CLAIM FOR DAMAGES.

Otago Daily Times, Issue 19800, 27 May 1926, Page 2

CLAIM FOR DAMAGES.

KING v. UNION COMPANY. APPLICATION FOR NEW TRIAL. DECISION RESERVED. At a recent sitting of the Supreme Court, William Joint King proceeded against the Union Steam Ship Company of New Zealand, claiming £IOOO damages for injuries received while in the employ of the company. Mr F. B. Adams appeared for the plaintiff, and Mr J. B. Callan for the defendant company. There was a special jury of 12 empanelled, Mr John Bews being chosen as foreman. ■ After the evidence had been his Honor submitted issues to the jury, which were answered as follows: — 1. Did the defendant fail to keep the moving parts of the teasing machine in the repair works so guarded as to afford adequate protection to the persons working the said machine or in connection therewith? —Yes. 2. Was there negligence on the part of plaintiff (a) by attempting to oil the bearing of the shaft without having first stopped the machine? —Yes. (b) By placing the ladder in the position in which it was when he was about to oil the bearing?—No. (c) By going near the cogs on the right-hand side of the machine with his apron tucked up as it was? —No. . , .. 3. Was the injury sustained by the plaintiff on August 21, 1922, caused by (a) the failure of the defendant to keep the moving parts of the teasing machine guarded as aforesaid? —Yes. the negligence of the plaintiff?—Yes. Or (c) the negligence of both plaintiff and defendant? —Yes. Or (d) Was it an accident without any negligence on the part of either plaintiff or defendant? — No. 4. What damages is the plaintiff entitled to recover? —£865 7s 6d. After his Honor had read over the answers to the issues submitted he remarked to Mr Adams: “That is a verdict for the defendant." , Mr Adams said that was so. It was then arranged that the case be adjourned until his Honor’s return from Invercargill, when legal argument as to entering up judgment would be taken. _ The case came before the court again yesterday .morning, when an application was made on behalf of the plaintiff for a new trial on the grounds that the verdict was against the weight of evidence, and that the issues submitted to the jury were defective. Mr Adams appeared in support of the application, which was opposed by Mr Callan. , , In the first place, Mr Adams contended that the verdict of contributory _ neghgencc was against the weight of evidence. The question answered by the jury* when examined, had to be modified before it could be applied to the facts of the case. The question was whether there was negligence on the part of tlm plaintiff in attempting to oil the bearing without having first stopped the machine. His Honor: riwas about to oil the beating when his apron was caught. Mr Adams said the plaintiff had moved to the foot of the ladder, which he was starting to climb. . ... His Honor: Db you suggest that that was not an attempt to climb the ladder? What the jury meant was that there was negligence when the plaintiff was about to oil the machine. . Mr Adams said the finding of the jury had to be considered and applied in view of the facts of the case. His Honor said the facts appeared to be perfectly simple. The plaintiff had started to climb up the ladder in order to oil the bearing, and the jury said that was negligence. _ Mr Adams said his point was that if the answer stood it could only stand by reason of something proved, and all that was proved was that the man went to the foot of the ladder and started to climb the ladder. , , . . His Honor: Was not that the beginning of the attempt? Mr Adams suggested that the question might have been framed by asking if there was negligence in the plaintiff going to the foot of the ladder. His Honor: What you say is that he did not make an attempt to oil the bearing. It seems to me that the evidence on the point is quite plain. Mr Adams said Jie plaintiff passed into the space on the right-hand side of the machine, and started to climb the ladder, no doubt with a view to oiling. If there was negligence he submitted that it must be found in the plaintiff’s act in starting to climb the ladder. Strictly speaking, there was no negligence so far as the oiling was concerned. The question submitted to the jury placed emphasis on the oiling, whereas what the plaintiff had done was merely to move round to the foot of the ladder. The act of the plaintiff in going to the foot of the ladder was the same as would have been performed- for any purpose apart from the oiling of the bearing. His Honor: If he went to the ladder for any other purpose he would not have started to climb the ladder, Mr Adams said the man had put only one foot on the ladder and had taken the other from the ground. In doing what he did the plaintiff had incurred no greater risk another man would have incurred at any time in going into that space for any purpose, and Mr Adams submitted that viewing the evidence as a whole it was not reasonably open to the jury to take the view it did. His Honor said it seemed that the matter was one entirely for the jury’s consideration. Mr Adams said there was nothing in the evidence to place the plaintiff in a different position from any other man who went to the foot of the ladder for any other purpose. His Honor said the only purpose for which the ladder was used was for access for oiling the machine. The plaintiff wap starting to climb the ladder for that purpose. Mr Adams submitted that the purpose the man had in mind was not the test of the matter.

His Honor Baid that if the plaintiff had not set out to oil the machinery he would not have been caught. What other purpose could he have gone to the foot of the ladder for?

Mr Adams said he could suggest no purpose. If the evidence showed mat the accident occurred when the man was mounting the ladder that would introduce the question of the ladder, but this man did not mount it at all. The accident occurred while the plaintiff was practically at ground level, and it might have occurred quite apart from the ladder. He thought the evidence showed quite clearly that the ladder had nothing to do with the accident except that the man had to climb it to oil the bearing. If his Honor was satisfied that the verdict was against the weight of evidence the plaintiff would be entitled to a new trial. Ho contended that the jury had demonstrably applied a wrong standard, and also that the findings were defective and inconsistent. He submitted that if the court was dissatisfied with the verdict and was in doubt whether the mind of the jury was applied to the proper question a new trial could be ordered. After reviewing the evidence at length Mr Adams said he took it that a new trial would apply to J .ie whole of the case. The jury had stated that the cogs needed guarding. The plaintiff would not be guilty of negligence if he incurred a risk which the employer left for him in the unguarded cogs. His Honor said he did not think that point would be disputed. Mr Callan said it was claimed that tho plaintiff should have stopped the machine by using tho switch which the emoloyers provided. Mr Adams said tho defendants should show that tho plaintiff had failed to carry out some duty which the law made it incumbent upon him to recognise. He did not think the jury could say that the plaintiff was under a legal obligation to switch off before piocceding to oil the machine.

Mr Callan said the argument on the other side appeared to have taken the shape of a mild criticism of the form of the issues submitted to the jury. The issues in manuscript form wore submitted to counsel at the conclusion of hearing the evidence, and Mr Adams had had amp!.' opportunity of assisting the court to direct the mind of the jury to the question of contributory negligence, Mr Adams explained that his mind was occupied with other matters, and he did not realise the full significance of the isi»es until the iury had retired. Mr Callan’said it was quite wrong to suggest that the verdict of the jury on the question of damages was anything like the collective finding of the jury. The Ihiion Co. did not ask the men to work in danger, but had provided a switch to slop the machinery so that danger could be avoided. The iurv might have affirmed the general proposition that no roan should go on the right-hand side of the machine for gny purpose while the cogs were in motion

and that he should have used the switch* When a man was caught in the position in which King was caught his resistance was very much reduced. It was open to the jury to say that by getting into the position in which he was caught King committed an act of negligence. The plaintiff’s own evidence failed to show any urgent necessity for oiling (he machine at all. It appeared as if the men had got into the habit of oiling the machine without stopping it. There was no ground for saying that the jury had applied anything but the right standard on the question of contributory negligence. Where the finding on two issues appeared to bo irreconcilable, it was for the court to try_ to ascertain the dominant issue. The verdict should not be upset unless it was one which the jury could not reasonably have come to on a review of the whole evidence. In this case the evidence consisted very largely of facts. It was quite wrong to endeavour to suggest that the fact that the jury found for plaintiff on the first_ issup_ made the second finding in any way inconsistent After Mr Adams had replied briefly, _ his IT on nr said he would take time to consider his decision.