WEDNESDAY, MARCH 18TH. The Court sat at ten o'clock.

Otago Witness, Issue 851, 21 March 1868, Page 8

WEDNESDAY, MARCH 18TH. The Court sat at ten o'clock.

COMPENSATION FOR PERSONAL INJI3RT.

Latham v. Macandrew (Superintendent).— (Special Jury.)— The plaintiff is William Latham, who was a porter at the Provincial Hotel, and the defendant is James Macandrew, sued as Superintendent of Otago. Mr Smythies appeared for the plaintiff; and Mr James Smith was N for the defendant.

Mr Smythies opened the case on Tuesday afternoon. The plaintiff claimed LSOO, as compensation for injuries, amounting to permanent disablement, the accident from which the injuries resulted being alleged to have been caused by the neglect of the defendant, or his servants, in not fencing the cutting made in Bell (or Church) Hill.

On the sitting of the Court to-day, Mr Smythies asked that the jurors might be allowed to view the ground ; and His Honor consenting, the jurors were sent, in charge of the Sheriff, to Bell Hill, where Constable Fair pointed out the spot from near which the plaintiff must have fallen, judging from the spot at which he (Fair) found the plaintiff lying after the accident.

On the Court resuming, th« following evidence was given :—: — John Millar, C.E. : I was for several' years engineer to the Townßoard. I know Bell Hill. The plan handed to me was made by myself, from actual survey. Before Dowling street was cut through, there were steps up to the Hill : the position of the steps wastvvicealtered before they were put as they now are. From the top of the steps, there was a fenced path which - led across the Hill and to Moray Place. The path was destroyed by quarrying. There were steps in Moray Place, put up by the Town Board, in 1864. There was a handrail for about a chain or a chain and a half from the top of the Moray Place steps, a path being left between the rail and the fencing of the properties. That rail was extended, two chains or more, by private subscriptions —as I understood, between Mr Raphael and other residents on the Hill. The house Mr Raphael had is shown on the plan. The path went close by it; and when I made the plan, there was a clear fall of 43^f t. from close to the house. There tire no made paths on the Hill : they are simply lines trodden down by the public.

Henry Bayliss, accountant : I used to live on Bell Hill. I knew the path shown on this plan, as running from step 3to steps. There was a handrail to the path, which was unquestionably ■ a protec ion. The rail was there when I left the Hill, in 1865. My house has now been pulled down. I frequently used the path. John Turnbull Thomson : I am the Engineer of Roads and Works in Otago. I know that there was such an Ordinance as the Otago Harbor Improvement Ordinance, 1862 ; but I never read the Ordinance. A.s 1 understand, the Superintendent took possession of Bell Hill from the Church Trustees. The Superintendent entered into a contract with Lonnie and Co. to cut the Hill down. There was before that a contract with Mr Mackenzie. Lonnie's contract was performed ; the earth, &c. , being used to reclaim the harbor. Since Lonnie's contract, the work has been continued by the prisoners : it is generally understood that that has been done by the order of the Superintendent. I do no more as to these works than generally indicate what shall be done — or, rather, what I think it' is desirable should be done. I have seen copies of a plan of the works ; and if the plan itself is not in my office, I presume that it is with the Executive. I do not know whether the plan is signed by the Superintendent and the members of the Executive.

Edward Hulme, surgeon to- the Provincial Hospital : I recollect the plaintiff being brought to the Hospital, about May last. He was very much bruised on the

eft side ; tlfft>,or three of hia ribs, on that ti&e, -wejj^jgjs^ij^uwl.tbejhoulder- joint was very much injured, but there was, no iracture or dislocation. He complained rery much of pain in the abdomen, and bhere appeared to be displacement of some of the abdominal viscera. He was in the Hospital until -January last — eight or nine month's.-, He left it with some impairment in the motion of the left shoulder joint ; «snd he complained still of pains in the abdomen. The impairment 3eems to be permanent ; and Ido not think he will ever be /able to do hard work with his left arm. The injury to the abdomen may also be permanent ; and I think it would prevent his doing hard work. Shortly before leaving the Hospital, he complained of pain in the left knee, as if there was chronic inflammation there. John Outran^ overseer of the works on Bell Hill : L take my instructions from the Governor of the Gael. I have been overseer foe- two years and two months. I believe that the Moray Place steps were removed by the Corporation : the ground where they stood is cleared away to the permanent level. When I took charge, on that side of the Hill, the top flight of steps from Moray Place, and a handrail had been removed. I heard of a man falling over the cliff last year : there had not been a railing at that point for more than twelve months. I measured where 1 was told the man fell, and found the height to be something more than 43ft. I never saw a notice up that the path from Moray Place had been stopped, nor was there ever a light that T know of. At the time the man fell over, there was a " batter " or slope on the face of the cliff — he must have fallen on to a ledge, then to a second, and then to rubbish left after Lonnie's contract. The removed stuff was partly put into the harbor, and partly on the Swamp. By Mr Smith : I believe that, the rail referred to was brought down when Lonnie fired a large shot — six holes, in which there was about half a ton of powder. It reached 1 ack further than was expected : and it also took down the chimney of the house now near- the edge.

"William Latham : In May last, I was a waiter at the Provincial Hotel. I know Thomas Hancock. He gave me a letter to take to Bell Hill. 1 went up the steps from Dowling-strcet. I had been that way before, but not for a long time previously. When I was there before, there was a railing along the path. I did not know that it had been removed. It was on the evening of the Ist May, that 1 went on the Eill, and it was very dark After delivering the letter, I went along the path as a short cut to Moray Place. I got to the house marked A ; and, having taken one or two steps, I fell right over the cliff. The first thing I knew after that, was that a policeman was standing over me with a light. I asked to be taken to Hancock's ; and from there I was taken to the Hospital. I siiffered very much, and I am still obliged to wear bandages round my belly. I cannot lift my left arm, though I can move it. On the Ist May, I was in good health, and was an able-bodied man. I was earning 30s a week wages, and what was given me by gentlemen leaving the hotel would average 30s or 40s a week. I am now able to do only very lighf. work. I am taking checks at the Theatre, and I get my board and lodging at the Provincial.

By Mr Smith : I had been twice or three times" across the Hill between the two flights of steps before the time of this accident. The letter 1 had to deliver was to Miss . It was perhaps 18 months previously that I went over the Hill. I knew that works were going on on Bell Hill during that time. I went 20 or 30 yards, perhaps, after delivering the letter, before I fell over the cliff. On the two or three occasions when I previously crossed the Hill, it was daylight : I never noticed anything particular, except that I went along the track or path to the Moray Place steps. I noticed rails : but I only know that they extended some distance from the top rail of the steps.

Joseph Massey, Town Clerk : Sections 7, 8, and 9, Bell Hill, belong to the Corporation, and are let. I know that the Town Board put up steps from Moray Place and from Dowling street, for the "convenience of residents on Bell Hill.

Patrick Fair, police-constable : On the evening of May Ist, I found the plaintiff at the foot of Bell Hill, on the works from Moray Place. He told me he had fallen over. It was between seven and eight o'clock when I found him ; and the evening was very dark and foggy. Thomas Hancock ; On the Ist May, the plaintiff was staying with me. In the evening, I asked him to take a note to Bell Hill ; he was perfectly sober. Louis Court: I keep the Provincial Hotel. The plaintiff had been in my employment five years, and he had left me only three days when this accident occurred. I gave him 30s a week and his board and lodging ; and he got perquisites

besides. He is now a check-taker for me t< at the Theatre". rgiyehim'only his board o and lodging, and a little money now and b then for tobacco. It is rather as charity than anything else. I took him out of "V the Hospital. He could not now take p ; his former position. to John M'Cubbin : I have known the p plaintiff 12 years, here and in Melbourne, a He was formerly in my employment ; and t I paid him L 2 a week. He was an able- r, bodied man until this accident. i This was the case for the plaintiff. f Mr Smith moved for a non-suit. ' The I action was against Mr Macandrew in his a official capacity; and the plaintiff had ■? not proved notice of action, as required t by the Provincial Law Suits Act. ] The Judge : I think want of notice j should have been pleaded. s Mr Smith : It has been decided in this £ Court that such a plea was not necessary. \ — (Steavenson v. Harris.) < The Judge : I will take a note of your ] objection; but Mr Smythies may prove < notice now, if he can. < Mr Smythies said that he was much surprised at the paint bain? taken ; for ] notice was, in fact admitted, although he ; was (by an understanding) not at liberty ■ to put in the letter containing the admis- < sion. The letter to the Superintendent, giving notice of the action, was put in. Mr Smith objected that the notice was ; insufficient, as it did not " clearly and : explicitly state the cause of action. " The Judge thought there was sufficient ■ to show the nature of the action. Mr Smith : I shall be content if your Honor will allow me to move on this i ground, as well as the one of which you have taken a note". ; The Judge : Yes ; but 1 must say that . it seems a hard objection to take in a case . of this sort. Mr Smith took the objection that there I was no evidence to connect the Superint tendent, or Mr !*• acandrew in his mdiii vidual capacity, with the works on Bell : Hill; and that, therefore, there was l nothing to charge the defendant with a s neglect of duty. ! The Judge : I have not heard Mr Macandrew's name in the case, until '. now. Mr Smythies : He is sfaed as Superin- • tendent. i The Jxidge :No doubt, we all know ; that Mr Macandrew is Superintendent ; ■ but Ido not know that I can take judicial s notice of it. i Mr Smythies : The Ordinance under > which we sue authorises the Superinten- [ dent to do these works. The Judge : But we do not know ; Mr Macandrew to be Superintendent, . here. , Mr Smith would admit that Mr Macb andrew was Superintendent. But there r was no evidence whatever of neglect on ) Mr Macandrew's part, either in his indi- [ vidual or his official capacity. 1 The Judge : I think the evidence . shows that at the time of the accident he 1 had control of the works. The prisoners . were employed on the works, l Mr Smith : The Governor of the Gaol 1 is a General Government officer, and the I prisoners are under his charge. Any t evidence of negligence is directed rather c to the Governor of the Gaol than to the . Superintendent of the Province or Mr :. Macandrew. d The Judge : I think there is evidence •- +hat the Superintendent took over the works, after the completion of Lonnie's •r contract. c Mr Smith addressed the jury for the is defendant. The Superintendent, as a man, no doubt sympathised as fully as is any man in the community ; but Mr I Macandrew, as Superintendent, was II bound to watch over the application of 0 the puHic funds, against which any p, damages now awarded would become a ie charge. It was to be regretted that the y plaintiff had been advised to set in motion sr the expensive machinery of the Supreme 1 Court. He should rather have prepared

a temperate statement of his case, and procured that it was submitted to the Provincial Council. Then, no doubt, moderate compensation would have been awarded to him, if it was found that he was entitled to compensation. It was for these reasons that any technical objections were sought to be taken advantage of. In the meantime, there was a defence to this action upon the merits — namely, that, however severe the injuries^ which the plaintiff had sustained, and however much to be lamented were their consequences, they had really resulted from the plaintiff's own want of caution. — Wilkinson v. Fairley (32, L.J. Ex. 73.) There was another ground upon which the plaintiff could not recover against the Superintendent — the Superintendent, in dealing with this Bell Hill property, was not interfering with aDy public right of way. The Judge : Ido not think that that is sufficient to prevent the plaintiff from recovering. Mr Smith : All the cases cited by Mr Smythieß had reference to leaving unpro-

t&ctecL excavations in highways, oxJeavbg, 'open bridges over canals, across whicn bridge there tow a public road or way. ! The Judge: Supposing that a Water Works Company, or a Gas W/orks Company, had a right to enter land belonging to me, for the purpose of laying down pipes ; and that, in so doing, they cut up a private pathway of mine, to which my tradesmen had a right of access by my permission. If the Company left a cutting in that pathway, unprotected by some fence, and. unlighted, and a tradesman, or his servant, in bringing to my house some article for me, fell into the cutting and was injured : surely, that would-be enough to entitle him to recover compensation. No doubt, in the case of a public highway, a light or a fence would be more necessary than in a private pathway. I will give you leave to move, however, on the ground that, to enable the plaintiff to recover, there should have been, across this Hill, some kind of right-of-way actually dedicated to the public, by presciption, or by grant.

Mr Smith submitted that the accident had resulted from the plaintiff's own neglect. The plaintiff had not been across the Hill for 18 months ; he knew that during that time works on the Hill had been constantly going on ; the evening was "very dark," according to the plaintiff's evidence — " very dark and foggy,"' accord irg to the evidence of the constable : yet the plaintiff went across it without inquiry whether the footpath which he had. seen 18 months before, and known to be dangerous, but of which i he had not taken particular notice, was or was not still in existence. If the jury took this view, then, while the plaintiff was to be much sympathised with, the pnblic funds were not to be made liable for the consequences of his negligence. Mr Smythies complained that actions against the Government were always defended — and too often successfully so — on purely technical grounds. Instead of such a course being adopted in the present instance, it would have been much more to the credit of the Government if the action had been avoided by the acceptance of the condition which the plaintiff offered — that the Government should (as no doubt they most easily might have done) find for him some light employment, so that he might have earned his own living. There had been negligence in this case — not in the plaintiff going along a public pathway which he had traversed several times previously ; but on the part of the defendant, or his servants, in not fencing the most dangerous, and abrupt, termination of the footpath which had. resulted from the works on the Hill. A simple railing would have saved the plaintiff from permanent bodily disa lement, and would have saved the defendant from the present action.

The Judge said that the action was for compensation for the alleged consequences of the deiendant's negligence in leaving a trench, which had been previously cut across a pathway, without light, or fence, or protection of any kind, by reason of which the plaintiff, lawfully passing along the footpath, fell over a precipice. We might all be excused for feeling very great compassion for this poor man, the plaintiff ; but the case was not to be decided on feelings of humanity, but simply on the cold question whether the injuries which the plaintiff had suffered could be traced to the negligence of the defendant. As to technical objections, a Counsel, not instructed to make admissions, was bound by his duty to his client, to take every tion that might be open to him. 'Could the control of these Bell Hill works be traced to the defendant ? There was evidence .that the works were, in 1864, j carried on by contract ; but that, before the accident happened, the contract was at an end, and that the Superintendent originally took possession of Bell Hill, for the purpose of these works, by the permission of the Otago Church Trustees. Under these circumstances, the jury would probably have no doubt that, at the time of the accident, Mr Maeandrew, in his official capacity, had control of the works ; and, therefore, that whatever duties were cast upon a person in that position, were cast upon the defendant. There could be no doubt as to the plain tiff's injuries : the wonder was that falling 43ift. he was not crushed to atoms ; and the only explanation why Buch was not the result, wa3 given by Outram,- who said that the fall must have been from the top to a ledge, thence to another ledge, and thence to the foot of the Hill. The law was this — If, by the exercise of ordinary caution, a plaintiff might have avoided the accident sued for, then, although there might have been some negligence on the part of the defendant, he was not liable ; but if decided negligence on the part of the defendant was proved, then the plaintiff was not to be deprived of his right of action, although there had been some amount of imprudence on his part, if, in the main,

the jury were of opinion that the negli-

genceof-the defendant caused the accident. There « rulcl. hardly be a dcubfc that, this dangerous cutting- existing on Bell 1 Hill, there ought to have -been such, protection to the public— either a watchman placed near the edge, or a. notice of the danger put up, or a' fence erected, or a barrier that would have stopped the footpath altogether. Mr Smith said that any man of ordinary prudence, who lived in Dunedin and knew of the works, would have been cautious in crossing the Hill ; and, no doubt, a very prudent person would not have gone along a footpath in which he knew there might be danger, when he had not been along it for 18 months. But did the plaintiff, by going over this footpath, wholly contribute, by his own negligence, to an accident which, by, ordinary prudence, he might have avoided. Firstly, there were two sets of steps tcr this Hill, put "there by a public authority ; and which, to use a common phrase, seemed to say to passera-by, " Come and use me." It was true that, when the accident happened, the plaintiff was not going over a public highway — not over what the law called " a way," over which the public had a right to pass for all time. It was a mere permissive public way : but that it was sanctioned by a public authority, was proved by the evidence that the Corporation placed steps at each end of it. There had been no attempt to stop the use of the path : there was a permissive use of it, until the works had been completed, and other modes of access to the properties devised. It was for the jury to say whether the plaintiff's conduct was so negligent as as to be really and truly the cause of his own misfortune. If ho might have avoided it, and wholly brought it on himself, he could not recover ; but if the jury should think that the plaintiff had a fair and reasonable right to use the way — if they thought that the steps were of such a kind as almost to invite use of the way — and if the jury thought also that there was negligence or the part of the defendant as having control of the works on the Hill — then it would be competent for the jury to find for the plaintiff. The question of damages was wholly for the jury ; but they should be reasonable, having regard to the natiire of the accident, and it 3 consequences.

The Jury, after a short absence out of Court, found for the defendant — damages, LSOO.

The jury added a rider, to the effect that they thought the Government to blame, for the dangerous state of all the footpaths on Bell Hill.

The Southland Times of Monday gives thefollowing account of — "A most determined act of suicide, which wa3 committed at the Newmarket Hotel, Dee street, during the night of Thursday last, or early on Friday morning. The deceased, a man named William Johnston, was staying at the above hotel on the night in question, and on the following morning was found lying on the top of the bedclothes dead, a bullet wound in his breast, and a discharged pistol by his bedside. Ko noise had been heard during the 1 night ; but tbis may be accounted for by the fact that the muzzle of the pist, >1 must have . been held close to the body, which would considerably muffle the report. Johnston, it appears, had been shearing for some time at Mr Dundas's station, and had just come to town. It is said that his eccentricities were frequently remarked by his mates and others where he was at work, and such as to make it almost certain that he was of unsound mind. A coroner's inquest was held on the body on Saturday, but nothing was elicited to show what had prompted the act. It appears that the deceased had only come into town on Wednesday afternoon, and went, in company with three mates, to the above hotel. He appeared rather excited and a little in liquor, but nothing to create apprehension. He remained about the house, going out and in. all day on Thursday, eating very little, and drinking nothing but ginger wine and lemonade, an? retired to bed quite sober about 11 o'clock, and was discovered by the landlord of the hotel, Mr M'Carrhy, when he went upstairs to call him to breakfast next morninfr. in the position already stated It would appear that the man must have deliberated upon the act for some time, as one of the witnessts at the inquest, Mr Wilson, ironmonger, gave evidence that he recognised the body as that of a man who had purchased a bullet mould, some caps, and a flask of powoer from him on tbe Wedxttsday afternoon; he had also begged a piece of lead to make a bullet or "two, al eging, in reply to Mr Wilson, that he was going to Eiverton next morning and wanted to shoot pigs. Un that same evening, about ci^ht o'clock, he had requested Mr M-icarthy to light a tire tor him in the kitchen, which was done, and he remained alone for about three quarters of an hour, occupying the time, no doubt, in casting the bullet with which he took his own life, as a pan was discovered in which lead bad evidently been melted, and a number of bu lets were found on the body of deceased. The, jury retun ed a verdict in accordance with the facts stated, viz., tbat the deceased William Johnston, had committed suicide by shooting himseU while in a state of temporary insanity."