DISTRICT COURT.

Evening Star, Issue 3675, 2 December 1874, Page 2

DISTRICT COURT.

Wednesday, December 2. (Before his Honor Judge Bathgate.) Joseph Wm. Hutchison v. JohnGrirashaw Procter and John Whitaker.—Plaintiff, who is the owner of the racing mare Spritsail, sought to recover from defendants, who, it was alleged, were in the habit of driving and miming, by their servants, a certain engine and trucks along a line of railway over the Anderson’s Bay road, the sum of 1.200, as damages sustained by the mare, through defendants’ negligence in failing to have proper and sufficient gates placed over the crossing, and in not employing efficient and pr >per servants to drive, manage, and conduct the engine fir the safety and protection of persons lawfully using the road. Mr Barton, instructed day Mr Kettle, appeared fur plaintiff, and Mr Hasgitt defended. ihe defence was : —That defendants were not in the habit of driving and running, by their servants, a certain engine and trucks along a certain line of railway over a level crossing a: d certain public road known as the Anderson’s Bay road ; that they were not, at the time of the commission of tjio grievances in the p'ainb note, the owner or occupiers of the line of railway therein referred to, and therefore it was no part of their duty to put and place proper and sufficient gates at i herald crossing, and to keep the gates properly oitiered and regulated, and to employ efficient ami proper servants to drive, manage, and conduct the said engine for the safety and protection of persons lawfully using the road ; that the racing mare Spritsail wa-*, i hurt or injured, hurt or injured through the negligence and carelessness of the plaintiff; and that the defendants never did injure or hurt the mare Mr Barton, in shortly stating the facts for plaintiff, said that his client had a valuable racing mare called Spritsail, and ihe groom was leading her along the Anderson’s Bay road on August 31, and v. hen not far from the railway crossing, which is not protected by gates, as it might to be by statute, a train consisting of an engine and trucks, came up, and the engine let out one of those horrible yells likely to excite a horse, causing the horse to break away from the man leading it, and it just happened that the seed of the horse equalled tnat of the train—(faught> r) —the two meetin ’, and Hie horse bring flung off the road into the ditch, and being seriously injured. The question was who was answerable—the defence not being that the horse was not injured or that there was no negligence, but that defendants were not answerable. He submitted that if be c uld show that there wai insufficient protect on to the public to what is required by law, and that the defendants had the use of the train, even though not the espjut>ive

use, then they would be answerable for any accident. The following evidence was given :

W. N r . Bbvr, District Eugimcr, said that lie bad charge < f the railway works in progress. Defendants were, ou the 31st August last, contractors under the Government, and had the right to use an engine and six trucks under the specific itious produced. The contract was for reclamation for the Dunedin station, and the material used was brought from Caversham. By Mr Haggi-t: Ho did not direct single gates to be placed at the crossing. William Conyers said that a train with trucks was drawn by one MCvloran for Pr-'clcr and Whittaker, the defendants, on 'he day on which tho accidentia quo-tion occurred. He had received the report produced ou the matter from Mr M ‘Moran. James E. F. Doyle-, (1 E., had the plan produced (that of the railway crossing onHhe Anderson’s Bay road) prepared. The scale was one chain to the inch. The distance from the toll-house to the railway crossing was about sixty yards. James M‘Gregor, horse-trainer, was in Captain Hutchison’s employ on the day of the accident. Ifo was on the Anderson’s Bay Hoad with Spritsail- between ten and eleven o’clock a.m. on that day. hj ading her and riding Mabei. When th y were near the- toll-bar the train came up and the enS'n 1 , gi v iner a loud screech or whistle, frightened the horses. Witness kept hold of the hers -s till n~ar the crossing, when r Spritsail broke away, and getting on the line one of the tiuck-s s'ruck her and threw her into a boggy ditch. Witness caught her when she came out. Tho engine was only abut twelve yards from the toll-gate when it scree ..-bed, and tho train wa; going at about ten or twelve miles per hour. Kept the rnarc for three w< <k<, but found her ntteily useless, and as she was amc had to turn her out- into a paddock. By Mr Haggibt : • mur diately after the accident 1 said (hat vbc mare was very lih.ly injured for life, and that there was probably ! 300 gone Hugo M ‘Outchcon, le-s e at the Anderson’s Bay toll bar, taid that on the day of the accident the last witness stopped ten or twelve yards after passing the toll-bar to let the train pass and to hide the horses. Witness would have acted likewise bini'-elf, and indeed had ficquently told people to slop Ihere for shelter. Ihe mare was throw i into the ditch. Witness hj d told Procter that the crossing was dangerous, as there were no gate':. Vv'eie there gates he would have more toil due*. Procter had sa’d the Government should provide the gat s. By Sir Haggitt: Several persons had nearly been run over by the tram at this cutting, owing principady to the engine woiat’ing. Amongst others, his Honor the Superintendent had a narrow escape about a we- k ago, after which ho admitted the necessity of gates.— (Laughter ) 'J he train had passed without whistling.

Robert Farquh arson, veterinary surgeon, attended Spritsail after the accident. She was very much bruised the whole length of the arm on the off side, which caused great swelling on the knee joint She had evident'y received a ver}' great shock. Fie attended the mare for a fortnight or three we ek?, and by his orders she was turned out, -nd is still incapable of any work whatever. Betore the accident heconsidered her honestly worth LSOO. b iug a tßst-class racing marej since, she had deteriorated at least one half.

Weir M‘Moran was diiving an engine wbh empty trucks for defendant from Dunedin to Caversham on the day of the accident. ('apt. Hutchison, the plaintiff, said that Spritsail cost him I 300 in. the month of •Tune, Prior to tin accident he looked upon her as worth 1 400 or ' oOf). He considered he should lose fully i 200 by the accident. It would be a very speculative purchase to buy her just now, and if now nut in the market 'she would probably fetch 1150 or L2OO. By Mr Hag.itt :Mr Reauy bought Sprit’ail, when sick, from Mr Redwood at the end of the March meeting, for 250 guineas, and witness bought it from Reauy. Mr Ha.-gitt s bmitted that plaintiff must be non-su ! te.l. It tv as perfectly clear that defendants had nothing whatever to do with this train ; that their role connection with the u e of the engine and the trucks was to pay the wages of the engine-driver and stoker ; and if it was to be" held that because persons were bound under contract to pay the wages of these men appointed by and servants of the Government, then he apprehended that liability by torts would be an unexceptionably awkward one for con’ractors and others. The line was a Government one, and the engine and trucks Government property, and the stoki r and enginedriver, though paid at the time of the accident by the defendants, were appointed by the Government engineer and railway manager for the Government. The only benefit the contractors bad was the use of the Government trucks without charge. (Left sitting.)