WESTLAND CIRCUIT COURT.

West Coast Times, Issue 628, 28 September 1867, Page 2

WESTLAND CIRCUIT COURT.

NISI PRIUS SITTINGS. Friday, September 27, 1867. (Before Mr Justice Richmond and a Special Jury). The Court ro-opencd at 10 a.m. EDGAU V. THE HOOTIKA AND KANIEEI TRAMWAY COMPANY (LIMITED). Mr Button, -with Lira Mr South, for plaintiff. Mr Bees, with him Mr Harvey, for the defendants. The plaintiff's case was resumed from yesterday. Mr Button moved to amend the declarafion, so as to enable the plaintiff to recover as upon a quantum meruit. Mr Harvey consented. His Honor directed the declaration and issues to be amended accordingly. Andrew Hope, examined by Mr Button — I am a Government overseer, employed on the roads. I was employed as a foreman on the Kanicri Tramway. I began on the Ist December, 1867. Edgar and Hope had commenced before I joined. I have been employed occasionally on tramways and railways for the last twenty-five years in Great Britain, America, and the Australian Colonies. I was overseer on the ITanieri Tramway, the work was done in pretty good stylo — the line was [pointed, out by Mr Ashinore and Frew occasionally. It was laid down according to Mr Ashmore's directions. The line was not finished by 21th December as required, from want of the sawn timber, rails, and keys. If they had been furnished, the line— l have no doubt — could have been finished in time. The men knocked off work many times for want of materials. Four gangs of men were regularly employed, and occasionaly five. Plaintiff always had "plenty of men, in fact more than could bo employed on the materials supplied. The men employed under me knocked off work on the 4th December for want of rails, sleepers, and keys. The whole gang did not knock off then. I have a memoranda of twenty days when the men under me knocked off for want of material. This was bound to occasion a loss to Edgar. Ido not know to what amount. I have heard Edgar frequently demand material from Miles Ashmore, the manager, and I have done the same. Ashmore told me to put on men to carry, the sleepers out of the bush and charge the Company. The last time we got materials was on 23rd January. Wo then got sleepers and keys, and I think some rails. I know that a man name Macnaiuara was cutting down trees in the bush for sleepers on the part of the Company after 24th December last. Ido not believe that half the rails were cut before the Ist January. I saw one lot of sawyer's cutting rails after the Ist of January. Cross-examined by Mr Sees — I have no doubt the work would have been finished by 24th December if we had had material. I think the work was completed on 24th January. Ido not think any person was working for the contractor oh the 28th. I remember the cutting at the Kanieri, it was finished on the 24th January, but a little was done on ihe 26th January. The cutting was not pushed on so much as it would have been had we boon supplied with rails, as the cutting was kept for ballast. I think the cutting was taken out of the hands of the contractors before 10th January. It was not finished then, I do not know why it was taken out of their hands. i Mr Eecs — I suppose a man could see with his eyes the level for a cutting through a hill ? Witness — He would not see with anything else. (Laughter.) Ido not know what control Mr Edgar had over the subcontractor. The men were working between the second and the third bridge on the 4th of December, when they were stopped for materials. The first and second bridges were not finished then : the line- was not then finished from that place to Hokitika. The company had not tlioii any rails and keys lower down the line. Ido not know what they had at the mills. The company delivered neither rails nor keys to the contractors at" that time. The line between the second and and third bridge was cleared before I went on the job. Where I was working on the 7th December, the lino was cleared ready for laying down the sleepers. The levelling on such a piece as that, was done when the sleepers were laid. His Honor — Was there any cutting or filling to do between the second and third bridge ? Witness-T-Yos ; there was a little cutting near the culvert, but very little. • Cross-examination continued — I could not say whether that bit of cutting was done on the 7th Docomber. There was not so much cutting done as shown on the plan, because Mr Ashinore altered the line. The? one foot nine inches of cutting I do not think was done of the 7th December, but lam not certain, as it was not done under me. The men were idle on the 7th of December I believe the whole day. Mr Ilecs — I want to know for certain. His Honor— You will not allow the witness to refresh his memory by refering to this copy of his memorandum-book. I cannot allow you to battle with as to the particulars — it would not bo fair. Cross-examination continued— l think the line was cleared twelve feet wide where I was working on the 7th December. I mean to say that I believe the line was cleared twelve feet wide all the way up. I remember the 24th and 25th December. I believe the whole of the bridges, except the Old Man's bridge, were finished then I think the Brick Yard bridge was finished then. Ido not remember when the line was laid down in the Kanieri cutting. It was finished by the 24th January. I know the condition of the whole of the lino when it was taken from Mr Edgai\ The proper timber was used on the line, except a ltttlo bit of white pine in one of the gullies. Ashmore and Frew told me that the red birch was as good as red pine, and they told me to use it. Ido not remember the date of that. I was not at first supplied with a specification to work by. Mr Edgar told me that he could not get a specification. Wo did the work as well as we could until we got the specification. All'the packing was not done with eight inch stuff; sometimes it was more than eight-inch, sometimes less. The gravel from the cutting was used for ballasting the line. lie-examined by Mr South — There is j nothing about packing with eight-inch stuff in tho specification. Mr llcos— lsn't there ? Mr South— No ! By the Foreman — It is sometimes necessary in building the foundations for the rails to use less than 8-inch stuff. There are parts of the line we were compelled to put only 4in, in others we had to put 12iu or 15in. Joseph Norman Gale examined by Mr Putton— l am a pivjl engineer pf upw«nl«

of twenty-five years' experience in England, France, New South Wales, Canada, and Victoria. I remember the construction of the Kanieri line for about three weeks. I visited it almost every day. I saw this plan and a portion of the section, all he had (produced). I saw the specifications. The work was not finished then. I have seen it since. I consider it done in a substantial manner for the traffic. The work is good, but the line is badly laid out. I once drew the attention of Mr Frew to the unnecessary number of turns. He admitted that it was bad, but he said that he did not lay out the line. It is the engineer's duty to lay out the line, not the manger's, for it would be impossible for him to do it. About the third week in December they were putting on the planking of the bridges, which were nearly completed. The embankments are formed of packed timber, they are quite firm and good. The plan is a mere caricature, it is only about an eighth of the whole line. The work has been fairly performed accordiug to the specification, but the specification is exceedingly vage. The engineer should have given centres and levels. When the plate laying is done and approved there is almost an end of the contract. It is not usual then to find fault with the levels after the plate laying is passed. The contract was taken for LI3OO, and I think if that is all they are to get, they have done a great deal of work for their money. I estimate the work on the extra bridges at about L 240 over and above the LI3OO. I have been employed by the Canterbury Government on the proposed line from the Er.-t Coast to the West. When bridges are required on a line, they are either pointed out or referred to in the specifications. It is always usual to have a plan of the whole line; there ought to be a plan for each bridge. During the three weeks I was on the line, on one occasion I heard Mr Edgar ask the Manager of the Company when he 'could let him have both longitudinals and sleepers. I am sure he asked for rails (longitudinals). Mr Ashmore said his men had knocked off. I know of my own knowledge that Edgar's men were stopping for want of raiLs. Cross-examined by Mr Harvey. — WhenI was on the line for three weeks I could not help paying attention to the manner in which the work was carried on. I consider, as far as I could see, that the work has been done in accordance with the specifications. I believe there has been some substitution of birch for red pine, which was allowed. I have inspected the work with a view to giving evidence I did not notice any white pine that has been used. I cannot tell whether white pine uprights were used in the construction of the bridges. White pine is objectionable where'it comes into contact with damp or water. The stringers of "the bridges are of full size. I did not see the trennels ; it would be impossible to say whether the bridges are trennelled or not without a very minute examination, which I have not done. I have only gone over the work generally. The sills are properly and sufficiently bedded. In many instances the bottom silb are larger than fifteen inches. It is my opinion, as an engineer, that the sills are properly bedded, but I cannot say whether in accordance with the plan, as I did not dig away the earth. I think some of the sills near the bottoms of the creek are on the surface, the sand appears to have been washed away since. I did not notice whether there were washers on the bolts, it is not always necessary to have washers, but if the screws are proper it is necessary to have washers. It certainly would not be right to use clay for stopping the joints in the timber on the bridges, but I do not think any one would use it. The bridges appear to be quite firm, but they will get loose after a time, and then they require screwing up. As Ido not know what the original leveb were, I cannot tell whether the embankments have sunk or not. I think the plan would be very likely to* mislead the contractor, as it might not contain the most vital part of the work. 1 do not say that the plan is a caricature x>f a plan, so far as it goes, it was executed in a workmanlike manner. If I were to erect six bridges alike, I should give a section of each. Any embankment on each would not sink eighteen inches, unless the bottom was unusually soft. If the bottom was very soft it would be proper to put brushwood ani rubbish; but if it were sound it would be unnecessary. I did not notice in any one of the bridges that round saplings had been used instead of sawn planking. I did not measure the timbers. I did not notice in the viaduct whether the sleepers were bedded into the stringers. The Hue is cleared in most places wider than is mentioned in the specifications, I do not think it is narrower. The estimate I have made is based entirely on a question of wages, a3 the materials are on the ground. I did not notice whether the gradients were in accordance with his plan. Eobert Juckes, examined by Mr South — I am a plate-layer, and was one of Mr Edgar's sub-contractors on the Kanieri Tramway. I commenced work on the Ist December, 1866. I and my men lost from twenty-five to thirty days for want of sleepers, rails and keys. I had to discharge my men two or three times for I want of material. I was waitmg -for three days in the month of Januaiy through the want of materials. I had seven or eight chains of sleepers laid down then waiting for the l'ails; the work was done in a substantial and workinanUko manner. I have been all my life a railway platelayer. Cross-examined by Mr Rees — I know Mr Ashmore. Ido not remember wanting to borrow L 2 from Edgar. I might have asked him for a little balance duo to me. Ido not recollect telling Ashmore that Edgar wished me to swear that he had been stopped for material. Edgar never asked me to swear so. My part of the line went through the cutting. I laid the rails down in the cutting about the 20th January. I was not detained at all through the cutting not being finished. The bridge was finished just before I got to the cutting ; that was the little bridge over the creek, near tho terrace. I finished altogether on tho 21th January. I was waiting for materials during the week prior to that. By his Honor— l forget where the last rails came from; they were delivered during the afternoon of 23rd January. Cross-examination continued — I had no specifications to work by ; I worked by the " rule of thumb." I have asked Eugar for specifications ; he gave me verbal instructions, that was for particular places. I did nothing on the line for the contractor after the 25th January. I believe the line was opened either the day after or the day I left off. Ido notknow how wide the cutting is. My portion of tho line ran over Dan's Bridge. I did. not see the levels taken for Dan's Bridge. John Davison examined by Mr Button — I am a carpenter, and worked for Edgar on the Kanieri Tramway. I joined him about the second week, I Know ft plate.layer nainod Nolson; ]\q Wfts stopped in his wwl? op. one goonuion

for want of rails and keys. Clarke and party threw up their sub-contract because there was no material to go on with. I remember the Brickyard bridge ; I was employed on that from the commencement ; delay took place for want of sleepers. I know Dan's bridge. Dan was hesitating about the levels when Ashmore, Frew and the contractors came up. When Dan was hesitating I saw a cross-head standard with a line across the creek. When Dan, Frew and Edgar had been up to- the bridge I went up next morning. I saw the position of the bridge had been shifted about ten feet lower down the creek, and the level had been raised about two feet. I have seen the bridge since it has been built. The bridge now stands within two inches of the level I last saw. I have a particular mark ; there was a stamp standing, and the last level is two feet below the top of that stiimp by particular marks on the top of it with an American axe. The sills on the Brickyard bridge are bedded in the ground. I recollect the platelayers being paid. I saw Mr 3?rew on the work previous to their being paid; he went up the line with the platelayers. That was on New Years' Day. Cross-examined by Mr Harvey — Some of the sills on the Brickyard bridge are not bedded so deep as others, some are near the surface. That bridge had to be taken down once and re-built. I think that bridge was finished somewhere about Christmas ; the planking and ihe sleepers were required to be put in together. J thought the bridge ought to have been the height of the_ stump, but it was two feet lower. Planking was used in the Brickyard bridge ; on the culvert on this side round saplings were used ; either wood or iron washers were put on the bolts. I will not undertake to swear that the sleepers were all trennelled. At this stage of the proceedings the Court adjourned until two o'clock. Thomas M'Gowan, examined by Mr Button — I am a plate-layer, and was working under Mr Edgar's contract. I saw Mr Frew on the 2nd January last, on the line. Mr Frew went up to inspect the plate-layers' work. The portion I laid hs inspected and passed; I did nob hear whether he passed the others. I laid seventeen chains at the Hokitika end and eight chains near the Eanieri. The principal portion of the line was done then. The work was frequently delayed on account of the want of sleepers, rails, and keys. We were stopped working from that cause once after Christmas. Cross-examined by Mr Rees — I know a man named Nelson. An embankment near Mr Abbott's house did not fall down, nor any portion of it. Mr Edgar said he would not pay us until our work was passed by Mr Frew. James Irvine, examined by Mr Button — corroborated the testimony of the previous witness. Cross-examined by Mr Harvey — On an average I was delayed two or three days * a week from the want of rails and sleepers. I worked through the cutting along with Juckes. We never waited for the cutting, it was finished just before we got to it. Henry Nelson, another plate-layer, was examined by Mr Button, and gave similar evidence to the two last witnesses. Cross-examined — I am not aware that any portion of the embankment near Mr Abbott's house gave way. Joseph Gardiner examined by Mr Button — I was employed as driver on the Xanieri line by the manager. The men used to blow me up when I was taking the stuff for not bringing it before. I- took up the last lot of rails, wedges, and sleepers on 23rd January. I took rails and wedges from the mill to finish with at the Kanieri end. The contractor told me I ought to have brought sleepers, and I had to go and pick them up on the line. I drove the Governor xip the line; the carriagekept on the line. I complained about the steep places on the line. The Governor opened the l : ne and christened it. The directors were present. Joseph Kitchen, a contractor, was examined by Mr Button, and deposed that Mr Ashmore pointed out the line to him and others before the contract was taken. George M. Aldridge, a contractor, was examined by Mr Button, and stated that he had inspected the portion of the tramway executed by plaintiff. He considered the work to have been done in a workmanlike manuer. Witness had been a contractor for railways, He made no estimate as to the value of the work performed. This closed the plaintiff's case. The jury requested permission to retire for five minutes, which" was granted. Mr Eees, in opening the defendant's case, said that he was sorry to say that the defence would take some time, but he trusted that the jury would not suppose tliat either his learned friend (Mr Harvey) or himself would take up their time longer than was necessary to show that the Company had really a good defence upon the merits. John C. Frew examined by Mr Harvey — I am the Town Surveyor. I remember the contract being made between plaintiff and defendants. I am a civil engineer. At the time the contract was made I was acting as engineer for defendants. I prepared plans and specifications for the guidance of the contractors in making the line. I did not prepare all the plans. I prepared the plans produced and the specifications. The line was laid out by another surveyor. I did not go up the line with the persons about to contract. I was present when the contract and specifications were signed. I have seen the work in progress clone by plaintiff. There was another plan other than the one I made. There was a plan and a section of the whole line. Ido not know where they are now. I did not prepare them. The ground was pegged out on the portion of the line I want over. Mr Harvey — This is the first I have heard of any other plan. Mr Button — We have never heard of any other plan at all. Witness — The plans produced were not the plans tendeivd on. I inspected the work from time to time. I complained to Mr Edgar of the bridges and the embankments, and of the whole work generally. Plaintiff commenced at the termination of Paddy Sloane'a work. (Witness produced a note-book). Mr Button— When did you make those notes ? Witness— A fortnight ago. Mr Button — Your Honor, is that admissible?. Mr Harvey — I was about to examine him on his survey a fortnight ago, but I do not care about it. Examination continued — I several times complained of the faulty condition of the first embankment; it was built of fern timber and brushwood. The specification states that nothing less than Bin diameter shall be built upon. The contractor did not alter the work when I complained of . it. In consequence of that the embankment has sunk somewhere about 8 inches. The sinking of that embankment is to be attributed to the material used. I compl*M to the pinintiff twiner few* tinm

about it. Some uprights were put in to prevent the bank from tumbling over. The contractor said .that the fern trees would grow up and make a beautiful, strong embankment. His Honor — I do not see anything in the specification about embankments. Examination continued — I found fault of tlie construction of No 1 viaduct becwise the bolts had not iron washers. I inspected this viaduct about a fortnight or three weeks ago. Not any of the uprights or sills have been altered since the contractor gave it up, the viaduct may have been raised. I often complained of the timber, the plaintiff said he would have it removed, but it never was done. [The witness here described the improper timber that had been used]. There were no iron washers on any of the bolts, but some wooden fillets were put in, which would not answer as washers. There is thirtyfour feet of embankment on the other side of the viaduct, built on brushwood. I complained of that. It ought to have been built on timber not less than eight inches in diameter. That has sunk considerably. By his Honor — It should not have been an embankment at all, but crib work. - Examination continued — The sinking is attributable to the decaying of the brushwood. The fern trees did grow to a certain exfcent,but not so as to strengthen the embankment. The third embankment was built inside a large tree which had been felled, it was built of fern trees and rubbish. 1 complained of that, and the contractor promised to alter it, and he put two or three sticks to support it. I complained of birch and white pine being used in the construction of viaduct No 2. None of the sills were properly bedded in the whole of the viaduct. The embankment on the west side, half a chain long, is constructed of rotten timber. That viaduct is not according to the levels I gave. This plan shows the position of the bridges. • Mr Button — Was it shown to the contractors ? Witness — No, it is merely a correct measurement of the line as constructed ; it shows distances. Mr Button — I do not object to that. Examination continued — It shows measurements ; it docs not show angles, it is all laid out straight ; it shows the line constructed by plaintiff", and a portion constructed by the company afterwards. No 2 viaduct was not up to the level on the section. The A r iaduct is too low. By his Honor — I gave plaintiff the levels in accordance with this longitudinal section. I have levelled No 2 viaduct since, it is about one foot six inches lower than it ought to be. Examination continued — I gave the contractors the levels all the way along in strict accordance with, the section (produced). No 3 via duct I cajl a bridge. I found fault with it because it was t built too low at first. I ordered some cordery to be put on, to put the stringers on the top of tnat,and the sleepers on the stringers, so as to raise it about a foot or eighteen inches. I do not think I authorised_the contractor to dispense with planking. ' The saplings used there were not in lieu of planking. I found fault with the plaintiff using white pine and birch in that viaduct, and filling the joints with clay, so as to hide the bad joints. I condemned that viaduct, and ordered the contractor to remove it. Mr Button objected to the witness referring to his notes taken a fortnight ago and mixing them up with what took place -a fortnight ago. His Honor — Is there anything private in the book ? Witness — No. your Honor. His Honor— Det me look at it (book handed up.) Well, there is not much here — certainly there is a memorandum that the bridge was condemned. Mr Button — I should not have objected, but the other side has been so very particular. Examination continued — I complained of viaduct No. 4, the timber was not of proper quality and not the right size. The sills are not bedded in that viaduct according to the drawing; they are not sunk enough in the ground. There is one place on the Hokitika side where there is a span of eighteen feet between the tressels. There are no washers on any of the bolts. Thgt viadnct has sunk, on ihe west side, more than six or eight inches, through its faulty construction. The embankment No. 3 is constructed of heavy timber and brushwood mixed up. I know the bridge neai the Globe Hotel (viaduct No. 5) ; birch timber has been used in the construction of that, instead of red pine ; it is too low on the Kanieri side by about six inches. I gave the levels to the manager from this side, and when I came back in three days the bridge was nearly finished, Ido not know whether the levels had been altered. There were sixteen yards of corduroy instead of solid planking. 1 did not authorise that. I gave the levels for Dan's bridge, I think, to Mr Edgar. I remember putting a peg in at Dan's bridge on a little mound at the Kanieri side, in the centre of a clearing, and they were to run the bridge to the centre of that peg. Ido not think the contractor made the bridge to the level I pointed out to him. It appears to be about eighteen inches or two feet lower than the levels I gave. Some time afterwards I spoke to plaintiff about it. I believe Ashmore was present. Mr Edgar promised to raise the bridge twelve inches, and the Manager was to supply large sleepers to raise the bridge. The contractor raised the bridge about three or four inches on the Hokitika side by placing chips under the sleepers. Embankment No. 5 was built of brushwood boulders and gravel all mixed up. I complained of that. I complained of the cutting at the Kameri end as being dangerous, not being the proper width and* no •slope at all— portions of it fell several times— heaps of the gravel came down. I complained of No. 6 embankment (a dry stone wall) as being too steep and likely to give way. By His Honor — The Kanieri cutting was never set right to my satisfaction by the contractor. Examination continued — Almost every time I was up the line I complained to the contractor that they were packing the sleepers with chips instead of solid timber. He promised to amend that, but ho did not. In the ballasting there was too much clay in the gravel and consequently the clay worked up through tnto a muddle I do not think I authorised the plaintiff to use either whito pine or birch. In several qlaces the width of the line is too narrow. I never instsucted the contractor to shave a tree.— (Laughter ) His Honor- A contractor can shave closely enough wtthout any instruction from the Engineer. Cross-examination continued — I never passed any part of the work on the line. One day, plaintiff -would not pay the plate-layers until I had passed the work. I did not pass it, as it was not finished ; but I said it did not look so bad, I recoU l»pt tjp d »7 Wow hii UwtUonpy went

up the line. Ido not recollent any conversation with plaintiff about the cutting at the Kanieri on that occasion. The •work is not finished yet. The contractor gave up working on 28th January I think. Plaintiff gave me this letter in the street, and said he had completed the work I had asked him to do. I said that I would examine the line as soon as possible. At that time the line was carried to the other side of the cutting. I did not point out to the contractor where the line was to end. I never placed a peg to mark the Kanieri terminus. I heard often that the contractor was delayed for materials, but there was stuff lying on parts of the line during the whole time of the contract. I know nothing about the charge made for re-ballasting. I requested plaintiff to raise five chains of work, because it was not done properly as to level and curves His Honor — The section does not extend to there, how did you find out that it was not done properly ? Witness — The work was so low that the horse could not pull the truck up. Examination continued — The cutting was not finished on the 23rd February because there were not enough of men put on. They were not working continuously. On the 24th December the works were about half completed. Some of the bridges were nearly completed. The contractor could take a copy of the specification at tHe tramway office at any time. The specification was produced to the contractor, and initialed by the plaintiff on the day the contract was signed. I saw the tender sent iv by the contractor. [Evidence objected to by Mr Button.] It is customary for the contractor to pay for copies of the sjjecifieation. I supplied to the contractor such levels as were necessary. He was not kept waiting for levels for more than half a day. The cutting was not retarded by reason of his not getting levels for that. I do not remember the contractor complaining to mo that I kept him waiting for levels. I wrote a letter to contractor on 28th January. Cross-examined by Mr Button — I am a civil engineer, and served my time as a mining engineer. They are usually combined. I served my time at the Summerlee Ironworks, near Glasgow Works. Mining engineers serve their time for coal and limestone pits. During the time I was superintending the line I was in the service of the Government. I was away at the Grey for three days. I used to go occasionally to the Waimea and come back at night. I will swear I was not away from the eontrac more than four days. I first went over the whole line shortly after the contract was signed. It was about a fortnight ago I made the examination I have referred to in giving evidence. The ground beneath the embankment is earth ; the foundation is pretty sound along the line. I did not give levels to the whole of the line ; the manager pointed it out under my supervision. I know Mr Smith, who is now in Court. I have had conversation abonit what took place in Court to-day ; Mr Smith came out, but he did not talk definitely ;he did so yesterday ; he asked for a plan, and other plans too. Did not Mr Smith come out two or three times yesterday and to-day and tell you what was going on in Court ? Witness — Yes, he did; others talked about it too. His Honor — I do not know it makes much difference in this case, but in some cases it would be important. No doubt it is to a certain degree a contempt. Mr Harvey — We shall have it all in the paper in the morning. I never asked Mr Frew a question that was not briefed and his answers to. Mr Button— l do not attach the slightest blame to Mr Frew. Cross-examination continued — When I wrote to the the contractor, it was quite possible to have had the line completed in two or three days. By His Honor — I signed for the progress payment, but not in any way passing the work. His Honor — Why did you certify on the 3rd of January, if you were dissatisfied with the work ? Witness — Oh ! those were for progress payments, and had nothing to do with passing the work. The Foreman — Why did you not give up as Engineer when the Contractor would not obey you ? Why did you go on at all, after you had condemned the work ? Witness — In the first embankment Edgar promised to alter it if the line was allowed to be carried through. The Foreman — Yes, but every embank - | ment was wrong. The Court adjourned to 10 a.m. the next day.