ELTHAM CROSSING SMASH.

Hawera Star, Volume XLVII, 15 August 1928, Page 7

ELTHAM CROSSING SMASH.

R ESER A'ED JUDGMENT

DELIVERED

At the Eltham Magistrate’s Court yesterday, Mr. R. W. Tate, S.M., delivered Ins reserved judgment in tho case- heard on July 17, when William Charles Aitken, blacksmith, of Opunake, was charged with, on May 24, driving a. motor car over the Eltham railway crossing when the line wasnot clear; with failing to keep a vigilant look-out for approaching trains; and with failing to stop when coming into contact with the railway line.

In dismissing the charges, Mr. Tate delivered his judgment as follows :

The defendant is charged with breaches of section 58 of the Government. Railways' Act, 1926. On May 24, 1928, a special goods train came into Eltham railway station late- at night, and, in shunting, the engine had to cross over the street crossing. The alarm hell and wig-wag signal at Eltham crossing are operated from the railway station office; this crossing signal was switched on by Brosnahan. a railway clerk, and was switched off again when he believed that the engine, which was a. considerable distance array, had finished shunting. The defendant, travelling from Eltham to Opunake, believing the line clear, essayed to cross, and collided with the engine' on the crossing. There- was some conflict of evidence as to whether the .signals the time of the collision, or just before, were giving warning of the presence of railway traffic, and I conclude, from the evidence of Brosnalmn, Proud (the- fireman), and Read (a passer-by), that- they were not. Brosnahan stopped the signals and walked down the line, towards the crossing. Proud, who had witnessed the collision, got off the engine, and was coming to the station to send a message for a doctor when he met Brosnalmn half-wav. and, the distance is not short. Read had crossed' over the- crossing and the Irell was then ringing: when he had proceeded about ,50 yards past the crossing hisattention was attracted bv the stoppage of the bell. He looked round and saw the wig-wag had stopped, and he saw also the car approaching and the engine moving towards or on to the crossing. Anticipating an accident, he waited and- watched to see what would happen. I find that at the time.of the collision, or just before it, the bell -and the wig-wag had stopped and gave no warning to the defendant. Defendant, who knew the crossing, stopped 60 or 70 yards from the crossing to adjust liis wind-screen; he heard no train, heard no bell or whistle, nor did he see the wig-wag working. He came on, believing the line to be clear, and arrived at the crossing at a speed of 12 to 15 miles per hour. The engine, lighted with a kerosene lamp, meantime approached the. crossing and entered ivpon it, and' the defendant ran into it, not seeing it till within a. few feet away.

Section 58 of the Government Railways Act, 1926, imposes a. duty on every motor driver to slacken speed to 10 miles per hour when approaching a crossing, and to stop before coming into contact with the railway line, also to keep a. vigilant look-out, not to attempt to cross until the line is clear, and not to pass oyer the crossing at more than 10 miles per hour. The preceding section (57) enacts that the Minister may cause to he erected such signals as lie considers necessary for the protection of users of the crossing, and he is not liable for any accident that may occur by reason of the temporary failure of such signals. This no doubt refers to the Minister’s civil liability, hut nevertheless I think sections 57 and 58 must be read together. In this case there was not a. temporary failure'; there was a deliberate stoppage of the signals in the mistaken belief that the need for them had passed. The' defendant technically failed to oomplv with most of the reouirements of section 58. The question is whether he was not justified. Section 58, no doubt, casts an absolute duty on drivers' of motor cars on crossings where, no signals have been erected under Section 57, _ hut where signals have been erected it- seems to me that while the bell and wig-wag are operating the public is warned to keep off the line, and while both are not operating the public is invited to cross as the line is clear. I fam satisfied that if the signal had | been working the defendant would not •have attempted to cross.. Tie ynvs [he heard no whistle, and if a whistle was blown. 1 think that the false sense of security into whi h be bad lieen lulled' and. tlm noise of his ear j'Ustifv’ his not hearing it-. T think the information should he dismissed.

No costs wore allowed, and security for appeal was fixed at .£lO 10s.