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PERERA w. THE UNITED PLANTERS’ COMPANY OF
R., Colombo, 9,807.
In an action for damages on the ground of injury done to plaintiff’sperson and his carriage by defendant negligently allowing his carriageto collide with the plaintiff’s, the general rule is that the plaintiff cannotsucceed if it is found that he himself has been guilty of negligence orwant of ordinary care which contributed to the cause of the accident.
But though plaintiff’s negligence may have contributed to the accident,yet, if the defendant could, by the exercise of ordinary care and diligence,have avoided the mischief which happened, the plaintiff’s negligence willnot excuse him.
CTION for damages on the ground that on the night of the10th June, 1899, as plaintiff was driving his pony cart
from Regent street to Jail road in Colombo, a tram car driven byone of the servants of the defendant company along the Maradanaroad collided with the pony cart, causing injury to the plaintiff’sperson and to his pony, cart, and harness. The Jail road was acontinuation of Regent street and the Maradana road intersectedit at right angles. The plaintiff alleged that the collision wasdue “ entirely to the recklessness and negligence of the driver ofthe tram car,” inasmuch as he drove it at a very high speed andfailed to ring the alarm bell of the car or give any other timelywarning of its approach.
The defendant company denied recklessness and negligence onthe part of its driver, and alleged that the accident was causedsolely by the negligence and carelessness of the plaintiff himself.
The Commissioner found that either no bell was rung or theringing was not audible enough to warn off people cominginto the Maradana road from Regent street, but he held that, asthe tram car and pony cart were making for the same point fromtwo different directions, the liability to give warning was as much
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on defendant as on plaintiff. He further held that the tram car wasmoving at its normal speed, and that the plaintiff was driving hispony at a fast trot : “ He let a somewhat loose rein on the pony,“ and when near the tramway he found he had gone too far to be“ able to restrain the animal and prevent its getting on to the tram
” linePlaintiff knew that tram cars frequently passed and
“ re-passed the level crossing, that there was much traffic there,** and that one had to be very careful in crossing the tramway there.** The head light of the tram car shed a light on the. road about eight“ yards in front, and who but one with an utter contempt for his own“ safety would have led himself into such a predicament as that in“ which the plaintiff ultimately found himself?” The Commis-sioner, relying on Centura Forensis, 2, 14, 36, held that the ruleof the road with regard to carriages giving way to one anotherwas as follows: “ The less are to give way to the greater; those“ on foot, for instance, to those on horseback; those on horseback“ again to those driving a vehicle; and of these the empty are to“ make room for the laden ones, and so on.” He was of opinionthat it was the duty of the plaintiff to have exercised the utmostcaution before crossing the tram line, and to have made way forthe tram car. He therefore dismissed plaintiff’s claim.
Wendt, for appellant.
Dornhorst, for respondent.
This is an action against the Tramway Company by the owner ofa cart which was damaged in consequence of a collision between thecart and one of the tram cars. The collision occurred at 10 o’clockat night. The plaintiff’s cart was being driven by his brother andwas coming down Regent street where Regent street crosses theMaradana road. The tramway runs along the Maradana road,and it appears that where these two roads cross the tramway carsstop to take up passengers. The pony and cart were being drivenrather fast, according to the evidence, and the tram car was alsocoming up very fast. It is stated that at nights the tram cars travelfaster than they do during the daytime. The pony cart had all butcrossed the line, but not quite. The tram car .caught the end ofthe cart, and the evidence is that after the collision the tram cardid not stop at once but pushed the cart along some distance.There is no doubt that it was pushed on for some considerabledistance. The statement of the driver of the tram car that it wasnot pushed a single yard is contradicted by the other witnessesof the Tramway Company.
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October 80.Uonsbb, C J.
The Commissioner held that the plaintiff was acting in defianceof the law and the ordinary dictates of reason and common sense.He evolved a principle of law from a passage in the CenturaForensis—a principle of law of general application, which wasthis: “It is the duty of the smaller vehicle of two vehiclescrossing each other to get out of the way of the other.” Now thepassage from which he deduced that principle was one which hasnothing to do with a case of this kind. Van Leeuwen is dealingwith a very narrow road where two vehicles meet, the road beingso narrow that the vehicles could not pass each other, and he saysthat the rule of common sense is that the vehicle which can getaway more easily must give way. It has nothing to do in a caseof two vehicles both of which are using the road broad enough forboth. Therefore I think- that the rule of law by which the Com-missioner purports to have decided this case has no existence.
We are thrown back then upon the general law. It is admittedby Mr. Dornhorst that the Tramway Company has no specialprivileges for usage of the high road. The tramway cars havethe same right to use the road as other vehicles, and no greaterright. It cannot be maintained that the tram cars could travelalong the roads without observing the precautions observed byother vehicles. It was said that the plaintiff had been guilty ofnegligence, and Mr. Dornhorst argued that if the plaintiff wasshown to be guilty of negligence there was an end to his case.
As I understand it, the law of negligence in this Island does notdiffer from the law of England on this point, and I decide thiscase on that assumption. It was clearly laid down by the Houseof Lords in the case of Radley v. The London North-WesternRailway Company (I App. Ca. 754) that it was not sufficient todisentitle the plaintiff to succeed, to prove that if there hadnot been negligence on his part the accident would not havehappen. Lord Penzance in that case said that there weretwo propositions which governed cases of this kind: “ The first“ proposition is a general one to this effect, that the plaintiff in an“ action for negligence cannot succeed if it is found by the jury“ that he has himself been guilty of any negligence or want of“ ordinary care, which contributed to the cause of the accident.“ But there is another proposition equally well established, and it“ is a qualification upon the first, namely, that though the plaintiff“ may have been guilty of negligence and although that negligence“ may in fact have contributed to the accident, yet, if the defend-“ ant could in the result by the exercise of ordinaiy care and“ diligence have avoided the mischief which hajpened, the“ plaintiff’s negligence will not excuse him.”
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Now it may be that the plaintiff was guilty of negligence indriving across the tramway ut a high speed and not slackeningspeed to see if a tram ear was approaching. But, on theother hand, it may be said that this being an ordinary stoppingplace, he could not have anticipated that a tram car wouldhave been rushing across that place at a high speed. Again, it isrecognized to be the duty of the tram cars when approaching acrossing to rmg the bell to give notice of their approach. Thereis some conflict of evidence as to whether the bell was rung ornot on this occasion. The plaintiff and his brother, who were inthe pony cart, swear that there was no bell rung. One of thedefendant’s witnesses, who was standing near the spot, says thathe did not hear any bell. The inspector and the motor-man saythat the bell was rung, but they did not agree as to the distancethe car was from the junction where the bell was rung. TheCommissioner came to the conclusion that the bell was not rung,at least not near enough to be audible to the plaintiff. If thatwas so, there was negligence on the part of the defendant, whichdirectly contributed to the accident; but even if the plaintiffis guilty of negligence in driving on the tram line as he did, wasthe motor-man guilty of negligence in not pulling up so as toavoid the accident? Now'the evidence of the motor-man is thathe could pull up his car within three-quarters of a yard. If aproper look-out had been kept, the motor-man must have seen thishorse and trap trying to cross the line. The corner is not a verysharp corner: a person coming along Maradana road could seesome little distance into Regent street before actually arriving atthe crossing. I cannot help coming to the conclusion that if aproper look-out had been kept and the motor-man had been doinghis duty, the car could have been stopped and the collisionavoided. The fact of the cart being pushed on for some distanceshows that the motor-man had not proper control of his machine,and confirms me in my opinion that the accident was dueprimarily to the motor-man not pulling up promptly, and thattherefore the defendants must be held liable.
I therefore reverse the judgment of the Court of Requests andenter judgment for the plaintiff. If the parties cannot agree asto the amount of the damages, the case must go back to the Courtof Requests to assess damages.
October 30.Bonsbb, C.J.
PERERA v. THE UNITED PLANTERS’ COMPANY OFCEYLON