AN IMPORTANT CASE.

Wairarapa Daily Times, Volume XII, Issue 3910, 11 September 1891, Page 2

AN IMPORTANT CASE.

Berry ▼ Lett.

Colonel Roberts, R.M., gave judgment yesterday afternoon in the case Berry v Lett, in which the plaintiff claimed from the defendant the sum of £l2 10s, the value of a horse consigned to Tenui, which was killed on the journey, and £5 damages for the loss of the same. In giving judgment His Worship said : —"The evidence discloses that Lett undertook to take the horse to Tenui, and that it is not au unusual thing for him to take horses. The question whether or no the defendant is a "common carrier" Ido noc think need be considered. Jt is clear Lett undertook to convey or get the horse to Tenui, and for hire, Therefore he at any rate comes within theclass of persons referred to , . . The rule is that "the bailee is bound not only to perform his contract with regard to the work to be done, but also to use ordinary diligence in the care and preservation of the property submitted to him." Now, to apply this, to see what ordinary care is required, Hayes tells the defendant that the. horse was fidgetty, and the defendant in his evidence shows Hayes warned him about the horse not going well. Blinkhorne says it was tied behind the brake. Croft had previously tried to take the horse to Tenui but it broke away. The horse hung back when Mr Taplin's * brake passed him, but went on again without further trouble until the Wangaehu bridge was passed. Blinkhorne says he knew nothing of the horse before he started. I think this evidence shows that ordinary care had not been used to exonerate the defendant. The defendant was warned, and apparently well knew the horse was fidgetty and did not lead well, and to tie the horse to the waggon in such a way that it could kill itself so easily, if it did, assumes to my mind want of ordinary care. The horse could have been tied in such a manner and with such a rope as to have given way in case of extraordinary danger, and on this head it is laid down, "if an uncommon or unexpected danger arise he (defendant) must use efforts proportioned to the emergency, to ward it off." Particularly is want of ordinary care shown when defendant did not even warn Blinkhorne about the horse. As to Blower v Great Western Bailway Company, this case is not in point, because in that case there was a concealment. In this case defend* ant was told the horse was fidgetty, and again there is no evidence for th defendant that the horse was killed by its own inherent vice. The case Smith v Midland Railway Co. bears out the view that if such a matter as inherent vice was to be set up it must have been proved by defendant and not by mere opinion of a witness. The last mentioned case goes only so far as to say that the plaintiff must give some evidence of negligence when the contract cote requires that | the Company shall not be liable except for negligence. As to the value of the horse plaintiff says he gave £l2 108 for it, and it was worth it to him. Mr Baker says he sold it for that amount and thought the price fair and reasonable. The rule is that the highest price be given against the wrongdoer, and as there is no evidence that the horse was not worth £l2 10s I think judgment should be for that amount, with damages, 80s, added. - Mr Bunny, on behalf of the defendant, asked leave to appeal.