McConkey v. Thorn, [1972] SCR 61

Supreme Court of Canada

McConkey v. Thorn, [1972] S.C.R. 61

Date: 1971-05-31

Cora Cecilia McConkey in her capacity as personal representative of the Estate of William McConkey, deceased (Plaintiff) Appellant;

and

Walter Thorn (Defendant) Respondent;

and

Daniel Sorensen and Simon Sorensen (Third Parties).

1971: March 31; 1971: May 31.

Present: Judson, Ritchie, Hall, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Motor vehicles—Negligence—Collision at intersection of highway and stop street—Failure of motorist entering from stop street to yield right of

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way—Motorist on highway travelling at excessive speed—Degrees of fault—The Highway Traffic Act, R.S.O. 1960, c. 172, s. 64.

An appeal from the dismissal at trial of an action by the appellant’s husband against the respondent was dismissed by the Court of Appeal. The husband died after an appeal had been taken to this Court but before the appeal was heard. The appellant was added as plaintiff in the action in substitution for the said deceased.

The action arose out of a collision between an automobile being driven by the deceased and the respondent’s tractor-trailer at an intersection of a paved through highway and a stop street. The deceased was driving south on the highway and the respondent was driving east on the side street, intending to cross the highway and proceed eastward. The two vehicles came into collision west of the centre of the highway.

The trial judge, although dismissing the action, assessed the deceased’s damages in the sum of $19,810.60.

Held: The appeal should be allowed.

In the circumstances as given in evidence and having regard to the duty cast upon the respondent by s. 64 of The Highway Traffic Act, R.S.O. 1960, c. 172, i.e., to yield the right of way to traffic in the intersection or approaching the intersection, and having so yielded the right of way to proceed with caution, the respondent was principally at fault. The deceased had the right of way and he was entitled to assume that traffic entering from his right would do so in accordance with s. 64 of The Highway Traffic Act. That did not, of course, entitle him to travel at the speed at which he was going on the morning in question when the pavement was wet and when there were patches of fog which reduced visibility. He was partly at fault and the degrees of fault should be assessed at 75 per cent against the respondent and 25 per cent against the deceased.

The deceased suffered head injuries which the trial judge found seriously impaired both his physical and mental health and he awarded general damages in the sum of $15,000 and special damages of $4,810.60 for a total of $19,810.60. The evidence supported an award of this amount and the appellant should accordingly have judgment for $14,857.95.

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APPEAL from a judgment of the Court of Appeal for Ontario, dismissing an appeal from a judgment of Moorhouse J. Appeal allowed.

D.K. Laidlaw, Q.C., and L.S. Evans, Q.C., for the plaintiff, appellant.

V.K. McEwan, for the defendant, respondent.

The judgment of Judson, Hall, Spence and Laskin JJ. was delivered by

HALL J.—This is an appeal from the dismissal by the Court of Appeal for Ontario of an appeal by one William McConkey, now deceased, from the dismissal of his action against the respondent by Moorhouse J. William McConkey died after an appeal had been taken to this Court but before the appeal was heard. On March 30, 1971, Lieff J. made an order that Cora Cecilia McConkey, personal representative of the Estate of William McConkey, deceased, be added as plaintiff in the action in substitution for the said deceased, and following that order a suggestion was filed in this Court as follows:

Take notice that the named appellant William McConkey has died and that the legal representative of the deceased is his widow Cora Cecilia McConkey and that these proceedings are being continued at the suit of such legal representative of the deceased appellant.

The action arose out of a collision between an automobile being driven by the deceased and the respondent’s tractor-trailer at the intersection of Highway No. 48 and Bloomington Road in the County of York. Highway 48 is a paved through street, the pavement portion being 24 feet in width. Bloomington is a side street with gravel surface. Traffic entering or crossing Highway 48 from Bloomington is required to stop. Bloomington entered Highway 48 from the west at a point somewhat south of its continuation from Highway 48 so that the north shoulder west of the highway is approximately opposite the centre of the continuation of Bloomington east of 48. The speed limit on Highway 48 was 60 m.p.h. and on Bloomington 50 m.p.h.

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At or about 7:30 a.m. on April 21, 1965, the deceased was driving his automobile south on Highway 48. At approximately the same time the respondent was driving his tractor-trailer east on Bloomington, intending to cross the highway and proceed eastward. The weather that morning was cloudy with poor visibility due to fog and variously described as “very foggy” or “patchy” and thicker in low areas such as in the area of the intersection in question. A police constable who arrived on the scene very soon after the impact testified that visibility at that time in that area was limited to about 200 feet. The pavement was wet in the vicinity of the intersection.

The two vehicles came into collision west of the centre of Highway 48. The front of the McConkey vehicle struck the left front corner of the tractor-trailer. Some seconds later an automobile owned by Simon Sorensen and being driven by Daniel Sorensen struck the McConkey vehicle in the rear where it had come to rest in the intersection. On being sued, the respondent took third party proceedings against Daniel and Simon Sorensen claiming contribution and relief over against these parties for all moneys and costs that the respondent might have to pay to William McConkey. Moorhouse J. held that the injuries sustained by McConkey were caused by the first collision and dismissed the third party proceedings.

The plaintiff elected to have his action tried by a judge and jury, and when the case came on for trial the jury was selected and the case proceeded to trial before Mr. Justice Moorhouse and a jury on March 16, 1967.

At the conclusion of the case for the plaintiff and before calling any evidence, counsel for the respondent moved the Court to take the case away from the jury and to dismiss the action on the ground that no case had been made out as against the respondent and counsel submitted that there was no evidence whatever to support McConkey’s claim. Following a discussion dealing with whether a prima facie case had been made out and as to the third party proceedings

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which had been taken by the respondent, Moorhouse J. on his own initiative raised the question of taking the case away from the jury and proceeding without a jury, and after hearing counsel for the respondent His Lordship decided and declared that he would strike out the jury and proceed to complete the trial without a jury.

In this appeal the appellant submitted that the withdrawal of the case from the jury was an error and that McConkey was deprived of his lawful right to have the question of liability determined by the jury and his damages assessed by the jury.

Having regard to the conclusion at which I have arrived on the question of liability, it is not necessary to decide this appeal on the question of whether or not Moorhouse J. was right in withdrawing the case from the jury, but having regard to the reasons given by the learned trial judge and the discussion which took place between him and counsel for the parties, I must say that the record does not indicate any valid reason for the withdrawal of the case from the jury.

I intend, accordingly, to dispose of the appeal on the basis of the evidence that was before Moorhouse J. McConkey is dead and a new trial in the circumstances would not appear to be desirable. Moorhouse J., although dismissing the action, assessed McConkey’s damages in the sum of $19,810.60.

The intersection in question is one to which s. 64 of The Highway Traffic Act, R.S.O. 1960, c. 172, applies. That section reads:

64. The driver or operator of a vehicle or car of an electric railway,

(a) upon approaching a stop sign at an intersection, shall bring the vehicle or car to a full stop at a clearly marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection; and

(b) upon entering the intersection, shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that it constitutes an immediate hazard and having so yielded the right of way may proceed with caution and the traffic approaching the

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intersection on another highway shall yield the right of way to the vehicle so proceeding in the intersection.

Respondent comes squarely within subs. (b) of s. 64 and, accordingly, he was required to yield the right of way to traffic in the intersection or approaching the intersection, and having so yielded the right of way to proceed with caution. Respondent’s evidence was to the effect that he had stopped at the stop sign, the front of his tractor-trailer being 10 to 12 feet from the west edge of the Highway 48 pavement. He said he looked north and south, and seeing nothing moved forward in low gear and at that point saw the McConkey southbound vehicle as a “shadow” in the fog about 250 feet to the north, and that on seeing the McConkey vehicle he applied the brakes and stopped before his front wheels reached the pavement and that his vehicle was in that position when it was struck by the McConkey vehicle. The photographs in evidence show that the impact, in so far as the McConkey vehicle is concerned, involved almost the entire front of the vehicle excepting the left front fender and headlight, and this means if the front of the tractor-trailer was off the pavement that the McConkey vehicle had actually to be so far to the west as to be almost entirely off the pavement to come in contact with the left front corner of the tractor-trailer. All the other evidence negatives the collision as having happened in this manner. There were skid marks wholly on the pavement attributable to the McConkey vehicle extending 124 feet to the north from the point of impact and marks indicating that the front of the tractor-trailer was at least 5 feet into the pavement on the highway which contradicts the testimony of the respondent that he stopped his tractor-trailer before it actually reached the pavement.

In the circumstances as given in evidence and having regard to the duty cast upon the respondent by s. 64 of The Highway Traffic Act, I am of the opinion that he was principally at fault. McConkey had the right of way and he was en-

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titled to assume that traffic entering from his right would do so in accordance with s. 64 of The Highway Traffic Act. That did not, of course, entitle him to travel at the speed at which he was going on the morning in question when the pavement was wet and when there were patches of fog which reduced visibility. I am of the view that he must be held partly at fault and I would assess the degrees of fault at 75 per cent against the respondent and 25 per cent against McConkey.

McConkey suffered head injuries which Moorhouse J. found seriously impaired both his physical and mental health and he awarded general damages in the sum of $15,000 and special damages of $4,810.60 for a total of $19,810.60. The evidence certainly supports an award of this amount and the appellant should accordingly have judgment for $14,857.95. The appellant is entitled to costs in this Court and in the Courts below.

RITCHIE J.—I would dispose of this appeal in the manner proposed by my brother Hall.

Appeal allowed with costs.

Solicitor for the plaintiff, appellant: Lance S. Evans, Toronto.

Solicitors for the defendant, respondent: Thomson, Rogers, Toronto.