In considering this accident it is to be remembered that it took place in daylight, in the roadway, and that it was a foot passenger knocked down by an overtaking motor-car. There is no suggestion that the plaintiff ought not to have been in the roadway: there is no footpath on that side of the Szechuen Road ther: nor is it suggested that the defendant was driving at an excessive speed. The duty of a motor-car driver is to take all possible care having regard to all the ireumstances under which he is driving. It is his duty to keep clear of foot passengers and it seems to me that when you have a prima facie case of ence which 3 1s for the any tne. ear to rebut. It would be impossible for the injured man have any knowledge of what had taken place behind him. in this lease the defendant seeks to rebut that case against him by alleging that the plaintiff voluntarily and without warning, even though the car's horn had been sounded, stepped might across' tne car when lit was impossible for the driver to avoid the accident. He snys that {the plaintiff and his frieda had moved outwards, and that then the piainnfi made a further move outwards and so was under the car: jand that this movement was the decisive cause of the accident. Who plaintiff and his friend deny any such movement at all and swear they never heard the horn: they have no recollection ci the stationary ricsha. Now it is known that at that spot, at that time of day, the traffic on the Szechuen Road is heavy, especially going jfvom south to north: it was a wet jand greasy evening and we know that the Chinese do not always keep a straight course when walking on the roadway. All these factors seem to me to throw an stra duty on the driver of a car, especially when overtaking foot passengers. Then I have certain figures definitely given: the road there is 96 ft. wide: the car is 5'.2" and a ricsha is 3'.2." Two men walking abreast (we had the)Plaintiff measured at the elbows in Court) cover atiout 4' 2": in all 19ft. '6in. allowing for no margin at all. This only allows six inches in half ithe roadway, taking exact measurements. a very small allowance in which to pass the man: unless the car is well over the crest of the road, which is not suggested and is unlikely. I think it is anita possible that the plaintiff did turn his head when he saw the car just upon him: but T think the ren! cause of the accident was the failure of the defendant to allow himself sufficient" room to clear the plaintiff under all the circumstances of the case. I therefore hold that he has not discharged the duty cast upon him of rebutting the prima facie case of negligence established against hint by the facts of the accident.
The plaintiff has proved special damages amounting to about $700 and T award him in all $900 and give him judgement for that sum with costs,
Text read from the printed page and cleaned; old type leaves the occasional error.