SUPREME COURT.—This Day.

Auckland Star, Volume VI, Issue 1684, 12 July 1875, Page 2

SUPREME COURT.—This Day.

CIVIL SITTINGS,

(Before His Honor Mr. Justice Gillies, and a Special Jury.) CHAS. CLARK AND WIFE V. J. CASEY.

Mr Whitaker, instructed by Messrs Jackson and Russell, for the plaintiff_; and Mr W. L Kees, instructed by Mr J. ±J. Russell, for the defendant. This was an action brought by Charles Clark, a settler at Hokianga, and Fanny, his wife, against Jeremiah Casey, the owner of the steamship ' Lily,' for injuries sustained by the said Fanny Clark on board the said steamer by scalding on the 27th January, 1875, while travelling between Otamatea and Helensville, such injuries being alleged to be the result of negligence of the defendant and his servants. The following special jury was enipannelled :—Edward Morrow, Jas. M. Harris, T. H. Hall, W. J. Cawkwell, Edward Isaacs, Ja3. Robinson, junr., R. Cecil Taylor, Fred. Green, Jno. Morris, Edward Bartley, M. M. Tayler, W. H. Cross. Mr \V. J. Cawkwell was chosen foreman. The plaintiff (Charles Clark) also sues defendant for loss of his wife's services during her "illness. The damages for the injuries are laid at £1500, and for the loss of services at £500. The following are the issues agreed upon to be decided by the jury : — Ist Did the plaintiff (Fanny Clarke) agree to and became a passenger by the Lily, from Otamatea to Helensville, on the 27th January 1 last, and did the defendant receive a reasonable award for conveying her securely and carefully ?—[This issue was admitted by the defendant's counsel in the affirmative, subject t© the points of law involved in the words 11 securely and safely."] 2nd Did the defendant use proper care and skill in conveying the plaintiff Fanny Clark? - ~., 3rd. Was the plaintiff while a passenger by the Lily, by reason of the negligence of defendant or his servants, severely scalded and suffer great pain ? 4bh. Was the plaintiff permanently scalded ? sth. What amount (if any) are the plain- . tiffs entitled to for the injuries so received ? 6th. Did the plaintiff (Charles Clark) lose the comfort and services of his wife by reason of such injuries for a long time ? 7th. Will he permanently be deprived ef the comfort and services of his wife for a long time ? Vfßth. Did the plaintiff, Chas. Clark, incur expenses in nursing and for medical attendance during his wife's illness. . 9th. What amount if any is the plaintiff, Chas. Clark, entitled to by reason of the loss of such services, and for the expenses incurred for medical attendance, nursing, &c. Mr Rees applied to have some of the issues amended, aa he contended they called for special damages. His Honor was surprised at the application, as it had been at the request of the defendant that th 9 issues had taken their present shape. His Honor saw no chance of any miscarriage of justice with the issues as they now were, and declined to allow them to be altered. Mr James Russell opened the case on behalf of the plaintiff. > Having set forth the circumstances giving rise to the action, he read the declaration of the plaintiff, to which the defendant pleaded a general denial of all material allegations. The learned counsel then recapitulated the issues. Mr Whitaker, addressing the jury, said he did not apprehend that the case would take them a very long time to dispose of. One question they had to settle was whether or no Capt. Casey was liable. On that question he thought he should have no difficulty in satisfying them. A more difficult question would be, What amount of damages should be awarded to the plaintiffs? There were two claims to be decided. Mrs. Clark .would be present to give her testimony. He wouidv now proceed to call evidence. , '<\ ■:. ■-:•■■ Charles Clarke deposed he was Jthe plaintiff in the action. He resided at Hokianga. Recollected the 27th of January last. He was at Otamatea, about to proceed to Auckland. He took, passage by the Lily to Helensville, accompanied by his wife and child. Paesages were taken for them. The steamer started about twelve o'clock. On the passage, about an hour and a-half after starting, ' some of the pipes in the engine burst. Witness's wife was lying; in the cabin, and the steam, coming through the bulkhead, severely scalded both her and the child. Witness was on deck at the time. He went aft and found his wife being taken out of the cabin. The captain of the boat was assisting her out. Went to her and got her into the forecabin. She was then suffering from severe scalds. They were recent scalds. The worst scalds were on the left arm and under the chin. There were

witness first saw the scalds the-sKn'iftjH^i broken in several places. The >rm Vu I scalded worst from the wrist to theelbo^; 1 In binding up the arm he did not think any of ■ the skin came off. The scald under the chi^ ■ was a very bad one. She was aj&p gcalded" ■ under the ear. The scald rxtenq *4% m fljg| 1 left ear under the chin to thalright ear f The blisters burst afterwards/ "When hi I wife was got into the cabin he/procured ra» I and oil and bound up the wounds as well •£ fi he was able. Mrs Clark had a child with I her at the time. The child was not weaned, f; It was only ten months old. They arrived | at Helensville shortly after dark. He then I took measures to ascertain the cause of the I accident He found that the bulkhead had I been taken down and put under the table. I The bulkhead was the division between ■ the engine room and the cabin. There I was a" hole about four feet square. 1 There was an old blanket or woollen cloth I tacked over it. If that blanket had been I taken away there would have been free com- fi municatioQ between the cabin and the engine. | The table was fast against the end of the I cabin. The hole was xraderneath the table, if so that it could not be seen without stooping I; down. He attributed the injuries to the |i escape of steam into the cabin through the i hole in the bulkhead. He knew that the i" escape of steam was caused by the breaking || of the steam pipes, because the engineer told If him so. [ Mr Rees objected to this. p On the witness stating that the engineer's i admission was made on board the steamer E shortly after the accident, Mr Rees withdrew i, his objection. .... , , -I Witness continued :As far as ne could re. | collect, the engineer said the tube or tubes 1 had burst. . ,§j Mr Russell: Did the engineer state any. fc thing about the pipes having burst before. ". Mr Rees objected. t % Uis Honor ruled that the question was in. I admissable. „ :-, . I" A further question as to the bulkhead waa |p objected to. . ', P, His Honor said he should certainly hold that the bulkhead not being there was | also evidence of negligence. ■ . Is Mr Russell asked again if the bulk-head , I had be^ri there could the steam have got into j1 the cabin ? ■ , | Mr Clark :No} it would faave been im- | possible. He thought the engine was about [ Bft. from the hole in the bulkhead. _ The . furnace doors were immediately opposite the | hole They arrived at Helens ville on the 1 evening of the 27th. They came on to Auck- \ land on the morning of the next day. Mrs Clark was placed in charge of Dr. Ellis at Claremont House. During the time she was being attended by Dr. Ellis she was suffering intense pain. Mrs Clark was confined to her bed about three weeks. After leaving Claremont House, she went to Mrs Seabrook's in the New North Road, where she stayed two months being under medical treatment all the time. He had incurred considerable expense during the time. He claimed £150 on this head. He had paid Doctors' nurses, chemists' bills as well aa board to this amount. Cross-examined by Mr Rees : The £150 was incurred as follows : Dr. Ellis £65 10s. Mr Rees said there should be some means of testing the reasonableness of a charge like that (to witness.) Have you paid this ? Witness : Yes. His Honor said there was no necessity for the bill to have been paid. Witness continued : The charges for board were about £55. He claimed the sums because he should have been able to have gone home had the accident not occurred. Mrs Clark did not carry the child up from the boat on arriving at Auckland. He carried it himself. He was quite certain of that. Fanny Clark was the next witness called. This witness, who is an attractive looking half-caste, exhibited on her face very palpable marks of the severe scalding she had sustained. Being sworn she deposed to the examination of Mr Whitaker. She was in ': cabin of the Lily lying in one of the bunks ■ when the accident occurred. The cabin was in the stern. The engines and machinery were next the cabin. The first thing witness saw was steam coming through the blanket. The steam filled the cabin in an instant. The blanket was facing her as she lay. She tried to get out. She jumped up and caught up her baby, but could not see for the steam. Some one took the baby, . but could not see for the steam. Some one took the baby from her. She could not say who it was. She was then on the steps. She tried again to get out, but could hot. Someone caught her by the right arm, and pulledherout (Thewitness here corroborated the evidence of her husband as to the position of the blanket.) When she got on deck she felt great pain-as if she was scalded all over. (The description of the injuries > witness received tallied with the evidence of:Mr Clark.) After arriving.at Claremont House she was in bed over a fortnight. Dr Ellis attended her^ Dr Kenderdine, Dr Dawson, and Dr Lee also visited her. She was not well when she went to the New' North Road. Her stay there lasted two months. When, , there Bhe was attended by medical men. At the end of that time she was sufficiently recovered to go home. She still had marks on her face and left arm. (Witness here bared her left arm and shewed several severe scars) There was a slight ' : discolouration on the right arm. All these scars had remained the same since the sth April, and shewed no signs of going away. ; She had suffered severely from the wounds. She was now very sensitive to neuralgia in ; i.l__ • i j i._ ■■■■<<■>■'-'.>■■■'■:&-—-' <

By Mr Rees : Dr. Ellis dressed niywou^S j every day. He used lint, ointment, and y\ other things. She remembered landing VP |" Auckland. She was able to walk. JSJ& ■] Clark carried the baby from/CiH^. : vessel up the wharf. .-"' '..£? . John Scarrot, deposed that Charles Clark ; and his wife were on. board ; h*iiiw'Mn ; Clark after she was scalded, and he assisted inputting oil on the injured > parts ); ;he believed that everything was done for the lady that could be done, • /• * Dr Edward Ellis, medical practitioner of Auckland, attended upon Mrs Clark for the injuries received j her face and . neck and nose were . much scalded ; the lips were swollen much, so much that she could, scarcely articulate, aad he had to get ■ feeding cup to, enable her to take refreshment for the first two days ; the right forearm was much scalded, and the left arm from • the wrist to the elbow, and some of the fingers, were sadly injured, also, other parts of the body; some of these were slight and soon ( restored. These injuries inflicted a great deal of pain on the patient; he thought the contractions, if not permanent would remain for many years, and were calculated to bring on neuralgia. On February 8, Mr. Clark went to the New North road,: where lie . attended her daily until the sth of April, his bill for attendance amounted to, £65 10a, including consultations fees, which was a fair and reasonable charge. He considered the case a: ver^genpus one, and was desirous or othte advice.^ was seen at different ' tinaes: by • Drs. " Goldsbro, : Dawson, Xeei Stockwell and Kennedy. The two latter "' gentlemen only saw Mrs. Clarke upon one , occasion. > Dr William Sfcockwell and Dr Dawson gave, evidence as to the nature of the wounds, ajl > agreeing that they were of a serious charac- i ter, and many of them likely to be per- ' manenti ■ Mr. Rees then addressed the Court for the defence, and submitted that defendant- wa« only • responsible for the carrying of goods, and offered no guarantee for the safety ot passengers. It was for plaintiff to anew that there had been negligence shewn in som<j way or other ; but in the present none tad been shewn. Mr Rees then cited a nuwe' of cases in support of his view;Jih*aiM*W|v wasjno no warranty to carry' p«p^ f^"inieafety. Vr