SUPREME COURT

Dominion, Volume 9, Issue 2834, 27 July 1916, Page 9

SUPREME COURT

VERDICT SET ASIDE

THE. POWER OF JURIES

A reserved judgment, involving the setting aside of a jury's verdict, was given by His Honour the Chief Justice (Sir Robert Stout) yesterday.. .At the last civil sittings of the Supreme Court A. W. Schaef, photographer, of Wellington, was awarded .8250 damages against li>. and E. Tingej, Ltd., painters, etc., for injuries sustained by him lyjiile riding a motor-cycle along Willis Street. On the day of the 'accident the defendant company's Vorkmcn were engaged in painting work at the "Evening Post" building, and during the lunch ho'ur they left the trestles which they had been using standing on a balcony. A gust of wind of- extraordinary vialwico blew one of these trestles over the balcony railing on to the street below, where it struck Schaef, inflicting die injuries for which subsequently the jury Awarded him damages. In the course of his judgment His Honour referred to the evidence of the Dominion Meteorologist (Mr. D. C. Bates), who supplied the wind velocities during the day, and who said theie wa« Bottling «r----traordinaiy in the gnst of wind during the lunch hour on. the day of the accident, and that it must have been something like a whirlwind which could have raised tho trestle off the ground and carried it clean over tho balustrade -without doing any injury to the balustrade. His Honour also drew attention to the fact that the export evidence l«d on behalf of the. defendant cnmpanv agreed that the procedure adopted by 'its workmen on the day in question in regard to leaving the trestles during the lunch nour was the ordinary and usual course in conducting painting operations in (>uch a place.

Continuing, His Honour said that what tile Court had to consider was if it were a. negligent act tn leave the treetlos up when they -were left up, and was there any evidence' of negligence (the action being brought on account of alleged negli-. gence) to go to tho jury. He cited cases at some length to illustrate the'class of evidence upon which it would be open for a Judge to'leave a m.\t,t*r to tht jiifr, and on the.question of the taking of precaution he quoted comment on an American case, which was, inter alia, that"the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the wuic, and howevor .strongly he may lxs convinced that there is, a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way commonly adonted by those in the same misir/ess is a negligent way, for which liability shall bo imposed. Juries must necessarily determine the respon6ibility of individual conduct, but they cannot be allowed to set up a standard which -shall, in effect, dictate or control tho business of tho community." . "I am, therefore, of opinion," concluded His Honour, "that as in this case there was no affirmative evidence of negligonce, but, on tho contrary, the evidence was all the one way that this was the ,nsnal and proper course adopted in dealing with similar instruments on a verandah or balcony, that the case should not liavi\ been left to the jury, and that thoy should have been directed to find a verdict for the defendant. It is the duty and function of negligonce to see tnat thcTo is evidence of negligence. . . . As there has been a reservation made (for nonsuit or judgment for defendant) at the trial, .'the Court can now direct a verdict for the defendant. I may add that I have every sympathy with the plaintiff, as ho sustained soma injury, and perhajis tho defendant company may oven now give him some aid, which they wero willing "to do if be had boen moderate and not extravagant in his demands, though they did not recognise- any legal liability.. Tho law must be obeyed, and. I have no option but to direct that a' verdict bo entered for the defendant company, with costs according to scale,, and .£6 (Is. for this motion, and. witnesses' expenses"-and disbursements to. bo settled bv the 'Registrar."