TRAIN AND CYCLIST.

Taranaki Daily News, 7 December 1915, Page 6

TRAIN AND CYCLIST.

SEQUEL TO COLLISION. CASE AGAINST THE RAILWAYS. CLAIM FOR £IOOO DAMAGES. A sequel to a collision between a. goods train and a cyclist on the railway level crossing on the Mountain Road, about a mile southward of Stratford, was a claim for damages, heard by the Chief Justice (Sir Robert Stout) at the Supreme Court, at New Plymouth, yesterday. The cyclist, William Percy Doeg, a piano-tuner, residing in New Plymouth, proceeded against the Crown for damages amounting to £IOOO, basing his claim on the effects following on the accident. On the afternoon of October 31st, 1914, Doeg was riding a bicycle across the level crossing and he was struck by a goods train, and he received injuries which eventually necessitated the amputation of his right leg. The suppliant was represented by Mr. A. H. Johnstone, and the Hon. A. L. Herdman (Attorney-General) and Mr. H. R. Billing (Crown Solicitor) appeared for the Crown. The following jury was empanelled:— Messrs. O. A. Clark, P. G. Olson, W. Coombes, T. Hawkins, J. T. Mannix, G, T. McKee, F. Ellorm, F. S. Butler, P. B. Sole, T. Furlong jr., J. Lynch and J. Hayden. Mr. Furlong was chosen foreman. Addressing the jury Mr. Johnstone said Doeg was in the habit of riding a bicycle around the district in carrying out his work. On the afternoon of October 31, Doeg was at Kltham and he set out on his bicycle for New Plymouth. He remembered being at Kltham, and later he had a perfect recollection of passing through Ngaere, but after that he had no memory of what happened until he regained consciousness in the Stratford Hospital. While riding across the level railway crossing over the Mountain Road about a mile southward of Stratford, Doeg was struck by a goods train, and he was rendered unconscious and received such injuries that, in spite of all medical skill, his right leg had to be amputated. It was claimed there was negligence on the part of the Railway Department, for at the level crossing where the accident occurred, there was a bank of earth which almost completely obscured the railway from the view of anyone approaching from the direction of Ngaere. • In some places persons could have no view at all, while at the best the view of the line was very slight. Further, counsel contended that it was the duty of the Crown to properly metal a level crossing on either side, but it would be claimed that this had not been done. Consequently when approaching the crossing Doeg was not able to keep to his left—his proper side —and had to go to the right, and so had the bank in front of him, obscuring the view. Further, it was contended that the train did not give effective warning of its approach, that no whistle was sounded (or if it was, it was not audible to Doeg), that no proper look-out was kept on the train, and that the train was travelling at too great a speed, Counsel then proceeded to outline the evidence which he would produce. EVIDENCE OF SUPPLIANT. AVilliam Percy Doeg, the suppliant, said that in the course of his business as a piano-tuner he was accustomed to travel considerably in the district. On the afternoon of October 31, 1014, he set out from Kltham to ride to New Plymouth on his bicycle, and he remembered passing through Ngaere, but. he remembered nothing after that until he "came to" in the Stratford Hospital. His Honor: Did you hear any train? Witness: No, your Honor. Continuing, witness said he was brought to the New Plymouth Hospital Vfter spending five days in the Stratford Hospital. He suffered from ,a fractured leg and other injuries, and, as a result, his right leg was amputated in January "last. He left hospital in February, and commenced work again in March, but he could no longer ride a bicycle. Witness said his approximate earnings before the accident were £5 a week, but since the accident Lis earnings had fallen off considerably, because he could not get about the district. He was away from his work for about twenty-one weeks, and consequently his loss of earnings amounted to over £lO5. Witness said ho was forty-seven years old. and his hearing was good. Witness said he knew the level crossing at which the accident occurred. Approaching it from the south there was a bank which obstructed the view of a train coming from the north. Cross-examined by the Attorney-Gen-eral, witness, said that since he had recovered he had been carrying on his work, but his earnings were only about half of what they were before the accident. If he obtained an artificial leg he would not be able to ride a bicycle. He did not know a train was in the habit of passing about the time of the accident. He was always very careful in approaching crossings, but he could not remember whether he looked out for trains or not on this occasion. He could not say whether he heard the train or whether he took any precautions, as his memory was a complete blank from the the time lie left Ngaere until he regained consciousness in hospital. On a previous occasion he saw a train approaching the crossing when he was a dozen yards away, and then he had time to stop and allow the train to pass. He knew that on both sides of the crossing there was the ordinary notice board, "Stop! Look out for the Engine." Dr. Blackley said that Doeg was admitted to the New Plymouth Hospital on November 5, 1914, and he was suffering from a fracture of the right thigh and other injuries. Subsequently the right leg was amputated. For at least a month or six weeks after he left the hospital Doeg was not in a fit state to work. Cross-examined by the Attorney-Gen-eral, witness said that since two previous accidents Doeg had been somewhat nervous. He had an apprehension that lie would meet with another accident. The Attorney-General: You were called in to see him, but you couldn't stop hiin from meeting with an accident? Witness: His wife called me in to see him. The Attorney-General: Is it not an extraordinary thing that a wife should consult you as to whether her husband should go out on his bicycle or not? Witness: She apprehended an accident. The Attorney-General: Did you advise him to go out? Witness: Yes. i "Well, I wish you had advised him to »t»y »theme," inmniked Mr. K«rdnutn. l

NO WHISTLE HEARD. E. C. Robinson, civil engineer, of Stratford, described at length and in detail the nature of the surroundings of the railway crossing. Mrs. Jessie Truelove, of Ngaere, said she was in Stratford on October 31, 1914, and in the afternoon she cycled home to Ngaere. There was a southerly wind blowing. The Attorney-General: Was it a New Plymouth wind or a Wellington wind? Witness: It was a Wellington wind. The Attorney-General: I'm afraid that is rather against me. Proceeding, witness said that when approaching the crossing where the accident occurred witne'ss turned on to it. Up to that time she had heard nothing, but when .she was on the crossing she saw a train "uncomfortably near." After she had gone over the crossing she saw a cyclist Approaching from the side opposite to her. Witness felt the man must collide with the train, and, turning round, she saw the train had pulled up and the man was lying on the other side of the crossing. A man got off the engine and asked witness, "Did you not hear the whistle?" When witness replied in the negative the man said, "1 am sure the whistle went," or, "I am sure I blew the whistle." Witness frequently went over this crossing. The bank there obscured a view of the train, She thought some portion of the bank had been cut away since the accident took place. To the Attorney-General: Slie waa sure some of the bank had been cut away. The whistle of the engine might have been blown, but she did not hear it, There was dust about, and she did not think there was sufficient dust to obscure Doeg's view. Lewis Penberthy, a butcher at Stratford, deposed to having seen the train approach the crossing, and he declared the train did not whistle. The train •was travelling fast; lie thought from "B to 30 miles an hour. He did not know of the presence of the train until it was almost abreast of him. To the Attorney-General: He was driving a young horse, and the animal would have "started" if the train whistle had sounded. The whistle may have gone, but he did not think it had. This closed the case for the suppliant, APPLICATION FOR NON-SUIT FAILS, The Attorney-General claimed that no negligence on the part of the Crown had been proved, and for that reason he asked that the suppliant should be nonsuited. No evidence had been given in support of the claims of negligence made in the statement of claim. Doeg had no recollection of what took place, the evidence of the doctor did not prove negligence of any kind, the evidence of Mrs. Truelove also showed that she was riding on the wrong side, and Doeg was also on his wrong side, and the evidence given by Robinson did not refer to the state of the crossing at the time of the accident. No act of negligence on the part of the Railway Department had been proved. Mr. .Johnstone submitted that there was clear evidence of negligence on the part of the Department. There was evidence that the crossing was dangerously situated, and that no proper warning of the approach of the train was given, whereas it was plain duty to give an effectual warning of the approach of the train. His Honor: I don't think it would be right for me to stop the case at present, I think it must go on. ENGINE DRIVER'S STORY. The Attorney-General briefly opened the case for the Crown. A. C. Koch, district engineer of railways, stationed at Wanganui, stated he went, over the crossing about two days before the accident happened, and the conditions at that time were very similar to what they were at the present time, Witness gave detailed evidence concerning the position and surroundings of the crossing. To Mr. Johnstone: The view of the funnel of an approaching engine was sufficient warning to anyone nearing the crossing. Thomas Henry Gereghty, inspector of permanent way', stationed at Stratford, said the bank at the crossing had not been interfered with since the accident. At the time of the accident the crossing was in good order. The rails did not protrude above the surface. Samuel Francis Bennett, the engine driver of the train concerned in the accident, said he knew the line between Stratford and Hawera perfectly well. He whistled before reaching the crossing on the day of the accident. He would then be about three hundred yards from the crossing, for it was an 'instruction that the whistle should be sounded at least three hundred yards from the crossing. He saw a motor cycle going the same way as the train towards the crossing, and be gave a loud and long whistle. He thought the cycle was trying to cross the crossing first, and so witness steadied the train. Just 'as the engine got on the crossing the fireman called out something, and witness pu' on all the brakes and the train stopped just clear of the road. The train was brought to a standstill in less than its own length. Witness went back after the train stopped and found Doeg on the Stratford side of the crossing. The train was travelling from 1") to 20 miles an hour, though the regulations allowed them to travel up to 25 miles an hour. To Mr. Johnstone: Witness did not see Doeg until the train collided with him. Mr. Johnstone: I suppose you were interested in the motor cycle? Witness: Oh, no. Mr. Johnstone: Were not your sporting instincts aroused by the race for the crossing? Witness: If I had been a sportsman I would have given the motor cycle a "go" for it, and then we might have had a double smash. WHAT THE FIREMAN SAW. Robert Houghton, the fireman on the train, said he was keeping a keen lookout approaching the crossing in question. He could see everything that came into view as the train went along. A long, loud whistle was sounded a considerable time before the crossing was reached. When the train was approaching the crossing s-itness saw Doeg not far away. Doeg was ifdlng a bicycle at a moderate speed, and had room to stop. Witness held up his hand to warn Doeg, and witness was positive that Doeg saw him. As soon as witness saw Doeg was attempting to cross the line he called wit to the engine driver to stop the {rain. He thought the train was travelling from 18 to 20 miles an hour. To Mr. Johnstone: He did not think it was necessary to warn Doeg because the whistle had already been blown, and, further, Doeg was looking straight at the engine. At 5.30 p.m. the Court adjourned until to-day at 10 a.m. On the conclusion of the evidence to-day the jury will visit the scene of the accident, and the ease 'will be cenoluded te-mwrrow.