Keshavji v Rowe (C.A. 29/1929.) [1929] EACA 119 (1 January 1929)

## APPELLATE CIVIL.

## Before THOMAS, J.

# BHIMJI KESHAVJI $(Appellant)$ (Original Plaintiff)

#### $\mathbf{n}$ .

## R. ROWE

## (Respondent) (Original Defendant). C. A. $29/1929$ .

Contributory negligence.

Held:—That the Defendant in this case had no look out, but the<br>Plaintiff had, and having that look out he persisted in a course<br>without which, according to the evidence, the injury would not<br>have happened. The Plaintiff negligence.

JUDGMENT.—This is an appeal from the Resident Magistrate of Nairobi.

The facts are shortly as follows: -About two o'clock in the morning of the 7th of April, 1929, a car belonging to the plaintiff came into collision with a car belonging to the defendant. Both cars were damaged. An action was commenced for damages for negligence. The defendant counterclaimed for damages for negligence.

The evidence showed that the defendant's car was curtained in such a way that the defendant who was driving could not keep any proper look out. He was following a car driven by a Doctor Tonkings along the Government Road coming from the Salisbury Road direction, and turned into Sixth Avenue. The plaintiff's car was coming down Sixth Avenue and about to cross into Government Road in the direction of the Railway Station.

Dr. Tonkings stated that the plaintiff's car would have struck his car if he had not accelerated. A passenger (who was also a taxi driver) in the plaintiff's car gave the following evidence, " $I$ told plaintiff defendant's car was coming. I said we could pass before it. I said he had better stop. He (plaintiff's driver) did not nearly collide with first car. I said there was a risk as it was raining hard. If the plaintiff had stopped the accident would not have happened.

On the evidence the Magistrate found that the defendant was negligent and that the plaintiff had been guilty of contributory negligence and therefore dismissed the claim. On the counterclaim the Magistrate decided that the defendant had been guilty of contributory negligence and therefore dismissed the counterclaim.

The plaintiff appeals from the decision of the Magistrate and gives as his grounds:-

(1) The Magistrate misquoted the defendant as saying "I did not see the other car until it struck me or a portion of a second before ". Whereas the defendant stated "I did not see the plaintiff's car till the crash ", and "I did not see the car until I struck it due to my side curtains being down." " If my side curtains had been up I ought to have stopped and there would have been no collision."

(2) That the Magistrate misdirected himself on the law of negligence and contributory negligence; nor did he properly weigh the legal aspect of this case as to the immediate and proximate cause of the collision as set out in the evidence on record.

(3) That the Magistrate admitted illegal and incompetent evidence.

With reference to the first ground the Magistrate does seem to have misquoted the evidence. The Magistrate however has found the defendant guilty of negligence. I will read the correct words into the evidence when considering the second ground.

With reference to the last ground. A statement made by the defendant to his advocate was put in. It would seem to have been inadmissible. There was ample evidence, however, apart from this statement to enable the Magistrate to arrive at The question raised by the second ground of appeal his decision. remains.

Reference has been made to the case of Tuff and Warman, 1858, Vol. 141, English Reports, page 231. In his summing up WILLES, J., told the jury that the plaintiff was not entitled to recover if it was an accident, or if the plaintiff by his negligence had directly contributed to the accident; and that, if the injury was occasioned by the negligence of both parties, the plaintiff had no remedy; and he asked the jury whether they thought the absence of look out was an act of negligence on the part of the plaintiff and if so, they would have to take it into consideration in deciding whether, notwithstanding that, the defendant was liable; and he further told them, that, if the parties on one vessel had a look out, and still persisted in a course which would inflict an injury, then they were liable though there was no look out on the other vessel, for that would not be the direct cause of the injury. He further told the jury, that, if they thought the accident had been partly caused by the plaintiff's own negligence, they should find for the defendant; but, that, if they thought the barge was injured by the negligence of the defendant, and that the negligence of the plaintiff did not directly contribute thereto, the plaintiff was entitled to recover.

On appeal, WIGHTMAX, J., delivering the judgment of the Court said, "It appears to us that the proper question for the jury in this case and indeed all others of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence, or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover, in the latter not, as, but for his own default, the misfortune would not have happened. Mere negligence or want of ordinary care and caution, would not, however, disentitle him to recover, unless it were such, that but for that negligence or want of ordinary care and caution the misfortune could not have happened, nor, if the defendant might by the exercise of care on his part have avoided the consequence of the neglect or carelessness of the plaintiff. The learned Judge told the jury, that, if the absence of a look out was negligence on the part of the plaintiff, still, if the defendant also had a look out, and nevertheless persisted in a course that would inflict an injury, he would be liable, though the plaintiff had no look out; for that neglect of the plaintiff's would not be the direct cause of the injury, that is to say, would not be a cause without which the injury would not have happened." Now the defendant in this case had no look out, but the plaintiff had and having that look out he persisted in a course without which according to the evidence the injury would not have happened. I am satisfied from a consideration of the evidence that but for the negligence or want of ordinary care and caution of the plaintiff the misfortune could not have The defendant had no look out but the plaintiff happened. persisted in a course that would inflict injury.

The Magistrate has found that the plaintiff was guilty of contributory negligence and I see no reason to disagree with the finding either on the evidence or in law.

The appeal will therefore be dismissed with costs.