WHAT WAS CAUSE ?

Auckland Star, Volume LXVII, Issue 102, 1 May 1936, Page 8

WHAT WAS CAUSE ?

TIMBER MILL FIRE

CLAIM AGAINST RAILWAYS

FINAL KAY OF HEARING.

Tlio hearing of the petition for £15.070 damages, brought by the Alorningside Timber Company, Limited, against the Xew Zealand Railways, in eonsef|uenee of a fire on December 1, 1034, in the company's premises, -which adjoin the railway, will conclude this afternoon. The petition is being heard before Mr. Justice Callan and a special jury. At the conclusion of the evidence this morning a number of specific issues were put to the jury. These the jury will consider after addresses by counsel and judge have concluded this afternoon. Messrs. G. I'. Finlay, J. Stanton and IT. Alackav are appearing for the company and' Mr. H. F. O'Leary, K.C., of Wellington, and Mr. V. X. Hubble, for the Crown. Issues for Jury. The following issues were put to the jury:— (1) Was the fire which destroyed the property of the suppliant company on December 1, 1934, caused by the emission of material from Government rail- i way engine AOOI ?

(2) If the answer to the first question bo in the affirmative, was the emission of the material caused by negligence of the Railways Department in respect of: (a) The use in the engine of the type of spark arrester then used therein? (b) The construction, maintenance or condition of the spark arrester or ashpan of the engine? (c) The manner of driving or firing the engine as it approached or passed the suppliant company's property? (d) The use in the engine on December 1, 1934, of brown coal ?

(3) Was destruction of the suppliant company's property contributed to by negligence of the suppliant company or its servants in allowing dry grass or rubbish in a highly inflammable condition to remain on that portion of the property occupied by it and situated between its mill premises and the railway line, or by failing to provide a fire break thereon ?

(4) If the answer to the last question be in the affirmative, could the Railways Department bv the exercise of ordinary care and diligence have avoided the mischief which happened, notwithstanding such negligence of suppliant company? Rights of Others. Mr. O'Leary, in opening his address, said he thought he was entitled to say that whatever the result of the case, the jury would be convinced that the Department had met fully and adequately the sweeping allegations made at the commencement of the hearing that the Department, in effect, ran its service without regard to the rights of others. The jury had been "shown that the Department from time to time did everything it could to meet the conditions in the country through which the engines in passing would create a danger by the emission of sparks. The Department had met, and would continue to nn-et, the dangers which were inseparably from railways.

Discussing negligence, on which the claim was based, Mr. O'Leary defined negligence as failure to do what a reasonable person would do. If there was negligence he emphasised that it had to be proved that such negligence was the cause of the fire.

Dealing with the question whether a spark from the train caused the fire, Mr. O'Leary said that an extremely short time, 12 to 20 seconds, elapsed between the passing of the train and its reaching the bridge, by which time the fire was alleged to have reached extensive proportions. The extent of the outbreak, contended counsel, showed, that the fire must have been the result of some incipient cause that arose earlier. This might have been the passing of ail earlier train or the dropping of a- cigarette butt. The use of a grid spark arrester on engine AfiOl on December 1 was not unreasonable. It was selfevident that, the Department could not equip all of its units with the later type simultaneously. Generally the condition of engine AfiOl could not have been the same in April, 103(5 (when the expert from Australia examined it on behalf of the company) as it was on the day of the lire. (Proceeding.)