The accident occurred on the highway; both the plaintiff and the defendant gave conflicting evidence as to the exact cause of the accident; the Magistrate, however, preferred the evidence of the defendant, whom he described as a witness of truth, and held that the onus was on the plaintiff to establish the negligence of the defendant's driver, but the plaintiff failed to do so satisfactorily.

On appeal, the plaintiff contended that he is entitled to succeed in the claim, without his proving negligence against the defendant, because the maxim of res ipsa loquitur applies in view of the circumstances of the case.

HELD:

Where there is a conflict of evidence between the plaintiff and the defendant and the issues are resolved by the court in favour of the defendant, the facts of the case outht to be taken as those given by the defendant, and so there cannot be room for the maxim of res ipsa loquitur in this case.

Appeal dismissed:-

Davies. Q,C. (with him Miss Adeniji), for the Appellant.

Obafemi, for the Respondent.

Onyeama, Ag. C.J. of Lagos:-There was a conflict of evidence between the plaintiff and the defendant. The Magistrate was impressed with the defendant whom he described as a witness of truth. The facts of the case must therefore be taken to be those given in evidence by the defendant. On these facts, there is no room for the maxim 'res ipsa loquitur'. The accident occurred on the highway and not on the pavement or near the wall. The plaintiff walked out from the other side of a bus and was struck by the defendant's car. The accident was, therefore, equally consistent with the plaintiff not keeping a good look out and with the negligence of the defendant's driver. The onus was on the plaintiff to establish the negligence in the defendant's servant, and this she does not appear to have done to the satisfaction of the Magistrate.

I agree that the Magistrate referred to some opinion he formed for which there was only his own imagination as support, but this opinion formed no part of his reasons for his judgment.

The issues were factual and were resolved by the trial court in favour of the defendant.

There is no reason for interfering with the judgment of the Magistrate and I accordingly dismiss the appeal.

Costs to respondent £7.7. 0d.