072-NLR-NLR-V-37-WICKREMESINGHE-v.-OBEYSEKERE.pdf
Wickremesinghe v. Obeysekere.
327
1935
Present : Macdonell C.J.
WICKREMESINGHE v. OBEYSEKERE.
725—P. C. Colombo, 33,533.
Motor Car Ordinance—Causing hurt by driving a car negligently and care-lessly—Conviction of minor offence—Driving motor car so as to obstruct—Failing to take action to avoid accident—Ordinance No. 20 of 1927,s. 44 (5) and (13)—Criminal Procedure Code, s. 183—What is criminalnegligence.
Where a person was charged under sections 328 and 329 of the PenalCode with causing hurt by doing one or more of the following actsrashly and negligently, viz., (a) by driving a motor car so as to cross
328MACDONELL C.J.—Wickremesinghe V. Obeysekere.
or commence to cross in & highway and obstruct another car, (b) bydriving a motor car, having failed to take such action as may be necessaryto avoid an accident,—
Held, that he may be convicted of any of the following minor offencesunder section 44 (5) and (13) of the Motor Car Ordinance, viz., (a) drivinga motor car so as to cross or commence to cross a highway and so obstructtraffic, or (b) failing to take such action as may be necessary to avoid anaccident.
Where the driver of a mtor car, approaching a highway from a minorroad, at a blind corner commenced to cross the highway at a speedof ten miles an hour and collided against a car which was going downthe highway,—
Held, that the driver offended against the provisions of section 44 (5)and (13) of the Motor Car Ordinance, No. 20 of 1927.
^ PPEAL from a conviction by the Police Magistrate of Colombo.
F. N. Gratiaen (with him Earle Wijewardene), for accused, appellant.
S. J. C. Schokman, C.C., for complainant, respondent.
Cur. adv. vult.
November 29, 1935. Macdonell C.J.—
In this case the accused was charged as follows:—“ That on or aboutthe 1st day of July, 1935, at Alfred place, within the jurisdiction of this"Court, (1) You did cause simple hurt to (1) Mr. Louis Adihetty of 17thlane, Bambalapitiya, (2) cause grievous hurt to (2) Mrs. Adeline Weera-singhe of 17th lane, Bambalapitiya, by doing one or more or all of thefollowing rash acts, to wit : —
“ (a) By driving motor car X 2096 so as to cross or commenceto cross in a high way and obstructed motor car F 1737.
“ (b) By driving motor car X 2096 and failed to take such action asmay be necessary to avoid an accident.
“ (2) That at the same time and place aforesaid you did cause simplehurt to (1) Mr. Louis Adihetty of 17th lane, Bambalapitiya, cause grievoushurt to (2) Mrs. Adeline Weerasinghe of 17th lane, Bambalapitiya, bydoing one or more or all of the following negligent acts, to wit : —
“ (a) By driving motor car X 2096 so as to cross or commence to crossin a highway, and obstructed motor car F 1737.
“ (b) By driving motor car X 2096 and failed to take such action asmay be necessary to avoid an accident,
“ and thereby committed an offence punishable under sections 328 and329 of the Ceylon Penal Code. ”
The accused was found not guilty on the first count alleging rash acts,but was found guilty on the second count alleging negligent acts and wassentenced to pay a fine of Rs. 30.
The evidence in the case was that the accused on July 1, 1935, about3.15 p.m.. was driving an Austin Swallow car, X 2096, southward downCharles place with intention to cross Alfred place, and after so crossingto proceed along the southern portion of Charles place into Bagatelle
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road, this being a route familiar to her as she had often driven down itbefore. Charles place, both its northern and southern portion, is agravel road not provided with drains or Municipal lighting. It startsto the north in Fifth lane (that is, you cannot get further north along itsline), it goes south till after crossing Alfred place, it comes into Bagatelleroad and then ends a little south of that road; that is to say, it is a shortroad starting at a definite place to the north and ending at a definiteplace to the south. Alfred place on the other hand is a tarred road withditches and Municipal lighting which connects Galle road to the west,one of the principal thoroughfares of the Island, with Thurstan road tothe east, itself a considerable Municipal thoroughfare connecting theVictoria Park neighbourhood with Havelock Town. If you have todecide which is the more important of the two roads, it is quite clearthat Alfred place is the more important. It is tarred and lighted andit is a direct communication between two important thoroughfares.Both of these roads have, according to the evidence, about the same freespace for driving, namely, about 16 feet, on each side of which drivingspace is grass in both roads. Charles place, as has been said, has agravel, not a tarred, surface but where it crosses Alfred place the tarredsurface of the latter road projects for a distance of four or five feet intoCharles place. A person driving south along Charles place intendingto cross Alfred place is first of all on gravel, then for the last few feet ontar and during that portion of the journey was a high fence or hedge oneither side of him so that he would not be able to see left or right intoAlfred place until he got level with this fence or hedge. By the permis-sion of the two learned Counsel who argued this appeal before me, Imade an examination of the place in a car and satisfied myself of theabove facts, and particularly of this fact, that until you are level withthe hedge mentioned you have no view to left or right into Alfred place;the approach is blind. Once, however, you have got level with thisfence on either side of you, a view opens to left and right and you can seeup and down Alfred place.
At the moment when accused was driving southward down Charlesplace, the complainant’s car, a Baby Austin F 1737, unknown to her.was being driven eastward along Alfred place, that is in the directionof Thurstan road, following a course a trifle to the right of the crown ofthe road at a pace of between 25 and 30 miles an hour. As the learnedMagistrate accepts the defence version of what happened in this case,it is best to give the next events in the words of the accused herself.
“ I was going across ” (sc. Alfred place) “ to Bagatalle road to turn tothe right there. I was not going to turn to the left at the Alfred placejunction. I have often taken that route. When I leave our gate Iswing round to the left and again to the right into the straight bit ofCharles place in a few seconds. You can’t attain any speed beforereaching the turn ”—i.e., the junction. “ The straight bit is about 25 or 30yards. Before reaching the junction I was driving slowly enough to stop ina few feet. Before reaching the juction I tooted my horn several timesas I usually do. I heard no answering horn. On previous occasionswhen I have tooted my horn if there has been traffic coming there was
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always a response. If I had heard a response I would have stopped dead.Before you reach the almost common square of the junction you cannotsee down Alfred place …. Not having heard a horn or seen acar I proceeded slowly across the junction at a pace at which I couldhave stopped within a very reasonable distance. As you go into thejunction your range of visibility gets wider. When I was well withinthe square I saw Mr. Adihetty’s car approaching fast on the right. Irealized that nothing could be done by me to avoid a collision. BeforeI could do anything this car struck me on the right forward end from theright. I can’t say which part of the car. My car did not strike anypart of his car in front of me. My car was going straight across and Ihad not swerved it to the left. This all happened in a fraction of a second.It was not very forcible as far as I felt. My car swung round to theleft and was facing Charles place. I looked out and saw the other carhad fallen in the drain some distance away.”
Mr. Adihetty and the lady in the car, his sister, are unable to give anyaccount of what happened. The lady says “ I had a glimpse of a carand then there was a big crash. The car came from our left—Charlesplace. I do not remember what happened after I was on the road.”She suffered grievous hurt, namely, fracture of two ribs as well as otherinjuries. The driver, her brother, says “ We turned from Galle roadinto Alfred place. I went along that road. I can’t say how far. Thenext thing I knew was that I found myself in hospital. ”
Mr. Bartels, a motor expert witness who was called for the defencegave his considered opinion that the accused’s car had been struck onthe side of its right front wheel by the front of the complainant’s car;therefore it was the complainant’s car that struck accused’s car ratherthan the other way. He estimates that the accused’s car cannot havebeen going more than 12 miles an hour and his evidence as to this andother matters is accepted.
In the middle of the junction is a manhole and though the actualpoint given on the plan as to where the two cars collided was stated tobe imaginary, still the evidence as to the wheel tracks of Mr. Adihetty’scar enables it to be more or less ascertained as a place about the centreof the junction and near the manhole but a trifle to the right, lookingtowards Thurstan road, of the crown of Alfred place.
No one else whose evidence can be relied upon saw the accident itselfand the Magistrate expressly accepts the version given by the defence.The accused’s own account has been quoted above and the motor expertcalled for the defence estimated the speed of complainant’s car F 1737at the time of the accident as 25 to 30 miles an hour. This evidencealso is accepted. The Magistrate found the accused guilty of causingsimple hurt to one occupant of the car F 1737 and grievous hurt to itsother occupant, by certain negligent acts, and from this decision thepresent appeal is brought.
In his judgment the Magistrate quotes from the Highway Codepublished in England that sounding his horn does not excuse a driverfrom taking every other precaution to avoid an accident, and that it is
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the duty of a driver on a minor road when approaching a major road to godead slow and to give way to traffic on it. This was criticised in theargument before me, since the Highway Code is of no force with us andAlfred place has not been made by regulation a “ main road ”—see section44 (8) of Ordinance No. 20 of 1927. But the Magistrate does not treat theHighway Code as an authority but simply draws from it rules that seemto him reasonable. Also, the judgment does not suggest that Alfred placehas been declared a main road but only that as between the two, Alfredplace is the major and Charles place the minor road. This is a questionto be decided by observation and I would say that on the facts there canbe no doubt that Alfred place is the more important highway of the twoand therefore the major road, while Charles place is the minor one. It maywell be, as the expert witness for the defence says, that while making anexamination of the spot he observed more cars using Charles place thanusing Alfred place. But the facts—one road tarred the other gravel, oneroad a through road the other starting and ending in a dead end—compelyou to conclude that Alfred place was the more important of the tworoads. From this the Magistrate deduces the conclusion that the com-plainant was justified in going down Alfred place at 25 to 30 miles an houreven past the junction with Charles place, and that no negligence can beimputed to him. I must not be understood as concurring in this pro-position but in the view that I take of the case it is unnecessary topronounce upon it.
The Magistrate goes on to say, “ As regards what constitutes criminalnegligence I have studied the judgment of the English Court submittedby the defence as to what constitutes manslaughter and I have alsostudied what Mr. Kantawala says in his book on the subject of criminalnegligence; I know of no instance in this country where it has been heldthat a driver though negligent had not been criminally negligent.”This, with all respect, is a misdirection. The rule is laid down in themost recent authority, Bateman’s Case to the effect that in orderto establish criminal liability the facts must be such that in the opinionof the jury the negligence of the accused went beyond a mere matterof compensation between subjects and showed such disregard for thelife and safety of others as to amount to a crime against the stateand conduct deserving punishment. If this be the law, then it is clearthat the Magistrate did not direct himself rightly to the question, wasthe conduct of the accused criminal negligence or merely the lesserdegree of civil negligence? His finding is that the accused by criminalnegligence caused hurt, and I do not see how that finding canstand in view of this misapprehension on that essential matter, whatconstitutes criminal negligence.
It was also argued to me that the accused could not be found guiltybecause the hurt was not the proximate result of her negligence, orconversely that to find her guilty, her act must have been the proximateand sufficient cause without the intervention of another’s negligence. Itmust have been the causa causans and not merely the causa sine qua non,
I 94 L. J. K. B. 791; 19 c. App. R. 8.
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MACDONELL C.J.—Wickremesinghe v. Obeysekere.
and 2 Gout (4th ed.), para 3245, was cited in support of this. This is acriminal charge and it has always been laid down that in criminal, law theplea of contributory negligence is of no effect. Usually it is in culpablehomicide cases that this argument is raised, namely, that the man killedwas also guilty of negligence and so contributed to his own death.As to this it was said by Pollock C.B. in Swindall’s Casel, “ If twocoaches run against each other, and the drivers of both are to blame,neither of them has any remedy for damages against the other. But inthe case of loss of life, the law takes a totally different view, for there eachparty is responsible for any blame that may ensue, however large theshare may be; and so highly does the law value human life, that it admitsof no justification wherever life has been lost, and the carelessness ornegligence of any one person has contributed to the death of anotherperson ”. I take it that this rule will apply equally in a charge such asthe present under section 329 of the Penal Code, namely, causing hurt bydoing any act so negligently as to endanger life or the personal safety ofothers. I have examined a number of English cases of manslaughterwhere death occurred through negligent driving and have not been fortu-nate enough .to come across any case where the facts are the same as here,namely, two vehicles colliding so that the driver of one of them wasinjured; in the cases I have examined it is always the passenger who isthe person injured, and killed. Consequently, I have not been able tofind any case where the driver of one vehicle is accused of killing the driverof the other, so as to let in a defence that the driver killed was goingat a much greater pace than the accused, and that therefore it was thepace at which he was driving which really caused his death and not thepace at which the accused was driving. It may be insufficient researchbut I have not come across a case where this defence has been raised.I would however draw attention to the remark which has appeared inedition after edition of Archbold’s Criminal Pleading (27th ed.), p. 889—“ It is submitted that evidence which in a civil case might be given toprove contributory negligence, might in a criminal case be relevant toshow that the death of the deceased was not due to the culpable negligenceof the accused ”, and he cites a Queensland judgment, which is unfortu-nately not available. This case—collision, the person injured or killedthe more negligent of the two, the inference that death would not haveoccurred or that the bodily injury would have been much less if thedeceased or injured man had not been driving so fast himself—does not,as far as I can discover, seem to have arisen. When it does, the surmisejust quoted from Archbold will have to be considered, as also the exactmeaning of causa causans which, as it stands, is rather a jingle but whichits first discoveres formulated thus, “ the cause which moved at first ”, and,where the injured person has been the more negligent of the two, it mightbe argued that his negligence was “ the cause which moved at first ”.This difficult question can be left for decision when it arises. In thepresent case it does not seem to me to arise in view of the misdirection inthe judgment as to what is criminal negligence.
I go back to the facts of the case. The accused was charged withcausing hurt by one or more negligent acts, and particulars of those acts
' 2 Cox 141.
MACDONELL. CJ.—Wickremesinghe v. Obeysekere.
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were given in the same words as those of section 44 (5) of the Motor CarOrdinance, No. 20 of 1927, namely, driving a motor car so as to cross orcommence to cross a highway and so obstruct traffic, namely, anothermotor car, and in the words of the same section, sub-section (13), failingto take such action as may be necessary to avoid an accident. The chargein this case specifies and sets out certain prohibitions contained in thatsection. Now section 182 of the Criminal Procedure Code enables aperson charged with one offence to be convicted of another, and section183 says, “ (1) When a person is charged with an offence consisting ofseveral particulars a combination of some only of which constitutes acomplete minor offence and such combination is proved but the remainingparticulars are not proved, he may be convicted of the minor offencethough he was not charged with it. (2) When a person is charged withan offence and facts are proved which reduce it to a minor offence he maybe convicted of the minor offence although he was not charged with it”.This section has been frequently commented on in our Courts and thelatest case thereon can be found in 36 N. L. R. at p. 222, where at 224Dalton J. says as follows, “ The section applies to cases in which thecharge is of an offence which consists of several particulars, a combinationof some only of which constitutes a complete minor offence ”. It seemsto me that this is just such a case. To prove it completely you have toprove certain factors constituting the offence, the negligence, the hurt,and the acts particularized as tending to prove that negligence. Theacts are particularized as ‘ driving so as to cross or commence to cross ahighway and so obstructing traffic ”, and failing to “ take such action asmay be necessary to avoid an accident ”. These acts are a necessary partof the charge, and a combination of some of them does constitute, ifproved, a complete minor offence. It seems to me therefore that section183 is applicable to this case.
But are these particulars which constitute a complete minor offenceproved? I have said that in my opinion Alfred place was the moreimportant and Charles place the less important road, though I am notquite certain that that finding is necessary to determine this matter.When the accused’s motor car got on to the bit of tarred surface in Charlesplace the view of the. driver to left and right was blind, but the drivercould see that she was approaching a highway. Then it was her duty,it seems to me, to go absolutely dead slow, crawling as a car can be madeto crawl when in bottom gear, until she got level with Alfred place itselfand the view opened to left and right, or even to stop when she got levelwith the hedge till she could look left and right along Alfred place and seeif anything was coming. This, on the testimony of her own witness,Mr. Bartels, she cannot have done. He puts her pace at not more than12 miles an hour—let us say, 10 miles, to be on the safe side—and it seemsperfectly clear to me that to cross or commence to cross a highway of thisnature at. that pace was driving so as to obstruct traffic, that is to causerisk of accident to it, section 44 (10) of Ordinance No. 20 of 1927, or failingto take such action as might be necessary to avoid an accident, section 44(13) of the same. The offences defined in section 44 (5) and (13) of theOrdinance say nothing about negligence, the prohibition against them is37/25
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MACDONELL C.J.—Wickremesinghe v. Obeysekere.
absolute. They are offences where mens rea is shown not by doing some-thing negligently or wilfully or the like but by doing that which a Statutesays you shall not do. Do the facts show that a driver commenced tocross a highway so as in the event to obstruct traffic? If the facts doshow this then the driver has contravened sub-section (5) of section 44 andanimus or culpa, their presence or absence, are irrelevant. It is an objec-tive test not a subjective one. See for a similar prohibition as to trademarks the authorities cited in the Full Bench decision, Sahib v. Muthalip See also Shearman J. in Stonehouse v. Masson', ‘ Before there can be a con-viction in a criminal case it is necessary to show mens rea. One has tosee in each case whether one is dealing with an act prohibited per se or anact only criminal when done feloniously or fraudulently with an intent todeceive. In this particular offence the mens rea consists in the intentionto do the act prohibited by the Statute ”.
To return to the facts. The offence commenced, in the very words ofthe sub-section, when the accused driver commenced to cross the highway.The place at that commencement was so blind, and the highway so narrow,that to commence to cross at 12, or, we will say, 10 miles an hour, was toobstruct traffic in the sense that it caused risk of accident to traffic. Ifthat is so, then an offence against this sub-section is clearly proved, alsoagainst sub-section (13), failure to take such action as may be necessary toavoid an accident. If it be urged that this is to require too much ofdrivers of motor cars when crossing such a highway as this, I wouldrespectfully dissent. Motor cars are necessary and dangerous things,and the words of the two sub-sections, 44 (5) and (13), clearly recognizethat in a situation such as this the car must be driven at a very slow speedindeed, or that there must even be a stop altogether before coming on tothe highway to be crossed. The prohibition in the sub-section is anabsolute one, and no one will dispute the necessity of it being so, seeinghow easy it is to have accidents in driving motor cars. The speed herewas such that it is evident on the accused’s own statement that she wasin the very middle of the junction before she was aware of the oncomingcar F 1737. This clearly was crossing so as to obstruct traffic and failingto take the action necessary to avoid an accident.
It was urged that it would not be fair to convict the accused of thisminor offence because her attention was not drawn to it in cross-examina-tion. But her evidence quoted above, shows that her attention was veryclearly drawn to it in examination-in-chief. She was fully aware of herduty to commence to cross this highway at such a speed as notto cause risk to traffic, and her evidence is directed expressly to showthat she had fufilled that duty. This argument, then, cannotsucceed.
It is necessary then to set aside the conviction for causing hurt bynegligent act and to substitute for it a conviction for contraveningsection 44 (5) of Ordinance No. 20 of 1927. As the offence established bysection 44 (13) of the same Ordinance is so nearly the same, there need
1 34 N. L. R. 231.
5 (1921) 2 K. B. 818.
SOERTSZ A.J.—Silva v. Sala Guru.
335
be no conviction for that. As on the more serious charge the Magistratethought a fine of Rs. 30 sufficient, conviction for a lesser offence requiresa reduction in the fine also, and I fix it at one of Rs. 5. The convictionso altered must be affirmed and this appeal dismissed.
Conviction varied.