EMPLOYERS' LIABILITY ACT.

Auckland Star, Volume XXV, Issue 168, 16 July 1894, Page 4

EMPLOYERS' LIABILITY ACT.

ACTION ACAINST A SHIPPING COMPANY.

The hearing of the case between Samuel Fullerton, lumper, and the New Zealand Shipping Company, in which the plaintiff claimed £25 damages for loss of work, medical expenses, etc., incurred by him in consequence of having received an injury while working aa winch-end man on the Toßeariro, in April last, was resumed at the Magistrate's Court this morning, before Mr H. W. Northcroffc, S.M. Mr M. McGregor appeared on behalf of the plaintiff and Mr Theo. Cooper for the defendant Company. The case for the plaintiff closed on Friday last. This morning a number of witneuees were called to prove tbab the Company could not) be held liable for the injury euatained by the plaintiff. Captain John Nearing, the contractor for discharging the Tongariro, said ib was he who employed the plaintiff to assist in working the winch, He left the boat at about half-past twelve on the night when the injury" was sustained. The winch worked well enough during that day. A donkey engine had been employed at No. 3 hatch (nob No. 2) beeauae there was not sufficient steam to keep all the winches goiap ab one time. When the plaintiff applied to witness for work he said he was a competent man at driving a winch or at any work of a similar character. It waa the duty of the winch-end man only to attend to the yard arm rope, and to see thab the cargo is flung clear of the hold. Witness had been employed in discharging the cargo of the large steamers for the laab 20 years, and was consequently in a position to speak authoritatively on thesubject. It was certainly no duty on the part oi the winch-end man to interfere with the rope whether it rode or not. The driver of the winch usually attended to that himself. The defendant had no right to go between the combings of the hatch to adjust the rope. Cross-examined by Mr McGregor, wisneas said thab if a foul occurred for a few minutes the winch-end men were never expected to assist in getting the machine in order again except so far as their proper duties were concerned. They were usually old men who couldn't do anything else than attend to the light duties apportioned to them. If any steam was escaping on the day in question he did nob notice ib. John McAlister deposed to having been employed as driver of tho winch from 8 in the morning till midnight of the day j previous to the occurrence of the accident. The winch worked all right then. The 1 donkey engine was nob employed ab No. 2 hatch on that day, bub on tho Tuesday morning at nine they were stopped for steam. There was, however, nothing wrong with the winch itself. His experience as a winchdriver extended over the iaet 24 years. He corroborated the statements of the previous witness with reference to the duties of the winch end man. Daniel Driscoll said he was acting as winch-end man up to five o'clock on the Monday and the winch was in good working order up to the time he knocked off. James Edwards, foreman of the men employed in discharging the cargo of the Tongariro on its last arrival at this port, gave similar evidence to thab of McAlister as to tho good order of the winch and to the duties of the winch-end man. Witness had heard the plaintiff say to tho winchman that he had no business to start the winch but what was said in reply witness wob unable to recollect!. George Main and James Crawley also gave evidence for the Company. John Eel), who was then called, on the application of Mr McGregor, to give expert evidence aa to the duties of a v. inchend man, t<aid thab if anything went wrong with the winch it was an understood thing lor winch-end men to assist, without receiving orders so to do, iv getting the machine in order. If the steam were shut off there was no danger in going between the winch and the combings of tho hatch for the purpose of clearing the obstruction referred to in the presont case.

In cross • examination by Mr Cooper, witness said that he bad had various experience as a driver of winches on board steamers within the lasb 36 years, but had not been so employed during the last few year?. After tho bench had been addressed by Mr Cooper and Mr McGregor, for tho dofence and prosecution respectively, Mr Northciofb said that as neither of the parties would have an opportunity of appealing against his decision (the claim being under £50) he would reserve judg tuonb till Thursday morning at half-past nine.