SUPREME COURT.— CIVIL SESSION.

Otago Daily Times, Issue 2061, 12 September 1868, Page 3

SUPREME COURT.— CIVIL SESSION.

Friday, September 11th.

.(Before His Honor, Mir Justice Chapman.) , The Court sat at eleven o'clock, after business in Chambers. (. ; CLAIM FOR PERSONAL INJURY. Campbells. Petohell. — {Special Jury.) —Mr James Smith (with him, Mr B. C. Haggitt) appeared for, the plaintiff, William Campbell, a ferryman ; and Mr Macassey and Mr Ho worth were for the defendant, John Petchell; a farmer on Inch Clutha. The plaintiff claimed LIOQO as compensation for injury and loss consequent upon the breakage\of his left leg, through the Wrongful and wilful act of the defendant, in causing ascertain swing or tailboard on the jetty at Balolutha, to fall upon -the leg of the; plaintiff, while the plaintiff was lawfully occupied, &c. .There was a note to the declaration, claiming Special; damages to the amount of L 275 2s, namely-^-Costft of medical attendance, <fee, L 75 ; loss of employment, LIOO 2s ; permanent injury, LIOO.-—The defendant pleaded a general denial of all the material r allegations :; and, that the .alleged trespass ; waa caused by the negli- ■ gerice and impropor conduct of the plain' tjff. ! -;;"■ '/.. .•■■■.;;' ; ■ ■ '' 1 Mr Smith state^ tJie base for the plaintiff, referring frequently to a well-con-structed model of jthe Clutha punt, with the Balchitha jetty, stage, &c. I William Campbe/l: lam a ferryman at Balclutha,, and was so on the 22nd October last. I have been so from the Ist January, 1867. I made the model.. (on the table) of the! punt at, Balclutha, the jqtty on the south side of \ the, river, and the stage, !which!, i& [moved up and down, tlie jetty, onwheels, in accordance the rise and fall" of'the river." 'At''the' riy er. end of the . stage, there is a heavy hinged flap., "or tail which,, /when1 not in use, leans btiok r eHglitiy over thje stage; There is.a smaller stage, upon which the tail-board frqm the punt is let down when the river is low • and -when the river, is very-low, the tail-board of the.punt is worked On, to thiaend of the jetty itself.! The stage, with the flap, was in use on the 22nd Qctpber,; and the flap' was' lying,;back ain.its'ordinary position, a, little off the upright. flap weighs, I think, between 6cwt. and Bcwt. The model jis to scale, and as it npw stands) the flap is ■ in its ordinary position when riot ip use.' iAgqpid push is ;required t&;,puttit, oter. Wffiien my father took the punt on the Ist January, I myself cut pieces' out of the wood of the stage and'the- flap, 'jusp where the hinges work. 'I am a mechanic. .The effect of what *I "did jwas to .allow the flap to lie over-at a greater angle towards the stage, so ,that a it could not ; possibly fall towards the punt <or the river, without being pushed: 'It could not be oyej? b^ a person leaning against it, or i;ouching it, carelessly...,. The punt is wdrked°by the current; and no portion of the .working gear of the punt comes into contact with the flap. ~ f\remember Mr Macandrew and Mr Sibbald cdming up in a buggy, to the ferry, on' the 22nd October, about five o'clock. f; If was broad.daylight. ..Mr Macandrew got out of the buggy,ion.the ■■'puntl ,' arid was speaking to my father while we were .crossing.. , I,was steering., As; wj? geared, the Balchitha^stage, I left the helm, and went to the shore end of the punt, to be ready to take the first, of two tropes fastened to bolts in, the stage, which are used for fastening the punt. ! Our prac-r tice is, never to 'touch' the flap until the two ropes have been fastened; On the 22rid October, th& defendant, whq was at :the xe'nd of the" st'^e; tKreysr ;;ip me the, first; of the two ropes, and-1 was in' the act of fastening it, standing sideways on to| the Jetty.; Previous to throwing the rope, the defendant bade me "good afternoon,' 7- and then hef said, ~? Yoii'Ve brought them at'last?''(referririg■ to- Mr Macandrew-and Sibbald)^ I said," ''Yes," and the defendant then threw me the; rope. I said, back, Mr Petchiell." He was quite, close ,to ithe' flap—touching it, ,in. fact,V He ,did;not' ;move.: I! heard'"my mate, Archy. Burns, ,say something, biit 1 did \ not know vwhat it was;; forol found myself down /below the flap.,, .The flap had struck me on the" left leg, below the knee, and I wasthrowh down, my-leg remaining jammed. Archy, my father, Mr , Macandrew, -and a man named Phinn,',raised the fl^p, and lifted inc. Mr'father -said to Mr Macandrew, "Your Honor, there's my best man got his leg broke, through another man interfering in his' business—a thing he's nothing whatever to do withV 3? Archy iwas, at the' same time,' swearing at j the defendant; 'anid Mr'1 Mac^ andrew said, " Stop! 'stop!; thatflldb; no good." The defendant jumped, into the buggy beside Mr Sibbald, who drove off. T heard*him say, 'fSend for a dobtor,' and I'll pay expenses." \: The punt was then taken across,the river,■ and:l.was carried :home;> Dr Smith came in the everiing v . .and rgot my rleg put right." '"T was confined to1- bed irorctlie '22nd October to about Christmas time; therdoctbc atV tended me regularly, and Icame some? times twice a-day. *•,■; Near Christmas time, 1 got about" on crutches, and I had to use them until March; !i I; could not resume work" until the Ist June,1 and! am not now completely recovered. I cannot carry any weight^on"my; ,back.' ~At ; -the time plthe accident^'l was'getting,:L3 If a '; tbut I earned nothing from the 22nd October to thelst June. I always paid my fatherf or -my board, things, out of myj wage's; and I paid himabbut L6O during the time I was not working. ?Ex-^ tra expenses, which I should not have incurred but for. the accident, amounted* to aboutL2Q. Dr. Smith attended me up to. about May, and supplied me with medicines. I; produce his accpuntj for L7o.> My health generally has suffered from the accident. I What would compensate me for that ?| 1 wish jhe'd got my leg.. I. offered him, before^cpniing into town for this action^ to say "nothing more, if he would payi the doctor's "bill and my expenses. At "first,; when Is believed that my leg was altogether permanently disabled, I asked.LSQO. ..He would'not consent to either. I claim LSOO, as cpmpen-' sation, forithe general injury jlhaye. suffered. ■■ ;"C>,:..- '.■'..:-L" ■■'='■ .- + ~■'-■■,.■:' \.- , By Mr jHoworth : The, first, offer was imade iii'a 'letter by Mr^'Dempsey ;'the second, in aletter by Dr. Smith; -When I was lying in bed,; the; .defendant came and \ said, he was getting -tip' -a subscription for ■ nie^ arid Xe rmearit to give something. I rose ; up in! bed, .andsaid, " If you've had,anything to•do.with1 that, you go arid stop it:;. It willbe : time enough; for! me to ask you- for=anything, ! when I want it." He said that Mr Barr, himself ; and others were interestmgrfchem-;l selves in, the matter. The next thing was;; the letter from-MrDempsey. I had never intimated to-.the- defendant up to that time, that I regarded him as responsible for tie accident. - I once liad an accident to my foot; but I never heard,:! until now, that Dr Smith said that my not telling him of the accident rendered it necessary for liim to break my leg after, having first set it. Mr Robert Smith .was the lessee of the punt previous to my father. I never saw a block and tackle used to raise and lowox the flap. I was a.

stranger to'the feray until I went on to the punt. I kept this flap tied for a day or two, until I had cut about the hinges. I never knew of a lever being used to this flap, but there is one to the stage on the north side of the river! I never was told by Sergeant Cobden, or any one else, that there was danger of the flap falling o^er. My left foot was on the tail-board of the punt when the flap fell. The punt did not come in comerwisej with a jerk, against the stage. It did not Btrike the stage twice. The Father, of the Plaintiff, who manages the punt, for the Government, generally corroborated the plaintiffs evidence. He was sure that, as the punt neared the stage, he saw the defendant leaning on the flap ;-and that, just before the flap foil, ho called out to the defendant to "let it alone." The punt came to the jetty quite slowly. Archibald Burns, one of the ferrymen, said that when he first saw the defendant 'his idea was that the defendant was pushing the flap. He (Burns) was then at the opposite end of the punt, attending to the guy ropes. When he came towards the stage, he saw the defendant pushing the flap, and he called out, " Let that alone." The flap fell almost immediately.' The punt • was' then only partly made fast. After he had helped tq remove the plaintiff, he saw the, defendant on board the punt. He swore a little at the defendant! What he said was to the effect that the defendant had no business to interfere : with things with which he had nothing ito do. He heard the' defendant say, "■ Send for a doctor, and I'll pay the expanse." Thomas Burns, engineer of'the Tuapeka, said that that steamer was lying stem on to; the jetty, at the time of this occurrence, and he was on the steamer. He sajw the defendant leaning with his arms ..crossed on the flap, waiting for the punt. The defendant,; as the punt neared the stage, pushed once, without much moving thpflap; then he gave a stronger £ush, and 'tiie flap went down.—Cross-ex-amined :. I had said to my mate, ; "Just look at ' 3tfr Ptetchell!: he's just like a; hen, on a hot griddle. See if he; isn't going to get aboard the punt before, she's .alongside." lam quite sure that,the defendant pushed the flap, and did not try vbp hold it back from falling. ._'.', itfohn Pbinn,- fireman on board ..the Tujipeka, while sitting on the stem of the steamer, close to the stage, saw the defendant leaning on the flap; He (Phinn) had worked the punt, off and. on, eversdnce she! was built. He never heard of the flap falling over without being touched, or by the shaking of the stage from the collision of the, punt, nor did hie ever hear.of the flap being blown over by. a strong wind. .v j :; !..;,. Evelyn.Locklpy, who,, ia October last, ! was; mate and purser of;the Tuapaka, saw the defendant push. the. flap over, It could riot have fallen -over,, but for the force exerted by the defendant. When he saw the defendant pushing, he cooeyed | and cried, "Look out!" "He di/l thaf I because of ,the> danger in which ixe saw" I the plaintiff to be ; but the yarning.was 'meant for both parties. ... >. •*- William Balston, seaman, who has for a. yeart and 10 months been employed in* connection with the Clutha bridge, saw the accident from the river bank, about 40 yards from the lqyrer,end.of the stage. He saw the defendant leaning against the flap ; and when the punt was close in, he noticed that the defendant was looking about anxiqusly, as if he thought the flap ought to,go down, so that he could go aboard^ At "last, the defendant pushed the flap down.j He had seen the flap some; time ago ? occasionally fastened backi With;rope; but then the flap used to stand almost straight on end. He noticed Boon.after Campbell took the manager, ment^ that the flap" leaned more, so that,* though not fastened, Jit could not. accir"dentally fall over. Speaking practically,' whatever theory might -h& started, he was "sure that .collision ofc- the punt with the stage would not cause the flap to. fall. ; s.;^.rs.^H-K >■■.■■■■■■■■■■■■•■••■■■■■■■■■-•■ v John Gibson Smith, Burgeon, described ;the [compound; . of the left legj which the plaintiff suffered. He considered that the plaintiff's leg was now pretty sound ; but the'plaintiff might not now be able to do a heavy day's work. It .would, be 10 or 12 months before the plaintiff's left leg became, if it did become,, as strdng laa?Kßrrijih"t'-.jiegy.-:--He.'did-not'' ■ think that the accident had at all mi■- ■ paired .the.plaintiffs' -constitution. His bill to the plaintiff, for attendance and> 'medicines,* was about L7O ;- and he looked to the plaintiff for payment of- it. rf-pfoss-examined : He had. some, .diffi. cnltyjii setting the leg, because the fracture* ]israß a very nasty jane. . JThere was a cut on" tiie plaintiff's foot, but that had nothing' to do witlr'the. difficulty mentioned. The5 plaintiff once' or twice said tphihi that the defendant'Svas"the cause of the accident^ On'the day after1 the accident, the plaintiff said, "" If, it had notjeen for Mr1 PetcKell, 'lishouidv not Kaye. ha^ this leg.". He,(thawitness) had resided at the ferry^for. fiveyears, andhe had crossetl'the ferry ( about three times 'a 1 .during that period.. He considered that the flap, as it had been since CampbeUjhiad !had the punt, ; did not require to be .fastened with rope. He had seen the punt conic against the stage with suqh force, as to drive it sonic' feet- tip 'the incline of the jetty ; but the shock did not bring do^n the flap, .-. :; ,, ■ A ;.-. ~: ,y • ■-.<.--' This concluded the case for.ihe. plaintiff ; andj it being half-psist four o'clock, the .iCourt was adjourned "until ten o'clock to-day (Saturday): ...t \: v. :;l ,