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TRAMCARS v. PALACE CARS., Issue 8005, 6 September 1889
TRAMCARS v. PALACE CARS.
After we went to press yesterday the case of Williams v. Wheeler was continued : John Wheeler (defendant) said that, as to the stoppage in King street, he drove off as soon as his conductor sounded the whistle. There was no unnecessary delay. As to the George street affair, it was a pretty close thing, but there was no danger. He passed the tram on his right side. Henry Sharper, conductor of the bus, said that he whistled to stop becaube there were three passengers waiting. When the car came up, one lady had her foot on the itep, and witness could not whistle the driver to go on until she was on the bus. The delay was caused by two ladies, who were arguing the point as to whether they should go in the bus or in the car. He blew the whistle, and the bus started at the earliest possible moment—before the passengers were fairly seated, in fact, for one gentleman had only just got on to the platform. When they got into King street there was a cart standing there with" out a light, and this compelled the driver of the bus to cross the car to get to its right side. This was all the evidence. His Worship having intimated that he wished to hear Mr Sim on the law pointc, Mr Sim submitted that if the Order-in-Council was not gazetted at once, that did not affect its validity.: • His Worship had the Order before him. It was in evidence that the company had been using it for years, and if it were desired to be shown that this Order was not a title, the onus ! of proving that lay upon the other side. Aa the construction of Ecc'.ian 51, he (Mr Sim) submitted that flopping to pick up passengers was not a lawful excuse. If it would be an answer to a charge of this kind to say that the bus stopped for the purpose of picking up passengers, they would be justified in stopping the tram for no end of time. If the bus people wanted to pick up passengers they must stop in such a way as not to stop the tram. . His Worship: Then you say that the rights of the public are abridged. Mr Sim replied that the important point was that the cars could not get out of the way, and it was the duty of other vehicles to give way. Mis Worship: Where do you get that from? Mr Sim submitted that that was the result of section 33. The company had the right to the use of the tram-lines, and they had a right not to be obbtructsd. The effect of the Order was to give them the exclusive right to the use of the rails. His Worship did not think so; it was a right only against carriages with flanged wheels to fit the lines. Mr Sim said that any other carriage on the lines was bound not to interfere with the tramcars. Section 97 gave them that right. If excuses of this kind were held to be lawful there would be no end to them, and it would be simply impossible for the Tram Company to make a proper use of the rails. His Worship: No doubt it would be a great advantage to them that all traffic should keep out of their way. Mr Sim said that all they asked was that they should not be obstructed, and he submitted that the common law rights of persons using the road were abridged by statute.. The public, in consideration of the convenience supplied, surrendered certain privileges. His Worship said it struck him that evidence as to other acts would have been advisable. If it were a common thing, it would show a course of obstruction, and prove intent. Mr Sim : Such evidence could have been led, but I did not do so in deference to your Worship's direction. Mr Calvert, in reply, said it was not shown that the Order-in-Council had been published by depositorby advertisement; and it was mandatory that this should be done. The Order was incomplete without publication. He further submitted that there had been no unreasonable delay. As to the abridgment of the common law rights of persons using the road, if these rights were taken away by statute, they must be taken away in express words, and not by implication, His Worship: The matter is one of importancs, and I do not feel prepared to give judgment to-night. I will give it on Monday morning at the other Court.
TRAMCARS v. PALACE CARS., Issue 8005, 6 September 1889
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