Lord Roche:-

This is an appeal in forma pauperis by the appellant, the plaintiff in the action, from a judgment of the Court of Appeal of New Zealand whereby it was ordered that the action be remitted to the Supreme Court at Auckland for judgment to be entered for the respondent, the defendant in the action, with costs. The circumstances giving rise to this appeal were as follows: The appellant, just after midnight on 8th December 1935, was proceeding on his motor-cycle along a main road leading from Hamilton to Auckland and was riding on his proper side in the direction of Auckland. At this time the defendant's motor car had come to a standstill on the same side of the road facing in the same direction, that is to say, towards Auckland, showing no rear or other light. His lights had been switched off by the respondent whilst he was stopped. At the same time there was another motor car stationary in the roadway and showing lights. This car, whilst proceeding from Auckland towards Hamilton, had been hailed to stop by the defendant when his own car was stopped and the driver of this other car, a Mr. Singer, complied with the request so made and brought his car to rest on his side of the road some 30 yards or thereabouts past the defendant's car and on the opposite side of the road. In this situation the appellant on his motor-cycle approached and passed by Mr. Singer's car reducing his speed from about 35 miles per hour to about 25 miles per hour and when he had passed out of the beams of its lights, saw the loom of the respondent's car, braked and swerved but came into collision with the near side rear mudguard of the car and sustained injuries.

The action was brought to recover damages for such injuries and was tried before Fair J., and a jury on 30th and 31st July 1936. Evidence was called on the part of the appellant, the plaintiff in the action, and when his case was closed, counsel for the respondent asked for a nonsuit on the ground that upon the evidence thus called and the undisputed facts of the case the appellant was guilty of contributory negligence in (i) failing to keep a proper lookout, (ii) proceeding as he did when dazzled by the lights of another (Mr. Singer's) car, and (iii) proceeding at such a pace as would not enable him to stop in time to avoid anything which might have been on the road. There was no argument upon this submission at the trial but the point was reserved until after verdict for further consideration and argument.

The respondent's counsel then addressed the jury and called evidence. The defendant's explanation of his lights being off was that he switched them off in order to spare his battery whilst he was trying to re-start his car by means of the starting handle and that he forgot to switch them on again. The negligence of the defendant was not admitted on the pleadings and was in issue at the trial. The learned Judge directed the jury that if it found that the plaintiff had the last opportunity of avoiding the accident and negligently failed to avail himself of it or if he was negligent in any of the respects allege and such negligence was a proximate cause of the accident, there should be a verdict for the defendant. He also told the jury that if it found that negligence of the defendant was the sole proximate cause of the accident there should be a verdict for the plaintiff. It was not suggested that these directions were not correct in law or were open to any objection on the part of the respondent. The jury returned a verdict for the appellant for damages amounting to £1259 Ss. 2d. Judgment was entered in accordance with the verdict, leave being reserved to move to set aside the judgment.

Pursuant to such leave the Court was moved to set aside the judgment and asked either to enter judgment for the defendant or for a nonsuit on the grounds submitted at the close of the plaintiff's case at the trial or to order a new trial on the ground that the damages were excessive and on the ground that