MACDONELL C.J.—Attygalle v. Sabapathy.
Present: Macdonell G.J.
435—M. C. Colombo, 1,932.
Motor cor—Collision at junction—Accused passing junction at excessivespeed—Contributory negligence—Duty of accused to take precaution— .Ordinance No. 20 of 1927, s. 44 (13).
Where the accused, the driver of a motor car, while passing a junctionat the rate of 15 to 20 miles an hour, collided with a motor lorry whichwas going on the wrong side,—
Held, that the negligence of the driver of the motor lorry djid notexonerate the accused from the duty imposed upon him of reducinghis speed at the junction and that the accused was guilty of an offenceunder section 44 (13) of the Motor Car Ordinance, No. 27'of 1927.
1 (1874) E. D. C. 439.* (1555) A. C. 56.
MACDONELL CJ.—Attygalle t>. Sabapathy.
PPEAL from a conviction by the Municipal Magistrate of Colombo.
The accused was charged with driving a motor car without takingprecaution to avoid an accident whilst crossing Bankshall street from1st Cross street, in breach of section 44 (13) of Ordinance No. 20 of 1927.
He was convicted and fined Rs. 80.
Tiftseverasinghe, for. accused, appellant.
July 30, 1931. Macdonell C.J.—
The accused was charged and convicted under section 44 (13) ofOrdinance No. 20 of 1927, which reads as follows: —
“ Notwithstanding anything contained in this section, it shall be theduty of every driver of a motor car to take such action as maybe necessary to avoid an accident, and the breach by the driverof a motor car of any provision of this section shall not exoneratethe driver of any other motor car from the duty imposed on himby this sub-section. "
The facts were that the collision occurred at a carrefour, the accusedwho was then going north on his correct, left, side of the road cominginto contact with a lorry going west which was then on its incorrect,right, side of its road. It was argued that the fact of the lorry beingthus in the wrong exonerated the accused and showed that the blame forthe collision was due to the lorry alone. I do not think so.
First of all the definition clause, 2, 'makes it clear that normally motorcar includes lorry. " Lorry „means a motor car …. constructed…. for carrying goods ", and there is nothing in* section 44 (13)
to suggest that in it motor car is not intended to include lorry.
Now the evidence of a witness for the defence whom the learned Magis-trate accepted was that accused was going 15 to 20 miles an hour at thetime of the collision, and the Magistrate calls this speed " dangerousat such a junction as this ". Then the accused did not take the action" necessary to avoid an accident ", that is, he did not reduce speed as heshould have done when approaching such a junction, and as his excessivespeed was clearly one of the contributing factors to the accident, then hehas contravened the sub-section under which he is charged.
Now it is said, truly enough, that* the lorry was also at fault, and thatthere was " a breach by its driver of a provision of this section ", inthat it did not " keep to the left or near side of the road ", but section44 (13) provides for this very case. This breach of a provision of thissection does " not exonerate the driver of any other motor car from theduty imposed on him by this sub-section Here the driver of theother motor car was the accused, and by the very words of the subjectionhe is liable. Contributory negligence is not available as a plea incriminal law.
I dismiss the appeal.
ATTYGALLE v. SABAPATHY