DISTRICT COURT.

Evening Star, Issue 4214, 29 August 1876, Page 2

DISTRICT COURT.

Tuesday, August 29. (Before His Honor Judge Bathgate and a Jury of four.)

Hyndman v. Smith.—Claim, L2ofy damages claimed for injuries inflicted on plaintiff through defendant carelessly and negligently driving a coach in which plaintiff was a passenger from Dunedin to Waikouaiti in Decumber last. Mr Macassey appeared for plaintiff; Mr A. Bathgate for defendant. The defendant relied on the following grounds for his defence:—(i) H« pleaded not guilty; (2) all the evidence would go to prove that the injuries inflicted on plaintiff were caused by his own negligence and improper conduct. Mr Macassey opened the case at some length, the purport of his remarks being that he would adduce evidence to prove (1) that the horse which caused the accident in this instance was not in a fit condition at the time to be driven in a passenger coach; (2) .that defendant was careless in the management of his horses; (3) that defendant was not competent to take care of a passenger coach; (4) that when plaintiff jumped off the coach he was compelled, to do so through defendant's carelessness. John Thomas Chaplin, coach proprietor, said he had had a great deal to do with the carriage of persons antl the management of horses. He would not employ defendant as a driver, for he was in-the habit of driving rather too fast to please witness? and did not take care of the horses.

Alexander M'Donald, livery-stable keeper, said he would not care about entrusting defendant with a passenger coach. Defendant did not keep his horses well in hand when driving, and carried his reins negligently. Witness remembered defendant having an accident ten or eleven years ago when coming home from the Silverraces. Cross-examined: The road at the time was very crowded. Witness often saw defendant driving and had to get out of his way.

Hugh Gourley, undertaker, said be had had a good deal to do with horses and driving. He would not like to entrust a coach with defendant, because of his general style of driving.—Cross-examined: A man may not have a finished Btyle of driving but yet may be a safe driver.

James Hinchell, master builder, said he was a passenger by defendant's coach on Christmas Day last. Defendant was driving, and had four horres in the team. Witness was on the top of the coach with other passengers, and the inside was crammed full. After changing horses at Kilmog the coach had gone but four hundred yards before it upset. One of the horses became restive and did not go free. Defendant appeared a little excited and confused, and the reins became mixed and would not work. Defendant next fell over the coach, taking some of the reins with him. He fell as if he had been stooping to pick up some of the reins. The horse had been jibbing and backing out of its collar, and half an hour after the accident witness noticed that Its shoulders were so core that it should not have been in the coach. When the defendant fell off Hyndman jumped' off, and the horses kept on going up the hill, but not very fast, until they came to a fence, a little off the road. On meeting this they turned sharp round on to the road and upset the coach. Witness dropped off unhurt, but a passenger named Stewart was a little hurt. Hyndman was injured most of all. All the passengers on the back of the coach sprang off at about the same time as Hyndman. Witness had not noticed defendant's driving i>efore the restive horee was put in. The norse was a bay. Cross-examined: The coach was not stopped to pick up anyone after leaving Kilmog. A shepherd had jumped on to the step of the coach soon after starting, and he got off before defen-

~ daub fell off. Hyndman did not jump off before defendant fell off. A good many of the passengers went on with the coach after the accident, John Lynch, groom, said he had been with horses for forty-five years, but knew nothing about driving. About a week before the accident witness went to Waikouaiti by defendant's coach and met with a similar accident, the coach being capsized. The near leader was a dark bay horse, with white hairs, and it was very restive and caused the accident. If this horse had been driven for the week up to Christmas Day it still would not have been safe to drive in the coach. Witness was much hurt, and he sued Smith for LSO damages. However, he settled the case out of Court on Smith paying him Lls. Reerammed : Witness had been laid up in the Hospital and out of it for three months.

George Hyndman, working jeweller, said j he had been five years at the trade, and was j at the time of the accident earning L 3 a-week at Mr Young's establishment. He was on. the box seat of defendant's coach on his Vay to Waikouaiti on Christmas Day. After changing horses at Kilmog, as soon as the groom let go of their heads, the off leader commenced to plunge and jib. Mr John Douglas, who was also on the box seat, told defendant to use the whip. Witness was watching the horses, and did not see what caused defendant to fall off the coach, but just saw him disappearing. 'Three reins were left lying on the splash board and one was hanging down. After waiting a few moments witness saw the horses making towards the side of the road, on which there was a gully, and to Save himself he jumped off, and in falling broke his leg. Witness saw the coach go on about a hundred yards and then go over the bank. Defendant then came running up, shouting out, "I'm killed—l'm dead. I shall never drive another coach." Witness was taken to the Kilmog Hotel, and then in an express to Dunedin. He was laid up in the Hopital for ten weeks, and was unable to work for four months. He thereby lost L 52 in wages, and had paid the Hospital authorities L 9. Witness would not have taken L2OO to go through the whole affair.- Cross-examined: Witness never said his injuries were his own fault for jumping off, nor that he would give defendant a certificate to the effect that he (defendant) was blameless. Witness never told one George Wright anything of the sort. Witness was not nervous on the day of the accident, nor did he say he was expecting something of the sort. He might have remarked that it was like his luck to have met with the aocident, as anybody else would do. Witness was not frightened at the horses plunging, having been accustomed to break in horses himself.

Mr A. Bathgate addressed the Court for the defence, and called the following witnesses : fy Thomas M. Smith, defendant, said he was a coach proprietor. On the day of the accident, on starting from the Kilmog Hotel, plaintiff was nearly left behind, and witness had to pull up for him. After going a little witness saw plaintiff, without any apparent cause, jump off the coach. Witness immediately after fell over into the road on his head. There was no horse in the team with a sore neck. The plaintiff in jumping off put his foot on the break on the near side, and witness believed this caused the accident. The horse that shied the week pre vious, when Lynch was hurt, had not been used since. When witness called on plaintiff at the Hospital, th« latter said, " I was a great fool to jump—l can see it well now." Cross-examined : Witness would not have paid Lynch any money if the latter had not sect him a lawyer's letter. Witness came into collision with Dr. Borrows's trap two years ago in Dunedin and had to pay L4O and coats* He never authorised Mr E. Pritchard to offer plaintiff LIS or any sum. He did not consider Mr Chaplin a judge of driving, as Mr Chaplin was not a goed driver himself, and once upset a whole lot of passengers near the Criterion Hotel. David Dunbar, storekeeper at Hampden, said he used to keep the Kilmog Hotel. He Baw plaintiff drop off the coach,. and on going up found defendant further along the road. When lying at the hotel plaintiff often remarked that the accident was owing to his own carelessness injeaping off. James Dunbar and George Williams, grooms, said they knew the horses well, and they were quiet. None of them had sore shoulders.

George Wright, saddler, and John Sandiman, draper's assistant, said they had often conversed with plaintiff about the accident. At such times plaintiff. used to say he jumped off the coach—but that was all. The jury returned a verdict for plaintiff for LIOO, with costs.