COURT OF APPEAL

Evening Post, Volume XCII, Issue 75, 26 September 1916, Page 8

COURT OF APPEAL

NUISANCE ON A HIGHWAY

A CASE FROM MASTERTON,

During November of last year ahorse belonging to Percy Brothers, farmers, of Te Ore Ore, Masterton, was killed on the Te Ore Ore road as the result of a collision with a. motor-cycle. Some little time later, before the removal of the dead animal, the mail coach from Masterton to Castlepoint, owned by Fly and Young, of Masterton, came along, and the horses drawing it shied at the body of the dead animal, with the result that the coach was capsized and smashed, tho harness. broken, and one of the horses killed. Fly and Young thereupon proceeded against Percy Bros, at the Masterton Supreme Court, and obtained a^'erdict for £154 damages. Against this decision of Mr. Justice Chapman Percy Bros, appealed, and the hearing of their appeal came before the Court of Appeal, First Division, to-day. The Chief Justice (Sir Robert Stout), Mr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Sim were on the Bench.

Mr. C. P. Skerrett, K.C., with him Mr. Jordan, of Masterton, appeared for the appellants, and Mr. D Kennedy, with him Mr. Hollings, of Masterton, for the respondents. * Having outlined the details of the accident, and contending that the body of the horse was removed as soon as possible, Mr. Skerrett pointed out that at the time of the accident the mare was not in the actual possession of tho appellants, but was in process of being returned to them from a neighbouring farm. The reason for the appeal was the dismissing of the motion for a nonsuit of the plaintiff in the original ac- j tion. Tho real question was as to whether a person, not in possession of a chattel which, without fault of his, creates a nuisance can be held to be liable for the consequences of the nuisance merely because he is the possessor of the chattel. There could be no liability for constructive possession or the right to possession. (Proceeding.) <