NO NEGLIGENCE.

Auckland Star, Volume LIX, Issue 270, 14 November 1928, Page 11

NO NEGLIGENCE.

ARGYLE STREET ACCIDENT CLAIM. r AMLLY'S CASE FAILS. WITHDRAWN FROM JURY.

Failure to prove negligence on the part ol the Railway Department in connection with the Argyle Street level crossing tragedy in which Mrs. Ethel Brittain was killed on December 24 last, was responsible for judgment being entered against George Samuel Brittain, widower, and his two children, in the Supreme Court yesterday, in respect of a claim tor compensation under the Deaths by Accident Act. G. S. Brittain, who was represented by Mr. Singer and Mr. H. G. Brodie, sued, on behalf of himself and his children for £2000, and the younger c George, a boy of three, sought ±.750 for personal injuries. A claim of £50 was also made for hospital expenses. Mr. Meredith, for the Department, submitted the case should be withdrawn fi om the jury because the plaintiffs had brought no evidence of negligence. Sympathy with the husband and family or the tragic circumstances of the death, must not be allowed to influence the Court. The only inference could be that the unfortunate woman had walked on to the line without looking in the direction in which the train was approaching. P»ere Was proof that the whistle had been sounded, and of contributary negligence on the part of the deceased. Singer suggested the inference that, because of the lack of warning signals, which should have been provided by the Department, Mrs. Brittain had reached the line before becoming aware of the danger, and was then unable to avoid being struck by the oncoming train. The Department, he submitted, was negligent in not providing sufficient warning signals. Mr. Justice Blair said no evidence of negligence had been produced in Court, and the only conclusion open was that Mrs. Brittain would have seen the approaching train if she had looked that way It was travelling at an ordinary speed, sounded its whistle, and was slowing down at the approach to Morningside station. No one could mistake the locality for anything else than a railway crossing and, failing to look along the line took a risk. The crossing had been shown to be dangerous, but that applied to all crossings. His Honor said in the absence of proof of negligence on the part of the railway Department, he must withdraw the case from the jury. The jury was then discharged, and judgment was entered for the Crown, with costs.