John Paterson must have finished Friday 22nd May 1863 in a euphoric mood. The Town Council had accepted his proposal to use the unwanted obelisk as a memorial to the betrothal of the Prince of Wales and Alexandria of Denmark. So far, Paterson had experienced improbable good luck, much like the Midas Touch. During that day’s festivities, Paterson had been royally feted with cheers of acclamation.
On the other hand, the next day, Saturday 23rd, would be a stark contrast to this, culminating in a legal confrontation with the Port Elizabeth Town Council. It was marred by an accident which would cost John Paterson the best part of £600, a King’s Ransom in those days.
Main picture: John Paterson
Short cut to legal action
John Paterson owned a piece of unenclosed waste land in Port Elizabeth, surrounded by roads on three sides; a public street, a public carriage-way and a public footpath which was used as a short-cut to the theatre immediately behind the waste land. This piece of land was almost certainly the site later occupied by the Publicity Association and other Municipal offices.
Paterson decided to build a new store on the land over which, for many years, the public had walked at their pleasure as it was a convenient short-cut to the theatre. Even when Paterson had stacked timber and corrugated iron there, the public continued to walk across it. The building of the new store necessitated the digging of an excavation which was some nine feet deep at the end nearest the theatre. Where Paterson was remiss was in not warning trespassers of this danger nor did he fence off the excavation.
It was on the fateful night of Saturday 23rd May 1853 that a Mr. Wright and his friend, Mr Bristow, went to the theatre where they spent a pleasant evening. Undoubtedly, they continued to toast the Prince’s marriage just as any loyal Royal subject should. At least that was the probable excuse which these two worthy gentlemen would impart to their scornful wives after a session of celebrating. Relaxed and refreshed in body and mind, they exited the building into a dark and rainy night.
Bristow was a stranger to the town but anxious to avoid the rain. In a mad dash, throwing caution to the wind, he headed for his hotel by way of the footpath. Unaware of the impediment en route, he blundered into the working area and plunged into the excavation.
Behind him, but following more cautiously, Mr Wright proceeded after his friend vanishing into the gloom. Understandably, on hearing his companion’s deep groans, he threw caution to the wind and sped towards the sound. In the Stygian darkness, he ran blindly on until, he too, promptly fell into the excavation. Mr Wright was fortunately in having a prostrate Mr Bristow as a soft landing. Despite this cushion, Mr Wright suffered more severe injuries than Bristow.
The basis of the legal action was that, as there were no warning signs or barricades to prevent this injury, both the men could sue for damages against Paterson. The case, Wright & Bristow vs Paterson was heard on 6th October 1863 in Port Elizabeth. This was Paterson’s first brush with the Law when, apart from possessing the Midas Touch, Paterson was also rightly required as the Teflon man. In the original case, judgement was found for the plaintiffs, but in Paterson’s absence overseas, Paterson’s Council immediately appealed.
When the case was heard in the Supreme Court during 1864, it transpired that the new Port Elizabeth Municipal Regulations, were such that it had been the defendant’s duty to fence in his excavation. In court it was revealed that shortly before the accident, a Municipal Officer had served notice on Paterson to fence in the excavation in accordance with Municipal Regulations and to remove the building materials from White’s Road to Market Square.
In compliance with this notice, Paterson had in fact enclosed the side near the public roadway but not the side near the public footpath. Paterson held that he had thus carried out the regulations as required and that the footpath was not a recognised one. Notwithstanding this, the Counsel for the Plaintiffs argued that because both Paterson and the previous owners of the land had, in the past, allowed people to walk across it, then they had allowed it to be assumed that the footpath was a highway.
Judge Hodges therefore awarded damages to Mr Wright of £300 and £100 to Mr Bristow with costs. Judge Cloete concurred but Judge Bell dissented. In his opinion, he pointed out that when a plan of the land was first submitted to the Court, there had been no footpath marked. When a second plan was later produced, three dotted lines had been added, with no indication of what they were meant to represent.
Of course these judgements were heard when Paterson was no longer in Port Elizabeth as, in August 1863, he had sailed aboard the Cambrian to Cape Town but his ultimate destination was England.
One Titan at a Time by Pamela FFolliott & E.L.H. Croft (1960, Howard Timmins, Cape Town)
Port Elizabeth: A Social Chronicle to the end of 1945 by Margaret Harradine (2004, Historical Society of Port Elizabeth, Port Elizabeth)