Supreme Court
Action No. 259 of 1981
19th September, 1983.
Rajasingham, J., Q.C.

Messrs. Pitts & Elrington for the Plaintiff.
Messrs. W.H. Courtenay & Co. for the Defendants.

Tort - Negligence - Contributory negligence by Plaintiff in motor vehicle accident - Unlighted motor vehicle on highway at night prima facie, but rebuttable, evidence of negligence.

RULING

The Plaintiff's Action is for damages arising from a collision involving his car and a crane belonging to the second Defendant and driven at the time of the collision by the first Defendant. Actually the crane was not, according to both parties, being driven at the time of the collision but was parked without lights at about 7.30 p.m. on the 3rd of July, 1980, on the Northern Highway. The statement of claim is rather inaccurately worded and even speaks of the crane having been "negligently" driven and "caused (it) to collide violently with the Plaintiff's said motor car". The Plaintiff himself does not speak of the crane as in motion at the time of the collision.

The Plaintiff's uncontradicted evidence is that he was travelling at between 45 and 50 miles per hour approaching Belize City along the Northern Highway on a dark and, off and on, rainy night when he had to dip his lights for an oncoming car and move over to his extreme right. There is nothing to indicate that he altered speed. As he proceeded towards the approaching car he saw a dark object loom up before him and braked hard, causing the car to skid. He says he then realised that his braking was useless because he was too close to it, and released his brakes and tried to avoid the object by steering hard to his left but the rear right fender of his car hit the left rear of the object and that caused him to go off the road on his left. The oncoming car then ran into him, its right front alone being partly off the paved area and on the soft shoulder while Plaintiff's car was wholly on the soft shoulder - the Plaintiff referred to it as 'mud". The Plaintiff gave his reason for turning left and into the path of the oncoming car as being his fear that if he went off the road on the right and into the bush he may hit a tree and cause injury to someone. The damage caused to his vehicle was so extensive as to render it uneconomical to repair.

The first Defendant's evidence is also largely uncontradicted. He said he had worked with the crane at Airport Camp and had left there for Belize City. When he left he had put on his lights because, it was dark already, and had found that they were in working condition. He proceeded towards Belize City and had passed an S bend and reached halfway down a straight half mile stretch of road. At that point he saw an oncoming car and dipped his headlights. When he dipped his lights his lights cut out altogether. He said he could see the white gravel edge of the road and pulled over to it. This is challenged by the Plaintiff who says the Defendant's vehicle was about four and a half feet from the edge of the paved area. The first Defendant goes on to say that he stopped within a foot of the gravel edge - in fact he said his right wheels were against the gravel edge. He said he could not go any further to his right because the shoulder was soft and his vehicle would have sunk into it. He said that at this point of time he saw a light, which later turned out to be the lights of the Plaintiff's vehicle, coming up behind him. If that were the case it seems very likely that the Defendant too dipped his lights to the car for which the Plaintiff dipped his lights. The first Defendant says that, when he saw the light coming up behind him he told his sideman to flag that vehicle down because he thought it was the Company truck that he had unloaded at Airport Camp. It is relevant here to state that the Defendant was driving a crane which had been purchased from the British Army and which had its steering wheel on the right; so that the sideman would be seated towards the middle of the road. The first Defendant goes on to say that before his sideman could even get down he heard the squeal of tyres and the bang as the Plaintiff's car ran into the rear of his crane. He said that his lights cutting out and his pulling up, his speaking to his sidemen and the Plaintiff running into him all happened within about fifteen seconds. He said he had reflectors in the crane to put out in such an event, but had no lights. However, if he is telling the truth, that is academic because he had no time to do anything. The vehicle does have a reflecting sign saying 'Long Vehicle" affixed on its rear. The Plaintiff says it was nine feet up on the back of the crane at the time of the collision but had been lowered after the accident. The first Defendant said it is riveted at a height of five feet on the back of the crane. This was not contradicted - that it was riveted. If it is riveted it could not have been moved after the accident; this must mean that the Plaintiff is mistaken about the height at which it was fixed and that the reflecting sign was at the lower level all the time and could have been seen by him. The Defendant says the gravel edge was only a foot wide and not four to five feet as the Plaintiff said. He agreed his right wheels were about eleven feet from the left edge of the road inclusive of the soft shoulder and gravelled area, and about two feet from the centre of the road.

The road according to the Plaintiff was 22 feet wide and according to first Defendant 20 feet wide. The crane was about 8 feet wide. If, as put to him in cross-examination and admitted by him, the first Defendant had parked his vehicle two feet from the centre, he would have been a foot from the edge of the road even if Plaintiff's estimate is accepted. Another method of double checking this seems to be to look at the situation after the accident in relation to the position of the two cars involved. The second car, which belonged to one Luis Lu and which was coming from Belize City was still almost wholly on the road and yet traffic was able to pass by after the accident. This must mean the crane was at least a little distance off the center of the road. I am satisfied that even if the road is taken as being 22 feet wide, the crane was within a foot or so of the edge of the paved road. In view of the fact that he was seeking to park the vehic1e without the assistance of any lights, I think the first Defendant parked it as safely as he might without getting his vehicle bogged down in the soft shoulder. He said it would have required a crane to pull his vehicle out if he went on to the soft shoulder. I do not think it unreasonable of him not to have gone on to the soft shoulder in those circumstances. There is one other matter I need mention on this aspect of the case and that is that the Plaintiff admitted that measurements had been taken of the position of the vehicles by the Police. In view of the obvious relevance of the exact spot at which the crane was parked it was essential for the Plaintiff's case that the Plaintiff establish that it would parked, according to his statement of claim, in a dangerous area and too much into the road. On the evidence as it now stands I can only hold that the crane was as far off the road as a reasonable man would park it bearing in mind the soft shoulder and the size and weight of the crane.

The Defendants in their answers alleged that the Plaintiff was himself negligent in that he drove too fast and that he failed to keep a proper look out. The Plaintiff's admitted speed of 45 to 50 miles per hour would not, of itself, be evidence of negligence if it had been in good driving conditions much as daylight and dry weather; in the dark and on a rainy night it would be another matter altogether. The Plaintiff said he saw the "dark object" when he was 110 feet from it. This appears to be a reasonable estimate of the distance because his brake mark or skid mark -it has been referred to as both - was 101 feet long. The Plaintiff himself said that he was too close to it to stop with the assistance of his brakes. It is worth repeating again here that there is no evidence to show that the Plaintiff, when he dipped his lights to the oncoming car, reduced speed even though he must obviously have been reducing the limits of his vision. This was in all probability a major contributory cause for his being unable to stop in time; he was travelling at a speed at which he could only have stopped in time if the obstruction was properly lit, thus adding to the limits of his vision. A reflector, as the "Long Vehicle" sign would only have shown up on the very extreme edge of his dipped lights - and at the admitted speed of travel that was again obviously too late. The Plaintiff had a straight approach of a quarter mile and saw the crane when he was 110 feet from it when he was travelling at a speed at which he could not by his own admission stop within the range of his vision. This to my mind is negligence.

However, the principal matter in issue is whether the first Defendant was negligent in parking without lights. I have already found that the position of his vehicle was not evidence of negligence as it would be unreasonable to expect that on a straight half mile stretch of road he should have taken the vehicle on to the soft shoulder, or mud as the Plaintiff called it, and got his vehicle bogged down.

"The presence of an unlighted vehicle on a highway at night is prima facie evidence of negligence and it is for the driver to explain how he came to be unlighted and why he could not move it out of the way or give warning to oncoming traffic" in the words of Lord Justice Denning in the case of Hill -Yenning v. Bezsant (1950). It is for the driver to take reasonable steps to avoid creating or prolonging this hazard. This principle was cited with approval and applied in the case of Moore v. Maxwells of Ensworth Ltd. (1968). The facts in that case were very similar to the present case.

It remains for me to see whether the Defendants have rebutted the presumption of negligence raised by the failure to have lights on the parked vehicle. The first Defendant's evidence, which is uncontradicted on this aspect, is that his lights were in good working condition when he left the airport camp and that he had proceeded through the dark with their assistance until at this place they failed altogether when he dipped his lights for an oncoming vehicle. The second Defendant, who has been in the engineering business for thirty years, is the owner of heavy haulage equipment including this crane. He says he has a regular inspection schedule and that this vehicle was inspected within a month before the accident and found to have everything in good working order. The evidence thus establishes that the failure of the lights was not due to any lack of proper maintenance, nor to a failure on the part of the first Defendant to verify they were working; because although he did not test them before he started he did not have to do so because he started on his journey with the lights on and working. The failure of the lights, therefore, was not due to any negligence on the part of the first or second Defendant.

The final question that arises is whether the first Defendant was negligent in not taking reasonable steps to warn other traffic of the hazard. Again his evidence on this matter is uncontradicted. His evidence is that when the lights cut out he pull out to the edge of the paved area; this was challenged by the Plaintiff but I have already dealt with the evidence on this aspect and held that the physical facts make the first Defendant's position far more probable than the Plaintiff's position that the crane was 4 feet 6 inches from the paved edge of the road, which would have put the 8 foot wide crane over the centre of the road - a position not taken even by the Plaintiff. The first Defendant saw the lights approaching behind him and asked his sideman to stop that vehicle because he thought it was the company truck. Before his sideman could even get down - which was very fortunate for him - the collision occurred. Whether he should have put up his reflectors first becomes academic because there was in any event no time to do so before the collision. Besides there was in any event a reflecting sign saying "Long Vehicle" on the rear of the crane and, as I have already found, at a height at which it could be seen by a vehicle coming up behind it with its lights on. There is, therefore, sufficient evidence to show that there was no negligence on the part of the first or second Defendant, and evidence instead of negligence on the part of the Plaintiff in that he drove at a speed which was excessive in the circumstances and thus made it impossible for him to avoid running into the crane.

I dismiss the Plaintiff's action with costs.

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