The standard of care in determining contributory negligence depends upon foreseeability of harm to oneself.

( 1 ) APPELLANT I s husband on 1-7-63 at 10. 45 p. m. was driving his m/cycle on S. Patel Road. A truck, whose driver was Respdt. 1 and owner Respdt. 2, was standing on the road as its axle had broken. Though its front left wheel was on Kacha path its near portion blocked most of the left half of the road. The deceased was carrying 2 children. M/cycle dashed against the truck and all the 3 died. Claim was filed u/s 110 of M. V. Act. Tribunal held that deceased was guilty of contributory negligence and wag entitled to 1/3rd of the damages. Appellants appealed to High Court. ]. Para 7 onwards, Judgement is :

( 2 ) THE question that arises for consideration is whether the finding of the court below that the deceased contributed to the neglience is correct. The Tribunal has repelled the contention of the respondents before me that the deceased was drunk at the time of accident. The Tribunal has found that there was not an iota of evidence on the record before it to support this contention. The learned counsel for the parties have failed to bring to my notice any evidence which has been ignored by the Tribunal below, as such I endorse the finding that the deceased was at the time of the accident not drunk. The Tribunal below has discussed the contributory negligence of the deceased on two grounds; one is that the deceased was carrying two children on the motor cycle, which was not permissible under section 85, but the Tribunal has held that this has not in any way contributed to the causing of the accident. It is true that the deceased could carry only one person on the pillion seat and taking another child on the front seat was not permissible. But, this breach of the law did not contribute to the accident, since it has not been suggested or proved that the deceased had lost balance of the motor cycle or was unable to control it on account of the excessive number of passengers. The view of the Tribunal below on this point is correct.

( 3 ) THE other ground, which found favour with the Tribunal below was that a person driving a motor cycle at night should drive it at such a speed that he can pull it up within the limits of the vision ; and if he collided with the truck, either he was driving negligently fast or he was not keeping good look out and in either event he was also negligent. The Tribunal has rejected the statement of the Wing Commander, Lefantane to the effect that the motor cycle of the deceased was being driven at the speed of 15 miles per hour. On this basis the Tribunal has found the contributory negligence of the deceased proved.

( 4 ) CONTRIBUTORY negligence was defined by the House of Lords in Swadling v. Cooper, 1931 A. C. 1 at page 9, as the rule that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant s negligence, he was entitled to recover ; but if by ordinary care he might have avoided them, he was the author of his own wrong. Again in Caswell v. Powell Duffryn Associated Collieries Limited, 1940 A. C. 152, at 85 and 186, the Judicial Committee observed that strictly speaking the phrase contributory negligence was not a very happy method of expressing an act of the employee which might relieve the employer from liability. Probably the phrase negligence materially contributing to the injury would be more accurate, but if the word contributory be regarded as expressing something which was a direct cause of the accident either phrase was accurate enough and the less accurate phrase was sanctioned by the long usage. In Nance v. British Columbia Electric Railway Company Ltd. 1951 A. C. 651, at 611, the Judicial committee observed that when negligence was alleged on the basis of an actionable wrong, a necessary ingredient in the conception was the existence of a duty owed by the defendant to the plaintiff to take due care, was of course, indubitably correct; but when contributory