Jordan v. Coleman et al., [1976] 1 SCR 126

Supreme Court of Canada

Jordan v. Coleman et al., [1976] 1 S.C.R. 126

Date: 1975-01-28

Naomi Jordan (Plaintiff) Appellant;

and

Lorne Coleman, H.M. Trimble & Sons Ltd. and the Government of Saskatchewan (Defendants) Respondents.

1974: December 11; 1975: January 28.

Present: Martland, Ritchie, Spence, Pigeon and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Motor vehicles—Negligence—Trucker driving in middle of highway to avoid freshly oiled strip—Failing to pull over for approaching vehicle because of probability truck would be splattered with oil—Driver of oncoming car veering to right and driving into ditch—Trucker solely at fault—The Vehicles Act, R.S.S. 1965, c. 377, s. 137(1)(a).

The first and second defendants (respondents in this Court) were found solely to blame at trial for a motor vehicle accident which occurred when the plaintiff was driving her car in an easterly direction on a highway and the first defendant was driving a large tractor-trailer, owned by the second defendant, in the opposite direction and was travelling in approximately the centre of the highway in order to avoid driving over a freshly oiled strip, which extended about three feet into his (northerly) lane of traffic. As the two vehicles approached each other, the plaintiff, who was travelling at about 50 m.p.h., slowed down and then realized that the truck was not moving onto its own side of the highway and fearing a collision, she veered to the right driving her car into the ditch where she lost control and the car rolled over causing her serious injuries.

On appeal, the Court of Appeal allowed the appeal and dismissed the plaintiff’s action. An appeal by the plaintiff was then brought to this Court.

Held: The appeal should be allowed and the judgment at trial restored.

The only reason for the first defendant failing to pull over to the northern verge of the highway was that this would entail the probability of his truck becoming spattered with oil. This afforded no valid reason for creating a hazard to approaching traffic by driving in the middle of the highway. There was no negligence on the part of the plaintiff in failing to observe the three feet of oiled surface on the opposite side of the highway from that on

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which she was driving and, in any event, she was under no duty to foresee that the approaching truck would treat that oily surface as if it were not part of the highway.

APPEAL from a judgment of the Court of Appeal for Saskatchewan allowing an appeal from a judgment of MacPherson J. Appeal allowed.

G.J.K. Neill, for the plaintiff, appellant.

B. Dubinsky, Q.C., and N.B. Yeo, for the defendants, respondents, Lorne Coleman and H.M. Trimble & Sons Ltd.

E.R. Gritzfeld, Q.C., for the Government of Saskatchewan.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Saskatchewan allowing an appeal from a judgment rendered at trial by Mr. Justice MacPherson whereby he had found the present respondents, Coleman and H.M. Trimble & Sons Ltd., (hereinafter referred to as “Trimble”) solely to blame for a motor vehicle accident which occurred when the appellant was driving her Javelin motor car in an easterly direction on Highway 33 approaching Fillmore in the Province of Saskatchewan, and the respondent Coleman was driving a large tractor-trailer, owned by the respondent Trimble, in the opposite direction on the same highway and was travelling in approximately the centre of the 21-foot highway in order to avoid driving over a freshly oiled strip which extended about three feet into his (northerly) lane of traffic.

An appeal was also asserted against the Government of Saskatchewan and that government was represented before us, but it was pointed out in the course of the hearing that no such appeal lay against the government as the appellant had not appealed from the judgment of the Court of Queen’s Bench of Saskatchewan dismissing the action against the government and no finding as to its liability formed any part of the judgment appealed from. This appeal was accordingly dismissed against the government with costs as of a motion to quash.

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As the two vehicles approached each other, the appellant, who was travelling at about 50 miles an hour, slowed down and then realized that the truck was not moving onto its own side of the highway and fearing a collision, she veered to the right driving her Javelin into the ditch where the learned trial judge found that she lost control and the car rolled over causing her serious injuries and bruising her lady passenger.

In describing the actions of the truck driver, the learned trial judge made the following finding:

He came upon a stretch of highway, about three-quarters of a mile in length, upon which a Department of Highways crew had just laid a film of oil on the most northerly three feet of the travelled surface. He was waved on by the flagman at the east end of this stretch. The freshly oiled strip occupied three feet of Coleman’s lane. He saw the plaintiff coming and moved over to his right but not into the oil. He was therefore practically in the centre of the road. He thought there was lots of room for the plaintiff to pass but, in my view, there was not. He did not drive into the oil because it would spatter over his unit.

The italics are my own.

The tractor-trailer was approximately eight feet in width and Coleman stated more than once in the course of his evidence that as he approached the appellant’s vehicle he was travelling in the middle of the road and under cross-examination he agreed that four feet of the truck were in the south lane and four feet in his own northerly lane. The reason which he gave for his position on the highway was that he wished to avoid picking up any oil and thus soiling his truck. In this regard he gave the following evidence on cross-examination:

Q. Did you, as this car was approaching you, then, travel more into the north lane?

A. I went over as far as I could without picking up any oil.

Q. Was that the only reason you couldn’t proceed any further to the north?

A. Well I could have drove right down it I guess.

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Q. I’m afraid I don’t follow you.

A. Probably could have drove right down the oil but then it all went jumping down your neck.

Q. Sprayed your truck with oil I suppose?

A. Yes.

Q. Pretty hard to get off I imagine?

A. Yes.

Q. And it was the oil, that was the only reason you didn’t go further to your right?

A. Yes.

Section 137(1)(a) of The Vehicles Act, R.S.S. 1965, c. 377, requires that:

137. (1) A person driving a vehicle or riding or driving an animal upon a public highway

(a) shall, upon meeting another person so using the highway, reasonably turn to the right of the centre of the main-travelled portion of the highway and shall drive to the right of the centre of the main-travelled portion of the highway until he has passed the other person.

Whether or not Coleman made any effort to turn to his right immediately before the collision, there is no suggestion that the whole of his truck was at any time to the right of the centre line and he was accordingly in breach of this section which in light of the decision of this Court in Gauthier & Co. Ltd. v. The King[1], is enough to establish a prima facie case of negligence on his part.

Mr. Justice Hall, speaking on behalf of the majority of the Court of Appeal, expressed the view that Mr. Coleman’s evidence read as a whole disclosed that his truck was almost touching the fresh oil when the accident occurred and that the respondent had a sufficient area of highway on which to pass if she had been

…driving with the degree of care and at the reduced rate of speed which were required by the circumstances. Her failure to do so was due to her own negligence in failing to keep a proper lookout.

The same learned judge went on to say:

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I agree with my brother Woods for the reasons which he has given that under the circumstances the failure of Coleman to go onto the oiled portion of the highway was not negligence.

It appears to me that it was this latter finding which was crucial to the decision of the Court of Appeal and it was expressed in the following terms by Mr. Justice Woods after having quoted s. 137 (1)(a) supra:

This places a duty on a driver to drive to the right of the centre of the main-travelled portion of the highway. In a factual situation such as obtains here where three feet of the highway is covered with fresh oil the travelled portion does not extend to the freshly oiled and incompleted surface. Here the plaintiff should have seen the condition of the road. Had she known its condition she could hardly expect another vehicle to drive into the slippery sticky mess that constitutes such road covering.

With the greatest respect for the views so expressed, I think it desirable to point out that Coleman on his own evidence could have driven over the oily portion of the road without danger having regard to the size of his vehicle and that his only reason for failing to pull over to the northern verge of the 21-foot highway was that this would entail the probability of his truck becoming spattered with oil. In my view this afforded no valid reason for creating a hazard to approaching traffic by driving in the middle of the highway.

I am unable to find that there was any negligence on the part of Mrs. Jordan in failing to observe the three feet of oiled surface on the opposite side of the highway from that on which she was driving and I am, in any event, of opinion that she was under no duty to foresee that the approaching truck would treat that oily surface as if it were no part of the highway.

The facts of other cases are not helpful in determining an issue such as the present one, but the findings of the learned trial judge who observed the witnesses are entitled to the greatest respect, and in my opinion there must be some palpable error in law or misapprehension of the evidence before a court of appeal is entitled to substitute its opinion for that of the judge who

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tried the case. I can find no such error or misapprehension in the judgment of the learned trial judge.

It may be that it would have been possible for Mrs. Jordan to pass the respondents’ truck without taking to the ditch, but the hazard presented by the narrow margin to which she was confined in my view placed her in a position where she was justified in the avoiding action which she took, and I do not think that it is any answer to the prima facie case of negligence to which s. 137(1)(a) (supra) gives rise to suggest that the respondent’s action was excusable on the ground that his truck would have been spattered with oil if he had complied with its statutory obligations.

For all these reasons I would allow this appeal with costs both in this Court and in the Court of Appeal and restore the judgment of the learned trial judge. As I have pointed out, the appeal against the Government of Saskatchewan is dismissed with costs as of a motion to quash.

Appeal allowed; trial judgment restored.

Solicitors for the plaintiff appellant: Davidson, Davidson & Neill, Regina.

Solicitors for the defendants, respondents, Lorne Coleman and H.M. Trimble & Sons Ltd.: Dubinsky, Phillips & Andreychuk, Moose Jaw.

Solicitors for the defendant, respondent, The Government of Saskatchewan: Embury, Molisky, Gritzfeld & Embury, Regina.