Dugas et al. v. Chevrier, [1972] SCR 285

Supreme Court of Canada

Dugas et al. v. Chevrier, [1972] S.C.R. 285

Date: 1971-06-28

Regent Dugas and General Waste and Wares Ltd. (Defendants) Appellants;

and

Yolande Chevrier (Plaintiff) Respondent.

1971: February 4, 5; 1971: June 28.

Present: Fauteux C.J. and Abbott, Martland, Hall and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Motor vehicle—Truck struck in the rear by automobile—Equal share of responsibility—Damages—Civil Code, art. 1056.

A convertible driven by the plaintiff’s husband struck the rear of a truck owned by the appellant company and driven by its employee. The truck was loaded with rolls of paper weighing 800 to 1,200 lbs. each, and most of its rear lights seemed to have been inoperative. Prior to the accident, the driver of the truck had been driving in the left-hand lane of the road usually reserved for faster moving traffic, and had stopped for a red traffic light. Almost immediately after starting up again, the truck was struck in the rear by the automobile. As a result of the collision, several rolls of paper were thrown from the truck crushing the convertible and killing its driver, the plaintiff’s husband. The trial judge found that the driver of the automobile had been imprudent, that the lack of rear lights on the truck had contributed to the accident, that the fact that the rolls of paper fell could not be considered as an additional fault, and concluded that there had been common responsibility. He fixed the damages at $66,358. This judgment was affirmed by the Court of Appeal. The defendants appealed to this Court.

Held: The appeal should be dismissed.

The findings of the trial judge, unanimously affirmed by the Court of Appeal, should not be disturbed. The proper test was clearly adopted in reviewing them, and the appellants have failed to show that it was misapplied.

APPEAL from the judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming a judgment of Legault J. Appeal dismissed.

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André Savoie, Q.C., for the defendants, appellants.

Pierre St-Pierre, for the plaintiff, respondent.

The judgment of the Court was delivered by

ABBOTT J.—Respondent sued under art. 1056 of the Civil Code claiming damages suffered as a result of the death of her husband in a rear-end collision between his automobile and a truck owned by the appellant company, and driven by its employee Dugas while in the performance of his duties.

The facts are fully set out in the judgments below. Shortly stated, they are as follows. The accident occurred at about 7:30 p.m. on October 28, 1964. Both vehicles were proceeding from east to west on Sherbrooke Street, in Pointe-aux-Trembles near the intersection of 32nd street. The road was properly illuminated and the visibility, while not excellent, was such as to permit safe driving at 45 miles per hour, according to one of the investigating police officers. Dugas was driving a 1956 model truck in an indifferent state of repair. In particular, most of the rear lights seem to have been inoperative. The truck was loaded with eight rolls of paper weighing 800 to 1,200 pounds each. Prior to the accident, Dugas had been driving at about 25 miles per hour, in the left hand lane of the road usually reserved for faster moving traffic, and had stopped on the red traffic light at the intersection of 32nd Street. Almost immediately after starting up again, his truck was struck in the rear by the Pontiac convertible owned and driven by the deceased Yvon Laurin. As a result of the collision, several rolls of paper were thrown from the truck crushing the Pontiac convertible and killing its driver.

After a careful review of the evidence, the learned trial judge made the following findings as to responsibility:

[TRANSLATION] The said Yvon Laurin had had some beer before the accident, perhaps not in sufficient quantity for him to be in an intoxicated condition, but, according to the witness Pierre Gelly, the son of a close friend of the victim, he was “a bit high and had taken a drink some 10-20 minutes before the accident occurred.” This witness

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subsequently sought to backtrack and say that he had only detected the presence of alcohol from the victim’s breath. The witness stated that he had known the victim since childhood, and that the latter was a close friend of his father. It is difficult to ignore his first spontaneous remark. Even in small quantity, alcohol often makes a driver more venturesome.

The Court is forced to conclude that, for the victim not to have seen the truck, when others saw it, he cannot have had his vehicle under proper control, sufficient to avoid traffic hazards, and was not paying attention to the road in front of him, or even that he was driving his vehicle at a greater speed than would allow him to stop within the distance of his headlight beams. The argument of reduced visibility put forward by the plaintiff applies equally against the late Yvon Laurin in the operation of his automobile.

A share of the responsibility for the said accident must therefore be attributed to the victim. Imprudence by the victim, which his death makes it impossible to establish with accuracy, undoubtedly contributed to the accident, and it is only fair that he should be made to bear his share of the responsibility.

In view of the statements made by all witnesses heard it is difficult to distribute and set the exact proportion of the respective responsibility of the parties concerned, and the Court cannot accept that the lighting at the scene of the accident and the fact that other vehicles had passed the truck in question even without its rear lights, without incident, can create a greater share of responsibility in defendants than in the late Yvon Laurin. Only the importance of a red rear light, at night, leads the undersigned to assign an equal share of responsibility to the defendants in their respective capacities.

The additional fault which plaintiff seeks to impute to defendants, from the fact that the rolls fell onto the victim, cannot be so considered.

The evidence indicated that the said rolls were tied and secured according to normal practice and with the usual precautions, and it would be impossible to require a truck driver to secure his load in such a way that it could resist the impact of a vehicle moving at a speed of at least 60 miles an hour. As was established by a competent eye-witness, the loading was carried out according to the standards followed in such cases.

The impact must have been of the most violent kind, to cause a heavily laden truck, moving at low

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speed, to swerve to the left and run for 82 feet, and even then the truck’s movement was suddenly interrupted by a 3-foot ditch which stopped its front wheels.

For these various reasons, the Court thus finds there is common responsibility between the late Yvon Laurin and the defendants in their respective capacities.

At the hearing before us, after hearing counsel for appellants, the counsel for respondent was advised that we did not need to hear him on the question of responsibility.

The trial judge fixed the damages at $66,358 and condemned the appellants jointly and severally to pay to respondent $33,179 with interest and costs.

These finding were unanimously affirmed by the Court of Appeal and they should not be disturbed. The proper test was clearly adopted in reviewing them and the appellants have failed to show that it was misapplied.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the defendants, appellants: Lacoste, Savoie, Joncas & Smith, Montreal.

Solicitor for the plaintiff, respondent: P. St. Pierre, Montreal.