A TRAMWAY COMPENSATION CLAIM.

Otago Daily Times, Issue 13207, 14 February 1905, Page 3

A TRAMWAY COMPENSATION CLAIM.

STEVENS v. THE CORPORATION. Mr H.' Y. 'Widdowson, S.M., was occupied during the greater part of yesterday in taking evidence at, the Magistrate's Court in the case. Stephen Steven's, express proprietor, v. tho Mayor, Councillors, and Citizens ofDunedin. The statement of claim by plaintiff was that on 21st September, while he was driving ibis express across Georgo street the corporation, by its servants, so negligently and unskilfully drove and managed , an electric tram car that it overtook and collided with plaintiffs express, and by reason thereof plaintiff suffered damages and injuries as follow:—Surgical and medical attendance, £2123 Gd; repairs to express, £11 15s; damage to furniture being conveyed in express, £1 10s;— total, £15 17a 6d. Plaintiff further claimed £100 aa damages for personal injuries and loss sustained as the result of such collision. Mr S. Solomon appeared for plaintiff, and Mr W. C. MacGregor, of the firm of corporation solicitors, for tho corporation. Mr Solomon, in opening the case, said plaintiff was an expressman, and on the date mentioned in the claim was engaged taking a load of furniture in- his express van down Park street. He was in a covered-in express van, and when he came to tho corner of St. David and George streets he looked up George street in a northerly direction, but did not see any tram car approaching. He then attempted to cross George street so that he might proceed up tho left side of the street, going southwards towards the city. He tlid not go many yards, however—probably not more than 15,—when an electric trnin from the north came up behind him and crashed into and upset his express. The collision injured plaintiff, and also injured his horse and did damage to the van and also to the furniture. The evidence that would be given to show neglisence on >tlio. part of defendant would be this: The accident took place in broad daylight and under circumstances where it was impossible for the jnotorman driving the tram not to see the vehicle in front of him. Plaintiff had got his vehicle over the western rail on the line, and was nearly over tho other rail when the car unexpectedly came up and struck one of the wheels. There were a mimber of decisions to guide the court in the matter of contributory negligence, and a recent decision of Mr Justice Williams, in the Shearer ense, would be of some assistance. Tho case before tho court was a clearer one than the one he referred to, as that occurred at night time, but here they had an electric car driver, in broad daylight, driving his car into an express which was about to leave the rails. He contended that it was the driver's duty to sec that the express was clear of the line before ho brought hifl car up. His second point would be that at the intcr-se=lion of a number of street ways the trsmway poets had signs upon them "Up cars stop here" or " Down cars slop here." The cars of late, he understood, did stop at those places, but for a long time proviously they did not do so. His Worship: The cars do" not always stop at those places now. I have seen them go by them without stopping. Mr Solomon (continuing): It will be shown to your Worship's satisfaction fhW this car did not stop at St. David street, and that had tho car so stopped the accident would not have occurred. If (he corporation by tho publication of such notices as he referred to allowed people to gather a false' impression or security, and an accident or damsge resulted, it was liable. These notices were put up for the legitimate purposes of gain, and so that the public might gather at these points to lie picked up. Plaintiff knew that St. David street was a crossing place, and consequently he had no hesitation in crossing there. It would be shown in.evidence that there was a very sharp drop from about Dundee street to where the accident occurred, Mid that the car came along at a very rapid rate. Rome of the passengers on the car would say the pace was so rapid that they were jostled about. Evidence would also be given by one who saw aJI that occurred, that the motorman rang his boll when throe posts away, but that ho did not attempt to slow down but ran straight into the express. Another passenger would also say that, seeing the impending collision, he endeavoured to get out of the way of danger by going further back ill the car. Other evidence would also be given k> prove negligence. The defence of contributory negligence would no doubt be relied upon, but the utmost extent to which that could go was (hat if a man driving a, vehiclo saw a car approaching he had 710 right to go on the rails. But in this case, although the plaintiff had looked for a car ho did not see one coming, and he had not therefore been guilty of contributory negligence. The first he knew of the car's approach was that it crashed into his vehicle. Hut he (counsel) held that oven if a driver did go upon the rails after having scon 11 car comyig it was the duty of the motormaii to pull up M 3 car, and if he did not do so he was responsible. Counsel quoted Pollock on Tests, p. 837, Tough v. ■'Warren, and other case? as to contributory negligence. As to damages, it was a raoat pernicious practice that in a. case of this character the corporation ■ could not compensate anyone who suffered an injury, but was obliged to contest it because they had a public risk insurance policy. That was a matter that required to be carefully looked into. As to the anioutif to be awarded, ihat was a sutler within tho magistrate's decision, and he (counsel) preferred to take the matter before a magistrate to taking it before a- jury.

Thomas Fairbairn, torn cleric, said the corporation lield a public risk policy, and in a case of damage to lite or limb the corporation loso 50 per cont. of the damages, and the Accident Insurance Company the remainder. In regard to injury to property the risk was entirely that of tho corporation. To Jtr MacGregor: This case was not being defended by an accident insurance company. To the beet of his knowledge the insurance company knew nothing about it. There had been a good many claims for compensation over the trams. These camo EuTore Noyes Bros., who reported to the Tramways Committee of the City Council, and the latter paid those amounts which were deemed reasonable. If those injured did not accept them legal proceedings generally ensued. To Mr Solomon: The Tramways Committee in tho Shearer case did not themselves pay Shearer the amount awarded by the jury, acting under the advice of the insurance company.

William Evans, medical practitioner, said ho knew plaintiff, and saw him after his admission into the Hospital on October 1. Ho was then suffering from a scar over the left oye, another over the soalp, and another above the right er.r, ami the left thigh was extensively braised. Also several b!ood vessels had been torn, and as a result there was a swelling caused by a collection of blood. As a result of the hijury lie could not bend Jus left thumb, and tho loft thigh was still larger than tho other. He had suffered considerably, and some of tho wounds had left permanent marks.

Stephen, John Stephens, plaintiff, said he had been driving an express iu Duuediu for 22 years, and knew Duuedin streets well. On tho 21st September last he was coming down Park street with a, load of furniture. The time was about a quarter past 12 o'clock. His express was covered in at the sides and a.t the back. After leaving Park street he intended to come to town along George street. After turning into George street he could see about twothirda of the block towards Dundas street. He saw no tramcar coming, and. there was nothing to obstruct the view. Hd thought ho had got across one set of rails, and his waggon was nearly over the other rails when the express was struck by a tramcar coming south. His trap was moving at a walking pace. Tho car must have como along very quickly to catch up on his express. If the car had stopped at St David street the accident could not have occurred. The ■ cars coming south stop on the south side of St. David street, and the cars going nortli stop on tho other side. Tlte injury done to the trap cost £11 15s, the injury to fie furniture £1 10s, and his horse was lamed. He was earning £5 per week before the accident happened, and was four weeks and a-half off work as a result of the accident, and since then had lost in earnings from £1 to £1 10s per week because he was not able to do some kinds of work. Generally he did not feel as strong ns before the accident. To Mr MacCrTegor: He had not met with any . accidents before, . and had been driving for 30 years. 'When he •got down to the bottom of Park street he pulled his horec up to a walk. He saw a ear coming from the south before the accident, b»i none from the north. He could not positively say whether it was raining at the time. The sides of his express were permanently covered in. He was just turning the corner of Park street into George street when he saw the south car at Albany street. He could not understand how a south car could bo standing at St. David street without him seeing it. The car • seemed to striko tho express sido on. His expenses out oThis earnings would be about £1 per week.

To his Worship: It took six weeks before the express was repaired. Archibald A. Binnie said that on the day of the accident he saw defendant crossing from Park street to George street. He was going at a slow trot. A tram was crossing towards plaintiff from the north, and was about three poles away when the motorman rang his bell. The trani was going very fast, faster, m witness's opinion, than it should have been going. When , the motorman rang the bell Stevens was oferlSO yards distant. There was nothing whatever to prevent the rcotorman fioru seeing Stevens'3 express, and there was nothing to prevent him stopping. He did not stop his car until after passing St. David street. In witness's opinion the ffiotoroian took the risk of passing the express, which he thought' would' get over the rails before the tram came up.' To Mr JlacGregor: Witness expostulated with the ticket conductor in regard to the manner in which Stevens was allowed to lie on the pavement after being ■ injured. Witness said at the time and since thai ho would make. jt hot ips swsja,-- -The.

motonnan applied his brakes when about 30 yards south of St. DayiS street. The. motorman rang his bull again when he.was a few yards from plaintiff's express. Charlea W.. Essex, jun., fruiterer, a passenger by the k&mcar, said he' was on the front of the car coming south, and -when lie saw the\express it m about 30 yards away. The only' bell .-witness heard was that of tht motormar. after tho car struck the express. The car wee going very faet at the time. The car did not stop at St. David street, and did not slow down until after tho express was struck. •■ "■ ■ ' To Mr MacGregor: There was no attempt to reduce the speed of the ear before the express was struck. The car ran some distance after it struck the express.

Alice Paulin, a passenger by the tramcar, said the tram was going, very quickly, and did not stop at St David street. Stanley Bnindoll, a. boy, said when Mr Stevens's express was crossing George street it was going at a. 9IOW pace. The north car bumped into tho express wlulo the latter was crossing- the line. Witness was sitting on the seat of tho express with Mr Stevens at the time of the accident. Edith Booth, a passenger by the car, said the car did not stop at St. David street, and was going vexy fast At this stege the case was adjourned till Wednesday, next.