Cur. adv. vult.
(1943) (1) A. B. R. 367.
(1935) 37 N. L. R. 327.« (1940) 42 A7. L. R. 472.
• 19 Or. App. R. 8.
' 173 B. R. 221.
» (1934) A. I. R. 209.
■in B. R. 1213.
402WIJEYEWARDENE S.P.J.—Kalanasuriya v. Johor an
nearly eight feet in width. On the left boundary of the verge is a drainand beyond the drain is a barbed wire fence forming the boundary of anestate.
The accused’s lorry left the tarred road and went across the grass vergea distance of nearly fifty feet and was stopped after its impact with thebarbed wire fence. Mrs. de Alwis was standing near the barbed wirefence at the point of impact. She received a number of injuries includinga compound fracture of both bones of the lower third of her right leg.
According to the evidence given by the accused, he was driving thelorry about fifteen miles an hour. He saw a cyclist thirty yards aheadof him. He blew the horn and then the cyclist turned to the right andtried to cross the road. The right front mudguard of the lorry struckagainst the cycle, and the cyclist fell down. He swerved to his left toavoid running over the cyclist. In doing so, he applied the foot brakes.Then the lorry left the road and went across the grass verge to the fence.
I am unable to accept the accused’s evidence regarding the circum-stances in which Mrs. de Alwis was injured. On his evidence, the accusedhad covered nearly thirty yards in the time taken by the cyclist to go adistance of about ten feet. He could not have possibly covered thatdistance in that time even if his speed was forty miles an hour. Againhe showed the point X 2 in the sketch to the Subrlnspector of Policeas the place where he struck against the cycle. There were signs of brakemarks from X 2 for thirty-six feet in the direction of Colombo. If hisspeed was fifteen miles an hour and there was even a partial applicationof brakes for thirty-six feet he must have been going very slowly at X 2when he swerved to the left. If he then applied his foot brakes at X 2—as he says he did—it is difficult to understand how the lorry could havegone a distance of fifty feet after knocking down the cyclist. He does notstate that his brakes were defective. Again, though he says he began toapply the foot brakes at X 2, there were no brake marks from the pointX 2 to the point, nearly fifty feet away, where the lorry was foundUltimately.
This is a case where the mere happening of the accident affords “ primafacie evidence of negligence casting upon the party charged with it theonus of proving the contrary, for owing to the nature of the accident.res ipsa loquitur ” (Broom’s Legal Maxims, Seventh Edition, page 247).The accused’s lorry left the road, went a distance of fifty feet and injureda person standing eight feet away from the edge of the road. Theversion given by the accused is so inherently improbable and inconsistentthat it has to be rejected. The circumstances of the case show that theaccused must have driven his lorry at an inordinately excessive speed,and that he was guilty of a very high degree of negligence in the meansadopted by him to avoid the risk consequent on the speed of the lorry. I
I dismiss the appeal.
Appeal dismissed.