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GRUNSHIE v. YEBOAH AND ANOTHER


  • New
  • 1961-11-27
  • HIGH COURT
  • GLR 725-728
  • Print

BRUCE-LYLE J.


Summary

Tort?-Negligence?-Standard of proof.

Headnotes

The plaintiff sued the defendants, driver and owner respectively of a Bedford lorry No. AN 4947, for damages for personal injuries suffered by her as a result of an accident involving the said Bedford lorry and an Albion truck. The plaintiff alleged that the accident was due to the negligence of the first defendant. The evidence was that the Bedford lorry and the Albion truck were travelling in opposite directions. On getting up to a narrow culvert the Albion truck stopped on its side of it to allow the Bedford lorry to go over first. The plaintiff and the driver of the Albion truck said the truck stopped four to five yards away from the culvert; the first defendant said it stopped about two yards only away, that it blocked the exit from the culvert. There was no dispute however that the truck stopped and was stationary when the first defendant drove his Bedford lorry into it. The plaintiff and one of her witnesses said that the first defendant could not stop because he drove at a speed of 40 to 50 m.p.h. which they said was excessive in the circumstances. The lorry's speedometer had been damaged and was not working at the time. The plaintiff?'s evidence of speed was based on an allegation that the driver had said he was in a hurry to get to his destination. Her witness, a passenger on the lorry, was a professional driver himself, and his estimate of the speed was a matter of opinion. The first defendant said he was then travelling at between 25 to 30 m.p.h.

Judgement

ACTION for damages for personal injuries.

In this case the plaintiff claims from the defendants jointly and severally damages based upon the negligent driving by the first defendant's lorry. The particulars of negligence are enumerated in paragraph 4 of the statement of claim. In paragraph 3 of the statement of defence the defendants joined issue with the plaintiff on these allegations or particulars.

The plaintiff?'s case is that on the 6th July, 1960, she was a passenger on a Bedford lorry No. AN. 4947 driven by the first defendant and owned by the second defendant, and travelling from Ashanti Agona to Tamale, and that on a straight motor road on the outskirts of a village called Gyiraturu, she noticed an on-coming vehicle. There was a narrow culvert between the two vehicles and when the vehicle of the first defendant was about 70 yards from the culvert, the on-coming vehicle, an Albion truck driven by P.W.3, stopped about two yards from its side of the culvert to allow the first defendant to cross the culvert. When the first defendant's lorry was emerging from the culvert he drove his vehicle into the stationary Albion truck. As a result of this impact the plaintiff sustained injuries which have permanently impaired her from carrying on her normal trade as a dealer in smoked river fish and meat. It is the plaintiff?'s case that the first defendant drove his vehicle without reasonable care and did not keep a proper lookout and failed to stop to avoid running into the stationary truck, and therefore drove negligently. To substantiate the negligence alleged, the plaintiff?'s case is that the first defendant drove his vehicle at the unreasonable speed of 40 to 50 miles per hour.

The second defendant has not given evidence but by the statement of defence there appears to be no denial of the fact that the second defendant was at the material time of the accident the owner of the Bedford lorry No. AN. 4947 and that the first defendant was the servant of the second defendant. In short the second defendant stands or falls by the first defendant. The first defendant has given evidence denying all the allegations of negligence and has said in his evidence that he drove his vehicle at a reasonable speed of 25 to 30 miles per hour, and that the on-coming vehicle, i.e. the Albion truck driven by P.W. 3, on getting to the culvert suddenly went across the road, and that his vehicle coming out of the narrow [p.727] culvert ran into the side of the Albion truck. The first defendant in his evidence has said that P.W. 3's vehicle was not stationary 'on its proper side before the impact.

The claim for damages will only succeed if negligence on the part of the first defendant is proved by the plaintiff. On the issue of negligence the plaintiff should prove negligence by the first defendant. I agree with counsel for plaintiff that once negligence on the part of the first defendant is proved it is immaterial whether the driver of the Albion truck was also negligent. In this case I find that it is necessary to resolve two issues to enable this court to decide whether the first defendant was negligent. The first issue being who was the author of this accident and the second, did the first defendant contribute negligently to this accident?

On these issues there is the evidence of the plaintiff herself that the Albion truck driven by P.W. 3 stopped about two yards from his end of the narrow culvert when the first defendant's vehicle was 70 yards from the culvert. There is also the evidence of P.W. 3, the driver of the Albion truck, that he stopped on his near side about four to five yards from his end of the culvert. From the evidence of these two witnesses it is quite clear that P.W. 3 stopped his vehicle very close to the narrow culvert. P.W. 3's reason for so stopping was no doubt to allow the first defendant to traverse the culvert. I find as a fact that P.W. 3 was nearer the culvert than the first defendant and that if he did not intend to give way to the first defendant to drive on to the culvert he would not have stopped. I also find that once the intention of P.W. 3 was to allow the first defendant to come on to the culvert it was the duty of P.W. 3 to park his vehicle at a reasonable distance from the culvert to allow easy flow of traffic from the culvert. It was during the day and P.W. 3 should have seen the size of the Bedford lorry to decide what would be the reasonable distance to stop from the culvert to allow the Bedford lorry easy exit. I find that stopping two yards or four to five yards from the narrow culvert in the circumstances is not reasonable.

Counsel for the plaintiff has contended that even though four to five yards may not be considered a reasonable distance to stop in the circumstances, the first defendant was negligent in that he drove his vehicle at a fast speed of 40 to 45 miles per hour which speed was most unreasonable considering that he was entering a narrow culvert and that if it had not been for that excessive speed the first defendant could have brought his vehicle to a standstill when he realised that P.W. 3's vehicle was so close to the culvert and practically across the road.

The evidence of the speed of the first defendant's vehicle is that of the plaintiff herself and also of a passenger called Adjei, P.W.2, on the front seat with the plaintiff. The plaintiff?'s evidence simply is that the first defendant drove at a fast speed and she based this conclusion on the fact that the first defendant had intimated to them that he was in a hurry to get to Tamale before 12 noon to discharge his load. P.W. 2 gave the speed of the first defendant's vehicle at the time of the impact as 40 to 45 per hour, and he based this on the fact that he himself is a driver by profession. He did not base this evidence on the reading of the speedometer, as, [p.728] according to him the first defendant's speedometer was not working at that time. I find that the evidence of the speed of the first defendant's vehicle is based upon guess-work by the plaintiff herself and upon the opinion of P.W. 2, and I do not consider this evidence as conclusive. The first defendant gave his speed as 25 to 30 miles per hour and he was never cross-examined by the plaintiff 's counsel to show that his estimate of speed was also guess-work. In the circumstances I am bound to accept the evidence of the first defendant as to the speed of his vehicle at the time of the accident. I therefore find that the first defendant drove his vehicle at the normal speed required for vehicles of the type of the first defendant's 7-ton Bedford lorry.

As to whether the first defendant could reasonably have avoided this impact by stopping his vehicle, I find that the circumstances were such that the first defendant emerging from a narrow culvert could not in any way have avoided running into a vehicle which had stopped two yards or four to five yards away from the culvert.

From the foregoing findings I further find that P.W. 3 was the sole author of the accident and that the first defendant was not in any way negligent. I have considered the authorities cited by learned counsel for the plaintiff and I am of the opinion that none of the authorities is on all fours with this case. I am of the opinion that in running-down cases negligence is dependent upon the peculiar set of facts in each given case and principles of law enunciated in one case cannot be wholly applied to different facts in another case. I find that the plaintiff has failed to prove any negligence on the part of the first defendant to enable her to succeed on her claim for pecuniary damages and I hereby dismiss her claim and enter judgment for the defendants, with costs for the defendant fixed at 35 guineas.

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

E. O. Appiah

Defendant / Respondent

Owusu Yaw

Referals

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