Friday - Before His Honour Deputy Judge

Thompson ( Leeds ).

Bragg v. C. K. & P. RAILWAY Company.- This was a claim for £40, of which £40

was for the value of a horse, £7 for damage to a cart and £2 for harness-Mr.

G. Falcon (Workington) appeared for the plaintiff and Mr. E. L. Waugh

(Cockermouth) represented the defendants-A Jury was empanelled, and the

jurors were Messrs. C. Cartmel (foreman), F. Hume, Joseph Lowther, T.

Strong, and J.Scott (Lake-road). -Mr. Falcon said that the damages had been

laid so as to bring the case within the jurisdiction of the County Court,

and so far as he could see, he had no hesitation in saying the case was

absolutely an undefended one. He briefly reviewed the facts of the case as

he should present them, and said he would not have been 'surprised had he

been called here in another capacity to inquire Into the death of the

plaintiff and a young man named Wilson for be thought it was impossible

there could be a case of grosser negligence than this. Since the accident

had happened, post mortem improvement had been made by the Company, and no

accident of the kind could again happen ; the company had admitted their

negligence by preventing their yardman from acting as an assistant porter to

passenger trains. If as submitted it was a highly improper thing that wagon.

placed for unloading should be coupled unless the yardman was there to see

all was clear.

It was a case of a poor man suing a rich company, and if he made out his

case he asked that every halfpenny of the damages should be awarded.- Thomas

Bragg, plaintiff, said he was a carter and lived at Rosthwaite, Borrowdale,

Mr. Mounsey of Grange, had some timber brought to Keswick station and he

arranged to cart it for Mr. Mounsey. He went for the first loads on Monday,

25th August last, and saw Isaac Cartmel, the railway warehouseman, who

directed him to the wagon to be unloaded. He left some in the wagon and came

on the following day for it. The wagon was standing in exactly the same

place as on the Monday. As he was going through the goods yard he saw Joseph

Fisher, the yardman, going up to the passenger, station to act as porter to

the passenger train. Witness took his carts up to the wagon and loaded one.

The wagon was part of a long train. After having loaded the first cart he

took the second and put It lengthways of the train with the horse's head

towards Keswick. He tied the horses halter to a loop on the wagon behind the

one he was unloading. There were some eight or nine wagons behind that one.

He asked for assistance with a heavy beam and a young man, named Wilson ,

came to his help. Wilson got into the wagon and helped him with the beam

over the edge of the wagon into the cart. Just as witness got out the wagons

commenced to move away without any warning. There was other timber in the

wagon .

As there were some big box wagons between him and the engine he was unable

to see the engine. He had carted from the yard for ten or eleven years, and

the custom was to tie to a wagon horses that would not stand. He had seen

people tie horses to wagons, and he had seen the yardman come to tell them

to keep clear when there was going to be shunting , he had never been told

not to tie his horse to the wagons, and he had always had warning given

before when a train was going to be moved. when the wagon moved it struck

the wheel of the cart, and gave the horse a jerk round towards the wagon,

The yardman had not returned when the accident happened. Witness saw Mr.

Clark , the traffic manager after the accident had occurred. Mr. Clark did

not say anything to him. Witness also saw Mr. Thompson. When the train moved

the horse was turned In the opposite direction to that in which it had been

standing ; it was pulled round by the halter. A

little further on two lines of rails converge, and the horse and cart were

dragged in between the moving train and some trucks standing on the other

line .

The horse had a leg broken in two places, and the cart was smashed to

pieces . A veterinary surgeon saw the horse and he ordered it to be "put

down ." The animal was a five year old mare, a very good one for which he had

given £33 privately three weeks before, he could not now get one as good for

the same money. He considered £9 or £10 a fair value for the cart.  -Cross

examined by Mr. Waugh: Witness said he had brought some slates to the yard ;

he saw some trucks loaded with slates, but those which he brought he put on

the ground, He was well acquainted with the yard and knew that slates wore

taken away at various times - sometimes in the morning and sometime in the

afternoon , He was at the slate-tip for about half-an-hour From there he went

direct to the wagon and was there about quarter of an hour or twenty

minutes . The timber wagon had not been moved from the place where it stood

the previous day. He could not say whether it was coupled or not. He

fastened his horse to the wagon behind on Monday, and he had not noticed

whether It was coupled or not; nor did he notice on Tuesday He could swear

there was no whistle when the train began to move. The horse might have been

hurt if it had not been tied.

He could not say whether or not the horse was injured before it was drawn

between the wagons, he tried to get it untied. The horse was chucked against

the wagon for a start and the cart had been drawn close to the wagon by the

horse being a bit uneasy. It was a quiet horse but rather nervous about

trains . Mr. Clark came up after the accident, but witness did nut know what

was said. Mr. Clark might have said "It was a foolish thing to do"--.that

was to tie a horse to a wagon; and witness might have , answered, "Well,

what is one to do with a restive horse " He did not see any of the Company's

servants until after the accident. It was a constant practice to tie a horse

to a wagon if it would not stand. He could not say how many times he had

done so.

He had seen the practice many times and even as late as last week,- William

Wilson deposed that he assisted the plaintiff as stated and that he did not

hear any whistle before the train started.-Joseph Fisher, said be had been

employed by the Railway Company and was yard man at the time of the

accident . From the place where the lumber wagon was standing he did not

think it was possible to see the engine.  He had seen horses tied to wagons

and he had no orders to stop  the practice, he had never interfered except

when the train was going to move. It was his duty to see all was clear

before giving the signal to start.

and if he was not there it was the duty of the guard. He had to go to the

passenger train and he left the other train standing.  The engine had not

been moved about while Bragg was at the slate tip, -Cross-examined by Mr.

Waugh He had made a statement to Mr. Thompson to the effect that he had

occasionally known people fasten their horses to wagons while unloading and

he had cautioned them against the practice; but he meant by that he had

cautioned them after the accident. He was prepared to swear that he had not

cautioned anybody before the accident. He also had said that he never knew

anybody fasten a horse to a wagon attached to a train to be drawn away.-Mr.

Falcon asked if he got  a different order, after the accident,- Mr. Waugh

said that that question did not arise  - wittness said he had himself tied a

horse to a wagon while working for the Company on the permanent way-John

Tyson said he had been yardman for nine or ten years previous to Fisher, he

bad seen horses tied to wagons many times It was a regular practice and be

never Interfered. except when It was to tell them to keep clear.-This was

the plaintiffs case.-Mr. Waugh said there. was no evidence of negligence on

the pert of the company and he did not think It would be necessary to call

evidence . Whatever had happened had been at the plaintiffs risk. The Company

were perfectly Innocent, for there was not a vestige of evidence to show

that their servants knew plaintiff was there.-His Honour said he should rule

there was evidence to go to the jury, whereupon Mr. Waugh called Lancelot

Pattinson , the driver of the goods engine, who said that he did not see the

plaintiff , and be opened the whistle before moving forward. He stopped

afterwards when the signalman waved the red flag .

Mr. Falcon; He bad been in the yard many times and had seen carts. He

started on the signal from the guard; he did not know whether the guard had

been round the train -  Mr. Waugh: He had never seen a man tie his, horse to

a loaded train John Machell, the guard, said the trains had been shunting

about to get into position to take the slate wagon., and thought anybody in

the yard could not have failed to see the train moving about. They went

first into the warehouse siding and brought three wagons into the wharf

siding , where he coupled up the wagons with the exception of those

containing slate. he thought there would be eight or nine behind the timber

wagon . The plaintiff could have seen them coupled if he had looked. He did

not know anything about the custom of carters he did not see anybody in the

yard , and to his knowledge there was nobody near with a horse and cart when

the train started -by Mr. Falcon: They did not want to kill any people, and

it was the guard's duty to see the train clear.-Mr. Waugh said as he

understood the law he did not think there was any Liability  against

trespassers- His Honour would not say the plaintiff was a trespasser; he was

there by invitation fur mutual benefit - Mathew Jenkinson, stoker, deposed

that when the train was brought to a stand he got off to get his tea and ran

to the engine when the whistle sounded.-John Clark, traffic manager, said be

went to the place after the accident He was told that the horse had been

tied to the wagon. He said Is was a foolish thing to do and the plaintiff

said what is a fellow to do when the horse will not stand still.!   He had

never seen horses tied to the wagon

-Mr. Waugh addressed the jury and contended there was no evidence to support

negligence on the part of the Company. The occurrence was a pure accident,

and was a clear case of whet is known in Law as contributory negligence. He

felt there was sympathy due to the plaintiff in his loss, but he hoped the

jury would do justice between the parties, or there would lie no stopping

place for men running into danger

Mr. Falcon contended that there was negligence on the part of the Company;

the duty of the servant was to see the train clear before starting  this

train had been standing for a quarter of an hour or twenty minutes sod the

guard had not stretched his neck across the back of the wagons to see if

anybody was near. There was the evidence of Fisher and Tyson to prove the

custom of tying horses to the wagons.-His Honour summed up the evidence, and

alter pointing out the subjects to be considered said that as the horse bad

been bought three weeks before for £38 he thought that would be the value.

there was no dispute as to the rest of the damage.-The jury retired to

consider their verdict and In a few minutes returned. The foreman said they

had agreed for the plaintiff for the full amount The announcement  was

received with applause, which was immediately suppressed by his Honour's

threat to have the court cleared.- On being asked what was meant by the

"full amount,' the foreman replied £44 -His Honour granted costs .