JUDGMENT OF ANNAN J.A.
This appeal concerns the application of the maxim res ipsa loquitur to an accident on the highway and the point that is to be determined is whether the plaintiff-appellant (hereinafter called the appellant) led any evidence to establish the negligence of the driver of a motor vehicle owned by the defendants-respondents (hereinafter called the respondents) and which knocked down his son on the road. The appellant was the only witness. He was, however, not present at the time of the accident. He went to the scene later. At the conclusion of the case for the appellant, counsel for the respondents called no evidence and submitted that there was no evidence of negligence before the court. The issue then is quite simple—whether the evidence of the appellant disclosed any negligence by the driver of the respondents' vehicle.
[p.411]
These are the main points from the evidence. The deceased was about five years old. He lived in a house very close to a major road which crosses a busy market place always crowded with people. The accident occurred at about 12.30 p.m. The appellant heard a bang in the street, came out and saw his son "already knocked down by a motor vehicle." He said the boy "was thrown away to a distance and was unconscious." Immediately the driver of the vehicle saw the appellant he exclaimed, "Sorry it was not intentional." The boy did not regain consciousness and was dead on arrival at the hospital. This in a nutshell is the evidence on record as to the circumstances surrounding the accident.
The pleading of the appellant state that his son was lawfully crossing the street when he was negligently knocked down by the respondents' vehicle. Particulars of negligence pleaded were that the respondents' vehicle was driven at excessive speed in a built-up area without due care and attention; that the driver failed to keep any or any proper look out and that he failed to stop or slow down so as to avoid the accidents.
In their statement of defence the respondents denied an negligence and all the particulars of negligence and pleaded on their part that the boy darted into the street into the path of their driver without ensuring tha t it was safe to cross the road and so hit himself against the vehicle. The accident was therefore caused by the boy's own lack of care.
The appellant was in no position himself to give any evidence in proof of the facts pleaded as to how the accident happened. No other evidence was given as to th
