DISTRICT COURT.

Wairarapa Daily Times, Volume XII, Issue 3852, 8 July 1891, Page 2

DISTRICT COURT.

MASTERTON.-TUESDAX, (Before His Honor District Judge Robinson.) SPACEMAN V. WAIRAHAPA NORTH COUNTY COUNCIL. On resuming, Mr Lett was reexamined by Mr Pownall at some length. Amelia Pratt, who lives nearly opposite the scene of the accident, deposed to having seen Spackman driving a wagon od the Masterton side of the fluamahunga river, on Octobar 28th. She heard the engine whistle at the crossing on that day. The waggon was then some distance away from the bridge. The driver did not appear to hear tlie whistle, as he took no notice. He had crossed the bridge when the train overtook him. The horses then reared up in the air. Spackman retained both his seat and the reins, and went over the embankment almost at once. The horses appealed to be quite unmanageable. The waggon was upset before it reached the bottom. It fell right on top of the driver. A strong wind was blowing from the north on the day of the accident. The road was safe enough with a quiet horse when there was no train.

By Mr Beard : Witness was in the cowbail on the flat when the accident happened. The train whistled three times on tb.3 day in question, once at the Opaki station, and at the crossing, and once at the scene of the accident. It must have been the noise of the waggon which prevented the driver hearing the train. The train could not have been seen by the deceased unless he got off the waggon. She did not think it was safe for the ■ieceased to go on to the bridge with the train so near.

By the jury : The river did not make a roaring noise unless it was in flood.

Mrs Spackman, re-called, stated she claimed £2OO as reasonable damages for the loss ot her husband. Henry Eagle, a settler residing at Mauriceville, deposed that he knew the loud on which the accident occurred and frequently travelled on it. He believed the road to be about eighteen feet wide and the embankment ten feet deep. There was a good deal of traffic on the road, which he did not consider safe, because it was not fenced. He believed a fence would prevent a waggon from going over. The enibaukment was very

steep. By Mr Beard : In his opinion the train was the cause of the accident. Thure was another place near the scene of the accident which was quite as dangerous. There may be thousands of places in the district where the roads are as dangerous if the train was not there. It he was dliving and was this side of the bridge he would not think of going on if a train was coming. A train could be seen for several miles along the line.

Constable Joseph May, sworn, stated that he had found Albert Spackman on October 28th quite He saw the road at the scone of the accident, and considered it would have been much more safe if it had been fenced. Uo had since gone over the same embankment as the result of a passing train. Nicolai Jensen, a blacksmith residing at Mauriceville, deposed that he travelled over the road in question ■-.wice a week. He did not consider the road safe. A good strong fence was required, Johannes Hansen, farmer, of Mauriceville, gave corroborative evidence. This was the case for the plaintiff. Mr Beard submitted tr-at tbe plaini:«'«liould bo nonsuited, as the accident was altogether ou^:!-I ,BCQntrol of the Tbe primary cause of the accident vyas the train. Mr Pownall maintained that it was for the jury to decide who was responsible. The Court held that the evidence could be reviewed in moving for a nonsuit. Mr Beard submitted further that supposing the direct cause of the accident—the train —had not been there, there would have been no cause for sctiun. In support of this argumenthe cited cases from Smith's Evidence and the New Zcahj^^H

Reports.* There was nothing, he contended, in the Act of 1882, to throw upon Councils theonus of fencingroade. The Council was not liable for the maintenance or the erection of a fence. Even supposing the Council were liable to fence, the was not necessarily the consequence of the omission to fence. He maintained also that the deceased did not exercise that ordinary care which he should have done; or, rather, he was placed in such a position that lie could not exercise ordinary care. Mr Pownall: Is it not for the jury to decide whether there waa contributary negligence] His Honor thought this was a function for the jury. Mr Beard submitted that' as "he could show negligence there was tt> case for a jury. \ Mr Pownall: I should like to have the ruling of your Honor on the^ Bubject. • His Honor : I will have to suspend ruling on this point. Mr Beird maintained that if the deceased had looked round to see if the train was comiug the accident would not have occurred. There was negligence on the part ol the person who had loaded the waggon. The Court then adjourned till next day. WEDNESDAY. On the Court resuming— His Honor held that the AfiStyiftn of contributing negligence before the Court. The queSon, hofl ever, could not be acceptecTOflTr nonsuit point, as it should go to the jury. Mr Pownall then replied to the arguments oFMr Beard at some length. The defendant, he maintained, had a statutory duty 10 perform, and this they had neglected. It was clearly the duty of the County Council to keep the road in proper repair. Although not the primary cause of the accident, the Council was responsible.

Mr Beard submitted that the work of fencing' was not obligatory7*S[f this ■was so, the Council would have toerect bridges over every stream in the district.

Mr Pownall stated he did not relj. on the question of fencing. He wished the jury to decide whether the Council had done its duty in regard to the road generally. His Honor refused the application for a nonsuit on the ground that the question was not merely one ot obligation to fence. It was for the jury to decide whether the road was dangerous in any other respect. The point was a difficult one, and he might be wrong in his decision. He left it | open for the defendants to appeal.

Mr Beard : If the case goes againßt us we intend to appeal.

His Honor : I refuse the nonsuit on general grounds. For the defence Mr Beard said he would call evidence to show that the direct cause of the accident was the train.

Charles E. Bremner, engineer to the County Council, deposed that be had prepared the plan produced, showing the locality of the accident and the position of the roads. He waß well acquainted with the locality, From the bridge to the point where the waggon went over the road was a little over four chains, and from the bridge to Stuekey's road seven chains. The road at this part was entirely an embankment. The embankment was 10 feet deep, and the road 21t't 6in in width- The angle of the embankment was 45 degrees. At~tiie4utt|jhagj|| cident happened the road capital repair, On the M asterton Bi3l oE the bridge the road is flat to the railway crossing. For a distance of four chains from the bridge the road is available for traffic to the full extent of its width, 131 linkß. From the railway crossing a view of the lino could be obtained for three or four miles. From the crossing to the railway bridge is about 18£ chains. If Spaoktnan was this side of Jin bridge and the train was at the crossing, the train must have been visible when Spackman was at the crossing. When the train whistled at the crossing, Spackman must have been about a chain from the bridge. Assuming that Spackman heard the whistle, his proper course would have been to have turned off on to the flat. If Mrs Pratt heard the whistle at the Opaki station, Spackman should moat certainly have done so also. As a matter oE fact had been overtaken himself when driving and off on two occasions to pass. Could not undertHH Spackman not hearing the tra™ whistle blow. The road running parallel with the railway was perfect-" ly safe. Did not think that a fence would have prevented the accident. Never to his knowledge had any previous complaint been made to the Council in reference to this portion of the road. Had seen Spackman driving some time previously (on the 23rd Oct) and Mr. Lett was with him. Had said " you appear to have a lively team''Lett replying "yes, they are young ones, just broken in, 1 ' Spackman made no remark. iS-To Mr Pownall: The faet of the railway being higher than ■tbA.tiftd at this point made it particularly danger-' ous. There was absolutely no means of making the road safe. A road of twenty [one feet was not an absolute absurdity many of the County roacUi were less wide, If the train cam* suddenlyjupon horses the width of tM road would not make much difference.'' The road could be made reasonably: safe by widening it. Had nevej driven a waggon with four ho|gtf| Used a light vehicle with one himself. '^H By Mr Beard ; The road be put into a sttApgf under very greatscfit. The Court at Arisstage adjou^H