SUPREME COURT.

New Zealand Times, Volume XXXII, Issue 5093, 20 July 1877, Page 3

SUPREME COURT.

CIVIL SITTINGS. (Before His Honor Chief Justice Prendergast, and a special jury.) The Court opened at 10 o’clock yesterday morning. MORRIS V. O’MALLEY.

The following gentlemen were sworn in as a jury;—Messrs. Peter Laing, Leslie Williams, Gandy, Gaby, Shannon, Holt, Bishop, Cleland, T. Mason, Wright, Powles, and Mclntyre. Mr. Barton appeared for the plaintiff, and Mr. Travers, with Mr. Hart, for the defendant.

In this case the declaration set out that the defendant was possessed of a certain railway line, which had certain side lines connected with it; that the defendant used to place certain trucks on the side lines; that it was the duty of the defendant to have sufficients stops or guards on the side lines to prevent the trucks from projecting on the main line; that on the 4th day of July, 1876, a truck was being pushed by an engine along the main line; that the plaintiff was in the truck holding certain wheels; that the truck in which the plaintiff was came into violent collision with another truck on the side line, which had been left there by the negligence of the defendant; that the plaintiff was thereby crushed and injured, and his legfwas necessarily amputated; that the plaintiff had incurred great expense, and had been incapacitated from following his trade of a railway waggon builder. The plaintiff claimed £3OO as damages. Mr. Barton, having opened his case, proceeded to the evidence, and called

John Morris, the plaintiff, who, having been sworn, deposed that on the day in question he »nd his mate got on the footplate of the engine, and proceeded along the line. Just before reaching the siding he noticed that the wheels of the engine were becoming loose, and he got on to the buffer of the waggon next the engine, in order to steady the wheels. While in the act of steadying them and lightening the scotch the waggon I was standing on caught the first waggon on No. 1 siding, which was foul of the main line, and the collision thus occurred which resulted in the injury to witness’s leg. Tha sudden jerk caused his right leg to slip down in front of the buffer upon which witness was standing, and before he could recover himself the collision took place which smashed his leg. A large amount of evidence was then given as to the nature of the accident. The witness was cross-examined, at some length, with a view to show that the negligence was on the part of the plaintiff, and not chargeable against the defendant. Witness stated, in answer to a question, that he was not a servant, but a contractor. At the close of the plaintiff’s case, Mr. Travers submitted that there was no case to go to the jury. It was plaintiff's own fault that the accident occurred, and even if there was negligence on the part of the engine-driver, which he submitted there was not, Mr. O’Malley could not be held to be responsible for it.

The Court was of opinion that there was evidence to go to the jury, and the learned counsel then asked for leave to be reserved to move for a nonsuit.

Mr. Barton objected, hut his Honor intimated that he would grant Mr. Travers’ application for leave to move for a nonsuit.

The case was then proceeded with, and Mr. Traders called the defendant, Mr. O’Malley, who deposed that plaintiff was employed by him to repair waggons on any part of the reclamation works where his services were required. The plaintiff was standing on the buffer of a truck in motion when the collision occurred, and was pitched off. Every precaution is taken by witness to prevent accidents on his works. Witness described the position of the trucks at the time of the occurrence. The moving train ran into a stationary truck on a siding. Mr. Barton cross-examined the witness, who stated that after the accident by which plaintiff lost his leg, which was so badly crushed that it had to be amputated, he did not call at the hospital to see him because he did not think he could do him any good by going there, and he held that he (Mr. O’Malley) was in no way responsible for the occurrence. Evidence was given that at the time of the accident the train of waggons was going very slowly. Mr. Anderson, Mr. O’Malley's foreman, described the manner in which the stationary trucks were “ spragged” so as to prevent them moving. Witness was present at the time of the occurrence, and saw the man fall as the moving train of waggons came into collision with the stationary truck. Mr. Travers addressed the Court and jury for the defence, urging that Mr. O’Malley was in no way responsible for the accident and its results, and therefore was not liable to plaintiff for damages. The plaintiff was negligently standing in an unsafe place at the time of the occurrence.

Mr. Barton replied on the whole case on behalf of the plaintiff. His Honor summed up, and the jury retired at 7.20 p.m. to consider their verdict. At 8.10 p.m. they returned into Court with a verdict on the issues as follows : -

1. Was the defendant possessed of a single line of railway along which he ran trucks for the purpose of certain contract work's as in the declaration alleged ?—lt was admitted that he was.

2. Has such single line of railway certain side-lines connected therewith as in the declaration alleged ?—lt was admitted that it had.

3. Did the defendant place trucks on such side-lines while being loaded, or while being unused, as in the declaration alleged ?—lt was admitted that he did.

4. Was it the duty of the defendant to have some sufficient protection placed on the said railway line where it joins the side-lines, so as to prevent any train of trucks left standing or pushed upon the said side lines from coming into collision with the engine and train of trucks running upon the main line?—Yes.

5. On or about tho 4th July, 1876, was a certain truck being pushed by tho defendant's engine along the said main line of railway carrying certain wheels and axles to a place where the said wheels and axles were to be mended ? —lt was admitted that there was a truck being pushed. 6. While the said wheels and axles were being so carried on the said truck, did they roll towards a portion of the said truck where their weight would have endangered the tipping of the said truck ?—Yes.

7. Was the plaintiff riding on the said truck lawfully engaged in endeavoring to secure the said wheels find axles in a safe position, so as to prevent the tipping of the said truck?—Yea. 8. While the plaintiff was so engaged did the said truck come violently into collision with certain trucks left by the defendant upon the said line?—Yes.

9. Had the said trucks been permitted by the defendant to come too close to the main lain by reason of the negligence of the defen-

daut iu not providing any sufficient protection on tlie said railway line where it joins the side lines, so as to prevent the said trucks from coming into collision with the engine and train of trucks running on the main line?—No evidence.

■9a. Was the collision caused by the said negligence, of the defendant?—Yes. 10. Was the plaintiff at the time of the accident in the employment of the defendant? —Yes. . .

11. Was the negligence and unskilfulness complained of that of a person in the common employment with the plaintiff, and not the negligence and unskilfulness of the defendant? —Of both defendant and his servant.

12. Was the injury complained of caused by the plaintiff’s own negligence?—No. 13. Was the plaintiff by such collision permanently injured and incapacitated from his employment of a railway waggon builder? Yes.

14. Did the plaintiff thereby suffer great pain and incur great expense?—'Yes. 15. Did the defendant so negligently manage a certain truck upon a certain side line of railway that by reason thereof the plaintiff was injured?—Yes. 16. Did the plaintiff thereby suffer great pain and incur great expense?—Yes. 17. Was the plaintiff thereby permanently incapacitated from his employment of a railway waggon builder?—Yes. 18. Is the plaintiff entitled to any, and if any, what damages?—Yes, £75. Verdict for plaintiff for £75. His Honor certified that this was a proper case for trial in the Supreme Court?—Yes. The Court adjourned at 8.25 p.m. until 10 a.m. this morning.