RESIDENT MAGISTRATE'S COURT.

Manawatu Times, Volume III, Issue 34, 8 March 1879, Page 2

RESIDENT MAGISTRATE'S COURT.

Thursday, March 6, 1879. (Before Mr. Ward, R,M. Messrs. M'Neil and Dalrymple, J.P.s, also occupied seats on the Bench during a portion of the day.) BREACH OF RAILWAY BY-LAWS. Constable Price charged a man named James Keene with having committed a breach of the New Zealand Railway By-laws, by placing some trucks from a railway siding near Feilding on to the main line, thereby endangering the safety of the train and passengers. A Maori named Hira Wanu was also charged with a similar offence. Keene was called to give evidence against the Maori, and in a very demonstrative manner tried to convince the Bench that he was entirely innocent of the charge laid against him, and that all the fault lay with the Maori. Keene was afterwards placed in the dock, and Constable Price gave evidence as to the trucks having been shunted on to the main line. The Bench, however, did not consider the charges against the accused sufficiently proved, and they were discharged with a caution. The Bench, at the same time, intimated that if any similar cases were brought before the Court, and clearer evidence were forthcoming, a heavy penalty would be inflicted, as the offence with which the accused were charged was of a very grievous character. DRUNKENESS. Constable Gillespie charged Cornelius Brien with having been drunk. The prisoner was discharged with a caution, as Constable Gillespie stated that he was very inoffensive, and was locked up more for his own protection than anything else. ANOTHER LOYAL SUBJECT. Friedrich Manz, on taking the usual oath of loyalty to Her Majesty, had letters of naturalization granted to him by the Bench. Mr. Jenssen acted as interpreter. ALLEGED WILFUL AND NEGLIGENT RIDING. Benjamin Pepper v. John R. Brandon. — This was an action to recover £50 damages for injuries sustained by plaintiff through the alleged wilful and negligent riding of defendant on the evening of 26th December last. Mr. Staite appeared for plaintiff, and Mr. Maclean for defendant. The plaintiff was sworn, and stated that on the evening of the 26th December he rode home from the sports alone. On the way he passed a basket buggy, and defendant immediately after rode into him, upsetting both his horse and himself. Defendant was gallopping at the time and there was quite enough room for him to have passed ; but he rode right across, and came into collision with plaintiff and his horse. Plaintiff was incapacitated from business for six weeks, three of which he was confined to bed. He valued his time at £1 per day. He had received a bill from Dr. Maclachlan, the greater portion of which he had paid. Besides he had paid between £2 and £3 to the chemist, for medicine. Plaintiff still felt the effect of the injuries he had sustained. He had offered, through his solicitor, to compromise the matter, if the defendant, would consent to pay the medical expenses. The defendant sent his wife to see him the day after the accident occurred. Cross-examined by Mr. Maclean—He bought the gates at the sports at auction for £15. He visited the two booths which were on the ground, but he had only four drinks during the day. The plaintiff came into collision with him just after he had passed the basket buggy. Defendant had not passed him before the accident took place. He was riding a horse belonging to a Maori named Taylor, which was so quiet that a child might ride it. He did not challenge defendant to run him a race after the sports but he asked him if he was going to enter for the mile race. The defendant cut right across and rode into the near side of his horse. He was incapacitated, from business for six weeks, which was entirely owing to the accident. He had not had an attack of the "horrors" since the accident, although he was aware that such a rumor had been afloat. He had paid the largest share of the doctor's expenses. When Brandon rode up, he saw Aubert Maxwell, and about ten to a dozen others, on the road. Maxwell picked him up after the accident. Defendant caught his horse, but did not help him to mount, Very likely, he might have, offered to fight defendant, but was so stunned that, he did not know what he said. He did not hear, the defendant say to him, " Pull up, pull up, pull up." He was not carried home drunk since the accident occurred. El Jephson, a Dane, gave evidence that he saw the horses of defendant and plaintiff come together. Brandon was a little behind Pepper, but the defendant's horse was going faster than plaintiff's. Witness saw plaintiff on the course, but had no reason to I think he was drunk. When, plaintiff was picked off the ground, the blood was streaming from his head. Cross-examined by Mr. Maclean — Was quite sober the day of the sports. Dr. Maclachlan stated he was called in to see plaintiff soon after the accident occurred, and found him suffering from a lacerated wound, five or six inches long, on the top of the head. Plaintiff had apparently lost, a good deal of blood before witness saw him, and the injuries sustained might have proved fatal. Witness had been in attendance on plaintiff until about a month ago, and for some time after the accident he saw him every day, and sometimes, twice a day, as the nature of the wound necessitated close attention on his part. The plaintiff had not paid him any portion of his account, but witness owed plaintiff £10 12s. before the accident occurred. Witness did not think the plantiff was drunk at the time

he accident happened, from the fact of the wound healing so well and so quickly. Cross-examined by Mr. Maclean — It was about 20 minutes after the a cident occurred that he saw the plaintiff. He had not attanded plaintiff for anything else since the accident happened. Henry Heggie, a resident of Oroua Downs, who described himself as a master laborer, stated that he saw the plaintiff at t he sports during the day, and had a game of quoits with him. Witness saw plaintiff mount his horse in the evening at the ground, and when he saw him next he was bleeding and nearly dead on the road. He considered the plaintiff perfectly sober when he left the ground. George Key, a tinsmith, residing in Palmerston, gave somewhat similar testimony to the last witness. Robert Walter stated that he was a veterinary surgeon, residing in the Rangitikei Line. Witness met the defendant the day after the accident, and he said to him, "You have made an awful mess of Pepper." Defendant said that he was very sorry for what had occurred, and if plaintiff had not abused and blackguarded him in the manner he had done, he (defendant) would have paid the doctor's bill. Neils Peterson, a laborer, residing in Palmerston, stated that he saw the plaintiff near the place where the accident occurred. He met defendant soon after, who was trying to catch a horse, and he afterwards rode past between a canter and a gallop. Plaintiff was sober when witness met him. Mrs. Brandon, who was subpoenaed by the plaintiff, remembered going to see Mr. Pepper after the accident occurred, and bringing some eggs with her on that occasion. Her husband and herself had heard that the plaintiff was dead, and her husband had asked her to go and see whether she could do anything to comfort Mrs. Pepper. She had not said to Mrs. Pepper that her husband would look after the plaintiff's children if he had met his death through the accident. Cross-examined by Mr. Maclean— She was in the habit of going to see persons who were in trouble, and had been to see Mrs. Pepper on one occasion when she had met with some trouble, long before the accident occurred. She had not said anything whatever to Mrs. Pepper to lead her to suppose that witness's husband had been the cause, of the accident. This was the plaintiff's case. John Rose Brandon, the defendant, having been sworn, stated that plaintiff left the course before he did. About ten minutes after leaving the course he came on to plaintiff, who was sitting on his horse, and swaying from side to side. Plaintiff's horse was walking quietly along, with its mouth wide open, as if the plaintiff had been using a tight rein. Witness passed the plantiff by, merely saying; "Good night," or "Good evening." Witness had measured the road where the accident occurred, and found it to be 70 feet 8 inches wide. As witness came along to the buggy on the road, plaintiff came gallopping up furiously, and he cried out to him, " Pull up, pull up, pull up," but without avail, as the plaintiff rode right into him, and caused the injuries to the saddle produced. The injuries to the saddle were caused by the plaintiff coming in contact with witness's horse from behind. Plaintiff was thrown on to the top of an embankment, and the horse kicked at him, but he could not swear whether the animal inflicted the wound on the plaintiff's head. Witness helped plaintiff to mount his horse, but he (plaintiff) commenced abusing him, and wanted to fight him and run him for £10. Witness believed the plaintiff was intoxicated. Cross-examined by Mr. Staite—The plaintiff's evidence was untrue, as was also that of Jephson and Walker. Witness had never spoken to Walker on the subject of the accident. He did not run into Powell or anybody else the same evening, but Powell came into collision with him when he was holding the plaintiff's horse. He never said anything about paying the medical expenses. Witness had heard that plaintiff was dead, but he felt no responsibility in the matter. Of course, he would have been very sorry had the plaintiff died, just as he would have been sorry for anybody else. James King, storekeeper, Palmerston, stated he saw the defendant several times on the day of the sports, and he was perfectly sober all day. Robert Munroe, working with Mr, Mackie, butcher, stated that Powell and himself came along the road together at a pretty smart canter. Powell had some difficulty in holding his horse, as the animal was rather fresh. As they came along they saw Pepper laying on the road, and a man named Simpson was holding the horse which the plaintiff rode. William Robert Dimond, who acted as clerk of the course at the sports, stated that he saw both plaintiff and defendant on the ground several times during the day. He saw the plaintiff going into the booths on several occasions, and saw him drinking. The defendant was perfectly sober up to the time of his leaving the ground. William John Batt, a settler at Karere, stated that he knew the defendant for a great number of years as one who was perfectly conversant with horses and cattle, and from his knowledge of him would consider him most unlikely to be the means of causing an accident such as that charged against him. William Moore, a groom, residing in Palmerston, stated that he drove home from the sports in a trap. He met a man named Jephson on the road, who was so badly drunk that witness had to pull up his horse to allow him to pass. Edwin Snow, a shoemaker, residing in Palmerston was at the sports. He saw the plaintiff about half-past six in the evening, considered him the worse of drink. „ Bernhard Augustus Klein stated that he saw the defendant's saddle the day after the accident occurred. The pommel of the saddle was ripped, but in consequence of having been in use since the time of the accident, it was worse now than when he saw it the day after the accident occurred. Cross-examined by Mr. Staite—The saddle had been as far as Wellington since the accident happened. John Powell, a hairdresser, stated that he left the ground in company with defendant and Bob Munroe on the day of the sports. Defendant came into collision with him, but it could not have caused the damage to the saddle, as he merely grazed the side of his leg. It could hardly be called a collision, and witnees said nothing to defendant at the time nor had he thought anything about the matter since. This closed the evidence for the defence. Mr. Staite called Thomas Wray and the plaintiff as experts, to prove that the alleged damage could not have been caused to the saddle had the collision occurred in the manner described by plaintiff. Wray stated that some of the injuries might have been caused months ago, whilst the torn part was done, he thought, quite recently. He would hardly consider that the damage as shown in the saddle could have occurred had the defendant's horse been ridden into from behind. The defendant, who stated, that he considered himself "second to none in the County an expert in saddlery," said that he was of opinion some of the injuries in the saddle were not more than three weeks

old. If witness had ridden in the manner described by the defendant, he would have been much more likely to have hit his leg than the pommel of the saddle. Witness swore distinctly he was ahead of the buggy when the accident occurred. Defendant, recalled hy Mr. Staite, said that he had his leg touched lower down by the collision, but he had a long pair of boots on, which protected him. He could not say why he had not previously explained the fact of the tear on the saddle having occurred some time after the accident. He thought the stitches were meant. He did not notice the tear before. Mr. Maclean wished to call Constable Gillespie to give evidence as to the state of plaintiff and defendant on the day in question, as the otber side had re-opened the case ; but Mr. Staite objected, and the Bench considered that the case could not be re-opened, as the plaintiff had a right to bring forward rebutting evidence. Mr. Maclean spoke at some length, and quoted arguments to show that if the plaintiff had contributed in any way towards the accident, his client could not be held liable ; and if the defendant had not been sober on the day in question, he held that fact must be taken as contributory evidence. The whole question for the Court to consider was, which party was in front, and which party was behind. A number of witnesses had been called by the plaintiff ; but the Court would have to consider quality as well as quautity in the matter of witnesses who gave evidence in Courts now-a-days. Mr. Staite replied. He said defendant'a counsel had not attempted to impugn the veracity of any of the witnesses called by the plaintiff ; and therefore, in the absence of any proof to the contrary, the Court must consider the plaintiff's witnesses entitled to all due credibility. He charged the defendant with having committed a suppressio veri with regard to the tear in the saddle. He could not for one moment fancy that his client would be so foolhardy as to bring the case into Court, and run such a large risk of expenditure, if the facts were as stated by defendant. Mr. Ward said the Bench would reserve its decision till the next sitting of the Court. In the meantime, he would consider all the evidence, and the arguments adduced by counsel on both sides, to which he had paid great attention. CIVIL CASES. Arama Karaka v. Karanama Te Ra and Carolina Te Ra. — This was an action to recover £15, for detention of a horse mortgaged by Te Kia, son of the defendants, to plaintiff, for the sum of 30s., to which was to be added 5s. interest for three weeks, the period of the mortgage. Mr. Staite appeared for the plaintiff, and handed in a bill of sale, written in Maori, which had been given by Te Kia to the plaintiff, who admitted that it had been drawn up by himself. From the evidence, it appeared that the horse had been given by Honi Mason to Carolina in trust for her son Te Kia, who was only 14 or 15 years of age, and neither her husband nor herself had given their consent to the bill of sale. The Bench decided, that the transaction was rot a valid one, and judgment would be given for defendant, with costs. Dr. Buller appeared for the defendants. Riehard Price v. Edward Kempthorne. — This was an action to recover the sum of £8 6s. 8d. from defendant, as manager of the Bank of Australasia, being one month's rent, at the rate of £100 per, annum, for the building at present used by the Bank at Feilding. The defendant had paid into Court the sum of £4 3s, 4d.,being, as he alleged, one month's rent, and 8s. costs. It appeared from the evidence, which in several important points was very contradictory, that defendant, had promised to pay plaintiff the sum of £75 per annum if he would consent to make some additions to the building; but as the defendant would not take a lease for a term of years, the plaintiff declined to make the additions. Plaintiff stated that a month before the lease had expired he gave notice to defendant that he would raise the rent to £100 per annum. This the defendant denied, alleging that he never received any such notice, either verbally or in writing. The Bench held that the plaintiff should have given written notice, unless he could bring other corroborative evidence to bear out his statement. Judgment would, therefore, be given for the amount, less one guinea costs. Mr. Staite appeared for the defendant. Thomas, Flynn v. Colin M'Kenzie. — £4 4s., debt. No appearance of plaintiff. Judgment for defendant, with £1 5s. costs. W. Francis v. E. Charles.— £3 13s 6d., wages. £1 10s. had been paid into Court, judgment for which amount was given, with 5s. costs. T. S. Hoe, collector Manawatu Highways Board v. Wm. Parratt.— 7s. 6d., rates. Judgment for amount, and costs. Several other debt cases, were adjourned till next sitting of the Court.