AN INTERESTING JUDGMENT.

Wairarapa Age, Volume XXX, Issue 9007, 17 December 1907, Page 3

AN INTERESTING JUDGMENT.

HALLENSTEIN BROS. v. T.

DWYER

At the Magistrate's Court yesterday afternoon, Mr W. P. James, S.M., delivered his reserved judgment in the case of Hallenstein Bros. v. Thomas Dwyer, a claim for £52 10s damages caused by defendant's horse breaking the .windows in the plaintiff's premises as the result of the bolt on November 21st. His Worship said ; The facts as proved are as follow:

—On the 21st November, 1907, the defendant was harnessing his horse on his own premises at the back of hi£?f arage in Queen Street. While

so engaged a- man named Jones, driving two horses attached to a waggon, drove along a right-of-way between Dalgety and Co's store and defendant's garage, at the end of his right-of -way is a space for turning vehicles in, and an opening was fenced, but across which from time to time defendant has placed a wire to keep vehicles out. leading into defendant's back premises. This opening has often been used against the wish of defendant by waggoners to turn their horses and waggons in de- ' fendant's yard instead of confining themselves to the space in Dalgety's yard. When the man Jones was approaching on this occasion he was told by defendant and his man Cross not to come into defendant's yard. .The man Jones and a witness, who was on the waggon with him, says that Dwyer, the defendant, gave them permission to come. Jones says he refused at first, but afterwards consented. The other witness says he consented at once. lam satisfied from the evidence of other witnesses that consent was not given. Jones, according to the evidence, stopped at the end of the right-of-way, and then suddenly started to drive upon defendant's premises, which was a small square. Defendant at the time had hold of his horse by the winkers or bridle holding the nose-strap. The reins were not attached to the bit. Defendant says he was just commencing to fasten them on preparatory to putting the horse in a trap, which was between the opening and the horse. Before he was aware of it the waggon and horses, just escaping the pa&sed close to the horse and trie waggon actually knocked it on the flank, causing the horse to become suddenly frightened. It plunged and dragged defendant some yards, knocked him down and tore his clothes, and got away into the street; went down Queen Street, and at the corner of Church and Queen Streets smashed through the winow of plain - tiff's shop, and came out again thf same way, thereby doing the injury complained of. With regard to thf first portion of the claim, founded on negligence, I must hold that no proof of negligence has been made out by plaintiff. Ido not consider that if a person is holding a horse by thf bridle in his own back-yard, and a trespasser suddenly strikes the horr causing it to bolt/ that the owner of the horse can be said to be negligent One witness, and a person experienced in handling all sorts of horse? (O'Neill) :ays that if there had been* ten ropes on the horse the defendant could not have prevented the horse from breaking away. It was contended by plaintiff's counsel that the defendant should have had his yard fenced in. That might be so if he had been in the habit of keeping the horse there, but this was the first time the horse had been in the yard, and was only taken there on this occasion because the harness was there for the purpose of being cleaned at the garage. Ido not think there was anything unreasonable in harnessing the "horse in the way it was harnessed, or in .such a place. The aniiymal was being held, and was perfectly under control until it was struck. With reference to paragraph No. 4 of the statement of claim, that the horse was a dangerous animal, having bolted on a former occasion to the knowledge of the defendant. I do not consider that anything in the nature of "scienter" has been proved. The circumstances of the. bolt referred to were stated by the witness Cress to be these—He was driving towards Opaki one wet and windy day, ■when he suddenly came upon two men on the side of the road with bicycles and swags. The horse shied suddenly and went on its knees, the driver being thus thrown out of the trap. The horse then made for its home in Masterton, being driverless and in turning a corner in Masterton slipped on the pavement. No damage was done, and the jcurney was resumed. This is not sufficient "scienter" to cause the animal to come under the definition of mischievous or vicious and requiring the owner to keep it safely at his peril, and apart from any question of negligence. With regard to that part of the claim dealina with trespass. The result of the authorities is stated to be "that in the case of animals trespassing on land the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing may be a trespass, inasmuch as the same act, if done by himself, would have been a trespass." That statement of law practically makes the owner of an animal an insurer against injury by his cattle even without negligence.

Although a person does what is apparently an unjustifiable injury to another's property, he may find an excuse for it by showing it was the result of unavoidable accident . If a person is walking along the street and accidentally slips and . falls against and breaks a window, although it would be a trespass he is not liable for the damage done. In the present case, so far as the defendant is concerned, it was an inevitable accident. The defendant could not have prevented it by the exercise of ordinary care and caution. The plaintiff laid great stress on the case of liyland v. Fletcher. The rule "laid down in that case was, that the person wjio for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of its escape, whether the * thing so bought be beasts or water or filth or stenches —as laying down a positive rule of law it is stated "the decision in Rylands v. Fletcher is not open to criticism in this country.

But in the judgment of the Exchequer Chamber itself the possibility of exceptions is suggested, and we shall see that the tendency of ater decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the responsibility of an insurer on innocent persons is a hard rule, though it may be a just one, and it needs to be maintained by very strong evi- • dence or on very clear grounds of policy. Now the judgment of Rylands v. Fletcher, carefully prepared as it evidently was, hardly seems to make such grounds clear enough "for universal'?feceptance." No case has been found not being closelj ■ similar in its facts, or within some previously recognised, category in which the unqualified rule of liabiilty without proof of negligence has been 'enforced. The rule in Ryland v. Fletcher has been decided not to • apply to damage where the immediate cause of damage is the act of a stran:ger. Box v. Jubb, 4 ex., div. 76. Now in this case the immediate cause of the damage was clearly the act of a stranger. A man trespasses ■on the land of defendant, drove his waggon against defendant's horse, and although the defendant tried hard he was unable to prevent the , horse from getting away. was Jones who caused the animal to escape against the efforts of the defendant. In delivering judgment in the Court of Exchequer in the case of Nichols v. Marsland, 46, L.J., Rep.. Exchequer, 174 Bramwell B, said: "Suppose a stranger let the water loose would the defendant be liable? If so, then if a mischievous boy j bored a hole in a cistern in any Lon- J 'don house, and the water did mis- • chief to a neighbour, the occupier of | •the house would be liable. That can- , not be." _ j 1 cannot see in this case how the defendant, who has not been in any . way negligent, can be held respon-, sible for the act of Jones,- over whom j he had no control, and who disre- j garded his order not to come upon his j property. . j Judgment for defendant, I After reading the judgment Mr -James congratulated Mr P. L. Hollings on the able manner in which he had made ojif.the case for the plaintiff. The case had been a difficult one for the plaintiff's side, and no ■doubt some of counsel's arguments were very sound. . Mr Hollings thanked the Magistrate for his remarks, and added that it was possible that his clients would feel disposed to appeal. Counsel asked that the costs of the appeal might be fixed. Mr James fixed the costs of appeal at £lO 10s over and above the ordinary costs of the case as far as it had gone. j