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DISTRICT COURT, Ashburton Guardian, Volume VII, Issue 2519, 16 September 1890
ASHBURTON—MONDAY, SEPT. 15,
[Before His Honor Judge Ward.] CIVIL SITTINGS. Andrew Patbrson v. G. J..F. Lublow. In this case plaintiff claimed £150 damages for a broken arm and consequent loss sustained by him while m the employ of defendant at defendant's flax mill, the accident having occurred, according to plaintiffs pleadings, through the improper machinery used by the defendant. The case had been heard at a previous sitting, l);;t the verdict given by the jury on this ji.-vrHcuiar part of plaintiff's case—there having been another claim on a ilaxcutting contract—was not su * as could
be accepted, and wag set aside and a new trial ordered on the question of damages for the injury and loss alleged to have been sustained by plaintiff, A jury of four was empanelled as follows :—Messrs Joseph Wheeler, Robert Gilmour, George Geddings, and George Vcssey. For the plaintiff—Mr F. Wilding ; for defendant—Mr Kippenberger. Mr Wilding having opened the case for the plaintiff, recapitulating its features m much the same terms as at the previous hearing of the case, called Andrew Paterson, the plaintiff, whose evidence was similar to that given by him on the previous occasion. The evidence of Edward Bax, and George Pye, the men who had been employed with Patterson on the flax- j cutting contract, and who were also m I the mill when Patterson received his hurt, was taken, and was similar to that previously given. Herbert ~Gifford Moore followed with evidence as to the provision m ordinary flax mills for preventing the roller belts from getting round the shaft—viz., an arm across the pulleys—but which provision was not made m Westerfield flax mill. Mr Kippenberger, m opening for the defence, pointed put that plaintiff was a contractor, and a man who had been working about threshing machines, etc., and could not be so ignorant about machinery as m this case he claimed to be. But when he attempted to disentangtle this belt he accepted the risk. Mr Keppenberger called the defendant* 'jr. J. F. Lublow,who denied that plaintiff had any right at all to interfere with the belt that hurt him ; that he was not m defendant's employ at the time, was not beckoned by defendant to aid m adjusting the belt, and wasonly pottering about the place at the time for his own amusement. T. E. Kilworth, W. Bloomfield, John Watts, and Joseph Ward also gave evidence as to the state of the machinery. Counsel having addressed the jury, his Honor up, placing the following issues before the jury, which they answered m the affirmative, giving £25 as their award to No. 6. (1) Was Patterson employed by defendant m the mill ? (2) Was he while so employed requested, or directed, by plaintiff to disentangle the belt from the revolving shaft ? (3) Did the accident occur m consequence of plaintiffs compliance with this request or direction ? (4; Was such disentangling m itself a dangerous duty, such as no man of ordinary prudence would undertake if he were aware of the danger he incurred thereby ? (5) Was such disentangling such a duty as a ftian unskilled m machinery might undertake at the bidding of his employer without perception of its danger ? (6) To what damages (if any) is plaintiff entitled m respect of the accident ? —£2s. His Honor, therefore, gave a verdict for plaintiff for £25 with the amount of the verdict m the flax contract m the first trial added, with costs. Wilhelm Zander v. Frederick Clark. In this case plaintiff sued the defendant for £100 under the following circumstances :—(1) On the 13th day of November, 1885, the defendant entered into an agreement m writing with the plaintiff whereby for the consideration therein expressed, the. defendant contracted with the plaintiff that he would not at any time during the period of ten years, either m the town of Ash burton or afc any place within a radius of fifteen miles carry on, conduct, or be directly or indirectly engaged, concerned, or interested m the business or trade of hairdresser, barber, tobacconist, or toy, or fancy goods dealer. And the defendant further agreed that, should he commit any breach of the said agreement, he would pay £100 to th plaintiff by way of damages. (2) In or about the month of July, 1890, the defendant, m breach of his written agreement, commenced to curry on the business of barber, hairdresser, tobacconist, and fancy goods dealer, and stili continues to do so, or is directly or indirectly concerned m the same. For the defence, it was stated (1) that the defendant admitted the agreement of November, 1885, but denied that m the statement of claim the provisions of the agreement had been correctly set out. (2) That defendant admitted m July 1890 commencing to carry on the business alleged, and continuing to carry on the same, but denied doing so m breach of the 1885 agreement. (3) That defendent denied that plaintiff had been put to any loss or damage through' defendant so commencing and carrying on such business; and further submitted that the agreement of 1885 was not legal and effectual to entitle plaintiff to the amount claimed or any amount. Mr Purnell for plaintiff ; Mr Kippenberger, with him Mr J. A.-Flesher for defendant. Counsel for defendant said the case would resolve itself into one of assessing of damages, and quoted authorities m favor of considering the sum mentioned as purely a penalty, and asked that damages should be assessed according. It could never be the intention of,the agreement that for the slightest possible breach of it—even within the last week of the ten years, and ten miles out on the plains—the full sum of £100 should be exacted. Counsel for plaintiff spoke at some length, urging the difficulty of assessing damages m such a case as this and quoting authorities for the exaction of the amount | named m the agreement. His Honor said he would hear the evidence as to damages and reserve judgment. Wilhelm Zander said the agreement produced was signed by him and defendant and the defendant had opened business under the name of J. Purchase three doors away from witness's premises. Had seen customers of his going to defendant's shop. By Mr Kippenberger — There had been a business carried on m Purchase's shop for ten years—hairdressing, but not much m tobacco. It was now a business m which hairdressing was carried on as well as the sale of tobacco and fancy goods, Could not say what damage he may suffer m the future, but knew that he had lost customers through Clark opening. Produced his books showing the business he had been doing. By Mr Purnell—The business Carried on by Mr Purchase was practically no opposition as he had but little goods for sale and only did hairdressing. Ed. Robottin knew the defendant and remembered him setting up business. Had a conversation with him at the time m the course of which he said he would probably get back some of his old customers. Those customers might be some of witness's for aught he knew. Never was m Purchase's shop since he started business, but Clark seemed to keep a larger stock than Purchase did. He^ry Zander negotiated the purchase rf Clark's business for the plaintiff, who was his brother. Believed his brother's business would suffer by Clark's action. Mr Purnell said it was utterly impossible to give evidence as to the actual loss suffered or likely to be suffered by his client, but even £3 a month would amount m the five years yet to run to £180, His Honor reserved judgment. The Court adjourned till. ten o'clock this day.
DISTRICT COURT, Ashburton Guardian, Volume VII, Issue 2519, 16 September 1890
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