ROSS V. MURRAY. The Appeal Case.

Wanganui Herald, Volume XXX, Issue 8826, 16 April 1896, Page 3

ROSS V. MURRAY. The Appeal Case.

At tho Supreme Court thit morning, before the Chief Justice, Sir Jamei Prondwgaat, the case of Boss v Mum} was taken, being an appeal against the decision of Mr District Judge Kettle in the District Court, where he awarded £150 damages against Mr Bos'. Mr Fitzherbert appoared for appellant and Mr Barnicoat for respondent. Mr Fitzhorbert said ho did not thiDk it wsi nocessary for him to refer at any great length to the judgment in tha lovror Court, because in the opening part the District Jndge rery clearly and plainly se^ out the issues. He (Mr Fitzherbert) would submit that on points of law there was not eufll cient eridence to justify tho decision of Mr Settle. On the evidence, on the judge's own finding, negligence could not be found. He thought he would be able to prove that Mr Settle was not justified in finding as he did. QuotiDg from the printed copy of the Judge's decision ho (Mr Fitzhorbert) noted that Mr Ketfclo found ttat some of the passengers and not Porker were lighting tho lamps. It was plain from tho passages in the judgment that the ordinary incidents, tuch as skill of the driror, fitnejo of the conch and horses, wore not in quostion. The wholo judgment was baaed on tbe fact tb&t the lamps were not all lit, and the absence of tho lights wero the causes that contributed to the accident. Tho Judge had found that only one lamp was lit, and tho evidence clearly showed that Parker was not engaged in lighting any latnpß at cr immediately before the accident, and practically speaking Mr Kettle found so. He mnde & general conclusion at the ond that Parker was not lighting the lamps. He (Mr Fitzherbsrt) proposed to go through the evidence briefly. His Honor — Did not tbe Magistrate find that the accident was caused by the want of the ixercise of that caution which the driver could have used had tha lamps beon all lit? Mr Fitzherbert submitted that on the evidence Mr Settle could not fiad such He mult find it on evidence, and not on conjeoture, as ho bad done. It was an obvious error on tbe part of the Judgo lo maintain that the driver should hare hugged the right side of the road, as he might meet another vehicle, or/d an accideafc happen in conceqnsnee of his being on the wrong side of tbe road. Hit Honor did not understand that there was »ny rule to compel a drive; to keep on any particular side of the road. Mr Fitzhorbort— Pocaibly not, but it was unfair to «ay a driver was incautious became he did not keep on tho right side. Then again tho District Judge found that tho horses wore unaccustomed to the road, whioh bo submitted was not consistent with tbe evidence, as no evidenoe was givon respecting that point. With regard to tho finding about the lamps, Mr Fitzherbert alvo held that there was no evidence to show that if all the lamps had been lit any more light would havo been thrown ahead; the light would only be thrown as far as tbe hone's ears. His Honor— l understand driverj prefer not to havo lamps. Mr Fitzherbert said that was fi, and that lights wero roally to keep tbo people from running into them. The lights would not have enabled a driver to see what was in front of him. Bo then went through the evidence bes-ring on these points at some length, He submitted that it was not only necessary to show that the lights were not lit, bat that it was necessary to show that tbe aooident wbb caused by that negligence, and referred to several ca;es bearing on the point. He held that) tho plainLiff was not entitled to damages. No doubt the ciroumstanoei were vary unfortunate/ but it was really oaused by an unavoidable accident. There was absolutely no evideoce whatevor that the lights would have enabled the driver to tee in front of the borsos, and no nyidence that the horses wore unactmstonied to the road, and the inforenca of the Distriofc Jndge that tho driver should have kept to the right Bide of the road was a wrong ono. Ha could not help coming to the conclusion that the Judge, actuatod partly by sympathy with the plaintiff, Murray, had awarded him. damages, wticli the circumstances of the case did not justify. It was a case of great importance and involving a principle, and if H» Honor did not allow tho appeal his client would havo to give up hit business. Mr Barnicoat taiil that appeals from tbo District Court were only allowed on points of law, and the point of law vraa that there was absoldtely no evidence to justify tho finding of Mr DistricL Judge Ketfclo. Tho rule waa if there were no grounds whatever upon wbioh it might be said tbst tho Judge could havo drawn the conclusion he did. He (Mi 1 Barcicat) submitted that the finding oE Judge Kettle would be perfectly justifiable if there were no evidence as to lights. It was a matter of common knowledge as to lights. It vrould be quito within his province to have decided that the use of four iarge lamps would haro enabled the driver to avoid the accident. His friend had taken exception to ths finding of the Court that there was only ono lamp lit. To show how absurd his friend's contention was he would point out that ths very men who were auppoood to ba eDgaged lighting the lamps wero callod and said they had not lit them at tho time of the accident. It vrai further parfoctly clear that one of the lamps only were lit at tha time. Mr Settle clearly showed why he considered the absence of lights was of importance. He would point out that the point now raised by his friead was not raised properly in the lowor Court. Evidence was hot directed to show that lights wero cot necessary. Tho witcesscß were cot asked the question at all. It appeared to him that it wai acknowledged on all sides that if there was one light there waa negligence. His Honor— What is the theory of judgment? Mr Barnicoat -That in the first place the rat was off the crown of the road two feet from the proper wheel tracks, and tho coaoh ought not to have been thero. Secondly thai he was not going carefully, and tnirdly that through not having light; he did not see what ho might hare seen if ho had tbom ; ho might have seen the road, the straw and have bad his eyos on the horses. His Honor— A oaroful driver would have takon measures to prevent tho horses shying at the straw. Mr Barnicoat — A caraful driver would have hie attention wholly directed on tho horsos. His Honor — Everybody know that if hoises were driven in&ttentivoly they would shy, and if they were handled carefully they would be less liable to shy. Mr Barnicoat quoted authorities in support of his contention that it was neoessary to show the accident could not have boen avoided. With regard to the effect of not having lights and as to the ghyiog of the hones, 12 witnesses had givon evidence bafore any reference was made to tho Buying, and it was shown that lighto would have boen useful. McKenzie, in his evidence, ■aid Parker tried to open the sida lamp when about a chain and a halt from whore thfl aocident occurred. Mr Eitiherbert said all the lights ia tho world would not have affected tho matter in this caie, as the use of lights was moroly to keep people off at a distance and to allow the driver to see tho orown of she road Ho admitted the Judgs hud gone oarefully into tho matter in his judgmont and had clearly stated the facts of tho oaso, but ho (Mr Fitzherbert) could not agree with the important conclusions arrived at by him and contended that in oomo instances the conclusions wore absolutely erroneous. As to the question of inattention ho contended, even if it eiisted at all, that it ceased to exiafc before tho accident occurred. Thora wao not a tittlo of orider.ca to show that any person could have prevented the swerve, but' for which the accident would not havo ocourred. Hio Honor resorved his decision.

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