AJIROBAH vs. UNITY TRANSPORT AND ANOTHER [1966]DLHC1643

Date	1966-04-25
Suit No.
Citation No.	[1966]DLHC1643

DJABANOR J.

E. B. GAISIE FOR THE PLAINTIFF.

C. M. CANN FOR THE DEFENDANT.

[1966]DLHC1643
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													<main id="main" class="content" style="min-height: 60rem" >AJIROBAH<o:p></o:p>&nbsp;vs. <o:p></o:p>UNITY TRANSPORT AND ANOTHER <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1966] GLR 332<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
25 APRIL 1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

E. B. GAISIE FOR THE PLAINTIFF.<o:p></o:p>

C. M. CANN FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DJABANOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF DJABANOR J.<o:p></o:p>The
plaintiff is the owner of Bedford commercial lorry No. CP 8268, driven by his
driver Awudu Ramain, and the first defendant is the owner of Mercedes Benz
cargo truck No. AN 9483 and the employer of Kwame Eduaful—the driver of the
said cargo truck. On 1 November 1963 there was an accident at mile 29 on the
Sekondi—Cape Coast road involving these two vehicles, and this action has been
brought by the plaintiff against the first defendant and the driver of the
vehicle, charging that the accident was caused by the negligence of the second
defendant, and claiming damages therefor.<o:p></o:p><o:p>&nbsp;</o:p>The first
issue, naturally, is whether or not the accident was caused by the negligence
of the second defendant. The facts which are not disputed are that because of a
flattened tyre, the driver of the plaintiff parked his vehicle on his proper
side of the road in order to change the tyre. Shortly afterwards the second
defendant who was driving in the same direction as the plaintiff’s driver
towards Sekondi was driving past, when because of the nearness of an approaching
petrol tanker from the opposite direction he had to cut in, and in so doing
damaged the plaintiff’s stationary vehicle. The facts in dispute are: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) Whether the plaintiff’s
driver signalled to the approaching second defendant to pass, and if so what
sort of signal he gave? <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) How close was the second
defendant when he saw the said signal of the plaintiff’s driver? <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(c) Did or could the second
defendant have seen the approaching petrol tanker in time to avoid the
accident? <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(d) Whether the plaintiff’s
driver was negligent?<o:p></o:p>According
to the plaintiff’s driver, when he parked to change his tyre he stood at the
back of his vehicle to signal to any vehicles that might be passing. He said he
first saw a petrol tanker coming from the Sekondi direction. Then he saw a
Mercedes Benz car approaching from the Cape Coast direction. He therefore
signalled to the Benz car to stop so that the tanker might pass but the Benz
car did not stop and continued with speed. He ran from the road in fear of his
own safety and he saw the tanker pass and the Benz car run into his stationary
vehicle. He stuck to this evidence under cross-examination. He called no
further evidence on this aspect of the case. A sketch plan of the road and the
relative position of the vehicles did not prove helpful.<o:p></o:p><o:p>&nbsp;</o:p>According
to the second defendant (the defendant’s driver) when he was nearing the place
of the accident he entered a curve in the road. He then saw the stationary
vehicle and he sounded his horn. He then saw someone standing by the side of
the stationary vehicle and signalling him to pass. It was the plaintiff’s
driver. He therefore swung out to pass and then he saw the driver signalling
that he should stop. He was then quite close to the plaintiff’s stationary
vehicle. At the locus in quo this witness said he was seventeen paces away from
the stationary vehicle when the plaintiff’s driver started to stop him. He said
he was too close to stop without endangering another life; so he decided on the
spur of the moment to cut in, and that is what he did. He continued:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“A petrol
tanker was then approaching in the opposite direction. When I first saw the
tanker I was about twenty feet from the stationary one. I think the petrol
tanker was also about 26 feet from the stationary vehicle. I therefore passed
through but the side of my lorry grazed the side of the stationary vehicle and
I went and stopped in front of it.”<o:p></o:p>