1. Two plaintiffs, husband and wife, sue for damages due to a collision between the car of plaintiff 1 with a bus owned by the defendant on 10th March 1936. Plaintiff 2 was being driven in that car at the time of the accident and suffered serious injuries. The nature of those injuries has been spoken to by the doctor who has given evidence and the expenses incurred in connexion with those injuries are set out in para. 6 of the plaint. The actual sum claimed under that head was over Rs. 1300 but the vouchers have all been shown to the learned Counsel for the defendant and the parties are agreed that the damages under this head should be Rs. 1176.9-0. The ownership of the plaintiff's car though not admitted in the pleadings, has now been admitted, and it is not contested that the driver of the bus was an employee of the defendant and was driving in the regular course of his employment. It is the common case of both parties that the accident took place at the junction of Wellesley Street and Corporation Street. Down the middle of Wellesley Street which runs north and south, there is a double set of tram lines, and it is not denied that the Hillman car, belonging to the plaintiff, was driven along Corporation Street from west to east. There was a tram on the western set of the tram lines going north along Wellesley Street. It is also not contested that that tram stopped though the plaintiff's case differs from the defendant's case as to the actual place where the stop occurred. The plan which has been put in by the parties shows two man-holes, one on each side of the tram lines, and the ease of both sides is that the collision took place just by the eastern man-hole.
2. The only question for decision is whether there has been such negligence on the part of the defendant as to entitle the plaintiff to recover damages. In his written statement, the defendant raises the plea that there was contributory negligence on the part of the driver of the plaintiff's car. Particulars of negligence are set out in the plaint and particulars of contributory negligence in the written statement. The plaintiff's case is that the Hillman car came to the cross-roads and halted at a point which has been marked R in the plan; that is to say, just in Corporation Street between 8 and 10 ft. from the near side kerb just before entering the crossroads. Mrs. Williams, who was in the car at the time, and who was injured, says that they halted in Corporation Street as the tram had come up simultaneously from the south of Wellesley Street to the crossroads. The tram was at the point marked R, which is just inside Wellesley Street, short of the junction between Wellesley Street and Corporation Street. The plain-tiff's evidence is that the tram was not projecting into the junction but the head of the tram was on the same line as the footpath or slightly behind it. The tram driver waved to the Hillman car to go through. Mrs. Williams said that she looked and saw no traffic so she told her driver to go on. She then said that as they were crossing the tram lines, she saw a bus coming at a very high speed, passing the trailer of the tram and as they got on to the eastern set of tram lines, the collision occurred. The tram was composed of two coaches, the rear coach being referred to as the trailer. Mrs. Williams then fainted and having received severe injuries, she was taken to hospital and has no knowledge of what then happened. (The judgment then discussed the evidence regarding the speed at which the bus driver was driving and proceeded.) The evidence that he was going at an excessive speed is overwhelming. I accept the evidence that his speed was something between 30 and 40 miles an hour. The evidence that he was hurrying and that the passengers complained earlier during that particular drive I also accept. There is therefore a prima facie case of negligence, and Mr. Cammiade for the plaintiff suggests that the position of the bus at the time of the accident almost creates a case of 'res ipsa loquitur' for, it must be negligent for a bus driver to drive his bus over cross-roads, on the wrong side of the road, overtaking a tram which has two coaches, and driving where it would be impossible for him to see what traffic was approaching from the other side of the tram. When the speed at which the bus was travelling is also taken into consideration the negligence is little short of criminal.
3. For the defendant it is argued that there was contributory negligence. The defendant contends that the accident was due to the signal given by the tram driver to the Hillman car to proceed. I can see no objection to the tram driver making such a signal even if he did not look to his right before he made it. All that he suggested to the driver of the Hillman car was that the car had the right of way so far as the tram was concerned. It was not necessary for him to see what the other traffic was doing. He was entitled to convey to the driver of the Hillman car that, he the driver of the tram, was willing to stop and allow the Hillman car to proceed on its way. Even if the tram driver were negligent, which in my opinion he was not, such negligence would not constitute contributory negligence on the part of the plaintiff. Reliance is also placed on a rule of the road under the Bengal Motor Vehicles Rules. Rule 39 provides that:
A motor vehicle shall keep on the left side of the road, provided that he may pass any ear or other vehicle running on fixed rails on whichever side thereof he may consider necessary or expedient, having due regard to the circumstances of the case and to the safety and convenience of other users of the road.
4. The argument for the defence, if I understand it correctly, was that owing to this rule the bus driver was within his rights in passing a tram car on the off side in the middle of a junction. The rule definitely states that such passing can only take place 'having due regard to the circumstances of the case and to the safety and convenience of other users of the road.' It is well established that it is a negligent and dangerous act to overtake another vehicle on a cross-roads, and it is obviously far more dangerous to overtake a tram on a crossroads for this necessitates entering the opposing line of traffic and driving in the opposite direction to that which the cross-traffic is entitled to anticipate. The fact that the tram had two coaches would make it almost impossible for the overtaking bus to see what traffic was coming in the direction which would cross his own line of traffic, and would make it equally impossible for the cross traffic to see the overtaking bus. The defendant has suggested that the plaintiffs' driver was negligent in driving so as to pass close in front of the tram. I have already stated that he had every right to pass in front of the tram when he had been waved through by the tram driver, and I am of opinion that he had plenty of room to pass. It is also contended that he ought to have stopped'. I do not accept the defendant's evidence that there was hardly any gap between the tram, the car and the bus, on which it is contended that the car driver should have stopped his car. In fact, the car driver, who was in first gear, and driving, according to the evidence which I accept, somewhere about ten miles an hour, merely proceeded on his way. Had he either stopped or accelerated it is unlikely that he could have avoided the accident. I can find no evidence whatsoever of negligence on the part of the car driver. In fact he seems to have taken every precaution and to have been driving with a degree of care which is unusual. I find that the tram was at the time of the accident somewhere north of the Wellesley Street entrance to the cross roads from the south. The witnesses would be unlikely to estimate the exact distance correctly but I accept the car driver's evidence that if the bus had not been travelling at an excessive speed it might have gone between the tram and his car. The Hillman car was on its correct side of the road and was justified in crossing after receiving the tram driver's signal. It was proceeding at a slow speed and in first gear. The bus driver was negligent in overtaking any vehicle at a cross-roads. He was doubly negligent in trying to overtake a two-coach tram, and he did not have 'due regard to the circumstances of the case and to the safety and convenience of the other users of the road.' He was negligent in driving at an excessive speed.
5. In the result I find that the bus driver was negligent and the defendant, his employer, is liable for his negligence. I find no evidence of contributory negligence. The damages with regard to injury have been agreed, and the general damages which have been claimed for the injuries sustained by defendant 2 are for a sum of Rs. 5000. The defendant suggests that that sum is excessive and relies on a letter which was written shortly after the accident on 4th June 1936 in which the sum of Rs. 2500 was claimed for injuries to Mrs. Williams. The doctor has given evidence of the injuries. They were in his opinion serious. There was considerable shock at the time, and Mrs. Williams suffered from pain, for which she had to be given drugs and injections. Ribs were broken, and her right scapula, and the doctor's evidence is that as a result of the breakage of the scapula there is a limitation of the movement of the right shoulder, which is likely to be permanent. There is also pain from the injury which is likely to recur during the cold weather and the rains. He said however that her general condition was now quite good.
6. The amount of damages which is claimed does not seem to me excessive and I award the sum of Rs. 5000 on this head. There will be a decree for Rs. 6176-9-0: Rs. 1176-9-0 being the agreed damages under para. 6 of the plaint, and Rs. 5000 damages for the injuries sustained by the plaintiff 2. The defendant must pay the costs of the plaintiffs including the cost of to-day.