SUPREME COURT.

Dominion, Volume 3, Issue 798, 22 April 1910, Page 4

SUPREME COURT.

1 municipal law. 'dark night, and broken arm.

In 'tlie. Supreme Court, yesterday afteriioon Mri Justice Chapman heard argument in connection 1 vi'ith a compensation case: Thomas Ignatius Yourelle, architect, v. the Wellington City Council. ■:■■•■' : ■ ■ ■ : •■ .■v. ,

l Mr. A. Gray and Mr. P.. J. O'Began appeared for Yourelle, Mr. 0. P. Skerrott, K.C., with him Mr. J. O'Shea : (city solicitor), for the defendant corporation., .- ■■ ■

The case had come before Mr. Jus : tice Chapman and a jury of four in Oc-. tober last, when Yourelle claimed £250 damages from, the City Council for • injuries sustained in falling into a.hole, which, he alleged, had been negligently allowed to , remain in the Parade, 'Island Bay. Yburelle, after leaving the tram-car, had to pass across a bridge over a deep ditch running, parallel to the Parade. The night, January 23; 1909, was a particularly dark one, and iii order to' find the bridge, Yourelle walked along close to the fence, which ran on the. side, of the- Parade. In doing so, he fell into • a hole and broke his : left arm. 'Ac holo had : Deeiv caused through the erosion of: the embank'meut at a. point where a culvert had been constructed across the Parade. The culvert had been- put in by the authorities of Melrose borough in 1890,' only, a narrow strip in the centre of the Parade being formed, suffi-.' oient for the traffic at that date/ In 1903, when the City Councirconstruoted the'lsland Bay tramway, the Parade was-formed to its full width,, and the fence put up. • The jury had , 'awarded Yourelle £101 damages, ,, but, as-Mr. Skerrett -contended 'at the time that no ground of liability" was disclosed, argument was resented. 1 -. ■ ;

When bringing forward a motion for judgment yesterday on behalf of Yourelloj Mr. Gray contended that • the' liability of the, City (Wfl<jjl.was,,cleiarlyshown. The , City Council,, by erecting the fence;-had tacitly invited the public to _walk on any part of -the, highway inside the fence. ... ;

Mr. 6'Regan quoted.:.authority. for •the contention that the mere omission to. repair a nuisance might. develop, into a ground of liability, if the nuisance wore allowed to continue,- to the knowledge of the defendant. ,lu this case,' the City. Council knew of, the existence of the hole in tho.Parado for two years prior to the accident.- .; —

' Mr. Skerrett said that, even if a local body know'of a nuisance in a highway, liability could not: be fastened on it unless it could be. shown that the nuisance itself was due to some act of negligence Von ihe' part of the defendant. In the present case, 'the jury had found that the work had been properly carried out originally, and the evidence 'had: shown that the hole 'was- due to the natural flow of the surface water from the street, and not to any subsequent act of negligence on the pa.rt of the City Council. . Judgment was reserved.

, "STIFLING A PROSECUTION." Mr. Justice Chapman heard yesterday tlie case of-William Edmund Lawrence Basks, farmer, of Colyton, near. Feildmg; v. tho Cheltenham Co-operative Dairy Company, Ltd. \ The original action, which had ; been tried ] at Palmerston. North before Mr. Justice Chapman, was to recover £250 paid by Banks ■ to , '.'tho dairy company and a promissory note payable on demand, Baiiks claimed that the was paid -under pressure, and for the purpose of stifling a prosecution. The jury decided; in themiain, in favour of Banks. At the/trial Mr. Justice Chapman reserved; leave for Banks to move for judgment', ,, and -for the dairy, company to move for judgment, for a nonsuit, and for a.new trial.. Consideration of theso matters now occupied the Court. ..-' ' '■•■ -'

! Mr.. A. L. Herdman appeared 7 for Banks, and Mr. John Graham, (of FeiMing) for the dairy company.- .'• ■ - : His Honour-reserved judgment.

HOUSE-BUILDING AT HATAITAI. '. Further, argument was .heard by Mr. Justice Cooper yesterday in the case of Alexander Bell and John, Bell v. G. H. Sample, an' appeal from a recent decision of Dr. M'Arthur;-S.M., in regard' te a contract for the building of a house at flataitai.O ''-'■-■ -.

Mr. H. F. Johnston appeared for appellants, and Mr. A! Blair, for respondent. . .

The case- wiE be continued at , 10 o'clock to-day. ~ ■ ■ . :