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

JurisdictionIreland
Judgment Date17 October 1928
Date17 October 1928
CourtSupreme Court (Irish Free State)

Supreme Court.

O'Dwyer v. Cork Distilleries Co.
SHAWN O'DWYER
Plaintiff
and
CORK DISTILLERIES COMPANY, LIMITED, Defendants (1)

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.

Motion on behalf of the plaintiff for an order that the verdict given and judgment entered on the trial of the action, before Hanna J. with a jury, on the 22nd February, 1928, might be set aside and a new trial ordered, or, alternatively, that judgment might be entered for the plaintiff.

In his statement of claim the plaintiff, a commercial traveller, stated that, when driving his motor cycle on the public highway near Newtownmountkennedy, Co. Wicklow, on April 22nd, 1927, a motor car, the property of the defendants, was so carelessly and negligently driven and managed by the servants and

agents of the defendants that it was driven with great violence against his motor cycle, which was smashed, and he sustained severe personal injuries, which necessitated surgical and medical treatment, and which prevented him from carrying on his business. He claimed £820 special damages, and £6,000 general damages.

The defence was a traverse, and the defendants further pleaded that the matters complained of by the plaintiff were caused solely by his own negligence, and, alternatively, that the plaintiff was guilty of contributory negligence.

The action was tried on February 20th, 21st, and 22nd, 1928. The facts have been summarised in the head-note, and the evidence given by the plaintiff, Shawn O'Dwyer, and by the driver of the defendants' car, a man named Lucy, sufficiently appears from the judgment of Kennedy C.J.

Hanna J. submitted three questions to the jury:—

1. Was the occurrence caused solely by the negligence of Mr. Lucy?

2. Was it caused solely by the negligence of Mr. O'Dwyer?

3. Was the collision caused by the combined negligence of both Mr. Lucy and Mr. O'Dwyer operating simultaneously, so that by reason thereof neither could avoid the collision?

Counsel for both the plaintiff and the defendants objected to these questions.

In his charge to the jury Hanna J. said: "It will be sufficient to determine this case if, subject to my direction, you can answer any one of these questions clearly and satisfactorily to yourselves." After deliberating for an hour, the jury returned to Court with the issue paper. The foreman stated they were unanimous on one question, and he asked if it would be sufficient to answer it. Hanna J. said "Yes, one will do."The jury again retired, and in a few minutes returned with the issue paper, on which the question: "Was the occurrence caused solely by the negligence of Mr. Lucy?" was answered"No." Hanna J. thereupon gave judgment for the defendants.

The grounds of the plaintiff's motion to the Supreme Court were as follows:—

1. That the question answered by the jury was inconclusive, and did not determine the issues between the parties.

2. That the questions left by the learned Judge to the jury, if answered in their entirety, would not determine the issues between the parties.

3. That question No. 3 was directed to an issue which was not raised by the pleadings.

4. That no question was left by the learned Judge directed to the final act of negligence.

5. That the learned Judge should have left the questions to the jury in the form requested by plaintiff's counsel.

6. That the learned Judge was wrong in charging the jury in the first instance on the question of negligence, and telling them that he would charge them on the question of damages if it became necessary—the words used by the learned Judge being as follows:—"I propose in this case to ask you to answer the questions as to liability first before dealing with the question of damages. When you have answered these, I will charge you upon the question of damages. I will ask you to consider these three issues I have put to you, omitting any question of the assessment of damages until I have charged you further upon it."

7. That the charge of the learned Judge tended to create the impression in the minds of the jury that they should find for the defendants, and /or/ that a consideration of the question of damages would be unnecessary.

8. That the learned Judge was wrong in telling the jury, in reply to their question, that it would be sufficient for them to answer any one of the questions submitted to them.

9. That the learned Judge improperly rejected evidence tendered by the...

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