CIVIL SITTINGS.

Press, Volume LXIII, Issue 12978, 4 December 1907, Page 8

CIVIL SITTINGS.

The civil sittings of tho Supreme Court were continued yesterday before Mr Justice Cluapm.in. RAILWAY CROSSING ACCIDENT. Margaret Earl claimed £500 from j the Nwv Zealand Government for iv- : juries sustained by reason of beini; jthroun out of a trap which, it was 1 alleged, was overturned at a defective ; railway crossing at Waikari. The i accident occurred on December 23rd last. William Earl, husband of Margaret Earl, claimed £200 to cover the expense he had been put to in consequenco of his wife's illness, which fol- , lowed upon the accident. . _Mx Russell appeared for the claimante, and Mr Stringer, X.0., for the , Crown. William Earl, farmer, Waikari, gave evidence tltat on December 23id last year he approached the rails slowlj and nearly square on, when a wheel skidded on a rail, and the gig he was driving gave a lurch and overturned. ' Ho, his wife, and a friend named Mrs j Scott were thrown out. and Mrs i Karl was injured. Before the acoi- ' dent his wife was a healthy woman. but after she suffered very bad health, and ho (had been put to considerable expense in consequence. An operation had to be performed, and his wife was still unable to do anything in the I nature of heavy work. j Dr. Baldwin, of Waikari, stated '. that before the accident Mrs Earl was a healthy woman. He attended her after tho accident, and found that she ■» as suffering from an intestinal trouble, which necessitated an operation. The accident, ho thought, would have caused the trouble. It was doubtful whether Mrs Earl would ever be as strong again as she. was before the accident. Dr. Fenwiok, of Christchurch, also gave evidonco relating to the condition of Mrs Earl since the accident. Evidence was also given by MaTgarot Earl amd several others. Hunter Macandrew, District Railway Engineer, in giving evidence tor the defence, said that the road at Weikari crossed the railway β-t an awkward angle. Crossings generally required, frrequent attention, for the train and veihicuLar traffic caused the rails to lose their alignment and level, Mid they had. from time to time to be trued, up. Repairs were dome when they were required, end there was no waiting for c particular period in which to effect the repairs. The outside 'bail'last was always brought up to tue\ level of the rane. Ernest George Honeybone, actinggamiger ki charge of tho Waiikari seotw>n, said tbait tiho rails wore lifted by him and his mum in December last. Tho work was carried out in the usual way. When the jolb was finished, tho baitast was slightly above the level of the rails and die crossing was as sate oe it could be made. Further lengthy evidence- was given by railway men eind others. His Honour, in giving judgment, said that the elements tor consideration were row and simple. So far as the legal liability was concerned, that hod been laiid down by the Court of Appeal in the case of Handrine v. The ivimg, eind it was that wihere a- railway constructed amd mJiintanfoied by tihe Governmenit of tine colony crossed, a public road or street on the level, the Government was bound to keep the crossing irni a condition reasonably safe for traffic on the road or street. He accepted the evidence of the railway men the* they had done their best in the oiroumstances to maike the crossing safe, but the gravel iwas excessively dry, amd therefore liable to be scraped α-way. 1-n, those circumstances, though no accident was foreseen, iib would have been more reasonable if the crossing had boon- attended to on the Sunday. It was not easy to say that any particular pian was guilty of megligenoe, but looking ait tlhe standard of duty imposed upon the Department, he thought tJiat under the oircumstaaioes the precau-l trions taken Ito beep the orossiiig' in a proper condition throughout tho Sunday, tho day of tiho accident, were not sufficient. Tlie evidence clearly showed tlhait the duty Jaiid down in the caee ho had quoted hind not been fully observed in> connection with tlio crossing, a.nd, that being so, lie thought the plaintiffs were ombMed to damages. AH tlho evidence for tho defence might bo accepted, but it was only negative evidence, and it did not raise any suggestion tihait the plaintiff had not acted properly in taking the crossing in the way ho had been accustomed to take it. He thought the evidence on behalf of tJie plaintiff was unmistakably clear, and that no 'had made out 'bris caao. Tho.t being so, ho must hold that plaintiffs were- entitled to recover. As to the damages, it was always somewhat difficult in euch icaaee to assess damages without tho assistamee of a. jury, but ho thought that Mr Earl had proved pecuniary damage ito tiho amount of £120. and thinit Mrs Eairfl was entWed to £100 compensation. That might not be full compensation to her, but looking at the impossibility of accurately measuring compensa.tion for weirvous suffering, he thought tlhat was a fair amount. (PREBB ASSOCIATION TELEGRAMS.) AUCKLAND, December 3. His Honour Mr Justice Denni&ton granted the following decrees nisi in divorce cases:—Rose H. HorsfaH v James Horsfall, for misconduct and cruelty; Albert Riciketts v Emma Ricketts, for misconduct -with Thomas K. Sheldon, co-respondent; Emily Meyer r John Meyer, for desertion; Alfred Rhodes v Esther Rhodes, for misconduct with Arthur L. co-re-spondent; Fanny Emily Gooch v Charles Augustus Goodh, for desertion ; Sydney Herbert Godfrey v Margaret H. Godfrey, for misconduct with Henry Mills, co-respondent. WELLINGTON, December 3. Three youths, Percy Jones, William Percival Hughes, and Robert James Clearkin were all committed for trial yesterday for breaking and entering, and a girl named Olsen was committed for trial for attempted arson, by setting fire to the West Give Hotel. DUNEDIN, December 3. Decrees nisi were to-day granted in tho following divorce cases:—McCulloch v MoCulloch, husband's petition, on ground of non-oompliance with order for restitution of conjugal righte; Kelly v Kelly, wife's petition. Both orders are to be made absolute in three months' time. Both cases were undefended.