NAGAIJNGAM A-J.—Rajah v. Abeyeguneu/ardene.
1946Present: NagaBngam A.J.
RAJAH, Appellant, and ABEYEGUNEWARDENE, Respondent.
1,374—M. C. Colombo South, 6^31.
Motor car—Driving in such manner as to obstruct other traffic—Meaning of the-term “obstructing traffic ”—Motor Car Ordinance, ss. 85 (7), 86,175.
Where a motorist crosses the road causing some slight obstructionto the other traffic he cannot be said to be guilty of obstructing trafficwithin the meaning of section 85 (7) of the Motor Car Ordinance.
PPEAL against a conviction from the Magistrate’s Court, Colombo-South. .
F. A. Hayley, K.C. (with him B. D. Gandevia), for the accusedappellant.
J.G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
December 17, 1946. Nagalingam A.J.—
The charge against the accused in this case is that he did drive a motorcar from a highway into a place which is not a highway in such a manneras to obstruct other traffic on the highway in breach of section 85 (7)of the Motor Car Ordinance. He was found guilty and sentenced to pay.a fine of Rs. 50 (Fifty).
NAGAUNGAM A.J.—Rajah v. Abeyegunevoardene.
The main ground that has been urged in appeal on his behalf is that anAnalysis of the evidence led on behalf of the prosecution reveals that theaccused’s version of how the accident which has given rise to this prosecu-tion is entitled to prevail over the version given by either of the twoprosecution witnesses who themselves speak to the circumstances attend-ing the accident though in parts of their testimony they are in conflictwith each other. Briefly the facts are that the accused was driving fromthe direction of Colombo towards Nugegoda along the High Level roadat about 1 o’clock on the afternoon on the day in question keeping wellto his left and that as he approached the junction of Frances place withthe High Level road he drove his car across the High Level road to turninto Frances place ; while his car was yet on the High Level road closeto the junction of Frances place, a naval truck driven from the directionof Mugegoda towards Colombo came and banged into the left side of theaccused’s car.
The case for the accused is that he is a frequent user of this part of theroad, that he came along the High Level road and before taking the turnhe looked right ahead of him as far as he could, that is to say, up to thebend of the road which is now proved to be about 85 feet from the junctionof Frances place according to the architect, Gonzal, and seeing no traffiche slowly drove across the centre of the road and got on to the right of theroad and while his car was yet on the main road but almost close to theimaginary right hand edge of the road at the junction his attention wasattracted by the noise caused by the naval truck getting into a skid at adistance of 55 feet away from him and as he looked he saw the truckcome towards his car on the skid and strike against his car. Admittedly,the road was wet after the rains.
The two witnesses for the prosecution are the driver of the naval truck,one Banda, and one Lt. Post who was seated by the driver. Accordingito Lt. Post, the truck was driven from the direction of Nugegoda towardsColombo, and as he came from the direction of Nugegoda towards thebend, that is to say, the bend 85 feet away from the junction of Francesplace, he noticed a lorry coming from the opposite direction, that is to say,the same direction as the one that was being taken by the accused. Hefurther says that as he reached the bend he saw three private cars followingthe lorry and that the last of the three cars was on his side of the road,apparently turning into Frances place.
If Lt. Post’s evidence, which the learned Magistrate accepts, is to beacted upon, there can be little doubt that at a distance of 85 feet from thejunction of Frances place he had noticed the car of the accused turn andget on to its right side of the road. Two facts emerge very clearly fromthis evidence of Lt. Post. One is that the driver of his truck if he kepta proper look-out must have seen from a distance of 85 feet the accused’scar take the turn across the road and the second is that the accused hadbegun to take his turn into Frances place while yet the truck was 85feet away from the junction. The driver, however, says that he noticedthe car only when he was five yards away from it but in view of Lt. Post’sevidence that one could see for a distance of 35 yards from Frances placetowards the direction of Nugegoda and the more reliable evidence of
NAGALXNGAM AJ.—Rajah b. Abeyegunevoardene.
the architect Gonzal that a distance of 85 -feet only is visible from Francesplace, it is not possible to reconcile the driver’s evidence that he noticed,the accused’s car only when he was five yards away from it.
It is probably well to set out here another major factor in regard towhich there is conflict between Lt. Post and driver Banda. According;to Lt. Post, when the brakes were applied by driver Banda the truckskidded into the first of the civilian cars and bounced off it into the cardriven by the accused. The driver made no mention of a skid to the-Police. At the trial, though the driver admitted that his truck wasinvolved in a skid, he makes no mention of his truck skidding into andbouncing off another car before it banged into the accused’s car. Nowif one examine Posts’s evidence on this point, it is clear to see that thefirst car into which the truck skidded must have been some distance awayfrom the accused’s car for the lengths of the cars and the distances theywere apart from each other must be taken into account; therefore whenthe truck skidded into that first car the brake must have been applied notat a distance of five yards, as the driver says, from the accused’s car butvery much further away, and that is more in keeping with the accused’stestimony that it was at a distance of something like 55 feet. That theaccused drove his car at a moderate speed is testified to by Post himself.Banda, on the other hand, says he drove his truck at about 20 to 25 milesan hour and the evidence shows that from the bend already referred toto the junction of Frances place the road descends steeply and the truckwould therefore have had a tendency to gain speed. One can thenvery well understand how the application of brakes on the vehicle thatwas driven at a fairly fast speed would create conditions favourable to askid.
The question for decision is whether where the driver of a motor carsees no vehicle ahead of him for a distance of 85 feet and turns carefullyfrom a highway into a road which is not a highway he is guilty of obstruct-ing traffic. The term “ obstructing traffic ” must necessarily be arelative term having regard to the conditions of the traffic on the road atany specified point of time. When a motorist attempts to get from oneside of the road to the other he must, where the road carries a large volumeof traffic, necessarily cause obstruction to other traffic to some extent,unless, of course he crosses the road at a spot on either side of which thereis no bend for a distance and at a moment of time when there is no trafficto be seen during the whole of the time taken by him in crossing from oneside of the road to the other. I do not think that where a motoristcrosses the road causing some slight obstruction to the other traffic hecould be said to be guilty of obstructing traffic within the meaning ofsection 85 (7) of the Motor Car Ordinance. In fact the Legislature hasforeseen the difficulties that would otherwise arise and in section 86provides that notwithstanding anything contained in section 85, it shallbe the duty of the driver of every motor car on a highway to take suchaction as may be necessary to avoid any accident. It would be advan-tageous also to note that the term “obstructing traffic” is defined in theOrdinance itself in section 176 thereof as follows: “Obstructing trafficincludes any wilful act or unreasonable use of a highway which is likely
NAGAUNGAM AJ.—Rajah v. Abeyegunewardene.
to cause any risk of accident or damage to traffic on the highway or toimpede the free movement of traffic in any manner required or permittedby law on the highway If attention is directed to this definition havingregard to the facts of this case it would be seen that unless it could beestablished that the accused used the highway unreasonably and that hewas likely thereby to cause risk of accident or damage to traffic on thehighway he could not be said to have obstructed traffic. I think whereit is shown as in this case that the driver of a motor car drove his vehiclealong a highway-keeping well to his left and after taking stock of thetraffic on the road to a distance of 85 feet and satisfying himself thatthere was no other traffic which would be impeded by his taking a turnacross the highway crosses the highway at a moderate or even slow speed,he cannot be said to be obstructing traffic, for on any other reasoninghe could never cross the road.
The accident in this case must be attributed, as both Lt. Post anddriver Banda say, to the fact that the truck skidded, for both thewitnesses are agreed that the accident could otherwise have been avoided.
Again, in fact, it is not the case for the prosecution that there was notsufficient room for the truck to have negotiated in safety the car of theaccused though the learned Magistrate has taken the view that owing tothe presence of other traffic on the road the naval truck could not havepassed the vehicle of the accused. But this view of the Magistrate isopposed to the express testimony given, as I said, by the driver and thewitness Post. It is therefore plain on these facts that the accident inwhich the truck and the accused’s car were involved was due not so muchto any lack of care on the part of the accused in driving his car from thehighway into Frances place but to the circumstance that at the speed atwhich the truck was driven on a road that was admittedly wet the applica-tion of brakes produced a skid to which alone the accident should beattributed.
In view of the conclusion reached by me I would allow the appeal and
acquit the accused.
RAJAH, Appellant, and ABEYEGUNEWARDENE, Respondent