CLAIM FOR DAMAGES.

Sun (Christchurch), Volume I, Issue 173, 27 August 1914, Page 8

CLAIM FOR DAMAGES.

Again£t telegraph department. A claim for damages to the extent of £IOOO, against the Telegraph Department, was made by George Partridge, a farmer, of St. Martins, in the Supreme Court this morning, before his Honour Mr Justice Denniston. Nominally, the claim was made against the- King, but the Telegraph Department-was .the. realdefendant. The case was heard before a special jury of twelve, of which Mr W. F. Hilson was chosen foreman. Mr E. Harper appeared for Partridge, and Mr S. G. Raymond, K.C., Crown Solicitor, conducted the defence. In opening the case, Mr Harper explained that, the suit was brought under the Crown Suits Act, and was not started under the ordinary procedure; but by petition. Partridge would be referred to as the suppliant. His petition .set out that on March 28, 1914, lie was driving his horse and .cart: in Hills Road, when a telephone wire belonging to the New Zealand Government fell and frightened his horse, which threw the suppliant out, whereby lie suffered injuries! putting him to an expense of £6O, andhealso.grlfcred injuries of a permanent. character. The pftuion claimed that tKj Government V servants did not "remove the telephone wire with due care. J'or the., defence, the ..Crown. Solicitor denied that his Majesty 's servants had been negligent or had not exercised proper care. The Crown Solicitor also c'a'med that the .suppliant had been guilty of contributory negligence in not exercising sufficient, control over his horse, and in not exercising sufficient care in trying to pass other vehicles on a narrow road. - Amplifying the suppliant 's case, Mr-

Harper stated that at the time v of the accident the St. Martins tramway track, which passed along Hills Road, was partly completed. At the Vcene of the accident, however, there was a loop line, which was not ballasted, but was enclosed by a rope, so that all traffic was diverted to one side of the road. At the side of the road men were either removing or erecting telephone wire*;. Men were working on the poles, and loose wire was hanging from pole to pole and being drawn iii by men on a drum. A man on a pole at the corner of St. Martins Road cut a wire, or released it, some 472 ft from the winding drum. The wire fell with a whizzing «£i.se and a bang, and frightened Partridge's horse, which was walking behind a couple of drays driven by a man. named Healy. The frightened hon-'e jumped into the loose wire and overturned the cart., throwing Partridge out on to the hard footpath. The wire was not hanging flui-h with the footpath, but was protruding about 2ft over the roadway. Partridge made no attempt to pass the drays in front of him, although.there was plenty of room for him to do so if he wished. This would be proved by Healy, •who was driving the drays. Suppliant, who gave his age as 6(5, gave; evidence as outlined by counsel. After the accident witness had been to Drs Fenwick, Foster, and Acland. He had also had a month of daily massage treatment besides electrical treatment, by Dr Fenwick, but he could not raise his right arm. The pain had gone, but ne had no power in the arm. Before the accident he carried on a pig and poultry farm. The proceeds from the pig business formed the. major portion of his livelihood. His net earnings were from C! to £4 a week. Since the accident he had sold the pigs, as he could not look afto.r them, and lie now depended on his chickens. Since the accident he had been forced to employ labour. In reply to Mr Raymond, suppliant stated that, his horte was a/little nervous, but he had always been able to control it. .He had been under chloroform twice since the accident to have his right shoulder examined. ■Evidence for the suppliant was given by 1 Michael .). Flauelly, a baker's driver, who was close to the place of .the accident at the time, by "Mark Healy, and by >-Thomas Irving, .n employee of the

Hcathcotc County Council, who saw the accident.

An affidavit- by Dr P. C. Fenwick, who had treated tho suppliant, and who had joined the Expeditionary Force, was read. Medical evidence was given by Drs Anderson, Acland, and Foster, who stated that the suppliant's injuries were extensive and that it was a hopeless case so far as limitation of movements was concerned. The, suppliant's case having concluded, Mr Raymond formally moved for a nonsuit, on the ground that there was 110 evidence of negligence. Power, he said, was conferred on the Crown to construct, maintain, and repair telegraphs over the highways, by the Post and Telegraph Act, 1.008, and there was no proof of negligence in the carrying out of that power. His Honour considered that the case should go to the jury a,t present, and he reserved the non-suit point. Mr Raymond then stated that he did not propose to call any evidence. In addressing the jury, Mr Harper contended that the primary cause of the accident was the negligence of the servants of the Crowii in cutting the telephone wire and causing it to fall ou the road when there was vehicular traflic on the road. Dealing with the question of damages, Mr Harper stressed the medical evidence that Partridge was a strong, able-bodied man, who' had been deprived of the power of using his right arm, and he was not at all disposed to neurasthenia.

Mr Raymond, in his address to the jury, saiil that any attempt by him to call further evidence, after the bona fine statements by decent men in the wit-ness-box would have been unavailing and unnecessary. Counsel then proceeded to deal with the question of negligence. He contended that the cutting down of the wire was a necessary duty, and that the wire must neces-' sarily fall when cut. Persons using the highway must take-all the risks incidental to the use of Partridge knew that the Department's men were working at the wires.* In his summing up, his Honour commended the'way in which the case had been put to the jury by both sides. The questions of fact were entirely for the jury to decide. . Both parties had an equal right to be on the road, and that raised the corresponding duties of both to take all reasonable care, and special care when the road was not free. The case narrowed down to two issues. The first was whether the Department's servants were negligent, and the second was, if the jury considered that defendant's servants were negligent, what damages the suppliant, was entitled to. The jury then retired. (Proceeding.)