RESIDENT MAGISTRATES COURT, HAMILTON.

Waikato Times, Volume XVI, Issue 1403, 30 June 1881, Page 3

RESIDENT MAGISTRATES COURT, HAMILTON.

[Before H. W. Northcroft, ' Esq,; R.M., and His Worship the Mayor"!.

Mofflin v. Grossmann. This was an action to recover the sum Of £29; £18 being the value of a mare hittefl from the plaintiff by the defendant, and which owing, it is alleged, to the negligence of the defendant, received such injuries that she died, and £2 the chargdS'of the veterinary surgeon. Mr W. M. Hay appeared for the plaintiff, and Mr J. B. jUussell for the defendant. Mr Hay briefly opened the case, giving an outline of the evidence he intended to call. He then called Horace Mofflin, sworn, deposed that he "was a livery stable keeper. On the 10th inst. he hired a buggy and pair to the defendant to go to Raglan. ' The bay ■mare, the subject of this action, was on the near side. The mare was sound, in good li t ealth, and good heart ; would have noticed any injury had there been any ; was not present at the time defendant drove off. Same day at 2 p.m. received a telegram from Grossmann at Ngaruawalua, asking for another horse to be sent to Whatawhata, as one of the pair was too lame to go further. Did not comply with the request as he did not have a horse suitable to send. On the next day a man named Richards, a groom at Whatawhata, came to Hamilton, and said the mare had her hip down. Witness sent his groom over to Whatawhata, and he brought the mare back the same night. Witness did not see the mare till the following Tuesday morning. Sent the groom for the veterinary surgeon, who on arrival could not tell exactly what was the matter, except that the hip was down. He prescribed hot fomentations and blister. These directions were followed; she was taken out to the paddock on the following Sdfkday. When witness saw the mare navt she was dead. She must have died ■eifcer . on the Sunday night, or Monday morning. On Monday witness went wjth the veterinary 6urgeon, and held a &ost mortem. They stripped one of pelvis bones known as the os inominatum which they found broken. There was a good deal "of congealed blood, the artery being jagged. Witness had had about 12 or thirteen years experience in the livery line. He had seen hipped horses. He belived the injury might have been caused by a sudden wrench or a blow, but there was no sign or mark of a blow in the present case. Coujd not say wether defendant was a skilful driver ; he held the reins rather loosely. A person driving with a slack rein would not have full command over his horses, although some experienced drivers diive with a alack rein . Horses generally recover after being hipped, but they wero greatly depreciated in value. The mare was worth to him more than £20, but her market valuo would be about .£18; the £2 was for veterinary expenses. Cross-examined by Mr Russell: The defendant had hired horses from him before, and knowing how he drove witness had again hired horses to him. The horses were generally kept in the fatable, but they were out sometimes. The mare came home on Saturday, and was kept in a loose box till the following Bunday on bian mashes. Knowing th.it the hip was down ho turned her out in n paddock according to the surgeon's orders. Did not know that there was a bone broken. He gave £12 for the marc unbroken, about 18 months before. Hif only- knowledge of how the injury and why he claimed damage arose was his opinion a 1 * to ho>v the accidet occurred. He-examined : Did not know that " hip down' 1 wascjnised by a broken bone. Never siw Mr <iro«smann drive a pair, but ho told witness that he had always been used to driving. Mr Russell said he did not know whether it was necessary to take up any further time of the Court. Ho asked the Bench whether the defendant had anything to 'answer. He had allowed MiHay to le-examine in order to get anything further as to the cause of the accident. He "would ask where was there any evidence to show that there was negligence? The witness had told the Court _tbat the only icason he had for bringing this action was that he had a bupposition that the injury was caused by a sudden wrench. It was not necebsiry to quote authorities on this bubject. The accident was one of the ordinary risks which livery sfcablo keepers were liable to, and which they made provision for. The counsel quoted from "Campbells Nisi Prius Reports" to show that it was necessaiy in such cases for the .plaintiff to bring actual proof of negligence on the part of the defendant. .He 'would admit for the sake of argument that everything stated by plaintiff was true, that the horse was in perfectly sound health, and that the injury was caused by some sudden wrench, but some positive evidence of npgligence must be given. The plaintiff had hired horses to defendant before, and knowing how he drove he again hired horses to him. However careful a man might be an accident might arise. The defendant was charged with driving negligently and unskilfully, but of this no evidence was given. The whole case was based upon a supposition that the injury was caused by a wrench and not by a blow. The counsel then quoted " Storey on Bailments " to show that the onus of proof of negligence must rest upon the plaintiff. He contended that there must be some proof that the defendant had been negligent. The Bench : Would it not be a proof of negligence that the defendant took the mare on from Ngaruawahia, knowing her to be lame ? *-. Mr Russell did not think so, because did not know— the plaintiff Wumself did not know until several days / afterwards — what was the matter with the horse. But it must be proved that defendant knew the nature of the injury. It must be shown that the defendant was aware of it. Mr Hay said the learned counsel on the other side had heard him say that Mr Mofflin's supposition was not the only evidence he had to offer. He quoted from several authorities to show that in some cases negligence may be assumed. It had been shown that a sound mare was given to defendant, and he had to account for the accident within a short distance. 1 When he found the horse was unfit he should have left it. He quoted from "Oliphant on the Law of Horses" in support of this. It was defendant's duty to have left the horse at Ngaruawahia, but he did not do this, he went on to Whatawhata. He would show that driving on to this place was the proximate cause of death. It was unfair of Mr Russell to stop him, because it was most important that the evidence of the veterinary eurgeon should be heard. Mr Russel did not question the force of the law quoted by Mr Jlay, but it had reference to a different set of oases. The law, asquotedj w,ap clearly, laid dawn a« applying to borrowed shatters qnd not hired horsed. lav the ; c~a«e he quoted from, the Judge J/ud down that m the ease of a* lifted horse meeting with an aooidenfc, some evidence must be given of the negligence or misconduct of the defendant. The plaintiff had told him that he had no evidence of negligence. This wsfrwhy he had stopped the case. If they were going to charge the defendant ■wdth negligence, what should they say of, the phuntiirß conduot'in not sending a fresh horse. WhW & c question of aegU*

gence was brought forward, he would ask where was the negligence? What steps did Mr Mofflin take ? When the imputation of negligence was thrown upon his client, it should be proved. The Court decided to hear the evidence. Mr Hay then called George Young, groom, in the employment of plaintiff. Had had close upon 30 years' experience of horaea. Knew the mare, the subject of this action. Saw her on the morning of the 10th. She was sound on that morning. He fed, cleaned and harnessed her that morning, and put her in the buggy for Mr Grossraann. There was nothing the matter with her then. Defendant drove away. He saw the mare at Whatawhala the next day — when he was lame in the off hip. She waa too lame for any man to drive. He tried to lead her home, but had to pull the bridle off and let her walk in front. When he got her home, he put her in a loose box and gave her bay. On Sunday morning he went for the veterinary surgeon at plaintiff's request. The surgeon examined the mare and ordorod bran ma-hes. On Monday he gave her a ball aud afterwards blistered her. As soon as she was fit to go the veterinary ordered the mare to be turned out. She was turned out on the following Sunday afternoon in Mr. Brown's paddook on the Ohaupo Road. Had not seen her 6ince* Did not know whether there were any holes in the paddock. She was just as lame when he turned her out as when he first saw her at- Whatawhata. Cross examined : He heard by telagrani from defendant that the mare was lame at Ngaiuawahia. A horse might get lame from many causes and recover it on the same journey, but of this he could not speak with certainty. Did not know that it was a common thing for livery horses to go lame. John Jervois, groom at the Delta Hotel, Ngaruawalna, remembered the defendant bringing a buggy and pair to the stable. One was slightly lame when she came in. She could put her foot on the ground. She was dog lame when she went away. Witness advised defendant to have the shoes removed and to send to get a horse to meet him at Whatawhata. Cross examined : The shoes were removed. Could not say whether a horse might come into a stable all right and when he cooled down get lame. He had been a sailor. Re-oxamined; Did not think a prudent man would have driven the horde on to Whatawhata. William Butcher, a blacksmith at Ngarauwahia, deposed that he had had some 20 years experience of horses. He remembered being called to see a lame horfee in charge of defendant at the Delta Hotel stable. He took off the shoe and examined the foot and found nothing wrong. He told the defendant that the injury must be higher up. He examined the leg but could see nothing to show him the seat of the lameness. She was dead lame. Defendant told him he was on the road to Raglan, and witness said m defendant's presence that the marc was not fit to travel. A prudent man would have left the horse in the stable. Cross-examined : Knew defendant was going to Raglan, but his remark that the horse was not fit to travel did not apply to Raglan. It was possible the hip was not down at the time, and I thought the injury was in the fetlock. Defendant told him that he was bound to proceed, and asked him if he could get another horse. To the Bench : The mare was not in a fit state to travel. Defendant was present while witness was taking the shoes oil' and putting them on. He was under the impression that defendant must have heard the remark. G. W. Richards, labourer and veterinary .surgeon, deposed that he saw the defendant with a buggy and pair near Whatawhata. One of the horses was hlightly lame. Next morning examined the mare and found her hip was out ot joint James Coombcs, contractor, deposed that he knew the mare the cause of this action. She was worth about £20. Alfred Sharp deposed that he was a duly qualified veterinary surgeon of 14 yeirs experience. On the 11th inst. was called to see a mare at Mofflin's. He found a fracture of the os innominatum. Know there was a fracture at once, but not the exact place, as iL was deeply seated and heavily clothed with muscles. Ordered the mare to be kept quiet, and applied fomentations. Saw the mare at intervals, and sho appeared to be kept properly. She was put in a paddock by witness's instructions, and did not see her alive again. On Tuesday, the 21st inst., made a post mortem examination, and found a fracture of the lower part of the os innominatum and a rupture of the artery at that part. Death was the result of hemorrhage. The bone was otherwise sound and healthy. The injury was not necessarily fatal. The rupture of the artery would be caused by the working of the sharp edjjes of the bone. The hip would sink within a couple of hundred yards after a fracture of this kind. A hnrse would limp and go on one side. Was of opinion that the mare would have lived had she beon taken out of harness when the accident occurred. The artery would not, ho thought, have been ruptured if proper care and attention had been bestowed on the mare. The leg was otherwise sound. Drawing a buggy might be the cause of getting the bones out of place, which the muscles would prevent if proper care were taken. Did not think the act of walking would displace the bones. After the bone was broken it was not proper to takn the horse a journey of ten miles. Thought^ it hardly likely that a person riding behind the horse would not know something was wrong. The artery might have been ruptured a week before death. The accident might arise from a slip or a sprain. Cross-examined: An accident of this kind might happen to a skilled driver. It was possible that the injury might have been caused by a blow against a stable door, but did not think it probable. Thought it a iproper course to follow to turn the mare out in a paddock. Did not believe in Youatt. Re-examined : Thought if the mare had been left at Ngaruawahia she would have had a chance of recovery. As it was, the injury would have proved fatal under any treatment. George Young, recalled, said it was not possible for the mare to have hurt herself in the morning before defendant drove away. This wa3 the case for the plaintiff. Mr Russell asked the Court whether they thought a prima facie case had been made out. The Bench thought the defendant had a good deal to answer. f The Court then adjourned till three o'clock. For the defence, Mr Russell called E. F. Galon, who said he was a professor of music. Remembered driving with defendant to Ngaruawahia on the 10th. When they got abous three or four miles on the road he remarked to Mr Grossmann that one of the horses seemed to be going a little lame. Defendant got out and examined the horse's feet, but •found nothing. They then went on very 'wellito 1 Ngaruawahia, where ; thfcy got a blacksmith, who took 'the', shoe -off and examined the foot and leg, but could fiud 'hdthrag, giving it as hte opinion tfeat it wa« merely a, strain. After lunch, *they started for Whatawhatai i-'-For th'«T-|irst, few hundred yards the mare appeared stiff, but after that she appeared all

right. The blacksmith tojd them that they could go on to Whotawhata where they could get another horse. Had they been told that the horse was not in a n't state to go on he would not have gone, i because witness had his own horse, which he was leading behind the buggy. He understood from the blacksmith that the fetlock has been strained. Cross-examined : Had Spoken to the plaintiff during the hearing of the case, but not about the case. He had spoken to the plaintiffs counsel about the case. Mr Hay then asked to have the eyidence of this witness struck out. Mr Russell contended that a counsel had a perfect right to speak to his witnesses. The Bench ruled that he had. Mr Hay said it opened such temptations to counsel. The Bench : Learned counsel are presumed to be above suspicion of that sort, Mr Hay. Cross-examination continued : Considered defendant was a careful driver. He thought it would be careful driving if a man held a loose rein and allowed the horses to go cantering gently away. When the blacksmith was with the mare he might have said things to Mr Grossmami which witness could not hear. He was sure the blacksmith did not tell defendant that the mare was unfit to travel. Would swear the witness Butcher said the horse was fit to go They sent a telegram for a fresh horse, because they did not'think the mare would be fit to go over the , mountain. Believed that the mare would get worse by going on to Whatawhata. On leaving Ngaruawahia there were three occupants in the buggy. When about a mile from Ngaruawahia witness got out and rode his own horse because he would not lead. The mare was going on three legs for a moment or two after leaving. Re-examined : They went down from Hamilton trotting, taking it very leisurely. Could not tell that the horse had a broken bone. Had they known, they would certainly not have driven the mare on. Arnold Grossmann, the defendant, a dentist, considered himself capable of driving a buggy and pai}:. Witness corroborated previous witness's evidence as to discovering the lameness, which was hardly noticeable in trotting. The blacksmith said the mare might get better on the road. Did not hear Butcher say the mare was too lame to go on. Cross-examined : The mare, so far ,as he knew, was sound; when he got to Ngaruawahia she was lame. Asked for a fresh horse at Ngaruawahia, although he believed it possible that the mare might get better by going on. With the full knowledge of the mare's lameness, he drove her eight or nine miles to Ngaruawahia and ten miles to Whatawhata. Butcher had said the mare was not fit to go to Raglan, but that was all. Knew nothing about the mare's hip being down until he came back from Raglan. The learned counsel on both sides having addressed the Court at some length, judg- j ment was reserved till next Court day. Another action between the parties to recover £i, amount owinsr for horse hire, was allowed to abide the discussion in the action for datnag'es, it being 1 agreed that should defendant lose in the latter he should pay the £4 ; but in, the event of his gaining the case, that he should pay the amount, minus the coat of the injured mare while she was at Whafcawhata. j