RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VII, Issue 1921, 2 July 1869, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. Chetham-Strode, Esq., R.M.) DRUNKENNESS. John Renton and Margaret Forbes were each fined 20s for drunkenness, or to be imprisoned 48 hoars ; and Catherine Grey was fined L 5 or 14 days’ imprisonment. ASSAULT. Town end v. Webb.—This was an action for assault. The damages were laid at L2O. Mr Ward for the plaintiff. The ass .nit took place at a meeting of creditors of the plaintiff, held at Ware’s South Australian Hotel. Webb was one of the creditors, and put questions to the insolvent respecting payments of money, which he appeared to look upon in the light of fraudulent preferences. The evidence showed that the plaintiff denied having given the replies alleged by the defendant. He admitted having repaid 18s, money lent to purchase material for finishing a job in hand ; but denied having stated to the plaintiff that Mr Winchester owed him L 6 10a. These denials the defendant (Webb) looked upon as equivalent to the plaintiff calling him a liar, and, becoming very excited, he struck Townsend in the room, and knocked him down. Some of the creditors present then interfered, and prevented a further threatened attack. The plaintiff did not reply nor res : st. The Magistrate said, according to the evidence, he arrived at the conclusion that the plaintiff had shewn throughout the affair extraordinary command of temper. He gave no answer, merely observing “ 1 will summons you for this Mr We ib.” A lawyers evidence might be taken at times to give a coloring to circumstances, and time and place were important in assessing damages. It was laid down, for instance, as a rule that it w r as a greater insult to be beaten in the Royal Exchange than in a private room. The assault complained of was thoroughly unprovoked. It was in fact, a shameful affair, and such assaults must be put down. In that case he should give judgment for the plaintiff for LlO w'ith costs. Civil Gases. ' Harris v. Gilchrist. —A claim for L2 11s. The debt was admitted, and judgment given for the plaintiff by consent. Fawcett v Christie. defence nmounted to nothing more than a denial of the debt, although admitting tenancy ; and judgment was given for the plaintiff. EXTENDED J UKISDICTION. Scanlan Brothers v. Tomlinson. This was a claim for L 129 19s lid, reduced to LIDO to bring it within the jurisdiction of the Court. Mr Macasscy for the plaintiffs, Mr J. Bmith for the defendant Mr Macassey stated the case. The claim was for damage d ne to two cases of plate glass through the defendant’s dray having been driven against them on the jetty, and throwing them down, whereby the contents of one case were smashed to pieces, and one plate was broken in the second case.

JolmScanlan, of the firm of Scanlan Bros., recollected the arrival of the ship Tinto. She had on board goods consigned to them. They handed the bill of lading to the defendant Tomlinson, the wharf carter, to enable him to obtain three cases of glass on their account. He first saw the cases on the deck of the lighter Agnes alongside the jetty ; he saw them next at the door of the store of the firm on the 25th May. They were taken off the dray into the store. They were put away, and had no appearance of having been opened. They were opened the following Thursday, in the presence of himself and Mr Sibbald. The contents of the first case were smashed, apd in small pieces. There had been 16 squares of plate gliss of large size. The second contained large squares of glass, 132 x 45 inches, one of which was also smashed. The third case was sound. On enquiring of Tomlinson, the latter said that one of his men told him he had driven a dray up against them, and tumbled them down on the wharf. He supposed it hod broken them. The next day Tomlinson viewed the glass, and said it would be better to go to law in the case to see who was liable Witness thought it better to refer the matter to a lawyer and take his opinion. A survey was heid by two persons engaged in the trade, Messrs Lees and Webb. The firm had had no plate glass broken excepting those alluded to since their arrival in New Zealand. After witness had applied to Tomlinson for payment, he did not refuse to pay, but thought someone else should bear part of the cost. In cross-examination by Mr Smith, the witness did not recolieet telling Tomlinson tha- he bad arranged with Guthrie, the agent of the lighter, that as it was Saturday, if the goods were not lauded before twelve o’clock they were not to be landed that day, as his (Mr ScanhaiTs) men left at that hour on Saturdays. Mr Guthrie, agent for the lighter Agnes, said that the cases were lauded carefully on fhe Saturday, immediately after 12 o’clock. They were place ! across the wharf on their edges. Ha icmombered Matthew Millar, a drayman in the employ of Mr Tomlinson, about 1 o’clock was going past; the dray caught two cases, and pulled them down. He said he had been trying to pull his dray out of the way of a man standing on the other side that caused him to drive against the cases. Scores of drays had passed both ways witbopt touching them. He could not say that the word” {< glass ” yas so presented on the cases that a carter might see it. As near as he could recollect, there was a distance of 8,1 or 9 feet room for a dray to pass. He had measured the distance about ten days ago, and was enabled to do so because through the swing of the crane in landing stones he could ascertain the position of the cases to six inches. He called attention to either Mr Hunter or Mr Tqnil bison’s clerk that they were going to land the cases frpm the vessel.

J. P. Sibbald, clerk to Messrs Scanlan Brothers, said that the cases were marked “plate glass” on the sides, in letters about two inches long. Andrew Lees held a survey for Messrs Scanlan, with Mr Webb, at Messrs Scanlan’s shop. One case was entirely smashed, and one plate in the centre &f the case broken. The value of 10S x 39 inches was about os 3d per foot. The one 132 x 45 inches was worth 5s 9d. The cases were marked, “Plate glass ; this side must be kept up.” Samuel Webb held a survey with Mr Lees, and gave similar evidence. Henry Walden said the cost of glass of that £ize would be about 3s 7d to 3s Sd per foot. He could npt pay what he would sell it at without a printed list, Mr Smith admitted that the plaintid’ must be non-suited. There w„s no evidence to show that the defendant’s dray, coming in contract wih the cases, had caused the

damage complained of. In fact the evidence seemed to prove the contrary. If the whole of the contents of one case were broken, why was it not that those of the other were. It was most extraordinary that only one plate out of sixteen was broken, and that in'the ce >tre of the case. It must be obvious to the Court there was enough evidence to throw doubt upon the damage having been done as alleged. When the rough usage of shipping and loading and unloading by sailors was considered, it appeared to him the Court would be supplying an element of evidence that did not exist in the case, were the decision in favor of the plaintiffs. In the absence of other evidence, the Court was bound to non-suit the plaintiffs. Mr Macassey maintained there was no ground for a non-suit. To the argument that more evidence was necessary to prove that the damage was dona by the defendant’s servant, it was sufficient answer that during six or seven years Messrs Scaulan had been in business that was the first case of breakage that had occurred ; and as to the difference in the amount of damage on the two cases, that would naturally arise through one having fallen further than the other, which was supported upon it. Mr Tomlinson admitted the breakage to have been caused hy his own man, and it had been shewn that such a collision was calculated to produce it. Th-re was clearly a case for defendant to answer. "

The Magistrate ruled, as far as the nonsuit point was concerned, that the plaintiff had gone as far as he could, and that there was sufficient for the defendant to answer. Mr Smith maintained that Mr Guthrie having placed the cases in an improper position, was the person who oug ! >t to have been sued. He should have placed them out of danger from carts passing up and down. Such extreme care and caution should not be necessa'-y on the part of draymen to avoid contact with damageable goods. Harris n on damages, pages 16 and 18, laid it down' that if glass, china, or fragile articles were entrusted to a common carrier, without giving him notice of their nature, the carrier was not bound to make good any damage done to them ; so that a carrier was not expected to take more than ordinary care. The lighter agent in this case intis t be held to be the agent of the plaintiffs, and as he had not exercised ordinary care against accident by placing them in a safe pnssition, the damage had been caused by his negligence, and therefore the defendant was not liable The true rule, ns laid down by Harrison, in page 18, was, that contributory negligence on the part of the plaintiff would not disentitle him to recover damages, unless by his act the accident could not have been avoided If he could show that Mr Guthrie, tlxe lighter agent, placed those cases in a dangerous position, then the fact of placing suoh materials as glass in circumstances requiring special caution, was an act of negligence on the part of the plaintiff that absolved the defendant from the consequences of any negligence on the part of his servant. Thomas Tomlinson, the defendant, said that Mr Scaulan instructed him that the cases would not be lauded after twelve o’clock, and therefore had no reason to believe they would be taken from the wharf after that time.

Matthew Miller described the way inwlrch the accident took place. Ho had pulled close to some stones which were placed opposite the cases. The wheel of the dray came in contact with the stones, and caused the spokes of the opposite wheel to come in contact with the cases and throw them down. He did not know they contained glass. After the cases fell, Mr Guthrie told him to take care, for the cases contained glass. He said he could not help it. The cases were too far over, so that there was no room. His dray was four inches wider than any other wharf drav.

The Magistrate said that he was inclined to think the case quoted by Harrison, where an action was brought for killing a donkey by a person driving against it, was in point. It was true that the animal was straying and lying across the road, but it was incumbent upon everyone to use due care in driving, or a man under similar circumstances might be run over and killed. The servant of the defendant, by ordinary care and skill, might have avoided the accident. It was also shown that, from the fact of his dray being wider than any other dray, he ought to have been especially careful. It was unfortunate for Mr Tomlinson ; but there could be no doubt of hia liability. Verdict for the plaintiff LIOO, with costs.