DISTRICT COURT.

Evening Star, Issue 3682, 10 December 1874, Page 3

DISTRICT COURT.

Thursday, December 10. (Before hia Honor Judge Bathgate.) J. W. Hutchison v. Proctor and Wl.it taker. —>n this case, a claim of L2()0, as damages done to defendant’s racing mite Snritsail, his H nor gave judgment as fol lows : The plaintiff seeks to recover damages for an injury to a racing mare belonging to him, in consequence of |the mare being knocked, by a railway train in use and under the control of the defendants, into the ditch at the side of the level crossing at Anderson’s Bay road. The mare was being led homo by the gro,.m on the day mentioned. As he approached the cross ing he s-'W the train, an engine pushing six waggons before it, coming from Dunedin, He stood at the toll-house, sixty yards from the crossing, with the purpose of remaining there till the train had passed the ciossing. A hen the mare saw the head of the train pass the toll house, she took fright and bolted off in the direction of Anderson’s Bay. When she came on to the crossing one of the leading v/aggi us caught her, and she was driven into the ditch at the side, where she was hurt, in addition to any injury received by the impact of the train, by falling on a cross beam in the ditch, which went between her fore legs. There were no gates at the crossing, or any barrier to prevent the mare from entering upon it. The gist of the action is that there was a breach of statutory duty on the part of the defendants, and a consequent damage to the plaintiff, and the plaint is so laid. The first point of inquiry is the existence of the alleged duty. By the Immigration and Public Works Act, 1870, section 73, certain sections of the I Act of the Imperial Parliament called “The Railway Clauses Consolidation Act, 1845,” are incorporated therewith. Section 47 of the Railway Clauses Consolidation Act is one of those incorporated. It provides, “If the railway cross any turnpike road or public carriage road on a level, the company shall erect and at all times maintain good and sufficient gates across such road, on each side of the railway where the same shall communicate therewith, and shall employ proper persons to open and shut such gates, Ac.” By the 73rd section of the Immigration and Public Werks Act, 1870, the words “the company” in the section of the Imperial Act quoted are taken to mean “the Governor or any lessee of the Governor, and any person or company to whom the right to co*-struct or maintain any such railway is granted by the Governor.” The defendants do not come within any of the classes specified as being included in the words “the company,” and consequently there isu» statutory duty laid upon them toerectnnd maintain gates, and discharge the duties imposed by the statute on other parties. There being no statutory duty required on the part of the defendants, there can be no breach and consequent damage for which they are liable. The further point was raised that the defendants in the use of the train were guilty of negligence in not using every precaution in their power. It appears that the mare did not start away until she saw the train coming past the toll-house. There is some discrepancy as to the place where the whistle was sounded, but the driver and fireman, who have the best means of knowledge, stated the whistle was sounded opposite the kerosene bond, the usual place. At any rate it was not the whistle but the sight of the train which frightened the mare. The train was being cautiously driven at a slow rate. The best proof of that is the fact that the mare was not killed by the shock, but cn’y knocked into the ditch, and the severest injury seems to have been received in the ditch. The train was also brought to an immediate stand still. While I do not find there was any contributory negligence on the part of the plaintiff’s groom, I am of opinion that the defendants were not guilty of negligence, and that so far as they are concerned they exercised any right they had to the use of the train reasonably and with due care. Judgment for the defendants, with costs. Best v. Larnach.—His Honor, in giving judgment in this case, a claim of Ll5O, brought by p aintiff. a spinster, of Port Chalmers, for damages done to her and loss of time by a bite received from a savage dog, the property of defendant, said : Having considered the point reserved in this case, I am of opinion that it is unnecessary to decide whether the enactment in the Dog Nuisance Ordinance, 1862, section 8, is null and void as being ultra vires of the Provincial Council; because that section cannot be read as going beyond or further than the Injuries by Dogs Act, 1865, section 2, whereby the relaxation of the rule that it is necessary to show the owner’s knowledge of a previous mischievous propensity in a dog biting a person is restricted to the case of a dog biting a person “in a public place.” If it be contended that the Ordinance applies to the present case, where the injury was sustained in a private room, that is going beyond the Act of 1865, and the Ordinance being in that view clearly repugnant to the said Act, as well as inconsistent therewith, must be held as repealed by section 3 of the said Act. The plaintiff will be non-suited, with costa. Mr MVKeay, for defendant, thought costs should not be allowed,—Mr Hapgitt contended that they should be. If plaintiff was wrongly advised, defendant should not he taxed with costs.—His Worship could not see how he was to refu-e costs. He only intended to a'low the smallest scale.—Mr M‘Keay : I feel your Worship has no power to refuse costs, but I think we shall have to appeal.