FAILURE OF CLAIM

New Zealand Herald, Volume LXXVI, Issue 23431, 22 August 1939, Page 7

FAILURE OF CLAIM

SEQUEL TO COLLISION LIMITED STRIKES TRUCK RAILWAY NOT RESPONSIBLE [from our own correspondent] HAMILTON, Monday The question as to whether the Railway Department was responsible for damage caused by the limited express when it struck a motor-truck used for carting spoil on the railway lino was the subject of legal argument when the hearing of a claim was continued before Mr. Justice Blair in the Supreme Court at Hamilton to-day. At the conclusion of suppliant's case, His Honor entered a nonsuit against the suppliant. The case was one in which Francis McQuibban, contractor, of Gordonton, brought an action against the Crown for £350 damages. Mr. J. F. Strang appeared for the suppliant, while the Crown was represented by Mr. H. T. Gillies and Mr. J. R. Fitz-Gerald. The accident occurred on the Main Trunk railway lino near Ngaruawahia on January 21, 1938. The suppliant claimed that the enginctlriver of the train had been negligent in failing to keep a proper look-out and in other respects. It was contended by the suppliant that had the driver been watching he would have seen the obstruction on the line and braked in time to avert the collision. Enginedriver's IJuty In answer to a question put by His Honor, Mr. Strang said that he considered that McQuibban was a licensee. The cngincdriver had a duty to avoid obstructions on the line, however they were created. According to the rules made under the Railways Act, the driver was bound to keep a good lookout and be prepared at any time to act upon signals given by servicemen or other people. If that had been done, no accident would have occurred. "In my view, on the evidence of suppliant and without hearing the Crown evidence, I would be bound to tell the jury that the" suppliant was a trespasser and not a licensee," said His Honor, in nonsuiting suppliant. "I also consider it was a very improper thing for a man's employer to allow him to put his truck over the railway line.'' Department Not Liable His Honor said that the men had put the'lorry over the line when, they were expecting the train at any moment. They did this at their own risk. The rules under the Railways Act were made for the protection of the travelling public and not for people who placed their trucks on the line. The Railway Department was not liable under the law. Mr. Strang asked that he might submit written argument. His Honor stated that ho would give a memorandum of judgment. Mr. Gillies intimated that the Crown would not proceed with a counterclaim.