JUDGMENT

Mohd. Zahir Ismail J:

The appellant appealed to this Court against the decision of the learned Magistrate. I dismissed the appeal. He now further appeals.

The case for the respondent was that the deceased was just before the accident at about 10.15 p.m. pedalling a trishaw towards the direction of Pasir Mas. PW1 heard the sound of collision and he turned to see a car knocking the trishaw driven by the deceased. He saw the deceased carry a torchlight in his hand and the torchlight was on. The trishaw had no lights but had two reflectors on each side of the rear wheels.

The evidence for the appellant was that he saw a trishaw in the middle of the road. Then the accident took place. The reason as to how the accident took place, as given by the appellant, was that at the time there was a car coming towards him and he could not see the trishaw earlier. He further stated at that time he could not see anything in front of him. He dimmed his light and he suddenly noticed the trishaw but it was already too late.

The learned Magistrate in his judgement referred to the brake marks of the appellant's car which was very close to the side table. He stated if the appellant was a careful driver he would not have driven close to the side road. The learned Magistrate further referred to the admission of the appellant in his evidence when he stated he could not see anything ahead of him.

The main reason for the appeal was that the deceased had contravened Rule 35 of the Road Traffic Rules 1959 which reads as follows:

Between the times of sunset and sunrise vehicles, other than motor vehicles, shall in the case of:

(1) Every vehicle other than a bicycle carry two lighted lamps one on either side of the vehicle. The lamps shall exhibit a white light to the front in the direction in which the vehicle is proceeding or is intended to proceed and shall show the full width of the vehicle. These lights may be fitted with a red disc visible from the rear. If such lights are not fitted with red discs or if the red discs of either of the lights is obscured, the vehicle shall carry a lighted lamp on the off-side of the vehicle exhibiting a red light to the rear.

I am of the opinion however breach of the Rules is not in itself evidence of negligence on the part of the person concerned. The question that has to be decided is who is negligent. The deceased might have contravened the said r. 35 but was he to be blamed for the accident? Supposing it was a bicycle with reflectors being pedalled by the road side, one would have thought that the motorist would be equally blameable if he were to knock into the rear of the bicycle. The trishaw in this case had reflectors although it is slightly wider than a bicycle.

Further, in this case there was evidence that the deceased was carrying a lighted torch. Even if, for the sake of argument, he had no such light there was no excuse for the appellant to knock into him in the rear as the appellant's car is obliged under the law to be equipped with sufficient lights to see what is ahead. The main question is why could not he see the trishaw at a distance within the range of his car's light as expected of him. He did not say he was dazzled by light of the oncoming car. Even if he did, he should have stopped his car instead of driving on to the extent that, as admitted by him, "... at that time I could not see anything in front of me". He said he suddenly saw the trishaw. Again the question is why he could not see it before it was too late.

As we study the sketch plan, there were brake marks on the left side of the road facing Pasir Mas. The direction of the brake marks was towards the middle from the left of the road. This would indicate the car was very close to the road edge before the application of the brakes since from J, the beginning of the brake marks to the left road edge is 1' 10". From J1, end of the left brake mark to F2, the trishaw was 104 feet, denoting the distance even after the braking that the trishaw was pu