TRAIN AND CAR

Evening Post, Volume CVIII, Issue 148, 19 December 1929, Page 11

TRAIN AND CAR

RAILWAY DEPARTMENT. LIABLE

Reserved judgment was given by Mr. B. Page, S.M., in the Magistrate's Court to-day in the case in. which Arthur John; Curtis, Arthur Southwell Curtis, and |Una Curtis petitioned the Crown for compensation as a result of a, collision between a car driven, by Arthur Southwell Curtis and an unlighted train which was moving: slowly across the siding on the.Hutt road from the Gear Meat Company's premises. ■

After dealing with the facts of the ease, the Magistrate said that the first question was whether negligence on the part of the Railway Department had been established. "I am satisfied/ he said, "that as the car approached there was no adequate light protecting the train on the northern side. Under present-day conditions with fast traffic moving over the roads at almost any hour of the night, I think that before thus moving an uulighted train across this siding, relatively seldom used, which crosses a main highway in a closely settled locality near a city, steps should have been taken to warn approaching traffic. . . . In, my opinion negligence on the part of the Bailway Department has been established."

"The second question is whether there was contributory negligence on the part of the driver bf the motor-car," continued Mr. Page. . "It is difficult with good headlights to. pick up on the black wet bitumen a uniformly dark object like a railway engine, and; van, and when the driver of the car did see it the only course open to him was to swing off to the right in the. manner that he did. He was, I think, going at a_ reasonable speed, and in my opinion his failure to observe the obstruction earlier does not .establish negligence on his part."

Dealing with the question whether the suppliants' position was affected by their failure to comply-with section 58 of the Government Bailways Act, 1926, which provided that when .within one hundred yards of the crossing it was necessary for a driver to slow down to ten miles an hour and then stop before coming into contact with the railway line, the Magistrate said that in order that this section should operate as a bar to the right to recover damages against the Crown the failure to comply with it must; have been wilful or negligent, and not the outcome of mistake, accident or other justifying circumstances. The driver of the car knew that a pair of rails crossed the road at this point, but was unaware that it was a "railway crossing." He'believed that it was a private siding of. the Gear Meat Company, and that the gates were locked up at night. "I apprehend that this is the belief of the great majority of those who use this highway," said the Magistrate. Continuing, Mr. Page said that he did not think the failure to comply with the section was wilful or negligent, and that the section did not bar the right of the suppliants to recover. He mentioned that this section had since been repealed. Damages amounting to £73 16s were awarded the suppliants. '

At the hearing Mr. AY. E. Leicester appeared for the suppliants, Mr. C. H. Taylor-(Crown Solicitor) for the Crown, and Mr. D. A. Aitken for the Railway Department.