LAW REPORTS

Dominion, Volume 7, Issue 2191, 2 July 1914, Page 11

LAW REPORTS

COUBT 0F APML

LEVEL CROSSING FATAIJ'Ti.',

MOTION FOR A. NONSI'IT.

A motion, for a n4nsu.it- came before • the Court of Appeal yesterday in connection with fl- ioyel-crossing case, in which a jury lmd awarded £2000 damages against t-h't Grown. Tlie beitch was occupied ?.y the Chief Justice (Sir Robert Stout), Mr Ju.tice Dcnnistcn, 3lr. Justice IMwards, Me. Juslice Cooper, and i[r. Justice Strmgei--Ou April lti, 101 a, Edward \Vilha»i Broad, while leaving • -.Martou Oil a motor-cycle, -collided with a trnl-ti at alevel, crossing -«a WeJHng.fcp.-ri Road, andwas killed. As a result of the fatality, Catherine Lena .Bread-, wiaow of tho deceased, proceeded against His .Majesty the King to -recover tho s\im of £?QOO as damages for the death -of lier husband, whose death sho alleged was caused by the neglrgenco of the Railway Department. The actiou heard at Wanganui in July. but tho jury disagreed, and a new trial was ordered. _ This second trial was taken before His Honour the Chief Justice and a common jury of 12 on December 3 and 4, 1913. There was evidence to the effect that deceased's view of the approaching train was obstructed, that be (Broad) did not hear tile whistle, that the rails aiid sleepers of : tho cross-, ing were some- incho'a ab'ovo the.- roadbed, and that the invmediato causo of tho accident was. tk&t the (Broad) struck the rails. • Ou the part .of t'he Crown it was pjoved that- tho whistle was duly sounded. Tho jttry,. after inspecting the scene of the accident, returned' a tfns ; hlsious verdict for the full amtiimt, pf damages claimed. The issues .submitted to, tne jury w'efo in the following terms Was - the railway-crossing m cen--structed as .not Warrant the train being run at a high rate of speed across the crossing?—. Ye?-. Was the tn'a-iii a high r-fite of speed at_ tho erWsi!i|i , ?"¥es. - • Did this const-ructiou and the train so running at a high rate of. speed constitute negljgenc.e'f—Yes. Did this negligence cause' the accident?—\es, on tk> part of the Department.

/Were the pMper- warning . signals given of th<? approach: of ths* trdh? If not, was the abs.en.ee <if such signals ueglmence?—Yes.' ' $1.6 . regAllatioi* ■"'liistlo was eottffdedj. b ; ii.t ftl o:tir Qp.infeii this: is insuffipiettfr at the crossing. Did this abseniie of i&ignjils load to the collision r-*-|to, so: far as regulation signals aro coaeernA _ What was condition of the crossing so far as raetatlisg and, the tails being (if any) above tho level of -tie road wore concerned, (a) oh the -met* ailed portion, ■of the load, ahi (bf Ort the unmotal!ed,<po£tibii 'or' the jossl fr -(a) Good- fo* M-'le&vity Jii d fe' gerous condi.ti.ofi. owing. & the-Gilds of .the sleepers', tfnjj rajfa. projecting above tho lovel of the road,. - Was .the keeping of the. •crossing iij its, then condition negligent?— Yea,.-'-Did tho con.di'fcion of the tossing .cause tho : Was tho clcceasefl: gijitty of flegligenco that led to tho cflllfsion-J-r-jSo, . . . . ."\Vliafc damages (if ally) is the petitioner ..entitled.'to- recover (a) - for-.fter--self, (b) for her children (b)'£6oo. -.. l 7 .■ ; -•' . Subsequently the 'Orow.ij' Sfilielor moved for a nonsuit or-for judgment ■for tho defendant .fflfe'slaft:s.ty ; ,:tho King) on tho giouuas. that ihere was no negligence' o'n the. part of tie ; Rafr ..way.Denartmefit,,, : b.u;t that, on tho"other $jMid ; » the'accident #Ss "due' to Btea'd'-s ~oVn ■n©gligews, I .siaib,Jjio' (Broad) did 'hot stop to .look, out'lor tiie eitgiiiio.,; thai ho was $ ■feejspaflgqr on the 'raiTWay* line, -and .that- as; sii&h tto.f.dn.ty wasowing to hint. Ih; the; alternative., the .Crown Solicitor' imWw'fdr'-a tteV j.riaj" ou tho following... .Mounds :H'l) That, the issues submitted, fry th& Gh-iof Jiis* tice were sliclx acoringlit fert'iHduend erroneous infcftSacfes of .fact; i%) that' tho issues stthaitfed. by the .Chief Ja*/ tico to'tho jury.'w-ew issues <jf mmi law and fact,, arid! amounted to # ■ misdirection to thejury; $;j that the ChiefJustice misditectetl: the jury ti.S to what; constituted eoritfiimtory neaiigcncKj' ■ arid (4) that the vetthß of Ihfr'jttry was against the weight of eyfdencev '' • These points. wem ienyovod to- th,e Court "of Appeal fair argument, a-iwt yesterday the Bh. J, n.. Salmondj. Jj.'Q.) appeared- In'. support of the motioft, to w'h-ich opptfsitioii was raised oil Mtalf'ol thft plaintiff (Mrs. Broad) by Mr. 0. B. OdllW, of Marton, with; TBi.oiri was associated |fr P. B. Broad., of Starton. Argument proceeded ih.rauehout the day, and had ao.t concluded "when the adjournment iVa-s. taifen; '