TAKING THE RISK

Waikato Times, Volume 125, Issue 20888, 21 August 1939, Page 6

TAKING THE RISK

ACCIDENTS ON TRACK RAILWAY NOT RESPONSIBLE CONTRACTOR'S CLAIM FAILS Railway tracks being private property, what rights have people to he on the line and what are the responsibilities of the Railway Department under such circumstances? These were matters argued at some length in the Supreme Court. Hamilton, today. by Mr Justice Blair and counsel during the hearing of the claim against the Crown for damages, the outcome of a collision between the limited express and a contractor’s motor truck. His Honour entered a non-suit against Francis MacQuibban, a contractor, of Gordonton Mr J. F. Strang who claimed £350 damages from the Crown (Mr 11. T. Gillies and Mr J. R. Fitz-Gerald . Costs were allowed respondent. The counter-claim by the Crown was abandoned with a right of revival should the case proceed to higher jurisdiction. The fact that the driver of suppliant's motor truck turned the vehicle on the railway track was considered by His Honour to be trespassing, but even if lie bad the department's authority he would be on the line at his own risk. Position Regarding Fatalities The main feature of the court's ruling was that even if a person had permission to he on the railway track he would still be responsible for guarding against damage. Level crossings came under a different category as they were part of a highway and not private ground. The position if the train had killed a man was also considered by His Honour. In such a case the driver of the train might he guilty of a crime but not a civil wrong. Crime did not enter into the case being considered by the Court. The legal argument developed at the close of the suppliant's case to-day, w'hen His Honour asked Mr Strang in what capacitav the contractor was on the railway line. Mr Strang said he considered that the contractor was a licensee. His Honour said it appeared on the evidence that the motor truck driver decided himself, to turn his vehicle by driving over the line. He had been told to reverse down the side of the line when going for a new load. If that were the position the driver would be a tmspasser on the line. Question of Acquiescence Mr Strang said the department had never objected to the practice of driving the vehicle on t-he line. It was a mistake made by a lot of people, said His Honour, to assume that one had a right to do a thing simply because the other party put up with it and raised no objection. Mr Strang submitted that even if his client were a trespasser the engine driver still had to exercise caution. It was a statutory duty of the engine driver to avoid obstruction on the line. Ilis Honour said that was for the safety of the passengers in the train, not for the preservation of the obstruction. If the driver were aware of the obstruction and deliberately crashed into it he would then be responsible. The risk that a contractor or any other person took on the private railway track was similar to the risk taken by a ringside patron at a wrestling match. If he were injured he could not make a claim, as he was aware of the risk before going to the bout. Mr Gillies said he had intended moving for a non-suit before the matter was raised by His Honour.