CLAIM FOR DAMAGES.

Gisborne Times, Volume VI, Issue 188, 16 August 1901, Page 4

CLAIM FOR DAMAGES.

THE ACCIDENT TO ME JACKSON

A FURTHER development m regard to the injury sustained by Mr Theodore Jaeltson on May 10th tool; place yeasterduy. when he appeared as plaintiff in a claim lor Al 5 damages against the owner of the barque Emprezu, Mr tt. Xieeol. and the master, Captain Stenbeeh. Mr 11. N. Jones appeared for the plaintiff, Mr DeLautour for the captain, and Mr Nolan for the owner.

In his evidence plaintiff stated that while taking coal on to his dray from the barque the man at the winch hoisted the basket: witness took hold of it, and was starting to pull it, when the winehman let go suddenly before he was told, and the suddenness caused witness to fall off' the cart. He had told the winehman several times the day before to hold the basket until he was told to let go. The winchman replied, “ I will fix you yet.” He had warned the winehman, because he thought there was risk to life. He had loaded thousands of baskets before without accident. Two of his ribs had been broken, and he was laid up for three weeks, and estimated his loss at A'ls. He paid Wilson A 5 to take his place for 12 or It! days.

liy Mr DeLautour: He complained to i the winehman, but not to tho captain or mate. The baskets came straight up from the hold on to the cart. He was standing at the side of the dray at the time of the accident. The cart was nearly full, and the last basket was just coming on. He was not standing on the iron bar over the wheel, but was standing on the side on which he fell. Other carters were waiting to take their turn. He knew a carter named Lamont, but could not say whether ho brought water, as he was unconscious. Somebody helped him up, but he was half conscious when he left the wharf, driving the cart to the Gasworks. He did not complain to the captain or anyone about the negligence of the winehman then, and did not know if he said, “ It's an accident, and entirely my own fault.” Had not seen coal landed from ships in other places. He considered it was a safe practice to receive coal into the drays with ] the men in them. Witness was working for Messrs Kennedy and Evans at the time of the accident. He did not complain of the language used by the winchman, and had no words with him before. Some of the winchmcn raised the basketjust to clear the load, while other's raised it above the carter’s head. At the time of the accident it was about throe feet above the coal. If he had not touched the basket it would have fallen on the end of the dray. While pulling the basket, it was forced cut of his hands, and he foil over the dray as he lost his hold. His average weekly earnings would bo about A-l 10s. The weight of the basket was between three and four hundredweight. Frank Bates, laborer, deposed to witnessing the accident. The winehman was not supposed to let go the basket until the drayman told him. The accident would not have happened if the winehman had displayed the same care that lie showed after the event.. The carters and winchmcn went by the voice in lowering the basket. Charles Gordon, carter, described the accident. He had narrowly escaped an accident himself, but it was through the man at thebull rope. Jacksonliad not contributed to his accident. It was not always the practice for the winehman to wait for carters to sing out. He did not think the plan adopted was a safe one for unloading coal.

Mr DeLautour submitted that there was no affirmative act of negligence which should make the captain or owner liable proved in the ease ; that Jackson contributed to his own injury by carelessness ; that at the time, and before he had consulted advisers, he admitted, in the presence of witnesses, that it was entirely his own fault, and this was corroborated by the fact that ho made no complaint after the injury, until, no doubt, it was suggested by someone that he had a remedy against somebody ; the defendants submitted that the receiving of coals from ships by drays in the method employed by carters in Gisborne was a hazardous risk, which had nothing to lo with the ship. The accident was inevitable ; the damage claimed was

excessive. Eric Weigel deposed that ho was a seaman on board the Empreza. Saw Jackson standing up after the accident, and heard him say, “It was an accident. It was my own fault.” By Mr Jones : He was working in a different part of the ship the day before, and did not hoar Jackson Warn the winchman. Jackson looked pale after the acci-

dent. James Lament, carter, deposed that he heard witness say after the accident he was not hurt much, and that it was iiis own fault. Plaintiff was conscious, and refused to let others take his dray up, as lie said lie could drive it himself. Witness did not hear Jackson make any complaint against the winchman. Captain Stenbeek deposed that the winchman was James Miles, who had acted in that capacity for two years, and was the best man ho had had for the work. Ho had left him behind at Newcastle suffering from pneumonia. He had only at first heard that a man had slipped off a cart near the ship. The method employed hero was not the best means of unloading eoal. In other places there was a platform to land coal, the carter standing at the horse’s head. The practice at Gisborne was the most oldfashioned in vogue. By Mr Jones : lie saw in the Tunis that there had been an accident, and that they blamed the ship, and ho had contradicted it in that paper. Mr DeLautour addressed the Court on the lines of his opening remarks, and said that Jackson himself, at the time when lie was injured, and when his feelings would have been warm and his indignation extreme against the winchman if ho had believed there had been wilful carelessness, voluntarily admitted that it was his (Jaekson( own fault. Concluding, DeLautour claimed that any one of the six points he had raised would be sullicient to give a verdict for the defence. Mr iSJolan supported Mr DeLnutour’s contentions, and he claimed the point to be clear that the ship was an absolute stranger in the matter as far as the employment of Jackson went. Mr Jones, in reply to defending counsel’s arguments, maintained that witnesses had proved both presumptive and affirmative evidence. Three witnesses distinctly stated that the accident could not have occurred unless the winch had been let go at the improper time, and they further said that Mr Jackson was doing the work in the ordinary .nay. With regard to contributory negligence, a man could not contiibute by negligence towards an accident, and then say it was inevitable. Mr DeLautour : Wc put it alternatively. Mr Jones : There had been no evidence that plaintiff contributed twards the accident. If he had run under the basket it might have been contributory negligence. He had taken up the position that other carters did—even the witness Lamont admitted this. Even if the plaintiff had said it was his own fault—and he had no remembrance of it —he could come to the Court and with evidence on oath show he had been mistaken. He was not incurring any special danger in doing work in which, if ordinary care were taken, no accident would have happened. There might be risk, but there was risk in all carting work—a horse might run away, but it could not, therefore, bo said that the work was hazardous, Taking the case of Mrs Clark against the steamship company for an accident that had been caused while the lady was stepping on to a tender, it might be said, therefore, that it was risky to travel to Gisborne, but that would not hold, as thousands of people so travelled every year to and from Gisborne. It did not. follow that there was any special risk unless that could bo shown. On the point as to master and servant, he claimed that the cases quoted dealt with that, in favor of the plaintiff. It was absurd to say that this was an inevitable accident; if the horse bad run away it might have been inevitable : inevitable was something that could uot have been avoided by ordinary I care. All the evidence proved that an accident had been caused to Mr Jackson by negligence of someone on the ship ; that there had been no contributory negligence by plaintiff', and that the work was not specially hazardous. His Worship, who said he would take it that Mr Jackson had made the statement that the mishap was accidental, said

ke would take time to go through the I evidence again, and look into the cases j qooted. Judgment would, therefore, be reserved.