LATE COURT NEWS.

New Zealand Mail, Issue 1188, 7 December 1894, Page 16

LATE COURT NEWS.

SUPREME COURT*

CIVIL SESSIONS. His Honor the Chief Justice t6pk ki§ seat upon the Bench at 10 o’clock oh Wednesday morning. PHARAZYN V. STAPLES. AND CO. ’This is a claim for an injunction restraining the defendants from restricting the flow of water from a spring iii Grant road. Mr E. D. Brown for the plaintiff, Mr. Skerrett for defendants. His Honor delivered judgment upon th© nonsuit points raised by Mr Skerrett for the' defence on Monday last. He said the claim put 'forward by the plaintiff upon the ground of custom was out of the question. Every custom must have been immemorial. There was no insisting upon immemorial custom in New Zealand. The only point upon which he wanted to satisfy himself was that the Prescription Aot said that the use of water could be acquired as of right by uninterrupted enjoyment for 20 years. His difficulty was that he did hot think the statement of claim put it on that ground at all, but he was assuming it was amendable. He could not conceive that any person taking the use of water as a passer-by or as residing in the neighbourhood had a right to the water because he had access .to it by reason of traversing the road, and that the owners of the soil could be notified that this person was claiming as of right. It had been, said that because persons had had an uninterrupted enjoyment of the water for 20 years they had a right to it. Could it be said because a road board or anybody else chose to attach a spout to the spring so that passers-by might make use of the water that that gave the passers-by ia claim as of right ?■ 1 1, seemed to him that it did not because there was no notification to the road board or anybody else that an easement was being acquired. He would deliver a written judgment later on. ' ,' HANSEN V. WELLINGTON CITY COUNCIL.

This is a claim for £ool damages for injuries sustained. Mr Skerrett appeared for the plaintiff, and Mr T. F. Martin for the defendant Corporation. The following gentlemen were empanelled as a special jury to try the case: —John Wilkins (foreman), Christopher Smith, H. Y. Yeoman, H. D. Atkinson, C. A. Briggs, E. C. Batkin, David Jones, J. S. Jameson, A. A. Bowley, T. W. Pilcher, jun., P. J. Hervey, H. J. Johnson. The plaintiff is Miss Dorothea Hansen, daughter of Mr Lauritz Hansen, glazier, of Binham street, and the injuries in respect of which she brought the action were received through falling into a trench in Ingestre street when she was returninghome I from work on the evening of the 7th of June last. According to the statement of claim Miss Hansen is a dressmaker, 25 years of age, and when she left her home in Binham street on the morning of the 7th June the trench was in course of. Com struction along the centre of Ingestre

street for the reception of drain pipes, | but had not advanced as far as the corner I of Binham street. Miss Hansen was re- j turning homo from her work about 6.30 ' p.m. on the 7th of June, darkness having ( sot in. She kept along the northern side of Ingestre' street untiL she came opposite , to Carmichael's house and nearly opposite the end of Binham street, when she \ started to cross Ingestre street. She alleges | that she was unaware that the trench had been carried along to this point, and that there was no light, no mound of earth, and no barricade on the northern side to warn her of danger. Consequently she fell into the open trench, which was stated to be 4ft Gin deep at this point, and was stunned. A Mr Samuel' Waters came along ab<mt this time, and, hearing Miss Hansen’s moans, went to her assistance and helped her home. The internal injuries received were stated to be -so sel’ions that Miss Hansen is now and haEs been ever since the night of the accident confined to her room, and it was alleged that whereas she wa3 a strong girl previously she is now practically an invalid. A. claim for compensation was made to. the City Council, but was refused ; hence these proceedings. The statement of defence alleged that all proper precautions were taken on the 7th June to protect the public from .the open trench; that it was secured by a wooden -barricade along the southern side and at the ends; and by a mound or ridge of earth along the northern side ; and that it was sufficiently -lighted both by the street lamps and by extra lights placed at intervals along the barricading. It was averred that the plaintiff’s own negligence ..brought about the accident, as she must have climbed over the mound of earth on the northern side before she could have reached the trench, and that had she proceeded 10 feet further along the street she could have avoided it altogether. The questions for the jury to determine were : —(1) Was there a fence or bar at the . plaice where the plaintiff fell into the trench? (2) If there was a fence or bar, was it such as an ordinary person would regard as a sufficient protection to passersby ? ' (3) Was it sufficiently lighted ? (4) Was the plaintiff guilty of contributory ~ negligence ? Evidence was brought in support of the plaintiff’s ease to establish her contention that there was a level and open uninterrupted and lighted approach to the trench from its northern side, and that it extended for about 100 ft further beyond the point where the plaintiff tried to cross ■ the street. The witnesses- examined in support of the plaintiff’s case were: Samuel Waters, ; Miss Hansen out of the trench and helped her home; George Frederick . Harris, who was present when Mi*Raters went to the young lady’s assistance; Stephen Geary, who examined the j>lace where the accident occurred, in company with the plaintiff’s father, between 7 and 8 o’clock on the night of the accident ; Lauritz Hansen, father of the plaintiff ; Dr Parkes, who attended plaintiff in succession to Dr Mackin, who left for England some months ago, and whose evidence .(taken before he left) was put in ; Dr Martin, who sawr the plaintiff in June last at the request of Dr Mackin; and F. Mitchell; who-made a "sketch of the locality . . -This closed the case for the plaintiff. x ' For the defence, Richard L. Mestayer, drainage engineer, was called, but his direct examination had not concluded when the Court adjourned until 10 o’clock next morning. - ■ . .