WIDOW’S APPEAL

Waikato Times, Volume 122, Issue 20524, 14 June 1938, Page 8

WIDOW’S APPEAL

\I V\ TRIAL SOLGHT QUESTION OF NEGLIGENCE JURY'S VARIED ANSWI/tS (By Telegraph.—Press Association) WELLINGTON. Tuesday An interesting case is occupying the attention of the Appeal Couri* which is hearing the appeal of Ada Pa?ne. of Wellington, widow, against Dunstan John Burney, of Petone. Appellant recently sued respondent for £.3000 for allegedly running down and killing her husband on June 21 last year while crossing the Hutt- Road. The jury at the trial returned a verdict that respondent was guilty of negligence materially contributing to the accident and that deceased. Henry Payne, was also guilty of negligence materially contributing to the accident, but in a lesser degree. At the request of the judge the jury assessed damages at £1250. On the day’ after the verdict the jury sent a letter to the registrar that, it. was its unanimous desire that £1250 should be awarded the widow and if they bad understood the effect of their verdict they would have said deceased was not guilty of contributory negligence. _?ome days later they sent a further letter to the registrar to the effect that they had intended to find deceased not guilty of negligence but found him guilty of negligence to help the motorist.

Chief Justice’s Ruling The motion for a new trial was argued before the Chief Justice, Sir Michael Myers, who held that if both parties were guilty of negligence materially contributing to the accident there was no room for the issue of last opportunity, which in this case he hai refused to put to the Jury when the law was that plaintiff could not recover damages. He held the Implication in the Jurv's first letter was that if they had known the effect of their honest and conscientious answers to the issue they would have returned to the second issue an answer contrary to that which they actually gave. The implication of the second letter was that they were prepared to do an injustice to deceased by saying he had been guilty of negligence materially contributing to the accident because they thought that by doing so they might be avoiding some consequences to the driver of the car. Tie argued that the widow was not entitled to succeed and judgment was given for Burney with costs. It- is from this judgment and the refusal of the Chief Justice to order a new trial that the present appeal is brought. (Proceeding.)