"EXTRAORDINARY• TRAFFIC."
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An Important Case to Decide Whether Natural Traffic Development from Horses to Motors Involves the User in the Cost of Road Betterment.
THE HEARING BEGAN on Monday, of last week, in the Chancery Division, before Mr. . Justice Eve, of an action brought by the Weston-super-Mare Urban District Council against Messrs. Henry Butt and Co., Ltd., Goal and Timber Merchants, of Oxford Street, Weston-super-Mare, in which the liability of owners of heavy -tractor cars for damage to highways is in dispute.
This case really involves the great question of principle never yet fought out in the Courts as to whether the roads (apart from the' county reads and main roads) shall where necessary be brought up in strength to withstand the altered conditions arising from the introduction under the Motor Car Acts of heavy power-driven vehicles, the expense falling on the owners of the roads.
The case of Hill v. Thomas is the leading authority on the question as to who shall bear the burden of the extra expense of damage done by "extraordinary traffic." It was then (1893) decided that it should be laid on the shoulders of those who caused the damage and to whose benefit it enured.
But the question arising in the case of Westonsuper-Mare U.D.C. against Butt is as to whether the natural development of the use of the relict by the change from horsed to motor-driven traffic constitutes " extraordinary traffic," as the traffic between the quarry and station and wharf has by one means or another been carried on for over 30 years.
The question is one of extreme importance to the whole motor-using community, and the course of the action is being eagerly watched not only by motor vehicle users but by municipal bodies throughout the country.
In the report which follows we have given the gist of the evidence of each witness, but we have materially shortened our report by eliminating practically the whole of the Matter concerning what are really secondary issues—such as the details concerning the nature and method of repairing certain sections of the road, the items of cost, etc., which occupied the attention of the court; for a considerable portion of the first five days of the hearing.
The, plaintiffs claimed the sums of 2890, 2400, 2420, and 240 alleged to be expenses of repairing the roads damaged by the "extraordinary traffic" of defendants'. steatii tractors over Arundel Road, Bristol Road, Upper Church Road, and Park Place, Weston, respectively within the meaning of section 23 of the Highways and Locomotives (Amendment) Act of 1878, and further or in the alternative the like sums as damages suffered by plaintiffs by reason of the wrongful use of the roads by the defendants, or damages suffered by • reason of nuisance caused by defendants.
There was a further claim to sums of 2118 and 2-95 as damages suffered by plaintiffs prior to 21st Feb' ruary, 1916, by reason of the wrongful and excessive uses of Arundel Read and Bristol Road, and for damages for nuisance caused by defendants prior to 21st February, 1916, upon the roads in question. The defendants denied all allegations made as to the speed at which their wagons were driven ; they denied their traffic was in any respect extraordinary as to weight or number of journeys ; they denied damage as alleged by reason of their traffic, and that any of the roads ever became in such a condition as to be a source of danger or nuisance to the public, or that traffic on the roads was stopped or hindered as alleged. If any such damage as alleged was done, defendants pleaded it was in consequence that plaintiffs had failed to keep and maintain the roads in a' condition to withstand the ordinary traffic to be expectkci. No damage was done within the period of twelve months prior to the date of the writ in this action, and therefore defendants submitted plaintiffs were prevented from recovering in respect of damage. Defendants denied plaintiffs had spent the sums mentioned in the statement of claim in respect of the repair of the roads named in the statement of claim or that such expense was reasonably incurred, but if this repair had been carried out as alleged, such expenditure hod put the roads in a better condition than they were at the date of the commencement of the traffic, complained of. , Defendants further denied they had discharged large quantities of water on the Bristol Road as alleged in the claim and thus injured the road. Mr. Maemorran, K.C. and Mr. Joshua Schalefield (instructed by Messrs. iead, Steel and Co., London agents for Messrs. William Smith and Sons, of Weston-super-Mare), appeared for the plaintiffs, and Mr. Maugham, K.C., and Mr. W. A. Jowitt (instructed. by Messrs. Joynson-Hicks, Hunt, Cardew and McDonald) were counsel for the defendants.
Mr. Maemorran, in opening the case, said the eipression " extraordinary traffic" had led to a great deal of litigation, and it would be necessary to call attention to various decisions of the courts up to the House of Lords in connection. with the meaning of the expression. The first part of the case rested upon the Highwais Act of 1878, section 23, as amended by the later Act of 1896, section 12. There was an alternative claim in this action in respect of nuisance and on that point also he would have to address his nuis ance, attention to the authorities.
The Judge: What ia the nature of the traffic complained of ? Mr. Maomorran : Lime, limestone and coal.
Counsel continuing said the defendants were owners of a quarry, and the traffic complained of ran from their quarry and their wharf to. the Great Western Railway station. All the highways in question were vested in. the glaintiffs, and up to the time the complaint arose the reads were efficiently maintained for the purposes of the ordinary local traffic with the local atone. Priorto the complaint the defendants' traffic was entirely horse-drawn, but in August, 1913, they put on the road a steam wagon with trailer, and later on a ,second. The result of this heavy and increased traffic was that the roads were ploughed up, their surface destroyed; and their foundations brought Up to the surface and spread along the side— in fact, the roads were cut up and ruined. On 19th February, 1917, the plaintiffs' surveyor issued to his authority four certificates purporting to be certificates under the Act of 1878, the effect of them being ,that extraordinary expense had been incurred in respect of' four roads alleged to have been damaged to the extent of 21750, and upon these certificates this action was commenced against the defendants. Counsel asked his Lordship to remember that Weston was off the main line of railway, and was away from the main road from Bristol to Exeter. It had no through roads properly so called at all. The traffic was purely local, and there was nothing to account for the damage of these roads except the traffic of which plaintiffs were complaining. The amount of this traffic was very great. Some days these engines made sixteen or seventeen jo-urney.s, and some days less.
The Judge : What weight do they carry?
Mr. Machforran replied they were restricted by the Heavy Motor Car Order of 1904, and under that Order the weight of the tractor must not exceed, 12 tons loaded, and the weight of the trailer 8 tons loaded. As a matter of fact these weights in very many cases were exceeded. Between August, 7913, and November, 1914, the weight of the laden trailer exceeded this maximum authorized weight on 645 journeys; and of the trailer 361 times ; and between February, 1916, and February, 1917, the period covered by the surveyor's certificates, 'the number of times the weight was exceeded was 208 by the tractor and 99 by the trailer. From a census of the heavy tractor traffic on the Bristol Road, defendants' traffic amounted to 99 per cent.
In reply to the judge, Mr. llacmearan said be rested his ease on the excessive weights which were unlawful. There was here a user of roads which gave plaintiffs a right of action on the ground of public nuisance. He submitted that there was a. clear case of "extraordinary traffic."
Evidence was then called
Mr. Harold Arthur Brown', surveyor to the plaintiff council, stated that the life of Arundel Road, Weston, was about 9,1years. In 1909, the. cost of re'pairs was .65 pence per square yard per annum; in 1913, 1.64 pence per square yard per annum, an increase of over 100 per cent. ; and in lam, when the roads had to be repairedagain awing to the extraordinary traffic, the cost of repairs was no less than 3:13 -shillings per square yard per annum,, the road having to be entirely reconstruoted with granite costing £991.
• Mr. Maugham, in cross-examination, asked : Do you suggest the Bristol Road ought not to-be constructed so as to be suitable for cars under the Heavy Motor Order, such as Messrs. Butts'?
Witness: I say the liability of the local authority is limited to having roads sufficient for such traffic as could be reasonably expected in its district.
Counsel : Do you suggest that Messrs. Butts' steam wagons and trailers are not traffic that might have reasonably been expected?
Witness : I suggest the Council ought not to be expected to prepare for such traffic on the Bristol Road, otherwise owners of heavy tractors might insist on going over all the other roads of the town.
Mr. Maugham : But it is your duty to see that your roads are kept so as to be efficient for all traffic_ Witness : I sa-y not for such traffic as ploughs up our 'roads. ',contend we ought not to be asked to receive such traffic as Messrs_ Butts' heavy car and trailer until such traffic becomes the traffic of the neighbourhood. It was not reasonable to expect a local authority to make special arrangements for one firm.
Mr. Maugham" suggested if a motor exceeded the proper weight or proper speed, it was the duty. of the highway authority to communicate with the police.
Major Thomas, county surveyor of Buckinghamshire, said the limestone roads at Weston were quite
sufficient for a. residential neighbourhood, and were generally of a high standard. The effect, howe-ver, of putting these heavy tractors and trailers on the road would he moat destructive. The cost of maintenance of roads to take this heavy traffic would be greater than before.
In crbss-examination, witness admitted that limestone was not very good material for roads, but was suitable for light suburban traffic, In his opinion a local authority was not bound to provide for a traffic that unreasonably increased with an altered method of traction, unless the traffic had become ordinary traffic and there Was nothing exceptional in it.
Mr. Henry Titus Wakelain, for 20 years county surveyorof Middlesex, said limestone roads were suffi cient for the usual ordinary traffic of the district, but not for heavy motor traffic. No other traffic caused such a shock to the surface of a road as the impact of a motor wagon. The four roads, the subject of this action, were badly cut about by motor tractors and high speeds. In his opinion, steam-engine traffic was Tess injurious to roads than motor tractibn traffic, because the unit square inch of weight in this case of a motor was greater than that of a traction engine.
The Judge said the question in this case was whether roads must be designed for motors or motors for roads.
Mr. Maugham You are one of those people who think motor traffic does a great deal of harm.
Witness : Well, motorbuses have done us £300,000 damage in Middlesex.
Mr. Maugharn : Yours is an exaggerated view, isn't it? Does anyone ever differ from you?
Witness One or two men who have not had much experience (laughter), but I think I have the colleen.sus of opinion on my side. Mr. Maugharn : Is your view that heavy motor traffic limited to five miles an hour would do as much damage as motorbus traffic? Witness : I doubt if the speed is kept -to five miles an hour. If that speed were not exceeded, perhaps
they would not do so much damage as motorbuses which travelled faster ; but the damage they did would depend on the roads they ran over. The bus tyres, it should be remembered, are resilient and elastic.
Evidence was given 'by Mr. John Jeremiah Jackson Barstow J.P., The Lodge, Bristol Road, Weston, as to .damage done to the roads by defendants' wagons. Dr. Wallace, Medical Officer for the Weston district, gave evidence as to the condition. of the roads, which,' he said, were rendered dangerous by defendants' heavy lorry traffic. Mr. Arthur Elliston Collins, City Engineer ofNorwich, and formerly surveyor to the Weston Council, stated that, but for the defendants' heavy traffic, it would not have been necessary to alter their mode of repairing the roads. Making a comparison with the former method of traction by horses, witness said, in his opinion the impact of a 10i-in. wheel bearing one ton would -do more injury to a road than a cart with a 21-in. wheel bearing a quarter of a. ton. In his opinion, a wagon' like defendants' would do more damage to a road than a traction engine which had a larger diameter of wheel, except in the case of a sett
road with a rigid surface, where he thought traction engines would do mere damage than steam tractors.
He thought the maintenance of roads for the advan tage of one or two firms in a district should be paid for by those firms, until suah traffic became general
traffic in the district, though he was not prepared to say where the line between ordinary and extraordinary traffic was to be drawn. At any rate, one fian would not make it ordinary traffic.
Professor Boyd Dawkins, the geological expert, gave evidence to the effect that the limestone from the three qUarries at Weston was practically identical and that it was suitable for the traffic on the roads in thiS district.
The hearing was adjourned over the week-and and was, not resumed -until Tuesday last, Our report of this important case will be continued in the next issue. That judgment may be reserved is fully expetted.