HOLE IN A STREET.

Dominion, Volume 3, Issue 894, 13 August 1910, Page 14

HOLE IN A STREET.

CITY COUNCIL NOT LIABLE. FOR A BROKEN AliM. An important judgment relating to the liability, of, local bodies for, injuries caused by defects in the roads under thoir control was'delivered yesterday Ijy JTr. Justice Chapman.' The caso was that of Thomas Ignatius Yourellc v. . the Wellington City "Corporation, which was heard by his Honour and it' jury, : .iast September; . •*.. ' y.JIr. A Gray and Mr. l'.: J. O'Regan appeared for 'the plaintiff ;,.Mr. C. P. Skerrett, K.C., and Mr. J- B. O'Sllea (City Solicitor), for the defendant corporation. . The plaintiff, who is a draughtsman, alighted; at 0 p.m., on January 23; 1909,' from; a tramcar a short-distance from his house on the Parade, Island Bay. l Tlio night was dark, and the plaintiff, for the 'purpose , of. guiding himself toy a bridge across an open drain - leading to his, house, followed a fence.erected by,the CTity Cot poral'Jou along the-'.Parade. Close to tliis fence, andextending some distance into the Parade, there was a hole, which liad been caused by ■washing-out of the-filling., which had been placed over a/pipe-drain passing under' the Pardde. at that point. : Plaintiff fell into the hole 'and 'broke his arm, and Ws thus - incapacitated from work for sonie weeks, ; flo .claimed general damages £250 and special .damages £G4 from the City Corporation. ' The jury found 1 for, tho, plaintiff on. issues submitted, and'estimated'the damages at £]pi-'l3s., lOd.i Argument was subsequently: heard on. the legal, aspect of Ih'tvrcase.: . : It . was .contended for the that , the '' corporation had been guilty of .'negligence in not placing some foijrir'bf protection; oii the outer, .edge of ..the Parade at. that point. The deforice argued that this did not .amount to' negligence on' thoi part of the corporation. • ."'The caso. is 6iio which appears to me,"., said his . Honour yesterday in his judgment, "to approach.the border-.j lino which, divides cases of misfeasance from .cases of .nonfeasance. The jury have found"the corporation of Wellington have'acted negligently in .certain ways,/, and '..it, falls to mo.\to','dctermio« • / whether these .' findings 'arid ,certain undisputed facts' make out a case of actionable; negligence.''"- A' rule which had for . more than.'a century formed an unquestioned part. of. tlio : law ,of England was :,that 'those who ' had .tlio .'care and _of a roiid, including ■ itho'.,duty.'.to'repair.-it, 'were not liable for . the' consequences ,'of neglecting', to it. ■■. Those who used, roads were .'considered; to.know that, and to take their/measurements'. accordingly.-. If, however, damage happened ~to_ a person . using - a road t through • the. .inisfeasaneo of; the governing 'body, then /different considerations applied. The.on'ly.,thing' in ovidence' that .'could ,be described' as an. act, ;or .distinguished from aiv omission. 'or';' a. ' piece';.of .'neglect, 'was- the widening of the street when the tram-way-was jaid.-.out'. /.-.Tlio,case for the .plaintiff was.-'.that, , but for that act, -■lie: would; not: have - suffered this in-liur'y,:-because, that"';.'a'ct. : so connected 'itselLvith':.certain- proved-instances ofneglect. as to amount'' to jm act- of misfeasance, .'. After .-examiningthis .'contention' in- connection, with'.the fiiid■ings—of ther.-jury,. -hisV.Honour . found • that ■■-it; was /not. mado'/but tliat tho iyideriing/of : the street- caused the . erosion .or so extended it that it v be- : cim'e dangerous.: .The. function, so to speak, - sought 1 to. be' : attfib'iite'd', to tho widening was that it ; brought tho plaintiff.', nearer, to' a. dangerous/ spot than if there .had- been no widening. ''The; corporation, however," did not in'.vito the public to take into use '.that particular part : of , tho: Istreot. in : the way : .in which . the plaintiff used it as •a guide... Thoy.'threw open the. wholo and left-tho cfioico to the public... It was . the ' misfortune ■ "of ..'the, , plaintiff that something had happened to tho lights , that night' which induced him to try and .fallow the, line of the fence. For this ..state of, the lights, the corporation could . hot be., held' responsible'. His Honour could not assent to a contention that failing :to keep ..up - the fence had contributed' to .the accident, and that this was somewhat on the same footing' as, removing,: it. '. 11l conclusion, his . Honour , asked,: "What was tho true .and - immediate cause of this accident? What- calisod it,.was -that'the defendant-corporation had failed to' repair that-portion of the street (not that" it had caused; tho defect; in the street and - made it worse); that it ■ had. -done something, but as it turns out, not/mough to'protect, the public from, all the consequences of this neglectthat;it did .'not. repair this defect, '.bccau'so it was merely one of many similar defects, which exist about thero and in ' many other places, .but it did not specially invite the public to use, that dangerous'piece of street; that ,tho plaintiff, using it,- in a somewhat exceptional, though perfectly lawfu), way, in- which' it was probably never contemplated that anyone .was likely, to use it, met' with an accident.. . For these neglects, so far -as they contributed to the injury, the' laiv does not hold the corjwration liable, and consequently my. judgment must be for I the defendant. - :

-~' "Judgment aqcordingly,-' with- costs as per scale, witnesses's expenses and disbursements to be fixed by the Registrar. .'Allowance for-second; day, £12 125., to .cover', tho second counsel for that dajv: Allowance for second counsel, £5 ss. per diem..-: Allowance for.argument on-further consideration, £7 75."

Mr. Gray asked that, in the event' of appeal, security for ccJsts. should bo dispensed : with, on' the ground that the case involved' an ■ important public matter, and that it' would be. unfair to expect the plaintiff lodge a largo sum for costs. ~-•_'. His Honour said he would consider the point. :■'■ ' ■. ..' v FAILURE TO PAY ALIMONY. : ' A WAKNINW. ' Charles Wolryche Cavendish 'Ryan/ indent / agcnt, respondent in a recent divorcw casfj wa».'uskod - before ,tho Chief Justice (Sir Robert Stout) in Chambers yesterday morning why ho had not complied with an order for alimony, under which he was required to pay £1 a week to Jane S. Ryan, the petitioner in the divorce proceedings. A decree nisi had been granted, and the order for alimony wan made last April. ■•■ . : ■■■,■ . ■ The defendant told'his Honour yesterday that his'earnings had not been more than £1 10s. a week, and that ho .had therefore been quite unable to comply with the order. ' ' His Honour asked why he had not made provision before. V ' ~• \ Defendant .said lib' hnd , not known ; ho would have to pay anything.-. ; His Honour said :that, \ unless defendant, made, some .effort,.to pay, he 'would >have'to go'to gaol for contempt :of Court. Jt.wus-not'air ordinary-debt, but a distinct legal liability that must Lo. met. Defendant would bo given. a . week to make an offer. ■■_ ■Mr. R. B. Williams appeared for the plaintiff, Mrs. Jano Ryan. POWERS OF THE COVERNOR. r . .'. ; AND A LOCAL BODY. .The validity .or., .otherwise of tho constitution of; the Kahutara River Board was further" discussed in the Supremo Court' before Mr. Justice Cooper sitting- in Banco. Tho case came before his Honour as an ap_-

peal from a decision of Mr. Tnrton, formerly stipendiary magistrate in tlio Wairarapa. .The-'board .sued. Arthur ltobinson, in tlio Magistrate's Court at Feathorston, for £9 7s. 6dl' rates, and judgment was given for'the defendant on tlio ground that the board had no existence as a properly constituted board. The appeal was against this decision. . v ■ •■ • -

Mr. M. Myers and Mr. J. W. Card represented the appellant, while Mr. C. P. Skerrctt,. K.C., and Mr. D. K. Logan appeared for the respondent, Robinson. . Argument: (which was begun on Thursday, and continued yesterday morning' and afternoon) turned largely on the.questions whether tho district 'concerned was such as was contemplated in the River Boards Act, and whether tlio Governors Proclamation overcame .that! difficulty. ■~'■. Decision .was reserved. StOCK-DEALER'S BANKRUPTCY. . ALLEGED PREFERENCE. An appeal. on a bankruptcy matter was heard by Mr. Justice Cooper, in Banco; , ' yesterday-. The appellant was tho Deputy-Official Assignee, in the Bankruptcy estate of Frank Leslie Fulcher, and the respondent was the firm of Abraham and Williams, Ltd., stock-agents: and auctioneers.. , . Fulchor, a dealer in. live." stock, residing at Pa'liiatua, mis adjudged bankrupt in the District Court at that place on August 27, 1908. , The Deputy. Official Assignee applied"to'' the District Court for an. order declaring • all tunpayment alleged to have been by or on behalf of tho bankrupt to the respondent firm within thrco month's before his bankruptcy to be fraudulent preferences within the.meaning of Section 79 of tho Bankruptcy Act, and therefore void. The- .Assignee..'alleged that two of tlioso payments were made after Abraham and Williams knew of the bankruptcy. This ■ application was heard at Pahiatua on: February 24, 1 1909, and the District Judge (Mr.. W. i'B. Haselden) found that all the payments wero ninde to tho respondent firm without any knowledge on its part that' , Fulcher was ' insolvent,' and without-intention on the. part, of/the (bankrupt to give a. preference. ■■_■■ Appeal was made against this decision on tho ground' that. it.'was wrong in. law. •'.:■", : '■ ■■ ' ■' > - .'.■'"■''.

The caso w.as argued'" yesterday liy Mr. C.■' P. SkeiTott. K.C.. . and .Alt. D. K. Xo"an, for tlie anoollruit. .ami Mr. ■ M. Myers. and •' Mr.' Harold, •Sm Ml '(Pnhintna) for -the ■; respondent. ■His Honour reserved liis decision.