Logan v O'Donnell

Judgment Date29 April 1925
Date29 April 1925
CourtSupreme Court (Irish Free State)
Logan v. O'Donnell.
FRANK O'DONNELL,Defendant (1)

Supreme Court.

Negligence - Contributory negligence - Collision between motor-car and motor-cycle - Personal injuries - Form of questions to be put to jury - Jury finding negligence generally - No duty to find a specific negligent act or omission.

Plaintiff was driving a motor-bicycle with a side-car attached down hill on a winding road with blind turnings. The defendant was driving a motor-car up the same hill. The two machines collided at a blind turning, and, as a result of the collision, the plaintiff was seriously injured. Plaintiff was going at 7 miles an hour; the defendant, on his own evidence, was going at least 15 miles an hour, but witnesses estimated his speed at from 20 to 28 miles an hour. There was conflicting evidence as to whether either the plaintiff or the defendant was on his proper side of the road. Neither sounded his horn when immediately approaching the turn where the accident happened. Three questions were left to the jury:—(1) Was the defendant negligent? (2) Was the plaintiff negligent? (3) Could the defendant by the exercise of reasonable care have avoided the collision? The Judge declined to put the first question in the following form:—"Was the defendant guilty of negligence (a) by driving at an excessive speed; (b) by driving on the wrong side of the road; (c) by not keeping a proper look-out?" All three questions were answered by the jury in the affirmative, and on these findings the Judge entered judgment for the plaintiff. It was admitted that the Judge gave proper directions to the jury.

Held by the Supreme Court that the jury was entitled to find negligence generally, without any finding of a specific negligent act or omission, and that the questions put to the jury met the requirements of the case, and there was evidence to support the findings.

Form of questions to be put to the jury considered.

Per Kennedy C.J.: There was evidence upon which it was open to a jury to find that the defendant had the final opportunity to avoid the collision, which it was his duty to avoid if he could, however negligent the plaintiff may have been, and that he failed in that opportunity, and that his failure was the immediate and effective cause of the accident.

Decisions relating to contributory negligence considered by FitzGibbon J.

Motion for a new trial, or, in the alternative, that judgment entered for the plaintiff might be entered for the defendant.

The action was brought to recover damages for injuries caused to the plaintiff by the defendant by reason of the defendant's negligent and unskilful management and driving of a motorcar. The plaintiff was travelling down hill on a motor-bicycle with a side-car attached upon a tortuous public road with a generally steep gradient and blind turnings. The defendant was driving a motor-car up hill on the same road. A collision took place at a blind turning. The plaintiff's speed according to the evidence was about 7 miles per hour. The defendant's speed according to himself was at least 15 miles per hour, and was estimated by other witnesses at from 20 to 28 miles per hour. There was some evidence that the plaintiff was not on his proper side of the road immediately before and at the time

the accident happened. There was also evidence that the defendant for some time before and at the time of the accident was on his wrong side of the road. Neither the plaintiff nor defendant sounded his horn immediately preceding the accident.

The action was tried by Sullivan P. with a common jury, to whom the learned Judge put four questions, which, with the answers of the jury, were as follow:—

1. Was the defendant negligent? Answer—Yes.

2. Was the plaintiff negligent? Answer—Yes.

3. Could the defendant by the exercise of reasonable care have avoided the collision? Answer—Yes.

4. Assess damages. £750.

Whereupon judgment was entered for the plaintiff.

Counsel on behalf of the defendant had objected to the questions submitted to the jury, and had requested the Judge to leave to the jury the issue as to the negligence of the defendant in question No. 1 in the form in which that negligence was pleaded, with particulars, in the statement of claim, and had requested that the first question be put in the following form:—

1. Was the defendant guilty of negligence (a) by driving at an excessive speed; (b) by driving on the wrong side of the road; (c) by not keeping a proper look-out?

Sullivan P. had declined to put the question in that form, and on the findings judgment was entered for the plaintiff.

The defendant applied to the Supreme Court to have the verdict and judgment set aside, and that a new trial might be ordered, or, in the alternative, that judgment might be entered for the defendant on the ground that the verdict and judgment was against the weight of evidence, and upon the further grounds that (a) the learned Judge should have acceded to the defendant's requisition and left the questions to the jury in the form mentioned in the requisition and in accordance with the pleadings in the action; (b) that the facts proved at the trial were equally consistent with the injury having been caused by the plaintiff's sole negligence; (c) that the defendant's negligence (if any) was not the proximate or effective cause of the injury; and (d) that the injury was caused by inevitable accident.

Cur. adv. vult.

Kennedy C.J. :—In this action the plaintiff claimed, and

was awarded by the jury, damages for the injuries sustained by him in a collision, which occurred on the 18th of May last, at a dangerous curve upon the public road, called the Bally-edmonduff Road, leading from Glencullen to Stepaside, in the County of Dublin. The defendant—who had a lady passenger with him—was driving his motor-car from Dublin to Glencullen. The plaintiff had, shortly before, travelled out from Dublin on his motor-bicycle (to which a side-car was attached) and had brought with him two passengers—his sister and her husband, whom he had set down at a point on the Dublin side of the curve in question. He had then driven on for a short distance beyond the bend in the road in order to turn his machine and come back to pick up his passengers again and take them back into town. He was therefore returning to his tryst at the moment of the collision, and, if nothing had happened, must have come to a stand-still a short distance further on the road. The plaintiff's evidence is that he was at the moment of the

collision driving his motor-bicycle at a speed of 7 miles an hour, and this is hardly questioned. The defendant was coming up the road at a speed which he himself admits was at least 15 miles an hour, and, he says, he does not think it was 20— while some eye-witnesses gave evidence which would go to show that, just before the accident, he was travelling at a rate of about 25 or even up to 28 miles an hour. The collision occurred in the bend of the road, which is a sharp and dangerous turn, and at a point where the metalled road is 12 feet wide and has a rise of 1 in 13'2 up towards Glencullen. The plaintiff did not sound his horn approaching the turn. The defendant had sounded his horn some distance off, but not immediately approaching the turn of the road. There is no controversy as to the omission to sound the horn in either case. The defendant admits that he saw the plaintiff approaching when he was 30 yards away. The plaintiff, on the other hand, says that on approaching the bend in the road, the defendant's motor-car loomed up about 4 yards off. The plaintiff's machine was at the time "in neutral," that is to say, the engine was running but not contributing to the propulsion of the machine. The plaintiff, who says that the defendant's car was on his (the plaintiff's) side of the road, says that when the car loomed up he tried to stop his motor-bicycle and put on the hand and foot brakes. The defendant, who swore that the left wheel of his motor-car was well in to his left side of the road, said that there was plenty of room for the plaintiff to pass him; that the plaintiff's machine wriggled or swerved out towards him; that he (the defendant) turned sharp in to the left on the grass margin, put out his clutch and (though his evidence on this is not satisfactory) put on the brake; but that he did not put on his emergency brake, which is a hand brake. After the accident the motor-car was in the position that its front wheels were driven in on the grass bank at its left-hand side of the road, while the body of the car was turned across the road. The motor-bicycle was standing on its left-hand side of the road, with its front wheel close to the back wheel of the car. The collision seems to have been in the nature of a glancing contact, that is to say, that the motor-cycle glanced along the right-hand side of the motor-car before coming to a stand-still. The principal controversy of fact was as to the position of the motor-car as it approached the bend in the road and came into collision, and the position of the motor-bicycle as it came down towards the point of collision. There being conflicting evidence on this matter, it was one entirely for the jury, and I do not venture any opinion as to where the truth lay. There is no doubt that the plaintiff suffered very grave injuries, and he brought his action alleging negligence on the part of the defendant—which negligence was stated in the particulars to consist in the driving of the motor-car at an excessive speed round the curve of the road and upon the wrong side of the road and without any horn being sounded and without any proper or sufficient look-out. The defendant pleaded that the alleged damage was caused solely by the plaintiff's own negligence, and that the plaintiff was guilty of contributory negligence; to which the plaintiff replied that, if there was any negligence on his part, the defendant could...

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