CLAIM FOR £5000

Timaru Herald, Volume CXXXIX, Issue 20103, 9 May 1935, Page 5

CLAIM FOR £SOOO

WIDOW SUES FOR DAMAGES ACCIDENT AT FAIRLIE The hearing was commenced in the Supreme Court yesterday of a case in which Mary Barton Amy Shaw, of Pairlie, seeks to recover from the chairman, councillors and inhabitants of the Mackenzie County £SOOO damages, arising out of an accident in which her husband, William George Shaw, was killed on November 6, 1934, while a passenger in a motor vehicle owned by defendant. His Honour, Mr Justice Johnston presided. Mr A. D. Mcßae appeared for plaintiff and defendant was represented by Messrs A. T. Donnelly and W. J. Sim (Christchurch). , The following special jury was empanelled: G. H. Andrews (foreman), W. Lawson, G. P. Timewell, G. A. Martin, D. J. Purdom. H. W. Lomas, J. Stevens. P. D. Laurie, L. G. Wood, G. T. Williams, G. E. Knowles, J. A. Norrie. Before the Court sat His Honour heard legal argument hi Chambers, after which the original claim was increased from £4280 to £SOOO. Statement of Claim, The statement of claim set out that plaintiff was the widow of William George Shaw and the mother of 10 children. Plaintiff claimed that on November 6. 1934, her husband was being conveyed in a motor-lorry, provided for the purpose by defendant, to his work at Cattle Valley, and that while travelling up a steep incline on the Mount Michael Road, the brakes of the lorry failed, as a result of which the lorry backed down the incline, got out of control, overturned, and fell on her husband, inflicting severe head injuries, from which he died. Plaintiff alleged that defendant was guilty of negligence, in that it operated the lorry (a) not being equipped with two independent brakes, a foot brake and a hand brake; (b) not being equipped with at least one retaining brake; (c) not being equipped with a foot brake of stopping ability in accordance -with the regulations; (d) not being equipped with a hand brake of stopping ability in accordance with the regulations; (e) not being equipped with a mirror or periscope to enable the driver to beware of traffic ap-, proaching on the right from behind; (f) not having all brake mechanisms, steering mechanisms, and axle spring attachments safely secured by some positive means; (g) not being in such condition as not to cause or to be likely to cause injury or damage to or endanger the safety of any person on the lorry or on any road. Plaintiff further claimed that her husband, at his death, had no estate other than an industrial policy for £57, and she and the seven youngest children were totally dependent upon him and the three eldest children were partially dependent. She contended that she and her children had suffered pecuniary loss as a result of her husband’s death. Judgment was asked for £4280 general damages, the costs of the action, and any further relief the Court thought fit. The Defence The statement of defence denied that plaintiff or her children had suffered damage through the accident. It also was denied that deceased suffered any accident through the negligence of the defendant or its duly authorised agents. It was admitted that on November 6, 1934, deceased was being conveyed in a motor lorry, provided for the purpose by the defendant, to his work at Cattle Valley, but it was denied that the lorry had backed down Mt. Michael owing to the brakes failing. As a further defence it was submitted that if the brakes of the lorry were in any way defective (which was denied), that was not the real or effective cause of the accident. The accident was due to the ruckstell axle jumping into neutral and leading to a loss of braking capacity, for which defendant and its servants were in no way blameworthy. Since the accident, the defendant had learned that the ruckstell axle had within it a possible latent defect which might have been the cause of the accident to the truck, but for which the defendant was in no way responsible. It was further stated that at all times during its ownership the defendant had taken all reasonable care to have the truck in a tit state to travel on the public highway, both as to brakes and all other appliances in any way belonging to or attached to the truck.

Plaintiff’s Evidence Plaintiff in evidence said that until 1920 her husband had owned a farm in the Mackenzie Country which he had sold for between £2OOO and £3OOO. He had then purchased property at Shirley and Bankside, losing all his capital in the latter venture, on account of the depression. For eight years before his death he had been engaged by the Mackenzie County Council. Apart from an insurance policy no means had been left to her. Six of the children were wholly dependent on her, four having situations. She was in receipt of a widow's pension amounting to £3 3s weekly. At the time of his death her husband was earning £3 12s a week, which was similar to his earnings for the last eight years. Evidence of Driver William Edward Struthers, the driver of the truck, said he was one of a gang of five men going from Fairlie to work at Cattle Valley. Deceased. James Breen and Charles Davis were sitting on the floor of the truck with their backs to the cab. The car proceeded up Mt. Michael in fourth gear. After a while the clutch pedal drums commenced to slip and he applied the foot and hand brakes, but they failed to hold the truck stationary. The engine was running all the time. He allowed the truck to run back slowly with the handbrake on, but then eased the brake and relied on the footbrake, continuing backwards for 180 feet when the truck gave a sudden jerk and he lost control of the footbrake. It was backing towards a gully so he swung it over towards a bank on the other side of the road. He then threw the truck on the other lock and it ran across towards the gully and capsized. McKinnon, who was in the cab with him, was first out of the cab and witness stopped the engine and turned off the petrol. McKinnon told witness that Shaw was hurt, so a message was sent to Fairlie. When the lorry was righted the handbrake was found to be jammed hard on. A decided skid mark was found behind the right-hand rear wheel, indicating that one wheel had gripped extra hard and that, in his opinion, had caused the lorry to capsize.

Cross-examined by Mr Sim, witness said that the Council’s drivers had complied with instructions from the engineer (Mr D. Jeune) that brakes should be tested every week.

To His Honour: The last record he had of the car being sent to a garage to have the brakes relined was on August 26, 1933. About a fortnight before the accident, he adjusted the brakes himself and they had been

satisfactory after that. During that fortnight, he had driven the truck over Mt. Michael every day and the brakes had given no trouble. Photographs of the scene of the accident, showing the grade of the road were explained by Havelock Williams, photographer.

Charles Fercival Wai Davis, an employee of the Mackenzie County Council, said that he had never had trouble with the brakes of the lorry while he was driving it, but the steering gear was not of the best. It did not answer when put hard on the lock, although it was all right on the road. Allan Murray McKinnon and James Breen gave evidence along similar lines concerning the accident. Brake Tests Made Constable A. Mclntosh described the scene of the accident and said that at the point on the hill where the lorry stopped he found slight brake marks. The distance from there to the scene of the accident was 98 yards, 78 yards of which showed no brake marks. About 20 yards from the point where the truck collapsed he found brake marks which extended for 12 yards. These were eight yards from the scene of the accident. Witness said later he had tested the brakes of the lorry. Travelling at 20 miles per hour the lorry was brought to a halt with the footbrake in 62ft. In another similar test the truck travelled 63ft before stopping. When the handbrake was applied at a speed of 20 miles per hour the lorry travelled 133 ft. lOin. before stopping. To Mr Donnelly: He thought the lorry was travelling “full out” at 20 miles per hour. Walter William Burgess, motor mechanic, of Fairlie, gave corroborative evidence and said that two days after the accident he had removed the right rear wheel, washed it out, and adjusted both brake bands and gears. To Mr Sim: He had found oil in the lining of the hand brake after the accident. It was possible that the oil had found its way there through the lorry lying on its side or through the differential leaking. Oil in the brake lining could cause the brake not to grip on the hill, and the driver. Struthers, could not be blamed for not knowing it was there. During his overhaul of the lorry, he had found that the brakes required a slight adjustment. That adjustment, had it been made before the accident might have had a bearing on whether the accident occurred or not. Hugh Mercer, motor mechanic, of Timaru, described tests made by him on November 12, after the truck had been overhauled. Travelling at 20 miles per hour, the truck pulled up in 46ft. 7in. with the footbrake applied and 71ft. 3in. with the hand brake applied. At a later date, with Burgess, he had inspected the ruckstell axle, but had found it in good order. Gordon Berry described a trip he made in the lorry on November 17 from Fairlie to Burke’s Pass. When two-thirds of the way up the Long Cutting the truck failed to pull, so he removed half of the load and turned round and came back to Burke’s Pass. The evidence was corroborated by J. E. P. Cameron, runholder, of Ben Ohau.

The Court then adjourned until 10 o’clock this morning.