IN THE HIGH COURT OF AUSTRALIA. ~YELLOW..CABS..(S.A.).. LIMITED &ANOR. _ SANDLAND | REASONS FOR JUDGMENT. Judgment delivered MELBOURNE... HE J Green, Gort, Print, Melb. ort YELLOW CABS (S.A) LIMITED & ANOR. . ve SANDLAND REASONS FOR JUDGHERT. TATHAM C.J. This is an appeal from a judgment of the Supreme Court of South Australia in favour of the plaintiff in an action for damages for negligence. The plaintiff was knocked down by a motor car \ driver (the defendant Schermex who was employed by the other defendant - Yellow Cabs (S.A.) Ltd... The accident to the plaintif? happened on a < dark might on a suburban road in Adelaide. The ordinary allegations were made against the defendant of driving at an excessive speed H with an insufficiently Lighted vehicle, failure to look out and ' the like, There was no finding that the car was not sufficiently lighted. The findings of His Honour were that the plaintiff, who stepped off the footpath and was run into by the motor car, did look to his right before stepping: off the footpath but did not see the - } appreaching car and thought that it was safe to cross the road. But / f "that his look was not a proper one and that he should have seen the approaching car, and that he was negligent in failing to do so". Aceor@ingly there is an initial finding that the plaintiff stepped on to the road when a ear which was sufficiently lighted was approaching and that by reason of his own negligence he failed to see thee car. His Honour of course need not necessarily have made that finding, but it is quite impossible for us to disturb a finding of that character, It substantially depends upon the learned trial judge"s opinion as to the éredibility of the plaintiff, 'then, His Honour proceeded, the plaintiff being guilty of negligence, the question was whether the defendant (the driver of the car) by the exereise of due care, could and should have avoided the consequences of the plaintiff's negligence. His Honour makes two important findings in respect to that matter. One is that a light which was over the middle ofthe road at about the point where the aceident took place created a pool of 2. \ light,into which the plaintiff stepped when he stepped off the footpath. It was a wet night and it is common knowledge that there is not as large a pool of light on a wet night as on a dry night. But His Honour saw the place, though, it is true, in daylight. That some correction should be made for viewing in daylight is obvious, but His Honour found, and there was evidence upon which he could find, that the plaintiff would become visible practically as soon as he stepped off the footpath, notwithstanding certain overhanging trees which were at the spot. A further finding of His Honour which is important on this aspect of the case is that the defendant looked too long at a side street on the right which he was approaching and which was opposite to the place where the accident took place. Sec. 131 of the Road Traffic Act 1934-36 creates an obligation to look out for traffic on the right at interseeting roads. It was the duty of the driver in this ease to look to the right. The learned judge found that he more than looked to the right - that he allowed his vision to dwell for too long a period upon the street on the right and that owing to this fact he failed to see the plaintiff. The result was that His Honour found that both the plaintiff and the defendant driver were negligent, but that it was the defendant driver who, by his negligence in looking for too long a period to his right and not sufficiently to his front, created the situation of which the accident was the inevitable result. Upon those findings there is full support for the decision reached. The question as to whether the driver looked for too long to his right raises the question in another form which occurs in very many motor collision cases. The avoidance or occurrence of a collision may depend upon almost instantaneous action. His Honour's finding that a momentary glance to the right would have been sufficient in the circumstances which existed is one which this court cannot disturb. The learned judge has found that the defendant disabled himself by negligence from avoiding the accident. The case is on the borderline. It might have been decided the other way. His Honour might have taken a different view of the evidence. But I can / 3. ean find no justification for setting aside the Judgment, based as it is upon the findings of fact to which I have referred, which findings there was evidence to support. In my opinion the appeal should be dismissed, TODGMENT. RICH Js \ In my opinion there is evidence to support the trial judge's findings and Mr. Brazel's able argument has not satisfied me that we are justified in disturbing His Honour's conclusion. I agree that the appeal should be dismissed. JURGHENT. STARKE J: I agree that the appeal should be dismissed, DIZON Ts I agree. WILLIAMS J: I also agree. ORDER. Appeal dismissed with costs.