CROWN SUED

New Zealand Herald, Volume 82, Issue 25287, 22 August 1945, Page 9

CROWN SUED

CROSSING FATALITY

• WIDOWER'S CLAIM FAILS Br petition of right, the husband and 'daughter of a woman who was killed at a railway crossing brought a claim for £550 damages against the Crown before Mr Justice Callan and a jury yesterday. The victim of the accident was Mrs Hilda Evans Fen ton, who met her death at the Lloyd Avenue pedestrian crossing, Mount Albert, at about 5.30 p.m. on December 1, 1944. The suppliants were her husband Wallace ood Feu toil, retired tram conductor, and her daughter, Mrs Mabel Edna Mould, who were represented by Mr F. 0. Jordan. They alleged that there had been carelessness on the part of the driver of the railway engine, and that the crossing was a bad one with inadequate warning signals. The Railway Department, represented by Mr V. R. Meredith and Mr Rosen, denied all allegations of negligence,'and answered that the accident was due to Mrs Fenton's own negligence. Back to Engine Mr Jordan said that Mrs Fenton was 67 years of age, and in indifferent health. In following the track over the crossing, she would at one point have her back turned to the engine, which was coming from Henderson at a speed, he suggested, of not less than 35 miles an hour. Since the accident a, considerable amount of filling had been done at the crossing and holes and hollows'filled. The suppliant, W. W. Fenton, said his late wife was slightly deaf, but could hear anybody talking normally. There was no warning gong at the Lloyd Avenue crossing. To Mr Meredith, he said he did not know that the Mount Albert Borough Council formed this crossing, and that tbe Railway Department took no responsibility for it. A train could be seen about 200 yds.from the crossing. Driver's Evidence

The driver of the engine which struck Jlrs Kenton, William John Kilgour, estimated liis speed at about. 35 miles an hour. He said lie sounded his whistle three times after leaving Mount Albert station. His explanation of not seeing Mrs Fenton was that she approached the rails at a point that was blind to the fireman and himself under the conditions in which they were working. At the close of the suppliants' case, Mr Meredith asked that the case be withdrawn from the jury and judgment given against the suppliants. His Honor said he was inclined to agree that no one could rationally avoid the conclusion that Mrs Fenton was negligent, and that her negligence contributed to what happened. Mr Jordan, however, raised the point that the engine crew should have seen her and by application of the brakes avoided the accident. Mr Meredith might be but it was difficult to withdraw a case from the jury, and he would reserve the question raised. Mr Meredith submitted no evidence, and Mr Jordan and ho addressed the jury. The Law Explained Explaining • the law concerning damages, His Honpr said this was a very special form of claim which only a husband, wife or children could bring, and , they could claim only to the extent to which they could show pecuniary loss. . He did not know why a claim had been brought for Mrs Mould, and nothing ought to be awarded to her. | Unless it could be shown that the engine driver had been at fault, the suppliant had no claim, continued His Honor. If they thought both parties were at fault they were not to award damages unless they were perfectly satisfied that the driver could have avoided the accident when Mrs Fenton could not. After a retirement of three hours, the • jury brought in a verdict for the Crown. "We could not find any direct evidence of neglect against the driver," said the foreman, "and that is the only verdict we can give." Judgment was entered accordingly, with costs.

TRANSPORT LICENCES SERVICEMEN'S INTERESTS APPEAL BY AUTHORITY .(O.C.J HAMILTON. Tuesday The No. 1 Transport Licensing Authority, Mr E. J. Phelan, in Hamilton today, appealed to holders of two or more licences to offer those which they could do without to the Rehabilitation Department, so that returned servicemen might be able to re-estab-lish themselves in business. Referring to ancillary licences, the authority said that he did not know Whether or not the sitting was wasting its time in imposing limitations on users of these. The restrictions were imposed to conserve petrol and tyres, as a war measure, and he had understood that (; they would bo lifted at the cessation of hostilities. Opposition to the renewal d four of the• eight licences of Mann Brothers, Hamilton, was expressed by the Second N.Z.E.F. Association, the Rehabilitation Department and other carriers. It was stated that the authority had permitted the transfer of four of the licences from Andrew Burn and Co., Ltd., to Mann Brothers. Mr Phelan said the Rehabilitation Department had not handled this matter satisfactorily. It had had some time to consider the transfer to ex-service- • men, but no satisfactory reply had been received. He felt that he could not permit the firm of Mann Brothers, one of whom was serving overseas, to hold eight licences. Four must be earmarked for returned servicemen. Similar opposition was expressed to the renewal of .the licences of the New Zealand Co-operative Dairv Co., Ltd. It was stated that the companv held 15 I icences and 87 vehicle authorities. Mr F. W. Groom said the company h;ul been forced to take over the licences. They were prepared to offer them to the Rehabilitation Department. Mr K. |{. Marsh said that, of ttS members of the Carriers' Association in Hamilton, 17 had handed over at least one licence each to returned servicemen. He felt that the larger holders should also assist.. ft was arranged to call a meeting of the dairv company, the Rehabilitation Department. '• ■ Second N.Z.E.F. Association .'111(1 the Transport Department to present a plan for the distribution of tlie to the authority. 1