COW ON THE ROAD

Evening Post, Volume CXXVIII, Issue 3, 4 July 1939, Page 10

COW ON THE ROAD

HIT BY MOTOR-CYCLE

DAMAGES CLAIM FAILS

j "I think that the statutory provisions 3 against permitting stock to wander'on roads is for the benefit of the public " at large, not for the benefit of the t motoring class, and considering th* i penalties for breaches of the Act, I do , not think it was the intention of the " Legislature to give rights of action to , the public at large for breaches of tho i statutory provisions," said Mr. A.'M. Goulding, S.M., in a judgment delivered " in the Magistrate's Court today. . The plaintiff, who was riding pillion '_. on his motor-cycle, then being driven by a friend, was injured when the cycle came into collision at about 10 p.m» r with a cow belonging to the defendant. The cow was wandering on the beach [ road at Paraparaumu with other cattle \ (about a dozen or so), hot belonging; ; to the defendant. The collision took ' place on a double or S.bend, and the l driver of the cycle saw nothing of the , particular beast he collided with until \ he was within 15 feet of it, and the [ animal was then well out in the road. _. The cow had been paddocked with ' some other cattle belonging to the defendant's husband in a paddock some two miles from the scene of the acci- " dent and from the defendant's home. [ The evidence satisfied -him, said the' Magistrate, that a Taranaki gate in the paddock was found to be broken down and in a somewhat dilapidated state the next day, and he. had no doubt the cow had strayed through the gate and Oh to the highway. The defendant some time later was prosecuted for permitting her cow to wander on the road. She did riot appear, and was fined. The plaintiff in the action, which was heard at Otaki, sought to recover damages from the defendant claiming negligence in per- ; hutting the cow to wander at night, j permitting the cow to wander iri comj pany with other .cattle in a mob or herd so as to be a nuisance and obstruction to traffic on the road, rand. permitting the cow to be at large ; without guidance,and to wander on the Troad contrary to} the provisions of the ! Police Offences Act. ' In considering cases allegedly arising out of breach of-statutory duties, said the Magistrate, it-was material to consider whether or not tbe act was prohibited1 for . the benefit of a particular class of ' persons or for the public at large. If it were j prohibited for the benefit of a particuI lar class of persons, then a person Within that class who suffered by the breach might have an action for damages. AN ENGLISH CASE. Counsel for, the plaintiff, had- asked him to hold that a breach of the-statu- , tory provisions of the Police Offences . Act arid Public Works Act as to wan- .. Dei-ing stock amounted ,to negligence on the part of the defendant, said "the Magistrate. There was a case on appeal from Justices decided in 1909. His Honour Mr. Justice Sim said that "in allowing/ her cow to, wander s op the road the appellant committed an offence tinder the Police Offences Act, 1908, arid the Public Works Aqt, 1£»03. She is liable, also^ for all such injjirious consequences as might* be expected to result front allowing her cow to wander unattended ialorig. a public highway." At that time Hedges Gai> age v.-Heath had not been decided. "In that case the English Court of Appeal pointed out that a breach of Section 25 of the English Highways Acts of 1835 and 1864 of permitting stock to stray on the highways did not create any civil liability. • In the case before him there was no evidence that the cow belonging to the defendant was on the road by any wilful act of the defendant, and it had been established that there was no •; obligation on. the defendant to fence or prevent.the cow straying, so there was no negligence in not doing so. The complainant, would - t be nonsuited, with costs to the defendant . X....X. ' At the hearing/Mr. W. P. Rollings appeared for'the plaintiff, and.Mr. O. C. Mazengarb for the defendant