SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 4937, 18 January 1877, Page 2

SUPREME COURT.

CIVIL SITTINGS. Wednesday, January 17. Before his Honor the Chief Justice and a special jury, TOXWARD V. HASTWELL. This case was resumed. R. J, Duncan, auctioneer, of Wellington, called and examined, said: On the Ist September I was a passenger by Hastwell’s coach from Upper Hutt to Featherston. I was in the same coach as plaintiff, sitting on the back seat, between plaintiff and Mr. Carter. A moderate breeze was blowing at the top of the hill. It increased as we went down the hill, and came in heavy gusts when neared the roadman’s hut. Heavy clouds of dust andpebbles were blown up, and the passengers took off their hats to protect their faces. I did not observe anything particular in the pace ; there was nothing alarming in it. It was a little fast as we approached the roadman’s hut. Mr. Barton, said he was taken by surprise at the nature of the evidence given by Mr. Duncan, and he- must ask the Court to allow him to put questions to -test the credit or reliability of witness. The fact was there was reason to believe Mr. Duucau had given a quite different version to other persons. He must ask the Court to allow him to -treat Mr. Duncan as a hostile witness, examine him as to former statements, and if necessary call witnesses to contradict him, and enable him (Mr. Barton) to ask the jury not to rely too implicitly upon Mr. Duncan’s recollection of the circumstances. Mr. Travers contended that under the Common Law Procedure Act this course could not be adopted unless the witness proved a hostile witness. A- witness who merely varied in his statement was not a, hostile witness. It must be shown that the witness had animus- against the side for which he was called. The discussion proceeded at great length, and eventually,, at the suggestion of his Honor, the obj ection was withdrawn. Mr. Barton : Did you say to Mr. Toxward at the time of the accident that there had been scandalous driving? Witness ; It is not unlikely that I may have made such a remark. I cannot swear that I did or did not. Did you sny to Mr. Toxward, in his bedroom when you called to see him in- Wellington,. that careless driving was the cause of the accident, as the driver had no business to go where he did—that he should have kept closer in to the bank? I myself suffered a good deal on the occasion, audit is very likely I did say something of the kind. I had been over the road a good many times previously, and could not account for the accident. You know Dr. Diver ? Yes. Did you say to Dr. Diver, -< Advise Toxward to lay an action against Hastwell ?” Certainly not—most distinctly not. I can swear that. Or any similar words? No. Do you know Mr. Carroll of the Chamber o£ Commerce? Yes. Did you say to him: “ The accident was entirely owing to careless driving by Greening 2” I don’t remember speaking to Mr. Carroll, but I have had a good many conversations on the circumstances. , Whatever you said shortly after the accident, I presume, was at that time your opinion? Yes. Just after the accident I may have said the accident was owing to bad driving 1 , .but in cooler moments I have a different, opinion. I can scarcely say what was the cause of the accident. I could not see the driver or the horses. The Chief Justice ; At the time or just before the accident did you observe that the coach was out of its ordinary course ? Certainly not. Or anything out of the ordinary pace ? Coming to the turn the pace was slightly increased. To Mr. Barton ; I cannot swear I did not . say to Mr. Carroll that it was all nonsense about the wind, the cause of the accident was bad driving. If I did say such a thing to Mr. Carroll that must have been my opinion at the time. I did not in Dr. Diver’s surgery say to Dr., Diver: “ You tell Toxward : from me to bring an action. He ought to "get heavy damages, as the accident was owing to-careless driving.” I do not remember saying it. Mr, Toxward was the first person to suggest to me that an action should be taken. To Mr. Travers : I did not see the driver, and my opinions of the cause of the accident were formed from what was pointed out to me after the accident. I had no means myself of judging of the cause of the accident. A few seconds before the upset of the coach there was nothing in the progress of the coach to create alarm but the violent gusty wind. Carter and I had our hats off to protect our faces from the small stones ; the curtain protected plaintiff. The gust was most violent at this point. I have frequently gone over the hill with Greening. It takes forty or fifty minutes to get from the top of the hill to Shirley’s ; the distance is seven or eight miles, and the last few miles is comparatively level. On the level road the driver drives with more confidence, and urges the horses on. The behind coach was out of sight. As we approached the point the fast speed and the heavy wind made me feel a little nervous. I have frequently travelled by the same class of coaches without accident. To Mr. Barton : Until we came to the level piece just at the turn, I thought it would have been more safe had we been going slower. The pace, except at this particular part, was not faster than usual. Henry William Diver, M.D., deposed : I am family doctor to plaintiff, and went up to Featherston after the accident. [He described the injuries plaintiff had sustained]. There was a consultation as to the desirableness of removing plaintiff to town; he was removed at my instance, and I think there was a great advantage in that, because owing to the break being so bad it was necessary he should be seen to most carefully, whereas in the country he could only be visited once in two days. Serious consequences, such as lockjaw, might have ensued were a surgeon not constantly in attendance. His removal was very easy, and owing to appliances I took up, and the care shown by Mr. Hastwell, the patient told me he did not feel less comfortable in the carriage than he did in the bed at Featherston. I consider his present state of recoveryis owing to his coming into town. Ihave attended him throughout. He will not be able to walk without a crutch or stick for another four or ft ;e months. He will always suffer with the leg as long as he lives. It will not be inconvenient to walk, but

he ■will suffer pain occasionally. It is early to cnve so favorable an opinion, but X anticipate from present appearances that he will recover pretty well in four or five mouths. He will not be able to mount scaffolding over unfinished buildings, except with difficulty. The leg will be weak for another year. My charges’ up to Christmas were seventy-five Guineas —twenty-five being the trip to ITeatherston. I am still attending him, and my whole charges will be about a hundred Barton then proposed to ask Dr. Diver questions u'/to the conversation in his surgery < s Nbveeo him and Mr. Duncan. Mr. Travers objected, and after some discussion . ~, Mr. Barton withdrew the question, as he dici not desire to run the risk of a possible new trial for the wrongful admission of improper evidence. Cross-examined by Mr. Travers: It was a compound and comminuted fracture. Plaintiff's constitution is so good that his recovery William Henry Clayton, Colonial Architect, deposed : I have been an architect of twentysix or twenty-seven years standing. 1 nan the misfortune to break my leg some nine or ten years ago. That has. been a great detriment to me in my profession. In Wellington architects generally pick up their business in the streets. , . , Archibald Hall, coach-driver on the road between Wellington and 1 oxton stated that he drove over the Paikakanki hill frequently in the course of his work, _ and gave evidence generally as to coach driving. He considered breechings of little practical value, being only useful in cases where a horse falls. On the Paikakarika hill stage breechings were desirable. . . ~ . . Charles Popping Irvine, civil engineer, &c.: Was a Graduate of a University, and had studied anemometry. Had made certain plans produced He proved that the radius of the curve near which the accident happened was under 25 feet, and gave a vast amount of scientificevidence respecting the position, levels, &c., of the ground. He was also examined as to the direction and velocity of the wind at Wellington, Wanganui, and Napier, and calculated the”mean force for the whole area at 17 miles per hour. He also had calculated the weight of the coach, ascertained the centre of gravity, and calculated the centrifugal force of a coach, about one and a-half ton weight, going round a curve of radii from 20 to 30 feet at rates of speed varying from four miles to eighteen miles an hour. " .From these different calculations lie inferred that if the coach had been travelling round the curve at a rate of five miles an hour, the horses and brake would have been able to bear a wind of forty miles an hour—a wind that was seldom ever experienced, and which the curtains could scarcely stand. He considered if the coach were going at the pace’ represented it would be utter nonsense to say the coach was blown over. If it were driven round the curve of 25 feet radius at the rate of 10 miles or upwards of 10 miles an hour, it would he very likely to turn over. Four miles an hour would be quite fast enough consistent with safety. Since the accident--on Christmas Day—he saw Greening driving the coach aver the same ground at the rate of 12 miles an hour. He did not wonder at there being accidents if the pace on Christmas Day was the ordinary pace. The Court then adjourned.