RESIDENT MAGISTRATES COURT.

Oamaru Mail, Volume IV, Issue 875, 4 February 1879, Page 2

RESIDENT MAGISTRATES COURT.

YESTERDAY. (Before T. W. Parker, Esq., K.M.) BREACH OF THE RAILWAY REGULATIONS. New Zealand Railways v. Short. The defendant in this case was charged with unlawfully crossing the railway line at the town belt on the 20th of January last, when the train was coming past the crossing. Benjamin Verdon, sworn: I am an engine-driver, N.Z. Railways. I recollect the 20th of January. I was on the express coming from Christchurch to Oamaru. We were nearing the town boundary. I was driving the engine. I had a fireman with me. His name is Robert Cornforth. I observed a baker's cart approaching at a very sharp pace. The cart was within 40 yards of us. I j immediately told the fireman to apply his brake. At the same time I reversed my engine, to check the speed. I found it impossible to stop the train. The driver of the cart took no notice of the whistle. As near as I can say the driver of the cart was within 25 yards of us. I could see a mail and a boy sitting on the cart. The engine came into collision with the cart. I could not swear who was driving the cart—whether it was the man or the boy. As neither appeared to be injured, the guard gave the signal "right," and we went on to the terminus. A special train was sent out to the scene of the accident, and a man was brought to the yard—the same man who is now defendant in this

case. Cross-examined by Mr. O'Meagher : I saw the cart about 25 yards off", and I whistled " breaks down" to the guard. (This whistle is given by two sharp whistles.) We were about 40 yards from the crossing when I first saw the cart. I blew the whistle about half a mile from the crossing. I took every precaution to prevent an accident. The driver of the cart crossed the north crossing. We had five carriages and a break-van on. Had the speed of the train not been cheeked we must have run into the horse. I saw the man and the boy getting up after the | accident. I have been driving on this j line since September last. I always blow the whistle when I see any obstructions on the line. My instructions are to sound the whistle within a reasonable distance from all crossings. Robert Cornforth, fireman to the last witness, was sworn and gave corroborative evidence, with the exception of the time when the whistle was blown. The last witness stated that he sounded the whistle first about half a mile from the crossing. Charles Heaton, sworn: I am a railway guard in the employment of the New Zealand Government. I recollect the 20th of last month. I was on the train from Christchurch to Oamaru. The ordinary signal for the crossing was given about half a minute before that of the danger signal. I applied the break as hard as it was possible to do so when I saw the horse and the boy. The break is on the east side of the van. There are side lights in the van. I did not feel any concussion further than that caused by the train slacking up. Inspector Thompson said that this was the case for the prosecution. Mr. O'Meagher argued that the evidence of the fireman was sufficient to prove that the ordinary whistle was not sounded, the only one being that of the danger signal to screw the break down. Mr. O'Meagher submitted that the act of crossing must be wilful to bring it within the wording of the Act, He would snbmit that there ought to be agate keeper at the Town Belt crossing, and °had the engine driver sounded his whistle loudly enough the accident would never have occurred.

James Reid, who was called as a witness for the defence, stated that. Jj.o did not hear any whistle except after leaving the Awamoka Junction. Cross-examined : I would not like to swear, but I am positive the whistle did not sound.

Andrew Meldrum, sworn: I am a baker. I was on the road on the 20th. I did not see the train coming. I did not hear the whistle. I was watching for the train. There is a difficulty in seeing the train from the road, until almost on the line. To Inspector Thompson : I thought it strange that there was no whistle. I remarked it to my son, who was with me on the cart. George Short, sworn, deposed : On the 20th of January I was driving Spence and Bee's bread cart. I was going towards the Town Belt crossing of the railway line. The road was heavily metalled. There were two boys in the cart with me. I did not hear the whistle, nor did I see the train approaching. I believe there was a printed notice at the crossing. I will not swear to it. When I first saw the train it was just opposite the horse's head. I could not turn the horse, so'l drove on, After this Ido not remember much about it. Cross-examined : I was travelling at a smart trot. To the Bench : I can read. The Bench said the defendant had travelled the road so much that he had got used to it. His Worship did not see that it was necessary for the officials to blow the whistle to warn people that the train was coming ; they were only obliged to blow it to clear obstructions oft the track. He thought that the defendant was guilty of gross neglect in not attending to the notices posted up for the purpose of warning them. Mr. O'Meagher raised a. point on the wording of the information, which set forth '•' crossing a level crossing. ' There was no evidence to prove that the crossing was a level one. The offence on which the prosecution was based was the act of crossing a level crossing. This had not been proved in any way, and his Worship could not convict on an unproven offence. It was the duty of the prosecution to have proved this, and they had not done so. Inspector Thompson submitted that the information in all respects came within the wording of the Act. His Worship reserved judgment.