( m )£§15.
Present: Shaw J.
VAN DEB POORTEN v. MORRIS.
353—C. R» Kurunegala, 22,427.
Action for damage*—Collision. of motor ear and motor cycle—Negligence,
la an action for damages, where the accident occurred throughthe negligence of both plaintiff and defendant, plaintiff's actionmost fail, because m fan delieUi potior set. conditio defendentU.
Although. negligence of the plaintiff contributing to the accident,when it ie merely negligence without which. the . accident wouldnot have happened, will not excuse the defendant from beinganswerable for his negligence if he conld have by reasonable careavoided the mischief, the plaintiff cannot recover if he has been – •guilty of negligence that actually caused the accident, wholly or* in ..part.
fJlHE facts are set out in the judgment.
M. de Saram, for appellant.
F. J. de Saram, for respondent.
Cur. adv. vult.
December 7, 1915. Shaw J.—
The appellant claimed damages for injury to his motor bicyfcle
when being ridden by his son, in consequence of the negligent
i (1901) $ N. L. R. 162.* 6 N. I.-. R. 34.'
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driving ol a motor car by the – respondent. The respondent, inreconvention, claimed damage^ for injury bo his car caused by dienegligent driving of the rider of the appellant’s, motor bicycle.
The Comnrissioher of Bequests has dismissed both the actioxv andtiie claim in reconvention, and from his decision the appelant hasappealed, by leave of the Commissioner, to' this Court. The re-spondent has given notice of objections to the decree *under section773 of the Civil Procedure Coder which in effect amount to an appealfrom the finding of the Commissioner of Bequests dismissing hisclaim in ^convention. Appellant's counsel has taken objectionto this notice, on the ground that the respondent has not obtainedleave to appeal, arguing that he can only, under the provisions of^tiie section, take such objections as he could have taken by way ofappeal, and that he could not have taken the objections in thepresent case unless leave .to appeal had been obtained.
In view of the opinion I have arrived at on the law end facts ofthe case, it is unnecessary for me to express an opinion on this point.
The Commissioner has not found definite answers to the formalissues settled in the action, and indeed theme issues do not verydearly raise the real questions in dispute between the parties ; buttiie effect of his judgment is that both parties were guilty of somenegligence, which taken together actually caused the accident.He has accordingly dismissed both claims.
I think he is right in this finding, and I should have come tothe same conclusion myself on the evidence. The vehicles wereapproaching one another on sr very narrow road, at a rapid pace.Just at the spot where the collision occurred there was a heavyplank placed across a ditch on the respondent’s side of the road,which, although it did not impede the actual metalled portion ofthe road, must have caused the respondent to swerve slightly froi*tiie course which he was taking, which was slightly on the grass by theside of the road, and which the wheel marks of the car show that hewas pursuing, .towards the side of the road on which the rider of themotor bicycle was approaching, leaving very little room for him Jfeopass. He slowed down to ten or twelve miles an hour, accordingto his own- evidence, which does not. seem to me to have been asufficient precaution under the circumstances, especially as he saysthat the rider of the motor cycle was riding unskilfully, and whenfifty yards off showed signs of nervousness. On the other hand,the rider of the mo^or bicycle was evidently not very accustomedto the use c-i such a machine as he was riding, and had no driver'slicense, and was not keeping a very straight course, and his failureto do so no doubt assisted to cause the accident, which would nothaye happened to a more experienced rider.
On the strength of tiie statement of the law as laid down inRadley v. London and North-Western Railway Company,l I was
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•***** asked to say that although the rider of the motor cycle mayMwe been negligent, nevertheless* gs the defendant might by thebonder ^fi®10*8® °* onlinai^ care have avoided'the accident, he is liableiWfea for Jbe mischief done. The statement of the law in that case isJforrfe ^as follows:—“ TUb first imposition is a general one, to this effect,dial tfie plaintiff in an adtion for negligenee oannot sueoeed if itia found by the jury that he has himself been guilty of anynegligence or want of ordinary care which contributed to cause theaccident. But there is another proposition equally well established,and it is a qualification on the first, namely, that ^though theplaintiff may have been guilty of negligence, and although thatnegligence may in fact have contributed to the accident,, yet,if the defendant could in the result, by the exercise of ordinarycare and diligence, have avoided the mischief which happened, theplaintiff's negligence will pot excuse him. " The difficulty in theapplication of these propositions is the ambiguity of the phrase“ contributed to the accident. ’’ In the case under consideration -the plaintiff had improperly pushed some railway trucks* one ofwhich was loaded, so that it would not pass under a bridge, up to a •bridge upon a siding belonging to them. Subsequently the defend-ants negligently pushed the train of trucks with such force thatthe bridge was knocked down. Under these circumstances, it isclear that .the plaintiff's negligence was not the causa causanas ofthe accident, but merely a causa sine qua nan, and all I taka theproposition hud down in the case to mean is that although negligeneeof the plaintiff contributing to the accident, when it is merelynegligence without which the accident would not have happened,will not excuse the/defendant from being answerable for his negli-gence if he could have by reasonable, care avoided the mischief, itis not intended to lay down .the proposition that a plaintiff canrecover if he has been guilty of negligence that actually caused theaccident wholly or in part.
.Hie dicta in the English cases where there has been negligenceon both sides are irreconcilable and often contradictory, but I amcontent to accept the statement of the law by Lord Halsbury inWakelin t>. London and South-Western Railway Company,1 quotedby the Commissioner of Bequests: “the plaintiff may indeedestablish that the event has occurred through the joint negligenceof both; but if that is the state of the evidence, the plaintiff fails,because in pari delictu potior eat conditio defendentis. ”
In my opinion the Commissioner of Bequests was correct indismissing • both claims, and I therefore dismiss the appeal, withcosts.
i IS A. C. 46,
VAN DER POORTEN v. MORRIS