Supreme Court of Canada
Brenner v. Toronto Ry. Co., (1908) 40 S.C.R. 540
Date: 1908-10-06
Eva Brenner, An Infant by Her Next Friend and Harris Brenner (Plaintiffs) Appellants;
and
The Toronto Railway Company (Defendants) Respondents.
1908: June 2, 3; 1908: October 6.
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Street railway—Rules of company—Charge of judge—Contributory negligence.
A rule of the Toronto Ry. Co. provides that “when approaching crossings and crowded places where there is a possibility of accidents the speed must be reduced and the car kept carefully under control. Go very slowly over all curves, switches and intersections; never faster than three miles an hour * *.” A girl on the south side of Queen Street wished to cross to University Avenue which reaches but does not cross Queen. She saw a car coming along the latter street from the east and thought she had time to cross, but was struck and severely injured. On the trial of an action for damages the judge in his charge said: “It is not a question, gentlemen of the jury, as to the motorman’s duty under the rule, it is a question of what is reasonable for him to do.” The jury found that defendants were not guilty of negligence; that plaintiff by the exercise of reasonable care could have avoided the injury; and that she failed to exercise such care by not taking proper precautions before crossing. The action was dismissed at the trial; a Divisional Court ordered a new trial on the ground that the judge had misdirected the jury in withdrawing from their consideration the rules of the company; the Court of Appeal restored the judgment at the trial.
Held, affirming the judgment of the Court of Appeal (15 Ont. L.R. 195) which set aside the order of the Divisional Court for a new trial (13 Ont. L.R. 423) Idington J dissenting, that the action was properly dismissed.
[Page 541]
Held, per Girouard and Duff JJ.—The judge’s charge was open to objection but as under the findings of the jury and the evidence plaintiff could not possibly recover a new trial should be refused.
Per Davies J.—There was no misdirection. The jury were not led to believe that the rules were not to be considered, but only that they should not be the standard as to what was or was not negligence, which question should be decided on the facts proved.
Per Maclennan J.—The place at which the accident occurred, where University Av. meets Queen Street, is not a crossing nor intersection within the meaning of the rules and they do not apply in this case.
APPEAL from a decision of the Court of Appeal for Ontario reversing the order of the Divisional Court for a new trial and restoring the judgment at the trial by which the action was dismissed.
The material facts of the case are stated in the above head-note.
G.F. Henderson K.C. for the appellants.
D.L. McCarthy K.C. for the respondents.
GIROUARD J.—I concur in the opinion of Mr. Justice Duff.
DAVIES J.—The findings of the jury in this case are all against the plaintiff. They negative negligence on the part of the company and its mortorman and they find that the plaintiff could by the exercise of reasonable care have avoided the injuries she sustained and that she neglected to take precautions in crossing the road. The trial judge on these findings entered judgment for the defendant. The Divisional Court on appeal, thinking there had been misdirection in the charge to the jury in having withdrawn from
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their consideration the rules of the defendant company, directed a new trial. On appeal to the Court of Appeal the judgment was unanimously reversed and the judgment entered by the trial judge restored.
I have read and re-read the judge’s charge most carefully and have reached the conclusion that as a whole it was a painstaking and careful summing up of the facts and is not open to the charge of misdirection. I do not think the jury were misled into the belief that they were to banish these rules from their minds. What they were told was that they should not accept these rules as their standard or guide as to what was or was not negligence but should decide that question upon the facts as proved before them.
The crucial question was whether or not the motorman had his car under control at the time or was going at an improper rate of speed.
The learned judge charged: “It is not a question, gentlemen of the jury, as to the motorman’s duty under the rule, it is a question of what is reasonable for him to do.” That again is another way of saying the rules are not the standard to guide you to your conclusion as to the speed of the car or its control, but the determination of what was reasonable under the circumstances as proved. He may have obeyed the rule and still have been guilty of negligence. He may again have disobeyed the rule under circumstances and conditions which did not make him so guilty. The question was whether or not, under the proved facts, negligence on his part was shewn. I think this was the substance of his charge and I think it was right in law and was properly understood by the jury.
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I agree with the Court of Appeal and would dismiss the appeal.
IDINGTON J.—This is an accident case in which the motorman of respondent company ran down the appellant, a young woman whom he saw from the time she stepped off the south sidewalk on Queen Street to cross to the north side of that street in order to reach University Street or University Avenue running at right angles to the north side of Queen Street, until she was hit by the fender of the car he was driving with such force that she was tossed to one side and run over.
It so happened that she, in order to avoid a car running in a contrary direction to that of the one in question, had walked past the line of the point of junction of these streets and therefore had to cross so obliquely to reach her destination that her back was turned towards the motorman who saw her.
She says she had seen the car coming and had supposed she could have reached her destination on the north side of the track before the car in question, travelling at an ordinary rate, would overtake her.
She evidently miscalculated, and I am not going to pass any opinion upon whether that miscalculation was negligence or not when coupled with her failure to keep an eye on the moving car.
The only point in the case for present consideration is whether or not the motorman was negligent and whether or not the learned trial judge properly directed the jury in this regard.
One of the rules of the company for guidance of conductors and motormen is as follows:
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Rule 58. Curves and Crossings—When approaching crossings and crowded places where there is a possibility of accidents, the speed must be reduced and the car kept carefully under control.
Go very slowly over all curves, switches and intersections; never faster than three miles an hour, and extra caution must be used in handling double truck cars at such places.
An intersection must never be taken when another car is approaching.
Cross streets must not be blocked nor must any crossing be taken until the road ahead is clear.
The company called a witness named Whitehead who had been in their service for fourteen years as a motorman and previous to that had served in the same capacity in Cleveland.
He gave the results of his long experience and of his experience as an instructor of motormen for the company in the following evidence:
Q. In the special instructions to motormen on page 16 of the Rules, it says, “The moment any person, waggon or obstacle is seen to be in danger on the track, bring car under perfect control.” Are you familiar with that? A. Yes.
Q. And you drum that into your men when you are training them? A. All ever I can.
Q. Then I notice Rule 55, “Reversing is a severe strain on the apparatus, especially when the car is under high speed, and should never be resorted to except when absolutely necessary.” I suppose you also impress that on your men? A. Yes.
Q. Not to resort to the reverse unless it is absolutely necessary? A. Yes.
Q. Not till the last moment? A. Not until it is necessary.
Q. And is not there a rule that you shut off the power on approaching a street? A. Yes, they are supposed at all cross streets to shut off the power and ring the gong.
Q. How far? A. A reasonable distance; it depends on the speed you are travelling at.
Q. You will have to tell me, you know; how far do you consider a reasonable distance? “When approaching crossings and crowded places where there is a possibility of accidents, the speed must be reduced and the car kept carefully under control.” That is 58, do you impress that on your motormen? A. Yes.
Q. Then at what distance from a crossing do you consider that a man should shut off his power and begin ringing his gong? A. It depends on the speed at which he is travelling.
Q. Suppose he is travelling six miles an hour? A. He should
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shut off his power sixty, eighty or a hundred feet away from the street crossing.
Q. And at ten miles an hour? A. A little sooner.
Q. How much sooner? A. Not necessarily much sooner.
Q. How much sooner? A. I could not tell you for a few yards, if a man knows when he has his car under control he knows what distance he can stop in.
Q. I want an answer to that question. You say if a man is travelling at six miles an hour he should shut off his power from eighty to a hundred feet. Now if he is travelling at ten miles an hour when should he shut it off? You say a little sooner? A. Well, twenty or thirty feet.
* * * * * * *
Mr. Smythe: Q. Now, I suppose we may put you down as a thoroughly competent efficient motorman, or you would not occupy the position you do occupy? A. I think so.
Q. You know this car? A. Yes.
Q. Would you advocate this car 736 running down Queen Street from York to University at a speed of fifteen miles an hour at nine o’clock in the evening? A. Well, I don’t know; if all was clear, and there was nothing to obstruct me, and the car would run fifteen miles an hour, I might.
Q. How far away from Osgoode Hall corner would you throw off your power and slacken the speed? A. I could not get to a speed of fifteen miles an hour going from York Street to University.
Q. Assuming that you had your power on full where would you turn it off? A. A car is not always running at full speed when the power is on full.
Q. If you had your power on full after leaving York Street where would you turn it off? A. I would shut it off forty or fifty feet back from the corner of University Street, or whatever you call it.
Q. Is that your answer? A. Yes, sir.
Q. That is what you are telling me now? A. Yes.
Q. And you would not shut it off before? A. That would be quite enough to slow down, you are not supposed to stop unless it is necessary.
Q. That is your answer now, is it? A. Yes.
Q. If you saw a girl walking toward the track with her back toward you, would you consider it your duty to get your car under control and ring the gong? A. Yes.
* * * * * * *
Mr. Smythe: Q. If a competent man were operating a car, and saw a girl approaching the track with her back towards him, at what distance should he get his car under control, it being obvious that she did not see him, at what distance from the girl should he get his car under control, running at a speed of, say six miles an
[Page 546]
hour? A. Well, he should get his car under control say within fifty or sixty feet of where the girl was.
Q. Say he was running ten miles an hour at what distance from the girl should he get his car under control? A. Then he would want twenty-five feet more.
Q. And at fifteen miles an hour? A. An equal ratio, about twenty-five feet more.
Q. And that is what a careful, competent man should do? A. Yes.
Q. Now, I understand you to say to my learned friend, that with the car under control, by the use of the reverse a car of this type could be brought to a dead stop in fifty feet? A. I said about fifty feet, running at six miles an hour.
* * * * * * *
Q. Now, would a competent motorman who says he had applied the reverse a moment before or at the instant of striking a person in the street allow his car to be run 150 feet after that? A. I would naturally think he would stop his car as soon as he could.
Q. Could he not stop it long before 150 feet? A. I should think, as I told you, about fifty feet.
Q. And if it ran 150 feet? A. It might be a bad rail.
Q. Would a competent motorman under those circumstances allow his car to run 150 feet? A. I have seen the rail when you could not stop in less than 150 feet, when the reverse bit the car would slide along the rail. A good deal depends on the rail.
Q. We are speaking now of a moderate rail. Would a competent motorman who had applied his reverse at the moment of collision permit his car to run 150 feet after? A. I should not think so.
* * * * * * *
Q. Then there is no such rule, Mr. Whitehead? A. I don’t think so.
Q. There is a rule that you have to throw off your power before approaching intersections? A. At intersections you have to stop.
Mr. Smythe: My learned friend has insisted throughout that the instructions to motormen were not to be found in that book. This witness is an instructor, and I asked him if it was part of the instructions to throw the power off, and he said yes.
The Witness: As a precaution.
* * * * * * *
His Lordship: Q. Do I understand there are instructions to motormen to stop at cross streets? A. Decidedly not, only at intersections of other tracks.
Q. You did not mean to say at all cross streets? A. No, but a man naturally, as a precaution, shuts off the power when coming to a street, but he is not supposed to stop unless it is necessary.
Mr. Smythe: Q. He has to shut the power off? A. Well, I do it at every cross street as a precaution.
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Q. Coming to every cross street you shut it off? A. I shut off my current.
Mr. McCarthy: Q. For what purpose is that? A. Just as a precaution, in case of anything happening, not that I am expecting anything, but we never know what is coming.
Q. Would you do that when approaching a crossing at five or six miles an hour? A. Yes, decidedly.
Mr. Smythe: Q. And much more so if you were approaching it at fifteen miles an hour? A.I would not approach a crossing at fifteen miles an hour, if I knew it.
Another witness of the company corroborates a great deal of this.
The learned trial judge in an exceedingly painstaking charge failed to direct the jury as to this evidence and its important bearing on the issue raised thereby of the negligence of the company.
It is true he spoke in general terms of the duty of the motorman to have his car under control.
But what that meant or he intended to convey by it does not appear.
A great deal was said and no doubt in view of the complexity of the case properly said about the rate of speed the car had been going at between York Street and University Street.
But the relation between the speed, whatever it was, and the necessary steps to control that speed, and all else, when and where such throwing off the power as indicated had become necessary, according to the evidence above, was not, I submit, referred to or direction given as to it. We have not a word directly bearing on it unless covered up in the phrase relative to having the car under control. Nay more, we have the following passage in the charge which shews all that was present to the learned judge’s mind “up to the approach of the girl.” He says:
Apart from the condition of the car, the excessive speed, and the not ringing of the gong there is no other allegation of negligence made against the defendant until the approach of the girl.
[Page 548]
The approach of the girl part of the case relates to what the motorman did when the ringing of the gong failed.
He reversed, when within ten feet of the girl, after he had gone far past the point at which the above evidence indicates power ought to have been thrown off.
The needful elaborateness of the charge which had to deal with many issues raised besides the one I am dealing with, tended to obscure the one I now deal with, and the evidence on the point.
At the close of a charge of that character counsel for respondent objected as to this, and the learned judge’s remarks supplementing his main charge appear, in response to these objections as follows:
Mr. Smythe: Then I would ask your Lordship to charge the jury that in addition to the original negligence you spoke of, there was evidence from the motorman himself that he had not the car under control, according to the proper method of running as given by the witnesses for the defence themselves. Your Lordship will remember that the witnesses Whiteside and Cosgrove both said that the proper way to run the car was to turn off the power 100 feet east of Osgoode Hall corner, and the motorman himself says he did not turn off the power until immediately before the accident. They both also said that the proper way to run it was to get the car under control when approaching the corner, by slackening the speed. The motorman says he did not put on the brake until he saw the girl would be run over.
His Lordship: “It is not a question, gentlemen of the jury, as to the motorman’s duty under the rule, it is a question of what is reasonable for him to do. He may break the rules four hundred times a day, but the question is whether under the particular circumstances of the case he acted reasonably, just as any other man going on the road. You heard, however, what he said, that he sounded the gong before he got to the west fence of Osgoode Hall, and then you heard that he had not slowed down because he was not going at a speed which he thought called for that.
Mr. Smythe: There was the evidence of the witness who said that he ought to have taken off the power.
* * * * * * *
His Lordship (to the jury): It is said that ordinarily it would be the duty of the motorman to throw the power off before approach-
[Page 549]
ing the corner, so as to let the car roll, that he would then be in a better position to have the car under control, and, if necessary, to stop. Under the rules and under the practice of the company it is the duty of the motorman to throw off the power ordinarily, before approaching a corner, so as to be ready to get the car under control, and more readily to have it under control. But the question is, was he going at such a speed as was excessive? It is not a question of what the rule was, but was he acting improperly in going at an excessive speed at the time?
* * * * * * *
Mr. Smythe: Then I would ask your Lordship to charge the jury that there was evidence that the motorman should have had his car under control at an earlier period than the period when he had it under control.
His Lordship: I think I have already said that.
This, I think, might well be taken by the jury as a withdrawal of the evidence in question.
It seems to me quite clear that the jury did so treat it.
It was uncontradicted evidence coming from a source the respondents could not question and did not question.
If regard were had to it at all I think it was impossible not to find negligence on the part of the company.
The motorman did not pretend he had observed the means this evidence points out as his duty, that is, by throwing off the power.
That the rules of the company and the experience of the company are not the law of the land is true. But what the experience of this and the like companies have discovered to be necessary as reasonable precaution in carrying on their business in the like conditions presented in any given case is evidence of the very highest value.
The remarks anent the reversing of power are all beside this question, for, as already remarked, that took place when within ten feet of the girl and a con-
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siderable distance beyond the street junction relative to approaching which, part of the evidence speaks.
Had the car been rolling along, with the power off from the point indicated it should have been, it would in all probability never have reached the girl. There possibly never would have been any collision or any need for the consideration of the alleged contributory negligence.
It is but a second of time that is involved in the inquiry.
And again, had the power been off and consequently, both the momentum of force propelling the car and the speed been reduced, the reversing operation, if it had ever become necessary, would have had more decided effect and probably avoided any collision. The jury should have had a fair chance to deal with all this.
In a sense the matter is, when analyzed, a question of speed, as the learned judge truly said, but he did not make that analysis for the jury and shew the bearing of his remark if he intended it to have any such relation to the evidence in question. If the speed of the car had, for example, been only a snail sort of pace no need possibly for a throwing off of such power. But it clearly was moving at so high a rate of speed that consideration directed to the point and the evidence upon it, was much needed in this connection.
The trial had proceeded on the particulars of negligence that dealt with excessive speed, but the evidence of the expert motorman, Whitehead, as counsel for respondents frankly admits, was a surprise.
He had two alternatives before him on this disclosure of very unexpected evidence. One was to
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object to the evidence as not admissible within the specified particulars.
This he did not adopt.
Probably he wisely foresaw an amendment and that thereby increased prominence might be given the point.
The other alternative and which he adopted was to take his chances of war, and of the possible escape in the confusion that might ensue, seeing it was only other things that were specified as negligence, and this the gross act of negligence apparent on the evidence, as a whole, and which should have been made earlier apparent might come to be, as it was, overlooked.
Wisdom has its reward sometimes. But it cannot now be said, nor was it attempted on Mr. Smythe’s objection or in argument here, to set up that this negligence was not pleaded. After treating it as fairly before the court at the trial and afterward, the issue thus raised is to be treated as if specified in the particulars.
It is not the case of any ultimate negligence that concerns me. That might have arisen for consideration or never have been reached.
I, in face of what, with the greatest regard, I conceive to be a serious error in the way of misdirecting the jury, cannot find any consolation or way of escape from a new trial in the finding of contributory negligence, for if the primary negligence was found on the above evidence the really proximate cause of the collision the plaintiff’s negligence could not be so.
The jury if properly directed in light of this evidence might never have reached the point of contributory negligence.
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The motorman asserts he threw off the power when some distance past the street line, but being like much else in his evidence not very definite I need not for the present purpose deal with it. I mention it merely lest expressions used relative to the reversal of power might indicate I had overlooked it. I might guess it immediately preceded reversal.
Since writing the foregoing the report of the case of Toronto Rly. Co. v. King, has come to hand and shews how very differently from this charge the Judicial Committee of the Privy Council dealt with the very rule in question here; though it was not there supplemented by evidence such as above and though the rule was unexplained or extended as by the said evidence given in this case and quoted above.
Another point of difference is that there the motorman never saw the man or cart his car struck at the crossing whereas here the motorman not only saw the girl in question, but describes her manner of carrying herself with great minuteness.
The judgment, in that case, I submit supports what I have written.
I think the appeal should be allowed with costs and the order of the Divisional Court for a new trial be restored.
MACLENNAN J.—I think the judgment appealed against in this case is right, and for the reasons given therefor by the learned judges of the Court of Appeal.
The argument of the appellants’ counsel appears to me to rest upon a misconstruction of the company’s rule, No. 58. This rule is as follows:
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Rule 58. Curves and Crossings—When approaching crossings and crowded places where there is a possibility of accidents, the speed must be reduced and the car kept carefully under control.
Go very slowly over all curves, switches and intersections; never faster than three miles an hour, and extra caution must be used in handling double truck cars at such places.
An intersection must never be taken when another car is approaching.
Cross streets must not be blocked nor must any crossing be taken until the road ahead is clear.
I am unable to agree with the opinion of the learned judges of the Divisional Court, that the place where this accident occurred is either a crossing or an intersection within the fair meaning of this rule. There is no crossing and there is no intersection of any kind. University Avenue, and University Street, and the several paths and ways there meet Queen Street, but do no more. They do not cross it, nor intersect it. A vehicle or a pedestrian coming down University Avenue or street may turn east or west upon Queen Street and go his way with perfect safety, without crossing either the rails of the company or the street. The citations from the dictionaries, in my opinion, are clearly against the interpretation of the Divisional Court.
Mr. Nix, the roadmaster of the company, called by plaintiffs’ counsel, at page 56, speaking of University Street, says it is not a cross street, that the rules for ringing the gong and having his car down to a low rate of speed apply to cross streets, and that an intersection is a cross street.
He further says that, as between a street which merely meets another and one which crosses it, the duty to slacken speed and sound the gong exists in the one case and not in the other, and, finally, that the company had a right to run past the place where the accident occurred without slackening speed.
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The only seeming qualification of this is in the evidence of Whitehead, another roadmaster of the defendants, and called on their behalf. In cross-examination by the plaintiffs’ counsel he is being questioned as to the practice and duty of motormen when approaching crossings under rule 58, and the following questions were put and answers made:
Q. You know this car? A. Yes.
Q. Would you advocate this car, 736, running down Queen Street, from York to University, at a speed of fifteen miles an hour, at nine o’clock in the evening? A. Well, I don’t know; if all was clear, and there was nothing to obstruct me, and the car would run fifteen miles an hour, I might.
Q. How far from Osgoode Hall corner would you throw off your power and slacken your speed? A. I could not get to a speed of fifteen miles an hour going from York Street to University.
Q. Assuming that you had your power on full where would you turn it off? A. A car is not always running at full speed when the power is on full.
Q. If you had your power on full, after leaving York Street, where would you turn it off? A. I would shut it off forty or fifty feet back from the corner of University Street, or whatever you call it.
Q. Is that your answer? A. Yes, sir.
Q. That is what you are telling me now? A. Yes.
Q. And you would not shut it off before? A. That would be quite enough to slow down, you are not supposed to stop unless it is necessary.
Q. That is your answer now, is it? A. Yes.
Now, I do not think this evidence can be construed as a statement that University Street was a crossing or an intersection within rule 58, or a place where it was necessary to ring a gong or slacken speed, when approaching it. He is not asked that question, but only, at what point he would turn off power if he wanted to stop at University corner. That is, evidently, how he understood it, for he says he might, if all was clear and nothing to obstruct and the car would run so fast, from York to University street, at fifteen miles an hour. And that you are not supposed to stop unless it is necessary.
[Page 555]
I, therefore, think the fact that this place was where two streets met each other had no bearing upon the case at all. The motorman was approaching the place of accident just as if there had been no avenue or other street at that point, and the unfortunate plaintiff was intending to cross just as she might have done at any other point not a crossing nor intersection.
Viewed in that way, as I think the case ought to be, I think there was no misdirection or non-direction of which the appellants can complain, and that the appeal fails.
DUFF J.—I agree that the learned judge’s instructions to the jury upon the appellants’ contention that the motorman was negligent in not sooner bringing his car under his control is not satisfactory; but although, upon this head the appellant may have some cause of complaint, I cannot convince myself that, in view of the finding of the jury on the issue of the contributory negligence, she can be said to have suffered any substantial wrong entitling her to a new trial.
The contributory negligence charged against the appellant and found by the jury was that in crossing the street she attempted to pass in front of an approaching car without taking proper (that is to say, reasonable) precautions. The appellant being on the south side of Queen Street, wished to cross to the north side. As she left the curb she observed the car which ran her down (on the north track some distance to the eastward) heading in her direction; but assumed that she would have time to cross before it reached her line of march. On this assumption she proceeded to set foot on the track on which she knew the car was approaching, without again looking in the direction of it.
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It was no doubt this last mentioned act—the act of going upon the track along which she knew a car was, within a short distance, approaching—without first looking to see the position of the car, that in the opinion of the jury constituted the contributory negligence they attributed to the appellant. Given this finding—that this act of the appellant (by which she passed from a position of perfect security into a position in which, in the circumstances of the moment, a collision with the respondents’ car was inevitable) was an act of negligence—I am unable to see any ground on which she could hope to recover. The principle is too firmly settled to admit, in this court, any controversy upon it, that in an action of negligence, a plaintiff, whose want of care was a direct and effective contributory cause of the injury complained of, cannot recover, however clearly it may be established that, but for the defendant’s earlier or concurrent negligence, this mishap, in which the injury was received, would not have occurred. The London Street Railway Co. v. Brown; Spaight v. Tedcastle at page 226; The “Bernina” at pages 88 and 89.
It was not argued that the question of the contributory negligence was not fairly left to the jury; as indeed it could not well be, since at the trial no objection was taken to the charge upon the head.
Appeal dismissed with costs.
Solicitor for the appellants: Samuel King.
Solicitors for the respondents: McCarthy, Osler, Hoskin & Harcourt.
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