Wabash Railroad Co. v. Misener, (1906) 38 SCR 94

Supreme Court of Canada

Wabash Railroad Co. v. Misener, (1906) 38 S.C.R. 94

Date: 1906-12-11

The Wabash Railroad Company (Defendants) Appellants;

and

Isabella Misener and Others (Plaintiffs) Respondents.

1906: November 28, 29; 1906: December 11.

Present: Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Railway company—Findings of jury—“Look and listen.”

M. attempted to drive over a railway track which crossed the highway at an acute angle where his back was almost turned to a train coming from one direction. On approaching the track he looked both ways, but did not look again just before crossing when he could have seen an engine approaching which struck his team and he was killed. In an action by his widow and children the jury found that the statutory warnings had not been given and a verdict was given for the plaintiffs and affirmed by the Court of Appeal.

Held, affirming the judgment of the Court of Appeal (12 Ont. L.R. 71), Fitzpatrick C.J. hesitante, that the findings of the jury were not such as could not have been reached by reasonable men and the verdict was justified.

APPEAL from a decision of the Court of Appeal for Ontario^[1] affirming the judgment at the trial in favour of the plaintiffs.

In the judgment of the Court of Appeal delivered by Mr. Justice Garrow the facts are stated as follows:

“The facts are simple and not seriously in dispute. On 13th August, 1904, about 2 p.m., Robert Misener, aged 48 years, a farmer, was driving with a team of

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horses and a waggon along a highway in the County of Welland, which is crossed by defendants’ line of railway, and at the intersection he was struck by an engine in charge of defendants’ servants and instantly killed, his horses killed and his waggon and harness destroyed.

“The engine was unattached and was running through from Niagara Falls to St. Thomas at a high rate of speed ; one witness, Mrs. Louisa Pew, who had resided near the crossing for 13 years, stating that she had never seen an engine going so fast since she lived there, and even the trainmen admitted that they were going at from 35 to 40 miles an hour.

“Deceased, as he approached the track, was driving at a pace of about three miles an hour. Immediately behind him, going in the same direction was one William Locke, also driving, who was called as a witness by plaintiffs. Asked to tell what took place, Mr. Locke said; ‘Well, the engine gave toot-toot and then the crash came about the one time.’ The engine ran, after the collision, from a quarter to a half a mile. When it struck the waggon, it made it ‘go up in splinters,’ and deceased was thrown up the track ‘out of our sight.’ Locke did not stop because the sight had made his wife, who was with him, ill. He saw deceased as he approached the crossing look towards the ‘Falls’ (the direction from which the engine came) and then look the other way. He (the witness) also looked at the same time and saw and heard nothing on the track. At the time deceased looked, his horses ‘were going on to the rails, I could not say how far.’ On cross-examination he became a little more definite as to the exact place at which deceased looked, which was, he said, at the raise of the road to go up to

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the track, which would be at least as far back as the railway fence. Until the line of the railway fence is reached, there are obstructions to a clear view, such as the fences themselves, an orchard which approaches but does not reach the corner, and a walnut tree, which was then in leaf, as was also the orchard. But when the fences are reached and passed, and before the rails are actually reached, there is an unobstructed view for a considerable distance, perhaps a quarter of a mile, along the track in the direction from which the engine came, and if deceased had looked again when at or past the fence and before he reached the rails, this witness deposed that he could have seen the approaching engine, and could, as his horses were going at a slow pace, have turned towards the side, and thus have avoided the collision.

“There was no evidence that deceased looked more than once, and the substantial point in the case is whether, under the circumstances, his failure to look again is fatal, the defendants contending at the trial and before us that such failure to look again was conclusive proof of contributory negligence, and that the case should have been withdrawn from the jury. The judge refused a motion for nonsuit, holding that there was evidence proper to be submitted to the jury.

“The jury in answer to questions found that the whistle was not sounded nor the bell rung, and that such neglect was the proximate cause of the injury, and that deceased could not by the exercise of ordinary care have avoided the injury. Other questions based upon the possibility of an affirmative answer to the question as to contributory negligence were also put and answered, but they apparently became of no consequence when contributory negligence was nega-

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tived. And the jury assessed the damages as follows : To the widow, Isabella Misener, $800; daughter Ethel, $300; daughter Flossie, $500; son Norman Robert, $800; and the damages to personal property, $440.”

Rose for the appellants. The evidence was not sufficient for submission of the case to the jury and the judge should have withdrawn it. Giblin v. McMullen^[2]; Wakelin v. London & South West Railway Co.^[3]

The late case of Andreas v. Canadian Pacific Railway Co.^[4] is in point.

German K.C. for the respondents referred to Peart v. Grand Trunk Railway Co.^[5]

THE CHIEF JUSTICE.—This is certainly “as weak a case as can well be conceived” and almost involves the proposition that “given an accident at a railway crossing of a nature consistent with the absence of negligence, the company is presumed to be guilty of negligence in respect of it.” I concur in the judgment, but with much hesitation. No specific defect in the roadbed or in the construction or equipment of the locomotive is complained of. The accident is alleged to have been occasioned through the negligence of the defendants’ employees with respect to the ringing of the bell and blowing of the whistle. To ring the bell and blow the whistle at a highway crossing is a statutory duty, the neglect of which renders the engineer and fireman of a locomotive liable to a criminal prosecution. The legal presumption is, therefore, that

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they performed their duty and, in the absence of evidence to the contrary, the plaintiff’s action must be dismissed. The most that can be said in this case is that it is proved negatively, on behalf of the plaintiffs, that certain witnesses did not hear the bell or the whistle, and, affirmatively, it is proved by those best in a position to know, the engineer and the fireman, that the requirements of the statute in that respect were strictly complied with. In view of the cases, however, I assume that this is a question which must be submitted to the jury and by their answer we are bound.

But the onus is on the plaintiffs to shew, assuming that the negligence of the defendants is proved, that such negligence was the determining cause of the accident, and, on the evidence, I should have been strongly inclined to the view that the state of things existing at the time of the accident was consistent with the theory that the death was caused by the deceased’s own negligence, and, at the most, that the event occurred through the joint negligence of the deceased and of the servants of the defendant company.

The question for the jury was: Could the deceased by a reasonable use of his senses have discovered the proximity of the approaching train in time to avoid the accident?

Approaching the line at one hundred feet from the crossing there is a clear view of the track for a distance of one thousand three hundred and fifty feet, and, at the railway fence, which is about seventy-two feet from the crossing, there is a clear line of sight to a point 1,700 feet away.

The plaintiffs’ own witness, Locke, the only one

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examined of the two persons who were eye-witnesses of the accident, proves that at any point between the railway fence and the southern rail there was a clear view in the direction from which the train was coming of 1,700 feet, and this same witness gives evidence to the effect that the deceased could, had he looked when there, have seen as far as the second whistling post, a quarter of a mile distant. He also admits, on cross-examination, that the horses of the deceased, which were then moving at a slow walk, could have been turned aside and the accident avoided. Approaching this crossing the deceased was bound “to use such faculties of sight and hearing as he was possessed of.” If he did not do so he was negligent. If, having done so, he saw the train, as he must have done according to the evidence of the sole witness of the accident, and he went recklessly forward, then he voluntarily incurred the risk and must suffer the consequences. Cooper v. The North Carolina Railroad Co.^[6]; Schmidt v. Missouri Pacific Railway Co.^[7]; Grand Trunk Railway Co. v. McKay^[8].

I assume, however, that to reach a conclusion as to which of the two parties is responsible for the accident, admitting that both were negligent, a comparison of the facts by the jury was necessary and, by their finding, the cases seem to hold that the court was bound.

For all these reasons I entertain grave doubt and, were it not for the conclusion reached by the careful and learned trial judge, adopted by the Court of Appeal, I would have held that the judge, on a

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preliminary question of law, should have decided that there was no evidence on which the jury could properly find for the plaintiffs, but I defer to my brother judges and adopt their view.

DAVIES J.—I do not desire, even by implication, to cast a doubt upon the reasonable and salutary rule so frequently laid down by this court as to the duty which the law imposes upon persons travelling along a highway while passing or attempting to pass over a level railway crossing. They must act as reasonable and sentient beings and, unless excused by special circumstances, must look before attempting to cross to see whether they can do so with safety. If they choose, blindly, recklessly or foolishly to run into danger, they must surely take the consequences.

In the case at bar the jury found that the statutory requirements as to the engine sounding the whistle and ringing the bell before coming to the crossing had not been complied with, and further, that the deceased who was killed at the crossing had not been guilty of contributory negligence.

The appeal was not sought to be allowed because of anything wrong or misleading in the judge’s charge except with respect to his direction as to looking and listening. That charge was very clear and, in my opinion, covered all the disputed points in a manner leaving nothing to be desired.

That learned judge did not indicate any disapproval of the findings of the jury. On the contrary he directed judgment to be entered upon them for the plaintiffs for the amount of the damages, having previously refused to nonsuit.

An appeal to the Court of Appeal for Ontario was

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dismissed and we are now asked to reverse the judgment of two courts founded on findings of facts by a jury on matters peculiarly within their province.

The only question open to us to consider is whether the findings are such as, under the circumstances of the case, reasonable men might fairly find.

In deference to the strong argument pressed by Mr. Rose upon us, I have gone over the evidence with great care and the conclusion I reached was not one that the findings were such as, in the face of the conflicting evidence, reasonable men could not fairly have found.

There were two or three points in the case to which the appellants did not seem to me to attach sufficient importance. One was that the railway crossed at art acute angle and not at right angles and that a traveller going northwesterly, when crossing the railway tracks, would have his back turned almost to the approaching train. Another was the unwonted speed with which the unattached engine which killed the deceased approached the highway and another that he could not have seen the approaching train until he was past the railway fence at the crossing.

Now, assuming the findings of the jury as to the signals to be correct, the only question remaining would be as to the manner in which deceased discharged his duty of looking along the track behind him. At best the moments when he could have seen the engine at all might be counted by seconds and I think the evidence as to the degree of care exercised by him, in view of these facts, quite sufficient to justify the finding of the absence of contributory negligence. Barry Railway Co. v. White^[9]; and see Lord

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Cairns’ judgment in the Slattery case^[10], at page 1166.

IDINGTON and DUFF JJ. concurred in the opinion of Mr. Justice Davies.

MACLENNAN J.—I am of opinion that this appeal should be dismissed.

Appeal dismissed with costs.

Solicitor for the appellants: W.R. Riddell.

Solicitors for the respondents: German & Pettit.