Fending S.M. Court

Feilding Star, Volume XIX, Issue 8, 9 July 1897, Page 2

Fending S.M. Court

Thursday, july 8.

(Bofore A. Greenfield, S.M. The following caeca were dealt with aftt-r we went, 10 press yestordav : — EiUwirii Gie «n, nun^er ot ihe C"l n ists Laud nnd Lonn Corporation, y. C. A Leicester, of Waitnni ; elium £15. Mr Richmond for plaintiff and Mr Sanrti l»n<is i.. i iltfiiidmiti. Iv ibi.- i;-. c ;l,' j plamuil toughi io icOuver ihe turn ot £15 damages allied to be sustained by reason of *he defendaot permitting the driving | j and managing ot n horse nnd vehicle fo negligently aud unskilfully in a public highway, viz., in Cimden street, Fiilil ing, that the same were forced against a horse belonging to the plaintiff whereby the horse was injured and had subsequently to be destroyed by the plaintiff owing to the injuries then received. In support of the claim, Charles E. Armstrong deposed : He was a Civil Servant employed by the general Government; had a collision with defendant's vehicle on the evening of April 23rd, in lainden street; produced a sketch plan of the locality which he prepared about a month ago ; no one wa9 with witness at the time ; he was driving towards Mr Holmes' residence ; the horse he was driving belonged to Mr Giesen ; was driving cm his left hand side of tho road, and one wheel was on the grass when the accident happened ; saw two men in a dog cart as he was driving al"Dg ; they were going iv an opposite direction to witness ; he was driving slow having driven from Palmerston ; those in the dog-cart were travelling fast ; they were on the same side of the road as witness ; they did not shift when they saw witness coming ; they had just tamed Mr Goodbehere's corner when be first saw them coming, being about nine chains away ; was expecting them to tarn off and when he saw a collision was inevitable be turned suddenly to his left on to the grass ; as soon as witness turned off on to the grass they, also, went off in the same direction ; witness' borse was struck, by their left band shaft, behind his horse's " off " shoulder ; after the collision witness' horse jumped and freed their abaft, the defeudant's trap passing about fifteen feet before stopping ; got out of bis trap and Mr Leicester, ! also, got out ; the wound was bleed ing but they did not think it was so serious as it turned out to be; be then led the borse on to the metal ; Leicester, who was accompanied by J. Northcott, saw witness home with the horse ; almost immediately after the collision Foster came up ; did not know Leicester and asked him his name, which ho (defendant) gave with his address ; took the mare down to his house and " fixed it np" as well as he could ; Leicester asked what the value of the horse was and witness said about £10, but was not then aware it was one of a pair ; notified Mr W. B. Giesen next morning that the accident bad occurred ; atteuded to the horse uutil he saw the wound was more serious than anticipated when he called in Mr Norman to attend the horse ; was present when the mare died ; this was about four days after the accident; the horse was destroyed because it was in frightful agony ; Mr Day (chemist) destroyed the borse at witness' request ; the wound was almost square iv. Gross examined : Arrived in Feilding at about 5 30, having taken four boars to get to Feilding from Palmerston ; the horse was cot fresh when she arrived here ; it was a little after six when he arrived in Garuden street ; wonld not swear it was not after sunset: the sun was not visible ; it was getting dusk ; the collision occurred about four chains from Mr Holmes' bouse on the church side ; Nortbcott drew witness' attention to the fact that he (witness) was on the wrong side of the road ; witness denied this at the time ; Northcott did not point out any wheel markß to prove that witness wai on the wrong eide ; after they had taken the horse home mention wai made of the wheel marks by Lei' cester, who suggested that they should go back and look at the wheel marks ; was agreeable to do so after they had covered the horse and dreßSed the wound ; did not remark that there was not much use going back ; Northcott opposed going betok, and did not say it would be neces sary to go back at once or the wheel marks would probably be covered by other wheel marks ; was not prepared to say what Nortbcott did with his horse after the collision : had no lights to his vehicle although it was after sunset ; neither bad the others ; was an experienced driver ; it was possible for him (witness) to have avoided the accident by getting well on to the grass, but he expected them to turn to their proper Bide ; Neither Northcott nor Leicester suggested that witness should take the borse to Mr Murtagh for treatment; was not experi enced in treating horses ; Northcott did not advise witness to put flour or salt in the wound. Jas. Norman deposed : Had examined tbe horse on April '25th when it was dying from inflammation ; tbe wound was about 2J inches deep aud almost square on ; the back edge of the shoulder blade was fractured ; believed the borse could have been kept alive, but she would never have been of much value ; it would have been possible to have saved the horse bad it been attended to iv time ; thought there was internal bleeding but this could have been prevented if attended to in time ; very likely the result of the accident would have reduced her value one third. Cross-examined : It was his opinion that if proper care had been exercised tbe borse might have got wellDavid Foster deposed : Remembered seeing Leicester in Cambden street on April 23rd, at a little after five o'clock ; Baw Armstrong who was a little past tbe English Church driving towards Man Chester street ; Armstrong was driving at a slow trot ; saw Leicester and Northcott who were travelling at the rate of about Dine miles an hour ; Leicester and Northcott were in tbe centre of tbe road when witness noticed them ; Armstrong was on the left hand side of the road ; Armstrong pulled off to his left hand side, and when near Leicester's trap Nortbcott, wbo was driving, pulled bis horse sharp to his right, tbe "near" shaft of Leicester's trap entered behind the shoulder of Armstrong's horse, forcing her nearly around in the opposite direction ; Leicester said " Come on, we'll doctor the man's borse for him " ; this was all be beard ; Armstrong's left wheel was not more than two or three feet off the grass when tbe collision occurred. To the Bench : Did not see Armstrong do anything to avoid the accident ; tho horses' heads ware almost meeting when Mr Northoott pulled off sharp ; the wheels of the traps might have collided even if Northoott bad pulled a little to tbe proper side. To Mr Richmond : Was about ten yards behind Armstrong when the collision occurred ; did not take much notice as to whether Armstrong had given plenty of room to pass. John F. Day, chemist, deposed : lie was called in to attend a mare belonging to Mr Giesen ; the horse was almost dead when witness saw her ; he recommended poisoning the mare en she was in great pain ; administered the poison and saw the mare die. Walter B. Giesen deposed : He was an accountant in tbe Colonists Land Lo <n Corporation ofilce, Feilding ; the borse belonged to the Corpora ion ; lent the ! horse to Armstrong aud on the morning after the accident saw tbe mare ; he advised Mr Armstrong what to do to the wound and if it did not improve to get the services of a veterinary surgeon;

sung< su-ii jiut'iug tliu mai'e iuio a .liable, ijut it was impossible 'or hi ; r to walk away from where she was ; the aiaro was well covered up and cartd for from tje Saturday rnorniug after the accident; this mare was one of a pair wliicb wire valued at i3O ; conld have pot at least £10 for this horse separ;itHv. but with another briny a in ifni |>air bli« was ruorr valuable ; au offer of A'3o had been made for the pair by Mr ; was (itviectly cent's in r-vf-ryH ; nr -"vl beeu di,m- which could lime doi l don. 1 to save tbu mare. Cross oxamiuedby Mr Sandilaads : Did not think the wouud was sufficiently serious to call in an expert ; did not agree witb Mr Norman when he said the horse could have beeu saved bad it been better treated ; the night of the accident was a frosty night and the borse had been left out all that night, bat was covered. Robert Somerville deposed : Knew the mare in question, wbioh v-as one of a pair ; offered £30 for the pair last February, provided they were sound Mid in good order, suitable fo show to a customer ; saw the horses, and their legs were a bit puffed. Cross- examined : Taking them separately in February last, their market value would be about £3 10s each ; the mare which was killed must be eleven or twelve years old. For the defenceJohn Nortbcott deposed : On April 23 he left Hastie's hotel stables, Feilding, between 530 and 6 o'clock in a dog cart in company with Mr Leicester; on turning the corner into Camden street was trotting along well on the near side wheel track ; witness saw a vehicle comiDg towards him " fair on " the same track on which witness was going, thinking every moment the person driving towards him would pall off the road, he did not at first attempt to pull to bis w ongside; knowing that owing to a ditch he conld not pall off on to the side of the road on his " near " side, the last moment he had to opare he pulled bis borse a little to the right side to avoid a collision fair in the face ; as soon as witness did this Armstrong tnrned bis horse's bead in the same direction and the horses came together, going across the road together ; bad he not pulled aside as bo did the trapß would have collided and the accident might have been more serious ; they walked down with Armstrong to bis own place ; told Armstrong at the time that be (Armstrong) was on bis wrong side and witness pointed this oat from the wheel tracks ; Armstrong did not deny this ; wuen witness left Armstrong he told him t<<at if the wound started bleeding again to put flour and salt on, but to go and see Mr Murtagh who could dress the wound. Cross-examined : Witness' horse waa on the near wheel track before the collision, within half a chain of the ditch mentioned. To the Bench : Did steady his bone when he saw the person coming in the opposite direction. Re>esamined : Did not believe Armstrong saw witness uutil it was too late to avoid the collision. A. Leicester deposed : He was a farmer residing at Waituna and was in company with Northcott on the evening on which the collision occurred. His evidence supported that of Mr Northcott. Win. McDougall also gave evidence. For the defence Mr Sandiknda asked for a nonsuit on the grounds that the action was wrongly brought. There was no evidence to show that the Company was incorporated neither was there any proct that the plaintiff bad authority to bring the action as agent for the company, therefore the action conld not be brought in the way in which it was. Mr Richmond replied to the points raised by Mr Sandilands as to tfat ability of plaintiff to sue ac agent for the Company. His Worship ruled that it was necessary to produce proof of incorporation of the Company. There was nothing to show the plaintiff, E. Giesen, waa entitled to sue, the plaintiff was, therefore, nonsuited. Witnesses' expenses £2 6s 3d, costs 4s and solicitor's fee 21s, wsre allowed the defendant The evidence of the defendant iv the case Cummins, Sharpe and Co. v. Geo. Flyger was taken. The claim was for £2 2a 4d for grods supplied. The defendant denied the claim. H. Flyger also gave evidence for the defence.