082-NLR-NLR-V-51-PERERA-Appellant-Mand-GAMINI-BUS-CO.-LTD-Respondent.pdf
(4RATIAEN J.—Ptrtrav. tinmtm Bus Co., Ltd.
1949Present: Canekeratne J. and Gratiaen J.PERKRA, Appellant, and GAM1N1 BUS CO., LTD.,Respondent
S. C. 281—D. C. Colombo, 17,078
Negligence—Passenger alighting from bus—lion over by rear wheel—Ros*ipsa loquitur— Want of proper wire—Damages.
An omnibus stopped at a halting place to enable passongers includingplaintiff to alight and the plaintiff was later found run over by the rearwheel of the bus.
Held, that the maxim res ipsa loquitur appliod and that in the absenceof an explanation the defendant was liable.
^^.PPEAL from a judgment of the District Court, Colombo.
N. E. Weerasooria, K.C., with H. A. A'ontteyoda, for plaintiffappellant.
H. ir. layer oar dene, for defendant respondent.
Cm. adc vull.
Mnrcli 25, 1919. Gratiaen J.—
On June 22, 1045, the plaintiff, an elderly Iadv of 59. was a passengerin an omnibus belonging to the defendant- Company. The omnibusstopped at a halting place in Pamankadde to admit new passengers andalso to enable certain passengers, including the plaintiff, to alight,According to a witness whose evidence has been accepted by the learnedDistrict Judge, “ there was a rush of people trying to board the bus ;there was no queue at the halting place, and everybody was crowdinground the bus In this state oi things the situation clearly demandedspeoial caution from the driver of the omnibuB before he drove 1 he vehicleaway. He should have realised the possibility that someone who waseither pressing forward to board the omnibus or who was attempting toalight might be jostled into a position of danger when the vehicle resumedIts journey. It was therefore incumbent on him not to drive off withouteliminating the risk of running over members of the undisciplined crowdor over others who, like the plaintiff, had unwillingly been caught up,so to speak, in the tide. What actually did take place illustrates whatany reasonable person should have anticipated and made it his businessto avoid. According to the ease as presented at the trial on behalf ofthe Company, when the omnibus eventually drove off, its rear wheelsran over the plaintiff who had been knocked down by some persons whowanted to get into the omnibus. To quote a witness called by theCompany, “ as tho plaintiff fell, the bus started and the rear wheelsran over her
GRATIAEN J.—Ferera v. Qarnini Bus Co., Lid.
329
The plaintiff’s version o! the incident is rather different, but it wasrejected by the learned Judge and I will therefore assume for the purposesof this appeal that the Company’s version represents the truth.'^ButI do not think that this can avail the Company, because the Company’sversion discloses an equally strong prima facie case of negligence againstthe driver. In the ordinary course of things the rear wheels of anomnibus which is carefully and competently handled do not run over aperson who has just alighted from the vehicle at a prescribed haltingplace. The doctrine of res ipsa loquitur clearly applies to such a case,because “ where the accident was such as does not normally happenif those that have the management use proper care, it affords reasonableevidence, in the absence of explanation by the defendant, that theaccident rose from want of care”—Scott v. London Dock Company1. In thepresent case the driver has signally failed to give or even to suggest anexplanation which can be regarded as sufficient to rebut the presumptionof negligence raised against him. Indeed, he unblushingly confessedto almost complete ignorance of what had happened. “ 1 did not seehow the accident occurred ”, he said, “ I saw the plaintiff alightingfrom the bus. The conductor gave me the signal to start and I startedthe bus. When the bus travelled about two or three feet the peopleshouted that a woman was run over. I stopped the bus and saw thatthis woman had been run over Far from serving to rebut the pre-sumption of negligence, this frank admission by the driver seems to meto strengthen the case against him. If the driver of an omnibus is contentto surrender his judgment to the conductor on the question whetherit is safe to drive on without risk to the persons who were known, in anatmosphere of chaos and confusion, to be in very close proximity to thevehicle, he does so at his peril. To drive “ in blinkers ” on such anoccasion is to my mind an act of gross and unpardonable negligence.It shows callous disregard for the safety of others.
In my opinion there is no evidence to justify tho learned Judge’s viewthat the accident occurred “ due to some cause beyond the control ofthe Company’s driver”. I would accordingly hold that the Companyis liable to compensate the plaintiff for the damages sustained by herby reason of the driver’s negligence.
There remains the issue of damages. In addition to other injuriesthe plaintiff sustained a compound fracture in her left leg. She hadbeen employed as an attendant in a Government Hospital, and it is clearthat apart from tho very considerable pain and discomfort which shemust have experienced, she has incurred a great deal of expense and alsobeen deprived of income for many months. The learned trial Judgedid not record his findings on the issue of damages in view of his decisionthat negligence had not been established against the driver. It is I thinkmore satisfactory for a trial Judge to express his opinion on all the issuesof fact in the event of his judgment on the major issue of liability beingreversed in appeal. As this has not been done, the case should normallybe sent back for retrial on the issue of damages. The accident occurred,however, nearly four years ago, and I am very reluctant to put the
i 159 E. R. 6$5.
330
BASNAYAKE J.—Haniffa v. Packeer (S. I. Police)
parties, and particularly the plaintiff, to further expense and incon-venience if it can be avoided. The plaintiff is now 63 years old, and itwould be wrong to deprive her any longer of the compensation which isKer'due. I prefer in all the circumstances to assess the damages on thematerials which are already before us. Considering that part of theevidence on this issue which the defendant Company has not disputed,I am satisfied that the trial Judge could not reasonably have awardedthe plaintiff a sum of less than Rs. 2,500 as damages. This seems in allthe circumstances of the case to be a fair award. I would accordinglyset aside the judgment of the learned District Judge and enter decreein favour of the plaintiff against the defendant Company for the sum ofRs. 2,500. The plaintiff is also entitled to her costs of appeal and inthe Court below.
Canekbbatne J.—I agree.
♦
Appeal allowed.