clr/1983/1983_1_1007.pdf

(1983)and defendant 1 to be equally to blame for the accident and apportioned their liability at 50% for each one of them. By means of an appeal the appellant (defendant 3) alleged that he was wrongly found to be liable to the extent of 50% for the accident in question and that he should not have been 5 found liable at all; or, at least, that defendant 1ought to have been found to be liable up to an extent of 75%. Defendant 1 hasfiledacross-appeal contendingthat heshould not have been found at all liable for the accident and that the appeilant is wholly to blame for it. 10 Counsel for the appellant (defendant 3) mainly contended: (

1. a)That the trial Court wrongly excluded as evidence a plan to scalewhich was prepared by Soteris Yiallouros, an expert called by counsel for the appellant as a witness for the defence. (
2. b)That the trial Judges wrongly turned themselves into experts by drawiDg certain inferences and conclusions from the brakemarks left by the car of the appellant, the cubic capacity of the taxi driven by the respondent and the resultant position of the two vehicles. 20 (
3. c)That the trial Court erroneously found the appellant guilty of negligence on the basis only of evidence that he was driving at a high speed in excess of the speedlimit for the area in question. Regarding contention (
4. a)above the expert defence witness 25 did not visit at all the scene of the accident, but he prepared a plan to scale on the basis of measurements which were shown on two sketches which were not drawn up to scale and which had been prepared by a police constable who had investigated theaccidentandwhohadbeencalledasawitnessfortheplaintiff. 30 Regarding contention (
5. b)above the trial Court bearing in mind the brakemarks left by the motor car of defendant 3, coupled with the fact that the impact was very violent and the Mercedes car of 1988cubic capacity was pushed back sideways 1008 15 I C.L.R. 5 10 15 20 25 30 35 Shakolas *. Agathangelou and Another for approximately 12 ft., demolishing a brick wall, concluded that the car of defendant 3 was being driven at a considerable speedwell over40m.p.h. admitted byhim, "a speed which was unreasonable under the circumstances in view of the condition of the road and the fact that the car of defendant 3was about to enter a rather narrow bridge from which the Mercedes taxi wasjust coming out". Held,

(1)that a plan to scalewhichwasprepared byawitness who has not visited the scene of the accident, but has based himself on sketches prepared by the police constable who investigated into the circumstances of such accident does not amount to material evidence the exclusion of which could affect theoutcomeofthetrial,sothat asaresultofsuchexclusion a new trial would have to be ordered on appeal, because it is well-settled that a new trial will not be ordered on the ground of the wrongful, admission or rejection of evidence if it could have had no legitimate effect on the verdict (see, the Supreme Court Practice, 1979, vol. 1, p. 904) or if, at least, there does not exist considerable doubt whether, inthe absence of evidence which has been excluded, the trial Court would have arrived at the same conclusion (see, in this respect, inter alia, Ioannou v. Demetriou, 19C.L.R. 72, 79);that, therefore, this Court has reachedthe conclusion that, evenassuming—without sodeciding —that theplan to scalewhichwasprepared bythe expert called for the defence of the appellant, as aforesaid, was wrongly excluded as evidence by the trial Court, its exclusion has not materially affected the outcome of the action before the trial Court, nor is there any doubt at all that the trial Court would have reached the same conclusion had such plan to scale been produced before it; accordingly contention (a) should fail.

(2)That a trial Judge is not prevented from looking at the real and other relevant evidence establishing the totality of the circumstances in which an accident has happened, and from drawinginferences and reachingconclusionsasregardstheexistenceofliabilityfornegligence,notintheformofanexpertopinion but as a matter of sheer common sense; and this is what has happened in the present case in relation to the complained of passage in thejudgment of the trial Court; that, therefore, the trial Judges have notturned themselvesinto experts in a manner 1009 Shakolas v. Agathangelou and Another

(1983)inconsistent with their duty to determine whether the appellant was negligent on the basis of all the relevant evidence before them; accordingly contention (b) should fail.

(3)Thatthough high speed alone is not evidence of negligence in the present case the finding of negligence on the part of the 5 appellant was not based merely on the fact that he was driving at a considerable speed, well over 40 miles per hour, in an area where the speed-limit was only 30 miles per hour; that the finding regarding the appellant's negligence was clearly based on the conclusion that driving at the aforesaid speed in the 10 particular circumstances and at that locality was unreasonable. in view of the condition of the road at that time and because of the fact that the car of the appellant was about to enter a bridge from which the taxi of defendant 1was just coming out: thai, therefore, speed was only taken intoaccount,inestablishing 15 negligence, in conjunction with other relevant circumstances and this was a perfectly legitimate course for the trial Court lo adopt: accordingly contention (c) should, also, fail. Held,Η/i/1 regardto the apportionment of liability: That the apportionment of liability was primarily the task 20 of the trial Court and this Court should not interfere with it on appeal unless there exists an error in principle or such apportionment was clearly erroneous (see, in this respect, inter alia, Dietiv. Loizides

(1978)I C.L.R. 233,242); that there is no reason to disturb thefindingof thetrial Court that the appellant 25 was negligent; that, also, this Court agrees with the trial Court that defendant 1 was negligent, too, in that he ought to have seen from a great distance the oncoming car of the appellant and he must have realized that it was driven at a high speed almost in the middle of theroad; and as thecar of the appellant 30 had priority on the road., because it was proceeding straight along it, defendant 1 should have veered to his left on getting out of the bridge in order to allow room for the car of the appellant to pass and should not, instead, have merely slowed down with an inclination towards his right, in the course of 35 turning in a manner cutting across the path of the car of the appellant; that, furthermore, this Court has not been satisfied by either counsel for the appellant or counsel for defendant 1 1010 1 C.L.R. 5 Shakolas v. Agathsogelou and Another that thefindingof the trial Court that both drivers were equally to blame for the accident was either based on an erroneous principle or that it is otherwise so clearly wrong that it should interfere with it on appeal; accordingly the appeal and crossappeal should fail. Appealand cross-appeal dismissed. Cases referred to: Koumo v. Police

(1967)2 C.L.R. 230 at pp. 234-235; Haloumias v. Police

(1970)2 C.L.R. 154; 10 loannou v. Demetriou, 19C.L.R. 72 at p.79; HjiGeorghiou v. Police

(1972)2 C.L.R. 86at pp. 87-88; Constantinou v. Police

(1972)2 C.L.R. 89 at p.91; Eliasides v. Police

(1978)2 C.L.R. 114 at p. 116; Salih v. Sofocleous

(1979)I C.L.R. 248 at p. 253; 15 Siakos v. Nicolaou

(1980)I C.L.R. 333 at pp. 342-343; Alexandrou v. Gamble

(1974)I C.L.R. 5 at pp. 7-8; Demou v. Constantinou

(1979)1C.L.R. 21 at p. 24; Dietiv. Loizides

(1978)1C.L.R. 233 at p. 242; Antoniouv. Sergis

(1979)1C.L.R. 169 at p. 176; 20 Pupadopoullo? v. Pericleous

(1980)I C.L.R. 576 at p. 579-580; Covotsoi Textiles Ltd.v. Serghiou

(1981)1 C.L.R. 475at p.

1. Appeal. Appeal by defendant 3 and cross-appeal by defendant 1, against the judgment of the District Court of Limassol (Loris 25 and Hadjitsangaris, P.D.C.s.) dated the25th July, 1981 (Action No. 2447/76) whereby they were ordered to pay jointly and severally to the plaintiff the amount of £3,600.- as special and general damages which he suffered in a traffic collision. 30 A. Dikigoropoulos, for the appellant-defendant
2. A. Myrianthis, for the respondent-defendant
3. M. Cleopas with G. Triantafyllides, for the respondentplaintiff. Cur. adv.vulf. 1011 Sbakolas v. Agathangeloo and Another

(1983)TRIANTAFYLLIDESP.readthefollowingjudgment oftheCourt. The appellant, who was defendant 3 in action No. 2447/76 in the District Court of Limassol, appeals against a judgment by means of which he was ordered to pay to the respondent, the plaintiff in that action (heieinafter to be referred as the 5 "plaintiff"),jointly and severally withdefendart 1 in suchaction (hereinafter to be refetred to as "defendant 1"), the amount of C£3,600, as special and general damages which the plairtiff suffered in a traffic collision. The above amount of damages had been agreed between the 10 parties and, thus, at the hearing of the action before the trial Court there was contested only the issue of liability. The trial Court found both the appellant and defendant I tobeequallytoblameandapportioned theirliabilityaccordingly at 50% for each one of them. 15 The action against another defendant—defendant 2—had, earlier on. beendismifsed asthe writ of summons had not been served on him for a period of overtwelvemonthsfrom thedate of its issue and no application for its renewal had been made. By this appeal the appellant alleges that he was wrognry 20 found tobeliabletotheextentof 50%for theaccident inquestion and that he should not havebeen fourd liable at all; or, at least, that defendaut 1ought to have been found to be liable up to an extent of 75%. On the other hand, defendant 1 has filed a cross-appeal 25 contending that he should not have beenfound at all liable for the accident and that the appellant is wholly to blame foi it. Theaccidentconcernedoccurredon 1stJuly 1976,inLimassol, while a motor car, No. GX773, which was driven by the appellant, came into ccllision with a taxi, No. TFW805, 30 whichwasdrivenbydefendant 1. Theplaintiff wasapassenger in car GX773 and sustained petsonal injuries. Counsel for the appellant has, first, contendtd that the trial Court wrongfully excluded as evidence a plan to scale which was prepared by SolerisYiallouros, an expert called by counsel 35 1012 1 C.L.R. Shakolas \. Agathangelou and Another TriantafjHides P- for the appellant as a witness for the defence. The s,aid witness did not visit at all the scene of the accident, but he prepared a plan to scale on the basis of measurements which were shown on two sketches which were not drawn up to scale and which 5 had been prepared by a police corstable who had investigated the accident, P.C. 1834 Andreas Zenonos, and who haa been called as a wilness f or the plaiitiff. The first of the said sketches wasa rough one (and wai exhibit 2 at the trial) and from that rough sketch another one was 10 prepared (which was produced as exhibit 1 at the trial). It seems that the purpose for which the plan to scale was prepared by the aforementioned expert witnets fcr ths defers, was in older to enable ihe trial judgei to appreciate bettei the circumstances of the occurrence of the accident, a thing 15 which, according to counsel for the appellant, could not be' adequately achieved on the basis only of the two sketches (exhibits 1and 2), which were not to scale; and counsel for the appellant has argued that as the said plan to scale was very material evidence the decision of the trial Court to treat it as 20 inadmissible affected the outcome of the trial. We have been referred by coumel for the appellant, as regards the desirability of producing at trials plans to scale, to the cases of Kouma v. The Police,

(1967)2 C.L.R. 230, and of Haloumias v. The Police,

(1970)2 C.L.R. 154. 25 30 35 In the Kouma case, supra, Vassiliades P. stated the following (at pp. 234-235): "The second ground, that the plan produced, was not to scale^, counsel for the appellant invited the Court to consider the difficulties which may arise in such important cases, from plans which are not to scale. Such difficulties depend, of course, in every case on the particular plan produced. There are plans to scale which may not be very helpful. And there are plans not to scale which are more helpful than no plan at all. Generally speaking one can say that a plan to scale, all other matters being equal, 1013 Triantafyllides P. Shakolas v. Agathangelou and Another

(1983)is preferable to a plan which is not to scale, because it presents a more correct picture. We have no doubt that where the officer responsible for the prosecution is able to appreciate this difference, will do all he can to put before the Court the best available evidence and the best possible 5 plan. This, of course, it isfar from saying that plans which are not to scale are, generally speaking, useless. We have no doubt that the observations of defending counsel in this case, will be brought to the notice of the authorities concerned, by learned counsel for the prosecution". 10 In the Hahumias case, supra, Vassiliades P. said the following (at p. 158): "This is why it if highly desirable that plans, prepared by the police with all due care, should be drawn tc scale wherever possible, as suggested time and again by Judges dealing with traffic cases". 15 The above dicta, which are to be found in judgmenls given in relation to criminal cases, do not establish, ir our opinion, that a plan to scale which was prepared, as in the present instance, by a witness who has not visited the scene of the 20 accident, but has based himself on sketches prepared by the police constable who investigated into the circumstances of such accident, amounts to material evidence the exclusion of which could affect the outcome of the trial, so that ae a result of such exclusion a new trial would have to be ordered on appeal. It 25 is well-settled that a new trial will not be ordered on the ground of the wrongful admission or rejection of evidence if it could have had no legitimate effect on the verdict (see, the Supreme Court Practice, 1979, vol. 1, p. 904) or if, at least, there does not exist considerable doubt whether, in the absence of 30 evidence which has been excluded, the trial Court would have arrived at the same conclusion (see, in this respect, inter alia, Ioannou v. Demetriou, 19 C.L.R. 72, 79). We have, therefore, reached the conclusion that, even assuming—without so deciding—that ihe plan to scale which 35 was prepared by the expert called for the defence of the 1014 I C.L.R. Shakolas v. Agathangelou and Another TrianlafyHides 1>. appellant, as aforesaid, was wrongly excluded as evidence bv the trial Court, its exclusion has not materially affected the outcome of the action before the trial Court, nor is there any doubt at all in our minds that the trial Court would have 5 reached the same conclusion had such plan to scale been produced before it. Another point raised by counsel for the appellant is that the trial Court was wrong in finding that there was no substantial difference between the two sketches, exhibits 1 and 2. The JO trial Court made this statement in the course of giving its reasons for accepting as reliable the evidence of the police constable who had prepared the said sketches. We have carcfulh examined the two sketches in the light of the evidence as a whole of the said police constable, as well in the light of the 15 arguments advanced by counsel before us. and all that wc need to say. in this connection, is that we. also, share the \iew that there was no substantial difference between the two sketches in question which could have led the trial Court to reach eironeous conclusions as regards how the accident occurred 20 or to misinterpret the real evidence in relation to its occurrence. The next complaint of counsel for the appellant is that the trial Judges in the present case turned themselves into expert·» by drawing certain inferences and conclusions from the brakemarks left by the car of the appellant, the cubic capacity of the 25 taxi driven by the respondent and the resultant position of the two vehicles. In this respect our attention has been drawn to the following passage from the judgment of the trial Court: 30 35 "We aie also satisfied that the car of Defendant 3 was being driven at the material time at a high speed. The scene of this accident is, according to the evidence of P.W.I, within the speed limit area of 30 m.p.h. Defendarl 3 admitted that he was driving at a speed of 35-40 m.p.h. at the most. Bearing in mind the brakemarks left by the motor car of Defendant 3, coupled with the fact that the impact was very violent and the Mercedes car of 1988 cubic capacity was pushed back sideways for approximately 12 ft., 1015 frinntafyltides P. Shakolas \. Agalhangelou and Another .

(1983)demolishing a brick wall, we can conclude that the car of Defendant 3 was being driven at a considerable speed well ovei 40m.p.h. admitted by Deferdant 3, a speed which was unreasonable under the circumstances in view of the condition of the road and the fact that the car of Defendant 5 3 was. about to enter a rather narrow bridge from which the Mercedes taxi was just coming out. Therefore, we hold that Defendant 3 was negligent". In HjiGeorghiouv. ThePolice,

(1972)2 C.L.R. 86,the following were stated by this Court (at pp. 87-88): 10 "This conclusion of the trial Court was based primarily on the fact that as a result of the application of the brakes by the Appellant there were left braktmarks 43 feet long befoie the point of impact and 13 feet and 6 inches long after such point; according to the evidence of the police 15 constable who investigated the case the brakemarks were at the beginning 'light' and at the end 'more distinct*, indicating that the Appellant applied at first the brakes 'lightly' and later with 'mors strength'. The trial Judge says in his judgment that these brakemarks 'speak so 20 fluently for themselves'. We are unable to agree with the above view of the trial Judge: As no expert evidence has been adduced in order to explain the correct and full significance of the said brakemarks in the light of the particular circumstance, of this 25 case, we are of the view that it was not safe for the trial Judge to form any distinct opinion on the basis thereof regarding the speed at which the Appellant was driving at the material time; and since the Appellant's conviction was, as stated, based on the finding that he was.driving at 30 an excessive speed we have to set aside the conviction and the sentence imposed as a result thereof". In Constantinouv. The Police,

(1972)2 C.L.R. 89, the following were Laid (at p. 91): "It is true, bearirg in mind the length of the brakemarks, 35 1016 1 C.L.R. 5 Shakolas v. Agathangelou and Another Trianlaf>llide*. P. that the Appellant must have seen the boy from a distance longer than 34 feet; but it cannot, in the absence of any expert evidence regarding the 'thinking distance' that must have preceded the application of the brakes, be found exactly how far away was the Appellant when he first saw the bey". In Eliasides v. The-Police,

(1978)2 C.L.R. 114, this Coun stated (at p. 116): ' . 10 15 20 25 "The trial Judge did not decide how the accident did occur by accepting evidence which, in view of the demeanour of the witnesses concerned, appeared to be ctedible. but hechose to accept the version of the other driver, and reject that of the appellant, because of certain inferences which he drew from the nature of the damage suffered by the front bumper of the other car. There has not. however. been adduced at the trial any expert evidence in order to explain the significance of that damage and, as it has very fairly been submitted by counsel for the respondents. such damage could be treated as being equally consistent with both the versions of the other driver and of the appel- · lant. In the circumstances we cannot find that the conviction of theappellant can beupheld asa decision that was" reached with the certainty required in a criminal case, and we have. therefore, to set it aside and allow the appfal". In Salih v. Sofocleous,

(1979)1 C.L.R. 248, L. Loi/.ouM. observed the following (at p. 253): 30 "In the present case we do not feel that we could from the mere fact that there was only one line of brake marks and in the absence of any evidence, act as experts and come to ary conclusion as to the state of the taxi's brake*". In Siakos v. Nicotaou,

(1980)1C.L.R. 333, Hadjianastassiou J. said the following (at pp. 342-343): "Before concluding our judgment, we think it is necessary 1017 rriantafyllides P. Shakolas \. Agnthangelou and Another

(1983)to poirt out in the present case, that trial Judges when dealing with the real eviderct and particularly with a sketch should bear in mind not to turn themselves irto experts merely on the result of their comparisons, without hearing evidence coming from an expert. This is what has 5 happened in this case when the learned trial Judge turned himself into an expert in trying to explain how the accident occurred and whether it was due to speeding on the part of the appellant by looking to the brakemarks left by the car of the appellant, without first 10 hearing expert tvidence". All the above dicta related to paiticular instances in which the trial Judges had turned themselves into expei*i in a manner unwarranted by the situation before them and, therefor», do not lead to the conclusion that a trial judge is pre\ented from 15 looking at the real and other relevant evidence establishing the totality of the circumstances in which an accident has happened, and from drawinginferences and reaching conclusions as regards the existence of liability for negligence, not in the foim of an expert opinion but as a matter of sheer common sense; 20 and this is what has happened in the present case in relation to the complained of passage in thejudgment of the trial Court which has been quoted above. We, therefore, do not think that, in the present instance, the trial judges have turned themselves into experts in a manner 25 inconsistent with their duty to determint whether the appellant was negligent on the basis of all the lelevant evidence before them. Counsel for the appellant has argued, also, that the trialCourt erroneously found the appellant guilty of negligence on the basis 30 only of evidence that he was driving at a high speed in excess of the speed-limit for the area in question. In Alexandrou v. Gamble,

(1974)1C.L.R. 5,this Court seated the following (at pp. 7-8): "The main contention of counsel for the appellant has 35 1018 C.L.R. Shakolas *. Agalhangelou and Another Triarttaf>Hides I*. been that the respondent was driving, at the time, at an excessive speed and that, because of this, he should have been held liable in negligence for the collision to an extent even greater than the appellant. Even ifwe weie to proceed on the basis of the assumption that the respondent was, just before the collision, drving at a high speed, or exceeding the prescribed speed-limit in a built-up area, wc cannot, in any case, accept the proposition, put forward by counsel for the appellant, that doing so was, inevitably, sufficient per se, and irrespective of the circumstances of the present case, to establish negligence. That such a proposition is not conect i: to be derived from, inter alia, Quinnv. Scott [1965] 1VV.L.R. 1004, and Barmt v. Hudes Merchandising Corporation (the full report of which is not available, but which is sufficiently reported in Bingham's Motor Claims. Cases. 7th ed.. p. 104). In relation to the above matter we have been referred. by counsel for the appellant, to Radif v. Paphitis, 1964 C.L.R. 392, and reliance was placed on passages in the judgment therein as establishing that excessive speed was per se sufficient to establish negligence, or at least contributory negligence, in the case of a traffic collision. We have perused the full record of the Radif case and we have PO difficulty in saying that such case was decided ic the light of its own special circumslances, all of which are not set out in the judgment on appeal; one of them was that the driver who wasfound to be negligent, because of driving at an excessive speed, had been travelling at such a high speed that, as a result, he was not able to pull up in time or to bring his car under control and he went over to the wiong side of the road and then into an adjoining field wheie he struck the other party to those proceedings. It is, thus, clear that the Radif case is distinguishable from the present case. That speed, in itself, is not sufficient to support 1019 Triantafyllides P. Sbskoh» v. Agathangekm and Another

(1983)a finding of negligence, or of contributory negligence, is to be derived, too, from Ioannouv. Michaelides

(1966)I C.L.R. 235, which was decided by the Supreme Court subsequently to the Radifcase and, actually, by the same bench which decided that case (see, in particular, the 5 judgment of Josephides, J. in the Ioannoucase)". In Demon v. Constantinou,

(1979)1C.L.R. 21,A. Loizou J. said (at p. 24): "Regarding the plea that the respondent contributed to the accident because of the speed at which he was driving, 10 we again find no reason to interfere with thefindingsand inferences of the trial Court. There was no speed limit in the area and the mere presence of a military camp at that part of the road did not by itself impose any duty on the respondent to drive at a lesser speed in the circum- 15 stances. High speed alone—if a speed of 45-50 m.p.h. in a non-built up area could be said to be high speed— isnotevidenceofnegligenceunlesstheparticular conditions atthetimeandplaceprecludeit. Theprinciplethatdriving atahighspeedisnot sufficient persetoestablishnegligence, 20 was stated, inter alia, in the caseof Alexandrouv. Gamble

(1974)1 C.L.R., atp.8,whereitwassaidthat ithad further tobeshown that such speed wascausative of the accident". It is not, however, correct that in the present casethe finding of negligence on the part of the appellant was based merely 25 on the fact that he was driving at a considerable speed, well over 40 miles per hour, in an area where the speed-limit was only 30 miles per hour; the finding regarding the appellant's negligence was clearly based on the conclusion that driving at the aforesaid speed in the particular circumstances and at that 30 locality was unreasonable, in view of the condition of the road at that timeand becauseofthefact that the car ofthe appellant was about to enter a bridge from which the taxi of defendant 1 was just coming out. Thus, speed was only taken into account, in establishing 35 negligence, in conjunction with other relevant circumstances 1020 1 C.L.R. Shakolas >. Agathangelou and Another TriantafyHides P. and this was a perfectly legitimate course for the trial Court to adopt. Wehave been invited by counsel for the appellant, in arguing the appeal,and by counsel for defendant 1,in arguing the cross5 appeal, to interfere with the judgment of the trial Court as regards the apportionment of.liability between the appellant and defendant 1, respectively. The apportionment of liability in a case such as the present case was primarily the task of the trial Court and this Court 10 should not interfere with it on appeal unless there exists an error in principle or such apportionment is clearly erroneous (see, in this respect, inter alia, Dieti v. Loizides,

(1978)1 C.L.R. 233, 242, Antoniou v. Sergis,

(1979)1 C.L.R. 169, 176, Papadopoullos v. Pericleous,

(1980)1 C.L.R. 576, 579, 580 and 15 Covotsos Textiles Ltd. v. Serghiou,

(1981)I C.L.R. 475, 511). In the present instance we see no reason to disturb the finding of the trial Court that the appellant was negligent. We, also, agree with the trial Court that defendant 1 was negligent, too; inthat he ought to have seenfrom a great distance the oncoming 20 car of the appellant and he must have realized that it was driven at a high speed almost in the middle of the road; and as the car of the appellant had priority on the road, because it was proceeding straight along it, defendant 1 should have veered to his ' left on getting out of the bridge in order to allow room for the 25 car of the appellant to pass and should not, instead, have merely slowed down with an inclination towards his right, in the course of turning in a manner cutting across the path of the car of the appellant. Furthermore, we have not been satisfied by either counsel 30 for the appellant or counsel for defendant 1 that the finding of the trial Court that both drivers were equally to blame for the accident was either based on an erroneous principle or that it is otherwise so clearly wrong that we should interfere with it on appeal. 35 As a result both this appeal and the cross-appeal have to be dismissed. 1021 TriantafylNdes P. Shakolas *. Agathangelou and Another

(1983)The costs of the plaintifi' in this appeal to be paid by the appellant; and we make no order as to the costs of defendant I in this appeal. Appeal and cross-appealdismissed. Orderfor costs as above. 1022 5