125-NLR-NLR-V-48-WIJESINGHE-Appellant-and-RAJAPAKSE-Respondent.pdf
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DIAS J.—Wijesinghe v. Rajapakse.
1947Present: Dias J.
WIJESINGHE, Appellant, and RAJAPAKSE, Respondent.
S. C. 1,735—M. C. Colombo, 83,535.
Motor car Avoiding accident—Duty of driver—Motor Car Ordinance, s. 86 (1).
An accused can be convicted under section 86 (1) of the Motor CarOrdinance only where an accident is imminent or at any rate foreseen oranticipated.
Attygalle v. Sabapalhy (1931) 33 N. L. R. 83. distinguished.
A PPEAL against a conviction from the Magistrate’s Court, Colombo.
F. N. Gratiaen, K.C. (with him Bawa), for the accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
May 27, 1947. Dias J.—
In this case the accused-appellant started off in his car X. 4078 from abungalow which he was visiting in order to get to his own home which laya few yards across the junction between Gregory’s Road and MacarthyRoad.'•
The Magistrate has accepted the appellant’s evidence almost in toto.The appellant came along Gregory’s Road going towards Kynsey Road at aslow speed of about 10 to 12 miles an hour. He was quite accustomedto passing through this junction and he says that, in accordance with hisusual custom, he slowed down, looked both to the left and to the rightand seeing nothing in sight, as he was entitled to do, he proceeded to thecentre of the junction, when suddenly a military ambulance driven at afurious speed came along Macarthy Road going towards Ward Placewhich is from his right, and crashed into him as he was stationaryin the centre of the junction. The ambulance then went round his car,crashed through a parapet wall and went into the garden of bungalowNo. 96 at the junction. For some reason which is not at all clear, theauthorities instead of prosecuting the ambulance driver for recklessdriving charged the appellant under two counts. They charged him in thefirst place, with a breach of section 85 (10) of the Motor Car Ordinance,1938, for a breach of the off side rule. The accused may have beenconvicted of that offence, but the Magistrate has acquitted him. Thesecond charge against the accused was, that he committed a breach ofsection 86 (1) of the Ordinance in not taking such action as may benecessary to avoid an accident. He has been convicted of this offence.It is not at all clear what avoiding action the appellant could have takenunder the circumstances. On the contrary, he took the best possibleavoiding action, namely, he brought his car to a halt and it was entirelythe negligence or recklessness of the military driver which caused thiscollision.
I think, the accused should have been acquitted on the facts which theMagistrate has found. A case which is almost in point was recentlydecided by my brother Keuneman in 1831, Municipal Magistrate’s Court
DIAS J.—The King v. Stephen.
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of Colombo, 84,623, Supreme Court Minutes of February 7, 1947.Keuneman J., with reference to section 86 (1), said, “ Even if theMagistrate is right in ascribing this duty to the driver of a motor car,(that is, to slow down at a junction, look out for traffic on the crossroadsand then cross the junction wbd&it is safe for him to do so) I do not quitesee how the driver can be convicted, under section 86 (1)…. It
is not quite clear exactly what the scope of section 86 (1) is . …
I am inclined to think that this presupposes that an accident is imminentor at any rate foreseen or anticipated. Under such circumstances, nodoubt, it will be the duty of the driver of the motor car to take all actionnecessary to avoid the accident and if he fails to do so he may be madeliable under these sections. But, in the present case, there is nothing toindicate that there were any steps either necessary, or possible which theaccused could take at the time when the accident could fairly be antici-pated.”
I agree with the reasoning and I think the appellant was entitled to beacquitted. The case of Attygalle v. Sabapathy1 is distinguishable on thefacts. The appeal is allowed and the accused is acquitted.
Appeal allowed.