SIMMS V. HIGGINS

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'FL J, Crees, Gort, Print, Melb.

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IN THE HIGH COURT OF AUSTRALIA.

~ REASONS FOR JUDGMENT.

SIMMS ev. __ HIGGINS

ORDER

Appeal dismissed with costs.

JUDGMENT (ORAL)

DIXON Code

FULLAGAR J. KITTO Je

JUDGMENT (ORAL). DIKON C.J,

This is an appeal from a judgment of the Chief Justice of Queensland given in an action of negligence to wecover damages for personal injuries. The judgment was for the defendant.The action ws brought in very peculiar circumstances by @ man, whom I shall describe as a passenger in a car, against the defendant, who was the driver of the car. The learned Chief Justice considered that the defendant was not guilty of negligence and he was of opinion that the plaintiff was guilty of contributory negligence. Having regard to the fact that the accident occurred after the recent Act came into force, it is possible that his Honour did not mean to put contributory negligence as a defence but that in the circumstances thought a finding should be made.

The circumstances of the accident which have led to the action are, as I have said, peculiar. The plaintiff and the defendant were two young men who were proceeding to Taroom in a 1930 Chevrolet utility truck. They had come from Toowoomba. When they were a considerable distance from Taroom it was discovered that the radiator of the truck was leaking. The plaintiff, who was the passenger, volunteered to feed the radiator with water, They had with them a cream or milk can containing four gallons of water. The plaintiff was a small and apparently agile young man, He took up his position on the left- hand side of the radiator in front of a spare tyre, managed to put the four gallons of water in a secure position, armed himself with a quart pot and proceeded to pour water into the radiator so that the car might go forward. When this operation began they were some 30 miles from Taroom. They renewed the supply of water at two points and managed to proceed for probably about 20 miles in this manner. The plaintiff did not fall off and probably he Ind