004-NLR-NLR-V-43-MENON-v.-LANTINE.pdf
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MOSELEY S.P.J.—Menon v. Lantine.
1941Present : Moseley S.P.J.
MENON v. LANTINE.542—M. M. C. Colombo, 59,029.
Highway—Judicial notice—Galle iroad—Motor Car Ordinance, No. 45 of 1938,s. 85 (7).
A Court is entitled to take judicial notice of the fact that the Galleroad is a highway.
j PPEAL from a conviction by the Municipal Magistrate of Colombo.
L. A. Rajapakse (with him G. P. J.' Kurukulasuriya), for accused,appellant.
H. W. R. Weerasooriya, C.C., for complainant, respondent.
Cur. adv. vult.
November 4, 1941. Moseley S.P.J.—
Appellant was convicted of drivingcar, No. Z 3560, fromahighway
into a place which is not a highwayin such a mannerastoobstruct
traffic on the highway, an offence against section 85 (7) of the MotorCar Ordinance, No. 45 of 1938, and punishable by section 158 of thatOrdinance. He was sentenced to paya fine of Rs. 50.Itiscommon
ground that the appellant was drivinghis employer’s carina southerly
direction along the Galle road and that he turned his car to the rightand was in the act of crossing that road to enter Castle lane, when acar driven by a Mr. Prins and coming from the direction of MountLavinia struck into the appellant’s car in the vicinity of the near rearwheel. Mr. Prins’ car proceeded a short distance and then turned over,one of the occupants sustaining slight injuries. There are discrepanciesin the .evidence as to the exact position on the road of appellant’s carat the moment of impact, and as to whether or not Mr. Prins was drivingwithout lights. These matters seem to me to be immaterial to thequestion for decision. In order to avoid a collision Mr. Prins wouldhave had to employ more effective measures than he did, such as applyinghis brakes earlier or more- forcibly so that his movement would havebeen impeded. The appellant clearly obstructed the traffic.
■ The point is taken that the prosecution has omitted, to prove thatGalle road is a highway within the meaning of the Motor Car Ordinance.Section 176 defines a “ highway ” as including “ every place over which
MOSELEY S.PrtT.—’Menon v. Lantine.35_
the public have a right of way, or to which the public or any part of thcipublic are granted access, and every place where the motor traffic thereonis regulated by a police officer The definition could hardly be wider,and the fact that on the night in question there were present at thisparticular point on the road at least three motor cars, a bullock cartand three members of the public who were called as witnesses for thedefence is in my view adequate proof that the Galle road is a place towhich at least a part of the public have been granted access.
Moreover, prosecution and defence each put in evidence a sketchdepicting the Galle road as a “ road ” approximately 50 feet wide witha white line along the centre and a pavement on either side. Therewas also evidence of the existence of a street light in the vicinity.
Even without such evidence it seems to me that it was open to theMagistrate to take judicial notice of a fact which must have been withiiyhis knowledge. Section 57 of the Evidence Ordinance (Cap. 11) requiresa Court to take judicial notice of certain specified matters and allowsit to resort to books of reference on matters of public history, literature,science or art. Sarkar on Evidence (4th ed., p. 403), in the commentaryon this section, says that judicial notice is taken of various facts, theuniversal notoriety or regular recurrence of which in the ordinary courseof nature or business has made them familiar to the judges. InLakshmayya v. Sri Raja Varadaraja Apparow Bahadur which wasbrought to my notice by Crown Counsel, Sundara Ayyar J. in discussingthe “ absurd lengths to which the doctrine of not using personalknowledge …. could be carried ” said “ a judge must be allowedto use even his knowledge of concrete private facts, provided he mentionshis knowledge to the parties and they do not object to his deciding thecase and he must be allowed of course to use his knowledge of generalor public facts, historical, scientific, political and otherwise in comingto his conclusions. ”
Turning to English law, in Phipson’s Manual of Evidence (5th ed. p. 24)the following observations appear under the title of Notorious Facts : —
“ The Courts will notice facts which are notorious—e.g., the ordinarycourse of nature ; the standards of weight and measure ; the publiccoin and currency ; and the meaning of common words and phrases.They have also taken notice that the streets of London are crowdedand dangerous, that boys are naturally reckless, and that cats areordinarily kept for domestic purposes. ”
In considering “ the known conditions of traffic in London, with largenumbers of motor cars and motor buses about the streets ” Sergeant J.,in Dennis v. A. J. White & Co.3 described it as “ a matter of which theCourt can of course take judicial notice ”. I have discussed this pointmore fully perhaps than is warranted, and I am clearly of opinion thatthe Court is entitled to take judicial notice of the fact that Galle road is ahighway.
The appeal therefore fails. The charge, however, should have beenlaid under section 85 (6). The appellant ha^ not been in any way pre-judiced and the conviction is accordingly amended. In regard to thei 36 Mad. 16S at p. 180.* (1916) 2 K. B. 1 at p. 6.
36^Piyadasa v. Goonesinha.
sentence it seems to me that the learned Magistrate must have takeninto consideration the damage which resulted from the collision. Thereis no doubt but that the appellant obstructed the free movement ofMr. Pruts’ car. There are, however, some unsatisfactory features inthe case for the prosecution. It seems to me that the evidence of thewitnesses for the defence that Mr. *Prins’ car had no lights carries someconviction, and there is the extraordinary fact, which Mr. Prins is unableto explain, that his tail lamp and number-plate were found wrappedin paper inside his car. I do not think, if Mr. Prins had exercised amodicum of care, a collision was inevitable. For that reason theappellant has, in my view, been somewhat heavily punished. I setaside the sentence of a fine ol> Rs. 50 and substitute therefore a fine ofRs. 5.
Affirmed.