SUPREME COURT.

Otago Witness, Issue 1897, 12 June 1890, Page 24

SUPREME COURT.

CIVIL SITTINGS. Wednesday, June 11. (Before his Honor Mr Justice Williams and a common jury of four.) BHSSIK FERGUSSON HUME V. THE TAIKBI AND PKNINSULA. MILK SUPPLY COMPANY (LIMITED) AND ROBERT ; LANDRBTH AND MATTHEW CLELLAND. Claim, JBoOO damages. Sir K. Stout appeared for the plaintiff, Mr Chaj> FZirpf h TO ™l» n y.Mr Solomon for the defendant Kami ' J< Ma °£ re g° r for defendant had* ™fti menfc ° f o'? 1 ™ »t forth that the plaintiff had met with an accident and sustained very serious h^vrnV^JW"!?" 0 ' the defendants placing or PenSL vf^ fO fH hor n' milk cans on fcne Bid e of the th a nlaintmt V he cx P° BUre <* these cans causing happen " e8 t0 Bhy and the accident {to alleged contributory negligence. the incorporation of the company, and the MllS Supply Company aleo denied that there were contracts between them and the other defendants while the other defendants admitted it. ThenatureoYtb l? contract he need not specify, because it had only a slight bearing on the matter. If the facts of the case were as he would open them, then the jury would simply have to consider the quantum of damages. The acoident which had happened to Miss Hume was peculiarly unfortunate and painful. Some sewn years ago when Miss Hume was on the voyage from Qlaegow to Dunedin she met with au accident that caused concussion of the apiue, the result of which was that she had been confined to bed for three years and then gradually had been getting stronger. | and last year she had been able to walk some d£ tance on level ground. She was able to say that the paralysis was almost gone. In order that Miss Hume migbt get the advantage of being in the open air, she had a carriage specially constructed with double action and india-rubber springs so as to prevent shaking and the liability to cause injury Miss Hume had gone to England specially to be taught what was called " voice cultivation." and durinp the last two or three yea™ she had been able to teaoh pupils singing and voice cultivation, and had got a great number of pupils and was handsomely paid for the instruction she gave; in fact, in the last quarter of last year she made about JBIOO by having pupils at her house. On the 9th of February last Miss Hume her afßtor, and two friends went for a drive down the Peninsula road. On the way down everything went right, the ponies being carefully trained and perfectly quiet - trained to stand engines, stone crushers, and almost everything likely to frighten hones. After they had passed, five milk cans were placed ab a turn of the road, and at the time the ponies were being driven back the setting sun was shining en these cans, which reflected it almost like mirrors, and tho flash striking the ponies eyes they swerved from the road, and ponies, carriage, and occupants went over the embankment and down it for a distance of about 7ft when thoy were stopped by a fence, or fatal consequences must have ensued. Miss Hume was thrown out of the carriage, her ankle was fractured, she lay therefrom 6 o'clock to 11, suffered intense agony. She had not yet recovered, and, though she might use her foot again as the joint waa not stiff, she was not well enough to be able to give evidence even at her own home. There were three defendants, and the Taieri and Peninsula Milk Supply Company owned the cans. The jury, the learned counsel remarked, would otart with this fao*', that no person had any right to put any obstructions on a road, and if this was done and an accident happened, those who were responsible for placing the obstruction there were liable for damages. There could be no doubt that the ponies shied and caused the accident because of thu cans being there, and if the jury were satisfied of this fact, no doubt the plaintiff was entitled to damages. The second fact was that the tins belonged to the defendant company and were to ba lifted by the company's van or by the contractor for the company. The cans were left in a place the company knew and approved of, and where they should not have been left. The excuse set up by the defendants was that there had been negligence on the part of the plaintiff ; but the allegation of negligence would ba completely negatived by the evidence, which would enow that the ponies were quiet, that they were properly harnessed and carefully driven. If the case was proved aa opened, the simple question for tbe jury would be what would be a fair sum to allow as damages, and the learned counsel hoped they would allow such a sum as would stop this very foolish practice of allowing cans to remain alongside the road.

The following evidence was called for the plaintiff :-

Sarah Hume, sister of the plaintiff, who gave evidence as to the accident, whioh occurred while Mr Mander was driving. Cross-examined by Mr Solomon, witness 6tated that Mr Taggart bad not advised her not to purchase tbe ponies because they were not quiet— he had said that he could not guarantee them, as he had never driven them. The ponies were going at an easy trot at the time of the accident. The cans were not underneath the bank She had never seen I'd lister catch hold of the reins when anyone else wae di iving. The ponies were at the time of tho accident yoked on different sides fr«>m those they were on when they first went out. By Mr Chapman : The ponips had b <•" '" fore yoked on different sides. Krnest Mander deposed to intimate knowledge of the ponies, which he had ti rtlned and had driven for six weeks before handii.g Ihemo/er to Miss Hume. They were perfectly quiet when ho handed them over. The carriage was going down hill at the time of the accident with the brake hard on ; th« ponies were going at an ordinary trot. Tho ponies were frightened &*, the sun shining on tho ("".a, first tried to stop and b>ck, and then shied with a long swerve, the carriage going over the bank. He did not think any driver cou'd have prevented the acoident. As the carriage went over he handed the reins to Mits Sarah J-'ume, and jumped out to go to the ponies' beads. He believed plaintiff jumped out at the same time as himself. By Mr Chapman : Witness saw the cms before the ponies shied. .Plaintiff did not touch the reins ab all, Witness had not, that he was aware of, complained that Misa Hume had caught hold of the reins .

By Mr Macgregor : Witness had never said that if the plaintiff had not seized tho reins the accident would not have occurred. He had never said that he would not drive ladieß any more because they always caught hold of the reins ; he said he would not drive ladies any more because one always got blamed for any accident. Leonore Horsey gave evidence as to being in the carriage at the timo of the acoident. Sho had frequently driven the ponies, which were always quite quiet. Dr Alexander gave evidence as to the nature of the injuries sustained by the plaintiff. The injuries were of a very severe character, and plaintiff could not yet bear her foot on the ground. The accident bad been a severe 6hock to her system. Plaintiff could not possibly leave the house at present, and it would have been injudicious to have her examined and cross-examined even in her own house, owing to extreme nervousness.

Matthew Clelland, one of the defendants, was called by Sir Robert Stout, and deposed that he sold his milk to the defendant company, hi 3 agreement with whom was simply verbal. The cans he used for the purpose beloDgad to the company. On the occasion of tho accident the cans had been left to be taken into town by the company's waggon. His agreement was a verbal one with the manager of the company. By Mr Chapman: The manager had not told witness that ho would have to deliver his milk ab the waggon. He was told to leave it at the side of the road.

Robert landreth, another defendant, was also called for tbe plaintiff, and deposed that he had been supplying the defendant compauy with milk for five years. Hlb arrangement with the company's manager was that he was to leave the milk at the side of the road for their van to pick up. By Mr Chapman : Witness chose his own place where to losive the cms. Had often found other cans there bfore his.

William Wright, in the employment of defendant Clelland, gave evidence a3 to having placed the cans on the side of the road.

Thomas r^andreth, son of one the defendants, gave similar evidence.

Alfred C. Hawkins stated that he had bren driver of the company's milk van, and gave evidence as to his custom of taking tho caiiß up from the side of tho road.

]*y Mr Chapnmn: Witueso was employed by Mr M'llwen, a carting contractor, and his wages were paid by him.

Robert Harvey, a settler, gave evidence of having been at the scene of the acoident soon after the

carriage went over the bank. He did not hear any statement .made as to how the accident occurred. The carriage was not upset, and thiß, witness thought, showed that it must have gone over the bank slowly. To Mr Solomon : Did not have any conversation with the driver. It was clear daylight at the time. The reason the carriage did not capsize was probably that the horseß went straight over the bank and then turned round. This closed the plaintiff's case. Mr Chapman asked for a nonsuit so far as the company was concerned, on the ground that the whole of the facts showed that the company had nothing whatever to do with the act complained of by the plaintiff. All that could be said connecting the company with the matter was that the company was the owner of the milk cans, and it could not be maintained that the other defendants were the agents of the company to commit a wrong by exposing cans or anything else in such a position as to cause risk or damage to others. The learned oouneel having argued the law point raised, Sir B. Stout replied that this was not a case of negligence, but of user of the highway, which was unlawful, and the point ignored was that the things found on the highway belonged to the defendant compauy, and were placed in the position directed by the company. The learned counsel also submitted that no complaint had been made by the company of their cans being placed there ; that the business was carried on for their own advantage as well as for the advantage of those who sold the milk, and that the mode of carrying on the business was to have the cans placed on the highway to bo taken away by them. Mr Chapman having replied, His Honor said : I will not withdraw the case from the jury, although it might be proper to give further consideration to the point raised by Mr Chapman at a later stage. At present it seems to me that as these cans were admittedly the property of the company, and as there is evidence to go to the jury that the cans were placed on the road by the direction or with the sanction of the company for the purpose of promoting the business of the company, if so placing the cans on the road amounted to a nuisance, the company would be jointly liable for the nuisance. That is my present Impression.

Oa the application of Mr Chapman, his Honor reserved the point. Mr Chapman briefly opened the defence for the company, whioh was that the company were buyers of milk atjfcheir place in Great King street ; had made arrangements for milk to be delivered to the van as it went along the road ; and that if the farmers chose for their own convenience to leave their cans standing alongside the road, the defendant company had nothing to do with that. Mr J. Macgregor opened the case for the other defendants, which was that it was by no means proved that the cam had caused the horses to Bhy, and that the sun was not shining on the cans at the time of the accident, also that there had been contributory negligence on the part of the plaintiff and the driver.

The following witnesses were fchen examined :—

John Bishop depoied that he saw the plaintiff's horses coming down at a strong pace, that they were drawn up 50ft from the place where the accident happened and their pace slackened, and that they went very slowly over the embankment.

Sir E. Stout objected to the witneis giving in evidence a conversation with the driver as to the cause of the accident, and the objection was sustained. Witness continued : The first can was 4ft 6in from the road, and 7ft 6in from the outer edge of the culvert.

Cross-examined : He measured to find out the position of the cans last week, and not at the time of the accident. The accident took place at about 20 minutes past 7, and the sun was then let. William Henderson gave similar evidence, and also deposed that Miss Hume (the invalid) said, " Oh, I did not know what I was doing when I did it." He did not know what led her to say this. Witness heard Bishop ask the driver a question, and in reply, as well as he could remember, Mr Mander said, " When Jthe horses shied Bhe caught hold of the reins and pulled them over the bank.

David Swan deposed that he had just passed the cans when the buggy came along. The cans were not glittering, and the sun was down. He could not see the cans till he was just abreast of them.

William Page deposed that the driver had stated, when they were putting in the horses, after the aoeident, that they had been yoked up wrong before starting baok. Matthew Begg, surveyor, alao gave evidence.

Mr Chapman called, William John Birch, manager for the Taieri and Peninsula Milk Supply .Company, who stated that be had to attend to the milk being sent into the company for delivery. On the 20th September witness gave instructions to Mr Clelland to bring the milk in twice a day, and the understanding was that it would be delivered to the van. Witness never told anyone to put the milk on the road, and never directed or encouraged him to put the cans on the road. It was contrary to the company's interest to bave the milk left unattended. Ihe contract for bringing in the mi Ik was let to Edward M'Ewen. To Sir Robert Stout : Witness flatly contradicted Landreth's evidence. He knew that for years the habit had been to leave the cans standing alongside the road.

Thomas O. Stokes deposed that he had been for three years manager of the Taieri and Peninsula Milk Supply Company. His Instructions to Messrs Clelland and Landreth wai that the night's milk was to be put on the van. He had never direoted or encouraged anyone to leave the milk standing on the roadside, Alfred John Gall, seore^ary to the company, corroborated the evidence given by Mr Birch. Alexander Stewart, a director of the company, gave evidence that he left the milk at his gate as near as possible to the time when the van passed, but the instructions from the company were to deliver the milk to the van. The court adjourned at 6.30 p.m. till 10 o'clock on the following morning.