Hayes v Finnegan and Others

• Jurisdiction: Ireland
• Judgment Date: 23 November 1952
• Date: 23 November 1952
• Court: Supreme Court

Supreme Court.

Hayes v. Finnegan and Others.

DENIS HAYES Plaintiff

and

PATRICK FINNEGAN, PATRICK O'MALLEY and KATHLEEN O'MALLEY

Defendants.

Negligence - Contributory negligence - Stationary vehicles on highway at night - Unlighted lorry on left-hand side of road and lighted motor car on road close to unlighted lorry and facing in opposite direction - Third vehicle colliding with rear of unlighted vehicle.

Appeal from the High Court.

The plaintiff sued the defendants for damages in respect of negligence in the management and control of motor vehicles, their property. The facts are summarised in the headnote and appear fully from the judgment of Mr. Justice O'Byrne, post. At the trial the trial Judge (Haugh J.) acceded to an application on behalf of the defendants for a direction on the ground that the evidence established contributory negligence on the part of the plaintiff. Against the said direction the plaintiff appealed to the Supreme Court (1).

A motor car, driven by the defendant, K. O'M., on the main road between Dublin and Naas on the 10th March, 1947, was pulled up and brought to rest with the right-hand side of the car about 8 feet from the right-hand side of the road and the left-hand side of the car about 14 feet from the left-hand side of the road. The headlights of the car were fully lighted at all material times. A motor lorry, the property of the defendant, F., was pulled up alongside the said motor car in such a position as practically to fill the space between the right-hand side of the motor car and the edge of the road. The rear of the lorry was unlighted. While the two vehicles were thus at rest, a motor lorry, the property of the plaintiff, was being driven in the direction of Dublin, and as this lorry, with its headlights fully on, came round a bend of the road, the driver noticed the headlights of the motor car about 40 yards away. On coming nearer, he realised that the motor car was nearer to its right or incorrect side of the road and that it was stationary. He dimmed his lights, sounded his horn and slowed down. He had not as yet seen the stationary motor lorry and he believed that he had room to pass between the motor car and his left-hand side of the road. When about five yards from the stationary vehicles he first saw the defendant's motor lorry. He applied his brakes, but, failing to pull up his motor lorry in time, a collision occurred whereby the plaintiff's lorry sustained damage. The plaintiff brought an action for damages in the High Court, and, on the trial of the action, the trial Judge, at the conclusion of the plaintiff's case, directed a verdict for the defendants on the ground that the jury could not acquit the plaintiff of contributory negligence. On appeal by the plaintiff it was

Held by the Supreme Court (Maguire C.J., Murnaghan and O'Byrne JJ.; Black J. dissenting) that in the circumstances of the case it would be competent for the jury to hold that the plaintiff could not by the exercise of reasonable care have avoided the collision; that the trial Judge was therefore wrong in withdrawing the case from the jury; and that the question of contributory negligence should have been left to the jury for their determination.

The Supreme Court accordingly allowed the appeal and directed a new trial.

Tidy v. Battman, [1934] 1 K. B. 319, approved and followed. Baker v.E. Longhurst & Sons,[1933] 2 K. B. 461, and Tart v. G. W. Chitty and Co.,[1933] 2 K. B. 453, considered. O'Beirne v. Hannigan,[1937] I. R. 237,explained and distinguished.

Cur. adv. vult.

Maguire C.J. :—

This action, which was tried by Haugh J. with a jury, was brought by the plaintiffs to recover damages for injuries alleged to have been caused by the negligence of the defendants in the driving and management of two motor vehicles on the main Dublin to Naas road between the villages of Kill and Blackchurch.

At the close of the plaintiff's case the learned trial Judge withdrew the case from the jury and gave judgment for the defendants. The plaintiff now moves this Court that the verdict and judgment be set aside and a new trial ordered.

It would appear from the language used by the learned Judge that he held there was evidence from which the jury might find the defendants guilty of negligence, but that in view of certain admissions by him the jury could not acquit the plaintiff of contributory negligence. The registrar's

certificate states that the Judge ruled that there was not sufficient evidence upon which the jury could properly find for the plaintiff.

There is thus to some extent an inconsistency between the Judge's ruling, as shown by the transcript, and the registrar's certificate. Furthermore, application had been made on behalf of the two last-named defendants for a ruling that there was no evidence of negligence on their part. Logically, this application should have been dealt with first. It does not appear expressly to have been ruled upon, for although ne stated that there was evidence on which the jury justifiably might find the drivers of both vehicles guilty of negligence the learned Judge, on being reminded by counsel of the application on behalf of the two last-named defendants, stated that it did not arise.

No difficulty, however, is created by the manner in which the learned Judge dealt with the matter nor by the form of the registrar's certificate.

Briefly stated, the evidence was that the plaintiff was returning to Dublin, after dark, driving an unladen lorry about 7 feet wide. His headlights were on. On coming round a bend in the road he saw some 40 yards away the lights of a motor car which, although he did not at once realise it, was stationary. At the point where it stood the road was about 27 feet wide. The stationary car was on its wrong side of the road and in such a position that it narrowed to about 8 or 9 feet the road surface available to the plaintiff if he kept to his proper side of the road. The plaintiff slowed down, dimmed his lights, and blew his horn. The defendant, Kathleen O'Malley, who was at the wheel of the stationary car did nothing to alter her position. It was suggested that in response to the horn she might have moved her car or dimmed her lights. The plaintiff drove into the narrow space open to him and collided with the rear of an unlighted lorry, the property of the first-named defendant. He says he did not see it until he was about 5 yards away from it. He put on his brakes but failed to stop in time.

The main question argued was whether the learned Judge was right, in view of the evidence, in ruling that it was not open to the jury to acquit the plaintiff of contributory negligence.

It was conceded on the authority of Coyle v. Great Northern Railway Co.(1) that the trial Judge was entitled, nay bound, to withdraw the case from the jury if it was clear that on the evidence no reasonable jury could fail to find the plaintiff guilty of contributory negligence.

The obligation resting upon motorists at night was considered in the well-known cases of Baker v. E. Longhurst and Sons, Ltd.(1), and Tart v. G. W. Chitty and Co.(2); andEvans v. Downer (see note to Baker v. E. Longhurst and Sons, Ltd.(3). The rule which it was suggested was to be extracted from these cases may succinctly be stated in the words used by Scrutton L.J. in Evans v. Downer and Co., Ltd.(3),"that if the driver of a vehicle proceeded at such a speed that he could not pull up within the limits of his vision he was in the wrong. If a driver could not see where he was going he must stop." This Court, however, refused to adopt this as a correct statement of the law. FitzGibbon J. in Kelliher v. Tipperary (N.R.) Board of Health and Leahy(4)points this out and mentions the case of Kennelly v. Keane(not reported) as a case in which the view was taken that it depended upon the circumstances of each case whether it was negligence for a motorist to drive so fast that he is unable to pull up within a distance measured by the range of his vision. FitzGibbon J., furthermore, points out that the Court of Appeal in England, in the well-known case ofTidy v. Battman(5), had adopted the opinion which this Court had formed on the dicta in Baker v. E. Longhurst and Sons, Ltd.(1) and Tart v. G. W. Chitty and Co.(2), adding that "there does not seem to be now any difference upon the question between the Courts of the two countries."

Macnaghten J., in Tidy v. Battman(5), in a passage which was approved by the Court of Appeal and has in many cases since been cited with approval, and which I take to have correctly stated the law, says:—"It cannot, I think, be said correctly that where there is an unlighted obstruction in the roadway, a careful driver of a motor vehicle is bound to see it in time to avoid it, and must therefore be guilty of negligence if he runs into it. The circumstances may be such that a prudent and careful driver proceeding at a proper pace and exercising the care which everybody ought to exercise, may be unable to observe it in time to stop before he reaches it."

This passage, accepted by Ostler J. in the Court of Appeal in New Zealand, was approved by the Privy Council inStewart v. Hancock(6), as also was a passage from the judgment of Ostler J. in which he paraphrased the words of Macnaghten J. above quoted, into a statement "that negligence is a question of fact; that each case depends upon its own facts: and that there is no rule of law which

in every case disqualifies a motorist from recovering damages where he has run into a stationary unlighted object."

The Privy Council considered this to be an "admirable summary of the law applicable to that case."

If this statement of the law is accepted it would seem that the question whether the plaintiff was negligent was a question of fact for the jury.

We have been strongly pressed, however, with the case ofO'Beirne v. Hannigan(1), particularly with certain passages from the judgment of FitzGibbon J...