SUPREME COURT.—CIVIL SESSION.

Otago Daily Times, Issue 2062, 14 September 1868, Page 3

SUPREME COURT.—CIVIL SESSION.

Saturday, September 12th. ... (Before His Honor, Mr Justice Chapman,) CLA.IM FOR PERSONAL. INJURY. - Campbell v. OPetchell (Special Jury). —This was a claim for compensation for personal injury, by the breaking of the plaintiff's leg, through the alleged wrongful interference of the defendant, with the flap of the movable stage used in connection with the Clutha punt, on the south side of that river. The occurrence took place on the 22nd October, the day on which His Honor, the Superintendent, went to Balclntha, to address his constituents, after the session of the General Assembly. The plaintiff is employed on the punt; and the defendant is a farmer. Mr James Smith and Mr B. C. Haggitt were for the plaintiff; and Mr Macassey and Mr Howorth for the defendant. The plaintiff b case occupied the whole of Friday; and Mr Macasaey now stated the'caae for the defendant. " The following evidence, by Jame3 Macandrew, Superintendent of the Province, which had been taken by Commission, at Wellington, Was read:— : " lam Superintendent of Otago. I know plaintiff and defendant. I tsaw the accident respecting which this acfcicm is brought. I wa3 on board the punt at the time of its occurrence. ' At the southern bank of the river to which we were approaching, there is a landing stage, at the end of which there is a movable swing or taiLboard fastened to the stage by hinges, for the purpose,' when let down, of connecting the punt with the stage. At the time of our approach, this swing or tail-board Was perpendicular. It was notfastened. MrPetchell, the defendant, was' bif the stage, leaning upon this swing or tailboard. The punt first came into. con tact with/the landing stage at the^right hand corner, or corner up the, riveri Campbell, the plaintiff, was at that time engaged at that corner, making 'something fast. He. was in the punt. Almost instantaneously the swing or tailboard fell upon Kirn and; broke bis leg. Mr. Peicnell at the time appeared to be holding on by the chain of the swingor tail-board, apparently endeavoringto stay it, but the swing or tail-board was, tod heavy ; or it might be endeavoring to let it down gently. It fell, and occasioned the damage. The rigging of the swing or tailboard appeared tome deficient, inasmuch as that it bad no, counterbalancing check, such as exists on some other ferries.' I saw the deien&arit on the stage.' I did. not Bee him push, or use any exertion to throw down the swing or tail-board. .The punt arrived at the stage corner-wise.- It was then moored square, which caused the punt to strike twice against the stage. : I cannot say it was the jarring of the punt against the Btage which caused the swing or tail-board to f all; but it would have that teiidency, if any one was leaning upon. it. :; But I.'canriot^poak;positively, on this point; I did not see that the swingor tail-board was secured in any way to prevent its falling, unless violence were used. * I do not tHink it was fastened ait all., There was nothing but its own equilibrium to prevent lit from.'JFallinff. looking, at the, result in this case,'it" does not appear to have been safe to:4eave it unsecured—regard being had to the place -\frhere it was left, and the traffic about it, though I am not aware of any other accident having happened with it. Cross-examined by Mr Hart, for plaintiff: This ferry has been established several years. It was constructed by tho Provincial Government. The swing or tail-hoard, when perj psndicular, is, I think, about four feet high. When approaching, I saw the defendant, but I was not looking particularly at him. I .have known., the defendant, for ..the, last ten years. He. is a warm political supporter of mine. The plaintiff is so ■ also. I. do not doubt one of ~ the objects of the "defendant being there was to meet me. There ,was anotherold friend on'the punt. Between'the letting down of the swing or tail-board, and my meeting with him, not a minute elapsed. We shook hands immediately, but whether on board the punt, or on the stage, I cannot; say. I was on. the lower side of the punt—l mean down the river—when the punt struck the stage. I saw the- boy was very much hurt, but did* not know the exadr extent of thejinjury. . I have no recollection of hearing any one call out to the defendant not to touch the swing stage. .Such a warning might have been given without, my recollecting or hearing it. The defendant and others left with me, to thebsst of my recollection. Theferries at which the. swing stages are balanced in the manner I spoke of are private property, although licensed by the Government. I have never observed a similar arrangement at any of the ferries constructed by the Government. Plaintiff's father collects the feny dues, and out of them pays the hands employed. He, himself, is paid by a per cent-.; age on the amounts collected. ~ The plaintiff was engaged as one of the hands, at weekly -wages. I cannot swear that "while the defendant was shaking hands with me one of the workers of the. punt did not say to me, 1; .That comes of people. meddUng/with. things they don't understand." ; Ite-examined : All the Government ferries have not a stage on shore, but in some the tail-board carried by the punt suffices as a : landing stage ; and I do not know any other Government ferry but this which has a landing stage. . , . . ; . John Petchell, the defendant: I live at Eiverton, Southland, arid am a farmer, [n October last, I lived in Inch Clutha. On the 22nd of that month, I was at the Clutha Ferry. .; .The" punt, with; ~Mr Macandrew and Mr Sibbald on board, arrived at the south bank between four and five o'clock. I had been waiting fo:.' Mr Macandrew about an hour, and he was to address a public meeting on that evening. I had never before seen the flap at the end of the stage. To cross the .river, there, was not my way to and from Balclutha. The flap was very nearly perpendicular on this afternoon. I saw one rope resting, doubled on the flap. When 1 first rested my arms on the flap, y the punt was about half way" across -and I could see Mr Macandrew standing with Mr Campbell, sen. I was not in an excited state ; I walked' dorvn the jetty quite slowly, and I stopped talking to John Phinn. I was resting near one end of the flap, with' my arms crossed on it; and I did not stir except that, as the punt neared, I just moved my hand to Mr Sibbald. The pant came on cornerwise, striking "the sto^e, and. it shook the stage so as to knock my knees against the flap,' and hurt them.' ■ I then altered my position, putting my hands on the edge of the flap. I thought the rope secured the flap, or I should have moved off. When the punt bounded oS, after first striking, I handed the rope to the plaintiff. The punt came in again, not so bard as before, and then the'flap began going down. ' I held on-to it with my hands, as hard as I could, or I should have gone.down with it; It was down in an instant. I let go my hands. .Ji did not perceive any motion in the punt, when the .flap went down. r.'. I could not say whether the plaintiff was standing on the puat or on the tail-buard when I handed him .the rope. It tpok my. attention, that Mr Sibbald's ponies started with the shock of the punt. I did not hear anybody call out to me. I did not push over the flap, either intentionally or unintentionally. I jumped over the flap, and helped to raise it, so as to release the defendant. After that, Mr Sibbaid asked me to take his horses' heads, .and'to lead them Tip; and then he asked me to jump in and show him the stables. I did so, and went back. I did say, " Send for a doctor, and Til pay^ the expenses." Of course, if I authorised a doctor beino1 sent for," 1 should be liable for his charges. Two or three days afterwards, I saw the plaintiff at his father's hotel. I

saw him * several times before I got Mr jDempsey's letter, in February. At one of the interviews, I told the plaintiff that Mr JBarr thought of getting up an Art Union, and hoped to be able. to present him LSO out of it. He said, " Tell him not to do anything of the kind : I'm not so -hard." up." I have seen the plaintiff several times since February ; I never had one cross word with him or his; father. The plaintiff never charged me with causing the accident, until 1 got the lawyer's letter, in February. I did not hear anybody caution or call out to me, to stand back from the flap, nor did I hear anybody swear at me after the, accident, for having beddied. ♦ By Mr Smith: It might be between a quarter and half a minute between the first .blow of".the. punt, and her coming round again. I hold that the first blow brought the flap more nearly to the perpendicular ; aud that the second blow, though less violent, was. then sufficient to bring it over. I don't know that I was more interested than others in Mr Macandrew's visit. I. recollect that the first thing I did was to rush to Mr Macandrew and shake his hand; but he was at the time coming towards aie to help to raise the flap. John Sibbald : I am a laird, and a member of the Provincial Council. I went to the Clutlia Ferry on the 22nd October last, with. Mr Macandrew,, whose object was a political one. Before I took the buggy on board the punt, Mr Maoandrew '. got out of it, and he stood pretty well forward in the punt. I remained in the buggy, somewhat i aft. As we, neared the south bank, I observed the defendant coming down the jetty. , The next time I noticed him, he was standing with his hands on the flap, rather near one corner. ' The punt came in with a dunt on one corner, against the stage, and then sheered off, and came against the stage again. I cannot saythat ■■ ' my■■ attention was particularly attracted by anything, until the falling of the flap. I saw the defendant, - and I "saw;the flap fall. I noticed him just | before it fell. I saw. him waving his j hand, to Mr Macandrew, I thought; and tlien the flap came down almost instantaneously. I was not sufficiently near to observe whether the, blow from the punt had any effect on the position of the flap. My horses were very quiet on the journey; but after the turmoil on board the punt, they got very restive, and I< asked the defendant to take their heads ' and "lead them up the jetty!" I had to insist, or he would have left me half way up, and/then I induced him to jump in, so as to show me the stables. , . By Mr Smith : I think the punt was settled against the stage when I saw the defendant waving his-hand. I had to call to the defendant before he came to me, to take my horses''heads. '1 Robert Smith, auctioneer, Balclutlia: Prior to the Ist January, 1867, I was lessee of the Clutha Ferry, and I was so for twelve months. I havelived at the ferry for abont four years. During my lesseeship, I for some time worked the punt myself It took sometime^P" understand its working. In my opinion, the flap ought not to have been used on the day of the accident. ■ A man fastening a rope from the stage to the punt, ought to be standing on the punt, not on the tailboard; I used a block and tackle to raise the flap; and T used to keep the rope hitched,- so as to hold up the flap. It was not, during .my time, .necessary to use the flapped stage more than two months ; and .the rope and tackle ; were employed as I have , described, except r* o*~ a. -time while -^thft stanchion over , which. the rope, went was broken. .The use of the rope and tackle was shownto me by the man; who had previously had the punt. -I never saw Campbell using the block and tackle ; but I have seen-him using a lever to lift the flap, arid .the end of.that lever;was then made fast to a stanchion. I remember Campbell saying- to me, that his: plan was an-im-provement on mine.: With either the rope and tackle ;or the fastened lever, the flap could not fall. ' ' ': By. .Mr Smith : I never did remark that the flap has leaned over more shorewards; since T left the punt, than it did. while I had'the punt and used the rope, and tackle. ; I would nofc say'that; the angle was not made more acute, after Campbell, the punt. The lever I have spoken of, was used' on the north side of the river—not where the accident occurred. ;: :■..••■.! ' He: examined : I used the block and tackle on each side of the river. •■•:.•.. Mr Maeassey summed up for the defendant ; and Mr James Smith replied. The Judge directed the jury to consider whether the damage complained of was occasioned entirely, by the improper conduct of the defendant; or whether, the plaintiff himself so; far contributed fe the misfortune by his own negligence, or want of ordinary and common care and caution, that, but for such negligence, or want of ordinary and common care and caution on his part, the misfortune would not have happened. . In the former case, the plaintiff would.be entitled' to recover ;in the latter, he would not. That was the direction which might be said to be the established one of the English Courts as to " contributory negligence," such as to disentitle the plaintiff from recovering. But, in the present case, there wan a third element. for consideration. Were the defendant and the plaintiff alike innocent of causing, or contributing to, the misfortune; and did it arise from the improper; condition of the jetty and the flapped stage? A great deal might be said on that point; because, if the flap was so left, that a slight tap, .or " dunt," of the punt against the stage, would, or might and did, cast, the flap over, then, neither of the parties was to blame,' and the plaintiff could not recover of the defendant. But the jury, in considering that point, must not be influenced by consideration of what might be the best possible mode of placing or fixing the flap. If the flap, as it was just before this misfortune, was secure against ordinary riska, and was only insecure aa against an > unauthorised act—and.if the jury thought that the defendant did such an acP—then, the state of the flap would not relieve the defendant from liability; because the plaintiff" was'not responsible for the state in which things were left by the owners of ; the punt, and any partial wrongfulness on the part of those owners would not relieve the defendant from the necessity of exercising a reasonable amount of caution, or shield him from the consequences of an improper act.—His Honor stated the substance of the evidence, and commented on it. " . After the jury had been out of Court about half an hour, the Foreman (Mr GK M'Lean) returned, and asked "whether the verdict of a "majority would be, accspted. There was no prospect of the jury agreeing. The parties, through their Counsel, agreed to accept the verdict of a majority of the jury. There was another short interval; and then the jury came into Court, the Foreman stating the finding to be, for the plaintiff—damages, LIOO. : The Judge certified for .a Special Jury;

and the Court was adjourned until ten o'clock to-morrow (Tuesday). The Court sits at ten o'clock to-day, for Bankruptcy business.