MINING APPEAL CASES.

Te Aroha News, 15 February 1890, Page 3

MINING APPEAL CASES.

THE WARDEN’S DECISION UPHELD.

Auckland, February 7. The mining appeal case Goldmining Company (appellants) v. Sawyer .(respondent) occupied the Supreme Court until a late hour yesterday afternoon, when His Honor Mr Justice Conolly decided that the appeal must be dismissed, and deferred the question of costs for argument in Judge’s Chambers this morning. His Honor, in giving judgment, said it would be useless for him to give an elaborate written judgment, because cases of this kind would each have to be decided upon their merits. Numerous authorities had been cited by counsel, but did not think it necessary to refer to. Counsel for the appellant had argued and His H,onor agreed that Sawyer would have had no remedy if he had been only exposed to ordinary risks, and. in this connection he observed that section 216 of the Act was not limited in its application to persons in the employ of the Company. If so, it would not refer to the plaintiff (Sawyer), but section 216 showed that the fact of an accident occuring was primct facie evidence that the accident was caused by negligence of the owner, and the onus of proof that there was no negligence rested with the Company. His Honor said it was clear that there was no contributory negligence on the part of the respondent, and the only question remaining was that of damages. There was not the smallest question as fo how the accident occurred. It arose through the striking, of the cage on a broken slab projecting into the shaft, also that the stoppage caused the chain to slip on to the bonnet, and lifted the bonnet up. A theory pub. forward by counsel that the jar of the drop caused the bonnet to fly up was unreasonable. The real 'question was,, therefore, whether the projection of this slab constituted negligence. There was a conflict of testimony as to the examination of the shaft, and His Honor noted that in the mine manager’s diary there was a space of about a month during which no examination appeared to have been made. There was also a conflict of testimony’ as to whether the breaks in the slab were recent or old, but there was evidence to show that had there been proper inspection the state of the slab must have been discov : ered. He therefore concluded that there was no proper examination, despite the assertion of Mr James, mine manager, to the contrary. His Honor was quite clear that if there had been a proper inspection of the shaft this accident would not have happened, and that the Company were liable for damages. He would deal with the case as an appeal to set aside the judgment of the Warden on the ground that the, damages awarded were excessive. It was not necessary for him bo say as a judge 'and jury what he Would consider sufficient, (but, he would nob alter the amount awarded by the Lower Court, £375. ; The appeal was therefore, dismissed with costs,' and the. latter question was argued out before His Honor in Judge’s Chambers this morning. The 1 argument was a lengthy one, Mr Hesketh contending that the costs should not exceed £2O as fixed by the Supreme code for appeal cases, while Mr Cooper argued that the respondent was entitled, to costs as if this had been an ordinary action in the Supreme Court. —His Honor after careful consideration said it would be a manifest absurdity in a case of this magnitude to allow not more than £2O costs, as that would not pay witnesses’ expenses alone, not to speak of counsel’s fees and other expenditure. He therefore gave judgment, under section 253, for the payment of the sum of £375 damages together with £SO costs, in addition to allowances to witnesses and £l6 4s costs in the Lower Court, disbursements and witnesses’ expenses to # be taxed by the Registrar. Hoskings (appellant) v. the Caledonian GoLDMiNinG Company (respondent). Mr Theo. Cooper for the appellant and Mr C. E. Button for the respondent. Mr Button asked that this case should be allowed to stand over till next sitting in Banco after the Civil Sittings, as they were not yet prepared to go on with the case. An order was made accordingly.