TRAIN AND CYCLIST.

Taranaki Daily News, 8 December 1915, Page 3

TRAIN AND CYCLIST.

SEQUEL TO COLLISION. COURT CASE CONTINUED. THE VERDICT TO-DAY. At the Supreme Court at New Plymouth yesterday, before the Chief Justice (Sir Robert Stout), the case in which William Percy Doeg, a pianotuner, residing in New Plymouth, claims £IOOO damages from the Crown, -was continued.

On the afternoon of October 31st. 1914, Doeg was riding a bicycle across the level erosing on the Mountain Road, about a mile southward of Stratford, 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. 11. R. Billing (Crown Solicitor) appeared for the Crown.

The following comprised the jury:— Mesrs. G. A. Clark, P. G. Olson, W. Coombes, T. Hawkins, J. T. Mannix, 0. T. McKec. P. Ellerm, F. S. Butler, P. B. Sole, T. Furlong jr., J. Lynch and J. Hayden. Mr. Furlong was chosen foreman.

iFrank Coward, a cheesemaker at Matapu, said he remembered the accident to Doeg. Witness was in the vicinty of the scene of the accident, in the same direction a? Doeg. ' Witness was riding a motor bicycle. As he was approaching the crossing he passed two men on a motor cycle going very fast indeed. They raised more than the usual amount of dust. After passing the motor cycle \vitnes3 saw a man who had been struck by the train thrown in the air and he now knew the man was Doeg. The excessive dust raised had at the time prevented him from seeing everything that happened at the crossing, and undoubtedly the volume of dii9t prevented him from seeing Doeg approaching the crossing. His Honor: Are there any regulations in the county concerning the speed of motor cycles?

The Attorney-General: I don't know, sir. His Honor: I cannot speak of Taranaki, but about Wellington—even in the city— I often see motor cyclists going about at a great speed, and no one seems to take any notice. The Attorney-General: It is great wonder there are not more accidents.

His Honor: It is surprising there are not.

Continuing, witness said he did not see the train approaching, nor did he bear the engine whistle. Cross-examined by Mr. Johnstone, witness aaid he first saw Doeg thrown up in the air through colliding with the train.

William Fouvister, the acting-guard on the train concerned, said he remembered the engine whistling nine or ten chains back from the crossing, and the train ■was travelling from 15 to 20 miles an hour. He saw two men on a motor cycle on the road, but he saw nobody else on that side of tne roas. On the other, or far side, of the road witness saw a lady on a hioyclc. He first saw Doeg when Doeg was "tossed out" of the right side of the engine. The enginedriver asked Mrs. Truelove if she heard the train whistle, and she said "yes." To Mr. Johnstone: Witness was keeping a look-out on the right hand aide. Looking on the left he could not set Doeg and he could not see the bank of earth. Witness had heard all the eridence given in the case. This closed the case for the Crown.

ADDRESSES OP COUNSEL. Addressing the jury the Attorney-Gen-eral asked them to put aside the matter of sentiment. The Crown did not dispute that Doeg met with an accident, hut they did dispute that there was negligence on the part of the Crown. The jury also had to consider if Doeg had taken proper precautions on approaching the crossing. If the jury was satisfied there had been negligence on the part of the Crown, they had to he satisfied that that negligence contributed to Doeg's accident. If negligence was not an element in the case it must have been an accident, and therefore the .jury should find in favour of the Crown. The case for the suppliant had not proved negligence, but apart from this there was the uncontradicted evidence of the fireman, who was the only person who saw the actual collision. The fireman was positive that the whistle was blown, and he put up his hand to warn Doeg, and he was positive that Doeg had seen the warning. Doeg, being of a highly nervous disposition, probably lost his head, and took the risk of crossing the line in front of the train. If Doeg did this he was responsible for the unfortunate results. When Doeg saw the fireman warn him he either lost his head or took upon himself to try and get over the crossing. It was clear from the evidence that the engine had whistled in accordance with the regulations, which provided that the whistle had to be sounded at least three hundred yards from a crossing. Counsel went on to say that he did not purpose to go into the conditions of the crossing, as the jury would have an opportunity of inspecting it. It was not sufficient for suppliant's counsel to prove the conditions of the crossing were had, but he had to show that these conditions contributed to the accident. He contended that Doeg could have avoided the accident if lie had taken proper care. Mr. Herdman concluded by tracing the evidence produced by the suppliant, his remarks occupying about half an hour. Mr. Johnstone contended that he, having shown that the Crown was negligent, it was the duty of the Crown to prove that Doeg was" negligent. The Crown had to prove the contributory negligence, but the evidence adduced, he submitted, proved that the Crown was negligent. Crossings such as the one concerned were veritable death-traps, and without proving that this particular crossing was the worst one in New Zealand it had been shown that it was a dangerous cutting. It was a deceptive cutting; a tricky cutting. It was admitted all round that after passing over the Climie Road Hill all view of an approaching train was blocked out. It was only possible to get glimpses of an end view of the train but he submitted such a view was not such as would give an effective warning of the approach of a train. Until Doeg had got nearly on the train he did not see it and the persons on the train did not see him. The train was coming silently down-hill, and the only warning given was the regulation whistle. What matter was it that anyone was on the road, because the warning whistle had been given. The whistle was blown at least three hundred yards from the -crotsisg, wid hf lubmitted this waa »ot

an effective warning. There was undisputed evidence that no effective warning had been given. The four passengers on the road did not hear the whistle, and the only persona who appeared to

hear it were those on the train. 'J'he whistle was blown for the benefit of passengers on the road. In this case none of them heard it; it did not matter whether the persons on the train heard it or not. The evidence of the fireman was that he held up his hand to warn Doeg, but counsel said it was the fireman's bounden duty to have sprung at the whistle cord and pulled it to warn Doeg, who was going to probable death. He submitted there was no evidence of contributory negligence.

HIS HONOR'S REMARKS. In summing up, His Honor said the charge against the Crown was that they did something which an ordinary, reasonable man would not do. The plans showed that the crossing was at a difficult part of the road, and it was admitted the railway could not he seen from some parts of the road. All that could have been seen of the train coming down was probably the funnel of the engine, and as the train was proceeding silently the funnel was probably not observed. It was contended the whistle should have been blown more frequently and louder, but this question was one entirely for the jury. The jury must not give a mere sympathetic verdict, but must find that negligence had bee*n proved. If the jury thought travellers shoula receive a greater warning, then they should find against the Crown. In regard to the contention that the Crown left part of the crossing rough, the jury had to find how that contributed towards the accident, before they could lind against the' Crown in this respect. It was not necessary, however, for the suppliant to prove all his claims of negligence; if he proved one act of negligence it would he sufficient. It was further contended by the suppliant that the train was travelling at an excessive speed and gave no effective warning of its approach. The first question was whether the whistle was sounded at all or not, and there were several witnesses who said they did not hear a whistle. The train men held they did hear it. It was a matter for the jury to decide which of this evidence to believe. Rut Supposing the jury came to the conclusion that there was neglect by the Crown, they could not find against the Crown unless the neglect was responsible for the accident. The circumstances in which Boeg was placed had to be considered when considering whether he was guilty of negligence or not, and it had to be remembered that he might not do in his calmer moments what he had done then. It was similar to the plight of a man on a ship which was sinking. It was a question for the jury to say if it was negligent on the part of Doeg in trying to cross the crossing after he had been warned- by the fireman. Or it may have been an error of judgment, and that was not negligence. Could Doeg liave stopped his machine? It was a matter for the jury to consider what inference could be drawn from the circumstances. The Crown admitted the injuries, and the only other matter to be considered was the question of damages. The issues which the jury had to consider were —Was this crossing a dangerous one? and if they came to the conclusion that the crossing was dangerous, did the Crown give sufficient warning—not merely the warning they were bound to give by the by-laws—, and, further, was the train travelling at a speed which was proper? His Honor's remarks occupied less than half an hour. In the afternoon the jury visited the site of.the accident, making the journey by special train. The jury will assemble at the Courthouse at ten o'clock this morning to consider its verdict.