Joseph v Swallow and Ariell Pty Ltd [1933] HCA 47

'H.C. or A.

1933. Ww

Backnovse v Luoyp,

MeTiernan J.

H. C. or A.

1933. Ww

MELBOURNE, Oct. 11,

Gavan Duffy C.5., Rich, Starke, Dixon, Evatt and McTiernan JJ.

HIGH COURT 1933.

nephew's £10,000 is not the same fund as the husband's £10,000, and I think that the fair inference is that the husband's £10,000 sinks into and passes as an item of the residue." That statement, in my opinion, correctly interprets the intention of the testatrix.

The judgment appealed from was, in my opinion, right, and the appeal should be dismissed.

Appeal dismissed with costs.

Solicitor for the appellants, Gordon Cathcart Campbell. Solicitors for the respondents, Baker, McKwin, Ligertwood & Millhouse.

H.D. W. [HIGH COURT OF AUSTRALIA.] : JOSEPH Goh poe Land edie Sa) 2evig 2, Cer PLarIntiFr, AND SWALLOW AND ARIELL PROPRIETARY \ Ri Timrrep | 8) e DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Negligence—Contributory negligence—Last opportunity—Young child running across road unattended—T'o what extent young child capable of negligence.

The plaintiff, a child five years and nine months old, was running across a street unattended when he was knocked down by a motor truck and injured. In an action against the owner of the truck for the negligence of his servant, — the driver, the defendant pleaded contributory negligence on the part of the plaintiff, and the driver gave evidence that he first saw the plaintiff when the latter was about four yards away from the truck and it was too late to avoid

9 C.L.R.] OF AUSTRALIA.

__ whether the defendant had the last opportunity of avoiding the accident. The jury returned a verdict for the defendant.

Held, by Rich, Dixon, Evatt and McTiernan JJ. (Gavan Duffy C.J. and _ Starke J. dissenting), that the question whether the defendant had the last

new trial should therefore be ordered.