Fernando v. Rode.
Present : de Kretser J.FERNANDO v. F.ODE.228—C. R. Colombo, 38,457.
Action for damages—Motor car collision—Negligence of defendant—Contribu-tory negligence of plaintiff—Burden of proof.
The plaintiff was driving her car slowly along the Galle Face Centreroad intending to find a convenient spot at which to park her car on theGalle Face green. Noticing that another car was preparing to leave,she passed that car and halted about two yards away, in order to moveinto the vacant place.
When the car moved away, she looked behind in order to make surethat she would not reverse into an incoming car and saw the defendantdriving his car behind her. The defendant was not looking ahead at herbut across the green. She did not sound her horn to attract his attentionwith the result that there was a collision.
Held, that the defendant was guilty of negligence and that the burdenof proving contributory negligence on the part of the plaintiff was on thedefendant.
HE plaintiff sued the defendant to recover damages caused to her
JL car by reason of a collision between her car and the car of thedefendant, which was alleged to be due to the defendant’s negligence.The defendant denied that he was negligent and pleaded that the collisionwas caused by the negligence of the plaintiff and that, even if there wasnegligence on his part, the plaintiff was guilty of contributory negligenceand that therefore he was absolved from the liability to pay damages.
The Commissioner of Requests gave judgment for the plaintiff.
fj. de Zoysa for defendant, appellant.—There has been negligence onthe defendant’s part, but the plaintiff has also been negligent and suchnegligence has been a contributory cause of the accident.
On the evidence, the plaintiff who anticipated the collision, could haveaverted it either by moving her car forward or by drawing the attentionof the defendant to the danger by sounding her horn. She did neither.This is contributory negligence.
The plaintiff, seeing defendant’s negligence, was not entitled to cast theentire burden on defendant and neglect to do what she could have doneto avoid the consequences of defendant’s negligence. (Robinson v.Henderson ’.)*■
* (1628) S. A. L. R. App. Div. p. 138.
DE KRETSER J.—Fernando v. Rode.
Plaintiff cannot in this case plead that she was thrown into a state ofimminent danger by the conduct of-defendant and excuse her negligenceon the footing of the ruling in Thornton v. Fismer The evidenceshows she was not perturbed and had ample opportunity of calm andproper action.
E. B. Wikremanayake, for plaintiff, respondent.—There is no appealfrom the facts in this case. The question of negligence is a question offact and the finding is that the plaintiff was not negligent. Even if theplaintiff had been negligent she can still recover unless she had the lastopportunity of avoiding the accident. The defendant has not givenevidence and there is no evidence that in spite of his original negligencehe could have avoided the accident if the plaintiff had been careful.(Perera v. United Planters Company’.) Plaintiff’s failure to do the rightthing in an emergency does not exculpate the defendant. (Thornton v.Fismer (supra).)
Cur. adv. vult.
April 4, 1939. de Kretser J.—
In this case the plaintiff sues the defendant to recover damages whichwere caused to her car by reason of a collision between her car and .he carof the defendant, which collision she alleges was due to the defe-.idant'snegligence.
The defendant denied that he was negligent, denied the extent of thedamage, and said that the collision was due to the negligence of theplaintiff and that, if there was negligence on his part, plaintiff was guiltyof contributory negligence and that therefore he was absolved ficm theresponsibility to pay damages.
Neither party averred what the negligence of the other consisted in,and the issues framed at the trial did not carry the matter further.
At the conclusion of the plaintiff’s case no evidence was called for thedefence and the defendant’s Counsel stated then, as he did at the appeal,that he would take the facts as deposed to by the plaintiff and herwitness.
The facts then are as follows: —The plaintiff was driving her carslowly along the Galle Face Centre road on a Sunday afternoon when thegreen is lined with the cars of many people. She was intending to finda convenient spot at which to park her car.
She noticed another car preparing to go away, so she passed that carand halted about two yards away in order to move into the vacancywhich would be caused. She says she stopped her car for about threeminutes. On that car moving away, she looked behind, presumablyin order to make sure that she would not reverse into some oncoming car,and she then noticed the defendant driving a big two-seater behind her.It may be here stated that both of them were on the correct side of theroad, and that she stated that he was moving slowly.
She noticed at the time that he was not looking ahead at her, but acrossthe green towards the hotel. She estimates the distance between themas being 15 to 20 yards. Her witness estimated it to be 20 to 25 yards.The plaintiff states she realized that if the defendant continued to drivewith his head turned away, he might bang against her car, but she states» (1928) S. A. L. B. App. Div. p. 398.* 4 N. L. R. 140.
DE KRETSER J.—Fernando v. Rode.
that she did not anticipate that he would bang into her, because sheexpected him to look ahead. She did, however, remark light-heartedly,
“ It looks as if he is . going to bang against us.”
She says her engine was working and that she could have movedforward it she had been in gear. She did not sound her horn to attracthis attention, and admits that if she did she may have attracted hisattention. She added that she did not think it necessary to moveforward and she concluded her cross-examination by saying that shedid not stop her car suddenly, which indicates that the defendant’sposition was that the collision was due to her stopping the car suddenly.If that had been so the defendant was far too close up to the plaintiff’scar and would have been guilty of negligence.
Plaintiff’s witness stated that she was not alarmed because the defend-ant had ample time to stop and he could have avoided the collisioneither by stopping his car or passing on the side of plaintiff’s car.
On this statement of facts it is quite clear that the defendant wasguilty of negligence—gross negligence I should call it, for no one has aright to drive a highly powered vehicle like a motor car with his attentionabsorbed in something across the way, and much less has he a right to doso on the Galle Face Centre road on a Sunday afternoon. The plaintifftherefore has proved her case and it is not required of her that she shouldprove that she was not negligent.
The next question is whether the defendant has succeeded in provingthat the plaintiff was guilty of contributory negligence. There theonus is on the defendant and the defendant has chosen to rest his casemerely on such facts as he was able to elicit in cross-examination.
If the plaintiff has made clear admissions, then, of course, the defendantcan act on them. Now, the negligence which the defendant allegesconsists in the plaintiff not sounding her horn so as to attract his attention,and in a minor degree he alleges that she might have moved away insteadof remaining stationary. The plaintiff’s reply to this is that she expectedthe defendant to act in a reasonable way and not to keep looking awayfrom the road. But that is only saying that he was negligent and “ if ”,as Solomon G.J. remarked in Robinson Bros. v. Henderson *, “ everydriver o; a motor car were a reasonable man, there would be few accidents;it is against the careless and reckless driver that one has to be on one’sguard …. He (plaintiff) would have realized in ample timethat …. there was danger of a collision. His duty then was toavoid the consequences of the defendant’s negligence.” He referred to aJudgment of Innes C. J., in the case of Solomon and another v. Mussett &Bright, Ltd. who said, “ So soon as it would be evident to a reasonableman that there is danger of an accident, arising from the inability,refusal, or neglect of the wrongdoer to give way, then the rightful userof the road is bound to take all reasonable steps to avoid an accident.”
Plaintiff admits she realized the danger, in fact she commented on it,but she was light-hearted enough to hope that the worst would nothappen. If she had sounded her horn, she may not have attracted thedefendant’s attention, but at least she would not have been guilty of* (1928) S. .4. L. R. App. Div. p. 138.* (1926) A. D. at p. 433.
DE KRETSER J.—Fernando v. Rode.
negligence. As to whether she could have moved forward, the evidenceis doubtful, for her evidence suggests that her car was not in gear, and onehas to realize that whatever happened, happened almost in an instant.
I think the plaintiff ought to have sounded her horn. In the case ofThornton and another v. Fismer Solomon C.J. explained his earlierjudgment and said he meant that while a person might assume that theother driver would act reasonably, it was still his duty to be vigilantand to try to avoid an accident in case the driver of the other car shouldbe careless or reckless. Turning to the case he was then dealing with,which has some similarity to the present case, he stated that the plaintiffswere entitled to assume that the driver would act reasonably, that hewould see and avoid them, but that would not justify them in takingno further notice of the car, and their duty was to try and avoid anaccident. He went on to assume that the offending driver was notknown to be looking away and therefore the conduct of the plaintiffswould be reasonable in assuming that he would avoid them, but he addedsignificantly that if there was something to indicate to them that he wasignorant of their presence, as for example, if they could observe that hewas looking in another direction, then they would not be acting reasonablyin so assuming.
Prima facie therefore the defendant has proved that plaintiff wasguilty of some negligence, and we must take the case on that footing,though I rather feel that plaintiff’s alleged light-heartedness was notonly unreasonable but was really something in the nature of an after-thought, and that the interval of time was so short that she had reallyno time either to think or to act
Assuming, now, that negligence on the part of the plaintiff has beenproved, the next thing the defendant has to prove is that that negligencecontributed to the accident.
Beven on Negligence (vol. I., 1928 ed., at p. 169) deals with thequestion as to what amount of negligence disentitles a plaintiff to recover,a question which arose in the case of Tuff v. War-man. Cockburn C. J.said, “ The true question in these cases is, whether the damage havingbeen occasioned by the negligence of the defendant, the negligence ofthe plaintiff has directly contributed to it ”. Wightman J. said, interalia, “ Mere negligence or want of ordinary care or caution would not,however, disentitle him to recover, unless it were such, that, but for thatnegligence or want of ordinary care and caution the misfortune wouldnot have happened ; nor, if the defendant might, by the exercise of careon his part, have avoided the consequences of the neglect or carelessnessof the plaintiff. ”
Here we have a good illustration of the risk which a defendant takeswhen he does not go into the box to prove his allegation of contributorynegligence, a risk which is alluded to in the next books on the subject.It is rarely that evidence e1 .cited in cross-examination is free from doubtand is sufficient for the defendant to be able to say that he has dischargedthe onus which lay upon him.
> (19S8) S. A. L. R. App. Die. p. 398.
Valiappa Chettior v. Suppiah Pillai.
In the present case we have no evidence telling us what the defendantwas looking at, what the degree of fascination was, when he began to lookat it, and at what time he turned his attention to the road and found)the plaintiff’s car in front of him. We have no evidence as to the rateat which the defendant was moving. Plaintiff said he was movingslowly, but that is a relative term. We have no idea of the distancebetween the two cars when the plaintiff first saw him—a statement byplaintiff’s witness can scarcely be taken as an admission by her, andwhat is the admission in the plaintiff’s evidence? Is it 15 yards or 20yards, or something between?
Counsel for the defendant stressed the statement by the plaintiff’switness that if defendant’s attention was drawn to the fact that theywere ahead, he could have easily stopped, but here the witness was merelysaying that if he did turn his attention to the road, he could have stopped,and she was referring to the place he was first seen to be at; it was laterthat she passed on to the question of the sounding of the horn.
There is then the further fact that while a person might make a remarksimultaneously with seeing a car behind her, to sound her horn wouldlake even a very small amount of time. The question therefore iswhether, even if plaintiff had sounded her horn, defendant would havebeen able to avoid a collision. When there is further the fact to be con-sidered that he might be so absorbed in something as to belong to theclass of persons who have ears but hear not, the doubt becomes greateras to whether plaintiff’s negligence might be taken to be the ultimatecause of the collision.
The onus is on the defendant and in a case of doubt the defence mustfail. That means that the appeal too fails and must be dismissed withcosts.
FRENANDO v. EODE