Hamilton Spectator Friday 12 August 1910.
Penshurst Motor Accident.
Action for Damages. Verdict for £150.
The case Cameron v. Hutton was concluded in the County Court Hamilton yesterday before Judge Neighbour and a special jury of four.
Plaintiff Edward Cameron, of Penshurst. Fruiterer, claimed from Stanley Hutton, of the same place, grazier, £500 damages, for injuries which he had sustained through being run over by a motor car owned and driven by the defendant. The accident occurred on the night of April the 8th.
Mr. Westacott appeared for the Plaintiff and Mr. Kilpatrick (instructed by Mr. Molesworth) for the defendant.
The evidence for the defendant was continued.
The defendant, being re-called stated in reply to Mr. Westacott — I cannot swear if I had my license on April 8 I Can't swear to the date. I won't swear whether I got this on or before. I never sent the lamps from the car. If my groom says l sent them away and used buggy lamps it would be untrue.
Mr. Kilpatrick put in defendant's license.
The defendant, to Mr. Kilpatrick: I got lamps from Kellow, and sent them back.
Dr. Sweetnam stated — I practice at Penshurst. I am connected with defendant by marriage, but I am not his brother-in-law. I examined the plaintiff at my surgery on the evening of April 8. He was suffering from lacerations of the scalp. None of them penetrated to the hone. They were more in the nature of gravel rash. I dressed the wounds. He did not complain about his body. He did not complain about anything. I think he had a slight concussion of the brain. It soon passed away. He left with the defendant.
I next met him on the following morning at Mrs. Black's. He was in bed. He complained of general soreness of the trunk and limbs. I found he was considerably bruised about the inside of the leg. The injury might have been caused by a wheel passing over the leg when in a bent position. The chest was bruised, and there were small bruises on the body. I could discover no fractures of the bones. I saw him several times during the week after the accident. The scalp wound healed up quickly, and the soreness gradually passed off. I saw him on April 19 at my house. He had walked up. He asked me if I had any objection to his going away for a change, as before doing so he had to get my permission for the lodge.
I granted him a certificate for 14 days. I did not see him again professionally. About May 15 or 16 1 met him in the street. I asked him if he considered he was fit to go off the lodge. He said yes. I took him off the lodge on May 16.
When a person has a slight concussion and makes use of expressions when coming round they usually relate to the matters be had on his mind immediately before the accident. When be recovered from the concussion in my surgery he was rather confused as to what had happened him, and as to what he had done with his key. He also said, “I think I must have been running to get into the cab" and also he thought it was the longest bicycle he had ever seen. (Laughter) He was confused at that time.
His Honour: It was not a very great crime to run for a cab on the King's highway.
Witness: A trained nurse’s charge is about £2/2/ a week.
To Mr. Westacott: If the Plaintiff had gone to a private hospital the usual fee would be £3/3 including nursing. I don’t suggest that Mrs. Black did not give him proper attention. It was necessary to give him attendance. I am a Justice of the Peace and have some experience of courts. I have an idea of the evidence given here by Dr. Laidlaw. Mrs. Sweetnam made a lot of remarks to me at the lunch adjournment yesterday. Though witnesses had been ordered out of court I gave my evidence to Mr. Molesworth. He asked me to make a statement. I consider I was justified to do so.
His Honour: The High Court has decided that a doctor’s confidence is sacred and should not be involved without his patient's permission.
Witness: I did what I considered right in the interests of justice. There was nothing private about this.
Mr. Westacott: How do you justify divulging your patient’s secret to the opposition solicitor? — I have written out my report in inquests.
His Honour read a section of the Evidence Act bearing on the point and forbidding n doctor to divulge a patient's secret.
Witness (to Mr. Westacott): I allowed plaintiff to remain on the lodge for five weeks drawing sick pay. I daresay I was leniently inclined. I asked him if he was fit to go off the lodge. I received a subpoena from the plaintiff. I told him he was not going on with the case himself; someone else was making him do it. He had not a point to work upon. It was a pure accident. I was under the impression that I giving him good advice. There was no harm to his health in going to the races.
To his Honour: The shock of an accident would be the first result. There is an excellent report of the evidence in the Hamilton Spectator and I am quite prepared to accept that report of Dr. Laidlaw's evidence.
Witness: I agree with the opinions generally of Dr. Laidlaw. I could find nothing to induce me to believe that there would be any permanent injury. If he says that he suffers from giddiness now and from pains in the back, I would not say that it is imagination. The defendant and I married two sisters. At Richie's corner, there is a very brilliant light.
To Mr. Kilpatrick: My relationship with the defendant has not had the slightest effect on my evidence. Plaintiff on the day he served me with a subpoena complained of giddiness. That was on July 22nd. He .had not complained of giddiness before.
Neil McDonald stated: I am a motor Proprietor at Hamilton and an expert in motor-cars. I taught the defendant to drive. I think he is a very capable driver. I know his lamps. I saw them lit last night between five and six it was not dark then. Kerosene motor lamps of this type could be seen for a mile by anyone approaching. They would be seen distinctly a quarter of a mile; sixty yards would be the limit to see distinctly the best motor lamp.
In going downhill the proper gear is the high one. It saves the engine. On the top gear, you can drive from five miles to 40 miles an hour or, I suppose; you could go a mile an hour. You can drive on both gears at the same minimum speed.
To Mr. Westacott: The shortest distance I could pull up a car going between, three and four miles an hour would be about its own length. With these lights, one could see about 30 yards. If I were passing a cab I would go on the right side providing there was room. No skillful driver would try to pass on the left. If I were driving to the station, and saw a cab in front of me, on a dark night, I would blow the horn if I were passing. One could learn to drive a motor in a week by continuous practice. I have acetylene lamps on my car. The value of the light would depend on whether the front was clean. It often happens that the oil runs short and the wicks get out of order. Going downhill in a centre of the population I would be more careful to keep control of the car than I would in going uphill. On the low gear, you could travel at half a mile an hour.
To Mr. Kilpatrick: I know Penshurst. From Richie's corner to Mc Nee's there is a slight downgrade. If I were following a vehicle without intending to pass it I would not blow the horn.
His Honour: Would you regard it as necessary to sound the horn in turning from Martin Street into Bell Street, the main street, leading to the station.
Witness: If there was a lot of traffic I would, but not otherwise. And going along Bell Street you would not sound it at all? Not unless somebody was on the road. Would it not be prudent to sound the horn on a dark night, if you could not see anyone road? — It would, but it is not usual.
'Ibis closed the evidence for the defendant, and counsel addressed the jury on behalf of their respective clients.
His Honour, in summing up, said that first of all the jury would have to examine the general facts. A motor-car was going at a greater or less speed down Bell Street. A man appeared suddenly in front, he was run over, the car passing over his body, and he was injured. The persons who were present on the occasion were the plaintiff, the defendant, the defendant's wife, and Miss Whitehead. Of course, they would naturally suppose that these persons would be better acquainted with the circumstances of the accident than anybody else, and he would advise the jury to weigh their evidence carefully. The jury had to decide one of two things— either that the defendant was negligent in driving his car, or, on the other hand, that the occurrence was nothing more nor less than a street accident for which nobody was to blame. Either the defendant was guilty of negligence, in which case they would find for the plaintiff, or, on the other hand, it was a purely accidental occurrence for which no one was to blame.
The meaning of negligence in law was the omission to take care in circumstances in which it was the legal duty of a person to take care. In the first place, negligence was the absence of due- care, that care which the law required a person to take to avoid an accident in the circumstances in which he was placed. They must connect the absence of care with the accident as cause and effect. The guide as to what due care was the course which a prudent, reasonable man would adopt in the same circumstances, and asks themselves what they would have done. Was the defendant guilty of negligence in the management of this motor car or wilfully misconducting himself? If they found he was, then apart from the Motor-car Act and the regulations, they would find for the plaintiff.
Amongst the usual forms of negligence were improper speed and driving on the wrong side of the road. The question of what was improper speed was one of degree and related to the particular place in which the accident occurred. Being on the wrong side of the road was some evidence of negligence, but it was only regarded as slight evidence. The rule of the road was that a vehicle overtaking another must pass on the right side, and, if meeting another must pass the left side, and he was satisfied, so far as motor cars were concerned, that that was compulsory.
He would now pass the Motor Car Act and regulations and see how they applied to this case. Motor cars had become very common in recent years, and persons delighted in driving them at a rapid speed. The Legislature was at last obliged to step in and exercise control over them and so they had a special Act of their own. It had been put by Mr. Kilpatrick that the regulations had no application to this case. But these regulations had the force of law, and must receive judicial recognition; in his opinion, if a person committed a breach of the duty imposed by the regulations the person injured in consequence had a right of action. That was the position here, and if he was wrong there would be no difficulty in having it set right by the proper procedure.
The plaintiff said he was walking along the left sale of the street, when the motor car, without warning, or without sufficient came and knocked him down. The second charge was that the car had no light or no sufficient light and there was a general charge that the motor car was negligently driven. In the amended particulars he was further charged with traveling at excessive speed. If the plaintiff proved any one of these then the jury should find for the plaintiff. As to the word of warning the act and regulations were passed in order to prevent accidents. Section 13 of the act provided that the motor should carry a bell or horn, or another instrument capable of giving audible or sufficient warning of the approach or position of the car. The section had been rendered a little more definite by the regulations by adding the words that the warning is to be given “Whenever necessary." The full force of the regulation lay in these words "Whenever necessary." He interpreted that to mean that the horn or bell should be sounded whenever ordinarily, reasonable, careful, prudent men thought it was necessary to do so That was the law which he thought was applicable to this case, and if there had been a breach of that particular regulation or section he thought an action for negligence was maintainable, and the plaintiff ought to succeed. They had to consider what the circumstances were in regard to this.
In the first place, it was admitted that no bell was rung or horn blown at all. The horn was not sounded at the corner or during the progress down Bell Street.
It was for the jury to consider whether it was a wise thing in the circumstances to travel along that street without giving a warning to people who might be about. Was the defendant guilty of making that omission? It was the standard of what the jury thought was prudent and reasonable that had to be considered. According to the plaintiff's evidence, he knew nothing of the motor car until it was on him. That was the first point to consider.
If they found the defendant in this respect did not reach the standard prescribed by the law, they could find for the plaintiff and need not trouble about anything else. The next thing was lighting. The Act required that the lights should be clear and strong, so as to afford an adequate means of signalling the approach and position of the motor-car, and the regulation added that the lights must show for a distance of at least 200 yards in the direction in which the car' was proceeding That was all the law said on the subject of lamps, and it was for the jury to say whether the lamps used on the car on this occasion complied with that condition. If they did not, there had been a breach of the regulation and the statute and the defendant was liable for neglect. Considerable evidence had been given on both sides, and the jury had to decide which was correct.
The next point dealt with the general aspect of the case — that was, that the defendant drove the car in a negligent manner. That was a broad question, which really depended on all the evidence in the case, and his Honour did not see that he could do much good, except by making a general reference to the evidence, in which there seemed to be a direct conflict. Some of the witnesses for the plaintiff were confident that the car was traveling at a good speed some said from 12 to 16 miles an hour — and that it went on the left side of the cab.
The plaintiff said he was close to the cab, on a level with the back wheel, when the car struck him. If they believed that, then the car was on the wrong side of the cab, for the regulation was mandatory that a car passing a vehicle going the same way must pass on the right side. That regulation made the rule of the road imperative. If the car passed on the left side of the cab it was a clear breach of the regulations evidence of the plaintiff went to show that. He said he was struck down on the left side of the cab. Eales said he saw the car, which was on the right side of the road, crossover, and apparently to pass the cab on the left side. On the other hand, the occupants of the car said they never left the metal at all.
On the subject of speed, there was nothing laid down in the act to indicate what was excessive speed, although reckless driving was referred to. The only provision was that the speed should not be such as to endanger the safety of the public.
Constable Bell said the car came round the corner at a snail's pace, and the defendant said he was traveling at a walking pace, but he could not say whether the cab was walking or trotting. He said that he kept the same distance behind the cab, so if the latter was going at three or four miles an hour the car was doing the same. It was for the jury to decide whether that was probable. If they came to the conclusion that in all the circumstances the defendant was not guilty of negligence, there was an end of the case, but if they held the contrary view then they would have to consider the question of damages. He would follow the practice of the Full Court in this matter so that on the ground of misdirection for damages there would lie no application for a new .trial. It was the sort of case that should have been settled without being brought into court.
His Honour then went through the details of plaintiffs claim.
The jury, after a retirement of about a half-an-hour, returned into court and announced that they had found a verdict for the plaintiff, damages £150.
Judgment was accordingly entered for that amount, with costs to be paid. A stay of seven days was granted to allow the plaintiff an opportunity of taking steps to appeal against the decision.
Source material from the Hamilton Spectator.
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