[1932] EACA 30

## APPELLATE CIVIL.

## Before THOMAS. J.

KARAMANI, LTD. (Appellant) (Original Plaintiff)

NAIROBI MUNICIPAL CORPORATION (Respondent) $\gamma$ i (Original Defendant). $\mathcal{L}_{\mathcal{A}}$

## C. A. $47/1932$ .

Use of highway—Responsibility for negligence—Degree of care essential—Negligence and contributory negligence.

Hell: (11-2-33): —The driver of a vehicle having a clear space of half<br>the road amounting to eighteen feet on his near side is not the road amounting to eighteen feet on his hear side is not<br>justified in trying to pass, on its off-side, a vehicle travelling in<br>the same direction but on its incorrect (off) side of the road,<br>where there is insufficient an accident. It is the duty of a driver to have his vehicle under<br>proper control, and where he knows that owing to the condition of the road he cannot effectively stop his car whilst travelling at a high speed he should reduce his speed.

Harrison for Appellant.

ri i

Eckersley, Town Clerk, for Respondent.

Harrison.—Appellant had three alternatives: $(a)$ to pass on the near or wrong side of the other vehicle; $(b)$ to stop by putting on his brakes; (c) to brake and endeavour to pass on the off-side of the other vehicle.

The Magistrate says appellant committed error of judgment. (Bevan on Negligence, 4th Ed., 174-175), but does not state in what form appellant showed negligence. Swadling v. Cooper (1931), Law Reports, A. C. 1. The Law of Collisions on Land, Robert & Gibb, 2nd Ed. 32.

Eckersley.—There was not only an error in judgment on the part of the appellant, but negligence in failing to take reasonable care. Swadling v. Cooper (supra). If reasonable care had been exercised appellant could have brought his car to a standstill.

Harrison replied.

JUDGMENT.—This is an appeal from a judgment of the learned Resident Magistrate of Nairobi, dismissing the appellant's suit with costs.

The appellants, Karamani, Ltd., claimed damages from the Municipal Council of Nairobi for damages caused to a motor car belonging to them by the negligence of the defendant's servants.

The defendants denied negligence and said that any accident could have been avoided by reasonable care on the part of the plaintiffs driver and that the plaintiff's driver was guilty of contributory negligence.

The evidence showed that the plaintiff's car was being driven by a Mr. Cooper along the Sixth Avenue in the direction of Nairobi at 12.15 a.m. He was going at twenty-five to thirty miles an hour. The road was wet. The night was dark and the road was black and shining. The road is forty-two feet in width and Mr. Cooper was driving on the crown of the road. There is no evidence that at the time of the occurrence there was any other traffic on the road.

Whilst driving, Mr. Cooper's lamps showed at a distance of about thirty yards a night-soil ox-cart, which was also going in the direction of Nairobi. It was on its off-side or wrong side of the road, about four feet from the off-side kerb, and about four or five feet from Mr. Cooper's off-side. There was no light on the cart. The cart was proceeding across the road to its near (or correct) side of the road.

Mr. Cooper said that he only had two seconds to decide what he should do. He decided that owing to the state of the road he could not stop his car without great risk of skidding. He put on his brakes. He did not see that he could pass more easily on the left or near side of the car. He seems to have decided to try to pass the cart on its off-side although he saw that he had but little space in which to do it. He thought that he could pass the cart. In carrying out this intention he collided with the cart on its off-side and the motor car was considerably damaged.

The learned Magistrate said in his judgment: "Mr. Cooper has very candidly admitted that he saw he had only little space in which to pass the cart, but that he thought that he could pass it. On his own evidence it is clear that he committed an error of judgment." Later on in his judgment the learned Magistrate said: "My finding is that Mr. Cooper was guilty of contributory negligence, which was the proximate and substantial cause of the collision."

In the argument before me it has been urged for the appellants that only three courses were open to the driver of the $car$

- (a) to pass on the near side of the road; - (b) to stop by putting on the brakes; - (c) to brake and endeavour to pass on the off-side of the oxcart.

It was stated in argument that the motor car would be about six feet in width, and in that case if it were being driven on the crown of the road there would be eighteen feet clear space on its near side. But it has been urged that where there is another vehicle travelling in the same direction, such vehicle must be passed on its off-side. This question has been dealt with in the case of Gulamhussein Hasham Hemraj v. Samuel Watkins, Vol. 9, E. A. L. R., p. 148. The head-note reads as follows:-

"A driver of a motor car is bound to depart from what would ordinarily be the correct side of the road, if his so doing constitutes the exercise of ordinary care and is best calculated to avoid an accident."

It may be correct to pass a vehicle travelling in the same direction on its off-side. But the rule as to passing a vehicle travelling in the same direction does not, in my opinion, permit or allow the passing to take place under any conditions; it may only be taken advantage of when the other conditions are such that the passing may be undertaken with safety. Where, as in the present case, a slow going vehicle is on the wrong side of the road and the driver of the passing vehicle has a clear space of eighteen feet on his near side, it would seem to me that the driver of the passing vehicle had a duty to avoid a collision by keeping to his near side of the road.

With regard to the second point it has been urged that owing to the condition of the road an attempt to brake the car by putting on the brakes might have caused a skid with serious results.

It is the duty of a driver to have his vehicle under proper control, and where he knows that, owing to the conditions of the road, he cannot effectively stop his car whilst travelling at a high speed he should reduce his speed.

But I do not consider that this question really enters into the present case in view of the fact that the driver had ample room on his near side of the road to proceed without regard to anything which the ox-cart might be doing improperly on the other side of the road.

With regard to the third point I can see no justification for attempting to pass a vehicle where there was insufficient space to enable such a course to be adopted with safety apart from the point which I shall next deal with.

The case of Swadling v. Cooper, L. R. 1931, A. C. 1, has been cited and reference has been made to the use by Lord Hailsham of the words: "the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step

which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances."

In that case the time was admitted to be one second. In this case the ox-cart was seen 90 feet away and two seconds prior to the collision. Had the plaintiffs' motor car been travelling as has been described, a careful driver would fairly be expected to turn to his near side, where there was a clear space in front of him.

$\therefore$ The expression "agony of the collision" is not, in myopinion, applicable to the present case.

I conclude that although the ox-cart driver had been guilty of negligence, the collision was due to the negligence of the plaintiffs' driver.

The appeal must therefore be dismissed with costs.