O'Connor et al. v. Quigley et al., [1958] SCR 156

Supreme Court of Canada

O’Connor et al. v. Quigley et al., [1958] S.C.R. 156

Date: 1958-02-11

Roy O’Connor and Norma O’Connor (Plaintiffs) Appellants;

and

Robert James Quigley, Gordon Bruce and Arrow Transit Lines Limited (Defendants) Respondents.

1957: November 25, 26; 1958: February 11.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Findings of trial judge—Trial without jury—Evidence apparently overlooked—New trial ordered.

A car driven by the plaintiff O collided with a car driven in the opposite direction by the defendant Q, and almost simultaneously O’s car was struck in the rear by a transport owned by the defendant company and driven by the defendant B. The trial judge refused to accept the evidence of O, Q, or B, and proceeded to find the facts from independent testimony, as a result of which he dismissed the action and gave judgment for Q on his counterclaim. He found in particular that O had not satisfied the onus of proving, as he alleged, that Q had been driving on the “wrong” side of the road, and that O had been negligent in several respects. This judgment was affirmed by the Court of Appeal.

[Page 157]

Held (Abbott J. dissenting): There must be a new trial, since there was nothing in the evidence accepted by the trial judge to support his findings of negligence against O, and others of his findings were inconsistent with the objective evidence. Although it was true that the question of negligence or no negligence was one of fact and that there were concurrent findings in the Courts below, nevertheless those Courts had failed to make clear findings as to how and where the collisions occurred and there were inconsistencies between the findings made that were so serious as to necessitate a new trial.

APPEAL from a judgment of the Court of Appeal for Ontario affirming a judgment of Moorhouse J. Appeal allowed, Abbott J. dissenting.

W.B. Williston, Q.C., for the plaintiffs, appellants.

J.J. Robinette, Q.C., and E.J.R. Wright, Q.C., for the defendant Quigley, respondent.

W.S. Gray, for the defendants G. Bruce and Arrow Transit Lines Limited, respondents.

THE CHIEF JUSTICE:—Since I consider that there should be a new trial, I refrain from discussing the evidence. Notwithstanding the findings as to credibility made by the trial judge and confirmed by the Court of Appeal, there was testimony by disinterested witnesses, to which, apparently, consideration was not given. Although Quigley changed his evidence at the trial, his testimony on examination for discovery may be treated as an admission that, at the date of the examination, he understood that what he then swore to had actually occurred at the time of the accident. Although the action was dismissed on the basis that the plaintiffs had failed to meet the usual onus, the counterclaim by Quigley was allowed.

Under all the circumstances the trial of the action was so unsatisfactory that a new trial should be held. The costs of the action and appeals will be disposed of by the judge presiding at the new trial.

The judgment of Locke, Cartwright and Fauteux JJ. was delivered by

CARTWRIGHT J.:—This is an appeal from a judgment of the Court of Appeal for Ontario, dismissing an appeal from a judgment of Moorhouse J. whereby the appellants’ action was dismissed and judgment was given in favour of the respondent Quigley on his counterclaim against the appellant Roy O’Connor for $10,223 without costs.

[Page 158]

As I have reached the conclusion that there must be a new trial, I propose to refer to the evidence only so far as is necessary to indicate my reasons for so deciding.

The action arose out of an accident which occurred on May 9, 1954, at about 12.10 a.m. on no. 2 highway a few miles west of the city of London. The highway runs east and west. The paved surface is 30 feet wide consisting of a middle strip of asphalt 20 feet in width with a 5‑foot cement strip on either side of the asphalt. At the place where the accident occurred a solid double line divides the east and west-bound traffic-lanes for a distance of slightly more than 113 feet. Proceeding east from this area there is a down-grade approximately 600 feet long. Three vehicles were involved in the accident, a Ford car owned and driven by the appellant Roy O’Connor in which his wife, the appellant Norma O’Connor, was a passenger, a Pontiac car owned and driven by the respondent Quigley and a tractor-trailer transport owned by the respondent Arrow Transit Lines Limited and driven by the respondent Bruce.

The O’Connor car and the transport were travelling west and the Quigley car was travelling east. The O’Connor car had followed the transport from the city of London and passed it a very short time prior to the collisions, which were between the front of the O’Connor car and the front of the Quigley car and between the front of the transport and the rear of the O’Connor car.

The conflicting theories as to how the collisions occurred were briefly as follows. For Quigley it was contended that he was driving at all relevant times in the lane for east-bound traffic and that the collision between his car and that of O’Connor took place to the south of the centre‑line of the highway. For O’Connor it was submitted that the transport was at all times travelling in the lane for westbound traffic, that O’Connor having completely passed it was proceeding westerly in the lane for west-bound traffic a short distance ahead of the transport when Quigley’s car without warning turned to the north of the centre-line and that this action on Quigley’s part was the sole cause of the collisions. The theory of the respondents Bruce and Arrow Transit Lines Limited was substantially the same as that of O’Connor.

[Page 159]

The learned trial judge placed no credence in the testimony of Quigley, O’Connor or Bruce, and was of opinion that he must find the facts from the independent testimony of four witnesses and from the marks on the road which some of them described and which were indicated in photographs filed as exhibits. These four witnesses were Haight and Haines, police officers who made an investigation after the accident and described the marks on the pavement and the position of the vehicles, and Waterworth and Shortt who were in a motor car driven by the former which was following the O’Connor car, saw it pass the transport and were following a short distance behind the transport when the collisions occurred.

The learned trial judge was of opinion (i) that the appellants had not satisfied the onus of proving that the Quigley car was driven to the north of the centre-line of the highway, and (ii) that the collision between the transport and the O’Connor car occurred before the collision between the O’Connor car and the Quigley car. His reasons continue as follows:

Now we turn to the statement of defence of the defendant Quigley. They allege that the plaintiff Roy O’Connor was negligent in that:

(a) He failed to keep a proper lookout.

There is certainly evidence of this fact again from the independent witnesses altogether apart from the parties.

(b) He was driving at an excessive rate of speed.

(c) In failing to have his motor vehicle under proper control.

(d) In operating his motor vehicle on the wrong side of the highway.

(e) In passing the motor vehicle of the defendant Arrow Transit Lines Limited at a time when the motor vehicle of the defendant Robert James Quigley was approaching so closely as to render a collision inevitable.

(f) In driving on Highway No. 2 at approximately midnight of May 8th, 1954, without lighted headlights.

Now, in respect to all of these allegations there is evidence which the Court can and does accept. When we look at the situation as to who created the emergency, O’Connor was unquestionably primarily responsible and Bruce had no opportunity to avoid the accident.

Since the Court has found that the transport truck struck O’Connor first it is not possible to say that Quigley was negligent. It is true the mark from the Quigley vehicle commenced at the centre line of the road. The Court has given anxious consideration as to whether this was sufficient to conclude that Quigley was on the north half of the road. That the Court has not been able to do.

In the result the action is dismissed. The defendant Quigley is entitled to succeed on his counterclaim…

[Page 160]

As the learned trial judge had expressly discredited Quigley and the one of his passengers who gave evidence I can find nothing in the record to establish any of these items of negligence except item (f) as to which the evidence shows that O’Connor was turning his lights off and on, apparently as a signal to the driver of the transport that he intended to pass. The evidence of Shortt and Waterworth indicates that O’Connor completed the manoeuvre of passing the transport some hundreds of feet to the east of the scene of the accident and the marks on the road indicate that the O’Connor car was well to the north of the centreline of the road when struck in the rear by the transport. The evidence of Bruce is to the same effect. Bruce’s explanation of running into the rear of the O’Connor car was that the Quigley car came across the centre-line of the highway into the path of the O’Connor car. If this evidence is rejected, as it has been by the learned trial judge, it leaves Bruce without an explanation and I am unable to appreciate how, if the theory that the Quigley car was driven to the north of the centre-line of the highway be discarded, Bruce can escape being found negligent. This difficulty is not dealt with in the reasons of the Court of Appeal. In that Court neither counsel for the appellants nor counsel for Quigley asked for a finding that Bruce was negligent but this does not remove the inconsistency between rejecting the theory of Bruce and O’Connor and absolving Bruce from blame.

I am unable to find in the reasons of either Court below a reconciliation between the position of the mark on the pavement which they took to have been made by the rim of the left front wheel of the Quigley car and the finding that at the instant of collision between that car and the O’Connor car the former was not at least partly to the north of the centre-line of the highway.

We were pressed with the argument that the question of negligence or no negligence is one of fact and that in the case at bar there are concurrent findings which we ought not to disturb; but, in my view, the Courts below have failed to make clear findings as to how and where the collisions occurred and there are inconsistencies between the findings which have been made which are so serious as to necessitate a new trial.

[Page 161]

For the above reasons I would allow the appeal, set aside the judgments below and direct a new trial. The costs of the former trial and of the appeals should be disposed of by the judge presiding at the new trial.

ABBOTT J. (dissenting):—This appeal turns upon questions of fact and these are fully set forth in the judgments below.

I have read the evidence with care and in my opinion there was evidence upon which both Courts below could find as they have done (1) that the Arrow transport truck struck the O’Connor vehicle before the latter collided with the Quigley vehicle; (2) that at all relevant times the Quigley vehicle was travelling on its own side of the road and (3) that the accident was caused by the negligence of O’Connor.

Appellant has failed to satisfy me that the Court below was wrong in reaching the conclusion which it did and I would, therefore, dismiss the appeal with costs.

New trial ordered, ABBOTT J. dissenting.

Solicitors for the plaintiffs, appellants: Thompson & Brown, London.

Solicitors for the defendant Quigley, respondent: Wright & Poole, London.

Solicitors for the defendants Bruce and Arrow Transit Lines Limited, respondents: Borden, Elliot, Kelley, Palmer & Sankey, Toronto.