Galante v Dickinson

• Jurisdiction: South Africa
• Judge: Schreiner JA, Van Den Heever JA, and Murray AJA
• Judgment Date: 31 March 1950
• Court: Appellate Division

Schreiner, J.A.:

The defendant appeals from a judgment in a collision case in which THOMAS, J., sitting in the High Court of Southern Rhodesia, awarded the plaintiff, now the respondent, £1,604 16s. 7d. damages for personal injuries and damage to his property. Appeal was brought both on the question of liability and on the question of damages. I shall refer to the parties as the plaintiff and the defendant.

The accident occurred at about 2 p.m. at the intersection of Baker Avenue and Kingsway, in Salisbury. Baker Avenue runs nearly east and west and is 88 feet wide at all material points. Kingsway runs approximately north and south but changes its direction slightly at its intersection with Baker Avenue. Kingsway is divided by islands 28 feet wide into two lanes called East Lane and West Lane respectively. East Lane is for the use of southward traffic only, and West Lane is only for northward traffic. The width of West Lane on the south side of Baker Avenue is 47 feet; on the north side it is 50 feet. The width of East Lane is 50 feet on both sides of Baker Avenue. The roadways do not intersect at right angles, the south-west corner, which is the important one in the case, forming an angle of 70 degrees. It is a perfectly open corner so that the drivers of vehicles approaching the intersection from the south and from the west can each see the other vehicle for distances in excess of any distance that was material in the case. Both roads are tarred. There is a speed limit of 25 miles per hour in the area and there is also a traffic regulation, of which the plaintiff was aware, requiring drivers of vehicles to give way to traffic approaching from the right.

Before the accident the plaintiff approached the intersection on his bicycle along Baker Avenue from the west, while the defendant, driving a motor-car, approached along West Lane from the south. The plaintiff was cycling near to the northern kerb in Baker Avenue at a speed which was variously estimated at from 6 to 15 miles per hour. The learned trial Judge gave no finding as to the speed most likely to be correct; precision was hardly possible on the point. According to the plaintiff he looked to his right when he was about five paces from the west line of the intersection and saw the defendant's car approaching at a distance of 100 yards or more away; he was not asked, nor was there any other evidence to show, where in relation to the centre line of West Lane the defendant was driving. The plaintiff said that he looked at the car while he travelled about six to ten feet; he formed no estimate of its speed but judged that it was far enough away for him to be able to cross West Lane in safety. Having so decided he rode straight on, without looking again to his right. When he got well into the intersection he heard the screeching of brakes and went on as fast as he could but took no other avoiding action. There was other evidence to the effect that he seemed to be trying to increase his speed at one stage but THOMAS, J., did not find that he did. If he

Schreiner JA

did try to accelerate, the attempt can hardly have affected his speed materially. The screeching noise was caused by the brakes of the defendant's car, which left brake marks 61 feet in length, allowing for the fact that marks were caused by the front as well as the rear wheels. These brake marks started about five to ten feet east of the centre line of West Lane and swung off towards the north-east in a gradual curve until they reached and passed over, by some four or five feet, the point of impact, which was about 15 feet south-west of the island at the north-east corner of the intersection of West Lane and Baker Avenue. Just before the impact the vehicles were converging at an angle which, taking a rough mean of the curved route of the car, appears from the plan exhibited to have been about 50 degrees. The car was, of course, losing speed as its brakes operated but it nevertheless gained on the bicycle and struck its rear wheel with the left front bumper, knocking the plaintiff down.

The plaintiff called one Bowen who was walking northwards along the western pavement of West Lane some 40 yards north of the intersection. His attention was attracted by the sound of a car's hooter and the practically simultaneous screeching of brakes. He looked round and saw the plaintiff on his cycle about the middle of West Lane; he saw the vehicles converge until the front of the car struck the right rear of the cycle. Bowen deposed to a conversation he had with the defendant when the latter had got out of the car. The defendant said 'that was not his fault, he had blown his hooter and he had the right of way'. Bowen told the defendant that he thought the accident was caused by the defendant's driving too fast and the defendant said that that was not so, the car was new and could not exceed 30 miles per hour; to which Bowen made the obvious reply that even if he was supposed not to drive it faster than that it could in fact be driven at a much faster speed.

Another witness, one Frisk, was driving a car slowly westward in Baker Avenue...