SUPREME COURT.

Sun (Christchurch), Volume I, Issue 92, 25 May 1914, Page 10

SUPREME COURT.

CIVIL SESSION. COMMENCED TO DAY. , • THE LIST FIXED. The. civil session of the Supreme Court commenced this morning before his Honour Mr .Justice Denniston. As a preliminary' liis Honour .sat in chambers to settle the list of cases for trial. He said that he had originally intended going to Timaru on Monday next, after that proceding to the West Coast. On . tfuue 27 he would Slave to be in Wellington for the, sitting of the Court of Appeal. He had, however, arranged , / 'with Mr Justice Sim to take the Tim.aru'and West Coast sittings, while lie himself would proceed to Invercargill noxt Saturday. He could not say how much'time .'there would be between the • Invercargill ,and Wellington sittings, / -but he did not presume that there would ■be a great deal. Mr Justice Sim would therefore take the cases that his Honour himself would have taken, on his rev , turn from the West Coast. .These include the special jury cases. ;... "His Honou* then went through the list''of cases for trial, as follows: Wolfe, Sayer, aud Heller (Mr Weston) v. Arlow and New Zealand Suppliers ' Exchange (Mr t jlaymond, K.C.) This case will be heard ..before a special Jury,of four, on a to be arranged. The case will be taken by. Mr Justice, . tSiui. . v The case of Andrew" Fairbairn (Mr Wright) v. "Otago Daily Times" (Mr M'Gregor), £100() f damages, will also ■be taken by Mr Justice Sim. This case i will probably be, tried before, a special . /jury. • It is expected that the case will take some days in trial. B. -B. ' Holdsworth (Mr Wright) v. R. Hej>worth and others (Messrs Weston, and Dougall), £IOOO damages, -application for a special jury liaa been iiied and not objected to. • The cases, of Thomas Gough (Mr • Hunter) v. the King .(Mr Wright), compensation £4000; Minister of Customs (Mr Wright) v.* Barlow Bros. (Mr Ray- . mond, K.C.), £604 6/6 and £7llO 16/9, ■ were stated .to be questions of law, the dfacts being .undispiited; • They will be .tried at the ,earliest, opportunity.

, The ease of Mabel Scown and another I (Mr v. J. D. Mathieson (Mr - ' M'Gregor), £2023 2/6, is to be taken xa? 'nearly as possible tothe case of UFairbairn y. *J Gtago \Daily ;•Times; - '. : Ii? the case of T.Maude (Mr'Dougall) -iC J'/W. Wilson,; £340 10/.-, counsel for .•"tfije. plaintiff said tliat judgment- would' go by default. * The eases of Charles Withell ' (Mr JJitchie) v.Frank Halley and others (Mr Hunt), £250; Riecarton Timber. Go.

Ltd. (Mr Dougall) v. A. Kingsford, , £590 10]/-; F. E, Banks (Mr Hill) V. the. King (Mr Wright), compensation £2OOO, were stated to be ready for immediate?trial. -

• * The. case, of A. Parso,ns and another ".( Mr, M- r l)ouga]l) v.- P. .A, Anderson and (Mr Welding, K.C.), ;will not ■ come oh for trial.,' The whole question --is , one of comjnission,. which can be •settled by the Judge. • • 'E. Hughes and others (Mr Weston) v. George •' O 'Malley and bthers (Mr ■■.accounts,, was started te .be a purely Chamber matter. The action is , rone .asking .executors to make iimnedi- . ate distribution. : ■ "•■

LEVEL CROSSING- FATALITY.

, . . CLAIM fob damages. ■ I, „ .The > first „ called was that of . Prances - EHzabethßanks; V. tlie'. & for £2OOO compilation,. Mi; Si , G/Raymond, with him Mr I 1: K/Hitnt,

appeared for the suppliant. Mr F. A.. Wright represented the "Crown. > In the-course of liis -ppening r "Mr Raymond said that the claim waaymade by Mrs Banks 'for damages „f or the death of iher husband through a railway- ?a«cident. at Rangiora -The)suppK&ni was the widoW'and execu- < tor' of the late -'William Alexander Banks, "a carter, of - Rangiora. The . claim was made on the widow and lier three young children.-1 Coimsel had also just been informed that the suppliant could not appear, as she was • expecting to be again - confined. He ...therefore made application- that the claim be entered on behalf of : this child en ventre sa m&re. His Honour: That is a matter which can be adjusted. Continuing, counsel said that the de{ceased, • who was 31 years of age, * had been engaged in business in Rangi•ora. On the day of the ~ accident he was driving east along High "Street towards the railway crossing, with a fourhorsed lorry. There were near the ■ crossing several high buildings, and also a hedge, which blocked the, view of the railway line. Since 1884 it had been the practice of the Railway De- _ partment to have a crossing-keeper resident on the east side of the line. This-- - keeper came out and waved a warning flag'on the approach of a train. On the morning of the accident, however, it was alleged that the crossing-keeper had not given the accustomed warning. The /result was that the deceased drove over • the crossing) and just as his horses were clear of the v rails .the express l from : Christcliurch came xip at''ai-great- speed ajld struck the lorry, carrying it up 1 ta the cattl©-stop. ' Banks was killed. > There was also a semaphore on the v line, which was used to 'signal, the traiiis. -On the morning the semaphore was not lowered until the train was almost at the .crossing. It was contended on behalf 6i the?. suppliant that if the ordinary precautions" had been taken the accident could not : haye occurred. THE DEFENCE. For the defence, counsel contended* three contentions had been filed. The first was a denial of negligence on . "behalf of the Crown. This was really tie vital question, all other matters of

detail having been disposed of. The second clause in.;tlie statement of defence alleged that if there was any negligence in failing to give proper warning of the approach of the train, such negligence -was not an approximate or effective cause 'of Banks's death, which was dtie to the deceased's own negligence. This negligence consisted in his unlawful ly attempting to drive a vehicle over a crossing while a' train was approaching within a half a mile; in driving over the crossing at more than a walking pace; and in his failing to comply with the direction, "Stop; look out for the , engine!" These were questions more for discussion with his Honour than for the decision of the jury. The third contention of the Crown was that the deceased had failed to take advantage of. the warning given him. This wasone of the points at issue. THE ACCIDENT. Charles Hastings, surveyor, of Christchurch, produced plans of the crossing, showing the alleged obscuring of the line'by the buildings in High Street. He said that a train could not be seen from the street, along which? the/deceased had come. Mrs Dorcas Dawson, of Sydenham, said -that she was in Rangiora on the morning.of the accident. She was proceeding along High Street when she met Banks driving his wagon and ;te'am at a fast trot towards the crossing. She herself had crossed the line, .where she did not see either the cross-Ing-Tceeper (Humphries) or his wife. A seve u-y ear-old gon of the keeper was ■there, holding in his hand a flag-stick. She had often seen the lad before at the .crossing with a flag. He was usually riding a small tricycle on?the footpath. When .the" child was out with the flag, of liis parents appeared, as was .the case this morning. Pour or five "minutes after she passed the crossing she turned round, and saw the deceased -on the crossing. She saw him throw liis 'hands up, and the engine crashed into the wagon. She did not go back. Neither before nor after the accident xlid she see Humphries Or his wife at she crossing. ,

To Mr Wright: The'boy was sitting on the' fence with a regilTation railway flag in his hands. She laolced back after passing. Banks' because she knew that the express was aboiit due. She liad heard subsequently that' Mrs Hum : phries and the boy had been injured as a result of the collision. She saw a' man r named David CrichtOn standing near the crossing; Banks, who was accustomed to passing* the crossing, was. going at his usual pace, and the wagon was making, no more than the . usual noise. v Edmund Little, a. youth, said that he drove a brick cart over the at about 9.45 a.m.; on the day of the accident. 'He saw the boy Humphries out on the footpath' outside the gate, and spoke to liiml After'he had cleaired the line, he heard the train whistle, and looked back. He saw Banks driving his team on to Ihe crossing, aiid just as he got his wagon on to'the line, the train . crashed . . into him.- There was_ a very short space of time—perhajjs' about a quarter of a minute---betw.een the could' not have been far from the cros&T when it whistled. Just before the collision took place he saw Mrs Humphries rush out.. v ?'• To Mr Wright: The semaphore was tip 'f»sse&.the crossing. He t/Tichtoxi. driving a dr|,ylieai the crossing. Mrs 1 Humphries bustled out justfa couple'of seconds before the crash camfe. The boy was then on the road. w;ith the fla g- • J ■„ GUARDING CROSSING.

When the »' Court, resumed/" After luncheon, James M'Rae, labourer, #f lißangiora, who was-a witness of the; accident, said that, he had more thaii boce seen tiie boy. Humphries riding

about on his tricycle with the flag, lioth when trains were approaching, and when they were. not. .H$ had himself ficted as relieving crossing-keeper for some weeks at Rangiora last year, and v he was satisfied that the -lad,- who might be from five to eight -years of age,' was not: a competent pei'son ever to be in charge of the flag. : William, George Row 6, carpenter, said that hfe had been living in .or near Rangiora for about 00 - years. The Railway Department had had a cross-ing-keeper at High Street for some ,40 years. About fifteen trains passed the crossing every day. Up till September of last year the duty of keeping the crossing had devolved' upon Mrs .Humphries, who lived in the railway | cottage there. On several occasions he Iliad seen the crossing kept by her little Voy. On such occasions, Mrs Humphries would run out just as the train (janie up'. This particularly happened on the . day of the accident. He was riding up to the crossing on his bicycle, and saw the boy near the fence, with [fa flag in his hand, which he was not \vaving. Hearing the train lie jumped off, and just as it came up Mrs Humphries dashed out. It was his impression that she was more anxious to protect 'the child than to -guard the crossing. He had seen trains pass when the boy alone was left on guard. In his opinion the crossing was one of the most dangerous in New Zealand. In answer to his Honour, the witness said that he had no idea that the boywas signalling the train. He never waved the flag.> THE DECEASED'S MEANS.

[ Mrs Jessie Banks, mother' of the deceased, said that her son was 31 years of age when he was killed. Her daugh-ter-in-law was 30 years of age. They had three daughters, aged respectively ■eight, four, and two years. Mrs Banks, junr., was daily expeeti.ng confinement. When her son was killed, lie lieft practically not a penny. ~ His Honour: Is that material? Mr Raymond: I submit it is, your Honour. ' r His Honour: But surely theiossjis-tli.e same, no matter what the deceased's property might amount to. Suppose/lie had £20,000. , Surely the loss would be the same. If a clerk earning £5, ami owned a house, the possession of

that house would not. effect the loss of his income sustained by the widow. Mr Raymond quoted an authority iii support of his contention that lie was entitled to call evidence as to the actual monetary loss of the widow. His Honour said that the deceased's income could be readily ascertained from his books. In answer to further questions, the witness said that her son had been in comfortable circumstances, and was doing well in his business as a carrier. His Honour: The position is that the breadwinner was. killed. The question is how much bread could he win 1 # Daniel Banks, farmer, and deceased's father, said that his son was doing excellently, and was earning about £7 a week. (Proceeding).

[ AUCKLAND SESSIONS. POSTAL THEFTS. Press Association. AUCKLAND, May 25. At the Supreme Court N,o,rman Trexnain, a postal cadet at Auckland, charged with the theft of a postal packet containing money, and \Arthur Gordon Anderson, for a similar offence at Kawakawa, were each sentenced to twelve months' reformative treatment. SITTING- AT WANGANTJI. Prrss Association. WANGANUI, May 25. The Supreme Court sessions opened to-day before Judge Edwards, who referred to the lengthy list of cases and the seriousness of the alleged offences. The Grand Jury returned true bills against William Chapman, alleged false pretences, and John M'Gregor, alleged indecent assault. The charge against William Chapman, is now proceeding.