LAW REPORTS.

Dominion, Volume 7, Issue 1875, 8 October 1913, Page 5

LAW REPORTS.

COURT OF APPEAL. FLYING MOTOR & THE TRAIN. CRASH AT CROSSING. CLAIM FOR SEVERE INJURY. His Majesty the King was defendant in a case heard yesterday at the Appeal Court, tho plaintiff being Dudley Bruce Hill, sheepfarmer, of Fernhill, Hawke's Bay. On the Bench were Their Honours tho Chief Justice (Sir Robert Stout), Sir Joshua Williams, Mr. Justico Edwards, Mr. Justice Cooper, and Mr. Justice Chapman. On January 14 plaintiff waß motoring towards Auckland, and at tho Kaukapakapa crossing came into collision with a train from Te Haua to Helensville, tho result being that he sustained two fractured ribs, a fractured skull, a fractured jaw, the loss of several teeth, depression of the nasal bones, fracture of the bones of one foot, several severe cuts and bruises, and other injuries about the face and. body. In a case heard at the Auckland Supremo Court, before his Honour Mr. Justice Cooper, plaintiff had claimed £50 for medical attendance and hotel expenses at Helensville, £50 for the expenses of a visit to Tahiti ordered by his doctor, and £400 damage to his motor-car.

What the Jury Had Found. After the hearing the jury had found that there were not reasonably sufficient indications to give a stranger warning of the proximity of tho level crossing; that tho use of the crossing was more than ordinarily dangerous to a 6tranger; that the conditions surrounding tho approaches to the crossing constituted a danger to persons using tho highway with reasonable care; the notice-board was not in such a position as to give a stranger warning of the level crossing; that the lower portion of tho notice oil the western side of the crossing was obscured by bushes, and that the plaintiif was thereby misled; that plaintiff was exercising reasonable care; and that plaintiff sustained the full amount of damages claimed by reason of the accident. Reason for Appeal. Notice of motion, for a new trial had been moved on' the grounds that no issues should have been submitted to tho jury; that the issues submitted were such as might have induced erron'eous inferences of fact; that the case sljould have been withdrawn from tho jury, as applied for on behalf of defendant at tho trial; that the refusal of withdrawal was a misdirection on the part of the Judge; that the submission of the issues to tho jury with instruction to return answers to them was a misdirection; that the answers wero against tho weight of evidence; that tho findings were perverse; and that tho damages assessed were oxcossive. By consent, proceedings were removed to the Court of Appeal. Mr. J. R. Reed, K.C., with Mr. Murdoch, appeared tor the plaintiff, and the Solicitor-General (Mr. Salmond, K.C.), with Mr. Macassey, represented the Crown.

( Some Idea of t'no Smash. Tho Solicitor-General submitted that tho jury's findings wcro against £ie weight of evidence, more particularly with regard, to contributory negligence.. There was a doublo charge of negligence by plaintiff as to tho management of the tram and tho maintenance of the level crossing, but the former charge was abandoned, and suppliant was now relying exclusively on tho allegation that the crossing was peculiarly dangerous. Counsel denied that the Crown was under any obligation to see that Inhere was an uninterrupted view of any crossing or to give any warning to persons on the highway that they were approaching such. Even if the Crown were under such an obligation it had been fulfilled, and the accident was simply duo to the negligence of tho suppliant. Counuui then put in a number of photographs and other exhibits, one being a photograph of the locality showing the level crossing. Mr. Heed remarked that this was taken after the accident, and after the obscuring trees had been cut down and the boards altered.

Mr. Justice Cooper remarked that tho photographs put in at the trial by both sides had been misleading. The Solicitor-General wont on to state that tho motor-car charged the engine with such force as' to break some of the parts of the engine, tho car jumped into the air, and the plaintilf, his wife, and two other occupants were thrown high up, one to tho height of the telegraph wires. The engine was travelling at ten miles an hour. Mr. Justice Cooper: Tho motor-car must have been travelling at 20 miles an hour when it struck the engine. Mr. Reed.: It was just three seconds from tho time that the motorist saw' the- engine to tho time when his car struck it. Sir. Salmond submitted that three seconds was a'reasonable time in which to stop a car, as a oar travelling at 20 miles an hour could stop dead in 71 feet. This car had at least a hundred feet to go before it struck the engine, so it was either going at over 20 miles an hour or the brakes were not properly applied. Railway Not a Highway. Moreover a railway was; not a highway, and any person run down at a level crossing Was necessarily a trespasser. Mr. Justice Edwards: I am afraid that we have all crossed when a train has been within half a mile. Mr. Salmond: I don't say that there are no cases where the rule is not enforced, but the law is not a dead letter though we don't always prosecute. . Mr. Reed: They prosecute when they have secured this person by knocking him down. Mr. Salmond added that in New Zealand no railway crossed a highway. This was because a level crossing ceased to bo a highway and became a railway with a limited right to tho public to cross it. In fliis case the plaintiff crossed when the train was within half a mile without stopping to look. His excuse, was, "I was going so quickly that I could not stop," but the Crown's answer was: "That is your fault; you ought not to have been going so quickly in an unknown district." Sir. Justice Chapman remarked that on some roads motorists went at 60 miles an hour. Sir. Justice Cooper: Well, if he meets with an accident, he deserves it. Mr. Slacassey having quoted legal cases on behalf of tho Crown, the hearing was adjourned until 10.30 this morning. SAWMILLINC CASE. OPERATIONS OF' ASSOCIATION. The appeal affecting certain operations in North Island sawmilling, which was opened on Slonday at the Appeal Court, was concluded yesterday before His Honour the Chief Justico (Sir Robert Stout), Sir Joshua Williams, Sir. Justico Edwards, Mr. Justice Cooper, and Mr. Justice Chapman. Tho appellants were George James Goldfinch and Simon Athy (Goldfinch and Co.), Oliakune, sawmi'llcrs and timber merchants, and the respondents were the Rangitikei Sawmillors' Co-onerativo Association. Ltd,, a olaim by_

appellants for £1500 had boon struck out by liis Honour Mr. Justice Sim, on the ground that no cause of action was disclosed. The Appeal Court was asked to decide; (1) Is the Rangitikei Sawmillers' Association a trade union? (2) If so, is its registration under the Companies Act void? (3) If so, is the association thereby disabled by law from enforcing its counter-claim? (4) Goldfinch and Co., having sued the association as a duly incorporated company with limited liability, can they, in answer to the counter-claim, plead that the registration is i»id? The Hon. H. D. Sell, K.C., with whom was Mr. A. W. Gould (Ohakune), appeared for the appellants, and Mr. C. ]'. Skerrett, K.C., and Air. C. B. Morisoil, K.C., with whom was Mt. 11. M. "Watson, . the respondents. Mr. Morison, K.C., continuing his argument on behalf of the company, said that the real test was whether it was really a partnership or a trade union. The Chief Justice: Could this association bo brought under the Trade Union Act? Mr. Morison submitted not, because it was an agreement between partners as to their own business. There was not a single case in which a trading, company had l been held to bo a trade union. Dairy farmers entered into agreements for five years, and had the 'benefits of association just as the sawmillers did, ar.d there was no difference between the two. ' Both -were to enablo the products of the country to be. produced at a minimum of expense. It would bo impossible to got an export trade for the white pino trade without such organisation. The object of tho circular sent by the company asking members of the association not to trade with appellant was r.ot to enforce payment of debt, but was senti so as to prevent the sale of timber which would increase tho dispute. ' Tho Chief Justice: Is this not what is called in; America a 1 trust? If so, a trust has never been declared a trade union. The Hon. H. D. 8011, in reply, said this was tho first time that the Cs#irt had. been asked to say that the boycott could bo used. as a debt-collecting agency. The Chief Justice: It cannot be a boycott if the timber belongs to the company. Judgment was reserved 1 .