LAW REPORTS.

Dominion, Volume 1, Issue 223, 13 June 1908, Page 13

LAW REPORTS.

SUPREME COURT.

CIVIL SITTINGS. ' y' (Before Mr. Justice Chapman and a; ! X jury of four.) ' TRAMWAY PASSENCER'.S CLAIM. NICHOLLS v. CITY CORPORATION. QUESTION OF OVERCROWDING. An action claiming £50 was brought .'by James Nicholls, miner, of Kilbirnie, against the City Corporation for injuries sustained j on October 12 last, while he. was traveljing from Newtown to "Wellington in a combination car. The statement of claim set 'out that the plaintiff, was thrown off- the car while it was passing Kent Terrace, and ho alleges that, lie. sustained injuries in r that his head' was cut and his shoulder. tyroken. 'He alneglect on the part of tho Corporation in threo ways. First, that the car wa_s very much ovorcrowded; second, that it started .off, with a sudden jerk that could have been avoided; and thjrd, that after the accident, tho car was not ptilled up in reasonable time. On the other hand, 1 the Corporation denies negligence, and asserts that thero was contributory negligence on tho part of tho plaintiff, . . ■ Mr. Dunn appeared for plaintiff, and Mr. O'Sliea for the , defendant Corporation. In outlining tho case for the plaintiff, Mr. Dunn said that evidence-would be called to show that the hiotorman suddenly put on tho power, and there was quite ah extraordinary jerk, and this caused tho plaintifS- to fall. ■ Plaintiff, in his evidence, stated that- at the time of the incident, ho was living at Adelaide Road. On October 12, a Saturday night,'ho boarded the last open compartment pf. a combination car at Drummond Strait. Five persons were standing in it, including himself, and three persons were seated. Witness was inside the line of tho car. The conductor took the fare, but made no remark concerning tho'people standing. .-Witness supported himself by the brass rod. After stopping at the top of Kent Terrace, Adjoining the-Basin'Reserve, the car shot ahead suddenly. He and others received a shock and the other poople coming' against him caused him to lose his balance. • "Witness clung to' the brass rod, but ho slipped and fell, still retaining bis grip on the rod, Tho conductor blew his whistle immediately after the occurrence. Probably witness hung on for two and a half car-lengtlis, but be iyas then compelled to let go. Witness was insensible for a while, and when ho recovered consciousness, he found that the back ,of his head'was cut open, and his shoulder injured. He was tbken to a boardingbouse, whero ho romaiTied' for three-quarters of an hour. Doctor M'Lean was called in, and he dressed the head and put tho arm in a sling. Witness was then removed' to bis own .'homo. Witness went to the Hospital on November 2, and he was put under an anaesthetic. After this, an electric battery was used for three weeks and four days. Ho recommenced work on January 6, as a driver, but .he suill f.elt the effects of the injury. 'Ih his previous employment, lie worked less hours and received more money. To Mr. O'Shea: He did not consider that thero was any risk "in boarding the car, and he was quito certain that he did not have hold of tho top wcoden rod. ' " ■ . Henry Joseph Pearman, a coal merchant, of Einfciul Street, and George Symington, a driver, of Oxford Terrace, gave evidonce for the plaintiff. . Annie Nicholls, wife of plaintiff, gave evidence as to the' condition of her husband after tho accident. Mr. O'Shea asked for a non-suit ;on the ground that thero . had been no negligence. His Honour said that he would • make a noto of tho matter. • Mr. O'Shea said,...that, it .would, bo shown that plaintiff changed his . hold from tho top Tvcoderi bar to tho brass rod to allow'tho-con-ductor to pass, but as be had a bag in" one hand, he missed'.tho rod and fell,. it being a,pure accident. ... . ... Jam& Gordon, conductor of tho car; deposed that plaintiff was' holding to the top wooden bar. Two . passengers boarded tho car at a stopping place after Nicholls got on. Witness passed Nicholls, who seemed to think that witness wanted to como near him, and witness said, " Don't move; you're all right." Plaintiff altered his hold to tho: brass rod. but he slipped, and witness caught him,"but was.compelled to lot him drop; then witness blew his whistle. Had Nicholls remained, where he was, ho would have been all right. It would be impossible for tho car to-lurch unless. there, was something on the. track; The car about fourteon or fifteen feet alter tho jiccident. - . ■

Drs. Gibbs, Hislop, and M'Lean also gavo vidence. James Gerald Peters, the motorman, stated hat the pernor was up to tho third notch rhen ho got .'tho emergency alarm. .Arthur Edward Carver and L. O'Flakerty, lass.engers, also gavo evidence. They said h?t they noticed no bump. Addressing tho jury, Mr. O'Shea said that ilaintifF had no claim if tho car was ovorirowded. He maintained that thero was no legligehce on tho part of tlio Corporation, ind {he damages (if any) must necessarily lib"'very-small. ' Ho pointed out that Mr. Pearman was plaintiffs coal dealer, and this might possibly'give .him"-a bins. Mr. Dunn held that tho Corporation should bo held liable' for., overcrowding, i r His Honour) in summing up, said that tho' questions wero'whether the Corporation had' been negligent, and if'so, what damages would meet the ease, or whethor it was''not a caso- of ordinary accident. No reference had been niado to any regulation regarding overcrowding.' Provision' was made for people to stand in cars, all must know that, -and' it was tho ordinary thing. The conductor said that the car was'not packed.. Attempts had been made to control tho number of'people to enter cars, but a conductor who tried strenuously to enforce such a regulation would be pretty worried over it.. As to overcrowding being, iiegligonce, if any person who. obtained; a seat was injured, he might perhaps not unreasonably ' complain, but tho last person who got on was a very different" thing. If this was 'contributory nogligence, all people probably did it scores of times. ■ But when a person. took a. stand which was likely to prove infirm by any occurrence, it was an entirely, different matter. Of tho overcrowding that had been in evidence, he would not .say as a matter of law that it was negligence. ' The jury .must deeido whether in not turning him olf against his will that tho conductor was ■ guilty negligence.' He did not give any positive direction on tho matter. Plaintiff took his stand wjth the bag in his hand, which the jury might think' was negligent. Tho question was, did ho increaso tho infirmity of his position by holding tho.bag? The jury must decide whether -this was not a part of his own conduct. Tho "jury must also deoido whether thero wits a bump, and, if so, whether it was negligence or'not; for' an obstruction would causa such an occurrence. The motorman was not obliged to concern himself about people who did not exorcise proper c.iro. . Tho jury retired at 4.55 p.m., and returned at 5.20 with the unanimous verdict that the accident was not caused through any negligence by tho Corporation or its officers. Hjs Honour''gavo judgment for .defendant with costs as per scale, witnesses', disbursements to bo fixed by tho Registrar. SMITH AND SMITH v. THE CITY CORPORATION. ' Mr. O'Shea mentioned the caso of Smith and Smith v. tho City., Corporation. ■ Ho said that Mr. Findlay was jwilHng that ho should ask for an adjournment. * His Honour said that ho had received a telegram from Mr. Justice Cooper stating that howasgetthifj through the Palmcrstoii business satisfactorily, andl that 110 expected to return to Wellington on' Friday or possibly Thursday. Thoro were some jury .cases, but tho most important of theso had been fixed for the week after next. ' His Honour agreed to July 1 provisionally. Tho Court then adjourned until this morning.

IN CHAMBERS. Sitting in Chambers yesterday morning his Honour Mr. Justicc Chapman granted probate of tho will of James ltoid Bnxter, .lato of Invereargill, seedsman, deceased, to the

Publio Trustees. This was in reference to tho recent lnvercargill tragedy, when Mrs. Baxter ■and tho children were found in a dying condition i. Baxter was found dead. Tho evidence indicated that ho had first attacked tho family with fatal results, and-then shot. himself. He died first, and tho widow and children died one by one. The will bequeathed the estate to tno widow, and the administration had beeir granted to the Public Trustee. On her, death, the estato devolved to her children and vested at devolution in tho last surviving child. Tho Public Trustee was also granted administration. in the estato of John Cdlin and Phyllis Baxtor, minors, deceased. The whole estato- became , vested in PhylliSj the last surviving child, and distribution will now bo made amongst her paternal and maternal rolatives.