EXTRAORDINARY TRAFFIC ON ROADS.

Otago Witness, Issue 2170, 26 September 1895, Page 11

EXTRAORDINARY TRAFFIC ON ROADS.

The following judgment, delivered by the stipendiary magistrate in P-lincrst-on North (Mr R. L. Stanford), is of considerable interest to all local bodies in the colony. The facts of the ca«3 sufficiently appear from the text. The action was brought by the clerk of tlie Manawatu Roft«l Boird, representing the board. The decision w.ia as follows :—: — Thin action is ono between the MaimvwUu R.-ad Roard and tho Palmetotou North G<js Company, the information being laid under "The Public Works Act I8M," section 138, which runs thu.s : "Where it appiars to the authority which is liable or has undertaken to repair any road, whether a main road or not, that extraordinary exjit-iiees liava been incurred by such authority in rtpniiing such road by reason of damage caused by excessive weight posing along tho same, or ext. aordinaiy traffic parsing therein, bvhli authority niuy recover in a summary manner from any porion by whose order any weight or traffic has been onducted the amount of such expuises as nv.y be proved to tie satisfaction of the court having cognisance of the case to have btseii incur-ed by such uuthority by reason of the damage hvis'iig from such weight or traffic as afore* aid.' 1 Ah for as lum aware, lo action hau ever bepn luuught in the colony of New Zeulaul on this ottcMon, Although it has appt areil in the Statute IJ ok since 18b 1 2, and there are therefore no New Zealand cues to guido my decision "The. Hijjhwajs oml Locomotives Act 1878," sec tion 23, in the Knglinh st-ttutes it, however, in all respects the same, and there arc caßes decided in the "ourfc of Appeal in all ie->p.cts similar to that now before me. In oider tb»t, the plaintiff may succeed lie must, iv Dnj' opinion, ebow fiist that the tiaflic on a road has been cxtiaordin.uy, and, necond, that extraordinary ctxpenaes have been incurred in c> ns< quence of such traflic, and, third, that such weight or traffic has been conducted by order of the peiton defending. With regard to the first point— namely, what is oxlrsor<U ary tiaflic? -the case of ICtherley Grange Coal Company (Limited), tipprllants, v Auckland district Highway Board, respondents (1 Ij R., Q B.D , p. 1)7), ia decisive. In this case the Appml Court followed Hill v Thomas (2 Q.B , p 333) K«y, L.J., sayin« that the case could not l.c distinguished from Uill v. Thomas, in which the trim "extraordinary " was thus denned : " Extruuidiuary traffic i.- reilly a carriage of articles o\er thu road ut one or moie times which is f>o exceptional in the quality or quantity of article- carii'd, or in the mode or time of ÜBer of the road, as substantially to alter nnd increase tho burden imputed by ordinaiy traffic on the load, and to cause damage and expense therein beyond v hat is common." It was argued ia Hill v Thomas that because there wai evidence of traffic in coal on other r-ads in the immediate neighbourhood it must bo taken that this is the oulinary trade of the neighbourhood, and that the upc of a road for the ordinary trade of a neighbourhood cannot constitute extraordinary traffic. Kay, L.J., however, referring to Hili v. Thomas, smid : "Tint case apudw to me to decide that in determining whethe. there lur been extraordinary traffic regard inufit be had not to all tho roads in the neighhouihood but to the particular road in qu stion. I f that road has beeu damaged by »ny peri-on by traffic beyond its ordinal y tiaffie, that yen-on must paj frr the dainsge. The object of the section is not to piohibit extraordinary traffic, but to lay the extra expense of damage dona by such traffic to the load on the light shoulders— viz ,on those whose road it d.«ninged, and to whose benefit It inured." The evidence of Motsrs )>. Liixford, M Peterson, and F. Lawsou was conclusive an allowing that the carriage of the coal on the Louglmrn-PHlmor-ston road was "extraordinary traffic." The ordinary traffic was described as being agricultural produce and a certain amount of building timber, and the carting of coal on the paiticular road referred to was most unusual and extraordinary. The evidence of Mr J Blois was that no leas a quantity than 373 tons of coal had beeu caited from the Longburn railway station to the defenda> t company^) ganworka in the 10 days from June 7 to June 17, while the evidence of Mr Kurheifurd, the nominal plaintiff, who iv clerk of the Manawatu Road Board, as well as that of Mr G. Pcott, the inspf ctiug engineer, was cone usive that a sum at least equal to tho amount of damages claimed had been expended by the load board this year in repairing the iujury to the road in question, which ii juiy had been caused solely by the extiaordinaiy traffic in coal cartage named above I have no difficu'ty, th refore, in determining that there has been extraordinary traffic on that portion of road between Loiigbuin and Pdlmersion North which i» under the cam and control of the Manawatu Koad Board, and that the board have incurred, in extra rdinary ex penses on lepair, that amount now claimed in damages against the defendant. It only remains, therefore, for me to determine whether this extiaoHiuary triffic has bteu conducted by the ordisr of the person flefendii g— bow far, in fact, the maxim Rdyondeat superior applies. Addison on Torts frayu : " When the niis- hicf is the natural and neressary result of tbe doing of tho act , ordered to be done, and not the result of some collateral and negligent act not. ordered, th-» maxim liespondeat suj)cru)r applie-." In the case beforo nic the defendant company h^d contracted with one Dod<?s, a ca<ler, to cart 3 0 tou3 of coal from Longburn to their gaswords, and it was argued by counsel for the defendant company that the conti actors and not the defendant coinp.iny were therefore liable. The contract between the parties was, however, not put in, and I informed the counsel for the defendants that if the contract weienot produced I must aßEume against the defendant company that it imposed upon the contracting carter the duty of carting bo large a quantity of coal as that admiltel to be carried— viz , 350 tons— within the limited tpace of time in which it was actually carted. The case of V idler and Others v. The Kent County Council (The Times law reports for the week ending January 6, 1895) is very much on all-fours with that before me. Vidler and Sons had undertaken to supply & large quantity of ballast in connection with the construction of a new line of railway. They accordingly entered into a contract with the proprietors of traction engines, l.y which the latter agreed to carry the ballast Rlong the highway in question. The justices found that the extraordinary traffic hud not beeu ordered by Vidler and .sons, aud dismissed the summons. The Divisional Court, to which the case was th^n taken, ruled Vidler and Sons were liable, as being the persons who gave the order for the extraordinary traffic. The matter was then taken to the Appeal Court, which sustained the decision ot the Divisional Court, holding tliat Vidler aud Sons gave the order under which this extraordinary traffic was carried along the road. Although the case quoted is not entirely on allfours with that before me, it is sufficiently so in vital particulars to enable me to decide that the Palmerston North Gas Company gave the ordera for the extraordinary traffic on the road in question. Judgment will therefore be for the plaintiff for the amount claimed, £20.

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