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Colonial Cases

Charrier v. Nail, 1875

[hire of horse]

Charrier v. Nail

Civil Summary Court, Shanghai
10 May 1875
Source: The North China Herald, 15 May 1875


Shanghai, May 10th
Before R. A. MOWAT, Esq.
  This was an action to recover Tls. 62.20 for hire of and damage to a pony.
  Defendant said he was satisfied with the charge for hire Tls. 2.20 but disputed the amount charged for the damage.  The affair was purely accidental.
  Plaintiff said the defendant on the 2nd instant hired a pony and trap from him.  He returned at about nine o'clock, and brought them back.  The pony's two knees were broken, there was a bruise on its chest, and some damage to a hind leg.  Next say, the manager sent to him to let him know the pony was injured, and later in the day also sent the pony, so that he might see the damage.  Defendant wrote a letter saying he would call the next day, but he did not come.  He (plaintiff) therefore went to him, when defendant said the accident arose through there being an opening made in the roadway of the Rue du Consulat, and no light to show it; it was nine o'clock, and the pony was going at such a speed that when he came upon the opening, he could not stop in time, and the pony went into it.  The injuries were, the defendant had said, only mere scratches, the fact being that the skin was ton off both knees.  The value of the pony was $60, and it would take defendant about twenty days to cure it.  If defendant did not take the pony, he (plaintiff) would charge Tls. 20 for injury and loss of time.  There was a mafoo sent with the trap.
  Defendant said the opening in the road was at the junction of the Rue du Consulat with the Bund.  There was no ,light to show it, and he drove right into it.  The side was sloping, and the pony did not fall on its knees.  Defendant believed the injuries were inflicted on the animal by the mafoo in getting it out.  There was no shock when they drove into the opening.  Defendant did not consider he was responsible, because there was no kin d of protection to the opening afforded by the French Municipal Council, whose workmen had made it.  He thought that in ten or fifteen days the pony would be fit for work.  Both lamps of the trap were lighted, and defendant and a friend who was with him, were quite sober.  They took all possible care in getting the pony of of the shafts, by unfastening the traces.  Defendant and his friend for the trap out of the cutting, and the mafoo extricated the pony.
  CHRISTIAN HARRY KAHLER, who was in defendant's company at the time in question, gave confirmatory evidence.  He did not see the opening in the road, as there were no lamps near, and he was sitting on the side of the trap away from it.  There was a lamp, not a street lamp, close to the Hotel d'Europe.  They were driving at a medium pace, and did not know of the existence of the cutting, as at starting they went in a different direction.
  Plaintiff's mafoo was next called, and stated, through Heding, that as they were driving up the Rue du Consulat, the trap came in contact with a lamp, smashing it.  Immediately afterwards the pony and trap went in to the cutting.  When the trap struck, witness stood up, and saw it was against a lamp.  There was no light in it then.  It was a Chinese glass lamp, and when witness saw it, the light was extinguished.  There was a post and horizontal beam from which the lamp had been suspended.  He told the driver then to take care, as there was an opening near.  He said, "Look out; take care, one hole."  He saw the cutting only a moment before they were in it.  The cutting was about 100 feet in length, and running east and west.  There was a lamp, also, at the Whangpoo end, burning, and a man in charge of it.  He was a Chinaman, and was standing by the lamp.  There were no street lamps about the place - it as dark but for the lamp at the curling.  They were not driving too fast at the time.  Defendant drove very well going to Scawei, but not so well coming home.
  By Defendant - The lamp I first spoke about, was, I inferred, suspended from the beam, but I cannot say certainly.  As I was getting the pony out of the cutting, the watchman from the other end came to us.
  Defendant said frère was a lamp, near the Hotel d'Europe, fully 100 yards from the head of the cutting; it was burning very dimly.  It was suspended from an upright bamboo to which a cross-piece was attached.  The cross-piece extended further out into the road.  He went to the right to avoid it, but the splash board caught the end of the cross-piece and threw the lamp down.
  His HONOUR said he must have some more evidence as to the lamp, and the distance it was from the cutting, ands also as to the absence of barricades.  He could scarcely believe the lamp was so far off as a hundred yards.  At such a distance, it would be of no use as a warning against the cutting.  Did it not occur to the defendant, from the fact of a lamp being placed in such a position, that very careful driving was necessary there?
  Defendant said it did not occur to him to drive more carefully than he was driving, because the lamp was so far away from the cutting that he did not imagine there was anything obstructive behind it.
  The case was adjourned until Wednesday at ten o'clock.
  This was an adjourned hearing from Monday, the suit being to recover Tls. 62.20 for damage to and hire of a pony.  Defendant admitted the charge for hire, Tls. 2.20; and the question to be decided was as to his liability to pay the damage.  The case was adjourned for the production of further evidence.'
  Plaintiff produced a copy in French of the report of the accident made by M. Barbe by the policeman on duty at the time.  Neither M. Percebois, Surveyor to the French Municipal Council, nor M. Barbe were able to be present.
  His HONOUR read the report, which was to the following effect:-
At twenty minutes to ten o'clock, a carriage, with one horse, containing two Europeans, upset a barrier placed near the Consulate-General, broke the lantern which marked the obstacle, and afterwards got into a cutting opened a little higher up the road, for drainage-works.  No one was hurt, but the carriage was damaged.
His Honour went on to say that it was certainly not twenty minutes to ten, nor was the carriage injured.  He had been to look at the place, and now knew something more of the matter.  At the time the case was being heard, he had forgotten there was a side street leading into the Rue du Consulat, but not across it, and he also now knew where the Hotel d'Europe was.  The distance from the hotel d'Europe, act the corner of that side street, to the Bund, was about 120 yards, and it was at the junction of the side street with the Rue du Consulat that the barrier and light seemed to have been placed.  How long did the defendant suppose the cutting was?
  Defendant replied that he should think it was about two-thirds the length of the Court room, and near the Bund end of the Rue du Consulat.
  His HONOUR went on to say that he could understand the reason for placing the lamp at the point near the Hotel d'Europe.  It was to indicate that some work was being done beyond, which could not well be passed - in fact, to tell persons to turn down the side street.  When he first heard the case, he thought from both plaintiff's and defendant's statements that defendant was not liable, and that he had done all that was required - had exercised all the care that he was bound to exercise - and he was likewise under the impresses ion that there was no barrier or light near. A person who hires a trap in no sense insured its safety, and was not responsible for any damage that may be done I to it, provided it could be shown that proper care was taken at the time of the occurrence.  He mentioned that, because he thought the plaintiff seemed to be of opinion that the defendant was liable under any circumstances.
  Plaintiff said he knew what his Honour had stated was the case.
  His HONOUR went on to say that up to the time of hearing the plaintiff's and defendant's statements, he did not think the defendant was responsible, and considered that the plaintiff could not charge him with the damage.  But after hearing the mafoo's account, that there was a lamp, and that the defendant knocked it down and broke it, the case was altered, because a prudent persons could not have imagined the lamp was put there for no reason whatever.  The inference in any parson's mind would be that there was some obstacle further along the road, and that more than ordinary care would be required to pass it.  It seemed to him that the defendant should have walked the pony until he got to the end of the street.  If that had been done, this accident would not have happened.
  Defendant   said the lamp was more than half across the street, and he did not think it implied that the road was closed.
  His HONOUR said it did not, but its existence there suggested to any ordinary mind that there was something out f the common, and consequently more than common care was required.  On the contrary, it appeared that after defendant had capsized the lamp, he did not alter his pace at all, but kept on as fast as he was going previously.  He ought clearly to have gone slower.  His Honour concluded by saying that under the circumstances, he believed a jury would say that defendant had not acted as a prudent man would with his own property, and was therefore liable to pay the damage.  He was, however, liable only because it had been proved there was a light put up to warn persons of the obstacle beyond.
  Plaintiff in reply to His Honour, said he could not accept less than Tls. 20, and had he known that a barrier had been erected at the place, he would not have brought the action.
  His Honour supposed the defendant did not wish to take the pony?
  Defendant said the pony was of no use to him.
  His HONOUR then entered judgment for plaintiff for Tls. 2o0 for the damage, and Tls. 2.2o for the hire.
  No other evidence was called in the case than that heard on the first day, but a witness who had been subpoenaed on behalf of the defendant, now stated that on Sunday night about a quarter to nine, he was  walking along the Rue du Consulat towards the Bund; there were no lights at that time, at the place named, and only a slight upright with a cross-piece reaching partly across the road; while a bamboo fence on the right hand side of the Rue du Consulat, obscured the light of a lamp at the corner of the Bund, throwing the cutting, of the existence of which he did not know, into shadow, and he was nearly walking I to it.  He  also visited the place on Monday might, and there was again no light.
  His HONOUR said there was, however, something there as a barrier (and also a light which the defendant passed by), which should have shown passers by that more than ordinary care was required, which the defendant did not take, and therefore he was liable.  If the defendant was not satisfied with the decision, he could take the Chief Judge's opinion in it.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School