Scottish Court of Session Decisions

Lord Justice-Clerk.—We have here a most extraordinary case, and I am not surprised that Mr Sandeman, exercising his discretion, should, despite the able speech of his junior, come to the conclusion that he could not maintain that the pursuer's driver was blameless. The only loophole of escape, therefore, for him was to show that there was contributory negligence on the part of the defender's driver. But on this point we have independent evidence which leads very distinctly to the conclusion that the driver of the defender's car was placed in a very difficult position indeed. The evidence of Miss Curran is here of very great importance, because she was not a party to the case at all. She was walking quietly along the road, and her account of the incident is that the pursuer's car passed close to her on the side of the road next to the curve, and that it was evident that the car was moving to that side. She also says that the two cars were deflected at the same time, which means, undoubtedly, that the defender's driver turned to get out of the way of the other car. Plainly both chauffeurs turned their cars towards the centre of the road in order to avoid a collision. The pursuer's driver, of course, was perfectly right in turning towards his proper side of the road; but the question is not whether he should have done so, but whether he did so in time. Miss Curran says that she was satisfied that there must be a collision, and the only difference between what she expected and what happened is that the collision took place at the south instead of on the north side of the road.

Now, as matters stood, was the defender's driver in this position that he, as a man of ordinary nerve, felt bound to take some action in order to avoid a collision if the other driver kept straight on? Upon the evidence I am satisfied that that was his position. It is probably true that if he had followed the policy which is suggested by Mr Rennie and others he might have escaped; but it is equally true that, according to Mr Rennie, the proper course was to hold on and meet the collision, if collision there was to be, right in the face. I cannot give any assent to such a proposition as that. I think the driver of a motor car is in the same position as the master of a ship in this respect, that if at the last moment he reasonably judges that a collision is absolutely inevitable unless he does something, and if that something might avoid a collision, he acts perfectly reasonably in taking that course. I am quite satisfied that there is no ground whatever for imputing contributory negligence to the defender's driver. Whether he should not have swerved a little sooner may be a question, but if he had swerved a little sooner even that might not have averted the collision. He swerved at the time when he thought the danger was imminent, when he saw that nothing was being done by the person who was causing the danger; but it was then too late, and the cars curved in to meet in collision on the south side of the road.

There is one other criticism urged against him, namely, that he failed to blow his horn. Now, one cannot help speaking from general knowledge on a matter of that kind, and it is new to me that if two motor cars are approaching one another in daylight from opposite directions, the cars being in sight of each other for a considerable distance, it is usual or necessary to sound a horn. The pursuer's driver never thought of sounding his horn, although he intended to stick to the wrong side of the road apparently up to the moment of danger.

In these circumstances I think the Sheriff was perfectly right, and that no other decision could reasonably be reached.

Lord Dundas.—I am entirely of the same opinion. One would always be slow to disturb the concurrent judgments—carefully considered judgments—of two experienced Sheriffs, on a question of fact, unless one thought that they were clearly wrong. On this occasion I have no difficulty of that sort, because I entirely agree with the conclusion at which the Sheriffs have arrived.

The pursuer now admits that, for some considerable distance before the accident, his car was on the wrong side of the road—the north side— while the defender's car was on its proper side; and his averment on record that at the moment of impact his car was going about five miles an hour has not been at all justified. The pursuer, therefore, now admits that he must be held to have been in fault. But his contention at our bar is that the defender's car was also in fault, because the pursuer says that he would in due time have cleared the defender's car and all would have been well if the driver of that car had not suddenly cut across towards the south side of the road instead of holding on his proper course. I do not think that will do at all. I consider that the pursuer's driver, having chosen to hold on his course upon his wrong side until the cars were apparently bound to meet within a period of, at the most, a very few seconds, the defender's driver had reasonable grounds for concluding that for some cause or another the pursuer's driver was going to continue on his course; and that the defender's driver cannot reasonably be held in fault for endeavouring at the last moment to avoid a collision by leaving his own side of the road.

I may say further that I entirely agree with your Lordship's observations upon the criticisms of the defender's chauffeur for not blowing his horn. I speak without personal experience as a motorist, but as a matter of good sense and evidence I have no hesitation in agreeing with what your Lordship said.

I would only add with reference to some observations of the pursuer's counsel that while I agree that there would be danger in rashly applying nautical cases to incidents of the road, I do not see any reason why, making all due allowance for the obvious differences between sea and land, between ships and motor cars, the fundamental considerations of good sense and fairness that underlie the one class of cases may not be applicable, and applied if the circumstances warrant it, to cases of the other category.

It seems to me on the whole matter that the Sheriffs are absolutely right, and that this appeal must fail.

Lord Guthrie.—I agree with your Lordships. It is true that the defender here has to meet two very serious difficulties. In the first place at the moment of collision his car was undoubtedly on the wrong side of the road; and, secondly, it is clear that if he had stuck to his proper side —the north side—there would have been no collision. He admits that he has to explain both these points, and I think he has satisfactorily done so.

As to the first point, it seems to me that on a clear road with nothing in sight or with no traffic in front or behind, except at a distance, a driver is entitled to take any part of the road he likes, and he will naturally select the part of the road which has the best surface for his vehicle. But this is subject to the obligation of keeping a sharper look-out in front and behind than if he chose to keep all the time on what is called his own side. But when he sees a vehicle approaching he is not entitled to stay beyond a certain time and a certain point on the part of the road appropriated to that other vehicle. He must go to his own side in good time. What is good time must always be a question of circumstances. In this case I am not going into seconds or yards. It is enough to say that the pursuer's chauffeur was not entitled to keep on his wrong side to the very last moment,— or, to use a popular expression, to run it fine— because, as here, he would inevitably confuse an approaching driver by making it uncertain whether he was going to persevere on the wrong side, or to swerve to his own side. Such a doubt might not be unreasonable. The driver on the wrong side might be sleepy, or he might be a foreigner or an American, who had for the moment forgotten that the rule of the road is different in the United Kingdom. But here it is proved that for a substantial time before the pursuer's car swerved to the south side of the road it was on the wrong side of the road, that is the side of the road which he should have previously left.

I agree with your Lordship that Miss Curran's evidence is extremely important. She was the only onlooker, the only person there apart from the ladies and the driver in the defender's car and the driver of the pursuer's car, and she is quite clear that at the time that the two cars swerved she thought that there was going to be an accident just because the pursuer's car had continued so long on the north side of the road and that it appeared as if he was going still to continue. In addition I should say that the occupants of the defender's car clearly took the same view, because they were very much alarmed and one of the ladies screamed.

Mr Sandeman did not argue the point that was strenuously maintained by his junior, namely, that the duty of the defender's car was to keep to the north side whatever happened. His whole contention was that the proof showed that the defender's chauffeur, to use the expression of Lord Ellenborough in Jones v. Boyce, was in an unreasonably alarmed state of mind. The defender was satisfied to put his case on this footing that it was enough for him if his chauffeur had reason to think that a collision was imminent, even though he was wrong in the view that he took. That is in accordance with what your Lordship said in the case of Wilkinson, that a person could not be said to be guilty of contributory negligence merely because, when he saw the danger, he did not take the wisest course, but in the agitation of the moment took an unwise course in endeavouring to escape from it. If necessary, which I do not think it is, I would go further than the defender finds it necessary to go here, for it seems to me that his driver not only did a reasonable thing, but that he did the right thing.