A CLAIM FOR DAMAGES.

Evening Post, Volume LXXX, Issue 38, 13 August 1910, Page 3

A CLAIM FOR DAMAGES.

ACTION AGAINST THE CITY COUNCIL. An actiou for damages against the Wellington City Council arising out of an accident last year, was heard in the Supreme Court yesterday, when Mr. Justice Chapman gave his judgment on the case. The victim of the accident was Thomas Ignatius Yourelle (plaintiff in the action), who, when returning to his home at Island Bay one night in January 1909, foil into a hole and broke his arm. He alighted from a tarncar which stopped a short distance from his house ori the Parade. The night was unusually dark, and ho was somewhat confused after leaving the light of the ear. He followed a wire fence, erected by the corporation, along the Parade, for the purpose of finding his way to a bridge across an open drain and leading to his house. A hole existed inside the fence, and extended some distance into' the Parade. It had been caused by the erosion of the filling which had been placed over a pipe-drain passing under the Parade at that particular point. _ Plaintiff fell into the hole and broke his arm, and was incapacitated for some weeks. He claimed £250 damages from the council. His caso rested on the contention that the corporation had been guilty of negligence in not placing some retention on the outer edge of the Parade on the particular point where the pipe-drain existed. The case was heard at the latter half of last year, when the jury awarded plaintiff £101 odd damages on the facts of the -case. Certain law points arising out of the case were then argued, and it was left for the court to determine whether the jury's findings and certain undisputed facts made out a caso of actionable negligence. Tho jury found (1) that the open, drain was not negligently constructed ; (2) That the parade was widened in 1905 and it was so constructed as to be reasonably safe, for use; (3) That the Council was guilty of negligence- in not protecting the outlet of the drain, but not in failing to erect a sufficient fence ; (4) That the council was guilty of negligence in not failing to protect or light the hole ; (5) That the parade, after its widening, became unsafe for use by reason of erosion, above or near the outlet of the pipe-drain ; (6) That the erosion was caused by surface drainage; (7) That the erosion was due to negligence in allowing the surface water to flow in the- line of the trench ; (8) That the flow of water from the pipe-drain at its outlet had no material effect in producing tb& hole into which plaintiff fell , (9) That the existence of the pipedrain in the vicinity of the creek materially contributed to the erosion at the surface of the road. , In his judgment, Mr. Justice Chapman mentioned that the case was one which appeared to approach *the border-line which divided cases of misfeasance and nonfeasance. As to the cause of tho accident, his Honour held that the corporation had failed fo repair the particular portion of the street ; that it had not caused tho defect in the street and made it worse ; that it had done something, but as it turned out^ not enough to protect the public from all the consequences of this neglect; that it did not repair this defect because it was merely one of many similar defects which existed about there- and m many other places, but it did not specially invite the public to use that dangerous' piece of street, and that the plaintiff, using it in a somewhat exceptional though perfectly lawful way in which it was probably never contemplated that anyone was likely to use it. met with an accident. "For these neglects so far as they contributed to the injury," concluded his Honour, "the law does not hold the corporation liable, and consequently my judgment must be for tho defendant." Costs were allowed the council. At the hearing of the case Mr. A. Gray and Mr. P. J. O'Regan appeared for plaintiff, and Mr. C. P. Skerrett. K.C., and Mr. J. O'Shea were for defendant corporation. After judgment was entered, Mr. Gray asked that the costs securing an appeal be dispensed with as the case was an important public matter. His Honour said he would consider the application.