1. The appellant filed a suit for damages against 1st respondent, who is the owner of a bus, and respondent 2, who is its driver, on the ground of injuries caused to his left-arm and left finger while he was travelling in their bus, and it is said the bus swerved and passed close to the side of a tree causing the aforesaid injuries to the plaintiff. The evidence of the plaintiff and his brother-in-law P.W. 4, discloses that the bus took a turn from the road in trying to pass two bullock carte which were going in front and that the accident occurred at that time. The evidence of the disinterested witness, D.W. 1, who was sitting in the front seat of the bus by the side of the driver, discloses that one of the bullock carts turned across the road leaving no space for the bus to move, with the result that the driver took a turn to a side, and finding a tree in front, he turned to the left. When he was thus taking the bus back to the road, after avoiding the cart one of the sides of the bus came so close to the tree that it was damaged and the arm of the plaintiff was injured as stated above. The learned Munsiff who gave a decree for plaintiff also thinks that it is probable that one of the bullock carts turned across the road and in consequence the bus had to take a turn to avoid a collision. But he thinks that since the driver had begun to detour at a distance of forty feet from the place of accident, he had enough time to apply the brake and stop the bus. As pointed out by the learned Additional District Judge, the evidence does not show that the bullock cart stood across the road when the driver began to detour the bus. If he did begin to detour the bus at a distance of 40 feet from the place of accident, it must be remembered, he did so to pass by the side of the bullock-carts. The disinterested testimony of D.W. 1 shows that one of the carts took a turn when the bus was almost close by and it is also clear that but for the driver taking a turn to the right, a serious accident to the drivers of the bullock-carts and to the bullocks as well as the passengers in the bus might have happened. The learned Munsiff's conclusion is that the bus was being driven at such a high speed that it was impossible for the driver to have stopped it though he saw the carts at a good distance. This is nobody's case, as the plaintiff does not allege even in the plaint that the bus was being driven at a high speed.
2. The learned Munsiff appears to be under an impression that the burden of proof shifts on the owner and driver of the bus in a case of this kind when the injured person proves that he has been injured in a bus accident. It is, no doubt, true, that it was observed by their Lordships of the Privy Council in -- 'Winnipeg Electric Co. v. Jacob Geel', AIR 1932 PC 246 (A) as follows :
'Apart from the 2nd plaintiff claiming damages for personal injury in a running down case would have to prove that he was injured, that his injury was due to the defendant's fault and the fact and extent of his loss and damage; hence unless he succeeds in establishing all these matters he must fail. In virtue however of the statute he need only establish the first and the third elements, i.e., that he was injured by the defendant and the extent of his damages; as to the second, the onus is removed from his shoulders and if he established the two matters in respect of which the onus still remained on him, he may close his case because it is then for the defendant to establish to the reasonable satisfaction of the jury, that the loss, damage or injury did not arise through the negligence or improper conduct of himself or his servants. This the defendant may do in various ways, as for instance, by satisfactory proof of a patent defect, or by proof that the plaintiff was the author of his own injury; or by proof that the circumstances were such that neither party was to blame because neither party could avoid the other.'
It will first be noticed that even according to the observations of their Lordships, the initial onus rests on plaintiff. If, however, it is observed that in case he proves that he was, injured and to what extent he has suffered loss' or damage, the burden of proof shifts on to the defendant, it is so on account of the special provisions in Section 62 of the Manitoba Motor Vehicles Act, which was applicable to the case that was being considered by their Lordships. Even otherwise, on plaintiff proving certain facts, it may be possible to presume that unless the defendant proves the contrary, he must have been negligent. These are cases to which the principle of 'res ipsa loquitur' applies. As regards the principle of 'res ipsa loquitur', it is worthwhile giving an extract from Salmond's Law of Torts on the point;
'The maxim 'res ipsa loquitur' applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused...'. On the other hand, if the defendant produces a reasonable explanation, equally consistent with the negligence and no negligence, the burden of proving the affirmative, that the defendant was negligent and that his negligence caused the accident, still remains with the plaintiff.'
3. As observed by Costello J. in -- 'Baijnath v. Corporation of Calcutta', : AIR1933Cal178 :
'Generally speaking in running down eases or as they are now sometimes called collision on land cases the plaintiff is not entitled to succeed unless he gives affirmative proof of negligence on the part of the defendant or his servant. Persons who base a claim for negligence must prove negligence.'
However, as observed by the teamed Judge who was dealing with a case in which the vehicle of the defendant struck against a lamp-post:
'....The law provides that when a vehicle is shown to be under management of the defendant or his servant and an accident occurs such as in the ordinary course of things does not happen, if he who has the management uses proper care, the onus exceptionally rests on the defendant to disprove that the accident arose from want of care.'
Similarly in this case, it may have been sufficient for the plaintiff to prove that the bus in which he was travelling took a turn and proceeded beyond the road and in turning back to go to the road, it struck against the tree. If nothing else had been admitted by the plaintiff, it was for the defendant to have proved that one of the bullock carts going in front turned and stood across the road and he could not avoid taking a turn. In a case of this kind, presumptions on questions of fact arise and may have to be rebutted. It is, however, admitted that two bullock carts were going in front, and even the learned Munsiff does not disbelieve the version that one of the carts flood across the road, with the result that if there is anything in the evidence on the side of the plaintiff to raise a presumption in his favour, it stands rebutted by the evidence adduced by the defendants.
4. Even if it be possible to take a view that it would have been wiser for the driver to apply the brakes though he was quite near the bullock carts, it must be remembered that the driver in a case of this kind cannot be expected to be as wise as he or anybody else be expected to be at a cooler moment. The law on this point as stated in Mr. Gibb's V Edition of the Law of Collisions on Land, at page 11, may be referred to;
'When by the negligent conduct of a vehicle or foot-passenger on the road a collision with another person or vehicle is Veneered imminent, the latter will not be liable in respect of a collision if in the stress and agitation of, the moment he takes unwise course in seeking to avoid it.'
An illustration given by the learned author on the authority of -- 'Wallace v. Bergius', (1915) SC 205 (C) is as follows :
'A was driving a motor car on the proper side of the road. B was driving in the opposite direction on the same, i.e. wrong side. A swerved at the last moment to his wrong side. B swerved simultaneously; held that A was not liable for the ensuing collision.'
At page 12, the learned author again explains :
'Where a wrong step is taken in the agony of collision it does not follow that the step was a negligent step or one caused by fault. The negligent conduct of A has put upon X a burden which is too heavy for him to discharge in the course of exercising his normal duty of care. It has created a situation calling for extraordinary skill or care, and failure to show that is not negligence or fault in a legal sense.'
In the case of -- 'Dwarakanath v. Rivers Steam Navigation Co. Ltd.', AIR 1917 PC 173 (D) their Lordships of the Privy Council have observed that:
'Good sense and the policy of the law impose some limit upon the amount of care, skill and nerve which are required of a person in a position of duty, who has to encounter a sudden emergency.'
What that limit should be, is stated as follows at page 178 :
'In a moment of extreme peril and difficulty the Court is not to expect perfect presence of mind, accurate judgment and promptitude. If a man is suddenly put in an extremely difficult position and a wrong order is given by him, it ought not in the circumstances to be attributed to him as a thing done with such want ol nerve and skill as to amount to negligence. If in a sudden emergency a man does something which he might as he knew the circumstances, reasonably think proper he is not to be held guilty of negligence, because upon review of the facts, it can be seen that the course he had adopted was not in fact the best.'
5. In this case, it cannot be said that the 2nd defendant-respondent 2, who was the driver of the bus, was in any way careless or negligent. In my opinion, he has tried his best to avoid the danger of collision between the bus and the bullock cart, and in avoiding a greater danger, he took the alternative and a less dangerous course of taking a turn to a side and getting back into the road after passing the cart. In doing so, it is true that he could not avoid coming close to a free which struck against the side of the bus and injured the arm of the plaintiff. It cannot be said under the circumstances that the respondents are liable for the injury caused to the plaintiff. The suit against the respondents was, therefore, rightly dismissed.
6. As regards costs, normally speaking, one would sympathise with the plaintiff and order that both parties should bear their own costs. But, in this case, the plaintiff is aware of the fact that the second defendant was discharged in a criminal Court when he was proceeded against for offences (under Sections 279, 337 and 338, I.P.C.) of rash and negligent driving, and he should have thought twice before filing this suit, and should not have filed it unless he had good reasons to think that he had a case against the defendants. The appeal stands, therefore, dismissed with costs.
7. Appeal dismissed.