High Court of Australia
arte
LX, Grea, Gort. Print, Melb.
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'or 1943 FO.
IN THE HIGH COURT OF AUSTRALIA.
REASONS FOR JUDGMENT.
Wigh Court of Anstralia. Principal Registry.
10 Nov 1943
P) val Judgment delivered at__.Melbourne.... on Monday ist Movember, 1943...
REASONS FOR JUDGMENT . LATHAM C.J,
This is an appeal from a decision of the Supreme Court of South Australia given by His Honour Mr. Justice Mayo in an action for negligence brought by the executor and the widow of Bruce Fotheringhan Kerr deceased, Kerr lost his life as the result of a collision between a car driven by him and a stationary truck which was standing on the road between Adelaide and Gawler. The truck was driven by the defendant Reynolds, who was a servant of the defendant Deacon. The truck broke down while it was travelling - there was engine trouble - and Deacon found himself unable to remedy the trouble. The truck stopped on the roadway and was left there while Deacon walked to Gawler to get assistance. Darlkmess came on and the truck was still there. The vehicle, when the driver left it, was on the bitumen part of the road facing north. The offside wheel was 5'5" from the western edge of the bitumen. It was, therefore, well on the bitumen, There was on the western side of the bitumen a strip of macadamised road about 2'6" wide and beyond that grass, and, as a matter of physical possibility, the truck might have been moved to the grass and away altogether from the bitumen so.as not to create any obstruction. With the means at their disposal, however, Deacon and a passenger Weeks, who was travelling with him in the truck, were unable to move the truck and accordingly it was left there.
It is found as a fact, and there is evidence upon which the finding is justifiable, that there was a red light on the rear of the truck. It was situated 2*94" in from the offside edge of the lorry. That light, it is found, was alight at the time of the accident. A man named Payne was driving a truck in a southerly direction on the road with his lights on, driving on the bitumen. He pulled off the bitumen immediately before the moment of the accident. His evidence is that he was driving on the bitumen and he does not remember, apparently,
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