Hobbs v. Union S.S. Company.

South Canterbury Times, Issue 7295, 26 August 1893, Page 2

Hobbs v. Union S.S. Company.

j ' Mr Justice Williams gave judgment on | Thursday in the case Hobbs v. Onion Steam | Bbip Company, a claim for damages caused ! bv alleged negligence ia landing the raoei horse fallisar from the Mararoa in December j last Mr Solomon and Mr Baymond for plaintiff, i Mr Holmes for defendants. The following is the chief portion of the judgment The contract under which the defendant company undertook to carry the plaintiff’s i horse is subject to the condition that “ the company will not be accountable for mortality or accidents of any kind in shipping or land* ing stock.” The company is a common carrier, and the effect of the condition is to limit the common law liability of the company as a common carrier to damage shown to have 1 been occasioned by neglect of duty on | tbe part of the company or ite servants. The condition does not however* protect

the company from liability for durnace occasioned by such neglect, though the company might have proiect-d itself if npi. words had been used. The duty of the company to provide appliances for lauding the boroe in questi >u reasonably sufficient to secure the animal, whiL- being landed, from injury arising from the ordinary incidents of binding, including fright occasioned by its novel position and pas>ing cbjeots. The appliance', moreover, must be sufficient with reference to the particular kind of animal. What would be reasonably sufficient for a carthorse might be quite insufficient for a thoroughbred entire. If in the present case the horse became frightened through the staging giving under him by being insecurely fastened, then certainly the accident was occasioned by the default of the company’s servants, and the plaintiff la entitled to succeed without further question. There is very strong independent evidence to show that the accident did happen in this way ; but 1 prefer to leave the point undecided one wsy or the other, and to decide the case on other grounds. The horse was a thoroughbred entire. It is a matter of common knowledge that such horses are specially fidgety and easily startled. It is also a matter of common knowledge that on wharves eights and sounds liable to startle horses ara constantly occurring. The possibility of the horse being startled while landing is, therefore, a cohiiogency that ought reasonably to be anticipated. The appliance provided, however, was of such a kind that, if the horse became startled while landing, and acting as such a horse when startled would probably do, a serious, and not a mere trivial, accident was inevitab’e. This is the effect of the evidence of an independent witness, Mr Bacon. He says : “if a horse turns round an accident is bound to happen on any stage.” There was, however, in the particular staging a space between the stanchion and the ship of 18in, where there was no combing, and it was through this space that the horse got its bind leg, and so became unable to recover itself. Mr Bacon admitted that if the combing did not go to the end the staging would not be sate. Obviously this is so- The gangway being so narrow, in the absence of any protection a ve y slight lateral movement of the horse’s foot would take it over the side. That tb a absence of this protection was the coute of the accident may be inferred from the evidence of the defendant’s own witnesses, if their account be taken as correct. Mr Lundy, the third officer, who was leading the horse, says " I lead the horse on the gangway. When I had got him fully ou tue gangway, clear of the ship, he stood still to look round. Then there was a fall of timber, and he tried to shy, and got his near forefoot through between the batten and. the iron rail of the wharf. Trying to get his foot right, he slewed round a little bit, and bis hind leg went down between the door and the stanchion-” If there bad been a batten there the probability is that the leg would have been prevented from going down. On the whole I do not think, looking at the particular kind of horse which had to be landed, that the appliance furnished for landing was reasonably sufficient ; nor do I thing it can be said that the company is exempt from liability because the plaintiff assented to the particular mode of landing. It was the duty of the company to provide proper appliances for getting the horse on shore, and if an accident happened through defective appliances the company would be responsible. The plaintiff, therefore, knowing this, was justified in leaving the company to perform its duty in its own way, though he himself may have considered that way risky. Furthermore. there is nothin; from which it can . be inferred that the plaintiff must necessarily have observed and appreciated the importance of the particular defect in tbe staging mentioned above. In order to exonerate the company there should be the clearest evidence that tbe plaintiff dispensed with the obligation of tbe company to provide proper appliances, and 1 do not think there is sufficient evidence. The plaintiff, therefore, is entitled to recover. The amount to be recovered in case of judgment for the plaintiff has been already fixed by the parties at £l£o. Judgment accordingly with costs.