Boileau v. The Queen, [1954] SCR 414

Supreme Court of Canada

Boileau v. The Queen, [1954] S.C.R. 414

Date: 1954-06-21

Dame Eliza Boileau (Petitioner) Appellant

and

Her Majesty The Queen (Defendant) Respondent

1954: April 8, 9; 1954: June 21.

Present: Rinfret C.J. and Rand, Estey, Locke and Cartwright J.J.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Petition of right—Pedestrian struck by automobile driven by employee of the Crown on duty—Pedestrian crossing street—Failure to keep proper look-out—Common fault.

By petition of right, the appellant claimed damages for injuries she suffered when she was struck by an automobile belonging to the respondent and driven by a constable of the R.C.M.P. admittedly in the course of his duties. She claimed that she, with a companion, was crossing a street in a southerly direction and was within a crosswalk; that she looked in both directions and saw that the street was clear; that at a point south of the most southerly street-car rail she saw the respondent’s automobile but thought that she had time to complete her crossing. The constable claimed that the street was clear except for a truck coming towards him, that the truck turned to its left and stopped to let him go ahead of it, and that as he passed the truck he saw the appellant for the first time and immediately applied his brakes.

The trial judge dismissed the petition of right as he found that the appellant’s injuries were the result of an unfortunate accident and that no blame attached to the driver of the automobile.

Held (Rinfret C.J. dissenting), that the appeal should be allowed and that both parties should be held to have been equally at fault.

Per Rand, Estey, Locke and Cartwright JJ.: Accepting the evidence of the constable, his negligence is established by his failure to see the appellant prior to the time when the truck momentarily hid her from his sight, as from the time she commenced crossing until she was struck there was nothing except the truck to obstruct his view. On any assumption as to the rate at which she was walking and the rate at which he was driving which is consistent with the uncontradicted

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evidence the period during which she was hidden from his view must have been very short and he offered no explanation for failing to see her prior to the instant when the truck intervened.

The appellant was also negligent. She did not see the truck stop but it was her duty to be looking towards the west, as she was well passed the centre line of the street and it was only from the west that she need anticipate danger. Had she seen the truck stopped she should have realized that it was probably stopping to let an east-bound vehicle pass in front of it and should have proceeded with caution instead of continuing, as she did, at a brisk walk.

Per Rinfret C.J. (dissenting): It would not be possible to hold that the findings of the trial judge were not supported by the evidence. It cannot be held that the constable ought to have seen the appellant sooner than he did, and this, coupled with the fact that he was not to expect the appellant to cross where she did, relieved him of all blame.

APPEAL from the judgment of the Exchequer Court of Canada Saint-Pierre J., dismissing an action for damages suffered by a pedestrian when she was struck by an automobile belonging to the Crown.

Louis Philippe Gagnon Q.C. and Paul L’Heureux for the appellant.

Alban Flamand for the respondent.

The Chief Justice:—(dissenting): The trial judge, after a most detailed and elaborate review of the evidence, discussed each of the complaints alleged in the petition of right and came to the conclusion that the petition should be dismissed. He says:—

Cet accident n’est dû à aucune négligence, imprudence ou inhabileté du constable McCulloch qui a, dans les circonstances, fait tout son possible pour éviter l’accident, mais la présence de la requérante à l’arrière du camion, quelle que soit la distance où elle se trouvait, ne pouvait pas permettre au constable McCulloch de se douter de cette présence, et de faire plus qu’il a fait pour éviter l’accident.

Our duty in this Court on appeal from that judgment cannot consist in substituting our own findings of fact for those of the trial judge, but merely to decide whether his findings are supported by the evidence. It do not think it would be possible to hold that they are not. At the spot on Dorchester St. where the accident happened, Metcalfe St., north of Dorchester St., is not in line with Cathedral Street to the south, and there is no occasion, and indeed no possibility, to apply, when crossing Dorchester St., the by-law of the City of Montreal, para. 18 of No. 1319. I mean that

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pedestrians at that particular place are not supposed to cross in a straight line from the east side of Metcalfe St. to the south side of Dorchester St., but they must cross from the east side of Metcalfe St. to the east side of Cathedral St. That was not where the appellant was crossing. Moreover, she intended to go to the Canadian National Railways station at the corner of Dorchester and Mansfield Streets, so that not only was she crossing at the wrong place, but there was no necessity for her to cross there at all, as the natural crossing would have been along Mansfield St. where she would have had the advantage of finding in the middle of Dorchester St. an island, making the crossing much easier. That must have been the reason why the trial judge suggested that it would have been much safer for her to cross Dorchester St. at that spot. Be that as it may, Constable McCulloch, for whose actions the appellant sought to hold the Crown responsible, had not to expect that the appellant would be found at the place where she was struck by his automobile. He had his motor-car under control and the trial judge found that he was not driving at more than 20 miles an hour and that as soon as he saw the petitioner he immediately applied his brakes. Indeed the allegation that he was not observing the municipal by-laws was withdrawn at the hearing in the Exchequer Court. There is ample evidence to establish that he could not see the appellant sooner than he did, because she was hidden behind the truck waiting to enter Cathedral St. as soon as McCulloch had passed that street. On the evidence it cannot be held that McCulloch ought to have seen her before, coupled with the fact, already stated, that he was not to expect the appellant to try and cross where she did.

In the circumstances, I am unable to come to any other conclusion than that reached by the trial judge, and I would dismiss the appeal with costs.

The judgment of Rand, Locke and Cartwright JJ. was delivered by

Cartwright J.:—This is an appeal from a judgment of Mr. Justice St. Pierre pronounced on the 20th of May, 1952, dismissing the petition of the appellant for damages for injuries suffered by her when struck by an automobile belonging to the respondent. It is admitted that at the time

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of the accident this automobile was being driven by a constable of the Royal Canadian Mounted Police in the course of his duties. The learned trial judge assessed the appellant’s damages at $2,660.25 and this assessment is not questioned by either party. The only questions raised on this appeal are whether the driver of the respondent’s car was guilty of negligence causing the accident and, if so, whether the appellant was guilty of contributory negligence.

The accident happened, at about 8 p.m. daylight saving time on September 7, 1950, on Dorchester Street in the City of Montreal a short distance east of Cathedral Street. At this point Dorchester Street is 76 feet in width from curb to curb. In its centre there are tracks for both east-bound and west-bound street cars. The appellant was on her way to the Canadian National Railway station which is situate on the south side of Dorchester Street east of Mansfield Street. She had alighted from a street-car at the corner of Peel Street and Dorchester Street, had walked easterly along the side-walk on the north side of Dorchester Street, and had crossed Metcalfe Street which is the first street east of Peel running northerly from Dorchester Street. The next street to the east of Metcalfe is Mansfield which runs both north and south of Dorchester which it intersects at right angles. Peel Street does not run south of Dorchester Street, but Windsor Street runs south from Dorchester, its easterly side-walk being about in line with the westerly sidewalk of Peel. The only street between Peel and Mansfield running southerly from Dorchester is Cathedral Street its easterly side-walk being about in line with the westerly side-walk of Metcalfe. The Cathedral is on the south side of Dorchester Street between Cathedral Street and Mansfield Street.

The evidence does not fix precisely the point at which the appellant crossed Dorchester Street. Her counsel contends that the proper conclusion to be drawn from the evidence is that she crossed from the north-easterly corner of Metcalfe Street and was walking within the prolongation of the curb and property lines on the east side of Metcalfe Street and so was within a cross-walk as defined in by-law No. 1319 of the City of Montreal. Counsel for the respondent submits that the appellant was crossing some little distance

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to the east of this and not at a cross-walk. The learned trialjudge does not make any specific finding as to whether the appellant was crossing at a cross-walk. He says in part:—

Le 7 septembre 1950 la requérante a traversé, la rue Dorchester entre la rue Metcalfe et la rue Mansfield en compagnie de Madame Trépanier, entre 8 et 9 heures de l’après-midi. La rue Dorchester a 76 pieds de largeur à cet endroit et a deux voies de tramway. Elle a traversé vis-à-vis la porte de la Cathédrale catholique qui se trouve à l’ouest et qui est à quelque distance de la rue Cathédrale.

This would seem to be in accord with the respondent’s contention, although, unfortunately, the position of the west door of the Cathedral was not fixed in the evidence and is not shewn on the plan which counsel furnished to the Court. On the other hand the learned trial judge appears to have given full credence to the evidence of McCulloch who testified that the appellant was struck 29 feet east of the east curb line of Cathedral Street which would be about 20 feet west of the prolongation of the east curb line of Metcalfe Street.

While the exact spot at which the appellant was struck is not fixed with precision there is really no conflict of evidence as to the other relevant facts. Immediately prior to the accident McCulloch was driving the respondent’s automobile easterly on Dorchester Street. Before starting to cross Dorchester Street the appellant waited for a westbound automobile to pass. She then looked in both directions and saw that the road was clear. She and her companion then started to cross, walking rapidly. When she had reached a point south of the most southerly streetcar rail she saw the respondent’s automobile “about at Windsor Street” and thought she had time to complete her crossing. She continued southerly and a truck which was travelling from east to west passed behind her and her companion and made a left turn intending to go down Cathedral Street. The appellant says that she thought that this was a good opportunity to complete her crossing in safety under the shelter of the truck and she proceeded at a brisk walk. At this moment the truck stopped in such a position that its front was about 20 feet from the south curb line of Dorchester Street. Unfortunately, the appellant did not notice that the truck had stopped and she continued on her way. The respondent’s car struck her when she was about 16 feet from the south curb of Dorchester Street. The

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appellant’s evidence in chief indicates, and on cross-examination makes it clear, that she did not stop at any time after she had left the sidewalk on the north side of Dorchester Street up to the moment when she was struck. The evidence does not show how far east of the truck the appellant was when she was struck. It appears that the reason that the truck had stopped was to let the respondent’s car pass.

McCulloch testified that he was driving easterly on Dorchester at twenty to thirty miles per hour, that it was dusk and he had his driving lights on, that the road was clear except for a truck coming towards him from the east, that this truck turned to its left apparently intending to go south on Cathedral Street but stopped to let him go ahead of it and as he passed the truck he saw the appellant and her companion for the first time and immediately applied his brakes. He did not swerve either right or left and his car struck the appellant.

In these circumstances the learned trial judge held that the appellant’s injuries were the result of an unfortunate accident and that no blame attached to the driver of the respondent’s car. It therefore became unnecessary for him to consider whether the appellant was herself negligent.

It should be mentioned that the truck proceeded on its way and its driver was not called as a witness at the trial.

In my opinion McCulloch was negligent in failing to see the appellant and her companion prior to the time when the truck momentarily hid them from his sight. From the time they commenced crossing Dorchester Street until the appellant was struck there was nothing except the truck to obstruct McCulloch’s view of these two women. On any assumption as to the rate at which they were walking and the rate at which he was driving which is consistent with the uncontradicted evidence the period during which they were hidden from his view by the truck must have been very short and he offers no explanation for failing to see them prior to the instant when the truck came between him and them. Had he seen them before the truck intervened he would have known that they were walking southerly into

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his path and it seems reasonable to assume that he would not have run into them. As was said in Swartz v. Wills 1:

Where there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible.

I do not find it necessary to consider the argument which was addressed to us as to the application of section 53 (2) of the Motor Vehicles Act, R.S.Q. 1941, c. 142, because in my view this is a case in which it is not necessary to have regard to the onus of proof. Accepting McCulloch’s evidence, I am of opinion that his negligence is established.

It remains to consider whether the appellant was herself negligent. She had seen McCulloch’s car and must have realized that it was proceeding easterly along Dorchester Street and would cross her path. She was, I think, free of any negligence up to the moment when the truck stopped. She says that she did not see it stop but I think it was her duty to be looking towards the west, as she was well past the centre line of the road and it was only from the west that she need anticipate danger. Had she seen the truck stopped she should have realized that it was probably stopping to let an east-bound vehicle pass in front of it and should have proceeded with caution instead of continuing, as she did, at a brisk walk.

In my view, therefore, both the appellant and McCulloch were guilty of negligence causing the accident. I think that the blame should be divided equally.

In the result I would allow the appeal and. declare that the appellant is entitled to be paid $1,330.13, that is one half of the amount at which the learned trial judge assessed her damages, together with her costs in this Court and in the Exchequer Court.

Estey, J.:—I agree with my brother Cartwright, in whose judgment the facts are fully set forth.

The evidence discloses that at the critical time, in any relevant distance, only the truck and the automobile were upon Dorchester Street. The driver and those present with him in the respondent’s automobile all agree that when, as they were passing the truck, they first saw the appellant

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and another woman they were about twenty feet in front of the automobile. This statement is substantiated by the measurements and was accepted by the learned trial judge. It indicates the position of the parties at all relevant times. The women had, in attempting to cross, passed in front of the truck. Then, seeing the respondent’s automobile approaching, apparently hesitated momentarily, observed the truck turning toward Cathédrale Street and hurriedly proceeded to the sidewalk. Before the truck turned slightly toward Cathédrale Street the evidence discloses that there was an appreciable time in which the driver of the automobile could have seen the appellant and the other woman. There was, at least from the moment they crossed in front of the truck, on that side of the street upon which the respondent’s automobile was proceeding, nothing between the driver and the appellant that would prevent him from seeing the women. Once the truck turned there would be a time in which the driver could not see the women. The learned trial judge, while commenting upon the period in which the position of the truck would prevent the driver of the automobile from seeing the appellant, with great respect, does not appear to have given sufficient weight to the time and opportunity afforded the driver to see the women before the truck prevented his doing so.

The law imposes a positive duty upon the driver of an automobile to maintain a lookout commensurate with the circumstances which surround him. As he approaches an intersection he is usually required to exercise a higher degree of care in making observations than upon other parts of the street. In this case, while he appears to have exercised an adequate degree of care in other respects, it seems impossible, upon the evidence, to avoid the conclusion that he ought to have seen the appellant and the other woman and to have then proceeded in a manner that would have avoided his striking them. While the exact position of the appellant and the other woman in relation to the cross-walk from the northeast corner of Metcalfe and Dorchester Streets cannot be determined with accuracy, it does seem, having regard to the evidence as to the point from which they left the north curb to where they were struck, that they proceeded in a direction that would place them, at the moment the appellant suffered her injury,

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either upon that cross-walk or west of it. In either event they were in a position where the driver ought to have seen them. If they were on the cross-walk he had a duty to permit them to pass. If they were not on the cross-walk even if they were proceeding contrary to the by-law, he having observed them doing so, was under a duty to exercise reasonable care not to injure them.

The women, on their part, appear to have been careful not to leave the north sidewalk until a vehicle (neither of the above-mentioned) had passed and, as they proceeded, to have observed the truck which approached from the east and passed behind them as well as the respondent’s automobile approaching from the west. Their conclusion that the truck turning into Cathédrale Street would give them an opportunity to reach the sidewalk was reasonable, but in failing to keep an eye on that truck and to observe that it stopped in a position that would permit respondent’s automobile to continue eastward constituted negligence which contributed to appellant’s injury.

I would, therefore, allow the appeal as directed by my brother Cartwright.

Appeal allowed with costs.

Solicitors for the appellant: Sauve, Gagnon and L’Heureux.

Solicitor for the respondent: A. Flamand.