Court dismisses defense argument that main road driver must anticipate side road driver's failure to stop at a halt line.

[*27] 1983 June 11

(KALLIS, AG. D. J. )

IN THE DISTRICT COURT OP NICOSIA

Nicosia Police,

v.

Andreas Savva,

Accused.

(Case No. 424/83).

Careless driving - Collision at T - Junction - Main road driver - Side road driver - Duty of side road driver not to enter a road unless it is safe so to do - Is not subject to a limitation that he can act on the assumption that other users of the road will keep to their lane.

P.S. Efthymiou, for the Prosecution.

A. Paschalides, for the Accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS, AG. D.J.:- The accused in this [*28] case is charged of the offence of driving a motor vehicle on a road, without due care and attention, contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72).

It was the version of the prosecution that whilst accused was emerging from 28th October Avenue, Makedonitissa ("the side road”) he collided with a U.N. vehicle ("the U.N. vehicle”) which was driven into Grivas Digenis Avenue ("the main road") from Nicosia to the Airport.

According to P.W. 1, P.C. 724, Andreas Georghiou, who was called to the scene to investigate the accident, the width of the main road is 50' and is divided into four lanes - two towards the airport and two towards Nicosia. The first lane - the left one in the direction of the U.N. vehicle - is 20’ and the second, third and fourth are 10’ wide each. The first lane is divided from the second by a continuous white line and the same applies to the second from the third. The third line is a broken one. The point of impact - X on the plan exhibit 1- was indicated to the witness by the driver of the U.N. vehicle and later accused signified his agreement with it. It was at the ending point of the right brake marks and at a distance of 25 from the right edge of the tarmac in the direction of the U.N. vehicle. The witness was of opinion that it was actually on the spot that had been indicated to him because there he found earth and traces of paint from the [*29] Vehicles. The U.N. vehicle left brake -marks of a length of 86' they were in the second lane and at their ending point were 2’from the line dividing the first and second lanes. The side road at its junction with the main road is controlled by a halt line. There are two lanes of traffic in the side road, one for those intending to go to the left - to the airport - and one for those intending to go towards Nicosia. When one is driving on the latter lane and is on the halt line visibility to the right - towards Nicosia is about 150 - 200 metres. The car of the accused had a denting on the right rear mudguard and the U.N. Vehicle was damaged on the right front mudguard, right part of front bumper and in the right lamp, its main damage being on the right front part. The U.N. vehicle was not tested for the purpose of ascertaining its speed by reference to its brake -marks because of its damaged condition. The witness as an expert was of opinion that a car which bears 86’ brake -marks needs 86' thinking distance and that the U.N. vehicle must have been driven at a speed of 40 - 50 m.p.h. There is a speed limit on the main road which is 40 m.p.h.

In cross examination the witness said that its resultant position the U.N. vehicle was about 40' from the point of impact and that speaking of the basis of the brake - marks its speed could not be 60 m.p.h.; that the continuous white line between the lanes signifies that a driver cannot change lane whilst the broken line signifies that he can do so. [*30]

P.W. 2 Karolina Mousa testified that she was driving in the first - left - lane of the main road at a speed of 30 -

35 m.p.h. She had noticed from a considerable distance that she was followed - in the same lane - by the U.N. vehicle. As she intended to turn into the side road she signalled her intention with her trafficator when at a distance of about 60 - 70 metres from the side road. She thereafter reduced speed and she was overtaken by the U.N. vehicle which took the second lane; that (the U.N. vehicle) proceeded a little, not much, and then she noticed accused emerging from the side road; that at that time she heard noise from application of brakes and she noticed that they originated from the U.N. vehicle; that after the brakes accused proceeded for a while and the collision ensued at a time when she had not yet turned into the side road; that before the U.N, vehicle started using its brakes she had covered half of the 70 metres distance i.e. the distance she set her trafficator; that the first time she noticed accused's car it was in motion, emerging from t he halt and getting into the main road, and to the time of the impact its speed was steady. At the time of the impact there were no cars in front of her or behind her besides the vehicles involved in the collision. She was not acquainted with anyone of the drivers involved in the collision.

In cross examination she said that she heard brakes at half the distance of 70 metres and this happened just after [*31] she had been overtaken by the U.N. vehicle; and that she was first overtaken and later she noticed accused emerging and then she heard the brakes.

P.W. 3 Gavriella Mousa a passenger in the car of P.W. 2, testified that at a distance of 60 - 70 m. before the side road P.W. 2 signalled that she would turn and reduced speed; that just at that

moment a U.N. vehicle overtook them and later she noticed accused emerging from the halt; she heard the brakes of the U.N. vehicle and

a collision ensued.

The driver of the U.N. vehicle was not summoned to give evidence because he had left Cyprus by the time of the trial.

Version of the accused.

In a statement given toy the accused to the police three days after the accident it is stated that he started emerging onto the main road with intention to go towards Nicosia at a time when there were 2-3 vehicles on the left lane which were signalling that t hey will turn onto the side road. When about in the middle of the first and second lane he noticed from his right, on the second lane, a car driven at a very high speed; that when he noticed it was very far away and he (accused) continued at a very low speed just the same speed that he was driving from the halt: that the other car applied brakes and came skidding (trifton) and knocked on accused’s car when at the centre of the road i.e. half of the car has passed [*32] the centre of the road. That when he first noticed the other car it was at a distance of more than 50 metres.

The accused in his sworn testimony stated that after emerging from the halt line and after passing the first lane and was getting onto the second there appeared the other car which was very far away and he (the accused) proceeded normally to take his own side of the road; and that when he was in the centre of the road he heard a noise on the right rear side of his car; that when he first noticed the other car it was at a distance of more than 150 metres; that the other car was not visible when he was on the halt.

In cross-examination the accused said that from the time he first noticed the U.N. vehicle until the impact he covered a distance of about 8' and that his speed was 3-5 m.p.h.; and that when he noticed the U.N. vehicle coming at a high speed he (accused) increased his speed.

D.W. 1 Georghios Djirkallis, a motor vehicle assessor, automobile engineer, road transport engineer testified that he conducted a test of a vehicle of the same make and model as that of the U.N. vehicle by reference to brake -marks left by the latter vehicle and found out that the minimum speed of the U.N. vehicle must have been 46.5 m.p.h. and the maximum 49. 6 m.p.h. and that had the U.N. vehicle been driven at 40 m.p.h. it could have stopped at a distance of 29.87' from the point of impact. [*33]

In cross-examination he said that matters such as the weather condition, the condition, make and pressure of the tyres, the weight of a vehicle, condition of the brake -marks and existence of wind, affect, albeit to a minimal degree, the result of the test. And he was not in a position to testify about these matters in so far as the U.N. vehicle was concerned. He also said that if a vehicle which is driven at a speed of 5 m.p.h. covers a distance of 8’ for another vehicle to cover 450’ at the same time it must be driven at a speed of more than 280 m.p.h.

Having had the advantage in the course of the trial to watch carefully all the witnesses whilst testifying before me and to observe their demeanour I have no hesitation whatsoever to accept the version of all the prosecution witnesses and to rely on it because they all gave the impression of witnesses of truth. On the other hand I cannot believe the accused both due to his demeanour and also because his oral sworn testimony differs in two material respects from his statement to the police. Whereas in his statement to the police he said that he first noticed the U.N, vehicle from a distance of about,50 meters and he continued driving at the same low speed, in his evidence he said that he noticed it from a distance of more than 150 meters and he increased his speed.

Regarding the evidence of D.W. 1, besides its weaknesses emanating from the factors above enumerated something that diminishes its weight, and therefore cannot be safely relied [*34] upon, I would observe that it tallies with the evidence of the prosecution which gave the speed of the U.N. vehicle to be 40 - 50 m.p.h.

On the basis of my findings as to credibility, I find 28th October Avenue is a side road and Grivas Digenis a main road; that accused started emerging from the side road when the U.N. (vehicle was at a distance of less than 70 meters from him. Given the visibility

- which is 150 - 200 meters the safe inference can be drawn that when accused started emerging onto the main road the U.N. vehicle was within the visibility distance and therefore plainly visible to anyone who was on the halt line.

The Law:

It has been said that the test as to whether a driver charged with careless driving is at fault may be said to be whether the prosecution has proved that the defendant departed from the standard of a reasonable, prudent and competent driver. Whether or not due care has been exercised is a subjective matter. The particular circumstances of each case have to be examined, and that negligence sufficient to establish civil liability is all that is required to support a conviction under s.8 (per Stylianides J. in Charalambous v. Police, (1982) 2 C.L.R. 134 at p. 143). [*35]

In Lang v. London Transport Executive, (1959) 3 All E.R. 609, there was applied the principle which was first stated in Fardon v. Harcourt Rivington, (1932) All E.R. Rep. 81, namely: "If the possibility of the danger emerging is reasonably apparent then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which 'Would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions."

"In Humphrey and Another v. Leigh and Another, (1971) R.T.R. 363 which involved a collision on a road junction between a car driven on the main road and a car driven on the side road, Russel L.J. in giving the judgment of the Court of Appeal and in absolving the main road driver of any liability stated the following at pp. 365

- 366:

"The question is whether it is to be said that you are negligent if you do that, or whether it can be propounded as a matter of law that in such circumstances a person in the position of the second defendant has a duty, if he is to avoid a charge of negligence every time he comes across a side road of this kind leading out of Gipsy Hill, to take his foot off the accelerator and poise his foot over the brake, being prepared to stop short of the crossing. In so far as anything to that effect was said by Ormerod LJ in Williams v. Fullerton (1961) [*36] 105 SJ 280, it was, so far as one can judge from the report, an obiter dictum, and I personally would not follow it at all; otherwise, you would approach a situation in which no traffic moves about the country as any reasonable speed whatsoever.... If it were the fact that it is negligent, whenever you come to a ”cross-road such as this, with minor side streets, when travelling along a main street, not to slow down so as to be able to stop short of the cross – roads in case somebody is driving out of the side road straight across it, then it might be said that the facts in this case proved that the second defendant was negligent; but in my judgment it would be quite wrong to contend that that was the degree of care which is required of somebody driving a long a main traffic road such as Gipsy Hill. He must, of course, keep a look-out at cross-roads, but to say that he must so drive his car as to be able to stop short in case a car is coming, driven dangerously, straight across out of the side road, is not, and certainly should not be, in my judgment, the law. To hold otherwise would lead to a state of the law which is completely contrary to the experience of anybody who drives as to what in fact 100 per cent of people who drive do. It would lead, I imagine, if that were the law, to even worse traffic conditions that we find on the roads at present. I would dismiss the appeal." [*37]

In Adamis and Another v. Eracleous.

(1982) 1 C.L.R. 746, again a collision case between a main road and a side road driver, Pikis, J. in delivering the Judgment of the Court of Appeal stated the following at p. 751:

"What is in issue here, is, whether the duty of a driver not to enter a road unless it is safe so to do, is subject to a limitation that he can act on the assumption that other users of the road will keep to their lane. The duty not to emerge on a road unless it is safe so to do, is not conditioned by any such limitation. Whether it is safe to emerge on a road or not is dependent on the state of traffic on the road in question at the time of the emergency; and if it is such as to make it unsafe to enter, a driver must refrain from entering until safety so permits. Whether on a particular occasion it is reasonably safe to emerge on a road, is a question of fact to be resolved in the light of the circumstances of a case. Consequently, the ultimate question of negligence to be decided in each case, is reduced to a question of fact. Was it then safe for appellant 1 to enter Ayios Antonios Street from the driveway of the hotel when he actually did so? The answer is, it was dangerous to enter the road because of the proximity of the car of Xenophontos to the junction, [*38] a danger against which plaintiff had ample opportunity to guard against, given his visibility in the direction wherefrom the aforesaid car was coming, but failed to do so. To proceed to Ayios Antonios Street, as appellant I did, was tantamount to introducing a foreseeable risk thereon, for which appellant I was rightly held liable in negligence."

In Vakanas v. Thomas and Another.

(1982) I C.L.R. 530, at p. 531, still another road junction collision case Pikis J. stated the following at p. 534:

"If motorists and users of the road were to act on the assumption that other users of the road were inevitably bound to be negligent, we would be imposing an impossible burden on users of the road far beyond what reason and experience justify."

It is, also, well established that a motorist travelling along the main road need not antioipate, unless he 2 has some forewarning, of such an eventuality, that another user of the road will emerge on a main road from a side road without first stopping and making certain that it is safe so to do. (See Panayiotou v. Morris, (1970) I C.L.R. 215, Varnakkides v. PapamichaeI. (1970) I C.L.R. 367 and the Vakanas case supra. [*39]

In Varnakkides v. Police,

(1969) 2 C.L.R. I, the appellant who was driving on the main road and collided at the road junction with a car which was driven on the side road and failed to stop at the "halt" sign, was held guilty of negligence "in that, having seen the other vehicle coming at a speed towards the cross-road, he did not take such measures as to enable him to avoid a probable collision."

The Court of Appeal in quashing the conviction stated the following at p. 3 (per Triantafyllides, J. as he then was) ·

"I cannot accept that it was reasonable to expect from the appellant to have anticipated that the other driver - even though he was. going at a great speed - would not have stopped at the 'halt' sign, a thing which he' had both the time and the duty to do. To hold otherwise would amount to putting, in a case Like the present one, an undue burden on a law-abiding driver, such as the appelIant, in favour of a law-breaker, such as the driver of the other car; and it would render meaningless the method of controlling a cross-road by means of halt' signs. "

Conclusion:

In this case having regard to the presence of the [*40] U.N. vehicle on the main road, accused had aduty to make certain t hat it was safe for him to cross the road and as matters developed it was not safe; and for this reason Alone he is guilty of negligence. Moreover accused had a duty not to enter the main road unless it was safe so to do and not to emerge in such a manner or at such time as to cut the path of or endanger a vehicle on the main road or to necessitate it to change speed or course. Also, in view of the presence of the U.N. vehicle at such short distance from the car of the accused the possibility of danger was reasonably apparent and so accused ought not to have emerged onto the main road and by emerging as he did he was driving without due regard to other road users.

Having concluded as above, I would observe that the accident is not due as alleged to the great speed of the U.N. vehicle - if a speed of 40 - 50 m.p.h. on the avenue can be said to be a high speed but to the emergence of accused on the main road at a time when due to the proximity of the U.N. vehicle it was not sage so to do.

For all the above reasons, accused has not exercised that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances and the prosecution has, therefore, discharged its burden of satisfying this Court [*41] beyond reasonable doubt that the accused is guilty of driving without due care and attention. Accused is, therefore, found guilty as charged.

Accused found guilty

as charged.