892
(b) That no warning was heard by the plaintiff and that no adequate warning was given.
The questions to be answered are: (1) Were the defendant's servants negligent? (2) Was the plaintiff negligent ?
(3) Was the ricksha-puller negligent ? (4) If the ricksha-puller was negligent, is his negligence imputable to the plaintiff !
First then, were the defendants' servants negligent? If they were, and such negligence resulted in a wrong being committed, the de. fendant company is answerab'e for that wrong and its results because such wrong W88 committed in the course of the service of the defendant company and for its benefit. Though the company may not have authorised the particular act complained of. yet it has put coolies in its place to do the class of acts and must be answerable for the manner in which its agents conducted themselves in doing the business which the company had enjoined them to do.
To constitute negligence on the part of the ser- vants of the Company they must have omitted or failed to use due care and caution for the safety of persons or property. If the Company have a right to move its trucks across the public road, it must move them with care, so that persons and vehicles using the road may not be injured. There was a duty on the Company to exercise precautions as ordinary prudence dictated to protect the public from injury when its trucks were crossing a public road on which its rails were laid This duty the defendant Com- pany failed in the present instance to discharge. The truck in question was being moved at too fast a rate and was not under a proper state of control. The alleged special warning by shout- ing was inadequate, and the notice boards, Beware of the trucks," did not constitute more than a warning that trucks moving at a reasonable pace might be encountered. I find therefore that the Company, by its servants, was negligent, and that, as the result of such negligence, a wroug was done to the plaintiff of which the natural and probable consequence was the injury to person and raiment incurred by the plaintiff.
such reasonable care and to take such reasonable
The next question concerns the negligence of the plaintiff himself. In my judgment no negli- gence can be traced to him. Then, was the ricksha-puller negligent? I do not say that he could not have averted the collision; in the opinion of the plaintiff and his brother officer, the puller did all that could have been done under the circumstances. They were eyewit- nesses and could form a fair estimate of the exigencies of the situation. The position of the puller seems therefore to have been that of a person who, on the spur of the moment, had to make up his mind how to evade a suddenly impending danger raised by want of care on the part of another person. Under such conditions he is excused if he failed to act with perfect skill and presence of mind, and is not guilty of contributory negligence.
Having found the facts and having app'ied the law to them, the defendant company is, in my judgment, liable to the plaintiff in damages. I need not go further, but as the question was argued as to whether contributory negli- gence on the part of the ricksha-puller (had he been found guilty of such negligence) would have been imputable to the plaintiff so as to prevent him from recovering damages from the defendant, I will deal with the relation which exists between the hirer and the puller of
For many years the doctrine of ricksha. identification had judicial vogue in England. Under it a passeng r who had selected the particular conveyance by which he travelled was so far identified with the driver that, if any injury was sustained by him from collision with another vehicle through the joint negligence of his own driver and that of the other vehicle precluding the former from maintaining an action against the latter, the passenger was himself equally precluded. (Addison Torts 6 Ed. p. 27). This doctrine was declared not to be the law in 1888 by the House of Lords. The law in this respect now is that a plaintiff is not precluded from succeeding in an action for negligence by reason only of the contributory negligence of a thirl party who is not either his servant or his agent. The question then is, was the puller of the ricksha "the servant or agent of the plaintiff ?
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THE HONGKONG WEEKLY PRESS AND
-
In Mills v. Armstrong 13 Appeal Cases at 8
p. Lord Herschell said: "The relation between the passenger in a public vehicle and the driver of It certainly is not such as to fall within any of the recognised categories in which the act of one man is treated in law as the act of another," and His Lordship makes it clear at pp. 5 and 6 that the recognised categories to which he. referred are those of master and servant and employer and agent acting within the scope of his authority. At p. 16 Lord Watson said Individuals who are injured, without being personally negligent, are nevertheless disabled from recovering damages if, at the time, they stood in such a relation to any one of the actual wrongdoers as to imply their responsibility for his act or default.*
This
relation cannot be other than the two classes of relation referred to by Lord Hersch-ll.
LA
om-
the
[November 28, 1904.
Mr. R. Harding (of Messrs. Ewens and Har- ston) appeared for the plaintiff; and Mr. E. J. Grist defended.
Mr. Grist asked that the order be made pay- able in instalments. The defendant could neither read nor write, but had always left his affairs in the hands of the agcountant, not available. He offered $20 a month.
Mr. Harding said that the bill was over a year old, and further that the defendant had quite recently returned to the Colony, having run away to avoid payment of his debts.
An order was made for the defendant to pay $50 a month, the first payment to be made in seven days.
Thursday, 24th November.
IN ADMIRALTY JURISDICTION.
BEFORE SIR H. S. BERKELEY (CHIEF JUSTICE AND CAPT. HON, BARNES-Lawrence R.N. (NAUTICAL ASSESSOR).
N.D.L. 8.8. "WONGKOI” v. B.I.S.S. UJINA." This was a consolidated action between the Norddeutscher Lloyd SN. Co., as owners of the British India 8 8. Wongkoi, and the British India S.N. Co., as owners o the ss. Ujina.
The Hon. H. E. Sharp, K.C., instructed by Mr. Gedge (of Messrs. Johnson, Stokes and Master), appeared for the N.D.L. and Mr. M. W. Slade, instructed by Mr. John Hastings, for the B.I.S.N. Co.
His Lordship said that the casualty report which by law had to be made to the Harbour Office, for purposes of the Board of Trade, had been produced. This report was signed by the Captain of the Ujina. "He found the answer
vehicle within the definition of section 2 of to
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44
the question Course of vessel when the other was first seen"-Pilot's orders; "Speed when the other vessel was first seen "two knots. The captain had said in evidence "six or seven knots," how did he explain it?
The Captain said that this was a mistake. He did not know how this crept into the report. He gave his replies to his clerk to copy in; it was a clerical error.
His Lordship-Your clerical error has gone home to the Board of Trade; and about the pilot's orders.
Again at p. 18 Lord Watson stated that in his opinion an ordinary passenger by an nibus or by a ship is not affec ed, either in a question with contributory wrongdoers or with innocent third parties, by the negligence, in the one case of the driver, and in the other of the master and crew by whom the ship is navigated, unless he actually assumes control over their actions and thereby occasions mischief. Lord Herschell therefore lays down the general proposition of law that the relation between the passenger in a public vehicle and driver of it is at the relation of master and servant or employer and agent, but this general proposition appears to be restricted by Lord Watson to the case where the passenger does not assume control over the driver's action so as thereby to occasion mischief In the present case, the ricksha hired by th plaintiff was not a private ricksha, but a public Ordinance No. 8 of 1887, where publ e vehicle is defined to mean any chair, carriage, jinricksha or other vehicle of any kind which plies for hire in the streets for the carriage of passengers. Moreover, the plaintiff, beyond properly ordering the puller of the ricksha to go slowly and directing him whither to take him, did not assume any control over his actions whereby mischief was occasioned. The plaintiff therefore seems clearly to come within the general proposition laid down by Lord Herschell as modified by Lord Watson. The Captain said that this expression simply So that even if I am incorrect in holding that meant that the pilot would say go this way or there was no contributory negligence on the that way, and the captain would agree and give part of the ricksha puller nevertheless the the order to port or starboard as the case might plaintiff must succeed against the defendaut be Company whose servants were guilty of negligence, because the p'aintiff, being guiltless of negligence, assumed no such control over the ricksha puller as occasioned the mischief, and is not therefore responsible for the negligence of the ricksha puller. In perusing Ordinance No. 7 of 1897 by which the defendant Company was authorised to lay down, &c., the tramway on which the collision in this case occurred, I found that, by section 18, the rights, powers and privileges granted by the Ordinance were to continue in force for twenty years from the 23rd day of September, 1884, with power to the Governor-in-Council by order to be published in the Gazette, to declare an extension of the duration of such rights, powers and privileges for any further term not exceeding ten years at The rights of the defendant Company to lay down, maintain, work and use the tramway in question seem therefore to have expired on the 22nd day of September 1904, or several days before the collision between the plaintiff's ricksha and the defendant's truck occurred; for the Gazette has not published any Order-in- Council ex'ending the term of such rights be- yond the 22nd day of September, 1904. This opens up a nice question as to the legality of the acts of the defendant Company in moving trucks on the said tramway after the 22nd day of Septem er, 1904. I merely advert to this state of affairs, but do not base my judg. ment upon it, because the point was not course of the action. noticed during the As regards the damages to be awarded to the plaintiff, I fix the sum at $100. There will therefore be judgment for plaintiff for $100, and costs.
a time.
CHEUNG HOK YING FIRM ». LING SHING.
The plaintiff firm sought to recover from the defendant $257.30, in respect of coal alleged to have been supplied to him,
Mr. Slade, referring to the Chinese pilot not giving evidence, aid that as a general rule Chinese would not give evidence unless they were interested; they would have to give the man a substantial sum, and then the charge of bribing witnesses might be bron: ht against them. Chinese only gave evidence for family reasons or pecuniary reasons, which made them in- terested in the case. To get disinterested evidence amongst Chinese was practically impossible.
After counsel had finished addressing him. His Lordship gave judgment. In summing up he said-There is no question of law involved to require consideration after the extremely careful and capable manner in which both gentle- men brought the subject and evidence before
me.
was
The only question is, what is the true conclusion to be arrived at upon the evidence as to whether or not there was a red light on the Wongkoi on the night in question, August the third. The question as to whether or not the officers of the Ujina believed that a light was there, though one of importance to themselves is not of importance in the true finding of the case. It matters not at all whether the light on the Wongkoi or it was not on the Wongkot, it must be established as a fact in order to excuse the Ujina for coming i to collision with her. The facts as I recoll et are that these two ships on the evening of the 3rd August approached Hongkong on the same course Finally the Ujina, which is a much larger ship than the Wongkor, was passed outside Sulphur Channel by the Wongkoi. The Wongkoi kept sight of the Ujing till she (the Wongkoi) entered Sulphur Channel, and then practically lost sight of her. The Wongkoi proceeded on her course up the harbour and took up ... the position where she was sochored when she was run into by the Ujina. To go back to the Ujina, she lost sight of the Wongkoi after the
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