INJURED ON A TRAMWAY.

Dominion, Volume 2, Issue 498, 4 May 1909, Page 2

INJURED ON A TRAMWAY.

CLAIM FOR DAMAGES UPHELD. ' Right to damages was the : question involved in. .the ..case , of Andrew E. Harris, • coalminer, Mount Somers, versus- John Tuckey Ford, Ida Frances Peache,' and Beauchamp Lasisetter. Lane, the trustees of tho will of E. A. Peache.(deceased); in which \ tho judgment of tho Court was next delivered by. Mr. Justice Edwards..' - . 'The facts in. this. , case wore' as follow: Plaintiff asserted tbat , owing > to "the defective condition,.of the tramway at Mount Somers in December, ; 1907, whilst he was ', lawfully, using it,, y hoK sustained , injuries ..". which necessitated the. amputation of one of his legs. A sum of ,£250 which' he's had received from his employers was merely in tho way, of compassionate allowance!. Defondants denied, that tho tramway was in a defective condition, and alleged that con- .. tributary, negligence was shown on the part of plaintiff., It was; furtherstated by them that plaintiff was not lawfully using the tramway when, ho met with'tho injury. By .accepting compensation fromvhis'employers,' plaintiff was barred by Section-. 16 of tho ■ .Workers' Compensation for Accidents Act from making a'further claim! Upon tho , facts a jury at Christchurch found that the injury na-s duo to the defective'condition of tho tramway; that plaintiff had not been . guilty of contributory negligence; and that plaintiff was entitled to recover £600 dam-. .ages. .; A-motion for judgment, iyas . now brought.. , , ' '- ..; ; . .". ■':■. : ' Tho Court found that it was in the performance of voluntary work that plaintifT mot with the injuries. It'was clear'to tho Court that plaintiff could not,have recovered compensation from his employers. Further, tho Court hold that; if such an action had been brought, that action would not have, afforded to the defendants an answer to tho present action. The provision forbidding the worker, where he had, a double remedy, from prosecuting both remedies was ' a' fair and logical' result of, the fair and , ; logical provision entitling tho employer, if ithe, remedy against hini was prosecuted, to indemnity from the wrong-decr. The position of tho wrong-doer was in no respect al- ,'. tered by a parent (without prejudice) to 'the worker by his employer. T,hon, 'again; ■ it was contended for defendants that plaintiff chose to undertako the risk,■■-. thereby bringing himself within tho maxim "volenti non fit injuria." .There was authority for holding" that defendants, in the olrcunir stances, owed a duty to the plaintiff. It • was unquestionable that plaintiff was lawfully using the tramway. By allowing the lino to fall into such a state of : disrepair as to cause the accident, defendants wereguilty of a broach of duty unless the case could be brought within the maxim. Supposing tho tramway had been one from a suburb into a city, and notoriously unsafo, and supposo an accident had happened by reason of such condition, could the defendants liavo sheltered themselves from liability by proof that the passengers knew of tho - insecure condition of the line? The Court thought ; not. That plaintiff did not. voluntarily undertake tho risk was shown conclusively by his repeated protests against tlic state of tho lino. "•'. . ■ ■ Judgment was therefore given for plaintiff for the damages assessed by the jury, with: costs in tho Court below according to twale, with 15 guiness for each extra day if any, and costs in the Court of Appeal on tho highest scnlo as from a distance. ' Mr. .Wilding appeared for plaintiff, and Mr. G. Harper (with him Mr. K. Noavo) for defendants..