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VERDICT FOR £762/15/
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Outcome of Collision
JURY RETIRES, FOR TWO HOURS
WIDOW'S CLAIM SUCCEEDS
After a retirement of two hours the jury at the Goul
burn Circuit Causes returned a verdict for £762/15, in
favour of Mrs. Olive Adeline Kennedy in the case in which
she claimed £2000 from William Baron John Mitchell in
respect of the motor fatality following which her husband,
Leo Colin Kennedy, died of injuries.
The address of counsel and the judge's summing up occupied
the whole of yesterday afternoon and the jury retired shortly be
fore five o'clock. At 6.15 they returned to court in order to ask a
question as a result of which a witness had to be brought from
his home. Retiring again the jury did not take long to arrive at
a decision and returned a verdict for the widow at 6.45.
Mr. Brian Clancy, instructed by
Messrs. Meyer and Manfred, appear
ed for Mrs. Kennedy and Mr. Selwyn
Betts, instructed by Mr. T. P. Moloney,
for Mitchell,
Mrs. Kennedy, recalled, said her
son, Maxwell, was riding on the
lorry. Her husband was about five
feet eleven and weighed 13 stone.
She had driven the lorry often with
three adults in the seat.
Mr. Betts: Why had he his foot on
the running board? - Because the
door was off.
Wasn't it because he was afraid of
accidents?-I wouldn't, say that.
Anthony Cochrane, licensed sur
veyor, said he prepared the plan of
the locality of the accident which, he
said, was drawn to the scale of 30
feet to one inch. The gride from the
north along Sloane Street to the inter-
section was about one in 36. The
rise from the centre of the inter
section to the bridge was one in 31.
On the ramp on the far side of the
bridge the grade was one in 20. Wit-
ness showed a point on the plan, 35
yards back from the intersection in
Sloane Street. The northernmost edge
of the spot marked A by Mrs. Ken
nedy to the intersection was 38 feet.
Mr. Betts asked at what speed
Mitchell would have to travel from
the point where Mrs. Kennedy said
she saw him to the point of impact
if she was 17 feet from there and
travelling at 15 miles an hour.
His Honour pointed out that, while
Mrs. Kennedy's speed was 15 miles
an hour, from the points B to C - 17
feet - on the plan the brakes were on
hard, and this would have its effect
on the speed at which she travelled.
Mr. Betts said he understood that.
Repeating his question he received a
reply from the witness that Mitchell's
speed would be 190 miles an hour.
In reply to Mr. CIancy, witness
said average untrained members of
the public had a very poor idea of
distances, while witness gave dis
tances to the very foot. The letter
A on the plan actually covered nine
feet on the plan. The letters SM
measured 15ft 6in.
Witness agreed that with a two
wheel brake vehicle the end of the
markings would represent where the
rear wheels stopped. The front of the
vehicle would be 15 feel further on.
MITCHELL'S STORY
William Baron Mitchell, de
fendant in the case said that "The
Towers" was about 1½ miles from the
scene of the accident. He left there
at about 6.45 and the accident oc-
curred at about 6.55. Witnes had
been driving a car five years and had
driven about 40,000 miles without ac-
cident. Witness had had the car
about six months up to the time of
the accident. It was a 1919 or 1920
model. He had bought it for £10, and
its mechanical condition at the time
was very bad. The utmost speed it
was capable of was about 30 miles an
hour.
Witness had his lights on at the
time. He came up the ramp to the
bridge in second gear. He could not
remember having driven up there in
top gear. He was travelling at about
15 miles an hour at the top of the
hill.
Mtchell said he there changed into
top gear. He looked to the right to
see if there was any traffic approach
ing. He saw none. Witness indiicated
on the plan where he was when he
looked to the right. When he saw
there was no traffic there he con
tinued on toward the intersection
until he saw the other vehicle ap-
proaching. He then swerved the car
in the same direction as the lorry
was going in an endedavour to avoid
an accident and a moment later the
car hit the lorry about the cab. He
could not say if the driver of the
lorry did anything as it all happened
so quickly. The front right wheel and
mudguard of the car hit the lorry.
SPEED OF CAR.
Asked by Mr. Betts at what speed
he was travelling, Mitchell said: "At
20 miles and definlitely not more than
25 miles an hour." Witness requested
someone to send for the police and
the ambulance. In reply to questions
asked him by Constable Culshaw,
witness said he had given the speed
as 20 miles an hour-not as 25 miles
an hour. The statement he had given
the police was correct.
Witness knew the locality there
well. The lighting at the locality was
poor and there were four lights in
the vicinity of the intersection to
dazzle a driver's eyes through the
windscreen of a car. The nearest one
was that at the intersection. The
second was half way up Mundy Street.
The third was at the intersection of
Auburn and Mundy Streets and the
fourth on top of the hilI.
In answer to Mr. Clancy, witness
said he knew that carelessness at the
wheel of a car could cause accident
and even death. He had normal eye-
sight.
Mr. Clancy: You agree that this
intersection is a dangerous one?-
Yes.
And that the more dangerous an
intersection is, the more care you
must take? - Yes.
Witness said the four lights he re-
ferred to dazzled his eyes to a certain
extent. He did not know these lamps
were not as bright as the street
Iamps in Auburn Street.
Asked if he had taken 10 minutes
to come from the Towers, witness re-
plied in the affirmative and admitted
that he had thus averaged eight miles
an hour from the Towers.
Witness would not say that the
lights of the lorry were alight prior
to the accident. Asked if he had not
told the police that the lights of both
vehicles were alight, witness said he
had said both were alight after the
accident. At the time of the collision
his lights were alight.
Bert Cameron Mitchell, brother of
the defendant, said he was in the car
on the drive from "The Towers." He
gave evidence, corroborating that of
his brother regardling the speed of the
car and the manner in which the car
was driven up the ramp. The first
he knew of any trouble was when his
brother swerved the car. He then saw
the lorry about the length of the car
away.
Witness sustained broken ribs as
a result of the accident.
To Mr. Clancy, witness denied that
there was no swerve of the car until
after the inmpact. He admitted that he
had talked over with his brother
their statements to the police.
Witness did not think he was talk
ing to his brother prior to the accid
ent. He did not know the lorry's lights
were on or not.
To Mr. Betts. witness said his
statement to the police was correct.
This was similar in detail to his evi
dence and stated that he could not
say if the lorry lights were burning
or not.
John Dalby Pollard, carrier, of
Mundy Street, said the first he knew
of the accident was that he heard an
impact and then he heard another.
Later he went to the scene of the ac
cident.
Keith Reginald Taylor, manager of
Taylor and Lockwood, said Mitchell's
car was brought to the garage. He had
known the car before the accident.
It was a 1919 model and had been in
the garage from time to time. He
was in the car three or four months
before the accident, and in his opinion
it had outlived its usefulness. Asked
what speed the car would accelerate
to after leavtng the bridge he said
it would be 30 miles at the most.
Witness had seen the lorry about the
streets prior to the accident. Ken-
nedv often called at the garage for
petrol. He usually sat on the near
side and witness had seen him with
his foot on the running board.
Judging by the photograph of the
lorry - witness would say the car
struck the lorry a glancing blow. To
have hit it at right angles he would
say it would have turned the lorry
over.
In reply to Mr. Betts, witness said
he did not think a woman could bend
the steerting wheel of a car in the
manner described by a previous wit
ness.
To Mr. Clancy. witness said he
could not test the brakes of the car
after the accident as it was not
mobile. He could not say if the car
had brakes or not.
Percival Currall, motor mechanic
gave evidence of the position and
damage of the lorry.
Mitchell recalled, said his brakes
were up to the average standard.
Constable Culshaw recalled said
he was able to follow the tracks of
the car from the bridge and they did
not swerve at all to the point of im-
pact. He pointed that out to Mitchell.
In his address to the jury Mr. Betts
referred to the observation of the traf-
fic rule that when two vehlicles were
approaching an intersection and if
both proceeded would meet, the
driver with the other vehicle on his
right hand side must give way.
Mr. Betts contended that this re-
gulation did not apply in the case as
of Mrs. Kenned had not put on the
brake, she would have been quite a
considerable distance the other side
of the intersection.
Mr. Betts suggested that the real
cause of the accident was the plain-
tiff's own conduct in applying the
brake instead of proceeding on over
the intesection.
Mr. Bettes dealt at some length
on the items of the claim. He said
he believed that the jury would not
reach the question of damages, but
would return a verdict for the de-
fendant.
Mr. Clancy stressed that there was
no rule in the traffic regulations
which the driver of a car should ob-
serve more than that referring to the
approach to intersections and anyone
using the road was entitled to as-
sume that the other person would ob-
serve that rule. He asked what safety
there would be for anybody if the
driver of a car could say: "I did not
see the other vehicle." If Mitchell
had been looking he would have seen
the lorry.
JUDGE SUMS UP
After dealing with the question of
negligence, during which he explain-
ed that this constituted doing some-
thing that a reasonable and prudent
man would not do: or failing to do
something a prudent man would do in
the circumstances, the Chief Justice
in his summing up dealt with the
aspect of one driver having a later
opportunity than the other of doing
something to avoid the accident. If
the fault was attributed to the driver
who had a later opportunity the jury
shoul find accordingly.
Dealing with the observance of the
rule of the road concerning vehicles
approaching an intersection, his
Honour said it was difficult to see
how the accident could have occurred
if the defendant did what he said he
did. One explanation was that he did
not look to the right as he said he
did. Another was that he saw the
other vehicle and thought he would
be safe in going on. Any failure on
the part of the defendant to observe
the rule of the road would be neglig-
ence on his part, and if the jury
thought there was negligence it was
entitled to do so.
After a retirement of over an hour
the jury returned to court to ask
what the purchase price of an annuity
would be to produce a certain amount
per week over a period of years. The
foreman intimated that the Jury did
not desire to mention the amount or
the period of years at that juncture.
In order that the jury could be
supplied with the information, the
judge directed that Mr. C. F. Adams,
who had given evidence on the ques-
tion, should be called.
On entering the box Mr. Adams
made cetain calculations, and in-
formed the court that at 11 years
the annuity at 10/ a week would be
£240, at 16 years £326, and at 20 years
:£386. This was reckoned on a basis
of 3 per cent, he said, but the 2¾ per
cent basis would be fairer, and would
enlarge somewhat each of the
amounts.
The Jury retired again, and after an
absence of a quarter of an hour re-
turned a verdict for the widow of £732
plus £30/15/ funeral expenses.
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