1. This is an appeal from the decision of Mockett, J., in C.S. No. 402 of 1934. The appellant was the plaintiff and he sued for damages, alleging that he had been injured by the defendant's motor car, which was being driven rashly and negligently by the defendant. The learned trial Judge found that the plaintiff had not proved any negligence on the part of the defendant, and he found also that the accident was due to the plaintiff's own conduct in suddenly reversing his direction and so getting knocked down by the motor car. The plaintiff's suit was dismissed with costs and he has preferred this appeal.
2. The facts are very simple. The accident occurred a little before 7 a. m. on 27th August 1934. The plaintiff, an old gentleman of 65, was crossing the Mount Road at a place where it is 105 feet wide, He started to cross from the Vora Cycle Mart and had nearly got across to a point in front of the shop of one V.K. Venugopal, P.W. 3. The plaintiff was not able to give any description of the manner in which the motor car hit him. His evidence was that when he had got within two yards of the cause way in front to Venugopal's shop, he was suddenly knocked over, lost consciousness and knew no more until he found himself in the General Hospital. He was in fact taken to the General Hospital in the defendant's car. The only other witness examined with regard to the accident was P.W. 3 and he also did not see how it occurred. He said that he was in front of the next shop to his own, cleaning his teeth, when he heard the noise produced by a motor car being suddenly stopped. When he turned round, he saw that the plaintiff had fallen down. On this evidence, it is clear that there was no positive proof on the side of the plaintiff of any negligence on the part of the defendant. There is no doubt, I think, that if the case had ended with the plaintiff's evidence, the plaintiff' would have been bound to fail, since the plaintiff cannot succeed in such a case without proof that the defendant was negligent. Unfortunately for himself, the defendant went into the witness box and gave evidence as his own witness. He then described how the plaintiff came to be hurt. He said that the first time he saw the plaintiff was when the plaintiff was directly in front of his car about six feet away. The plaintiff was passing from east to west and had nearly passed the front of his car when he suddenly reversed his direction and came back, thus making it impossible for the defendant to avoid him. The learned Judge accepted this evidence of the defendant as being true, and on that ground as well as on the ground that the plaintiff' did not affirmatively prove negligence he dismissed the suit with costs. It appears to me, with due respect, that the learned trial Judge failed to give proper weight to the defendant's assertion that he did not see the plaintiff until the plaintiff was immediately in front of his car at a distance of six feet. All the evidence is that there was no other traffic about at the time. The defendant himself has not alleged, for example, that there was any other vehicle on the road and that the plaintiff suddenly appeared from behind any such vehicle. Defendant's own evidence was that he did not see any other obstacle on the road. In these circumstances, it seems to me clear that the defendant was driving negligently. The plaintiff is an old gentleman of 65, and there is no suggestion that he was running at any great speed across the road. If the defendant had been keeping proper look out, he would certainly have seen the plaintiff long before he did. If he did not see the plaintiff until the plaintiff was directly in front of his car and only six feet away, I do not see how to avoid the conclusion that he was not keeping a proper look out. It is, I think, indisputable that a person who drives a motor car along the road is under the obligation to keep a careful look out so that he may avoid pedestrians. I will quote the words of Rowlatt, J., in Page v. Richards and Drapper, quoted by Swift, J., in Tart v. C. W. Chitty & Co., Ltd. (1933) 2 K B 453:
It seems to me that when a man drives a motor car along the road, he is bound to anticipate that there may be people or animals or things in the way at any moment, and he is bound to go not faster than will permit of his stopping or deflecting his course at any time to avoid anything he sees after he has seen it.
3. The defendant in this case was, I think, clearly guilty of negligence. Pedestrians also no doubt are under an obligation to keep a look out for vehicles including motor cars. There is, however, in this case no plea of contributory negligence, the defendant's case being that the accident was solely due to the negligence of the plaintiff. This can only be accepted if the defendant's evidence is believed on the point that the plaintiff having very nearly got clear of the car towards the west suddenly reversed his -direction, either by taking a step or two backwards or by turning round and walking in the opposite direction. The plaintiff denied that he did anything of the kind; the defendant asserted that he did. As far as the evidence goes, there is only the word of the defendant against the word of the plaintiff. The learned Judge has accepted the word of the defendant, and his appreciation of the evidence is of course entitled to great weight. There are, however, in this case, circumstances which appear to me to indicate that the evidence of the defendant on this point was not true. The learned advocate for the appellant attempted to deduce this result from the injuries found on the person of the plaintiff. Practically all his injuries were on his left side, the only injury on his right side being the fracture of his right thumb. From precisely the same injuries the learned advocate for the respondent tried to show that the plaintiff must have turned round and must have been struck by the car on his right side and knocked down so that his left side came into contact with the ground. I do not think that there was enough evidence with regard to the injuries to make it possible to infer with any certainty that the defendant's account was true or that the plaintiff's denial was true. It seems to me, however, extremely improbable that the plaintiff, when he had crossed nearly the whole width of the road and had got within two yards of the pavement at which he was aiming, should have suddenly turned round and gone in the opposite direction and so stopped right in front of the car. But what is more important than mere probabilities is the fact that this story of the defendant did not emerge until plaintiff was in the witness box, being cross-examined. Immediately after the accident, the defendant, as he was by law bound to do, reported it to the Police. His report is Ex. H and it is written entirely in his own handwriting. In that report, the defendant stated as follows:
I was driving my car, Standard M. C. P. 7.376 at about 10 to 15 miles speed, when an elderly gentleman by name J. K. Rau crossed the road suddenly in front of my car. I applied my brakes suddenly and the car came to a standstill. Simultaneously with this, however, the front light of my car came in collision with the gentleman who fell down.
4. Later on, he says:
In my opinion, the accident arose due to the gentleman's attempt in crossing the road suddenly. I horned a number of times.
5. And in a postscript he stated : Direction of car from south to north. Man crossed the road from east to west.' Again, on 10th September 1934 the defendant sent a reply to the plaintiff's notice claiming damages of Rs. 5,000. In that reply, he denied that he had driven rashly or negligently and went on as follows:
My client further states that you crossed the road suddenly without heeding to the sound of the horn. He applied the brakes and the side of the car just braced (grazed) you and you fell down.
6. Again in his written statement in the suit itself, the defendant alleged as follows:
The accident by which the plaintiff was knocked down arose wholly from the conduct of the plaintiff in crossing the road in front of the approaching car, and the course pursued by him to avoid the car in so crossing the road.
7. In none of these three documents did the defendant allege that the accident was due to the plaintiff's conduct in suddenly reversing his direction when it was too late for the defendant to avoid him. In fact it appears to me that the purport of Ex. H and Ex. J is clearly to this effect : The plaintiff crossed the road suddenly in front of my car without taking any notice of the horn in spite of the fact that I sounded the horn several times. This means I think on the face of it, that the plaintiff tried to get across in front of the defendant's ear when there was no time for him to do so and hence got himself knocked down. It seems to me incredible that if the plaintiff had got practically clear of the car and turned round and walked back into its track, the defendant could have omitted to mention this in his report to the Police or in his reply notice or in his written statement. This is of particular force in connexion with the postcript to Ex. H where he wrote 'Man crossed the road from east to west.' If the accident had really been caused by the plaintiff suddenly turning back from west towards east, that was the time and place for the defendant to mention it. For these reasons, I would reject the evidence of the defendant and would hold that the accident was not caused by the plaintiff suddenly turning round and going back from west to east. Negligence on the part of the defendant being thus established out of his own mouth, and contributory negligence not having been alleged, plaintiff must succeed. It is however clear, as the learned trial Judge has observed, that the plaintiff was very ill-advised in claiming Rs. 5,000 damages and in bringing a suit in the High Court. The Court of Small Causes with a jurisdiction up to Rs. 2,000 could have given him adequate compensation. With the exception of the fracture of the, right thumb, the plaintiff's other injuries were all of very trivial character. He had a few superficial abrasions and a swelling in the left knee. I Would assess the amount, of damages in this case at Rs. 500. And allowing the appeal, I would give the plaintiff a decree for Rs. 500 with costs in both Courts proportionate to his success. The defendant will of course pay his own costs in both Courts.
8. I agree and have nothing to add.