THE REPORTER.

Mount Ida Chronicle, Volume XIV, Issue 758, 12 April 1884, Page 3

THE REPORTER.

CORONER'S INQUEST AT HAMILTON. The adjourned inquest on the death of Michael Whelan, aged 24 years, and a native of Tasmania, who was found dead, in a bruised condition, in the stable attached to the Union Hotel, was continued at the Courthouse, Hamilton, Dn Thursday, April 3rd, before N. P. Hjorring, Esq , accingCoroner, and the following jury, of which Mr Edmonds was chosen Foreman : Messrs Berryman, Edmonds, Scherp, Roberts, Bailey, Saunders, Hart Tregonning, -James Coram, Ivtuse, Horne, John Coram, Williams and M'Alpine. Mr S. E. M'Carthy appeared to watch the case on behalf of Mrs Barber. An application by Mr M'Carthy to cross-examine the witnesses was refused by tbe Coroner. [The evidence taken on the 20th ult. comprised that of James Higbley, miner, and brother-in-law of d. ceased. His testimony was not of an important character. He stated that he had seen deceased in a muddled condition several times beiween the 3rd and the 17th of March.] The following is a summary of the evidence adduced on the ord inst James Hi b liley was re called, and slated that deceased appeared to be perfectly sensible on tbe 17th ultimo. Mary Charlotte Scherp, servant at the Union Hotel, was the next w.tness called. From her evidence it appeared that Whelan was " on the drink " from the 3rd of March. On the 4th ultimo witnees refused to serve him with liquor, so, when she happened to leave the bar, he helped himself. She caught him doing bo several times. On the sth he asked if he could stay at the hotel, and he was put in a room off the billiardroom. On the evenijg of the 16 hj, Mrs Barber (who had been staying in Naseby for the previous 13 days) relumed home Deceased then asked for liquor. She (witness) refused it, and he afterwards assisted himself to Borne port-wine, which he took from the bar-counter. On tho 17th he asked Mrs Barber for a job, and she referred him to Mr M'Donald. In the evening he asked for a box of pills, which, upon receiving, be handed to Mr Taylor. Later on he was served with a glass of beer, after drinking which he went into the billiar:-room, and, sitting down, began to sing out loudly. She saw Schrick take Wtielan out of the front bar-door, and that was the last Bhe saw of him. On the 17th she found three beerbottles (two of which were empty) and a tomahawk under tlie bed in which deceased had slept. She did not serve him with that beer. On the 17th Mrs Barber assumed the management of the hotel. She (witness) heard Schrick ask her where he should put Whelan ; and she replied that she would not have him in the hotel. Deceased was then removed from the house. When deceased was taken to the stable he was quite able to take care of himself. He could have walked home. Frederick Scherp, carrier, residing at Tow burn, deposed : That ho was at Hamilton on March 17th. He saw Whelan in the billiard-room in the evening, aud noticed that he was not in his senses. Be was calling cut loudly, and appeared to be in the horrors" Directly, he weut to his bedroom, when Schrick told him he should have to clear out. He was then taken down to the stable," witness accompanying tbe party. He(w:tnes-j shook up the grass iu one of the stalls; Whelan then laid down upon it, and was covered with two horse-rugs. There were theu three horses in the stable, but all were tied up. John Bailey, miner, Hamilton, saw Whelan during his " spree," and fancied he was out of his mind. He heard deceased tell Schrick that he would die soon. He saw hiiu supplied with refreshment by Schrick. He afterwards heard him cry out several times. He could not be certain if Whelan was in the horrors, although he did not appear to be in his usual senses. John Henry Scherp, laborer, Sowbnrn, stated that on his way home from the Hyde Races, on March 18th, he Called at the Union Hotel, Hamilton, where he heard a man singing out. A few minutes later he saw Whelan outside the stable, capering and I houting. He also made a somersault amongst the Btones, against which it appeared to be his endeavor to hit his head. He then seemed to be suffering from delirium tremens; he acted like a madman, and his eyes were glaring. 'ln the afternoon he heard deceased ask for a tomahawk to chop off his head, and put himself out of misery. He did not see any wounds about

Wtielan, but Schrick told him that he had his head cur., but he (Schrick) did not know how >t was done. Great attention was paid t> deceased, and he saw Schrick supply him with food several times. James M'Kerran, laborer, Serpentine, being duly sworn, stated : That "lie rode into Hamilton, to the Union Hotel, on March 17' h. He saw deceased put out of the house during the evening by Mrs Barber's man-servant. Whelan shrieked loudly on being removed. He also heard a noise of the same description during the night. About 8 o'clock on the 18th he rose from bed, and went down to the stable to attend to his horse. When he opened the door he saw Whelan lying on his back. His head and chest were opposite the stall his (witness's) horse was in, and the tail of the animal was opposite deceased. I told him to get up. and he replied that he could not. He was cut about the head, and there was blood on his head and face. He aßked him why he could not rise, and be said : " Oh, my belly is broken ; it has fallen down, and I am dying fast." He (witnefs) propped deceased up against a saddle, and lie then found that he was powerless in all his limbs. At this time there was only one cut about deceased. Ho (Whelan) asked him (witness) that the horse should not be allowed to approach him. H« then told Mrs Barber deceased was very ill, and, after breakfast, some tea was taken to him, but he could not swallow it. He did not particularise deceased's wounds to Mrs Barber. He advisea her to send him to the Hosoital. He did not think the stable was a fit place in which to put deceased. Thomas Foster, miner, residing at Pigburn, stated : That he saw deceased in an empty stall in the Union Hotel stables, Hamilton, on the ISth ultimo. Whelan said he wis very ill, and he told Mra Barber of this, whereupon she gave him some brandy for him. Deceased said : "It is too late ! I'm dying ! " He attributed his illness to drink he had taken a few nights before. He noticed a wound on the top of his head, to which he drew Kinsman's notice, who sa.id it was only a bruise. It did not appear to have been washed. Deceased seemed to be very remorseful. In fact, he seemed to suffer more from the pangs of remorse th in any thing else. Mrs Barber asked him what she had best do with him, and he advised her to give him some nourishing food and a little spirits now and again. Richard Kinsman, miner, Hamilton, was next called. He B'ated that he had been engaged during the last month in making an addition to Mrs Barber's st.sble. During that period he had seen Michael Whelan about the hotel at various times. On the. IS: h March he saw Heury Schrick feeding Whelan in one of the stalls. Witness afterwards assisted Schrick to feed Whelan, who then appeared to be iu a comatose condition. At 11 o'clock some brandy was given him, and deceased theu said : "I am dying ! I here is something wrong here (placing his band on his breast). I have had a stoppage in my passage, and I'm dying ! " About noon Schrick and Sclierp washed Whelan's bead ; Mrs Barber was there at the time. The following mornir g deceased was much worse, and every attention was bestowed npnn him. Between 11 and 12 (on the 18th) Mrs Barber asked him to open the door of thestab'e, and see how Whelm was. He did so, and lie at once saw that he was dead. He was not aware that a doctor had been called in to see Whelan. During the whole of the time that he was lying in the stable he di 1 not have the use of any of his ,imbs, except his hands. About two hours before finding him dead, he heard Whelan say that his legs were stiff. James Whittnß, a duly-qualified medical practitioner, residing at. Nasi:by, deposed : That he had made a post-mortem examination of the body of Michael Whelan. He found it in a stable at the Union Hotel, and, at his instance, it was placed on a table and stripped of its clothing. On raising the left leg lie found blood-slains on the back of the left thigh, near the groin. The left testicle and the neighboring parts were bruised, and the skin was also slightly broken. On the top of the head he found a wound an inch long. It. was lacerated an I torn, and the surrounding parts appeared to be bruised These were the only external marks that he discovered upon the body. Oil examining the brain, he found that it and its membranes were congested, especially on the top. The ventricles of the brain contained some bloody serum. He did imt find any fractures of the bones of the head. Ho next examined the ches 1 , and found that thi: lungs and the right side of the heart, were congested. The inner surface of the stomach (which was empty) was also Blight,ly congested. The bowels tnd bladder were in a healthy condition, but the liver and kidneys were congested. He attributed the immediate cause of death to collapse, brcught on and accelerated by alcoholic poisoning. He had reason to b"lieve that the collapse was also Hastened by the injuries deceased had received. He thought his life could hare been prolonged by medical treatment; but be could rot say that deceased would have recovered from his illness if he had received medical treatment. The wound on the head was such as might have been caused by a kick from a horse. The injury to the testicles appeared to have been caused by a body having a diameter of three or four inches. The hoof of a horse might have caused such u mark It did not seem to have been caused by a blow, but by the steady pressure of a "body with considerable weight. He had not been sent for to see Whel n. A. stable was not, a fit, pluce in which to put a man in the condition that deceased was at. the time, even leaving out the question of the presence of horses. If a man were suffering frcm delirium tremen*, exposure would has'en collapse. It wis possible deceased might have recovered from alcoholism with nit medical assistance. The sudden helplessness thit, appeared to have eome over him on the ISth ultimo was probably due either to the injury to his testicles or head He had no occasion to believe that Whelan received bis injuries when cipering about on Tuesday morning. It was more probable that they owed their origin to kicks from a horse. Hans P terßiisn ussen, mount stationed at Nnsebv. deposed that he was at the Union Hotel, Hamilton, on March 17th. He saw Mrs Barber, she made no complaint <>f a':y kin ito him that day. She was in charge oi her bu-iness herdelt on ihe 17th ultimo. Henry Schrick, baker, in Mrs Berber's employ, remembered the moruing of Match 18th. Abrut 5 am. he went down to the stable, and, upon opening ihe door, Whsl.iu appeared, an 1 said : "lam very bad, Harry" He answered that he was not half so bad as he pretended to be. After he (witness) had fed the horses, Whelan came back to the stable, aud again iaid down on the straw. Witness then went, to -tyeburn, and, on returning to the stable, Whelan complained that his passage was stopp"d. IJpou Mrs Barber's recommendation, ho gave him some sweet nitre. The Coroner, in making his charge, mc.de the following remarks to assist, the j ■ry in arriving at their decision : —Kvery person who takes charge of another, or under whose care another may actually bo, is under a legii duty to provide for him (or her) the necessaries of life, and is criminally responsible *or the neglect of that du v if tlie oe-son to whom it is Owing is, from age, ill-health, insanity or any other -cause, tinubU; to withdraw himself from the control of the person by whom it is due IE a person deleg nos the discharge of this duty to another and furnishes Ilia ni'-in-. ••■ 'V -i' the latter to provio.-

and ot the former to use ordinary care that the duty delegated is properly performpd Homicide becomes ihanslaugliter when death is unintentionally caused by an omission amounting to culpable negHger.ee to discharge a duty tending to the preservation.of life, or when death is caused accidentally by an unlawful act. Erery one upon whom the law imposes auy duty, or who has by contract of or by any act, taken upon hiraßelf any duty tending fco the preservation of life and who neglects to perform that dutv by want of attention and caution, and thereby causes the death, or bodily i jury, of any person, is gui ty i,f culpable nrgliirence. If a grown-up persoft chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bo md to execute that charge without wicked negligence ; and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilty of manslaughter. Mere negligence will not do; there must be wicked negligence—-that is, a negligence so great as tosatisfy thejury that the prisoner had a wicked mind in the sense that he was reckless and careless whether tha creature died or not. It is indisputable law that if a person his the custody of another who is helpless, and leaves that o'her with insufficient food, and so causes death, he is criminally responsible. But it is also clear that if a person, having the exjreise of free-will, chooses to stay in a p'ace where he received insufficient food, aud his health is injured and death supervenes, the mister is not criminally responsible. You may have noticed from the evidence, gentlemen of the jury, that there has been no wicked neglect shown, and it has been stated in evidence that nourishment was supplied to the deceased several times. From these two tacts you can, of course, draw vour own deductions. I shall now leave the matter in your hands, knowing, as I do, that you will agree to a correct and just verdict. The jury then retired to consider their verdict, but they d'd not agree until nearly two o'clock next morning (Friday), when the following verdict was arrived at: — " That the deceased Michael Whelan died from excessive drinking and injuries received through being inadvisably placed in a stable among horses while he was in a state of delirium tremens." The jury aclcled a rider to the effect that &■ law shoulel be passed, prohibiting country publicans from allowing persons to sleep in the stables connected with their hote's. The Court then concluded its sitting. THE SUPREME COURT, DUNEDIN. At the above Court, last Thursday, the appeal case, The Mayor, Councilors and Burgesses of Naseby (appellants) v. J. M. Johnston (respondent) was argued, and subsequently decided in favor of the respondent. Mr James Smith appeared for the appellants, and Mr F. It. Chapman for the respondent. Mr Smith, in support of the appeal, urged that the appellants were not competent to remove the post, and consequently it was not their duty. He contended that the C>rp nation could not be taken by the act of forming to have given, as w.is suggested, the passersby such an invitation, at all even's, as carried with it any responsibility for what might occur through using the path. In this matter they could not incur any responsibility except for malfeasance in the exercise of their proper functions There was no such malfeasance charged in the case. The case on Ihe face of it disclosed contributory negligence on the part of the respondent,. Mr Chapman objected to the question of contributory negligence being raised, as it was not shown that that ground had beeu taken in the Court below. His Honor upheld the objection raisei by Mr Chapman. Mr Cnapman submitted that there was an ample statement of facts to justify the verdict —ample evidence of negligence on the part of the Corporation, independent of the question of the irremovability of the telegraph post, which onl> bore incidentally and indirectly on the que3tiou. He contended, however, that the post could have been remove I, and that it was at least the duty of the Corporation to apply for its removal, which had not been done, or to construct the footpath in such a way as to prevent any danger arising from the existence of the telegraph post, or to leave matters as they originally stool. The Corporation were clearly guilty of negligence in this if in nothing else —that before making tbe footpath they had not taken any steps to have the post removed, and that in farming the footpath such a change had been wrought as to create danger from the existence of the post. Mr .Smith, iu reply, submitted that if pedestiians were iu more danger of eomiug into contact with the telegr iph-post after the formation of the pathway, the Corpo.ation could not be held responsible for negiigeuce. The dagger was as remediable at the instance of any citiziti as it was at the hands of the Corporation. His Hjnor: I have had considerable doubts about this case, and when I first read it I confess that the view I took was a view favorable to the appellants. After having heard the arguments, however, 1 have come to the conclusion that the respondent is entitled to succeed. It was found by the Magis'rate in the Court below that the injuri. s which the respondent su-tained were caused by a telegraph post haviug been situated on the footpath in the town of Naseby, and in a pos.tion which was dangerous to passers-by. Now, in the first place, this telegraph post was riot in a dangerous poaition. It was, in the firsc instance, standing on the roa 1-line, but in front of it there was a sod fence This fence waß removed by permission of the Corporation, and after it was removed the Corporation constructed a footpath along the edge of the road, and in cous'i acting that footpath they left the telegraph-pole in quest ijn in the middle of the footpath. In the beginning of tilings, therefore, the telegraph-pole wat not iu a dangerous position to passengers, but the acts of the Corporation have contributed to the danger I fiud, therefore, that on this ground the Oorpornt ion having created the danger which caused the accident, that is sufficient to make the Corporation liable. The vie.v of the case is irrespective of the otliei question, as to whether the post is legally or illegally upon the footpatli. Now, clearly, in toe first instance the post was lega iy erected, and it diil uot in the least obstruct, the trallic in its original position; but in its altered position it did obstruct the traffic, and therefore it may well be said that under eub-section 5 of section 8 of l'he Telegraph Ae.c, 1875," the Commissioner of Telegraphs had no longer any power to maintain it. If, therefore, as it appears from the case, it did obstruct the trallic more than was absolutely necessary foi - the purposes of the Act, then it was unlawfully there; and it may be that the Couimi-sioiier of Telegraphs c.mld also have sued for injuries sustained We find, however, that by '• J'he Corporations Act, 1876," the soil of the streets is vested in the Coiporat.ion, and I think it is perfectly clear from the faeis stated in the ca's i that the Corporation must be tikeuto have allowed this telegraph-pole to remain m 'lie foo-path where it was, notwithstanding tn»i they eoalj, by puii.ing the law in motion, have c msed it i.o tie removed. I think thai brings the case in this as.:.ect 6f it un ter ' he iiriii-ipL- or E )i. u .; v _ H c iI - v

the nuisance. I think, therefore, on these two groun :s tbe respondent is entitled to succeed—first, that the Corporation by l,heir omissions and acts bud created the injmy which caused the accident ; secondly, that th" Corporation, being the owners of tho soil, and having power to cause a nuisance crocted on the soil to be removed, bad allowed it to remain there ; and, in consequence of the nuisance remaining there, the nceident happened. I think, therefore, the appeal should bo dismissed, with costs—the usual costs (filO 10s).