SUPREME COURT.

Evening Star, Volume VIII, Issue 2219, 17 June 1870, Page 2

SUPREME COURT.

This Dav. (Before Mr Justice Chapman and a Special Jury.) KOSS V. CHAPMN. This was an action to recover damages sustained by the plaintiff by the death of his daughter by drowning, through the alleged carelessness of a servant of the defendant. Mr Harris and Mr Cook, instructed by Mr Macassey, appeared for the plaintiff, and Mr Smith and Mr Haggitt for the defendant. The following evidence was given : F. P. Mansfield, manager for the defendant : —So far as I know Mr Chaplin is the proprietor of Cobb and Co. ’s line of coaches. Neither on the 1-lth nor 15th December was a passage taken in tho Oamaru coach in the name of Elizabeth Ross or Mr Laurouson. The passengers booked on tho 15th were Mr Menzies, Oamaru ; Mr Paterson, Timaru ; Mr Hardy, Hampden; Messrs Newman, Lindsay, Newoy. and Hudson. A seat was taken just before the coach started by a person, whom T think was a cattle owner. There may have passenger* whose fares would not been entered in tho book, they would only appear so much "way money "collected; their names ■would not appear. Donald Ross : The deceased Elizabeth wits my daughter. Up to the time of her death she was engaged as pupil teacher at the North Dunedin school. She was 21 years old, and for about live years had been engaged in that occupation ; she received from L 45 to LSU a year. In December she proceeded to Oamaru to spend her holidays with her sister who resided there. She left Duucdiu on the morning of the 15th by one of Cobb and Co.’s coaches. I put her into the coacli myself, entrusting her to the care of aMr Laurenson, She got into the coach at the corner of King and Duke streets. On the Friday, the 17th, 1 saw her a corpse at Oamaru. She lived at home, and gave her salary to her mother for the support of the family. She always enjoyed good health. I am 70 years of age, and my wife 55. Seven of my children are unprovided for. Cross-examined.—My daughter was , not about to be married.

Fleming Lanrenson, storekeeper, Oamaru: —I recollect the 15th December last. On that occasion I was a passenger by one of Cobb’s coaches from Dunedin to Oamaru. I paid for two seats at Cobb and Co.’s office, Dunedin, on the same morning, previous to the starting of the coach. It was a single ticket, marked two seats ; I received it from Mr Mansfield. 1 paid 50s for it. I have no doubt of having received it from him. The other seat was (taken for Miss Loss. Miss Loss joined the coach at the Water of Leith where it stopped to take her up. Miss Loss and I proceeded as far as Palmerston, j where we had to get out and walked a mile, the coach afterwards overtaking ua and picking us up. As far as Palmerston, there appeared to have been considerable rain ; and beyond it, a more greater quantity, I know the Kakanui and its neighborhood well. 1 have crossed the river between fifty and a hundred times. Wo found the livers very high before wo got to the Kakauui. I don’t know of anything having happened to the coach before reaching the river. The river was very high on the 15th ; 1 never crossed it in such a state before. There is a lagoon this side of the river; it is on the beaten track, and is sometimes dry. On that day the lagoon was full of water ; the horses pace was not slackened in passing through it; there were about four feet of water in the lagoon. The water came over the side of the coach. By g dug up 100 yards higher, he could have escaped the lagoon, and the passengers would not have been wetted. I never saw the lagoon higher than it was on that day. I do not think the lagoon any guide as to the state qf tfyo river. The lagoon is generally dry. There are usually two channels in the river, and they are separated by a shingle bank ; that on the Oamaru side being the deeper one. It was on that occasion, hat it has shifted lately. I was an inside passenger at the time of the accident. I could not say whether previous to the coach entering the river, anyone warned the coachman of (he state of the river. I saw Mr Wheatly on the Oamaru side of the river as the coach was entering the river. After passing the lagoon the driver did not stop to ascertain the state of the river. There were three feet of water in the channel .this aide of the river; and the shingle bank was completely covered. Mr Wheatly was near enough for me to see what lie was doing. I saw him waving his hand for the coachman to keep off the bank. The horses could not make the usual landing place. The coach was ip the deep channel before I s;vw Mr Wheatly. I hoarder Wheatly' say, Keep off, Jamie." At first the coach went head on; hut when the landing place was made, it was taken side ou by the current. It was quite possible for Mr Wheatly to have spoken to the coachman before. I can't tell what was the depth of water. The coach was alloak. I could not be certain whether any water entered the coach when crossing the first channel ; for my feet wore already wet, and I didn’t mind it. I remember putting my feet up on the opposite seat, and the other passenger. 1 ! removed their baggage from the bottom of the coach. I never saw a coach cross a river in such a flooded state. After givipg two or three rolls, the coach wept over ou its side and came to piece*, the forecarriage separating froip the body, amt the ' top being carried away. The rest of the coach remained ou the shingle hod lower dowp than whore the channel was entered. Miss Loss was in the coach at that time. When the top of the coach was carried away she was washed out of the ooaoh and drowned. I held on by the side of the coach, and two hours afterwards got on shore. There were two passengers on the box with the driver—Mr Newman apd Mr Paterson. At the Otepopo river the driver got down and secured the main carriage to the fore wheels with a leather strap. The old crossing of the Lopkcry ip< |ery bad, hut the now crossing ia not near so 'had. It h«4 beep used for sows mouths juiov to

December. : I should certainly nave more fear of grossing the Rookcrj’- than the Otepopo. "With a very heavy rain the Kakanui is the most dangerous, but with a sudden rain the Rookery and the Otepopo the most dangerous. The distance between them is about ten. miles, and there is a change between. A. Hood in the Kakanui takes longer to rise and to fall than the Otepopo or the Rookery. I will not contradict any witness who says grass was visible on the shingle beach, for there is very long grass there —about four or five feet high. I did not see any. 1 made a remark as to the state of the river to the coachman ; I did not think the river dangerous. The Shag river was not much swollen ; Miss Ross and I crossed it on foot. I can’t recollect anyou climbing on the roof of the coach. I was o my feet, holding on to the bars of the door 11 of the coach, looking out. I really could nob say whether I attempted to climb on to the roof. The coach floated for little more than a minute.

B} Mr Harris : I didn’t consider it dangerous when entering the river. The state of the lagoon was an indication that there bad been a heavy fall of rain in the neighborhood. As soon as the coach struck the forecavriage was drawn away. Rev. D. M. Stuart : I knew Elizabeth Ross for about ten years. I have had opportunity of judging of her capabilities as a pupil teacher. I considered her a healthy young woman, and one likely soon to hold a situation with a salary of LIOO a year. I would have given her a strong recommendation to any of our ordinary schools. Mark Walkeham, contractor, was a passenger by the Oamaru coach on tho 15th Dec. Before corning to the Kakanui, two or three rivers were crossed, and some of the inside passengers said the deepest had been passed. At the Kakanui post office there wero some persons outside, and in answer to some questions by a person on the top of the coach (not the coachman), one of the bystanders said tho river had fallen two or three feet since the morning. The coach then entered the river, and there were about six inches of water in the coach.. On entering the second channel “ the water began to rise.ln.it, and. the coach to float, and three passengers got on to the top of the coach. ’’ He told Miss Ross to hold on ; and no sooner had he said so, the coach turned over, and the top was carried away. He considers the top was carried away through the passengers trying to got on top. Everyone inside the coach was washed away. He was jammed between the forecarriage and the coach, and but for the kingbolt giving way, would have been killed. When the coach was afloat I saw Mr Wheatley beckoning, and called the driver’s attention to him.

Cross-examined : It was possible that the men at Kakanui post office said “ If you had . been here at 11 o’clock, yon could not have crossed ; but now it is all right.” At the moment the driver’s attention wi*s called to Mr Wheatley beckoning, the inside passengers tried to get on to the top of the coach. Witness’s opinion from first to last had been that if the men had sit still, the coach would not have gone over. There was less water in the coach in crossing the Kakanui than the Rookery, Lawrenson was one of those who tried to get outside. James Wheatley : I reside on the Oamaru side of the Kakanui. The river began tq rise on the morning of the Hth, and was at its height between II and 12 on the 15th. It was then pretty high, but 1 have seen it much higher. The water was about three feet below the bank on the Oamaru side. At, that time it was nof in a fit state to cross. During the clay several persons came to the river to cross, and about one o’clock I stopped two or three. No one crossed up to the time of the accident occnring. I first saw the coach when it was on the slpqglo. , bank. The river is about ]OO yards wide at ; the crossing place. If the coachman had stopped on the Dunedin side of the river, and cooed, I could have heard him, but could not have kept up any communication with him that day. It is frequently the case that the Ilookcry and Otepopo are. are affected when the Kakanui is not, and vice verm. The channel on the Oamaru side of the Kakanui is the deeper one, when the. river is up. I called out to the driver, my object being to stop him from crossing until I had had some conversation with him. He could not hear me. I waved my hand for him to keep well up the river before crossing. When the horses got into the channel the current swept them down the river. Thq current was very strong ; I never saw it so strong with such a small volume of water When the leaders got out, they pulled the shaft horses out and the coach as well; the latter was rocking, as I thought in consequence of those inside moving about. There, 00 ild not have been much water in it. There is a second shingle bank much higher than the other, about fifty feet below the crossing, and on to this the driver tried to pull his horses, Some of the inside passengers tried to get opt and in doing so 'I think they overturned the coach. There was nothing in the river to make it turn over. I believe the driver’s infection was to get the coach back on to the shingle bunk, which was dry, and I think he would have done so had it net capsized. I think Miss Ross was thrown out of the coach when it capsized. The river had been falling from noon, and when the other passengers were taken, it had falleq groaty.

Messrs Stewart, bead master of tbe North Dunedin School, and Mr Hislop, were examined. They agreed that Elizabeth Ross was a most efficient pupil teacher, and that had she been living by this time she would have been entitled to rank as schoolmistrees, with a salary of at least LIOO a year. Some correspondence on the subject of the plaintiffs claim for compensation was read, The defendant, by his solicitor, declined to admit his liability, aa there wa,s no carelessness attributable to the driver of the coach, in which conclusion he considered himself borne out by the verdict given by the corch ner’s jury. Mr Smith ashed for leave to move for a nonsuit, on the ground that the evidence ad' dueed did not sustain negligence attributed to defendant, His Honor thought there was some slight evidence to go to the jury on two points. For the defence, Jas. Duncan, driver of the coach on December 15, B. Newman, apd D Hunter were examined. The evidence was to the effect that the upsetting of the coach was solely due to the passengers attempting to gain the top of the coach ; that Dither-, wise the coach would have been; got acyosfl, safely, as it had Ven before and since when the river- was aa much flooded. Duncan stated that he thouflht.it a prudent thing to swim a coach across a rivQr.