ACCIDENT TO WINCHMAN

Hawke's Bay Herald-Tribune, Issue 40, 3 March 1937, Page 12

ACCIDENT TO WINCHMAN

Appiication For New Trial ] DECISION RESERVED Decision was reserved by Mr Justice Ostler in tke Supreme Court at Napier y&sterday wken tke N.Z. Skippmg Co., Ltd„ applied for judgment for tke defendant, or alternatively a new trial in tke case in whieh a winckman of Napier, Regelado Rells, kad been awarded damages for injury caused wken working on the company's vessel Rangitane. Counsel for plaintiff and defendant eack quoted autkorities in tlie matter of reversal of judgraeut, and briefly reviewed tke evidence. Tke case was heara at tke Supreme Court last Tuesday, wken after a hearing wkick lasted until eigkt o'cloek in tke evening, tke jury awarded £1200 general damages and £110 16/- special damages out of tke £2000 .general damages claimed. Mr C. W. Nask appeared for tke plaintiff, and Mr H. B. Lusk for tke aefen.dant. Mr Lusk commenced tke. case by quoting autkorities for hik appiication, and continued to review tke evidence. Tkere was no direct evidence of any negligence on tke part of tke defendant. Tke proved facts were tkat plaintiff and, kis two fellow-workers kad been tke last to leave .tke winchhouse at nigkt and tke first to enter it iu tke morning. .Tkere waa a cold poutkerly blowing, and tke inferenoe was very muck stronger as to BeOls kaving closed tke window tkan tkat any member of tke skip 's complement kad done so. Counsel submitted tkat on tke proved facts tkere was not enougk evidence to disckarge tke plaintiff 's onus of proving kie case witkin tke bounds of probability. "Tk% plaintiff kimself, I suggest, absolutely eliminated tke > possibility that tkere was anyone but kimself wko. closed tke window," Mr Lusk continued. "He swore ke did not close tke window, but I subm.it tkat it was a question oi memory; and tkat it was not likely tkat ke would remember. He twice repeated in evidence tkat ke was not sure tkat ke kad not closed the window. Tkat is .tke ground upon wkick I nsk your Honour to enter judgment for tke defendant. If a new triai is ordered it may simply mean repeating tke dose. On tke evidence we skould kave a verdict for tke defendant, and if a jury finds for tke plaintiff again on tke evidence it would be a perverae verdict." ' Furtker autkorities in aupport of tke plaintiff 's case were quoted by Mr Nask. He contended tkat to justify fully 'a revensal of tke jury's verdict, tkat verdict would kave to be given again and again, and to be obviously perverse. Tke period between 10.30 and 9.30 tke following morning was unaccountod for, and it wa)s only xeasonable to suppose tkat some member of tke crew kad closed tke window. Rells' statements regarding the window were in a way corroborated by kis fellow-work-men in tke winchhouse. Tke demeanour of tke witness in tke box was such as to prove tkat kis confusion regarding tke question was more tke result of embarrassment or stage-frigkt tkan any uncertainness Tegarding tke facts. ^ His Honofur reserved kis decision, intimating tkat tkere was little possibility of a decision before he left for Wellington,