AN IMPORTANT CASE.

Tuapeka Times, Volume XXVII, Issue 4251, 22 June 1895, Page 3

AN IMPORTANT CASE.

A case which excited a good deal of interest locally came before Mr C. E. Rawson, S.M:, in the Magistrate's Court, Roxburgh, on Tuesday last, the plaintiff (Robert M' Arthur, of Coal Creek, carrier) claiming £23 damages from J. S. Roberts, owner of a " merry-go-round," for injuries to a horse. Mr Macdonald (Alexandra) appeared for plaintiff and Mr Dalziell (Lawrence) for defendant. The facts were as follow: — On the 14th May last, the defendant's traction engine was being driven along the road from Coal Creek to Roxburgh. The defendant was walking about 300 yards ahead of the engine, and met plaintiff, who was driving his waggon, with six horses, to Coal Creek. He asked plaintiff if his horses would be afraid of the engine, but the latter replied that they were all right. Plaintiff came within sight of the engine when he was about 250 yards from it. The road between them was straight and available for traffic for the whole width. The engine was at the time crossing a culvert on the road or just approaching the culvert. After the driver of the engine saw plaintiff coming he crossed the culvert and then got on to the side of the road and stopped, the back of the lorry being then about half-a-cbain away from the culvert. After plaintiff passed Roberts, he oontinued alongthe side of the road,on the opposite side to that taken by the engine. He was going at a smart pace. He and his witnesses swore the horses were walking fast, all except one, which was frightened of the engine and broke into a trot. Defendant's witnesses, on the other hand, swore that all the horses were [ trotting. Plaintiff did not attempt to stop or ! slacken his pace as he came towards the engine, but said that he had his horses under control, and did not anticipate an accident, as they were accustomed to passing the Coal Creek engine. When plaintiff got to within 40 yards of the engine, his leaders turned sharply round and took the whole team and waggon round until they faced the other way. In turning, one of the shaft horses appears to have wrenched its fetlock, and it wa3 for this damage the action was brought. The evidence was conflicting as to whether the engine stopped before or after the horses turned. Plaintiff and his witnesses swore that it was afterwards, but defendant's witnesses swore that the horses came 30 or 40 yards after the engine had stopped; the two men working the engine stated that they had stopped and that they jumped off the engine and ran to the waggon immediately the horses turned. At the time of the accident, there were two men employed on the engine and two (one employed by the defendant, whose duty it was to give assistance to horsemen) walking 30 yards in front of the engine. Defendant produced a letter from the Chairman of the County Council requesting Constable Fouhy to allow defendant's engine to pass through the County, as the Council did not propose to collect a fee from Roberts until the test case to be tried at Tapanui had been decided. The plaintiff claimed firstly that the accident had been caused by the negligence of defendant and his servants in the working of the traction engine or, in the alternative, that the traction engine as used was a nuisance from which plaintiff had suffered damage. Mr Dalziell, for the defence, contended that there had been no negligence on the part of defendant or his servants. Plaintiff had been warned of the approach of the engine by defendant; but, instead of taking precautions, had increased his pace and did not attempt to pull up or attempt to check his horses, although he was within sight of the engine for 200 or 300 yards, and he did not ask for or appear to need any assistance. Defendant's servants had done all they could to avoid an accident : they had stopped as soon a3 they had got on the side of the road after passing the culvert ; but owing to the formation of the road they could not have stopped before so as to have allowed sufficient room for the waggon to pass. The men walking before the engine were prepared to render assistance to the plaintiff if he had asked for it or appeared to need it. The engine as used was not a nuisance. Defendant was entitled to take it along the road so long as he took reasonable precautions to prevent accidents. Proper I precautions were provided by the Police Offences Act, 1890, and defendant had complied with these precautions. The by-law recently passed by the Tuapeka County Council did not affect this case. It did not make it unlawful for a traction engine to be driven along the County roads : it merely imposed a penalty on anyone driving such an engine without a license, and its object was to enforce the payment of a license fee. Even if defendant had been guilty of negligence or bad created a nuisance, oounsel contended, the accident did not result from this, but from the plaintiff's own negligenoe in the management of his team, and he oould not, therefore, recover. The case of M'Laren v. Brown, tried in Dunedin in Deoember last, before Mr Carew, was exactly on all fours with the present case. There* Mr Carew gave judgment for defendant and expressed the opinion that plaintiff had committed an error of judgment in not availing himself of the means of assistance provided. Mr Macdonald, in reply, contended that defendant was acting unlawfully in passing along the road with his traction engine without a license issued under the County by-laws, and must be held responsible for any damage resulting from his unlawful act. The evidence dearly proved that defendant's servants had been guilty of negligence : they should have stopped the engine before they had done so and rendered assistance to plaintiff; but apart from the question of negligence, the use of the engine amounted to a nuisance. The Police Offences Act simply provides a penalty in t^e event of certain precautions not being taken, but the common law liability still remained. Counsel cited several oases in support of this latter contention with a view to show that the use of steam engines on roads was a nuisance, and that the owner was liable if any accident resulted from such use. He relied principally on the case of Jeffrey v. St. Pancras Vestry decided in 1894. The plaintiff had not been guilty of contributory negligence, but even if he had he was entitled to judgment, as the obligation was not mutual. His Worship said the case was intensely puzzling, and he would reserve his decision until the following morning, On resuming nexj mqrnjng (Wednesday), Mr Rawson delivered, ' the following written judgment, stating that he had arrived at a d^ecisjon after much hesitation :— A thing may not be a nuisance of itself, but may become a nuisance from the manner in which it is used. For instance, a thrashing engine drawn by horses may not frighten an ordinary horse in passing it, but if it is emitting smoke and blowing out steam at the time then it probably would. It is well known that many horses have an objection to passing machinery on the roads unless horses are attached to the machinery or, at least, men are fa he seen about it. More particularly a traction engine is a suspioious-.lookin'g object to an unaccustomed horse, ttibugh steam may be shut off and only a little smoke is to be observed from the funnel. The Police Offences Act apparently contemplates this, and commands under penalty that th,ose & qhar§o q\ fte

e ngine should render all possible assistance, even though the engine is stopped. It must be borne in mind that if a traction engine is so used on a highway as to cause it to be a nuisance, the owners are liable for damage caused thereby, although the provisions of the Police Offences Act have been complied with. That Aot simply imposes a penalty if certain things are not done, and this whether damage has resulted from the nuisance or not. As cited in Jeffrey v. St. Pancras Vestry (The Reports, December, 1894), the proper question seems to be, as in Galer v. Rawson, whether an engine of this sort is "calculated to frighten horses of ordinary nerve and courage on the highway." The steam roller in Jeffrey's case was not what is known as blowingsteam, but steaming in the U6ual way of its travelling, and the jury found absence of negligence. The engine in question was a nuisance whilst moving, as graphically described by the witness Warren, as " like the Devil himself coming down the road, throwing out fire and sparks." Plaintiff explains why he oame on : He expected the engine to stop and assistance to be given as with the Coal Creek traction engine, with which he never had any difficulty, thus excusing what otherwise might be construed as " contributory negligence." There is a conflict of evidenoe as to when the engine stopped, and the pace it was going at. I think the plaintiff was travelling at a fast walking pace, and the j engine did not stop until the mischief was done. As plaintiff's horses had passed the Coal Creek engine in safety nearly every day, there must have been something peouliar in this engine to frighten quiet horses so much. Many of the roads here are narrow and serpentine, and if a traction engine does not shut-off steam a considerable distance before vehicles drawn by horses meet it there is sure to be an accident. The proximate cause of the damage was that the plaintiff's horses — horses of ordinary nerve and oourage on the highway— were frightened by steam emitted and noise occasioned by this traction engine. I find this traction engine was a nuisance on the occasion complained of ; and on the authority of Jeffery v. St. Pancras Vestry, udgment must be for the plaintiff. I might suggest tnat if a man far enough in front gave warning to the engine to stop, the owner of such engine would run less risk for liability for damage. Every precaution should be used on these goldfields roads or serious accidents will be the result. Judgment for plaintiff for £7, with costs £4 6s.