MOTORIST'S LIABILITY

Wanganui Chronicle, Volume 73, Issue 425, 17 November 1930, Page 6

MOTORIST'S LIABILITY

STRUCK STRAYING HORSE C7LAIM fob DAMAGES FAILS. INTERESTING CASE AT BULLS.

(1 roni Our Own Correspondent).

BULLS, Nov. 16. At the Magistrate’s Court at Bull* J- H. Whisker, farmer, Parewanui Road, Bulls, claimed £33 16s from Alox. Currie, stud groom, Bulls, being £23 16s special damages and £lO general dam* ages, as a result of a collision between de)endant’s horse and plaintiff’s motorcar on October 22. Mr Alackay appeared for plaintiff and Air Cooper (Palmerston North; for defendant. A plea of not guilty was tendered, and all witnesses wore ordered out of Court.

Mr Afackay briefly outlined plaintiff’s case, and called Lindsay Douglas Whisker, son of plaintiff, who stat<’d_ that in the night of OcWLer 22 he wa/1 proceeding j u plaintiff’s car to Bull.-' at midnight. The night was wet, windy and dirty, and when in front of “Sonia” boarding-house in High Street a horse ran across in front of his car, and a collision occurred. He got his brother, an employee at the post office; rang the police; and found the horse and another, and placed them in the police paddock. He detailed the damage done to the car, the radiator being broken, and other parts damaged. The horse (defendant’s) was badly cut about on the hock and shoulder. Ho recognised the horse; it was Currie’s. He bad Air Douglas, pound-keeper, and his brother with him when the horst was secured. Next morning, after seeing the horse in the pound, he went to Currie and told him what had occurred. Currie said that he could not understand the horse coming into town, where there was no feed, as it grazed on the road where there was good feed. Currie said that the horse had only, been on the road for a few, days, but a man named Westwood, who was present, sai<l that the horse had been on the road for a work. Currie did not reply. He told Currie that he expected him to pay for the damage, but Currie complained of the hard times. Currie said that he had put the horse in Doughty’s Bond, and someone must have left the gate open. He had several discussions with Currie, and suggested to him that lie was able to paw because he had a half share in a thoroughbred horse, Peach Brands-. Mr Cooper asked if this was relev. ant, there being no admission of agreement to pay.

Io the Magistrate: Currie said that if he had the money he would pay; ho would pay in the long run. To Air Mackay: The general damages were based on the fact that the car had received a jar, and that he had been without it for a week. He had had to walk home that night. Mr Cooler pointed out tuat witness did not own the car, and any inconvenience which he may have suffered did not conic into the case. To Mr Cooncr witness admitted th it people do put stock to graze on Doughty's lioad. Plaintiff stated that someone must have left the gate open. Ho saw another horse there that night, and both were put in the police paddock. Currie said that if he had tie money he would pay. Nobody else was present when Currie said that. Later, Currie rang up; he said that he had seen a solicitor, and that he woult not pay.

Geoffrey Whisker, postal official, Bulls, brother of the previous witness, gave corroborative evidence regarding the position of the car after the collision; the finding of the horses; and recognised Currie’s horse. He stated that Currie’s horse was so often on tho road he began to regard it as part of the scenery.

David H. Douglas, pound-keeper, stated that he was on the scene after the accident. lie impounded two horses, that of Currie being badly knocked about. When Currie came to release his horse, he (Currie) said that he had been leading a mare, and had had trouble, eventually taking tho mare on and leaving his horse in Doughty’s Road, homebody must have opened.the gate to let it out. Witness said that he saw marks of horses under a verandah next to the boarding-house. Io Air Cooper; He could not swear as to whether the marks were made before cr after the collision.

John Tricker, farmer, Bulls, stated that he had seen Currie’s horses running loose on the roads. On the day of the accident he saw the horse twice, the second time at 7 p.m. Currie used the gate in Johnston Street, but he had never seen him close it.

E. Westwood, lorry driver, stated that he had seen the horse on the roads, and told defendant so in no uncertain terms.

E. A. Caldow, commercial traveller, said that he had seen the horse on Parewanui Road. Horses had been on his lawn. John B. Robins, garage proprietor, tendered formal evidence regarding the reptairs to the car, all of which were on account of the collision. The value of the car would be depreciated unless all the damaged parts were replaced. That closed the case for plaintiff. Air Cooper asked for a non-suit. There was no doubt that tho horse had been on the road. That was admitted, but he quoted authorities in support of his contention that there was no duty on the part of an owner to prevent a domestic animal from straying on to the highway. The horse was quiet and inoffensive, and had no vices. Air Mackay urged that negligence had been shown by defendant, who was not the owner of occupier of the land in question. Currie knew that the horse was on the road. Currie had seen it; and was therefore negligent. The Alagi.strate: The point is simple. There must be more shown than mere straying. Currie’s horse was placed on the fenced highway. Mr Tricker admits that he puts stock there. The hoi sc simply strayed. It has been shown that it was the habit of defendant to put his horse on Doughty’s Road, inside the gate opposite Mr Tricker’s house; in the fenced portion. That portion is barred by a gate. Mr Tricker also puts stock in there at times, and no doubt he is at liberty to do so by ] emission of local authorities when a road is not used. That gate loads to the golf links, and is very frequently left open. The horse has unquestionably been out in Johnston Street, and on Parewanui Road on occasions, but the authorities quoted show that there is no necessity for property owners to have fences or gates. I am asked to find an element of straying, but cannot find such element. The position was quite clear, and judgment would be given for de fendant on the non-suit point accordingly, with costs against plaintiff.