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Decisions of the Superior Courts of New South Wales, 1788-1899

Maguire v. Moses [1834] NSWSupC 103

trespass - road accident - assault - negligence - contributory negligence - personal injury - damages, personal injury - damages, exemplary - contempt

Supreme Court of New South Wales

Dowling J., 10 October 1834

Source: Sydney Herald, 13 October 1834[ 1]

Before His Honor Mr. Justice Dowling, and a Common Jury :-

Friday. - Maquire v. Moses. - This was an action of trespass and assault, committed on plaintiff by the defendant, by riding over him on horseback, whereby he was knocked down and sustained various injuries: a second count laid it as a common assault.  Damages were laid at £50. -  It appeared, in evidence, that the plaintiff was a poor quarryman, and went to the races in April last to enjoy a days amusement, and while standing near the course watching the proceedings of the horses, the defendant, who was on horseback, came at full speed and, before plaintiff had time to get out of his way, he was knocked down into a hole, on the margin of which he had been standing, and was trampled on by the horse.  Defendant took no notice of the occurrence at the time, but rode off to where the horses pulled up apparently anxious to learn the result of the race.  The bye standers assisted plaintiff out of the hole; he complained of great pains in his breast and back, and his leg was much bruised and swelled.  Defendant came back in a short time afterwards and said he was sorry for what had happened.  A witness told him that was no way of compensating a poor man for the infliction of such injuries, and that it was a great shame for him to ride in that manner amongst a crowd of people.  Defendant never called out to the persons before him to get out of the way, calculating upon their doing so for their own safety.  Plaintiff had always worked at his occupation of a quarryman before that time, but, in consequence of the injuries which he then received, he was unable to work, and subsequently joined the police.  His pay, as a quarryman, was 27s. per week, with two pints of beer per diem; the pay of a constable is 20s. per week.  Dr. Band deposed, that he was sent for the by plaintiff on the night of the races; he attended him at his residence in Kent-street; he found him complaining of a violent pain in the chest and back, with difficulty of breathing; his right ancle was severely bruised.  Witness paid him some visits at his own house, and plaintiff called on witness several times.  From the nature of the injuries, it was witnesses opinion that he could not have followed his employment, as a quarryman, for some time.  Witness had charged him £3 3s. for professional attendance.  On the part of the defendant, Mr. Surgeon Bloomfield deposed, that he was on the race course at the time when defendant request him to accompany him to a man who had met with an accident, being anxious to ascertain whether he had sustained any injury.  Witness saw plaintiff on that occasion, but did not consider him to have received any material injury; he did not bleed him, conceiving the case to be of so trifling a nature as not to require the use of the lancet. - His Honor, in putting the case to the Jury, said, he was bound to tell them that it mattered not, in point of law, whether it was an accident or a wilful act, unless it had been shewn to be an accident of an inevitable nature over which human discretion could have no control, the plaintiff was entitled to their verdict; it was for them to consider whether the defendant had been capable of commanding his horse, and whether he had given such warning of his approach as would have enabled the plaintiff to get out of the way.  If they were of opinion that the defendant had lost the control of the animal, which was described as being a spirited one, and had been unable to hold him in, or had otherwise taken such steps as reason or discretion could suggest for the prevention of accidents, it would be a hard case to inflict a punishment on him by their verdict.  If, on the other hand, they were of opinion that defendant had carelessly put the life of the plaintiff in danger, they would teach him by their verdict that the law respects the needy, humblest, as well as the most exhalted individual.  The Jury retired for nearly two hours, and returned a verdict for plaintiff - damages £15.



[ 1] See also Australian, 14 October 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3287, vol. 104, p. 1.  Dowling recorded the commencement of his summing up as follows: ``I can't say it is a trumpery case.  If the deft might have got out of the way - or prevented the accident - by calling out or giving notice, then he is liable - no notice"  He continued: ``If an inevitable accident, & without any fault of the Deft - then he wd. not be liable."

See also Australian, 17 October 1834, on a rule nisi being granted against Samuel Hamilton for contempt: after leaving the court, Hamilton allegedly called Alexander Ikin ``a false swearing boat builder, and otherwise abused him."  Ikin was a witness for the plaintiff in this case, and Hamilton for the defendant.  According to the Sydney Herald, 20 October 1834, Hamilton addressed Ikin ``in a menacing manner," and called him a ``b--y false swearing ship carpenter."  The attachment was issued and the rule made absolute on 18 October 1834, after the defendant failed to attend to show cause against it: Sydney Herald, 20 October 1834; Sydney Gazette, 21 October 1834; Australian, 21 October 1834.

Published by the Division of Law, Macquarie University