RIVAL CONVEYANCES.

Otago Daily Times, Issue 8595, 10 September 1889, Page 4

RIVAL CONVEYANCES.

At the Resident Magistrate's Court yesterday morning Mr Carew, 8.M., gave judgment in the case brought against John Wheeler, one of the Palace Oar drlverß, who was charged at the City Police Court on Thursday with driving his omnibus in such a manner as to obstruct one of the trams. Mr Carew said he had gone into the caßo rather fully, and gave judgment aa follows :— The information charges the defendant that he did, on the 2nd September, wilfully, and without lawful excuse, drive an omnibus in such a manner as to obstruct a carriage using a tramway in George street and Great King street, Dunedin. The evidence shows that the defendant was tbe driver of an omnibus travelling from the Water of Leith southwards in advance of a tramcar, and at Great King street near to St David street the omnibus was stopped in eucli a position over one of the tram rails that the tramcar, which camo up to it shortly afterwardß, had to be brought to n standstill, and itcould not proceed on the journey until the omnibm moved on nguin; and also that upon the same journey shortly after the car entered George street, the omnibus was driven up from behind on the off side at a quick pace, and then immediately in front of tlie tram horees over to the near Bide, and the speed of the tramcar had to be temporarily checked to prea collision. Of course, I can deal withonlyone offence in this information, and what took place in each street ia separate nnd distinct from the other excepting bo far as defendant'a acts in Qeorge street may bear upon the question of whether the alleged obstruction In Great King street was a wilful obstruction or otherwise. The prosecution relies in support of the charge upon Bection 51 of " The TriimwaysAct 1872," part third of which provides " thr.t any person ' who does or causes to be done anything in such a manner as to obstruct any carriage usiu<j a tramway' bhill be subject to a penalty not excesding £5." I feel satisfied from the evidence Hint the real object of the omnibus being stopped in Great King street was to take up tbrca passengers, and I am not satisfied that it wai intentionally detained longer than was necessary. There is reason in what defendant stated that, being upon the tram hue when his conductor rang the bell to stop to take up passengers, if he had continued driving on until he left sufficient space for the car to pass, the omnibus he would have stood some chance of passing over the passengers to the tramcar, ana of course he would not be expected to do that if it is not ha itself illegal to stop upon the tram line. The defendant's conduct in George street was very reprehensible, and what took place there assists me in forming an opinion that driving upon the tram line was part of his tactics to command a choice of position over the tramcar. These are my findings, and the queßtion is whether they bring defendant within that part of the third provision of Beetion 51 under wiich the information is laid. In the first place "Tbe Tramways Act 1872," sections 33, 97, and 101 go to ahow that the promoters of a tramway have only an exclusive right to the use of it in reaped to carriages haviDg flange wheels, or wheels suitable only to run on the rail of the tramway. Section 101 reads thus- " Nothing in this act, or in any bye-law made under this act, shall take away or abridge the right of the public to pass along or across every or any part of anyroad along or across which any tramway is laid, whether on or of! the tramway, with carriages not having flange wheels, or wheels suitable only to run en the rail of the tramway." This provision is somewhat modified by the Amendment Act 1888, but that does not affect this case. To find that the stoppage in Great King street was a wilful obstruction tvithout lawful excuse, I would have to agree that the act abridged the right of the public to this extent—that it was not lawful to stop any ordinary carriage upon the tramway to take up or put down a passenger, if-it interfered with the progress of a tramear j but I can find nothing in the act to warrant such a conclusion. The borough councils have power, under municipal acts, to make bye-laws to regulate traffic; and bye-laws may blbo be made under the Tramways Act; but I presume there ar< none that meet this case, orthey would have been pul in evidence. As the case standß, I think if defendant obstructed the tramcar he has shown a lawful excuse, inasmuch as he did so to allow passengers tc enter his vehicle; but there is an authority, although not that of a case decided in any court, that an interference like that complained of is not an obstruction within the meaning of the exactly corresponding section of the act of 1870 in force in England, and from which our act is taken. It is an opinion given by the editor of the " Justice of the Peace" for the year 1883, at page 815, on the following case put to that journal:—"The driver of an ordinary cart continues on the tramway for 20 yards after the driver of a following tramcar haß blown his whistle. Was this such aa obstruction as is mean in the section, or should it be dealt with under the bye-laws as a breach of the regulation of the traffic f" The answer was as follows:—" We hardly think that this is the kind of obstruction tp which the section relates. That Bection applies more properly to such obstructions as the placing of stones or such things on the metals bo as to obstruct the carriage or endanger the lives of the passengers. In the case before us the objtruction is rather to the traffic, and we think therefore that the proceedings should be taken under the bye-laws." It seems to me that special bye-laws are required to regulate the traffic in Btreets where tramways are laid down. • Case dismissed, with costs (2U).