E J WILLIAMS Vs. MAHOMED SULEMAN

JUDGEMENT

(1.) Two plaintiffs, husband and wife, sue for damages due to a collision between the car of plaintiff 1 with a bus owned by the defendant on 10 March 1936. Plaintiff 2 was being driven in that car at the time of the accident and suffered serious injuries. The nature of those injuries has been spoken to by the doctor who has given evidence and the expenses incurred in connexion with those injuries are set out in para. 6 of the plaint. The actual sum claimed under that head was over Rs. 1300 but the vouchers have all been shown to the learned Counsel for the defendant and the parties are agreed that the damages under this head should be Rs. 1176.9-0. The ownership of the plaintiff's car though not admitted in the pleadings, has now been admitted, and it is not contested that the driver of the bus was an employee of the defendant and was driving in the regular course of his employment. It is the common case of both parties that the accident took place at the junction of Wellesley Street and Corporation Street. Down the middle of Wellesley Street which runs north and south, there is a double set of tram lines, and it is not denied that the Hillman car, belonging to the plaintiff, was driven along Corporation Street from west to east. There was a tram on the western set of the tram lines going north along Wellesley Street. It is also not contested that that tram stopped though the plaintiff's case differs from the defendant's case as to the actual place where the stop occurred. The plan which has been put in by the parties shows two man-holes, one on each side of the tram lines, and the ease of both sides is that the collision took place just by the eastern man-hole.

(2.) The only question for decision is whether there has been such negligence on the part of the defendant as to entitle the plaintiff to recover damages. In his written statement, the defendant raises the plea that there was contributory negligence on the part of the driver of the plaintiff's car. Particulars of negligence are set out in the plaint and particulars of contributory negligence in the written statement. The plaintiff's case is that the Hillman car came to the cross-roads and halted at a point which has been marked R in the plan; that is to say, just in Corporation Street between 8 and 10 ft. from the near side kerb just before entering the crossroads. Mrs. Williams, who was in the car at the time, and who was injured, says that they halted in Corporation Street as the tram had come up simultaneously from the south of Wellesley Street to the crossroads. The tram was at the point marked R, which is just inside Wellesley Street, short of the junction between Wellesley Street and Corporation Street. The plain-tiff's evidence is that the tram was not projecting into the junction but the head of the tram was on the same line as the footpath or slightly behind it. The tram driver waved to the Hillman car to go through. Mrs. Williams said that she looked and saw no traffic so she told her driver to go on. She then said that as they were crossing the tram lines, she saw a bus coming at a very high speed, passing the trailer of the tram and as they got on to the eastern set of tram lines, the collision occurred. The tram was composed of two coaches, the rear coach being referred to as the trailer. Mrs. Williams then fainted and having received severe injuries, she was taken to hospital and has no knowledge of what then happened. (The judgment then discussed the evidence regarding the speed at which the bus driver was driving and proceeded.) The evidence that he was going at an excessive speed is overwhelming. I accept the evidence that his speed was something between 30 and 40 miles an hour. The evidence that he was hurrying and that the passengers complained earlier during that particular drive I also accept. There is therefore a prima facie case of negligence, and Mr. Cammiade for the plaintiff suggests that the position of the bus at the time of the accident almost creates a case of "res ipsa loquitur" for, it must be negligent for a bus driver to drive his bus over cross-roads, on the wrong side of the road, overtaking a tram which has two coaches, and driving where it would be impossible for him to see what traffic was approaching from the other side of the tram. When the speed at which the bus was travelling is also taken into consideration the negligence is little short of criminal.

(3.) For the defendant it is argued that there was contributory negligence. The defendant contends that the accident was due to the signal given by the tram driver to the Hillman car to proceed. I can see no objection to the tram driver making such a signal even if he did not look to his right before he made it. All that he suggested to the driver of the Hillman car was that the car had the right of way so far as the tram was concerned. It was not necessary for him to see what the other traffic was doing. He was entitled to convey to the driver of the Hillman car that, he the driver of the tram, was willing to stop and allow the Hillman car to proceed on its way. Even if the tram driver were negligent, which in my opinion he was not, such negligence would not constitute contributory negligence on the part of the plaintiff. Reliance is also placed on a rule of the road under the Bengal Motor Vehicles Rules. Rule 39 provides that: A motor vehicle shall keep on the left side of the road, provided that he may pass any ear or other vehicle running on fixed rails on whichever side thereof he may consider necessary or expedient, having due regard to the circumstances of the case and to the safety and convenience of other users of the road.