as the plaintiff, he, plaintiff, would have been able to see him sooner than he did. Just An Accident. Leonard Gordon Smith, father of the plaintiff, said that when he first -arrived on the scene he had had some conversation with defendant, who began the conversation. “I said what was the boy doing, Mr. Jones? Was he speeding?” said witness, and he said ‘No.’ It wasn't his fault, that it was nobody’s fault: just an accident.’ ” Mr. Haggitt moved for a non-suit, basing his application on two grounds —one, that there was no evidence of negligence on the part of the defendant and, two, if there was evidence of negligence on his part, then the evidence showed contributary negligence

on the part of the plaintiff. The only evidence of negligence on the part of the defendant was that in one second, during which he was placed in a position of emergency, he pulled over to his wrong side. The defence did not admit that he did so pull over. Counsel submitted that when the plaintiff saw the defendant, then on his correct side of the road, approaching half a chain away, it was plaintiff’s duty to stop. It was negligence, or contributary negligence, on his part not to have stopped.

Mr. O’Regan submitted that a prima facie case had been made out which the defendant had to answer to enable justice to be done, and that there was no evidence of contributary negligence. The application for a non-suit was based entirely on the distance the plaintiff estimated the car was away from him when he first saw it. Plaintiff said that it was half a chain, or more. It was purely a guess. Plaintiff had proceeded on to the intersection with nobody in view and was crossing at a slow speed. There was no burden under these circumstances upon the plaintiff to stop; nor was there any indication that he would have fared better if he did stop. It was submitted that the righthand rule had been exhausted so far as the plaintiff was concerned when he saw the car—he was legally across the intersection when the defendant came into view. Non-Suit Question Reserved. The application for a non-suit was reserved. Godfrey F. Payne produced a plan and photographs of the locality. There was a depression at the mouth of the Ore Ore Road which would cause a motorist to trend towards his wrong side when approaching the Parapara Road from the side road. To Mr. O’Regan witness said that defendant was with him at the time the photographs were taken and had not said anything about the depression not being there the day of the accident. It might have been caused by a grader but it appeared to witness to be water-worn. Anybody could ride or drive over it provided they did not mind getting a bump. It might put a bicycle out of control, even at a walking pace. To His Honour witness said that there was no aprpeciable difference in the degree of visibility available to a person approaching the intersection as the defendant had done and the plaintiff had done, except that the plaintiff, coming down the Ore Ore Road, would know that there was an intersection, while the defendant, on the main road, would not. Defendant’s Evidence. The defendant, in evidence, said that he passed a car, which was tra-

velling fast. He slackened speed, got into the gutter and changed his car down in gear. A huge cloud of dust left the road travelling west to east. That made him very cajtious. He did not know there was an intersection just ahead. He was almost on the intersection when he first saw the me tot-cyclist, who was several feet to the left of defendant’s car and corning rut of the intersection. He was appear.ng out or the cloud of dust. He had one leg at least two feet up in the air off his foot rest. Witness thought he was going to jump off. Instead, the bicycle wobbled badly three times. Witness applied both brakes on his car. The car travelled four feet six inches. He thought of pulling out to his right, but he kept straight on. The motor-cycle front wheel struck the car bumper one foot from the right-hand side. Witness agreed to move his car to take the boy to hospital, after a proper examination had been made of where the car was ar ' of the skid marks caused by braking. He had to adjust the driver’s seat and that cramped him v#ry much. The case was adjourned until this morning.