SUPREME COURT.

Otago Witness, Issue 2690, 4 October 1905, Page 17

SUPREME COURT.

CIVIL SITTINGS. Tuesday, September 19. (Before Iris Honor Mr Justice Williams.} j WEIB V. MINISTER OS" EAILWAYS. This case, in which Martha Prances Weir claimed JESSO for damages sustained in a railway carriage, was continued, Mr A. E. Barclay for ihe plaintiff, Mr Fraser for the Railway Department. Mr Fraser, summing up the case for the Crown, said the negligence originally alleged against the department was that there was a loose fitting on the floor of the car; there was no mention of any jerking or jolting. The case was important in some respects, and tihe jury must approach it without bias. The fact that the Crown was a party should not tell one way or the other. In any auch great undertaking as the railways, there must be accidents, some due to the negligence of the department, some to the negligence or carelessness or misconduct of the parlies injured. In this case there was a small plate on the floor near the door of the car. As to the position of that plate and the cause of the accident, the plaintiff and her witnesses disagreed materially. Apparently, the plaintiff left her seat before the train stopped, and was thrown forward when the train. pulled up on the brakes. Certainly the facts rather supported the contention that plaintiff tripped over the plate. The plate was loose, with a quarter of an inch of play. It would offer little or no obstruction to any ordinary passenger. That was a matter the jury would have to consider very carefully on, the evidence. If a verdict were given on such evidence it would be necessary for the Department to send a man with a screwdriver through the cars every morning. Plaintiff was physically incapable- of taking extra precautions for Herself, and should have kept her seat till the train stopped. Her recollection of the accident was plainly defective, and so on some points was* that of her witnesses. It .was impossible that the train could have moved or jerked once the train had been stopped by the brakes. As to the accident and plaintiff's account of it, Dr Marshall Macdonald's evidence was of the greatest weight. His evidence showed that the tripping on the screw in the brass plate was not the cause of the acci3ent, but that she was afterwards thrown violently back on the seat by a jolt of the train. He was only concerned with such accident or injury as resulted from the tripping over the screw. Assuming that there was negligence on the part of the Crown, and that the accident did result from that negligence in the manner alleged, the jury had to assess the damages. The jury must not give a sentimental verdict. The plaintiff's poverty and' need had no proper bearing on the case. A pauper or very poor person had, indeed, this advantage: that he could bring any case without running the slightest personal or financial risk. The witnesses in such a case knew that their only chance of getting their expenses was in the plaintiff getting a verdict. Had not that fact a tendency to make a witness give the strongest possible evidence? The jury must consider the injury the plaintiff had sustained. At present she could only move about on crutches. He would not suggest that that was a little dressing o£ the scene by his learned friend. Plaintiff said she had undergone an operation as a result of the accident, but the evidence proved that that mishap had no possible connection with the case. Dr Stephenson, who examined the plaintiff for litigious purposes, and himself advised that this claim (should be laid, discovered no symptoms of uterine derangement, and now declared that he did not remember that the plaintiff said a word about the matter to him. Could Dr Stephenson himself entirely overlook such symptoms? If they did exist, and he overlooked them, Dr Stephenson would be guilty of the gravest professional misconduct. The supposition could not be entertained for one moment. Dr Hodge was not even asked whether there was any connection between the accident and the miscarriage. The Crown could not he responsible for her present condition, even if it was responsible for her primary condition after the accident. What was her primary condition after the accident 0 Dr Stephenson's notes showed that she walked into his room with difficulty, and sat down cautiously. There was no marks on her back ; but she was very sensitive to touch over certain areas, and presented other indications of looseness, and so forth. Plaintiff knew at that time that she was £wing to sue the Government, and certainly did not under- j state her symptoms. Let them contrast the pietiue seen by Dr Stephenson and the nictxxre j of the same person going into the bush with an axe md cutting wood. If Lawrence Griffin? evidence was tiue. Dr Stephenscm had be«n deceived. Plaintiff went long walks j uphill in ihe, Pnrakanui country, but she always brought her crutches into town, in j Older, doubtless to furnish a spectacle foi J sympathy. There had plainly been some simulation or dissimulation, for the contrasts 03>hibited were most striking. If the woman was pregnant, her own behaviour was such as might have forced on a dozen miscarriages. The cas.s showed vory gross exaggerations and dissimulation, and he did nofi see how ttye iuiy could fail to recognise them. Dr Marsha^ Macdonald was a reliable and absolutely unbiassed witness, with his iyrofessionn.l rerratation governing all his evidence. That evidence showed plainly that on August 5 plaintiff was guilty of dissinmlation. Dr Macdonald'e evi-

dence was not contradicted, and must he accepted as ahsolutely frue. If there was simulation with Dr Macdonald, it was fair to assume simulation with Dr Stephensoa. Plaintiff had either exaggerated or manufactured her own symptoms. Dr Stephenson spoke of '' spinal concussion." Dr Macdonald said there was no siich thing, and gave a ■very different diagnosis. There was evidence that plaintiff was walking with a stick before the accident, and complaining of pains va. her back. There was nothing said about this by the claimant,. and nothing in the reference to her 12 months' treatment in the Dunedin Hospital. She suffered from chronic rheuma•tism or sciatica. That made her clumsy in her movements, and her clumsiness caused <he accident. The onus of proving damages lay upon the plaintiff, "and 'in assessing damages the jury must be guided by* the evidence as to the- physical condition of the plaintiff prior to the accident. The demand of £550 in itself served to show the nature of the case. Mr Barclay said the defence had been brief and elaborated with scrupulous and patient care. The department had worked on the matter for months. The" Crown, plainly recognised the- seriousness of the case. The Crown had got its evidence' by means of s, private detective. What was the result of all this trouble and expense? The procession of witnesses for the Crown was a miserable procession of failure's as far as the charge cf malingering went. Mr " Larry " Griffri seemed to treat the whole thing as a joke, was generally very vagiie and inclusive in his statements, and finally admitted that all this " was over four months ago£ There .was no doubt that the woman , had. been crawling about her duties. She 'had "to do it, ".being a. very poor woman, with a young family. It was remarkable what extraordinary things poor: women did do in the teeth of pain and suffering. Such conduct in a woman hard driven by necessity could not be taken to weaken her case or minimise her 'As to" the accident, Mrs Perry's evidence. was clear^aud conclusive. The evidence given by the Crown strengthened plaintiff's case as to her tripping over the plate. But as to the actual accident, the most trustworthy evidence was that of the plaintiff herself, backed up by the evidence of Dr Stephenson. The evidence against the assumption that plaintiff left her- s-eac before the train stopped was overwhelming.. There could be no doubt that the jolts did occur. The driver said he came into the station slowly, and stopped very quietly. There was no jolt in a gentle stopping, ans the evidence of the jolting was convincing. The driver's evidence was obviously defective. The guard himself admitted that the passengers Avere getting out of the train, and that ha came to plaintiff's assistance from the platform. The guard evidently got off , the train according to usual custom, before it stopped, and could not say whether there was a joli or not. In such circumstances positive testi-

aiqriy was -worth any^ amount. of negative! evidenced He was noF'greatly concerned with j the details of .the" accident. Honest witnesses j did not agree absolutely in details; where j there. was minute agreement there was' reason- . able ground for suspicion of collusion. The • .plaintiff tlid not' ask 'for any sentimental ver- j iiiet, but merely for justice. Dr Stephenson* s i evidence was that - she would -never be the j 'same woman again. Dr Stephenson was a { man of good ' standing, ,and had every opportunity of closely examining the plaintiff. ' He believed that the mischief which necessitated a serious* operation was the direct consequence of the accident. Plaintiff was a semi-cripple, and the wife of a poor man. The amount claimed was only equivalent to' J625 a year. Plaintiff was Jnot mercenary, or she would Eave taken action on a previous occasion. Plaintiff always needed her crutches in town. * Pottering a*bout her work at home she. did not jieed them, and going about her duties she could not always ! use them. The simple fact was that she used her crutche3 on the fiat, and did not use -them when she could possibly avoid it. When Dr Stephenson made liis -.notes " of plaintiff's condition he" believed" the department was j making a .settlement with the plaintiff. The ■Jepartment: as --a matter of ' fact, had forced plaintiff into, court. The Grown had undertaken to prove malingering,- but Dr Macdonald -would swear nothing of the~s6rt. All'h'e said was. that possibly Mrs Weir was exaggerating ~ ler symptoms: J There 'was not' much in' that ; most invalids were self-centred, and prone to exaggerate their "symptoms. • As to Dr-Mac-donald's spots marked on -the plaintiff's back, the evidence showed >that there was very little difference in tEe locality of the sensitive spots. Much depended, too, on what pressure .was exerled. Dr Macdonald discovered symptoms of rheumatism". "Dr Stephenson .had never discovered them, nor had' the woman herself. -Dr Macdonald drew his conclusion from one ?3rief examination > of a- woman he had never Been before, and that seemed rather ridiculous. He' did not think it necessary to detain the jury longer. His client ,was' in their hands. She waa an hone3t woman, and she must be judged on the evidences His-Honpz, summing vp v said.the case must ."be treated as if the railways were owned by a private company or a "private person. In pssessing damages, the position of the plaintiff .was to some extent material, and must be_ "considered with regard to the pecuniary injury. Damages must not be determined by sym,pathy. this injury caused by default of -jailways ? ' If "so. what ' injuries ,did the plaintiff- suffer-?- There, was certainly some accident, but was it the fault of tne department? _ It was, said that there was a loose Jitting, and it was. alleged that ,-plaintifL caught Jier foot in it. The fact that .the fitting was loose would be presumptive evidence of negli.gence on the. part of the railways. .The ,authoriyties were conclusive as to that. When an .accident^ was caused by deficiency, in the cars ,or fittings, "presumption of negligence arose. ,If there was >'a 'defect, and that caused the Rccident. the department would be responsible. ■As to. this accident, there was some variance ot testimony,- but. the witnesses all agreed that the other passengers had /left the carriage. That, of -course, was evidence from which it rrniajht be inferred that the train had stopped. (His Honor reviewed the -evidence at length.) Xf plaintiff met with an accident and received injuries as a result of the negligence of the defendant, the damages must be> so assessed as to give reasonable compensation for plaintiff's suffering and disablement. The jury must, however, be" satisfied in that case that the injury for which compensation was awarded .Was an injury actually and directly- resulting from' the accident alleged in the plaint. The jury retired at 2.35 n.m. Vlr Ffaser asked his Honor if lie would E-trect" the jury that the plaintiff was not en--"titled to-'damages if the accident was caused -"t; r +he iolting of the train. - 3is Honor said that he haa charged the jury V«ry clearly, and impressed upon them that if compensation - was given . it must be for injuries 'received in consequence of an accident caused "by the loose plate which h"a"d been "referred to. - . " " The jury returned .in about an hour with a - verdict for plaintiff, damages £350. WILLIAM" CARVETH' S CASE. William Carveth, ■ who had pleaded • *' Guilty " to committing perjury at Balclutha. - Sn connection- with a woman's claim for an old-age pension, was brought up for sentence. . Carveth was "asked his age, and in a very strong and audible voice replied, " Seventyfive years of age' last birthday." Mr Fraser: His age is given as 56 in the police records. _ Prisoner: That is what the man in the registrar's office at Kaitangata told m-e. He apked me how old' l was, and I told him 75. He told me that was.a.U nonsense, so I told ihim he could stick down anything he liked, and lie fixed on 56. I told him my correct age. I can't help it if I am 75. 3lr Fraser said the accused was an Ameri-ca-a by birth. -His -Honor: How long has he been out? That .might help us. x " . Mr Fraser said the man was a sailor in a vessel that traded to and' from the colony for many years. He was known as a punt-man and^a sailor. His age was put down at 56. If he was 75 he was a phenomenon. - 1 His Honor: What are the circumstances? iMr Fraser : The woman was not his wife, end, he swore that she was in order to get her , a pension. j ■ His Honor: It seems to be a curious sort , 'of case. Would this woman have been entitled to a pension, supposing he had told the 'truth? I Mr Fraser : She was not his wife. ~ln the act there is a bar against persons living in open vice or anything like that. An applicant for a pension must be of good moral

character. This woman was living with this man as his wife. He transferred his affections to a younger female, and the proposal was to put this elder lady on the pension litt. The police record shows that this man's character is indifferent. At Owaka on the 29th March last year he was fined £2 10s for the theft of harness. I must point out that though he has been trading to and fro for some years that is the only conviction standing against him. The prisoner was asked if he had anything to. say. The Prisoner (volubly) : When they asked me I told them when I knew this woman first and how I had stuck to her all through. That's all. I can tell you all about thi^ woman if you want to know. I knew her first in 1848. I came over then m a little gun brig from Towns. I was with her for a little over a year when the vessel was ordered away. She was about 16 years old then. I did not see her any more till '58 or *59, in Sydney, and then I lost the run of her I went to America- at the- time of the American war in '60, and came back between '60 and '63, and when I came back -I saw her in Nelson. I was with her a couple of years there and down on. the Thames. I went away again — out to China — and when I came back again I fell in with her at Oamaru. At Oamaru I met another woman with two children. named Mrs Nisbet, and I ther, and she died. This woman : I'm here about was living with a, man named Brown, and. when Brown was dying he said , to me, " Bill," he said, '" you've known her j on an' off a good while now. Will you take her and stick to her?" I said I would, and I did. Som« time back I bought a horse for £1 and % cart for 30s, because I couldn't afford a housekeeper,^and I. got her so that she — (the latent she', apparently) — could take her out on fine "days. Then she' fell sick and' weak, and people asked me why I didn't get a pension for her. I went and saw Mr Cruickehank, and he s,aid, "Why "don't you get, one yourself?" I said there was' enough loafing on the New Zealand Government', without me ; but. I had a' right to the .[pension, and I took it. That's alj» - I never tried to do the Government any harni' nor nobody -else: I waa in the British navy altogether for very near 40 years, and I always had a .good character. I was only once brought, up by a court-martial, and then they allowed me an advocate. Then they put -me- in durance vile for a time, and forgave me the rest. I was lying at that time in Simon's Bay. "It was for speaking disrespectfully of her Majesty's son, the Duke of Edinburgh; but what I said about him wasn't much — I could say it to any of you in this court. I said that when a man went an' deserted his own country to become the Duke of SaxeCoburg and Gotha he was not worthy of being recognised in his own country. That's all I said. I'm a British subject, though I was born in America. I never did nobody any harm, and if I got justice I would go out on probation. The job ain't much that I've got, but I suit tEe job and the job suits me. I only get 10s a week and what I make. I didn't go for the pension with the intention of doing anybody out of anything. I couldn't afford to pay for a housekeeper. I thought it best to marry this other woman and let her "take this one out. I stuck to the woman nil right, and she said that if I could get her tiio pension slie would so away to Oamaru to her friends. That's all I got to say. The harness was lent to me by a man as went away and forgot he lent it to me, before Christmas. I never stole it. His Honor : It is not a case for probation, but I do not think it is a case for a long sentence. — Four months' hard labour. i