CLAIM FOR DAMAGES

Wanganui Chronicle, Volume 74, Issue 189, 12 August 1931, Page 9

CLAIM FOR DAMAGES

PLAINTIFF NON-SUITED LACK OF EVIDENCE Special damages for £l3O 9s 7d and general damages for negligence amounting to £750 were claimed by Robert John Glover from L. Fromont and the Wanganui Jockey Club at a sitting of the Supremo Court at Wanganui yesterday. After the plaintiff’s evidence had been heard with legal argument on the point, Mr Justice Blair non-suited him. Messrs Northcroft (Auckland), ami N. R. Bain appeared for the plaintiff and Messrs Izard and L. Cohen for the defendants. The jury was empanelled as follows: Rex Notman (foreman;. Thomas Ghent, James Maurice Adamson, William Chapman, Albert Ernest Latham, Thomas Blackburn, Leslie Clarke, Raymond John Hastings, Frederick Hubbard, William Albeit Rudolph Davidson, Theos Don Baker. Outlining the case for the plaintiff. Mr N. R. Bain said that it was one in which Glover sought to recover damages from Fromont and the Wanganui Jockey Club as a result of an accident which occurred to him at the September meeting of the Wanganui Jockey Club last year. On the premises of the Jockey Club there was a booth supplying to those who had been invited to i the meeting. Fromont had made a contract with the club to use the booth. Glover had bought a ticket and had entered the booth held by Fromont. At the entrance to the booth there were screens. Formerly these screens had been installed permanently, but afterwards the Jockey Club had seen fit to place the screens on “feet.’’ What had happened was that a man had been passing through the doorway and a screen had fallen on him and injured him. He had complained to the Jockey Club. It was stated that the screen had fallen because two men had been leaning on it. This other man had been annoyed by the screen falling on him. As he passed out of the booth he pushed the screen over because it had not been removed. It had fallen on Glover. Those people who were invited to th* 1 buildings were entitled to expect that those premises were made as safe as possible and also that if, although the intervention of a third party, an accident occurred, the owners of the building would still be responsible. The jury would be called upon to say whether the screen had been reason ably safe. Glover had been in hospital as a result of the screen falling on him. for five months and had undergone three operations. Dr G. J. Adams gave evidence that he had examined Glover who had suf fered a fracture to the bones of a log. The fracture had been set in the Wanganui Hospital where the plaintiff had received the usual treatment for his case. He had been discharged towards the end of Anril, having been an inmate of the hospital for some five months. Glover had also been to the Waikato Hospital. It was considered that his injuries had healed well. There was evidence of neurasthenia in the condition of the patient, but the witness stated that he had not noticed any mental aberrations in the conduct of the plaintiff. To Mr Cohen Dr Adams said that the plaintiff had told him that he suffered from definite lapses of memory and partial unconsciousness. He considered that the plaintiff was not epileptic. The best cure for neurasthenia was to be relieved of worry. Mr Cohen: Damages and costs are the two greatest aids to the return of health, I take it. Mr A. G. Bigncll gave evidence that he had built the present buildings of the Wanganui Jockey Club in 1907. A plan of the building was shown to the jury. He remembered the screens on the plan and stated that they had afterwards been made moveable. To Mr Izard witness said that there would be no trace of the posts which held the screens. The posts holes had been filled up and concreted. Robert John Glover, in the witness box, said that he was a baker by trade and lived at Hamilton. He had sold his business and was not working. His age was 59. He had travelled from Hamilton to Wanganui last September to attend the races. Ho had gone into the booth with a friend and had had a drink. As they were passing out of the door he heard a shout tolling him to look out. His companion jumped away but a screen fell on witness’ leg and fractured it. He was taken to hospital where he had been operated on and his leg set. He had suffered pain until the middle of January. He now used a stick or a crutch with which to walk. Sometimes he had a dead feeling in the back of his head, but it was disappearing tinder treatment. Cross-examined by Mr Cohen, the plaintiff said that he did not know how the screen had been knocked over. He had not heard it sworn to that. Boiler had knocked it over. Boiler had only told the witness that he had been blamed for knocking the screen over and witness had also been told b\ Boiler that the screen had hit him on the head. He knew that Boiler had had an argument with the barman, but he had not been told the result of that argument. To Mr Izard plaintiff said that he could get no satisfaction out of Boiler. He. plaintiff, was deaf in one ear and could not hear a ’ that was said. Mr Izard: Why not have turned the other ear? Arthur McKey gave witness that he was in the booth on the dav on which Glover had been injured. Ho was employed by the catering staff and from the position he occupied he could see the screen which had fallen on Glover. He had seen two men come into the booth, and as they were walking out thov had leaned on the sc-eon at thn door. When the screen fell it had boon propped up by the wall. The barman righted the screen and one of the men walked back into the booth and seemed annoved. He. had been hit on the head. He spoke to someone in the booth and also to the barman. As the man walked out again he had given the screen a push which made it fall over on a person who had afterwards boon taken to hospital. After the accident the screens were moved away from the door to the wall. Cross-examined by Mr Cohen, witness said that he considered that unless the screen had been pushed there would have been no accident. Frederick Patchctt said that, on the day he had been assisting the, St. John Ambulance and had been summoned to the scone of the accident. He had seen the screen which had fallen on Glover. Herbert White said that he had attended the proceeding acainst Poller on February 24, 1931, and had typed the evidence on that occasion. The evidence given by Fromont on

that day was then read to the jury. James Emmett, a building contractor, said that he would not have permitted the screen to have been used as it had on the day on which Glover had been injured. Non-Suit or Not? At the close of the case for th< plaintiff, at the opening of the after noon session, Mr Justice Blair said thal frankly he failed to see where th< cause of action came in. Mr Northcroft submitted that th< person who was invited on such pre J misos was entitled to the highest degree of protection. Even assuming that both the Racing Club and the licensee invited the man, said His Honour, in tho present case it arose that an angry man started throwing the furniture about. Mr Northcroft submitted argument as to whether the screen was fixed sufficiently gprure. * His Honour said that following the argument out, the pint pots and bottles would also have to be fastened down. This was a case of a vicious push that sent the screen over. Mr Northcroft said he would like to see that, the furniture should be so securely fixed that it would ensure tho safety of customers. His Honour agreed with Mr Northcroft’s wish, but asked if tho licensee should be responsible for the temper of his customers! Mr Northcroft pointed out that evidence had been brought to show that the screen had fallen down at other times. His Honour said that the present was not a case of the premises falling down on a man, but of another throwing the premises at him. (Laughter). Air Northcroft said it was quite unimportant what was the cause of the screen’s falling. His Honour said that the screen had not come down by ordinary use—but by an extraordinary use. Mr Northcroft submitted that it was a circumstance that both Fromont and the club should have anticipated. It was not expected that a pian might pick up a bench and throw it, but it was for the jury to decide whether there was negligence, and evidence had been brought to show that the screen had fallen before. Having regard to the men that used a booth Rt a racecourse, crowded men or careless men— His Honour said that neither a crowd nor a careless man was before the Court. In this case it was a “vicious” man that threw it over. Did the Racing Club or a hotel keeper know that a man was going Berserk!” Mr Northcroft said he could only leave it for the jury ns to whether it was caieless or negligent on the part of the Racing Club or the licensee. How the incident had happened did not matter. Ho might put it that it was a “latent defect,” and referred to a case, but His Honour said this was a moveable bit of furniture, and not part of the premises. For the Defence Mr Izard said tnat he had proposed moving for a non-suit on the grounds that there was nothing before the jury to show negligence. legal argiinic.iv was submitted that the owner of a property was not liable for the actions of a third party, it was held that there was no evidence of negligence to go before the jury in the present case. Tho direct cause of the accident had been that Boiler had knocked the screen over and that it was not the negligence of the Jockey Chib. Air Cohen said that the direct cause of the accident was not an act of volition on the part of the screen. It was not an article to be handed by the Jockey Club to any person. Supposing, said Air Cohen, he went to the races at Wanganui and that when passing the artificial pond he was given a push by a “friendly enemy” which sent him into the pond and ruined his already threadbare suit. Then following his friend’s argument there apparently was a case in which he could lodge a claim against the Jockey Club for the suit of clothes. Air Justice Blair made the following summing up:—“Tho action is based upon the liability of the occupier of premises to persons whom he invites 1o resort there for the occupier’s benefit, such as for the invitee’s benefit, f assume that this screen was defective insofar as its legs were concerned. Jt was a removable piece of furniture, and was a screen to block the sight of a doorway. It was standing there and could be readily tipped over. But as I understand the law dealing with dangerous premises—defective premises—and the duty of an invitor to an invitee, it is that the giving of the invitation connotes a duty on the part of the invitor to tho invitee, and that duty has been studied and proved a number of times. “In this particular case, if the case made by the plaintiff had been that it was some part of the premises that had fallen on the plaintiff or there was a hole in the premises through which he had fallen, that is that the premises did some damage to him, then I could understand the claim. But the evidence shows that a malicious person deliberately threw a certain portion of the premises or a loose portion on to the plaintiff and injured him. It is claimed that it is part of the duty of an invitor to his invitee not only to be responsible for the state of the premises but for the tempers or viciousness of the parties resorting there. I have n< knowledge of such law. “The plaintiff, on his own evidence says that this accident was caused, not by the premises, but by the viciousnesf of a person and not by the Racing Club or by the licensee. There is no case which I can submit to the jury. It seems to me to be my duty to dispose of the case. That being so I propose to non-suit the plaintiff. “Mr Foreman and gentlemen of the jury, I am taking the responsibility of deciding that the case is not one which I can submit to you because there if nothing to submit to you on the evi donee.” Costs and witness’ expenses were asked for and given to the defendant.