Supreme Court
Action No. 197 of 1977
2nd October, 1978
Malone, CJ.

Mr. Dean O. Barrow for the Plaintiff
Mr. Edwin L. Flowers for the Defendant

Negligence - Traffic Accident - Damages - Counterclaim - Claim fails - Judgment for Defendant on the counterclaim - Damages to be assessed in Chambers - Costs.

J U D G M E N T

On the 9th April, 1977, at about 9:00 a.m., a collision occurred at the eastern junction of Albert Street and Prince Street between the Plaintiff's car C-6324 driven by one Collet Baeza and a pick-up G-6223 driven by the Defendant. Both vehicles were damaged. This then is an Action for negligence. The Plaintiff sues the Defendant to recover damages for the loss occasioned to her by the collision, and by way of counterclaim, the Defendant seeks to recover from the Plaintiff damages for his loss.

Evidence relating to the collision was given in support of the claim by the Plaintiff as at the time she was a passenger in C-6324, and by Mr. Baeza. For the Defence, the evidence was given by the Defendant. But before I consider the evidence, it will be convenient to describe the locality where the collision occurred. Albert Street is a one way street along which traffic travels from north to south. It is one of the principal streets of Belize City and northwards from the place of the collision, it is straight for a considerable distance. It is a busy street and as the collision occurred on a Saturday morning, it could be that it was even busier than usual. Prince Street is also a one way street. Traffic travels along it from west to east. It crosses Albert Street at right angles and is a street of lesser importance than Albert Street so that the drivers of vehicles crossing Albert Street from Prince Street should bring their vehicles to a stop before crossing to ensure that they may cross safely and must give way to vehicles being driven on Albert Street. According to Mr. Baeza, he was traveling from west to east on Prince Street and brought his vehicle to a stop at the western junction of Albert and Prince Streets before attempting to cross Albert Street. Indeed, he says, he stopped twice. The first stop was made to permit pedestrians who were crossing the western junction to do so. He then slowly drove C-6324 forward and stopped again when he was in a position to see if there was traffic coming from the north on Albert Street. Mr. Baeza said that he saw no traffic moving on Albert Street and that his view when looking northwards to his left was not obstructed. What he saw were some cars parked in the vicinity of Romac's Supermarket and Barclay's Bank. The distance from the western junction of Albert Street and Prince Street to Barclay's Bank is, according to the Defendant, about 500 yards. The Plaintiff recalled that Mr. Baeza did stop at the western junction of Albert Street and Prince Street and that she also looked northwards along Albert Street. She said that she saw cars parked along the western side of Albert Street, that none was parked right by the junction with Prince Street. She remembered seeing what she described in examination in chief as, "something white way down the next block." Whether that white thing, which in cross-examination she said was a car, was moving or not she could not say but it was, she said, "the only car on the road".

Having satisfied himself that Albert Street was clear, Mr. Baeza then began to cross it. He said that he drove slowly because there were pedestrians crossing the eastern junction of Albert Street and Prince Street. C-6324 (which is a large American two door car) had reached, Mr. Baeza said, a point where the bulk of it was in Prince Street but the portion of it from the rear end of its left door to its tail was still in Albert Street, when out of the corner of his eye Mr. Baeza saw something white coming and heard a bang. C-6324 came to a stop against a telephone pole which stands in Prince Street, a couple of yards from the junction with Albert Street. He recalled the Plaintiff saying, "Baeza" just before the impact.

The Plaintiff in her evidence does not mention calling Mr. Baeza's name and indeed her evidence on this aspect of the case is very limited. She said that Mr. Baeza drove C-6324 slowly across Albert Street to allow pedestrians to cross the junction and then described what happened next in the following words:

"The front of our car was already in Prince Street. I heard a loud noise. There was an impact. I closed my eyes. When I opened them I found the car against a telephone pole which is about 5' - 6' down Prince Street from the corner of Albert Street and Prince Street".

The difficulty which the evidence of Mr. Baeza presents to Counsel for the Plaintiff is this. As cars do not materialize from nowhere and as it would take only about two seconds to cross the 30' width of Albert Street, even supposing Mr. Baeza to be travelling at no more than 10 m.p.h., why did not Mr. Baeza see the Defendant's pick-up before he began to cross Albert Street? It cannot have been as far north as Barclay's Bank as to collide with the Plaintiff's car it would have to cover 500 yards in two seconds. That would involve a speed of the order of 500 m.p.h. It must then have been very much closer than that which makes it very surprising that Mr. Baeza did not see it. Faced with the difficulty, Counsel for the Plaintiff suggested that the Defendant first came on to Albert Street at a point well south of Barclay's Bank. As I understand it, what Counsel was suggesting was that Mr. Baeza is to be believed that he did stop a second time and that when he did so, Albert Street was clear because the Defendant was then in a parallel street to Prince Street. When, however, Mr. Baeza began to cross Albert Street, the Defendant turned into Albert Street, came at a great speed and crashed into C-6324. The suggestion that the Defendant's vehicle was not seen because it was in a parallel street is ingenious, but there is not a scrap of evidence to support it. Indeed, the Plaintiff's evidence of seeing a white vehicle on Albert Street as Mr. Baeza was about to cross Albert Street destroys Counsel's theory of the Defendant not being on Albert Street when Mr. Baeza stopped the second time. For the white vehicle, which the Plaintiff saw, must be the "something white" that Mr. Baeza saw out of the corner of his eye immediately before the collision and which hit the car C-6324. Can it then be supposed that the Defendant's vehicle was, as the Plaintiff in effect says, as far off as "way down the next block" when Mr. Baeza began to cross Albert Street? To suppose so, it would have to be believed that the Defendant's vehicle traveled at a high rate of speed to collide with the Plaintiff's car. What then is the evidence? Of the two witnesses for the Plaintiff's case, the only one who saw the Defendant's pick-up was the Plaintiff. She cannot say whether the pick-up was moving or not. That does not suggest great speed to my mind. The fact that the Plaintiff's vehicle was, after the collision, heavily dented on its left side and was damaged on its right side because it hit the telephone pole 6 - 8 feet in from the junction does not, to my mind, necessarily suggest that the Defendant was traveling at very great speed. The reason being that the vehicle traveling at 20 m.p.h., which is the Defendant's estimate of his speed, can inflict heavy body damage on another, and as the Plaintiff's car was moving at the time into Prince Street, the fact that it struck the telephone pole into Prince Street has not to be attributed solely to the force with which it was hit by the Defendant's vehicle. The only evidence of great speed is Mr. Baeza's evidence that there was a brake mark caused by the Defendant's vehicle which was 60' long. The Defendant admitted that there was a brake mark, but his estimate of its length was 10'. When so much of the remainder of Mr. Baeza's evidence is open to question, I am not prepared to accept his estimate of the length of the brake mark. So, I find that there is no evidence of great speed as from a 10' brake mark, which is what I accept was its length, it is not to be inferred great speed.

To my mind, the evidence in this case all points to this being a case of a driver who did not look before attempting to cross a major road or if he did look, did not look properly and so failed to see what he should have seen. Namely, the Defendant's pick-up. The facts admit of either possibility for if, as the Defendant says, a Volkswagen bus was parked on Albert Street just north of the western junction, it could be that Mr. Baeza did stop at the junction to look and then drove forward to that towards the Defendant, whose view would be blocked by the bus, when the Plaintiff's car appeared suddenly in front of the bus. Alternatively, it could be that whether the Volkswagen bus was parked where the Defendant says it was or not, Mr. Baeza suddenly came on to Albert Street without stopping at the junction. The greater probability is, I think, that the Volkswagen bus was there as its presence helps to explain why it was that the collision occurred at the eastern and not at the western junction. That explanation is in the evidence of the Defendant which is the evidence that I accept. The Defendant said that he was to the east and a few feet from the rear of the Volkswagen bus when C-6324 suddenly appeared. It was travelling at a slow speed of 10 - 15 m.p.h. and he, as I have said, was traveling at about 20 m.p.h. The distance between the two vehicles was, he said, only about 15' so that at the speed he was traveling he had no time in which to stop. He blew his horn, braked and swerved. Had the Volkswagen bus not been there, it might well be that the swerve would have been to the west as C-6324 was travelling eastwards. But because the Volkswagen bus was there, the Defendant said that he swerved to the east to avoid it and so collided with C-6324 at the eastern junction. The Defendant acknowledged that an accident could have been avoided by his speed being less. I have no doubt it could have. There is however nothing that suggests to my mind that the Defendant's speed was excessive in the circumstances. He was travelling below the speed limit. Before the sudden appearance of C-6324, there was no other vehicle moving on the road. There were pedestrians, but the evidence is that they were on the sides of the roads crossing the junctions. In those circumstances, I have no doubt in my mind that the sole cause for the collision was the sudden appearance of the C-6324 due to the negligence of its driver, as he failed to ensure that he could safely cross Albert Street.

The claim fails and judgment is entered for the Defendant on the counterclaim. The damages to be assessed by a Judge in Chambers. And it is ordered that the costs of the claim and counterclaim shall be taxed and paid by the Plaintiff.

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