DISTRICT COURT.

Nelson Evening Mail, Volume XIII, Issue 151, 24 June 1878, Page 2

DISTRICT COURT.

[Before His Honor Judge Broad.] Thiei. v. Corporation op Nelson. Judgment in this case was delivered this morning. His : Honor having recapitulated the evidence at length proceeded as follows: The defendants are, of course, not liable for the acts of their predecessors, and can only be held responsible for some clear breach of their own duty. It is contended that the "Municipal Corporations Act, 1876," casts no such duty upon them as that alleged by the plaintiff— that the language of the colonial statute is not so stringent as that of the English Acts, upon which most of the decisions relied upon by the learned counsel for the plaintiff were based. There the duty, it is said, is expressly stated; here, it can only be vaguely implied. This objection must be over-ruled. The streets are placed under the control of the defendants, and all the pavement and other materials are their property. There may be no power to compel them to make all the streets laid out upon a paper plan of the borough, but with regard to those that are made, it is their duty to keep them in safe repair. The rule is, " that iv the absence of something to show a contrary intention, the legislature intends that the body, the creature of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities, as the general law would impose upon a private person doing the same things." (Per Blackburn J., Mersey Dock Trustees v. Gibbs, L.R., 1 App. Ca. 110; see also Hartnail v. Ryde Commissioners, 33 L. J., Q.B. 39, and Ohrby v. Byde Commissioners, 33 L.J., Q.B. 296.) It is further objected that assuming something ought to be done the defendants had no notice, and that that distinguishes this case from The Mersey Docks Company v. Gibbs. But if the defendants had the means of knowing, by the inspection of some officer, within the scope of whose duty it was, to look after and report upon the safe condition of the streets (and in this case it appears to have been the duty of the City Surveyor), they will not be relieved from responsibility, if their Bervant was negligent in the performance of his duty. (Scott v. Mayor of Manchester, 2 H. and N. 204. Stiles t, Cardiff Steam Boat Company, 33, L.J., Q.B. 310.) This case appears really to fall within the principles laid, dpwn in

Toohly v. The London, Brighton* and South Coast Railway Company, 27, L.J., C.P., 39: Cornman v. 'Eastern Counties RaiHvay Company, 29, L.J., Efcch. 94, and Crafter v, the Metropolitan Railway Company, 36 L. J., C.P. 132. In the first of these cases, Wllles J. said, " .In order to make a person guilty of negligence it ought to be shown that he has used his property in such a way as to be likely to endauger the safety of others. It is impossible for anyone so to dispose his property that a nian may not by accident oi negligence injure hiiiiself ilpoii it." And both the learned Judges who delivered judgments in that case held that it was necessary to shew that the structure complained of was more than ordinarily dangerous." Again in the case of « Cornman and the Eastern Counties Railway Company, Bratnwell B. said, " It is not enough to say that thete was some evident^ a scintilla of evideneej br it there SurmiSe 1 that these tHay have been negligence on the part of the defendants, clearly; would fibt'/justify. the Judge in leaving the case to the jury, there insst be some evidence on which they might reasonably and properly conclude that there was negligence. Nothing ip so easy as to be irise after the evfent; ' And in Grafter t. The Metropolitan Railway Company, Willes J. said, " There is hardly any structure that one meets in one's passage' through life as to which you may not be able to call some one who will say it is dangerous. We must read the evidence by the light of that common experience which everybody has." And in the same «3asej Montagne Smith" J, said, " There was nothing unusual in the staircase, md as the staircase, such as it was, with the brass-nosing, and want of a handrail, wa3 obvious to everyone; and must have been perfectly well known to the plaintiff j it seerhstotne therefore,! hat ttle evidence olnegtigence failed, and that the plaintiff, in using this structure, such as it was, canuot complain of this accident,- which was not 1 of an unusual or peculiar kind, but an accident ! of a description which happens on all staircases} however they may be constructed, that is, that a man slips upon them." The main principle through all these cases are that there was nothing unusual or improper, in the nature ef the structure complained of," and, therefore, there wa3 no evidence of negligence with which to charge the defendants.^ Now, what is there to support the proposition that this was a dangerous footpath?" By " daugerdtis " t meaU a path of unusual and improper construction for there is: no sugge&tiou that it was in ftny disrepair, be-" yond the alleged slipperiness of the stones. Tne plaiutiif slipped upon it and broke his leg, and so in Crafter's case* the plaintiff slipped down the stairs and injured himself, but ii: it be true, as the learned Judge iii that case remarked, that " the accident was of a description which happens on all staircases," so we may say that this is one which happens upon all footpaths, and is especially likely to do so if, as in this case, the leg be weak from previous injury. The plaintiff had been upon the path before, and he knew the nature of it, but, apparently, did not think it necessary to use any special care iv walking, as he says that " when stepping from WWarr r ren'a shop he was looking the other way." One would have thought a man with a weak leg stepping from a shop on to what he says was a very slippery and dangerous pavement, would at least have looked to see where he was stepping. The fact that in the course of ten years a few persons have occasionally slipped when walking over those stones does not to | my mind prove the path to have been danI gerous, for there is perhaps no footpath of any kind or description, upon which, in the course of so many years, and traversed as this was so constantly by hundreds of people some persons have uot sometimes slipped. j Whetherjthe Acting Mayor had these stones removed afc Mr Warren's request, because after ! the accident the latter thought them a nuisance, or whether as the present Mayor suggests the Corporation were glad to comply with Mr Warren's request because the stones were ! valuable to them, is not very clear; but in neither case could the fact in my opinion amount to an admissiou on the part of the defendants that the path was- dangerous in the sense I have given to that word. There is the evidence of several witnesses for the defence, some of whom have, lived for years in the neighborhood, that .they had constantly used this path and never slipped~or thought it any way dangerous, and others whose experience enables them to state that thia pavement if not usual in Nelson is in common use in other and far larger places, and that there was nothing at all unusual or improper in its construction. I come to the conclusion then upon the whole ; that this footpath was not an improper or unusual one and that had the plaintiff used reasonable care jn stepping upon it the unfortunate accident from which he has been so. serious a sufferer would not have happened. The defendants are, therefore, in my opinion not guilty of negligence, and the judgment of the Court is for the defendants with costs £20 7s. Pettit v. P.. S. Lucas. This was an action to recover £32 8s 2d, for wages, etc., and £110 damages for alleged breach of agreement, the defendant being sued as a partner in the firm of Allen and Lucas, of Wakefield, hopgrowers. Mr Buuny appeared for the plaintiff, and Mr Acton Adams for the defendant. The jury was composed of the following gentlemen : Charles Adamson (foraman), John Aldrige, Benjamin Allen^ Daniel Allen. Mr Bunny having stated that the defend ant was the sole surviving partner of the firm of Allan and Lucas, and produced a memorandum of agreement between Mr Allan and the defendant, called Robert Pettit, who said that he had been engaged by Mr Allen in September; 1877, at £10 per month up to the Ist April, and subsequently, about the beginning of the year he agreed to stay on for twelve months more at the same rate of wages. Mr Allen said at that time he would rather lose £100 than part with Pettit. Several letters from Mr Allen to plaintiff were put in. Plaintiff said that he was to have -two private rooms at the cottage, for which he purchased the timber, Mr Allen telling him that the amount would be refunded to him after the hop-picking was over. "Several disputes had taken place between plaintiff and Mr Allen on account of the lattar coming to the house, using the room as his own, and requiring Mrs Pettit to do duty as servant. Mr Caryosso used to carry messages between plaintiff and Mr Allen after the latter wastaken ill. Plaintiffusedto send word asking for his wages to be paid, and was generally told in reply that Mr Allen was too ill to be spoken to on such : subjects. Evidence was also given regarding some of the small items claimed. Plaintiff looked upon Mr Allen as the managing partner, and never saw Mr Lucas on thepremises but once, just before the agreement was signed. By direction of Mr Allen he had a brand made of the letters A C, which he believed meant Allen & Co. The balance due to the plaintiff at the present moment was £32 8s 3d. He left the place after being ordered by Mr Allen to do so. Cross examined: Mr Allen told me about Christmas time that he intended to buy Mr Lncas out. I never told Mr Carvosso it would be a good thing if Mr Lucas waa bought out. The cheques were always signed Allen & Co. I never had any reason to believe that Mr Lucas was not a partner. Mr Carvosso once told me that the arrangements between Allen and Lucas were a mystery to him. I was at work on the place after the Ist of April. John Maule, junior, gave some unimportant evidence, and this closed the case for the plaintiff.

Mr Acton Adams then moved for a nonsuit, on the ground that plaintiff had not proved that Lucas was a partner. This objection was over-rflied. He then argued that there Was no written agreement for a year's Sngagement, After some argument, His Honor said that beyond the fact of a short service there was no' evidence of an agreement for a year, but he should leave it to the jury to say whether they thought there was any implied contract. Robert S. Lucas: I was a partner of Mr Allen's in Sheppey Farm. We dissolved pafttiership oh the 1 6th November. I had, nothing to do with the management. I produce the memorandum of dissolution. Cross-examined: I executed a deed of sale. I never had a balance sheet drawn up. David Carvosso: I did not know anything about Pettit working on the farm before the Ist October. In November Pettit told me that Allen" had told him that he had bought LuCEts Oilt. Etc said he thought Allen had done a good thing in getting clear, of Lucas and getting the whole thing int^ hfsuown handsl 1 never subsequently had any reason to doubt that Pettit knew of j the dissolution of partnership. lam quite sure that he knew of it. In March I told Fettit from AHen,that Owing to the latter's illness he would not be required after the expiry of his agreement. Pettit did not Work after the Ist April, when witness took charge. £ Cross examined: I had no particular work on the farm. I never took orders from Pettit. I did not take the place over formally from Pettit on the Ist April. I went there as I had usually done before. I heard of the dissolution of partnership the day it was accomplished. I never told Pettit anything about the arrangements between Allen and Lucas being a mystery to me. I engaged a niari to stack the hop poles after the Ist April. Pettit said nothing except that I might have given, him the job, a3 he had nothing to do at the time.. :■'< . : This closed th.c : evidence, and Mr Adams was addressing the jury for the defence when we went to press,