MAGISTERIAL

Timaru Herald, Volume XIIC, Issue 13682, 26 August 1908, Page 7

MAGISTERIAL

TEMUKA-TCESUAY, 25ch Al/CCST

before -Mr C. A. Wray, S'.M.J CLAIMS FOR DAMAGES. Rn<*an Williams v. Thomas Gunmen, a claim" for £75 damages for injunes received throu-h defendant» noises running him down on Sunday, 21st June, 19C8, in the public thoroughfare. Mr Raymond appeared for plaintiff, ami Mr Aspinall for defendant-. .Mr ltavmond called Rogau "William*, who w;is employed at Trtveiina, and said he was 65 years of a*e. He was coming to Temttka. from Milford on the Sunday named, tiding a bicycle, and had u light. As he approached Gttnnion's he noticed some hois.-s «>n the road; he avrided two of litem and thru a iu»b i>t th*-»i i*»* <»«t of in* •stables and on* of them crashed in<» him ..ppo-ite the At stables, lie could not say lhr exact number of hors«t> as he was tnoeked Hensehuw. Remembered nothing further until recovering consciousness *>n the following day in the- hospital when Nun t Story asked him where he had 'been, 'had no drink that day. Was t.n the at-.iv frnm his daughters to the post of-li.-e with a letter when he was "run down. Had paid £1 15s to Nurse Story for at"Wudaiice and hat! been billed for £5 for 'the doctors. Had b.en incapacitated for six w-ek*. and was suffering frcrn d'eafas a result. Went ;,nd saw Mr <.;unuinu shortly after, and he said, "I Sieur vou had a spill." I rep.ied, " Ye*, li-.im "your hotses." He replied with a -laughing sne?r and went into th>? sample munis, "■saying " I have heard so many v.trns I don't- know which lo believe."

l'u Mr Aspinall: Did net remember beiny i'i the I'rcfhyterian Church; remem-b-rvd nothing alter [lie accident. The hois*, struck him on the right handle and he was thrown <>n to the pavement. lie di<r ii"t strike the pavement with hi* bicycle fw avoiding the horses, and then got' tho fall. He. had an acetylene lamp. Ifid not get tight on. the previous night, failed i.if Mr Gunnion at liw stabler; Gunman did not wait until witness made the demand on him ; he walked away sa-vinir, " Humph, my horses." The wound was on the left hand sidt> of the

J.ead. Lucy I.ennie. living in Temnka, said that" on Sunday, 21st June, she was in the sireet. Just as .she was passing GunjiionV a good many horses, probably a dozen gall-ped out," making up the road; «hev wvre all over the- road. Saw a man on a bicycle, and one of the.houses jcame in contact with him, and he, fell against the kerb. She went to his- assistance. He was lying with the bicycle on top of him; liTs head' was in the gutter; he could not get up himseif. She went into Sim"s astables. and called a man who came out to his assistance. Believe the man was «*ber. Asked the man who was then heiug held up by two men if he was hurt ; one i>f them replied "So." To the Magistrate: He was riding the Imryele slowly when I saw him fiist. WilJiann w-*s the man. . To Mr Jiaymond : Had previously seen h< rses comer "«>nt of the same stable in 1 a, like manner. T.. Mr A-pinall: When I first saw Williams he was not far* *«ay. He was near fcims' stables. I was toJking past Guniti..ii's stable when the .bots&s came out and was opposite the army barracks when the accident happened. " Aiif v*l u ' tft K ' r " tain the horse struck the bicycle;" he W: J S Thrown on hw left side. - My memo?*}' W wit vague on the point, and I did not excited. Saw no on-o standing at Gunnion's stable- except the man who let the horses out. To Mr Raymond: A man who was in charge of the horses, came cut of the stables first; they went in the direction of the railway crossing. Am certain the liors*s came in contact'with Williams. l>r Hayes said Wi.liams was brought to hi.* surgery in a dazed condition. Hi> hail a wonnd on the left side of the head ab'itit li inches in length. It was quite possible that William* may have been da/.ed and that there would be a gap in hit, memory from the time that the accident happened to his being picked up at the cheese factory. He would recover fairly rapidly. Three, weeks woidd be a reasonable period in which he should re-t-over.

To Mr Aspinall: Ihe boy who brought htoi to me said he thought he had had u jjt. There were no tigns of epilepsy ahouy. him.

To the Magistrale: I have no leasun tii believe that he was suffering from anything but. the result of an accident. 1 thought at first he had probably fallen from his bicwle.

To Mr A*irin;iH: li-?rnemher?d attendhim some years ago. wh-n he was ill «► Marker's. Could not fcay at present what the ailment was at that »im>\ Th. re was no injury to the tar. Do not cnnsiiier his deafne«> any worse now than previously. .Tamt-s" Guild stated that Williams was on employee of his; never knew him fo <l*iDk. He was * temperate man. Uf>

was dazed for some days aft«.n.- returning to work. F. J. Cooper, caretaker of the Presbyterian Church, said he saw Williams on the night of 21st June come out of the church. He had a gash in his head and his clothes were covered in dust. He got on his bicycle and spoke to the Rev. Mr Macdonald with whom he shook hands. They both remarked that lie seemed strange., in his manner. He got on his bicycle and rode away in the ditection of Trevennu.

H. Forward said he was called to Williams' assistance, and found him bleeding at the head. Ordered him to go to the chemist. He returned soon after saying h-3 could not find one; he ' took his bicycle and then went away.

To Mr Aspinall: The horses were passinn; ;i S Mj..-s called me. Did not think it advisable to send for a doctor.

Geo. Aunitage, a youth, working at Winchester, said on 21st June he was riding home when he came across a man lying on the road. Went on io Dobson's and got assistance. Dobson examined Williams who was unconscious. Got a trap and assisted him to the hospital. Mr Aspinall asked for a nonsuit on the ground that Gttnriion was not liable for the action of his horses unless they were fractious or of a dangerous chaiactcr. He quoted an English ruling in support of the same, Cox v. Yerbage. There" was also a New Zealand case Northern Steamship Company v. Fleming. His contention was, that no neglect was shown by Gunnion.

His Worship said these cases did not apply, there was evidence of negligence, and he did not call upon Mr Raymond to reply. Mr Aspinall then called James Duff, stableman at Gumvjon's, who said he turned out the horses on the night in question, followed the lasb ope and did not see any person knocked down by the horses. It was a dark night and he saw the homes pass the railway lamp 2j chains away. Returned to the stables and from the door saw a lamp lying oif the opposite side of the road; went: over and saw a man lying on the ground with a bicycle between his legs. "With Flynn and Forward they look him into .Sims' stables and washed his wound. Ho said something about b:-ing knocked down by the horses.-

To Mr Raymond: About 12 or 14 horses were all that Gunnion had in work at this time.

Jerry Flynn gave evidence ative of the previous witness. After Williams had been taken into the stables he said he had been kicked or run-into by a horse. Did not think Miss Lennia could see tne horses from where she was standing. Williams' head was bleeding. To Mr Raymond: You suggest io us that Miss Lennie is telling an-untruth. Witness: She must have been very close to the man. Mr Raymond: Just so.

Thomas' Oldlield said Armitago called at his place saying a man was lying on the roatl. Went up and saw him, he was frothing at the mouth and vomiting. Nurse .Story gave evidence as to the condition of Williams when he was brought to the hospital, also the purport cf u conversation that took place next morning. Ella Nicholas, assistant at- Nurse Story's room, said she had a conversation with" Williams on the morning after hi,admission. He said he tried to avoid the horses aud he struck the kerbing. He supposed they were Gunnion's horses. 'Thomas Gunnion, defendant, said he away from Temuka when the accident ' happened. He first. saw a report in ihg Temuka paper. Met Williams a few davs .rfter. He said "You know something" about' -this-" * replied "T dnot think so." "Seard no complaints at anv time regarding the driving of hts horses. It was the general custom in Temuka to drive horses as he had been doing. It was some days after the accident that witness learned that Williams was supposed to have met with, the accident as a result from hfc horse*. To Mr Raymond: I did 1104 go to the hospital at any time to enquire for Williams. I do liot admit of any legal claim and have not been approached by any one to make recompense to Williams. Messrs Aspinall and Raymond having addressed the Bench, the Magistrate said the first question was the cause of the accident. There was no reason to doubt Miss Leunie's evidence; she- was a. disinterested witness. This evidence taken with that of other witnesses was to the effect that the horses were going at a fast pace. The custom of iurning out horses in boroughs was certainly one o>f negligence, and it was evident that defendant was. liable. In some boroughs iti was a rule that horses must be led : if not coiiseo(nences must follow.. The only other qmstion, therefore, was the amount of damages; he thought the amount cl.iimed was excessive in face o,f the fact that no evidence was produced tb;>t permanent injury wan done to Willinm«. He would the damages ..it: £lB and ccets, Th*t would

be the judgment of the Court-. William . Eagglestone and. wife v. Thomas Ciinnard> claim for. damages owing to ■defendant running" down -Mi's Eaggiestone arid causing' such, damage as to require medical attention.He claimed £2 Is medical fee. niu'fiing i.H-.-: ±J'2. arid loss of labour M. '-.■■.

.Mr Aspinalt appeared for plaintiffs, and Mr Raymond for defendant. -' Ue'lla* Eagglestone gave evidence of (he eoliir-ibn niid <the damage diir.e by the defendant who ran into and knocked her down. She was breeding profusely at the nose and was dazed at- a- result.- of tfi3 accident. When Cunnard got tip his bicyebi handles were broken, and his tronseis torn. She was only claiming for her lose of tinie and doctor's fees.

To Mr Raymond: Haw th-e police at the 7.20 p.m. train; that nu, three-quar-ters of an hour la tor.

William Eagglestone gave coi roborafive evidence.' AYhen his wife got home rshe was very ill. He was positive that. Cnnnard was the man. To Mr P.aymond : Noticed the time w:s 6.30 p.m., because the train sank was just leaving the station.

I)r Crawshaw stated that, he attended Mrs Eagglestone on 22nd April. She had met with a bicycle accident. Time was a bruise on the face, on the light hip, and one on the left krn"\ A'i nded her to 16th May, and during Ihai i.me- she Has incapable of work. Mr Aspina'.l put in the boiough bylaws. Mr Raymond Raid the defence was that the case was one of mistaken identity. The defendant said he remr-mbered Enster Monday. He was at thii sports and after they were over went to Fisher's yards log» t, a bicycle and ride it home. Edward Tarrant, had been at his house that night, and after tea they went into the yard and he accompanied Tarrant to town*. They went to the Wallingford' Billiard Rr.om and remained there tilt 7.30 p.m.. and went into the Drill Shed to the dame remaining there, .until 1 a.m.

To Mr Aspinall: Did not see the Saggiest ones at any time on the date in question, nor run into (hem.. Michael Sullivan, generally corroborated Cunnard's.evidence. Edward Tarrant and Coiu-tab'e Glass also gave evidence.

The Magistrate ."aid the question was had plaintiffs proved Iheir case. He was-' not. satisfied that they had done ko. Judgment would be for defendant with cr.sts.