£15,000 CLAIM

New Zealand Herald, Volume LXXIII, Issue 22402, 24 April 1936, Page 18

£15,000 CLAIM

MILL FIRE SEQUEL PETITION TO THE KING ALLEGED ORIGIN OF OUTBREAK SPARKS FROM TRAIN BLAMED A petition for £15,070 damages brought by tho Morningsido Timber Company, Limited, against tho New Zealand Railways Department, was heard before Mr. Justice Callan and a special jury in the Supreme Court yesterday. Tho action aroso from an extensive firo in the company's premises on December 1, 1934, which, it was alleged, originated from a spark from a railway engine passing the premises, which adjoined the railway lino at Morningside. The special jury comprised the following:—Messrs. P. Seabrook (foreman), G. F. Inglis, J/. McCullough, E. T. Ryan, S. C. Gascoigne, W. G. Webster, S. O. English, F. F. Simmonds, T. H. Torrens, J. R. Warnock, R. A. Falla and R. L. Gardener. Messrs. Finlay, Stanton and Mackay appeared for the suppliant company, and Mr. H. F. O'Leary, K.C., of Wellington, and Mr. Hubble for the Crown. Tho petition, brought under tho Crown Suits Act against His Majesty the King, set out that on December I, 1934, a railway engine passed the company's property at about 1.47 p.m., and caused a fire in the vicinity of the railway line which spread to the company's property. The damage to the buildings, plant and stock was £12,070, and tho further loss from disorganisation of tho company's business was £3OOO. Grounds of Allegations It was alleged that tho fire was caused by the negligence of respondent's servants in that (1) tho engine was fitted with an inefficient spark arrester; (2) the fuel used in the engine (lignite) was liable to give off more sparks than certain other available coal, and, under such circumstances, it was dangerous and reckless to use such fuel; (3) the driver and fireman of the engine failed to perform their duties properly, and so caused sparks, cinders and ashes to escape from the engine; (4) the ash pan of tho engine was defective, and was in a dangerous and inefficient condition. The respondent denied all the allegations made by the company. Alternatively, it claimed that if there was any negligence of the department's servants (which was denied) such negligence was not the cause or contributing cause of the fire. Further, it was contended that if the fire was caused by acts of railway servants (which was denied) such acts were performed in pursuance of statutory authority. Additional alternative defences were that the fire and consequent loss or damage was caused or contributed to by the negligence of the company in allowing dry grass and highly inflammable rubbish to remain between the railway line and its promises, that it failed to summon the fire brigade as soon as the fire was discovered, and that the fire-fighting appliances at the mill were inefficient and useless and negligently used. Case for Company Mr. Finlay, in outlining the case, said the suppliant company had to satisfy the jury by reasonable evidence that the fire wag created by the railway engine, and that the Railway Department was negligent in some respect. He dealt at length with the use of soft or brown coal in railway engines, stating that it had an inherent tendency to disintegrate suddenly under heat and throw off fragments, and formed ash or rubbish more quickly. Up to 1925 the Railway Department had never used brown coal. After that date it was used commonly on the railwa3's, and in view of its attendant dangers, there was a duty on tho Railway Department to take a larger measure of care so that it should not become a source of public danger. "The Railway Department did nothing in this case," said Mr. Finlay. "It used an old engine, A6Ol, built in* 1904, in the days when only hard coal was used, and did absolutely nothing to alter the construction and make it safe for the use of brown coal. The result was that at Morningside the place became the subject of menace by fire through the Railway Department distributing sparks from the railway line and causing fires." Prevalence of Fires Mr. Finlay said there was a history of fires in this particular locality for eight months from May, 1934. Evidence would be given by the superintendent of the central fire brigade that alarms were being received from all over the district on account of railway fires. So great was the anxiety of .the Auckland Metropolitan Fire Board that it wrote to the Railway Department, and received a reply that every possible means of checking any fire risk- from locomotives had been adopted. A modern and much improved form of spark arrester was being fitted to engines, and the older type still in use was continually inspected, while engines were supplied with a class of coal least likely to cause the emission of sparks. The engine A6Ol was fitted with the old type of spark arrester, however, and was using Waikato coal on the day of the fire. That was grevious negligence on the part of the Railway Department. Mrs. Gladys Winifred Gordon, who lived on a property adjoining the mill, said that up to December, 1934, fires were very frequent. Before the mill fire, she was outside the gate on the railway bank cutting grass as train sparks often caused fires there. After the train passed at 1.45 p.m. she smelt smoke and saw it coming down the line, and grass was burning near the embankment. Caretaker's Evidence James Evan Haughie, caretaker of the mill for eight years, said there had been fires near the railway lines two or three times every summer. When ho left tho mill about 12 o'clock there was no fire in the boiler room, tho only place where fires were used. Cross-examined by Mr. O'Leary, witness said there was no pile of sawdust outside tho mill just near the place where ho saw the firo alight. He denied that the hoses were in a shocking condition. Three other employees gave evidence regarding tho outbreak of tho firo, and the condition of tho boiler room. When tho manager of tho company, Maurice Henry Morris, was called, Mr. Stanton read a letter written to the district locomotive engineer, in which witness protested against the careless and dangerous practice of fast acceleration by engine drivers passing the mill, which put an excessive draft through their fireboxes. The hearing was adjourned until this morning.