ALHADJI KALLA (PLAINTIFF)

v.

JARMAKANI TRANSPORT LTD (DEFENDANTS)

(1961) All N.L.R. 778

Action for Damages for Negligence.

The defendants' driver had left an unlighted lorry, at night, on the Agege Motor Road a public highway. The lorry was parked in such a way that all the four wheels were on the tarred portion of the road to the left hand side; it occupied five feet of the tarred road, which measured 22 feet 6 inches in width at the spot where the lorry was parked. There was a grass verge to the left of the lorry four feet in width which was not occupied by the lorry. The lorry was loaded with bundles of firewood which projected from its right hand side over the road. The plaintiff's lorry, going from Agege to Lagos, was travelling in the direction that the parked unlighted lorry, belonging to the defendants, was facing. As the plaintiff's lorry approached a bend on the road, but before it reached there, a third lorry, which was coming from the opposite direction, was just clearing the bend with his head-lights fully on. The plaintiff's driver dipped his lights, but the approaching lorry failed to do so, and, with its head-lights fully on, continued to approach the plaintiff's lorry. Soon after passing the approaching lorry, the plaintiff's lorry struck the right hand rear of the defendants' unlighted lorry, brushed past it, somersaulted across the road, and was badly damaged. The plaintiff brought this action against the defendants claiming damages for the negligence of the defendants' driver in parking an unlighted lorry on the road. Although the defendants did not plead contributory negligence, it was contended on their behalf at the trial, that, even though the defendants were negligent in parking the unlighted lorry on the road, it was not the negligent parking, but the excessive speed on the part of the plaintiff's driver, which was the effective cause of the accident. No evidence was adduced to show the speed at which the plaintiff's lorry was travelling. It was also urged on behalf of the defendants that the cause of the damage was the beam of light from the approaching lorry, which, by temporarily blinding the plaintiff's driver, made it impossible for him to see the unlighted lorry, and, therefore, the defendants could not be held guilty of negligence.

HELD:

(1) Where there is an unlighted obstruction on the roadway, it cannot be said that a careful driver is bound by law to see it in time to avoid it, and that he must, therefore, be guilty of negligence if he runs into it.

(2) Negligence is question of fact, not of law, and each case must be decided in the light of its own facts.

Judgment for the Plaintiff.

Cases referred to:-

Stewart v. Hancock, (1940) 2 All E.R. 427; 56 T.L.R. 572; 84 Sol.Jo. 440.

McDowall v. Great Western Railway Company, (1903) 2 K.B. 331; 72 L.J.K.B. 652; 88 L.T. 825; 19 T.L.R. 552; 47 Sol.Jo. 603.

John O. Bankole v. United Africa Co. Limited, 15 N.L.R. 4.

Tidy v. Battman, (1934)1 K.B. 319; 103 L.J.K.B. 158; 150 L.T.9(); (1933) All E.R. Rep. 259.

Morris v. Luton Corporation (1946)1 K.B. 114; (1946)1 All E.R.1.

Tart v. Chitty (G.W.) & Co. Limited, (1933)2 K.B. 465; 102 L.J.K.B. 568; 149 L.T.261; (1931) All E.R. Rep. 826.

Baker v. Longhurst (E) & Sons, Limited, (1933)2 K.B. 461; 102 L.J.K.B. 573; 149 L.T.264; (1932) All E.R. Rep. 102.

ACTION for Damages for Negligence.

Atilade for the Plaintiff.

Ogunsanya for the Defendant.

Udoma, J.:-The plaintiff has brought this action against the defendants claiming the sum of £5,000 as special and general damages for the negligence of the defendants' driver which resulted in the collision between the plaintiff's lorry No. LD. 1590 and the defendants' lorry No. LB. 4181 on the 14th September 1960, on the Agege Motor Road along the Lagos-Abeokuta Road.

Pleadings were ordered and filed. In paragraph 3 of his amended Statement of Claim, the plaintiff gave the particulars of negligence complained of as follows:-

The defendants' driver was negligent in that:

(1) He parked his vehicle in such a way as to obstruct the road.

(2) He parked his vehicle on the highway at night without any parking lights or any lights at all.

(3) He permitted an unlighted vehicle to be left in the middle of the road.

The defendants in paragraph 2 of their Statement of Defence traversed the averments of negligence in general terms and put the plaintiff to the proof thereof. There was no plea of contributory negligence.-

In paragraph 12 of the Statement of Claim, the plaintiff gave particulars of damages as hereunder set out:

(A) Special damages:

                                                                                                                                                                        2,643     6    7 

                                    (B) General damages                                                                                                       2,356   13    5

                                       Total damages                                                                                                              5,000      0    0                                                                                                                                             

The plaintiff's case is that on the 14th September 1960, at night at about 9.30 the defendants' driver, Saibu Makanjuola parked the defendants' lorry No. LB.4181 facing Lagos on the Agege Motor Road, that is along the Lagos-Abeokuta Road-a public highway-without any lights on at all. The lorry was parked in such a way that all the four wheels were on the tarred portion of the road to the left-hand side, the lorry itself occupying five feet of the tarred road which at the spot where the lorry was parked, was 22 feet 6 inches in width.

There was to the left of the lorry at the spot where it was parked, a grass verge four feet in width which was not occupied at all by the lorry. At that time the lorry was loaded with bundles of firewood which projected outwards from the right side of the lorry unto the road. The lorry No. LB. 4181 was so parked when a Police Constable, Sunday Akpogherhe passed by the spot on his way to the Agege Police Station to report for night duty at about 9.30 p.m. Attracted to the lorry by the fact that it was unlighted and on the highway, the constable examined it and found that, although loaded with firewood, there was nobody in the lorry. There was also no house nearby. The constable felt that it was dangerous to traffic for an unlighted lorry to be parked in that manner on the public highway in the night. He, however, continued his journey and reported at Agege for duty, took over duties from the constable who had been on duty at the Station and planned to return later to the unlighted lorry on the road with a lighted "danger" lamp.

In the meantime, the plaintiff's lorry No. LD.1590, which was returning from Ghana, was travelling from Agege to Lagos, that is, facing the same direction as the parked unlighted lorry belonging to the defendants. When the lorry No. LD.1590 was approaching a little corner but before it reached there, it was observed that another lorry which was then clearing the corner, was coming towards Agege on the Agege Motor Road in the opposite direction. That lorry from the opposite direction, while approaching the lorry No. LD.1590, had its lights fully on and threw a beam of light along the road. On meeting the approaching lorry, the plaintiff's driver dipped his lights, but the approaching lorry failed to respond to this. Instead, it continued to approach the plaintiff's lorry with its lights fully on.

Then, soon after passing the lorry with the full lights on, the plaintiff's lorry collided with the defendants' unlighted lorry, hitting it on the right rear. Then it brushed past it, somersaulted across the road with all its four wheels in the air, threw off its passengers and was severely damaged. The whole bodywork of the lorry was broken to pieces.

At the time of the collision the defendants' driver was not there. He could not be found. Then at 10:10 pm a report of the accident was lodged with the police at the Agege Police Station. As a result of that report, Constable Akpogherhe proceeded to the scene of the accident in company of Sergeant Bamishaye, and there found both lorries in the respective positions shown in the sketch, exhibit 'A', which was prepared by Constable Akpogherhe. In order to clear the way for traffic, Constable Akpogherhe with the assistance of other persons removed the lorry No. LD.1590 from the public highway, and then discovered that apart from the bodywork of the lorry which was completely damaged, the bonnet, and the mudguards of the lorry were also pressing hard against the wheels and the engine, and this made it impossible for the lorry to move.

Later, the lorry No. LD.1590 was towed away to the workshop of Messrs A.G. Leventis & Co. Limited, Motor Department and there repaired at the cost of £623-6s-7d. The bodywork of the lorry was built by a Carpenter at the cost of £80. After the repairs but before delivery, the plaintiff approached the defendants and requested them to pay for the repairs so as to enable him to take delivery of the lorry from Messrs A.G. Leventis & Co. Limited The defendants referred the matter to their Insurance Company who refused to pay for the repairs. Thereupon, the plaintiff brought this action.

As neither the defendants nor their driver was present when the accident took place, the defendants in their evidence confined themselves only to the events prior and subsequent to the accident in relation to lorry No. LB.4181. The defendants say that on the night of 14th September 1960, the lorry No. LB.4181 was returning from Abeokuta to Lagos, and at about 7:00 pm on the Agege Motor Road it developed engine trouble and then suddenly stopped. The driver was alone in the lorry which was then loaded with firewood. In consequence of the engine trouble, the defendants' driver parked the lorry properly and conveniently to the left side of the road, and then switched on the lorry's parking lights as it was already night. Having done this, the defendants' driver then left for Lagos to report to the defendants what had befallen his lorry on the road. At the defendants' yard, the driver could find no one as the workshop was already closed. The driver then returned to his lorry on the road. He arrived back there at 8:30 p.m. and found that the parking lights which he had previously switched on were still burning. He was satisfied and, therefore, decided to leave the lorry there and to go home, but to return there in the morning with a mechanic to effect repairs. He left for home accordingly at 9:00 p.m.

In the morning, he returned to his lorry and there found that an accident had occurred the previous night involving both his lorry and the plaintiff's lorry. He observed that his lorry had been knocked off the spot where he had parked it originally. The right side of this lorry was hit and damaged. Whereupon, he reported the matter to the police at Ikeja Police Station. The Police there informed him that he was a wanted person because they had been looking for him in connection with the accident. He was arrested, charged and taken to the Customary Court. Later, he examined his lorry and then discovered that his two batteries were missing. He again lodged a complaint with the police. The missing batteries in his lorry were later replaced by the defendants.

From the evidence thus summarised, shortly put, the plaintiff's case is that the defendants' driver was negligent in parking an unlighted lorry No. LB.4181 on the Agege Motor Road in the night of 14th September, 1961, thereby causing obstruction on the public highway; and that it was that negligence which had been the effective cause of the accident between the plaintiff's lorry No. LD.1590 and the defendants' lorry No. LB.4181 and which resulted in the damage suffered by the plaintiff. The defendants have denied this charge. It is, therefore, necessary to examine the evidence so as to ascertain what facts have been established, and thereafter to determine whether on the evidence as a whole the plaintiff has proved his case.

It should be stated generally that, on the evidence, the area of controversy is a narrow one indeed. This is partly because, I think, the accident occurred in the absence of the defendants' driver. Nevertheless, on a careful consideration of the defendants' case, two questions would appear to require determination. These are:-

(1) was the lorry No. LB.4181 lighted at all as testified to by the defendants at the time when the lorry was parked on the Agege Motor Road? And, if unlighted,

(2) did the unlighted lorry constitute an obstruction on the highway at the material time when the accident occurred, having regard to the circumstances of this case?

To answer these two questions, I start by stating that I have no hesitation whatsoever in accepting the evidence of the plaintiff and his witnesses as to the manner in which the accident occurred; and I find as a fact that both at the time when the defendants' driver parked his lorry No. LB.4181 on the Agege Motor Road on the night of 14th September, 1960, and at the time when the accident actually took place the lorry in question was unlighted. It is my view that the defendants' driver was not speaking the truth when he said that he had his lights on at the time of parking his lorry on the Agege Motor Road; and I reject his story on that point. This driver as a witness was shifty and evasive in his answers to questions put to him.

There is no doubt whatsoever in my mind that the driver of the lorry No. LB.4181 had to park his lorry where and in the manner which he did because his batteries had completely run down. He had no alternative. That accounts for his lorry stopping suddenly. By reason of the failure of his batteries he could not clear the lorry properly from the tarred road. He was alone from Abeokuta to Lagos in the lorry, and could not, therefore, push it clear of the road. There were no dwelling houses nearby, and so no one to help him. The lorry had therefore to be left where it suddenly stopped; with the result that the four feet of grass verge to the left of the lorry was unoccupied by the lorry. This is the only reasonable inference that can be drawn from the defendants' driver's report to the police as contained in the station diary, exhibit 'L', which incidentally, was tendered by the defence.

Exhibit 'L' reads as follows:-

One Saibu Makanjuola of No. 11 Lagos Street, Ebute Metta, came to the Station and reported that on 14-9-60 at 7.30 p.m. he left his truck No. LB.4181 near Agege as a result of its batteries having been run down and that when he came back the following day he discovered that the two batteries have been removed by an unknown man.

It is evident from the above extract, exhibit 'L', that the defendants' driver abandoned his lorry because his batteries had run down. On the evidence, I also find as a fact that the lorry No. LB.4181 as parked by the defendants' driver constituted an unlighted obstruction on the highway which was dangerous to other vehicles using the highway. On this point, I accept the evidence of Constable Akpogherhe whom I consider to be a witness of truth.

Although contributory negligence was not pleaded by the defendants, yet it was contended by Mr Ogunsanya Counsel for the defendants that even though the defendants might have been negligent in parking the lorry without its lights on, it was not the negligent parking but the excessive speed on the part of the plaintiff's driver which was the effective cause of the accident. The basis for the contention of excessive speed is merely because the impact of the collision was sufficient to cause the plaintiff's lorry to somersault, resulting in the bodywork being damaged. There is no direct evidence as to the speed at which the plaintiff's lorry was being driven. The available evidence which I accept is, and I find as a fact, that the plaintiff's driver was driving his lorry sufficiently and reasonably carefully to be able to dip his lights and to clear for the approaching lorry from the opposite direction. As was laid down in Stewart v. Hancock (1940) 2 A.E.R. 427; it cannot be said that where there is an unlighted obstruction in the roadway, a careful driver is bound to see it in time to avoid it, and must, therefore, be guilty of negligence if he runs into it.

It was further submitted that on the authority of McDowall v. Great Western Railway Company (1903) 2 K.B. 331, it was the beam of light from the approaching lorry which had blinded the plaintiff's driver and made it impossible for him to see the unlighted lorry, and he therefore ran into the stationary unlighted lorry. That being so, it was argued, the defendants cannot be held guilty of negligence. I do not think this submission is sound. The facts and circumstances in McDowall v. Great Western Railway Company are distinguishable from those in the case under consideration. There is hardly any evidence sufficient to satisfy me that the plaintiff's driver was blinded by the beam of light from the approaching lorry. The evidence is that the accident occurred immediately after the approaching lorry had passed. It was found by the Court of Appeal in McDowall v. Great Western Railway Company that the defendant company was not negligent nor guilty of neglect of duty, and that the accident in that case was caused by the negligence of a third party. On the evidence in the present case, on the other hand, it is impossible to hold that the effective cause of the accident was the beam of light from the approaching lorry. I must, therefore, reject this submission.

Mr Atilade, Counsel for the plaintiff has submitted that the facts of the present case are similar to the facts which the court had found proved in the case of John O. Bankole v. United Africa Co. Limited, 15 N.L.R.4. and that the plaintiff should be entitled to Judgment on the authority of that case. I am inclined to agree with this submission subject, of course, to the overriding consideration of the dictum first enunciated by Lord Wright in, I think, Tidy v. Battman, (1934) 1. K.B. 319 at p.322, and which was quoted with approval in Morris v. Luton Corporation, (1946) 1 K.B. 114. Lord Wright had then said:-

This is a pure question of fact. The cases of Tart v. G. W. Chitty & Co. (1933) 2 K.B. 465, and Bakar v. E. Longhurst & Sons Limited (1933) 2 K.B. 461 show that no one case is exactly like another, and no principle of law can in my opinion be extracted from those cases. It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied to deciding other cases on other sets of facts.

It is an accepted principle of law that negligence is a question of fact, not of law: each case must depend upon its own facts. There is no doubt whatsoever that on the facts, the evidence of negligence which I have found in this case is far stronger than what was found by the court in Bankole v. United Africa Co. Limited above. On the evidence and the circumstances of this case, I am satisfied and have come to the conclusion that the parking of the unlighted lorry No. LB.4181 on the 14th September, 1960, on the Agege Motor Road, constituted negligence having regard to the manner in which it was done and the spot at which the lorry was parked. I hold that the defendants are, therefore, liable in damages. I will enter Judgment for the plaintiff as against the defendants, and will award him damages as follows:-

(A) Special damages:

                                                                                                                                £          s     d

(i)Cost of repairs to vehicle                                                                                      623     6     7

(ii)Cost of building body of lorry No. LD. 1590                                                            80     0     0

(iii)Loss of earnings from 15-9-60 to 22-2-61 at £10 per diem-160-                      1,600     0     0

    Total Special damages                                                                                       2,303     6     7

(B) General damages                                                                                                200   13     5

Total damages                                                                                                        2,503     6     7