CLAIM FOR DAMAGES.

Auckland Star, Volume LVI, Issue 190, 13 August 1925, Page 8

CLAIM FOR DAMAGES.

FALL OVER EMBANKMENT. VERDICT FOR PLAINTIFF. MOTION FOR NEW TRIAL. The claim for £700 18/0 damages, which was made at the Supreme Court yesterday by a pedestrian, James Francis Attwood (Mr. Richmond and Mr. Kirker), against the City Council (Mr. Stanton), was continued to-day before Mr. Justice Reed and a jury. Plaintiff based his claim on injuries and damages suffered as the result of a fall over an embankment of two feet iv Jervois Road on August 21 last. Mr. Stanton, for the defendant corporation, made application for a nonsuit on three grounds: Firstly, that plaintiff had not commenced the action within six months of tlie date of the accident, as required under the Municipal Corporations Act; secondly, in the case of a road or street formed by a local body there was no obligation on the public body to fence and safeguard the side of the road; thirdly, if it should be held that danger existed at the spot, it was not on the road, but on the property of the adjoining property holder. The deepest part o; the embankment, said counsel, was only 14 inches, and expert evidence would be called to state that it was not regarded as necessary to fence a drop of less than two feet. The level of the footpath had been fixed about 1912, and there had been no accident there before the present one, nor any complaint of danger. Plaintiff had called no expert evidence to say that the place was dangerous or badly engineered. W. E. Bush, city engineer, said the level of the road at Islington Street on the western side near the Jervois Road corner was raised one foot during 1910 and 1911. There were many places in tlie city of greater drops at the edges of footpaths on to neighbouring sections; and he said the city authorities should never think of fencing a footpath with so slight an elevation. Two feet was commonly regarded as a safe limit for a drop alongside a pavement. Addressing the jury, Mr. Stanton said the facts came within a small compass. On the day of the accident the plaintiff passed the spot twice before he sustained the fall. There was a light at the top of Hamilton Road, and it was in good order, and had been so on tlie i.ight in question. There was also a light in Islington Street, and it shone towards a vacant section. The claim had been put forward that the plaintiff was a perfect stranger, but he submitted that he was not a stranger, as he had passed the place on two occasions before the accident. It had to be proved that the council had been negligent, or that it had not exercised reasonable ea/e. It seemed to him that nothing could be reasonably said against the lighting of the street at the time. Mr. Richmond dealt at length with the scene of the accident and the incidents leading up to the actual fall. He would not say the road was insufficiently lighted, but he would say that where a track was put beside a ] road, it should be lighted. As it was the road was in darkness. Once a local bodyj dug a hole or raised an embankment it I was responsible for anything that I happened. The council did raise an J embankment, where previously there was I a slope that presented no danger, and he submitted that it had not taken sufficient means to protect the public. If the jury "was satisfied that there had been a hole, and that the council had been negligent, it should \!ring in a verdict for the plaintiff. His Honor stated that the action was based on alleged negligence. The case was an important one in that to a certain extent it fixed the degree of! care required om the council in regard i to its works in the city. His Honor quoted at length from legal authorities.' and continued by saying that the burden of proving negligence "devolved on tlie plaintiff. The jury had to dpcide whether! the action of the council had boon negligent, and whether, if the plaintiff' had exercised reasonable care, the accident would have been avoided. The jury returned at 12.45 with a verdict, for the plaintiff for f>2so special damages and £]r>o general damages. His Honor stated that he would hear argument in the morning on Mr. Stanton's motion for a nonsuit and a new trial.