Koeppel v. Colonial Coach Lines Ltd., [1933] SCR 529

Supreme Court of Canada

Koeppel v. Colonial Coach Lines Ltd., [1933] S.C.R. 529

Date: 1933-05-08

Benjamin Koeppel and Nettie Koeppel (Plaintiffs) Appellants;

and

Colonial Coach Lines Limited (Defendant) Respondent.

1933: February 21; 1933: May 8.

Present: Rinfret, Lamont, Smith, Cannon and Crocket JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Contributory negligence—Ultimate negligence—The Negligence Act, 1930 (Ont.), c. 27—Collision between motor vehicles—Jury’s findings—Whether findings reasonably warranted by the evidence—Setting aside of verdict.

A motor car driven by one of the plaintiffs, and in which the other plaintiff was riding, collided with the defendant’s motor bus at a curve on a wet pavement. Plaintiffs claimed, and defendant counterclaimed, for damages. At the trial each party contended that the vehicle of the other had crossed the middle line of the road and caused the collision, and the evidence was largely directed to this issue. In answers to questions put to them, the jury found negligence in defendant’s driver, causing the injuries to plaintiffs, in that “driver had been warned (this referring to a passenger’s remark on seeing the motor car’s approach) and might have applied brake sooner”; and also found negligence in plaintiff driver, causing the injuries to plaintiffs and damage to defendant, in that, “owing to the wet surface of road and worn condition of his front tires, he should have taken more precaution in making this curve”; and found the degrees of negligence: plaintiff driver 70%, defendant 30%; in accordance with which judgment was given at trial (The Negligence Act, 1930,

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Ont., c. 27). This judgment was varied by the Court of Appeal, Ont., which dismissed the plaintiffs’ action and sustained defendant’s judgment against plaintiff driver. Plaintiffs appealed.

Held (Cannon and Crocket JJ. dissenting): Plaintiffs’ appeal should be dismissed.

Per Rinfret, Lamont and Smith JJ.: The jury’s finding of negligence against plaintiff driver was a finding that he did not exercise the care which a reasonable and prudent man would have exercised in the circumstances, and further, by implication, that the accident occurred on defendant’s side of the road. By their answer as to defendant’s negligence, the jury found in effect that, notwithstanding that through plaintiff’s negligence his car crossed the middle line and went in front of the bus, the bus driver by applying his brakes more promptly could and should have avoided the accident. This was a finding of ultimate negligence, and, if supported by the evidence, left defendant responsible for the whole resulting damage. But the evidence did not reasonably warrant such a finding. (As to lack of time to act, Swadling v. Cooper, [1931] A.C. 1, at 10, referred to). The verdict against defendant could not be sustained and should be set aside (reference to Can. Pac. Ry. Co. v. Fréchette, [1915] A.C. 871, at 881).

Per Cannon J. (dissenting): The jury’s findings were in effect that the negligent driving of both plaintiff and defendant’s driver contributed (in the degrees mentioned) to cause the accident; and, upon the evidence, their verdict should not be set aside as unreasonable. (As to cases of contribution, Admiralty Commissioners v. S.S. Volute, [1922] 1 A.C. 129, at 144, cited). The judgment at trial should be restored.

Per Crocket J. (dissenting): The jury’s finding against the defendant was a finding of ultimate negligence, and was reasonably warranted upon the evidence. But also the finding against the plaintiff driver was, on its face, a finding of ultimate negligence, and, but for the finding of ultimate negligence against defendant, a finding of either ultimate or contributory negligence against the plaintiff driver would have been reasonably supportable upon the evidence. The two findings (of the negligence in each which “caused” the injuries), upon the wording of the questions and answers, were contradictory, and both could not stand, either as findings of ultimate or of contributory negligence. (The law as to contributory negligence and ultimate negligence discussed). For above reason, and having regard to the direction, exclusive in certain respects, of the contest at the trial and of the judge’s charge to the jury, there should be a new trial.

APPEAL by the plaintiffs from the judgment of the Court of Appeal for Ontario allowing the defendant’s appeal from the judgment of Kelly J. on the findings of a jury.

The action, which was for damages, arose out of a collision between a motor car, driven by one of the plaintiffs and in which the other plaintiff was riding, and a motor bus of the defendant. The jury found negligence (causing the injuries or damage) both in the driver of the defendant’s bus and in the driver of the motor car, assessed

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the damages of the plaintiff Benjamin Koeppel (driver of the car) at $629.50, of the plaintiff Nettie Koeppel at $6,500, and of the defendant (which had counterclaimed for damage to its bus) at $2,300, and found that the degrees of fault were: in the plaintiff driver 70%, and in the defendant 30%.

The judgment at trial was that the plaintiff driver recover against defendant $188.85 and costs; that the other plaintiff recover against defendant $6,500 and costs; that the defendant recover against the plaintiff driver $1,610 and costs; and that the defendant (which had claimed indemnity in accordance with the provisions of the Contributory Negligence Act of Ontario—The Negligence Act, 1930, c. 27) recover from the plaintiff driver 70% of the amount awarded to the plaintiff Nettie Koeppel for damages and costs, which the defendant might be compelled to pay pursuant to the judgment.

The judgment of the Court of Appeal directed that the action be dismissed with costs, and that the defendant recover on its counterclaim from the plaintiff driver the sum of $1,610 with costs.

The material facts of the case and the jury’s findings are sufficiently stated in the judgments now reported, and are indicated in the above headnote. The appeal to this Court was dismissed with costs, Cannon J. (who would restore the judgment at trial) and Crocket J. (who would order a new trial) dissenting.

W.F. Schroeder for the appellant.

T.N. Phelan, K.C., and A.W. Beament for the respondent.

The judgment of the majority of the Court (Rinfret, Lamont and Smith JJ.) was delivered by

LAMONT J.—This is an appeal from the judgment of the Court of Appeal for Ontario setting aside the judgment of Kelly J. in favour of the appellants entered in accordance with the verdict of the jury. The action was for damages for personal injuries received as the result of a collision between a light Falcon Knight coupé, owned and driven by Benjamin Koeppel, and an omnibus belonging to the respondent.

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On June 17, 1930, the appellants were proceeding easterly along the Provincial Highway No. 2, and, when about half a mile west of the town of Prescott, their car collided with the respondent’s bus going west, whereby both vehicles were badly damaged and Nettie Koeppel was severely injured. The road at the point of impact had a good concrete surface, twenty‑four feet wide, and had a black line marking its centre. It, however, curved sharply and, at the time of the collision, was wet. The appellants’ car was six feet wide, while the bus was eight feet wide, thirty-three feet long, and weighed 14,000 pounds.

The pleadings shew a remarkable similarity in the allegations made. In their statement of claim the appellants allege that

the accident occurred solely in consequence of the negligence, imprudence and want of care of the defendant’s driver in driving the defendant’s bus at an excessive rate of speed, contrary to the rule of the road, in failing to keep a proper look-out and in failing to have the said bus under control having regard to all the circumstances.

The statement of defence, on the other hand, alleges that

the said collision was caused solely by the negligence, imprudence and want of care of the plaintiff Koeppel in driving his motor car at an excessive rate of speed contrary to the rule of the road and not having it under control under all the circumstances.

At the trial each party contended that the vehicle of the other had crossed over the centre line of the road, invaded his territory, and was responsible for the collision, and the evidence was largely directed to this issue.

The questions material to this appeal put to the jury, and the answers thereto given by them, were as follows:—

1. Q. Was there any negligence of the driver of defendant’s bus (or coach) which caused the injuries to the plaintiffs?—A. Yes.

2. Q. If there was such negligence of defendant’s said driver, state fully and clearly what was or were the act or acts, or omission or omissions, which constituted such negligence?—A. Driver had been warned and might have applied brake sooner.

3. Q. Was there any negligence of the plaintiff Benjamin Koeppel which caused the injuries to plaintiffs, and the damage to defendant?—A. Yes.

4. Q. If there was such negligence of the plaintiff Benjamin Koeppel, state fully and clearly what was or were his act or acts or omission or omissions which constituted his negligence?—A. Owing to the wet surface of road and worn condition of his front tires. He should have taken more precaution in making this curve.

* * *

8. Q. If you find that the driver of defendant’s bus was negligent, and also that plaintiff Benjamin Koeppel was negligent, then state the degree

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in which each of them was at fault or negligent?—A. Koeppel—70%, Colonial Coach Lines—30%.

In giving these answers the jury had before them the evidence of the Koeppels, that at the time of the collision their car was running twenty-two or twenty-three miles per hour; that previously it had been running from twenty-eight to thirty miles but had slowed down for the curve; that at all times their car had been on the south side of the centre line; that the respondent’s bus was coming fast, and that instead of keeping to its own side of the road it cut the curve and crashed into their car. They said the left wheels of the bus were two or three feet over the centre line at the time.

The jury had also before them the evidence of W.G. McElroy, the driver of the bus; Edmund Smith, formerly a driver for the respondent but who, at the time of the accident, was a passenger in the bus; E.H. Billings, agent at Prescott for the Canadian Oil Company, who was driving a truck a short distance behind the respondent’s bus, and Mrs. Sarney, a passenger in the bus. These witnesses testified that at all material times before the impact the bus was on its own side of the road; that the appellants’ car was coming very fast—one witness putting it at thirty-five miles per hour—and that it was raining at the time. The first three of these witnesses stated that when Koeppel turned his front wheels to the right to take his course around the curve the momentum of the car was such that it did not take the curve but went straight ahead although the front wheels were properly set for the curve. They gave as a reason that the front tires would not grip the wet pavement. Smith refers to this straight ahead movement as “skidding” and says that when he saw the speed at which Koeppel’s car was coming he remarked to McElroy that “something was likely to happen”, as he knew Koeppel could not make the curve at that speed. On being asked how far the car was from the bus when he made that remark to McElroy, he gave this testimony:—

Q. At the time you made this remark to McElroy how far was the coupe away from you?—A. I do not know exactly how far it would be away.

Q. Approximately how far away would it be? I do not expect you to get out and measure it?—A. I could not give you any estimate.

Q. Would it be 20 feet away?—A. It was more than that.

Q. Was it 30 feet away?—A. Yes, and it would be more than that, but I do not know exactly how far.

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Q. Was it 50 feet away?—A. I could not say if it was 50 feet or not, or more.

Q. Give us your best estimate. I do not care whether you are right or wrong?—A. I do not know how far it was away.

Q. You do not remember how far it was away?—A. I do not know.

Q. What made you think there was going to be an accident?—A. When I saw the car coming around the curve I could see he was travelling quite fast and I know the nature of the roads there and I knew that at the speed he was travelling he could not make that curve.

* * *

Q. At the time you made that remark to McElroy the coupe was still well over to its south side of the centre line of the road?—A. He was still on his own side of the road, yes.

Q. And if you gave him the whole half of the road to pass there is no reason why he should not get across?—A. Yes, there was.

Q. What reason?—A. The reason I saw was that he was travelling too fast and the road was wet.

Smith also said that after the accident he examined the front tire left on the car and found it had no tread on it, that the tread had been worn off and the tire was in a very smooth condition.

McElroy testified that at no time did the speed of his bus exceed twenty miles an hour. He claimed that the accident was caused because the front tires of the Koeppel car failed to grip the wet pavement and follow the curve; that the car crossed the centre line and hit his bus which was well over to the right hand side; that when Koeppel turned his wheel to follow round the sharp part of the curve he was not more than twenty feet from him, and that Koeppel was then on the south side of the centre of the road. As to his ability to stop the bus, McElroy testified that, going at fifteen miles an hour, he could stop it, even on the wet pavement, in nine feet, and, going at twenty miles an hour he could stop in fifteen feet, but he added: “I do not know much about feet.” He further said that he did not hear Smith say “Something is likely to happen,” all he heard him say was “Look at this bird coming.”

In view of this evidence what meaning is to be given to the answers of the jury? Dealing first with question 4—the negligence ascribed to the appellants—the finding is: “Owing to the wet surface of the road and the worn condition of his front tires he should have taken more precaution in making this curve”. This is a finding that Koeppel did not exercise the care which a reasonable and prudent man would have exercised in the circumstances. In my opinion it is more: it is a finding by implication that the

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accident occurred north of the centre line of the road; there would be no point otherwise in referring to the condition of Koeppel’s tires. If Koeppel were on his own side of the road when the collision occurred the condition of his tires could not be a factor contributing to the accident.

Then referring to the answer given to question 2: “The driver had been warned and might have applied his brakes sooner.”—By this answer, the jury, in my opinion, intended to find that if the brakes had been applied sooner the accident would have been avoided. It is a finding of ultimate negligence. The jury by these two answers were saying that, notwithstanding the fact that Koeppel crossed the centre line and drove in front of the bus, the driver of the bus, by the more prompt application of his brakes could and should have avoided the accident. If that finding is supported by the evidence, the driver of the bus, by not avoiding the consequences of Koeppel’s negligence, when he had the present ability to do so, leaves the respondent responsible for the whole resulting damage.

Does the evidence support the finding?

Assuming that the remark made by Smith to McElroy amounts to a warning sufficient to fix the respondent with liability if unheeded (which to my mind is very doubtful), and assuming that when it was made the relative positions of the car and the bus were just what he says they were (and his is the only evidence on the point on which the appellants can rely), what does the evidence shew? It shews that when Smith gave his warning to McElroy the car and the bus were more than thirty feet apart, but it cannot be definitely fixed at fifty feet. But, giving the respondent the benefit of the doubtful distance of fifty feet between the car and the bus when Smith uttered his warning, it is, in my opinion, impossible to say that the accident could have been avoided. The combined speed of the vehicles was forty-two or forty-three miles per hour. The two cars at that speed would cover fifty feet in four-fifths of a second and, even if we allow more for the decreased speed of the bus after applying the brakes, there would be no more than one second of time which the driver of the bus would have to apply his brakes. One must add to that, as pointed to in the evidence, that brakes “do not take right instantly,” that is, their effect is not felt imme-

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diately upon the wheels. It seems clear that we have here the class of case illustrated by the recent decision of the House of Lords in Swadling v. Cooper[1]. Koeppel himself states that “he first realized there was danger” only when he was “about 20 feet away from the bus”. The driver of the bus could not anticipate that the tires of the car “would not grip the pavement” and would let it “slide directly across into the path of the bus”. Upon the only evidence in the record, between the moment when the bus driver “could have become aware” that Koeppel’s car was cutting across to the north side and the moment of the impact, “there can have been no time for the (driver) to do anything to avoid the impact”.

Even assuming the bus had stopped in fifteen feet, that would not have avoided the accident. Koeppel admits that he did not apply his brakes. His car would have kept on approaching the bus in any event and the only difference would have been that Koeppel’s car would have struck the bus possibly a little more to the right than where it actually struck it.

It follows that the finding against the respondent is not reasonably warranted by the evidence and that, under the circumstances, that finding cannot stand.

Though reluctant to disturb the verdict of a jury, after careful examination of the evidence in this case, we have come to the conclusion that the verdict against the respondent cannot be sustained and there is no course open to us but to set it aside. (Canadian Pacific Railway Company v. Fréchette[2]. We, therefore, agree with the Court of Appeal that the appellants’ action fails.

The appeal should be dismissed with costs.

CANNON J. (dissenting).—I have read with great profit the opinions prepared by my brothers Lamont and Crocket. Is the evidence in this case of such a character that judgment cannot be possibly given in favour of plaintiffs? Or is the verdict of the jury so contradictory that a new trial must be ordered? With due respect, I think that the Court of Appeal went too far in dismissing the action completely and refusing to accept the finding of contributory negligence reported by the jury.

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Borrowing the words of Lord Birkenhead in his speech to the House of Lords in Admiralty Commissioners v. S.S. Volute[3]—

I think that the question of contributory negligence must be dealt with somewhat broadly and upon common-sense principles as a jury would probably deal with it. And while no doubt, where a clear line can be drawn, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the party secondly negligent, while not held free from blame * * *, might, on the other hand, invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution.

In this case, we have the benefit of the jury’s verdict, and there is evidence given on behalf of the defendant showing that McElroy was aware of the danger. The jury did not go so far as to say that he could have avoided the collision by appropriate measure but thought that he to a certain extent, 30%, contributed to the accident in the ordinary common sense, because there was not, in their opinion, a sufficient separation of time, place and circumstances between the negligent driving of the plaintiff and that of McElroy to make it right to treat the negligence of the plaintiff as the sole cause of the collision. If McElroy had put on his brake sooner, he may or may not have avoided the collision; there is no finding on this point and it was difficult to determine the distance between the vehicles when the danger of collision became apparent to Smith and other onlookers. I do not feel competent to decide from the record that it was not possible to stop the bus in good time within a distance which is not clearly established. I do not see my way clear to set aside the verdict of the jury as unreasonable; they have to the best of their ability applied their common sense to the evidence and, like the trial judge, I would give effect to their findings.

I, therefore, would allow the appeal and restore the judgment of the trial judge. The appellants will recover their costs here and in the Appellate Division from the respondent company.

CROCKET J. (dissenting).—This action was brought to recover compensation for personal injuries and loss severally sustained by the two plaintiffs before their marriage as a

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result of a collision between the plaintiff Benjamin Koeppel’s automobile and one of the defendant’s omnibuses.

The collision occurred on a sharp curve between a quarter and a half a mile west of the town of Prescott shortly before ten o’clock a.m., on June 17th, 1930, while the plaintiff was driving his automobile—a light Falcon-Knight coupe—with the female plaintiff (then Miss Nettie Bernstein) seated beside him—easterly along the Ontario provincial highway No. 2 on a holiday trip from Brooklyn, N.Y., to visit relatives at Hull, Quebec. The defendant’s omnibus was proceeding west on its regular scheduled trip from Ottawa to Kingston. Koeppel was instantly thrown through the windshield of his car and sustained several bruises and other injuries, including the fracture of two teeth for which he claimed the payment of a New York dentist’s bill for $150. Miss Bernstein sustained much more serious injuries, including a fracture of her right ankle and lacerations of the scalp, of the right leg below the knee and of her left ring finger, all of which have left deep permanent scars. The coupe itself was practically destroyed.

In their statement of claim for these injuries the plaintiffs alleged that the collision was caused solely by the negligence of the driver of the omnibus. This negligence is specifically stated in paragraph 3 to have consisted in approaching the curve at an excessive rate of speed and having the left wheels of the bus several feet south of the centre line of the highway. “The plaintiff Koeppel,” the statement continues,

turned his car to the south side of the highway as much as possible in order to avoid a collision with the defendant’s bus, but when both vehicles were quite close to each other, the defendant’s bus not only failed to turn to the right to enable the plaintiffs’ automobile to pass in safety, but it was negligently turned sharply to the south, colliding violently with the plaintiffs’ motor car * * *.

Paragraph 3-A alleges that the said accident occurred solely in consequence of the negligence, etc., of the defendant’s driver in driving the bus

at an excessive rate of speed, contrary to the rule of the road, in failing to keep a proper lookout and in failing to have the said bus under control having regard to all the circumstances.

The defendant by its defence denied all negligence on its part and alleged that the collision was caused solely by the negligence of the plaintiff, Koeppel, in driving his motor car

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at an excessive rate of speed contrary to the rule of the road and not having it under control under all the circumstances,

and, alternatively, that Koeppel was guilty of contributory negligence. The defendant counter‑claimed on these grounds for damages to the amount of $3,000, covering cost of repairing its bus, depreciation and loss of its use for thirty days at $50 a day. The defendant also claimed, in the event of the female plaintiff being found entitled to recover any amount against it, indemnification from the plaintiff, Koeppel, for his proportionate share thereof, under the provisions of the Contributory Negligence Act.

On the trial of the action at the Ottawa Assizes before Kelly, J., and a jury, the evidence on the part of the plaintiffs was directed principally towards proving that, immediately before and at the moment of the collision, the omnibus was cutting the curve with its left wheels on the south side of the painted line marking the centre of the paved roadway, and that it struck the coupe while the latter was well over on its own side of the road and while Koeppel, seeing the omnibus heading southwesterly towards him, was trying to avoid it by steering his car southeasterly towards the south shoulder of the road. The evidence on the part of the defendant was directed to disproving this claim and proving that the collision was caused by the coupe, in consequence of the excessive speed at which it was approaching the acute part of the curve, swerving from the south side of the road and running against the omnibus when the latter was wholly on and well over to its own, the north, side of the pavement. It was common ground that the pavement was wet with the rain and was more or less slippery.

The learned trial judge left eight questions to the jury. These questions and the jury’s answers thereto were as follows:

1. Was there any negligence of the driver of defendant’s bus (or coach) which caused the injuries to the plaintiffs?—A. Yes.

2. If there was such negligence of defendant’s said driver, state fully and clearly what was or were the act or acts, or omission or omissions, which constituted such negligence?—A. Driver had been warned and might have applied brake sooner.

3. Was there any negligence of the plaintiff Benjamin Koeppel which caused the injuries to plaintiffs, and the damage to defendant?—A. Yes.

4. If there was such negligence of the plaintiff Benjamin Koeppel, state fully and clearly what was or were his act or acts or omission or omissions which constituted his negligence?—A. Owing to the wet surface

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of road and worn condition of his front tires. He should have taken more precaution in making this curve.

5. At what amount do you assess the damages of plaintiff Benjamin Koeppel?—A. $629.50.

6. At what amount do you assess the damages of plaintiff Nettie Koeppel?—A. $6,500.

7. At what amount do you assess the damages of the defendant?—A. $2,300.

8. If you find that the driver of defendant’s bus was negligent, and also that plaintiff Benjamin Koeppel was negligent, then state the degree in which each of them was at fault or negligent?—A. Koeppel, 70%; Colonial Coach Lines, 30%.

Upon these findings His Lordship directed a judgment for the plaintiff, Nettie Koeppel (an amendment having been allowed changing her maiden to her married name), against the defendant for $6,500 and costs; and, applying the provisions of the Contributory Negligence Act, a judgment for the plaintiff, Benjamin Koeppel, for $188.85—30% of the damages found by the jury to have been sustained by him—and costs; and a judgment for the defendant against the plaintiff, Benjamin Koeppel, for $1,610—70% of the damages found by the jury to have been sustained by it—with costs of its counter-claim. He also adjudged that the defendant should be indemnified under the provisions of sec. 3 of the Contributory Negligence Act (The Negligence Act, 1930, Ontario) to the extent of 70% of the amount it should be compelled to pay the plaintiff, Nettie Koeppel, upon her judgment against the defendant.

The defendant appealed to the Appellate Division against the judgments in favour of the two plaintiffs. That Court (Mulock, C.J.O., and Riddell and Grant, JJ.A.) allowed the appeal with costs, and dismissed the plaintiffs’ action with costs, allowing the defendant’s judgment against the plaintiff, Benjamin Koeppel, for $1,610 and costs to stand.

The plaintiffs now appeal to this Court against this decision, which, it is contended, involved the unwarranted setting aside of a valid finding of the jury that the collision was caused by the negligence of the omnibus driver in failing to apply his brakes sooner.

The learned Chief Justice and the late Mr. Justice Grant held that to succeed in the action it was necessary for the plaintiffs to establish that the omnibus crossed over to the southerly half of the highway and there caused the collision, and that the jury’s answer to question 2 was not a finding to that effect. They held further, however, that

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that answer was not a finding that the application of the brakes sooner would have prevented the accident nor a finding that the accident was caused by any negligence of the defendant.

It is only on the assumption that the plaintiffs must be strictly confined to the particulars alleged in their statement of claim and to the case as appearing by the evidence of their own witnesses on the trial that the jury’s answer to question 2 can be disregarded. With all deference I am of opinion that such an assumption is not warranted in the circumstances of this case. The whole conduct of the defendant’s driver in the operation of the bus while approaching the curve and in meeting the situation created by the approach of the Koeppel car from the opposite direction was exposed to the jury by the evidence of the bus driver and other of the defendant’s own witnesses, who were travelling in the bus with him at the time. The first question which the learned trial judge left to the jury was: “Was there any negligence of the driver of defendant’s bus, which caused the injuries to the plaintiffs?” with a direction in the event of the jury finding that there was, to state fully and clearly what was or were the act or acts or omission or omissions which constituted such negligence. There was no reservation or restriction to acts or omissions specifically alleged in the statement of claim.

Had the plaintiffs sought to introduce evidence to prove any negligence which was not within the allegations of their statement of claim, the defendant might well have objected to its admission on that ground. Such an objection would, doubtless, have resulted in an application to amend, which it would have been the duty of the trial judge to grant, unless the defendant made the affidavit of prejudice required by the Judicature Act. Here the failure of the driver of the bus to apply the brakes sooner than he did, which was the negligence the jury plainly meant to find, was disclosed by the defendant’s own witnesses. No question of surprise, therefore, could arise on the production of the testimony. The evidence was all on the record and without objection. As a matter of fact, when the defendant’s counsel, after the jury returned its findings, objected to the answer to question 2 on the ground that it was not within the negligence set up in the statement of

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claim, the trial judge, on application thereupon made by the plaintiffs’ counsel, did allow an amendment to cover that answer.

In my opinion, it was not only the duty of the jury, under the direction which the learned trial judge gave them, to state any negligence of which they were satisfied on the whole evidence the driver of the bus was guilty, whether it was specifically alleged in the statement of claim or not, but it was also the duty of the trial judge to accept the jury’s finding as to what that particular negligence was, provided it was intelligible and could reasonably be made on any evidence adduced before them and not withdrawn from their consideration, and to allow any amendment necessary to cover it, as His Lordship did.

I find myself also unable to adopt the view that the answer to question 2 was not a finding that the failure to apply the brakes sooner caused the collision, nor a finding that the collision was caused by any negligence of the defendant. It is true that it was not in terms an express, specific finding that “the application of the brakes sooner would have prevented the accident,” but, reading it, as it must be read, with question 1 and the jury’s answer thereto, it sufficiently indicates that the negligence of the bus driver, which they had already distinctly found caused the plaintiffs’ injuries, consisted in his failure to apply the brakes sooner than he did. This in law plainly means that his failure to apply the brakes sooner was the real effective cause of the collision, i.e., its proximate, ultimate cause, which of course implies that the application of the brakes sooner would have prevented the collision. It may be, as Mr. Justice Riddell in his reasons for judgment holds, that the words of the answer: “Driver had been warned and might have applied brake sooner” negatives any negligence with regard to the application of the brakes by the bus driver before he was warned, but whether the language which the jury used was intended to so limit the negligence or not, it is none the less a finding of negligence on the part of the bus driver, and, coupled with question 1 and the jury’s answer thereto, a finding of negligence “which caused the injuries to the plaintiffs.”

The real difficulty in the case is that, while the jury have made this finding on questions 1 and 2, they have at the

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same time in answer to questions 3 and 4 found that Koeppel was also guilty of negligence “which caused” the collision and the resulting injuries and damage, and that these two findings are manifestly contradictory unless one reads into questions 1 and 3 the words “or materially contributed to cause” and treats the negligence separately found against each driver, not as in itself causing the collision, but as operating with the negligence of the other to jointly cause it.

Although the answer to question 4 is less specific and definite than the answer to question 2, and in reality adds nothing to the jury’s answer to question 3, viz: that Koeppel was guilty of negligence in approaching the curve in the circumstances, it is quite apparent from the reference to the wet surface of the road and the worn condition of his tires that what the jury meant was that he was approaching the curve at too great a speed. Whether the answer sufficiently indicates this or not, the answer to question 3 is a distinct finding that Koeppel was guilty of negligence, “which caused the injuries to plaintiffs and the damage to defendant.” On its face this finding is a finding of ultimate negligence on the part of Koeppel, as the answers to questions 1 and 2 are also a finding of ultimate negligence on the part of McElroy. When the two findings and the answer to question 8 apportioning the fault are considered together there can, I think, be little question that the jury intended the two findings as findings of contributory negligence against both drivers, no doubt in the sense that the collision would not have occurred had it not been for the negligence of both. This, however, is not sufficient to make the negligence of either contributory in the legal sense of the word. A cause which is merely a sine qua non is not sufficient to constitute contributory negligence in the legal sense. This court decided in the case of McLaughlin v. Long[4], that the Contributory Negligence Act of the province of New Brunswick, which is similar in its relevant provisions to that of Ontario and the other provinces of Canada, effected no change in the law of contributory negligence so far as the meaning of that term is concerned and that damage or loss could properly be said to be “caused” by the fault of two or more persons within the meaning of

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sec. 2 of that Act “only when the fault of each of such persons is a proximate or efficient cause of such damage or loss, i.e., only when at common law each would properly have been held guilty of negligence which contributed to causing the injurious occurrence.” Contributory negligence therefore implies, as it always did, negligent acts or omissions of two or more persons operating together to produce such an emergency or peril as to render it impossible for either or any of them, by the exercise of reasonable care, to avoid the consequences of the negligence of the other or others. There can be no such thing in the case of a collision between two vehicles as contributory negligence on the part of the one driver unless there is negligence on the part of the other which has also materially contributed to bring the collision about, that is to say, has efficiently operated with the negligence of the other to cause it. In that case, the combined negligence of the two drivers is in law the proximate cause of the collision. If, however, notwithstanding that both drivers may have been guilty of negligence, the situation resulting therefrom was such that either, by the exercise of reasonable care, could have avoided the collision, the failure to exercise such care and thus prevent the collision becomes the immediate and sole proximate cause thereof. The negligence of the other in that event cannot be said to have had any effective part in it. It is not a causa efficiens.

Here, the sole negligence found against McElroy was his failure to apply his brakes sooner. This finding obviously is based upon the fact that he was fully aware of the danger of Koeppel’s not making the curve at the speed at which he was approaching it on a wet and slippery pavement and that he had the time and opportunity to avoid the threatened consequences by applying his brakes and stopping the bus before proceeding to the danger point at the peak of the curve. If he had the time and opportunity thus to avoid the threatened consequences of Koeppel’s negligence, and negligently failed to do so, he was ultimately and wholly responsible for the collision. If he had not, and the earlier application of his brakes would have made no difference, he was not responsible at all, failing a finding of some other negligence on his part operating with that of Koeppel to create a peril which neither could avoid,

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such as excessive speed, driving on the wrong side of the road or not keeping a proper lookout.

The finding against McElroy can therefore only be treated as a finding of ultimate negligence. Whether it is reasonably warranted as such by the evidence is another question which Mr. Justice Riddell, alone of the Appeal Judges, considered. With the utmost respect I find it impossible, upon my examination of the evidence of McElroy himself and of the witnesses, Smith and Billings, to agree with His Lordship that the finding is not reasonably warranted, whether it be construed as negativing all negligence on McElroy’s part before he was warned or not.

The jurors had before them evidence of the dangerous character of the curve, especially in wet weather, and of McElroy’s undoubted knowledge thereof. Also the statement of Smith, a licensed chauffeur, then in the employ of the defendant, who was seated in a passenger seat directly behind McElroy, that he saw the coupé coming around the curve and knew when he saw it that at the speed it was travelling it “could not make that curve” and called McElroy’s attention to the danger. They had heard Smith, when asked how far the coupé was away at that time, answer that he did not know exactly, but later admit that possibly he could see 150 to 200 yards down the road (from where the bus was) at that time, and state also that at the time the coupé started to skid across the road it was possibly 100 or 125 feet away, and that he disagreed with McElroy’s statement that the bus was but 20 feet away when the coupé started to skid. They also had Smith’s evidence that when he called McElroy’s attention to the coupé coming down the road the latter started slowing the coach down and “either shortly before or at the time of impact he immediately jammed his brakes on to stop the coach”. Also the evidence of Billings, another licensed chauffeur, who was driving an oil truck behind the bus, that they were both entering this very treacherous curve, especially after a rainstorm, and that he could see a glimpse of the coupé coming around and that he realized if the smaller car took the curve at that speed it would be fatal. Also the statement of McElroy himself that when he first saw the coupé he was pretty close to the guard rail (on the north side of the highway) about the same distance back from the

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corner, and that the coupé had just come around another turn west on the road (at least 400 feet west of the first turn, according to the road plan in evidence), and that as he (McElroy) approached this curve the coupé “kept coming all the time towards us”, and his further statement that when he got pretty near to the guard rail he saw the car coming, jumping in front, and he knew it was coming-fast and got over as far as he could, “* * * and got just about to the sharp part of the turn when this car came around and the wheels (of the coupé) started to turn towards the river, towards the south”. They had, moreover, his statement that the bus was travelling at 15 miles per hour and that he should have been able to stop it in about nine feet. They had before them also a blueprint of a plan of the highway, drawn to scale, shewing a total length of over 1,300 feet, upon which McElroy pointed out to them the point the bus had reached east of the guard rail when he first saw the coupé, which point would, according to the plan scale, be a short distance east of the east end of the guard rail and at least 300 feet east of the culvert within a few feet of which the collision occurred.

This testimony appears to me to be a conclusive answer to the following statement of the learned Appeal Judge in the closing part of his judgment: “No one gives any evidence so much as indicating that there was any delay in putting on the brakes as soon as an accident seemed imminent, or suggesting anything the driver could have done.” Whether “it all happened in a split second,” as His Lordship adds, apparently grounding the statement upon his acceptance of an answer which Billings made to one of the questions put to him by the plaintiffs’ counsel, or whether McElroy had a reasonable opportunity of avoiding the collision after he became aware or should have become aware of the danger, was essentially a question of fact which it was the jury’s exclusive function to determine, if there was sufficient evidence to enable them to reasonably do so, as I think there was. They had a right to accept or reject as much of the evidence of Smith and McElroy as they chose. Both were chauffeurs in the employ of the defendant at the time of the accident and were thoroughly familiar with the road. The jury evidently concluded that the bus was at least 125 feet away from the coupé when

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the latter began to skid, as they were warranted in doing upon Smith’s evidence, and that when McElroy was warned or became or should have become aware of the danger, he was some considerable distance farther east. Smith had sworn that when he warned McElroy, the latter started slowing down the bus—this obviously before the coupé had started to skid—and McElroy himself had pointed out to the jury on the road plan the point he had reached east of the east end of the guard rail when he first saw the coupé. If there were no other considerations than these, I would not feel prepared to say that the jury could not in any reasonable view of the evidence find that McElroy could have avoided the collision by applying his brakes sooner and stopping the bus before reaching the point where the coupé skidded across the road. We cannot justifiably substitute what may be our own views of the evidence upon such a question for those of the jury to whom the statute specially commits it for determination.

The finding therefore is, in my opinion, in itself a valid finding of ultimate negligence sufficiently supported by evidence. The question remains as to whether effect ought to be given to it as such, in the face of the finding against Koeppel. Obviously this can only be done by rejecting the latter finding as insupportable in any reasonable view of the evidence, whether regarded as a finding of contributory or of ultimate negligence. Convinced, as I am, that there is sufficient evidence to warrant the answers to questions 1 and 2 as a finding of ultimate negligence against McElroy, I am not prepared to hold, upon the whole evidence, that, but for this finding, a finding of either ultimate or contributory negligence on the part of Koeppel could not as well have been made in any reasonable view of the evidence. It is clear that both findings cannot stand either as findings of ultimate or of contributory negligence. In such a case and especially where, as here, the contest between the parties on the trial was so exclusively directed to the particular grounds of negligence set forth in the pleadings, and the learned trial judge, apparently for this reason, made no mention in his charge to the jury of McElroy’s failure to apply his brakes sooner, which was the sole negligence found against him, or of the significance of the testimony with respect thereto as bearing upon the

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question of ultimate, as distinguished from contributory, negligence, I think that justice will best be served by ordering a new trial.

The plaintiffs’ appeal to this court should be allowed and the judgment of the Appellate Division, dismissing their action with costs and allowing the judgment of the trial court on the defendant’s counter-claim for $1,610 and costs, set aside, and a new trial ordered, with costs to the plaintiffs of the appeal here, but, in the circumstances, no order should be made for costs of the trial or on the appeal in the Supreme Court of Ontario.

Appeal dismissed with costs.

Solicitors for the appellants: MacCraken, Fleming & Schroeder.

Solicitors for the respondent: Beament & Beament.