SUPREME COURT.

Otago Daily Times, Issue 9195, 15 August 1891, Page 6 (Supplement)

SUPREME COURT.

OIVIL SITTINGS. Friday, August 14.

(Before His Hocor Mr Justice Williams and a Special Jury of 12.)

BTJSHV. THR MOBNINGTON TBAMWAY COMPANY.

Claim £11100 damages. Mr W. C. Macgregor, with him Mr North, appeared for the plaintiff, William John Bnab, of Mornington, expression ; and Sir Robert Stout, ■with him Mr Solomon, oo behalf of the defendants, the Mornington Tramway Company The statement of claim set out that the defendant company laid out certain rails and hues ot tramway in a public street, called Glen avenue in the Borough of Motnington; that they did not keep the rails on a level with the surface of the said street, and did not keep the rails and tramway lines, and the parts of the street adjacent thereto, in good repair; that the rails and tramway lines formed an obstruction to the traffic on the street; that on the 20th April 1891 the plaintiff, while lawfully crossing the said street with his horse and express was thrown to the ground, and his express was npset and damaged, and his horse iajured through the wheels of the express coming into contact with the rails and lines of the tramway, forming an obstruction as aforesaid; and that the plaintiff had thereby suffered great pain, loss, and injury, and had been permanently disabled and prevented from attending to his business, and had incurred medical and other expense. The defendant company, in their statement of defence, pleaded that the rails and lines of tramway laid down by them in Glen_ avenue were laid down under the authority and in terms of au order made by his Excellency the Governor on ths 21st October 1883, under the provisions of " The Tramwajs Act 1872 "; that they, at all times, left the rails on a level with the surface of the street, and that they kept the rails, tramway line, and the part of the street adjacent in good condition and repair; and they denied that the rails and tramway line, or either of them, at any time formed an obstruction to t&e traffic on the street. For a further defence the company pleaded contributory negligence on the part of ths plaintiff. Mr Maogregor, having opened the case, called . , , Norman Bartlett, an authorised surveyor, who produced a plan of Glen avenue, made by him from measurements taken on the ground. William John Bush, the plaintiff, deposed that he was an expressman, and lived in Glen avenue, lv Eugland he was a coachman, and was accustomed to horses. On Monday, the 20 th April, he was coming from town with his express, between 5 and 6 o'clock. He had come horse feed to leave at his stable, on the left-hand side of the tram line. He had four bags of coal to deliver in Russell street. Having left the provender at his stable, he got up on the express and drove a few yards down the avenue. Ou the lefc side he kept close to the bank or gutter, and about 7yds from the telegraph post he turned his horse's iiead to cross to the right. The front right whee! seemed to go over ths left-hand tram rail. The left wheel "skidded," and the biud right wheei "skidded" down the hill. T&at shook him in the seat. He could not see the wheel skid—he felt it. The right front frneel struck the left bide of the tram rail. The express .'•'skidded " down hill and threw him violently over. It slewed the horse down. He was thrown over the left front wheel, ana landed on his thigh. His leg was doubled under him, and his elbows were bleeding. The express seemed to have slid further down the hill alter ha was thrown. It looked as if the express were on top of him, and he rolled out of the way. The horse jumped up before witness got on his fcfit, and cleared the express from the tram rail. Toe horse could not gnide the express, and ran on the path, but he camo against a telegraph post and that stopped him from going down the gully. When ha got up on his feet; he; saw men holding the horse, and they undid theharness and got him loose. After witness got the horse in the stable he went and looked at the place. He took a rule and measured the height of the rails above the satface of the road. The left rail was lin to 2in above the level; the other was b little more, and ran to 2Jin. He saw plainly where the wheels had shaded. They left an impression «n the ground from 7ft to 9it. There was quite a gutter between the wood in the centre of the tramway line and the rails. The height of the woodwork was 3in—about the same height as the rails—and the gutter was about 3in deep. The left rail was ljin to 2ia above the level of the road on the outside; the other was the usual height. He had baea in the habit of drivng about Mornington a good deal, as all his customers lived there, and ho knew that the rails were very bsd. He put the hors3 in the paddock after the accident. The horse was a good staunch one, used to the hill?, and was worth £1,0 to him before the accident, and ha was sold for 37s afterwards. The chafes of the express were broken, and parts of the harness ware brokea. It wouli take £5 or £6 to put the harness in repair. Witness felt very bad on the day after the accident. He was i>rui=ed principally on the left thigh and ou the elbows. His frauds were cut, and he had a little cat on the tecople. He was very sore from tbe bruises. Before the accident he never had any-! fehiog wrong with him. About five days af ttr the accident he went to Dr Maodonald, and wm examined by him. He brought an action in the Resident Magistrate's : laurt for £50. At that, time ho did not know that there was anything seriously wrorg with him, though.ho was alwa\ j trembiiog and nervous. The caso was put oil for three weeks, during which time the bruises left him, but he had severe twitchiDgs in the back. He had felt the twitehiogs in the back after the first week, but he took it to be rheumatic paics. The second time he went back to Dr Jl.icdonald he had strangling, nasty pains across his chest, And could not get his breath, and he cou'.d cot walk, and he got giddy. Tiio

Magistrate's Court case was then Btopped and he commenced the present action. Hd took to

his b=d on the 7th June, after he saw the doctor iSie deeoGii time, aud was confined to it continuously for nine weeks, daring which time h« suffered fearful pain. He had strangling pains across his srms aud chest, and aaoo'ins pain* i;p iis back to his bead aud down hi 3 leg. j. Hs would sleep an hour or two imd then awake up very bad—b3'Fterical-liks. He would have orr.?.—3 about falling off a big building or down a :ietp pit, or about things of that sort. Hi:i h~uA always seemed to be hanging ont of the 3i;!e of ths bed, though it was propped up with pillows in the middle. Ho had never been ouiiida the iloor sf the house since the accident until this o.«y, whuu he cama down ia a cab. On

tbe Tiiursc;ay after ha had the accident the Tramway Company commenced to repair the.

Jiae at Glen avenue. About eight loads of oiGdars, ehy, and road metal wsre used between

hU g»iis and the scene of the accident filling up to Uiß road level the place where ha had gone cvar, but leaving unfilled a place a little lower

down. Some weeks after the accident ha saw soms exyrcssrocz), Mr Eunaon and Mr Louden, at the ecenc, backing, and pnlling, and drawing au ezpresd across the line, which had then been entirely rtpsired. All the repairs were done sinco the accident. When he was in work he would sometimes make £4 a week, but cometimes bis earnings were as low as 308. A fair average would be £3, a little more than under. Since thu aocioegt he had earned about 503 in all. He had a wife and seven children, one of whom was working, and his daughter managed the telephone at Mornington. He had had Drs Macdouald and Alexander attending him. The pains wero not co severe now, but he was very weak.

By Sir Robert Stout: On the day after the accident he Baw Mr Louden, the company's engineer, and told him he had an accident. Mr

Louden asked him where it was, and witness told Mai it was a little farther down the hill He did not point out the place minutely. He did about four hours' work on that day, and also on the day afterwards. He did a little work from tbe 27th April, a week after the accident, up to tbe withdrawal of the Resident Magistrate's Court action on Bth June. He was moving furniture on the 4th May, he was in Dunedia on the 6th June, and he was walking on the Town Belt on the 10th, after the doctor had seen him. He crossed the line at an angle that would have been safe if the rails had been right. He had always crossed at the same angle, and always found it cafe. The right front wheel went over the first rail. No other wheel went over the first rail before the machine skidded. The next front wheel also went over. It did not skid on the top of the rail. He could not see whether the left front wheel passed over the first rail. The right hind wheel did not pass over the rail—it skidded. The machine did not lock before witness was thrown. Witness thought that what threw him was the front wheel coming on the inside of the right-hand tram rail. The right hind vrheel did not seem to pass over the lefthand.rail. The horse was going at a walking pace. Witness did not attempt to jump off. The right front wheel could not get over the right-hand rail. That was what caused witness and the horse to fall.

Thomas K»ndrick, coach painter, residing in Argyle street, Mornington, described the accideofr, of which he was an eye witness; and George Dunn (carpenter), David Cleghorn (millworker), aud William Wilson (insurance agent) also gave evidence respecting the accident.

Francis B. Smith, town clerk and inspector of worlcn, Morniogton, deposed that on the 9th March he wrote to the Tramway Company requesting them to put the roadway on the extension line in proper repair, the rails being far too high for the safety of the travelling public. On the following day he received a letter acknowledging the, receipt of his, and that w»b the only reply he gpt. No repairing was done to the tram line at 'toe end of Brunei street, where the accident happened, but since then thorough repairs had been effected and the line wa3 now in very fair order. The line was, at the time of thfi accident in distinctly hud repair at Brunei street, and s little «bove it, both rails being above the roadway. The line at that pfact: was as b*3 as it was at other pUces. It was about the full height of the rail—2in— above the roadway at some placed, both inside and outside ths rails. The line was low between the rails as well as outside them. The rails and slot beam were not flush with the street. The slot beam was, he thought, an ,high above the level of the roadway as the rails were. He regarded Bush as a very careful driver. By Sir R. Stout: He probably bad a conversation on the day after he wrote to the Tramway

Company with a surfaceman who was repairing j the line" Tho surfaceman probably asked nim ; if the part he was repniriuf; was one of the puts j witness complained of, and witness said it was. j That whs at the loop line between Argyle street | and Neidpath road. Ha was not sure about the Dr Gordon Macdonald deposed that he was at present attending the plaintiff, .who was suffering from concussion of the spine. Witness had known the plaintiff for some years. Before the accident he was a strong, healthy man. On the 250h April witness saw him, when he was suffering from severe bruises. About the middle of the left thigh and on Ibe. surface of it there was a bruise 6in wide Find lOin long. The skin was graz:d above the left hip joint, and bruised over both h'ps, especially the left; the right knee joint, inner surface, had a bruise of 3io by sin; on the right elbow, from the tip on the outer surface, was a contused scar sin long; the skin was peeled off the left elbow, acd the left thigh at the centre of the bruised surface wa9 2in thicker than the right one. Witnesa next saw the plaintiff on the sth June, when ho was better so far as the bruise 3 were concerned, with, however, wor.^e symptoms. The left thigh was still discoloured, showing deep-seated injury, and was still halt an inch thicker than the right one; there.was discolouration down the whole back of tna tuisn from the hip to the knee joint; the other bruises were better. He complained of numbness and tineling. of weight in his feet and legs, ot pun in the lumbar region and up the spine to the shoulders, of tightness round the chest (describing it as if a girdle or rope were tied round h:3 chest), and of sleeplessness and dreaming, of pain or pressure over the sacrum; and spine. Witness remarked that sensation was defective in the plaintiff's feet and legs. Tendon reflex was scarcely noticeable, showing some interference with the functions of the spine. The plaintiff could Dot walk backwards but with difficulty, and could not stand on one foot; nor steady on both if his eyes were closed. Ho had not been having absolute rest, and was generally worse than before. From the symptoms witness concluded then that the man was suffering from concussion of the spinal cord, and recommended absolute rest, blister to the back, and ehloiide and bromide to force sleep. Witness had seen him frequently since that, and his examinations of him had confirmed his opinion. Dr Alexander was called in for consultation. They had joint examinations on the 23rd and 27th June, Dr Alexander making independent tests for the discovery of epinal concussion. Among others, Dr Alexander applied the galvanic test. Oa the 29th June Drs Colquhoun and Baraett examined the plaintiff in the presence of witness. The examination lasted about three-quarters of an hour, and they had every opportunity givm them to find out what was the matter. They did not apply the galvanic test, nor the test of sensation by pricking. It was a common thing in cases of spinal concussion for a patient to bo apparently well for days or weeks after accident-. Witness had attended the patient constantly from the last examination till the present tima. He had no doubt that the patient was suffering from concussion of the spinal cord. It was what might be called a typical case. To his Honor: From what witness observed on the 25th April, he was satisfied that the patient's present- condition wa3 the result of the original accident. Mr Macgregor: What do you say, doctor, as to the patient's prospects of recovers ? Witness: It is a very hard thing to say. It would be a very hazardous thing for anyone to do to say definitely what tha prospects of rer covery ar9. In any form, concussion of the spine is a very serious injury, and I would call this a bad case. There has been improvement sinae July. On the 17th July the plaintiff was evidently better, and on the 27ch July I note^i: " Improvement continues ; all functions fairly Dormal; sleeps well; not so emotional." This gradual improvement is consistent with concussion of the spinal cord. The general tendency of cases of concussion of the spine is that they are of a fluctuating character. Mr Macgregor: To come to a more cheerful subject, doctor; what will the amount of your bill be, doctor ?—(Laughter.) Witness: I have not considered the question, I think it will be within £30.

By Mr Solomon: The question of conoussioD of the spine was surrounded by a great deal of difficulty and mystery. There might be cases where it would be vevy difficult to say whether there was or was not concussion of the spine. This was not one of those cases. Witness had not read Ericksea's treatise on spinal concussion. It was important in cases like this that a doctor should be satisfied by signs, rather than by symptoms, that a patient was suffering from organic injury. In the present case there was partial paralysis, want of sensation, want of motion—illustrated by the pationt being unable to move about smartly, and unable to lift his limbs—and lack of sensibility tv the galvanic test. That test was applied to ascertain the powers of response in the muscles to electric stimulus. When examined by Drs Colquhouu and Barnett thu patient described what would imply lack of muscular power. He complained of twitchings in tha legs, which were pot noticeable at the beginning of the examination, but were very noticeable afterwards. That was not necessarily due to hysteria. He had not noticed any hysteria in the present case. There were emotional tendencies, which might be evidence of hysteria, but were also evidence of spinal concussion. In a case of spinal disease there might be bysterjeal symptoms, which might be explained by the disease in the spinal cord.

Mr Solomon: In oases such as this where n tnaa has suffered sush a fall as this, does he not frequently exhibit symptoms that may be due either to organic injury or to hysteria ? Witness: Some symptoms. Mr Solomon: If they are due to hysteria they are of comparatively trifling importance, are they not? Witness! Comparatively trifling. Mr Solomon: Supposing the plaintiff's symptoms are due to hysteria, how long do you say it would take to get better? Witness: It would depend upon the amcunt of impression the hysteria had on the ipan'n mind. If he was ouffering from hysteria alone it is possible that in a few weeks he would be better, Dr Alexander stated that he was called in to examine the plaintiff, in consultation with Dr Macdonald, on the 23rd June. He found the patient to bo very emotional; he had pains in the back, going down the legs and up the neck into the head; he felt a constricting band round the chest, which came and went, lasting a few minutes at a time, and feeling as if a rope or cord were drawn suddenly rotmd his chest; he sometimes woke out of sleep with this constricting pain round the chest; ho had frightful dreams of falling. Witness understood from him that there had been a great deal of bladder irritability. Witness got him out of bed on bis feet, when he walked with difficulty and unsteadily. In turning to walk back from the end of the room he tottered very much, and took several steps to make the turn. He could not stand on either leg, tottered, and nearly fell in making the turn. Witness put him back in bed, and b« could nob raise either leg when in a recumbent position in bed. Sensation, which witness tried by pricking, was blunted in both legs, especially in the right. He said he had attacks of giddiness, was confused and forgetful, that he had numbness in the legs and a pricking sensation in them, that the legs felt heavy, end felt swollen —they were not swollen. That was the result of the examination on that day. Witness examined him again on the 27th June. He found the sensation distinctly diminished in both legs. There was paralysis of sensation. Witness examined the patient's limbs with an electrical onrrent. Thig was hardly felt in either leg or thigh. It was only felt when the sponges were pressed firmly in. It was not felt at all in the feet. The muscles of the leg and thigh hardly showed any response to the electrical shocks. They moved a little more when the electrical current was directed through the principal nerves. The muscles in the arms acted qnite freely to the current, but even tbere the sensation was somewhat blunt. Witness noticed spasmodic jerkings of the trunk and limbs after exertion, and the patient told him he had felt the constriction round the chest that morning— it had awakened him from a troubled dream. He could scarcely lift his leg from the bed or bend his knees, and he turned over with difficulty. The hand grasp on both sides was very weak. He complained very much of pain in the loins starting up the back. There was a gsneral tenderness, on pressure or tapping—witness might say, a sensitiveness—over the whole of the spine and over the muscles of the back. Witnes" of course got from him his previous history— the history of the accident and of the beginning of the symptoms. The conclusion witness came to was that he was suffering from spinal concussion—he had no doubt upon that point. 'Che distinctive symptoms were marked. The symptoms on which he most particularly based his conclusion were the paralysis of movement and sensation, the constricting band round the chest, the bladder irritability, the darting pains from the loins, and the sleeplessness and dreams of fright. It seemed to witness at that time to be a severe case of spinal concussion. He had seen other cases in private practice. They were not common cases in Dunedin. He had only seen a few cases and he had been in practice for 30 years. Tho symptoms he saw were consistent with the account that the plaintiff gave of the accident. Other cases that witness had seen had resulted from falls from buggies and falls downstairs. The progress of spinal disease was usually slow. He had heard and seen that there was improvement in the man's condition. In the condition he was in when witness saw him it was impossible for him to leave the house. It was very difficult to fix a time when the patient might recover, but recovery did not always take place. It had happened in these cases that there was recovery up to a certain point, but no further. He knew of a case in which there had not been recovery, the accident having occurred five ypars ago, and the patient being still partially paralysed. That case was, if anything, more severe than the present case— there were some very severe symptoms, and r; covery did not begin to take place for about • a year. The symptoms were rnther more i marked than in Bush's case, but not very much | more. In spinal concu-miou there were all I varieties of symptoms. The plaintiff was very emotional the first time witness saw him—he cried and thought he would not get well, he ! was very ' timid about getting examined—but jhe was not so emotional the second time. Emotion was one of tho features laid down as characteristic of cases of spinal ' concussion. Any case of concussion of the

spinal cord was severe. He agreed that spinal j concussion was exceedingly .'iffiauls of rimgnosis, ; but in this case the symptoms were sufficiently i marked to leave a conviction on his mind. Ihe i emotion that was noticeable in the patient might have been due to hysteria, but it might have been due to concussion. He did not think its presence was conclusive of anything. His fee would be two guineas for each examination By Sir R. Stout: Witness did not think the plaintiff would improve so quickly as he did, but that did not modify his opinion except as to the duration of the patient's suffering. He agreed with the statement that recovery was slow iv pronounced cases. He did not think thi: fact that the plaintiff had recovered so greatly withiu three weeks showed that he was suffering from something outside concussion of the spiue —namely, from hysteria or nervous disorder. He did not thiuk that where there was steady and continuous improvement, as ifl this case, it was evidence that the man's statement of his symptoms were exaggerated, nor of the presence of hysteria as well as of concussion of the spine. His Honor: Supposing that hysteria, apart from concussion, were caused by an injury, would it be probable that the symptoms would develop themselves at once or lie over for some while?

Witness: Ido not know, your Honor. To Mr Macgcegor : Witness was generally doubtful of the existence of concussion of the spine. He did not think it was possible for the plaintiff to simulate the constriction of the chest —it would be exceedingly difficult for a man iv Bush's position to invent such a marked symptom. . This concluded the plaintiff's case. At 6.5 p.m. the court rose till 10 a.m. next day.