MOSES V. THE COMMONWEALTH

IN THE HIGH COURT OF AUSTRALIA.

REASONS FOR JUDGMENT.

Ta. BIG

In an action for negligence the jury returned « verdict for the respondent, The accident which caused the injury took place at a very dangerous intersection and the question before the Supreme Court and before us is whether it was proper for the learned trial Judge to leave the issue of contributory negligence to the jury.

I lay out of aonsideration the regulations and also the "last chance" doctrine. The facets were before the jury and it was open to them to find that the plaintiff (conductor) should not have given a signal to the tram driver to move off as he knew that this particular intersection was a dangerous spot and also knew that the lerry was approaching close to the tran. It was competent for the jury to find it was his duty, either not to start the tram or to give some warning,as he knew the lerry driver was approaching a dangerous spot,and might not realise how or where the tram would proceed.

The facts in the case amount to aontributory negligence and the jury were entitled » to find.

I think for these reasons the Full Court was fully Justified in refusing to discharge the verdict and the appeal should be dismissed with costs. ,

STARKE J.: In my opinion there was ample evidence of want of care on the part of the plaintiff contributory to the

accident.

MOSES xv THE COMMONWEALTH OF _ AUSTRALIA

ORAL JUDGMENT. DIXON J.

I agrees

The circumstances of the case cannot be regarded as either usual or typical. The place where the accident happened seems to be xEgardet particularly dangerous. Perhaps it is another peculiarity in the case/the jury found in favour of the Commonwealth in an action for personal injuries in a street accident.

The appeal is wnfined to the question whether there is evidence of mntributory negligence. The learned Judge left contributory negligence to the jury upon a view of the facts which I think is sufficient to support a finding of contributory negligence,if the jury made onee The facts His Honour particularly mentioned include the knowledge of the conductor of the tram of the dangerous nature of the place and the proximity of the motor truck. The evidence of the proximity of the motor truck,which the jury were entitled to believe if they so chose,hrought it very close to the tram indeed. In fact,it placed it alongside. If that was its position,it was open to the jury to find that the conductor was in a position when he should,as a reasonable man,have been aware that