THE COMMISSIONER FOR RAILWAYS V. SMALL

ORIGINAL >

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IN THE HIGH COURT OF AUSTRALIA

THE. COMMISSION:

FOR.RATLWAYS

REASONS FOR JUDGMENT

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| Judgment delivered at_. SYDNEY. oneyn Po Genie Ga inky Ma | on. WEDNESDAY, 10th AUGUST, 1959...

JUDGMENT (ORAL)

THE COMMISSIONER FOR RATLWAYS

DIXON C.J. WILLIAMS J. WEBB Je TAYLOR Je

THE COMMISSIONER FOR RAILWAYS

ve SMALL DIXON C.Js These are appeals by the Railway Commissioner

as the defendant in two actions arising out of an accident which occurred as long ago as lst March 1951. The accident resulted in the death of a man named Small and the actions are brought by his widow who is his executrix. It is not necessary to describe the causes of action more particularly than to,say that one was under the Compensation of Relatives Act and the other was for damages for the destruction of a tractor.

Small was driving a tractor with a trailer north- ward along a somewhat winding path from a farm. The path led over an accommodation crossing upon the defendant's railway line near Kolodong. The railway line runs approximately east and west, but there is a curve just before the crossing on the western side. The road over the railway crossing is nothing but a track. On the northern side it leads to a gravel road. A light engine was proceeding from the west to the east along the line; that meant that it must travel round the curve which led to the crossing. The track from the ranoyse the wossing went for some distance in an easterly direction and then turned north. From the place where it turned north a person travelling upon the track might have seen to his left, that is to the west, for some appreciable distance along the railway line until the curve shut out his view.

As the deceased Small drove the Ferguson tractor across the railway line, the engine struck the trailer; the tractor itself was just over the line. Small was throw into the air and was killed. Preceding him along the track was a