SUPREME COURT.

Taranaki Daily News, Volume LVI, Issue 18, 21 June 1913, Page 6

SUPREME COURT.

NEW PLYMOUTH SITTINGS. : The New Plymouth sittings of the Supreme Court were continued yester day morning before his Honor Mr. Justice Edwards. THE BURGLARY CASE. Charles Pearce, who had been found guilty of breaking and entering by night with intent to commit a crime, came up for sentence. . '* Mr. A. H. Johnstone, instructed, by Mr. W. D. Anderson, asked for leniency for the prisoner, according to the jury's recommendation. His Honor said that prisoner had a very indifferent character—very indifferent indeed. He did not like sending him to prison for the first time, but he bad very grave doubts. Prisoner would ! be admitted to three years' probation, on condition, that,he paid the costs of the prosecution, £2O His, within one month and took out a prohibition order in the district in which he lived, renewing the order during the period of probation. BANKRUPTCY CHARGE. The case was then called of James A. Tuthill, lately in business in New Plymouth as a hotel-keeper, who was charged, on four counts, with making alleged fraudulent preference payments to his wife, totalling £217 55,. in connection with his bankruptcy. At the previous sessions the jury had acquitted the accused on the second charge of contracting a debt of £2O 18s with Messrs Hawkins and Smith, without any reasonable or probable expectation; of. being: able, to pay the same, but on the charge of alleged fraudulent payment they were unable to' agree. The Crown solicitor applied for a new trial on the first four counts, and the case was accordingly set down for hearing at the next sittings of the Supreme Court at New Plymouth. Yesterday, the accused, who was defended by Mr. A. H. Johnstone, pleaded not guilty, and the following jury was empanelled:—F. Richards, H. Rawson, A. Evetts, C. Carter, A. Lee, C. H. Johnston, J. W. Rawlinson, A. [I. Good, E. George. D. H. Nippert, J. H. Boultori, and J. A. Bishop. Mr. C. Carter was chosen foreman. Mr. H, Ostler, Crown Prosecutor, Wellington, opened tlic case for the prosecution. Abraham Coldwater, trading at New Plymouth as a wine and spirit merchant, under the name of Goldwater Bros., J. S. S. Medley, Deputy Official Assignee, James Smith, of the firm of Hawkins and Smith, and James Hawkins, of the same firm, gave evidence on similar lines to that given by them at the March sittings. Mr. Johnstone did not call any evidence, but proceeded to address the jury. Summing up, he said that one absurdity of the thing from a logical point of view was that there was no offence committed when payment was made; it only became an offence if a man became bankrupt within three months afterwards. It was for the jury to say if Tuthill contemplated bankruptcy when he made the payments. His Honor referred to the fact that bankrupt's estate had realised £2OO, although the furniture had been insured for £SOO (and had been recently inspected by a Wellington officer of the insurance company), the goodwill valued at ■ £lO9 and! the lease at £3O. If they thought that he could honestly have expected these things to realise, in a fair manner, anything like those figures, then the accused should be acquitted. If not, of course, they must convict him. After a short retirement, the jury returned a verdict of "not guilty," and prisoner was therefore acquitted. A CIVIL ACTION. The next case was that of Joftn Leydon v. the King, a claim for £5Ol damages for personal injury sustained on the Stratford railway station on June 22 last. The suppliant was represented by Mr. R. McVeagh (Auckland), with him Mr. W. G. Matone, and the following jury was empanelled:—J. Magee, W. A. Gray, H. R. Allen, L. Marks, A. George, C. V. Russell. W. Olliver, J. Elliott, J. H. Redward, F. E. Morris, M. Morris, and S. W. Jury. Mr. W. Olliver was elected foreman. Mr. McVeagh opened for the suppliant, and, in the eoure of his address, stated that on the evening in question Leydon had, in the course of his business, proceeded to the Stratford railway station, where he had stumbled over a tarpaulin left lying on the platform. The night was misty, and drizzling rain was falling. As a result of the accident, Leydon had broken his knee-cap, and sustained other injuries. Suppliant had since been compelled to go about on sticks, and he considered thev would come to the conclusion that the injuries received would be permanent. Suppliant was an old man, and would be hampered in earning the income that he previously enjoyed, lie had been kept in hospital for six weeks, and there was a claim of 12 guineas for treatment included in the £5Ol already mentioned. The question for the jury to decide was whether there had been a want of reasonable care on the part ,of the Railway Department in leaving the tarpaulin on the station. John Leydon, suppliant in the proceedings, furniture manufacturer and dealer in Stratford, stated in evidence that on June 22 last he disposed of two articles of furniture to Mr. J. B. Hine, M.P., of Toko, and he had instructions to send them out by the evening train. He went to the guard's van of the Toko train with the parcels, and. asked that they should be given to, Sir. Hine at Toko. One of the guards said he would have to pay excess on them. The articles were kept in the van,, and lie went to the railway office to get two excess tickets, for which he paid one ..shilling. He brought the excess ticket's back to the guard, who said,' ''That's all right!" Then the guard asked if Mr. Hine were on the train, and said that if Mr. Hine were not there he would put the parcels hack in the Stratford station. Witness said he thought Mr. Hine was on the train, and then went to look for him. Witness proceeded along the platform, and had not gone far when ho tripped over a tarpaulin, and fell on his knee. He was taken to the Stratford Public Hospital, suffering considerable pain, and was partly unconscious. Reverting to the subject of the claim, witness said part of the platform was covered in, and the accident occurred.'' on the uncovered part. The weather was misty, and drizzling rain was falling. It being Saturday night, when a lot of electric power. was used, the lighting arrangements were unsatisfactory. The tarpaulins and thevasphalt of the platform appeared to be of the same color; he .'could not distinguish them that evening. The platform was crowded. Two trains were at the.station at the time of the accident—one' on either side of the platform, and both outward-bound. His injuries were a broken knee-cap, for which he was treated in the hospital for six weeks, costing him twelve.guineas. At the present time he had to be very careful with the knee, and it would only support him when his lee; was straight. The pain was not acute, hut merely dull. He had to use two sticks. During the last two or three months he had noticed little improvement in the condition of the knee. An old complaint from which he had suffered had been aggravated by the accident. Formerly he had been a very active man, and had not had'to his knowledge a day's illness in his life. Since the accident he would not be able to undertake his formef occupation. His business at that time was prospering

very satisfactorily, and his net ii.come at the time of the accident was £032. The year before it had been £3BO. To Mr. Oslter: He did not Bee the tarpaulins when he first went to the guard's van. To the best of his knowledge it was impossible that they could have been in front of the guard's van; he considered they were opposite the window of the carriage nearest the guard's van. The train left Stratford for Toko at various times, but he was certainly in good time for the train. He did not see the tarpaulins when he returned with the' excek tickets. He did not think- that at the time his foot caught in the tarpaulins he could have been looking at the carriage: window. He did not remember, giving an interview with a reporter of the Stratford Evening Post concerning the: accident, and would not admit that the account of the accident in that journal was substantially correct. In the rain, ho considered there was very little difference in the color of the asphalt and that of the tarpaulin. The Toko train came' in at about 3 o'clock in the afternoon, and remained in the' station yard, performing shunting operations, etc., until the train left in the evening. He sold, out his business, im October last.

George Morrisli'v of Toko, blacksmith, deposed that he was a passenger by the Toko train on the evening in question, and was on the platform at the time of the accident. Two trains were at the station. Tlio night was misty and 1 wet. The platform was lighted, but it was a dull light. He saw someone trip over Borne tarpaulins over -which Mr. Leydon had tripped. Leydon tripped over the tarpaulins, which were lying on the platform close to a lamp-post, and opposite the guard's van. Other, people were on the platform besides himself and Mr. Leydom. In-different parts, of the platform there must have been forty or fifty people. Several times before witnessed had noticed tarpaulins on the platform, and the color of these was very similar to the asphaltTo Mr. Ostler: He did not know whether the man he first saw/ stumble over the tarpaulins was drunk or not. He had never seen goods lying opposite the guard's van, and covered with a tarpaulin, previous to the departure of the Toko train.

.Samuel 'Purkington, school, teacher, residing at Huiakama, remembered the night of the accident. He was on the railway platform on that occasion. He spoke to Leydon, and walked along the platform with him;, the plaintiff being on his left. He saw Leydon trip on the tarpaulins and fall. Leydon was slightly in advance of him. Before he fell, witness did not observe the tarpaulins. It was a dark, dull night, and had been raining just previous to this time. The light was not too good on this occasion, and there was no* very great difference Between-the color of thetarpaulins and the color of the asphalt. There were, he thought, two tarpaulins on the station;

Cross-examined by Mr. Ostler, witness said there Were four electric lamps placed at intervals on the uncovered section of the Stratford' railway station. The tarpaulins were folded; and one was placed on top of the other, and would occupy a pace of about 4ft square. There would have been plenty of room on either side. He had never before seen any accidents there.

William MeNeciy, sergeant of police, stationed at Stratford, said he saw plain* (iff falling on the night in question, but did not see liiim actually stumble against the tarpaulin! The light was dim.

To Mr. Ostler: He had seen tarpaulins, lying about the Stratford station, but could not remember ever having seen goods lying on the platform opposite the van.

Alexander Morrison-, farmer, residing at Te Roti, who was also on the .Stratford station platform on the evening of the accident, deposed that before boarding the Hawera train he saw some tarpaulins lying on the railway platform. He saw a man stumble over them, but that was not Leydon, whom he had known for some years.. .The night was dull and the lights dim. To Mr. McVeagh: The lights were better now than they used to be. Walter Jjuseph' Newton, manager of the Stratford Electrical Supply Company, gave evidence as to the Hgnting of the station. Saturday night was a bad night for the lights, so far as the railway people were concerned, because in the first instance there were not-enough lights; and in the second place, they were a lot of old carbon lamps which were rarely used. There should have been metallic filament lamps there, for the past two years, at any rate. He had, on one occasion, sixteen'months ago. been a deputation from the company to the stationmaster, asking that better lamps be placed there, as they thought the station lighting was disgraceful, lit that time the company was not in possession of its now power, and the lighting was very poor where carbon lamps were concerned.

To Mr. Ostler: The number of lamps had not boon increased since the accident, and the lights had h-m in tlieir present position for the Inst five years. He h.'d heard of the accident, through insufficient lighting. ° Dr. Steven, medical superintendent of the Stratford Hospital, deposed that Leydon had suffered from a broken kneecap, being six weeks in hospital. The injuries were of a painful nature at the time, and Leydon left the hospital on crutches. The injury was a permanent one, and it was now necessary that Leydon should use sticks. Indeed, suppliant could never safely dispense with those sticks.

Mr. Wylic, F.R.C.S., described the nature of plaintiff's injuries. Leydon would always suffer from a permanent disability, whicli would lesson under massage treatment, the cost of which was from 2 to 'V/ a guineas per week, and which would need to hist three or four months. The disability would never be removed, owing principally to the fact that the fragments of the knee-cap would always be separated: Mr. McVeagh' stated that his friend admitted that the tarpaulins were the property of the Government, and placed there by the Department. This closed the suppliant's ease. Mr. Ostler, for the Crown, applied for a non-suit on two grounds. First, that there was not snlVieient evidence of negligence on the part of the Department; audi second, upon the ground that even if there was sufficient evidence in His Honor's opinion to put the ease before

the jury, on the plaintiff's own evidence there was conceivable evidence of contributory negligence on the part of suppliant. His Honor said that he had no.doubt that the case should go before the jury. Mr. Ostler, addressing the jury, said that they admitted, and never had denied that a most unfortunate and painful accident had happened' to Mr. Leydon. He contended that the accident did not happen through any neglect on ifche part oJE the Department. They were well aware'iliat on the night in question the station was hot the. bent lighted place in the world, but evidence would be brought to show that not more than eleven feet from where the tarpaulins were placed, an electric lamp j was Burning—sufficient light to draVv ' the attention of amy ovdragiriljr carefwl I prudent man's attention to the fact that I there were two tarpaulins o» the- platI form. Was it not, he asked, their experience that all sorts of obstructions ,were placed on railway platforms? Of ! course, if the Railway* Department had . put something of a trap—dug a drain, for instance, and did' not light it—no doubt they would! conclude- that there i had been negligence on the part of some- ! one. But twe tarpaulins, several feet high, and lighted at both sides, wero not iin the nature of a trap. Was it not a case of pure accident m which the suppliant had suffered' through his own negligence in not looking where he was goMr. Ostler then called Frederick James I Jones, district engineer, residing at Wan- | ganui, who certified to the eorrectnes of a plan of the Stratford station, which plan had been freely used by counsel. The."-tarpaulins were ahout "nine feet away from one light, and nineteen yards away from the other. Tarpaulins wero always folded up into one shape. It was the duty of the stationmaster to answer for the lighting of the station. During his. five years in the Tawnaki district no complaint had been made to him about lighting except that lie had recently been asked to have another light placed at the northern end. The Stratford station was better lighted than some in his district, But worse than others. It was much the same as Hatarpaulins were generally, put, into the tham. -He had found it customary in the work of,'the railwayj,to leave tarpaulins on the Tjiey were much the same as luggage, aha" co'iifflft not very well get away from that. To Mr. MeVeagli: When not required [ tarpaulins were generally put into the goods shed. The weight of one tarpaulin was rather more than a man could lift. He thought the lamps were nominally 32 candle power;

James Alexander Rodi'e, relieving officer in the Railway Department, deposed that on the 22nd'of June last, he was relieving stationmaster at Stratford; the accident took place, he- was at the other end of the platform. When he arrived at the scene of the accident, Mr. Leydon was lying on the ground. He had not seen the tarpaulins before Mr. Leydon fell over them. When he first saw them they were in a line with the lamp-post, in'the middle of the platform, and about six feet from the lamp. Tliey had been removed' because one had been unfolded to allow Leydon to rest on them. The unfolded' one i/ok up about a space of 4ft. bv 2' it. In the working of the Stratford station, v.hi!* he was there it was decidedly necessary to have tarpaulins on the station to protect goods against the weather. The method of loading- goods was to take them by hand-barrow from the office to the "n, but a number of passengers brought their own luggage to the van. When the accident happened, the luggage had not been brought to the guard's v.-m. The tights from both trains were shining on the platform. To Mr. Malone: It was not a fact that the tarpaulins had come i*m fi'o-i thfl country by the three o'clock train and had been left on the platform. Ernest Joneß, porter at Stratford railway station, gave evidence to the effect that he was on dutv on thi> evening in fuestion, and had witnessed the accident. The tarpaulins occupied a space of about 4 feet by 2 feet. He was loading some fi'owls on a roadside waggon, an-' was just going to load the tarpaulins. Th'ce trains were in at the time, and the Hawera and Toko trains were opposite each_ other. The station was. in his opinion, not so badly lighted, and he had never heard of an accident occurring through its being badly lighted. To Mr. McVeagh .-The tarpaulins were placed there for.the purpose of bein" taken m the road-side waggon down to Wanganui.

. John Morrison, shunter, who was „,. sistimr the guard of the Toko train at the time of the accident, gave corroborative evidence.

This closed the ease for the deface. m * -."T* the jnry ' Mr " ostlp '- "aid that ,f they thought Mr. Leydon was not ookinor where he was going, they could not hold the Government respon

Mr •McVeagh contended that what the jni.V had to decide was whether or not there was any negligence on the part of m wt',*»?' W""*-™ •tVoceaslon wh". Mr. Levdon met with his acci-den,t-H«",lect of that ordinary C a ro tt4 I-" 1 ;' 0 man W0 " Id ««»i« m these circumstances. That was thn q..ost,on they would have to dec" e . Tn sum„„ng up. His Honor nut the foloyingfour questions to the iury .1 •in» the^/ u,]l iY of «<*]>« ,'„ lea,. '^ e ] ! l r'^^^' abided 'the J™ His Honor said hj» unab p > agree, and t hs n TerS. he C , ' l ? fi tn thr -- nounced that tl.nv i,„ 7'' ■ ttlen an " ~^T£yiS aan^adCtions in tlio om. i T " rPe QUesdamage" at /it™ "' ° ml ""«««« detlinf r: That i 8 ' «"""* the

His Honor: That is so . >e<(?h, who rep ed "Wi.nf . Mc " *■ that after fiE j™" 4 J»>T»nwg me Saturday W then a,, J oUrn « , «'. "11