On November 14, 1962, a policeman was driving a police van along Battery Street, Freetown, in the direction of the King Tom police barracks. The van was travelling at about 20 m.p.h. when it collided with a car driven by the appellant, which had just emerged from a side lane and had proceeded into Battery Street to a distance of about 4 ft. 6 in. At this point Battery Street is 13 ft. wide. The driver of the van did not see the car until after the . collision. The van was brought to a stop 50 ft. from the place of impact. Appellant was charged with careless driving in a magistrate's court and was convicted. The magistrate based his decision on MacAndrew v. Fillard, 1909 S.C. 78, in which it was said that a driver approaching a main road from a side road must have his vehicle under such control as to be prepared for any traffic he might encounter. Appellant appealed against her conviction to the Supreme Court. Held, allowing the appeal, that, even though appeilant was wrong to have brought her car into Battery Street when she did, there was still a duty on the driver of the police van to avoid a collision if he could do so by the exercise of ordinary care and diligence. Cases referred to: MacAnd.rew v. Fillard, 1909 S.C. 78; Davies v. M ann (1842) 10 M. & W. 546; Radley v. London & North Western Railway Co. (1876) 1 App.Cas. 754. Claudius D. Hotobah-During for the appellant. Titus E. Fewry (Crown Counsel) for the respondent. MARKE J. This is an appeal from a magistrate who convicted the appellant on a charge of driving without due care and attention. Mr. Hotobah-During, before proceeding with his argument, said that the magistrate's record was incomplete in that it omitted some evidence material to his client's case. Mr. Davies, Crown Counsel, who appeared for the respondent, could not say anything as to this as he did not conduct the case before the magistrate. I asked Mr. During to swear to an affidavit setting out his objections to the record. This he did and a copy thereof was sent to the magistrate who tried this case. The magistrate's observations to Mr. During's affidavit were as follows: " I cannot now remember if Mr. During posed the specific question or if posed was answered in the affirmative by the witness. To the best of my recollection I wrote down all relevant facts adduced on both sides." It is significant to note that paragraph 5 of Mr. During's affidavit-the last paragraph of his affidavit-read as follows: " 5. And also that His Worship the Police Magistrate omitted to note down in his said records of the court that after the close of the prosecution's case on the said February 14, 1963, I submitted that there was no prima facie case made out for the defendant to answer when he overruled and said he would like to hear the defence." The magistrate, in submitting his observations to this court, has overlooked that paragraph of Mr. During's affidavit. The appeal, however, proceeded on the record before me. The facts of the case were briefly as follows: on November 14, 1962, a policeman was driving a police van (C.4156) along Battery Street in the direction of the King Tom police barracks when a car (C.4546), driven by the defendant, emerged from her compound as the police van was passing the junction of Battery Street with the lane leading into her compound. According to the prosecution, it was the defendant's car which hit the police van. The damage to the defendant's car was more extensive than that to the police van, which was the heavier vehicle. According to the defendant, as she was travelling towards Battery Street she heard the noise of an approaching motor vehicle: she stopped her car and was stationary when the police van hit her car and proceeded.• n of the scene showing the positions of the van and of the car was A olau . • .tt~d in evidence. ad~, magistrate, however, believed the prosecution's case and convicted the 1 ~ nt imposing a sentence of £10 or two months' imprisonment. A fpnaau' '· "e,vA inst that decision the defendant has appealed on the following grounds: ga · · h · h f ·d The judgment ;s agamst t1 e we1g t o ev1 ence. The trial magistrate misdirected himself on the question of speed. ( 3 ) In considering the evid.ence the learned magistrate ignored the plan in evidence by the prosecutiOn. . , 4) The police who prepared the plan referred to m ground (3), above, I. • "d •>.1 re not called to g1ve ev1 ence. "'\5) There is no corroboration of the prosecution's story. ( 6) The prosecution wit~ess p~rjured himself !n that in examination-inrhief he said he stopped Immediately after the Impact, whereas on cross- :~~mination he said he stopped some 50 feet from the point of impact. ~· ~ir. Hotobah-During, however, argued grounds (2), (5) and (6). As regards grounds (2) and (6) Mr. Hotobah-During argued that the driver of the police van could not have braked at the point of impact as the plan which was signed by him and the defendant contradicts that. Mr. HotobahDuring submitted that the police van was driven at such speed that it was unable to brake on the spot. Mr. During said that the magistrate ignored the nlan in his judgment. '" In answer to this, Mr. Davies said the van, though it halted so far from the voint of impact, was travelling at 20 m.p.h. As to ground (5), Mr. During ooi~ted out that the policeman admitted he did not see the car till after it had ~ollided with him. As to this, Mr. Davies referred to the plan. Mr. Davies, in replying to ground (6), said that all the policeman said was that he braked on the spot; he did not say he stopped on the spot. Mr. Hotobah-During said that the policeman, after saying that he braked on the spot, in the next sentence said that he alighted. Looking at the pian, which was admitted in evidence and marked Exhibit 1, the following facts 11,ppear: L Battery Street is 13 ft. wide. 2. At the .point of impact C.4156 .had a clearance of 4 ft. 6in. on either s1de. 3.vise facing east. The !earned trial magistrate, referring to a case, MacAndrew v. Fillard, 1909 S.C. 78-a report which is not available in our library-said that a driver approaching a main road from a side road must have his vehicle under such control as to be prepared for any traffic encountered there ; and it is on this principle he based his decision. The learned trial magistrate did not seem to appreciate the principle to be deduced from the earlier case-Davies v. Mann (H!42) 10 M. & W. 546. The facts in that case-often referred to as the hobbled donkey case-were as follows: The defendant in that case negligently ~ove his horse and wagon against and killed an ass. The ass had been left m the highway fettered in the forefeet, and was then unable to get out of the way of the defendant's wagon. It was held that the jury were prooerly directed that although it was an illegal act on the part of the plaintiff to p~t the animal on the highway, the plaintiff was entitled to recover. That case was followed by, among others, Radley v. London & North Western Railway Co. (1876) 1 App.Cas. 754, where it was held that if the defendant could in the result b the exercise of ordinary care and diligence have avoided the mischief Which happened the plaintiff's negligence will not excuse him. It has been held i cases similar to the present case that no one driving a motor vehicle has ~ absolute right of way when driving on a main road. That is imposing on the driver of a motor vehicle on a main road the same duty of care as on a driver emerging from a side road into a main road, the test being " Could the driver on the main road have by the exercise of ordinary care and diligence avoided a collision?" From the principle in Davies v. Mann it should make no difference if the other party-that is, the appellant-was doing something which in law he should not be doing. There is, nevertheless, the duty to avoid a collision by the exercise of ordinary care and diligence. In the present case, the police van, according to Mr. Davies, was travelling at 20 m.p.h. along Battery Street. If he was using the road as he shouid have done, he should be on that part of the road which was nearer the lane from which the defendant issued than the other side-his driving side of that road. From the plan, the defendant had come out of her private lane to about 4 ft. 6 in. of Battery Street when the impact took place. But the driver of the police van said that he did not see the defendant's car until after the collision. At 20 m.p.h. one would have expected a careful and diligent driver to have seen the defendant's car before the collision. Again, at the point of impact the police van had a clearance of 4 ft. 6 in. on its driving side which could have enabled him to avoid a collision if in fact he was travelling at 20 m.p.h. I should like to make it perfectly clear that I am not saying that the defendant according to the plan was right in the circumstances to have brought her car 4 ft. 6in. into Battery Street. What I do say is that even where she was in the wrong there was still a duty on the driver of the police van to have avoided a collision if he could, by the exercise of ordinary care and diligence, have done so. With respect, it seems that the learned trial magistrate erred in thinking that the duty of avoiding a collision was only on the defendant, who was obviously wrong from the finding of the magistrate in issuing 4 ft. 6 in. from her lane. If I were to support the magistrate's decision then it would be excusable for a driver to run over a man who was lying in the road, drunk and incapable. Even in that case, the law imposes a duty on the driver to avoid running over the drunken man if by the exercise of ordinary care and diligence he can do so. For the reasons stated I would allow this appeal. The order of the court is: 1. The appeal is allowed. 2. The conviction and sentence are set aside and a verdict of " acquitted and discharged " substituted. 3. The fine, if already paid or deposited as a condition of this appeal, to be refunded to the defendant/appellant. 4. The amount deposited as costs for preparing record to be refunded to defendant/ appellant. 5. Magistrates' court to carry out.