DISTRICT COURT.

Ashburton Guardian, Volume V, Issue 1046, 10 January 1884, Page 2

DISTRICT COURT.

ASHBURTON. -To-day,

(Before His Honor Judge Hardcastle.)

Martin v. Brown, claim of LIOO for damages sustained through the negligence of plaintiff.—Mr Wilding appeared for plaintiff, and Mr Purnell for defendant. The following evidence was taken :—Walter Martin, Clerk of ths Court, deposed that on Nov 21st he was walking in East street between one and two o’clock, and saw a verandah being added to Mr Orr’s new building. Saw a man hammering a chisel at the junction of the verandah and the main building. There was neither scaffolding not hoarding round the b ilding. Witness was previously walking in the middle of the footpath, but on seeing the workman he went to the edge. On reaching a distance of two or three paces past where the man was working witness felt something strike him in the knee. Was walking alone, but Dr Rosa was close by, and called witness’s attention to the cut received from a chisel. Then examined his knee and found a cut about an inch and a quaiter long. Dr Ross took witness into the chemist’s shop, and the man who used the chisel followed. [Mr Wilding asked a question relative to a statement made by the man, but Mr Purnell objected, and the question was not pressed.] Thecaisol came from behind, and some force must have been used in projecting it. Witness could not sleep that night on account of the pain he suffered, and was only able to get about v. ith the aid of two sticks. Witness walked from his house to the office on the following day, and it look him an hour to go a distance of a third of a mile. Was seriously inconvenienced for ton days and at present could not walk or ridi any distance without feeiing pain. Had spent 15s on cabs, and Dr Ross’s account was LI 12s 6d.—Oross-exam’ned by Mr Pur nell: The actual money loss was L2 7a 6d, but he claimed more on account of inconvenience. The chisel did not fall straight and mast have been projected with some force, as in coming it formed a half circle. Had no reason to think that the act was done wilfully. As a matter of fact did attend to his official duties, although it was against the doctor’s orders Had not lost any time in his usual avocations since the injury was done. Will.am Graham Ross, medical practitioner, remembered seeing plaintiff pass Mr Neate’s shop on November 21at. Witness saw something fly through the air from behind plaintiff and fall in front of him. The missile was a chisel. Could not see the chisel actually strike Mr Martin, on account of the latter having passed witness. Plaintiff turned and showed a rent in his trousers, through which witness saw the wound, which was afterwards stitched up. There was a good flow of blood from the wound, which was clean cut, l|in in width and sth of an inch in depth, going through the Ijesh and the fascia down to the sheath of the muscle. It was about inches above the knee cap. Attended plaintiff for about ten days, and witness would not be able to walk with ease for some time on account of the wound. The cut was quite healed when witness last saw it, and he ccpsidered that free locomotion was not interfered with, although some slight inconvenience might be fait for soma time but not actual pain. Cross-examined ; Where the wound was the fat was tolar- ! ably thick, but the flesh proper was not cut. The injury was what is known as a superficial wound. The cut was not healed entirely ten days afterwards, but witne-s thought that it would have been all right had plaintiff not moved about. Would not himself have expected the pain described by Mr Martin.—J Im Orr, merchant, gave evidence as to the defend ant being the contractor for buildings erected for witness. Defendant had a brother engaged on the work.— Crossexamined : Had known defendant for a long time, and considered him a careful workman. In regard to this contract witness thought him careful. Saw William Brown working on the -building during the whole time, and remembered seeing him on the day of the accident. The shops were opened, but the verandah,

which was i the original contract, was not finished. Had the shops been boarded in they could not have been used. Was a member of the Borough Council, but was not on the Works Committee Re-eiamined: Could not say if a scaffolding could have been erected immediately under the verandah—The plaintiff was re-called and identified the man working on the verandah, and defendant’s counsel admitted that Wm. Brown was working for defendant.—Mr Wilding then put in a copy of the Borough By-laws. This closed the plaintiff’s case, and Mr Purnell submitted th it tho defendant was entitled to a nonsuit, on the ground that the burden of proof lay with the plaintiff to show th)t a servant was blamerblo. He also argued thit there was no proof o f negligence.—Uis Honor overruled the poin f , and refused the nonsuit.—Mr Purnell then submitted the Borough By-laws were not binding, inasmuch as no penalty was attached to an infringment of them. —His Honor also disallowed this, and after opening his case counsel called the following evidence : —J. L. Brown, the defendant, deposed that he did not think the Borough Council would have allowed him to erect a hoarding or scaffold when putting up the verandah. Witness was present when the accident took place, but knew nothing of it till he saw it in the paper. The plau produced showed the verandah, and when the accident happened the iron work was completed. Two of witness’s workmen, his brother (William), and another were at work on the verandah when he passed. They were fixing a board and the tool used was a chisel, which was the right tool for the purpose. Witness’s brother was an experienced and careful workman. Had warned the men not to have any tools lying about the verandah.— Cross-examined by Mr Wilding : Knew nothing of how the accident happened, as he did not see it. A boarding was simply a high fence, but witness had never seen a rail erected outside a hoarding. William Brown, carpenter, said he was employed by defendant at Orr’s building. Was working on the verandah on Nov 21, fixing in a board at the top. The plan produced of the verandah was a correct one. Witness proceeded to describe his position on the verandah according to the plan. Nobody else was on the scaffold, but George Miller had been on a few minutes before the accident. When the accident happened the body of the board was fixed, but there was a slight twist in it, and witness took his chisel and tried to press the board down. The chisel, however, slipped off the shed and witness lost his balance, the tool flying out of his hand. The dropping of the chisel was an accident, and witness would have had control of it if ic had not' slipped off. Could not have used any other tool but a chisel on account of want of room. Had been a carpenter for 14. years, having been brought up to the trade, but could not say whether it was usual to put a noardihg round a‘building. As far as Ashburton was concerned had never known a hoarding to erected in such a c so. Cross examined by Mr Wilding; The board being fixed by witness did not fit on account of its being warped. The board went underneath a cornice, and it could not have been made to fit by sawing. By steam and pressure a warped board could be made quite straight. The cause of the chisel flying out might have been from witness pressing it too hard, considerable force being used. Saw Mr Martin after the accident. —To his Honor: One end of the board was fixed, and witness was towards the other end, in the middle of the verandah. The cornice and moulding had not been put on at that time. The board rested on the ironwork below it, but it warped upwards. —Re - examined by Mr Pur nell : It was not unusual for boards to get warped, and witness never saw this remedied by steaming. —George Miller, a carpenter of twenty years’ experience, corroborated the evidence of the previous witness as to the care used in fixing the board in the verandah. Had never known a hoarding put up in such a case.—Richard Bird > contractor said that a chisel was the proper tool to use in fitting in the board. It was not usual to board a verandah, nor hai he ever known the Council to require such a thing to be done.—G. St. Hill gave evidence as to custom in doing such work as the building of a verandah. As chairman of the Works Committee of the Borough Council, had never kmwn an application granted to board in a verandah, although he remembered two such appl cations being made, but they were refused. Did not consider a hoarding advisable. —This closed the case for the defendant, and counsel having addressed the Bench, bis Honor said that he wag disposed tq think the action was upheld on both grounds, na ely, as against the by-laws and on account of the negligence of the defendant’s servant. He did not, however, think that excessive damages should be given, bqt at the same time a merely nominal penalty should not be imp sed. He would give special damages of L 5, and tho medical expenses were L2 fis fid, and he would give judgment for h 7 fis fid. —Mr Wilding asked his Honor to certify for costs, on the grounds that the action was taken in the public interest.— Mr Purnell opposed this, because the action might have been brought before the Resident Magistrate —The Bench upheld the opposition and refused to certify for coats.