Supreme Court of Canada
Sershall v. Toronto Transportation Commission, [1939] S.C.R. 287
Date: 1939-06-27
Lillian C. Sershall, Administratrix of the Estate of Alan Louis Sershall (Plaintiff) Appellant;
and
Toronto Transportation Commission (Defendant) Respondent.
1939: March 20, 21, 22; 1939: June 27.
Present: Duff C.J. and Crocket, Davis, Kerwin and Hudson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Collision between street car and milk-wagon at street intersection—Responsibility for accident—Findings of jury—Interpretation of findings—Evidence—Negligence and responsibility in law—Proximate cause of accident—Duty of appellate court when asked to reverse decision, on the evidence, of trial tribunal.
The action was for damages for the death of the driver of a horse-driven milk-wagon through collision at a street intersection in the city of Toronto. Defendant’s street car, proceeding easterly along D. street (a “through” highway), struck the wagon as it was crossing the tracks. At the trial the street car motorman testified that when he saw the horse approaching the D. street line he shut off the power, “fanned his brakes” (braked car to check speed) and after slackening the car down sounded the gong; that the horse after entering D. street started to turn eastward but was jerked by the reins so that it crossed the tracks; that when he saw the horse was going to cross he applied the emergency brake. The case was tried with a special jury, who found that the motorman was guilty of negligence causing the collision, in that, as stated in their answer to question 2 submitted to them, “the evidence indicates that he was conscious of danger when he fanned his brakes and at that time did not bring his car under such control that it could have been stopped, if necessary, in time to have avoided the
[Page 288]
collision”; and that deceased was not guilty of any negligence that caused or contributed to the collision; and plaintiff recovered judgment. This judgment was reversed by the Court of Appeal for Ontario, [1938] O.R. 694, which held that there was no reasonable evidence to support the finding against defendant’s motorman, and that it did not constitute a finding of negligence in law, and that all the evidence indicated clearly that the deceased was guilty of negligence which was the proximate and effective cause of the accident. Plaintiff appealed.
Held (Crocket and Kerwin JJ. dissenting): Plaintiff’s appeal should be allowed and the judgment at trial restored.
Per the Chief Justice: The jury’s answer to question 2 should not be read as referring solely to the motorman’s evidence or as founding the inference that he was “conscious of danger when he fanned his brakes” upon the fact that he fanned his brakes alone, or upon the motorman’s evidence alone; it was stating an inference from the whole of the evidence. Considering all the evidence, there was evidence from which the jury might or might not conclude, according to their view of it, that the motorman realized what the deceased was doing (that he was in the act of crossing the street) in time to avoid a collision if he acted with reasonable promptitude. The jury taking the view that the motorman became aware of what the deceased was doing in time to enable him to bring his car under sufficient control to let the horse and wagon pass, and that his failure to do so was unreasonable and negligent, it was for the jury to say, on the whole evidence, whether, notwithstanding deceased’s conduct, the motorman’s negligence was the sole cause of the accident and whether deceased should be acquitted of contributory negligence in the legal sense (Calgary v. Harnovis, 48 Can. S.C.R. 494; Long v. Toronto Ry. Co., 50 Can. S.C.R. 224; Loach’s case, [1916] 1 A.C. 719; Columbia Bitulithic v. B.C. Elec. Ry., 55 Can. S.C.R. 1; Leech v. Lethbridge, 62 Can. S.C.R. 123; Athonas v. Ottawa Elec. Ry. Co., [1931] S.C.R. 139; Nixon v. Ottawa Elec. Ry. Co., [1933] S.C.R. 154).
Per Davis J.: Though lack of care on the part of deceased was closely relevant to the enquiry for the jury, the vital question was: whose negligence was the direct cause of the collision? The jury were the tribunal of fact. Their verdict should not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it. The jury were entitled, upon all the evidence, to find, as they did, that defendant was solely to blame. (The Eurymedon, [1938] P. 41, at 49-50, cited).
Comment with regard to the practice adopted in the case, in the jury visiting the locus and other places for inspections. Seneviratne v. The King, [1936] 3 All E.R. 36, at 51, referred to.
Per Hudson J.: There was evidence on which, if taken together with what may well have been unspoken impressions properly influencing the minds of the jurors when seeing and hearing the witnesses, and taking into account the jurors’ special qualifications in this case, they could reasonably come to the conclusion at which they arrived. (Clarke v. Edinburgh & District Tramways Co., 1919 S.C. (H.L.) 35,
[Page 289]
at 36; Powell v. Streatham, [1935] A.C. 243, at 257, cited as to the duty of a court of appeal when asked to reverse the decision of a trial tribunal).
Per Crocket J., dissenting: The evidence established indisputably that the emergency out of which the accident arose was created by negligence of deceased. Only a valid unequivocal finding that the motorman, notwithstanding deceased’s negligence in creating the danger, could by the exercise of due care have avoided the collision would justify fixing responsibility upon defendant. Such a finding of ultimate negligence against the motorman could not in the light of the evidence be fairly and reasonably spelled out of the jury’s answers. Their answer to question 2 involved acceptance of the motorman’s evidence that he fanned his brakes when he saw the horse approaching the street line, and also implied that the mere fact that he did so established that he must have then become conscious of some danger which made it his immediate duty to bring his car under such control that it could be stopped in time to avoid a collision in case he should find that deceased was actually going to take the risk of crossing in front of the street car. The assumption that under the circumstances there was such duty is not justifiable, and a finding of negligence based thereon is not valid. Also the jury’s answer to question 2 cannot, having regard to the entire testimony, fairly be taken as involving a rejection of the motorman’s statement as to the horse starting to turn eastward. The jury’s finding exonerating deceased from all blame for the collision was perverse. The only verdict reasonably possible upon the evidence, including those portions of the motorman’s evidence which the jury must, upon a fair interpretation of their answer to question 2, be taken to have accepted, was that the motorman could not by the exercise of reasonable care and skill have avoided the collision which followed deceased’s unquestionable negligence in entering and blindly crossing a through highway without stopping, and that the collision was therefore caused solely by deceased’s own fault.
Per Kerwin J., dissenting: The evidence was such that no jury with a proper appreciation of their duties could make the finding they did. Further, the fact that the motorman, upon seeing the horse and wagon, took the precaution to “fan” his brakes is not evidence that he was negligent in not anticipating that deceased would cross the tracks in front of the on‑coming street car. The jury’s finding that deceased was not guilty of negligence was perverse.
APPEAL by the plaintiff from the judgment of the Court of Appeal for Ontario, allowing the defendant’s appeal from the judgment of Roach J. upon the verdict of the jury at trial in favour of the plaintiff.
The action was brought to recover damages by reason of the death of the plaintiff’s husband as the result of a collision between a milk-wagon which he was driving and a street car of the defendant at about 8.30 a.m. on January
[Page 290]
28, 1938, at the intersection of Dupont street and St. George street in the city of Toronto. The circumstances of the accident are set out and the evidence thereon discussed in the judgments now reported.
The plaintiff was the administratrix of the deceased’s estate and sued to recover under the Fatal Accidents Act and also, on behalf of deceased’s estate for deceased’s loss of expectation of life, under the Trustee Act.
The case was tried before Roach J. and a special jury. The jury, in answers to questions submitted to them, found that the motorman of the street car was guilty of negligence that caused or contributed to the collision, in that
the evidence indicates that he was conscious of danger when he fanned his brakes and at that time did not bring his car under such control that it could have been stopped, if necessary, in time to have avoided the collision with the milk-wagon.
and that the deceased was not guilty of any negligence that caused or contributed to the collision. They assessed the damages of the plaintiff under the Fatal Accidents Act at $10,000 and under the Trustee Act (for the deceased’s loss of expectation of life) at $5,000. Judgment was given for the plaintiff accordingly.
The defendant appealed to the Court of Appeal for Ontario. That Court allowed the appeal and dismissed the action, holding that there was no reasonable evidence to support the finding against defendant’s motorman, and that it did not constitute a finding of negligence in law, and that all the evidence indicated clearly that the deceased was guilty of negligence which was the proximate and effective cause of the accident.
The plaintiff appealed to this Court.
R. Roy McMurtry and Ernest J.R. Wright for the appellant.
T.N. Phelan K.C. and A.H. Young K.C. for the respondent.
THE CHIEF JUSTICE.—I do not read the jury’s answer to question No. 2 as referring solely to the evidence of the motorman, or as founding the inference that the motorman was “conscious of danger when he fanned his brakes”
[Page 291]
upon the fact that he fanned his brakes alone, or upon the evidence of the motorman alone. I read it as stating an inference from the whole of the evidence.
The motorman says that, seeing the horse emerging into Dupont street, he fanned his brakes and threw off his power, or, as he also puts it, he “immediately checked” his “speed and fanned” his “brakes”.
The jury evidently accepted as a fact that the motorman “fanned his brakes”. I think the fact that he did so in the circumstances mentioned, together with the circumstance that he gave this evidence, was something which the jury might take into account together with all the other facts in evidence in considering the question whether, when his attention was attracted to the horse and wagon, he did in fact become “conscious of danger”. The jury were not bound to accept the motorman’s evidence as a whole, or to reject it as a whole. It was for them to decide whether the “excuse” put forward by him was his real reason for not acting sooner, and if not, what significance was to be ascribed to his asseveration that he had no other “excuse”.
Considering the motorman’s admissions on cross-examination, together with the evidence of Miss McArthur, Mrs. Bateman and Edwards, there was evidence from which they might or might not conclude, according to their view of it, that the motorman realized what the deceased was doing, that is to say, that he was in the act of crossing the street, in time to avoid a collision if he acted with reasonable promptitude.
Edwards’ evidence is most important. He says the horse and wagon crossing Dupont street constituted an obstacle preventing him turning his car from Dupont street into St. George street, but at that time the street car was at such a distance, that it alone would have presented no obstacle to making this turn.
If the jury took the view, which I think they have expressed, that the motorman became aware of what the deceased was doing in time to enable him to bring his car under sufficient control to let the horse and wagon pass, and that his failure to do so was unreasonable and negligent, it was for them to say, on the whole evidence, whether notwithstanding the conduct of the deceased, the motorman’s negligence was the sole cause of the accident and
[Page 292]
whether the deceased should be acquitted of contributory negligence in the legal sense (Calgary v. Harnovis; Long v. Toronto Rly. Co.; Loach’s case; Columbia Bitulithic v. B.C. Electric Rly.; Leech v. Lethbridge; Athonas v. Ottawa Electric Rly. Co.; Nixon v. Ottawa Electric Rly. Co.)
The appeal should be allowed and the judgment at the trial restored with costs throughout.
CROCKET J. (dissenting)—The evidence establishes beyond controversy that the emergency, out of which this tragic accident arose, was created by the negligence of the intestate himself in driving his horse and milk wagon from the south into a through east-west highway without stopping at the street line, when the windows of the wagon were so frosted as to prevent his seeing to the west, and then proceeding blindly to cross the street railway tracks when standing with his right foot on the outside step below the middle right side door and it was impossible for him to see the approaching eastbound tramcar, by which the wagon was hit and overturned.
The crucial issue between the parties as developed on the trial was as to whether, notwithstanding the indisputable negligence on the part of the intestate in entering and proceeding to cross Dupont street as he did, the tramcar motorman by the exercise of due care on his part could have avoided the collision. If he could have prevented it by exercising due care and failed to do so, his negligence in that regard would, of course, be its real and sole cause; otherwise the calamitous result would obviously be attributable only to the negligence of the deceased in creating an unavoidable danger. If the emergency were created by negligence on the part of both the intestate and the motorman and neither by exercising proper care could have avoided the result which followed, it would be a clear case of contributory negligence, and the jury’s duty to apportion the damages under the provisions of the Negligence Act according to the degree of fault attach-
[Page 293]
ing to each. Only a valid unequivocal finding that the motorman, notwithstanding the negligence of the deceased in creating the danger, could by the exercise of due care have avoided colliding with the milk wagon would justify the fixing upon him of the sole responsibility for the unfortunate result.
The substantial question upon which, in my view, the decision of this appeal turns is whether or not such a finding of ultimate negligence against the motorman can in the light of the evidence be fairly and reasonably spelled out of the jury’s answers to the three written questions which the learned trial judge submitted to them after conferring with the opposing counsel. These three questions and the answers thereto were as follows:
1. Was the motorman guilty of any negligence that caused or contributed to the collision? Answer Yes or No.
A. Yes.
2. If so, in what did such negligence consist? Answer fully.
A. The evidence indicates that he was conscious of danger when he fanned his brakes and at that time did not bring his car under such control that it could have been stopped, if necessary, in time to have avoided the collision with the milk wagon.
3. Was the deceased Allen Sershall guilty of any negligence that caused or contributed to the collision? Answer Yes or No.
A. No.
The important answer is the one to question 2, by which the jury purported to state what the particular negligence on the part of the motorman was that caused or contributed to the collision.
As knowledge of the motorman’s own account of what transpired in relation to the operation of the tramcar and the movement of the horse and wagon immediately preceding the collision is so obviously essential in order to fully understand the import of this answer, I think the material features of his evidence should first be stated.
The tramcar had made its last stop at Huron street, which, according to the scale of the streets plan in evidence, is about 270 feet west of St. George street, measuring from curb to curb. The motorman says that when he left Huron street he went gradually from zero to about 18 to 20 miles per hour and attained his greatest speed (18 to 20 miles) when he was about half way to St. George street. When the front of the tramcar was 2½ to 3 car lengths, roughly speaking, from the west sidewalk
[Page 294]
of St. George street (which would be from 112½ to 135 feet), he first observed the horse and wagon on St. George street. The horse was then walking north on that street about 4 feet south of the south sidewalk of Dupont street, a shade to the east, as far as he could see, from the centre of St. George street. When he saw the horse approaching the Dupont street line he threw off his controller, i.e., shut off the power, “started to brake (his) car up to check (his) speed”—fan his brakes, as he explained, and after slackening the car down sounded the gong. He estimated that immediately after shutting off the power and fanning the brakes his speed had been reduced to about 12 to 15 miles per hour. By this time, he said, the tram was about 1½ car lengths from the west side of St. George street, (67½ feet), as near as he could give it, not professing to state it exactly but only as his best judgment. At that moment the horse and wagon were coming up to the sidewalk (Dupont street), the horse’s head being about the north edge of the Dupont street southerly sidewalk. There, he said, the horse started to turn east (on Dupont street) and proceeded in that direction until its head was jerked to the left by someone pulling the reins, when it “pulled on the load and came across the track at a trot in a northwesterly direction.” The horse’s head when it was jerked and it started to trot, he estimated, was about 3 or 4 feet clear of the southerly rail of the street car track, which the plan shows is about 11½ feet from the southerly curb at Dupont street. It seems to have been taken for granted by all that the length of the horse would be about 8 feet. At that moment, he testified, he was about a car length (practically 45 feet) from the path of the horse. Up to that moment, he swore, he had no indication whatever that the horse might cross the track. He immediately slapped the emergency on as fast as he humanly could and held it right over. While the car was slowing down the horse was coming across the track in a northwesterly direction at an angle in front of him and he said it was impossible for him to stop the car before he reached the path where the horse and wagon were crossing the track but that the car moved only about 1 or 2 feet after the impact, which took place between the front and rear wheels of the wagon, he thought about the middle of the wagon step.
[Page 295]
In cross-examination he was asked if it was not a fact that the only reason he had for not stopping sooner than he did was that the horse first turned to the east at the point where it did and answered that he had no other excuse. To a further question as to whether when he fanned his brakes he put a little pressure on the brake valve and dropped a little sand he answered “No.” Asked if he could tell what his speed was when the car passed the west curb of St. George street or was approaching the west curb approximately, he said he could give a rough idea and imagined it was going about 4 miles per hour.
There seems to be no doubt that the collision occurred at or a little beyond the prolongation of the centre line of St. George street, which, according to the plan, measures 34 feet 6 inches.
It should be particularly noted that, according to the motorman’s evidence, when he fanned his brakes he was about 2½ to 3 car lengths or from 112½ to 135 feet west of the west sidewalk of St. George street and that when he applied the emergency brake he was about a car length or 45 feet from the path of the horse, which at that moment, when its head was jerked and it started to trot to cross the track, was about 3 or 4 feet clear of the southerly rail.
Reverting now to the jury’s answer to question 2, it is manifest in the first place that it involves the acceptance of the motorman’s evidence regarding the fanning of his brakes when he first observed the horse walking north on St. George street about 4 feet south of the south line of Dupont street. It implies also, to my mind, that the mere fact that he fanned his brakes at that time established that he must have then become conscious of some danger, which made it his immediate duty to bring his car under such control that it could be stopped in time to avoid a collision in case he should find that the driver of the horse and milk wagon was actually going to take the risk of crossing the street car track in front of him. Indeed, the whole finding, it seems to me, is founded upon that assumption and would, if there were no other objection to it, be invalid as consonant with neither legal principles nor common sense.
Surely it cannot reasonably be assumed that at any time a motorman driving a tramcar along a through high-
[Page 296]
way in such a city as Toronto sees from a distance of 112 to 135 feet a vehicle approaching the street line, he must take it for granted that the vehicle is actually going to cross the tram line without stopping, and at once bring his car under such control that it could be instantly stopped if this should actually turn out to be the case. If this finding, so obviously based upon that assumption, is to be recognized as a valid finding of negligence, it is difficult to see how the ever-increasing public demand for rapid transit in our larger cities can be satisfactorily met by street car systems at all. In any such case there is surely more likelihood of the vehicle turning right than there is of its entering the through street in flagrant violation of both the city by-law and the provincial Highway Traffic Act and proceeding without stopping at all directly across the tram car line regardless of the latter’s dominant right of way.
In the case at bar the motorman swore that when the horse reached the southerly line of Dupont street it started to go round the corner to the right when it was suddenly jerked to the left by a pull of the reins and instantly was within about 3 or 4 feet of the southerly rail. Then and then only, according to his evidence, was it that he realized that the horse and wagon were going improperly to cross the track and it was at that moment that he applied the emergency brake.
The answer to question 2 which, as I have said, indicates an acceptance of the motorman’s evidence as to the fanning of his brakes, cannot, in my opinion, having regard to the entire testimony, fairly be taken as involving a rejection of the motorman’s statement that the horse on reaching the corner of the curb started turning east. In this connection a witness for the plaintiff, Lloyd, another milk delivery driver of the same company, disclosed in cross‑examination that the deceased sometimes in the course of his morning rounds had coffee with him at a restaurant on the south side of Dupont street about 150 to 200 feet east of St. George street and that usually when they came to the restaurant for coffee they left their horses around the corner on Davenport street, 25 or 30 feet away, where they were given something to eat. When asked, however, if this occurred more or less regularly, he replied, “Not regularly, no.” It is difficult to conceive what stronger
[Page 297]
confirmation there could be of the motorman’s statement about the horse starting to turn east or how a jury, conscious of its duty to find a true verdict according to the evidence, could ignore this significant fact, disclosed by one of the plaintiff’s own witnesses, and reject the positive statement of the motorman merely because the only other witness, who was specifically asked about it (Miss Rumsey, a passenger on the street car), said she did not notice the horse starting to turn east, though she did see the reins jerked and the horse hurried across the track. To anyone at all familiar with the peculiarly knowledgeable habits of horses constantly employed on regular delivery routes the fact disclosed by Lloyd would, I should think, commend itself as almost infallible proof of the horse’s tendency and desire to turn east at this particular corner towards the restaurant and the place where it was frequently provided with food. I am not disposed, therefore, to read into this dubious answer, which the jury made to question 2, a rejection of the motorman’s evidence that he saw the horse starting to turn east—a fact which would surely seem to afford a much more convincing explanation of the real danger with which the motorman was confronted when he so suddenly and alertly applied his emergency brake than the highly improbable hypothesis that it was apparent to him even before the horse entered Dupont street that its driver was going to pay no attention either to the city by-law or the provincial statute or to the tramcar’s undoubted right of way and take the risk of crossing ahead of him.
The answer not only contradicts the assumption, upon which it is so obviously based, but it is, in my opinion, manifestly inconsistent in itself. While it plainly implies that the actual cause of the collision was the motorman’s inability to stop his car in time to avoid hitting the milk wagon, the only negligence it finds against him in that connection is that “when he fanned his brakes” he did not then “bring his car under such control that it could have been stopped, if necessary, in time to have avoided the collision.” If this means anything it means that the necessity of the motorman’s having to stop his car at all was not apparent when he fanned his brakes and did not become apparent until it was too late to avoid the collision. That surely is not a valid finding of negligence against
[Page 298]
the motorman either causing or contributing to the collision. No doubt if the motorman had disabled himself by a prior negligent act or omission from stopping his car by the use of his emergency brake his antecedent negligence might well be linked with his inability to thus stop the car as the proximate cause of the collision. But how could he reasonably be said to be guilty of any negligence at all when he fanned his brakes after shutting off his power and reduced his admittedly moderate speed of 18 to 20 miles per hour to 12 or 15 miles per hour if at that time there was no reason for him to anticipate that the use of the emergency brake to avoid a collision would be necessary at all? The “danger” of which the jury found him to be conscious at that time, was quite apparently the mere possibility that the milk delivery driver might venture across the street and the railway line ahead of the approaching tramcar in defiance of the provisions of the city by-law and the provincial statute and the tramcar’s right of way. The real danger with which the motorman was confronted when he applied the emergency brake was the eventual occurrence of this extraordinary and naturally unexpected and remote contingency. It was then impossible for him to avoid the collision, as the finding of the jury so clearly implies.
For the reasons which already, I think, sufficiently appear, I have concluded that the answer to question 3, by which the jury completely exonerated the intestate from all blame for the collision, is wholly unjustified. I agree with the appeal court that the finding must in the circumstances be considered perverse.
The only verdict reasonably possible upon the undisputed facts disclosed in the evidence and upon those portions of the motorman’s own testimony, which the jury must upon a fair interpretation of their answer to question 2 be taken to have accepted, was that the motorman could not by the exercise of reasonable care and skill have avoided the unfortunate result, which followed the deceased’s unquestionable negligence in entering and blindly crossing a through highway without stopping, and that the collision therefore was caused solely by the deceased’s own fault.
I would dismiss the appeal with costs if demanded.
[Page 299]
DAVIS J.—This was a case of a collision between a street car and a horse-driven milk wagon at the corner of Dupont and St. George streets in the City of Toronto. The driver of the milk wagon was killed and this action was brought by his widow as administratrix against the Toronto Transportation Commission for damages, alleging negligence in the operation of the street car which was owned and operated by the Commission. The plaintiff claimed damages under The Fatal Accidents Act on behalf of dependents and also damages under The Trustee Act on behalf of the deceased’s estate for loss of expectation of life.
The case was essentially one of fact. It was tried with a special jury in Toronto. The jury not only heard a great deal of testimony from eye-witnesses, but they visited the locus and went to the street car barns and inspected and examined the street car in question, and they also inspected and examined the particular milk wagon. This was done, not only in the presence of the solicitors for both parties, but apparently with their full support. Each, no doubt, expected to gain by this procedure and in fact they raise no complaint now. I should not care to be taken, however, as approving the practice of a jury of twelve spending, as we were told by counsel during the argument, most of a morning during the course of a trial visiting different places and making inspections and examinations of their own. They are very apt to become separated in little groups and to discuss different angles of the case among themselves in groups. I cannot see any real difference between such a practice in a civil from that of a criminal case, and would refer to the observations in the Privy Council in a judgment delivered recently by Lord Roche in the criminal case of Seneviratne v. The King. It was there said, at p. 51, that it is clear that precautions must be taken to secure that everything done upon such a view being had must be absolutely fair and impartial, and that no questions must be asked and answered in the absence of the other party, and that the jury must, as far as possible, be kept together and not be given the opportunity of discussing the matter in groups or making separate experiments in the matter of
[Page 300]
sounds, etc. I merely refer to this aspect of the trial of the present case so that it may not be taken that I approve of the practice adopted. But it was adopted; it is not suggested that it was not at the request of both parties. At any rate, it was not made the ground of any objection.
The jury found that the operator of the street car was solely to blame. The Court of Appeal set aside the judgment entered upon the verdict on the ground that, in their opinion, there was no reasonable evidence to support the finding against the defendant’s motorman and that it does not constitute a finding of negligence in law and that all the evidence indicates clearly that the deceased was guilty of negligence which was the proximate and effective cause of the unfortunate casualty which resulted in his death. From that judgment appeal has been taken to this Court.
It is not permissible for us to analyze all the conflicting evidence in the case in an endeavour to come to our own conclusions on the facts. It is not our duty or our right to re-try the case; the special jury was in this case the tribunal of fact. We have only to ask ourselves whether or not the jury, acting reasonably and justly, could have reached the conclusion they did upon the evidence.
I am satisfied that if the jury accepted, as I think they must have accepted, the evidence of Miss McArthur and others who corroborated her on vital points, they could very fairly and reasonably have arrived at the conclusion they did. While there is a great deal of conflicting evidence, there was evidence upon which the jury was entitled to conclude, as they did, that the direct cause of the death of the driver of the milk wagon was not any act of negligence on his part but the failure of the operator of the street car—seeing the horse and wagon in the path of his car—to reduce the speed of the car at a time and to such an extent that the collision would have been avoided.
Miss McArthur was a passenger in the street car and had a full view of the situation which confronted the motorman. She was sitting very near the vestibule of the car and was looking out the front windows of the car.
[Page 301]
She appears to have seen everything that the motorman himself saw or ought to have seen. The accident happened about eight-thirty o’clock in the morning. Miss McArthur was on her way to her work. She was a graduate of the University of Toronto and had taken a teachers’ course at the Ontario College of Education but was at the time secretary to Mr. R.S. Robertson, K.C. (now the Chief Justice of Ontario). She was a well-educated, intelligent young woman, and one can quite understand any jury accepting her story as perhaps more exact than that of some other witnesses.
It was cold—zero weather; the street car was travelling easterly on Dupont street (on the southerly tracks); the horse and wagon had entered Dupont street from St. George street on the south; milk had been delivered at the house on the southeast corner of Dupont and St. George streets. When Miss McArthur first saw the horse and wagon they were “just entering Dupont street” from St. George. The horse was out on Dupont street; she did not think it had then reached the car tracks but was only a few feet from them. The driver of the milk wagon, she says, was evidently in the act of making a left-hand turn. The horse and wagon was the only object moving in or about the intersection. The glass windows in the milk wagon were completely frosted and closed. There was nothing to obstruct in any way the view of the motorman. The front of the street car was then, Miss McArthur says, half-way between Huron and St. George streets. The motorman said that as near as he could describe it, when he first observed the horse and wagon the front of his car was two and a half to three car lengths from the west sidewalk of St. George street. Miss McArthur says the motorman did not slow down—there was no perceptible diminution of speed. “We came very close to the wagon and the wagon seemed to clear—the instant before we hit, he (the motorman) jammed on his brakes very suddenly. I would say that with a fraction of a second more, we would have cleared the milk wagon.” Miss McArthur says that she could see it (i.e., the horse and wagon) herself “for some time before we hit it.” She says the motorman “finally” acted quickly, but “he didn’t act soon enough. * * * He jammed on his brakes very quickly.” She did not hear any gong sounded.
[Page 302]
The effect of the evidence of Miss McArthur is that the motorman had a full view of the horse and wagon in a position of danger and did not slow down his speed until it was too late.
Mr. Geoffrey Edwards, a partner in the firm of Edwards, Morgan & Co., of Toronto, Chartered Accountants, was motoring down town on the morning of the accident; he had come down Poplar Plains road from St. Clair avenue and had turned west on to Dupont street in order to proceed down town via St. George street. St. George street does not extend north beyond Dupont street. He had only a short block to go on Dupont street from Poplar Plains road before he could turn down St. George street. On Dupont street he was travelling in the opposite direction to that of the street car, and therefore had a view of the accident from a position opposite to that of Miss McArthur in the street car. He said that after he had gone along Dupont street “a few feet, not very far along,” he saw the street car “down in the distance, some distance down the track, and I saw a milk cart either entering or about to enter the intersection of St. George and Dupont streets.” He proceeded along Dupont street a little farther west and then stopped on the northerly pair of street car rails. He stopped his car, he says, “about fifty odd feet from where the accident happened.” He observed at that time that “the street car was coming towards me and the milk wagon was crossing from St. George street, making a curve to the left, apparently to go west on Dupont street.” The milk wagon, he says, was “almost clear of the north rail” (obviously he means of the two southerly rails on which the street car was travelling easterly) “when the street car struck it.” He was asked in cross-examination:
Q. When you arrived at the east side of St. George street, the street car was so near the intersection that you didn’t consider it prudent to try to pass in front of it?
And his answer was:
A. As a matter of fact, my reaction was that the milk wagon was the chief obstacle in the way of my getting around. * * * Had it not been for the milk wagon I could have made my turn. It might have been running it slightly close with the street car, but I couldn’t say.
Having seen the street car, as he said, “down in the distance” and that the milk wagon was the chief obstacle
[Page 303]
which made him stop his car before turning into St. George street, the plain inference was open to the jury that there was a considerable distance at that time separating the milk wagon from the approaching street car.
Miss Rumsey, who was the only eye-witness of the accident except the motorman called by the respondent, was a passenger in the street car. She was sitting on one of the cross seats which are some distance back from the vestibule of the car. She says that, judging from the speed of the street car, she would expect it “could stop pretty quickly.” Having seen the horse and wagon, she said she “looked to see what the motorman was doing.”
Q. And when did you look to see what the motorman was doing?
A. Well, when I realized that the horse was going to keep on coming through.
Q. You realized that the horse was going to keep on coming through and you wanted to see what the motorman was going to do?
A. Yes.
As to the motorman’s statement that he thought that the horse and wagon were going to turn east on Dupont street rather than attempt to cross, she was asked this question:
Was there any indication of any kind to you that it was going to turn east, from your observation?
To which she answered:
I didn’t think so. I thought it was coming straight on through.
The evidence of the motorman was that he “fanned the brakes” at a point when the street car was about one and a half car lengths from the west side of St. George street, “as near as I could give it. I am not stating it exactly.”
In the case of The Eurymedon, Lord Justice Greer laid down several rules at pp. 49-50. It is sufficient if I quote two of these rules. The first is this:
(i) If, as I think was the case in Davies v. Mann, one of the parties in a common law action actually knows from observation the negligence of the other party, he is solely responsible if he fails to exercise reasonable care towards the negligent plaintiff.
And the second rule is this:
(ii) Rule No. (i) also applies where one party is not in fact aware of the other party’s negligence if he could by reasonable care have become aware of it, and could by exercising reasonable care have avoided causing damage to the other negligent party.
[Page 304]
After some discussion with counsel at the conclusion of his charge, the trial judge recalled the jury and explained to them contributory negligence at some length. No objection was taken by counsel for the respondent to what was then said by the learned judge. In part he said:
In other words, negligence that has no relation to, or was not a factor contributing to, the collision simply has no place in our consideration. The negligence that you may find must be negligence that caused or contributed to the collision.
The jury found that the motorman was guilty of negligence that caused the collision:—
The evidence indicates that he was conscious of danger when he fanned his brakes and at that time did not bring his car under such control that it could have been stopped, if necessary, in time to have avoided the collision with the milk wagon.
The jury also found specifically that the deceased driver of the milk wagon was not guilty of any negligence that caused or contributed to the collision. They might have found the deceased driver of the milk wagon guilty of contributory negligence, but that was for them to say. They might have taken what may appear to others to be a broad common-sense view of the case that both parties contributed to the result; but that is not to say that they were not entitled to regard the two negligences as successive rather than simultaneous. They were carefully and fully directed upon that aspect of the case. Although lack of care on the part of the deceased driver of the milk wagon was closely relevant to the inquiry, the vital question was: Whose negligence was the direct cause of the collision? And the special jury were the tribunal of fact.
The verdict of a jury should not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it. The jury in this case were entitled on the evidence to find as they did that the defendant was solely to blame.
Counsel for the respondent contended that in assessing the damages under the Trustee Act and the Fatal Accidents Act, the effect of the jury’s verdict is to allow the plaintiff a duplication of damages. Mr. Justice Gillanders pointed out in his judgment in the Court of Appeal that
[Page 305]
the learned trial judge had charged the jury that there must be no overlapping of damages, and after illustrating to the jury how that might come about he had pointed out to them that in determining the plaintiff’s loss under the Fatal Accidents Act they must take into consideration the benefits that would accrue to her under the Trustee Act, and consequently, the jury having been specifically instructed to avoid duplication, the assessment of damages was not open to attack on that ground.
The accident had occurred and the action had been commenced before sec. 3 of The Trustee Amendment Act, 1938, 2 Geo. VI, ch. 44, had been enacted on April 8th, 1938. That amendment to subsec. (1) of sec. 37 of the Trustee Act, R.S.O., 1937, ch. 165, provided
that if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso shall not be in derogation of any rights conferred by The Fatal Accidents Act.
Counsel for the respondent further contended that there had been an election by the plaintiff to take compensation under the Workmen’s Compensation Act and that the learned trial judge erred in refusing to admit further evidence in that regard. The point was carefully considered in the Court of Appeal and that Court agreed with the trial judge that the evidence did not establish that the plaintiff had made any election as contemplated by the Act, and with that I entirely agree.
I would allow the appeal and restore the judgment at the trial, with costs to the appellant throughout.
KERWIN J. (dissenting)—The Court of Appeal for Ontario allowed an appeal by the defendant, the Toronto Transportation Commission, from the judgment of Roach J. entered against the Commission upon the verdict of a special jury, and dismissed the action. The basis of the judgment of the Court of Appeal, as expressed by Mr. Justice Gillanders, is that there was no reasonable evidence to support the finding of the jury against the Commission’s motorman. The plaintiff now appeals.
In answer to question No. 2, the jury found that the respondent’s motorman was guilty of negligence, which they explained as follows:—
The evidence indicates that he was conscious of danger when he fanned his brakes and at that time did not bring his car under such control that it could have been stopped, if necessary, in time to have avoided the collision with the milk wagon.
[Page 306]
Each case must be determined upon its own circumstances, and without detailing the evidence, I am of opinion that it is such that no twelve men with a proper appreciation of their obligations and duties could make the finding set out above. Furthermore, in my opinion the fact that the motorman, upon seeing the horse and wagon, took the precaution to “fan” his brakes is not evidence that he was negligent in not anticipating that the deceased would drive across the south part of Dupont street and into the path of the oncoming street car. The finding of the jury that the deceased was not guilty of contributory negligence is in itself perverse and confirms my view that the answer to the second question is such that no jury doing their duty could have returned.
I would dismiss the appeal with costs, if demanded.
HUDSON J.—This action was tried before Mr. Justice Roach and a jury. On application of the defendants the jury was a “special jury” and to this extent the defendants chose their own forum. The evidence was very lengthy and contradictory. From the record it appears that the jurors displayed a keen and intelligent interest in the facts and in the law applicable thereto. They also examined the situs and the vehicles concerned in the accident. After a charge to the jury to which no exception is taken by the defendants, they brought in a verdict that the defendant’s motorman was guilty of negligence, that caused or contributed to the collision. The answers of the jury were as follows:
1. Was the motorman guilty of any negligence that caused or contributed to the collision? Answer Yes or No.
A. Yes.
2. If so, in what did such negligence consist? Answer fully.
A. The evidence indicates that he was conscious of danger when he fanned his brakes and at that time did not bring his car under such control that it could have been stopped, if necessary, in time to have avoided the collision with the milk wagon.
3. Was the deceased Allen Sershall guilty of any negligence that caused or contributed to the collision? Answer Yes or No.
A. No.
On this finding a judgment was entered against the defendants for $15,000 damages. This verdict was set aside by the Court of Appeal.
The duty of a court of appeal when asked to reverse the decision of a trial tribunal has been the subject of
[Page 307]
much discussion in the courts during recent years but, at the risk of repetition, I will quote two statements which, although given in appeals from a trial judge, apply with even greater force to an appeal where the tribunal of fact, as here, was a special jury.
In Clarke v. Edinburgh and District Tramways Co., Lord Shaw of Dunfermline said:
When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the Judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I—who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case—in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.
The present is a street accident case without any undue complications, and I do not see any reason for departing from this ordinary, simple, salutary rule. In the judgments of the Court below I have some doubt whether sufficient stock has been taken of this doctrine, or whether sufficient deference has been paid to the judgment of the learned Lord Ordinary.
and Lord Macmillan in the case of Powell v. Streatham, himself quoting Lord Loreburn, Lord Chancellor, in Kinloch v. Young, stated:
But this House and other Courts of appeal have always to remember that the Judge of first instance has had the opportunity of watching the demeanour of witnesses—that he observes, as we cannot observe, the drift and conduct of the case; and also that he has impressed upon him by hearing every word the scope and nature of the evidence in a way that is denied to any Court of appeal. Even the most minute study by a Court of appeal fails to produce the same vivid appreciation of what the witnesses say or what they omit to say.
[Page 308]
In the present case the Court of Appeal for Ontario, after reviewing the evidence, came to the conclusion that the verdict of the jury was clearly wrong. With respect, I cannot agree with their view. It seems to me that there was evidence on the record, if taken together with what may well have been unspoken impressions properly influencing their minds and taking into account the special qualifications of the jurors here, they could reasonably come to the conclusion at which they arrived. I do not feel that I would be justified in approving of a reversal of their finding and would, therefore, set aside the judgment in appeal and restore the judgment in the court below, with costs throughout.
Appeal allowed with costs.
Solicitors for the appellant: Chitty, McMurtry, Ganong & Wright.
Solicitor for the respondent: Irving S. Fairty.
Email this Content