030-NLR-NLR-V-16-BOUSTEAD-v.-PERERA.pdf
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Present: Lascelles C.J. and Wood Benton J.BOUSTEAD v. PERERA.
310—D. C. Randy, 21,574.
Bide of the road—Parties meeting on the sudden.
Although the rule of the. road is not to be adhered to, if bydeparting from it an injury can be avoided, yet in cases whereparties meet on the sudden, and an injury results, the party onthe wrong side should be held answerable, unless it appear olearlythat the party on the right had ample means and opportunity toprevent it.
A
PPEAL from a judgment of the District Judge of Kandy(F. B. Dias, Esq.). The facts appear from the judgment.
Sandrasegara, for the appellant.
Hayley, for the respondent.
December 13, 1912. Lascelles C.J.—
This is an appeal from a judgment of the District Court of Kandyawarding the plaintiff damages for injuries sustained by his motorcycle in a collision with the motor car of the defendant. We haveonly, the version given by the plaintiff and that given by thedefendant as to the exact circumstances in which the collisionoccurred. The accounts given by the plaintiff and the defendantas to a number of the incidents are the same. But there is avariation as to what happened at the precise moment of the collision.
The learned District Judge has accepted the account given by theplaintiff, and I see no* reason for disagreeing with him in thatrespect. The evidence of the plaintiff is to the effect that he wasriding a motor cycle up a- steep hill in the neighbourhood of Gainpola,and that as he was approaching a curve in the road where theaccident occurred he was on his left hand side of the road, which,of course, was his proper side. . He states that when first he sawthe defendant’s car it was about the middle of the road;* that thedefendant, thinking apparently that the plaintiff intended to passhim on his right of the road, steered to his, the defendant’s, right,and came into collision with the plaintiff at the edge of the road onthe left of the plaintiff. Now, on these facts, it has been suggested,that the duty of the plaintiff was to have passed the car of thedefendant on the plaintiff’s right hand of the road. It is contendedthat the circumstances are such as to have justified the plaintiff indeparting from the rule of the road and taking the wrong side of the
Vol. XVI*
, 12- j?. H. 86X77 (1/84)
1912.
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1012.
Imboellbs
C.J.
BousUadv, P&rera
road. I am of opinion that the plaintiff was right in observing therule of the road, and that he would have taken on himself a veryserious risk if he had attempted to pass* the defendant on the wrongside of the road. There are no doubt cases where a passenger isjustified in departing from the strict rule of the road. But in acase like this, where the vehicles met each other on a sudden turnon a road, the only safe course to take is for each of them to keepthe side of the road which is prescribed by the rule. A good dealof stress has been laid on the fact that there was a heap of stones onthe left of the hill going upwards near the place where the collisionoccurred. But there is no evidence, and I am not prepared toassume that this heap of stones projected so far into the road as tomake it impossible for the defendant to leave room for the plaintiffto pass on the proper side. No blame, I think, attaches to eitherside as regards giving notice of their approach either by the horn inthe case of the car, or the “ cut out ” in the case of the cycle, andthere is no evidence that either side was going at an excessive speed.But I think the finding of the District Judge is clearly right, thatthe defendant committed an error of judgment in attempting topass the plaintiff on the right hand side of the road.
With regard to damages, I see no reason to regard the award asotherwise a fair one. I think the appeal fails, and must be dismissedwith costs.
Wood Renton J.—
I entirely agree, and wish to add a few words. The learnedDistrict Judge has, in my opinion, with equal clearness and correct-ness, both interpreted the evidence and stated the law applicable toit. He finds as facts that the curve of the road on which theplaintiff and the defendant met was not at all a sharp one, but wasa fairly broad sweep to the right; that the defendant, who hadnaturally, and properly until danger arose, taken the centre of theroad for the purpose of clearing the curve, had imagined that theplaintiff, who was coming up the curve on the left side, would, whenhe saw the position of the defendant’s car, endeavour to pass it onthe right, and that it was in consequence of that error of judgmenton the defendant’s part that the accident occurred. The lawapplicable to such a state of facts was explained as far back as 1828 ‘in England in the case of Chaplin v, Hawes.1 It was there heldthat, although the rule of the road is not to be adhered to if, bydeparting from it, an injury can be avoided, yet in cases whereparties meet on the sudden, and an injury results, the party on the.wrong -side should be held answerable, unless it appear clearly thatthe party on the right had ample means and opportunity to preventit. In applying that rule to the particular facts of the case, Chief* (1828) 8 Car. 4 Pay. 664.
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Justice Best made use of the following language:—"On a sudden am«n may not be sufficiently self-possessed to know in what way todecide; and in Buoh a case I think the wrongdoer is the party whois answerable for the mischief, though it might have been preventedby the other party’s acting differently.’’ It seems to me, in thepresent case, that the plaintiff had no reason to suppose that thedefendant, at the time of their meeting, would not observe the ruleof the road, and there is nothing to show that there was anythingin the state of the road to prevent him from having done so.
1919.
WoodBnoos J.
Bouateadv. Perera
Appeal dismissed.