RESIDENT MAGISTATE'S COURT.

Westport Times, Volume II, Issue 176, 22 February 1868, Page 2

RESIDENT MAGISTATE'S COURT.

Feidat, February 21. (Before T. A. S. Kynnersley, Esq.,K.M.) WILLIAM BERRY V. WM. BEMISS. This action was brought to recover the sum of £ls from defendant, in consequence of damage done to plaintiff's coach by collision with Cobb and Co.'s vehicle on the 7th ult. The defendant was driving Cobb and Co.'s coach from Charleston to the Buller. Mr Tyler appeared for plaintiff; Mr Pitt for defendant. Wm. Berry, sworn—l am the proprietor of a coach running between here and Charleston. On the 7th February was coming to the Buller, Cobb and Co.'s coach, driven by defendant, was comiu* up behind me on the Five Mile Beach, when he pulled his horses towards me, and run right into me, his fore wheel, T believe, striking my hind wheel. He came upon my near side, and the whole time he was pulling his off-rcia. A snag was ahead of me, into which, I believe, li 9 tried to run me. I pulled my horses sharp round to avoid it, and he drove on, and did not stop to see whether I was damaged or not. The spoke 3 of my near hind wheel were broken. I lost a couple of days by the accident. The damage done was between £8 and £9, and it cannot be repaired in the Buller. I have used my coach since without anything being done to it, but it is not safe, and is liable at any time to cause an accident By Mr Pitt—There was plenty of room for defendant to drive on either side of me. The accident occurred on Friday, and on Saturday I took the coach to Charleston to try and get it repaired. On Monday I returned to the Buller, but without a passenger. On Monday I commended working it again regularly. I have only paid 15s at present, and that was for mending the foot-board. Re-examined by Mr Tyler—l saw Bemiss after the accident in the Buller and gave him a bill for damage of £lO, which he said he knew nothing about. Mrs Maddon, passenger by Berry's coach, deposed—l was a passenger on the Friday in question. Eemember a collision between the two coaches. We were going strait on, and Cobb & Co. was behind us. The first thing I Baw was the horses heads on my left, and then the wheels go together, and the splinters fly up. There was lots of room between us and the sea for the other coach to pass. By Mr Pitt—We got to the half, way house first, but Cobb's coach Htarted first, We passed Cobb's coach

soon after we got on to the beach there was a snag ahead of us on the, right hand side. By the Court—Both coaches were going very fast at the time—galloping, in fact.

Thomas Neave deposed—l am a carpenter and wheelwright qn the South Spit. I examined the coa<»h after the accident, three spokes were gone, but not broken through, quite sufficient however, to make them unsafe. The damage done is between £7 and £B. I cannot mend it, as there is no iron bark wood here. If I had the wood I mitjht do it for £5 or £G. I mended the foot-board, but did not understand that this had been damaged by the accident. By the Court—Nothing was said about the foot-board at the time. The value of a. new wheel on the Buller would be £l2—in Melbourne, probably about £7.

Mr Pitt then addressel the Court, saying that it was a case of try-on ; and that as usual in such cases, a good deal of hard swearing would be given on both sides, he was prepared t > rebut the evidence of the plaintiff and his witnesses however, and called

William Bemiss —I drove the coach from Charleston on the 7th February. Plaintiff got to the half-way house before me. I left it before him. Soon after we got on to the Five Mile Beach he overtook me, and we drove about parallel for some time ; some times my horses being a-head and sometimes his. I was in advance at the time of the collision, plaintiff's near hind wheel touching my off hind wheel. He came up on my off side. The coaches did not swerve, and I continued my journey without stopping. By Mr Tyler —Was in advance at the time of the collision; saw the coach wheels touch. Berry presented me with a bill in the Empire for the damage. Did not say I would serve him worse than that yet. By the Court —I am sure he was on my off-side at the time of the collision, and that I was slightly in advance at the time. I had six passengers in the time ; one is here. Atkinson, was a passenger by Cobb and Co. on the Friday referred to. I was inside passenger. We then were something a little ahead, and vice versa. The coach Berry drove came up on our off-side, and his hind wheel came into collision with our hind wheel.

By Mr Tyler—We were both going fast, but plaintiff was galloping. Nicholls, deposed.—l keep the Half-way House. Berry's coach came first to my h< u;e on the Fi i lay referred to. Cobo's coach starced first as Berry wished him to do so, as he only had three horses and Cobb had four, and he did not want to distress his horses. I noticed the wheel the day after the accident; it was shown to me; nothing was said about the foot-board having been damaged at the same time. Mr Tyler then addressed the Court; pleaded that his witnesses were entitled to belief; that the damage had been clearly proved, and that it was entirely owing to defendant's carelessness. The Commissioner, in giving judgment, said that as usual in all cases of collison' either by land or sea, the evidence was conflicting, and the passengers were as usual, although meaning to be perfectly truthful and impartial, biassed as much in favor of tie coach by which they had travelled. The only point on which he had to decida, therefore, was whether Berry's coach was passing Bemiss, or vice versa at the time of the collision, and there was no doubt in his mind that the plaintiff did not prove his case, he should therefore order judgment to be entered for defendant. Mr Tyler thereupon wished his client to be nonsuited for the production of further evidence, but Mr Pitt argued that, as a matter of practice, it was not right to grant a nonsuit after judgment had once been given. The Commissioner agreed with Mr Pitt, but said that he should grant a nonsuit as plaintiff wished it, more especially as he had entered judgment for defendant on the ground that plaintiff had not proved his case, and this course would leave it open to him to produce further evidence which might make a great difference in his opinion. Plaintiff nonsuited, each party paying their own costs. PATRICK DONNES V. P. A. JONES.

Plaintiff sued defendant for £ls value of timber supplied according to contract. Mr Melville applied on behalf of Mr Jones for an adjournment,

as the summons had not been served

the required time. Mr Kynnersley stated, that for any one else he would do this, but Jones was always in trouble. He therefore gave judgment by default, but stated that if Jones had only good reason for his absence, he would rehear the case.

There were several debt cases, but of no/public interest, and the Court then adjourned until 10 a.m. this day.