SUPREME COURT, INVERCARGILL.

Western Star, Issue 1572, 20 June 1891, Page 3

SUPREME COURT, INVERCARGILL.

(Before Hie Honor Justice William). Tusday, IGth Junk. Daniel Henery, accused of latceny as abadee of £B. was discharged on a law no • case was a very peculiar one, counsel engaged stating that had been unable to find amalagoua to it in the law books. Wednesday, 17th June. ■ritnolb, Regan, nlafged wilt b " l jf .tolen eight .beep the properly ot T. E. Carroll, was found not guilty. (From Invoroatgill papers.) .T. TINN V. THE WALLACE COUNTY COUNCIL.

Ih B“S,""h himMr Wade, (.XplJS.andMr l-ag g i», - h-» Mr Russell, for the defendants. Sir Rebert Stout said the facts of tbe cas were that Mr Finn was riding over a 10a from Wrey’s Bush to Lunehills. Ho was eoing at a canter, when his horse put his foot though a colvert, and so far as Mr Finn was concerned he knew nothing about what had recurred, as he was rendered unconscious, but a settler found him on the road struggling o oat up and in a very bad state. Subsequently fiugpy was sent for, and be was placed nnder tbe doctor’s care. Doctors would come before them and say that plaintiff’s spine was injured, and that they were of opinion he would be a cripple for life. If he had broken an arm or leg they might have been easily repaired, but his spine was injured, and he might not be able to do any work for yeais. It appears several culverts were constructed across the roads, and for someyears past heavy machines had been passing over that particular culvert, with the result that the culveit had got into a state of disrepair. There was a short piece of wood helping to close in th culvert, so that when the horse put his foot on one end of the wood it went down into the culvert; the horse suddenly stopped and tol wl lbec.... ot the accident. It waa not necessary for them to prove that the County Council knew of the want ot icpnir jn the 7 culvert. What they said was that the culvert having been made by the County Council, and being under their charge, and the culvert being an artificial erection, it was the Council’s duty to keep it m pioper renair If it had been an unformed road there would have been no such duty cas upon them, but it having boon an artificial erection the case was afferent. If the county bad had no funds for the work they should have put up a danger signal or closed the road, but they had no right to leave the culvert in a dangerous state without warning the public, and when a local body haying charge of a road left it in inefficient repair, it was liable for any iojmy that might, happen. Dr McLeod deposed that Mr Finn was in the Hospital on the 7th October lust and stayed for three weeks. Ho then left. Witness had seen him twice since, and had examined him that dav when he found that he was suffering from injuries to his spine and he was in such a state _ that a shaip instrument, could be run into bis leg without his feeling it He was not able to work, and witness did not think he would ever again be the man bo was. In fact it would be years before he would be able to work. Thuksday, 18th June. The hearing of the case, Finn v the Wallace County Council, was resumed. ] Drs Hunter and Young gave corroborative evidence as to tbe injury to plaintiff s spine aid both stated that they did not Hunk he would ever be able to do hard work again. They did not know if it was true that I inn had refused to bo examined by any doctor on behalf of the Council. 1 Mr Haggit said that it was so, but Sn Robert Stout remarked ibatit was open to the Council to have him examined now by any doctor they pleased.—Mr Hagitt said it was rather late at that stage. Plaintiff gave evidence in support of counsel’s opening statement. He had been under medical treatment at, various times since the occurrence, still suffered considerable pain Sd could only get about with tbe aid of ° r Wrn. eS Fraser, Win. Langford, and Denis Sheehan, all farmers at South Hdlend. and Mary Fraser gave evidence in regard to the defective condition of the culvert. Each had seen a plank missing from it at various ** Mr Haggitt, on behalf of the defendants, submitted that there was no evidence to go tn i ul .y The evidence adduced for the plaintiff showed that the plank might have been detached from its position five minutes before the plaintiff crossed the culvert, and in that case the defendants could not be bold liable. They mast have a reasonable time in which to remedy a defect not arising from their own neglect. In support of this contention counsel cited the rase of O’Connor v. the Mayor of Hotham (Victorian Law Reports) whero it was held that where persons sue for damages on account of neglect on the part of a public body it is necessary to adduce evidence that a reasonable time bad elapsed between tbe occurrence of a danger to travellers and the accident. His Honour said that be bad a verv confident opinion that bo ought not to withdraw tbe case from the jury, even it the law in O’Connor v. tbe Mayor of Hotham wore correctlv staled. Upon the evidence before the Court, taking it as uncontradicted, he would certainly find that the culvert was out of repair two years before the acciden.., and had never been properly repaired since. It was competent for the jury to take that view of the evidence, and he could not undertake to withdraw the caseMr Haggitfctben opened for the defendants. He said that before the case closed it would be proved that the culvert which was stated to have been out of repair for two years, and to have had a plank off it, was never out of repair, and that the plank was not broken till the accident happened, and that the culvert which the witness said had a broken plank was a different one altogether. It would further bo shown that up to the time of the accident the culvert on which_ it occurred had never been out of repair, and that it was examined about once a week by the defendant’s inspector, iho defendants admitted that the plaintiff had been injmed, and that the nature of his injuries were such that he would he unable to work for a long time - but however much they regretted he accident and the suffering caused to iho plaintiff, however much they pathise with him, and however satisfied they might be that this was a bona fide case of actual injury, vet the plaintiff had no claim against the defendants, unless he could prove that the accident happened either through neglect in the original construction ot the culvert or neglect on the part of the defendants to repair it when repairs became necessary and that within a reasonable time after they had knowledge of the nocessity for repairs. He submitted that if the culvert was in good repair within a day or two of the accident, and if by some cause of which the defendants had no knowledge, such as a heavy vehicle passing over it, a plank was accidentally loosened, and the defendants had had no knowledge of the fact, then under such circumstances there would be no such negligent ignorance as would render the defendants iiahle tor any injuries sustained by the plaintiff. In tbo County of Wallace theie were no less than 900 miles of roads tinder the management of tbo Com-oil, and they had an engineer, whose business it was io exercise a general supervision over those roads and the bridges and culverts ujjon them. The engineer rode about as much as possible, Znd nerformed his duties to the satisfaction his employers. In addition to this general supervision the tnembrs for each riding wore interested in seeing that the roads in their Particular districts wore kept in good order, while surfacemen were also engaged to mam--5a them in that state. In the district whore fV-n accident happened the roads were looked iw bv Mr Plunkett, who had three sons to «St um! Couuoil sW a-otlbd

struolion of the oulvert at which the acoident occurred, and said lie would prove that it was then in perfectly good repair. He called Daniel Durbvidgc, who deposed that he acted as inspector of works for tbo defendants. He gave evidence at length as to the erection, strength and state of repair of the culvert, and was cross-examined by Sir fiobert. Stout as to the frequency with which he inspected the roads in the county and other details bearing on the case. Robert Plunkett deposed that ho was engaged as a surfaceman by the defendants. He bad to keep a section of road ton miles in length in pood order, fin this section there were four bridges and 17 culverts. He =aw the culvert whom tlio accident happened at least once a fortnight. Anything that he did iu repairing bridges and culverts he was paid extra for. He had authority to make any small repairs without consulting anyone, and to obtain limber for the purpose if there was none on b*and. Ho always made it a : nle to carefully examine bridges and culverts after engines and threshing mills passed over them. On one occasion ho found a plank broken in a culvert next the one where the accident occurred ; he never saw anything wrong with that one till after the accident. Some of the culverts were repaired on several different The morning after the accident he saw a piece of plank in the culvert off its bearers, and he took measurements and sent his son to put in a new plank. He noticed that there were nails in the bearers, and they were bent towards the hole iu the culvert. The planks butted on to each other, and the one dislodged —tbe shorter of the two—had a hold of fully 24 inches. The planks used were 12ft and Ift long respectively. The plank whioh came out of the culvert was quite sound, and there were marks whero the nails had been drawn through at both ends —Crossexamined : Could not say that during 188290 he sent in any account for repairing culverts; be would not make a charge for any small work of that kind. The accident might possibly have happened through a plank having gradually shifted from the centre of one of the bearers through clay netting between tho ends of tho planks.— Re-examined: Witness did not notice any clay at tho ends of the planks. Robert Plunkett, jnr, and William and John Plunkett also gave evidence for tho defence, and at six p m. tho Court rose till next day. Friday, 19th June.

The hearing ef the case was resumed at 10 a.m., when F. Woodward (Uoddon Bush) and W. Johnston (formerly a member rf the Wallace County Council) gave evidence, and the case for the defence closed. Woodward stated that, although ho had crossed tho culvert in question several times, he had never seen a plank off. Johnston said that after the accident he ordered some of tho culverts to be replanked. There was no immediate necessity for this, but he noticed that the wheels vehicles of passed over the joining of tho 12ft and 4ft planks which formed tbe covering, and that they got worn at the ends in consequence. Counsel then addressed tho jury. His Honor, in tbo course of his summing up, said he w r as inclined to agree with Mr Haggitt that no absolute duty was cast upon a public body to keep the roads within its jurisdiction in repair. For instance, if, through some unusal weight passing over the culvert in question, and damaging it, an accident occurred immediately afterwards, tho Council would not be guilty of neglect unless it had been informed of the damage and failed to repair it. As to the measuie of the damages, that question was pretty much in the jury’s hands. Whatever the plaintiff’s earnings were before the accident, the compensation bad not to be in the nature of an annuity on that scale for the rest of his life. There was really no rule to guide them in the matter. They hatl to look at all the circumstances and give reasonable compensation for the suffering, injury, and loss plaintiti had sustained, or was likely to sustain as tho result- of tbe accident; Ho would place tho following issues before tho jury (1) Did tho accident to plaintiff happen through the culvert not being in a reasonably safe condition for public use; (2) Did the County Council before the accident know that the culvert was not in a reasonably safe condition for public use ; (3) Did the County Council or its officers and servants before tbe accident take reasonable care to make themselves acquainted with the condition of the culvert, and to ascertain whether it was in a reasonably safe condition for public use, or whether it required repair ; (4) What damages, if any, is tho plaintiff entitled to recover. Tho jury retired at 1.15 p.m. bo consider their verdictAt two o’clock the foreman asked His Honor whether it was imperative to answer tbo second question either in the affirmative or negative. His' Honor said that if the jury could answer it one way or tho other it would boas well to do so, but it was not imperative. If they found on the other issues one way or tho other, ho did not know that the second one veiy much mattered.