Neenan v Hosford

• Jurisdiction: Ireland
• Judgment Date: 19 December 1920
• Date: 19 December 1920
• Court: Court of Appeal (Ireland)

K. B. Div.

Appeal.

Neenan v. Hosford

NEENAN

and

HOSFORD (1)

Negligence - Contributory negligence - Continuing negligence of plaintiff - Continuing negligence of Defendant - Cause of injury.

New Trial Motion.

This was an action brought to recover damages for injuries caused to the plaintiff by the servant of the defendant by reason of his negligent and unskilful management and driving of a horse and bread-van at Great George's Street, in the City of

Cork, on the 11th day of March, 1918, which said horse and van were and are the property of the defendant.

The action was tried before the Right Hon. Mr. Justice Pim and a common jury on the 14th January, 1919, when the learned Judge, upon the findings of the jury, directed a verdict for the defendant.

The material portions of the learned Judge's report of the trial were as follows:—

The following is the evidence which was given in the case:—John Lawrence Feirn, civil engineer, proved the maps in the case, showing where the accident took place, and the various distances.

Mary Neenan (the plaintiff):—"I am the widow of Denis Neenan, tanner. I live in William O'Brien Street, Cork. I am possessed of some house property, which I look after myself. On the 11th March, 1918, I went to the Augustinian church at about 3 o'clock. I had an appointment there. I left at about 3.15, and stepped off the footpath to cross the street. I stood about one yard outside the kerbstone to let the traffic clear. There was a van standing five or six yards to my left. I was looking to the left, and suddenly I saw a horse up to my face. I had no power to jump; it was too near. I put up my hand. The horse, I think, reared. I was thrown down on my hip, and in the fall my right arm swung, and was wrenched. The wheel of the cart went over my left leg. I was helped up and taken to O'Sullivan and Howard's. I was there for a while. I was quite dazed. I noticed a policeman taking a statement from a boy. The defendant Hosford then came in. The boy was still there. Hosford said: 'Is it you I have?' He knew me. He said to the boy: 'What brought you this way?' The boy said there was a car in Castle Street, and he could not go up that way. Hosford said: 'How did this occur?' The boy said that the bread was falling out of the window of the van (this is a small window in the front of the van, facing towards the horse), and 'I was looking behind and did not see the woman at all.' Hosford said: 'That is right; tell the truth.' He said to me, would I go to the infirmary, or would he send for the ambulance. He got me a covered car, and drove me home, and telephoned for Dr. O'Mahony . . ."

Cross-examined:—"I do not know if I looked up and down the street before going out on the road. I may have been standing in the street for five minutes. I told Hosford that I was going to a graveyard, and was waiting for a friend. I further told him that I had left the kerb, but that there were cars in front that prevented me crossing. It was then the wheel of the car struck me . . . I stood two or three minutes in the street off the kerb, and I was watching the traffic going up from the left."

Sergeant John Patterson:—"On the 11th March, 1918, I was on duty on the Grand Parade. I heard of an accident, and I went to the place. I saw Mrs. Neenan and the boy in the shop. Mrs. Neenan was on a chair; she appeared to be suffering. She made a statement to me. The boy also made a statement. He said he was engaged at the time of the accident in closing the window of the van, and did not see the woman until the pony was up to her. He said:—'I did my best to pull up, but she was knocked down before I could stop him.' Great George's Street is asphalted, and has no crossings." Cross-examined:—"I do not recollect that she said it was partly her own fault. Mrs. Neenan said: 'As I was crossing I was knocked down by a bread-van. A cart was passing, and I stayed to let it pass. The bread-van was coming up the opposite way, and knocked me down . . .'"

Daniel MacSweeney (for the defendant):—". . . I will be seventeen years of age next June. I had been driving the cart for about seven months before the accident took place. The pony was an old pony of sixteen or seventeen years. The van was packed with bread. I was going down George's Street on the left-hand side. I had turned out of the North Main Street. I saw nothing ahead of me at the Augustinian church, There was a loaf of bread falling out of the front window. I turned round for a few seconds to fix the loaf, and when I turned back I saw the woman. She was too near the van for me to pull up. The left shaft struck her. There was nothing between me and the chapel. At the time she was struck I was about two doors away from the chapel, which I had not passed. When I turned to push back the loaf, I was about ten yards from the place where the accident occurred. I was going slowly, perhaps about five miles an hour. I went into O'Sullivan and Howard's. I heard her make no statement. I made a statement myself, the same as I am making now. If I had seen the woman, I could have avoided her. She was apparently walking slowly."

Cross-examined:—"The van was a kind of a float. I was sitting on the shaft. The window was in front of the van. The loaves were falling out, and I could not shut the window. I had to put the loaves back. The pony took a shy when she went over the woman's leg, and I had a job to stop her. I did not see the stationary van."

Joseph Hosford, the defendant:—"I asked the plaintiff what happened. She said she had stepped off the kerb to cross the street to her tram. She said, 'I left the footpath without looking, and did not see anything until I was knocked down. It was partly my own fault.' She said nothing to me of the traffic on the other side . . . I visited her again that night, and she repeated exactly the same thing again on a later occasion."

Cross-examined:—". . . I asked the boy how it occurred. He repeated exactly what he has said here to-day. He said: 'There was no one in the street when I turned to put in the bread.' He said he saw her first as the pony hit her . . ."

Mr. Lynch K.C. asked me to recall the jury, and tell them that if the driver was negligent before he saw or approached the plaintiff, and if that negligence continued up to the time of the accident, the jury were entitled to find that the continued negligence was the cause of the accident.

I refused to recall the jury and to make the statement to them, which I am not sure that I completely understand, but which, so far as I do understand it, does not seem to me to be good law. The only negligence alleged was the turning round to put back the bread. It was not suggested that the van was on the wrong side of the road, or was being driven too fast.

The following questions were submitted to the jury, and answered as hereinafter mentioned:—1. Was the driver guilty of negligence in driving the van on the 11th March, 1918? Answer,"Yes." 2. Was the plaintiff guilty of contributory negligence? Answer, "Yes." 3. Could the defendant by the exercise of reasonable care have avoided the consequences of the plaintiff's negligence? Answer, "No." 4. Assess damages. No answer.

The motion for a new trial was based on the grounds inter alia—(a) that the learned Judge should have directed the jury that, if the defendant's driver had by his negligence placed himself in such a position that he could not avoid the consequences of the plaintiff's negligence, the jury might and should find that it was this continuing negligence on the part of the driver that was the cause of the accident; (b) that the learned Judge misdirected the jury in telling them that in considering this question (i.e., of avoiding consequences of plaintiff's negligence) the point of time for the jury to consider was from the moment when the defendant's driver first actually saw the plaintiff; (c) that the learned Judge should have directed the jury that, although the plaintiff's negligence may have directly contributed to the accident, she was entitled to recover if the defendant's driver could by the exercise of ordinary care and caution have avoided the consequences of such negligence.

The defendant appealed to the Court of Appeal (1).

The plaintiff, an active woman, was desirous of crossing a thoroughfare in the City of Cork in broad daylight. She stepped off the footpath to cross the street, and, according to her own evidence, stood for a short period about one yard outside the kerb to let the traffic clear. There was a van standing five or six yards to her left, and she was looking to the left, when suddenly she became aware of the approach of a horse and van, and she was knocked down and sustained injuries. The horse and van which collided with the plaintiff were the property of the defendant, the van being a bread-van; and the evidence of the driver, which was otherwise corroborated, was that when at a distance of about ten yards from the spot where the plaintiff stepped off the kerb, and without having seen the plaintiff—if, in fact, she had then left the foot-path—he turned round to push back a loaf of bread which was in danger of falling from the front of his van, and when he again looked to his front he endeavoured to pull up, but was too late to avoid the accident.

The jury found that the defendant's driver was guilty of negligence, that the plaintiff was guilty of contributory negligence, and that the defendant's driver could not, by the exercise of reasonable care, have avoided the consequences of the plaintiff's negligence, and judgment was entered for the defendant. On a motion by the plaintiff for a new trial:

Held, by the Court of Appeal (Sir J. Campbell C. and O'Connor L.J., Ronan L.J. diss.), reversing the decision of the King's Bench Division (Gibson and Gordon JJ.), that the original negligence of the defendant's driver in turning round was not a continuing negligence, but that the accident was...