SUPREME COURT.

Taranaki Herald, Volume LXIII, Issue 144856, 7 December 1915, Page 6

SUPREME COURT.

SITTING AT NEW PLYMOUTH.

CLAIM FOR DAMAGES FOR PERSONAL INJURIES. i SEQUEL TO A COLLISION. At the Supreme Court at New Plymouth on Monday afternoon, before lua Honour the Chief Justice (Sir Robert Stout), evidence in the case in which William Percy Doeg, piano tuner, of New Plymouth, sought to recover £IOOO damages for personal injuries received as the result of a collision, on October 31, 1914, with a goods train crossing the level crossing near Ngaere, was continued. Mr. A. H. Johnstone'appeared for the suppliant, and the Hon. A. L. Herdman (Attorney-General) and Mr. H. R. Billing for the Crown. The following jury was empanelled:— Geo. A. Clark, Percy Geo. Olson, Wm. Coombes, Thos. Hawkings, J. T. .Mannix, G. T. W. M'Kee, E. J. EBorm, F. S. Butler, P. B-. Sole, T. Furlong run-, J. Lynch and J. Hayden. Mr. Furlong was chosen foreman. Suppliant, continuing his evidence, said ho was 47 years of age.. His heart ing was good. He knew the ■ level crossing at which the accident happened. To people, coming from the south a bank of earth obstructed the view of the railway line. To Hon. Mr. Herdman: Since he had recovered he had been following his usual business, but he could; not say what, his average earnings were now. He had not gone into it, but they would only be about half what they were before the accident. If he obtained an artificial lee it would not enable him to ride his bicycle. He was always very careful when approaching crossings, but ho could not say whether he exercised special care on this, particular occasion. He didn’t remember anything at all from the time he left Ngaere until he found he was in the Stratford hospital. He had seen oils train pass over the crossing. It was ■ /.long time ago, and on this occasion, he saw the tram when he was about a. dozen yards away, and he had sufficient time to pull up and wait for it to pass. This was the only time he could remember being in the vicinity of the crossing at the time a train was passing. Therewas the ordinary notice board “Stop I ( Look out for engine!” He had had" two serious, accidents previous to this 1 whilst riding his bicycle. On one occasion a dog ran into him, but what-i happened on the other occasion he did'-*! not know. ]

To Mr. Johnstone: The two previondlj accidents had had the effect of making/* him even more careful when cycling. j Dr. Blackley described the injuries 'J from which suppliant was suffering, and ] said it was ultimately found necessary j to amputate the log, and this was > ac-j cordially done. At the time started to work again he was not for work, but finances were. low. I To Hon, Mr. Herdman: He knew I’ that Doeg was a very careful rider.? Since he had met with the two accidents he had been somewhat nerr's Vous, and had an apprehension that he* would meet with a third. - I E. C. Robinson, civil engineer, of j Stratford, was, the nest witness. produced plans and described at length \ the crossing and its surroundings. Jessie Bertha Truelove, of Ngaere,, stated that on October 31, 1914, she' was in Stratford, and on, the afternoon of that day cycled home to Ngaere. From Stratford the road was mostly down hill. There was .a rather strong wind' blowing from the south. She knew the level crossing at Ngaere, and remembered approaching it about 4 o’clock on this particular afternoon. She turned to her left to go over the crossings and up to this time had not heard a train. It was not until she was actually oa the crossing that she saw the train* and then it was uncomfortably near., She did not hear any whistle. On the Ngaere. side of the crossing she passed a man riding a bicycle. He was just coming into the bend close to the crossing, but she did not say, anything to him. She felt that the man; and train would collide, and she went back. The train was pulling up at this time, and &ho saw a man lying on the other side of the crossing. The driver said, “Didn’t you hear the whistle?” and she said “No” He then said “I’m sure I blew it.” Shortly before she passed . the crossing a motor-cyclist went by her. She believed that some of the bank at the crossing had been cut away since the accident. She frequently cycled from Ngaere to Stratford, and the.effect of the bank at the crossing was to obstruct the view of the trains. To Mr. Herdman:. She was certain, some of the bank had been cut away, orobably within two or three months of the time of the accident. She did not think the dust that would he raised by tbo motor-cycle would bq sufficient to interfere with Mr. DoegV view. Lewis Penfcerthy, butcher, of Stratford, stated that on the date in question he was on the main road close alongside the railway crossing. Ho saw the train, but it did not whistle. It was travelling from 25 to 30 miles nn hour. There was a strong wind blowing at tho time, and he did notnotice the approach of train until it was almost abreast of him. To Mr. Herdman: The train might have whistled, but ho did not think so. This concluded the case for the suppliant. APPLICATION FOR, NON-SHIT FAILS. The Hon. Mr. Herdman, for the Crown, submitted that the plaintiff hod failed to prove any negligence on the part of the Crown or any act of negligence which contributed to the accident to Mr. Doeg and for this reason, he asked that he be non-suited. On the evidence that had been called there was no proof to support the allegations of negligence set out in the statement of claim. Doeg himself had no recollection of what happened, the evidence of the doctor did riot prove negligence of any kind, the evidence of Mrs, Tnieloyo showed that Doeg was riding on his wrong side of the road and she could not say whether tho whistle sounded or not, and the evidence of Mr. Robinson related to the condition of the crossing at the present time and not at the time of the accident. Mr.- Johnstone submitted that there was clear evidence to show that tho case should go before the jury. There was evidence as to the crossing itself, and also, he contended, that effective and efficient warning was not given of tho approach of the goods train. His Honour said he did not think it would be right for him to stop the caso at present. He thought it should go on. ■ THE DEFENCE. The Hon. Mr. Herdman briefly addressed the jury on behalf of the Crown and proceeded to call evidence. A. C. Koch, District En&neec of

Railways, stationed at Wanganui, stated that he went over the crossing about two days before the accident happened, and again on November 2b. The conditions at that time were very much similar to what they wore at the present. To Mr. Johnstone: Any man approaching the crossing, provided ho used ordinary care, should not meet with an accident.

Thomas Henry Oeraghty, Inspector of Permanent Way, stationed at tJtratford, stated that in tho course of his duties ho inspected tho crossing once a fortnight, lie had heard one of tho witnesses say that the hank had been interfered with. This was not so. At tho time of tho accident the road was in good order. There was no loose metal on the road at that time and it was not true that the rails were protruding above the surface of the road. He had never received any complaint about the condition of tho crossing. Samuel Francis Bennett, enginedriver, residing at Hawera, stated that on the date in question he was in charge of the goods train from Stratford to Hawera. He knew the line well. On the day of the accident ho whistled before he reached tho crossing —about 300 yards away. He was on the right of the engine approaching the crossing and saw two men on one motor-cycle travelling very fast in tho same direction. Ho took it they were racing him for tho crossing and therefore gave one loud, long whistle; bo also took the precaution to steady the train by applying the air brakes. Tho fireman was keeping tho look-out on the other side of the engine. So far as the collision was concerned, when he got to the crossing the fireman sang out and he saw Doeg thrown out on to the road on his side of the engine. He applied the brakes hard and pulled the train, up pract.cally in its own length. 'With the fireman he went hack and they picked Doeg up. Doeg must have been half-way over the crossing at the time the engine struck him. He was travelling at trom 15 to 20 miles an hour anti his regulation allowed him to travel up to 25 miles. To Mr. Johnstone: Tho fireman had nothing special to do when approaching the crossing except to keep a sharp look-out. Witness never saw Hr. Doeg until he was thrown out on his side ot the road. He did not see Mrs. Truelove approach or cross the crossing. Mr. Johnstone; 1 suppose you, wore interested in the motor-cycle ?—No. Air. Johnstone: Were not your sporting instincts aroused by the race for the crossing?—No;- if I had been a sportsman 1 would have given them a go for the crossing. Robert Houghton 'said ho was fireman on the goods train on tho date in question and remembered approaching the crossing. Mo was keeping- a close look-out and tiro driver blew a long, loud whistle. AVhen they wore approaching the crossing he saw Doeg coming to the turn. He was riding at a moderate speed. Witness did not call out to the driver; there was ample room for Doeg to stop. Witness put his band up to warn him not to come further and was positive Doeg saw him. Ho was certain he had ample room in which to pull up. He seemed to be going to stop and then to suddenly change his mind and try and get by in front of the engine. When he saw that Doeg was attempting to get by he sang out to the driver, who immediately applied the air brakes and pulled the train up. To Air. Johnstone: He did not think it necessary for him to tell the driver to sound the whistle when he saw Doeg. It had already been blown and Doeg was looking straight at tho engine. At this stage the court adjourned until this morning, and on the conclusion of the evidence the jury will visit the scene of the accident. TO-DAY’S EVIDENCE. Frank Coward, checsemaker, residing at Matapu, said he was in the vicinity of the accident. He was proceeding from Eltham to Stratford, in the same direction as Doeg. He was motor-cycling. As ho was proceeding down the hill in the direction of tho crossing he noticed two men on a motor-cycle. They passed him near the top of the hill. They were travelling very fast indeed. As they passed him they raised an unusual amount of dust. Witness got. off his motor-cycle just before he came to the crossing, when the accident had happened and the train stopped. He had not seen Doeg pass him, and the first he saw of him was .when he was tossed up in front of the engine. To his Honour: Tho volume of dust raised by tho motor-cycle prevented him from seeing Doeg, and what actually happened at the crossing. For the same reason Doeg’s view of the approaching train might have been interrupted. Witness himself did not know the train was approaching and he heard no whistle blown.

Continuing his evidence, Coward stated that ho saw three railway olficials at the scene of the accident—the en-gine-driver, fireman and guard. A lady also arrived a minute or two later. She was asked by one of the railway officials “Did you hear the whistle blow?” and witness understood her to say “Yes.” On being asked for her name and address she made some remark in excuse, he forgot what it was. To Mr. Johnstone; He did not see Mr. Doeg before he collided with the train. Witness was not travelling at a fast speed. William Foubister, acting-guard on the train at the time of the accident, said he remembered the whistle being Bounded nine or ten chains back from the crossing. The train was travelling at IS to 20 miles an hour. He saw two men on a motor-cycle on the right as the train -went along, and on the Eltham side he saw a lady on a hill. The first he saw of Doeg was when he was tossed out on the right side of the engine. The engine-driver asked Mrs. Truelove if she heard the train whistle and she replied that she did. The fireman then asked her for her name and address, which she refused to give. Mr. Johnstone: Wore you keeping any look-out?—Yes, on the right hand side. Looking on the left hand side he could not soe Doeg and he could not see the bank of earth. This concluded the case for tiio Crown. Addresses at some length were £hen given by counsel. In summing-up the Chief Justice said the issues to be decided were: (1) Is this a dangerous crossing; (2) did the Crown’s servants give sufficient, warn*ng; and (3) was the train travelling a reasonable speed. In connection .with the charge that the crossing was 'dangerous it was admitted that iho railway could not bo seen from some nsrts of the road. From other parts tio tunnel only could bo seen, such as xa the present case when tire train was imposed principally of low trucks. As to whether sufficient warning was given r not, the railway officials said they sounded the whistle for some time about 300 yards off. It was maintained hat it should have been blown louder and longer right down to the crossing, hut tlm" whole question was entirely for the iury to decide. His Hon-

our also dealt with the evidence relative to the speed of the train, and said that all this was to prove the neglect of the Crown, but it was not sufficient unless they were satisfied that the led to the accident. The circumstances in which,Doeg was placed had also to bo considered. He was in the position that a train was rushing down upon him, and the jury had to determine whether it was an act or negligence for him to attempt to got over the crossing. The matter of damages was also referred to. An adjournment was then made. Tho jury left by special train at 2 o’clock to View tho scene of tho accident, and tho court will assemble at 10 a.m. tomorrow to receive their verdict.