SUPREME COURT.

Taranaki Daily News, Volume LIV, Issue 78, 22 September 1911, Page 2

SUPREME COURT.

NEW PLYMOUTH SESSIONS.

inUMTHRIRS v. WESTPORT COAL COMPANY.

The Supreme Court sessions resumed yeeterday, when William Humphries sued the Westport Coal Company for £IOOO damages for personal injuries sustained by being knocked down by defendant's horse and cart. Mr. E. G. Jcllicoe appeared for the plaintiff, and Mr. A. L. llerdman, with him Mr. J. H. Quilliam, for the defendants.

r The jury wasempanelled as follows: F. M. Morris, 11., H. Tunbridge, Jas. iPurdie, W. 11. Jury, Gus Sole, Jus. McLeod, J. R. West, M. Jones, .1. V. Copostakc, K. W. Wheatley, <L. F. Webster, and Geo. Moverley. Mr. JeTlieoe, in opening the plaintiffs case, .said that in most cases of this kind the facts were in dispute, and sometimes there was some very hard swearing. This easo was unique. Very few of the facts were in dispute. The issue was simple and a narrow one, and he hoped they would not be troubled with any hard swearing. It' would be proved that the defendant Company's servant, O'Brien, standing upright in a light and empty cart, was trotting an exceedingly fresh, fast and powerful cart-horse, at a a time of day when it might reasonably be expected that pedestrians would be crossing the street in the ordinary course of business. Just when commencing th« ascent of the. southern incline, the driver gave a fthrill whistle, and the plaintiff was struck by the cart, and had five rib* broken, his lungs were pierced, and sustained permanent injuries. Those facts were admitted on the pleadings. The fact not admitted wan whether, as the defendant alleged, the accident was brought about by no negligence at ail but was an inevitable accident. It would be obvious to the jury that 'the words "inevitable accident" did not apply to anything that was inevitable or avoidable by the exercise of ordinary caution, ordinary care, ordinary prudence, or ordinary akiU. That was the only issue the jury would ha,yc to determine. The defendants, in their pleadings, set up that the accident was wholly unvoidaMe. He would show that this horsie needed handling with more than ordinary prudence. The man might have checked the pace of the horse a.fter passing Brougham street, but was evidently exercising the. horse, which had been entered by O'Brien or by someone else in a, trotting competition at the local show. The jury would have to say whether there wjw want of care or prudence in trotting *n animal along the street in this way. : %Some drivers, remarked counsel, seemed to have an idea that they owned the highways, and that it was the duty of pedestrians to get out of their way. But the law said that drivers were Abound to take due caution to avoid foot passengers. If a runaway horse in daylight ran down a man the law presumed that the driver was at fault. Assuming thai the jury found that the defendant company was responsible for the accident, there remained to be considered the measure of compensation. In this there should be little difficulty. Humphries' injuries were admitted. He was permanently injured, unable for a long time to follow his ordinary occupation, and the loss he had suffered was admitted to be £5 a week, and there was also the heavy expense of his illness. To the lons of about .f.IOO or £IOO admittedly incurred must bo added compensation for permanent injuries. Who -was to suffer? The mnn who ait liis own risk or peril chose to use the highway for exercising a powerful horse, or the man who was injured? Henry Richard (Boswell, a coal dealer, at one time inr the employ of the Westport Coal <o. in looking after horses and delivering coal, said he knew the horse "Sam." He wan a friend of witness' in those days. He drove this horse for about three years, and knew him well. He was a medium-weight, active carthorse, with m, very good mouth. He answered well to the rein, and was not addicted to shying. If the horse were travelling at the rate of four miles an hour the horse could be cheeked in from 20 to 25 yard?*. Tf he were going at seven or eight miles an hour—well, he could not say. He had never lost control of the* animal when driving him.

To Mr. Herdman: He had l>eeii out of the company's- service for about 15 or 18 months. He didn't know the age of the horse. Ho had always found the horse a good and tractable one. He knew O'Brien, ami knew him as an able and careful driver, not likely to come down the principal street in the town and deliberately run over a man. Mr. Jellicoe: That would be manslaughter.

To .Mr. Herdman: All horses were liable to shy. he supposed.

Hurry James Gilbert, seedsman, of Xew Plymouth, remembered that on October 7 of last year, a little l>cfore ten o'clock in tlve morning, lie was with Mr. Humphries, and left him at the Bank of New Zealand corner, Devon and Brougham streets. Witness crossed the street to Ambury's, on tho opposite corner, to meet the Breakwater 'bus. Whilst there lie saw the coal-cart driven by O'Brien from the east end of the town, down Devon street. The horse was being driven fast, at about seven or eight miles an hour, the. driver standing up in a light and empty delivery cart. The horse was trotting, and witness took particular notice of his fine action and the rate of speed. The animal was in good condition, well-groomed, fairTy fresh, and it had a, clear road, with the exception of a meat waggon standing in front of doll's. His attention was attracted by a noise of some kind, and turning his head, he saw Humphries, about ten feet from the kerb, being twirled by the point of the shaft. The driver did not cheek the horse's pace whilst travelling between Newton King's, half a chain on the olio side of Brougham street, and Goldwater's, about a chain on the other side. This was on the level. He saw no 'bus in the street.

, To -Mr. llcrdnian: The accident hap- . pened in the vicinity of Avery's. Jin , did not know exactly' where. He didn't know the .pace the horse was travelling when Humphries was struck, arid could I not say whether the driver was standing up or not then. The horse appeared to , he frightened. Humphries was spun , round two or Llireo times before he fell. As soon ns he saw the accident he went \ off to tell one of Mr. Humphries' sons about it. lie considered seven "or eight ! miles an hour excessive in Devon street. He didn't know what pace the bakers, ; butchers, doctors and otliurs used. The ' streets were narrow here. He was quite 1 sure that this horse could travel at seven or eight miles an hour. Re-examined: The, cart was in the middle of the road when it passed him. Augustus J-Mward Wiitkins said lie was with Mr. Humphries in Devon street on October 7 hist. He conversed with him on the footpath, ami on the road, and crossed Devon street with him from Vurlong's shop towards Avery's. When about five or six feet from the kerbing. j above Calvert's shop, a horse's head I came between Humphries and himself. ! He jumped into the water-table, but Humphries, was struck. He saw the I shaft strike Humphries and knock him down, and saw the wheel pass over him. Humphries was only about a foot away ! from him when struck. They had no I warning of the animal's approach. Ho '■

| assisted in conveying the injured man i to Toed and Co.'s.

To Mr. Herdman: Humphries was an elderly man. Witness and Humphries were on opposite sides of the street liefore this, but they crossed to meet one (another, and met in front of Furlong's shop, about sevenieet from the kerbing. They talked together, and strolled across towards Avery's. Their backs would be towards the cart. Humphries was on his right. He did not hear the cart approach. The left wheel passed over Humphries. They were both pretty well absorbed an their conversation, and were going to Avery's to get a news.paper to settle an argument as to whether or not lieutenant Weeks, of the Admiralty, was in New Plymouth in connection with petroleum matters. There was a butcher's waggon in tho street, but he saw no one unloading meat from it. After the wheel went over Humphries the driver pulled the horse towards the Coffee Palace corner. The, horse appeared to be afraid. The driver was standing up. Tho driver seemed to be trying to turn round, and that was difficult in the circumstances.

Edward Arthur Jeffries, who was in charge of the meat waggon outside Joll's shop that morning, said he had brought a load of meat ami was unloading it when he heard a whistle. He was carrying the meat, and there was an assistant in the cart. The tail-board was to the east. Simultaneously with hearing the whistlo he saw a horse and cart about the centre of the road in front of Furlong's. The horse- had broken out of a trot, but the pace remained the same. When the cart had gone a trifle past, the butcher'B shop, he saw it run over'a man, Mr. Humphries, who was in company with another mm Humphries fell, and the cart went over him. The horse was pulled up within about 20 or 25 yards, as far as he could guess. Witness had driven horses nearly all his life, off and on. Ho could not say whether he could have pulled the horse up any more quitWy. Tl>« horae was fresh. Witness was «ot interested in the trotting competition at the- local show, Grqss-cmmined: The meat waggon was not backed up to the path, but standing alongside it. Between the time he first saw the horse »nd the moment the accident happened the horse liad veered from the centre of the road to nearer Avery's side. When he first saw the horse O'Brien seemed to bo endeavoring to pull up the animal. The horse was the ordinary type of horse to be seen in a coal cart. He appeared to be startled. He thought O'Brien was doing his best to manage the horse.

Mr. Jellicoe: At the time of the accident?— Yes.

Re-examined: The horse was veering to its proper side of the road just, as it passed him. He did not notice it go any closer to the kerb than the point where Humphries woa knocked down. Christian Skitrop, borough engineer at Xew Plymouth, deposed that the distance from Liardet street to -Brougham street along Devon Line was l-t|A chains. Devon street was a chain and a-half wide, but about 45 feet from kerb to kerb. The grad« from Liardet street to Currie street wa« one in Ii.JK), and from, Currie street to Brougham street one in 41. Then the road was practically level from Brougham street towards Egmont street. There was n rise of one in 05.85 to opposite Avery's. From Egmont street to Queen street the grade was one in 12. The distance from Furlong's shop to the southern side of Joll's shop was (A) links—just under a chain.

Arthur Cliff, secretary to the Taranaki Agricultural Society, stated that on November 30 and December 1 last the Society held a spring show, at which the Wentport Coal Company entered a horse, "Sam," in the competition for springcart horse suitable for drawing one ton. To Mr. Hcrdman: He had known O'Brien for some y«ar», and find always understood he wa.t a careful driver. A pace of seven or eight miles an hour in Devon street was plenty fast enough far a heavy turn-out.

Dr. Hinckley was present., but was not examined, as the allegations of injuries were not denied.

William Humphries, the plaintiff, in his evidence, stated that in crossing the road he exercised ordinary prudence. He did not hear the approach of the horse and cart. lli« injuries were as set out in the pleading, and he was permanently injured. He was not standing talking in the street, as far as he could remember. His hearing was good. He was still suffering from his injuries, and could not put on his clothes without pain.

Mr. Jellicoe: How long have vou been ! crossing that street?— For about 00 | years. | Gerald O'Brien, driver, said that in October of last year he was employed and was still employed by the defendI ant company. He had * been driving horses for 15 or Hi years, and underI stood how* thoroughly, lie had been | driving for the company for about six years. He had been driving the horse "Sam" for about nine years. He was [ a quiet horse, not' addicted to shying, I unless, say, a pi<we of paper blew up in front of him, or something of that kind, On the morning in question he harnessed up in the yard, and drove | up to the coiichbuilder's to have a propstick put on. He returned at a jog trot, about five miles an. hour, and had complete control over the horse. He saw plaintiff and Watkjns slowlv walking across Devon street. Humphries had his hack towards witnes as they walked in the direction of Avery's shop. There was a butcher's waggon in front of .Toll's, and a 'bus in front of Avery's, or thereabouts. He was on his proper side of the road, but near the middle. Humphries and Wafckins were 30 or 40 yards away when he first saw them. As he approached them, he noticed his horse l> r 'ck up bin ears and snort at the meat waggon, where men were discharging carcases of sheep, one of which had wool on it. The horse was going to shy. He got off his seal—he was sitting in the cart at the timi—took a firmer grip of the, horse, and whistled to warn the two men. When be took hold of the lior»o it reared up iiud bounded to the. left, striking Humphries as ho landed. He tried to keep the horse clear of Humphries, who was by this time getting towards (he footpath. But for (he horse bounding to the left he thought he < ; ould have passed them. It was quite impossible for him to prevent the animal from bounding to the left, for he bore to the left whilst rearing in the air. The horse was trotting up to the moment of rearing. The horse continued for about 30 yards before be could be reined in. lie entered the horse at the show, and drove him there. He went to no particular trouble to get the horse ready for the show. He hadn't entered the horse for any trotting .eompetition, as Mr. Jellicoe had stated, hut merely as a spring-cart horse.

To Mr. .Ndlicoe: The weight of the cart usually used was abouMialf a ton, and the average load would be from 22 to 2T)cwt., Kornetimes more and gometimes less, but aifcwt. at the most. It was a good, strong cart-horse. "i>am" was the biggest horse the company had here. He would not say it was the most powerful, or that, it was not. Ho had driven him only once before in that cart,, about a fortnight before. There was no load on then. He drove it from the coachlmilder's down to the yard. It might havo taken him 15 or 20 minutes to cover the journey that time. The

\ horse lmil never drawn a load in that < cart, and the cart had never been used •for carrying a- load before the accident. ' It was not intended to carry a load that ( day. 11 was a hit of a change to this j cart after the ordinary coal cart. It was the cart intended for, and actually used in, the competition at the show. Me didn't get a prize. (Counsel: Bad luck for you!). He was bitting down wlien crossing Brougham street, and stood up after that. He stood up immediately lie saw the horse prick up his ears. After some hesitation, th» witness said he might have been landing when he crossed Brougham stTeet, but only to shift his seat. The horse wasn't unusually fresh that morning. He. was not proud of the animal's paces. The judge threw him out of the ring because he had no pace or action. (Mr. Jellieoe: That was after the accident), lie knew the horse had no chance in the competition. The turn-out was entered to advertise tho company. He didn't believe in driving fast'through the town, Mr. Jellieoe labored the point that the steepest grade in the street was between the Criterion Hotel and Egmont street, but the witness insisted that the road was practically flat. Mr. Jellieoe informed O'Brien that they had the bor-. ougli engineer there, who had given them the grade. ■ The witness, however, had the loeal knowledge.

(Cross-examination continued: When the horse snorted Ue was afraid he would shy on to the footpath. lie remembered giving a statement to Constable Whitehouse after the accident. He did not think then that an inquest, was probable. He didn't mention to the constable that the horse snorted. He was not a nervous horse or a frisky one. He didn't think tho horse in a new cart needed any more caro than when in any other cart. He didn't pull the wrong, rein when the collision seemed imminent. Had he pulled the wrong rein he would assuredly have struck Humphries. He did not his head.

lie-examined: ]t was impossible to clear Humphries, for the horse bounded into the air, and when he landed he bounded to the left. He was positive that he did not pull the wrong rein, and that the horse shied at the meat waggon. The horse was an ordinary quiet one, and he hail had never had an accident previously with him. and had never h;ul an accident previously at all. lie frequently had to whistle to warn people to get out of the way. but lie, had never known the liov'so "to take fright at that. At the point where the accident happened the road was almost flat. His intention was to go round the Egmnnfc street corner.

-Mr. -lellicoe: The *<t«i!]>est part of the grade! That's what the engineer said.

Witness: The road is nearlv Hut tiierc,

tleorge Arthur Cambcrl, groom and driver, with some IS or It! years' experience with horses, said he saw the accident from his seat on, the Ktzroy 'bus, which was standing outside Avery's. He saw O'Brien coining down the" Devon street hill at about four, and a-half or live miles an hour—at a jog-trot. He noticed the meat-cart, and heard a loud whistle just as O'Brien's cart drew level with it. Humphries and Watkins were crossing the road when O'Brien whistled. Then the horse reared towards the lefthand side of the road. . When the horse reared it knocked Humphries down, but the other gentleman dropped clear. Even the quietest horse would shy sometimes, and when a. horse shied the driver could have very little control over the animal. He did not think anyone could have done more than O'Brien did to avert the accident.

To .\fr. .lellicoe: He first saw O'Brien's cart when it was opposite Deare's. He thought the Breakwater 'bu* was standing outside Amlmry'st . O'Brien was sitting in tin- cart, he thought, at Deare's. He wsis not sure, but he was standing when he wa" outside JoU's, lie i saw the horse, up j ls oilrs _ -p],,, horse was . then somewhere about the Auckland Clothing Companv's shop. Thai! would he about fifteen or twenty I or twenty-five yards eastward of where •Toll's cart was standing. O'Brien whistled just after the horse pricked up his ears. It was a very shrill whistle. The horse was then about, to shy at the meat-cart. It was the Hash,"new cart that attracted his attention.

diaries Thomas Rtmdle. land agent. {,'iive evidence that ho witnessed the accident, lie was stan<lin» In-low the (inn's office in JJi-von street, alone, and saw

the two men crossing the. road rather slowly, lie saw O'Brien's cart approach at iihoiil four and a-half or live miles an hour. holding the horse with a (1/iTlt re.*; '"! l1 "tiindin.-.' U|i. When not l-M' tma (joij's u-ri/w/oit*"tli"i< Imiv Served tti din left. rcKreil. ami >lr,lck ||llmplnies. j| ( . (Ntln't think D'lirieu could have don.; allytliin<r to avert the acei•l""t. for -hen a ho,-,, -hied th, driver had no control.

}<> .Mr. .lellieoe: lie meant that nothin- cmld have heca done at the moiiient of contact to avoid the accident. U hen he .saw the carl, at .Amourv's the driver was standing up. ] t was usual in empty carts for the driver to do so. He couldn't see whether the rein was tljrhl or otherwise until the horse came opposite Joll's.

-l-raiiels (icorire Cartltew. land agent, saw the accident occur. He was standing wilh Mr. Standish in front of the Waralnh diii'iiiK-woiiis'. lie had noticed O'Jirien driving along at a slow trotting pace, with the horse under good control. The horse made a ninniii'"shy nt (he meat waggon. The horse was doing driven at a. safe pace. He could not surest anything that could have ho; ii done to prevent the accident. Cros.,-rxnniin<-d : The horse was going at no more than live miles an hour. He heard O'Krien whistle when right op]iositi- where he was standing. Kniily Louisa Hewitt said (hat on (he morning in c|iiestion she was in front of Culvert and Co.'s wii.Ni she heard a whistle. Humphries and Watkins were talking in the street. She saw Watkins jump out of the way, and Humphries seemed to net into the way. After the whistle the horse hoga'n to shv. seemingly at the butcher's cart. The horse was going at an ordinary puce at the time, and when \\ .-hied the driver tried lo pull it, up, hut didn't succeed until It had got some little distance a wa v.

To Mr. dellicoe: If va . the wliistlthat attracted her noM,-,-. The m:in didn't blow wkli hU lips. lmt with a whistle. 'Oic driver wa- slanjiu»-. Tlii'i'c was no mistake ;ilimit that. Slie didn't think the whistle <M-.i-.crl thp hovsc to shy. Alter tin- whistle Humphries tried to ;;ct out <if the iv;iv

Arthur lluss(drstiindi>.!i,'si,li t -il(ir. praclisiiij: at -New I'lvmomh, said thai he had seen tin' accident. Mi., evidenc? wiii. that (lie horse was about four or live miles all h-.nr. When Hnmphrie and Watkius, wire cnissiiiy the road tbev appeared to he in earnest conversation, and had their heads down. O'lirieii seemed to do !ii< hc-l to keep his cart <dear of Humphries sl !"t<t-i- he had been struck. licfoie that he scrme,l to have a {fond lio'.i of (he hor.se.

lie had ridden and drivai horses praclicullv all his life. Hi, had an excellent view of what hardened and what was done hv O'lirien. and he the latter did all (hat could he done" The cause of the accident v/a- the horse sliyiii;: 1 and •ji-( liiij; out, of coin rid. \ Cro.-.-exainincd: The i,..i--c was not fresh, and its paces iivre not a(! ractiv. lie wa.s sure (hut O'J'.rieii was standiu".' when he lirst saw the carl. A liofsiW

would pass an object perhaps u hundred times without shying, and then for no apparent reason shy at it. The driver would have .better control of the horse when standing up tlian sitting in the cart.

I Mr. Herdman, in his address to the I jury, said he was conlide'nt, n«w that I the jury had heard all the evidence, that any doubt, that may have existed in the jurors' minds a* to the negligence on the part of his client had been removed. He repeated what he had said earlier in the case—that it was one which should never have been brought into court. Accidents were inevitable when pesons were riding or driving horses, and pedestrians in the streets took risks themselves. The jury was asked to give a verdict for £IOOO against the Westport Coal Company because a horse owned and used by it had shied and caused injury Ho- a ..respected citizen of New I'lymoitttb;; fTluvt was an unacceptable doetritopb .There was only one thing thaboUtfild-waiTant a verdict against the. that was' negligence on of, ,o'Brien. But it was shown that he was )iu.careful and skilful driver, and so long as. reasonable care was taken the driver must be immune from damages. '• Was there any neglect on t.h« part of the driver? ' Could any reasonable men, after hearing the evidence, come to the conclusion' that O'Brien was negligent? I'eople who were walking in the streets were also obliged to us ordinary care when crossing the street, along which horses, carts, motor cars, bicycles, etc., regularly travelled. But they had it on Mr. Watkins' evidence that he and the plaintiff were absorbed in a conversation, and did not keep a. look-out for the approach of vehicles. If people liked to go into the middle of the street and get engrossed in conversation, and to dream, they must take the consequences, This man' O'Brien, a skilful driver, exercised the ordinary care which would be exercised by any ordinary man driving in a cart along the street, and the cause of the accident was the shying of the horse at a meat waggon in the street. It was laid down by a learned judge that people who used roads must expect these occasional mishaps that a reasonable man could not. prevent. The question to be decided was. Did the horse shy, or did it nut? The notion that O'Brien had bis horse out exercising for a trotting competi-1 lion had been found to have nothing in it. It was. U'nuu'kablc that only one out 'of all the witnesses said the pace was more than four orjlvo miles an hour. There was also Die ridiculous suggestion that the man came rapidly down Devon street east .in order to gain momentum to take the ewi|il.y'cart up the hill on the other side. lie marvelled that Mr. .lellk-oe had suggested Such a thing to twelve reasonable men who knew the Street so well. At any rate, O'Brien had not intended to go up the hill at all. but round the Coffee Palace corner. He confidently relied on the jury to return a verdict for defendants.

.Mr. Jellicoe. in his reply, said that as n nintter of law this accident had to be explained by .the company. What was tlu-ir explanation? In the words of his learned friend, "The horse hounded for some reason which lie could not explain, except that it seemed to object to the presence of some dead .sheep in a butcher's cart." Mr. .fellieoe consider-1 ed it was the best luck in the world] for the defendants that that meat cart was standing outside the shop, and they seized upon it as an excuse for escaping responsibility. Concluding, Mr. Jellicoe said the defence had failed to discharge the onus placed upon it of disproving the plaintiffs allegation of negligence. His Honor said there was ho ground for suggesting that the plaintiff was responsible for the accident. In law. there was the strongest presumption of negligence against a person who. in broad daylight, ran another person down. I U the jury were satisfied that O'Brien | was driving in a careful and proper j manner, and that through no fault o,n his part the horse shied and collided with Humphries, then O'Brien was not to 1 blame, mid 'the defendants were not rej sponsible. If, however, the jury was ol opinion that the horse was being driven ; too fast, that after he saw the horse w-as about to shy he - neglected to do anything that he should have done, then the defendants were liable. o'JSrie.n's evidence as to the speed of the horse, four or five miles an hour, was. eorrolxMated Jjy all the witnesses but, Gilbert, and by all those witnesses who saw the. horse just before the collision. Then the driver's evidence about the horse (shying was corroborated by almost every other witness, including the plaintilt's own 'witnesses. If the jury was Siltisfiod Uiilt the. liniw shied then n appeared to ilie a: case of pure accident. Neither Humphries nor Watkins appeared to have heard the driver's' warning whistle. There was no specific suggestion of what O'Brien might have done to avert the accident, but the evidence of several witnesses was to (he .effect that he had done all that he could do. It. wus admitted that plaintiff had .suffered serious injuries, nnd iif the jury found a verdict for the plaintili' then he was entitled to substantial damages. The jury, lifter a retirement of 22 minutes, returned a verdict for the defendant company, and judgment was given accordingly, with costs according to scale.