( 501 )
Present: Fisher C.J. and Jayewardene A.J.
COABD v. BECKEB.34—/>, 0. Colombo, 20,189.
Action for damages—Motor collision—Contributory negligence—Evidenceavailable, not produced—Evidence Ordinance, 8. 114.
The plaintiff’s car in coming up from a eros9 road to the mainroad had completed the torn, when it came into' collision with thedefendant’s car, which was proceeding along the main road on thewrong side.
Held, that the defendant was liable in damages irrespective ofthe question whether there was any contributory negligence on thepart of the plaintiff.
Where- a party does not call evidence, which he might produce, itis a fair inference that such evidence, if produced, would beunfavourable to him.
PPEAL from a judgment of the District Judge of Colombo.The facts appear from the judgment of the Chief Justice.
Garvin, for plaintiff, appellant.
F, H. B. Kochr for defendant, respondent.
July 2, 1928. Fisher C.J.—
The main question which we have to decide in this case is whetheron the evidence the learned Judge should have found for the plaintiff-appellant. The evidence of the plaintiff and his wife is not calledin question as regards its honesty, and it is not a case of the learnedtrial Judge having been in a better position, than is this Court,to judge of the' weight of the evidence by reason of the fact that hesaw these witnesses and observed their demeanour. Their evidence,is free from any attempt to exaggerate and it bears the impress oftruth and, in my opinion, the salient facts which it is necessary forus to consider and act upon have been established by it. On theother hand the absence of evidence on behalf of the defendantwhich might have been put before the Court is a factor which, inmy opinion, has an important bearing on the case. Illustration '(g),section 114, of the Evidence Ordinance provides that “ The Courtmay presume . . . . (<7) That evidence which could be andis hot produced, would if produced be unfavourable to the personwho withholds it.*’ The evidence in question is that of the ladywho was in the car with the defendant at the time the accidenthappened, to whom he was subsequently married. She wasapparently quite uninjured by the accident and it is obvious thatthe defendant could have had her evidence put before the Court,
( 602 )
and bis not having done so leaves me to draw the inference thatit would have, been unfavourable to him. There was moreover6ome indication in the evidence of the defendant himself that suchan inference is correct. In reply to a question put by Mr. Garvin,the plaintiff’s counsel, he said that he was aware according to hiswife’s account that he 44 had bright head-lights and they were verygood ones and threw a beam' of fifty yards," but he said that wasnot correct.
The decisive questions are whether the defendant was drivingon the right hand side of the road when he should have been on theleft, and if he was, whether there was any excuse for his so doing.The defendant clearly was not proceeding on the left side of the road.He said in cross-examination 11 If I was keeping on to the left sideojE the road nothing would have happened probably ", and thelearned Judge finds that driving as he was on the crown of the road,which at that particular spot is not the centre of the road 44 more tothe right of the road than to the middle of it " he was encroachingto some extent on the right side 'of the road. The learned Judgesays 4 4 It is clear that the defendant did notr expect to see another carin front of him, and this could only have happened by plaintiff’s carturning into the road at a spot where the defendant did not expectany car. Plaintiff himself is not likely to have turned into thehigh road if he realized that another car was approaching from theside of the Fort, and I conclude that he took the turn becausehe did not know that another car was coming. Considering all thecircumstances I come to the conclusion that the collision cannot beattributed to the negligence either of the plaintiff or of the defendant.Both parties might have been considered negligent if such anaccident took place in the day time, but at 12.30 a.m. they wereboth entitled to expect the road to be free from traffic." I do notthink that the learned Judge can have intended to lay down asabsolute proposition that at 12.80 a.m. a person driving a motorcar on a main road into which many side roads emerge is entitledto assume that no vehicle will come from a side road, and that aperson coming on to the main road is entitled to assume that themain road is free from traffic. The learned Judge proceeds 44 Itherefore hold on the 1st issue against the plaintiff. With regardto the 2nd issue the fact that he turned into the road withouttaking sufficient precaution is I think sufficient material for meto conclude that he had been. guilty of contributory negligence, butthe question does not really arise in view of my finding on the 1stissue.” In the absence of any finding that there had been negligenceon the part of the defendant the finding of negligence on the part ofthe plaintiff on the 2nd issue would constitute not contributory butsubstantive negligence. The nett result of the findings is that theonly negligence in the whole occurrence was that of the plaintiff in
( 508 )
that “ he turned into the road without taking sufficient precautionHowever, the learned Judge was of opinion that the plaintiff wasnot likely to have turned into the main road had he realized thatanother car was approaching and that he was entitled to expect theroad to be free from traffic at that hour, he found that the collisioncould not be attributed to the plaintiff and he did not give judgmentfor the defendant on his chum in reconvention. But in my opinionthe finding that the plaintiff did not take sufficient precaution isnot warranted by the evidence. I think the evidence shows thatthe plaintiff came on to the main road knowing that a motor carwas coming from the direction of the Fort, for I think that theevidence of the plaintiff and of his wife as to seeing lights cannot berejected, and that having given due warning of his being aboutto come on to the main road he calculated, and rightly calculated,that the on-coming car was at a sufficient distance from the junctionto enable him to take his proper place on the main road, and thatthe defendant, being on the right side of the road to a considerableextent at all events, persisted in remaining there after he becamesubject to the duty imposed on him with regard to traffic comingfrom the opposite direction. Taking the evidence of the plaintiffthat his car was at a standstill when he was run into to be true, andadding to it that a considerably heavier car than his ran into himat the rate of something like 20 miles an hour, the position of thecars opposite to the exit from the side road cannot be said to beinconsistent with the plaintiff's evidence. That being so, andhaving regard to the presumption arising under section 114 of theEvidence Ordinance, 1 think there is no room for any other deduc-tion from the evidence than that the collision was due to thenegligence of the defendant in persisting in keeping on the rightside of the road after he was aware or ought to have become awarethat the plaintiff's car was approaching.. I would therefore allowthe appeal and set aside the judgment of the learned Judge. Asregards the amount of damages, this has not been adjudicated upon,but in order to obviate the necessity for sending the case backit has been agreed between the parties that the amount of damagespayable to the plaintiff should be Bs. 800.
Judgment therefore will be entered for the plaintiff for Es. 800.together with the costs of hearing in the District Court and ofthis appeal.
1 am inclined to accept the evidence of the plaintiff and his wifethat their car had completed the turn and gone some yards towardsColombo when the collision took place. The * position of theplaintiff’s car after the accident on the Fort side of Bidgeway placeand the defendant's admission that he must have dragged the
( h04 )
^ plaintiff's car two or three yards support this view. The plaintiffs■ Javbwab- statement to the Police that night corroborates hia later ' evidence.pbwe-A.J. Soon after the collision when it was evident that the defendant wasCodrd v. on the wrong side of the road, he apologised to plaintiff’s wife findBicker said it was a very bad skid, meaning, as I take it, that he got on tothat side as the result of a skid.
The defendant’s wife was in his car at the time of the collision,but has not been called, and the Court may assume that her evidencewould not be favourable to him. (Section 114 of Evidence Act andAmeer Ali 716.)v "
In Sooriah flow v. Cotaghery Boochiah 1 where a witness who fromhis situation must have been well acquainted with the subject-matterwas not called, the Privy Council held that everything is to bepresumed against a party keeping his adversary out of possession ofsuch evidence. Again, in Rajah N. Singh Deo v. Ramanooyrah Rby& others,3 it was held that the inference not unfairly to be drawnfrom the conduct of the plaintiff in not calling witnesses whom heha7, cited was that those witnesses would have deposed to a stateof facts exactly as set up in the defendant’s answer.
Section 57 of the Evidence Act provides that the Court shall takejudicial notice of the rule of the road on land or sea. The customor rule of the road on land in England,, which is followed here, isthat horses and carriages (including motor cars) should respectivelykeep on the near or left side of the road, except in passing frombehind, when they keep to the right. (Taylor on Evidence, 8. 5, andAmeer All’s Evidence Act, 5th ed.y p. 448.) Our Motor By-laws areto the same effect..
Every person driving a car is required when meeting any carriage,horse, or cattle to keep his car on the left or near side of the road.(Motor By-laws No. 26 under s. 22 of Ordinance No. 4 of 1916.)
The defendant. has not stated why he was violating the rule ofthe road. He has had to admit that nothing would probably havehappened if he kept to the left.
Though the rule of the road is not to be adhered to, if by departingfrom it, an injury can be avoided, yet where parties meet on thesudden and an injury results the party on the wrong side shouldbe held answerable, unless it appears clearly that the party on theright had ample means and opportunity to prevent it. (Chaplin v.Hawes.*)
The second issue was whether the plaintiff was guilty of contribu-tory negligence. In one place the learned Judge holds that theplaintiff was negligent and had contravened the Municipal by-lawrequiring the driver of a car coming out of a side road to comeslowly and if necessary to pull up his car, and not to turn' in till
1 2 Moo 1 A. 114, 126 (1838).*‘7 W. B. 29, 30 (1867) (Indian).
(1828) 3 C. & P. 554 N. P.
( 505. )
he had made room for traffic on the ‘main road. But in my view,even if the plaintiff had been negligent in turning on to the mainroad, the courses of the two cars would not have crossed and therewould have been no collision if the defendant had not subsequentlycontinued on the wrong side of the road.
In Admiralty Commissioners v. 8. 8. Volute/ Lord Birkenheadin a judgment, which Viscount Finlay regarded as a great andpermanent contribution to the law of contributory negligence andto the science of jurisprudence, applied the following principle:—
“In all cases of damage by collision on land or sea, there arethree ways in which the question of contributory negli-gence may arise. A is suing for damage thereby received.He was negligent, but his negligence had brought about astate of things in which there would have been no damagesif B had not been subsequently and severably negligent.A recovers in full.*'
That seems to me completely to fit the situation of the plaintiff,even if we assume that he had contravened the Municipal by-law,as I do not think he had.
In Spaight v. Tedcastle,2 Lord Selborne said: —
• “ When the direct and immediate cause of damage is clearlyproved to be the fault of the defendant, contributorynegligence by the plaintiffs cannot be established merelyby showing that, if those in charge of the ship had in someearlier stage of navigation taken a course, or exercised acontrol over the course taken by the tug, which theydid not actually take or exercise, a different situationwould have resulted, in which the same danger mightnot have occurred. Such an omission ought not to beregarded as contributory negligence if it might in thecircumstances which actually happened have been un-attended' with danger but for the defendant's fault, and ifit had no proper connection as a cause with the damagewhich followed as its effect."
The same principle was adopted and followed in Anglo-New found-land Co. v. Pacific Steam Navigation Co.3 According to LordO’Brien C.J. the test is whether the defendant’s negligence was thereal, direct and effective cause of thex misfortune. (Batterby v.Drogheda Corporation.4)
It appears to me that the defendant was wholly at fault. I agreeto the order of my Lord, the Chief Justice.
1 (1922) 1 A. C. 129, 136.-» (1924) A. C. 406, 420.
* (1881) 6 App. Cos. 217, 219.• (1907) 2 1. R. 134— (21 Hals. 447).