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Case:
BGH JZ 1968, 103 VI. Civil Senate (VI ZR 11/66) = VersR 1967, 80
Date:
09 June 1967
Translated by:
K. Lipstein
Copyright:
Professor B.S. Markesinis

On 6 January 1961 early in the morning, while it was still dark and raining slightly, R, a miner aged 27 years, was cycling to his place of work on an illuminated road. Shortly before he had reached a turning, the defendant motorist ran into R from behind, catapulting him onto the side of the road where he was hit and killed by a motor car travelling in the opposite direction.

The plaintiffs, assignees by subrogation of the claims of R’s widow born in 1936 and of his two children born in 1954 and 1958, sued the defendant on the ground that he was alone responsible for the accident, having driven without due care and with a dirty windscreen. The defendant denies any responsibility. He had been blinded by an oncoming car owing to defective vision, of which he had been unaware hitherto and therefore failed to see R. Moreover, R was himself to be blamed because he was cycling without an illuminated rear light and was too far left on his side of the road.

The District Court, relying on the Road Traffic Act, gave judgment for the plaintiffs, limited to the amount payable under that Act, and granted a declaration asked for within the limits of liability set by the Road Traffic Act. On appeal by the plaintiffs the Court of Appeal of Hamm held the defendant liable to pay full damages on the ground of liability for negligence and rejected the plea of contributory negligence. A second appeal by the defendant was unsuccessful for the following

Reasons

I. 1. The Court of Appeal starts from the premiss that prima facie the defendant appears to have been negligent. The defendant, driving with dimmed lights, ran into the cyclist because he did not see him. In these circumstances common experience leads to the conclusion that the defendant acted negligently inasmuch as he drove either without sufficient care or at a speed incompatible with his field of vision.

2. The defendant does not contest this prima-facie evidence. He only questions the view taken by the Court of Appeal that the defendant had not discharged the burden of proof incumbent upon him thereafter to show as a serious possibility that the events may have taken place without any negligence on his part.

(a) The Court of Appeal assumes in favour of the defendant that owing to the special light conditions at the time of the accident he was blinded due to a defect of vision of which he was ignorant. Nevertheless it held that he had not discharged his burden of proof. The Court of Appeal held correctly that the test is whether the defendant could at least realize the limits of his vision, and it is convinced that he could.

This conclusion is based on the consideration that like every motorist the defendant must at least be aware of his individual powers of vision [references]. In determining negligence it is therefore irrelevant in law what the circumstances are which affect an abnormal individual vision. Thus a motorist so affected is treated no differently from one whose vision is perfect. The latter, too, is expected to know the limits of his vision, a knowledge obtained not by means of exact figures, but through his own experience. In determining whether the defendant was negligent the question is therefore not whether he knew or ought to have known of his defect of vision . . . but whether he ought to have known the effect of this defect and therefore the limits of his individual capacity to see. The Court of Appeal has answered this in the affirmative without committing an error of law.

This determination is all the more valid since according to the experts the defendant was born with this defect of vision and as he had driven a motor car since 1956.

If, however, the defendant could recognize that his personal vision was limited he could and should have so adjusted his driving, especially his speed so as to satisfy the requirements of traffic and to be able to stop, if necessary. The Court of Appeal has held correctly that the defendant has not shown that he has complied with this requirement.

II. The Court of Appeal rules out any contributory negligence on the part of the cyclist R.

1. The Court of Appeal was unable to find that the rear light of the bicycle did not show. It has also not blamed R for having ridden too far left on his side of the road. The judge of fact adopted the allegation of the plaintiffs that R wanted to turn left into the side street and had therefore moved to the middle of the road. The District Court had pointed out that R took this route daily on his way to work . . .

2. The further allegation of the defendant that R had not indicated his intention to turn left by raising his left arm was rejected as irrelevant by the Court of Appeal because on the defendant’s own admission he had not seen R at all.

The defendant objects that the presumed conduct of R had been dismissed as the cause of the accident. He argues that it was not decisive that he had failed to see the cyclist but that it was decisive whether he would have seen R if he had indicated his intended change of direction by raising his left arm. Common experience supported this conclusion; moreover a presumption operated against the cyclist since the latter had violated § 11 I of the Traffic Regulations (StVO), i.e. had failed to indicate his direction.

In the result the Court of Appeal was right. The purpose of § 11 I of the Road Traffic Regulations is to eliminate the dangers which threaten—apart from the person making the turn—the traffic behind and in the opposite direction. It is intended to draw the attention of these road-users to the imminence of the traffic manœuvre, to make them use care, and thereby to avoid the danger of accidents. This was not the case here. The collision did not occur because the defendant in his motor car overtook the cyclist on his left side without noticing the latter’s intention to turn; it occurred because in proceeding straight ahead he did not see the cyclist . . . It is not, however, the purpose of the protective rule which imposes the duty to indicate a change of direction, to ensure that the person subject to this duty is noticed in the traffic irrespective of his intention to make a turn.

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