Armand v. Carr, [1926] SCR 575

Supreme Court of Canada

Armand v. Carr, [1926] S.C.R. 575

Date: 1926-06-14

Gustave Armand (Defendant) Appellant;

and

Fred Carr and Kitty Carr (Plaintiffs) Respondents.

and

Ernest Wilcox (Defendant).

1926: May 20; 1926: June 14.

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.

Negligence—Automobile collision—Injury to gratuitous passengers—Responsibility of driver—Care “reasonable under all the circumstances” —Appeal to Supreme Court of Canada—Jurisdiction—Value of matter in controversy—Alleged cause of action of a plaintiff (respondent) distinct from that of co-plaintiff—Requirement for right of appeal de piano.

Plaintiffs were gratuitous passengers in an automobile owned and driven by A. It collided with a taxicab driven by W. Plaintiffs sued A. and W. At trial Meredith C.J.C.P., on the evidence held W. alone to blame. The Appellate Divisional Court, Ont., apparently without intending to disturb his findings of fact, took the view that on those findings, as they understood them, A. had also been guilty of negligence which contributed to the collision and should be held jointly liable with W. On appeal by A. to the Supreme Court of Canada:

Held, the Appellate Divisional Court appeared to have misapprehended the findings at the trial in certain important particulars; the evidence supported the trial judge’s findings, and did not disclose negligence in A.’s conduct. It might be that in an emergency he did not exercise the best possible judgment, but even that was doubtful; if there

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was any error on his part, it amounted, at the most, to an excusable mistake in judgment and did not involve any breach of duty owing to his passengers such as would predicate a failure to take that care which would have been “reasonable under all the circumstances,” which is the test of the responsibility of one who undertakes the carriage of another gratuitously (Karavias v. Callinicos [1917] W.N. 323; Harris v. Perry & Co. [1903] 2 K.B. 219; the contention for some lower standard, argued as being implied in Nightingale v. Union Colliery Co., 35 Can. S.C.R. 65, rejected); and A.’s appeal should be allowed. Idington J. dissented, holding that the evidence established such negligence in A.’s conduct as made him jointly liable with W. for the damages suffered by plaintiffs.

On the question of this court’s jurisdiction to entertain the appeal as against one of the plaintiffs (respondents), it was held that, if he had a cause of action it would be complete in itself and entirely distinct from that of his co-plaintiff; and in such a case the value of the matter in controversy on the appeal to this court, with regard to each individual respondent, must exceed the sum of $2,000 in order to give a right of appeal against him de plano. (“L’Autorité” Limitée v. Ibbotson, 57 Can. S.C.R. 340).

APPEAL by the defendant Armand from the judgment of the Second Appellate Division of the Supreme Court of Ontario[1] which, reversing the judgment of the trial judge, Meredith C.J., C.P., held said defendant jointly liable with the defendant Wilcox for damages suffered by the plaintiffs through an automobile collision. The facts of the case are sufficiently stated in the judgments now reported.

A.C. Heighington for the appellant.

D.O. Cameron for the respondents Carr.

C.R. Widdifield for the respondent Wilcox.

The judgment of the majority of the court (Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.) was delivered by

ANGLIN C.J.C.—The plaintiffs were gratuitous passengers in an automobile owned and driven by the defendant Armand. While travelling easterly on the Toronto-Hamilton highway this automobile collided with a taxicab being driven westerly by the defendant Wilcox. The collision occurred at about 7.50 o’clock on the evening of the 29th of October, 1924, at a point approximately three miles east of the town of Oakville.

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The plaintiffs, who were seriously injured, sued both Armand and Wilcox. The learned trial judge (Meredith C.J., C.P.) held that Wilcox was alone to blame for the collision and he assessed the damages of the plaintiff Fred Carr at $1,500 and those of the plaintiff Kitty Carr at $3,000. The Second Appellate Divisional Court (apparently without intending to disturb the findings of the trial judge) took the view that on those findings, as they understood them, the defendant Armand had also been guilty of negligence which contributed to the collision and therefore should be held jointly liable with Wilcox[2]. From this judgment Armand appeals. There is no appeal by Wilcox.

The view of the trial judge may be best appreciated; by reading the following extract from his judgment:

I have now to determine whether either of these drivers was guilty of that negligence which gives a right of action. I am quite unable to see how Armand was guilty of negligence of that character. He was driving his car in a careful manner, not at an excessive rate of speed. Why should he be doing otherwise? He was in no great haste. He had a load that he would not desire to hurt, or run any risk of hurting. He is said to have been a careful driver, and he looks like a very intelligent, careful man.

The story is: That he was driving carefully along the road until the lights on Wilcox’s car disturbed him. Those who drive cars know that such things do happen, and are very likely to happen. Then he did that which it seems to me a careful driver would do; he kept well on his own side of the road, so much so that he ran off the pavement on that side in doing so. That caused some bumping and occasioned an outcry of one of the occupants of the car, and then he did that which was quite proper in all the circumstances of the case; he came back upon the paved portion of the highway gradually. He seems to have come back in a careful way; he did not make a sudden turn so as to bring him on the road abruptly, but he came carefully along. It is evident if he had turned on the road abruptly and run across his half of it he might put those who might be coming along the other side of the road in danger. On coming back wholly upon the pavement he seems to have gone as far as the middle of the road; he probably crossed the middle line of the pavement a foot or so. That was what would ordinarily happen with a man proceeding as carefully as he was. When that was accomplished he proceeded towards his right and he was then driven that way more so by Wilcox’s approach. He and the man with him—Carr—saw Wilcox’s car bearing down upon him; and he was well over off Wilcox’s side of the road when Wilcox’s car ran into his. That is what happened. How can Armand be blamed for anything in that? That story is what one would naturally expect; there is nothing unusual about it; and that story is in exact accord with the testimony of the gentleman who saw the cars immediately after the accident, a man who is connected with

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some Collegiate Institute in Toronto, a very competent and trustworthy-witness, whose testimony is altogether in favour of Armand, and against Wilcox.

What is there on the other side? Several witnesses who swear that from their first view of Armand’s car Armand was driving in what I may describe as a wild manner, going from one side of the road to the other. Is that believable? If it is, let those believe it who may; I cannot. Unless the man had lost his memory and mind some time before this accident, it could not have happened; and if he had he would not be to blame for it. But it did not happen, and the only wobbling, the only turn, was that to which I referred, and which in no way interfered with Wilcox’s rights on the road.

What about Wilcox? It is manifest he was proceeding at an excessive rate of speed. It does not seem to be unusual with some taxi drivers, especially at that time of night, anxious to get back home. He passed the schoolmaster’s car, and got out of sight of it in a very short time—the schoolmaster’s car going at about twenty-one miles an hour. That was negligent, but would not give a right of action unless it caused an injury. It casts more doubt upon the testimony of the witnesses for Wilcox and Wilcox (sic), and it tends to make it plain to my mind that the accident happened as described by Armand and his witnesses. Armand gave some testimony upon his examination for discovery and that all seemed to me to be quite in accord with the view of the case which I have taken. At one time it seemed as if there might be a conflict of testimony between the two women who gave testimony on behalf of Armand; though one indeed was formally making a claim against him; but it may all be quite consistent. The young woman, Mrs. Grinham, does not remember having shouted, “Where are you going?” but no doubt she said that when Armand was partly off the pavement on his own side. I see nothing inconsistent in the testimony of these two women. And Carr, although suing Armand as well as Wilcox, gave his testimony in a fair way, and was in a position to see, and did know, just what did happen. What did happen was this: Wilcox bore down on Armand at a great rate of speed and was over the centre line of the road. He had abundance of room to pass upon his own side at any rate of speed. A great weight of the credible evidence proves that as also does the position of the cars after the accident.

I was unfavourably impressed, as to credibility, by Wilcox and his witnesses. His own story, indeed, seemed to be so improbable as to reach the impossible; his speed was about five miles an hour, and he could have stopped in a distance of three or four feet. Armand’s car did not run into his, but slued—on a dry pavement and struck broadside, and yet his car was so smashed as to need about $1,000 worth of repairs, including a new chassis-frame and a new axle; and Armand’s car was almost destroyed—four persons almost killed—two crippled badly for life.

I am therefore obliged to find that Wilcox is answerable for all damages that were sustained.

The opinion of the Appellate Divisional Court was delivered by Mr. Justice Fisher. The grounds on which the reversal of the judgment in favour of Armand was based cannot be better stated than by quoting them from his opinion:

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* * * The learned Chief Justice found Wilcox who was driving the car guilty of negligence and added that “I was unfavourably impressed as to credibility by Wilcox and his witnesses.”

Upon a careful perusal of the evidence I am of the opinion these findings were fully warranted and should not be disturbed. The learned trial judge found Armand was driving carefully, not at an excessive rate of speed, but because the lights of Wilcox’s car disturbed or confused him, he first ran part of his car off the pavement to the south and then returned to the pavement and proceeded as far as a foot beyond the middle of the pavement, and that whilst he was attempting to turn again to the south, Wilcox ran into him on that side of the highway and did the damage complained of. The result of all the evidence as I View it, is: had Armand kept his car in the position he had it off the pavement and not attempted to turn against and on to the pavement which was about four inches high, and that if Wilcox had been travelling at a moderate rate of speed instead of at an excessive rate of speed, as found by the learned trial judge, the accident would not have happened. If it was the speed and lights of Wilcox’s car that caused Armand to turn off the pavement, then the question to be asked is, why did he return again to and beyond the middle of the pavement before Wilcox had passed? Had he remained off the pavement the accident would not have happened. He turned off the pavement so as to avoid what appeared to him danger and then almost immediately again turned into the path of that danger. These acts of Armand, in my opinion, constituted negligence on his part and that negligence entered into and cooperated with the negligence of Wilcox.

With the greatest respect to the learned Chief Justice that (sic), these acts of Armand, which he seemed to think were proper, were in my opinion clearly improper and negligent acts, and but for their commission the accident would not have happened. Both Wilcox and Armand were therefore guilty of negligence.

In my opinion, a driver of an automobile, going at the rate of eighteen to twenty miles per hour, with the wheels on one side off the pavement and sunken four inches below it, with confusing headlights from an approaching automobile, turns his car out of the sunken running rut at that rate of speed on the pavement and in the direction and path of an oncoming car, is guilty of a degree of negligence which disentitles him, if an accident occurs and action follows, to the recovery of damages. The driver in such circumstances should either have continued with his right wheels off the pavement (in this case he could have without danger or difficulty) or, if that appeared to him dangerous or impracticable, his plain duty was then to have stopped.

The learned appellate judge would appear to have misapprehended the findings at the trial in three important particulars. He says that “he (Armand) turned off the pavement so as to avoid what appeared to him to be danger” (i.e., presumably purposely). A few sentences earlier, more in accord with the view taken by the trial judge, he had said: “Because the lights of Wilcox’s car disturbed or confused him, he first ran part of his car off the pavement to the south” (i.e., probably unintention-

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ally). The learned Chief Justice had found that “the lights on Wilcox’s car disturbed him (Armand) * * * he kept well on his own side of the road, so much so that he ran off the pavement on that side in doing so” (i.e., accidentally).

Again the learned appellate judge says that Armand’s car was struck “whilst he was attempting to turn again to the south,” i.e., before he had regained his own side of the pavement. The learned trial judge found expressly that Armand “was well over off Wilcox’s side of the road when Wilcox’s car ran into his. That is what happened.”

Mr. Justice Fisher also expressed the view that Armand in turning back on to the pavement passed “into the direction and path of an oncoming car” (Wilcox’s). The learned trial judge found that “the only turn” made by Armand “in no way interfered with Wilcox’s rights on the road.”

While the stories told by the passengers in Wilcox’s car as to Armand’s course and Wilcox’s position on the road no doubt point to a different conclusion, the testimony of the two plaintiffs and the corroboration of it afforded by the actual situs and relative position of the two cars as they were found by the two witnesses Reid and Charington, who were wholly disinterested, fully supports the findings made by the learned trial judge in all particulars. Indeed, as already stated, we do not understand that Mr. Justice Fisher meant to differ from Mr. Chief Justice Meredith upon any question of fact.

When confronted with the glare of the headlights of the Wilcox car, Armand, although he was then on his own side of the road, did a prudent thing in turning still farther to the right. That in doing so he accidentally allowed his right wheels to slip over the edge of the pavement is not at all surprising when the blinding and confusing effect of the approaching glaring headlights is taken into account. It certainly does not bespeak negligence. Armand then found himself in a very difficult position. His right wheels were on the gravelled sideway about four inches below the level of the road and so rough that one of the two women passengers cried out in alarm. To his right, and quite close, was a ditch guarded by a fence. Having regard to what subsequently occurred Armand would no doubt have

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been well advised had he tried to stop his car even at the risk of crashing into the fence and possibly of landing it in the ditch. What he did, as found by the learned trial judge, was to slow down somewhat and come

back on the paved portion of the highway gradually. He seems to have come back in a careful way. He did not make a sudden turn so as to bring him on to the road abruptly, but he came carefully along.

Whether in executing this manoeuvre any part of Armand’s car ever crossed the centre line of the road is extremely doubtful. The learned trial judge says it “probably did a foot or so.” The plaintiff Fred Carr, who deposes to this fact, says “he (Armand) came to about the centre of the road—it might have been a foot over, never more than a foot” and “he swerved back again to his own side,” so much so that Fred Carr feared he would certainly collide head on with the fence which ran along the right hand side of the road at this point.

With the utmost respect we do not discern any negligence or fault in what Armand did. It may be that in an emergency he did not exercise the best possible judgment in returning to the pavement; but even that is at least doubtful. If there was any error on his part, it certainly amounted, at the most, to nothing more than an excusable mistake in judgment and did not involve any breach of duty owing to his passengers such as would predicate a failure to take that care which would have been “reasonable under all the circumstances.” We regard this as the test of the responsibility of one who undertakes the carriage of another gratuitously—Karavias v. Callinicos[3]; Harris v. Perry & Co.[4]—rather than some lower standard, which counsel for the appellant argued is implied in the decision of this court in Nightingale v. Union Colliery Co.[5].

For these reasons we think the judgment of the trial judge should not have been disturbed. The appeal as against Kitty Carr will accordingly be allowed with costs.

The defendant Wilcox, although but slightly interested, was made a respondent to this appeal. He did not file a factum but appeared by counsel and supported the judgment against Armand. The costs of Armand, however,

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were not thereby increased and the costs awarded him should be payable only by any respondent whose judgment against him is set aside.

The question of the jurisdiction of this court to entertain the appeal so far as concerns the claim of Fred Carr, who was awarded $1,500 damages, was brought to the attention of counsel at the conclusion of the argument and they were heard upon it. It is perfectly clear that if Fred Carr has a cause of action it is complete in itself and entirely distinct from that of his co-plaintiff Kitty Carr, and it is equally clear that in such a case the value of the matter in controversy on the appeal with regard to each individual respondent must exceed the sum of $2,000 in order to give a right of appeal against him de plano. “L’Autorité” Limitée v. Ibbotson[6].

On Friday last, the 11th of June, however, the Appellate Divisional Court on the application of Armand made an order extending the time for an appeal by him as against Fred Carr and granting special leave for that appeal. The order of the court has been duly filed and we may treat this appeal as properly before us.

No distinction can be made between the cases of Kitty Carr and Fred Carr and the appeal from the judgment in favour of Fred Carr will therefore also be allowed.

IDINGTON J. (dissenting).—This is one of three actions arising cut of a collision between two automobiles on the highway from Toronto to Hamilton, running through Oakville.

This action was brought by the plaintiffs, now respondents, Fred Carr and Kitty Carr, against the respective drivers of each automobile.

The learned trial judge directed them to be tried together before him without a jury. The counsel for respondents—the Carrs—who were plaintiffs in this case, wished the jury to be retained, but some other counsel in the other cases preferred dispensing with the jury. They were by no means unanimously in favour of trying them together.

I respectfully submit the doing so has been, I imagine, the source of much confusion and omissions as will appear later to clear up several points.

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The other actions are, so far as appears, disposed of either by the learned trial judge or the Second Divisional Court for Ontario.

The appellant Armand owned a Dodge sedan and offered the Carrs (now respondents herein) and other friends a free ride from Oakville to Toronto on the night of the 29th of October, 1924.

The respondent Wilcox was a taxi driver, living in Galt, who owned a Studebaker Special, and drove it from Galt to Toronto by way of other highways connecting with above-mentioned highway at Bronte, and thence to Toronto, having, on the occasion in question, a number of ladies resident in Galt, as paying passengers, and, on said night they were returning home with him in said car.

The plaintiffs, the said Fred and Kitty Carr, now respondents, are husband and wife but had seperate claims for their personal damages which each had respectively suffered in said collision.

The appellant Armand started with his passengers from Oakville between seven and eight o’clock on said evening, to attend a concert to take place in Toronto at nine o’clock on said evening. And when, according to some witnesses, three or four miles from Oakville, they saw the other respondent’s car with his passengers, coming westerly and carrying a bright light as usual when darkness had come on. All seem agreed it was a dark night. Some one of the passengers in Armand’s car cried out: “See that car coming,” or words to that effect, referring to Wilcox’s car. Armand was driving his own car and simply said thereupon “That damned light,” evidently disturbed by its brilliance. He immediately turned, from being near the centre of the concrete paved part of the highway, to the right hand and got his car over, not only the said concrete-paved part but also a strip three feet wide which runs alongside of the concrete pavement and is made of macadam or gravel, and is solid and travellable so far as so constructed, till it meets the grass or ordinary soil, and his two right hand side wheels sank some four inches into the said soil. And then, apparently because one of his lady passengers called out “Gus, where are you going,” he turned back again across the said strip and the concrete-paved part of the highway till he had got a foot beyond

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the centre line of the concrete pavement, and then turned back to the right, and the respondent Wilcox, driving his car, struck it against the rear part of Armand’s car. I shall presently deal more at length with the actual situation thus created. Meantime I wish to say that the result was a considerable damage to each car and very serious damage to Armand and to all the passengers in his car, to which I am about to refer more in detail.

Amongst those so injured are the respondents Fred and Kitty Carr, who have sued herein the appellant, and respondent Wilcox. The appellant Armand was thrown from his seat on to the highway and was so injured as to become unconscious and to remain so for a week. His memory has so failed him that he cannot remember anything that so transpired and can give no explanation of his pursuing such an erratic course of conduct in driving his car, when facing a very obvious danger.

The appellant, Fred Carr, who was sitting in the front seat with Armand and was, I assume (using common knowledge as well as having regard to what he says) on the right hand side of the car, testifies that he was reading the speedometer and it shewed they were running at a twenty-one mile rate of speed until after the slumping over the solid strip which I have referred to, with the two right side wheels sinking four inches, and then, on turning back across the pavement, Armand lowered his rate of speed to eighteen miles an hour, until the collision took place, or a possible stoppage I am about to refer to.

The other car driven by Wilcox, when first seen was a distance of some two hundred yards ahead according to some witnesses, and according to others, about one hundred yards. And, it is practically admitted, it had been, when first seen, travelling at, probably, a twenty-five mile rate of speed, if not more.

The question raised herein is whether appellant in pursuing such a course of conduct as I have outlined was so negligent as to be held jointly liable with Wilcox for the damages suffered by the plaintiffs, the Carrs, now two of the respondents, by reason of the collision, or for part thereof.

The evidence of Fred Carr, to which I wish to call special attention, is as follows:

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Q. You are one of the plaintiffs?—A. Yes.

Q. You were in the car the night of the accident?—A. Yes.

Q. You remember the accident?—A. Yes.

Q. Tell us what happened just before the accident?—A. Well, we saw some bright lights approaching over the brow of the hill about two hundred yards ahead. Mr. Armand said, “Damn those lights, they are bright,” and pulled over to the side of the road and he dropped off the pavement.

Q. How much of his car was off the pavement?—A. Both wheels were off.

Q. Both right hand wheels?—A. Both outside wheels.

Q. Prior to getting off the pavement at what rate was he driving?—A. Twenty-one miles.

Q. How do you know?—A. I was watching the speedometer.

Q. You were sitting with him, and that is the rate he was driving?—A. Yes.

Q. When he went off the pavement?—A. 21 miles.

Q. When he went off the pavement what happened?—A. We ran along for a few yards off the pavement.

Q. Was it rough there?—A. Fairly rough.

Q. What speed was he going at while running with the two right hand wheels off the pavement?—A. 21, but he slowed down to 18 as we came on again.

Q. Did it have any effect on the car?—A. Yes, caused us to bump up and down some.

Q. Did he get on to the pavement again?—A. Yes, he came right over on the pavement.

Q. How far did he get over?—A. A little over the centre.

Q. What happened then?—A. He swerved back again to his own side.

Q. What happened next?—A. Well, I saw another car approaching, the same car that had bright lights, it seemed to come on us, and I spoke to Mr. Armand and he turned out. I was afraid we were going to have a collision with the fence, and put up my feet to avoid it.

Q. A white fence?—A. Yes.

Q. What did Armand do?—A. He shut off his engine and put on his brakes at the same time.

A. At the moment of the collision in what position was Armand’s car?—A. Heading a little towards our own side.

Q. What angle with the edge of the pavement?—A. I couldn’t quite tell you the angle.

Q. If it is half way it is 45?—A. About 45.

Q. Facing what way?—A. Towards the lake.

Q. And?—A. He shut off his engine.

Q. Facing in an easterly or westerly direction?—A. Easterly direction.

Q. About 45 degrees at an angle facing easterly?—A. Yes.

Q. What happened then?—A. I don’t remember anything that happened.

Q. Did you hear a crash?—A. No.

* * *

Q. When you were running off the pavement was there anybody said or did anything?—A. Well, Mrs. Grinham certainly screamed at that time.

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Mr. HEIGHINGTON: Is that evidence?

His LORDSHIP: Evidence that she screamed.

CROSS-EXAMINED BY MR. HEIGHINGTON

Q. When did she scream?—A. Screamed about the time we swerved, or about that time.

Q. Did she say anything?—A. Yes, she called out, “Gus, Gus, what are you doing.”

* * *

CROSS-EXAMINED BY MR. BRACKEN

Q. Do I understand at the time of the accident the Armand car, the front of it, was facing toward the lake?—A. East and toward the lake. Easterly direction and towards the lake.

Q. It was the rear that was struck?—A. Yes.

Q. And you spoke about him swerving a moment ago. Was that swerve off the pavement to the south?—A. On to the pavement and back to the south.

Q. After he got off he swerved on to the pavement?—A. Yes.

Q. And he went over the centre line?—A. Yes.

Q. When he would go off to the south he would have to swerve back again?—A. Yes.

Q. It was just when he swerved up on to the pavement and got over the centre line, it was then he saw the other car?—A. I say the other car seemed—

Q. Let me read you a question from the examination for discovery. Question 13: “Will you just tell me as briefly as you can what took place that night in reference to the accident in your own words?—A. Well, we travelled about to the Gooderham farm—I don’t know how far that is from Oakville—it might be five miles—I never measured the distance—when we approached the Gooderham farm there was a car on the brow of the hill with very bright lights, and Mr. Armand made the remark to me that the lights were bright, and they were bright—he said, ‘Damn the lights,’ that is exactly what he said, and he pulled over to his own side of the road, and he ran off the pavement.

“14. Q. One side of the car?—A. Yes, one side was right off the pavement—he turned over on to the pavement—he came up to about the centre of the road—it might have been a foot over—never more than a foot, and then he turned his head a little that way (indicating), getting squared up again, and I instantly said, ‘Christ, the man is coming right at us,’ and he turned further over towards the fence, and I put my foot off to avoid the collision with the fence—I thought we were going to have a head-on collision with the fence, and I braced myself, and I don’t remember anything more after that.”—A. In my examination I told the stenographer that he shut his engine off and put on his brakes.

Q. The point I want to get at is this: What happened, as I understand your story, is that he got off the pavement and swerved on over the centre and then when he looked out you called out about the car and the car was coming right down the road?—A. No, when I called out about the car it appeared to be coming straight on us.

Q. Any reason why he should come straight on you?—A. No.

Q. Anything you saw?—A. No.

Q. When that situation arose Mr. Armand’s car would be pointing east and north when he got it over the centre?—A. That I couldn’t say.

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Q. He went about a foot over the centre?—A. He would not be a foot east and north.

Q. Which way?—A. East.

Q. Then at any rate whether it was north and east or where it was, it was over the centre, and when you spoke of the lights of the oncoming car—. A. I said in a monotone under my breath—I would not excite anybody driving.

His LORDSHIP: Don’t you mean south and east?—A. He swerved to the right.

His LORDSHIP: He went south and east after that?

Mr. BRACKEN: And he turned further over towards the fence.

Q. He swerved the car to his right?—A. To his own side of the road.

Q. The front of the car would be pointing towards the lake?—A. Lake and east.

Q. At that moment the other car struck you in the rear?—A. Yes.

CROSS-EXAMINED BY MR. HEIGHINGTON

Q. I believe you said in your examination for discovery, Mr. Carr, that if Mr. Armand went at all over the centre of the road after he turned off the concrete it was very slightly he went over.

His LORDSHIP: He said if at all. The witness I understood to say he came well back on to his own side before he was struck?—A. Yes.

Mr. HEIGHINGTON: Q. Do you remember my asking you this question: “How do you know Mr. Armand went over the centre of the road?—A. In watching things you can see very quickly when there is about two feet of pavement this side—you know very well that you are travelling here (indicating with hand), you know that you are—when you see about two feet of pavement from my side of the car.” That is the right hand side?—A. Yes.

Q. You could see two feet of pavement, is that right?—A. Yes.

Q. Which side did you see it?—A. My right hand side.

The concrete pavement on the said highway is only eighteen feet wide. The strip on each side, macadam or gravel, is three feet, thus making the entire width of the travellable part twenty-four feet.

When the appellant for the first time and before his zigzagging turned to the right side, apparently to get out of the way of the respondent Wilcox coming at such a rate about two hundred yards distant, he did a prudent thing, and, as the Appellate Division held in reversing the judgment of the learned trial judge, had he remained there, to the plaintiffs, now respondents herein.

But by returning back and across the centre line of the concrete pavement, he did, in my opinion, a most reckless and unjustifiable thing and thereby rendered himself liable to the plaintics, now respondents herein.

And assuming that he immediately turned with a view to go back to his own side of the highway, can anyone understand why he shut off his engine and put on his

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brakes at the same time, instead of moving out of the way of the oncoming Wilcox car?

Some people imagine that if they get on to their own side of the centre line, they can allow any wild driver to run them down, and smash their car, and the passengers therein, without being liable in any way.

That, I submit, is not the law; in law the driver is bound to use all reasonable care to protect his passengers against the possibilities of injury at the hands of clearly approaching danger, whether of a wild, reckless driver, or other similar source of danger.

Mr. Carr says he cannot remember anything after Armand shut off his engine and put on his brakes. He seems net to have been asked whether the car he was in moved, or instantly stopped. I suspect it is quite possible that appellant Armand’s sudden halting stop helped, and probably was the entire cause of himself and others being thrown out of the car, as they were. I shall presently refer further to this peculiar feature of this case.

I cannot understand why, in all these movements, no warning was given by appellant, such as usually is given when such signs of approaching danger appear. I assume there was none or we should have heard of it.

I must say that a perusal of the entire evidence in this case does not convince me that the appellant’s car only crossed the centre line of the highway by a foot, as Mr. Carr testifies to. I certainly do not think or suspect for an instant that he knowingly errs, but the best of mankind make grave mistakes in their estimates under even less favourable circumstances than here. The night was dark. There is no evidence of any painted line such as sometimes is put in the centre of the road to indicate to travellers just where they are. If this concrete pavement had no such mark, such as I refer to, I fail to see how it was possible to form an accurate sort of judgment of measurement.

I have read many times the quotation from his examination for discovery presented to him by counsel for appellant, and copied in the foregoing part I have quoted, but cannot satisfactorily understand how “seeing about two feet of pavement from my side of the car” helps to accuracy.

[Page 589]

I shall presently advert to that situation but wish first to present my view of the result of the evidence given by the respondent Fred Carr as to the shutting off by Armand of the engine and applying the brakes thereto.

The probabilities of such abrupt action are, that the car suddenly stopped, and in consequence thereof, when going at eighteen miles an hour, the shock therefrom was such—quite independently of the collision—as to throw, as I submit it did, everyone therein, out on to the highway, and hence their very serious injuries, except in the case of Mrs. Grinham.

On the other hand nobody was thrown out of the Studebaker Special, driven by respondent Wilcox which carried the same number of passengers as appellant’s car and struck with its left front spring and penetrated the left hind wheel of the Armand car.

To demonstrate what I thus submit, I must quote from the respective witnesses each car carried, so far as able to speak thereto. Taking those in appellant’s car first, I may point to what I have already said, that Armand, the appellant, was thrown out on to the highway, and so seriously injured as to be unable at the trial to recall anything that happened for some time before the accident.

His wife was thrown out on to the highway and so seriously injured that she could not be a witness at the trial, and we were told by counsel at the hearing hereof that she had since died. Dr. Wilson, who had attended her, told such a story of her injuries that anyone hearing it should not be surprised at such a result.

Mr. Fred Carr, one of the respondents quoted above, was thrown from the car on to the highway and seriously injured.

Mrs. Carr, his wife, who was also thrown from the car and seriously injured, tells, amongst other things, the following:

Q. Where were you sitting?—A. In the centre of the back seat.

Q. Who was sitting with you?—A. Mrs. Armand on my left and Mrs. Grinham on my right.

Q. Who was in front?—A. Mr. Carr and Mr. Armand.

Q. Who was driving?—A. Mr. Armand.

Q. What kind of car is it?—A. It was a Dodge car.

Q. Dodge Sedan?—A. I think so.

Q. What do you remember just prior to the accident happening? Where did the accident happen?—A. I think we had been driving about

[Page 590]

ten minutes, then the car lurched about apparently and there was a crash.

Q. What car?—A. Ours.

Q. The car you were in?—A. Yes.

Q. What happened after that?—A. Then there was a crash.

Q. What do you mean by lurching about?—A. It seemed to pitch from side to side, I think, for a second or so.

Q. Then came the crash?—A. Yes.

Q. Did you know any more?—A. The next I remember I was lying on the road with Mrs. Armand.

His LORDSHIP: I did not get how long this pitch lasted?—A. A few seconds.

Mr. CAMERON: And then you say shortly afterward the crash came?—A. Yes.

Q. Do you know anything about that, how it was caused or anything?—A. I could not say at all. I was sitting in the centre of the back; I was not looking at the road.

His LORDSHIP: Did you observe anything extraordinary or out of the way before you felt this pitch?—A. No.

Q. Seemed to be running smooth for ten or fifteen minutes?—A. Yes, perfectly all right.

Mr. CAMERON: Were there any exclamations made by anybody at the time?—A. Yes, Mrs. Grinham screamed.

Q. She was sitting in the back seat with you?—A. On my right.

Q. When this lurching started she exclaimed something?—A. She said “Gus, where are you going?”

* * *

Mr. CAMERON: What did she say?—A. “Gus, where are you going?”

Q. Who was Gus?—A. Mr. Armand.

Q. Then the crash came. After the crash you found yourself where?—A. Lying on the road with Mrs. Armand between the cars.

Q. You and Mrs. Armand?—A. Yes.

Q. In what position were you?—A. I was lying with my head and shoulders on Mrs. Armand.

His LORDSHIP: Is it at all material?

Then Mrs. Grinham testifies as follows:

Mr. HEIGHINGTON: You are one of the fortunate ones?—A. Yes.

Q. You were sitting on the right hand side of the car?—A. Yes.

Q. The impact took place on the left?—A. Yes.

Q. Now just before the accident can you tell us how Mr. Armand was proceeding in this car and what side of the road he was on?—A. We were on our proper side and seemed to be going perfectly, I think, and I mind, I thought I asked Mr. Armand to go a little faster and he refused to do so. I said, “How are you feeling to-night?” and he said “Fine,” and just then a car came along, and I said “What awful headlights,” and Mr. Armand said “Yes.” I don’t remember any more after that.

* * *

Mr. HEIGHINGTON: Did anything else happen?—A. Nothing else happened. We seemed to be going along perfectly, I think, but I was unconscious for about five minutes after the accident, and it seemed to me everything was perfectly safe.

* * *

[Page 591]

Q. Now after the accident you were the only one that was—A. Conscious.

Q. Did you observe yourself the position of the two motor cars on the road?—A. I did.

Q. Will you tell His Lordship how you found them?—A. Our car was going straight for Toronto, and it looked as if it had been stopped there.

Q. How close to the north side, the south side of the concrete road, the right hand side?—A. When I got out?

Q. You were sitting on the road?—A. Yes.

Q. You got out of the door?—A. I was thrown.

Q. From the back into the front?—A. Yes, Mr. Carr was on top of me.

Q. You had been sitting on the right hand side of the rear seat?—A. Yes.

Such are the stories of what happened those in the appellant’s car.

Wilcox in his Studebaker Special had four passengers. Let us turn to the stories given respectively by these passengers.

Jeannette Graham says:

Q. On what side of the road was Mr. Wilcox’s car at the time?—A. Right side.

Q. Did you get out of the car?—A. After Mrs. Pollock got out. Q. Which side did you get out of?—A. Left hand side.

Evidently she was not thrown out.

Mrs. Margaret Pollock, another of said passengers in the Wilcox car, says:

Q. By reason of something your daughter said you looked?—A. Yes.

Q. When you looked ahead what did you see?—A. I saw a car coming along zigzagging on the highway. The last turn it gave it came straight down, and I seen it make one turn.

Q. Zigzagging and one straight turn?—A. Yes, and came right straight on to us, as if it was coming straight on to us.

Q. When it seemed it was coming straight on to you what side of the road was Mr. Wilcox’s car on?—A. On his right side.

Q. What happened?—A. The care before it came on to us, gave a turn in from the road facing us, and they switched around.

Q. Then what happened?—A. The two cars knocked together.

Q. Did you get out of the car afterwards?—A. I was the first one to get out.

Q. Did you notice how the rear of Mr. Wilcox’s car stood with reference to the side of the road, the right hand side of the pavement when you got out?—A. Yes, sir. I got out the right hand door. I couldn’t get out the left hand door, as Mr. Armand was lying opposite the left door, and I had to get out the other side.

Q. The right hand side, close to the ditch?—A. Yes, I had to go around. The right hand wheel of his car was not very many inches from the grass.

His LORDSHIP: Front or hind?—A. Right hand back wheel.

Mr. BRACKEN: Did you go over to the Armand car?—A. Yes, sir.

[Page 592]

Q. Did you pass around it?—A. Yes.

Q. Back or front?—A. The front. It was straight across, practically straight across the highway.

Q. Facing the lake?—A. Yes.

Q. You went around the front?—A. Yes.

Q. In going around the front was it necessary to go off the pavement to get around the front?—A. No, they had about three feet from that side. You could get about three feet to go around.

Q. Then whom did you see first? Did you see Mr. Carr there?—A. I saw Mr. Carr.

Q. Did you speak to Mr. Carr?—A. Yes, sir.

Q. What did you say to Mr. Carr?—A. I asked if he was the one who was driving the car, and he said “No.” I asked him—I said that was an awful thing what happened, and he said he guessed the man lost his head.

His LORDSHIP: He did not say which man?—A. He told me the man—I mean—

Q. Tell me his words?—A. He said, “I suppose he lost his head.”

Q. You took it to be the other man?—A. He said, “The man on the ground.”

Mr. BRACKEN: You did not tell us that before. Tell us again what words he said exactly.—A. I asked Mr. Carr if you are the man who was driving the car. He said, “No, it was this man here,” pointing to Mr. Armand, and Mr. Armand was there, and I said, “What happened?” and he said, “I suppose he lost his head.”

Q. You took that to mean Mr. Armand?—A. Yes, I knew it was. That is what he said, and he pointed to him.

Q. Why did you not tell us that the first time. You are not impressing His Lordship very favourably.

CROSS-EXAMINED BY MR. CAMERON

Q. Did you say you passed on the pavement around the Armand car without going off on the grass?—A. Yes.

Q. How far from the front to the south side of the pavement?—A. About three feet.

Q. You are sure you spoke to Carr?—A. Quite sure.

Q. He said Armand lost his head?—A. Yes.

His LORDSHIP: Was anyone in the car you were in hurt?—A. I had my hand hurt and a rib broken.

Q. Still you were able to get out and walk around the car and hear what was said?—A. I was always going around; I was never in bed. My eye was just blackened.

Miss Margaret Pollock says:

Mr. BRACKEN: Prior to the accident did anything unusual attract your attention.—A. Yes, sir.

Q. Where was it?—A. The lights of a car coming and going on the opposite side of the road, and then he turned back to his own side and came back again to our side, and it looked like a head-on collision, and he swerved around.

Q. It looked like a head-on collision?—A. Yes.

Q. And then what did he do?—A. The car swerved around, and the back left of his car hit the front left of our car.

Q. Were you injured at all?—A. I was bruised.

[Page 593]

Q. Did you get out of the car after the accident?—A. Yes. Q. You saw the situation as it was then?—A. Yes.

Mrs. Walker, the only other passenger in said Wilcox car, testifies as follows:

Q. When Miss Pollock called out and you looked ahead, can you give me any idea at that time how fast Wilcox’s car was going?—A. I know he had slowed down when she said that.

Q. What happened to you?—A. I don’t know. I was in the back seat. When I woke up I was lying in the bottom of the car. I didn’t know any more.

Q. What injuries did you suffer?—A. One wrist broken and one badly sprained.

Evidently nothing more serious than a broken wrist and the other sprained, for her doctor’s bill was only $9.50.

Compare this recital of the injuries those in the Wilcox car suffered, with those suffered by the occupants of the appellant’s car, and I submit that, though these circumstances (thus truthfully portrayed and not contradicted or otherwise explained) were lost sight of at the trial, I am fully justified in, with great respect, coming to the conclusion that the learned trial judge seriously erred in his appreciation of the facts in overlooking what I have called attention to.

I submit that the driver and passengers thrown from appellant’s car and so most seriously injured, as they were, could not have resulted only and alone from the shock received from the blow of the Wilcox car.

It was, again with all due respect, too hastily assumed by the learned trial judge that the Wilcox car, coming with such an excessive rate of speed, could alone produce the results that followed to those in appellant’s car.

I am quite free to admit that at the argument herein I had, from reading the judgment of the learned trial judge and briefly glancing at the judgments on behalf of the Second Appellate Division, come to the conclusion that this appeal should be dismissed, for the reasons assigned below, yet that it was highly probable Wilcox had been travelling at such an excessive rate of speed as possibly to account for the force of the collision alone producing such lamentable results. No other cause was suggested.

Another thing I felt was that Wilcox’s story of having slowed down to a five-mile rate and being able to stop within a few feet could not be true.

[Page 594]

Hence, although decidedly of opinion that the Second Appellate Division was right for the reasons assigned by it, yet I felt, from what had happened, the majority of the court likely to take the other view and I must read, as usual when dissenting on mere matter of fact, the entire relevant evidence, and read, accordingly, the whole evidence. And in doing so I was startled to find that abrupt stoppage by appellant of his car at the critical moment in question, and that in all probability Wilcox, as sworn to by himself and others, had, on seeing the zigzag motion, slowed down to a comparatively slow rate, else he and his passengers, or some of them, would have been thrown out. I still think he cannot have got down to a five-mile rate. But certainly there are actual grave reasons, arising from the comparison of results, for rejecting the theory accepted at the hearing hereof that any such high rate of speed as suggested then, had been kept up to the time of the collision. For my part I was partly led to believe it by reason of the remarks of the learned trial judge discrediting not only Wilcox but also his four passengers.

A perusal of the evidence of the latter leads me to say I can find no reason for doing so, when they, or some of them, say what is doubted, I think they are quite right in describing the movements of Armand’s car as “zigzag” and that Wilcox’s attention was drawn to it and his rate slowed down as result.

But when it comes to describing the actual collision there is some doubt as to their accuracy; not from any desire to excuse Wilcox but from mental excitement rendering it impossible to observe accurately all that happened.

For example Mrs. Grinham is led by counsel thus—after telling of seeing the headlight, and hearing that someone said something answered by Armand thus:

And Mr. Armand said “Yes.” I don’t remember any more after that.

Then counsel says:

Q. What headlights were those?—A. Coming towards us.

Q. Was there a crash?—A. Yes, almost instantly.

Evidently incorrect if we bear in mind what others, such as Mr. Fred Carr, tell us as quoted above.

[Page 595]

There is too much of that sort of thing in this case. I therefore submit we must try if we can and get seized of such salient predominating facts, such as I have, in trying to ascertain the reason for the widely different results I have just referred to, arising from the shock of the collision.

I submit it is quite clear that the Wilcox car, hitting the other as described, could not alone have brought such diverse results, and that there is no doubt it was by reason of Armand’s sudden stoppage. The shock therefrom immediately before, but almost concurrently with the Wilcox car getting locked with the other produced the injuries the Carr respondents have suffered, and are suing for. Hence both Armand and Wilcox, I hold, are liable jointly on that ground alone.

Also, I agree with the Second Appellate Division, for the reasons therein assigned, that Armand is jointly liable for not staying on the south side where he had gone to get rid of the danger.

And I further hold that there was on Armand’s part quite enough, in the extraordinary zigzagging course he pursued as above detailed by Fred Carr, as well as expressed by several other witnesses, to render him liable herein for the misleading Wilcox as to where it would land him.

There is another feature of this remarkable case and that is the conflicting versions of the actual situation at the time of the collision and exactly where and how it happened. In view of what I have just set forth I am not much concerned in regard thereto, but seeing the prominence given to this feature by each party to this case, and other cases that were tried together therewith, I may point out the pith of the substance of each such contention on behalf of each of those concerned herein.

Wilcox swears he was on his own side of the road, meaning north of the centre line of the concrete pavement. And he presents a photograph copy of a sketch he made. A number of witnesses corroborate him to the extent of saying he was on the north side of the line.

Carr says Armand had certainly crossed the line a foot. As already remarked I cannot find that on as dark a night

[Page 596]

as it was, it was not possible for even an honest man to be mistaken. The blinding light from the car, or either of them, could help little for such a calculation.

And those witnesses such as Reid, who came along later, evidently found no very safe passageway to get on or pass at either side past these locked cars after the collision—until after they got separated.

Reid sums the thing up thus:—

Q. The rear portion of the Studebaker was where with regard to the centre line of the road?—A. On the left side.

Q. The rear portion would be on the left side?—A. Yes, there wasn’t room to pass hardly between it and the fence.

Q. The whole of the pavement was taken up by the cars?—A. Yes.

His LORDSHIP: They could have passed by by going on the grass. You could have passed on the right hand side by going off the pavement on the grass?—A. There would hardly be room. It would be pretty close.

Q. Whatever the position of the cars were they occupied the whole of the pavement?—A. Yes.

This version could be well corroborated by taking the stories of others. And indeed it would agree with Wilcox’s picture already referred to and leave him clear of being on the wrong side of the line.

I only cite this evidence to shew, in face of a mass of evidence clearly demonstrating how both drivers can, or ought to be, jointly held liable, why we should not waste time over the task of trying to decide conclusively on which side of the centre each car was and thereby alone solve the issues joined herein. For that evidence is most conflicting and the net result as expressed by Reid demonstrates that the two cars stretched across the travelled road in such a way as to indicate appellant was likely to have his left hind wheel across the centre.

Moreover let anyone turn back and read the evidence I have quoted from Mrs. Carr where she speaks of the appellant’s car lurching about, and then a crash, and then that it seemed to pitch from side to side for a second or so, and then came the crash.

I submit this evidence is worth considering in connection with my suggestion herein that the sudden stoppage by appellant caused first, and accounts for, the pitching, and a second or so later the collision.

I am of the opinion that the learned trial judge, I submit with every respect, was clearly in error in holding that

[Page 597]

a driver passing in quick succession, at a rate of from twenty-one to eighteen miles an hour, from one side to the other in zigzagging fashion, of his own side of the road, as some express it, was driving carefully, and hence, for the many foregoing reasons, I would dismiss this appeal with costs.

No one on the night in question pretends to have made any measurements or marks whereby measurements could later on have been made, yet the counsel for respondents, the Carrs, asked, when appealing to the court below, to be given, if the appeal not allowed, a new trial, as he had discovered since the trial new evidence that would conclusively determine the question in issue. Of course as their appeal was granted below, no new trial was needed.

He repeated that herein, but upon my asking him if he had cross-appealed herein, he said, “No.”

Notwithstanding that, I would much prefer a new trial to the inevitable consequences of establishing as law that a man may act as appellant did and run no risk as a driver for the results of his doing so. In short may, with impunity, produce the shocking result appellant has produced, or helped to produce, and in question.

I would dismiss this appeal with costs.

If a majority would agree to a new trial I would assent thereto on usual terms.

Appeal allowed with costs.

Solicitors for the appellant: Symons, Heighington & Shaver.

Solicitor for the respondents, Fred Carr and Kitty Carr: D.O. Cameron.

Solicitor for the respondent Ernest Wilcox: C.R. Widdifield.