[1943] EACA 74

### ORIGINAL CIVIL

#### BEFORE SIR JOSEPH SHERIDAN, C. J.

# **HUGH SIMPSON, Plaintiff** ν

## AARON RUBEN and DAVID RUBEN, carrying on business together in partnership as RUBEN BROTHERS, Defendants

## Civil Case No. 32 of 1943

Negligence in driving motor car—Collision at junction of private road with main road.

The plaintiff was driving a Ford V8 car over a private road leading from $\frac{1}{2}$ his farm to the main road. At a point 30 yards from the centre of the main road the plaintiff saw a lorry approaching along the main road at a distance which he then estimated at 75 yards, but which he afterwards found to be 105 yards from the junction of the roads. The plaintiff estimated that the lorry was travelling at 40 miles per hour. Having seen the lorry approaching and not knowing whether the lorry driver had seen him the plaintiff, who estimated that his speed was from 12 to 15 miles per hour, proceeded to cross the main road. The lorry driver, who might have seen the upper part of the car when it had arrived at the point 30 yards from the main road, first saw the plaintiff's car as it emerged from the private road when he was about 15 paces from the junction of the roads, swerved to his right to try and avoid a collision. The collision occurred.

Held (17-9-43).—That the negligence of the plaintiff was substantially if not entirely the cause of the accident and that though it is possible that the defendant would have avoided the accident had he carried straight on instead of turning to the right there was no such failure to exercise ordinary care to avoid the accident in the circumstances of the case as would entitle the plaintiff to judgment.

Slade for the plaintiff.

Kaplan for the defendants.

JUDGMENT.—This is a claim for damages based on the alleged negligence of the defendant's driver. There is no dispute between the parties as to the correctness of the amount of damages claimed in the event of liability being established.

$\sqrt{1}$

The facts shortly are that the plaintiff was approaching the main road between Rongai and Elburgon from his farm. He was driving a V8 Ford car and was travelling over a private road leading from his farm. It is common ground that his car would not become visible to traffic on the main road until the car had reached a point 30 yards from the centre of the main road, and even at that point visibility would be limited to the upper part of the car. It was at this point where an ox track crosses the private road that the plaintiff saw a lorry approaching the junction of the private road and the main road. The lorry was at a distance of 105 yards from the junction, though the plaintiff said that he thought it was not more than 75 yards away at the time. He thought that the lorry was travelling at 40 miles per hour. Having seen the lorry approaching and not knowing whether the lorry driver had seen him he proceeded to cross the main road. He estimated that he was travelling at from 12 to 15 miles per hour in proceeding to cross the road. I have no doubt in my mind that the plaintiff in doing what he did in the cicumstances of the case not only committed a negligent

act but a dangerous one. He was committing a breach of a statutory duty in proceeding on his course, though that is an irrelevant consideration unless his conduct can be shown to be negligent and such negligence connected with the accident which subsequently occurred.

One of the witnesses, Mr. Carnie, in answer to Mr. Kaplan said: "Till to-day I thought it was law that a person emerging from a side road to a main road would take care to see that the road was clear". Here I will say that his impression as to what the law was was correct for Rule 23 of the Traffic Rules. 1928, provides:-

"A vehicle approaching a road from a private way or from a road of lesser importance shall proceed slowly and shall give way to vehicles travelling on such road. In the case of a motor vehicle the driver shall give audible warning of approach."

In the present case the plaintiff did not say that he gave any warning and the driver of the lorry said he heard no warning. The inference from the evidence is that no warning was given. What I find is that the plaintiff, familiar with the crossing, carried on without taking any steps to apprise anyone on the main road that he was about to enter upon that road in a few seconds.

It is of course settled law that notwithstanding the negligence of a plaintiff, if a defendant can avoid an accident by the exercise of ordinary care, the plaintiff is entitled to succeed, but that I am not prepared to find on the facts of this case. A case of this kind has to be sharply differentiated from the facts in the case of Davies v. Mann 10 M. & W., the well-known donkey case, and the leading case of Butterfield v. Forrester 11 East 60, an action for obstructing the highway whereby the plaintiff was injured. In both of these cases it was abundantly clear that the proximate cause of injury was in the former case attributable to the want of proper conduct on the part of the driver of the defendant's wagon and in the latter case the failure of the plaintiff to ride with reasonable and ordinary care. The present case in some of its features closely resembles the case of Robinson v. Button (1940) 7 E. A. C. A. 4, the facts of which were: "Appellant, a passenger in a motor car driven by the respondent, was injured when the appellant's car collided with a lorry after crossing a wide major road along which the lorry was proceeding at a fast speed. The respondent's car was proceeding along a narrow side road which crossed the main road diagonally and it was impossible for either driver to see the other's vehicle until the respondent's car had actually emerged on to the main road. Respondent drove his car on to the main road at 20 m.p.h., saw the lorry approaching at as he says about 80 m.p.h. and proceeded across the main road in front of the lorry. He estimated that he could get across with two cars' lengths to spare. The lorry swerved to its left, leaving the main road and crashed into the left side of the respondent's car 51 feet from the place where the car had emerged on to the main road. The lorry driver was neither a party nor a witness in the suit". In the judgment of Whitley, C. J., at pages 5 and 6 the following passage appears: —

"It is well established law that if one person by his negligent or careless act puts another person in the position that he has to make a sudden decision to avoid an accident and that other person takes a decision and makes some negligent mistake which he would not have made if he had not been forced into that position the first person will be responsible for any damage caused. Corstar v. Eurymedon (1938, A. E. L. R.) Vol. 1, Pt. 2, page 122) and Karamani Ltd. v. Nairobi Municipality (14 K. L. R. 129). It appears to me that the respondent took an unwarranted risk in emerging from such a side road at a blind corner, with the intention of crossing the main road, at such a speed as approximately 20 miles an hour. He knew that it was the cotton season and

that cotton lorries used the road. He should have anticipated the possibility of a lorry proceeding at high speed and have been prepared to adjust his movements accordingly. He should have been driving in such a way that he could either pull up or turn to the left and leave the lorry to continue on its. course. By charging across the main road as he did he put the lorry driver in a difficult position. Even assuming that the latter was driving with defective brakes, he had to decide whether to go straight on or deviate either to right or left. For all the lorry driver could tell the respondent might have decided to pull up or to turn left towards Asembo. It seems to me clear that the lorry driver made up his mind, in the spilt second available to him, that the best prospect of avoiding a collision lay in steering to his left off the road so as to leave the respondent the whole main road in which to manœuvre. Whether in fact it would have been better for him to go straight on is wholly immaterial. He could not read what was in the respondent's mind and he did the best he could. The fault lay with the respondent for driving in such a careless. manner as to put him in that difficult position."

In favour of the defendant in the present case I would point out the following differences in the two cases. (1) In that case the lorry was travelling much faster at an undoubtedly execessive speed as distinct from the 30, 35, 40 miles per hour in the present case; (2) the car approaching from the side road in that case would appear not to have seen the lorry until the nose of the car had entered the main road, whereas in the present case the driver of the car, the plaintiff, saw the defendant's lorry coming up at a fast rate when he, the plaintiff, was 30 yards. from the middle of the main road; (3) in that case the brakes were defective, whereas in the present case the allegation that the brakes were defective had to be abandoned as not proved; (4) in that case the lorry driver did not give evidence—in the present case he did.

On the facts of the present case I am satisfied that the negligence of the plaintiff was substantially if not entirely the cause of the accident and that though it is possible that the defendant would have avoided the accident had he carried straight on instead of turning to the right, there was no such failure to exercise ordinary care to avoid the accident in the circumstances of the case as would entitle the plaintiff to judgment.

In Sparks v. Ash (1943) 1 K. B. (Pt. IV) 223 at p. 230, Scott, L. J., in speaking of contributory negligence said: "It is worth while recalling the harsh and often cruel bearing of our common law doctrine of contributory negligence on the right of a plaintiff to recover damages for negligence. . . . by the defendant. However slightly to blame he may be, however little that blame may contribute to causing the result, if he is at fault and his fault does contribute, the plaintiff ' recovers nothing", and at p. 239 Goddard, L. J., said: "If it (the damage) .... was caused by the plaintiff's act or default, the defendants are not liable, nor are they if the damage is caused partly by the plaintiff's negligence, if it be an effective cause". In Caswell v. Powell Duffryn Associated Collieries Ltd. (1940) A. C. 152 at 166 Lord Atkin said: "I cannot therefore accept the view that the action for injuries caused by breach of statutory duty differs from an action for injuries caused by any other wrong. I think that the defendant will succeed if he proves that the injury was caused solely or in part by the omission of the plaintiff to take the ordinary care that would be expected of him in the circumstances".

I have already commented on the conduct of the plaintiff in entering upon and crossing the main road with the knowledge he had of the approaching lorry. I consider the negligence of the plaintiff to have been an effective cause of the accident disentitling him to succeed.

I have dealt with this case on the assumption that there was some act of negligence on the part of the defendant, on which assumption I have found the

plaintiff disentitled to succeed due to his, the plaintiff's, negligence, but I may say, however, that having read the particulars of negligence alleged against the defendant, reading as follows: "The defendants' employee was negligent in that he was travelling at an excessive speed, and with brakes which were not adequate to enable his vehicle when travelling at any speed to be pulled up within a reasonable distance, and made no attempt to slow down, though he must have seen our client's car approaching the main road when your clients' vehicle was still at least 100 yards away, and did not sound his horn, and at the last moment swung over to the right of the road when by keeping to the proper side he might still have avoided the accident". I must record (1) that I am not satisfied that the defendant was travelling at an excessive speed in the circumstances that he had a clear road before him and it has not been proved to my satisfaction either that he did see the car until he saw it actually entering the main road or that he was guilty of negligence in not seeing it; (2) the defendant's brakes were not proved to be defective; (3) failure to sound his horn would not constitute negligence and could not affect the issue in the circumstances that the plaintiff had seen the defendant approaching; (4) that in swinging over to the right of the road on suddenly seeing the car enter the main road, he may possibly have done the wrong thing, but as to that the following passage in Terrell's Law of Running-down Cases 2nd Edition at p. 64 would apply: $-$

"It often happens that when an accident is imminent, owing to the negligent driving of a vehicle, the other party to the prospective collision may lose his head and do the very thing which will make the accident certain, while if he had done something else he would have avoided the consequences of the original negligence. In such a case, as has been indicated, the party guilty of the first act of negligence, having put the other party into a position of peril, cannot complain of the other party doing the wrong thing where the circumstances are such that to do the right thing would require extraordinary care."

The suit is dismissed with costs.