NO ASSAULT PROVED

Taranaki Daily News, 20 November 1934, Page 5

NO ASSAULT PROVED

SUPREME COURT NON-SUIT - PLAINTIFF LOSES RIGHT EYE. EVIDENCE FOUND CONTRADICTORY. The evidence called by the plaintiff regarding the aggression in a scuffle, eventually followed by the loss of an eye, was too contradictory, said Mr. Justice Smith in the New Plymouth Supreme Court yesterday in non-suiting a claim for £6OO damages. The claim was made by Joseph Collins, painter, Hawera, against James Phillip Nicholas, carpenter, Wellington, and arose out of a fracas between the two on a building contract at Mahoe on March 16 last. In the course of the fight Collins’ eye was damaged and he later had to have it removed. He claimed £lOO special damages and £5OO general damages. Mr. L. A. Taylor (Hawera) appeared for Collins and Mr. R. Hardie-Boys (Wellington) for Nicholas. After Mr. Taylor had concluded his case for Collins Mr. Hardie-Boys applied for a non-suit, which His Honour granted, observing that no medical evidence had been called and that the evidence of Collins and the supporting witness, J. Steiner, had not given sufficient corroborative weight to the claim to enable the action to proceed. Collins broke down when judgment had been given. Regarding the lack of medical evidence Mr. Taylor explained to the court that Dr. R. Brewster, New Plymouth, who had first attended Collins, had had to give the case up owing to ill-health and could not be present, and that Dr. J. Caimey, Hawera, was away on university business at Dunedin. FIGHT AT MAHOE. The issue was whether the damage to Collins was caused by assault, inevitable accident or in a give or take fight, said Mr. Taylor. Collins claimed that he had been set upon in the course of his work and that any force he had used was in self-defence. Collins was a painter and Nicholas a carpenter, and both were working on a contract building a .house at Mahoe. Nicholas was in the habit of keeping his whippets at the .job and it was alleged that he had moved trestles and planks used by Collins “because they were in the way of his dog.” Collins moved to pick up the plank and was hit by Nicholas. A fight developed and Nicholas’ outstretched fingers tore one of S Collins’ eyes half out of its socket. The eye had since been removed. Collins was claiming £46 2s hospital expenses and had not worked from March to October 19. There was a bill from the hospital board for charitable aid amounting to £39 Os 9d for which no claim was made. The claim for damages would have been greater if Nicholas had been a man of more means. Joseph Collins said he had been working for Ward, a contractor of Eltham, on and off for two years when the alleged assault occurred. He had reasonable expectation of at least six months more work wfth Ward as at that time, working as many hours as he liked at Is 3d. He was satisfied with that wage to help Ward, who was not well off and had since gone bankrupt. Nicholas had remarked to other people that he would not work for such small wages and had said to Collins he would not work after 5. Collins had said he had a wife and family to keep. Two or three days before the incident Nicholas had lost one of his whippet dogs, which had met with an accident and had been .given an overdose of chloroform by a chemist. Nicholas was "cut up.” Before lunch on March 16 he had the trestle and plank he worked upon against the dog kennel in which Nicholas kept the remaining dog. He found after lunch that the trestle had been overthrown and Nicholas said it had /been in the way of the dog. Collins said “to hell with you and the dog.” and stooped to pick up the trestle. Nicholas “cracked him on the jaw” and then threw him down and was throttling him when Steiner, for whom the house was being built, stopped them and warned them against fighting on the job. Collins said, “If you want to take it out of me, Jim, do it afterwards.” Nicholas said, “Here and now will do me.” In the scuffle that ensued Collins’ eye was half torn out by Nicholas’ outstretched finger. Nicholas packed up his tools later and told Collins he would leave him to carry on. Collins said to Nicholas, “Jim, this is going to cost me a lot of expense and; worry; . are you going to pay for it?” Nicholas replied, “No, you asked for it. Collins then went to Hawera in Steiner’s car. REMOVAL OF EYE. His eye was examined by Dr. J. Cairney at Hawera and he was later attended by Dr. R. Brewster, New Plymouth, and Dr. W. S. Baird, Wanganui, his eye ’being removed on June 12. He had commenced relief work on October 19, although his one eye, the left, was sore and would not stand the light. Both eyes had been quite good before the fight. He’had been off work 31 weeks and cal- . culated his average earnings at £3 a week. His right eye socket was painful and the pain had to be eased by aspirin. 1 Mr. Boys: Did you tell Mr. Ward 1 Nicholas hit you in the bad eye?—lt was 1 bloodshot. 1 Have you ever been in hospital for that eye before?—Yes. 1 Collins admitted he had been in the ] New Plymouth hospital for 11 months < in 1925-26 and six months in 1927. It i had perhaps been a chronic complaint « but it had all got better. ( When a patient in that ward in 1925 26 < pulled up a blind and let the light in I you asked that it be pulled down be- < cause of the pain to your eye?—l may J have done. t Are you willing to have the verdict of r the New Plymouth hospital authorities 1 on your discharge produced?—My eye I was all right afterwards; the Indian doctor cured me. t You knew your eye was liable to go £ blind at any time?—l was able to go t and work 12 hours a day if necessary. Collins said he had told the Welling- ( ton hospital authorities in May that his 1 eye had been hurt by a man catching [ a falling ladder, because he had not wanted it to be known he had been hit in the eye. He told the same lie to Dr. Caimey at Hawera. He did not say that because he was after workers’ compensation; he had told Dr. Baird at Wanganui " he could not claim compensation. He s had been in. hospital and had been unable to prosecute police proceedings. t Collins admitted having been fined £1 t for allegedly assaulting two Chinese at g Stratford. That was a long time ago. e Mr. Boys: Is there any other time v you have lost your temper and used o your fists? What about that brawl in Wellington?—l think you are trying to e bamboozle me; you are telling a fib. I s was never in a fight at Wellington. r Collins said he had asked Nicholas, a „ “Jim, have you got your knife into s me? If you have, take it out of me t afterwards.” He did not move to the a piece of flat ground to fight but to de- n fend himself better. e OPINIONS ABOUT UNION. . c n His Honour: You thought that if you « let him take it out of you the relations would be more amicable afterwards? — a We were the only two on the job and s, there were his opinions about the union, tl

Mr. Boys: Why did you say you had been blinded immediately after the blow? Was it not because it was something you had been expecting for a long time?— I was working long hours, all right. John Steiner, farmer, Mahoe, said both Nicholas and Collins bached in the part-ly-constructed house. Nicholas keut both dogs in kennels at the place. He saw no enmity between the two men till he saw them fighting and told them to stop. Collins, who was on his knees, said it could not be helped. Steiner then went back to his own whare. Later Collins came along with his eye damaged and Steiner took him to Mr. Ward at Eltham and then to the Hawera hospital. They went without Nicholas, who said he was not ready, after waiting half an hour.

Thelma Collins, wife of plaintiff, gave evidence of the condition of the damaged eye. There was blood from the eye, she said.

Steiner, recalled, said he did not taKe Collins to the hospital. He took him to Eltham, where he placed steak and a bandage on the eye, which did not look ‘too good.” NON-SUIT ASKED FOR. “I ask for a non-suit,” began Mr. Boys. ’T submit that Collins has not proved an assault.” “The essence of plaintiff's evidence is that the injury occurred after Collins invited Nicholas to a smooth patch of ground and before he reached it,” pointed out His Honour. “The supporting witness, Steiner, contradicts the essence of Collins’ evidence. What can I do?” Mr. Taylor submitted that Steiner’s evidence was confirmatory in that he said Collins had explained the fight could not be helped. Collins had submitted to a long cross-examination, without being shaken. He had suffered a “crack” on the jaw while stooping down and the assault had gone on from there. He submitted that Nicholas must undergo crossexamination.

Mr. Boys said that the fracas that occurred after Steiner’s intervention could not be joined to the first fracas. Theie was an interval between. The statement of claim asked for damages for the loss of the sight of an eye, said His Honour. It could not be said the original blow on the jaw. had any-

thing to do with the loss of the eye. Later, Collins had said he invited Nicholas to go to a piece of flat ground and take it out of him there, but before they reached that ground Nicholas “flew at him.” Steiner said a different thing, mentioning Collins being on his knees at a different time to Collins’ own statement.

In his opinion, continued His Honour, the lack of medical evidence and the facts drawn out in cross-examination of Collins’ weak eye was enough to justify a non-suit. It almost seemed as if the plaintiff was afraid to bring the medical evidence. It was impossible to ask the court to find for plaintiff with such a lack of medical evidence. Accordingly the claim would have to be non-suited with costs.