SUPREME COURT.

Timaru Herald, Issue 170299, 19 August 1920, Page 8

SUPREME COURT.

TIMARU, WEDNESDAY AUGUST 18

(Before His Honour Mr Justice Sim)

IN DIVORCE,

Tho case David Rodgers (Mr Emslie) v] Mary Rodget's (respondent) and M. J;-Sims (co-respondent), was the only v-ase to be heard. 'Tho petition was on the gVounds of misconduct, and a. claim was made for £SOO damages. Mr Frnslio withdrew the claim for damages. Ho stated that the parties

were married on January IS 1912, at Palmerstori North. They lived together at Auckland for about 2i years, subsequently coming to Timaru to live at the-Royal Hotel, of which petitioner took a license. Tlic petitioner alleged, two occasions of misconduct between April 20 and May 25 of this_ year, of which, however, he did not intend to offer evidence. Respondent told petitioner she wished to go for a holiday in the North Island. Petitioner objected at first, as his wife had a short time before, on two occasions, gone on holiday, but later said ho would go also. Respondent at first demurred, .iiul petitioner bc-jame suspicious and hired the Per vices of a, private detective to follow respondent. Tbi= was done from Timaru to / Wellington. I!<■-!■ pouc'lent and co-respondent met at LyttcHon, and went on to "Wellington. They stayed at the same hotel ii! Wollingoii, and were watched by

the detective. They were served to- ' evthcr, in. respondent's bedroom, with tho citation for .these' proceedings, liospoiidcri't caino li; Timaru later, made a, full confession of what had !i.:|>pencd and asked to bo forgiven ■liul taken back. Tin's, however, 'petitioner refused to- do.

Evidence was given, by petitioner mid 13. W. Munns, private detective. I'fis Honour granted a decree nisi, to be made absolute ah the end of three months, with cost's on the lowest scale._ against co-respondent.

SENTENCED FOR THEFT. Hugh MeLaughlan appeared for sentence on a. charge of theft of a "n'cycle, sentence-having been deferred from, the previous day. Mr Enislio asked that the fine Hia Honour proposed to impose—£ls be reduced somewhat, owing to wesused's financial position, which' was "impaired owing to lii.i illness. The. case' could have been dealt with, Mr. Enislio contended, -in the lower Court with a slight amendment, and thereby accused would have been saved much expense.

His Honour said ho was disposed to give; consideration to tho points raised by Mr Ernslic. He would impose a. lino of £7 on. conditin. that Mr IDmslie undertook that it would be- paid. Mr Emslio did so.

RAILWAY ACCIDENT SEQUEL. Most of the flay was occupied in the rearing of :\ claim by Mrs Marguerite Fairbairn, of Christciuirch (Mr F. W r . Johnston) v. the King (Mr J. "W. White), for £213 damages caused by her being knocked down by a luggago trolly handled by an employee of the Railway Department. The followh'S j"'y was empannelled :—T. Currio (foreman), A. S. McConnell, Dennis. Hertiion. and A. F. Gibson.

• Marguerite Fairbairn, Christchureh. said she was a. milliner, and on December 30 last was pi-oceeding from Timaru to Dunedin. She was accompanied by her son. Pending the arrival of the train at Timaru she occupied a seat on the station platform, and .on the train coming into the station she walked towards the carriages. She stood about three or four yards from the edge of the platform , and as the train stopped" she hurried towards the south of the platform to look for her sou. As she turned, a. trolley struck her on tho shinbone of the right leg. She. had no warning whatever of the approaching vehicle. Tho trolley was piled high with_ luggage, and as a result of .it striking her she knocked over. The trolley was 'oeing pushed from behind. Witness also received injuries to her hand, arm and shoulder. Her arm, which was fractiured, wasset in Timaru. She returned to X'hristchurch where she was attended by her family doctor. She had sold her business in Christchureh, intending to take: a, holiday before again commencing business. Her net earnings were about £4 weekly while in business, and would have been nt the least £8 had she taken a situation as millinery saleswoman. She wa.g not quite fit to work yet, and still felt a stiffness in tho arm. For six weeks after the accident she had to be attended to at he t - home, which costt £2 2s per v.-Eck, ; and she had received massage treatment amounting in all to £27* 6s. She estimated that she had lostl six months' earnings, and claimed £IOO as general damages. She suffered a great deal of pain and inconvenience as a result of the accident'.

To Mr Wbit'e: She travelled from Christ-church to Dunedin about once a year. She was acquainted with the luggage trolley system, and had heard porters call "by your leave, please." She was standing opposite the ladies' waiting, room when she was knocked over. She did not look round before sice turned to walk southward on the platform. She had not said to anyone that she blamed no person for the accident. When she sold her business she" did not sell the goodwill, and there was nothing to preveut her starting again at sny time. She had no warning of the approach of th» trolley To Mr Johnston: She did not look round as she had no reason, to suppose there was an approaching vehicle. T)r. A. J. Orchard, Christ-church, said he, yaw tho previous witness on -the evening of the accident, and examined;

her. Her iei't arm hnd been, well set by Dr. Burns, temporarily, and witness re-set it. It was a "simple' fracture, and Mrs Fairbnirn was suffering! from pains in the lirffc shoulder. and had fresh bruises on the right' shin. She was suffering from shock. The particular 'jjone fractured interfered with many tendons of the arm which affected the working* of the fingers. Several weeks had to elapse before the full function of the hand was restored. The function of Mrs Fairbairn's hand was nearly restored now. The fall on the arm suffered by Mi's Fairbairn conveyed strain to the shoulder, which caused confusion of the articulating services of the arm. The shoulder was more difficult to restore than the hand, and was not yet better. He tiiought six months' allowance for incapacity was a fair proposition. Mrs Faii-bairn had tried very hard to improvo the movement of her fingers, but. the enforced inactivity of the shoulder J)ad necessitated a great deal of massage. To Mr White: There was no occasion to X-ray the fracture, which' could be easily felt. He considered plaintiff's age, adhesion in the shoulder joint, pain interfering with free movement, and causing immobility of the joints had retarded recovery. £ This concluded plaintiff's case. Oscar F. Haselberg,' railway porter, employed at. Tim am, said that on the date of the accident the platform was not crowded on the arrival of the south-going express. The express was up to time, and was a, special from Christchnreh to Dunedin. "While he had been employed as a porter be had not had an accident. He was in charge, of thp trolley when Mrs Fairbairn was injured, and with the luggage on the trolley witness could easily see over the load. He called out loudly and distinctly as he travelled along the platform on -die occasion in question. Witness saw plaintiff looking northward as tile train was entering the station, and had a clear way past her, but just asi he was alongside Mrs Fairbairn. she stepped back from the dust and draught caused by the engine, and was knocked over by this comer of the trolley witness was pushing. If Mrs Fairbairn had not stepped back witness could _ easily have passed her without mishap. He had plenty of . time to do what he wished and was not hurried.

To Mr Johnston: He was blind in hia right eye. The waggon he had was loaded with booked parcels, which were received up to half ah hour'before the arrival of a train. These parcels couLT not be taken along tho platform' before the train arrived, because other 'work had to be done. Plaintiff might not have heard him calling out. She stepped back about twelve inches. Witness saw plaintiff about twenty yards from him, and she was then looking away from him." Title trolley he was pushing was a big; heavy one with iron wheals- PlamtStf gave no indication that she knew of

his approach. Ho would expect; her to 1 iarc been hit about tho thigh. . and as ,siie stopped -right back lie did not know how .her shin was bru:i?ed. V. P. .Fisher, paid that on December 30 -last, he was in the employment oi : tho Alpine Dairy Co., and was on the platform when the special train from Christclmrch arrived. He corroborated the evidence of •the previous witMrs -Catherine Morion, waiting room attendant at- Tima.ru station, said she was standing at th e door of the ladies' waiting room when the, express came in on the date in question, and saw plaintiff being assisted to her i'eet. Witness helped lior into tho waiting room. Wliile there plaintiff remarked that «fte did not see tho trolley corning until it was on her. -'lt seemed as though it had sprung up out of tho ground." To Mr Johnston: There was some difficulty in getting a. doctor, and Mrs Vairbairn seemed to bo suffering considerably and was much distressed. Samuel Andrews, stationmaster, Timaru, said he was on the platform on ihe date, in rpresLion wihen. the Dunerfiu special arrived. The station was notcrowded; there was ample room to move about. Woven passengers were booked lor ihe train plaintiff intended to tiavel br.

To Mr Jolinsl'on: lie did not l.now of any occasion when the usual signal' of ua, approaching trolleywas not sufficient. He could not. recall any occasion ot anyone being knocked down. Mr White, in addressing the jury, .submitted that the evidence, for the defence, clearly flowed' thn-t the accident was caused, entirely through the fault of' plaintiff in stepping kick quick-h----and not looking round to see if thcro was an approaching tiollcy. He contended that, the porter liad taken the usual and necessary precautions and care against accident, and in. his crossexamination, remained 'unshaken in his Testimony. lie quoted authorities at length on the question, of negligence and responsibility, and definition of ilie d'.r ; ' m|" pedestrians on highways. If the ,'ident -was contributed to "by phituiiff she was not entitled to recover. Plaintiff admitted her knowledge of the trolley system, and therefore stepped back at her own risk. Mr Johnston contended that luggage could easily bo taken along the station before the arrival of a. train, when, traffic and stir were at their height. Luggage had to be received by the Department twelve minutes before the arrival of the train, and ho submitted thcro was ample time for it to be conveyed to any part of the platform before the arrival of the train. The evidence of the porter, he contended, loft mo doubt :'s to negligence. The porter said le had plaintiff in view twenty yards away, and yet, although lie had about 11 feet in which to pass, he contented himself, on his own statement, with passing a, foot from where plaintiff stood. It must have been obvious to the porter that plaintiff did not hear his approach; he admitted she could i-.ot have done so; and yet he went close up to her. Counsel dealt with the authorities qu'oted by Mr White as to contributory uegligenee on the part of plaintiff, and contended that there was no suspicion of negligence in plaintiff stopping bsck or turning round when she had no ground for supposing, not having heard any warning, that there was a luggage trol'ey bearing down upon her.

His Honour briefly immmed up. The plaintiff, he said, claimed £213 ck. mages by reason, of injuries suffered at Timaru railway station on December 30. The foundation of the claim v.-as lvgligeneo on the part of the Hail way D<■■pi.irtmr.nl, or one of its servants. The defences was that the injuries suffered were entirely due to plaintiff's own action, and that there w.as no' blame, attributable to the Department, The first they should consider was as to the t'.egligence of the Railway Department or of its servants. If they thought there was any negligence, what nas it? Counsel for plaintiff asked them t 0 say that the entire system employed by the Department was at fault, and that the Department had no business to run. luggage trolleys along the platform when a train was arriving or departing. In this connection, however, there was evidence that the present system had been in use for 34 years with very few', if any, accidents. Counsel also asked them to say that the porter was gtalty of negligence because he pushed the trolley too near plaintiff.when there vus plenty of room to pass on the platform without going near her. It was for the jury to say what they thought of the contention. The third issue was directed to the question whether Mrs Fo.irbairn was the cause of her own injuries'. Did she step hack against the trolley, and, if so, was that negligence on her part, and was it the cause of the injuries suffered? His Honour dealt at length with the evidence on the point as to Mrs Fan-bairn stepping back, and s;;id the final issue dealt with* the claim for damages. . The claim included j3 guineas for doctor's l fees, 12- guineas for personal attendance, 12 .'guineas for massage. Altogether accounts were attached amounting to £32; £75 for kss> of earnings, ajid £IOO general damages, which he considered was a roasonaablo claim. They need only consider that. however, if they were satisfied the injuries were caused through negligence on the. part of the Department or its servants.

The jury retired at 3.45 p.m. and returned, at 4.25 p.m. tp ask as to the direction in. which plaintiff was f.-eir.g when the train arrived. They again retired, and icturned at 5 p.m.. with a verdict, that the plaintiff : s injuries were due to negligence on the part of the Railway Department, or its soivant, through, pushing a loaded waggon along the platform of the station when a train was arriving, and that damages' would be awarded for the mount claimed—£2l3.

Mr White asked leave to move for a retrial on the ground that the verdict was against the weight of evidence. His Honour entered judgment for plaintiff, with costs and witnesses' expenses on the lowest seale, "but gave leave to the Crown, to set aside the judgment. Mr White said he would require to communicate with_ Wellington in the matter of a re-hearing.

His Honour, suggested that if the case was; to he again opened ohe_ better course would he to arrange io have it taken before, the full Oov-rt nt Wellington at the nest sitting of the Court of Appeal. _____«_--___