Supreme Court of Canada
Ottawa Brick & Terra Cotta Co. Ltd. v. Marsh, [1940] S.C.R. 392
Date: 1940-03-04
Ottawa Brick & Terra Cotta Co. Ltd. and James Kelso (Defendants) Appellants;
and
John Marsh (Plaintiff) Respondent.
1939: November 17, 20; 1940: March 4.
Present: Duff C.J. and Crocket, Davis, Kerwin and Hudson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Motor vehicles—Negligence—Collision—One motor truck passing another while latter veering to left for purpose of making left turn—Responsibility for accident—Evidence—Findings—Highway Traffic Act, R.S.O., 1937, c. 288, ss. 39(1) (c) (d), 12(1) (b).
[Page 393]
The action was for damages by reason of a collision, at night on an Ontario provincial highway, between plaintiff’s motor truck and defendant’s motor truck, both going westerly, while plaintiff’s driver was attempting to pass defendant’s truck which was veering to the left for the purpose of a left turn to be made on to a side-road which it was approaching. The trial judge found that the whole proximate cause of the accident was plaintiff’s driver’s negligence and gave judgment for defendant. The Court of Appeal for Ontario, [1939] O.R. 338, apportioned the blame for the accident, 75% against plaintiff’s driver and 25% against defendant’s driver, and gave judgment accordingly. On appeal to this Court, it was held that, in view of the findings at trial and the evidence (discussed), the judgment at trial should be restored. (Davis J. dissented, holding that on the evidence defendant’s driver was clearly guilty of negligence contributing to the accident, that there was evidence wrongly admitted, and that certain evidence given unduly affected the trial judge’s view of the whole case; rather than direct a new trial, he would take advantage of s. 4 of The Negligence Act, R.S.O., 1937, c. 115, and award one-half the damages assessed).
Secs. 39(1) (c) (left turn at intersection of highways), 39(1) (d) (duty of driver before turning left), and 12(1) (b) (rear-view mirror) of The Highway Traffic Act, R.S.O., 1937, c. 288, considered with regard to matters in question.
APPEAL by the defendants, and cross-appeal by the plaintiff, from the judgment of the Court of Appeal for Ontario allowing the plaintiff’s appeal from the judgment of Urquhart J. dismissing the plaintiff’s action and giving judgment for defendant company on its counterclaim.
The action was for damages by reason of a collision of motor trucks on or about July 19, 1938, in the night-time on provincial highway no. 2 at about two miles east of Prescott, Ontario. Both trucks were going westerly. At the time of the collision the driver (Burns) of the plaintiff’s tractor and trailer was in the act of passing the motor truck of the defendant company, driven by defendant Kelso, and the latter was veering from the north or right hand side of the highway to the south for the purpose of making a left turn on to a road running south from the said provincial highway. The plaintiff claimed damages for loss of his tractor, trailer and cargo and loss of use of the vehicles. The defendant company counter-claimed for damage to its motor truck and for loss of use thereof while undergoing repairs.
[Page 394]
Urquhart J., at trial, dismissed the plaintiff’s action and gave judgment on defendant company’s counter-claim for $110.25. In case on appeal he were found wrong, he fixed the plaintiff’s damages at $9,000.
An appeal by the plaintiff was allowed by the Court of Appeal for Ontario (Riddell J.A. dissenting)1, which held that both drivers were guilty of negligence contributing to the accident, and apportioned the blame, 75% against the plaintiff’s driver and 25% against the defendant (driver) Kelso. Plaintiff was therefore given judgment against the defendants for 25% of the amount at which the trial judge had assessed plaintiff’s damages, with costs of action and appeal, and defendant company was given damages for 75% of the judgment recovered by it at the trial (without costs).
The defendants appealed to the Supreme Court of Canada. The plaintiff cross-appealed, asking that he be given a much larger proportion of the damages assessed.
W.F. Schroeder K.C. and W.R. Burnett for the appellants.
T.J. Agar K.C. for the respondent.
THE CHIEF JUSTICE—I should allow the appeal.
CROCKET J.—I agree that this appeal should be allowed and the judgment of the learned trial judge (Urquhart J.), dismissing the respondent plaintiff’s action and allowing the defendant’s counter-claim, restored with costs throughout.
There was ample evidence to warrant the trial finding that the driver of the plaintiff truck, which was drawing a heavily loaded trailer along the trunk highway at the time of the collision, was wholly responsible therefor by reason of his failure before attempting to pass the defendant truck to see that he could do so in safety. His Lordship distinctly found that the defendant driver, in approaching the side-road leading from the south side of the trunk highway, which he was about to enter, was gradually edging towards the centre of the road, which it was his duty to do in making a left hand turn; that he had his arm out
[Page 395]
for a distance of probably some 250 feet before the driver of the plaintiff truck attempted to pass him with his heavily loaded trailer, so that at least ten inches of his hand and wrist extended beyond his over hanging truck box and would be clearly visible to the driver of any car coming from behind for 200 feet, if the head lights of the latter were good; and that the driver of the oncoming plaintiff truck, as a consequence of his failure to keep a proper lookout, failed, not only to observe the outstretched hand of the defendant driver, but also the flashing on and off of the rear light of his truck, and the fact that the latter was starting to edge towards the centre of the road for the purpose of making his left hand turn into the side-road, which was marked with signs.
Upon these findings no other conclusion, it seems to me, is possible than that there was no negligence on the part of the defendant appellant or its driver, which materially contributed to cause the collision. Whether or not there had been any negligence on the part of the defendant itself in respect of its failure to provide in its truck a proper reflector, which would in all circumstances enable the driver to see a car approaching him from behind, or negligence on the part of the driver himself, in not slowing down, even more than he did, and putting his head through the open window at his side, as it was contended he should have done, to make sure before turning into the side-road that there was no danger from behind, such negligence could properly be held to have materially contributed to the collision, only if the plaintiff’s driver could not have avoided it by the exercise of due care. The undoubted effect of the findings of the learned trial judge, to my mind, is that he could have done so, and that his failure to exercise such care in the circumstances was accordingly the sole cause of the damage claimed for.
DAVIS J. (dissenting)—This appeal arises out of a collision of two motor trucks on the Toronto-Montreal highway at a point a few miles east of Prescott some time near midnight on July 19th, 1938. The respondent’s (plaintiff’s) truck was being driven by one Burns. A trailer was attached to the truck and a load of 32 bales of cotton was being carried. The total gross weight was about 16 tons.
[Page 396]
As a result of the collision, the truck and the trailer and the cotton were all destroyed by fire. The trial judge assessed the respondent’s total loss at $9,000. The appellants’ (defendants’) truck was much smaller and was empty—it weighed about 7,500 pounds. The appellants counterclaimed in the action for the damage to their truck at $110.25. There is no claim by either party for any personal injuries.
Both trucks were travelling in the same direction—westerly. At the time of the collision the appellants’ truck, driven by one Kelso, was ahead of the other though it had passed the respondent’s truck some three or four miles back. Kelso admits that he was aware, after he passed it, that there was a truck following him, but he was not aware, he says, that there was any vehicle near him until the crash. The facts immediately surrounding the collision are plain and are really not in dispute. The appellants’ driver, Kelso, intended to turn into a side road which runs southerly from the main highway to a farm and a coal yard. The highway was paved—20 feet in width—and had a solid white dividing line down the centre of it. The trial judge considered the road to be “a particularly dangerous one at this point.” Although the trial judge said that “this side road was perfectly visible, being marked with signs,” we are in as good a position from the photographs and plans as the trial judge was in this regard and the road cannot fairly be said to be visible to an approaching motorist at midnight—it was obviously, as Burns, the respondent’s driver, said, nothing different from numerous such side roads that run into the main highway all along the route. The side road was not marked with any highway signs—the only sign was one placed six feet back from the highway with the words “Redden’s Coal Yard,” and not lighted. Now 200 feet before Kelso, the appellants’ driver, would have reached the point of entrance to this side road he says he began to veer his truck over to the south, that is, to his left hand side—he himself describes his course as “anglewise”—and that after continuing this course for about 100 feet the respondent’s big truck from behind, in attempting to pass, collided with his truck. The left front fender and wheel of the appellants’ truck and the right front fender and
[Page 397]
wheel of the respondent’s truck came into collision. It is clear on the evidence that at that time the left front wheel of the appellants’ truck had got two feet over the centre line on the south side of the highway.
The appellants’ driver, Kelso, did not see or hear the respondent’s large and heavy truck and trailer behind him or know that it was there. He says very frankly he did not. His truck had a cabin in the front of it in which he was sitting behind the wheel on the left hand side with two passengers beside him. His truck, he says, was travelling about fifteen miles an hour and the other truck at approximately thirty-five to forty miles an hour. The maximum statutory speed is fifty miles an hour. Assuming the speed of the two trucks, as Kelso puts it, when his truck began to veer over to the left hand side, 100 feet before the point of impact, the respondent’s truck could not have been then more than 200 feet behind him. And yet Kelso neither heard him nor saw him. It was a type of cabin which did not permit the driver conveniently to put his head out far enough to see what was behind him. The trial judge thought that such a cabin was “a menace to safe driving.” Kelso used what is described in the evidence as a rear-view mirror and in his examination for discovery he said he was looking in this mirror when he was 250 feet from “the top of the hill” (a point about 150 or 200 feet before he came to the point where he commenced to angle across the highway) and that he did not look again in the mirror. Then during the trial on cross-examination:
Q. When you went to cross the centre line where there might have been some danger, did you look out of this open window that you had beside you?
A. No.
Q. You did not take the trouble to look at all?
A. No.
And again:
Q. Can you offer to his Lordship any explanation why you would not see it [the other truck] if you had looked?
A. There was a curve there, and his lights shone in the field south of the road.
Q. And you knew there was a curve there?
A. Yes, but I did not know there was a truck there.
The action was tried by Urquhart, J., without a jury, and the learned trial judge at the conclusion of the argu-
[Page 398]
ment of counsel for the respondent (plaintiff) said to him, “I think it is quite hopeless, Mr. Thompson,” and did not find it necessary to hear counsel for the appellants (defendants).
Quite apart from any statutory provisions, and much emphasis by counsel for both parties before us was put upon sec. 39 of the Ontario Highway Traffic Act, R.S.O., 1937, ch. 288, it was an act of the plainest sort of negligence for the appellants’ driver to attempt to make a left hand turn across the highway at the place and at the time he attempted to do so without making sure that his movements would not adversely affect a car coming along behind him. It was near midnight in midsummer on a principal highway and it would have been a very simple thing for the driver to have stopped and made sure of traffic behind him before attempting to turn across the highway. And it was his plain duty to do so, if, as he says, the cabin of his truck made it impossible for him to put out his head far enough to get a view of what was behind him. And yet the driver of that truck was wholly exonerated from responsibility for the collision by the trial judge and the respondent’s action against him and the owner of his truck was dismissed, with costs. The trial judge thought that Kelso did all he could, and that he was turning in a reasonable manner, having observed no oncoming vehicle behind. I fear that the fact that the respondent’s driver Burns had taken some beer during the afternoon and again in the evening before starting out on his journey unduly affected the trial judge’s view of the whole case. Although the appellants in their defence had set out specifically some ten or twelve items of alleged negligence, intoxication of the driver Burns was not even suggested and when evidence was brought out at the trial of the taking of the beer, the appellants’ counsel stated to the judge:
There is nothing very serious about it, my Lord.
And yet at the very beginning of the trial judge’s reasons for judgment he refers to the taking of the beer by the driver Burns and says:
His condition can only be imagined, and I would find it was such that it would have a tendency to make him less observant and more reckless if, in fact, he was not completely under the influence of liquor.
[Page 399]
And the trial judge reverts to the matter at the close of his reasons for judgment when he says:
It seems to me that the whole proximate cause of this accident was the condition of the plaintiff driver and his failure to keep a proper lookout, possibly combined with the dimness of his lights. * * * I find that the plaintiff driver failed in his duty. I have no doubt whatever that such failure was largely caused by the beer he had consumed; it dimmed his senses and rendered him much less observant. That being so, I find that the plaintiff driver was wholly responsible for the accident, and exonerate the defendant driver Kelso.
There was no admissible evidence upon which the trial judge could reach any such conclusion as to the drunkenness of the driver Burns. The defendants’ counsel, Mr. Schroeder, who is always very earnest and careful in the presentation of his cases, frankly stated to the judge, as above pointed out, that there was nothing very serious about it, and that was said after inadmissible evidence had been admitted, subject to objection, by the trial judge. Burns had with him at the time of the collision a “hitch-hike” passenger named Charlebois who was not called as a witness though the evidence indicates that he was at the time of the trial working in a restaurant at Cobourg, Ontario. The trial judge admitted, notwithstanding objection, during the cross-examination of the highway traffic officer Rose, called by the plaintiff, what the witness described as “a whole line of lingo” given him by Charlebois. The witness gave what Charlebois said to him when in the doctor’s car after the accident, but the witness added:
I just looked at the man and considered that he was pretty nearly frantic; he was choking.
The alleged statement by Charlebois that the driver Burns had been drinking all the way from Montreal was in itself utterly false, if made, because Burns had only taken over the driving of the truck at Morrisburg, about 14½ miles back of the place of the collision. Morrisburg is a town on the St. Lawrence river about 100 miles west of Montreal. The truck had been brought from Montreal by another driver altogether and Burns took it over at Morrisburg to drive it on to Toronto. But in any event the vice of the evidence is that it was merest hearsay. It was tendered and admitted upon a theory that it was a statement made in the presence of Burns. But the evidence
[Page 400]
is plain that whatever was said was said at a time when Burns, while physically present, had, according to the doctor’s evidence, been given morphine and was suffering pain from burns received before getting out of the burning truck. Charlebois himself was in a “sort of raving condition” at the time. Rose, the traffic officer, says that when he returned to Morrisburg and found that Burns had just taken charge of the truck there and that Charlebois had only gotten into the truck there, hitch hiking, “I dismissed what he said.”
Dr. O’Connell, a near-by physician who was called at the time of the accident, washed Burns’ arm with alcohol and gave him morphine. The doctor said he did not detect any smell of intoxicating drink on Burns and that there was nothing about his condition to make him think he was under the influence of liquor. Rose, the traffic officer, had said that when he saw Burns at a near-by farmhouse after the accident,
the man was suffering, and the doctor was looking after him then.
and added:
I could smell liquor on his breath; it seemed to be in the air that night; I could smell it everywhere; I could smell the doctor’s alcohol that he had been working with; but the man was injured, and I would not care to pass judgment on him. His feet were injured. He was helped out to the doctor’s car; the doctor was anxious to get him away to the hospital.
The evidence of Rose was given prior to the time that Mr. Schroeder told the trial judge that there was nothing very serious about it, and yet the trial judge shortly afterwards during the course of the trial said:
I felt sure Mr. Schroeder was going to make more of it.
Now Burns had driven from Toronto down to Morrisburg with another truck during the previous evening and after eight hours’ sleep in Morrisburg was up and around at about 2 p.m. He did not leave with the truck in question, arriving from Montreal, until about 11 p.m. He admitted frankly that he had some beer during the afternoon and evening and Mr. Schroeder said to the Court during the evidence about the beer, “I am not alleging he was intoxicated.” Burns said that between two and five o’clock in the afternoon he had taken three glasses of draught beer when he went to a hotel at two o’clock;
[Page 401]
that he went for a swim around four o’clock and got back around five o’clock, and that he then had some more beer—be bought a quart bottle. Later he had his supper about 6.30 o’clock and he took about three-quarters of a glass of beer right after supper. He did not drink anything else that day besides beer; he had brought no liquor with him from Toronto and he had not bought any while in Morrisburg. Then when he was starting out on his trip at about eleven o’clock at night, he had one glass more. The admissions of Burns were, of course, admissible but they do not go any such length as to warrant the trial judge taking the view he did of the whole case on the basis of a reckless, drunken driver.
The difficulty is to determine what disposition of the case ought now to be made by this Court. Like most motor car collision cases, this case turns on its own particular facts and where the findings of fact by the trial judge were obviously controlled by the evidence of the beer and which evidence (the alleged statements of Charlebois being wholly inadmissible) permeated his whole view of the broad estimate of responsibility for the collision, we are not in a position where, in my opinion, we can safely or fairly rest upon the findings. A new trial in such circumstances might be in many respects a satisfactory course, but it is a course which inevitably would work a great hardship on one, if not on both, of the parties. The respondent’s (plaintiff’s) driver was plainly guilty of at least some negligence that contributed to the collision and sec. 4 of The Negligence Act, R.S.O., 1937, ch. 115, provides that
If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent.
I would therefore take advantage of that provision and award the respondent judgment for $4,500, being one-half the amount of the damages assessed by the trial judge.
In my opinion, the appeal should be dismissed with costs, the cross-appeal allowed and the judgment appealed from set aside and judgment directed to be entered in favour of the respondent in the sum of $4,500, with costs throughout.
[Page 402]
KERWIN J.—This is an appeal by the defendants, the owners and driver respectively of a truck, from a judgment of the Court of Appeal for Ontario. The trial judge had dismissed the action brought by the respondent, the owner and driver of another truck, for damages sustained by reason of a collision between the two trucks and had allowed the appellants’ counterclaim, as he found the respondent was solely to blame for the occurrence. In the Court of Appeal, Mr. Justice Riddell agreed with the trial judge. Mr. Justice McTague and Mr. Justice Gillanders were satisfied that the respondent had been guilty of negligence and in fact adopted the findings of the trial judge with respect thereto but differed from the view of the trial judge and Mr. Justice Riddell in that they considered that Kelso, the driver of the appellants’ truck, was at fault to the extent of twenty-five per cent.
While the trial judge placed considerable emphasis upon the quantity of beer consumed by the respondent, he also ascribed the proximate cause of the accident to the respondent’s
failure to keep a proper lookout, possibly combined with the dimness of his lights. I find that he failed to observe the outstretched hand of the defendant driver, and also the flashing on and off of the rear light of the defendant’s truck and the fact that the said truck was starting to edge towards the centre of the road with a view to turning into the side-road to the coal-yards. This side-road was perfectly visible, being marked with signs.
As has been pointed out, the findings of negligence against the respondent were adopted by all the members of the Court of Appeal. The majority, however, considered that Kelso had not complied with section 39, subsection 1(d) of The Highway Traffic Act, R.S.O., 1937, chapter 288:—
(d) The driver or operator of a vehicle upon a highway before turning to the left from a direct line shall first see that such movement can be made in safety, and if the operation of any other vehicle may be affected by such movement shall give a signal plainly visible to the driver or operator of such other vehicle of the intention to make such movement.
They held that Kelso had not seen that his intended movement to the left could be made in safety and that his failure was one of the direct causes of the accident. The evidence indicates that Kelso looked in his rear view mirror and did not see the respondent’s truck. Kelso
[Page 403]
admitted that the view reflected in the mirror was that of the land to the north of the road and not of the roadway in the rear of his own truck. At the point where Kelso commenced to veer to his left, there is a down grade in the road and also a curve to the south from east to west.
The majority in the Court of Appeal also appear to have thought that the appellants had not complied with section 12. 1 (b) of the Act:—
Every motor vehicle other than a motorcycle shall be equipped with,—
(b) a mirror securely attached to such vehicle and placed in such a position as to afford the chauffeur or operator a clearly reflected view of the roadway in the rear, or of any vehicle approaching from the rear.
I am rather inclined to agree, as I consider that the mirror required by this provision is one that may be tilted as required so “as to afford the chauffeur or operator a clearly reflected view of the roadway in the rear.” It does not appear from the evidence that the mirror installed on the appellants’ truck was of such a character but the proper inference would appear to be that even if it were so, it was not put in such a position as to fulfil the requirements.
The respondent also contended that Kelso had not complied with section 39. 1 (c) of the Act:—
39. 1 (c) The driver or operator of the vehicle intending to turn to the left into an intersecting highway shall approach such intersection as closely as practicable to the centre line of the highway and the left turn shall be made by passing to the right of such centre line where it enters the intersection, and upon leaving the intersection by passing to the right of the centre line of the highway then entered.
Kelso intended to turn to the left into an intersecting highway. It is true that the front wheels of his truck had crossed the centre line of Highway No. 2 but, as found by the trial judge and all the members of the Court of Appeal, Marsh should have seen the veering to the left and Kelso’s arm signal; and in any event Kelso had not yet entered the intersection of the two highways. In my view, Kelso did not commit any infraction of the last statutory provision.
Upon consideration, I am of opinion that even if Kelso had committed the other infractions referred to they had
[Page 404]
nothing to do with the accident. If his rear view mirror had reflected the roadway in the rear of his truck, or if he had put his head out of the cab window and looked back, upon the evidence, he would not have seen the respondent’s truck. In my opinion, the trial judge and Mr. Justice Riddell were right in determining that the sole cause of the accident was the negligence of the respondent.
I would allow the appeal and restore the judgment at the trial, with costs throughout. The cross-appeal of the respondent asking that all the blame be placed on Kelso is, of course, hopeless and must be dismissed with costs.
HUDSON J.—This was a highway traffic accident tried before Mr. Justice Urquhart without a jury. He found for the defendant, holding that the plaintiff’s negligence was the sole cause of the accident. On appeal to the Court of Appeal, Mr. Justice Riddell agreed with the trial judge, but the majority, composed of Mr. Justice Gillanders and Mr. Justice McTague, while agreeing with the trial judge that the plaintiff himself was guilty of gross negligence, held that the defendant too had been guilty of negligence which contributed to the accident and assessed him with 25% of the damages.
Mr. Justice Gillanders in giving the opinion of the majority of the Court stated:
The learned trial judge has found the plaintiff’s driver negligent and wholly responsible for the accident, and has exonerated Kelso, the driver of the defendant’s truck, from all blame. He accepts the evidence of Kelso and Miss Douglas, a passenger in the defendant’s truck, and, where the evidence of any other witness is in conflict with their testimony, he believes these two witnesses. He has also on conflicting evidence found the facts strongly in favour of the defendant, and it is the duty of this Court to accept his findings of fact supported by the evidence, his appraisal of the credibility of the witnesses, and the testimony of those witnesses whose evidence he accepts where there is a conflict.
I fully accept and agree with his finding that the plaintiff’s driver was negligent, amply supported as it is by the evidence; that the plaintiff’s driver was not keeping a proper lookout; that he should have observed Kelso’s hand and wrist as a signal; that the flashing on and off of the rear light of the defendant’s truck caused by putting the brake on and off should have been seen, and that he should have seen the truck itself edging towards the centre of the road, and that his failure to keep a proper lookout was possibly largely caused by the beer he had consumed.
[Page 405]
The learned trial judge held specifically that he believed the evidence that “no horn was sounded by the plaintiff and no warning given of his approach,” and it is clear from the above quotation from the judgment of Mr. Justice Gillanders that the majority of the Court of Appeal accepted such finding. These are concurrent findings of fact.
It would then appear on the evidence, as I accept it, that the defendant’s driver was travelling westward on a highway at a moderate rate of speed. For a distance of 100 feet or more he had veered slightly to the left and eventually reached a point where the left front fender of his car was about 2 feet from the left of the centre of the road. At this moment the side of his car was struck by the plaintiff’s car which had approached from the rear at a high rate of speed and was attempting to pass without warning.
I do not think that the argument based on the Highway Traffic Act applies to the facts here. The defendant had not yet started to make the sort of turn contemplated by the statute.
The onus is heavily on the driver of a motor vehicle attempting to pass another from the rear to excuse himself from responsibility for a collision with a car ahead.
In my view, the negligence of the plaintiff’s driver was the substantial cause of the accident: see Swadling v. Cooper. The appeal should be allowed, the cross-appeal dismissed, and the judgment at the trial restored with costs throughout.
Appeal allowed, cross-appeal dismissed, and judgment at trial restored, with costs throughout.
Solicitors for the appellants: MacCracken, Fleming & Schroeder.
Solicitors for the respondent: Hughes, Agar & Thompson.
Email this Content