MAGISTRATE’S COURT

Manawatu Standard, Volume LII, Issue 48, 27 January 1932, Page 4

MAGISTRATE’S COURT

CLAIM FOR DAMAGES.

INTERESTING POINT FOR LORRY OWNERS. At the Magistrate’s Court, yesterday afternoon, before Mr J. L. Stout, S.M., Rev. A. F. Sutherland, of-Pa-hiatua, proceeded against the Texas Coy. (Australasia, Ltd.) claiming the sum of £9B 12s 6d, being damages sustained by his car in a collision with defendant’s petrol lorry on the Pahiatua Track. •Mr Smith (Pahiatua) appeared for plaintiff and Mr Blundell (Wellington) for defendant firm. • Plaintiff, ,in evidence, stated that, on the day of the accident, he had left Pahiatua in his baby car at 11 a.m. After picking up another passenger four miles out, there had been in addition to himself three adults and two children in the car, his wife nursing the baby, while plaintiff had the other child, aged four, on his knee. He was, however, quite accustomed to driving in that manner. The road at the corner where the collision had occurred was 16 feet in width from the outside of the metal to the bank —the point being two miles from the summit of the hill. He had first seen the lorry three car lengths away as it rounded the corner. He had at first been of the opinion that he could pass the lorry, but he -had later realised that he could not clear the rear of the vehicle and a collision had resulted. He had been travelling at not more than 12 miles per hour at the time and, although the car had suffered extensively in the collision, the occupants had escaped with a shaking and bruises. In reply to Mr Blundell plaintiff stated that'he was approximately. 10 feet away from the front of the lorry when he realised that the rear of the latter vehicle was blocking the road. He had no fault to find with the driving ability of Mr Hawker, the driver of the lorry, and he failed to. see how an accident- could have been avoided; it had all happened so suddenly. He had had the car two and a-half years and had travelled approximately 26,000 miles to date. George Atkinson, farmer, of Pahiatua . Track, stated in evidence that when he had arrived on the scene a few minutes after the accident, the car was in the water table, and, although the lorry had been moved, the wheel marks were still plainly _ discernible. ■ The road had been widened 8 feet since the accident, but the lorry, in Ms opinion, had been too wide to take that route when the accident occurred. No doubt the lorry driver had done his best to get as far over as possible. His Worship: Would the edge of the road have broken away had the lorry pulled over further? —Witness said the road was all made up. His Worship was informed by counsel that the lorry loaded weighed seven tons.

To Mr Blundell: Lorries used the road, although only when they were compelled to do so. He had himself been hit by a lorry last Wednesday. The corner where the accident occurred was the worst on the route.

Carl Nielsen, motor garage proprietor, Palmerston North, detailed the nature of the damages sustained by plaintiff’s car.' To Mr Blundell: He had known the road for the past 16 or 16 years and was well. acquainted with the corner in question. Probably he would have acted as the driver of the lorry had done. However, in his opinion, the lorry was too big to be taken over the route.

This closed plaintiff’s case. Mr Blundell enquired whether the Magistrate was of the opinion that the company had taken a risk by sending the lorry over the road, for should the point not be at issue he would apply for a non-suit on the grounds that no negligence on the part of the lorry driver had been proved. The Magistrate held that the company had taken a risk, for the nature of the road had not - permitted the heavly lorry to give clearance to the passage of the other vehicle. The defendant firm might well have avoided the risk by sending the petrol over the Rimutakas. “There is no suggestion that the lorry driver was negligent, but there is evidence to show that the lorry should not have been taken over the road,” said the Magistrate. Counsel for the defence argued that such a ruling would prevent anyone taking with safety even a seven-seater car on some of the Dominion roads.

His Worship: Nobody would object to a seven-seater ou the Track but would do so to a cumbersome vehicle

20 feet long, 7ft. 6in. wide and weighing seven tons. Evidence for the defence was then proceeded with. ■■ . ~ W A. Hawker, driver of the lorry on the' day of the accident, stated that he had been over the Pahiatua Track on numerous occasions. In negotiating the corner he had swung out before taking the turn and it was when so doing that he had observed plaintiff 30 feet away. The lorry was travelling at about eight miles per hour at the time, and he had expected plaintiff to pull up. He had observed plaintiff stoop—presumably he was feeling for his hand brake —but he had failed to use it and witness had been of the opinion that the child on plaintiff’s knee proved to be an obstruction. Plaintiff had admitted to him after the accident that he had been travelling at about 20 miles per hour. In reply to Mr Smith, witness admitted that there had not been clearance for the baby car, while it would not have been safe for the lorry to have gone further over to the left hand side of the road. Mr Blundell, in addressing the Court, pointed out that no negligence had been attributed to the driver, and the question came down to: (1) Whether • the company was negligent in sending the lorry over the road, and (2) the driver not being himself negligent, and an accident having occurred, ’ whether plaintiff had not contributed to the accident. Counsel submitted that under the existing conditions in New Zealand to place a restriction of the nature before the Court on road traffic would be placing too great an onus on firms. The Magistrate: The Government might appreciate it for it would force business firms to use the railway more. While it might be quite safe to take a heavy lorry over a narrow road, in the event of an accident the owners might have to take the responsibility. Mr Blundell contended that plaintiff had taken a risk by driving a baby car in which were four adults and two children, one child being on his knee.

The Magistrate: It is quite true that the baby car wfts overloaded, but the fact does not appear to have contributed towards the accident. The petrol firm took a risk in sending a lorry over a road when it could not, with perfect safety, leave room for a car, even a baby car, to squeeze through. If the road were so narrow that the motor lorry had to keep to the centre of the road, and the regulations f could not be observed with perfect safety, the company had, perforce, to be held responsible. Judgment was accordingly entered for £77 2s 6d with costs amounting to £9 12s.

Security for appeal was fixed at £l6.