KAITANGATA MINE FATALITY

Otago Daily Times, Issue 17726, 10 September 1919, Page 8

KAITANGATA MINE FATALITY

.«. THE COURT'S DECISION. JURY'S VERDIOT STANDS. Arising out of tho <lc;itli of her huslvnid (James Archibald Wen), Kliznbeth Weir 10-ct-iitly brought nn action for damages in tho Supreme Court against the X (MV Zealand Coal ami Oil Company, am] was awardod £1500 by Hie jury. The p' fL inliff\ s <l ;l ini set out that while deceased was at work in tho mum at Kaitangata he sustained injuries which resulted in his death. The plaintiff allogcd that these injuries woro caused by tho failure. 011 tho part of defendants to observe roasoi'.nblo and proper precautions for tho prevention of accidents in the mine and claimed to recover £2500 damapes. At tho trial certain issues wore submitted to the jury, lheso were answered in favour of tho plaintiff, leave being reserved to tho defendants to move, to set the judgment asrdo and to cuter judgment for tho defendants on the ground that the answer to issue 4 gavo tho defendant.? a Tight to such judgment. Tho defendants moved for judgment in accordauco with this reservation and asked in tho alternative for a nonsuit' and failing that for a new trial. ' His Honor Mr Justice Sim yesterday gavo judgment on tho motion, in the course of which he said: "There was no direct cvidenco p. 3 to tho exact circumstances in which Weir sustained hie injuries. Counsel for tho plaintiff propounded the theory that Weir must have been injured by being crushed between the front box and the roof of tho drive, which it was said was dangerously low at the place in question. The defendants denied that the roof was low at th-it place, and alleged that Weir sustained his injuries through being caught in the screen or brattice while riding improperly and negligently on tho top of tho front box Iho accident having been admitted, tho effect of eection 60 of tho Coal Mines Act, IWJ3, w-'s to throw on iho defendants tho onus of proving that there isj -.ot bt-cn any negligence, on their pavt. it >v;,s rot tor tho plaintiff to prove ho 7 the accident happened, or to propound nny tliporv on the subject. It wa 3 for tho defendant* to explain it, ami to satisfy tho jury It:at it r.:-pi'« iml without any negligent tn the part of the defendants. The fcn-t". ifsuo euiroitted to tho jurv was this-' If ho (Weir) was riding on thn havinpi r-j o, did h<; bt ve a written permit from tl.o mnnaci-.-r tj c!.> so?' The answer w;i.» : No written ■iithority. but the eoir>;. n-v was awnro <.f j

Ins so riding.' It is en this tn.v. ijiG claim to have <.i.trierl for the defendants is founded. Clausp 68 (2) of tho regulations made in June. 1915, ur<cior the Coal Mines Act provides that no workman other than tho rope attendant shall ride on any haulage rope, and then only with tho -written permission of tho manager This, it WK argued, mado it unlawful for Weir to nrle on the haulage rope, and as this unlawful act on his part must have causea or contributed to tho injuries he sustained, tho plaintiff was not entitled to recover any damages. The regulation is not aa clear as it might ho, bat I take it to menu that a ropo attendant may ride on the haulage ropo if ho has tho written permission of tho manager to do so; while it is unlawful for any other workman in any circumstances, to ride on the hauia"o rape _ Nov.-, Weir was a ron 0 attendant, ana his unlawful ait. thc-rofore, was riding on tho rope without havinir first obtained the written permission of the manager. It is difficult to see how the failure to obtain this written permission conld liavo contributed in any way to the accident by which Weir was injured; but if the defendants desired to suggest that : t did. the question ought to have been submitted to the jury, and a findincr on tho subject obtained. The issues submitted to the jury were approved of by counsel. The fourth issue was added at the request of counsel for the defendants, and it -was not suggested that any further issue on tlie subject should be submitted. The

plaintifF is entitled to have all questions of fact determined by th 0 jury. It is for tho jury to say whether and how far the evidence' in a case is to be believed. and plso to say what inferences arc to bo drawn from the facts proved hy tho evidence. A ' defendant having: failed" with one defence ! before th c jury is not entitled to to to ! the court in banco with another defence and ask the court to draw the inferences of fact necessary to establish such a new defence, because the court cannot usurp in ' that way the functions of tho jury. There is no finding here bv the jury tW. Weir's failure to obtain written permission to ride on the haulage rono caused or contributed in any way to his iniuries. aiui

without such a find in ir it is impossible for tiio defendants to succeed on this branch of the motion. "The next branch of tho defendant's motion is tho application for u, nonsuit. The further ground stated in the notice of inotiou is that there was no ovideuco of negligence- on tho part of tho defendant, it.s ForViir'JU, or agents. Sir .'lobn Mncdregor (for tho defendants) cited a. number of uuthorities as to what was evidence of negligence in such a case. But any argument l&scd on these authorities can succeed only if section 60 of ' The Coal. Mines Act, ISGB.' is ignored. By thnt section tho accident itself is made prima. facio evidence of negligence on the part of tho defendant, and tho accident 'u this case having , been admitted, the jury were entitled to award damages to the plaintiff, unless the defendant satisfied them that the injuries to Weir were caused without any negligence on tho part of the defendant. It is difficult to see how there can be a, judgment of a nonsuit in any cise to which section fiO applies; but, if there can be, tho defendant bas not made out any ground for entering such a judgment in the present case. "There remains, then, for consideration tho application for a new trial. . This is : basid .in tho ground that all tho findings, , except as to damages and as to Weir's j failure to obtain •written permission to rido \ on_ tho rope, wore against the weight of • evidence. Ho far as tho h'rst issue is concerned, lhero is the further ground that the finding is so defective, that judgment cannot bo given upon it. In dealing vsjth the last point, Mr John MacGregor contended that tho jury refrained from answering the question put them. I cannot' agrco with that interpretation of tho jury's answer. '■ Looking at tho way in which tho caso was put before the jury by counsel, it is clear, I think, that the virry intended to negative tho view propounded by tho defendants and to affirm that put before them by tho plaintiff —namely, that Weir was riding on the rope, and not on tho box. It was common ground that up to the dato of tho accident it had been tho regular practice in tho mine for the roivj attendant to rido on tho haulago ropo in front of tho box with one foot on tho ropo and the other on tho buffer of tho box. Tho answer of tho jury is, in effect, a finding that ou the day in. question Weir was riding on tho haulage ropo in the ■usual way. There was no direct evidence to show that he was riding in any other way, and tho finding of tho jury was fully justified , by the evidence. The statements made by Weir to Constable Turner and Mr Edwards do not mean necessarily that he was riding in other than the usual way, and it was for tho jury to say what these statements meant "Tho next answer attacked by Mr MacGregor was that given to issue 5. There was no evidence, it was argued, to justify tho_ finding , that Weir had been crushed against the roof. Thero was no direct evidence as to tho way in which Weir's injuries were caused. Tho evidence of the doctor was that lie had been crushed in the region of tho pelvis, and this was admitted by the defendants in thsir statoI ment of defence. In tho statement mado by Weir to Constable Turner, and whinh counsel for the defendants invited the jury to accept as entirely truthful, he gave thi'3 account of tho accident: 'When coming through the screen near the- winch t\f screen caught me on the head and turned me over on my stomach, pulling mo against the boxes. I am not certain whether I struck tho roof or not, but think I d : d.' There was evidence, therefore, from which the jury might conclude that Weir had struck tho roof, and, looking at tho naturo of his injuries, they might not unreasonably conclude that they must have been caused by Weir being crushed between the roof and the box. If, therefore, the onus of proof 'with regard to this issue rested on the plaintiff, it cannot b? said Mint the answer _ of tho jury is one which the jury, viewing the whole ■ of the evidence, reasonably could not properly have given. But it was not for tho plaintiff to prove affirmatively that the injuries must hare been caused in this way. It was for tho defendants to account for the accident, and to show that it had been caused without negligenco on their part. If the defendants failed to satisfy the jury on the subject, then the jury were entitled to award damages to the plaintiff. The theory pro . pounded by th c defendants was that Weir ' bad been riding on tho front top od.tro of the box. and while in this noeifcion had been pulled into the box by the screen. But this theory seemed quite inadequate to .tc- ' count for the peculiar position of tho injuries on Weir's body and for the naturo of these injuries. It is not sm-prisinsr. therefore, that tho jury preferred tho theory propounded by the , plaintiff, although th-it had difficulties also. It was for tho de*

fendants, however, to clear the matter up, and m that way to negative negligenco on thoir part. If tho matter was left i n obscurity, then it was so much tho worse for tho defendants, for the onus thrown on thorn by Brctioa 60 had not been discharged. "J hen it was argued that the. finding, in answer to iixmo 6. that tho drive was dantferoiialy low r.t tho i)Uco where Weir -was cTusilied, wua ;iguinr,t tho weight of evidence. Ihe defendants wert. tumble to <rivn any evidence as to tin? cmic.t height of the drive nt this point, laxmhisi> on the after tho accident 11 considerable rmantity of coal was removed from th<> roof at this j very point. This was done in direct contravention of subsection f> of section 6?, of 'The Coal Mines Act, lOOtl,' which provides that tho pirt of tho mine v.-hero an accident attended with serious injury to any person hos occurred shall not bo interfered with until inspected as therein mentioned. It was oprn to tho jury to regard this occurrence wit.h β-ravo f,ur-nicion, njid to treat it as discrediting the cvklonr-e given by tho witnesses for the defence, as to the height of the ronf ci thm point, particularly as some of theso witnesses liad to admit also that the evidence they gavo at tho trial was , in direct conflict in some respects with tho J ovidenco which they had given at the in- : quest. It was for tho iury to say whether : or not they belioved tho evidence for tho defence as to tho hoitrht of the roof at tho place in question, iind, in tho circumstances, it is quito impoaubln to siy that tho jury acted unreasonably in declining to believe that evidence.. I think, therefore, that the defendants havo not mado out any ground far disturbing the verdict or tho judgment ; based on that verdict, and tho motion ja dismissed, with costs, £10 103, to the plaini tiff."