DISTRICT COURT

Hawke's Bay Herald, Volume XXI, Issue 5520, 24 October 1879, Page 3

DIST RI C T COURT

TnuESDAY, October 23.

(Before Judge Kenny.)

IN BANKRUPTCY.-

Mr Carlile applied for an order declaring thedeed of arrangement in Edward Coltman's estate completely executed. The order was granted. . CIVIL CASES. . Tho Court was occupied the greator part of the day with the hearing of the case of Tyne v. the Waipawa County Council, a claim for £70 for damages alleged to have been sustained by the plaintiff through the negligence of defendants in not properly securing a culvert, whereby plaintiff's horsos slipped through, damaging the coach and breaking the harness.

Mr Lascelles appeared for the plaintiff, and Mr Cornford for the defendants.

Mr Lascelles stated that the plaintiff was a coach proprietor, driving between Waipukurau and Wallingford. On the 6th March the plaintiff was driving along when the culvert gave way. One horse slipped through, the coach was damaged, and the harness broken. . The plaintiff could get no adequate compensation from the County Council, and had at last been compelled to bring the . case before, the Court.

William Tyne, plaintiff, deposed that on the 6th of March last he was driving along the Waipukurau and Wallixigford road at the rate of about five miles ah hour, and on crossing over a culvert it gave way. The timber was rotten, aiid there was no notice, to warn the public that the culvert was insecure. Tn consequence of the accident the coach witness was driving was damaged and th» harness broken. The horse that went through had to be left close by, and was brought on afterwards. It was laid up for two months in consequence. That horse in plunging had kicked another one, which had not been fit for work since. The horse that was now laid up was obtained by witness from Mr Fleming, who held witness responsible for any damage to the animal. The horse was valued at £45. The expense in minding the other horse for two months was £5 ; and the cost of repairing the harness and coach was not less than £12. Mr Mackersey had been appointed by the council to see what witness's losses were.

By Mr Cornford : Witness agreed to return the horse sound. It had been given to him to run in the coach for a while. There was no horse doctor to be had in town.

By Mr "Lascelles V Witness did not know of a single veterinary sugeon in the whole of Hawke's Bay. . ; \ John ;Mackersey, a member, of the Waipawa County Council, deposed that he did not know if the road in question was included in any road district. Witness was appointed by the Waipawa Council to ascertain the correctness of Mr Tyne's charges, and the amount of damage he had sustained. The road in question was under the charge of this County Council. ' By Mr Cornford : Witness never knew of any wardens having been appointed for the district. He saw the broken timber lying alongside, but did not know of what kind it was. It was quite rotten ; at least it appeared to be so on the outside. Witness was not aware of any notice having been received of the state of the bridge. The Provincial Gazette was handed to the witness to enable him to say whether the accident occurred within the boundaries of the Purimu road district, and he said it did.

By Mr. Lescelles; Witness had never known of any wardens or road board having existed. Except by the proclamamation the board had no existence. As for'as he knew the Council had full charge of the road. A person could see underneath' what the state ot* the culvert was.

, William Gibbs, road-overseer for the Waipawa County Council, deposed that he had repaired a portion of the culvert six weeks' previous to the occurrence of the accident. About half-an-hour after the accident happened witness repaired the culvert. Witness was in the employ of the County Council, and had had charge of a great portion of the road in question for about three weeks previous to the accident. The planks that gave way seemed all right at the time witness first attended to the culvert. Witness only took down about one-half of the culvert. That pait had stood, but it was the portion that was left untouched that gave way. It was tlionght the planks which were not taken down would have lasted some time longer. By Mi* Comford : The planks that gave way seemed to be serviceable when witness left them. If witness had thought they were rotten he would have taken them out. The planks were said by the witness

not to be"" properly rotten." They were of totara, 4 inches in thicknessV-*-A John jßnckley, a laborer working on the road -under the previous witness, gave , evidence of an unimportant nature. Alexander St. Glair Jpglis,. clerk f^tHe Waipj,wa County Council, deposed that the Council paid for the keeping ;of the road in- repair, and had it under . their, control. '...•.

Samuel Burgess, general road overseer to the Waipawa County Council, stated that lie considered Mr Gibbs a competent man for the work he wa-j doing. Witness knew the site of the accidentj and paw the timber after it had been»iaken oiit subsequently jto the accident; I'he outside of the wood, would iead anydlie who' Knew his business to believe that the timber was sound, and that it would have lasted for a considerable time longer. There was a good deal of heavy traffic oh the road. By Mr.Lascelles: The timber could not have been tested with a rod, or at least it would have been almost impossible to do so. Witness did not sco the culvert while" it was being repaired the first time. He had seen it after, and it appeared to be in a satisfactory condition. Tho timber was totara. Heart of totara ought to last for several years. The cnlvert had not been constructed by tho County Council, bat by the Provincial Government.

Mr Gibbs, recalled, said the timber had given away about 18 feet distant from the portion he had repaired. He could not see if the timber that had given way was sound at that time.

Sydney Johnston, Chairman of tho Waipawa County Council, gave evidence as to the damage done to the horse, for which £45 was claimed. Witness had ]sor 20 years' experience in horses. He considered that the horse had not been damaged to the extent of more than £5. If in sound health he would value the horse at £25. It had a swelling on the off fore-leg.. When he saw it on Tuesday he did not consider It lame.

Mr Tyne, re-called, said he had made the agreement with Fleming last December.

Mr Cornford addressed the Court at great length, speaking for an hour and a-half.

Mr Lascelles followed, and^ spoke for about 50 minutes. His Honor reserved judgment!