A WAGGONER’S DEATH

New Zealand Times, Volume XXXIX, Issue 8784, 14 July 1914, Page 4

A WAGGONER’S DEATH

CLAIM AGAINST THE CROWN COLLISION WITH TRAIN AT RANGIORA. A case in which a Christchurch jury awarded £ISOO damages to Mrs Frances Elizabeth Banks, of Ashley, Canterbury, for the death of her husband, as the result of a collision with u train at a level-crossing, reached the^ Court of Appeal on Friday. The bench consisted of Their Honours the Chief Justice (Sir Robert Stout), Air Justice Deiuiifetou, Mr Justice Edwards, and Air Justice Cooper. - On September I2th, 1913, AVilliam Alexander Banks, hpsbaud of the suppliant, received fatal injuries at the High street level-crossing in the borough of Rangiora, through being run into by a train running from Christchurch to Culverdeu. The widow sued the Crown for £2OOO compensation for herself and her three children, aged eight years, four years, and one year respectively. The case was heard before His Honour Mr Justice Dennisten at Christchurch on May 23th and 20th. A BOY WITH A FLAG. The evidence in support of the claim wont to show that Banks was driving a waggon and team, and when he reached the crossing the train crashed into him. Mrs Dorcas Dawson, in her evidence,'said that, as she was approaching the crossing prior to the accident, she saw a boy, aged between seven and eight years, eon of the gatekeeper (Humphreys) sitting on the fence outside the gate, with a railway flag in his hand; on this occasion neither Air nor Airs Humphreys flagged the train. It also appeared [that Airs Humphreys rushed out just before the collision, and that both she and the boy were injured. The de-' ceased was in business as a carrier, and it was stated that ho earned up to £7 a week clear. The jury returned a verdict in the form of answers to issues, as follows: 1. Has the plaintiff proved that the defendant failed to properly flag the train?—Yes. I 2. If yes, was sucli failure the proximate cause of the death of the deceased?—Yes. -

i 3. If the department was negligent, icould the deceased have avoided the' accident by reasonable care?—Wo are of the opinion that the deceased Banks was not guilty of any wilful negligence. 4. Is the plaintiff entitled to damages, and, if yes, to what amount? and in what shares should such damage be divided?—(l) Plaintiff entitled to damagese. (2) Damages to plaintiff £ISOO. (3) The jury decided that the distribution of damages should be as follows: One-third to the widow and two-thirds to the children., POINTS OP LAW. Counsel for the respondent gave notice of motion for a new' trial*' on the 'grounds: That the judge misdirected the jury; that by reason of the insufficient apswer of tho jury to issue No. 3 itho findings of the jury were so defective that no judgment could'be given upon them; and that the verdict was against the weight of evidence in all its findings. Notice was also given on behalf of the respondent to move for judgment for the respondent or a nonsuit, on tlio grounds: That the evidence proved that there was no negligence on tho part of the servants of the Railway Deportment or of the respondent; .that the death of Banks was mused solely by his own negligence; tli at at the time when he was killed Iks was a'trespasser upon the railway, and that neither the department nor the respondent was under any legal duty to use oare for his safety, cither hy displaying a flag or otherwise; that* there baing no statutory duty on the part of the department to display a flag St a level crossing on the approach of a train, no liability on the part of the respondent could arise fronl tho fact that a flag ' was usually played and the alleged failure to display it properly on the occasion in ' question; that the 'evidence ’ proved the deceased was, at the time when he was killed,- unlawful 1 ly driving or attempting to drive a vehicle across the railway at the level crossing otherwise than at a walking pace; that the deceased unlawfully omitted to comply with tho directions, “Stop* look out for the engine,” upon the notice board at the crossing; that he was guilty of contributory , negligence; that the answer of the jury to issue No. 3 amounted to a finding that tho deceased was guilty of contributory negligence; that there was no evidence of negligence on the part of the department of any of its servants. ALLEGED MISDIRECTION. The allegation as tf misdirection was that tile judge misdirected the jury on g material point of law, in directing them as follows: —‘‘In reference to the alleged failure to properly flag the crossing, there is no statutory obligation to give such’ notice. 'But it seems to me clean law, as it certainly is common sente that if the department has in fact taken on itself for a considerable period to give such notice, it "must be assumed that they undertake the consequences of neglecting it; and that if the failure of tho obligation led a person using the crossing to reasonably conclude that the crossing was safe, and such person was thereby injured, the respondent would be liable.” The motions were removed to the Court of Appeal for argument. Mr S. G. Raymond, K.C., with Mr F. K. Hunt, of Christchurch, appeared for the suppliflnt, and the Solicitor-Gene-ral (Mi- J. W. Salmond, K.C.) foi the Crown. . . Judgment was reserved.