ARUBA AND ANOTHER vs. ABOAGYE [1966]DLHC1655

Date	1966-05-27
Suit No.
Citation No.	[1966]DLHC1655

ARCHER J.

CARSON FOR THE APPELLANTS.

DANKWA FOR ADJETEY FOR THE RESPONDENT.

[1966]DLHC1655
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													<main id="main" class="content" style="min-height: 60rem" >ARUBA AND ANOTHER <o:p></o:p>vs. <o:p></o:p>ABOAGYE <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1966] GLR 385<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:
27 MAY 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">

CARSON FOR THE APPELLANTS.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>This is
an appeal form a judgment delivered at the Circuit Court, Cape Coast, on 30
July 1964. The facts of the case in a nutshell are as follows: On 16 March
1963, the plaintiff was driving his taxi on the Accra-Takoradi motor road and
on reaching a village about one-and-a-half miles to Saltpond, a Bedford truck
driven by the second defendant and owned by the first defendant’s which was
parked behind another truck in a lay-by, shot onto the road in the path or lane
of the plaintiff. To avoid collision, the plaintiff applied his brakes and
swerved to his right to avoid the Bedford truck and in so doing, his taxi
landed in a ditch. The learned circuit judge awarded damages in favour of the
plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants to whom I shall now refer as first and second appellants have
appealed from the said judgment on the grounds that the judgment was against
the weight of the evidence because no negligence was proved against either the
first appellant or the second appellant and that the learned circuit judge was
wrong in the application of the “last opportunity rule” and the “dilemma
principle.” I shall deal with this ground now because although they are three
separate grounds, learned counsel for the appellants wisely decided to deal
with them in one exercise. It was argued on behalf of the appellants that the
respondent himself was negligent because there was evidence that the braking
distance of the respondent was 72 feet before the taxi fell into the ditch.
Moreover, according to the Ghana Highway Code, the braking distance for a
vehicle travelling at 30 miles per hour is 45 feet and the thinking distance
about 30 feet and the overall stopping distance is 75 feet. The respondent’s
answer to this argument was very simple. If according to the appellants the
respondent was compelled to stop within 72 feet, then he might have been
travelling about 30 miles per hour or thereabout which would mean that the
respondent was not travelling at an excessive speed. I must confess that I have
lost my flair for mathematical calculations and I am not particularly enamoured
by these arguments. I think the formulae laid down by the Ghana Highway Code
must be subject to the brake-bands, the size of the vehicle and its load, the
nerves and the temerity of the driver concerned.<o:p></o:p><o:p>&nbsp;</o:p>There is
nevertheless evidence that the respondent was travelling from Accra on the
highway and on reaching this village where there is a lay-by on his near side,
two trucks were parked. To warn the drivers of these trucks that he was
approaching, the respondent blew his horn and the respondent’s own first witness,
that is, the driver of the truck parked in front of that of the appellants,
testified that the horn sounded so loudly. This witness, Kweku Black, said:<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">“When I
was loading my vehicle the second defendant started to move his vehicle. Before
he started moving I heard a long blast of blowing of horn from the other
direction of the main road. It became too noisy so I saw that the vehicle was
coming at a great speed. I shouted on the second defendant to stop for it was
because of him that the vehicle was blowing so loud. The vehicle behind
stopped. The other vehicle thought that the one behind me would not stop so the
other vehicle applied brakes and it dragged on and fell over [overturned].”<o:p></o:p><o:p>&nbsp;</o:p>Then in
cross-examination, Kweku Black said:<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">“I am a
driver and I know when a vehicle starts and when it moves. This one had moved
and in fact when he moved he did not look on the road before moving. I was at
where my steer was. I saw it because my attention was attracted by the long
horn and when I looked the second defendant was already in the middle of the
road. The plaintiff was coming with too much speed. When I shouted on the
second defendant he stopped. If the driver had come at reasonable speed he
could have stopped for the second defendant having to pass before he passed.
His brakes were effective on only one side. He stood in the middle of the road
and there was space for the plaintiff but I think he thought the second
defendant would not stop hence he applied his brakes.”<o:p></o:p><o:p>&nbsp;</o:p><p</main>