LAW REPORTS.

Dominion, Volume 7, Issue 1876, 9 October 1913, Page 11

LAW REPORTS.

COURT OF APPEAL. TRAIN & A MOTOR COLUSION. SEVERE INJURIES. ACTION FOR £1000 DAMAGES. Hearing was concluded at the Appeal Court yesterday in the caso Hill v. tho King. Tho caso had been opened on tho previous day beforo their Honours tho Chief Justice (Sir Robert Stout), Sir Joshua Williams,, Mr. Justico Edwards, Mr. Justice Cooper, and Mr. Justico Chapman. Tho plaintiff was. Dudley Bruce Hill, sheepfarmer, of Fern hill, Hawko's Bay. At tho Auckland Supreme Court, plaintiff had been awarded £1000 damages, tho circumstances being that his motor-car, containing himself, and wife, and two other occupants, 1 had come into collision with a train running from To Hana to Helensvillo at the level crossing at Kaukapakapa, on January 14. In tho smash plaintiff sustained two fractured ribs, a fractured skull, a fractured jaw, the loss of several teeth, depression of, tho nasal bones, fracture of the bones of ono foot, several severe cuts and. bruises, and other injuries about the face and body. Notico .of motion for a now trial had bees moved on various grounds, and by consent proceedings had been removed to tho Court of Anneal. 'Mr. J. R. Reed, K.C., with Mr. Murdoch, appeared for tho plaintiff, and tho Solicitor-General (Mr. Salmond, K.C.), with Mr. P. S. K. Macassey, Represented the Crown. "Only Three Seconds to Act." Mr. Reed, K.C., said tliat the Solici-tor-General had mentioned that there were somo 2000 railway crossings in New-Zealand, and that tho Railway Department could not be expected to alter them nil. Ho (Mr. Reed) did not suggest that alterations should be mdde in all cases, but in this case tho sary precaution would not havo cost the Department more than a fow shillings, as all that was necessary was to move tho notice board to some position where it'would bo seen. Ho held that tho Auckland jury had been quite justified in coming to tho conclusion that this was a dangerous crossing. Mr. Justico Cooper: They didn't go so far as that.

Sir. Rood went on to say that Mr. Hill had only had three seconds in which to act after seeing tho train, and seeing that an accident was inevitable it might well linve taken him one and a half seconds beforo lie gathered inis wits. Mr. Hill had toured with motorcars Jlor a considerable number of years, ancl had travelled through tho North Island extensively. He had a road book with liiin at tho time, and this gave no indication of !) crossing, though everywhere else ho had received ample notice of tlio crossings in tho ordinary manner observed- by tho Department. Mr. Justice Chapman: Where was ho going to? ■ Mr. Reed: Nowhere in particular— as far north as ho could. Mr. Reed proceeded to mention that it had' been argued by the other side that there ( wero many crossings moro dangerous than this, but; the difference was that, in other cases, there was notice of the crossing. This crossing was palpably a trap, and entirely distinct from all othors. As to tho driving at the time tho feeling of horror at imminent danger might well paralyso a man's mental powers, and it was quito conceivable that ho would lose his head and do nothing. Ono witness had stated at the trial that, once, when he was on horseback, he had got on to tliis crossing before receiving any intimation of its'presonce.

Judge Says Jury Were Right. Mr. Justice Cooper: If a motion had boon made to mo for a new trial on tho ground that tho findings were against tho weight of evidence, I should certainly have dismissed it. That is apart from -the question of contributory negligenca. There was a great deal of evidenco to show that it was n, dangerous c/ossing, and there was a considerable amount of evidenco to show that it was not, but no Court could have interfered with tho findings of a jury who had weighed tho respective valuo of tho opinions on both sides.' The Chiof Justico: What contributory negligence could bo alleged, if nothing could be seen ? , The Solicitor-General: My arguments wcro based on excessive speed, failuro to hear the train whistle, and plaintiff's omission to uso his brakes. Tho Chief Justico: Contributory negligence for not hearing? If a man does not hear something, that is not contributory negligence. Mr. Heed: I want to shdw that this particular crossing is a trap. _ Mr. Justice Cooper: The jury havo found all tint, They found that tho crossing was moro than ordinarily dangerous to a stranger. Crossings in General. Mr. Reed submitted as a niattor of law that the Department was bound to exercise the authority given to it by statute in regard to level crossings witli the highest degree of caVe, and was bound to prevent injury, to persons or property lawfully passing along tho highway. The Department had failed to exercise proper caro, and so beeamo .liable in damages for the consequences. Mr. Reed added that since the accident tho Motor Association had put up a notice. Mr. Justico Cooper remarked that for designing the notice board, "Stop! Look out for tho Engine!" an American had been paid 20,000 dollars. Features of This Crossing. Mr. Reed presented the following points of fact: That the rails were laid in a dip, and could not be seen; that tlicro was a high hedgo which obscured the line ; that tho lower portion of tho signboard on the western side was obscured by growth on' tho railway property; that there was a bend in tho road; that tho notice board on tho eastern side was entirely obscured: that there was a drop of 0110 in 22 right on to tho line; and that there was nothing noticeable of tho proximity of the railway or crossing until tho lino was reaehed. Mr. Murdoch, who followed, quoted authorities in support of Mr. Reed's contentions, and pointed out that though tho Public Works Act stated that, on lovel crossings, tho public right of passago ceased pro torn, yet it did not say that those who crosscd were trespassers or that tho Railway Department was relieved from liability In cases of accident. Mr. Justice Cooper: If your argument is correct, docs it not follow that this Court must issue an injunction against tho Railway Department to prevent them from running any more trains over this lino until this crossing is put right? The Driving Criticised. The Solicitor-General, in reply, said that lie waa reluctant to sny much more about tho case, as it had lasted so long already. The Chief Justico: It is very important and interesting. ' Mr. Saltnond then stated that tho cause of the accident was the recklessness of the suppliant himself. Ho (counsel) had never maintained that the'

| Crown was under no duty whatever as to level crossings; its duty was to guard the public ngajist dangers which the public could not guard themselves against by duo care. If the suppliant, instead of driving at a- high speed through an unknown country along a road which was on tho dip, had slowed down when ho could not seo what was in front of him tho accident would not havo happened. Judgment was reserved. CAUSE LIST. The "Observer"' case, Attorney-Gen-eral v. Gcddis and Blomtield, for alleged contempt of Court is to commence at 10.30 this morning, and this case, will bo followed by John Thomas Stembridgo v. Donald Even Morrison, a case on appeal from Auckland. Mr. J. R. Reed, K.C., asked leave to set down for hearing tho Auckland case of Ellacott v. Williams, remarking that he appeared for respondent, and that tho hearing would probably last a day. Tho proceedings wore not yet printed. Tho caso was accordingly placed on the list. Other cases yet to be heard aro Bloomfield v. Bloom field, fixed for Monday, which will be followed by Pukeweka Sawmills, Ltd., v. Taringamutu Totara, Sawmills, Ltd.; Adams v. Rutherford, caso removed from Christchurch, dato not fixed; Wilson v. Herries and others, a question of law affecting a Native, land matter; Hannah v. Brown and MDonald, caso removed; and an application for admission to the Bar, referred to the Full Court.