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From the Dover Telegraph, 17 January 1863 Dover CC 3.bmp"
STONE v. MONTI.
An action to recover £9 2s. 0d. for damages occasioned to a dog-cart in
consequence of defendant's alleged negligent driving on the Crabble Road, on the
3rd Sept., 1862.
Mr. Minter appeared for the plaintiff and Mr. Towne for the defence.
Mr, Minter having opened the case at considerable length called Robert Stone,
who said:- I am a draper's assistant living at Dover. On the 3rd of last
September I drove some friends in a dog-cart to Shepherdswell, and we left that
place to return to Dover about four minutes after eight o’clock in the evening:
it was so light that we did not require lights. A young man named Prentice (who
had his leg broken) was sitting on the front seat with me, and a young lady and
another young man on the seat behind. I am quite used to driving, and have had a
great deal of it. When we arrived at Buckland Bridge, and within a very short
distance of it, a collision took place with a cart driven by Mr. Monti. At the
time, I was driving at the rate of about four or five miles an hour: I ran down
to within a foot of the kerb, on the near side of the road, which is from 20ft
to 25ft. wide. Defendant was coming out of Dover and I was corning in — he was
on his wrong side of the road. I cannot say at what pace he was going. because I
did not see him until he was into me: he was driving a two-wheeled cart, and his
wheel took my shaft on the off-side. The young lady and the young man thrown out
— one on to the kerb, and the other a little way off. I did not see the position
of them myself. I was throne out I saved myself by catching hold of the
splashing board. When I had stopped the horse some little distance on, the first
thing I did was to see what injury was done to the vehicle.
His Honour:- Not to the people who were thrown out?
No Sir.
Mr. Minter:- What did yon next?
Then I went to see about the cart, and spoke to the defendant.
What state was he in?
He was tipsy.
His Honour:- What was he doing?
Taking his horse out - the horse was down.
Mr. Minter:- What distance did you go before you stopped your horse?
About the length of this court.
Cross-examined by Mr. Towne:- When I went back I asked Mr. Monti whether he was
the owner of the trap and he said he was. It was then upon the ground, on one
wheel and with the other high up in the air. I do not know whether the wheel of
the cart caught the wall. I saw some lucifers alight in the road. I do not know
whether the cart was much damaged. I do not know Mr. Walker.
Is he not one of your witnesses here to-day?
I believe he is. Who passed him as we were coming down the hill just before the
accident happened.
When you passed him, I believe you were in the middle of the road?
Driving in the country and driving in the town are two different things.
How far was Monti's cart from the side when you saw it overturned in the road?
About 15ft, or 20ft.
Will you swear to that?
No, I should not like to do so.
By Mr. Minter:- What I moan by "a difference driving in the country and in the
town," is that I take any part of the road in the country that is clear, to
avoid ruts, but when coming into a town, I always keep my right side in case
anything is coming along, I am always very particular about this.
Mrs. Mary Stone (of the "Angel" Charlton) remembered seeing Monti and a man
named Tupsell at her house on the night of the accident. They had two glasses of
ale; Mr. Monti paid for them, but did not drink his.
Mr. Minter:- Now, was Monti sober or drunk at the lime?
Drunk, sir.
Mr. Towne objected to “leading question."
His Honour:- What condition was Monti in when he was at your house?
Drunk, sir.
What makes you think so?
The way in which he stood against the bar; and he reeled when he went out.
Mr. Minter:- You made a remark to Mr. Tapsell about him as he went out, did you
not?
Mr. Towne:- Really, I must object to such a mode of questioning. One would fancy
you did not know the rules of evidence.
By His Honour:- We live about a mile from the spot where the accident happened.
By Mr. Towne:- It was a little before nine o'clock, when Mr. Monti left, but I
did not particularly observe the clock.
Your husband is a publican, I believe?
Yes; he is ill, or he would have attended to-day.
I have no doubt! Now, are you in the habit of serving drunken people?
If a man of a particularly low older came in drunk, I should not serve him; but
when a person seems a little bit respectable, and is along with another, I
should not refuse.
I do not know what the magistrates would think of that evidence!
John Stone (living at Mr. Norman’s, Woolcomber Street) corroborated this
testimony.
Mr. Minter:- What condition was Monii in?
Intoxicated.
John Williams, a shoemaker, also deposed that defendant was "tipsy" when he saw
him and Tapsell at the "Angel."
His Honour:- Where was his carriage all the time?
I don't know: I did not go out to see him go away.
Mr. Towne:- What made you think he was drunk?
Why, he couldn't stand steady without holding on to something.
You did not see him drive away?
It was no business of mine.
I am surprised you make it your business to know so much about it now! How long
were you in the house?
Five or ten minutes, perhaps a quarter of an hour.
How did you know of the accident?
When I re-turned from Dover, Mr. Stone told me his son had met with an accident.
What time was that?
I don’t know — it might be seven, eight, or nine o'clock.
By Mr. Minter:- But I am certain I saw Monti there, and that he was drunk.
George Bowles, a police constable, saw Monti driving along the High Street,
Charlton, between the "Angel" and the "Eagle" towards Buckland, the horse was
going as fast as it could, but defendant was cutting into it with his whip. He
spoke of the circumstance when he went down to the station house about ten
o'clock.
Cross-examined by Mr. Towne:- I did not make a report in writing; it is my duty
to do so, but I neglected it — I spoke of it, and that is the same thing. I
ought to have summoned him for furious driving.
Thomas Bewse, a labourer, saw Monti whipping the horse about a dozen rods from
the spot where the collision took place. He was drunk. Witness did not see the
collision, but hearing the noise, ran up and helped to get the horse out of the
cart, which was lying in the middle of the road.
Cross-examined by Mr. Towne:- I helped Monti hold the horse down; he kept
bundling about between the horse’s legs. I stayed there about two hours.
William Godden, a gardener, living at Chapel Mill, whilst walking home with his
wife, saw defendant driving very fast, about five or six rods from Buckland
bridge; he was first on one side of the road, then the other. When he heard the
collision, he ran to the spot and afterwards went for a doctor. Monti was drunk.
His Honour:- What makes you think so?
He was falling about, all over the place.
Mr. Towne:- That was after you fetched the doctor?
Yes.
Mr. Minter:- You had a difficulty to get out of his way when he drove past?
Yes, I was crossing the road, and had to get back again pretty soon.
William Knott, a labourer, living in a collage opposite the spot where the
collision look place, had gone to bed, but he run downstairs immediately. They
were bringing in the young lady as he got down, and the young man who had his
leg broken was lying right up against the window of the house, close to the
wall. Monti's cart was upon its left side about 3ft. from the wall, and
everything was shot out of it. Monti was very drunk — he was tumbling about over
his things as he was picking them up, and making use of very bud language.
Pater Beer deposed there wag plenty of room to walk round the cart after it
fell. He helped haul it up, and one wheel was within 4ft. of the kerb on the
right hand going from Dover. The accident happened at ten minutes to nine
o’clock.
Henry Walker, clerk to Mr. Percy Claris, solicitor, saw the plaintiff driving
very steadily in the middle of the road, 300 or 400 yds. from where the vehicles
came into collision.
Mr. Minter:- What condition was Monti in?
Well, he was drunk; I avoided speaking to him.
I believe you are a friend of Monti’s?
I am.
What condition was Stone in?
Sober.
By His Honour:- I thought there was no occasion to speak to Monti, seeing he was
tipsy.
William Birt and Miss Swaffer, who were seated at the back of the dog cart, gave
corroborative statements to the foregoing; and Albert Masey (who was passing
shortly after the accident) heard several broken sentences, one of which was
something about going to h---, from Monti, who was evidently intoxicated.
Mr. Edward Hills, coachmaker, Castle Street:- I was on my way to my residence,
Whitfield, and arrived at the spot shortly after the accident had occurred. I do
not know much about the position of the cart, but the goods were scattered about
in the middle of the road: they were small and light parcels.
Mr. F. Packham, livery stable-keeper, Townwall Street, the owner of the horse
driven by Stone, remembered that the animal was very "cool and comfortable"
half-an-hour after it was returned to the stable. Mr. Stone frequently hired
horses of him.
This being the case for the prosecution, Mr. Towne addressed the jury at great
length for the defendant. They had all of them had some experience in
running-down cases, collisions. &c., and these cases were generally tarnished
with a great deal of improper evidence. He might have great difficulty in
pointing out clearly to them the errors into which the plaintiff had fallen, but
he could assure the jury with the greatest confidence that this was a very
improper case to come into court — that the plaintiff had entirely mistaken the
law, and there was not the slightest occasion or pretence for an action against
his client.
If the "tables had been turned" it would have been more clearly shewn that the
plaintiff (Mr. Stone) was liable to a far greater amount for the damage done to
Mr. Monti, a very humble tradesman at Sandwich.
The plaintiff had himself stated that it was a very fine moonlight night, and
how was it Mr. Stone was not able to keep a sharp look out? Instead of that he
had told them that he had not seen Mr. Monti until he was close into him, and at
the spot where the collision took place, one might see for at least 100 yards.
Then again, plaintiff's own witness (Walker) saw them driving in the very centre
of the road. There was another important matter for the jury especially to bear
in consideration, and a fact that would clearly satisfy them on which side the
charge of fast driving belonged. It was in evidence that the dog-cart left
Shepherdswell at 8.10, and two or three witnesses had said the accident occurred
at 8.50. Bowles, the policeman, had seen Monti driving furiously, galloping as
fast as ever he could go, at 8.30; but had he been walking the half-mile
Buckland-bridge is from the "Eagle" he would have reached the place before ten
minutes to nine — the time Peter Beer had declined the collision to have taken
place.
His Honour:- I have not a note of that evidence.
Mr. Towne:- I am lorry for that — the witness distinctly said so.
His Honour:- Perhaps in his cross-examination but not in chief.
Mr. Towne submitted that any matter favourable to his client that had fallen
from the lips of plaintiffs own witnesses was his indisputable right; and they
had shewn that the distance from Shepherdswell to Buckland, only six miles, had
been done at a "nice cosy pace" by four persons in a dog-cart, in thirty or
five-and-thirty minutes! He did not know much about the laws of motion, but he
thought the result of the collision would prove who was during at a furious rate
and who was not. The defendant Monti had a very large, heavy spring cart, and
there is no question but that had he been travelling furiously his heavy vehicle
would have smashed the dog-cart into shivers; but from the circumstance that the
dog-cart was able to go on its way (he had almost said "rejoicing"), that fact
alone proved where the momentum was; for if a weaker vessel was at any time
driven against a stronger one, it invariably realized the old proverb "the
weakest went to the wall." But in this instance, the strongest went to the wall,
and the dog-cart went fifty yards before it could be pulled up. No doubt
plaintiff had tried to stop himself soon as possible, but he was unable to do ho
sooner in consequence of the speed at which he was going. Having heard these
remarks upon the evidence as to the width of the road and the speed of the
vehicles, he thought the minds of the jury must be very much relieved as to the
necessity for their entering into any consideration as to the charge of
intoxication — such charges made a very awkward impression, and as they had been
pressed in the evidence, it would be his duty to rebut them in the best manner
he might be able, it was a very easy thing for witnesses to come up and say that
a man was intoxicated, but he must ask the jury to bear in mind that some of
those witnesses had seen Mr. Monti before the accident and others had seen him
after the collision, when Mr. Monti had been nearly killed - after he had had
his head Knocked against a wall and been almost crushed by a wheel — when he was
suffering pain, and in a high state of confusion! It was not the coachmaker's
bill, or whether he should pay £5 or £9 he was contesting, but if a verdict were
given for this amount it might be taken as a precedent for another jury, and
others might come upon his unfortunate client and ruin him entirely. Many
witnesses had been called up - what for? — to prove drunkenness — to damage the
defendants case; he denounced it as foul conspiracy. But it was not because a
man was drunk he was to be held liable for damage from a collision — he might be
an drunk as "David's sow," but that was not the question for the jury to
determine; it might be a question for them whether his drunkenness had placed
him in such a position as led to the accident; but the witnesses were like the
North and the South in America, entirely at variance, and he thought very little
reliance was to he placed upon the evidence as he had said, the whole case had
more the appearance of a conspiracy than anything else. Taking, however, such
portion of the evidence as related to the position of the vehicles, the jury
must see that Monti was on his right side of the road, the exact width of which,
at the spot where the accident occurred, was 23ft. 4in., and whether drunk or
sober, everybody knows exactly how much of the road we were entitled to — one
half. Mr. Hills, like a respectable witness, would have nothing to say as to the
position of the cart; but where did he say the snuff-boxes and parcels were? Why
just in the middle of the road! Notwithstanding the violence of the concussion,
he would submit to the jury, as these light parcels did not come further than
the middle of the road, this was an additional proof that the cart was on its
right side. With so large a number of witnesses as had been called to support
the plaintiff's case it was impossible for them to keep in the truth — it was
sure to out — and here was the advantage of having the witnesses out of court.
He then compared the evidence given by Knott and Bewse as to the distance the
cart lay from the wall, and calculating the wheel at 5ft., the width of the cart
at 5ft. 6in., and the distance from the wall at 2ft., making a total of 12ft.
6in., the jury would readily see that the dog-cart had ten or eleven feet of
clear road to have passed through upon, had it been on the proper side. What
then had the dog-cart to complain of it? A bar of iron running round Mr. Monti's
cart was also broken on the left aide against the wall, and here was another
proof, he hoped, to their satisfaction. Commenting upon the expletives used by
Mr. Moti in a moment of excitement (which his learned friend Mr. Minter had had
the bad taste to have repeated by the witnesses), he remarked that Mr. Monti was
not too drunk to give his name and address when Mr. Stone went up, and ran him
through the catechism of "Who are you? What’s your name?" and "Where do you come
from?" These questions were properly replied to; and this went far to prove that
the charge of drunkenness was pure fiction! The evidence of the witnesses upon
this point was not at all consistent, and taking the evidence of the landlady,
who thought he was drunk because he was leaning up against the bar, it was an
exceedingly unfortunate thing for a man who may have been canvassing or running
about after his business the whole day, if he should happen to be seen leaning
against the counter or against a post, to encourage his laziness, it he was to
be judged in that manner. He thought, if the magistrates had heard that
evidence, it would have been conclusive that the landlady was supplying liquor
to a person who had already had enough; certainly, she did attempt to qualify it
afterwards by saving something about not letting vulgar people have any more;
but supposing the customer to be a gentleman it would seem they imagined he had
a right to call for as much as he liked, and to get as drunk as Chloe, if he
pleased; at any rate, the very fact of his not drinking the ale when it was
drawn was not the act of a drunken man — nor was his determination to proceed
home, when they wished to detain him to be taken for such. There was another
remarkable incident to which he begged the jury to direct attention: Bowles and
Godden had declared upon oath that Monti was driving furiously, and the former
had admitted that he did not do his duty in not summoning him — it was much to
be regretted that hardly a case came on in any court in which a policeman did
not come up to garnish it in some shape or another; and he submitted that a man
driving at the furious rate Monti is represented to have done would not be
likely to escape with a chance of being brought up, for the police are always
ready to bring custom to their shop, in this town as in others. He should,
however, shew by perfectly disinterested witnesses who, unless they came there
for the mere purpose of condemning their souls hereafter, by a falsehood, would
shew that just previously to the accident, and within a few feet of the spot
where the collision occurred Mr. Monti was seen walking slowly over Buckland
Bridge. Only two witnesses had alluded to the speed at which he was travelling,
and that was at a considerable distance this side of the bridge, so that after
he had escaped the clutches of the policeman, and had not been booked in the
manner he ought to have been, he appears to have come upon a locus poenrtentice,
as the lawyers might say. Mr. Monti would himself tell them that he had had an
accident, and sustained serious damage, but he would also tell them distinctly
that he saw the dog-curt coming down upon him, and halloed out to those in it,
but before they could check the speed they were into him. Now, if half the road
was not enough for them, then they ought to take the consequences for running
against defendant. He quoted Cotron v. Wood (Law Journal, vol. 29, 1860) to show
that where injury had not been proved through negligence the judge would not be
justified in leaving the matter to the jury — there must be a well-defined proof
of negligence; and further, the law had said, that where evidence was balanced,
the plaintiff should not recover. He had been anxious in dealing with this case,
because if the jury gave a verdict for £9, another might give a verdict lor
£900. The question of "tipsy or not tipsy" he trusted the jury would at once
discharge from their consideration — the witnesses had taken advantage of an
unfortunate injury and a moment of excitement, and when Mr. Monti was trembling,
and shivering and shaking about from the effects of the injury he had received,
they had attributed it to drunkenness, and most uncharitably so.
He called Mr. Monti (the defendant), who said:- I am a tradesman at Sandwich. At
the time the accident occurred, it wanted about seventeen minutes to nine
o’clock. I was alone at the time the cart turned over against the wall; my knee
and head were hurt very much; I cannot kneel at the present time, and had it not
been for my hat, I believe the blow would have killed me. My cart had a strong
iron rail round it, and this was broken on the left side. My wheel was about
4ft. from the wall, when the wheel of the dog-cart got under my axle.
Mr. Towne:- And when your wheel fell against the wall, that shoved the cart out
a bit, didn’t it?
Yes.
Mr. Minter:- Well! a very nicely told tale, Mr. Towne! You complain of my
"leading questions!"
Mr. Monti:- I called at the "Prince Albert" on my way home; Mr. Foster is a
friend of mine, and had paid me some money during the day. After that I went to
the "Angel" my friend induced me to go in; he paid for the ale. I drove off
afterwards at the rate of about four miles an hour, or five at the outside. I
can’t go faster if I want to, and I defy anybody to drive my horse and cart at
the furious rate they have been talking about.
I walked the horse across Buckland Bridge and called out when I saw Stone
coming, but he could not pull up quick enough to avoid the collision. When Stone
came to me afterwards, and I accused him of galloping down hill, he said "No, I
wasn't galloping; the horse stumbled, and I touched him up with the whip." My
cart was turned over, and some of my goods lost; some spoiled, and some stolen.
As soon as I saw the horse begin to kick, I laid down to its neck, and hearing
some man asked for a knife to cut the harness with, I begged he would not do so
as it was new harness. I was as sober then as I am now. I have driven for
five-and-twenty years, and never had an accident before.
Mr. Minter:- Do you mean to seriously swear you were sober?
I do.
Who is the friend you were with?
I do not know his name.
Let me try and help you — was it Tapsell?
Yes, that's it.
How many public-houses had you been into that day?
I go where my business calls me — I do not drink at every house I go into.
Do you remember passing the gaol after you left the "Prince Albert?"
Yes.
And nearly run against the lamp-post? and Tapsell catching at the reins?
Yes, that's right.
Is Tapsell here?
I have not asked him to come.
Didn't Terry say you were unfit to drive home?
He did, but I told him my head was better, and I should punish him if he
detained me.
Recalled by Mr. Towne:- I want him to explain why Tapsell interfered with the
reins?
Monti:- As I jumped up at the "Prince Albert," the reins became twisted, and Tapsell pulled them right; that was all.
Mr. John Foster, landlord of the "Prince Albert" inn, Biggin Street:- On the 3rd
Sept. Mr. Monti was at my house with a friend; they had a glass of beer each,
but Monti only drank about half of his.
Mr. Towne: From what you saw of him, did you think ho was, drunk or sober at the
time?
Well, certainly; he looked as if he had had a glass or so; but he was not to say
drunk.
Not too drunk to drive?
Well, you see, people in a house like ours can’t look at every person
particularly.
Mr. Minter:- But it seems that you did look at him particularly! Did you not say
to Tapsell, or to some person at the bar, "He’s pretty full" or "pretty tight"
or something of that sort?
Weil, I must admit that something of the kind was said. We all get a little that
wav, sometimes, you know! (laughter).
Mr. Towne:- He is subpoenaed as a competent witness to prove that Monti was as
steady as any man he ever saw in his life! (laughter). He told me so, at his
house this morning!
George Wells, coach man to Mr. Jennings, Buckland, was leaving his mistress's
house, about a quarter or twenty minutest to nine on the night of the accident,
and was passed by Monti about six rods the other aide of the bridge; he was
walking his horse. Monti started into a slow trot after he had passed, and he
looked after him, and did not lose sight of him until he was about four rods
from the spot where the collision occurred. He had seen the road measured, and
it is 23ft. 4in. wide.
Cross-examined by Mr. Minter:- The distance from the bridge to the place of the
accident is about twenty rods. When I got up to the place, half an hour after
the accident, I did not see anything the matter with Monti — he put his hand to
his head and complained of being hurt.
Mrs. Sarah Wells (the wife of the last witness) residing on the bridge,
corroborated her husband's evidence.
Benjamin Terry, carrier:- I saw Monti within four or five rods of the accident;
he was driving at about four or five miles an hour, and was on his right side of
the road. I am sure of that. His cart is a heavy cumbersome thing, and I do not
think his horse capable of going faster. The cart lay upon its "float" and close
to the wall. Monti fell against the wall, and did not recover himself for more
than a quarter of an hour.
By His Honour:- I did not tee him fall; I took his cart into my yard.
Was he the worse for liquor?
No he was not.
Mr. Minter:- Is that what you mean to swear to?
Yes, it is.
And that he didn’t come to his senses for more than fifteen minutes?
About that.
Then if he says he sat upon the horse’s head, or knelt upon it, is it untrue?
I never noticed him.
Did you remove the cart?
Oh! there was a rare lot of us there.
His Honour:- The wheels were not broken?
No.
You had a conversation with some people us to the propriety of letting Monti go
home, did you not?
Yes.
Did you say he was too drunk to drive?
No, I did not.
Mr. Mintcr:- On your oath, did yon not tell some one Monti was too drunk to go
home?
Did you not say so to Birt, or something to that effect?
Well, I did not, then. I did not speak to Mr. Birt at all.
Edward Stephens, a publican, saw Monti at his house, about 10.15. after the cart
had been lifted, and considered he was sober; he stopped about three minutes.
Mr. Minter:- Then you didn’t have much opportunity to observe him?
Oh yes I had though. He paid for a glass of beer, and drank about half of it.
J. Scarlett, a wheelwright, had measured the height of the wheel at 4ft- 6in.;
the width of the cart was 5ft. It would take 10ft. 6in. to set the cart right.
His Honour:- If some strong men lifted the cart by the iron bar, would they
break it?
No.
---- Bushell, a blacksmith from Sandwich, proved that he mended a broken rail
round the cart — particularly the left side.
Mr. Minter addressed the jury in reply, fully certain they must be tired of the
long evidence and the long speeches; but it Mr. Towne’s speech was to be taken
as evidence, there was no further difficulty, and they might as well at once
return their verdict. He disagreed entirely with his learned friend as to the
facts of drunkenness being unimportant evidence in this question, and thought
the jury would be of his opinion that it was most material. Could they for a
moment doubt that Monti was drunk, when even his own witness (Mr. Foster), who
was called to prove the contrary, was obliged to admit it in his
cross-examination.
Mr. Towne:- I beg your pardon, only slightly intoxicated.
Mr. Minter:- Then if defendant's witnesses say "a little" we may believe our own
witnesses that he was very drunk! The learned advocate proceeded to point out
the uselessness of the evidence given by Bushell, Scarlett, and Terry, remarking
upon the careless and indifferent manner in which the hither had given his
answers and observed everything at the time of the collision. The whole of the
evidence given by the witnesses called by the defendant did not affect the case,
and Mr. Towne had endeavoured to divert the minds of the jury by appealing to
their sympathies instead of to the facts at issue, and with which alone it was
their duty to deal, according to the evidence. Alluding to the manner in which
Mr. Towne had abused the witnesses for the prosecution by imputing to them
improper motives, he submitted that the case, so far as defendant was concerned,
had not been answered satisfactorily, and that plaintiff was entitled to their
verdict.
His Honour summed up at great length, and Mr. Towne having reminded the court
that plaintiff and his party had driven from Shepherdswell to Buckland in about
half-an-hour, the jury retired, and in about a quarter of an hour returned a
verdict for the plaintiff.
His Honour ordered costs on the lowest scale.
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Out dated info?)
