JUDGMENT OF ARCHER J.
This is an appeal form a judgment delivered at the Circuit Court, Cape Coast, on 30 July 1964. The facts of the case in a nutshell are as follows: On 16 March 1963, the plaintiff was driving his taxi on the Accra-Takoradi motor road and on reaching a village about one-and-a-half miles to Saltpond, a Bedford truck driven by the second defendant and owned by the first defendant’s which was parked behind another truck in a lay-by, shot onto the road in the path or lane of the plaintiff. To avoid collision, the plaintiff applied his brakes and swerved to his right to avoid the Bedford truck and in so doing, his taxi landed in a ditch. The learned circuit judge awarded damages in favour of the plaintiff.
The defendants to whom I shall now refer as first and second appellants have appealed from the said judgment on the grounds that the judgment was against the weight of the evidence because no negligence was proved against either the first appellant or the second appellant and that the learned circuit judge was wrong in the application of the "last opportunity rule" and the "dilemma principle." I shall deal with this ground now because although they are three separate grounds, learned counsel for the appellants wisely decided [p.387] to deal with them in one exercise. It was argued on behalf of the appellants that the respondent himself was negligent because there was evidence that the braking distance of the respondent was 72 feet before the taxi fell into the ditch. Moreover, according to the Ghana Highway Code, the braking distance for a vehicle travelling at 30 miles per hour is 45 feet and the thinking distance about 30 feet and the overall stopping distance is 75 feet. The respondent's answer to this argument was very simple. If according to the appellants the respondent was compelled to stop within 72 feet, then he might have been travelling about 30 miles per hour or thereabout which would mean that the respondent was not travelling at an excessive speed. I must confess that I have lost my flair for mathematical calculations and I am not particularly enamoured by these arguments. I think the formulae laid down by the Ghana Highway Code must be subject to the brake-bands, the size of the vehicle and its load, the nerves and the temerity of the driver concerned.
There is nevertheless evidence that the respondent was travelling from Accra on the highway and on reaching this village where there is a lay-by on his near side, two tru
