RESIDENT MAGISTRATE’S COURT

Poverty Bay Standard, Volume I, Issue 44, 16 April 1873, Page 2

RESIDENT MAGISTRATE’S COURT

Thursday, Ann, 10. [Before W. K. Nesbitt, Esq., R.M.] Geo. Davis v. P. M’Fablane.—Claim £4O value of a hone killed by means of defendant’s cow. Mr. Cuff appeared for plaintiff; Mr, Brook Taylor , for defendant. The following interesting case was set down for hearing last Thursday, and was adjourned to Saturday. Judgment was given on Monday morning.— George Davis, sworn, Aatest—l started for Ormond, with my'loaded dray, on Saturday, the sth inst. When about three miles from town 1 met defendant’s boys driving a cow and calf. I heard some natives behind me, and I turned round. As I did so they called out, “ Look at the horses." One of the leaders was plungjng. On examining the mare I found a wound on her hip, bleeding profusely. The cow was on the 'same side as the mare; she died the following morning. By Mr. Taylor: The cow was about three or four feet from the horses, when I turned my head to look behind.

I think there was a rope on the calf. The horse that Was killed ’ was ,a very quiet one. The near horse did not shy. I examined the I shaft of the dray; there was blood on the end of it. No one cleaned the blood off to my know- I ledge. 1 swear I did not pull the horse on to the shaft. I swear that when they were plung-1 ing the leader did not come on to the shaft.— Hoane Kewa, sworn, states: —I and Te Pirihi overtook Geo. Davis, with his dray, near the slaughter-house fence. We were riding behind the dray. I saw M’Farlane’s boys coming I down the road with cows. The boy who was driving the cow with a young calf with a rope on it, lifted a stick to beat the calf, and I think

that frightened the horses, because they shied on the near side. On the horses starting, the cow rushed at the off-side leader, and appeared i to gore it with her horns. I saw the wound soon after. I saw blood on the shaft, also on the harness.—Te Pirihi, sworn, corroborated the former witnesses evidence.—-Clawson Anderson and James Taylor deposed to the value of the mare being about £34 to £4o.—For the defence Charles M’Farlane, sworn, statesl am 13 years of age. As I was coming down I the road, Davis was going up with his cart and three horses. They were on my right hand side. The cow was seven or eight yards from the dray. I was between the cow and the cart. The cow did not go nearer than seven or eight I yards to either the cart or the horses until we passed. On passing, the horses jumped, and the cow ran away; the horses jumped in a I direction from the cow. I noticed the cow’s horns after we passed. There was no difference in their appearance. The cow’s horns pointed | downwards. .The calf did not go near the horses. I saw blood running from the I top of the horse’s hip. • I saw a wound; it was I a long wound. The end of the shaft was covered with blood. The cow has recently calved; and is quiet. By Mr. Cuff: I have I not driven the cow before since her calving. I had a long manuka stick with me. I was walk- I ing alongside my brother, and endeavoring to keep the calf from the cart. I did not raise the stick. I did not run to keep the cow off

the cart. I turned the cow off the road by walking alongside of her. I did not hit her. I saw nothing that startled the horses, except it was the calf. The wound inflicted on the horse was about a foot above the shaft point.

The horses shied with their heads towards me. They jumped back at the same time. The mare went down underneath the shaft when she jumped back. She knocked the shaft horse back. The cow was standing off in the fem at the time. This all happened in less than two minutes. The cow ran back after the accident; she was going away from the horses when the accident occurred. I was pulling the calf away from the horses. I had the stick in my hand during the accident. I saw the wound when the horse sprang forward. By the Court: The plaintiff did not make any remark to either me or my brother.—James M’Farlane, sworn, corroborated, circumstan- I

tially, the previous evidence. He did not notice whether the hone struck anything He saw the wound on the horse, and blood on the shaft of the dray. The wound was as large as his hand.. The point of the shaft was covered with blood. The cow did not go near the horses. The accident was not done by the. cow. Her horns are sharp and turn down towards the face. The calf was on the side of

the road quite dose to the hones. By Mr. Cuff: I swear that the cow did not rush at the hones. I did not see anything frighten the horses but the calf. I did not hear the natives speak. I heard Mr. Davis say to some one that it was the calf that frightened the hone. Peter M’Farlane deposed s—The cow is one of the quietest I have. I bred her myself by hand feeding. I examined the wound of the horse after it was buried. The wound was about three inches long, and as if it had been cut with a sharp instrument. I believe it to be almost impossible for the cow to have made this wound. —John Thomas, sworn, states.—l examined

the hone that was killed. I washed the wound and examined it. It appeared to have been I done by some blunt iron instrument, or a shaft. The flesh with the hide had been forced inwardly. Ido not think it could have been done with the horn of a cow. By Mr, Cuff: The wound was very high. It would be possible and quite probable to receive such a wound from the shaft of a cart. The wound was under the hip bone and .pointing forwards.—Judgment : Ist. The evidence is not sufficiently clear as to the cow having killed the- hone. The weight of evidence and all the circumstances surrounding the transaction axe opposed to such

a supposition. 2nd. No negligence or want of care has been proved against defendant. Bis admitted that probably the calf frightened the hones of the plaintiff; but to guard against such an occurrence with absolute certainty, the defendant would have to refrain Altogether I from driving his cattie on the highway, which I would be unreasonable. 3rd. 'fhe plaintiff I /does not appear to have taken every rriwonshln J

care to avoid an accident at the veiy time the alleged cause of it was approaching; he turned round and was not in fact looking at his team at the moment his horse was wounded. He admits, besides, that he had only the leading horses in hand,* the reins of the shaft horse bring at the time tied to a portion of the cart. Judgment must be given for defendant.