Gagné v. Côté, [1970] SCR 25

Supreme Court of Canada

Gagné v. Côté, [1970] S.C.R. 25

Date: 1969-10-07

Joseph Gagné (Defendant) Appellant;

and

Wilfrid Côté (Plaintiff) Respondent.

1969: March 3, 4; 1969: October 7.

Present: Fauteux, Abbott, Ritchie, Spence and Pigeon JJ.

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

Motor vehicle—Highway accident—Unlighted horse-drawn vehicle at night—Contributory negligence—Highway Code, 1959-60 (Que.), 8-9 Eliz. II, c. 67, s. 24.

The plaintiff’s wife was killed and the defendant seriously injured, when the plaintiff’s automobile collided with the rear of the defendant’s horse-drawn farm vehicle. The accident occurred after nightfall. The plaintiff was driving with his headlights on, but the defendant’s vehicle had neither light nor reflector. The Superior Court held both parties at fault and assessed the plaintiff’s liability at 40 per cent and the defendant’s at 60 per cent. This judgment was affirmed by a majority judgment in the Court of Appeal. The defendant appealed to this Court.

Held: The appeal should be dismissed.

Although the Highway Code does not require a red light or reflector in the rear of animal‑drawn vehicles, this does not mean that driving at night a horse-drawn vehicle without a light or reflector cannot be considered as negligence. To hold this to be negligent is not to usurp the functions of the legislature and to create an obligation that it has always refused to impose. The statutory provisions do not mention all the obligations incumbent upon the citizens. There is no reason to refuse to follow the Quebec courts which, for over thirty years, have held it to be negligent to drive an animal-drawn vehicle without a light or reflector, on a public road at night. There is no reason to interfere with the concurrent findings as to the apportionment of liability or the assessment of damages.

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

André Marceau, for the defendant, appellant.

André Gagnon, Q.C., for the plaintiff, respondent.

The judgment of the Court was delivered by

PIGEON J.—The accident with which the present case is concerned occurred under the following circumstances. On a Sunday evening, September 25, 1960, after nightfall, the appellant, a farmer, was driving on the Ste. Anne Range road to St. Narcisse de Lotbinière. This local road had recently been paved with asphalt; the paving was 22 feet wide and there was no white line in the centre such as on highways. On each side there was a gravel shoulder which Wilfrid Gagné, a witness at the trial, measured as four feet wide. The appellant’s vehicle was a platform about six feet wide mounted on automobile wheels beyond which it protruded about five inches on either side. It was being drawn by a horse walking on the extreme right-hand side of the paving, both right wheels being on the gravel shoulder. Thus the vehicle was taking up four or five feet of the paved part of the road. It had neither light nor reflector. The appellant was sitting on the left-hand side, his son on the right, and there were also two little boys eight to ten years old. The appellant had been tending the animals on his son’s farm and was returning to his own, nine arpents to the east. The vehicle was being used solely for carrying its four occupants.

As for the respondent, he was driving home in his car from Drummondville to St. Narcisse, going in the same direction as the appellant. He was perfectly well acquainted with the locality, since he used this road every day to go to and from work in Quebec City. It should be noted that he worked at night, leaving home around 8:30 in the evening and coming back around 7:30 in the morning. That evening, however, which was

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a Sunday, he had stopped to have something to eat on the way home. Driving with his headlights on, he saw another car coming in the opposite direction. When he was still four or five arpents from it, he dimmed his lights and the other car did likewise. As soon as it had passed he turned his lights up again and saw appellant’s vehicle. He swerved to the left and applied his brakes, but was unable to avoid the collision. His wife, seated on his right, was instantly killed by a platform plank going through the windshield. Appellant’s left leg was shattered and had to be amputated above the knee. His right leg was also hurt and as a result of the accident he is permanently disabled.

On respondent’s action and appellant’s cross demand, the Superior Court (Wilfrid Girouard J.) held both parties at fault, respondent for not slowing down when he saw the other automobile approaching, appellant for driving without a light. For this, the percentages of liability were assessed at 40 per cent and 60 per cent respectively. The damages arising from the death of respondent’s wife, who was 21 years of age, pregnant and the mother of a two-year-old daughter and a ten-month-old son, were fixed at the sum of $30,000, namely $20,000 to the plaintiff personally and $10,000 in his capacity as tutor. The damages suffered by appellant for permanent disability were set at $15,000. Adding other items, respondent’s total claim for damages was fixed at $31,126.60 and appellant’s at $20,469.70. Compensation having been effected in accordance with the percentages of liability, appellant found himself condemned to pay $8,187.88 with interest from January 23, 1961.

The Court of Appeal[2] dismissed appellant’s appeal; however, Badeaux J., dissenting, was of the opinion that respondent should have been held solely responsible for the accident because appellant was leaving enough space for other vehicles and was not obliged to have either a light or a reflector in the rear of his vehicle.

On that point, appellant argued that the legislature, a few months before the accident, had completely revised the Highway Code provisions

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concerning lights and reflectors (8-9 Eliz. II, c. 67, s. 24) and that the new provisions, as previously, required red lights in the rear of automobiles and trailers and a red light or a reflector in the rear of all bicycles and tricycles, but included no such requirement for animal‑drawn vehicles.

Does this mean that driving at night a horse-drawn vehicle without a light or reflector cannot be considered as negligence? I do not think so. To hold this to be negligent is not, as was suggested, to usurp the functions of the legislature and to create an obligation that it has always refused to impose. Although extremely important from the point of view of civil responsibility, the section of the Highway Code is, essentially, a statutory provision to which a penalty is attached. Until such time as the legislature adds to it a provision applicable to cases such as the one before us, the police will obviously be unable to issue tickets in such cases and the courts of summary jurisdiction will be unable to impose penalties. This does not mean that the civil courts are not entitled to consider that a fault has been committed, because the statutory provisions do not mention all the obligations incumbent upon the citizens.

For over thirty years now the Quebec courts have held it to be negligent to drive an animal‑drawn vehicle without a light or reflector, on a public road at night. I can see no reason to hold otherwise. It is true that there is evidence in the record that this particular imprudent act is general in the locality in question; this does not suffice, however, to bring the case within the rule applied in The London & Lancashire v. La Compagnie F.X. Drolet[3], that a defendant charged with negligence can clear his feet, if he shows that he has acted in accordance with general and approved practice. In view of the numerous court decisions which have uniformly condemned it over the past thirty years, this deplorable practice, in so far as it may continue to exist, can no longer be regarded as “approved”.

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The above conclusion is sufficient to dispose of the case. It is our rule not to interfere with concurrent findings of fact except in the case of a clear error in the appreciation of the evidence. I can find no such error in the apportionment of the liability or the assessment of damages. On those questions we are not called upon to decide, if sitting in first instance, we would have reached the same result as the trial judge, but only whether he made a wholly erroneous estimate, and this the appellant has failed to show.

The appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the defendant, appellant: Marquis, Marceau & Jessop, Quebec.

Solicitors for the plaintiff, respondent: Gagnon, de Billy, Cantin & Dionne, Quebec.