006-NLR-NLR-V-37-SAFENAUMMA-v.-SIDDICK-et-al.pdf
DALTON J.—Safenaumma v. Siddick.
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1934Present: Dalton and Drieberg JJ.
SAFENAUMMA v. SIDDICK et al.
373—D. C. Kandy, 43,138.
Negligence—Action to recover damages for injuries—Boy knocked down bymotor bus—Evidence of negligence—Absence of explanation.
Where, in an action to recover damages for injuries caused by a motorbus, it was proved that the bus, which was driven along the road at afast speed, suddenly left the road and knocked down a boy standing onthe doorstep of a house,—
Held, that the facts proved constituted, in the absence of an explanation,prima facie evidence of negligence.
^^PPEAL from a judgment of the District Judge of Kandy.
V. Ranawake (with him H. N. G. Fernando), for plaintiff, appellant.M. Mahroof, for second defendant, respondent.
Cur. adv. vult.
November 26, 1934. Dalton J.—
This action was brought by the plaintiff to recover from the5 defendantsthe sum of Rs. 700, said to have been incurred by her as the mother ofa boy named Mohamed Sameen, nine years of age, for medical expenses,nursing, extra food, and nourishment in attempting to cure her son, whowas knocked down and injured by a motor bus driven by the firstdefendant and owned by the second defendant. It was admitted thatthe boy was injured on September 28, 1932, at the doorstep of a house
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DALTON J.—Safenaumma v. ataatcie.
at Madawala by the bus in question, driven at the time by the firstdefendant and registered at the time in the name of the second defendant.The boy died in October.
• The first defendant filed no answer. The second defendant deniedthat he was the owner of the bus at the time, or that it was negligentlyor unskilfully driven. The injury complained of, it was pleaded, wasdue to a pure accident.
The trial Judge has found that the second defendant was the ownerof the bus at the time the boy was injured, but has held that the plaintiffhas not established any negligence on the part of the defendant. Heholds that the plaintiff should have called evidence to show why the busran off the road. He adds that it is fair to assume that, as the injuriesto the boy were serious and as he died as a result of them during theensuing month, the Police were of opinion that there had not been anynegligent, careless, or unskilful driving, otherwise they wuld be obligedto enter a prosecution. The trial Judge is apparently therefore underthe mistaken impression that if there be no negligence to justify a criminalprosecution, a person injured cannot bring a civil action to recover lossesincurred based on any alleged negligent act.
The facts admitted or proved by the plaintiff show that the boy wasstanding on a step of the house, two feet high (see plan P 2), some 27 feetfrom the middle of the road. There is no evidence to show how far thestep was from the edge of the road. There is evidence to show the buswas coming along the road at a fast rate of speed, when it suddenly leftthe road and seems to have charged the house, hitting the steps andknocking the boy down. Here is clearly prima facie evidence of negligenceon the part of the driver and owner. It is not suggested, and I haveyet to learn, that in Ceylon one may usually or naturally expect a busto leave the road at any moment and charge the steps of a house, as wasdone here.
In Ellor v. Selfridge & Co. Ltd.1 it was held that where a motor vangot on to the pavement and injured persons standing there, these facts,in the absence of explanation, constitute evidence of negligence. ScruttonL.J. applied the following words of Erie C.J. from Scott v. London &St. Katherine Docks Company—
“ There must be reasonable evidence of negligence. But wherethe thing is shown to be under the management of the defendant orhis servants, and the accident is such as in the ordinary course of things•does not happen if those who have the management use proper care,it_ affords reasonable evidence in the absence of explanation by thedefendants that the accident arose from want of care.”
Romer L.J. remarked that if a man use a footpath he risked a collisionwith another person using the footpath or possibly a perambulator, butnot a motor van, which had no right to make use of it. It was essentialfor the defendants to show how their van got there, arid they had calledno evidence.
1 46 Times L. li. 236.
2 3 H. AC. 596.
Weerasinghe Hamine v. Dias.
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The plaintiff has led sufficient evidence of negligence to throw theonus on the defendants to show that they were not guilty of any wantof care. The first defendant has not appeared. One witness stateshe has run away.
The second defendant calls a witness, who states that the bus wasbeing driven slowly and that there is a curve on the road at the placein question. He states that the bus went straight on and ran into ahouse, knocking the child down, because “ the steering gear ” broke.That is all. A statement of that kind of course in no way dischargesthe onus of the defendants or show there was no want of care on theirpart. Even assuming that the steering gear was worn and defectivebut that the defendants had no knowledge of- the defect, to place thebus on the road in that condition was a thing necessarily dangerous tousers of the road and others, and it amounts to negligence (Hutchins v.Maunder'). The plaintiff having led evidence of negligence which has notbeen met in any way, she is entitled to succeed in her action.
The question of the amount to which she is entitled remains to bedecided. Without coming to any finding as to the amount, the trialJudge expresses the opinion that her claim has been conceived on anexaggerated basis. Having regard to the serious injuries caused to theboy and the evidence as to the expenses incurred by her, I would awardher the sum of Rs. 350 with costs both here and below. The appeal isallowed and the decree entered is set aside. A decree will now be enteredas indicated above against both defendants.
Drieberg J.—I agree.
Appeal allowed.