LAIM FOR £1000

Manawatu Standard, Volume L, Issue 113, 9 April 1930, Page 9

LAIM FOR £IOOO

Arbitration court case. Klway crossing fatality. Btion for compensation. Hmpensation amounting to over was claimed for the death of Hjfusband in a case which came besitting of the Arbitration ■t in Palmerston North this mornLilian Evaline Geange, of Hjing, proceeded against Richard Ble and John Neilson, builders and of Feilding. Mr Cooper Hired for plaintiff and Mr C. A. L. Hfrlwell (Wellington) for defeud■fc ' Mr Justice Frazer was on the ■th, with Mr W. C. Prime (employKi representative) and Mr L. M. Hnseith (employees’ representative). Hhintiff, in her statement of claim, Hi out that she and three infant Hpen were the dependants of the ■H'Alfred Wilfred Geange, carpenBMof Feilding, who had been employntVjr defendants at a wage of £5 10s |||veek. On July 8, 1929, deceased Hrworking on a house in accordanje orders, and while proIdlng to their workshop on his moijiSKln was struck by a goods train KBKSouth Street level railway crossfatal injuries. It was B||il that tho accident arose in the UHp of his employment. Plaintiff ■Ed £IOOO by way of compensation ®Ser husband’s death, expenses HEnting to £24 14s, and the costs Mental to the proceedings. " Bfefendants admitted that plaintiff’s H>and was employed by them as a Ken ter at £5 10s a week, but did ■ know whether his average earnifigs Be £5 or not. They denied that on Kr 8, or at any other time, deceased Kmenced work for them on a house ■ course of erection .in Wellington leet, Feilding, and was proceeding ■ their orders to their workshop in ■sgow Terrace at the time of the lident. Thev denied that fhey ever led such orders. They admitted it deceased was killed as the result I a collision with a train, but said it it did not occur while lie was in Sir employment, but while he was breeding to his employment by depdants at their joinery shop. Their Etention was that the accident did It occur during the course of his cmbyment. PLAINTIFF’S CASE. [Mr Cooper stated that instructions Ire issued on a Saturday and on the bmlay deceased went to the house [ing built close by his residence. He ft on his apron and sharpened his bis. Rain commenced to fall and [ceased decided that he must go to fendants’ workshop. He started off | the shortest route for the factory, It whichever way lie went he had to loss the railway line. The time for [mmencing work was 8 a.m., and debased had gone about his preparai>iis. At 8.15 a.m. he returned home id obtained his motor-cycle to go to k) factory. The accident took place [ring his employment, though it |gkt not be “in the course of. his iployment.” ■'La in tiff stated that probate of deIscd’s will had been granted to her. fere were three children. Her husEd had been in regular employment ■defendants and was working on a

Hsu two doors away from liis home in Ellington Street. On the SaturH. when he returned home, he left E tools on the job. Her husband But to work on July 8, at 7.45 a.in. ■ the job, which was-a house being lilt by defendants for plaintiff’s It her. Her boy, Sydney, who had Icompanied his fatffer, returned afterIrds to place down a running board Ir his father’s motor-cycle. Deceased ■■ought his tools und left home at lout 8.15 a.m., as conditions seemed nsuitable for out-door work. After io accident, defendant Burne paid liintiff 22s 6d for wages, being £1 "or io Saturday and 2s 6d for an hour i Monday morning. Defendant said lat he felt very bad over it, and alimented that probably if it had ot been for his orders for plaintff’s usband to proceed to the shop the ccident would not have happened. In ugust, defendant Burne and anther examined deceased's saws, and sked if those were the ones ho had een using. Plaintiff replied in the ifirmative. Comment was made that lie saws had not been used since they fere sharpened. Examined by Mr Treadwell, plainiff stated that her husband had roken periods in his work owing to ad weather. Her husband worked as inch as he possibly could on her (other's house. The roof was not up t the time of the accident, and it as impossible for her husband to work i wet weather. Because her husband el wanted to obtain continuous time, lid witness, he arranged to work in le factory in bad weather, and he illumed her on the Saturday when life as paid that this had been decided pon. Her husband left her Bouse a miner of an hour before his comieneing hour of work. The scene of be accident was .about half a mile

way. . Sydney Geange, aged thirteen, stated lat when his father left for his work n the day at the accident witness went ith him to the job. There was a riz/.le of rain following previous heavy lowers. His father sharpened and set is saws, and put on his apron. Ho ild witness to see if the weather was earing up. ... w „. Charles Bryant, residing in Weliing)ii Street, Feilding, stated that on lily 8 ho saw deceased on the job with saw in his hand, and looking at the father. That was after 8 a.m. NON-SUIT MOVED FOR.

Mr Treadwell moved for a non-suit, escribing the proceedings as a deeperto attempt to bring the proceedings tithin the soope of the Act. The acion was not being resisted because of ack of sympathy towards the widow, nit tho defendants or their indemnitors were not entitled to make paynonts for something definitely without he ambit of the Act. Counsel subnitted that deceased was killed on the lighway; that ho had not commenced bs employment, and that, if he had, t was ended on account of the weather. )eceased was not employed to ride a iiotor-cycle on the highway. He could lave used any conveyance he pleased, a have stopped anywhere on the oute. It was obvious that as the leather was too wet for work deceased ii<‘rely went to the job to obtain his (mis and prepare them for work at the actory. There was no evidence to bow that he was ordered to proceed to lie factory after he had started work. His Honour stated that on the asnmption that deceased was merely ►reparing his tools for the factory,, lien lie was certainly killed on the way o work. Mr Treadwell submitted that any Pork done at the job by defendant was ontinuous and ended with the sharpning of the tools. The fact that be bunged his occupation because of the feather and proceeded elsewhere old lot alter conditions. It coUld not lie nggested that lie was doing factory rink at the house. For those realm-, lie submitted that there was no a sc to answer. , , . . Mr Cooper said that if deceased bad mrely taken hi* tool* and proceeded

to the factory his widow could not havo claimed compensation. The instructions were that no matter at what time rain interfered with his work deceased was to go to the factory and do joinery. Deceased was doing something in dischargee’ of his duty to his employer. Deceased had been paid’ for an hour’s work on Monday morning, and it was clear that he had commenced his work. Defendants had admitted that to plaintiff. Mr Treadwell stated that the defendant Burne had wanted to do everything possible to assist the widow, and out of that desire had paid 2s 6d for the hour in which deceased proceeded to work. The payment could not be regarded as evidence. Mr Cooper submitted that the difference lay in the fact that deceased sharpened his saw at the job and not at the factory. The Bench retired to consider the non-suit point raised. Dealing with that aspect only, Mr Justice Frazer stated subsequently that deceased had the discretion of working either at the house or the factory. The work at the latter place was in connection with the joinery for the new house being built. It did not require an order on any particular day for deceased to go to the factory. It was obvious that deceased’s employment began as soon as he reached the house. There was no suggestion of discontinuance. He simply transferred his sphere of operations. It waq, immaterial in lire circumstances where deceased put his tools in order. It was reasonable to infer that deceased intended to work oil tho Wellington Street house if the weather proved favourable. The Bench held that there was a prima facie case at that stage and that tho non-suit point could not succeed. CASE FOR DEFENCE. Mr Treadwell submitted that tho case was an ordinary one relating to the highways, and that efforts were being made to translate it differently for plaintiff. He stated that there was no authority for it, and it was against the principle of previous decisions. Richard Burne, builder, stated that he had employed deceased for two months. Deceased had done no work at' the factory, although tho weather was very unsettled. When defendant paid deceased on the Saturday, he told him to go to tjie factory when it was too wet to work on the job. That was an instruction issued to deceased. It would probably not have been given unless deceased had mentioned it, but it had been an understood thing. Witness could not say whether the saws which he examined were in a condition ready for joinery work. JUDGMENT FOR PLAINTIFF. His Honour said the circumstances were perfectly clear. The arrangement was that, after the Saturday, deceased was to work at the house or factory according to weather conditions. That was a term of his employment and time spent in travelling between the two places would be part of his work, and an incident thereof. Deceased at first had thought the weather sufficient to justify outdoor work, but later conditions altered. He sharpened one saw and set another before leaving for the factory. Even if deceased had not sharpened his tools which, by the custom of the trade was in working hours, ho was employed immediately lie went to the house. Judgment was given for plaintiff for the full amount of £IOOO, with hospital and funeral expenses amounting to £26 2s and costs amounting to £lB 18s.