RESULT OF A COLLISION.

New Zealand Mail, Issue 1213, 31 May 1895, Page 16

RESULT OF A COLLISION.

■sThe case in which Wm. Eobt. McKinstrey, clerk and accountant, claims the sum of dS6OO from the Union S.S. Company as damages was heard in the Supreme Court on ]V r ay 29 before His Honor Mr Justice Richmond and the following special jury:—A. J. McTavish (foreman); H. D. Atkinson, J. H. Heaton, C. W. Chileman, M. McFarlane McCaul, W. J. Blundell, P. Meadowcroft, L. A. Williams, T. Dwan, S. S. Downes, A. I. Suckling-Baron and A. Campbell. The circumstances as shown in the statement of claim Were that on the Bth December last the plaintiff, his sons and a man named Sylvester weie fishing in an open boat off the buoy at Magazine Point. The Union Steam Ship Company's Orowaiti came from the direction of Point Halswell towards Magazine Point, and the statement of claim alleged that when the steamer was close to the boat the course of, the steamer was suddenly altered, with the result that she came into collision with the boat. The plaintiff, his sons and Sylvester were thrown into the water. The plaintiff remained for a long time immersed in the water, and was wounded, bruised and injured by coming violently into contact with the steamer. The plaintiff was for a, long time sick and confined to his bed,-and his health had been greatly injured, and would for a long time continue to be injured. The plaintiff lost his moneys, watch and chain, ring, and clothing- of the value of .£65 and upwards. He therefore claimed £6OO as damages. The Company's defence denied that there was any negligence on the part of their servants in charge of the said steamer,- and said that if it was proved that there was any negligence on the part of the officers, the plaintiff was guilty of contributory negligence. Mr W. B. Edwards appeared for the plaintiff, and Mr T. M. Wilford for the Company. An application for an adjournment of the case, owing to the absence of Sir Robert Stout, was asked for by Mr Wilford.

Mr Edwards opposed the application, and His Honor agreeing that an adjournment could not be made, Mr Wilford withdrew his amplication. The plaintiff deposed that when the steamer Orowaiti came up the harbour there was no one on the bridge, in fact it appeared as if there was no one in charge of her at all. When the Orowaiti was about 80 yards off witness became alarmed as she was making straight for the boat, and he called out to his son to let go the anchor, but this the latter was unable to do in time, and as the rope was so thick his boy could not cut it. Those in the boat called out to the steamer. The steamer struck the boat at right angles, a little abaft the middle. Witness attempted to dive in order to escape the propeller, but was knocked over into the sea. After coming to the surface witness again looked at the bridge, but saw no one on it. He became terribly exhausted, and he suffered in addition owing to the fact that he expected to see his son tossed up by the propeller. He eventually got hold of his boat. The steamer went on for about 150 yards before she stopped. A boat was then lowered from her. Assistance was also rendered to him and the others in the water by a man named Abbott, who was out in a pleasure boat. Witness was picked up by the boat from the steamer As a result of the accident witness was laid up for about six weeks suffering from pains in the back, and he was still suffering from lumbago and rheumatism caused, by the immersion. Drs Cahill and Parkes had attended to him. He lost a gold ring valued at about £1 10s, a gold watch and

chain valued at about .£l7 or .£lB, and some of his clothes. Mr Wilford proceeded to cross-examine the witness as to his bankruptcy some time ago.

The witness appealed to His Honor for protection. He had gone through the court, and all the particulars had been published. Mr Wilford said he could show that the debtor had told the Official Assignee that his- only assets were book debts worth about .£39. He (Mr Wilford) wanted to know where the gold watch came from. The witness, in answer to Mr Wilford, said that he had bought the watch from Mr Griffiths, pawnbroker, after his petition •was filed. He thought he had given about

.£lO for it out of his own earnings as a clerk. Ho swore that he had not pawned the watch before his petition was filed, nor had any ono done so for him. His boat was hot drifting when the Orowaiti struck her He did not dive from the boat before she' was struck.. He valued the clothing destroyed at £B. The suit he had on was not two years old. He gave £2 12s 6d for the Overcoat twelve months ago. The damage to the boat, sails, &c, would make up about .£6O altogether. His earnings since his bankruptcy had been at least £1 per week. He was 25 minutes in the water. He was a fair swimmer.

Dr Cahill stated that he had attended the plaintiff. He found him suffering from lumbago, which was caused by exposure to the wet and cold. A man once having had lumbago was likely to be attacked with it again. ... Dr Parkes also deposed that plaintiff complained to him of much pain in the back. To Mr Wilford : Subsequently he had reason to believe the plaintiff was not so bad as ho represented himself to be.

Albert Abbott, warehouseman ; Captain Crawford, of the steamer Huia ; and Frank Lauton, who had charge of the steamer Duco, also gave evidence. George Aliport, chief clerk in the Marine Department, put in the evidence taken at the preliminary enquiry before the Collector of Customs. The evidence given by Captain Spedding, of the Orowaiti, was to the effect that when he rounded Point Halswell- ott the date in question he saw a boat otitside the buoy off Point Jerningham. He thought the people m the boat were fishing. Could not see that the -..boat was at anchor. From the point he '. steadied the ship so as to clear the boat, at a distance of 70 or 80 yards. On approaching the boat he had occasion to speak to the chief officer regarding some previous order given as to the working of the ship. The chief officer was coming from aft to go forward to his station, and he (captain) spoke to him as he passed. While speaking to him he heard a scream alongside the steamer, and on looking over the ship's side saw the boat grazing along tne vessel's side. Two boys were in the boat., He stopped the vessel, and gave the Older ■•"■ Full speed astern." As soon as the boat was clear of the propeller he gave orders td clear away one of the boats. At the same time he hailed another boat which was in the vicinity to render assistance to those in the water. The steamer was backed, and it was then he noticed two men in the water for the first time. Believing there only two occupants of the boat, and as she was afloat, he did not see any utility in throwing lifebuoys. A.man named Robinson was at the wheel when he gave the order to steady the vessel so as to clear the boat. The order was carried out. He could only account for the vessel striking the boat by the 'fact that when he took his eye off the boat to speak to the chief officer the vessel fell off in the direction of the boat. The bdat could not be seen by the man at the wheel, who was not aware that a boat had to be cleared. Ic was not the ordinary practice of seamen to have a man specially on the look-out forward in fine weather during daylight. The speed was not reduced on rounding Point Hals well. The speed would probably be about six or seven knots an bonr. He was aware that the man at the wheel could not see the boat. The ship was heading well clear of the boat when he walked to the other side of the bridge to speak to the chief officer. All ' the menwere available when the accident happened. They were all sober. It was his (witness') place to get out of the way of the boat, and he was endeavouring to do so when the accident happened. : James Sylvester, basketmaker, who was in the boat, gave evidence in corroboration of tbe plaintiff's testimony. This closed the case for the plaintiff. Mr Wilford stated that he did not in- ■ tend to call any evidence. Mr Edwards, in addressing the jury, said the accident was due to the negligence of those on the steamer, and if the plaintiff had been drowned Captain Spedding would probably have been tried for manslaughter. Mr Wilford contended that McKinstrey had not suffered injury either bodily or . financially by the accident.

His Honor, in the course of his summing up, said he did not think the jurycould have any doubt that there was a certain amount of negligence in the navigation of the ship. As to the defence of contributory negligence, the passive negligence of the plaintiff did not disentitle him from recovering, and even if they thought the plaintiff should notj have been where he was that would not constitute contributory negligence, because it did not actively contribute to the accident.

The jury retired at 3.20 p.m., and returned at 3.55 p.m. They found that the accident was caused by negligence in the navigation of the defendant's steamship; that°there was no contributory negligence on the part of the plaintiff, and they assessed the damages at .£l2O. His Honor gave judgment for the plaintiff for this amount with costs according to scale.