J W NUNN Vs. CALCUTTA TRAMSWAYS CO LTD

JUDGEMENT

(1.) This is a claim by James William Nunn against the Calcutta Tramways Co., Ltd. claiming, damages for personal injuries sustained by him in an accident, which occurred on 10th September 1926, when admittedly the plaintiff was injured by a tramcar belonging to the defendants. The plaintiff says that the defendant Company were guilty of negligence, and he claims to recover from them a substantial sum by way of damages, because by reason of the accident he has lost his employment as an engineer in the service of the Eastern Bengal Railway Company, where he was employed on a salary of something like Rs. 1,200 a month together with certain allowances. The defendants by their defence deny that they were guilty of any negligence. They say that the accident was caused solely by the negligence of the plaintiff himself and, in the alternative, they say that, in any event, even if they were guilty of negligence, the plaintiff was guilty of contributory negligence and that the accident was brought about by the negligent conduct both of the plaintiff and of the defendants driver.

(2.) No real difficulty arises as to the law which is applicable to a matter of this kind. A great many cases have been put before me, but they only serve to emphasize the proposition that when a collision is brought about by negligence on the part of both the vehicles, or the I vehicle and the person coming into collision, if nevertheless, one of the two parties could, by using due care and diligence have avoided the accident, then the negligence of the other, even I if ho contributed in a sense to the accident, does not necessarily disentitle him to succeed.

(3.) A great many expressions have been used from time to time in cases of this kind, as for example "the last opportunity" or "causa causans" and "causa sine qua non," but, put simply, it all comes to this the real question is what was the last act of negligence that brought about the accident? In the case before me the real question is whose was the act of negligence, it there was negligence, which actually brought about the injuries of which the plaintiff complains. There were certain admitted facts in the case. It was not disputed that the accident did occur on 10 September 1926, at or about 4-30 in the afternoon, and that by such accident the plaintiff suffered serious personal injuries. It is admitted that the accident occurred in Dalhousie Square, and that it happened because the plaintiff had walked from the side (path on to the tramway track.