LEVEL-CROSSING SMASH

Sun (Auckland), Volume I, Issue 284, 21 February 1928, Page 13

LEVEL-CROSSING SMASH

ACTION FOR DAMAGES CLAIM AGAINST CROWN Whether the public purse was to supply money for something that had not been caused by a public servant, was said to be the main point at issue in the action for damages brought against the New Zealand Railways Department, n:% which was continued before Mr. Justice Blair in the Supreme Court this morning. Henry Rothery, contractor, of Glendowie, near St. Heliers (Mr. G. P. Finsought to recover a total of £379 7s 8d from the Railways Department (Mr. Meredith), for the damage done to his steam roller through a train crashing into it at a level crossing at Mount Albert on May 10 last year. The roller was being taken over the crossing when the two rear wheels caught on the rail, and could not be shifted. Although people ran up the line when the train was seen approaching, they could not attract the driver’s attention. It was contended that the rails were inches above the road, and that the crossing was in a bad state. Pot-holes were much in evidence. It was also asserted that the signalman did not see the roller, although it stood over 9ft high, and was in view of the signal-house, until he had signalled the train to come through.

“The main question,” said Mr. Meredith, when opening his case this morning, “is whether Mr. Rothery was to be recompensed out of the public purse for a loss which, I submit, was not caused by negligence on the part of any public servant.” He pointed out that the roller, which weighed eight tons, was left on the line at a suburban crossing, and that no steps were taken by the person in charge to notify the railway officials. That was a serious error of judgment, and it was fortunate that the accident was not more serious..

According to plaintiff, the train must have been pulled up, in 40ft —a train 158 yards long, weighing at least 250 tons, and travelling 25 to 30 miles an hour. It was difficult to understand such a suggestion being put forward. The driver of the train was one of the 12 specially selected men placed in charge of the night Limited, and it was suggested that this was the man who drove blithely into the roller without looking. The tablet porter had acted very pi'omptly in putting the signals to danger when he saw the roller. The driver acted instantly, putting on the brakes, and bringing the train aim- I to a standstill before the roller was reached, the engine being practically undamaged. At this stage Mr. Finlay asked for permission to amend his pleadings by adding an allegation of negligence against the Railways Department in leaving the track at the level crossingin an unsafe condition.

Objection to this was raised by Mr. Meredith, who pointed out that it was an entire change of case. His Honour reserved his decision on the point.

The state of the crossing at the f 'e of the accident was given by A liam T. Langbein, assistant engineer to the Railways Department, who denied that the rails were exposed to their full depth. The crossing was in very good condition. James H. Currie, enginedriver with 25 years’ experience, who was in charge of the train, said he applied the Westinghouse brake and the sand before he shut off steam. The effect was felt in three or four seconds. The home signal was clear when he applied the brakes, and just as he did so it went to danger. The engine was stopped almost at the moment of contact, and it pushed rather than struck the roller. He stopped the train in considerably less than its own length. "Witness admitted that the timetable given drivers could not be maintained if the official regulations were strictly adhered to.

The court adjourned until to-morrow morning to allow plaintiff to amend his defence in terms of Mr. Finlay’s application.