O'Dwyer v Cork Distilleries Company, Ltd (No. 1)


Supreme Court.

O'Dwyer v. Cork Distilleries Co.

Negligence - Contributory negligence - Collision between motor car and motor cycle - Form of questions submitted to the jury - Insufficient for trial of action - Single finding by the jury.

Kennedy C.J.:

We have heard this case fully argued for the past three days. As we are all agreed that there must be a new trial, and, as in the case of a new trial, we should not deal with the evidence in detail, it is convenient that we give judgment now.

The facts, shortly, are that on the 22nd of April, 1927, near Newtownmountkennedy, the plaintiff was coming into Dublin on a motor bicycle, with a small boy riding pillion behind him on a carrier seat. On the road in front of the plaintiff a van belonging to his firm was also travelling to the city. They were met by a Ford car driven by a man named Lucy, the defendants' servant. The motor bicycle and the Ford car came into collision, and the plaintiff suffered terrible injuries, in respect of which, as caused by the negligence of Lucy, he has brought this action.

The plaintiff made the case that he was travelling along his proper side of the road, following in the wake of his firm's van, but at some distance from it, and out of view of it, up to a bend in the road where the collision occurred. The plaintiff's recollection carried him only to the approach to the bend in the road, after which he remembered nothing more, as he was rendered immediately unconscious, and did not recover consciousness for days afterwards. The boy on the pillion seat took up the story at this point, because he said that he remembered the motor car coming round the corner, and he alleged that, in order to avoid going into the ditch, it swerved, and turned round and hit the motor bicycle, and then the boy also lost consciousness, having been seriously injured.

The case of the defendants is that the driver of their car, Lucy, was coming up from the Dublin side towards the bend when he saw the van which the plaintiff was following coming towards him. He alleges that the plaintiff on his motor bicycle shot out suddenly from behind the van, and that, although he, Lucy, immediately turned his Ford car into the grass margin on the side of the road and cut off the petrol, he failed to avert the collision. There was much controversy in the evidence as to whether the van was directly in front of the plaintiff, concealing him from the view of Lucy immediately before the accident, or, as the plaintiff said, was a considerable distance in front of him, and actually out of his view at that point of time.

That was one of the fundamental issues of fact in this action. The learned Judge had apparently formed a view in favour of the defendants' story of the position of the van, and I rather think his charge was influenced by his own belief in the truth of that story.

He presented the case to the jury on three questions, which, it has been argued here, could not determine the issues in the action. These...

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