A DRAPER’S CLAIM.

Gisborne Times, Volume XXVI, Issue 2201, 27 May 1908, Page 1

A DRAPER’S CLAIM.

GOODS DAMAGED BY WATER. NEILL V. SYKES. At tlio S.M. Court yesterday morning Amelia Catherine Neill proceeded against Walter Janies Sykes to recover the amount of £SG Is lOd, for damages alleged to have occured to plaintiff's goods through water ;ront defendants surgery. Mr. T. Alston Coleman appeared for the plaintiff and Mr. 11. J. Finn represented the defendant. Mr. Coleman outlined the facts of the case, stating that a water tiip had overflowed in defendant’s premises, and had done damage to tlio estimated extent of £56 Is lOd which repio-. seated the difference botweon tlio invoice price and the selling price alter being damaged with water. I'lnintiff’s premises wero underneath deffendanlts dental* surgery. * Council quoted from records of previous similar cases in support of his case. It had boon admitted that the facts of the claim were correct hut it was a question of negligence.' Air. Coleman wits proceeding to call tlio i laintiff when defendant’s counsel .suggested, that as the main question was one of negligonco, it would bo advisablo to tako that'evidence first. His Worship concurred.

Mr. Finn for tho defendant, stated that tho plaintiff and defendant v'ero both monthly tenants. Defendant had left his premises quite safe on the night in question. Tiio tap bad been put ill: defendant’s, premises ;ly the landlord, without tlio consent, of defendant, and without referring to him, consequently the landlord was responsible for tlio damages. Mr. Finn also quoted authorities in support of his argument. . , Ho called • Walter Janies' Sykes, defendant, who stated that he had occupied-, . his present rooms for seven yoans. Water was brought into tlio surgery by tlio landlord, but not at witness’ request. Witness showed tlio landlord where to liavo it put. He did not pay for it, engage a, plumber, or- get a permit from the Borough Council., Tr.e tap had been removed by the hid lord a few days after tlio damage was done. On Saturday Feburuary tUh. witness went to his office about 6.30 p m. and before leaving his hands get soiled. He went to the tap, nut found no water there and turned. the tap off again. Ho later turned 1 clf tho gas and went home. He uad no d* i lit that lio had securely turned oft the tap. .There was only one entrance, and he had locked it on'going awry. Witness authorised no person to enter the premises. On returning to his rooms oil Monday mor lift.; he saw the floor of the back room wi t. On the following morning a patient ccmo to him to have gas administered, 1 ut witness found there was IK- ne m the cylinder. The cylinder van k< t-ived on the previous Thursday and was weighed on the Saturday, wlun, it contained 450 gallons. AA’hen witness found that the cylinder had tun tc mpered with, he reported tho matter to the police. To Air. Coleman: The size of tbe cylinder was about 2 feet b n dies by 5 inches. The weight, of a full cylinder would be 37} lbs. If tee tap was turned- the cylinder would be emptied in about threo minutes .Witness had had' no water, turned on in tho tap for about eight days, and ho was quite sure there was no water on when, he was there on Saturday. Did not hear Mrs. Sykes tell a press representative about the . cause of tho accident, - but Airs. Sykes told witness that she had said that it was his custom to leave the tap half t urned. Witness went to the newspaper office and had tlio statement contradicted. On that particular day he had been engaged in Ins surgerv all day from 9 a.m. to 5 p.m. when *he left and returned about 6.30 p.m. Witness administered gas twice on Saturday, tho last occasion being between 3 p.m. and 4 p.m. Witness was quite sober when lie returned to his rooms, and had no drink that day. „ ' ' . . T ... ’ Re-examined by Air Finn: Neither witness or his wife resided on the promises. He returned alone to. the Elizabeth Harriet Sykes left defendant’s surgery at 5 p.m. oil the Saturday mentioned. No person was authorized to enter the premises. The tap mentioned had not been used for some days and was always turned off when not in use. Defendant was perfectly sober .all that day and witness stated that she had never known him otherwise. She had been married 27 years. Witness felt perfectly sure that the tap was turned off. To Air Coleman: Witness went to the rooms on the Sunday 15th February when the damage was reported. She opened the door as usual .and found the back room badly flooded and the water was turned off. Witness did not tell a “Herald” reporter that it had been usual for the tap to be turned half on. Witness believed that the night of February 15th was the first- occasion on which the water supply had been turned on full pressure,. and ' she explained to! the reporter that she thought the pressure had forced tho tap. Frederick Gray, plumber, said that he was taken to defendant’s surgery by Air Score, the landlord, ; who instructed him to lay on tho water, and who paid for it. ''Witness..received no instructions from the defendant. Tho tap. was put in on January 4tli and it was a high-pressure tap. Witness was aware that: the water had been at low pressure for some time and if high pressure was put on it would allow water to come through the tap, .’although it would not come through at low pressure. The tap was removed by the landlord’s directions shortly after the plaintiff’s goods had been damaged. To Air Coleman: He had seen the water come through the taps when high pressure was on when it would not come through with low pressure. Re-examined by ATr Fin.']: The tap -when inside was near a window and there was a lean-to roof underneath. Any person opening the window could reach the tap. Defendant recalled stated that the window mentioned by the previous witness was not able to be fastened with ii catch. To Air Coleman: The window catch had been missing for years. The Court adjourned at this period for lunch. Air Coleman said that advantage had been taken of the interval to ascertain the amount of pressure on the water. It was admitted that on Sunday 16th at 5 p.m. there was a pressure of 1341bs and that the highest previous pressure recorded was 1521bs on the 19th November, 1907. For a few days prior to the lGtli February tho water lnd been cut off for testing purposes. His Worship 6aid that there seemed to be sometliirig _ beyond the usual pressure on the night of the 16th. .. Air Finn addressed the Court and said that it was admitted that the

defendant was not liable unless negligence was shown. Ho held that it was proved that tho defendant had properly ascertained that tho tap was turned off and also that some person unknown had entered tho premises by some other means than tlio doorway. Counsel held that the authorities quoted by his learned friend; had no bearing on the present case, and ho further quoted from cases which in his opinion wore similar. A special feature was that tho landlord had brought the water into tho building and tile defendant was a monthly tenant. Air Finn proceeded to quote authorities as to what constituted neligcnco and contended that to prove negligence it must bo shown that the damago sustained was the direct result of the action of the defendant. In counsel’s opinion, tho damage was not duo in this case to the-any action of the defendant, but rather to that of tho landlord in bringing tile water into the premises. Air. Finn, then reviewed the evidence for tho defence, laying particular stress upon the expert evidence of tho plumber, who had stated that extra pressure might cause tho tap to run when ordinary pressure would not. If tho damage was the result of an accident counsel submitted that defendant was not liable. , ■■ ■■■■■ ' . . , ...

Air Coleman 'addressed tlio Court for tho plaintiff and considered that the suggestion of a third person entering tlio premises and turning on the gas and water was absurd and would not hold water.

His Worship: The floor did not hold water anyhow, Air Coleman, but let it through on to Aliss Neill’s goods. Continuing, Air Coleman quoted authorities in support of his contention. AVith regard to the statement that tho accident had been unforseen by the. defendant, lie claimed that neither could it have been foreseen by the plaintiff. Why, he rasked, should the tap have been left half turned off when it would still screw down further PiEvoii if* tho accident could not have been foreseen lie held that defendant was still liable. Defendant had cither turned the tap the wrong way or else had not turned it off sufficiently. It surely was strange ;thit if...ho did turn the tap down that he should only turn it half way.

His Worship ;said he would take time to consider the case and would intimate to counsel when lie was prepared to give judgment.