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ONYEAMA, Ag. C.J.,
Davies. Q,C. (with him Miss Adeniji), for the Appellant.
Obafemi, for the Respondent.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
Negligence-Motor accident-Cause of accident-Conflicting evidence -Resolved in favour of defendant -Res ipsa loquitur inapplicable.
ONYEAMA, Ag. C.J. of Lagos: There was a conflict of evidence between the plaintiff and the defendant. The Magistrate was impressed with the defendant whom he described as a witness of truth. The facts of the case must therefore be taken to be those given in evidence by the defendant. On these facts, there is no room for the maxim ‘res ipsa loquitur’ The accident occurred on the highway and not on the pavement or near the wall. The plaintiff walked out from the other side of a bus and was struck by the defendant’s car. The accident was, therefore, equally consistent with the plaintiff not keeping a good look out and with the negligence of the defendant’s driver. The onus was on the plaintiff to establish the negligence in the defendant’s servant, and this she does not appear to have done to the satisfaction of the Magistrate.
I agree that the Magistrate referred to some opinion he formed for which there was only his own imagination as support, but this opinion formed no part of his reasons for his judgment.
The issues were factual and were resolved by the trial court in favour of the defendant.
There is no reason for interfering with the judgment of the Magistrate and I accordingly dismiss the appeal.
Costs to respondent £7. 7. 0d.