DISTRICT COURT.

Globe, Volume XXIII, Issue 2171, 9 February 1881, Page 2

DISTRICT COURT.

Tuesday, Febeuaey 8. [Before His Honor Judge Ward.] DUDLEY V BBIOSa.

Mr Stringer for plaintiff, Mr Joynt for defendant.

This was a claim of £IOO damages, suetained by plaintiff, who (as alleged) was injured by the defendant driving his trap against him (the plaintiff), who at the time was riding a bicycle. Mr Stringer having detailed the circumstances of the case, called Charles Edward Dudley, town clerk and surveyor of Kaiapoi, who deposed that on the 9th October, 1880, he was riding from Kaiapoi S’Ohristohuroh, in company with Mr J. H. Evans. On nearing Christchurch he was riding a-head of Mr Evans, about half-way between Papanui and Christchurch. Mot the tram which passed on his right from Christchurch. Kept on the same lino about four feet from the tram line on the left of the tramway. Having gone a hundred yards saw a horse’s head nearly touching his right knee. Before he could get out of the way found himself on the ground under a trap. The wheels wont over his right ankle, and the horse trod on the calf of his left leg. The horse was going at a fast trot—as fast as ho could. Witness saw the whip descend on the horse just before the accident. The trap went on, and the first thing he remembered Mr Evans mod another man were lifting him up. The trap pulled up about five yards ahead, and came buck to the scene of the accident. When ho got up ho could scarcely stand, and suffered from pain in his right elbow. Witness then noticed that Mr O. E. Briggs occupied the trap with a young lady. The horse stood quietly when Mr j Briggs pulled up and got out. He (Mr Briggs) said he was very sorry for the accident, adding, “ You can see it was an accident.” Witness, in reply, thought he said it was no accident, and recollected Mr Evans sajipg it was a most disgraceful thing to run a man down in that way. The carter White also said words to the effect that it did not look like an accident. When the collision occurred there was nothing on the road. Witness heard nothing till the torse came up. Did not hear Mr Briggs give any warning. Could not ride further to tho left owing to metal. Witness could not wolk, and Mr Briggs drove him into town. Witness sustained a sprained ankle, a bruise on the leg, and a cut on tho right elbow. The bicycle was injured beyond repair. Tho bicycle cost witness about £25. Witness had been inconvenienced by loss of the machine. He had to hire horses to ride. Mr Joynt submitted that the evidence was not admissablo. Notice ought to have been given of special damage. His Honor supported the contention.

Witness —I have not yet recovered. I cannot run. When driven into town I sought medical advice. Cross-examined by Mr Joynt—l waa on the loft hand side of the tramway during the whole time—-at no time between the tram rails. I was travelling between six end seven miles an hour at the time. My friend and I wore going about the same pace. I was travelling quite straight, not zig-zag. Bicycles are subject to the same laws as ordinary vehicles. I was 150 yards from the tram cars when the accident occurred. The tram did make a sufficient noise to drown the sound of the trap wheels ; they were pulling up and putting on the brake. I believe the right treadle of my bicycle must have caught in the spokes of the near fora wheel of the trap. That would have thrown me under the trap. My ankle waa badly sprained. I distinctly state I was not riding between the rails when the accident took place. I did say I could not ride closer to the footpath for new shingle. Mr Briggs’s proper side to pass me was on the right. 1 should ssy his trap was going from nine to ten miles an hour. I could not exactly say. The collision broke the axle of the bicycle, which could not be replaced in the colony, being of case-hardened steel. I believe one of the wheels went over part of the bicycle. White was carting boulders for the City Council. There was nothing ahead of me on the road at the time. lam certain that two wheels wont over my ankle, I was lying diagonally across the tram, having been thrown forward under the horse’s feet. Mr Briggs ought to have palled to the right-hand side, and ho did not do so. Ido not say that he pulled on to me. I should not like to accuse any man of deliberately doing so. I am a practised bicycle rider. I could have got oft had I seen the trap coming. 1 could also have spurted ahead, but had not time. Re-examined—l could put on a short spurt of twenty miles an hour on a road similar to that I was travelling on, I never travel across the tram lino if I can help it, as the wheel of the machine is apt to get into the groove, Alex. Duncan, carter, recollected the day in question. He was on Fapanui road, and Mr Dudley and another gentleman passed him. Saw the accident. Ho was on the loft of the road coming to town. The bicyclists were also on the loft. Witness was about five to eight chains distant from mo. Saw the collision. Mr Briggs ran into Mr Dudley with his four-wheeler, Mr Dudley kept on the left of the road ; ho did not cross the tramway. The tramcar was about 100 yards away. There was nothing on the road at the time. Mr Dudley was thrown forward, and the carriage passed over him. The other rider had to go on to the footpath to get clear of Mr Briggs’ trap, and then got off. Mr Briggs was driving at a good pace, between a trot and a gallop. He was using the whip* He went on about 10 to 15 chains after the collision, and then came back. The hoise seemed qaiet. Gross-examined by Mr Joynt—The tram oars had not passed me when the accident occurred—they ware abreast of me, and Mr Briggs passed me first. He might have been three chains ahead of me when the tram cars came up. The bicycle riders, being close together, were about five chains ahead of Mr Briggs. There were stones along the road between the tramway and the footway - they might be about a chain long. It was between Innes’ read and Fapanui that the accident occurred, and it was between those points that Mr Evans got on to tho footpath, the two events happening close together. I kept my eyes on the bicycles the whole time, because I like to look at those machines going along. I should have seen them going on to the tramway, and should have seen them turn down a road, but they did neither. Tho stones referred to were lying in a heap. This was about where the accident occurred. Tho plaintiff fell forward, with his feet towards the rails, and his bead towards the left footpath. The carriage wsnt over him, but I could not say what part of his body the wheels passed over. Dr Ovenden, who attended Mr Dudley, described the injuries ho had received through tho accident.

Walter Broadley said ho was a duly-quali-fied engineer and mechanic. Had been in the habit of repairing bicycles in this colony for five years. He was colled in to examine Mr Dudley’s bicycle, and found it badly injured, the backbone being damaged. The machine was now good for nothing as a bicycle—it was beyond repair. I have made bicycles in Ohristohuroh, but none such as that of Mr Dudley. Past experience had shown him that that class of bicycle could not be repaired here. The value of it was about £25.

Mr Evans, a compactor, who was riding in company with plaintiff on the day in question, described what he saw of the accident. As they were nearing Innos’ road ho heard a trap coming up at a fast pace, and some one •ing out, “ Get out of the road, or I’ll drive over you,” or something to that effect. Ho increased his pace, but shortly after the trap came up, and he heard some one say, “ If you don’t get out of the way I shall have to drivo over jon.” I then pulled into the road and dismounted. Mr Briggs passed, and I then remounted. After getting up, I looked ahead to see how Dudley was getting ou, and was surprised to see him on the ground, and Mr Briggs pulling up his trap about fifty yards beyond. He came up, and found Dudley almost unoomcious. Mr Briggs coming up, Z said to him, it was a disgraceful piece of business, first to threaten me on two coca* sions, and then run over my friend. He denied that he threatened me, and said it was accidental. I told him I did not believe it was, and pointed out the track made by Dudley’s bicycle on the road, which was clearly visible, running parallel with the tram rail. The track was well defined, the road being dusty. I value the bicycle at about £2O.

Cross-examined: The accident occurred between Innes’ road and Christchurch, more in the direction of Christchurch than Fapanui. I did not not turn down Innes' road when I stopped. I rode over the rough atones. I did not go on the footpath. I did not see the accident. The track of Dudley's bicycle was between 2ft and 3ft of the tram rail. I did not ride up to the spot on that aide of the road. Did not know Mr Briggs at that time. The horses ore getting used to bicycles. Be-examined —It is not safe for a bicycle to ride over rough stones as 1 did. Robert White, a carter, saw the accident. Mr Briggs pulled up alongside of him, and was nearly running into his cart. He pulled up on the wrong side, and then pulled oyer to the right side—this to the best of witness’s recollection. Did not see the accident, hot saw Dudley on the ground a moment afterwards. Mr Briggs went on ahead, and returned in a few minutes. Witness said to him, “You seem to hare done this intentionally.” He made no reply. Cross-examined—The accident happened on the Christchurch s'de of the road from Innes’ road. The tram cars passed between Mr Briggs’ trap and my cart, and the|bicycles were about 100 yards ahead. This concluded the case for the plaintiff. The Court then adjourned till 11 o’clock this morning.

Wednesday, Febuuaby 9. DUDLEY T BBIdOa.

X'ae bearing of this case was resumed. Mr Joynt opened tho case for the defen* dant, and called Charles Edward Briggs, who being sworn, deposed—l am manager of the Fbbsb newspaper. I remember 9th October. I was driving along Papanui road in a four-wheel dogcart with my daughter. Eemember seeing Mr Dudley on a bicycle on that occasion. I was driving gently t®wards Christchurch. Borne distance on tho Papanui sido of Innes’ road I saw Dudley and his friend on bicycles, in front of them two drays laden with bonedust. They passed the drays. I afterwards passed them near Innes’ rood. As I approached this road the tram was coming from Christchurch. I pulled to tho left of tho road and found a short distance in front of mo a person on a bicycle—Mr Evans. I coo’ed to him, os I could not pass under the circumstances, He turned round and looked, but took no notice. He continued in the same lino. I then came close upon him and called out, “ If you will not got out of tho way I cannot help running over you.” I never threatened to run him down. Mr Evans then turned down Innes’ road. I am positive of that. I only spoke to him once in the way last stated. When I passed the tram 1 pulled on to the crown of tho road, Mr Dudley being some distance ahead, going in between the tram lines in a serpentine motion. As I overtook him I pulled to the right of tho rood, my near wheels being on the off side tram rail, as nearly as I can remember. I saw Mr Dudley as we passed, and thought we had got passed all right, when I suddenly hoard a noise behind mo, and looking back, saw Mr Dudley lying on tho ground. I at once pulled up. I am confident that ho was reduced to that position by tho near

hind axle of my trap catching tho crank of ; his bicycle. The fore part of the carriage passed him clear. Mr Dudley did not fall under the wheels. He could not fall between the wheels, there being no room to do so When I first saw him ha was lying across the tram rails, with the greater part of his body on the road, the bicycle lying alongside. After the accident I pulled up. I had not proceeded more than the length of the Hall before returning. _ When I came up Mr Dudley was sitting on the footpath on the left hand side of tho road. He appeared to be in pain. X went up, and said, “I am awfully sorry for this thing, Dudley ; are you much hurt ?” or something to that effect. He said ho waa hurt in the ankle and shoulder. There was something said about its being an accident on both sides. Dudley did not say anything on the subject. There was plenty of room for me to pass in safety had Mr Dudley kept in a straight line—thore was a space of 2ft. I was driving at the rate of seven to eight miles an hour. I was not flogging the horse. I had not used the whip to her that day. My horso was not particularly restive, but was perhaps a little frightened of the grasshopper machines in front. I remember passing the drays. They occupied the crown of the road. I passed round them to the right. They were close together, not five chains apart. If one of them eaid I nearly collided with him ho says what is untrue. After the accident Mr Evans was very excited. He said I had caused the accident wilfully, and that if he were Dudley he would bring an action against mo. His language was so violent that I turned away to avoid answering him. I said Dudley was not riding on his proper side, and Evans called me a liar. A dray laden with sheepskins was coming from Christchurch at about the time, and the broken bicycle was placed on it and taken to Kaiapoi. I brought Dudley to town, and dropped him at the corner of the Bank of New Zealand. When ho was going away, Dudley, after thanking me for the ride, said, “ I am very sorry for this thing ; but I am in good form, and shall soon get over it. The thing I principally regret is the injury done to the machine, which cost me £3O in London, and I cannot replace it.” Gross-examined by Mr Stringer—l am sure Evans turned down Innes’ road. I did not look round after I passed Evans. I think I was with Mr Dudley before Mr Evans, who came up leading his bicycle, Dudley was by himself when I came up. He hud crawled to the footpath himself as nearly as I can remember. The draymen afterwards came up. The distance between the tramrails is, I believe, about 4ft. Mr Dudley was riding in the centre. lam almost sure my wheel was a little outside of the tram rail. The nave of tho oorriage wheels project a few inches from the vehicle. I left plenty of room. I did not call out to Dudley. 1 considered that he would hear the noise of my wheels. In any case be should have kept to bis own side ; a man of ordinary prudence would have done so. The accident occurred nearer to Matson’s gate than Joyce’s nursery. 1 remember a carter coming up. Didn’t hear what ho said, I might have been a little agitated. lam certain that none of my wheels passed over Mr Dudley or his bicycle. The injuries to Mr Dudley were caused by his failing to the ground. The only contact that took place was that which I have already described in my evidence in chief. I did not offer to give £5 towards the repair of the bioyole. 1 said 1 would sooner have given £5 than that the occurrence should have taken place. I said I would see if it could be repaired at John Anderson’s. I said nothing about the cost. Nothing was said about who should pay the coat—it never entered my mind. By the Court—There was ample space for a vehicle to pass between the tram rail and the footpath. To Mr Joynt—The noise made by the tram cars was not audible. They were not stopping at the time of the collision ; they were proceeding towards Fapanui, having started again.

Helen Mary Briggs deposed—l am daughter of the last witness. I was sitting in the carriage with him on the day of the accident. Wo came up with the bicycles near Innis road, the gentleman on the bicycle being in front. My father cooe’d to him. He turned round, but proceeded in the same way. My father again addressed him as they came up with him, and said, “If you don’t get out of the way I shall be obliged to run over you. The gentleman on the bicycle turned down Innis’ road. I am sure of that. Wo next passed the tramcar. We were on the crown of the road. In front of ns was Mr Dudley on a bicycle, travelling slowly in the centre of the road. lam mailing no mistake. I cannot say whether he was going in a straight line. My father, as we approached Mr Dudley, went off the crown to the righthand side of the road. I remember the accident. The back of our trap struck the bicycle. I was sitting on the left nearest the bicycle. The bicycle was certainly behind me when the contact occurred. Mr Dudley did not fall in front of me. I looked back to see where ho was. The upper part of his body was on the rail, and bis legs lying to the left of the road. The bicycle was lying across the rail. I cannot say whether any of the wheels of our trap passed over Mr Dudley or his bicycle. My father only spoke to Brans once. He did not say, “ If you do not get out of my way I will run you down,” I do not remember whether the tram was making a noise when the accident occurred. We came up to Mr Dudley (who was then getting on the lefthand footpath) before Mr Evans came up. I heard nothing pais between my father and Mr Dudley as to its being an accident.

Cross-examined—Before wo came up with the tram the bicyclists were on the left side. They afterwards took the crown of the road. I did not see Mr Dudley cross to the crown of the road. My father kept to the crown of the road till he got near V r Dudley.

G. B. Horatio Nelson—l am a clerk in the employ of the Fbbss Company. I was in a tramcar on the Fapanui rood on the day of the accident. Saw the accident. Saw Mr Briggs from the tram at Innes’ road. I saw two men on bicycles. Heard Mr Briggs say something to the first of these. Do not know what he said, but the bicycleist turned up Innes’ road. I watched the other (Mr Dudley), who was riding slowly, as if waiting for his friend. Ha was “ wabbling ” between the rails—going in and out. Saw Mr Briggs come up with Mr Dudley. Ho was slightly on the left-hand side before approaching, and then shot across to the rigbthand side. My attention was then distracted for a few seconds, and when I next looked Mr Dudley was lying in the road, and the trap was a short distance ahead. Dudley was lying across the rails. Was not in a position to say how the accident occurred. The bicycle was lying between the railii, Mr Briggs was ahead on his proper side. He was in the act of turning round. Cross-examined—When we came up on the tram, there was not sufficient room for Mr Briggs to pass between the tram-car and Mr Evans. There might have been, under ordinary circumstances, but not as the bicycle was going. Be-examined—At the time of the collision the tramcar was about 250 yards from the scene of the accident. The tram was starting on her way to Fapanui. She was not making much noise.

Hugh McGregor, who was a passenger on the tram on the day in question, said—Mr Evans got off his bioyole at the end of Innes’ rood. Dudley was compelled to go off the side of the road owing to the coarse gravel, and passed to the crown of the road. He was travelling a little wild—that is, going from line to line. Saw Mr Briggs come up with Mr Dudley. Saw Mr Dudley fall. He did not fall in front of Briggs’ carriage. The carriage was in front of him when he foil. Ho and the bicycle both fell together. Mr Dudley struggled a little to disengage himself from his bicycle as he felt himself falling. The wheels of Mr Briggs’ carrisgo did not pass oyer tho plaintiff.

Cross-examined—The impression conveyed to my mied by witnessing the accident was that Dudley’s bicycle got into the groove of the tram rail, and that in striving to extricate himself ho fell. After the accident, Mr Dudley got where he fell, until Mr Briggs came up and helped him. He fell partly on his seat, and endeavoured to throw himself contrary to the way he fell. The tram was near Norman’s lane when the accident occurred. As Briggs came up, Dudley was limping towards the footpath. This was the case for the defence.

Learned counsel on both sides then addressed the Court.

His Honor said ho was unable to make up his mind as to tho facts ; tho evidence being so very contradictory, and he must believe that both Mr Briggs and Mr Evans believed they wore stating facts. It appeared to him that it was a case for a nonsuit, and one which should have come before a jury. A nonsuit was accordingly recorded, without coats.

NALDBR V BOBBBTB. In this case judgment had boon reserved till the end of tho list. Mr Harper appeared to represent the plaintiff. His Honor gave judgment for £2OO and costs. The Court then adjourned.