KRISHNA MURARI LAL Vs. DIXIT CHATURBHUJ

JUDGEMENT

(1.) This is a second appeal by the defendant against a decree of the lower appellate Court awarding the plaintiff Rs. 200 damages for injuries caused to the Red Setter bitch of the plaintiff. It is common ground that the motor lorry driven by one of the defendants and owned by both the defendants collided with the bitch of the plaintiff and caused some injury to that bitch. The finding of fact of the Court of first instance was that the bitch had caused the accident by suddenly rushing across in front of defendants lorry, and that it was not possible for the defendants to stop the lorry. The Munsif therefore dismissed the suit of the plaintiff. The lower appellate Court came to the opposite conclusion that the bitch did not rush across the road but that the bitch was standing on the road easing at the time that the lorry approached it, that the defendant did not consider it worth his while to stop the lorry for the bitch, that at a speed at which the lorry was going, 10 to 12 miles an hour, it could be instantly stopped dead if the driver wished to stop it. But apparently ho did not choose to spend two minutes and hoped the dog would got out unscathed from under the lorry.

(2.) It therefore held that the respondent driving the lorry was negligent in running down the appellant's dog. The first question argued was that there was contributory negligence on the part of the plaintiff, and learned Counsel referred to 56 Cal. (at p. 767), the case of Rabenfels . In this case a quotation was made from a ruling reported in Nami Bala Sen V/s. Auckland Jute Co. laying down what amounted to contributory negligence as follows: Where the negligence of the plaintiff or that of the defendant is the sole cause of the accident the matter is free from doubt. But difficulty may arise whore the accident is caused partly by the negligence of the plaintiff, and partly by that of the defendant. In such circumstances it becomes the duty of the Court to endeavour to ascertain whether the negligent act or omission of the plaintiff, or that of the defendant, was the cause of the accident. If the Court finds itself unable to discover to what extent the negligence of the plaintiff or that of the defendant contributed to bring about the accident, the defendant is entitled to succeed, for in pari delicto potior est conditio defendantis. On the other hand, though the plaintiff may have been guilty of negligence and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse "him " per Lord Penzance, Radley V/s. London & N.W. By. Co. (1876) 1 AC 754.

(3.) In my opinion the question as to whether a plaintiff was guilty of contributory negligence is a question of fact, and it is a question which it was for the lower appellate Court to determine, that is, it was a question of fact as to whether the accident was caused partly by the negligence of the plaintiff and partly by the negligence of the defendant or whether the accident was caused solely by the negligence of the defendant. It appears to me that in the present case the lower appellate Court has found that the accident was caused solely by the negligence of the defendant. This appears to me to be the meaning of the following passage: Admittedly the place where the accident occurred is a busy thoroughfare of the town of Etawah and motor lorries frequently pass by that road. Obviously an owner of a valuable dog is expected to allow his dogs on the thoroughfare leashed and properly attended. But neglect of this alone would mot contribute to the negligence of the other party.