H.. N. G-. FERNANDO, .T.—tie Silva v. Asecz
Present :H. N. G. Fernando, J.A. G. DE SILVA, Appellant, and S. I. ASEEZ (Headquarters Inspector,
Mt. Lavinia), Respondent
S. C. 540—AT. C. Colombo South, 87640
Motor Traffic Act, JVo. 14 of 1951—General duly of driver to avoid accidents—Scope ofSection 151 (1).
By Section 151 (1) of tho Motor Traffic Act—
“ Notwithstanding anything contained in section 150, it shall be tho duty oftho driver of every motor vehicle on a highway to take such action as may bonecessary to avoid any accident. ”
Meld, that the Section does not apply to circumstances existing bo Toro thoimminently or likelihood of an accident. It requires a driver to make everyreasonable attempt to avert an accident which has already becomo imminentor likely, either through his own fault or that of another. Accordingly, theconduct of tho driver before tho immineney of tho accident, although thatconduct might have founded a charge of reckless or negligent driving, should notbo made the basis of a conviction under Section 151 (1).
Appeal from a judgment of the Magistrate’s Court, Colombo South.
M. M. Kumarahula-singham, for the accused-appellant.
P. Nagendran, Crown Counsel, for the Attorney-General.
Car. adv. vult.
August 25, 1959. H. 1ST. G. Fernando, J.—
After hearing argument I set aside the conviction of the accused inthis case and now state my reasons.
Even allowing for the prevalent laxity in the mode of framing chargesagainst accused persons the first part of the charge in this case framedby the Magistrate makes nonsense :—
You are hereby charged, that you did, within the jurisdiction
o** this Court at Galle Road, Mount Lavinia being the driver of private
H. 1ST. Q. FERNANDO, J.—de Silva v. Aseez
car No. EL 2.366 drive the same on the public highway to wit, GalleRoad, Mount Lavinia and failed to take the following actions to wit(1) Drive negligently or without reasonable consideration for personsusing the said highway (2) Drive the said car in a manner dangerousunder the circumstances.
This part of the charge in brief constitutes an allegation that the accusedfailed to drive the car negligently and failed to drive it in a dangerous manner.If this absurdity be ignored, the remaining part of the charge is that theaccused, in breach of Section 151(1) of the Motor Traffic Act (No. 14 of1951) failed to take the following actions to avoid an accident i.e. “ (3)
Fail to give audible warning of the approach or proceeding ofthe said vehicle by sounding the horn (4) Fail to apply the brakes intime considered absolutely necessary under the circumstances (5)Fail to observe the traffic signs indicating motor vehicles of the im-pending approach to this dangerous part of the highway in breachof section 151(1) of the Motor Traffic Act No. 14 of 1951 read withsection 216 of the Motor Traffic Act No. 14 of 1951 and thereby com-mitted an offence punishable under section 216 of the Motor TrafficAct No. 14 of 1951 ”.
It would appear that on 15th March, 1958, a pedestrian commencedto cross the Galle Road from the seaside in the vicinity of the SouthWestern Bus Company Depot at Ratmalana, intending to go to a canteensituated on the landside of the road and somewhat to the left of thepoint from which he commenced to cross. He reached the centre of theGalle Road and could not proceed further because there were cars on thelandside of the road- going in the direction of Mount Bavinia. Hetherefore stopped crossing and instead walked along the centre of theroad in- the Colombo direction apparently waiting for a chance to crosswith an ebb in the flow of traffic on the land-side. The two eye-witnesseswho gave evidence stated that at this stage they heard a sound whereuponthey saw the accused’s car being driven towards Colombo on the sea-sideof the Galle Road but near the centre of the road. They heard thebrakes being applied and the car came to a halt fairly near the land-sidekerb and they then saw the – pedestrian lying fallen right on the centreof the road. According to the evidence accepted by the learned Magis-trate the point of impact was 21 feet from the sea-side pavement and30 feet from the land-side pavement. The brake-marks indicate tha* theaccused had applied bis brakes when his car was not less than 19 feetfrom the point of impact and that while applying the brakes the accusedhad tried to veer bis car away from the centre of the road towards theleft side in order to avoid hitting the pedestrian.
The accused explained that he deliberately drove near the centreof the road though yet on its left or proper side, in order to keep freeof the busy traffic expected to be entering or leaving the bus depot, but
H. N. G. FERNANDO, J.—de Slva v. Aseez
the question whether he was negligent in so doing does not arise becauseno charge of negligent driving was framed against him. The only mattersfor determination therefore are whether he failed to take the steps specifiedin paragraphs 3, 4 and 5 of the charge or any of them, and whether anysuch failure if any constitutes a breach of Section 151 (1). X shall nowconsider those paragraphs separately.
The accused does not deny that he did not sound his horn.Considering the evidence that the pedestrian had reached the centreof the road and was then walking along the centre the accused who wasdriving about five feet away from the centre of the road could have hadno reason to anticipate that the pedestrian would (as he ultimately did)return to a point on the sea-side half of the road and within the pathalong which the accused’s car was proceeding. The brake-marks indicatethat when the car was nearly within 20 feet of the pedestrian, he suddenlyrealised that the pedestrian would be in the path of the car. The evi-dence of the eye-witnesses and of the accused, together, render it at leastlikely that the pedestrian, because of the traffic approaching from hisleft suddenly drew back a few steps and thus suddenly brought himselfwithin the line which was being followed by the accused’s car. Untilthis moment there was no serious need for the accused to anticipate anaccident and to take action to prevent it. The brake-marks indicatethat the accused probably took action when the danger became -immi-nent. The fact that the injuries spoken to by the J. M. O. were in hisopinion consistent with the car having brushed against the pedestrian’sright side confirms the view that the pedestrian may have been in theact of stepping back just about the time of the impact. It is doubtfulwhether the sounding of the horn at that stage would have made anydifference. If the pedestrian was in the act of stepping back for fearof the traffic in front of him, was it probable that the sound of a hornwould have induced him to step forward again ? In any event theaccused’s attempt to avoid the accident by applying his brakes andveering towards the left can well explain his inability also to sound thehorn.
As to paragraph (4) of the charge I have already indicated my reasonsfor the view that the prosecution failed to establish that the accusedshould have commenced to apply his brakes earlier than he actuallydid so.
The evidence was quite insufficient to constitute the failure referredto in paragraph (5) of the charge. The two eye-witnesses said thaton the ^Northern and Southern sides of the garage there are boards indi-cating that the garage is a busy one. There is no evidence howeverto show that these boards are traffic signs erected by the proper authorityor that they constituted warnings as to speed limits. In any eventdisregard of any such warning would constitute negligent driving butcannot form the subject of a charge under Section 151 (1).
H. N. G. FERNANDO, J.—de Silva v. Aaeez
The main ground for the conviction "was stated by the Magistrate asfollows :—“ Had the accused driven his car on his correct side and hadhe gone at a slower speed in view of the cautioning boards the accidentcould have been avoided This might well have been a proper groundif the accused had been charged with negligent driving. But the state-ment shows that the Magistrate misunderstood the object of Section 151.Driving upon the wrong side of the road can render an accident imminentor likely ; but Section 151 (1) does not apply to circumstances existingbefore the imminency or likelihood of an accident. It requires a driverto make every reasonable attempt to avert an accident which has alreadybecome imminent or likely, either through his own fault or that of another.Accordingly the conduct of the driver before the imminency of the acci-dent, although that conduct might hove founded a charge of recklessor negligent driving, should not have been made the basis of a convictionunder Section 151 (1).
Conviction set aside.
A. G. DE SILVA, Appellant, and S. I. ASEEZ (Headquarters Inspector, Mt. Lavinia)