LAW REPORTS. SUPREME COURT.

Dominion, Volume 1, Issue 65, 10 December 1907, Page 7

LAW REPORTS.

SUPREME COURT.

CIVIL SITTINGS. BROOKLYN TRAM ACCIDENT CASE. : PLAINTIFF AWARDED £260. MOTION FOR NEW TRIAL. Tho Civil Sittings wero rcsumnd yesterday morning. His Honour Mr. Justice Button took his seat at 10.30 o'clock. The hearing of tlio action, Richard Elliott v. tho Corporation of Wellington, was commoncod. Plaintiff, who was injured in the BrooKlyn tram accident in May last, claimed £500 and costs as damages in respect of physical injuries sustained by him. Ho alleged that the injuries had prevented him following his usual occupation for some considerable ttmo, and.had loft him permanently partially incapacitated. ' la their statomont of defence, tho Corporation denied that plaintiff had sustained loss as alleged; also, that the plaintiff had given notice of action required by tho provisions of the Municipal Corporations Act, 19U0; .Defendants paid £65 into Court. Mr. D. M. Findlay appeared for plaintiff, and Mr. Gray (with him Mr. O'Shca) .for tho Corporation. Tho, following special jury was empanelled: —Richard Brown (foreman), Frank O'fauJiivan, Alfred B. Donno, and Norman Gibbs. Mr. Findlay said ho understood tho corporation- was unable to dischargo tho onus upon it of showing' tho cause of the accident. Mr. Gray: Tho accident happened, but the cause is"unknown. His Honour: Tho amount of damages is then tho only question for'tho jury. Mr. Findlay, m outlining tho caso for the plaintilf, said that his client, who was flrcysix years of ago, was a baker- by trade, Ae a result of the accident,- plaintiff was seriously and permanently incapacitated. Plaintiff -had ascertained since the proceedings were instituted that there was a probability of loss of tho use of tho arm and hand through wasting. Ho had, theroforo, increased his claim from £250 to £500. He (oounsol)' might point out that tho Corporation had not had plaintilf medically examined until just before tho trial. ; Mr. Gray: Tho Corporation did not nave him examined before becauso negotiations lor a settlement wero in progress. Mr. Findlay: Plaintiff endeavoured to get a roasonablo settlement, and how did um Corporation meet him? They havo paid into Court only £65. ■ ', Mr. Gray: 1 3ubmit that Mr. Findlay has no right to toll tho jury what was tho result of the negotiations or how much was paid into Court.

His Honour: Why? . Mr. Gray: It is a mattor of practice His Honour:, I have known sovcral juries to be so'informed. Mr. li'indlay: 1 apologise for tolling the jury what they already knew through me nowspapors. Continuing, Mr. Finuiay informed tho jury that plaintilt would not bo ablo to make a further .claim on tho Corporation in respect of the injuries which ho had sustained. His Honour: You increased tho amount of the claim after tho proceedings wero instituted? Mr. Findlay: Yes. His Honour: The principle is quite new. to mo. Mr. Findlay: I did so .on the authority of three New Zealand cases/ which I shall cite. His Honour: Tho question can bo arguod later. . Richard Elliott, the plaintiff,- gave evidenco that, at the dato of the aceidont, , ho resided at Brooklyn. On May 3 he joined the car leaving Brooklyn at 5.22 p.m. Just past Soagor's loop another car was met, and tho car in which he was travelling had to go back a short distanco, tbo trolloy-head not being shifted. On. tho incline bolow the loop .the brakes refused to act.. The trolloyliead was torn off at l polo No.. 31; and at polo N0."43 the' car ; ovuriurned.-. Ho 'was .brnisqd all over and sustained-a wound four inches long on the 1 right elbow. Eight stitches had to he put in the wound. Owing to tho shock iie was unable to sleep for four days and nights after tho accident..- Six weeks later, when the wound was apparently' healed, lie returned to work. The wound had since broken out, and his arm was giadually becoming weaker. / Cross-examined,, plaintiff stated' that, with the assistance of another man, ho could now mix 900 loaves Ylaily. He received £3 per week and overtime. That was more than he earned previous to the accident. Since lie had gone back to work ho had used ointment for the wound. Dr.' Ifanlko' deposed that ho examined Slaintiff's arm last weok. There was jsomo egeneraoy of the ulnar nervo. Tho muscles supplied by this nervo wero weakened, and to some extent, wasted. Unless tho function jf tho ;norvo was restored further wasting would tako place. No ono could predict oxactly' what would happen; it might improve, or, on the other hand, degenerate, with practical loss of tho use of tho hand and impairment of the foro-arm. Dr. Boyd stated that ho attended plaintiff for six weeks, .the period commencing two days after the accident. When ho examinod the wound last week it was discharging. Tho arm had wasted and had lost power, and there wore indications of damage to tho ulnar nerve. The, arm might not get as strong again as it had been. Ho agreed with what Dr. Faulke had said.. '

Cross-oxamined, witness stated that if tho suppuration ceased the condition of the arm might. improve. It was probable that tlici'O was still sonic dirt in tho wound. Re-examined,' witness statod that thero was no certainty that tho arm would, got woll. : ' Alex. A. E. Godfrey ,baker, gave evidonco that plaintiff could not use his right arm as ho used to. Dr. Giesen also gavo evidence. Cross-examined, he stated that the present trouble might bo duo to tho presonce of some foreigu matter in the wound. This closed the caso for the plaintiff. Mr. Gray, on behalf of tho Corporation, submitted that plaintiff was bound by his original notico of action, and, therefore, could not increase tho amount of his claim from £250 to £600, Mr. Findlay contended that plaintiff had the power to increase his olaim. Ho cited three cases in support of his contention. Mr. Gray admitted that it had been decided that plaintiff could in certain cases increase tho amount of his claim. This, nowover, was not a caso in which that could be done. Tho firm which Mr. Findlay ropresented had the honour of acting for tho plaintiff in each of the cases quoted in support of tho contention that the amount could bo increased in tho present case. His Honour noted tho objection, but gave it as his opinion that plaintiff was entiito ahiond his statement of claim. . Mr. Gray then outlined tho facts relied on by the Corporation. Dr. James gave evidence that, at the request of tho City Solicitor, and in company with Dr. Fell, he* examined plaintiff's arm on Wednesday last. Dr. ooyd was also presont at the time. It was quito possible me present state of tho wound was duo to tho presence of foreign matter. Witness was of opinion that the ulnar, nerve was not permnnontly injured. There was no apparent weakness of the muscles supplied by tlin , . nerve. Ho was unable to say whother there had been any loss of power because ho had not examined the arm previously. The ulnar nervo had nothing to do with the power of gripping. There was no indication of any wasting nt any'one particular spot in the arm. No impairment of sensation had boon sustained. Apart from the wound, tnero was not very much the matter with the arm. Dr. Foil also-gave ovidonce. JIo statod,. inter alia, that ho found no sign of wasting of any particular muscle, nor anything to indicate that tho nerve in question was injured. In his opinion purmuneut injury would not ensue. This closed tho caso for the defence. His Honour briefly summed up. Tho foreman asked if the Corporation had made an offer to settle the claim. Counsel for the defence wishod to oxplain. His Honour: It might only complicate the "tse. Tho matter is not one for considera-

tion by the jury. The question for them is: What amount is plaintiif entitled to? 'J'lm inry, whn retired at 8 p.m.. returned nt 8.35 p.m. with a verdict for plaintiff for Mr. Fimllay asked for judgment and costs. His Honour entered up judgment for the amount awarded' with costs on the middle scale. Mr. Gray intimated that he would move for a new trial on the ground that the, damages were oxecssivo, and applied to tho Court for a stay of proceedings on his giving notice of motion within four days for a new trial. His Honour granted the application. The Court then adjourned-until this ingIN CHAMBERS. Mr. Justice Button hold a sitting in Chambors yesterday morning. The only business was the motion to dissolve the interim injunction obtained in January by Mrs. "VV. 11. Fiold against Allan M'Guiro and his contractor, restraining them from cutting into the bank at the rear of the new Commercial Hot-el on Lambton His Honour said that on Friday he inspected the bank in quostion, and had conio to the conclusion that the motion should bo doalt with" at once. Mr. Justico Cooper, who had granted the injunction, had telegraphed from Blenheim, asking him to hear the case in his absence Ho would, therefore, take the case on Thursday morning at 10.30 o'clock. Upon the- suggestion of Mr. Justice Button, counsel agreed that either the EtiKJ-neer-in-Chiof for the Dominion, or Mr. W. Ferguson, engineer to the Gas Company, should sit with him for the purpose of informing him upon any engineering quostion which might arise. ... •