THE GOLF CASE ENDED

Dominion, Volume 3, Issue 767, 16 March 1910, Page 8

THE GOLF CASE ENDED

NO DAMAGES.

JURY EXONERATE DR. DAWSON.

MR. HERDMAN'S: DEFENCE

THE COURT GACLERIES PACKED.

The public galleries of the Supreme Court wero crowded yesterday during the iearing- of the case in which .£750 damages were claimed from Dr. Ernest Raw--con in --connection with a blow by a golf club inflicted on Mrs. Leckie at the Her®, jaunga links .'on November" 9 last. "The caso . was heard by the Chief Justice, Sir Bobert Stout, and the following were the special- Herbert.. Scales, (foreman), Ernest WiUiajn- (febrge Coleridge, Ernest Anderson; Hugh Hamilton! ■ William Alexander Allen, Montifiore A. Phillips, Frederick James Dorset, Albert Hurst -Hurstwick, Frederick William Rowe, Frank Mcadowcroft, William Henry Fulton, and Ulton M'Cabe. appeared for plaintiffs, and ; Hordman for defendant. i ■ Case For, and Case Against.

The . outline of the . case .was as fol- , lowsr-R-ank se'r; vant, employed in the Old Age Pension .Department of the Post "Office, and his Irene Myra L'Estelle Leckie, were plaintiffs. llrs. Leckie claimed from Dr. . Rawson sum of damages for injuries/received, and. Mr.. Leckie claimed; ,■£3o-10s. 9d., alleging that he had incurred that sum. in medical attendance and wrgical treatment, etc.,. for, his. wife. The case for plaintiffs (for wh'otn Mr. E F Hadfield appeared) was that.on November 9 . last,, while Mrs. Leckie was • walk- ■ wg.along a track orpathway 'towards the Heretaunga golf house, after having fin-' wished a game on : the links with Mrs. Young, Dr. Rawson negligently, swung a golf club -and struck her 011 the face seriously injuring her. 'Mrs: alleged that the blow broke the bone of ; her- nose, fractured the. frontal base of iher skull; and severed tjie olfactory a resnlt ' she had completely lost the sense of smell/ her sense of taste was almost wholly destroyed,' and part -.ei-her*scalp had lost the power of 6en■Bation,. this .being due to . injury to the super-orbital nerve. -.In; addition, she >as partially disfigured in appearance, and had sustained , severe nervous . shock. ' Her. nervous', condition was still such 'that she -could; -scarcely write, and could' do 'no etwmg at_ all. Inasmuch as she was: the mother of a young family, -her inability.' -to sew was an important matter. 'It ,'was part .of the plaintiffs'-, case .that Dr.,-Baw.' : son . took no precautions to ascertain whether any person was in the neighbourhood ,«nd lawfully'using the pathway" when was. about to ewing. his club. points of tho defence, as set out by Mr. A. L. Heramali, on behalf of Dr■ Kawson, -were that there had been no: — 8 of Bawson; aad-%t-tho. injoiy. to,Mrs.-,Leckie- was. Wevitable ~ accident, • forwhichl neither .party, was to blame. It was denied that; there. .was a track or pathway to the golf.-house, towards which Mrs. Leckie and Mrs. Young were proceeding - ai. tho time. Dr. Raweon contended tint Mrs. Leckie should: hayopven wantmg of-her approach,' and' he that lie took all the precauy - obscrv -s! i - V players. Just, before swinging Ins club,- in practice - ' ' ; , c ° mmeuc i?S a game, -ho looked' about aad saw nobody behind him or ffTO&WJfIS.-qn.,sher : hand.: .He.hadtte.V tee-Messrs. -■ '.«nd Kirtby—and he. -' ex- > ' 9?™°? ■ that they: must.-have: ; In evidence'' that,, when, his golf club struck. Mrs.. Leckie he: (would ~not have been ] more surprised if it had .been an 'S' "twf ' He - had no idea,"'he - S S was coming along-.be-

cas ?rresumed, yesterday. Mr. Herdman, .called further

i ' On .Standing Behind a Player. 1 v 5- ?' and Coi : T™ . ~ bad had twelve years' expei-i- ---?£ f S and.hadbeen captain of i Ha S^s n^ U C for twb.. yeqn. i Considered that a man on a tee alone, and swinging his club, would be said to C S?Kg**«w»'. if he had not • a ij ,players were on a ■:***' he would not pass : behind them. The K* S^J h F«-. J 33 tf r-waili* until play 1 had finished,, or ..to ast permission to ■ pass. Lm f- P'ayer.about to swing a.club ought to f Thprt-J,'?' Me that^nobodywas near. |: ;, would_take his'stand' for:'the |s purpiKo of playing- a : ball, and, if this [•.i operation occupied much : time, ,'he' ought |j.,; to look ; round _ again to make sure that' f\ oo had approached within reach » lnb - -M ter th at, the onus lay (V -'• ott ®F. people, to..see; that, they- did ' ¥ t = OM . He was quite vw. clear on that point, 5 01 ? onr: is not for' him to | dSlae. 1 matter f or the jury to IV' the .witness .said h pat tee on which ilrs. Leckie was r ' r<! h 0CC ? ( ? led a ' OM9UB position, in- , asmuch as it was very close to the. outi ; vard. and- inward paths.

and Witness:, Interesting Passage,

.His Honour: Suppose you saw. a' ; man m a- swinging a golfclub, would you say he was. playing golf? For exsaw- a gentleman tSe other 1 iriorna*' Place where lam stayinc swinging. a golf . club in the garden/ iffl ! J'- 84 ? s gentleman' play-' «Jg golf this morning?" ■ Witness:-Well, I should say, "Yes." .His Honour: All you need: then for a t Pfound is/perhaps, a square—about u leet. square? ,- •• -- . " Witness: To play a competition-— : gaiM. nr: No: 1 eaii . 10 play

Witness: Yes. 7 0n a man s^ing-' n. hnl« Y| hout a ball, and without la ? *?uld..you say he wa3,;iOayihg

.fitness: I should say he was not play.' n« a competitor's game, but that he was-practising. • " - r-ffiß flonour:According to this, you can game in a room? , Witness: It has been played in a room, in a WkT - 1 sn PP osa if a man tossed football? m a TOOm ' he i 8 Paying „In reply to a question put by Mr.- Herdmn, witness stated tfat <L .portion .L •>3 te ® was unique, and anyone fn> m _ any-djreotion, or crossing it to :grve warning. • It was p ayer3 that they should he ..advised of such approach. "It is also .jssential, awording to:, etiquette and the usual practice, said Mr. MUwan.

A Champion in the Box." . ?™ cail ' • merchant, stated Mce -rf h2d . Teaxs- experi- . lnd I understand von have had the the golf championship .of New Zealand more frequently than anyone else? . Witness: I believe so." '{™T ter statingthe practice of approach- -- players, as he knew it, witness was asted by Mr. Hadfield: "Can you say kow many times you have heard persons, passing behind that tee, give warnTi no e,EC6etii Dßly rare?" . ? ay , be rare > but it is tho nprir Pcople wll ° como near without giving warning pass by at their own nsk. .

. Mr. .Hadfield: You are a very careful player, Mr. Duncan, are you not?— Witness: I do not think so. haTe never damaged anybody?—

' When you are about to play, you look round carefully?—" Yes." Playing at the first tee, have you ever suffered personal inconvenience through the crowding in of people?

His Honour:. Some men would not feel inconvenience if, a -million people were round, and lie could swing his club. On the other hand, some men are nervous. ; -Mr. Hadfield: Anyway, you would be ; superJaUvely careful when swinging a club on No. 1 tee? Witness: Yes, one would be careful. Albert James Abbott, merchant, stated 'that' ho' was iT iri'eniber ''of.' the Wellington'- Golf Clubj -about ten years'.experience, of .the game. He had won two ' competitions.''.' In" his opinion,. people should exercise every 'care -in approaching a. teo on which players were preparing for or taking part in-a game. If a player*! was not about to make a shot, he considered that he would be justified in crossing in front of the teo. He objected to anyone walking behind a tee on which he was playing, even if the person was 20 or'3o yards away. The presence of "a person behind was likely to put him off his shot, if, in swinging the club, he caught a glimpse of the stranger. "His 'Honour: Let me be' clear about this. It has nothing to do with tho possible danger to the person behind?—"Oh, no; it is .only that a person going behind might';put : .rae'-off;my 'shot." ;Mr.' Herdman: D.bn't you Know that a celebrated player in\ Scotland can never play a shot if anybody is behind him, bepause- he once .hit- somebody with a golf 'olub|—.'■JTo, I 'don'tviknqw (the case." • ' 1 indication ; : of ...the 'precautions usually taken by golfers when playing was .also given" by William Handyside, mer-•chantj-who said that, fojf the past eight years, he had been a member of the Wellington Golf /Club. On No. 1 tee, he continued,'he frequently chose a spot for his ball some distance behind the discs. The better' -players were "more careful in .choosingtheir .positions < /than inferior players. Jlr. Hadfield: -Without-being offensive, njight I suggest that you are peculiar in : that?— ,f l-am-:-not-,-pecnliar,—but I' may be paifticular.""'''XLanghfer.) t ''"'

. "Oh!" It Was Her Own Fault." iK^ a i ter nes t Pearson, secretary, stated that he met- Mr. Leckie on Lambton Quay about ,ten days after the accident. He • stopped. Mr. Leckie, and inquired as to :his: wife s: health.- After a few. other re- • marks, he said that it had .'.been ' a most unfortunate accident, and that Dr. Eawson had felt it very much. Mr. Leckie then replied: "Oh, it was - her own fault.'.

, Mr,.-Hadfield:. Are-you aware that Mr. Leckie was not anywhere near at the time of tho accident?—"l know that he was not present, "but - was I have no knowledge." And. did not you endeavour to find out where Mr. Leckie had' been,, at. the time of the - accident, before you decided to us ® tlL statement yon say he made to i. • C ; ec ' jie had had ten days in < which to mature his ideas. : It was not said on.the spur..of...the moment.'-' Mr. Hadfield:.Don't yon know that Mrs. Leckie had a:close shave of lier. life?—"l behevo^so. ,,

(•his? w , as , tllat , tlle time for a man to ttink to speak with', due de-iberat,on?-''oh, I don't know about fi,J 8S ? ot sa ! d hastily, and I salt" to. tell Dr. Rawson, knowing that LTnf 1 ,, PJ e ? se . lnm ' tt at the other side 1. fW, 1 ® was to blame." You have discussed the accident? '"Vps i ot s of P«°P le , since the S k S'J have. Everybody in town haa talked a,bout the case. Dr lvawson is my cousin, and one of mv best S 3 - T^ y - should not I taie an inl terestin the case? _ llr. Hadfield: I suggest that you are m^o S1 (. ng • rem&rt with a statement n™ s r°V n mother -Of. those numerno M? i l 'Wt that it was not Mr. Leckie who , made the remark f r ®. yon - ?ot, mistaken "No. lam not I, am, positive,about; it." , . '. ■ ° tho position of .the that ' COn P withcnat , jgrt ,ot. the -.iinlrs were jnven hv Hugo Page. ITariify; surveyor. 7

Mr. Herdman's Address: Ladies' Hats. addressing the. jury, said. Sf point to be considered was whether Dr. Kawson guilty. tL? e ?r 1881 T e ' 1 £ urtller P° iat: was whehad been guilty J/i ° ,^ e ' also to collider,' whether this ..unfortunate -happening sl . m J?]y, tlle result of. an accident Whin ml? % happen- m-any game, be it football, cricket, or. .any , ; other game. There were inevitable accidents in conof^rnl/"1^ g * me - The burden .JJ proving that. ;there'" was - negligence on ,S e . v?* Er;;Rawson rested- upon the : plaintiffs, "would ask'the jury: Had a ?^t lng '^P' during- the hearing 1 .of the case which showed, that there was any warranty_ at all "for instituting, pro- , ceediags of this description? ' It had been, admitted by witnesses for the plaintiffs that it was dangerous to go behind No: 1 tee. while", players were there.- Martin, that be would not walk behind; that tee; he said that- ha would'.have, stood by," , And there was not.a single witness who had said'that ' exercised i reasonable care. It became a habit for.-a golf player to look f round before . commencing to swing-his club.' Kone- of Dr.'-Eawson J s companions had been able to say what actually .took place.- Mrs. Leckie ; was the only .one who could make any statement at .all. regarding Dr. Rawson's movements. Wearing a big- hat, apparentlv- "a creation of the soup-plate, order/? Mrs. Leckie approached ana gave no warning, and ■ went bang into Dr; Rawson's club." A. reasonable suggestion was-'that,-as a gal® -was blowing,-and she. .was leaning dver into the wind, her eyes would be'upon -the ground, and that she-did not watch where she was going... . Ihe law would not protect people who were negligent themselves, '\tfho went about in a fit of abstraction/ with their heads down in the wind,'and with big hats on. who. took part-,in a game in which -risks existed must-'-take the precaution to protect themselves against those risks. It was" a. serious case for 'i '. Dawson. : A large sum of 'money was .claimed from>nim in connection with an act .which '-su*uqk him with, horror. Beforei Br, Rawson could b e ..mulcted even m the expenses, claimed, : the . jury must nnd that he was guilty' of .;negligence. He considered that the jury : would be justified in finding that Dr. liiawson . had behaved as he ought to "have "'done, that he took every possibly precaution, and that he was not guilty of negligence,. .

■. : Reply toVMr. Herdman. (< Mr. Hadfield referred to what ho called absurd, evidence", submitted, by the detendant..: He.considered.it quite' wrong for anyone to -suggest, that .a man' who .swung a, tennis, racket in his bathroom or on his garden, path- was playing a game of tennis. Injuries' similar. to those sus-' tamed;by. Le'ckie might:be inflicted y 'i. a ' who' negligently?swung an umbrella on Lambton Quay. , 'From the evidence of Dr. M'Gavin, it was apparent that Jjt. Eawson was to be congratulated on the fact that Mrs.' 'Leckie had Bsrapsd with. her. life. ■■ ■ This .'• was surely sumcient to point to the. extreme care necessarily required of playeri The occurrence of an accident at such a place 7 r ¥> counsel's opinion, an- irresistible inference of negligence. The more dangerous the instrument to be' used, the more care' must be exercised. ' He considered that the onus of proof of -negli-gence-had been , fully discharged. As to contributory negligence, a person walking on golf links-or, along a street was not bound to anticipate negligence on the part of Ladies., were accustomed to y earing big -hats, and. they did not stagger about in the friiid. Was it reasonable, then, io suggest that, on this occasion,. ,Jfrs. Leckie was- unaware of the direction in which she was proceeding? .- '

His Honour Sums Up. v His Honour, in snmming up, remarked that it-was admitted? that, Mrs. Leckie nad sustained .very severe injuries. To laymen, it was remarkable that she had escaped with her life,: but her recovery had no doubt been -brought about by the skilful surgiril treatment which she had received. The main point for tho consideration ■ of- tho jury was whether Dr.Awson had been guilty of negligence. If he had been negligent, he had omitted to do something, which a reasonable man under the circumstances, ought to have done. Negligence meant want of care and the want .of care charged against Dr. Eawson was that, before he swung his. golf club, he did not look' round to see that there was nobody near. The whole case would be determined, by the answer to that question. Dr. Eawson said that .he looked round not more than fifteen seconds before he Bwung the club The matter was one to be decided by the jury. - ,

in a case of this nature, there was unconscious bias on the part of witnesses It. was invariably found that one half of the people witnessing an accident would take one side, and the other half would'

take quite another view. Spectators made up their minds that one party or the other was guilty, and this coloured their evidence, although they were unconscious of it. When the jury found contradictory statements in the evidence, therefore, they must not jump to the conclusion that what one witness said was true, and what another said was untrue. There was another question: Could Dr. Mawson have looked round and yet not have seen the ladies? If he looked round, . and something came in his way, then lie had fulfilled the duty of, a reasonable man. If, however, - the jury considered that Dr. Rawson did not look round, could they say that he was not guilty of negligence? Presuming that-the jury came to the conclusion that Dr. Rawson had been guilty of negligence, in that he did not look round before he swung his club, the next question was this: Did Mrs. Ijeckio do anything' to show that she-'was guilty of negligence? In walking, as she did, behind the men on the tee, or in not giving warning of her passing, was she guilty of negligence? If she u see?,5 ee ?, guilty of negligence, in that .she should have stopped, or should have warned the men, and if the accident occurred through her want of warning, she could not recover- by, the present action. " af, Mrs. Leckie guilty, of contributing , IT which led to tho accident? Mrs. Leckie said that, Dr. Rawson was on the tee, but that he was not playing, -and that.- he. was .not facing m the direction which he would take if he were going to drive a ball fr ?m the -tee to the first hole. She said that. they did'not seem to be playing, and that,' therefore,'she did not assume there, was any danger in approaching the tee. As regards the statement which Mr. Pearson said that Mr. Lecbe .had made to him in the street, that' the blame rested with, Mrs. Leckie herself, Mr. Leckie had denied having made the remark. If he had said what was alleged by Mr. Pearson, was it reasonable that Mr. Leckie should endeavour to make a claim/ upon Dr. Rawson for the payment of the expenses? ' The jury would have to decide which statement was correct. If they agreed jhat. Mrs. Leckie was not guilty of negligence, that • Dr. Rawson had been negligent in swinging the club, they, would award damages. Tho amount was for-the jury to fix. They would have to consider her. sufferings, and what she plight still suffer. They must also take into account the probable length of time that elapse before, she recovered her normal health. At the same time, the jury must remember that Dr. Rawson had not inflicted the injuries wilfully; he had not done it out of spite. His conduct after the accident was not to bo considered. 'All' side issues such as that were to be avoided; they were usu-' allyintroduced for-the purpose, of obscuring the issue.. The Issues and Findings.' ! „®3 t Honour put the "following issues to the jury:—. , 1- Did Mrs. .Leckie sustain the injuries mentioned in the statement of ' claim? • 2. Did.-Mr. Leckie properly incur' • the expenses'mentioned in the statement of claim?; . . ... i, . 3. Was. the defendant guilty of negligence? • 4. Was Mrs. Leckie guilty of negligence? - • ® , aie tt6 V . At I.SO o'clock, having lmiched, the jury, accompanied by the two surveyors, Messrs. Seaton and Hanify, proceeded by taxicab to Heretaunga to vi«w the links. . Returning to Court'. at, 5 o'clock,. the jury supplied the following replies to the issues presented by the 'judge:— ' 1, Tea;, a, yes; 3; no;i, yes; 5, Mr. Leckie—nil; Mrs. Leckie-^nil. - Jud|ment >-as accordingly; entered -in defendant's.- favour, with costs of '.wit-' nesses (the costs of two. doctors to'be ! deducted seeing that issues 1 and 2 had been decided in plaintiffs' favour),' with ; the .costs of the special- jury, and. with ; . ton j guineas. costs for the : second -. day.