SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 4939, 20 January 1877, Page 3

SUPREME COURT.

CIVIL SITTINGS. Friday, J ax a ary 19. _ (Before his Honor the Chief Justice and a special jury.) TOXWAKD Y. HASTWELL. This case was resumed at 10 a.m, William Chapman, painter, of Featherston, proved that while assisting to carry Mr. Toxward to the hotel he heard Mr. Toxward say no blame was attachable to the driver —that the capsize was caused by the wind. Amos Knell, Church of England minister, passenger by the second coach down the hill, having changed from the first coach at the top of the hill, said Greening had examined his gear at the top of the hill. The average pace down the hill was about seven miles an hour, and the coaches were generally less than half a mile apart. From the behind coach he had seen the leading coach two or three minutes before the accident. Thomson came round the point and stopped the second coach, saying a dreadful accident had occurred. Passengers in the second coach did not feel the full force of the gu'it of wind which upset the coach, but they heard the noise, which was very loud. That was two or three minutes before the second coach got up to the scene of the accident. When he last saw the first coach he remarked how beautifully it wasgoing. By going “beautifully” he meant it was being well driven, the horses well in hand. He had never before heard such a noise as that referred to. It had died away before the second coach got up to the scene of the accident. Otto Haase, driver of the second coach, deposed : I, Baw the first coach in the act of turm ing the point round which the accident occurred., We were about two and a half minutes before we got up to the point where he was when we last saw him. When we got up to the point, I saw Mr. Thomson just in the act. of getting up to the top of the bank to regain the road. Stopped the coach by using the brake bard on for fifteen to twenty yards. I remember meeting Macara. Greening’s coach went On from Macara when we came up. We slacked speed in order to let Greening go on. We were never more than 350 yards apart. I took a horse out and went away for the doctor. I saw Bourke a mile and a half from where the accident took place. He could not have seen the accident. As we approached the scene of the accident there was a strong wind. There was a rumbling noise, and I felt the hind part of the coach lifting. ! Cross-examined ; My pace on that day was from six to six and a half miles an hour. That was the highest speed, I think ; the lowest speed would have been three and a half to four miles—that waa in turning the corners. This was the-first time I had been over the hill driving a regular coach. I saw Greening; . passing round the corner in the act of turning. Witness was examined by diagram as to an apparent sudden increase of distance between the coaches just before Greening, reached the point. ■ , James Macara, driver of the up coach on the day of the accident, said : I met Greening’s coach half or three quarters of a mile from the top of the hill. The other coach was then 300 yards distant behind Greening. Greening stopped talking with me until the other coach came up. I had seen the coach, approaching me. It was coining at the rate of six miles an hour. I have had five years’ experience of: the road ; six miles an hour is a safe pace. Greening had a steady team. I ; had felt nothing unusual in the wind that day —nothing to lead me to apprehend gusty weather. I know a man named Bourke; had passed him at the foot of the hijl near Drake’s Elbow. The scene of the accident' was two and a half miles from where I met the down; coach, and one and a half miles from the scene of the accident to Drake’s Elbow. When 11 passed Bourke, with another naan, he was 1 having his dinner on the bank side of the road, and I told them to get on the other side of the road for fear of their frightening the horses. It took me about fifty minutes to meet the coaches. It takes coaches an hour to go from the top of the hill to Featherston. Cross-examined: I have never done it in forty minutes. I am not certain whether it was on the day of the accident that I ordered Bourke and the other man to take dinner on the other side of the road. I am not positive I saw him on that day. James Bentley, jun., of Mastertbn, box-pas-senger on the coach on the day of the accident, proved that he saw Greening’s coach rounding the point where the accident happened, and generally corroborated the evidence of Otto. Cross-examined : I don’t know Otto sufficiently well to speak to him. I have not seen him since he gave evidence. Re-examined : I heard a great deal of noise just when the accident happened. Arthur Carkeek, surveyor, of the Hutt, verified plans (produced) made by himself. , Cross-examined : I have frequently travelled ! over the hill, and often timed the coach down the hill to Featherston. It has always taken : 50 minutes or rather more. 1 William Black, coachmaker, of Wellington, j gave evidence to the effect that the coach to : which the accident had happened had been well .and strongly made. The running gear had been strengthened. He had been engaged in ■building: thisrclass of coaches for thirty-two years, and he considered the coach equal to ! carrying eleven passengers. The brake was effectual for such a weight. 1 In cross-examination he said there was very little difference in the strength of eight and eleven passenger gear. There was a difference in the price. The wheels, axles, and reaches, were a shade stronger perhaps, though as the wheels of an eleven-passenger coach were two inches higher than those of an eight-passenger coach, to his mind the shorter wheels were in reality the stronger. : Re-examined: Eight-passenger gear is equal to a weight of 35cwt., exclusive of the weight of the body of the coach. 1 Richard James Greening, driver of the coach, deposed that he had travelled with eleven passengers pretty frequently, and had often pulled the coach up very short, and always adopted the same means of pulling them up—putting the brake on. His usual pace waa six to six and a half miles ; but on this occasion he was not going six miles an hour. Just before beginning to round the point he took his horses in hand and steadied the coach. He was driving as usualin going round the curve ; but the wind blew fiercely from behind and gave him trouble. He tried to hold his horses by placing his left hand In front of his right and putting his left foot upon the dashboard of tho coach. Both wheels were skidded. These exertions were necessary owing to the force of the wind, which took the coach on the quarter and affected the position

of the horses. The horses answered to the pull as well as they could, but did not succeed in getting the coach round on the proper road, owing to the enormous power of the wind. The coach went over in a very few seconds after the tinie it was in difficulties. The near hind wheel went over the bank first. He was pulled down the bank with the wheelers and forepart of the carriage. It was impossible to stop the coach with the brake. He had never had an accident before on that road. He had had much experience, and had driven the first coach that went across the Otira Gorge-road in Canterbury—a much worse road than the Rimutaka. The pace he was driving at round the curve was a safe pace. The accident was owing to the wind. The harness. and coach were in good order. Breechings are not necessary oh the Rimutaka. Witness was cross-examined by Mr. Barton at treat length, and a good deal of amusement was caused by the smart replies of witness to a number t of questions regarding his past coaching career. As to the circumstances attending the accident, he said he had not increased his speed coming to the curve ; did not, oh the 22ud December, run from the top of the hill to Pakuratahi in half an hour. This was the case for the defendant. Mr. Barton proceeded to evidence in rebutinenfc. ■ ; Cole proved that Greening, on 22nd December, drove the coach from the top of the, hill to Pakuratahi in half an hour. The pace was about twelve miles an hour. Saw Greening driving down the other side of the hill on Christmas Day at the rate,he thought, of twelve miles an hour. Mr. Travers then addressed the jury on the case, He said although great sympathy must be felt for the plaintiff in his suffering and loss, yet it was a remarkable fact that other persons who were greatly injured not only had abstained from bringing an action, had come to court to give evidence that the accident was npt thp result of negligence.. In consequence of the dangers of the road no doubt there were great reasons why coach proprietors should be. very careful; but the defendant had been careful. He analysed the evidence to show that the coach for carrying purposes was sufficiently .strong; equipped, also thatabreechingwasnot necessary. Having provided a. good coach, good-horses, and good harness, had defendant in his employ askilful coachman ? -The learned counsel showed from the evidence that Greening’s character for skill was not seriously impeached. Scarcely anything beyond the ordinary incidents of a twenty-two years’ career had been brought before the Court; but one or two witnesses, who had no means of ascertaining the speed, had come forward and said they had seen him driving at the rate of twelve miles an hour. Of what value was such evidence ? The question really was, what was the cause of the accident? Was it to be supposed that the two box-seat passengers (Messrs. Brunskill and Bath) who themselves were severely injured, had come forward to commit perjury for the purpose of robbing Mr. Toxward of his damages. Both these passengers attributed the accident to the wind, and the Rev. Mr. Knell, Mr. Duncan, and others spoke of the great wind and the immense clouds of dust. Were these gentlemen also parties to a foul conspiracy ? Could the jury disbelieve such statements ? If they did not utterly discredit these gentlemen’s statements, how could they find the accident was the result of the driver’s negligence ?. If the driver was skilful, and acted skilfully, .then the verdict must be for defendant. He trusted the jury would, by their verdict, declare that there was no negligence attributable to the defendant. Mr. Barton, addressing the jury for the plaintiff, pointed out that it was no sufficient defence to attribute an occurrence to the act of God, so long as that occurrence was contri-" buted to by want of care within the range of ordinary haman power. Supposing there were natural dangers, it was' the more necessary to take proper precautions to avoid them. Was or was not the driver of this coach, at a most dangerous point on a dangerous road, driving at a rate which waa incompatible with perfect safety, or with safety against any sudden surprise ? He contended that the evidence as to the rate at which the second coach had travelled—namely, six miles per hour—and as to the distance gained by the first coach, clearly showed that the pace of the first had been increased to 10J miles an hour, and this was' no safe speed at snch a point of danger. It; would be negligence and recklessness to invite' 'such risk ; and, though the driver himself declared that it would be so, the facts showed' that he had done it.. The evidence as to the ] furrow formed in the roadway showed that the passengers were entirely mistaken as to the lifting motion described being due to the wind. It was simply the ordinary sensation produced; by a carriage travelling at great speed round a curve. If cases of this character were 1 allowed to pass, the result would be disastrous, ’ carelessness would be encouraged. He submitted the verdict must be for plaintiff, with' substantial damages. - His Honor pointed out that the issues to be tried were in reality two—Did the defendant by his negligence and unskilfullness upset the coach and injure plaintiff ? If so, what amount of damages ia plaintiff entitled to recover ? He stated the principles which must guide them in assessing damages, supposing they considered a case for, damages made out, and then went on to explain the law upon the subject of the responsibility of a coach proprietor. A coach proprietor was bound to .take the utmost caro in carrying passengers—he was bound to provide a substantial coach, proper harness, and strong good-tempered horses , adequate to the work they were called upon, to- perform. He was further bound to employ skilful coachmen, and was responsible for accident if an accident were occasioned by the coachman acting unskilfully. On the' other hand, if all these things were provided, and an accident; happened, through what might be called the act of God, that was from a cause which the coachman could neither resist nor control, then the proprietor was_ not responsible for it.- - His Honor next proceeded to review the evidence; The plaintiff’s story was that undue speed was the cause of the accident;: i and that wind had little or- nothings to do with it. That was the contention of plaintiff ; defendant on the other hand said the accident was owing to the wind. But supposing it had been a windy day; if the coachman had gone at a speed which prevented him getting his horses sufficiently in hand, then he was responsible, because he had not taken the care he should have taken. Again, if the jury came to; the conclusion that the fact of the curtains being left up had contributed to the cause of the accident, notwithstanding that, as had been suggested by defendant, they ; were left up at the instance of a lady passenger, i that would be a point in plaintiff’s favor, for the driver was supposed to know best what ’was for the safety of the coach, and he should have exercised every precaution. The learned Judge said there had been a good deal,*of evidence in respect of the alleged defective'' state of the harness, owing to there being _ no breeching, and the fact of the coach consisting of an eleven-passenger body on an eight-pas-senger gear. But the jury must say whether they accepted the testimony of Messrs. Young, Hastwell, the various drivers,- and Mr. Black, 1 {n preference to the presumption sought to be established by plaintiff. The evidence as to the nature of the road and the pace was also analysed, as was Mr. Irvine’s evidence as to the strength of the wind. It was noticeable that Mr. Irvine could only give the average strength of the wind over a wide area ; it was not possible for him to give the speed of a particular gust ; while, on the other hand, the defendant’s witnesses variously described the wind as “exceptionally high,” “ terrific," and as “ a perfect gale.” The evidence of Messrs. Hastwell, Stilling, Wilton, Otto Haase, Greening, and that of the Rev. Mr. Knell, was briefly reviewed. The evidence of these gentlemen went to show there had been very violent wind, and that the driver had done all he possibly could. On behalf of the defendant stress had been laid on tho evidence that Mr. Toxward had said immediately after the accident that no blame was attributable to the driver. But this had been denied by plaintiff ; and further, his Honor put it to the jury whether they would place much importance on_a remark made by a man suffering great pain, and before he had had time to make inquiry. After

further remarks, the whole address extending to the length of an hour and three quarters, the learned Judge directed the jury to consider their verdict. The jury, after an absence of an hour and a half, returned into Court with a verdict for defendant on all issues. The Court then rose.