MAGISTERIAL.

Star (Christchurch), Issue 3491, 19 June 1879, Page 3

MAGISTERIAL.

OHRISTCHUBCH. "Wednesday, June 18CIVIL CASES.

BBapoNsißiMTY ov StTHGKONS. — Before taking up the ordinary business of the' Court, Mr Hellish gave judgment in the ease Nedwill v. Edwards. He had been furnished with authorities bearing on this case, and had looked them up. The law appeared to be perfectly clear that in those cases where an operation was performed by a medical man, and the operation, through the unskilfulness of tho Burgeon, resulted unsuccessfully, payment could not be claimed ; the defendant in a civil action would not be liable. In the present, case it appeared that the doctor was called in by the patient for the Eurpose of performing an operation which ad been recommended by the ordinary medical attendant of the patient. Though the operation in question did not turnout successfully, the evidence was not such as to exempt plaintiff from his liability. Judgment would therefore be given for the amount claimed.

" HOKBE Chopping."— G. P. Wascoe v. J. Jackson, claim £24 4s j Mr Joyce was for the plaintiff, and Mr Izard for the defendant. In this case it appeared that plaintiff, hearing defendant had a horso which would suit him, went to him for the purpose of effecting a purchase. He " chopped" a horse of his own for defendant's, and gave him £14 in money. On the receipt for the money, the horse was warranted to be staunch and sound. Subsequently plaintiff fonnd that " the horse t/as not what he was represented to be, not by a thousandth part," and after corresponding with defendant he sold the horse for what he would fotch. On the part of defendant it was alleged that he only intended to warrant the horse to be staunch, that he was but a poor reader, and that he had not the slightest idea of the actual contents of the receipt. His Worship gave judgment for plaintiff for £10, defendant having also to pay costs amounting to £5 10s.

Miscellaneous.— P. Davis and Co. v. W. Everett, claim £16 49 8d ; judgment by default for amount claimed, with costs. — Same v. M. Everett, claim £25 16* ; judgment by default for amount claimed, with costs. — M. Gould v. J. Fotheringham, claim £40; adjourned by consent to June 25. — H. Chislett v. B. Hugheß, claim £20 j judgment by default for amount claimed, with costs.— J. 8. Wagner v. D. N. Easlea, claim £14 1b 6d for board, &o. 5 judgment by default for amount claimed, with costs. — Same v. C. Shirreff, claim £38 4s; judgment by default for amount claimed, with costs. — Gapes and Son v. W. Cummings, claim £20 16$, balance of account for goods supplied. The debt was contracted in 1876. Defendant now offered to pay £5 in about three weeks, on receipt of money due to him, and £2 per month afterwards. His Worship decided not to make an order at present, so that defendant might have an opportunity of making some arrangement.

Claim fob Isjcbies. Daniel Taylor v. W. Brice. This was a claim for £50 for injuries eaid to be sustained by an accident occurring in Cathedral square on tho evening of May 6, when plaintiff was knocked down by defendant's pony, which had escaped from a paddock. Mr Joyce appeared for plaintiff, and Mr Thomas for the defendant. Plaintiff's claim was made up as follows :— Eight weeks inability to work, at £4, £32 ; medical attendance, £3 ; permanent injury to health and bodily pain, £15 5 total, £50. Plaintiff deposed that he was a blacksmith, and that on the evening of May 6, about 7.30, he was in Cathedral square, on the footpath between the Cathedral and the Bank of New Zealand. He had no distinct recolleotion of any occurrence, save that he afterwards found himself in tho Hospital. Subsequently ho saw Mr Brice, who stated that he was not in a position to give compensation, and that he supposed some larrikins had let the horse out of his paddock, which was near the foresters' Hall. Witness afterwards saw the paddock. It had slight posts about ten feet apart, and three by one inch battens nailed along the top. In two or three places there was a top rail only, there being a space of four feet three inches from the ground to the rail. The gate waß fastened with a small piece of twine, and it would open either way, having no stop to it. In consequence of the accident he had been unable to work for six weeks, his collar bone having been broken. He was seriously hurt. He was renting a shop at the Thames, and had arrived in Christchurch a few days before the accident happened. The ordinary wages of a blacksmith ranged, he believed, from 10s to 14a per day. Mr Brice gave him a pipe in lieu of one he got smashed, and on the following Monday tendered him £I to pay fbH doctor! This he refused to take/ ' ■-■'■• -■■• • -• . i; ..._ ...'■ ..

In reply to Mr Thomas, plaintiff said that during the few days he. was We before the accidentVHe. did not/look for work, as he desired, if possible, to enter into partnership with some; one. ,He wandered .that a broken collar bonßtWOuld prervent him from going into partnerahip-^thyapy one, that waito s»y r fr working^ partnership such as ~he-oon«

templated. As yet he had been billed' only withal la for -medical attendance, by Dr Chilton, and the actual time he had now been but of work was six weeks. The letter produced, claiming £25 from Mr Brice, was, he Bupposed, Bent by his authority. ■ Mr Joyce said that he, as plaintiff's solicitor, would take the responsibility for that letter.

Be-examined : Plaintiff said that at first Dr Chilton had thought he would be all right again in three weeks. The only capital he could put into a business was his labour. In the course of a conversation, Mr Brice told plaintiff, he had sustained heavy losses lately. Constable John Daly gave evidence as to the accident. The horse came along at a furious rate, and near the bank corner a man was knocked down. He was quite unconscious, and unable to more. The horse then turned, and went over to Mr Brice's. Mr Brice came out, and gave the man, who was then being supported to the hospital, half-a--crown. Ihe man was lying, not on the pavement, but on the stone pitching where the carriers' waggons stand, about six or seven yards to the left of the crossing. It was not exactly a dark night. There was a gathering in consequence of the Governor being about to pass. Mr Brice was afterwards speaking to witness about the accident, and asked witness if the man was endeavouring to stop the horse when he was knocked down.

1 To Mr Thomas : Witness could not say he heard the horse until it was immediately passing. Saw the horse turn from Colombo street to the left. The man might have been thrown down on the crossing, end moved back a little.

Dr Chilton, who was next called, desired before giving evidence to produce the subpoena served upon him. This was, he believed, a civil action, and he thought that a fee ought to have been given to him at the time. He had said then that he should object to give evidence before receiving his fee. Mr Jojce : You are in Court now, doctor, and you will have to be sworn.

Dr Chilton: I think it is very bard that I am to be compelled to leave my duties, and attend to every dirty little civil case that may be brought from the Hospital. Mr Joyce : You must not make such remarks as those, Dr Chilton ; I cannot allow you to speak in that manner. His Worship : I think, Dr Chilton, that I must refer you to your solicitor. You can look to the person who subpoenaed you. Mr Joyce : Now, doctor, if you think this is one of the dirty little civil cases, perhaps you'll say what you know about the matter. Witness deposed that the patient was not kept as an in-patient. The fracture waß well now, and the man was perfectly able to go to work. He would be able to use a sledge hammer, the fracture being perfectly well healed. Witness was not at all prejudiced, although he had not got his fee. To Mr Thomas : He did not think it necessary that the man should wear a Bling, as he was doing. Thefracture was a troublesome one, but only in consequence of the man moving about. That might cause one portion of the bone to get behind the other, and delay the healing. His fee was 21s, and there would be no further charge. Thomas Bryant, who saw the accident, said plaintiff was walking along the footpath, and as he took his second step on to the crossing, to 'go over to the Bank of New Zealand, the horse turned sharply out of Colombo street, and knocked him down. Witnees had been fencing for four or five years in Canterbury. Had seen Mr Brice's paddock. There was no {mortising, and it was 4ft Gin or sft from the from the ground to the rail. There was no wire or anything below. To Mr Thomas : The timber used for the rail was inch board, about 4in wide, nailed along the outside of the posts. The wood appeared to be white pine, and it was all old stuff. The horse seemed to be a small one.

- Thomas Johnson; carpenter, who stated that he had been out here about thirty years, said that the horse in question seemed to be a large pony. He had seen the railing of the paddock ; it was pimply tacked up. He would be surprised if a horse stopped in the paddock. Mr Brice, the paintiff, was called by Mr Joyce. He deposed that about one hour before the accident he saw the pony in his paddock. He bought tho pony about eighteen months previously for £20, and sold him the day after the accident for £3.

To Mr Thomas : The pony was the quietest animal that could be imagined. The night of the accident, witness tied her up at the back of his premises, aud she knocked herself about very much. That was why he sold her. Had known horses to be kept in the paddock referred to, for four or five years, and when he got possession he repaired the fence. A second horse was in the paddock on the evening of the accident, and did not get out. Had that evening noticed that the gate was tied, and that all the rails were up. On going homo, he found that the zinc lining of a case had been dragged into the middle of the paddock while he was away. The fence was in precisely the same state, there being nothing whatever to show how the pony got out. Some boys took the pony out of the paddock a few months ago, and rode her all over the place. Saw plaintiff tho day after the accident, and nothing was said then about medical expenses. A few days afterward?, witness said he would pay the medical fee, and would not Bee plaintiff stuck for a pound at any time. Told him that he (defendant) had no control over the pony with reference to the accident, and that by having to sell it he had himEclf sustained a loss.

John Wright, grocer, Oxford terrace, gavo evidence that ho had kept horses in the paddock, and that on one occasion they knocked down a rail and got out. Ho thought that at a place next the gate the pony might get out even underneath the rail.

For the defence, Mr Wright, chemist, stated that he had a horso in the paddock for about six weeks, without its getting out. Did not think the pony could have got under the rails.

Mr Brice recalled, said that the pony was about 14 hands high, and that it had been driven in a buggy. Sergeant Wilson considered the fence suffi* ciently strong to keep a horse in. Mr Thomas, in addressing the Bench, contended that to render his client responsible negligence must be proved, and that this had not been done. It had been shown that the paddock had been used for horses for four or five years past, and the purely accidental occurrence might have- been primarily caused by larrikins opening the gate and letting out the pony. The defendant also suffered by the accident, and the plaintiff certainly was not prevented from carrying out any business arrangements^ as li 9 was walking about on the day following tho accident. His Worahip decided to give judgment at eleven o'clock next morning. This Day. (Before G. L. Mellish, Esq., R.M.) Illegitimate Child.— John Haggio was brought up on remand charged with failing to support his illegitimate child, and was remanded to Wellington. Ohubltt to a House.— John Lincoln pleaded guilty to a charge of driving a horse with a sore shoulder, and was fined 10s and costs.

Civit Cask— Claistfor Injuries. — Daniel Taylor v. W. Brice, claim for £50 for injuries sustained by an accident owing to defendant's horse' kndciing plaintiff down in Cathedral square, on May 6. This case was heard the previous day, and judgment adjourned. The counsel in the case now agreed to enter a judgment for defendant without costs. His Worship said it was a hard case, but the defendant was not to blame in the matter. Judgmont entered for defendant.