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THE RIVAL TRAFFIC SERVICES., Issue 8016, 19 September 1889
THE RIVAL TRAFFIC SERVICES.
TRAMS v. PALACE CARS,
At this morning's sitting of the Police Court, before E. H. Carew, Esq., R.M., and J. Logan, Esq., J.P., the adjournedcase of Williams v. Young came on for hearing. The information by James Williams, secretary to the Tramways Company, set forth that W. Andrew Young, on the 24th day of August, "did use upon the rails of the tramway in Princes Btreet, Dunedin, a, car for the conveyance of passengers for hire, having the gauge of all its wheels nearly corresponding with the gauge of such tramway, so as to be suitable to run with one of its wheels at each side simultaneously on the rails of such tramway." Sir Robert Stout appeared for the informant, and Mr Calvert for the defendant.
In opening the case, Sir R. Stout said that the information was laid under section 2 of the Tramways Act 1872 Amendment Act, 188S, which provided that "if any person, except under a lease from or oy agreement with the promoters or under license, as provided by the Tramways Act, 1872, uses upon the rails of any tramway, or any part of such rails, any car, carriage, or other vehicle for the conveyance of passengers or goods for hire, having the gauge of all its wheels, or the gauge of two of its wheels, corresponding with, or nearly corresponding with," the gauge of such tramway, so as to be suitable to run with one or more of its wheels at each side simultaneously on the rails of such tramway, such person shall for every such offence be liable to a penalty not exceeding L 20." Two of the carriages or cars that had been run by Mr Young in Dunedin had their wheels suitable for running on the tram lines. These care were numbered 284 and 288. The latter was called the Monitor. That was the case the informant was proceeding upon at present. The offence was committed at 1.20 p.m. on the 24th of August, and it would be shown that this was no new thing, but was persistent and daily. The Act under which the information was laid was specially passed to meet the very case when it was happening in Wellington. If it were shown that the cars were suitable for running on both rails, and that they were so used, then the offence was complete, unless it could be shown that it was necessary by the exigencies of public traffic that the cars should be used in that manner. An adjournment in this case had been allowed on the understanding that the cars were not to run on the rails in the meantime, but they had been so used yesterday and this morning. There were altogether nine informations, and he would ask for the infliction of a penalty, because thisoffence had been knowingly and persistently committed. As a preliminary he would put in the Order-in-Council under the signature of the Governor, and also the assignment from David Proudfoot to the Tramways Company. Learned connsel then proceeded to call the following evidence:— James Williams, manager of the Tramways Company, said that Mr Young was, he believed, proprietor of the Palace cars. He (witness) knew a car called the Monitor. That was one of the cars referred to. Witness had had several conversations with Mr Young, not particularly about these cars. The licenses were in the name of W. A. Young. The Monitor usually ran between the Monument and the Water of Leith. On the 24th August witness saw this car coming up George street from Lower Moray place through the Octagon, and along Princes street, until it got to the Bank of New Zealand. There were passengers on board. Mr Crawford was driving. It was about 1.20 p.m. The car was running on the tram rails—all four wheels were on the rails for the whole distance stated. Mr Young had no license from the Tramways Company to run on the rails. To Mr Calvert: Witness was on a tram running behind the Monitor. He had never seen the original contract between Mr Proudioot and the Corporation. They had printed copies in the office. George Morrison Barr, member of the Institute of Civil Engiheers, saw the Monitor on the 24th August. It was running between Moray place and the Bank of New Zealand. He crossed the rails behind the Monitor, and had a good look at it. All four wheels were running on the rails. Witness got on the front platform of the tramcar that was following, and saw the Monitor keep on the rails all the way to the bank. There was plenty of room for the Monitor to have taken another portion of the street. Mr Calvert said he wonld admit that defendant was proprietor of the Palace cars, and defendant would produce the license for the Monitor.
William Crawford, who was driving the Monitor at the time, said that he did not know for certain whether there were any passengers on board, and could not say what the conductor charged if there were passengers. He (witness) took his instructions from Mr Young.
To Mr Calvert: Witness's instructions were to keep away from the rails. Mr Young said that the first time he caught him on the rails he would fine him half a crown. Witness when driving could not say whether he was on the rails or not. The tires were 2£in wide, which was about the width of the rail, and it was impossible for, a driver to tell whether he was on the rail or off. The roads were so good that there was no strain in pulling on or off the rails. It would be impossible to keep the car on the rails for any distance, even if one wished to. do. so. The tires were flat, and did, not fit into the rails. He did not kno.w the width of the groove on the rails.
Mr Williams : An inch and an eighth.
Witness to. Sir $. Stout; I could not swear I was not on the rails. I have been in the employ of Mr Young for two years. Sir R, Stout intimated that that was his case so far as the present information was concerned.
Mr Calvert said that his first point was that there was no case whatever against Mr Young. The section of the Act which was relied on said that " if any person used upon the rails of any tramway," etc., but tore was no evidence that Mr Young himself used any portion of the tramline. There was evidence that Crawford had, but none whatever that Mr Young had used the rails of the tramway. This was an attempt to make one man criminally responsible for the acts of another. The possession of the car was not an offence in itself—no offence could be committed until the car was used on the tram line—and Mr Young did not know what was being done. Sir R. Stout: You might as well say that it was the horses that used it, or the passengers. Mr Carew: What I understand you So say is this : that there is evidence to make a man responsible for the acts of his servant, but that the evidence is insufficient ? Air Calvert: Yes. The evidence is that his explicit instructions were that the driver was not to run on the rails. Mr Carew : lit is something similar to say that a barman was instructed not to sell liquor. The question is whether we believe it or not. We do pot believe everything that is sworn to. It is eyideace if we believe it to be true.
Mr CWvwt went on to say that the cases which, supported the general doctrine were revenue cases, and the Judges all drew a distinction between those and criminal cases. He was referring to 'Paley on Circumstantial Evidence.' It might be evidence against Mr Young that the wheels of his cars nearly corresponded with the rails. But he (Mr Calvert) would show that these particular oars wore not built by him or for him, but
were forfeited to him by the Wellington Tramway Company for being an infringement of his patent. His principal defence, however, was that the Act of 1888 did not affect the tramway in Dunedin, and that it only applied to tramways that had the exclusive right to use the rails. Learned counsel argued this law point at length, and concluded by summarising his contentions as follows: He submitted that the Act of 1888 must be read as incorporated with the Act of 1872, and, supposing it was, were the provisions of it varied or excepted by the Order ? The terms upon which the Order was obtained must be taken to be incorporated with the Order, and form part of the Order. That it was net the intention of the Legislature to rr.r.kc xh\< Act retrospective so as to add now tirnv: vMv.ii would enlarge the rights of the cmr.y.-.n'j. That the effect of this Act was to tald.ge these rights ; and that this could tat be dono without the consent of the Corporation, which consent was not obtained. His next point was that the company were estopped from denying that they had consented to their rails being used except by vehicles with flanged wheels ; that they had given their consent to the public, and that that was one of the considerations for the contract then entered into by the Corporation.
Sir R. Stout said that he wished to say a few words on the law points, but would for the present waive his right so as to enable some of the witnesses to get away. Mr Calvert then called
Adam Gibßon, town clerk, who produced the contract entered into between David Proudfoot and the Corporation, also the minutes of ths Council of the ISth June, 188S, showing tha.l; the Council obiectecl -to the passing of the Amending Act of 1888. Sir R. Stout remarked that he had heard of bicameral legislation, but never before knew of tricameral legislation in which a Corporation was to be consulted. His Worship said that he would take the evidence for what it was worth.
William Andrew Young said that he was the proprietor of the Monitor. He could not say whether it was true that it ran on the rails on the 24th. The gauge of the car was nearly the same as that of the tram lines. He submitted that it was impossible for these care to run on the rails—to keep on for any length of time. The tire of the cars was an ordinary flat one that did not fit into the groove. He had tried to keep a car on the line and had found it impossible to do so. He had found on bringing these two cars here that they fitted the rails—he did not know the gauge before coming to Dunedin—and had told his drivers not to let him catch them driving on. the rails.
To Sir R. Stout: The Act of 1888 was not passed because his buses in Wellington were running on the rails. He could not say that he had seen a car running on therails in King street on the 24th. He did not know where King street was. He only knew Princes street and George street. To the Bench : A man could not feel by the run of the vehicle whether a car was or was not on the rails.
Alexander M'Leod, driver of Mr Young's* car 284, said that he could not tell whether the car was on the rails or not. The wheel* were underneath the car. Mr Young had said'he would fine the drivers if he caught them on the rails. A man standing behind a car could not tell whether it was on th& rails—not if he was any distance off. To Sir R. Stout: The surface was 80smooth that a driver could not tell whether the *car was on the rails or on the street. People on the street could tell. Sir R. Stout said that he wished to call evidence to show that Mr Young was on board one car when it was running on the rails. Learned counsel replied to the points raised by Mr Calvert, and in concluding said that his two pointß were—first, that the Corporation had no power to limit the operation of section33; andseeondly,thattheCorporatioa had no power to limit the operation of the Act of 1888, and had not attempted to do so, and that consequently the Aet stood. The only other point was whether a man could be guilty because his servant committed the offence. He (Sir Robert) wonld contend on the authority of Michell v. Brown that a master was responsible* whether he knew of the action of his fiervant or not; but he (Sir R. Stout) would go further, and call evidence to show beyond doubt that there was guilty knowledge on the part of Mr Young. Sir R. Stout then called Frederick J, Townsend, in the employ of the Tramway Company, who said that on the afternoon of the 24th Augußt he wbb on a car coming from the Leith. Before the Monitor came up he noticed that the front wheels were oa the rails, and when it passed he could s*» the hind wheels on the rails. Mr Yoangr was on the Monitor. It was a daily occurrence for the Palace cars to use the. rails, and he had seen them go kmgt distances on the rails. He had seen Mr Young himself driving the Monitor on the* rails.
To Mr Calvert: Witness eould not remember the day nor the hour. It was in. George street. Mr Young was smoking a. cigar. From the footpath or the centre of? the street one could tell whether a car was on the rails.
Upon resuming at 2.15 p.m. Sir Robert Stout suggested that the evidence taken should apply to the other cases. Mr Calvert consented.
Sir Robert Stoat asked that the other cases should be called on. There were several similar cases against Mr Young, and two others against drivers in his employ. Constable Millar said he was travelling on the trams, and saw Mr Young's car on the street. Mr Townsend drew witness's attention to the fact that the Palace car was running on the rails. It seemed as though the car was running on the rails. To Mr Calvert: Witness would not swear that the car was running on the rails. To His Worship: Witness conld not state whether the car was kept on the rails intentionally. Mr Calvert, in reply to Sir E. Stout in connection with the Order-in-Council, said that in order to find out the provisions specified in the Order the deed must necessarily be examined,, whether in the case of disposing of the property or otherwise. The terms and conditions upon which a stipulation should be made by the Council were subject to the approval of the Govern-,, ment. The question was whether the pany could vary the conditions of theagreement with the Council. Some discussion took place between Mr Calvert and His Worship as to whether the* incorporated Act formed part 'of the Order., and whether an amendment yf the original' Act gave a company further power to regulate the by-laws relating to traffic. His* Worship held that the Act governed theOrder, and that tho. Order did not bear on> the Act.
Mr Calvert aald that with reference to a. case cited by Sir Robert Stout, wherein a* person, kad entered into an illegal contract,. that case was not applicable to the present one, as defendant in this case had not entered into any illogal contract. In this case the responsibility was divided, for defendant only supplied the cars, while hia employe" did the driving. Sir Robert Stout objected to the evidence in one case being taken for all the cases. He preferred the cases being taken separately, and said that the evidence in the. other cases would differ.
In the second oase James Williams was called. He said that one of the Palace cars kept to the rails of the Tram Company on the soutk line on the same date as the preview case—August 24 k . Persons on the Palace cars could always tell when the vehicle took to ths rails.
To Mr Calvort: The car did not start from the raiia. It was between the Tram Company's car and the Anderson Bay omnibus, and after it had started it went on the rails. Sometimes the Palace cars would keep on the rails for fully a mile. G. M. Barr gave corroborative evidence, stating that the car in question took the rails near tho bottom of Walker street. Witness took particular notice, and saw that the car kept the rails as far as the Anderson Bay road.
Robert Aitken said that he had inspected the wheels of the cars in question, and, had found that they were bevelled oa. theinside to the extent of Jin, and in case of the car Monitor the bevel had been ground* away or cut away to nearly Jin. The wheels were much smaller than those of ordinary vehicles. To Mr Calvert: The tires on the wheels* was from l£in tflU£in, while the grooves.
the lines of the company were about one inch and one-eighth. In some instances the wheels of the cars would be in the groove of the rails on one side, while the wheels on the other side would be on the lines, but not in the groove. Samuel Morrison, Inspector of Vehicles for the City Council, said that the wheels on two of the Palace cars were scooped out on the sides of the wheels. Witness had several times seen these cars running on the rails of the Tramways Company. To Mr Calvert: Witness thought the tire bad originally been two inches, but it was at present about an inch and a-quarter in width. The wear was different to that usually seen on tK- wheels of a vehicJo-—it was bevelled rm tU- insido.
Alexander \PLs-od, drivor of No. :,Si, s!iU liia '■ run'' was from ih-.i loot .i; li;:-,]■ ford street to .St. Clair. Witness could not •ay what the fares were—they were said by some to be threepence. To Mr Calvert: Witness could not tell m hen he was running on the rails or not; he could not see the rails. There was a lot of railway iron on the southern lines, and it was impossible, were they desirous of doing so, to drive on the rails. The width ot tire used on the cars was about two inokes and a-half, witness thought. Sir Eobert Stout intimated that he had •losed his case.
Mr Calvert said that the first witness (Mr Williams) said the car got on to the rails just after starting, while Mr Barr said that the car came on to the rails near Walker street. It was not possible to keep to the rails of the Tram Company with the wheels •f the Car Company. When driving an ordinary vehicle the driver could see whether he was on the rails or not; but in this case he oould not do so, as the wheels were placed under the car. After a short retirement the Bench returned, and Mr Carew said: We find that defendant is the owner of the oar, and used it for the purpose of carrying passengers for hire. The gauge •f all its wheels nearly corresponds with the gauge of the tramway lines, so as to be suitable to run with its wheels at each side simultaneously on the rails of the tramway. We find that the oar Monitor was bo used by defendant's driver on August 24, and that it is a common practice for the rails to be usel by defendant's corriages in the Bame manner, and that he (the defendant) must bo aware of it and does not prevent it, and we therefore presume it is done with his approval. How many cases have you, Sir Eobert ? Sir Robert Stout said that he had five more against Mr Young and two others against the drivers. He would propose that the other cases be adjourned for a month, to see if defendant stopped the practice. If he did, the caßes would be withdrawn ; if not, tUo cases would come before the Court. His Worship said defendant would be fined L 5 in each of the cases heard, with costs of Court, witnesses' expenses, and professional expenses, amounting in all to LI 7.
THE RIVAL TRAFFIC SERVICES., Issue 8016, 19 September 1889
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