Rowan v. Toronto Railway Co., (1899) 29 SCR 717

Supreme Court of Canada

Rowan v. Toronto Railway Co., (1899) 29 S.C.R. 717

Date: 1899-10-03

Thomas A. Rowan (Plaintiff) Appellant;

and

The Toronto Railway Company (Defendant) Respondent.

1899: June 1; 1899: October 3.

Present: Sir Henry Strong C.J. and Taschereau Gwynne, King and Girouard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Trial of action—Contributory negligence—Findings of jury—New trial—Evidence.

On the trial of an action against a Street Railway Company for damages in consequence of injuries received through the negligence of the company’s servants, the jury answered four questions in a way that would justify a verdict for the plaintiff. To the fifth question: “Could Rowan by the exercise of reasonable care and diligence have avoided the accident?” the answer was: “We believe that it could have been possible.”

Held, reversing the judgment of the Court of Appeal, that this answer did not amount to a finding of negligence on the part of the plaintiff as a proximate cause of the accident which would disentitle him to a verdict.

Held, further, that as the other findings established negligence in the defendant as the cause of the accident which amounted to a denial of contributory negligence; as there was no evidence of negligence on plaintiff’s part in the record; and as the court had before it all the materials for finally determining the questions in dispute, a new trial was not necessary.

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APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of Mr. Justice MacMahon at the trial.

The question for decision and the circumstances under which it arose are sufficiently stated in the above head-note, and fully set out in the judgments on this appeal.

Judgment was given for the defendant, and the action dismissed at the trial on the ground that the jury had found contributory negligence by the plaintiff. The Court of Appeal unanimously affirmed this judgment.

Aylesworth Q.C. and Ross for the appellant.

Osler Q.C. for the respondent.

THE CHIEF JUSTICE.—The first question we are called upon to decide in determining this appeal is as to whether the judgment which the learned judge ordered to be entered for the defendant was warranted by the findings of the jury.

The questions left to the jury were the following:

1st. Was the railway company guilty of any negligence in running the motor car?

2nd. If you find that the company was negligent, in what did the negligence consist?

3rd. Was such negligence the cause of the accident?

4th. At what rate of speed was the car running at the time of the accident?

5th. Could Rowan by the exercise of reasonable care and diligence have avoided the accident?

To these questions the jury answered as follows:

To the first they say, yes. To the second they answer, “running too fast.” To the third, simply, yes. To the fourth they say sixteen miles an hour. And to the fifth and last question their answer is, “we believe that it could have been possible.”

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The four first findings by themselves would clearly have required that the judgment should have been entered for the plaintiff (the appellant), but the learned judge, treating the answer to the fifth question as a finding of contributory negligence on the part of the appellant, entered the judgment against him. This construction of the answer to the fifth question seems also to be that adopted by the Court of Appeal, who, however, have not placed the reasons for their judgment on record.

There can be no doubt but that the first four findings are conclusive against the respondents on the question of negligence. The jury find that this neglect of duty on the part of the respondents consists in running their car at an undue rate of speed and that this was the cause of the accident.

The question put to the jury on the subject of contributory negligence was not so framed as to elicit from them any statement of what, in the event of their answer being an affirmative one, the contributory negligence consisted. Then are we to construe the answer to the fifth question as a finding of contributory negligence, that is negligence on the part of the appellant which was a proximate cause of the accident; in other words, negligence but for which the car would not have come in collision with him? I am of opinion that we ought not to follow the courts below in placing such a construction upon the language of the jury. The question called for a direct categorical answer, yes, or no, and had the jury seen their way to an absolute conclusion either one way or the other, the answer would no doubt have been in that form. In order to disentitle the appellant to recover, it must be found distinctly that the accident was attributable to his failure in the duty imposed upon him of taking proper care to avoid the accident. Can it be said that

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the answer of the jury amounts to this? In the appellant’s factum there is contained a very clear and able verbal criticism of this answer to the fifth question, and if any one can have doubts as to the meaning of the jury, the appellant’s argument printed in his factum will, I think, be found convincing. It is quite consistent with the wording of this answer that it might have been most improbable that the accident could have been avoided by such reasonable care as the appellant was bound to take. I find in a judgment which I shall have to cite for another purpose upon a point of law, an instance in which the word “possible” is shown to be quite compatible with the expression “improbable” or “extremely unlikely.” In this case (which happens to be, like this, an action for negligence, though that is not material, as I do not cite it as authority but merely as showing the meaning of the words) Chief Baron Palles speaking of the accident in the case before him says:

That it can happen with due care is, according to my experience, no doubt possible, but extremely improbable^[1].

In the same way here it may also be said that the avoidance of the accident by due care on the part of the appellant might have been possible but was extremely improbable. We cannot therefore accept the answer as one imputing to the appellant want of due care as a proximate cause of the injury which can alone constitute negligence sufficient to deprive him of his remedy against the respondents for their negligence of which the jury have in no ambiguous terms found them guilty. I regard this verdict as amounting to no more than if the jury had said, “perhaps it might have been possible.” Then what must be the effect of this conclusion. The findings of the jury in

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the answers to the first four questions establish a conclusive case of actionable negligence amply sufficient to entitle the appellant to judgment. The answer to the third question distinctly finds that this negligence was the cause of the accident. This last answer, meaning as we must take it to mean “sole cause of the accident,” would of course be inconsistent with any findings of contributory negligence since that must consist in doing or not doing something which was the proximate cause or a proximate cause of the collision. Therefore must we not regard the findings taken together as negativing contributory negligence? I am of opinion that must be the result. Combining the answer to the third and fifth questions, I read them as if the jury had said the defendant’s negligence was the cause, though “perhaps” the accident might have been avoided if the plaintiff had taken more care. Upon such an answer in terms there could be no doubt but that the judgment should have been entered for the appellant.

It may, however, be said on behalf of the respondents that there was some evidence of contributory negligence and that question ought therefore to have been passed upon by the jury, and as it has not been there should be at least a new trial. The respondents did not plead contributory negligence as they availed themselves of their right to plead “not guilty by statute” under which they were entitled to raise this defence which they certainly insisted upon at the trial. Therefore when we strike out, as it were, the answer to the fifth question there seems at first sight some reason for saying that there is no finding of the jury on a most material defence set up at the trial, one which the learned judge considered the evidence warranted him in leaving to the jury, and that, therefore, there ought to be a new trial as a necessary conse-

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quence of the course adopted in treating the answer of the jury as immaterial. No doubt the court may under Con. Rule (Ont.) 615 on a motion to enter judgment, if it thinks the justice of the case requires it as a consequence of their decision that a wrong judgment was entered, grant a new trial although neither party has in the first instance asked for it, and such new trial may be either of the whole case or of some particular issue or question. I have, however, come to the conclusion that this course ought not to be followed here for reasons which I proceed to state. In the first place there has been, as said before, a finding on this question of contributory negligence. The third and fifth answers read together amount to a negation of it. Further the respondents cannot be entitled to a new trial unless they are able to point to some evidence of negligence on the part of the appellant. Then I can find none. The appellant had a perfect right to ride on a bicycle either between the rails on either line, or on the strip between the two lines of rails; this was only that ordinary use of the highway to which the public are entitled of common right, for the railway company is not to be considered as having expropriated so much of the highway as lies between their lines of rails. Then they are bound to make a reasonable use of the privilege they have obtained to run electric cars on their rails laid on the streets and this requires due care as regards other passengers. An undue rate of speed such as they were running at in the present case constitutes negligence and this has been rightly found against them by the jury. Now in what way was the appellant guilty of contributory negligence? Certainly not in riding on the strip between the rails; he had a right so to use the highway. It will be said perhaps that there was evidence that the gong was sounded and that he

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ought to have heard it; the answer to this is that the car being run at the rate of sixteen miles an hour which was in itself negligence, the appellant was not bound to look out for it as he was for cars running at the regular and established rate of not more than eight miles, any more than a foot passenger using a common roadway is bound to look out for and avoid vehicles which are being driven along it at racing speed. The sounding of the gong, assuming that evidence to be true, does not therefore relieve the respondents from their liability or make out the appellant’s failure to hear it or to be warned by it to be a contributing proximate cause of the accident. Then it will be said that the plaintiff turned the wrong way when he became aware of the proximity of the car. What people ought to do for purposes of self-protection when in a cool and deliberate frame of mind is no standard of what they ought to do when suddenly placed as the appellant was here by the negligence of the defendants in the presence of immediate danger. It does not lie in the mouth of those who by their wrongful conduct placed him in such a dangerous situation to say that he might have avoided the accident if he had kept his presence of mind. I do not refer particularly to the evidence as Mr. Justice Gwynne in the judgment which he has written has done that, and I entirely agree with his observations on it. If it is said these were matters of fact for the consideration of the jury whose duty it is not only to deal with any conflict on the testimony but also to draw inferences from the facts in evidence, the answer is that there is also a preliminary duty for the judge to perform; he must determine whether there is any evidence for the jury. As Lord Blackburn said in Dublin, Wicklow and Wexford Railway Co. v. Slattery^[2].

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There is in every case a preliminary question which is one of law, viz.: whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies; if there is not the judge ought to withdraw the question from the jury and direct a nonsuit if the onus is on the plaintiff or direct a verdict for the plaintiff if the onus is on the defendant.

Again in the same case Lord Penzance says:

The proof of the first issue, which is that of the defendant’s negligence, is upon the plaintiff, the proof of the second, which is that of contributory negligence, lies upon the defendants. Upon either of these issues it is competent to the judge to say negatively that there is not sufficient evidence to go to the jury.

Then in performing this duty all reasonable inference must be drawn by the judge or court. In the case of Flannery v. The Waterford & Limerick Railway Co.^[3], Palles C.B. having before him a case in which it was sought to apply this rule on a motion to nonsuit on the ground that there was no evidence of negligence, says:

The rule has no application to cases in which a reasonable inference in favour of the plaintiff might be drawn. * * In determining this the judge must avail himself of his knowledge of the ordinary affairs and incidents of life.

There is of course nothing new in these well established principles and I only make the references to authorities for the sake of making my meaning clear. I must then hold that there was in the present case no evidence of contributory negligence for the jury.

But there is still a further ground for allowing this appeal. Supposing that I am wrong in interpreting the findings of the jury as negativing contributory negligence and in holding there was no evidence of it for the jury, and it is therefore said that there ought to be a new trial in order that this question of the plaintiff’s negligence may be submitted to another jury, I think that in that view and in the absence

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of any finding as regards contributory negligence upon which the court can act this would be a proper case for the application of rule 615 (Con. Rules Ont.). By that rule on a motion for judgment or a new trial the court may, if it has all materials before it for finally determining the questions in dispute, give judgment accordingly. Then here the court has before it all the evidence which the parties were able to adduce on this question of fact and they may therefore in the absence of any finding by the jury on the point in question take upon themselves the decision of the question. Hamilton v. Johnson^[4]; Toulmin v. Millar^[5]. I have therefore no hesitation in saying that having recourse to this rule of practice and dealing with the question of contributory negligence on the evidence as a question of fact just as a jury might do, I should find that there was not sufficient proof of that fact, and that the defence based on it consequently failed.

The appeal must be allowed with costs, the judgment for the respondents vacated and judgment entered for the appellant for $1,500, the damages found by the jury. The appellant must also have his costs in the court below.

TASCHEREAU J. concurred.

GWYNNE J.—The question on this appeal is as to the construction to be put upon the answer of the jury to one of several questions submitted to them by the learned trial judge.

The plaintiff in his statement of claim complains of having been run down and severely injured by an electric motor car of the defendants on the night of the 2nd of July, 1896, when he was riding on a

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bicycle on Spadina Avenue in the City of Toronto and he charges specifically

that the said accident was occasioned solely by reason of the gross negligence of the defendants and their agents in running their motor car negligently, recklessly and at a dangerous and excessive rate of speed on the said highway at the time of the accident.

To this claim the defendants pleaded the general issue of not guilty per statute. The case came down for trial on the 31st March, 1897, and as presented by the plaintiff was that on the night of the 2nd of July, 1896, he, his wife, and a Mrs. Wright entered on Spadina Avenue coming from the west on a street called Harbord street; that on reaching Spadina Avenue they looked down south on that avenue to a place called Knox College Crescent to see if there was a railway car coming up; that they could see down to the crescent and there was then no car on Spadina Avenue north of the crescent; that thus finding there was no danger to be apprehended they proceeded north at the rate of a little over eight miles an hour on their way to the plaintiff’s home close to Bloor street; that while so going north the plaintiff went on the east track, Mrs. Wright to his left on the strip between the up and down tracks called the devil’s strip, and the plaintiff’s wife to the left of Mrs. Wright; that he, the plaintiff, continued on the east track apprehending no danger until on reaching Sussex street which crosses the avenue at the distance of 531 feet from Harbord street he was suddenly run down by a motor car going north and carried forward by the car for a distance exceeding 200 feet; that the sound of a gong and the flash of a light from the bull’s eye on the car was the only notice he had of the car, when on his instantly turning to the right to get off the track and to endeavour to avoid collision he was struck by the car simultaneously with the sound of the

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gong and the flash of the light; that in the plaintiff’s opinion the car was going fully at the rate of twenty miles an hour. There can be no doubt that the car must have been going at a very excessive rate of speed to have overtaken the plaintiff at the distance of 531 feet from Harbord street if he was travelling even only at six instead of eight miles an hour, and if, as affirmed, there was no car on Spadina Avenue north of Knox College Crescent when he proceeded north from Harbord street, and if, as appearing in evidence the plaintiff was carried over 200 feet from where he was struck while it was proved that a car travelling at the rate of eight or nine miles an hour could be readily stopped within the length of at most two cars or sixty feet. The ladies riding with the plaintiff gave their evidence in support of that of the plaintiff. As to the rate of speed they did not assume to state a rate per hour at which the car was going, but they said that it was travelling at a rate twice as fast or more than the usual rate of speed which they had repeated opportunities of observing and had observed on Spadina Avenue. The plaintiff’s evidence was also supported by an independent party who having entered on Spadina Avenue from the east on Classic Avenue, the street next south of Harbord street, also rode up the eastern track of the railway going, as he said, from eight to ten miles an hour and faster than the plaintiff whom he was overtaking and who, when witness reached Morris street, was approaching Sussex street where the collision took place, and the next street north of Morris street. When this witness reached Morris street he went off the track on to the blocked road on the east for the purpose of avoiding being run over by this same car from which he very narrowly escaped. In fine the plaintiff’s contention was rested upon the evidence of twelve witnesses

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including himself, and that of the defendants upon the evidence of eighteen witnesses whom they called. The whole of this evidence fills 175 pages of printed matter taken down at the trial which was very protracted having extended over a period exceeding four days during which the jury had the fullest opportunity of estimating the value of the evidence. Having given a short substance of the case as presented by the plaintiff it is meet that I should, for the purpose of this appeal, state what the case of the defendants, as presented at the trial, was. This appears by a reference to a report made to the defendants at the time of the occurrence of the accident by the motorman in charge of the car which struck the plaintiff and by a brief summary of that motorman’s evidence at the trial.

The report is as follows:

Going up Spadina Avenue, July 2nd, 1896, time 10.20 P.M., I saw two ladies and one gentleman on bicycles 500 feet ahead of me. I struck the gong several times. They kept going on at a slow rate of speed north, on the down track. When I came almost up to them the gentleman suddenly turned to cross in front of motor. The motor struck him; I just had time to shout and apply the brake. Policeman Young, No. 55, heard me strike the gong, and saw the man try to cross in front of the motor.

(Sgd.)         P. O’NEILL,

Motorman.

The policeman here named was called by the plaintiff.

O’Neill in his evidence at the trial said that when he came near to Classic Avenue he noticed some people coming out of Harbord street on bicycles; they were separated and strung out on the west track, not close together; that the east track upon which his car was travelling, was clear. That shortly afterwards he noticed a man on a wheel wobbling in front of him. Whether or not this man was the one whom he had seen with the ladies on the west track he could not

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say, but there was a man wobbling in front of him, turning in and out, zigzagging, sometimes on his track, sometimes not; that he rang the gong just in the ordinary way; that he was then pretty well up to Morris street, close to Morris street or somewhere along there; that from that time he kept his eye upon him, just in the ordinary way; that he did not particularly notice them more than other bicyclists going along; then he wobbled off; that shortly afterwards again a man turned in, in front of him; that he could not tell whether this was the man who had got in at Harbord street or not; that the witness struck the gong again, and that the man turned off, clear out off the strip, off the rails altogether, off the east side, off the up track; that then the witness came along so that the three bicycles were under his observation; that he saw the two ladies and one gentleman; that they were wheeling along leisurely, apparently in conversation; that he, witness, was ringing the gong in the usual way; that he had struck the gong different times going along in the usual way; that when he came to Sussex street the two ladies were in front of the gentleman; that they were on the north side, all three on the west track, or one of the ladies might have been on the block pavement; that no one was on the devil’s strip or the east track; that just as he passed the first or south trolley pole on Sussex Avenue he was looking at them, and the gentleman then suddenly turned leisurely across; that witness was ringing his gong before the gentleman came on to his, the east track at all; that before his wheel got on over to the up or east track, that he, witness, had rung the gong and applied the brake, and there was a collision just about the boulevard at the north side. Witness did not say at what rate of speed per mile he was travelling but just said that he was going at

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the usual speed. This was the substance of the defence as relied upon by the defendants at the trial.

In short the whole contest at the trial was, whether as contended by the plaintiff the defendant’s negligence was the sole cause of the accident, or on the contrary, as insisted upon by the defendants, the rash, negligent and reckless conduct of the plaintiff himself. The plaintiff and his witnesses were subjected to a rigid cross-examination for the purpose of establishing that the testimony of the plaintiff and his witnesses was wholly unreliable, and that of the witnesses for the defence alone reliable, and so that the plaintiff was himself the sole cause of the disaster which befell him and that no negligence whatever was established against the defendants.

The learned trial judge in a charge, of which the defendants have no reason to complain, submitted to the jury the following questions:

1. Was the railway company guilty of any negligence in running the motor car?

2. In what did the negligence, if any, consist?

3. Was such negligence the cause of the accident?

4. At what rate of speed was the car running at the time of the accident?

5. Could Rowan by the exercise of reasonable care and diligence have avoided the accident?

6. If the plaintiff is entitled to recover at what do you assess the damages?

These questions the jury answered as follows:

To the 1st they answered, “yes.”

To the 2nd they answered, “running too fast.”

To the 3rd they answered, “yes.”

To the 4th they answered, “16 miles an hour.”

To the 5th they answered, “we believe that it could have been possible.”

To the 6th they answered, “$1,500.”

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It is upon the answer to the 5th question that the principal appeal turns. The courts below have construed that answer as a verdict of the jury that the plaintiff was himself guilty of negligence, which contributed to the disaster, and accordingly the trial judge rendered judgment for the defendants, dismissing the action but without costs. The Court of Appeal at Toronto have affirmed this judgment. Now it is to be observed that there is nothing in the evidence to show that the defendants ever contended that the plaintiff was guilty of contributory negligence. They never rested their defence upon so low a ground. Their contention always was that they were guilty of no negligence whatever, and that the disaster from which the plaintiff suffered was occasioned wholly and solely by what they charge to have been his own rash, reckless, foolish conduct. Contributory negligence was never relied upon nor mentioned by the defendants. If the plaintiff’s conduct was such as was said by the witnesses called by the defendants, and upon which they relied, such conduct would have established not what is known as and called contributory negligence of the plaintiff but would have fully established the contention of the defendants that the collision was caused solely by the rash and reckless conduct of the plaintiff himself. Upon this contention they still rely and contend that there was no evidence of negligence upon the part of the defendants to be submitted to the jury, and that the finding that the defendant’s car was running too fast was not a finding of negligence, and that there was no evidence to shew, even assuming the car to have been running at sixteen miles an hour, that such speed was dangerous. The only evidence to the effect that the plaintiff had conducted himself as alleged by the defendants, was that given by witnesses who, in the same breath that they described

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the conduct of the plaintiff, testified that the motor car was not running at an excessive rate of speed and that the motor man by every means in his power was endeavouring to avoid the collision which as they said was wholly occasioned by the plaintiff’s own rash and reckless conduct. It is in my opinion quite impossible to construe the answer of the jury to the 5th question as a verdict of contributory negligence against the plaintiff. The case must be dealt with as one wherein it is established by the answers of the jury to the first four questions that the accident was caused as charged by the plaintiff by the negligence of the defendants, which negligence consisted in the motor car having been run at a rate of speed which the jury have pronounced to have been excessive. A plaintiff to whom contributory negligence is imputed has as much right to insist that the defendants upon whom the onns probandi rests shall specify with as much certainty and prove the act or acts of negligence relied upon, and that the jury should specify what is the act of negligence of the plaintiff, if any they find, which contributed to the disaster, as the defendants have to insist that the plaintiff should specify and prove the act or acts which he relies upon as constituting the negligence of the defendants charged as having caused the disaster; and that the jury should find what negligence of the defendants, if any, was the cause of the accident in the case submitted to them. It may and frequently does happen that the state of alarm in which a person is put upon finding himself exposed to imminent danger to life or limb causes him to take a course which in the exercise of reasonable care and diligence he would not take, and by so doing to increase his risk and in fact bring about the catastrophe which he was endeavouring to avoid; but the taking in such case of a wrong course would

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not justify a verdict of contributory negligence. In the present case, however, as already observed, the defendants did not rely upon any act of the plaintiff as constituting contributory negligence, nor did the learned judge in his charge to the jury submit to them any question as to contributory negligence if they should adopt the evidence of the plaintiff and his witnesses as to the cause of the accident having been the excessive speed at which, as charged by the plaintiff, the motor car was being propelled. In such case the evidence did not show any sufficient foundation upon which a verdict of contributory negligence should be supported.

The answer of the jury to the 5th question and that question itself must be read in the light of the charge of the learned judge when submitting the question and so read the answer seems to me to have an intelligent meaning very different from a verdict of contributory negligence. The learned judge in his charge to the jury said:

Now I have explained to you fully the obligation of the company as to sounding the gong so as to give warning to any vehicle or pedestrian or one who was riding as this plaintiff was on a bicycle. If they gave warning in time to enable him to leave the track, and were not running at an excessive rate of speed at the time, then if he heard or should have heard the warning given and still remained on the track you may reach the conclusion that he was guilty of what is called contributory negligence.

Now the learned judge here in express terms excludes from the question as to contributory negligence, the element or fact of the car having been run at an excessive rate of speed, and for the reason as it appears to me that in case the jury should be of opinion that the accident was caused by the excessive rate of speed at which the car was run they would necessarily be of that opinion by adopting the evidence of the plaintiff, and there appeared nothing in the evidence

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upon which in such a case a verdict of contributory negligence could be supported.

Further on the learned judge says:

Of course, gentlemen of the jury, if he (the plaintiff) was on this strip as it is said he was (by the evidence offered by the defendant and relied upon by them) and went in front of the car after warning was given which he should have heard, and could have heard if he had been paying attention to it, if he went off the strip and on to the railway under these circumstances then he has no right to recover from this company.

In this latter clause the case was submitted precisely as the defendants had throughout contended the facts of the case were, and the jury must have so understood the charge, and if they had believed the defendants’ witnesses it must, I think, be admitted that the defendants were, as they contended, entitled to a verdict to the effect that the plaintiff’s own negligent, rash and reckless conduct was the sole cause of the accident, and that the jury upon the charge of the learned judge would have so found. But the jury’s answers to the first four questions are quite in accordance with their rejection of the defendants’ evidence and their acceptance and adoption of that of the plaintiff, and having answered those questions as they did they might well have considered they had disposed of the whole case as submitted to them and might have left the fifth question unanswered, but they perhaps thought that courtesy required that they should answer the questions submitted by the judge as best they could which was in the qualified manner that they did. The true meaning of such their answer as it appears to me is that answering the question in the light it was dealt with in the charge of the learned judge, they cannot say with any certainty but they believe that it could have been possible for the plaintiff to have avoided the accident if the conditions sug-

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gested by the learned judge in his charge had existed, that is to say

if they gave him warning in time to enable him to leave the track and were not running at an excessive rate of speed at the time, &c.,

as put by the learned judge in his charge.

In my opinion the appeal must be allowed with costs and judgment be ordered to be entered in the court below for the plaintiff for fifteen hundred dollars damages and the costs of the action. The evidence is abundantly sufficient to support the express finding of the jury that the accident was occasioned by reason of the excessive rate of speed at which the motor car was propelled as charged by the plaintiff.

KING and GIROUARD JJ. concurred.

Appeal allowed with costs.

Solicitor for the appellant: James Leith Boss.

Solicitors for the respondent: Laidlaw, Kappele & Bicknell.