Supreme Court of Canada
The Canadian Pacific Railway Company v. Smith, (1921) 62 S.C.R. 134
Date: 1921-06-20
The Canadian Pacific Railway Company (Defendant) Appellant;
and
Thomas W. Smith and Mary Smith (Plaintiffs) Respondents.
1921: May 13; 1921: June 20.
Present: Sir Louis Davies C.J. and Idington, Duff, Anglin and Mignault. JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.
Negligence—Railway—Level crossing—Approaching train—Absence of statutory warnings—Failure to look out—Negligence of driver—Action by injured passenger.
The respondents, father and daughter, while driving in a motor car, were about to cross the appellant's railway at rail level, when a train was approaching. The father, who was driving, heard the horn of an automobile behind him, and thinking the driver wished to pass, he proceeded to cross the track, the road being very narrow at that point. The train struck the motor car and the respondents sustained injuries for which they both brought action. The train whistle was not sounded or bell rung as required by statute. The father swore to his belief that he did look for the train, because he always did so instinctively; but he did not "remember actually turning (his) head and looking to see if there was a train or not." The trial judge took the case from the jury on the ground of contributory negligence, but the Court of Appeal ordered a new trial.
Held, (reversing the judgment of the Court of Appeal), Idington and Anglin JJ. dissenting, that, notwithstanding the assumed negligence of the appellant owing to the absence of statutory warnings, the father must be held negligent in attempting to cross the tracks without looking for the approaching train, as no evidence was given of circumstances which would warrant a jury in finding he was excused from doing so.
Held, also, (affirming the judgment of the Court of Appeal), that the contributory negligence of the driver, of a motor car, when he is neither the servant nor the agent of a passenger injured, is no defence in an action brought by the latter against the party causing the accident; and the action of the daughter should not have been dismissed by the trial judge.
Judgment of the Court of Appeal (13 Sask. L.R.. 535), varied.
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APPEAL from the judgment of the Court of Appeal for Saskatchewan reversing the judgment of the trial judge with a jury, which had dismissed the respondents' action and ordering a new trial.
The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.
Tilley K.C. for the appellant.
Barr K.C. for the respondent.
The Chief Justice.—The reasonable and salutary rule frequently laid down by the court with respect to persons crossing level railway crossings is that they must act as reasonable persons should act and not attempt to cross without looking for an approaching train to see whether they can safely cross. If they should choose recklessly and foolishly to run into danger, they must take the consequences.
The rule so requiring persons crossing railway tracks to look for a possible approaching train may not be an absolutely arbitrary one. Circumstances may exist which might excuse their not looking, but those circumstances must be such as would reasonably warrant a jury in finding they were excused from their duty in that regard. It is not enough to prove that some precautions required on the part of the railway, such as whistling or ringing the bell before coming to the crossing, were not observed or followed by the train officials, of which there was evidence on which a jury might so find in this case. Mr. Tilley, for the company, admitted that he had to argue his case on
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the basis that the train did not either ring the bell or sound the whistle. But he contended that notwithstanding this assumed negligence on the part of the train officials, the plaintiff's injuries, and those of his daughter in the car with him, were caused by his own contributory negligence in running his car on to the railway track without looking to see whether a train was approaching. The learned trial judge withdrew the case from the jury holding that there was no evidence which would justify them in finding either that the plaintiff did look for the train before attempting to cross the railway track or would excuse his not having done so.
On appeal from this judgment of the trial judge the Court of Appeal in Saskatchewan, by a majority judgment, allowed the same on the ground, as I understand the reasons of Mr. Justice Lamont, who delivered the judgment of the majority of the court, that
there were considerations from which a jury might reasonably conclude that it was the failure to give the statutory warnings rather than the plaintiff's own recklessness that was the causa causans of the injury and that those considerations must be passed upon by the jury.
If I could reach such a conclusion, I would gladly do so, but I cannot. The plaintiff's own evidence, coupled with that of the witnesses in the motor which was following that of the plaintiff, removes the possibility of any finding that he did look. If he had looked he could not have failed to have seen the approaching train. The suggestions by counsel as excuses for his not looking, relied on it is true by the majority of the Court of Appeal as sufficient for granting a new trial, seemed never to have entered into the plaintiff's own mind as he in his evidence did not suggest them. On the contrary, he said he believed he did look because he always did but did
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not remember having done so in this instance, and the inference from his evidence and that of the other witnesses examined is irresistible that he did not look and so justified the trial judge in dismissing his personal action. I am quite unable to accept these suggestions of counsel as constituting any excuse for his not looking.
While, however, I am of opinion that plaintiff's personal action was rightly dismissed, I am also of opinion that the daughter's action stood in an altogether different position. She was simply a passenger in the motor with her father and was in my judgment in no sense responsible for his contributory negligence. Nor can it be said that he was her agent or so identified with her that she was responsible for his negligence. Supposing an action had been brought by some one injured by his negligence in driving, could it be successfully contended that the passenger who had no control or right of control over the driver would be liable? I cannot for a moment think that such a contention could be sustained and I cannot find any authority supporting it.
I think that the law which must govern in this case is that laid down by the House of Lords in the well-known case of The Bernina, where it was held, affirming the decision of the Court of Appeal, that a collision
having occurred between the steamships Bushire and Bernina through the fault or default of the masters and crews of both, as a result of which two persons on board the Bushire, one of the crew and a passenger, neither of whom had anything to do with the negligent navigating of the steamship, were drowned, * * the deceased persons were not identified in respect of the negligence with those navigating the Bus hire, and that their representatives could maintain the action.
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This decision overruled Thorogood v. Bryan, and decisively settled once and for all the doctrine of "identification" on which Thorogood v. Bryan was based. The very question, as Lord Herschell said in delivering his judgment in the Bernina case, was whether the contributory negligence of the driver of the vehicle was a defence as against the passenger when suing another wrongdoer. In his speech he said:
It humbly appears to me that the identification upon which the decision in Thorogood v. Bryan is based has no foundation in fact. I am of opinion that there is no relation constituted between the driver of an omnibus and its ordinary passengers which can justify the inference that they are identified to any extent whatever with his negligence. He is the servant of the owner, not their servant; he does not look to them for orders, and they have no right to interfere with his conduct of the vehicle except, perhaps, the right of remonstrance when he is doing, or threatens to do, something which is wrong or inconsistent with their safety. Practically they have no greater measure of control over his actions than the passenger in a railway train has over the conduct of the engine-driver. I am, therefore, unable to assent to the principle upon which the case of Thorogood v. Bryan rests. In my opinion an ordinary passenger by an omnibus, or by a ship, is not affected either in a question with contributory wrongdoers or with innocent third parties, by the negligence, in the one case of the driver, and in the other of the master and crew by whom the ship is navigated unless he actually assumes control over their actions, and thereby occasions mischief. In that case he must of course, be responsible for the consequences of his interference. * * * The theory that an adult passenger places himself under the guardianship of the driver so as to be affected by his negligence appears to me to be absolutely without foundation either in fact or law.
I cannot see any reason why the law as definitely stated in the Bernina case with respect to the non-liability of passengers on board of omnibus cabs and steamships is not applicable in the absence of any special facts to the contrary to those travelling in private motors. The reasons which negative such non-liability in the one case are equally cogent and
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convincing in the other. The case of Dixon v. Grand Trunk Railway Co., was cited in the appellant's factum in support of the contention that it was the duty of the girl to look out for an approaching train and if she entrusted that duty to the driver of the car she is affected by his negligence. But the basis of the judgment in that case was that the driver of the motor-car was acting as the agent or servant of his companions and that the five men in the car were the persons having the control of it. The learned Chief Justice Meredith, in delivering the judgment of the court said:
My view is that the five men had control of the motor-car. It was hired by them, although Scott was the one who acted for his companions as well as for himself in hiring it. It was they who entrusted the driving to Scott. In my opinion, the Bernina case has no application if Scott in driving the motor-car was acting as the agent or servant of his companions. That he was acting as their agent is clear, I think, because it is also clear that he was entrusted by them with the duty of driving the car. The five men in the motorcar were, in my opinion, the persons having control of it.
That decision, of course, therefore, has no bearing on the liability of the daughter Mary for the contributory negligence of the driver of the automobile as he was neither her servant or agent but was the owner and the driver of the car having sole control of it with which she had neither the right nor the power to interfere.
In the sixth edition of Shearman and Redfield, Vol. 1, p. 164, 166, I find the following statement of the law on this point in the United States:
66. Doctrine of Identification. As already stated, the fact that the injury was caused by the joint negligence of the defendant and a mere stranger is universally admitted to be no defence. But in the famous
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case of Thorogood v. Bryan, an English Court invented a new application of the old Roman doctrine of identification, and held that a passenger in a public vehicle, though having no control over the driver, must be held to be so identified with the vehicle as to be chargeable with any negligence on the part of its managers which contributed to an injury inflicted upon such passenger by the negligence of a stranger. In former editions, we devoted much space to the refutation of this doctrine of "identification." But it is needless to do so any longer, since the entire doctrine has, since our first edition, been exploded in every court, beginning with New York and ending with Pennsylvania. It was finally over-ruled in England a few years ago. The only remnant of the doctrine which remains in sight anywhere is the theory that one who rides in a private conveyance thereby makes the driver his agent, and is thus responsible for the driver's negligence, even though he has no power or right to control the driver. This extraordinary theory, which did not even occur to the hair-splitting judges in Thorogood v. Bryan, was invented in Wisconsin, and sustained by a process of elaborate reasoning; and this Wisconsin decision, in evident ignorance of all decisions to the contrary, was recently followed with similar reasoning in Montana, and in Nebraska without any reasoning whatsoever; which last is certainly the best method of reaching a conclusion directly opposed to common sense and to the decision of twenty other courts. The notion that one is the "agent" of another, who has not the smallest right to control or even advise him, is difficult to support by any sensible argument. This theory is universally rejected, except in the three states mentioned, and it must soon be abandoned even there.
Apart, therefore, from the exploded doctrine of "identification" I find nothing to justify the theory that the driver in this case was either the servant or the agent of the daughter Mary.
In the result, I would allow the appeal so far as the plaintiff's personal action is concerned and dismiss such action with costs throughout and would dismiss the appeal as far as the action is brought on behalf of Mary Smith, who was 17 years of age when the action was tried, with costs.
Idington J. (dissenting in part).—The respondent, Thomas W. Smith, was driving his automobile, in which he was accompanied by his two daughters,
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westward on the highway toward Regina. A passenger train of the appellant company running south toward Regina, at the intersection of the said highway with said railway, struck the said automobile, wrecked it, and so seriously injured one of the said respondent's daughters that she died a few days later, and very seriously injured the surviving daughter, one of the respondents herein, as well as the respondent so driving the automobile.
For the respective injuries in question, to the survivors and the said automobile, this action was brought by said Thomas W. Smith and his surviving daughter by him as her next friend, alleging that the accident was caused by reason of the failure of the appellant either to give the statutory warning of whistling, or to ring the bell.
The learned trial judge dismissed the action which was being tried with a jury, at the close of the plaintiff's case, alleging as ground therefor, the contributory negligence of the respondent driver, Thomas W. Smith.
In doing so he said:
In this case the evidence of negligence is as follows: That the bell did not ring and that the whistle did not blow as provided by statute. In dealing with the question of contributory negligence one must consider the natural situation of the ground. At a point three-quarters of a mile south of a bend in the defendant's railway, the railway is crossed almost at right angles by a road which runs itself for something less than half a mile to another railway, the Grand Trunk Pacific railway. A train on the said C.P.R. track approaching from the north, from the time it passes the bend till it gets to the crossing, is continuously in view of any person who is coming along this road from the Grand Trunk Pacific Railway crossing. There is evidence that it takes a minute and a quarter for the train to travel the distance, and that there is nothing whatsoever in the nature of an obstruction to the view.
The appellant's negligence, according to this finding, is clear, and it is equally clear that the entire negligence of the respondent driving (if any) was the failure to
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have discovered the coming train, within the minute and a quarter that elapsed whilst driving from the point where it first became possible for him to have seen it to the intersection of the highway and railway.
The train, it is clearly proven, would be coming along a down grade of the railway track which would accelerate its rate of speed, and would have no steam or smoke assuredly visible, for, as expressly stated by one of the witnesses, it merely coasted along that part of its road.
There, of course, is need for a careful driver to look both ways for trains.
The respondent driver in this case was seated on the left hand side of his automobile. On one side of him the curtain was drawn but, as the learned judge finds, there was on the side next the train an apron which contained mica glasses described, possibly it was the reverse but that curtain, as I understand respondent's evidence, was on the left side and the front seat not curtained off from the approaching train.
The learned trial judge omits entirely to refer to the evidence given by the respondent driver relative to his usual care in looking for the train and belief that he did on this occasion, which ought to have been considered.
He testifies as follows:—
Q.—What were you giving attention to as you were rising up the grade, or what was occupying your attention as you were rising up the grade just before crossing the track?
A.—Well, the automobile coming behind me having blown his horn on me, I figured he wanted to pass, and I was considering letting him pass as soon as I got across the railway crossing.
Q.—Did you look to see if the train was coming as you came along from the Grand Trunk crossing towards the C.P.R. crossing?
A.—I believe I did.
Q.—Why do you say that?
A.—Well I always do that. It is natural.
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His Lordship: That is not a reason. Do you remember whether you did or not?
A.—I don't remember actually turning my head and looking, or anything like that, but I believe I did.
Q.—But you don't know whether you did? You don't remember whether you did or not?
A.—No. I can't say I remember turning my head and looking to see if there was a train or not.
and on cross-examination, as follows:—
Q.—Is Regina your trading town?
A.—Generally. Sometimes I go to Pilot Butte.
Q.—But at any rate, Mr. Smith, you have been into Regina during that twenty years a great many times?
A.—Quite a few, yes.
Q.—Well, hundreds of times, 1 suppose?
A.—Well, the average number of times that any farmer would come, I suppose.
****
Q.—Let me, then, call your attention to this, Mr. Smith. When would a prudent man look for a train? At what distance would he look for a train coming?
A.—Well, when he knew that there was a railway crossing he would look probably several times.
****
Q.—And, as you said in your examination by my learned friend, you cannot say that you ever looked to see whether there was a train coming or not after you passed over the Grand Trunk Pacific crossing?
A.—I said that I believe I looked.
Q.—I know, but you said you could not remember that you did. Is that not correct?
A.—I said I believe I looked.
Q.—Never mind that?
A.—Let me finish my answer, please—please.
Q.—You can't remember that you looked for the train after you passed over the Grand Trunk Pacific crossing?
A.—No, I can't remember the actual act of looking.
The evidence is clear that if he looked when he would have been distant a space more than a minute and a quarter of time as he travelled, he could not see the coming train by reason of buildings between that point and the coming train obstructing the view.
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The question of whether he actually looked or not was one for the jury to consider. The probability is that he looked, but possibly at a minute and a quarter too early, and surely it was for the jury to decide whether or not he was negligent, or merely erred in judgment.
And immediately after that narrow margin of time had begun to run, his attention was distracted by a car behind him, and his asking his daughters if the driver thereof seemed desirous of passing, and when they looked back and concluded, and reported, that the driver thereof did not seem desirous of passing, his attention was directed to crossing the railway to get to a better place to pass than the grade approaching the crossing.
To make matters more distracting and worse, the driver of the car behind saw the train at that stage and kindly desiring to warn respondent driver, blew his horn loudly and sharply in such a way as calculated to arrest his attention.
That had the effect of giving the respondent the impression that the driver of the car behind wished to pass and accordingly hasten on for next fifty feet or so with the purpose of securing the better place to pass when across the railway track.
Before reaching that goal the appellant's engine had fifty feet or yards away, given two "toots" of its whistle. All that was too late; and if ever there was a case for the jury to have been called upon for its verdict of whether respondent driver had been negligent, or merely mistaken in judgment, which that situation called for the assistance of the jury to determine this was one, and the case should not have been withdrawn from them.
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Such was the opinion of the majority of the Court of Appeal for Saskatchewan better qualified, by local knowledge of the actual condition of things to be considered, than we can be, as to whether or not the respondent driver was, when due regard is had to the alternative propositions presented by that master of our law, Lord Cairns, in the case of Dublin, Wicklow & Wexford Rly. Co. v. Slattery, quoted by the majority judgment herein of the Appellate Court below, to have been condemned as clearly guilty of that contributory negligence which deprived him of the right to have his conduct passed upon by a jury.
The two alternatives presented by Lord Cairns in said case are quoted in said judgment, and, properly as I think, the second acted upon, as that which fits this case.
I so entirely agree with the reasoning of the judgment of the majority of the court below, based on other authorities, as well as the speech of Lord Cairns in the House of Lords in said Slattery Case, that I need not repeat same here.
If there is a driver of any vehicle who can be excused from failure to look at the exact moment of time that will be effective, it is the driver of an auto whose mind, if discharging his duty, is concentrated primarily on the safety and rights of those using the same highway as he is himself travelling over.
I think this respondent driver was far more excusable than the unfortunate in the Slattery Case by reason of the absolute necessity for concentration of his mind on the said duties as such devolving upon him.
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The question is raised by those of my brother judges taking another view than I do of the facts and relevant law, that in any event the alleged contributory negligence does not attach to the case of the infant respondent.
In my view that is not necessary to be decided, but, if driven thereto, I agree that there is not that identication of her (an infant being carried) with the case presented by her father.
I would dismiss the appeal entirely, with costs.
Duff J.—As regards the infant plaintiff, I am quite unable, to distinguish this case from The Bernina (Mills v. Armstrong. On that point I have nothing to add to the judgment of the Chief Justice in whose opinion I fully concur.
I am, however, unable to agree with the view of the Court of Appeal as to the claim of the adult plaintiff. Contributory negligence is, I think, virtually admitted. In point of law the case is entirely governed, I think, by the judgment of Lord Cairns in Slattery's Case, and the judgments of Campbell C. and O'Connor L.J. in Neenan v. Hosford.
Anglin J. (dissenting in part):—The main question presented on this appeal is whether contributory negligence on the part of the adult plaintiff is such an irresistible inference from the evidence adduced by him that the learned judge was justified in withdrawing the case from the jury on that ground. The Court of Appeal for Saskatchewan has determined that it is not, and has ordered a new trial. Is that order so clearly wrong that it should be reversed?
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The alleged contributory negligence consisted in failing to look for an approaching train before driving an automobile upon the railway crossing where it was struck. The appellant alleges that there was evidence upon which a jury might have found that the adult plaintiff did in fact look or that, if he did not, there were attendant circumstances upon which a jury might reasonably have found that his failure to do so did not amount to negligence. Although the case is undoubtedly very close to the line, careful consideration of it has led me to the conclusion that it should have been submitted to the jury, if not upon both issues, at all events upon the latter. The judgment of the House of Lords in Dublin, Wicklow & Wexford Rly.Co. v. Slattery, and of this court in Wabash Railway Co. v. Follick, and in Ottawa Electric Railway Co. v. Booth (not yet reported), go far to support that view.
The adult plaintiff himself swore to his belief that he had in fact looked for the train though unable to say as a matter of positive recollection that he had done so. There were circumstances which indicated that he might have looked when within 300 or 400 yards of the crossing and been unable to see the train. There were also circumstances deposed to which indicated that his mind may have been so fully taken up with other duties arising out of his position at the moment that failure to remember that he was approaching a railway crossing and should look out for approaching trains would be excusable. I am not prepared to say that no jury could reasonably so find. As the case should, in my opinion, go back for a new trial I refrain from any discussion of the evidence beyond what is necessary to indicate the grounds on which I think the judgment appealed from may be supported.
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Not, I confess, without some hesitation, but because I have not been convinced that the judgment a quo is erroneous I would dismiss this appeal.
But if I were of the opinion that the defendants should succeed as against the plaintiff Thomas W. Smith because his contributory negligence was so clearly established that his personal claim was properly withdrawn from the jury, for the reasons stated by my Lord the Chief Justice I should nevertheless dismiss the defendants' appeal as to the claim of the infant plaintiff Mary Smith.
Mignault J.—The question here is whether the learned trial judge was justified in withdrawing the case from the jury at the close of the plaintiff's evidence and dismissing the action. On appeal, this judgment was reversed by the Court of Appeal of Saskatchewan, Elwood J. A. dissenting, and a new trial was ordered.
The pertinent facts may be briefly stated. The plaintiff had left his home, some miles from the city of Regina, about two o'clock in the afternoon of the 29th of September, 1919, to bring his daughters, Mary and Edna, to school in the latter city. He drove himself a two seated Reo car, occupying the front seat with his daughter Edna, the plaintiff being on the left side, and his daughter Mary sat on the rear seat where also their baggage was placed. The curtains were closed on the right side but there were mica windows through which persons sitting on the front and rear seats could see; the other side of the car was open. The road at the place in question runs from east to west (the plaintiff was going west) and is intersected, at a distance of half a mile the one from the other, by two lines of railway; the Grand Trunk Pacific Ry. Co. and the Canadian Pacific Ry. Co., the
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latter being to the west of the former. The country is flat and a person going west along the road has full view of the defendant's line, there being no obstructions of any kind. The plaintiff drove at a speed of from ten to fifteen miles an hour, probably the latter speed, and at the time he crossed the Grand Trunk Pacific line, the defendant's train was about one mile from the place of the accident, and was then travelling in a southerly direction at a speed of thirty miles an hour down a slight grade, where to the plaintiff's knowledge, for he had often used this road, it was customary to close off the steam and the exhaust of the engine. As the plaintiff drove along the road after crossing the Grand Trunk Pacific line, he was followed at a distance of some twenty yards by another car occupied by three persons and which travelled at the same speed as the plaintiff. Two of these persons were called at the trial and swear that they saw the defendant's train from the time they crossed the Grand Trunk Pacific, and that they had no difficulty whatever in seeing it. They also say that the engine did not whistle at any time—there is a whistling post at the usual distance north of the road—until it gave two short blasts immediately before the accident, nor did the bell ring. The plaintiff states he did not hear the whistle or the bell before these two short blasts were blown, and then the front portion of his car was already on the tracks and it was impossible to prevent the accident.
On the vital question whether he looked to see if a train was approaching before attempting to cross the railway, the plaintiff stated that he believed he did, but that he did not actually remember turning his head and looking. As this point is extremely important, I will quote the plaintiff's testimony:
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Q. Did you look to see if the train was coming as you came along from the Grand Trunk crossing towards the C.P.R. crossing?
A.—I believe I did.
Q.—Why do you say that?
A.—Well I always do that. It is natural.
His Lordship: That is not a reason. Do you remember whether you did or not?
A.—I don't remember actually turning my head and looking, or anything like that, but I believe I did.
Q.—But you don't know whether you did? You don't remember whether you did or not?
A.—No. I can't say I remember turning my head and looking to see if there was a train or not.
I think the testimony of the men in the automobile following the plaintiff's car clearly shows that had the plaintiff looked, he would undoubtedly have seen the approaching train, for these men saw it without any difficulty. It is true that the plaintiff states that there are some buildings on the other side of the railway more than á mile from the crossing, against and opposite which the train as it rounds a curve appears from the road to come head on and cannot be easily noticed apart from these buildings which serve as a back ground. But while the plaintiff's witnesses say that by a casual glance a person on the road might not notice the approaching train as it stands against this background, they add that if such a person took any precaution other than a casual glance he would be bound to see the train. Surely the plaintiff did not discharge the duty of taking reasonable precautions before crossing the railway or of acting as an ordinary prudent man would have done if he cast a mere casual glance towards the railway, and he is not sure that he even did that. And the fact that the train might be taken at a casual glance to be a part of these buildings and that it generally went down the grade silently and with the steam shut off was well known to the
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plaintiff who had often travelled along this road, and it was obviously his duty before crossing the railway to look in time so as to be able to stop his car if a train was approaching.
It is true that the plaintiff's witnesses prove that the engine did not whistle as it passed the whistling post and that the bell was not rung. But notwithstanding this negligence of the company, had the plaintiff been reasonably careful he would have seen the train in time, and the fact that the statutory warnings were not given cannot, in my opinion, excuse him in rushing with his eyes open to his own destruction. I may simply refer to the often quoted passage from Lord Cairns' judgment in Dublin, Wicklow and Wexford Ry. Co.v. Slattery, as a complete answer to any contention based on the absence of the statutory warnings.
The plaintiff also says that when approaching the railway he heard several toots from the automobile behind him, that he thought this automobile wished to pass him as several others had already done, and that as the place was not suitable for crossing, he went ahead with the idea of letting it pass him further on. As a matter of fact, this tooting was resorted to in order to warn the plaintiff of his imminent danger, but it is said that it confused him and that under the circumstances he should not be considered as lacking in ordinary prudence.
I would indeed be slow to say as my deliberate opinion that even such a circumstance can excuse an automobile driver in rushing across a railway without first looking to see whether the line is clear. Moreover the plaintiff by keeping his position on the road could have prevented any car passing him. And should the
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defendant under such circumstances be held liable for an accident which, notwithstanding the failure to give the statutory warnings, I must hold was brought about solely by the recklessness of the plaintiff?
The learned counsel for the respondent relied on several decisions of this court, and from the bench his attention was called to the recent case of The Ottawa Electric Ry. Co. v. Booth (not yet reported), where I concurred with the majority of the court in sustaining the jury's verdict. It is obvious that the special facts of each case must be considered, and no decision is conclusive unless the circumstances are the same. In the Booth case, probably the nearest in point, the victim crossed behind a tram car which stopped at a street corner, and was struck by another car running on the far track at an excessive speed and without ringing its gong. There certainly the victim had no time for reflection and he followed quite a common though not commendable practice in crossing behind the car from which he had just alighted. Here the plaintiff was in full view of the approaching train for a distance of half a mile and, in my opinion, was the author of his own misfortune. In the words of Lord Cairns, it was the folly and recklessness of the plaintiff, and not the carelessness of the company, which caused the accident.
Naturally one hesitates before removing from a jury a case of which normally they are the proper judges. But if in such a case no jury could reasonably find in favour of the plaintiff, I think it is the duty of the trial judge, if he feels convinced that a verdict for the plaintiff could not be sustained, to take the responsibility of dismissing the action. I would certainly not say that the learned trial judge was wrong in taking this responsibility in the present case, in so far as Smith's personal action is concerned.
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With regard to the representative action taken by him on behalf of his daughter Mary, an infant, I think that the latter is not identified with her father and that the contributory negligence of Smith does not disentitle her to recover any damages to which she may be entitled as against the appellant. On this branch of the case I am satisfied to rely on the reasons given by my Lord the Chief Justice.
I think therefore, that the judgment of the appellate division should be affirmed in so far as it orders a new trial on the issue raised by the action on behalf of Mary Smith, and set aside as to the order of a new trial of the plaintiff's personal action, which should stand dismissed.
I concur in the disposition of the costs by my Lord the Chief Justice.
Appeal allowed in part.
Solicitors for the appellant: Allan, Allan & Taylor.
Solicitors for the respondents: Barr, Stewart, Johnston & Cumming.
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