MILKING MACHINES.

Otago Witness, Issue 2927, 20 April 1910, Page 9

MILKING MACHINES.

REID AND GRAY v. SMITH.

AN IMPORTANT JUDGMENT,

The judgment of his Honor Air Justice Williams in the recent Supreme Court action, Reid and Gray v. Walter.M. Smithy Centre Bush, was delivered in the Invercarcargill Court on Wednesday. In this case Reiid and Gray claimed £sl, first instalment of purchase money on an Austral milking machine and plant. Mr Smith denied liability on the ground that the machine was un-datisf aotory, and counterclaimed for £l2l as damages for alleged depreciation of cows (also loss of milk) through use of the machine. In delivering judgment for Messrs Reid and Gray on both claim and counter-claim, his Honor said: "I am satisfied that the milking machine whioh the defendant contracted to buy and which was erected by the plaintiffs was throughout in good order and condition, and capable of performing the work that it was intended to perform. There had been no alteration in the machine since it was first erected, and it was set in motion during the course of the trial. There was nothing to show that there was anything wrong with it. No expert evidence whatever was called even to suggest that it was in any respect defective, or that it did not work properly. The "defendant suggested that the cup teats originally used were so constructed as to cause injury to his cows. That suggestion is effectually disposed of by the fact that these same cup teats were taken by Mr Morris and used on his cows with a similar machine for six weeks without doing them any injury. The evidenpe is that the machine sold to the defendant was one of a class, that it was erected andworked by persons who had erected and started many other like machines, and there was no evidence that in any other case cows had suffered injury by the working of the machine. If it be really the case that the machine has injured the defendant's cows the only reasonable explanation is that the injury was caused not by any defect in the machine itself, but because the machine was improperly worked. But it was worked by persons in the habit of working such maohines, who say that they worked it in the way in which such machines are ordinarily worked, and there was _ no apparent reason for them not working it in the ordinary way. In the above circumstances, if the defendant alleges that his cattle were injured by the action of the machine, he must clearly show that every other reasonable explanation of their condition has been excluded. That, in my opinion, he has not done. The evidence no doubt is conflicting. Mr Lillico, however, who is e veterinary surgeon of large experience says he saw on the cows no evidence of any mechanical injury, and that there was nothing about them which was not consistent with natural disease. He says, further, that if the oows had suffered the injuries that the defendant says he noticed after the cows had been milked there would ba traces left, and he found no traces. I find it difficult to understand how the injuries the defendant savs he noticed could have been inflicted by any proper working of the machine. The plaintiffs, in Messrs Watson and Haggitt's letter of November 29. made a very reasonable offer to the defendant that the cows should be carefully examined by a veterinary surgeon, that after such examination the plaintiff's expert should milk the cows with the milking machine for a week, and at the end the week the cows should be Again examined by the veterinary surwon. and should h-r- find ianv injury atributablo to the use of the milking machin.r- the plaintiffs would nay for the do.vnas'e so caused. TTad this offer been accepted the whole question would have been settled one way or the other. Unfortunatel v & was nofc accepted. The burden of showing that the cows were injured bv the machine lies on the defendant. If the defendant fails to establish this no other reason has been made out whv he should not nay,for the machine. Judgment for plaintiffs ■ for £sl on the claim, and on the counter-claim: costs as per scale, £5 5s a day for three extra days; disbursements and witnesses' expenses to be fixed by the registrar."