SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 4936, 17 January 1877, Page 2

SUPREME COURT.

CIVIL SITTINGS. Tuesday, January 16. Before his Honor the Chief Justice and a special jury. TOXWARD V. HASTWELL, Counsel for plaintiff, Mr. G. B. Barton and Mr. H. D. Bel!; for defendant, Mr. Travers and Mr. Buckley. Jury:-—Messrs. F. A. Krull (foreman), T. McKenzie, J. McDowell, Thos. Turnbull, Gaby, A. Baker, H. Blundell, junr., W. C. Clifford, W. H. Meek, J. K. Blair, G. V. Shannon. . . The declaration set forth that at the time of the committing of the grievances hereinafter set forth the defendant was a carrier by coach from the Upper Hutt to Featherston, for reward to defendant ;~ and the plaintiff on the first day of September, 1876, became and waß received by the defendant as a passenger to be by defendant safely and securely carried upon the said coach from the Upper Hutt to Featherston aforesaid, for reward to the defendant. Yet the plaintiff did not safely and securely carry the plaintiff upon said coach on the said journey; and so negligently and unskillfully conducted himself in carrying the plaintiff, and in managing the said coach, and in driving the horses on the journey aforesaid, that said coach was upset, and the plaintiff thrown down, and had his leg broken, and was otherwise greatly wounded and injured, whereby the plaintiff was prevented from thence hitherto from carrying on his profession of an architect; and has been permanently injured, and has incurred great expense in endeavoring to cure his injuries and in endeavoring to carry on his said business of an architect by hired assistants. Wherefore plaintiff claims to recover from defendant/ £4OOO damages. Plaintiff also claims to recover as special damages £2OOO. The material allegations were denied.' The issues were as follows :—• Was the defendant at the time of the committing of the grievances set forth in the plaintiff's declaration a carrier of passengers by coach from the Upper Hutt to Featherston for reward ?"—Admitted. " 2. Did the defendant receive the plaintiff as a passenger coach from Upper Hutt to Featherston for reward?"—Admitted. "3. Did the defendant by his negligence and ~unskilfulness alleged in the declaration upset the said coach,' and injure the plaintiff ?" " i. What damages, if any, is the plaintiff entitled to recover ?" " 5. Was said coach «o upset by unavoidable accident, and without such negligence as alleged ?" Mr. Bell having opened the pleadings, Mr. Barton stated the case for the plaintiff, requesting the' jury to dismiss from their minds any prejudice which might have been created by the presentation of testimonials as to the care taken by Mr. Hastwell in driving, and the excellence of his coaches, because he need hardly say that if such matters were allowed to operate on a jury's mind, it would be very easy for an industrious man to get up such things. The jury should, in accordance with their oaths, find a verdict upon the evidence, and upon the evidence alone. He explained the law upon which the case for plaintiff rested, viz., that a coach proprietor was an ordinary carrier,'and was bound to take the greatest care ' in equipping and driving his coach, so as to "make travelling safe. In the language of the authorities, passenger carriers were liable for the effects of accidents which might have been avoided with ordinary care, because they were bound to exercise the utmost care. • The law required the greatest' care where the services were of a gratuitous nature, and still greater care when the services were for reward —there must be proper modern-built coaches, secure harness, well-trained horses, and skilful coachmen. If be failed to provide all of these things, he did not exercise the utmost care and caution, then defendant was liable. He then stated the facts, and said he should prove there had been an error of judgment on the part of the coachman in driving too fast; and further, admitting that the part of the Kimutaka at which the accident occurred was the most dangerous part of a dangerous road, he urged that that was a reason why the horses should have been made to walk over the dangerous ground. The curtains of the coach had been allowed to be down instead of being rolled up, and the harness used had been minus a breeching, all of which facts showed proper care had not been taken. Again, Mr. Hastwell had imported from America an eightpassenger frame, upon which he had had built a twelve-passenger coach. The result was that a twelve-passenger coach had only the brake

power of an eight-passenger coach. Mr. Hastwell was responsible for negligence, then, as his coach was not properly equipped. It would be submitted for defendant that the force of the wind was the cause of the accident; but upon the authority of Bryant and Smith, 45 L.J., Q.B. Ex. 697, he contended that that alone would not he-sufficient to exonerate him from responsibility. Mr. Barton, regarding the question of damages, spoke of the loss t» the plaintiff owing to his having been laid up. - Mr. Travers submitted that as plaintiff had not been travelling on business he could recover only for personal injury and pain suffered,-not for loss in business. Had he been travelling on business it would be different. His Honor said he would make a note of the point, but he must say he was unimpressed by it. Supposing a man in the act of crossing a street to speak to a friend were knockeddown by a butcher's cart, would he not be entitled to recover for lo s in his business if he sustained loss ? Mr. Barton continued at some length, and then called >' Christian Julius Toxward. Plaintiff deposed : I am an architect practising in Wellington, and have been practising here for' ten or twelve years. I have been in the profession since a boy. On the Ist September last I had business in the Wairarapa, and was a passenger by Hastwell's coach from the Upper Hutt. I Bat in the back seat, nearest the slope of the hill, going over the Rimutaka. Mr. R. JV Duncan sat next to me, and Mr. Carter, since , gone to England, sat on the further side. It > was a very nice day for travelling, but there was a slight wind. I havd been over the hill many times. There was nothing extraordinary in the wind on that day. There were two coaches that day. Our coach was quite.full till we got to the top of the hill, . when Greening, the driver, told a couple . of the passengers to get out and go into the other coach behind. There were four horses in the coach. The side curtains weredown all the journey. The curtains of the other coach, which Otho was driving, were tip, and I thought it strange that there should be a difference. The Featherston coach which. we met on the hill also had its curtains up. We went down the hill till we met the other • coach at about the rate of eight or nine miles, but after we passed them we went at a much greater speed—at the least ten miles, but more likely twelve—and experienced more wind than we had done previously. When we. neared'the point at which the upset occurred —this was ten minutes after we met the coach—we went much faster, so much faster that we lost sight of the behind coach alto- ' gether. [Witness exhibited diagrams marked *■ A and B, showing the scene of the accident.} The pace began to increase about 500 feet - from the scene of the accident. From that point the pace became-much quicker than twelve miles, and was increasing every mo- ■' ment. It was close to the roadman's hut where the coach went over. We went round a sharp curve very fast, and I felt the ~ coach swinging, and looking over saw one wheel was off the road line. Shortly after we got round the upset occurred. Instinctively I had thought of jumpiug out, but while thinking about it I saw a cloud of dust coming towards us from behind the coach. I tried to get out, but could not, and immediately I felt the coach go over the bank. On recovering consciousness I found myself lying on the ground, with my leg broken. I dragged mysel to a hole with its sides slabbed some distance away. I was taken to Featherston. I was at Shirley's at Featherston some days, starting for town on Sunday morning. Dr. Spratt attended me at the. place where the accident occurred. Dr. Diver attended me at Featherston, and ordered my removal to town. I was confined to' my bed for two months, and have been on crutches since that. I have suffered much, pain, and had to get someone to perform the; work in hand. My business up to the time of the accident was worth nearly £IOOO a-year. Since the accident I have earned nothing, and have had to pay persons to do the work I had - iu hand. Mr. Clayton has done part of my work. I have had no fresh work since the accident. I am a married man, and have a. wife and four children, the eldest of whom is about six years. The value of the services rsndered me by Mr. Clayton would be about 1J per cent, commission on the work done. I paid him £2O on account some time ago, but that is no guide to the sum due to him. I ami not as well able to follow my profession as-1 was. before the accident. I cannot stand at the drawing-board, and I cannot climb, about buildings to look after contractors. It is very likely that iome of my clients may have gone to other architects. Cross examined by Mr. Travers : Amongst the passengers there were a female and a child. There was no rain, neither was it cold. The curtains were down from the time we started. The other coach had the curtains up. Cannot say how long it was from the time of leaving the top of the hill till meeting the coach. I should think more than ten minutes, but I could not say how long. The curves occurring between the spot where we met the coach and the spot at which the accident occurred were all driven over at a pace of from ten to twelve miles an hour. The tendency at this time of course was to throw the coach iu to the bank. When I felt myself swinging it was outwards towards the gully. [A long examination ensued, the evidence being clearly opposed to the order of physical law.] When in Featherston I was attended by Dr. Spratt. I did not say to Dr. Spratt on the day of the accident, in the presence of Mr. Cadenhead, that " no blame was attributable to the driver, as the wind had blown the coach over," nor any words to that effect. The wind increased as we were going down the hill. Before the accident I had never heard of blowing vehicles over. There was nothiug in the nature of the wind to excite an impression of danger in my mind. A" puff just before the accident raised a cloud of : dust and small grit. The gust of wind was not very violent ; it was strong. Was it not a very violent and sudden gust ? It could not be so very violent, because I saw it coming towards'us. If was not particularly violent. Not such a gust as would have had any effect upon the coach ? I think not. I cannot say. I have not sufficient experience to form an opinion. We' had turned the corner before the cloud of dirt came, but I cannot say how many seconds before the accident the dust came. We only got the edge of the gust. The principal force of the wind was not against the coach. There was an appreciable interval of a second or two between the time I conceived the idea,of jumping out and the time when the gust of wind came. Dr. Spratt and the doctor from the ship, who consulted with Dr. Diver, were opposed to my coming down from Featherston. so soon, but I accepted Dr. Diver's reasons as being the best. Mr. Buckley : Then you decided to come down from Featherston for Diver's (divers) reasons ? (A laugh.) Yes. Talking to Greening, I said he should be careful to keep his curtains up. Mr. Travers : Then in fact the cause of the accident was the wind catching the curtains. It may have contributed, but at the pace.we were going on such a road we must have gone over. ' By Mr. Barton : Had you any conversation with Dr. Spratt in relation to the cause of the accident ? Witness ; I don't remember anything being said about the cause of the accident. I was in great pain, and there were about 50 people running in and out of the room, and I could scarcely tell what did pass, but I don't remember having any such conversation with Dr. Spratt as has been put to me by Mr. . Travers. Both Mr. Duncan and myself were quite satisfied that—— A Mr. Traver 3 : We cau't have what Mr. Duncan thought yet. Witness : Well, my impression was that if the driver had acted properly we should have had no accident. I asked the driver after the accident how it was that the driver always escaped. He said he had the reins .round his legs, or something to that effect, and Beemed to evade the question. John Little, stationer in Wellington, deposed he was a passenger by Hastwell'B coach at the time of the accident, and was in the same coach as Mr. Toxward. He generally

confirmed plaintiff's evidence in respect to the weather, and the fact of the curtains of the coach being do\vn. As to the pace .he said : I think the pace was about the same as usual. Wo came down the hill at a good trot. _ Respecting the accident he said: All I know is we were coming dowji at a good pace, got, turned over, and knocked on the head. (Laughter.) By Mr. Travers : I have gone down the Paikakariki faster. I thought the pace dangerous round the curves, but I have thought the pace fast over the Paikakariki hill. There was nothing unusual in the pace. The curtains were down on both sides. Andrew Young, coach proprietor, deposed : I am experienced in coach-driving. I have always used American coaches. I get the running gear —that is, everything hut the body—from America. Mr. Hastwell does the same. The coaches are classified according to the number of passengers. An order for gear for eight-passenger coach would be understood in America. They run eight, eleven,_ and fourteen passengers. Eight passenger gear is not as strong as that of an eleven-passenger coach. In the latter the wheels are 3in. to 4in. wider apart than in the eight-gear. Then there is a difference in the length of the coaches of from 4in. to 6iu.—l think 6in. The brake, too, is heavier and stronger on the eleveu-passer.ger coaches. Mr. Black builds the bodies of the ooaches here. The coach harness comes from America. Breeehings are sent unless the harness is ordered without breeehings; it saves money to have no breeehings. On the Paikakariki hill I use breeehings with my horses. No doubt they are necessary for the Paikakariki, or any other steep hill. The Paikakariki has not so bad a character for wind as the Rimutaka. I drove a coach overthe Paikakariki for four years, and never met with any accident from the wind. I always walked down the bad pieces, such as 1 in 12; the rest I did at 6 miles an hour. It would not be safe to turn a corner of one of our street at 12 miles an hour, much less down the Rimutaka, particularly if the brake *was hard down. Coming to the point of the curve, marked on the diagrams, the coach should be steadied 20 or 30 yards before reaching the point. Suddenly descending from 1 in 84 to 1 in 17 it would be impossible to >u'l the horses up. It would be the duty of the driver to go over such a piece of road slowly—the glower the safer. To Mr. Travers : I should not consider six or seven, miles an hour too fast on a road of 1 in 84. Witness was shown a diagram on which the track of the coach round the curve was marked, ami said it seemed from the plan that the team had been in difficulties after the centre of the curve was reached. A good deal of technical evidence was given on this point. The Wangaehu hill was about as steep as the Rimutaka, and he did not use breeehings on that hill ffeused them on the Manawatu Gorge road because of the steep descent into the punt. There were some steep hills going into Patea. Breeehings were used there before the road was metalled. Witness gave similar evidence respecting the non-use of breeehings on Marton and Ngahauranga lines. Should consider Greenintr a good driver. Witness had driven on the same road with him some years ago. In reference to driving gear witness said : I often use eight-passenger frames for eleven-passenger bodies, because frequently they are strengthened for the purpose. The coaches I use are precisely the same as those nse't by Mr. Hastwell. If the wind struck the horses just as they rounded the point it would cause them to swerve. To Mr. Barton : The six-feet bank on one side should have protected the horses, supposing the wind came from the direction indicated by defendant's theory. If the horses had not got possession of the driver before he got to the point, he might have pulled them up in twenty yards. If the horses, in consequence of the wind, bolted at the point, the coach Bhould have been kept from going over if the pace was only sis miles an hour, before the halt. The coach must have had possession of the team, or the horses would not have gone over. A pace of twelve miles an hour would account for tlie manner in which the team went over the bank. The Court adjourned at 4.45 till 10 a.m. next day. m^m - m — mmmm — m^m .