A WIDOW'S CLAIM.

Maoriland Worker, Volume 9, Issue 349, 16 January 1918, Page 3

A WIDOW'S CLAIM.

Fatal Hotel Accident.

Heary Damages Recovered.

The Supremo Court, Gisborae, was occupied tor two days (Monday and Tuesday, Dec. 10th and nth), in hearing the case of Ogilvy v. Hall and Parker. Mr. Justice Chapman was on the Bench, and tho case was tried by a jury, but, inasmuch as tho panel was exhausted by Tpason. of challenges and tho fact that twelve other jurors were locked up on Monday afternoon considering a criminalcase, counsel agreed to accept a jury of nine, and in the event of a difference of opinion a-moiiß. the jurors, counsel further agreed to accept a verdict of cix to three. Mr. P. J. O'Eflgan of Wellington, with him Mr. G. Stock of Gisborne, appeared for the plaintiff, -\vhilo Mr. €. V. Kkerrett, X.C., with Jiiiu Mr. Nolan of Gisborne, appealed for tho defendants. Mr. G'.Regan outlined the facts to the jury as they were, set out iii tho statement of claim. The plaintiff, Minnie Ogilvy of Auckland was the widow of Bavid Morais Ogilvy who was formerly employed as head waiter in the Masonic Hotel, Gisborne, of which the defendant, Frederick Hall, was the owner, and the defendant, Eva Parker, was the licensee. On Sunday, May L*oth last, Ogilvy was found at about t> a.m. lying , unconscious in the back premises of the Masonic Hotel, and there were severe injuries to tbe head from which he died soon afterwards without 'recovering consciousness. The diereased slept in thfi Twtp.l, and it would be shown that he regularly ust'd the ef airway near whpro ho was found for the purpos-e of Rotting to his bedrooiiu. On top of the stairway was a

landing, the end of which was unguarded and upon which the-re was no light. L'vidence would be given showing that he must have ascended this stairway about ten. o'clock on the Saturday night, and the conclusion was irresistible that lie had fallen from tho landing, and sustained the injuries which caused his death. Tho defendants denied that deceased, had. met his death in the manner described, but it would bo for them to show how he could have- xuet his injuries in any other way. Further, defendants denied that they owed deceased the duty of guarding the landing or lighting it. That could only mean that deceased had no right to ttso the staircase, but ho would, prove that thie hotel employees regularly used it, that it gave the readiest access to deceased's room, and that none of the servants were forbidden to use it. If that were so, then there was a strong obligation to protect the stairway and landing, or a least to give proper warning of any danger by lighting it. Nest, the defendants pleaded contributory negligence on the part of deceased alleging that he was the worse for liquor at tho time and nnablo to take care of himself. The onus was on the defence to prove this, but it would l>e proved affirmatively that, whilo deceased was not a total abstainer, be had been for five wesks iii the hotel, during which time he lost no time through intemperance. Further, it would be shown that far two years and a-half, ho was employed in the Auckland Club without losing time, and finally it would bo shown by a witness that decieased was quit© sober a few , minutes before 10 p.m. on the fatal night when he said ho was going to bed. Continuing counsel said that the proceedings were not under the Workers' Compensation Act, because that Act did not preclude a plaintiff who could prove loss by negligence from suing for damages, and an 'action for damages was the proper remedy for the reason that the amount claimable was not limited to .£SOO, as under the Workers' Compensation Act. Liability under that Act was not admitted, however, presumably for the reason that it might be argued that deceased was not within tho ambit of the Act in that his injuries were reeeivnil after his actual working hours. Counsel added that he was prepared if need were fo maintain that tho case was within the

Act, but he preferred to claim damages seeing that the widow bad three children j ner-d respectively 1">, 14. and 10 .years. Jlc. hoped to prove incontestable tluit dfteiiM'd met; his death by rwisou of a gross dereliction of duty on the, part of the defendants, in which ci*»e lie would have established a caee for liberal damages. KvHence was given by Dr. Carlyle-VTil-Fon, who described the injuries as a severe fracture of the base of the skull with ensuing paralysis. The injuries were f|iiite consistent with a fall from th-a landing, and he was not prepared to say that they might not have been sustained by deceased'falling against the coiicroto wall. Mr. Florancc, S.M., wlio held a coronal enquiry on deceased, gavo evidence describing; tho stairway and landing which had been demolished since the accident. The landing , was unguarded and unlighted, and he considered it so dangerous that he forbade Mr. .SkoiJ'elt nbjecled" to, the latter part, nl' tlip evidence, and His Honor upheld his objection. John Murphy, night porter of tho Masonic Hotel, where' ho was c*" 1 ill employed, told how he. had found deceased. Ho considered deceased a tobor man. Hβ did not consider he had a right to use the stairway, but had never been, told to forbid him or anyone else from using , it. Evidence showing that the stairway was regularly used by tlu> hotel slnff was Riven by Gnjhnda Singh, hull porter, George Boriok, porter, Miss Brooker, waitress, and .Alfred Pinfold, head waiter. Ethelda llobius, formerly a.bar-; jnoid in the Coronation Hotel, swore | that she saw deceased in tho hotel at about 9.50 p.m. on Saturday, the 19th May, and that she served him with oivo drink, that he was then quite sober,\and that he left saying he was going homo to bed. Minnie Ogilvy, the plaintiff, gave evidence proving her marriage and the Mip-pc-rt she had habitually received, from deceased. .Plaintiff's case closed shortly before ■midday on Tuesday, whereupon Mr. Skerrett opened the case for the defence. However much they might regret the accident, it was jmrc conjecture that he had fallen from the landing, and the onus was on the plaintiff. If that onus were not removed, then the jury must find for tine defendant. Even if they were satisfied, however, that deceased did fall from tho landing, there wtorc other facts. Ho would.call evidence to shov* that deceased was forbidden to use the backstairs and that it was reserved for certain female employees. Further there would be evidence showing that deceased was addicted to drinking | in his room with another jiiember of the j staff. If the jury .found therefore that ' deceased had fallen from the landing, they must be satisfied that he had the right to use the stairway, otherwise the defendants owed him no duty to' make it saf». Furthermore, if it were unsafe, and ilw.y did owe him the duty of makiug if: safe, thedefndants would still not bo liable if deceased himself had contributed to tho occurrence by reason of his intoxicated condition. lievcrtimr to tho theory of tho plaintiff as to how tho injuries were received, tho defendants would advance evidence in support, of a counter theory—that deceased, had climbed a gato and come in by the back way, tripped over a newly-made drain under the landing, and fallen heavily against the concrete wall. Evidence on tho lines of counsel's opening was given by Detective McLeod, J. Skeet, clerk of works, the defendants (Frederick Hall and Eva Parker), Elizabeth MciFarlane, barmaid, and J. Laurent i, hotel manager. His Honor submitted issues to the jury, aftrr which His Honor having reviewed tho evidence, the jury retired for nearly two hours. They found for plaintiff on all the iss>ios. and, awarded her JJIOO0 T damapf>s—JL'6oO for herseK aud JilOO for her children. -Argument on pertain law points will be taken later at Wellington.