022-NLR-NLR-V-44-AMERASINGHE-v.-DE-SILVA.pdf
88
WIJEYEWARDENE J.—Ameresinghe v. de Silva.
1942Present: Wijeyewardene J.
AMERASINGHE 'v. DE SILVA.
. 177—C. R. Galle, 22,994.
Negligence—Action for damages—Collision between plaintiff’s car anddefendant’s buggy—Proof of negligence—Onus./
Where, in an action to recover damages caused to the- plaintiff’s carby a collision with the defendant’s buggy, plaintiff’s evidence was' to theeffect that the defendant’s driver was unable to control his bull, whichsuddenly swerved to the right and collided with the car,—
Held, that, if the issue had been raised, the onus would have been onthe defendant to rebut the presumption that the driver was acting in thecourse of his employment-. '
Held, further, that the plaintiff had failed to prove negligence on thepart of the defendant’s driver.
PPEAL from a judgment of the Commissioner of Requests, Galle.
E. B. Wickremanayake (with him S. Mahadeva), for plaintiff, appellant.
U. A. Jay asunder a (with him P. Malalgoda), for defendant, respondent.
Cur. audv. vult.
November 27, 1942. Wijeyewardene J.—
The plaintiff claimed in this action Rs. 275 as damages from thedefendant. He stated that his car was damaged as the result of the
89
WIJEYEWARDENE J.—Ameresinghe v. de Silva.
negligent driving of the defendant’s buggy cart by her servant. TheCommissioner dismissed the plaintiff’s action without costs, holding thatthe plaintiff failed to prove—
that the driver of the buggy cart was acting in the course of his
employment on the day of the collision.
that the collision was due to the negligence of the defendant’s
servant.
As regards ground (i) of his judgment the Commissioner has mis-directed himself. In the answer there was no plea that the driver of thecart was driven on that occasion by her driver. Under these circum-No specific issue was raised at the trial on that point. It was notdisputed that the cart and the bull belonged'to the defendant and thecart was driven on that occasion by her driver. Under these circum-stances, the onus, even where an issue had been raised, would have restedon the defendant to rebut the presumption that the driver was actingin the course of his employment.
I am unable to hold that the Commissioner has erred in holding thatthe plaintiff has failed to prove negligence on the part of the defendant orher servant. The plaintiff’s evidence on the point was :—.
“ The buggy was coming very fast. It was coming on its correctside. When it was about 1$ fathoms away, it swerved across the roadtowards my car. Before the cart swerved I was still going at 15 milesper hour. When the buggy came near my car I slowed down as thebuggy was coming very fast. When the buggy swerved towards mycar, I swerved my car to the left …. The head of the bullstruck the car …. Before the impact the carter was holdingthe reins tight . .. . When I first saw the cart I did not see that
the bull was uncontrollable. It was going at a moderate pace. As itcame near my car it swerved to its right …. When the buggywas 1£ fathoms away from me I thought it was travelling at a dangerousspeed.”
The defence led no evidence to explain how the collision took place.The relevant facts of this case are hardly distinguishable from those inManzoni v. Douglas', where a horse drawing a brougham under the careof the defendant’s coachman bolted suddenly and in spite of the coach-man’s efforts swerved on to the pavement and injured the plaintiff. Theevidence led in that case for the plaintiff was that “ the brougham Wascoming at a tremendous speech” and that “the coachman was tryinghis hardest to stop the horse and he was not able to do so ” and that“ the horse seemed to lurch … coming across the road ”.Without calling on the defence, the trial Judge dismissed the action,holding that there was no case to go to the Jury. In appeal, Bindley J.said :
“ The plaintiff was walking on the foot pavement of a publicthoroughfare and was knocked down by a horse drawing the defendant’sbrougham. If the case had been left there, it might be that thedefendant was liable for the negligent driving of the servant.
» (1S80) 6 Q. B. 145.
90
Maruthappah v. Zouhar.
But the explanation was given by the plaintiff’s witnesses, viz., thatthe horse had bolted and the defendant's coachman had lost allcontrol over it. We do not know what it was that caused the horseto bolt; and therefore we have no evidence that it was caused by thedriver’s negligence or want of care.”
The correctness of that view does not appear to have been questionedin any subsequent decision, though doubts have been expressed regardingsome of the dicta in the judgment of Lindley J. in Manzoni v. Douglas(supra).
I would dismiss the appeal. The respondent is entitled to her costsin this court.
Appeal dismissed.