Kruger v Ludick

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Davis AJA and Hathorn AJA
• Judgment Date: 17 June 1947
• Citation: 1947 (3) SA 23 (A)
• Hearing Date: 28 May 1947
• Court: Appellate Division

Kruger v Ludick
1947 (3) SA 23 (A)

1947 (3) SA p23

Citation	1947 (3) SA 23 (A)
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Greenberg JA, Davis AJA and Hathorn AJA
Heard	May 28, 1947
Judgment	June 17, 1947

Flynote : Sleutelwoorde

Negligence — What constitutes — pedestrian walking on wrong side of road — Run down by car from behind on wrong side of road, — Evidence — Inspections in loco — Observations at — Court's function — Generally.

Headnote : Kopnota

In an action for damages arising out of a collision which occurred in the early hours of the morning, the appellate tribunal on a consideration of the evidence found that the plaintiff had been walking along a road from west to east, 19 feet from the southern edge of the road, and that there was still between him and the northern edge of the road a distance of 331/2 feet; that a car driven by the defendant, who had the sun in his eyes, had come from behind on the wrong side of the road and had run the plaintiff down.

Held, that the defendant had been negligent in at least two respects: (a) in that he was on the wrong side of the road, and (b) in that he had failed to keep a proper look-out.

Held, that the plaintiff had not been negligent.

It is important, when an inspection in loco is made, that the record should disclose the nature of the observations of the Court and intimated to the parties, who should be given an opportunity of agreeing with it or challenging it, and, if they wish, of leading evidence to correct it. Another method, which is sometimes convenient, is for the Court to obtain the necessary statement from a witness who is called or recalled after the inspection has been made. In such a cas the parties should be allowed to examine the witness in the usual way.

Case Information

Appeal from a decision in the Transvaal Provincial Division (BARRY, J.P., and CLAYDEN, J.). The facts appear from the judgment of HATHORN, A.J.A.

C. D. J. Theron, for the appellant: It is as much the duty of pedestrians attempting to cross a street to look out for vehicles travelling upon such street as it is the duty of the drivers of such vehicles to see that they do not run them over. Baratz v Johannesburg Municipality (1913 TPD 732); Ford v Town Hall Bottle Store (1926, W.L.D. 214 at p. 219); Sparks v Benson (1928 TPD 38); Trevor Smith v Walters (1928 NPD 351); Rex v Pace (1930 CPD 116 at pp. 118 - 9, 122); Rawles v Barnard (1936 CPD 74); Howitt v Bell (1930, E.D.L. 76 at p. 79); De Wet v Odendaal (1936 CPD 103); Sutherland v Banwell (1938 AD 476); dippenaar v Bezuidenhout (1943 AD 190); Mazengarb,

1947 (3) SA p24

negligence on the Highway (p. 279). The respondent's negligence was the proximate or alternatively, a contributing cause of the collision and he is therefore not entitled to succeed. The continuously negligent plaintiff, must prove that the defendant had a conscious last opportunity to avoid a collision. See Johannesburg Municipality v Darbyshire (1909, T.S. 386 at p. 393); Ford v Town Hall Bottle Store (supra); Trevor Smith v walters (supra); Pierce v Hau Mon (1944 AD 175); Welgemoed v Van Eck (A.D. Jan., 1947, not reported).

O. Galgut, for the respondent: A pedestrian has the same right to use a road as a vehicle, baratz v Johannesburg Municipality (supra at pp. 728 - 9). In so doing he must not ignore, and act in defiance of, the rules of the road. Rex v Pace (supra at p. 118). when crossing a street he must pay attention to traffic coming from his right, and after crossing the centre line, to traffic from the left. Fallon's Estate v Claret (1932 AD 177 at pp. 182 - 3); Rex v Marais (1932, P.H.O. 42); he is not obliged to look out for and expect traffic approaching him on its incorrect side. fulton v minister of Posts and Telegraphs (1916 TPD 677 at p. 682). A pedestrian should keep a look-out but is not obliged to turn his head continually. Pearce v Taylor (1934, E.D.L. 193, at pp. 198 - 9); Rawles v Barnard (supra at p. 76). Generally speaking, pedestrians need only look in the directions of oncoming traffic and not expect to encounter traffic travelling on the wrong side of the road. Fallon's Estate v Claret (supra); Rex v Marais (supra); Pearce v Taylor (supra); Baratz v Johannesburg Municipality (supra, at p. 741). When a motorist collides with a pedestrian crossing a street at a slow pace, there being no other traffic and nothing to obstruct the driver's view, there is an onus on him to show that the accident happened without fault on his part. Katzenstein v duvenhage (1929 NPD 294 at p. 296); Fulton v Minister of Posts and Telegraphs (supra at p. 682); Baratz v Johannesburg Municipality (supra at pp. 740 - 1). There is a greater duty on drivers of motor cars than on pedestrians to take care. Johannesburg Municipality v darbyshire (1909, T.S. 386 at p. 391); Marais v Louttit (1911 TPD 307 at p. 310); Hulley v Cox (1923 AD 234 at pp. 242 - 3); Baratz v Johannesburg Municipality (supra, at pp. 738 - 9).

Assuming that this Court finds that negligence on the part of the appellant has been established, then the test is whether respondent was guilty of negligence which was an operative cause of the collision and the onus of establishing this rested on the appellant.

1947 (3) SA p25

Solomon v Musset and Bright (1926 AD 247 at p. 435); sutherland v Banwell (supra); Pierce v Hau Mon (supra at p. 185); Steenkamp v Steyn (1944 AD 536 at pp. 555 - 6); Caswell v Powell Duffryn Collieries, Ltd. (1940, A. c. at pp. 172 - 3, and 1939 (3) A.E.R. at p. 735); and if the appellant's negligence is proved and contributory negligence by the respondent is, at best, only a matter of doubt, appellant is liable. Lindeque v Hall (1927 TPD 417 at p. 424). As the period of vision of a pedestrian was as much as three seconds, the conclusion is that the driver exercising due care could and should have avoided the collision. Fallon's Estate v Claret (supra, at p. 180); McLean v Bell (1931, H. of L., 147, L.T.R. 262; 1932 S.C. 21). Even where a pedestrian fails to look in the direction from which traffic may be expected, he will recover damages if it is shown that a driver of a motor vehicle had the opportunity (as in the present case) of avoiding the pedestrian's negligence. Baratz v Johannesburg...