Coe v. Pahiatua County Council.

Pahiatua Herald, Volume II, Issue 130, 2 April 1894, Page 3

Coe v. Pahiatua County Council.

An interesting Case.

Verdict for Defendant Council Tho District Coart opened on Thur •• day morning in Mulorton. Ilio Honor. District Judge Kettle, and a jury were engaged the whole day in hearing the case of \V. K. Coe v. the Pahiatua County Connell.

From the W.P. Times weextract the following . Mr Pownall app»r.r*d for the plaintiff. and Mr Tosswill for the County. The following jury were empanelled —Messrs \V. M Halter, C. H. Payne, G. A. Townsend, and Dancan McLachlan. Mr D. McLarhlan asked to be excused on the ground that he was a pahlic s. want. being the assistant Oounty Fngineer.

His Honor said it was not desirable that Mr McLachlau should sit, but anless objeenon were offered the excuse would not be taken.

No objection was offered and Mr McLachlan was chosen foreman.

Mr Pownall, in opening the case, ■aid that Mr W. K. Co*, the plaintiff, was a carrier in Pshiatua. Part of b - business took him over the road known as the Mak.iri Gorge Road. The care of this road rested with the Pahia'.ua County by an order in Council of June27tb. 1808. This wasdone before the accident occurred for which damages were claimed. Tho New Zealand Government constructed the road and the Government maintained it till June 23rd. The defendants admitted Ibis. On August 2nd, a ilip occurred, ext* tiding to within four feet of the oute*r edge. Then- was a Tery steep fall of 100 fe-et. at the bottom of which was a river. The public using the road, therefore, were confined to four feet of road with a big drop on one side. The County took no stops to remedy the slip, though they must have been fully aware of it. On August 10th the accident occurred, and from August 2nd to that date no action had been taken. Traffic went on, people had to use the road, and plaintiff lost the horse, for which he claim.-.) £Bl, and £lO for loss of business. The horse; «t* being ridden by Lawrence, son-in-law of plaintiff. A slip was likely to ticcnr, and tho place ought to havebeen carefully watches!. Tlit* slip occurred on August 2nd, and haet increased by tbe 11th. The road | Inspector had boon notified, and the allegation was that tho defendants ' bad neglected to attend to a slip which had rendered the road dangerous for public traffic. The value j of the hors.- and harne-ss was £3l, for which the County were liable, and £lO for the loss of business. The road was left until August 10th. when it was repaired. The defendants | plead.d contributory negligence on ; the part of plaintiff.

W. U. Coe. whose evidence boro out the learned counsel's statement, •aid hu had refused £3O for the horse repeatedly, and would not take £35. The horse- was going from Pahiatua to Makuri townsnip. The road was liable to slip. At some places the formation nan papa, and at others limestone. It was tbe rainy season, and witness had to use tbe road because there was no other. It was not till August lhlh that ho could pass. He considered £lO a low charge for the loss of business.

Cross examined: There were slips in ather parts of the district. The horse* were going out to do light work. It was a heavy draught horse. It belong.sl to witness and was being ridden by his son-in-law. He could not say whether he (the witness) would have taken off the bags. Proceedings bad be*-n taken in the R.M. Conn.

Mr Pownall objected but was overruled.

Wi -.ness proceeding said he bad been non suited in the R.M. Court. The £'lo for damages had not beenclaimed in tbe other Court.

Mr Tosswill suggested that the £lO was to pay for the eosts in the other Court.

Mr Pownall strongly protested against the suggestion. No reference should be made to the other trial. If necessary he would go into the whole case and prove perjury had been committed against his client. His Honor said it would be better not to go into the facts of the other rase.

Mr Pownall urged that it was an attempt to prejudice tbe jury.

Continuing the witness said in re- i ply to His Honor that he always used 1 every care in passing a slip. Mr A, Tucter, carrier, of Pahiatua, [ deposed that he saw the slip on Aug. | 2nd and was present at the accident j on that date. Saw the assistant enginwr the day before and asked him ' if he had kept the Gorge road open, the engineer replied that he had only to keep it open for horse traffic. Witness said that would do for him. Tbe ordinary width of the road was about 16ft. After the slip is got gradually narrower. He started with Law renee and took three horses. Lawrence was riding his own horse, witness was riding one horse and driving another. lie was first, Law.ence coming behind. Did not think it necessary to get off to pass the slip. Lawrence’s horse was very quiet, but it slipped ; the rider jumped off an-1 the horse fell down the cliff. The embankment above the road itse-lf

slipped. The horse at first slipped half way down the cliff but afterwards was fiund in the river drowned. The bridle was useless and the saddle injured but it was recovered. Witness ttasoross-examined at great length hy Mr Tosswill as lo tho dates. After much evidence had been given, witness was ordered by the Court to wire for bis poekot-liooks to be forwarded to the Clerk of the Court. Ry His Honor.—lt »'»- an excep tionallv wei season, but 'the day on which the accident occurred it was not raining. W. M Hoyden, road ov.reeer at

Pahiatua. in the employ of the Government, gavu evidence that the ordinary width of the road was fourteen feet. He saw the slip >n August sth, and several times afterwards. On August 20th it was completely cleared. When witness crossed on tho sth, he got off hie horse because he considered it the safest thing to do, others might have crossed without dismounting, but he would not consider it a wise thing to do. The season was a very wet one, and slips were likely to occurr at any time.

Cross-examined : Witness walked past other slips which wero equally dangerous. lie was riding a horse that was not particularly quiet. John Green and James Lawrence also gave evidence. This closed thu plaintiff's case. Mr Tosswill submitted that the plaintiff must be non-suited on fhe following grounds :— Firstly, That the Council had not undertaken the care and management of the road ; secondly, That ther.- was no actionable neglect on the part of the defendant: thirdly, That taking into consideration the ciroiimstaneesoftheca.se—the weather, formation of the road, etc.—there was no neglect or improper omission; fourthly. That the defendants had no knowledge of the slip in question. In support of these contentions he cited New Zealand, Australian and Knglish authorities.

Mr Pownall replied at some length

His Honour said he would reserve consideration of the points raised, and doubted whether there was a sufficient i case to go to the jury. Evidence for the defendants was given by Mr Do (1. Fraser, County Engineer, and Mr G. Stewart, late County Overseer. His Honour Judge Kettle in addressing the jury in his summing up said it was high time that the recommendations of the judges should be carried out and an authoritative opinion given as to the liability of the local bodies, for at present they were often plaei d at a great disadvantage. They had much to attend to and look after, and in the rainy season, when slips were occurring in all parts, it was absolutely impossible for them to put everything in order at a moment's notice. In a new country like this, they must not expect the perfect rood system which an older country could boast of. In looking at the accident they must take a common sense point of view of tho case. Was reasonable care exercised by the plaintiff in going by a dangerous slip without even dismounting, although the passage was extremely narrow, and the horse a heavy draught one? They must also decide whether there had been any negligence on the part of the County, and they must say from the evidence whether there were any grounds for this charge made by the plaintiff. The jury, after a short retirement, brought in a verdict for defendants.