KILLED BY TRAIN

New Zealand Herald, Volume LXXV, Issue 23117, 16 August 1938, Page 13

KILLED BY TRAIN

FATE OF PASSENGER CLAIM BY WIDOW .£1950 DAMAGES SOUGHT CROWN DENIES LIABILITY Following from a fatal railway accident nt the Mercer station on October .'JO last, a petition of right claiming damages against the Crown was brought before Mr. Justice Callan and a jury in the Supreme Court yesterday The victim of the accident was Charles Harold Herbert, a farmer, aged >2, who, ;it the time, was a passenger on a special tram I'roin Claudelands to Auckland. When he was alighting at the Mercer station he was thrown between the platform and a carriage and received injuries from which lie died the same day. 'Hie petition was brought by his widow, Mrs. Henrietta LCthel Herbert, ot l'anmure, the administratrix of his estate, for whom Mr. Vialoux appeared. The suppliant stated that a railway servant came through the train belore Mercer was reached announcing that it would stop there for refreshments, and she claimed that trie accident was due to negligence and lack ot care of the railway stall 011 the train and at the station. She there--tore claimed L IS)oO damages under the Deaths by Accidents Compensation Act and i.'l 72s special damages for medical and funeral expenses. The Crown's Answer The Crown, which was represented by Mr. V. R. Meredith and Mr. H. Rosen, of Wellington, answered that Herbert's injuries were due entirely to his own negligence in quitting the train while it was in motion and without taking reasonable care. Mr. Vialoux said that when the train pulled in to Mercer at about S p.m. there were no lights at all on the station except a taint glimmer from the refreshment room and from the stationmaster's office. It was an extremely dark and moonless night. Moreover the train was brought in in such a way that a number of passengers thought it had actually stopped, hut it went oil again with a sudden jolt while passengers were alighting. The peculiar way in which the train was brought in, Mr. Vialoux said, was caused by the engine crew, instead of stopping the carriages opposite the refreshment room as they ought to have done, going 011 until the engine was opposite the water tank. This was done in order to save themselves the trouble of uncoupling the engine to go to the water tank.

Widow's Position The suppliant, aged 46, said her husband was a dealer in stock. She was married to him at a registry office six years ago. Witness always got from her husband all <she needed for her personal requirements. ".My work was my home," she said, "and 1 very rarely went out." Maxwell Archer Jionnett, tram conductor, who was a fellow passenger in the carriage with the deceased, said there were no lights at all on the fiercer station, and the platform was absolutely black when the train arrived. Alter stepping off he had to go back 12 or L 5 feet to the refreshment room. Later at Otahnhu he heard one of the men on the engine say, "Don't put anything about the lights in your report." -To Mr. Meredith witness stated that there were no lights on the Mercer station under the verandah. Another passenger on the train, Herbert Widdup, said that feeling sure the train had stopped he stepped off at Mercer and rolled over. There were no lights where he stepped off. "A Tremendous Jolt" Another passenger, Archibald Frank Robins, said the train stopped very suddenly with a tremendous jolt and then glided on. Evidence that she did not get oit at Mercer because it was so dark was given by Mrs. Mildred Bell. Alter the accident she heard deceased say "What a shame! What a shame! 1 did try to hang on." William Mclndoe also said that the Mercer station platform was absolutely dark, but he later admitted to Mr. Meredith that lights were on under the verandah. Norman Thomas Hanson said there were lights in the refreshment room and the stationmaster's room and all the rest of the station was in tota 1 darkness. The train stopped and moved on again. David Gamble, formerly locomotive foreman at Auckland, produced an official instruction to engine-drivers, dated last December, requiring trains to be stopped at Mercer with the carriages as nearly as possible opposite the refreshment rooms, and the engine to be cut off from the rest of the train if a visit to the water tank was necessary. Case for Defence Opened

"The practice of people getting off moving railway carriages is a constant source of anxiety to the railway people," said Mr. Meredith. We all take the risk sometimes, but we take it at our own risk." The driver and fireman would say, lie continued, that they came in to Mercer in the ordinary way. The fireman saw someone stumble and called out to the driver, who pulled up in a few feet. Witnesses would say the stop was perfectly smooth, and that when the train came in all the lights were on except those to the north of the verandah, Mr. Meredith said. J he light was quite reasonably good. It would be established that Herbert stepped ofr a moving train and the result must be his own fault. Patrick Ryan, guard on the excursion train, said it came slowly into Mercer station and stopped without a jolt. It did not move again. The platform lights and the light on the refreshment room sign were all on. Evidence for the defence will be continued this morning.