Heneke v Royal Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: van Den Heever JA, Hoexter JA and Fagan JA
• Judgment Date: 22 September 1954
• Hearing Date: 07 September 1954
• Court: Appellate Division

Heneke v Royal Insurance Co Ltd
1954 (4) SA 606 (A)

1954 (4) SA p606

Citation	1954 (4) SA 606 (A)
Court	Appellate Division
Judge	van Den Heever JA, Hoexter JA and Fagan JA
Heard	September 7, 1954
Judgment	September 22, 1954

Flynote : Sleutelwoorde

Negligence — Collision at intersection — Car on national road G colliding with heavily laden van entering intersection in low gear on a misty morning — Car driver not keeping a proper look-out — Travelling too fast to pull up within range of vision — Failure to prove negligence on van driver's part.

Headnote : Kopnota

Just after 8 a.m. and while a heavy ground mist prevailed, the plaintiff, who was driving a heavily laden van in low gear, approached H an intersection with the national road from a south-easterly direction at a speed of between 15 to 20 miles an hour. As he approached the intersection he slowed down and looked to his right and then to his left and saw nothing; he estimated his vision to the left to have been from 75 to 100 yards. He entered the intersection and looked to his right. When he was more or less in the middle of the intersection he saw a car approaching along the national road through the mist on his left about 100 feet

1954 (4) SA p607

away. He put his foot on the accelerator in an effort to get out of the way but he was struck by the car, his van overturning. He estimated that he had travelled ten feet from the time when he first saw the car and the time it struck the van. The car driver, who was approaching the intersection from a west-south-westerly direction, stated that her speed was between 20 to 22 miles an hour; that she had first seen the van when she was 25 feet from the intersection and the plaintiff was about 12 feet from the intersection; that the van was coming out from the side road very fast; that she had put on her brakes and swerved to get behind A the van but collided with it and that her range of vision was about 50 feet. In an action by the plaintiff against the registered insurance company of the car for damages as the result of injuries sustained, the trial Court on the evidence found that both drivers had been jointly and simultaneously and continuously negligent in that each had failed to keep a proper look out and that the collision was due to their joint and simultaneous negligence. On an appeal by the plaintiff,

B Held, that the car driver's evidence was incorrect as to the speed with which the plaintiff had approached the intersection and as to his position.

Held, further, allowing for reaction time and the time required for braking to take effect, that the inference was inescapable that the car driver had not kept a proper look-out and/or was going so fast that she could not draw up within the range of her vision in the conditions prevailing.

Held, further, as the car driver had crashed into the van, that she had to show that the plaintiff had contributed to the harm done by being at C the spot where, but for his negligence, he would not have been.

Held, further, that on the probabilities the car driver had not proved negligence on the plaintiff's part.

The decision in the Cape Provincial Division in Heneke v Royal Insurance Co. Ltd., reversed. D

Case Information

Appeal from a decision in the Cape Provincial Division (HERBSTEIN, J.). The facts appear from the judgment of VAN DEN HEEVER, J.A.

Appellant in person: The onus of proving contributory negligence on appellant's part was on respondent; see Solomon and Another v Mussett and Bright Ltd., 1926 AD at p. 435. If appellant's negligence is only E a matter of doubt, then respondent is liable in view of Mrs. Kisch's negligence; see Lindeque v Hall, 1927 T.P.D. 424.

S. Miller, Q.C., for the respondent: The evidence shows that appellant was negligent, not only in failing to keep a proper look-out but also in entering the intersection at an excessive speed and in entering into the line of oncoming traffic on the main road without satisfying himself F that it was safe to do so; see Nolutshumgu v Alliance Assurance Co. Ltd., 1952 (4) SA 155; Martindale v Woolfaardt, 1940 AD 235. Pullen v Pieterse, 1954 (2) SA at p. 201, is distinguishable on the facts. On the assumption that Mrs. Kisch was negligent, then, in view of the fact that the drivers saw each other only when the final stage had been G reached, there is no room for the application of the last opportunity rule; see Pierce v Hau Mon, 1944 AD at p. 210; Pretorius v African Gate & Fence Works Ltd., 1939 AD 571; Franco v Klug, 1940 AD 126; Nolutshumgu's case, supra at pp. 160 - 1; Bester v Silva Fishing Corporation (Pty.) Ltd., 1952 (1) SA 589. In any event, appellant failed to discharge the onus of proving that Mrs. Kisch had the last opportunity; see Pierce's case, supra at pp. 220, 223. No attempt was H made by appellant to prove that Mrs. Kisch could have avoided the collision; cf. Stride v Reddin, 1944 AD at pp. 173 - 4. In any event, appellant's conduct in endeavouring to cross the main road in the face of oncoming traffic without paying due regard to such traffic was negligence which persisted until immediately

1954 (4) SA p608

before the impact and such negligence, considered in conjunction with his failure to look properly to his left until it was too late, precluded him from succeeding in his claim; see Nolutshumgu's case, ibid.

A Appellant, in reply.

Cur adv vult.

Postea (September 22nd).

Judgment

B Van den Heever, J.A.:

This is an appeal from a judgment of HERBSTEIN, J., in the Cape Provincial Division. Appellant instituted an action for damages against respondent company as insurer in terms of the provisions of Act. 29 of 1942 of a motor car driven by a Mrs. Kisch which on the 26th June, 1950, had collided with a motor van driven by C appellant. In his declaration appellant alleged that the collision was caused by the negligence of Mrs. Kisch. The usual pattern of averments was stated including inter alia that Mrs. Kisch drove at an excessive speed, failed to keep a proper look-out and failed to keep her car under proper control. The defence was a denial of negligence and an averment that the collision was caused by appellant's negligence. In the D alternative defendant pleaded that the collision was caused by the joint and simultaneous negligence of both appellant and Mrs. Kisch.

After hearing the evidence and argument by counsel for the appellant the learned trial Judge, without calling upon counsel for the respondent, E delivered judgment in favour of defendant (now respondent) with costs, finding that both the drivers were jointly and simultaneously and continuously negligent in that each failed to keep a proper look-out and that the collision was due to their joint and simultaneous negligence.

F The collision occurred at cross roads in open country, the roads crossing each other almost at right angles. Appellant shortly before the collision was proceeding along the Old Oak Road, which had a tarred surface 20 feet wide, in a south-easterly direction and approaching the intersection of that road from Paarl to Cape Town. At the same time Mrs. Kisch was travelling along the national road in the direction of Cape G Town, i.e. in a west-south-westerly direction, also approaching the intersection. The tarred surface of the newly-constructed national road was 25 feet wide. The two intersecting roads were not on the same level, so the road builders had torn up the surface of the Old Oak Road for a short distance on either side of the national road and gravelled those portions. The appellant's evidence that these gravelled borders to the national road were full of pot-holes at the time was uncontradicted.

H Mrs. Kisch was driving a Morris Sedan of eight horse-power. As passengers she had with her in the car her mother and her sister, her sister sitting in the back seat.

Appellant farmed with pigs at the time. He had a contract with the prison authorities to buy pig-swill at a nearby gaol. At the time

1954 (4) SA p609

Van den Heever JA

of the collision he was driving a half-ton, ten horse-power van and had...