SUPREME COURT.

Taranaki Daily News, 6 September 1916, Page 6

SUPREME COURT.

QIAIfTERLY SESSIONS. The quarterly sessions of the Supreme Court in New Plymouth were opened yesterday. His Honor Mr. Justice Edwards presiding. A MOTOR-CAR ACCIDENT Hilda Simons claimed £5Ol Jamagos fiom the Taranaki County Council for personal injuries received in a motorear accident by ilia ear falling over tlie embankment on a road Within the Taranaki County Council's jurisdiction. Mi. A. 11. Johnstone appeared for tlie plaintiff, and Mr. M. Myers, of Wellington, appeared for defendant Council. The following jury was empanelled: Messrs. J. I-lellyer, K. C. Webster, S. Waller, \Y, G, .Douglas, Roy Parkin, Jas Levin, jnr.. R I'opperell, L. W. Richards, D. Gillespie, jnr. L. A. Marsh/ Henry Putt, Horace V. Griffiths Mr. Peppereil was chosen foreman. On tlie application of Mr livers all witnesses were ordered out of Court. Mr. Johnstone, in outlining his case, said that the claim arose out of a.motor accident which happened on Mountain road 011 February 27, between Tariki and Inglewood. Just beyond where Norfolk road intersects, about three and a-half miles from Inglewood, there was an undulation which Council thought they would remove by cutting down the hilis and putting the spoil into the depression. An embankment about eight chains in length v. : as formed in the depression, and a more or less level road, but it bad the appearance of a very long elongated Hough. Embankment at point of entrance was about 10 feet wide,, but at tbe middle it tapered to about 8 feet, and there it was also about 10 feet high. It was built uj like a rubble wall, only there was no rubble, and the surface was in a rough unfinished state. To the right of the embankment was the original road, which wao spread over with heaps of earth. On the day in question Mr. Simons was driving his daughter jnd other members of bis family to Tariki. He was driving carefully over the embankment, and bad gone about four chains, when tlie car skidded. Mr. Simons intended to unload bis passengers, and Miss Simons opened the door of tlie ear preparatory to descending. But before she could step down the earth under the car gave way and tlie car turned turtle and rolled down tbe bank. Miss Simons had a leg broken 1 and suffered other serious injuries. Mr. Johnstone said that a question the jury ivould be asked to decide was whether the embankment was in a lit state to carry tbe traffic that the Council might reasonably expect to go over it. He would prove that the ground was treacherous and there was no reason, why the track should not have been wider. There was practically only one foot of a margin on each side of the car. There were 110 warning-boards. The tilling was a ''green" one, steeply packed up in a slipshod manner, ami lie submitted there was negligence 011 part of tbe Council. Plaintiff asked for special expenses £llO 19s. and the balance of the claim as general damages. Hilda Simons, the plaintiff, in evidence said that as the car approached the embankment her father, who was driving, changed the gears. The surface of the embankment was very rough, and the car jolted considerably. They bad got about half way across the embankment when Mr. Simons stopped the car. Witness stepped out, and the earth immediately gave way with her. and the ear tiien rolled over her. Witness's right thigh was broken and her bad; was injured. She wai removed to a private hospital in Inglewood where she remained three months. Her right leg was now an inch shorter than the left one. Car appeared to be quite 011 tbe level when witness got out. Accounts produced were for expenses'rendered necessary by the accident, and had been paid. By Mr. Myers:—Witness was 22 years of age. Her lather bad paid the bulk of the account. Had been over the old road previously, but not over the filling. Did not see that the old road was open. Had learned to drive a car before the accident. The ear was the first her father owned. He had driven other cars. Witness had not driven with him in any other car than the Hupmobile. Witness stepped out on the very edge of the filling which gave way. Car was not quite on the edge of tlie road, which wias very marrow. Could not notice that the car was going off the track. When she saw tlie place remarked to her father that it was dangerous. Could not see tlie danger until ear was on to the filling. Car was going at the rate of five or six miles an hour. It was not safe to back off the filling. She noticed marks where other traffic had been going along the road. Thomas V. Simons, sawmiller, Carrington road, said his car (a Hupmobile) weighted about 28001bs, and its width of track was oft lin. He was driving his family to Tariki on the date mentioned. Had not seen the cutting or embankment before. After passing through the cutting the cai immediately entered on to the filling, which was about seven or eight chains is length. It was fairly wide at each end, and very narrow in the centre. Slowed-down the car and t put in into tbe second gear, so that he could have better control. The speed ! was not more than six or seven miles 1 1111 hour. There was a sprinkling of metal 011 the filling, tbe surface of which 1 was pretty much cut up and was very 1 rough. This made it very difficult to 1 keep tbe ear in the centre of the track. f Got about half way across the filling 1 when he came to a place that had been I much chopped up, and the car swung. I Found the front wheel on the loft slip--1 ping and immediately put on the brakes 1 and stopped the car to allow the pasI sengers to alight. Car was upright then, I and witness never dreamed that It would roll over. Plaintiff stepped out and slip--1 ped down the bank, 1 and the car rolled right over her. The car took almost one complete turn. Thought his dsuglvtfit had been killed when witness picked her ; up; she was very much knocked about. Had no warning that thn filling was dangerous. Loads of earth haft -been de--1 posited Oft the old road to the light. Witness was at the scene on ilia fallowing Tuesday arid, saw a light motor lorry enter on to the filling at the north--1 em end. When about Jfalf-way asms the lorry got a faw itwhes from the wheel-track, on the right side of the road. The driver jut the torry on the , lock and it immediately want over the embankment on the other side, though it did not go right to the tootttflti. Considered ihi» car capsized through ihe earth crumbling away under the Avh«els, By Mr. Myers j—Took ..particular notice of tils lorry, At that time Considered his ffWideiTt was duo to Ctfilitcil'-s 1 negligence. Only passed tho tiffis ©f day with the lorry driven. 'Did not (Jfirtv the surfaceman's attention to the toeidsftt. S«ara that the lorry aftelWda gtti ever safely. Witness's \ih6t th# . Ma&i, ytu Hi

Did not know that both before and after tlie accident hundreds of ears had passed over the road. .Considered lie could probably have crossed in safety if the surface bad been in good order Xo driver could be sure of getting over with the road in its state llien. His ear was Uptight in Huwera and was registered 011 •February 17. A v man from Unworn taught him to drive the car, Ijut witness had had experience of other cars. Was not looking down .when changing gears which he did just as the ear entered 011 to the filiing. The old road looked frightfully rough, loads of eart.:i having been tipped out without any levelling. There was a great deal oF traffic on the road generally. It was not an easy matter v to back of! the tilling which was too narrow and soft. Remembered two men with motor cars coming along the road after the accident. They were Mr. Bobinson, from Stratford, and Mrs. Burgess's driver. Did not see a man anmed Ladbrooke there. Was in the car when it capsized. Did not look at his car's wheelmarks. Had not been examined as to his capacity for driving a. car. Did not suggest that the road should be fenced. The latter was very steep, but it was easier, he thought, 011 the Mountain side of the road than on tlie other. I

Re-examined by Mr. Johnstone 1 :—Had driven other cars before he bought the Hupmobile, and bad not had any accident. Ernest Crellin Robinson, civil engineer in practice at Stratford, said lie bad had 10 years' experience, and was now engineei to the Whangamomona County Council. Was consulting engineer to a number of local bodies in that district. On February 29 examined the embankment. Made a plan (produced) of the locality. He described tlie nature of the work and the method of construction. After the filling had been constructed to a width of Bft andjirought up to grade level traffic was diverted on to it, and this caused the filling to widen out. Had measured the width of the filling at various points beside that where tiie accident occurred. It was not move than Sft wide there The surface, which was lightly metalled, was rough and soft, and liable to become rutted. There were two well-defined wheel tracks, but they were bumpy. This would have a tendency to make a ear jump and possibly get out of the line of the nits. It would be difficult for a ear to keep au absolutely straight track. Assuming that the car had kept to the middle of the filling, in a ease such as this whore the filling was "green," there was an element of risks, which would be increased if the car were not in the centre. Did not consider the margin allowed for travelling was a safe one on that road. The point where the car overturned was about Oft above the original road. Tlie side slopes of the filling were considerably steeper than if She earth had been allowed to take its natural slope; they varied from 41 degrees-to 45 degrees. With the kind of material used it was not safe to have them steeper thau 34 to 3S degrees? or a batter of 1% to 1 or l ] /t to whereas neat the scene of the accident the batter was 1 to 1. 'Die filling could have easily been widened on the eastern side towards the iailway reserve. The sides of the filling appeared to have been packed. When he made his examination on February 29 the old road on the western side was in a boggy condition, its surfacc/being soft earth and mud. lie snw a motor lorrj approach the filling from the north, and out of ejiriosity he watched it attempt to negotiate the road. After going o\er some distance it ran partially overUhe eastern side and hung there. l)i(l not know bow ; t was got back. Considered the filling should not have been less than 14ft wide. By Mr. Myers:—Thought tbe Council should have made a temporary road for traffic in this instance, though it would cost a considerable sum. Ground between tlie eastern bank of the filling and the railway reserve was swampy in places. At tlie present time the road was a one. The tilling bad not been made wide enough, and its danger was augmented by tbe ruts, which were eight or nine inches wide. The road was now wider, but this was probably due to the earth's tendency to find its own slope. There was a marked subsidence on the surface in various places. Even now the batters were not 1 1 /, to 1. Charles 1'". Dowsett, engineer to the Clifton County Council, and in practice at Waitara, said he had 2.) years' experience, 13 of which he had spent with the .Council, Examined the filling complained of on March !). Measured its width in six places, and it varied from 7ft. to 9ft., o'r an average of 7ft. lOin. Where the cSr went over the width was 7ft. 2in. There was a small coating of metal 011 the surface, which was very uneven and rough, and this would have the effect of making a car swerve. There was not a safe margin on each side of the track. Tbe bank was faultily constructed, and in his opinion part. of it had been hand-packed. Also took six measurements of the batter, and at the point of the accident it was 42 1 /. degrees. The bank was much steeper than earth should be at the angle of repose. He considered the filling should have been 12ft. wide. Did not think it safe for traffic on account of its width and method of construction. ■By Mr. Myers: It mostly 011 the eastern side that lie thought the bank was hand-packed. It was built like a rubble wall, and full of interstices which would allow the earth to crumble. Had the material been tipped the larger lumps would have rolled away. They could not remain perpendicular if they had not been packed. Workmen were 011 the road, but were not increasing its Width, When he inspected it. Did not consider the road finished by any means. Had it been properly constructed the •ruts would not have been there. The road needed consolidating before metal had been put on, Francis M. Grayling, contractor, of Sew Plymouth, deposed that he was supervising work for the Eltham County Council early in the year. Had to travel frequently betweeh Eltham and New (Plymouth: went by motor-car. Went to Patea and back Oh February 20, when toad was in a very bad and uneven state, making driving difficult and causing the car to have a tendency to swing. On another date he had made pasengers alight <Sh fcocftunt of the dangSMis Stato of the ro'ad. Had been driving a oar for itmt years. For weeks the toad Was dangwoua at any time* It «tts too narrow for an unevenlysurfaced rofcd. Had eefeti a car in trouble oil the road, it feeing half-way over the bank, and he had to assist its driver. This was well out of the filling. Planks had tb he obtained to lever the car on; to the road again* Ths battel" soeinod to bfe '4 very steep ens. By Sir, Mytsrs: Remembered picking up Missal's BfoWh afld Morton, members of the defendant Council, At Eltham and driving tlifoi to Inglewood. This was b#foi'6 the accident, Did not remember Sf/itiplaining to them about the 'btid state, of the road, ft Wis installed in jil&cM.! Alexander W. Reid, Of Stratford, said, that h* t guaww 'atotoiftm?. sicl, 1

remembered driving from Stratford to Inglewood on February 27. '' Motored oier the filling, but he certainly would not have done so luul lie known its nature before be got on to it, but having started lie bad to go on. He got over all right, bill considered himself very lucky, as be could feel the road giving way all tile time. On the return journey he again went over the (illing. Noticed a car at tbe bottom. Witness' car Lad only a 4ft. track, so he was able to avoid tbe slip where Simons' ear had gone. over. Had to- put bis ear 011 the second geai and drive slowly all tbe time. Had beiyj driving ears for fourteen years. Considered, as an old moto'ist, that tbe filling was absolutely dangerous.

Frederick Norcross, motor mechanic and garage proprietor, Stratford, gale evidence that he went to Inglewood from Stratford ,011 February 27. The .state of the filling that day was very bad. It was narrow, and very rough and bumpy. Witness was driving u small Swift car, and found it very difficult to drive over the filling, part of the sides of which had sunk in and broken away. Had to drive very slowly. The driver, of a heavy car on that road would have to go dead .slow or go over, as the roughness would cause the car to zig-zag. About two days later he .vas oyer the road again, and lie saw a light motor lorry go over the hank. On the old road there were heaps of earth freshly tipped out and half spread, and he certainly would not have taken a motor car over that route. By Air. .Myers: Witness drove Messrs Simons and Rpbinson down to the filling on February 29. Had Mr. Simons' car and had 110 difficulty with it. Witness took the car over the filling both ways. One mudguard was off, and he was thus able to see the wheels and keep them on the inside of the rut on the dangerous side. William Henry Robinson, draper, of Stratford, said he owned a small Swift car, which he drove to New Plymouth on Sunday, February 27. Had just got on to the tilling when lie saw there had been an accident. Gave .what assistance he could. Inspected Mr Simons' car afterwards and found that the gear was in neutral. The road was not lit for a motor-car, or any kind of traffic, unless it was taken very slowly. The old road was in a very rough condition and was not fit for a motor-car. Had been driving for over two years. Traffic should not have been allowed over the filling. Mr. Johnstone handed in correspondence that had passed between him and the Council, and this closed the case for the plaintiff. Mr. M. Myers submitted that there 1 was 110 evidence of such misfeasance as would entitlo the plaintiff to succeed. The Council, in pursuance of its powers, had to carry out the .vork'of cutting down the two ends of the undulation 011 this road and to fill up the depression. The real burden of the plaintiff's complaint seemed.to be that tlie road was too narrow. He (counsel) did not know of anything that compelled a local body to make roads of a certain might be suggested that the Council should have filled up the ruts. Theoretically, perhaps, they should have done so, but legally their omission to do so was non-feasance; not mis-feasunce. If his Honor held that it was not a case of non-feasance, he_ (counsel) would proceed with his ease His Honoi held that all the evidence had been to show that the case was one of misfeasance, and he would ivant rebutting evidence placed before the jury. At 4.50 p.m. the Court adjourned until 10 o'clock this morning.