COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4882, 14 November 1876, Page 2

COURT OF APPEAL.

The Court of Appeal sat yesterday at . 11 o’clock before his Honor the Chief Justice and Judges Williams and Johnston. be brogden’s claim for costs. In the case of Brogden v. the Queen, heard at the last sittings of the Appeal Court, Mr. Travers moved that judgment for costs on demurrer should be entered up for plaintiff. 1 Mr. Allan stated, in answer to the Court, that he had appeared for the Crown when the case was first heard. A rule nisi was granted, returnable on next Thursday week, calling upon defendants to show cause why a certificate should not be issued, or the existing certificate be amended, or that judgment on demurrer to the third plea might not be entered for plaintiff. M'BBIDE V. BROGDEN AND OTHERS. Messrs. Maccassey and Stewart appeared for the plaintiff, , and Messrs. Travers and Chapman for the defendants. ; This was an action tried at the sitting of the Otago and Southland District of the Supreme Court in Dunedin. The plaintiff sued the defendants for (1) that before, and at the time of the commission of the grievances afterwards mentioned, the plaintiff was in the employment and service of the defendants (railway contractors) as a • day laborer; and while he was in such service and employment, the plaintiff, at the request of the defendants, and in discharge of his duty as their servant, was riding on a'certain railway truck belonging to the defendants, in and upon a certain railway then in course of construction by the defendants, near Oatnaru, in the province of Otago, and such truck was, when the plaintiff was so riding as aforesaid, being driven and impelled along the said line of railway by a locomotive steam engine, the property of the defendants, and then being under their management, direction, and control. (2.) That the said truck was driven upon, and against, certain metal stones and rubbish, whereby it was thrown off the rails and capsized, and the plaintiff was thrown out and permanently injured ; and the plaintiff has, in consequence, been l put‘to great'loss. (3.) That the defendants knowing that the said line was not safe,and that the truck was improperly constructed, improperly required the plaintiff to travel therein, he having no knowledge of the unsafe condition of the line, or the improper construction of the said truck ; or that the same was. not provided with the means of removing such stones, metal, and rubbish ; and that by and through the negligence of the defendants and their servants, in the driving of the said truck, and by their negligence in omitting to provide proper agents and servants to drive the said engine ’ and truck, the truck was thrown off. the line, and the plaintiff was injured as aforesaid. And for a further cause of action the plaintiff sued, the defendants for (1) that on or about the 19th November, 1875, the defendants being railway contractors were possessed of a line of railway as aforesaid, and used and drove locomotive, i steam engines, railway trucks, and other carriages thereon ; and (2) that the petitioner, with the permission and consent of the defendants, was lawfully travelling in .one of the said thicks from : Oamaru towards Moeraki, and the defendants by' and through their servants and workmen so negligently conducted themselves in the management and driving of the said truck that the same was, through the negligence of the defendants and their servants, thrown off the said railway line and upset and the petitioner seriously hurt and injured inconsequence thereof, whereby the petitioner claimed £ISOO as damages. Notice of special damage was 1 given, and the defendants pleaded a, denial of all the material allegations in the ’.petitioner’s declaration. ; Mr. Macassey read the Judge’s notes of the evidence and the issues submitted to, the jury, with their findings thereon, which are as folWas the plaintiff on the 19th November, 1875, while travelling iu a railway truck belonging to the defendants, thrown out and ’injured as in the declaration alleged ? Yes. (2.) Was the - said railway truck then under the management, direction, and control of the defendants by and. through their servants ? Yes. (3.)‘.Was the plaintiff at the t(me aforesaid inthesaid trucklawfully and with the permission'and consent of ' the said defendants by and through their servants ? Yes. (i.) Did the defendants by and through their said servants 1 so' negligently, carelessly, and . improperly conduct themselves in and about’ the management and driving of the - said truck that the said truck was in consequence thrown off and upset while the plaintiff was travel; ling in It, and the plaintiff injured as ‘in the first issue mentioned ? The defendants by their servants improperly allowed the ■ truck’ in which the plaintiff was carried i to be driven before the engine. (5.) Was the said railway truck sufficiently and properly constructed so as to render it safe, or prudent to drive it in front of . a locomotive engine on a railway line ? Not if passengers were to bo carried. (6a) Did the defendants neglect and omit to provide proper skilful and careful agents and servants to superintend, manage,, and drive* i the said engine and truck 1 The servants of the defendants acted improperly in allowing a truck with people in it to be driven before the engine, .(6.) Did_the plaintiff before the happening of the casualty. in the declaration, mentioned know that the said truck,iwas,insufficiently or improperly constructed ? No J and

(7.)' Is'the plaintiff entitled to recover any, and if any,' what amount of damage, from-the defendants'? £4OO. Mr. Macassey then: went oh to say that at the close of the plaintiff’s case,' Mr. Haggitt, who appeared for the defendants, had moved for. a : nonsuit bn the grounds that there was no evidence of negligence ; and even if there was evidence of negligence, the plaintiff was not entitled to, a verdict. He (Mr. Macassey) had opposed the application, and his Honor Mr. Justice Wil-liams-had allowed the case to go to the jury," reserving leave to move to.enfer a nonsuit or a. verdict for the defendants. On the application of Mr. Haggitt, a rule was issued on the 9th of August calling upon the plaintiff to show cause why a nonsuit should not be entered in pursuance of the leave reserved, on the following grounds ; —(1) That the plaintiff .was in the employment of the defendants at the time of his sustaining the injuries in the declaration mentioned, and the said injuries were occasioned by an accident consequent upon the ; ordinary risks incident to the employment upon i which the plaintiff was engaged, and without : any personal ignorance or interference on the - part of the defendants. (2) That there was no evidence that the said injuries were occasioned by the negligence ■ of any; person for whose acts or defaults the defendants were responsible, and (3) that assuming there was some evidence of negligence then the only persons whose negligence, could have caused or in any way conduced to the injuries sustained by the plaintiff were hia fellow servants engaged with the plaintiff in the cause of a common employment, and there was no evidence of any negligence on the part of the in the employment of any of the fellow servants of the plaintiff. And also to show cause why the verdict should not be entered for the defendants, pursuant to the leave reserved upon the following grounds:— i.e., upon the grounds firstly and thirdly before stated, or one of them. And also to show : cauae why the verdict should not be entered for the defendants, upon the ground that the finding of the jury upon issues 2,3, 4, and 5 A, entitle the defendants to have the verdict entered for them. Also, to show cause why in the meantime all further proceedings in the action- should not he stayed. On the application of Mr. Sinclair for the defendants, 'His Honor Mr.: Justice Williams oh the 29th September ordered that the hearing and argument of the rule nisi should be removed into and heard before the Court of Appeal, the costs to be costs in the cause, and he, Mr. Macassey, was there to show cause against the rule being made absolute. He would first call attention to' the difference in the two counts of the declaration the first count being laid by the petitioner as a servant, and the second as a person not in that capacity. The Court should refuse a nonsuit. The parties having come before the Court at nisi prius to try issues of fact were entitled to the verdict of the jury on those issues. The defence of-common employment did not arise on the pleadings, and the defendants could not avail themselves of it. Gwynneth stood in the position of vice-principal or agent, and was not a fellow servant. The fact of the defendants being residents out of the colony gave to Gwynneth’s acts a character they might not have had if his employers had been resident here. There was also no evidence of any common employment between Gwynneth and the plaintiff before the Court. There was evidence of neglect by employment of careless and unskilful persons as Gwynneth permitted the practice adopted of driving the’ train which had been universally condemned, and to which attention had been drawn. He would again call the attention of the Court whilst on this subject to the letter which he had read with the evidence, and which was as follows :—“ Public Works Office, Wellington, April 9, 1875.-—Sir, —A fatal accident having recently occurred on the Tokomairiro line to a workman named Patrick Connor, riding in a ballast waggon driven before an engine, the jury appended the following rider to their verdict, viz., the jury desire to condemn the practice of allowing workmen to be carried in ballast trucks in front of the engine as being exceedingly dangerous, as, on account of the lightness of such trucks, they are liable to be thrown off the line. The practice of riding as above being notoriously dangerous and universally condemned, you are instructed to warn such contractors as may be under you, and to take care that on the completed lines the practice is never permitted. I have the honor to be, Sir, your obedient servant, John Blackett, Assistant Engineer-in-. Chief.” The employment of Broad, too, was the employment of an unskilful person, and it was stated that on the occasion when the accident happened he was driving at an uncalledfor rate of speed. There was also evidence of the faulty construction of the line, it not being fenced on the sidings. The practice permitted by Gwynneth to run the truck in front of the locomotive when carrying out men also amounted to negligence. There was also .e vidence that a crossing was left altogether unprotected and the metal not being blended together, especially considering the heavy traffic of the 18th and 19th November, also furnished evidence of negligence. As to the second count there was evidence that the plaintiff was properly riding in one of the defendants’ trucks, and whether their liability was that of persons for ordinary or gross negligence there : was evidence to go to the jury, and the question of common employment was not raised in answer to it. After the letter which had been referred to, it was clearly the duty of the contractors to use care and act upon the instructions given. The proper course, too, was not , to enter a nonsuit, but, if anything, a verdict for the defendants. The Court had no more power in the matter than had the Judge at nisi prius, viz. : to direct certain issues to be found for the defendants. He would refer to the case of Tricker v. Trickerj which was tried in Dunedin, the .questiop. arising under the authority of , Gibbin y., Macmullen, as to the power of a Judge to withdraw a case from the jury. Leave,had, been given in that case to set aside the verdict on motion, but the rule had never been argued. Nonsuit did not mean nonsuit as to the whole cause of action, but on each issue. The difference was merely: formal, as the Court could order the verdict to be entered for the defend-; ant on each issue as it arose. If they would take the case of a libel action with a plea of justification, the defendant failing to prove his pleas, the plaintiff might be unable to prove publication), but for all that he would be entitled to the plea of justification going to the jury, although he would fail as, to the whale action. As illustrating this principle he would cite Paul v. Goading, 2 F. and F. 585, and Dumb v. Allday, 1 C. and J. 301. The reason of the plaintiffsl being so entitled was that the question of costs might be determined. If there were points in issue in the record "hot affected by the nonsuit, the plaintiff was'entitled to have those issues put to the jury on the ground that if the declaration were bad the defendant should have demurred. As illustrating this, he would mention the suppositious case of an arbitration, the award being for the payment of a certain sum after a legal demand. In an action for: the amount awarded, the plaintiff proving all the necessary facts, but failing to prove . the demand, > he" would be entitled to have all the issues to go to the jury, that the burden'of costs might be put on , the right shoulders. Fry v. Mbrickton (2 M. and R.j 303), and Hitoheu v. Tealo (2 M. and 8., 30), were authorities supporting this view. If the general denial, as pleaded in New Zealand, corresponded to the general issue in England, the matter would be different. i His Honor the 1 Chief Justice pointed out that after a nonsuit, the plaintiff might proceed to trial again upon the same issue.. , jMr. Travers called attention to the form of the issue, his Honor however holding.it immaterial ' ■ ■■ - . ,< ; : Mr. Macassey then proceeded to> say that ,in England the - plaintiff would be entitled to have each issue, not affected by the . ,'sint to; the-jury .-j-and although; the issues were not raised in the same form in New Zealand, yet they did arise, under the general denial, and the rights > of r a plaintiff- were exactly similar.: .The case. Fry.v. Moncton, before referred to, bore him out in this proposition. In the present case the plea of the defendants was. equivalent to the general issue and a series of, .outside issues. ; In a'colonial sense, Stevenson v. Harris, it was held by Mr. 'Justice Richmond that the general denial was

always coextensive with the general issue, and Was ofteher of more extended signification. ■ His fHonor the Chief Justice pointed out that the general denial was never an affirmative plea; Mr; Macassey then quoted from the rules o£ the Court, as showing that it might be so construe, tively. If the plaintiff was put to unnecessary expense improving the issues Jbe. defendants should not be let eff. He would submit that on all these grounds there should be .a nonsuit. Another reason why f a nonsuit should not he entered ,was..that the defence of, common employment did not arise bn the pleadings, and it was not competent for the defendants to raise the question now. An important part of the case would turn upon this fact. Mr. Travera had alluded to ai case bn this point, Wiggeth v. Fox, 11, Excheq, 832. This extended the principle to sub-contractors, the defendants being exonerated from damage on the defence of common employment. Lx Hutchison' v. Newcastle, York, &c,, Railway Co., the true principle was determined. In England this defence must be pleaded specially. The defence of contributory negligence would : arise under the general issue, but he submitted that common employment would hot do so. : ■ His Honor Mri Justice Johnson pointed out that the declaration must be for actionable negligence, and if it arose through a fellow servant it did hot amount to actionable neglf. gehce. '; v , ■ I : ! Mr. Macassey then quoted from Bullen and Leake as to this effect of the plea “ not guilty,” note 8., p 634, 2nd edit. ! If his point of view was correct, no leave should have been reserved at the trial, ; - : His Honor the Chief Justice quoted from the same work, showing that the employment of incompetent servants was put in issue by the general denial. r: > ! Mr. Macassey then called attention to Buiman v.' Furnace Railway Co., 32, L.T. N.S. 430, and Tebbutt v. Bristol and Exeter Railway Oo;, : L. Rep. 1 0.Q.8. 73, it being decided by the latter, case that a servant using a railway platform might 1 maintain an action for negligence. Although the plaintiff was a mere licensee, yet if he was not h wrongdoer he was entitled to recover. As the common employment was a fact for the jury it should have been specially pleaded. Rules 41 and 42 bore him out;in this. Ought the declaration to have contained a count that the plaintiff Was f not engaged in.common ’service?; TMs |was..',a.Vfaii?.ttest'’' ; .tq'.hrmg''to bear on this subject. Gwynneth, too, was not a . fellow servaht of the plaintiff,. but a sort of viceprincipal of the Brogdens. Jerusalem Smith held a similar position, in ; Dunedin, and hia evidence,clearly showed Gwynneth’s status at Oamaru. Brogdeiia’ nph-residehce was also of great importances If. Brogdens were in such a position as not to be able to-exercise a proper control over their servants, they ought not to be able to avail themselves of the defence of bemmon . service-. As to a vice-principal rendering the principal liable he would cite Murphy v. Smith, 19 Com. B. N.S. 661 and Holmes v. Clark,- 31 L.J., Excheq. 361. In the latter case, Mr, Justice Byles asked the question why could not a (master be guilty of negligence by his manager whose employment may .be so different’to that of the servant aa not to render him a fellow servant ? -The same principle was laid down in the" former case. All the cases would be found collected in the leading case, Gallagher v. Piper. He would admit that Mr. Henderson, of Wellington, was in the position of chief agent, but waa not Gwynneth’s position at Oamaru, such as to render him a vice-principal within the meaning of the ease, r If .it-was shown that Broad was a careless servant, and that there had been evidence; of this to go to .the jury, then the defendants would be fixed with negligence as Gwynneth ought to have discharged him.' From what was said in a case Howell v. Landore Steel Company, Law Rep. 10, Q.B. 62, it appeared to be thought that the judgment in ■ Murphy v. Smith had been overruled by a House of .Lords case, Wilson v. Merry, Law Rep. 1 H. of Lds. Scotch and Divorce Appeals, 326. If this was so, and the principle applied to the present case, then persons in the position of the plaintiff would have no redress. There was a Victorian case (Band of Hope Company v. McKay, 2 Victoria Law Rep. 158) bearing on the subject, but it was of an early date; The judgments of the Lord Chanaellor and Lord Chelmsford in Wilson ,v. Murray, he thought would not apply to the present action. There was one reported case where a principal had actually been held liable for the acts of a vice-principal, but the principle laid down by the Chancellor in the last case was not a good one. The judgment in Murphy v. Smith was-not mentioned in the House of Lords case, and if it had been intended to overrule the judgment of the Court of Queen’s Bench it would have been undoubtedly' mentioned directly. The Court was at liberty.to follow which decision, it liked, aud as a matter of principle the defendants being out of the country, and the difficulty which would arise in proving negligence as against them personally,, he would submit that the Queen’s Bench judgment should be followed. i Mr. Macassey finished his argument that the rule might be discharged at half-past tour, and the Court adjourned until this morning at H o’clock, wken Mr. Travera will reply.