RESERVED JUDGMENT

Hokitika Guardian, 24 February 1923, Page 3

RESERVED JUDGMENT

j The following is tli ■ reserved judg- , incut delivered by Mr Mcldriini S.M. { at yesterday's sitting; MARSHALL Y. BAIRD. (February 12th. 1923. Before A\ . Meldimin Esq.. S.M.. at Hokitika,. Plaintiff claims £II.CI damage; for the loss of a bull on alternative causes of action, viz: - 1. ‘‘That defendant negligently allowed her bull to tre-pass on pl.iintilT s land and injure the plaintiff - bull to such an extent that plaintiff's hull had to he destroyed. 2. “That defendant, well knowing that her hull was mischievous and was likelv to injure the plaintiff s hull, allow ed her said hull to trespass on plaintiff's land with the same result." The former cattcie of action is he ' ed in trespass; jn the latter a mischievous propensity in the hull and sc: iter on the part of the defendant aw also alleged. |. —The Impounding Act 1908. (See. o) has in New Zealand expressly limited the right of an occupier of uiifem-ed land, in suing for damages lor trespass by cattle, to the fees prescribed in the second Schedule U> the Act. Hillside of these lie call recover nothing (Olsen V. Bailee X-Z. L.R. YT HI; Guvnor v. I.acy G.L.R.. 1920 p. 205). ‘ 1 Unfenced land” mean- land not surrounded with a sufficient feme as is prescribed by I lie Fencing Act 1908 or its amendments. The evidence slows that jlie hull paddock in which plaintiff- Imll wa.s hot wa- imtirely unf,Mired on nil" t lie ep'rh side. and on the other three -ides had a lour or live wired Irie'c which at the time of

i the accident was out of repair, j ll was clearly therefore ‘•unleiic" j land" within the meaning of the Ad j On tile first cause of action therefor I plaintiff' is not entitled to recover Hi damages claimed. j 2. Tlu* alternative cause ol actio is mure difficult to decide. I’lymtiff a! leges : - (a) That defendant's hull wa- mis ehievoiis. (Ip. That (lcfeii*!,i lit knew. it. In h mi.-eh ievolis. (c). That it caused I lie accident t plaintiff’s bull. I think he ha- failed to prove an; of these allegations. (a i .Voile of llw witnesses has gi-.ei any evidence ol a “peculiar mi.-ehiovoti; disposition" in defendant's hull. ii the paddock lie was quite peace >l>l* and no one was a trail I to go near him I here is no evidence of him lighting except once with plaintiff's hull about • yen i before the accident. That on lull! should have a contest with ai otlmr is only natural, especially v- hen a held of cows i- near. All dome-'. mated male annual- will light ill -m-h rir- (■ 1111 ,-1 111 i—. until tl i- pr-’-em im nee iit •me is acknow ledg",l. No liana is mir -! 11 y (filin' Mini the -II nig :, uf j heroinethe hud of Ihe herd. Mi Veil-oil -a id lie Knew of a r::-,e of lour bulls in the one herd am harm ie-illting. “He knew Baird'- lull 1 -it having leeelitly been * u hi- h mu.lary- -he had often hem through the paddock in which it V. as kept. Ft a- to 1 dangerous." I’lmntiff him-eU no urn morning of the Tirli January showed by hi- action.I hat lie did not regard the pre-cnee of di'feiidaillbull in lhe bill! p id Jock as lieing daiigerou- lii-. for when told of it- presence Ihere by his employer, Jr,me- Uvine lie did not (rouhli to go to the paddock until half an hour had ('lapsed. Had he thought Baird's boll was likev to iniur- hi- own. fie would I\ 100. e I"-! no time ill going himor in -ending Irviiii 1 to keen them apart. Ordinary tame or d-une-t icafed animal- -m-h a- lio’-e-. cows, and oxen amil presume! h\ la)'- to b.c daugerou-. (Nee Bullen and L'ukc. bill. Edition, p. 139'. T* lender ail owner liable in -m-h a .•:i- -. ,-lear proof ol a peculiar miscliievou- di-positicu nni-t he given. Tin- e'.'iiieoee of defeudnut. Mi itle w Baird, Janies N il.- n. and -lames Irvine. and tlm mudm-t of ; ,!••.inl ifl himself on the morning of the .M'i J to my mind prove that they all thought the bull was merely an iHinarv bull without any peculiar vice or mischievous propensity. T find therelo'e that the first of the allegations i- m I fir med: and it follow-; that the second one also fails. (c) - As to ill!* third, fhe’c is a roiitliet of evidence. Janie.- Irvine, who .(ink the cow- out of the i adth ek lor mill-dug on tile morning oi Hie -ith .January, says defendant’s bull was , lien quietly grazing at the far end - ‘ idle- paddock and that plaintiffs bull wa- not in the paddock ; and lie reported this to plaintiff on hi- r- turn it A. 30 a.in. After waiting half an lour plaintiff went down and says he aw the bulls actually in contact in .lie paddock. He -ays: ‘T parted tbeiu. I -ang iet and the brindle bull moved oft. 1 cm. them in contact!" And sped, m g ,1 lii- bull:—"lie tried to i iso. -t rugded and. fell back. t went closer and c- tried to rise again. Baird’s bull limed round to him again and laced um. Mine either imped or "as pushfl into the creek." Irvine then eame -long. He had heard no sound of the utils lighting, and lie finds Baird’s hull

still grazing at the other end ol the paddock where lie lelt it when he took the cows out a short time previously. Plaintiff says nothing to Irvine when lie name up about having seen the bulls fighting. He says nothing of a light in the note he seat to Baird's but asks them to bring along some chains oi his they had: and when Matthew Baird ariived plaintiff merely says: ”lhe

hulls must have been fighting and tin brindle bull must have pushed “Con tract” over into the creek !

I cannot accept plaintiff's evidence that he saw the two bulls fighting. Tt i- quite improbable, and is inconsistent with bis own conduct and with the evidence ot Irvine and Afatthe" Baird. His evidence also as to wluit. happened on the evening of the Ith January i- directly contradicted by the evidence of Irvine and .Air- Marshal!. On the other hand. I think the evidence of James Irvine and Matthew Baird is reliable. T also believe the evidence ■ f Irvine—who is a disinterested witness, when he says plaintiff asked him if he would say that when he returned to the bull paddock be saw Baird's bull standing over “Contract'’: and also

that it was then up near where “Contract’’ was found, whereas he found it prill grazing lo chains away, Under

the eireuinslanocs, I can allow little weight to plaintiff’s evidence. It is of course possible that there had ''ceil a struggle during the night and that “Contract” may have been pushed over the bank, but that has not been proved; and it is at least equally probable that '‘Contract” fell over the bank without being pushed. He may have been grazing along the bank and 1 alien. lie had a ring in his nose with 'Oft of green hide rope trailing from it. and be also bad Gft of chain trailing Iron; bis boras; and either of these impediments may have caused him to trip and been the immediate cause of his falling down the bank.

ft is not my opinion that defendant's hull pushed him over and Ly doiny so caused him to break his ley:. The third allocation therefore tails.

Whether plaintiff could have succeeded in the face of Section o of the TinpoundinK Act. had he proved all his allegations. I do not need to decide. .lodgment is for defendant with costs CIO It’s. Tlie bond for an appeal was fixed at £3O Vis.