SUPREME COURT.
CONTINUATION OF QUARTERLY SESSIONS. TH", MOTOR-CAR CASE. MISS SIMONS SUCCEEDS. UNANIMOUS VERDICT. FOR FULL AMOUNT CLAIMED. The.quarterly sitting of the Supreme Court in New Plymouth was resinned yesterday under the presidency of his Honor Mr. Justice Edwards, when the hearing of the action of Hilda Simons versus Taranaki County Council, a claim for £5Ol damages, was proceeded with. Mr, A. H. Johnstone conducted the case for tile plantirt' and Mr. Myers (Wellington) represented the County Council. Mr. Myers said that his Honor -had ruled on Tuesday that there was evidence to answer. Mr. Johnstone had put the position quite fairly, and in a nutshell, to the jury. He had said that this road was unsafe for traffic, and that was the reason the accident occurred. If the jury were satisfied that the state of the road was responsible then they would be entitled to award reasonable and proper damages. But if they iound that the road was reasonably fit, then they could not find for the plaintiff. He was going to prove that the road was reasonably safe for traffic, and that under the circumstances the accident was due to the inexperience of the driver. He wanted the jury to understand that there, was r.o obligation imposed upon local bodies to make a perfectly formed road. All the law required was for a local body to make or repair a road in a reasonable manner for traffic, and "reasonably fit" meant reasonably fit for reasonably inexperienced drivers. He quoted the opinion of Mr. Justice Williams to the effect that if after hundreds of vehicles had been driven along a road in safety, and then an accident suddenly occurred, it was reasonable to suppose that the accident occurred through some fault of the vehicle or of the driver. It had not been disputed by plaintiff's counsel that hundreds of vehicles had been drifen over the road prior to February 27. It would be shown that the weather was fine for two or three weeks prior to the accident and that the road was in good order; also, that before and after the accident the road was used by hundreds of vehicles, including motor cars, and not an accident had occurred, except that to Mr. Simons. The latter had admitted that he had not had his car more than about ten days, and the inference was that he was an inexperienced driver, and thus the accident was caused. Prior to the alterations to the road by the Council there .was a deep dip at the place, and this was dangerous, and the County decided to level the road up and fill in the depression. It has been suggested by experts that the engineer should have made a deviation in a paddock near by. Of course the Council could have closed the road for the time being, but this would have caused indignation, and very properly this course was not adopted. The engineer responsible would give all particulars regarding the formation of the road, and would explain why he proceeded with the work as he did. Two experts had said the embankment had been hand-packed, and the value of their evidence would be guaged by the evidence of the men who did the work. On the eastern side (that on which the accident happened) there was no packing, but there was hand-packing on the other side. It would also be shown that the batter was, on February 27, l'/o and 1J to 1. Counsel submited that anyone going along a road should exercise proper care. The evidence for the defence would go to show that the state of the road was greatly exaggerated, and would call evidence to show how it was Mr. Simons went over the road; also that the road wn« Oft wide at the place of the accident, and that it was metalled for Bft wide. Mr. 'Simons' car had got out of the ruts, "and it went on for 20 feet and got on to the clay. Had he been a competent driver the accident would # not have occurred. It was not necessary for the jury* to find this in specific terms; it would be enough for his (counsel's' clients to find that the road was reasonably fit and safe for traffic.
Reginald Win. Fisher, late engineer to the Taranaki County Council, and now a lieutenant in the 20th Reinforcements, and a civil engineer of 20 years' experience, said that he had had considerable experience in road construction. He had five years in New Zealand and the rest in England and India. He had charge of the work in question on the Mountain road, and laid out the work. From a point of view of cost it was out of the question, and also unnecessary, to make a deviation through the adjacent property; it would have cost at least £»00, the length being between*27 and 30 chains, not ten chains as suggested by the witness Robinson. It would not have been feasible to carry the road further towards the railway as he had not got the material. Had to keep the lower Toad open, and could not have made a 14ft road. The filling was 9ft high, and with a batter of l'/a to 1, this slope plus the suggested width of 14ft would have made the width at the bottom of 41ft, thus burying the lower road The earth for the rilling was carted from the excavation of the cuttings at either end, and was tipped, the empty drays travelling back over the spoil as it was spread. The batter on the eastern side was 1% to 1. There was no hand-pack-ing on tliis side, the earth taking its natural slope. The western side was hand-packed, at a slope of 1 to 1, so as to keep the lower road open. The new road was nine feet wide, and the consolidation was pretty good and what could reasonably be expected. About four to six inches of metal was put on, and this was added to as occasion arose. The metalling was eight feet wide. Witness was a motor driver, and had driven frequently over the filling; had no trouble in going v over it. The new road had been much used during the three weeks prior to February 27. Beside the race traffic in that period there had been much other traffic. Had seen cars going over the road at a faster speed than was proper. Considered road quite fit and safe for traffic. Never had any complaint as to its unfitness. Broken metal was put on. Went over the ■work on February 26, when condition of the road was all right.' Tracks had been made by the traffic, about two to three inches deep and varying from six to eight inches in width. There were no holes in the tracks. The lower road was open on that date. Was down there again on the Monday after the accident and could not see any difference in the'state of the road. None of the metalled portion had broken away. If a car got off the metal the clay at the edge alight
let it down. If he had to do the work again he would construct it in precisely the same way. By Mr -lolmstone:—The filling was opened for traffic, two or three weeks before tlie accident. Did not consider any other schemes lor doing the work anil did not approach Mr. Trimble ro going on his laud. Road reserve was filift wide! Width of cuttings was v'ljft, and the clay lor the filling came from them. Did not consider there was not earth enough there to widen the road to 12 feet. Thought 9ft was sufficient width. 'Prepared plans for the work, which cost Ymch more than his estimate. No earth tiling has a uniform edge. Measured the width on the day after the accident, and found it 9ft at the point of the capsize. Could not say if the foreman had put in more earth there. Only took one measurement. He would not swear that there were no potholes on the road on Saturday. Had to renew the metal at times; a certain amount of it sunk into the road and caused potholes which were filled up with more metal. There was danger in crossing the road unless people were cautious. Did not put up warning boards, and did not consider road dangerous. Nobody had spoken to him about the narrowness of the filling. Had done other similar work in the country. It was an unnecessary waste of money to widen the filling on the eastern side. Louis C. Sladden, civil engineer, New Plymouth, said he had had 25 years' experience in Taranaki, and had some time ago had about seven years' in the Government service. Had lizard the methods adopted by previous witness on the filling in question, and did not think Fisher could have done otherwise. Witness would have carried out the work in a similar manner. Did not think there was enough clay in the locality to widen the filling on the railway side. Did not consider an engineer was taking an excessive risk with a i)ft road. By Mr. Johnstone: An engineer's first duty was always to consider the safety of the travelling public. Should think Mr. Robinson's measurements of the read were correct. If the width was only Bft then it was not a very sufe road. Was under the impression that there was not enough earth in the cuttings to widen the filling much more. Assuming that the surface was rough jhe would not say that a Aft width was safe, and he would have had the surface repaired. On a green filling it would probably require attention every day. Bernard Byrn, motor mechanic and salesman, gave evidence tl*Bt he knew the road in question very well. The old road when the depression was there was not safe. ' Used the new road several times prior to February 27. 'Drove an Overland car, weighing about 23cwt. Road was always fairly decent and passable. The filling when first opened was nc more dangerous than the old road. Went over it twice on February 27, returning about 11 o'clock at night, when it was raining. Had no difficulty in travelling over, nor did he consider it unsafe. Elderly people always took considerably longer than young people inlearning to drive; it was all a matter of confidence. There was considerable traffic over the road. Saw nothing wrong with the road surface on Sunday; it certainly was not rough. Anyone could see, before getting on to it, 'that it was a new piece of road. By Mr. Johnstone: Did not know of any accident on that road while the old depression was there. Had been in the district five years. Had canvassed .Mr. Simons for an Overland car. but he did not buy. There was the danger of a side-slip on the filling if one got off the metal.
By Mr. Myers: There was no reason for a sideslip on the filling by getting off the metal if the driver of a car was competent. Albert E. Laurence, farmer, of Tariki, and member of the Taranaki County Council, said he knew the Mountain road well. Had driven a buggy over the new road before the accident. After hearing of the mishap from his brother, who was foreman of works; he visited the work, about five or six o'clock in the evening. Knew the spot where the car went over. # Could trace the wheelmarks of the car quite plainly. Measured the distance of the wheelmarks with a tape, from where the car had left the ordinary run of traffic. The car ran for 20ft before the "back wheels left the road. 11 was a gradual run off. Also measured the width of the filling at the spot and found it was Oft. Took measurement of the metal in two places near where the car went over, and found it to be Bft in one place and 7ft (iin at the other. The depth of the ruts that day would be some two inches. Drove over the road and also walked over it on the .Sunday. There were no potholes on the road, which was dry. Very little earth, and no metal, had been broken away where the car went over. Three, cars passed over while -witness was inspecting the road. Had not received any complaints about the surface. The road, after the accident, remained at the same width for a considerable time.
By Jlr. Johnstone: The road was in fair repair for any ordinary traffic. The sides of the filling were not necessarily steep. On the eastern side the earth was allowed to run to its own level. Did not remember the foreman warning a motor driver that passed to be very careful. Told his brother to put a load of earth at the scene of the accident next morning. His tape measure mny or may not have stretched. Had heard of a mishap to a motor lorry. William J. Paul, farmer, residing at Inglewood, said he owned a motor car and sometimes drove it. On February 27 went to Fltham, his son driving. Crossed over the filling, the surface being fairly dry, and drove over just as easily as if driving over a floor. Had no hesitation about going ove? the filling, either going or returning. Did not know of any accident till next morning, and did not see any traces of such. The road was fairly good and smooth, worn down by traflic. There were no deep ruts or potholes. By Mr. Johnstone: The road was, naturally, a narrow one for a beginner, as his boy was. A car would naturally swing if it got into a rut. There was seven or eight feet of metal on the road. Ronald Paul, son of last witness, said he was a pupil at the Technical School, and was 17V, years of age. .Remembered driving to Eltham on February 27; had not much experience then; only about three months. Knew the filling; had not driven over it before. Went over on low gear and had no difficulty, lioad was fairly good for a new one; there was a good track which he followed. John Ilucker,_ farmer, of Tariki, deposed that he worked temporarily for the Taranaki Council at the filling near Norfolk road. Assisted on the filling. The spoil was tipped out and there was constant passage over it of horses and carts. Was there when metalling was first put on. There was constant traffic on the road, as" many as 50 cars going over on some days, beside other vehicles. JJever saw anyone in difficulties, nor heard any complaints. If there were asy holes'on the road they, were filled
up first thing in the morning. The surface on the Saturday .prior to the accident was fairly good. Was at work at 7 am. on the Monday, and saw wheelmarks leading up to where the car went over. There was not a -rut two inches dee]> on the road at that time. Had not heard of any other accidents. Batter was not altered after plaintiffs mishap, there was no packing oil the eastern side. iiy Mr. Johnstone: Was on the work the whole time. Kecognised photograph (produced) as one of the eastern slope of the lilling from the railway line, also, one of batter on the othei side. Huts were being formed every day and were filled up, Was not aware that anyone worked on Saturday afternoon and the Sunday. Thought two small loads of earth were placed next morning where the car went over. Saw a lorry sink down on the road. Did not remember Dr. Walker's car getting stuck. On several occasions strangers had asked him what road to take. Had advised an old gentleman to lake the lower road as being the safer, though the new road was all right "if his nerve was good." Win. James Lopdell, civil engineer, and engineer to the Stratford County Council, said he bad had seven years' experience. He drove a motor-car. Knew the filling well, and had been over it when it was partially formed. Would say the width was about 9ft. Crossed it a day or two prior to the accident. The surface then was slightly uneven, but not sufficient to cause' any discomfort to travellers. Did not notice any holes beyond those caused by slight subsidence. Thought road perfectly safe for traffic by anyone who took reasonable precaution. Considered that under tho circumstances Fisher had adopted the best methods. Had road been under witness' charge he would have opened it for traffic. In his county had plenty of roads 9ft. wide or less. By Mr. Johnstone: These latter roads are, for the most part, far back; a few of these are metalled. Did not know of any main road 9ft. wide. Stock dealers travelling in motor-cars used the roads that were 7ft. or Sft. wide; they were unsafe for most travellers. Fresh fillings constantly subside for the first few weeks. Crushed metal seemed to be used, and there was a decent depth on the road. A. car would bo perfectly safe a foot from the edge in dry weather. Had not made any special examination of the work. To Mr. Myers: Would not expect a competent driver to let his car swerve. If metal was up to within six inches of the sides the road would be safer. Win. Graham Crozier, livery stablekeeper at Inglewood, bad twelve months' experience at driving a motor-car. Had travelled over the filling in Mountain Road often before February 27, .and since. Was there on the 27th, about 3 o'clock. Saw Simons' car on the road, which he walked across to see what caused the accident. Traced the car's wheel-marks. The car appeared to drift about 18ft., roughly, from where it left the track. Driver had no right to be off the track, which was fairly stiaight. Saw no indication that the driver bad attempted to turn again on to the track. Saw nothing on the surface to account for the mishap to the car. Witness never bad any difficulty on the road, and had r-.o doubt as to its safety. By Mr. Johnstone: There was a gap in the road where the car had gone down. Did not drive over the top that day in his car, but took the lower road. Re-examined by Mr. Myers: Took the lower road because there were people on the filling. The gap he noticed was on the side of the batter. The lower road was in good condition. Edward McGinty, hotel-keeper at Inglewood, remembered the accident. Had been over the new road before February 27 in a motor-ear. Was there between 3 p.m. and 4 p.m. on that date, with previous witness. Saw wheel marks of the car from .where it left the track to where it went over. Eoad was dry and a bit bumpy, but not dangerous. The ruts were regular right through; did not see any holes. Car did not break any metal away as it was too far off. Saw Simons the day after the accident, and asked him how it had occurred. Simons said the road was a dangerous one, but witness told -him it was not the fault of the road, that his car had swerved, perhaps owing to his gear getting out of order. Told Simons he ought to have pulled up when he found himself on the soft side, but he said he could not, as he was capsizing. Walter Laurence, employed as foreman of works by the Taranaki County Council, said that under Mr. Fisher he was in charge of the filling. Heard of the accident to Simons' car the same day. The new road had been opened about a fortnight. The. width where the accident happened was 9ft., and width of metal was Bft. Track of wheel-marks from where car left the traffic track to the point where it went over was 20ft., partly on metal and partly on clay. There had been much traffic on the road before and since. After the accident it was two months before the filling .was completed. Remembered two wheels of a motor lorry sinking in tho clay, and jacking it up again. Driver then .backed it off the filling for about three chains. No hand-packing was done on the eastern slope, and no more batter was put on there after the accident. The road was in fair order, and there was nothing in its condition to account for the accident. Nobody had complained to him about the road.
By Mr. Johnstone: The ibulk of the filling was finished long before the expiration of two months. Did not know of many mishaps on the roads, but remembered two lorries and another motorcar getting into trouble. Did not. remember Dr. Walker getting stuck, or any gig being in trouble. 'Remembered stopping cars at the Inglewood end on March 0 and making them put down their lady passengers. This was after a good deal of -wet weather. Joseph Brown, farmer, of Durham P.oad, and chairman of Taranaki County Council, said he lived within 2% miles of the new road. Frequently inspected the new road, and had been over it in a car. Drove over with Mr. Grayling on February 21, and the latter appeared to have no difficulty, although the weather was wet. Had oceans of complaints about the old road, but none about the new one. Considered the latter was perfectly safe; the work was as good as any he had seen in his 30 years' experience, and the track could only have been better by a steam roller going over it. Was over the road on the following Tuesday and noticed nothing beyond the usual wheel-tracks. By Mr. Johnstone: Was acting as county engineer (so far as supervision was concerned) at present, and had acted as such previously; was not a civil engineer. This concluded the evidence for the, defence, and Mr. Myers addressed the | jury. He said that no doubt a goi-.l ideal of sympathy would be felt for the plaintiff. This was only natural, but it i was not a question of sympathy upon Iwhich the verdict should rest If the
jury was satisfied that there was negligence, then the Council must pay. But lie would invite them to find that there wns not any negligence. A verdict for the plaintiff would, lie reminded tliem, involve certain rellection upon Mr. Fisher, the engineer responsible for the work, -but 'he would not ask the. jury to take this into consideration. Counsel then dealt with the issues upon which plaintiff's case rested. He 'Would point out that there was no obligation to have a road fenced. The main pointswere: Road too narrow, batter too steep, and surface too rough. Dealing with the batter, the complaint about that must fall to the ground, as abundant evidence had been called to show that the eastern slope bad not been packed up and that the slope was natural: There was also abundant evidence that the surface was not so rough as was alleged. Boiled down, .plaintiff's claim rested upon the width. Counsel would point out that the filling was only portion of a permanent construction. He contended that a road of aft. was ample for a person 'who could drive. They had evidence to prove that the ear" went off the regular track, and there had been no sign to suggest that Mr. Simons bad made any effort to get back again. The plain fact was that Mr. Simons at that time was not a competent driver, and it was through bis fault, and not that of the Council, that the unfortunate accident occurred. Counsel contended that when a. road is being altered the public must expect to submit to some inconvenience—be did not say danger. They had the opinion of some experts to say that the work done and the method of construction was proper and reasonably fit, and if the jury came to that conclusion they must find for the defendant Council. Mr. Jolmstone said bis learned friend had put forward two defences, one that there was not any negligence, the other that if there were, there was contributory negligence on the part of Mr. Simons. The Council were justified in attempting to improve the road, but lie contended they were 'wrong in the manner they set about it. He did_not say that the walls had been hand-packed, because this had been denied, but the large lumps had caused the slopes to be steeper than they should have been. There had been no witness bold enough to come into court and deny that the surface was rough. The filling was green, only a fortnight in use; and if, as was stated, 50 vehicles a day wont over it, it was only natural that there should be potholes. They had been told that the road required constant patching. According to expert evidence for the plaintiff the road was only Sft. wide, according to measurements made, while even the witnesses for the defence said it was not more than Oft. Ho contended tlwt the jury should accept the evidene? of the engineers who went to measure the road. It had not been denied that the filling was wider at the ends and narrowed up in the centre, and therefore travellers were led into a trap. On the facts h> contended, the jury should find that the Council had been negliaent. The Coimcil owed a*luty to the public at large- not to expert drivers, but to ordinary "drivers and to people with gigs, etc. The margin ot safety left was far too small , He east no- rellection on Mr. Fisher, who perhaps made an error of judgment; the truth was that it was a question of economy with Mr. Fisher and the Council. There was, be said, no ratepayer in the county who .would begrudge the penny or twopence that each one would have to pay to make this road safe. The outstanding question was whether the Council acted reasonably in askin" motorists or anybody else to make use of the road in question. Was the bank reasonably safer If the jury found that it .was not, then they should find for plaintiff, and would assess the damages. They did not want sympathetic damages,' but the jury should decide in a spirit of justice.
His Honor, addressing the jury, said the case was essentially one for them to decide, in that it rested upon pure facts, and the facts were not very difficult, though it might not be easy to arrive at a conclusion upon them. His Honor then reviewed titf evidence at considerable length, and said that the jury had to decide whether the road was' in a reasonably safe condition for a driver of ordinary ability, and after they had come to a decision on this point tlie question of damages had to be settled. The jury retired at 5.19 p.m. and returned at -5.55 p.nv The Judge; tfi answer to a question from the foreman, said that the claim for £3Ol was inclusive of the .Cllii IBs paid out for medical and other expenses. The verdict of the jury was unanimous that plaintiff was entitled to the full amount claimed, namely, £5Ol. Mr. Johnstone moved for judgment, which was entered up accordingly, with costs according to scale. The jury was then discharged, and the Court adjourned till 10 a.m. to-day.
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Taranaki Daily News, 7 September 1916, Page 3
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4,604SUPREME COURT. Taranaki Daily News, 7 September 1916, Page 3
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