Hepworth J:

The plaintiff, Tan Kheng Kuan, who resides at 68-C, Bagan Jermal, Penang, sues in forma pauperis by his committee, Lim Eng Tin, and was a trishaw rider until January 1962.

The first defendant, who lives at No. 80, Jahudi Road, Penang, defends by his guardian ad litem, Wah Seng Jong, and was at all material times the owner of Honda motor-cycle registered No. PC 579. The second defendant, who lives at No. 34, Green Hill Drive, Fettes Park, Penang, defends by his guardian ad litem, Yee Hon Him, and was at all material times the rider of motorcycle PC 579. The third defendant lives at No. 45, Burmah Road, Penang, and was at all material times the owner of Fiat motor-car registered No. P 755.

On the 20 January 1962, at about 11 p.m. the second defendant was riding motor-cycle PC 579 along Kelawei Road in the direction of the junction of Bagan Jermal Road, Tanjong Tokong Road and Kelawei Road with the first defendant on the pillion. On the same day and at the same time the third defendant was driving motor-car P 755 in the opposite direction along Tanjong Tokong Road towards the said junction. On the same day and at the same time the plaintiff was riding his trishaw along Kelawei Road in the direction of the said junction, that is to say in the same direction as motor-cycle PC 579 ridden by the second defendant, having as passengers in the trishaw his wife (PW2) and son.

At a time when the plaintiff, riding his trishaw, had almost completed crossing the said junction and reaching Taniong Tokong Road, there was a collision between motor-cycle PC 579 ridden by the second defendant and motor-car P 755 driven by the third defendant at a point approximately at the centre of the said junction. The result was that the second defendant lost control of motorcycle PC 579 which proceeded to collide with the plaintiff's trishaw overturning the trishaw and throwing the plaintiff and his wife and son to the ground. As a result the plaintiff sustained severe injuries to his head.

The plaintiff claims that the injuries sustained by him were the result of the negligent driving of motor-cycle PC 579 by the second defendant as the servant or agent of the first defendant and/or the negligent driving of motorcar P 755 by the first defendant, and claims damages.

The first and second defendants plead that the collision was caused or contributed to by the negligent driving of the third defendant and the third defendant pleads that the collision was caused or contributed to by the negligent driving of the second defendant and/or by the negligence of the plaintiff. At the hearing the third defendant abandoned his allegation of negligence on the part of the plaintiff and confined himself to alleging that the collision was caused or contributed to by the negligence of the second defendant.

The evidence showed that the first and second defendants were proceeding along Kelawei Road with the intention of going to Fettes Park to take the first defendant to his home. They mere accompanied by two friends (one of whom was PW3) who were following behind, also on a motor-cycle. The third defendant, who had been having dinner at the Springtide Restaurant, was proceeding along Tanjong Tokong Road with the intention of taking his friend (DW4) to his home in Ayer Rajah Road via Bagan Jermal Road. The first and second defendants allege that on reaching the junction of Bagan Jermal Road, Tanjong Tokong Road and Kelawei Road the third defendant in motorcar P 755 turned to his right from Tanjong Tokong Road into Bagan Jermal Road without giving any sign and without stopping. The result was that motor-car P 755 was cutting across in front of motor-cycle PC 759 and that all that the second defendant had time to do was to swerve to his left in an endeavour to avoid a collision. In the event the front of motor-car P 755 brushed the first defendant's right leg and the back of motor-cycle PC 579 as a result of which the second defendant lost control and mo