The Nelson Evening Mail. WEDNESDAY, JANUARY 23, 1867.

Nelson Evening Mail, Volume II, Issue 19, 23 January 1867, Page 2

The Nelson Evening Mail. WEDNESDAY, JANUARY 23, 1867.

RESIDENT MAGISTRATE'S COURT. [Before J. Poynter, Esq., R.M.] This Day. Combs v. Godfrey. Claim, £7 ss. Judgment for Plaintiff: half to be paid in three weeks and half in six weeks. Harley v. Porthouse. Mr. A. Pitt for plain tiff, Mr. Keon, for defendant. This ease had been adjourned to produce evidence as to the rules observed in footracing. James Sutton: I have been in the habit of running foot-races in Nelson, several times with Harley. He beat me once. We touched each other with the elbows frequently, during the race. I know of no defined rules, but I have always known it given fair, that he who came in first got the money. Tou must not trip another up, but the person getting first can take what line he likes. I never saw a line marked out between the runners. People who are equal in speed are almost sure to elbow each other. I never heard of a person being disqualified for touching his opponent. To Mr. Keon : I was not obliged to run the race over againjjwhen I ran with Mr. Harley. To the Court : I was not present at the last hearing of the case. Thomas Payne : I saw the race in question. I had bets on Lloyd. I considered I lost, and paid the bet. I have ran several amateur races. The object of a rope being placed between professional runners is to prevent them coming into collision. If there is no rope and no regulations the referee prescribes the mode of running ; this is the custom in England. Harley won this race. I have heard parties opposed to him admit he won ifc. To Mr. Keon : I have not run any race in Nelson. To the Court : The nature of the collision was that Harley being the leading man touched his opponent. He touched him with the elbow. I would not have parted with my bet had not Harley been the leading man. I consider it the fault of the referee in not marking out the ground. W. Stallard : I have run many footraces in Nelson, and came into collision with my opponent by comiug in front of him. I have touched him with my elbow, I was never disqualified for it. If there is no line marked out a man may run where he likes. I never knew of any rules for foot-racing in Nelson. Mr. Keon submitted that it was a case for a nonsuit, as it should have been submitted to an umpire, which was the custom in England. The Magistrate said he was anxious to know the custom on the subject, aud whether the umpires had done what they ought to have done. In the case of Chambers and Sadler for the Championship of the Thames, the umpire decided the racing was foul. In this case ifc appeared that one or the other party was in the way. Joseph Porthouse : I saw the race in question. I was stake-holder and referee. I did not consider the race a fair one. I saw Harley gefc before Lloyd, touch him, and I think impeded his runuing, as he staggered. I was applied to for the money and would not pay it, because it was not a fair race. Lloyd was fouled as far as I could see. Harley got the start, and Lloyd gained on him. Harley then distinctly crossed the ground, aud the other staggered. He was knocked on to the grass after that, and 20 or 30 singing out foul bejore they got in. I refused to pay the money till Messrs. Birrell and Bentley, jun., the umpires, had decided. They could not agree, and I said the race must be run over again. Bentley gave no satisfactory answer either way. To Mr. Pitt : Bentley was referred to. I understood he was an umpire, but I did not hear him appointed. I have talked to Davis, Devonport, Landon, and others about this race. They have not admitted that Harley won the race. One of them offered to bet Harley that if he referred to Bell's Life he would lose it. I am defending this action on my own account, and to do justice. To the Court : I can refer to no rules on the subject. I have been told I should have handed the money to Lloyd. He has not claimed it. I received no benefit from the race. James Bentley, jun.: I saw the race in question. I saw them start. Harley |

touched Lloyd with his elbow. The latter fell back. I know not if he would have won the race but for the touch. I was not appointed umpire, nor recommended the race should be run over again. To the Court : It was the action of running. Harley did not appear to push the man. David Law : lam master of the brig Ellen. I saw this race. I did not see Harley touch Lloyd. I know nothing of foofc-raciug, nor which won. I know nothing about the matter. Thomas Gibbs : lam a seaman. I saw this race. I saw Harley touch Lloyd, by striking him with his elbow. The latter still kept running. Harley shoved him once or twice as he was running on the grass. He appeared to do it on purpose. Had he not done so Lloyd would have won the race. I never saw men touch each other before. To Mr. Pitt : It was from 25 to 28 yards from the starting, where Harley touched Lloyd. It was 50 yards from the winning post when he touched him again. The people sang out foul, Lloyd stopped his pace a little, aud commenced running again. Mr. Keon said he considered the evidence to be in favor of Lloyd. His Worship said he would like Mr. Keon to read the depositions, as he was not present afc the previous hearing. There were several points he would like to examine himself, and he would defer his decision till two o'clock. James v. Gibbons. — Mr. W. Adams for plaintiff; Mr. A. Pitt for defendant. This was an action to recover damages from defendant, as lessee of the Government Wharf, for injuries sustained by the wharf not being kept in proper order. Plaintiff said, on the 14th December, about 10 p.m., as he was going down the outer steps of the wharf, he put his foot as he thought on a step, and fell 14 to 15 feet on the beach. He lay insensible till the water wet him through and brought him to his senses. It was the third or fourth step from the top. He was injured on the head, put in a trap, and taken to Dr. Cusack, who charged him £2 6s. Bd. for medicine. He produced a certificate from the doctor that the injuries had prevented him from going to work during the last six weeks. Had he been at work he would have cleared £10 per month, besides his keep. He had paid Jasper £7 10s. for his board. Mr. Gibbons had refused to give compensation. To Mr. Pitt : He first told me to get a^ subscription up ; the second time he said he had nothing to do with the steps. I have been in Nelson three years, and was iv the Custom House. °I have been in the habit of trading about the wharf, and landing at the end and tbe inner side. His Worship said he could not see how the defendant could get out of the liability. Mr. Pitt said he would like for Mr. Gibbons to make an explanation of the circumstances under which he occupied the wharf. Mr. Adams put in the lease of the wharf, one clause of which bound the lessee to keep it in good repair. "W. Eowell : lam a waterman at the port. I know these steps. I am surprised there were no accidents before. I saw a step out three or four from the bottom. It had been out several months, and it was almost impossible to get people up, especially females. Mr. Pitt said Mr. Gibbons was willing to assist the plaintiff, but he did not consider himself responsible for the faults of the Provincial Government. He was not to be expected to keep these old ricketty steps iv repair, which were not at the usual landing place. The plaintiff had no business to go down by these steps, which were put there by Mr. Blackett, not for the public, but for the ballast men. There was no proof that the step was out, or that the man was sober at the time. Joseph Garrard : These steps were on the south side of the wharf ; they were too short and rotten, and I requested Mr. Blackett to place the new ones on the north side. He placed the good ones on the north side. I could not say if they were firm. I have found them shaky. They were sufficiently strong for the boatmen who moored their boats to the wall. They are not the proper landing place ; they are steep and rather narrow, but the boatmen prefer them, as it is a short cut. The steps are close above one another, so that a man has to be careful how he places his feet. The distance is about 10 inches from centre to centre. They were dangerous steps when placed there three years ago, the first year of Mr. Gibbon's lease.

Mr. Gibbons said the steps were not placed there the first year of his lease. Richard Scott: I have been engaged by Mr. Gibbons repairing the wharves, two days a week, the last; three months. I am directed to execute all necessary repairs. These steps are dangerous to get up and down, and the step that was out was replaced as soon as I knew of it. Ifc was not more than nine feet from the ground. The steps are very steep and dangerous. Mr. Pitt submitted that no negligence had been proved; but if defendant was liable, he hoped the Court would award a fair sum. His Worship said the law waa in favor of the plaintiff, but the amount required some consideration. He should give the plaintiff his medical bill, £2 6s. Bd., and £9 compensation. Judgment was given against Ernest W. Newman, who was summoned by Inspector Shallcrass for the Education rate. 34 cases were settled out of Court. At two'o'clock, Mr. Poynter gave his decision in the case, Harley v. Porthouse. He said he had taken the greatest paius to arrive at a correct conclusion, which was a difficult task, from the conflicting nature of the evidence. Having read through the evidence, and commented on it, in passing, he said he must be guided by its weight. If- appeared to him that no wilful obstruction had been offered by plaintiff to defendant ; that the race had been run without reference to any particular rules, and that none existed in this part of the country. No referee had been appointed, and the defendant had given his dicta that the race should be run over again ; he was not in a position to do so, not being an umpire. The weight of testimony was in favor of the plaintiff, for whom, after taking infinite pains to discover the merits of the case, he should give judgment. Plaintiffs costs amounts to £12.