011-NLR-NLR-V-39-COOPER-v.-DE-SARAM.pdf
30FERNANDO A.J.—Cooper v. De Saram.
Present: Fernando A.J.
COOPER v. DE SARAM.365—M. C. Colombo, 37,335.
Motor car—Driver overtaking traffic—Charge of causing obstruction—Risk ofaccident—Failing to keep to left side of road—Ordinance No. 20 of 1927,s. 44 (2) and (4).
Where the driver of a motor car io charged under section 44 (4) of theMotor Car Ordinance with overtaking traffic so as to obstruct trafficproceeding in the opposite direction,—
Held, that it must be established that the act of the accused caused therisk of an accident to a vehicle proceeding in the opposite direction.
Where the driver failed to keep to the left side of the road by reason ofthe fact that he was attempting to overtake another car,—
Held, that he was not guilty of an offence under section 44 (2) of theMotor Car Ordinance.
^^PPEAL from a conviction by the Municipal Magistrate of Colombo.
"Gratiaen. for accused, appellant.
T. S. Fernando, C.C., for respondent.
Cur. adv. vult.
August 30, 1937. Fernando A.J.—
The accused-appellant in this case was charged with overtaking trafficproceeding along Darley road in the direction of Maradana so as toobstruct traffic proceeding in the opposite direction in breach of section 44(4) of Ordinance No. 20 of 1927. He was also charged with failing tokeep to the left side of the road in breach of section 44 (2) of the Ordinance.The Municipal Magistrate found the appellant guilty of both these chargesand imposed a fine of Rs. 5 on each charge in default five days’ simpleimprisonment.
The facts as found by the Magistrate are these. The accused wasdriving along Darley road towards Maradana, and near St. Joseph’sCollege, the accused attempted to overtake a car which was going ahead.While attempting to overtake that car, the appellant saw .another carcoming from the opposite direction, and that car was apparently aboutto overtake three bullock carts that were also coming from the directionof Maradana. When he saw the car overtaking the carts, and comingtowards him, the appellant thought that there was a possibility of' acollision as that car was driven very fast, and he then cut across the roadto – the extreme right apparently in front of the bullock carts. TheMagistrate then came to the conclusion that there was no immediatedanger of any collision, and that the action accused took in cutting acrossthe road was unnecessary. With, this view I do not disagree, but thecharge against the accused was that he did obstruct traffic proceeding inthe. opposite direction, meaning the three bullock carts and the motorcar that was coming from Maradana, and on this point it seems to methat there is no evidence of any obstruction. Sub-Inspector Cooper ofthe traffic Police gave evidence, but there is nothing in that evidence to
Police Sergeant Hendrick v. Arumugam.
31
indicate that when the accused crossed the road to his right, he passedso close to the bullock carts as to create any risk of an accident. Sub-section (10) of section 44 lays down that “for the purpose of this section amotor car obstructs other traffic if it causes risk of accident thereto,” andhowever unnecessary or negligent the act of the accused may be, I do notthink the conviction can be upheld in the absence of evidence that the actof the accused did obstruct either the bullock carts or the car coming fromMaradana, in the sense in which that expression is defined ift sub-section(10). As far as I read this section, there is nothing to prevent the dviverof a motor car crossing the road for any purpose, but in so crossing theroad he must take care that he does not cause the risk of any accident toa vehicle proceeding in the opposite direction, -and in the absence ofevidence to the effect that the act of the accused did cause risk.: of accident.I do not think a conviction can be sustained.
With regard to the second charge it seems to mg that the accused didnot commit any offence in failing to keep to the left side of., the road.Sub-section (2) provides that a car which is being overtaken by'anothercar or which meets another car shall be kept to the left side, but thesub-section proceeds to enact that a car which is overtaking other traffib.shall be kept on the right side of such traffic, and if the accused didattempt to overtake a motor car which was ahead of him, it ^eemsobvious that he was no longer bound to keep to the left side of the road.It seems to me that the act of the accused, if it could be the basis of an/charge at all, might give rise to a charge of obstruction under sub-section(4) or (5), and that is the first charge which I have already dealt with. Inthese circumstances, I think the conviction was wrong and I would acquitthe accused.
Appeal allowed.