FLYING STONE

Evening Post, Volume CXV, Issue 121, 25 May 1933, Page 12

FLYING STONE

SHOT UP BY TIRE

COUNCIL HELD LIABLE

DAMAGE TO WJNDOW

Holding that in view of the present state of traffic on hard-surfaced roads the City Corporation's practice of filling in street excavations and leaving them unsealed is unsafe, Sir. T. B. McNeil, S.M., gavo judgment at the Magistrate's Court today in favour of Charles Edward Bell, who claimed £21 17s 5d from the Corporation. Bell, who had a baker's shop at the corner of Mem and Biddiford Streets, took proceedings against the Corporation as a result of one of the windows of his shop being broken early in October last. Both streets were surfaced with bitumen, and the Corporation had laid a drain along Biddiford Street and projecting into Mem Street. When the drain was refilled it was finished off with a binding of metal. . Before the excavation was made no loose stones were lying on the street in the vicinity of the shop. Bell alleged that one of the stones from the drain had been thrown up by the tire of a passing motor-car and had smashed his window. It was submitted by the defence that there was no evidence that the window was broken by : stone from the drain. STONES DISLODGED. Mr. McNeil said that he found it established that after the trench was filled in, and the top covered with metal binding, the traffic passing dislodged stones from the filling. These stones were lying about the bitumened surface in Biddiford Street in front of the plaintiff's shop. He found also that the tire of a passing motor vehicle striking a stone lying on a hard surface such as bitumen often caused the stone to "fly" with considerable force. The Magistrate said he had come to the conclusion that it was such a dislodged stone that had caused the damage to the plaintiff's window." The question then was as to whether the Corporation was liable for the damage; It was contended by the defendant that in filling in the trench as it did it was following the standard-practice of itself and many others. In the past this practice had proved satisfactory, and therefore it was not liable. But at the same time its road engineer admitted that in following the practice tho defendant recognised that stones were very liable to be thrown from the filling on to the adjacent road from where, on being struck by the tires of passing motor vehicles, they might be. propelled through the air. The practice of some other authorities in opening up a road was to seal the disturbed surface as soon as the work was finished. ''Tho weight of evidence in my opinion," said Mr. McNeil, "establishes the fact that defendant's practice, in view of present state of traffic on hardsurfaced roads, is not a safe one, and that this is recognised by the defendant and engineers familiar with road work. The evidence also shows that it is quite feasible to topdress them so that the filling will not be disturbed by traffic passing over it. "As the defendant did not. do the work so as to prevent stones being dislodged, I think it was negligent and is liable. ENGLISH CASE. "By a curious coincidence," continued Mr. McNeil, "in. The Justices of the Peace arid Local Government Beview of February 18, ,1933, which arrived after the hearing of this case, there is a 'short report of a similar claim to this heard in the County Court at Leeds on February 6 last. There a claim was made against the Leeds Corporation for £ 7 11s 6& as damages for negligence in resurfacing a road whereby tho plaintiff's shop window had been broken by a pebble. .'. . Ilia Honour Judge Woodcock, K.C., in giving judgment for the plaintiff, made the observation that the way in which the stones were flung about showed that they were not rolled in tightly." Mr. C; A. L. Treadwell appeared for the plaintiff, and Mr. J. Lockie,. assistant city solicitor, for the City Corpora*tion. '