Hébert v. Fortier, [1970] SCR 772

Supreme Court of Canada

Hébert v. Fortier, [1970] S.C.R. 772

Date: 1970-06-26

Marcel Hébert (Defendant) Appellant;

and

Elzéar Fortier (Defendant) Respondent;

and

Dame Cécile St-Hilaire Dillon (Plaintiff) Respondent.

Elzéar Fortier (Defendant) Appellant;

and

Marcel Hébert (Defendant) Respondent;

and

Dame Cécile St-Hilaire Dillon (Plaintiff) Respondent.

1970: April 30; 1970: June 26.

Present: Fauteux C.J. and Abbott, Judson, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Motor vehicle—Left turn—View obstructed—Motorcycle coming in opposite direction—Pedestrian on sidewalk struck by motorcycle—Liability of both drivers—Civil Code, art. 1053—Highway Code, R.S.Q. 1964, c. 231, s. 40(4), (7).

Intending to make a left turn into an avenue, defendant F brought his car to a full stop at the double centre line, his blinking lights indicating his intention. A car coming from the opposite direction stopped to let him go through. As F started to turn, defendant H undertook on his motorcycle to pass the stopped car on the right, on the curb side. He then found himself in the path of F’s car. Unable to stop, he attempted to enter the avenue but he skidded and hit the plaintiff, who was standing on the sidewalk. F brought his car to a full stop a few feet from the curb. 80 per cent of the responsibility was attributed by the trial judge to the defendant F and 20 per cent to the defendant H. The Court of Appeal apportioned the blame in the same proportion, but in the reverse order. Both defendants appealed to this Court.

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Held: The appeals should be dismissed.

The main cause of the accident is H’s violation of the rule in s. 40(4) of the Highway Code that a driver of a vehicle should not overtake and pass another on the right. This rule is applicable even when there is room for two vehicles abreast in the same direction on each side of the centre of the pavement. Furthermore, he should have understood that the car he was attempting to pass had stopped to let F make a left turn.

F was imprudent in unduly assuming that other road users would abide the Highway Code. It cannot be said that the recklessness of the motorcyclist was not foreseeable in the circumstances. F had the duty to make sure that his way was clear before making his turn.

APPEALS from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], varying a judgment of Cousineau J. who had maintained the action against both defendants. Appeals dismissed.

André Gagnon, Q.C., for the appellant Fortier.

André Trotier, Q.C., for the appellant Hébert.

Michel St-Hilaire, for the plaintiff, respondent.

The judgment of the Court was delivered by

PIGEON J.—In this case each of the parties found liable towards the injured person, Mrs. Dillon, has appealed both to the Court of Queen’s Bench and to this Court; 80 per cent of the responsibility having been attributed by the Court of Appeal¹ to Marcel Hébert, hereinafter referred to as the appellant, and 20 per cent to Elzéar Fortier, hereinafter referred to as the respondent, while the Superior Court had apportioned the blame in the same proportion, but in the reverse order.

The accident occurred in Quebec City, on August 3, 1964, shortly after 8 p.m. The automobile driven by respondent was going in an

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easterly direction on Chemin Ste. Foy, a main paved thoroughfare 42.8 ft. wide. A double white line in the centre was the only mark painted on the pavement. Respondent’s intention was to make a left turn into the avenue leading to St. Sacrement Hospital, on the North. While waiting for a suitable opportunity, he had brought his car to a full stop at the centre Une, his blinking lights indicating his intended move.

Appellant, who was driving a motorcycle, had come to a full stop to obey the traffic lights at the intersection of Belvédère Avenue, some 600 feet east of the point where respondent was stopped. Halfway between these two points, at the intersection of Calixa-Lavallée Street, where there are no traffic lights, another automobile, driven by one Tremblay, was coming from the North. Taking advantage of the traffic interruption caused by the traffic lights at the other intersection, the latter made a right turn in a westerly direction into Chemin Ste. Foy. Then, noticing respondent’s signal, he stopped a short distance ahead of him in order to let him go through, whereupon respondent started on his left turn.

Then came two motorcycles, one driven by appellant and the other by a friend of his. The latter easily overtook and passed Tremblay’s car on the left, behind respondent’s car, but appellant, having undertaken to pass Tremblay’s car on the right, on the curb side, suddenly found himself in the path of respondent’s car. Unable to stop, he attempted to enter the avenue leading to the hospital but he skidded and hit the claimant, who was standing on the sidewalk. Respondent brought his car to a full stop a few feet from the curb. One can understand that appellant, less concerned with the safety of pedestrians than with his own, was unwilling to take the tremendous risk involved in attempting to pass through such a narrow opening, because he had no means of knowing exactly where respondent was going to stop, not even if he was going to stop at all.

The main cause of the accident is obviously appellant’s violation of the rule of the first para-

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graph of subs. (4) of s. 40 of the Highway Code, R.S.Q. 1964, c. 231:

(4) The driver of a vehicle shall not overtake and pass another on the right, except when the other vehicle is about to turn left.

Appellant is wrong in contending that this rule is not applicable where there is room for two vehicles abreast in the same direction on each side of the centre of the pavement. Not only is no such distinction made in the above provision, but the exception therein can hardly have any application except in such case. Furthermore, appellant ought to have understood that Tremblay’s reason for stopping was to let respondent make a left turn. For that reason, the fact that, in Court, appellant went so far as to ignore the presence of that vehicle must be considered very unfavorably. Any way this young man has discredited himself completely by attempting to recover from respondent, together with the very minor damage suffered by his motorcycle in this accident, the cost of repairing at the same time some more serious damages incurred previously. It is, therefore, without the slightest difficulty that I come to the conclusion that his appeal should be dismissed.

As to respondent Fortier’s appeal, the small share of responsibility attributed to him by the Court of Appeal shows how light is the fault found against him. It is clear that he was imprudent only to the extent of unduly assuming that other road users would abide the Highway Code rules. If he was watching the traffic with attention, as was his duty, he should have noticed that the vehicles which had made a stop at the Belvédère Avenue traffic lights had started to move again, and that two motorcyclists were coming up at such speed that their intention to stop could not be taken for granted, to say the least.

However strong must be the condemnation of the impudent recklessness of the motorcyclist who drove into respondent’s path cleared by an obliging motorist, I do not think that it can be said that this was not foreseeable in the circumstances. It cannot be denied that, as noted by the Court of Appeal, respondent’s view was obstructed for

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a certain distance by the standing car, but I agree that respondent, whose duty it was to make sure that his way was clear before making a left turn, is not to be exonerated entirely on account of that. He should have realized that appellant was coming fast along the sidewalk, and was not slowing down. Therefore, it was not safe to assume that appellant would stop, even though he was under obligation to do so, he had reached a point where this could not realistically be expected.

I wish to point out before concluding that the Highway Code (s. 40 (7)) does not prohibit the crossing of a double white line in order to make a left turn, but only in order to overtake and pass, except in certain cases. Moreover, it was stated by the parties at the hearing that no municipal by-law was relied on.

For the above reasons, I would dismiss both appeals with costs.

Appeals dismissed with costs.

Solicitors for the appellant Fortier: Gagnon, de Billy, Cantin, Dionne, La Haye & Martin, Quebec.

Solicitors for the appellant Hébert: Gagné, Trotier, Letarte, Larue, Royer & Tremblay, Quebec.

Solicitors for the respondent: Letarte, St. Hilaire, de Blois, de Bane, Becotte, Parent & Leclerc, Quebec.