A CLAIM FOR PERSONAL DAMAGE.

Auckland Star, Volume XXXIX, Issue 81, 3 April 1908, Page 5

A CLAIM FOR PERSONAL DAMAGE.

JUDGMENT FOR DEFENDANTS,

Mr. C. C. Kettle, S.M., this morning gave judgment in the case of John Murphy v. Turnbull, Jones and Co., Ltd. On October '19th last, while proceeding- along Queen-street, plaintiff fell into one of the ditches opened up by the defendant company in laying the electric mains, injuring his legs to such an extent as to cause his incapacity to work for some seven weeks, and the incurring of £9 10/ in medical expenses. The claim was for £30. In delivering judgment, his Worship said that it was clear that on plaintiff's own showing he was not entitled to recover. The admitted facts brought the case well within the decision of the Supreme Court in the case of Harrington v. Wellington Harbour Board (14, N.Z.L.R., 347). In that case Sir James Prendergast, C.J., said: "The duty of the Board to persons having business on the wharf, or otherwise invited there by the defendants, is to warn them of concealed dangers. As to dangers inherent in the nature of the premises, and which therefore such strangers must be taken to have knowledge of, such are not concealed dangers, and there is no duty in the inviter to give warning of or guard against them either by fences, notices, or lights. As to such dangers as are known to any invited person using the premises there is no duty on the part of the inviter to warn him thereof or protect him therefrom by notice, fence or light; the invited person will be presumed to take upon himself the risk attending such use." The maxim, said his Worship, is "volenti non fit injuria." Continuing, his Worship said in the present case it is admitted that the digging of the trencn along the footway was lawful, and had been duly authorised. The trench was only 15 inches wide, and anyone could with the greatest ease step across it: A, gap of 3 feet or so was left in the clay thrown out to enable people to cross the trench, and dozens of men, women, and children did in fact cross it during the day without mishap. The plaintiff saw the clay, the opening therein, and the trench. There was no trap, no concealed danger, jind it was broad daylight. He voluntarily attempted to step across, and by some means or other, not clearly shown, he managed to fall into the trench and injured his leg. There was no evidence of any negligence on the part of the defendants. He saw the state of the crossing, and voluntarily took upon himself the risk of crossing. The maxim, "volenti non fit injuria" applies. Judgment for defendants with costs.