UNLIGHT[?] [?]REE

North Otago Times, Volume CVII, Issue 17748, 10 March 1927, Page 3

UNLIGHT[?] [?]REE

A DANGEROUS OBSTRUCTION. YERDICT AGAINST BOROUC1I COUNC1L In the Magistrate's Gourt ycsterday Mr H. "SV. Bundle, S.M., delivered his reserved judgment on tlu* action brought against the Oamaru Borough Council by James Robcrt Clarkc who sought to rccover the sum of £30 18s 6d as expenses incurrcd, and loss of time involved, through injuries received when a car, driven by Clarke, c.ollided with a tree .near the intersection of Dee and Thames Streets on February 18. 1926. The statement of claim had allegcd negligence on Ihe part of the Rouncil in allowing the tree to remain unlighted at night. His Worsiiip, aftcr outlining the facts disclosed by the evidence, said that he had inspecled the lo-cality-and in his opinion the break in the line of trees for traffic going north 01* coming south required proper lighting. The Corporation. apart from the legal defence, alleged that plaintiff, if exercising reasonable care and skill. particulaidy as regarded speed, could and shculd have avoided the tree. He was unablc to find.proof of any unreasonable speed, nor could he find that plaintiff should have seen the tree in time to avoid it. He was unahi e to say, considering the night, that a reasonable raan shuold have piched up the. tree sooner. His Worship did not find contributory negligence on the part of the plaintiff. The plaintiff's statement of claim allcged that the acciaent occurred 011 February 19. The evidence showed clearly that it took place on February' 18. Defendant opposed leave to amend 011 the ground that the plaintiff was .asking to substilute a fresh cause of action. It was clear, said Mr Bundle. that an amcndment could not be allowed if it prejudiced rights which had accrued to the opposite party through the Statr.te of Limitations or any other source. The defendant said it had certain rights under section 353 of the Municipal Corporations Act, and that 110 amendment could be allowed to prejudice those rights, But the Gourt had already in exercise o: the powers contained in suhsee'!on 8 of the said section waiverl nor-cornpliance or insufficient c uuplinnce with the terms of sub-section 102 of section 353. That | vyas to say, the Court had waived ! cornpliance with the requirements in respect of notification of a cer- ! Lain set of facts, out of which the ; -"use of action arose. It wouhl he i i.omewbat ridiculous if the Court i waived cornpliance with giving no- ! lice and yet could not, in effect, ; amend the notice given. Had 110 I such leave been given he woultl | have had to decide whether an : amendment would -constitute a fresh cause of action. He allowed the amendment. The defendant claimed that the tree was lawfully in place in the road, that it was lighted sufficiently and that,'"even if the usual Iig'ht was ; not alight that was not suflicient to show negligence in failing to keep the lamp alight. The general rule of law was that the public was entitled to a free and unfettered use of the King's highway, but certain powers might ])e granted by statute to local bodies to do certain things in streets- within their jurisdiction. Section 171 of the Municipal Corproations Act, 1920; provided that the Council, as regarded streets undex- its control had power to "enclose and plant anj part of the street, provided that no erectious or enclosure made 1 should be such as would. in the opinion of the Council, be lilcely to impede ordinary trafiic." That section seemed to assume 1 that trees planted should be planted in an enclosure, but this practice was by no means followed in Oamaru or : elsewhere and the only form of en- ! closure was by way of single guards I for the protection of trees or disj tinctive marking for traffi.c pur- | poses.' | His M/orship said, with the abj sence of suflicient lighting and the absence of a warning guard, he was of opinion that the Council had failed to take steps which it could and should reasonably have taken to prevent danger. In the present case the tree was a dangerous obstruction if left unlighted. Surely the defendant Council in such case was under a clear duty to see that the lamp was kept lighted. Plaifttiff, in his Worship-'s opinion, had suffered damage owing to the negligence of the defendant corporation. He ffxed damages at £30 18s Od and gave judgment for that amount an.d costs. Defendant was allowed £2 2s costs on the motion for leave to waive cornpliance with section 353 Mtfnicipal Corporations Act. At the hearing Mr G. A. Pollock appeared for plaintiff and Mr P. C. Hjorring for defendant. On the application of Mr Hjorring security for appeal was fixed.