LAW REPORTS.

Dominion, Volume 7, Issue 1870, 2 October 1913, Page 11

LAW REPORTS.

COURT OF APPEAL. UNFENCED MACHINE AT SHOW, MAN INJURED. CLAIM FOR £1000 DAMAGES.

The business of the Appeal Court was commenced in oarnest yesterday. It will be remembered that none of the counsel engaged were ready to proceed with their cases on Monday or Tuesday. Mr. Justice Denniston presided, and the other justices present were Mr. Justice Edwards, Mr. Justico Coopor, and Mr. Justico Chapman. Tho first caso taken was an appeal by Leonard Home, clork, Blenheim, v. Dalgety and Co., Ltd.,. merchants, Blenheim, tho ground of appeal being that a previous judgment was erroneous in law. Sir John Findlay, K.C., and Mr. G. H. Poll represented tho appellant, and Mr. C. P. Skerrott, K.C., appeared for the respondent company. The Claim and the Defence. The statement of claim sot out that Herbert Stacey Home, engineer, had been employod by Dalgety and Co. to attend ana run at the Marlborough Show, on November 15, a sheep-shear-ing machine driven by a 'i'angyo oilengine, in respect of which tne company was bound to have evei\y part near ta which any person was liable to pass or be employed securely fenced. The machinery had been put on the ground in an unfenced condition, and in consequenco of this Stacey Horno had been caught by the machinery, and was in danger of losing his life. Ho called out for help, and plaintiff Went to his assistance, and whilst freeing him was himself caught, and his leftarm being so injured that it was permanently disabled. Plaintiff paid £50 for medical and other attendance, sustenance, and other expenses, and claimed from tho defendant company tho sum of; £1000 for tho injuries, and £50 for medical and other .expenses. The statoment of defence was that Herbert S. Homo was not employed as an engineer to run tho machine, as alleged, that there was no duty on tho defendant company to fence the machino, as alleged, that the machinery where required was properly fenced, and that' Herbert S. Home was caught in tho machinery by his own nogligonce. It was also denied that plaintiff's arm bad been permanently disabled.

Do Oil Engines Come Under the Aot? Sir John Findlay said that this was an appeal from a decision by the Chief Justice (Sir Robert Stout). An action had been brought by appellant claiming damages for" injuries received. Questions of law wero ordered to bo decided before tho trial. Tho questions to bo decided : were whether the time-shaft should havo been fenced, and whether tho main shaft should havo been fenced, as if tho latter had been fenced tho accident would not havo happened. His Honour ruled that oil engines did not como under tlio Act, but when large and complicated oil engines: were taking the place of steam engines it coitld not be 'that tho latter should be fenced and: the former not. It was quite clear that' Section 10 of the Act

was_ intended to : includo oil. whilst Section 2 of the 1908 Act included all machinery without limitation.

Mr. Justice Denniston: Why should motive power, which does not affect tho risk of accident, affect the question? Sir John Findlay: It is the'nature of tho danger—not tho motivo power. Mr. Justice Donuiston agreed that oil should bo included.

Sir John Findlay: In that case the owner must give notice to tho inspector, who would prescribe what protection was to be used.

Quito a Novel Point. Mr. Justice Edwards expressed the opinion that the injuries seemed to be caused by the fact that tho appellant was wearing a long coat. Sir John Findlay added that they could prove a breach of statutory duty, and though there might bo contributory negligence, that would not defeat their right. Ho wished also to raise tno novel question: Is a rescuor entitled to an action for damages against a third person whose breach of duty has caused an injury to the person rescued? A man was caught in the machinery, and in grave peril of being injured if not killed. He called out, and plaintiff went to his assistance, and succeeded in resouing him, but himself was permanently disabled, his left arm being useless. Sir John Findlay then proceeded to quote a New York case, in which a' rescuer had recoverod damages.

A Little About Lap-dogs. Mr. Justico Chapman: Has the New York law beon extendod to include lapdogs ?

Sir John Findlay replied that a line was drawn between human life and property, and he rather thought lapdogs would bo counted as property, Mr. Justico Chapman: I mentioned that becauso of what ono reads about lap-dogs in New York.

Sir John Findlay agreed that lapdogs in New York were counted as hum«,n life, judging by the value set upon some of thom.

Mr. Skerrett's Defence. Mr. Skerrott ( on behalf of respondent, said that it was submitted by Sir John Findlay that contributory negligence by H. S. Rome would be an answer to an action brought by himself, but not to an action brought by the man who rescued him; but ho (Mr. Skerrott) relied on Seotion 55, which showed that the statutory duties imposed under the Inspection of Machinery Act did not give a. cause for action to the workmen, but that negligence must bo shown outside the statute. In order to entitle plaintiff to recover itmust bo.clear that H, S. Borne could havo succeeded in an action against tho defendant company. The only conceivable ground of liability towards a third person must be that it was the defendant company's negligence which made tho occasion for tho intervention of the third person. Thero was evidence that the contributory negligence on the part of H. S. Homo caused tho accident. "The Sunday School Coat." He was wearing a long dust-coat, such as Sunday school young men wore at picnics, in an open shed, and on probably a windy day, but the defendant company could not anticipate him wearing such a lone and flowing garment, and it was therefore his negligence which afforded the occasion for

the intervention of the third person. Sir John Findlay, in reply, claimed that ho was not leading a forlorn hope. His propositions were supported b.v Lord Young and some of the most eminent Scotch and American judges. Ho thought ho had demonstrated that his case waß at least arguable. Their Honours reserved their decision.

CASE MENTIONED. Mr. C. P. Skerrott, K.C., mentioned the case of Blootnfield v." Bloomfield, which had been set down for Thursday. He 6aid that Mr. T. Cotter (Auckland), Mr, Morison and himself were concern-

e<l in the case, which turned upon tlio Consideration of an involved clause in tlio will of the late Captain William Read Bloomfield. They had agreed upon terms of adjustment, but the difficulty was how far it could be given lpfjal effect to. They had hoped to bo ablo to come before the Court on 'Thursday, with some scheme, but that was now impossible. Ho had communicated with Sir. Meredith and the parties concerned in the Public Trust case, and they woro prepared to go on with their case on Thursday, so ho asked that the Bloomfield will caso should stand without date. The person possibly entitled to the ontnil was out of the colony. This course was agreed to.

THE CAUSE LIST. To-day the case to be heard is that of tho Wellington City Council and the Miramar Borough Council v. the Attor-ney-General and Public Trustee, case removed; to-morrow tho Union Steam Ship Co., Ltd., v. tho Wellington Harbour Board, caso oil appeal, is to be heard; George James Goldfinch and Simon Athv v. tho llangitikei Sawmillers' Co-operativo Association, Ltd., case on appeal, is set down for Jloiiday; Dudley. Bruce Hill v. the King, caso removed, is set down for Tuesday; and the other cases in tho cause list are: John Thomas Stembridge v. Donald Ewen Morrison, case oil appeal; Wilson v. Herries and others, a question of law affecting a Na.tivo land matter; Pukeweka Saivinilling Co. v. Taringamutu Totara Sawmilling Co.; Hannan v. Bevan and M'Donald, case removed; and an application for admission to tho Bar, referred to the Full Court.