RYDZEWSKI V. CUMMINS

©3978 /85

W. M. Houston, Govt. Print., Melb.

IN THE HIGH COURT OF AUSTRALIA

Movers g.

REASONS FOR JUDGMENT

Judgment delivered at.$yaney——————---- - on... Wednesday 30th March -1960--—-~

Appeal dismissed with costs.

Cots Bate

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The defendant, a motorist, while driving in a northerly direction along Park Street, Hobart, ran into the plaintiff, a pedestrian, walking along Park Street in the same dizeection. The aceident happened late on a dark night on a badly lit section of the street. It had been raining and the street was wet, The roadway consisted of a strip of bitumen about twenty feet wide flanked on either side by a gravel strip. The gravel strip on the west was about twenty feet wide, of which the last six feet were overgrown with rough grass upon which it was not practicable to walk. 'The plaintiff's case was that he vas walking on the gravel about two feet avay from the western edge of the bitumen and that while so doing he was run down from behind by the defendant's car without knowing anything of it before he was hit. The defendant's case was that he was driving at about twenty five to thirty miles an hour, with his lights on and with his left-hand wheels about. two feet in from the western edge of the bitumen, and that when he vas twenty five to thirty feet away he saw the plaintiff directly in front of him on the bitumen, that he then attempted to pass to his left but could not avoid hitting him. The Learmed trial judge accepted neither aceount completely. He found that the plaintiff was walking on the bitumen some six feet from the vestern edge and not on the gravel, that the defendant was driving at about twenty five to thirty miles per hour with his lights on, and that the defendant did not see the plaintiff until he was a good deal closer to him than twenty five feet. In these civcumstances, his Honour found that the accident was caused by the negligence of the defendant in not