W J REES Vs. JOHN YOUNG

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for damages. The plaintiff is a Blast France keeper in the Bengal Iron and Steel co. the defendant is a a Superintendent of Collieries. On the night of the 9 December 1916 the plaintiff was proceeding on his motor cycle from Asansol to Kulti along the Grand Trunk Road, the defendant was driving his motor car in the opposite direction. The car and the cycle collided with the result that the cycle was damaged and the plaintiff sustained severe injuries. He was detained in hospital for a considerable time and has become maimed and disfigured for life. The plaintiff asserts that the collision was due to the negligence of the defendant and claims, Rs. 10,534 as damages. The substance of the case for the plaintiff is set out in the third and fourth paragraphs of the plaint Sled on the 6th August 1917, where ii is alleged that while the plaintiff was proceeding on his motor cycle along the left side of the road, he saw two motor cars coming at a great speed from the opposite direction one behind the other, that the plaintiff passed the first motor tar whereupon the defendant who was driving lis car just behind the first car, without any warning and contrary to the rules of in the road, suddenly and negligently swerved out at a high and dangerous pace to the right in order to piss the first car, with the 0 result that his car dashed into the cycle of the plaintiff. The case for the defendant is set out in the seventh paragraph of his written statement filed on the 1 October 1917, in which it is stated that he had passed the car in front (which was driven by one Mr. Gibson) as also another gentleman (one Mr. Hall) who was coming in a motor cycle evidently in the same direction as the plaintiff, and that there after the plaintiff ran into and collided with his car. The defendant states that the distance between Mr. Gibson's car and Mr. Hall's cycle was 100 ft,: and that between Mr. Hall's cycle and the plaintiff's cycle was 300 ft. He farther adds that at the moment of collision, he was proceeding by his left side of the road, leaving more than half the width of the road for vehicles coming from the opposite direction to pass. In the 8 paragraph of the written statement, the defendant alleges that on enquiry he learnt that the plaintiff bad consumed a quantity of spirits at a refreshment room at Asansol which made him negligent, reckless and confused, and accounted for his suddenly running into the aar. The respective allegations, it may be observed, had been formulated by the parties in the course of correspondence antecedent to the suit, namely, on the 19 May 1917, on behalf of the plaintiff and the 19th June 1917, on behalf of the defendant. The Subordinate Judge has found that the collision was brought about by negligence on the part of the defendant. He has disbelieved the story that the plaintiff was under the influence of liquor, and, unable to control himself, dashed into the car of the defendant. He has also accepted the plaintiff's story that the accident happened at the time when the defendant was trying to pass Mr. Gibson's car. The Subordinate Judge has accordingly decreed the suit, holding, as regards the measure of damages that the amount claimed was not unreasonable. On the present appeal the judgment of the Subordinate Judge his been attacked on the ground that his conclusions are not supported by the evidence on the record and that he has in fast given the plaintiff a decree on a theory inconsistent with the case made in the plain. It has not been disputed on behalf of the respondent that, as pointed out by Lord Westbury in Eshen chunder Singh V/s. Shamachurun Bhutto 11 M. I. A. 7 : 6 W. R. P. C. 57 : 2 Ind. Jur. (n. s.) 87 : 2 Sar. P. C. J. 209 : 20 E. R. 3. and recently affirmed by Sir Liwrence Jenkins in Malraju Laithmi Venkayyamma Row V/s. Venkatadri Appa Row (sO.itisabsolutely necessary that the determinations in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made. The fundamental principle that the plaintiff cannot be permitted to follow a line of attack which the defendant had no opportunity to meet is of special importance in collision cases, where the accident happens very often in an entirely unexpected manner and in an extremely short space of time, thus rendering an accurate observation of the elements of the incident difficult in the highest degree. In this class of cases, it has consequently been considered specially necessary that the plaintiff, in framing his statement of claim, should set out the circumstances of the collision, to far as they are known to him, with clearness and accuracy to enable his adversary to know the case he has to meet; be should also stale in specific terms the particular acts of negligence which, according to him, caused the collision see the observation of Lord Chelmsford in Alice {The) and Rosita(The) 1868) 2 P. C. 214 : 5 Moore P. C. (n. s.) 803 : 8 L, J. Adm, 20 : 19 L, T 753 : 16 E. K. 5,8. We consequently to consider, whether the accident took place in the manner described in the plaint.

(2.) In the determination of this question, we must remember that according to the plaintiff he was always on his proper side of the road; the defendant did not seriously challenge this, but asserted that the plaintiff was so intoxicated that he lost all control over himself and ran into the car. This theory has been negative by the Subordinate Judge, and, in my opinion, no solid foundation was laid for it in the evidence. Immediately after the accident, a medical man was on the spot; no suggestion was made to him by the defendant that the plaintiff was intoxicated; and the information subsequently a-Heated with much assiduity from the refreshment room is entirely inconclusive. In this court, no endeavour has been made to controvert the conclusion of (h) Subordinate Judge on this point. The position consequently is that the assertion of the plaintiff that ho was on the proper side of the road practically remains uncontradicted, while the only theory suggested why he should have run into the car of the defendant has completely broken down. We pass on next to the case of the defendant. Admittedly, there was another sir in front of his car; he did swerve out of what was his proper track with a view to get in front of that car; to this extent, he did violate the rule of the road, He is thus constrained to take up the position that be successfully passed the car in front and managed to get again on the proper side of the road before the accident had happened. The burden of establishing this assertion lies primarily on him. If this allegation is not proved, the accident is explained. Upon the question, whether he did actually passed the oar in front of him and regained the proper side of the road, the evidence is conflicting. The plaintiff asserts that the first ear passed him quite safely and the second car, evidently with the object of passing the first oar, swerved out of its way, thereby catching him just when he had passed the first car. His statement is quite premise and he adds that when the rear oar struck him, some portion of it caught his right thigh and some other portion caught his right leg below the knee. Mr. Hall first came up to him, after the accident, and the plaintiff is definite that both the cars had passed Mr. Hall before the accident. This description is borne out by Mr. Hall. He states that he and the plaintiff left the refreshment room together, but outside the station he went ahead He then waited for the plaintiff to come up to him and was about 100 ft. to 5Cft. off from the place of accident. He saw the two cars pass him. and immediately after the second ear had passed him, it swerved to the right, evidently with the intention of overtaking and passing the first car. At that time, the plaintiff was approaching from the opposite direction. He then describes how the plaintiff struck the side of the second car as the position of the second ear did not give the plaintiff room enough to pass. The witness substantially adhered to this description even after a severe cross-examination. I see no reason to distrust the testimony of Mr. Hall and there is no doubt that he should see how things happened in the bright moon light as it was the night of the full moon. On the other hand, the defendant asserted that be had passed the car in front of him and had reached the proper side of the road before the accident happened, and in this version he was supported by his wife who was with him in the car. There is thus a clear conflict of testimony upon this, the fundamental point in the case. The Subordinate Judge has accepted the version given by the plaintiff. I am unable to say that the story narrated by the defendant should have been preferred: it is to my mind plain that his estimate of the distances between the cars and the cycles and the speeds of the two cars is inaccurate. The same remark applies to the evidence of Mr. Gibson. This is precisely the class of cases where a court of Appeal should, as Lord Kingpdown said in Bland V/s. Eon(1860) 14 Moore P. C. 210 at p. 235 : 15 E.R. 284 : 134 B. R. 43; Lush 224., in order to reverse the decision of the Court below upon a point of this description, not merely entertain doubts whether the decision below is right but be convinced that it is wrong The same view has been emphasised by the Judicial Committee in later collision cases : Alice {The) and Prineen Alice (The) (1868) 2 P. C. 245 : 88 L. J. Adm. 5;19L.T. 678 : 17 W. B. 209, 5 Moore P. C. (N. S.) 333 : 16 E. R. 541. Tasmania (The) (1890) 15 A. C. 223 : 63 L. T. 1 : 6 Asp. M. C. 517. Riven Steam Navigation Co. Ltd, V/s. Rathor Steamthip Go. Limited35Ind, Cas. 193 : 20 C. W. N. 1022; (1916) 1 M. W. N. 416 : 3l M. L. J. 159 : 4 L. W. 176 (P.C.). No doubt, as was observed in Glannibanta (The) (1876) 1 P. D. 283 : 34 L. T. 934 : 24 W, B. 1033 : 3 Asp. M, C. 339. the parties to the cause are entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing con-dieting evidence and drawing its own inferences and conclusions, though it should always bear in mind in deciding a point on which there is a conflict of oral testimony that it has neither seen nor beard the witnesses and should consequently make due allowance in this respect. In the present ease, we have the cardinal fast that the defendant at one stage took his oar to the wrong side of the road which would inevitably lead to an accident if another vehicle came from the opposite direction before the car could be taken again to the proper side of the road. That the car of the defendant did actually get back to the proper side has not, according to the Subordinate Judge, been established by the evidence, and I do not see adequate grounds to dissent from this conclusion.

(3.) I may add that the Subordinate Judge properly declined to draw any inference adverse to the plaintiff merely from the position in which he was found lying on the road immediately after the accident. It is manifestly impossible to reconstruct, even in imagination and with any approach to contrary, the conditions under which the collision took place, solely from the position in which one of the occupants of the cycle or oar is found after the accident, that position is the resultant of a number of factors which are absolutely unknown in the case before us. I hold accordingly, in concurrence with the Court below, that the accident was due to the negligence of the defendant.