1942 Present: Hearne and Jayetileke JJ.

MOHIDEEN v. SENANAYAKE.

10-D. C. Colombo, 12,431.

Motor car-Plaintiff knocked down while alighting from car-Negligence of defendant's driver-No contributory negligence on plaintiff's part Liability of defendant.

Where the driver of defendant's car drove it too close to a stationary tram car, which had stopped at a regular stopping place, too fast and without sounding his horn, and ran into the plaintiff who, at the time the car emerged from behind the tram car, was in the act of alighting from the tram car with his back momentarily turned in the' direction from which the car came,

Held, that the driver had been negligent.

Held, further, that as the plaintiff was in the actual process of alighting from the tram car and as there was ample room for the car to pass him in safety, he cannot' be .said to have been negligent merely because, before he put his foot on the ground, he did not look beyond the end of the tram car. The plaintiff was entitled to assume that if a vehicle does' pass the tram car it will, at least, give him a wide enough berth for standing room on the ground.

APPEAL from a judgment of the District Judge of Colombo.

H. V. Perera, K.C. appellant. (with him Cyril E. S. Perera). for defendant,

E. G. Wickremanayake (with him E. B. Wickremanayake). for plaintiff, respondent.

Cur. adv. vult.

July 22, 1942. HEARNE J.

In this case it was found by the trial Judge that the driver of the car of the defendant appellant drove it too close to a stationary tram car, which had stopped at a regular  stopping place, too fast and without sounding his horn. It was also found that in so doing he ran into the plaintiff who, "at the time the car emerged from behind the tram car, was in the act of alighting from the tram cat with his back momentarily, turned in the direction from which the car came ".On these facts the driver was certainly negligent.

On appeal, it was argued that, assuming the driver was negligent, the plaintiff was also negligent and that if, in consequence 'of their joint

negligence, a collision became imminent and the driver could not by the exercise of ordinary care and diligence have avoided it, the plaintiff -cannot succeed.

It is impossible. to deduce from the evidence of the driver that, when the danger of an accident threatened, he did all that he could reasonably have done to avoid it for he merely said that he did not see the plaintiff alight, does not know how the plaintiff was injured and did not see him till after he was injured. There can, I think, be no doubt that he was .an untruthful witness. It appears from the evidence of the tram car driver, which was accepted by the Judge, that' the defendant's driver did see the plaintiff before the accident. According to this witness the driver of the car tried to avoid a collision by swerving to his right but was too late. If he had become aware of the presence of the plaintiff when he had almost reached the tram car, it is possible he, thereafter, did all he could to avoid an accident. If he had become aware of the presence of the plaintiff further back than the end of the tram car, it may be that he did not exercise ordinary care and diligence in his failure to pass the plaintiff in safety. The question can be answered only if it is known when he saw the plaintiff before the accident. The tram car driver could not help the Court. The defendant's driver could, but he refused to say anything on the subject. To the end of his evidence he maintained that he had not seen the plaintiff before the accident and even that he had not swerved to avoid him.

I turn to the question of whether the plaintiff was negligent. What are the facts?

The exit door used by the plaintiff was, in the middle of the tram car on the right hand side. In the demonstration given to the Court" he faced the road on to which he was going to descend, and then having