HEAHNE J.—Mohideen v. Senanayake.
1942Present; Hearne and Jayetileke JJ.
MOHIDEEN v. SENANAYAKE,10—D. C. Colombo, 12,431.
Motor car—Plaintiff knocked down while alighting from train car—Negligenceof defendant’s driver—No contributory negligence on plaintiff’s part—Liability of defendant.
Where the driver of defendant’s car drove it too close to a stationarytram car, which had stopped at a regular stopping place, too fast andwithout sounding his horn,' and ran into the plaintiff who, at the timethe car emerged from behind- the tram car, was in the act of alightingfrom the tram car with his back momentarily turned in the directionfrom which the car came,—
Held, that the driver had been negligent.
Held, further, that as the plaintiff was in the actual process of alightingfrom the tram car and as there was ample room for the car to pass himin safety, he cannot be said to have been negligent merely because,before he put his foot on the ground, he did not look beyond the end of,the tram car. The plaintiff was entitled to assume that if-a vehicle doespass the tram car it will, at least, give him a wide enough berth forstanding room on the ground.
^PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, K.C. (with him Cyril E. S. Perera). for defendant,appellant.
E. G. Wickremanayokerespondent.
(with him E. B. Wickremahayake), for plaintiff,
Cur. adv. vult.
July 22, 1942. Hearne J.—
In this case it was found by the trial Judge that the driver of the carof the defendant appellant drove it too close to a stationary tram car,which had stopped- at a regular stopping place, too fast and withoutsounding his horn. It was also found that in so doing he ran into theplaintiff who, “ at the time the car emerged from behind the tram car,was in the act of alighting from the tram car with his back momentarily.turned in the direction from which the car came ”. On these facts thedriver was certainly negligent..
On appeal, it was argued that, assuming the driver was negligent, theplaintiff was also negligent and that if, in consequence of their joint
HEAR.NE J.—Mohideen v. Senanauake.
negligence, a collision became imminent and the driver could not by theexercise of ordinary care and diligence have avoided it, the plaintiff•cannot succeed.
It is impossible. to deduce from the evidence of the driver that, whenthe danger of an accident threatened, he did all that he could reasonablyhave done to avoid it: for he merely said that he did not see the plaintiffalight, does not know how the plaintiff was injured and did not see himtill after he was injured. There can, I think, be no doubt that he wasan untruthful witness. It appears from the evidence of the tram cardriver, which was accepted by the Judge,' that the defendant’s driverdid see the plaintiff before the accident. According to this witness thedriver of the car tried to avoid a collision by swerving to his right butwas too late. If he had become aware of the presence of the plaintiffwhen he had almost reached the tram car, it is possible he, thereafter, didall he could to avoid an accident. If he had become aware of the presenceof the plaintiff further back than the end of the tram car, it may be thathe did not exercise ordinary care and diligence in his failure to pass theplaiiitiff in safety. The question can be answered only if it is knownwhen he saw the plaintiff before the accident. The tram car drivercould not help the Court. The defendant’s driver could, but he refusedto say anything on the subject. To the end of his evidence he main-tained that he had not seen the plaintiff before the accident and eventhat he had not swerved to avoid him.‘
I turn to the question • of whether the plaintiff was negligent. What■are the facts ?
The exit door used by the plaintiff was, in the middle of the tram caron the right hand side. In the demonstration given to the Court “ hefaced the road on to which he was going to descend, and then havinglooked towards the Fort, he grasped the railing with his left hand andin doing so looked towards his rear over his right shoulder. He thenfor a moment in trying to alight’turned his back completely towards theMaradana direction and put his right foot on the ground, after satisfyinghimself that the road was clear, and that no vehicle that was visible wasapproaching him”. It was “just then”, according to the judge’sfinding, that the defendant’s car, overtaking the tram car, knocked theplaintiff down.
In his evidence the plaintiff said that in looking over his right shoulder,that is to say in the direction from which the car came, he did not lookbeyond the end of the tram. That, at any rate, is what he i$ recordedas having said. The Judge’s “ impression is that that was not the fulleffect of the evidence of the plaintiff considered as a whole-”-. “ Theimpression”, he said, “that the plaintiff’s. evidence leaves on my mindis that he saw the whole length of Norris Road to his rear up to the Bo-treejunction but that he was particularly looking at the rear of the tram carto see whether any vehicle which was masked from his view was comingfrom the back of the tram car ….
Counsel for the appellant has invited us to accept what the plaintiffactually said, “ I looked up to the end of the tram car ”, and to hold thatin looking only so far and no further he acted negligently.
• Mutturaman Chettiar v. Kumarappa Chettiar.499
The evidence in the case indicates that the plaintiff was knocked downin the immediate vicinity of the tram car. The defendant’s driver saidthat he had a clearance of three feet but, in the finding of the Judge, thedefendant's car was very much less than two feet from the tram carwhen it passed. The tram car driver said that the motor car “ almostgrazed along the tram car ” and that “ the plaintiff had put his rightfoot on the ground and was struck before he could get his left foot to theground”. The defendant’s driver admitted that there was no othertraffic on his side of the road.
Can it be said that the plaintiff was negligent because, before steppinga foot or two on to a side of the road which was “ clear of other traffic ”.he did not look beyond the end of the tram car to his rear ? I do notthink so.
When a tram car has stopped at a regular stopping place,, for thepurpose of taking on or discharging passengers, a passenger alighting isentitled to assume that a motorist will anticipate that passengers will begetting on and off the tram car. He may also assume that if a vehicledoes pass the tram car it will at least “ give him a wide, enough berth forstanding room on the ground Where, as in the circumstances of thiscase, the plaintiff was not crossing the road but was in the actual processof alighting and no more, and there was ample room for the car of thedefendant or any car to pass him in safety, he cannot be said to havebeen negligent because, before he put his foot to the ground, he did notlook beyond the end of the tram car.
The damages awarded are more than I would personally have awarded.This, however, is not a good ground for reducing them. The Judge hasproperly instructed himself in regard to the basis of assessment and Iam disinclined to interfere.
The appeal is dismissed with costs.
Jayetileke J.—I agree.
MOHIDEEN v. SENANAYAKE