AUCKLAND SUPREME COURT

New Zealand Herald, Volume XLIII, Issue 13117, 5 March 1906, Page 6

AUCKLAND SUPREME COURT

PEA-RIFLE SHOOTING CASE

LEGAL ARGUMENT

AitucuKXT was taken before His fclonof Mr. Justice Edwards hi cliambers .it Lb* Supreme Court on Saturday morning in reference to the non-suit points raised r>> Mr. Thomas Cotter, counsel for defendant, during the hewing of the action Kawanu Kar.ika v. Timothy Kem*aly, formerly' hotelkeeper at To Puke, for £600 damages tor injuries received from a bullet alleged to have been tired by defendant's son. The jury, when the case was heard in December last, brought in a verdict in favour of the plaintiff, awarding the full annum*. claimed.

Mr. Kail appeared for the plaintiff, &sd Mr. .1. R. Retd (instructed by Mr. Cotter) for the defendant.

Mr. Earl said "hen the case was before the jury Mr. Cotter applied for a nonsuit upon the grounds tintf there was no evidence that the pea-rifle got into '.-he boy's possession with the knowledge .md consent of the defendant, or owing to any neglect of his. and that then 1 was no evidence to show that the pea-rifle, when it left, defendant's possession, was in a dangerous state. Mr. Reed pointed out that the jury found that the peat-rifle at tho time of the accident was in " Sonny"' Kenealy's possession without the knowledge or sanction of the defendant.

His Honor said the jury found that the pea-rifle came into the possession of the defendant's son by the negligence of defendant.

Mr. Eeed said there was no evidence to show that the rifle wis left in such a position that the boy could got it. His Honor: The best, proof is that he got it. Mr. Reed: Surreptitiously. Possession of the rifle, I submit, is not evidence of neglect in itself. The rifle was locked up in a room. His Honor: But the key was left in an accessible position. .Mr. Reed painted out that the cartridges in this case were obtained by a third person. The fact that the cartridges were hidden away so thai young Kenealy could not get them showed sufficient precaution. Without these the gun was useless. To get a. verdict it must be shown that, there was negligence on the part of the boy, bob there was nothing about it in the finding* of the jury.

Mr. Earl submitted that there was abundant evidence of negligence on the part of the defendant The fact that the boy got possession of the rifle on various occasions was clear proof of that. ■It had l>een shown that the boy had been a danger to the neighbours right up to the time of the accident, ajidi if he had been lucky, or unlucky, he must have got • very mixed bagfirst a blacksmith, then something on a willow tree at which he tired, then the son of the witness Grant, and finally a Maori. After these warnings extraordinary precautions should have lx**) adopted;, but they were not. The precautions taken failed dismally. What the If* fondant did was to lock the rifle up m a storeroom, and put the key in the bar, where it wo* easily accessible. Even the six-year-old boy went and got it when tie liked, and this, lie submitted, together with the ftun-oundimg rircuxnstunoeu, showed that, there was negligence. His Honor reserved his decision.