142-NLR-NLR-V-30-SUB–INSPECTOR-OF-POLICE-v.-FERNANDO.pdf
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Present: Akbar J.
SUB-INSPECTOR OF POLICE v. FERNANDO.
250—M. C. Colombo, 1,140.
' Motor car—Driving in a manner dangerous to the public—Factors tobe taken into consideration—Volume of traffic—Cross roads—Ordinance No. 20 of 1927, s. 57 (2).
Where a bus was driven at twice the authorised speed along aroad over which a volume of traffic may reasonably be expectedowing to the vioinity of oross roads,—
Held, that the driver was guilty of driving in a dangerous manner. ■Held further, that if the driver of a motor car drives it in sucha manner that it is or is likely to be dangerous to the passen-gers in such vehicle or to other vehicles or persons on the road it• would be an offence under section 57 (2) of the Motor Car Ordinanceof 1927.
.4 PPEAL from a conviction by the Municipal Magistrate of.-vs- Colombo.
Rajakariar, for the appellant.
Ilangakoon, C.C., for the Crown.
July 22, 1929. Akbab J.—
This is an appeal from a conviction for the offence of drivinga motor bus in a dangerous manner, punishable under section 57,sub-section (2), of the new Motor Car Ordinance, No. 20 of 1927,and a sentence of Rs. 100 fine.
• As the questions of law and fact which arose on. this appeal werevery perplexing, I issued a notice on the Attorney-General to enablehim to be represented. The argument has been a full one, and I am.indebted to the Crown Counsel for the help he has given me. Thedifficulty on the point of law is this: This Ordinance according,to its short title was meant to amend, and consolidate the la$vrelating to motor cars and to amend the Vehicles Ordinance, No. 4-of 1916. Section 48 of Ordinance No. 4 of 1916, which still appliesto ordinary vehicles and which also applied to- motor vehiclesbefore the Ordinance of 1927, is as follows ::—
“ If any person having the charge or care of any vehicles—
“ (a) Shall drive the same <m. any public thoroughfare, street,,or road recklessly or negligently, or at a speed or in amanner which is likely to endanger human life, or to-cause hurt or injury to. any person, or animal or damage .
1929-
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1929.
Akbak J.
Sub-
Inspectorof Policev.
Fernando
to any vehicle or to goods or person carried therein orwhich would be otherwise than reasonable and properhaving regard to all the circumstances of the case,including the nature and use of the public throughfare,street, or road, and to the amount of traffic which isactually on it at the time, or which may reasonably beexpected on it;
“ (6) Shall be in a state of intoxication while driving such vehicle,or while in charge of it on a public throughfare, street,or road—
he shall be guilty of an offence, and shall on conviction be liable toa fine not exceeding fifty rupees, or to imprisonment, simple orrigorous, for any period not exceeding three months. ”
Section 57 of the Motor Car Ordinance, which replaces the oldsection 48 so far as it applied to motor vehicles only, contains thefollowing words in sub-section (2):—“ If any person drives amotor car recklessly or in a dangerous manner or at a dangerousspeed, he shall on summary conviction by a Police Magistrate beliable to a fine not exceeding five hundred rupees. ” Dangerous towhom ? Must the driving be dangerous to passengers in the vehicleor to pedestrians and vehicles on the road or to those who mightreasonably be expected to appear on the road at any time or to allthese ? Owing to the disappearance of what I consider to be verymaterial words in the old section 48 of the Vehicles Ordinance,I was not sure what the intention of the draftsman was, whetherto extend the provision of the law applicable on the point or torestrict it. Section 48 of the Vehicles Ordinance was modelled onthe English Motor Car Act of 1903, which was drafted with theexpress purpose of reproducing the effect of the decisions underthe earlier status of the two cases of Smith v. Boon1 and Mayhewv. Sutton2 (see 27 Halsbury, paragraph 683, note (i.)). Underseotion 48 of the Vehicles Ordinance of 1916 the Court is authorizedto pay “ regard to all the circumstances of the case, including thenature and use of the public thoroughfare, street, or road, and tothe amount of traffic which is actually on it at the time, or whichmay reasonably be expected on it, ” but the new section containsthe bare words prohibiting the driving of a motor car in a dangerousmanner. The first question I have to decide is whether or notunder these words I can take into account all the factors which theCourt was directly bidden to take into account under section 48of the Vehicles Ordinance. If I hold that I am not so authorized,the effect will be to emasculate the section and to make it almostuseless for most purposes^ As the object of the Motor Car Ordinanceof 1927 was to consolidate the law relating to motor cars to enablethe authorities to cope with the enormous increase of motor traffic*(1901) 84 L. T. 593.*(1902) 86 L. T. 18.
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which has arisen in the publio streets, I must hold even in the absenceof any authorities that the new sub-section (2) of section 57 author-izes the Court to consider each case on its facts and to take intoaccount, not only the factors enumerated in section 48 of the VehiclesOrdinance, but, it may be, even other factors. So that in myopinion, if a driver of a motor car drives it in such a manner thatit is or is likely to be, dangerous to the passengers in such vehicle,or to other vehicles, and persons on the road, it would be an offenceunder the new law. I am not sure whether the new section can bemade to extend to driving which is dangerous to animals, whichsection 48 distinctly includes. That question, however, does notarise in this case. The second question that I had to decide waswhether the intention of the draftsman was to go even furtherand to allow the conviction of a person for dangerous driving,when such driving was dangerous in the opinion of a reliable witnesswhose veracity and powers of observation could not be challenged, asin this case. The Grown Counsel fortunately did not go to thisexteht, and I therefore hold on this point that the old law withregard to expert opinion is still the law in force, which law is statedin Best on the Law of Evidence in paragraph 511 as follows :—“ Theground of exclusion of such evidence is that opinions, in so far asthey may be founded on no evidence, or evidence not recognizedby law, are worthless, and in so far as they may be founded onlegal evidence, tend to usurp the functions of the Court and Jury,whose province alone it is to draw conclusions of law or fact. ”I come now to the facts of this case. The case seems to me to havebeen starved of the necessary evidence. Mr. Brockwell, who givesevidence for the prosecution, says that when he was travelling inhis car on the Galle road towards Fort, bus No. B 1605 overtookhim near the Bagatelle corner and that the bus was travelling at avery excessive speed, which he estimated from his speedometer atover 30 miles per hour and that the bus was overlpaded and rockingfrom side to side and that he thought an accident was inevitable.He further stated he overtook the bus and reported the incidentto the police constable at the Turret road junction, but he admittedthat the road was a broad one. The accused’s case, which wassupported by the evidence of a witness who happened to travelin the bus at the same time, was that he overtook two bullock cartsnear the Alfred House Gardens and that he gave a signal to the carthat was behind him not to overtake him. The accused stated,that this car behind him overtook him and that the driver used acertain expression and got ahead of him and reported him to thepolice constable. The Municipal Magistrate has accepted theevidence of Mr. Brockwell and disbelieved the evidence of theaccused and his witness. He was in a better position to judge theevidence than I am, and I must therefore accept his finding ; but
1989.
AxbabJ
Sub-
Inspectorof Police■ v.
Fernando-
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1929.
-Axbab J.
Sub-
Inspector
of Policev.
Pemando
even hereif full effect is given to the Magistrate’s finding the accusedis entitled to be acquitted, because Ms. Brockwell stated that hecould not swear to the indentity of the accused. So that the Magis-trate must at least have believed the accused when he said that hedrove bus No. B 1605 in question. What are the elements whichthe Court considered to be dangerous on the evidence of Mr. Brook-wellThey are the following:—
(T) That the bus was driven at over 30 miles an hour;
That the bus was swaying to and fro ;
That the bus was badly overloaded; and
That he thought that an accident was inevitable.
As regards the excessive driving, Lord Beading C.J. stated inthe case of Beresford and another v. Richardson1 as follows:—“ The contention before us is that that conviction was wrong'beoause the evidence established only that the appellants weredriving at a speed in excess of the limit allowed by article 7 of theHeavy Motor Car Order, 1904, and that there was no evidencethey were driving in a manner which was dangerous to the public.In my opinion there is no substance in the'point.
“ If the case had merely been that the appellants were drivingat a speed in excess of the limit allowed, there would be force inthe argument; but the Justices have found as facts, circurostances which enabled them to say that the driving was in amanner dangerous to the public. Here it is established that theportion of the road over which the appellants were driving at this■excessive speed contained dangerous cross roads, and further, that“there was a considerable amount of traffic, the day being a bankholiday, and consequently to drive at that rate was, in thecircumstances, driving in a manner dangerous to the public.Therefore there was evidence on which the Justices could come tothe conclusion at which they arrived. ” I commend this case to thenotice of the police, because that case shows how a prosecution’of this kind should be proved. In this case there is no evidenceas to what traffic was actually on the road in question at the timeor which could be reasonably expected to be there at any moment.There is a bare sentence in Mr. Brockwell’s evidence that 9.15 a.m.is a very busy time in the morning. I shall refer to this point letter.As regards the second point, that the bus was rocking from side toside, what Mr. Brockwell meant was, as he explained later, notthat the bus was swerving from side to side of the road or going in azigzag direction, but that it was simply swaying to and fro. Thefact that the bus was overloaded or that it was creaking or swayingfrom side to side may be the subject of a prosecution under othersections of the law, but they ard not evidence that the bus wasdriven in a dangerous manner. As regards the fourth, that is merei [1921) L. J. K. B. 313, vol;90.
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opinion evidence, because Mr. Brockwell has not stated why hethought an accident was inevitable. The only ground on whichI can affirm this conviction is the ground that, having regardto the road and the traffic that may. be reasonably expected on itat that time, the fact that the bus was driven at nearly twice theauthorized speed would be evidence of dangerous driving. It wasa busy time, and it is a well known fact that the road at that placewas widened recently to cope with the increased motor traffic.It is a fact of which I can take judicial cognizance that there arecross roads in the vicinity. Taking all these facts into consideration,I think I am justified in coming to the conclusion that drivingthe bus over 30 miles an hour at the point in question was dangerousdriving. The evidence of Mr. Brockwell, that the car was goingat over 30 miles, was not mere opinion evidence, but was evidencebased on the reading of his speedometer. For these reasons I thinkthat the conviction can be justified on the evidence on the record,although such evidence is so scanty as to have made me to hesitateat one time to affirm the conviction. I dismiss the accused’s appeal.
1929.
Axbar J.
Sub•
Inspectorof Policev.
Fernando
Appeal dismissed.
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