Supreme Court of Canada
Fleming v. Atkinson, [1959] S.C.R. 513
Date: 1959-03-25
Leo Fleming (Defendant)
Appellant;
and
Floyd Atkinson (Plaintiff)
Respondent.
1958: October 16, 17; 1959: March 25.
Present: Taschereau, Rand, Locke,
Cartwright, Fauteux, Abbott and Judson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Animals—Negligence—Cattle straying on
highway—Pastured on road—Collision with motor vehicle—No by-law prohibiting
straying—Liability of owner of cattle—Trespass—Whether law of England same as law of Ontario.
The plaintiff, while driving on a hilly
country road, was injured and his vehicle damaged when he struck and killed two
cattle, part of a herd of twenty owned by the defendant, all of which were
grazing unattended on the highway. The plaintiff sued for damages and the
defendant counterclaimed for the value of the cattle. The trial judge found the
plaintiff 40 per cent. negligent and the defendant 60 per cent. He dismissed
the counterclaim on the ground that the cattle were trespassers. This judgment
was reversed in part by the Court of Appeal to the extent of maintaining the
counterclaim. The defendant cattle owner appealed to this Court.
Held (Locke
and Cartwright JJ. dissenting): The appeal should be dismissed.
Per Taschereau
and Rand JJ.: The defendant was in the same position as a drover along the
highway who, admittedly, is held to the exercise of reasonable care in driving
cattle on to or along the highway. To put or drive animals on to the highway
was not within the purely negative rules laid down in Searle v. Wallbank, [1947]
A.C. 341.
Per Fauteux,
Abbott and Judson JJ.: The historical basis for the rule in Searle v. Wallbank,
supra, dependent as it was upon the peculiarities of highway dedication in
England, has never existed in Ontario. The public right of passage on the
highways of Ontario was never subject to the risk of straying animals for the
historical reasons given in that case. The highways of Ontario for the most part did not result from dedication but were created
when the province was surveyed. The fee remained in the Crown. The rights of
adjoining owners were the same as of any other member of the public and no
higher. There was therefore no reason for giving adjoining owners any special
rights to permit the straying of animals. Furthermore, the other foundation for
the rule was that until the advent of fast-moving traffic no cause of action
could possibly have existed. This foundation must also be rejected. It was
therefore open to this Court to apply the ordinary rules of negligence to the
case of straying animals and the case of Searle offered no obstacle.
That case had never been the determining factor in Ontario until the decision in Noble v. Calder, [1952] O.R. 577. With
the exception of the latter case, there were no decisions in Ontario which hold that
[Page 514]
the common law of England as defined in the Searle case was ever the common law of Ontario. The appeal should be dismissed
because the duty rejected in Serle v. Wallbank existed in Ontario.
Per Locke J., dissenting:
The proximate cause of the injury suffered by the plaintiff was his own
negligence. The evidence disclosed a complete and reckless disregard by him of
his duty to avoid injury to the animals and, even if they were trespassers upon
the highway (which they were not), there was no liability: Excelsior Wire
Rope v. Callan, [1930] A.C. 404. The principle upon which Davies v. Mann
(1842), 10 M. & W. 546 was decided, applied. Upon the evidence the
legal question referred to in the judgment of the Court of Appeal did not
arise.
Per Cartwright
J., dissenting: The duties of a cattle-owner whose property adjoins a
highway are regulated by the common law of England except in so far as that law
has been modified by statutes or by-laws: Noble v. Calder, supra. The English
decisions appear to be based not on a supposed right of the owner to let his
animals run at large on the highway but on the absence of any duty to users of
the highway to keep his animals from straying therefrom. Accepting the law of Ontario as being the same as that laid down
in Searle v. Wallbank, supra, it was impossible to say that the present
case was removed from its application by the mere fact that twenty animals were
involved. What was proved against the defendant was a case of non-feasance
which neither his knowledge nor his indifference could transform into
misfeasance. If, on the other hand, the presence of the cattle constituted a
breach of a legal duty, the negligence of the plaintiff was the sole effective
cause of the accident.
APPEAL from a judgment of the Court of Appeal
for Ontario, reversing in part
a judgment of Moorhouse J, Appeal dismissed, Locke and Cartwright JJ.
dissenting.
C.F. MacMillan, for the defendant,
appellant.
R.A. Pringle, Q.C., for the plaintiff,
respondent.
The judgment of Tashereau and Rand JJ. was
delivered by
RAND J.:—Mr. MacMillan’s case is rested on Searle
v. Wallbank which,
in declaring the common law of England, decides two points: first, that there
is no duty on an owner of land adjoining a highway toward a person driving a
vehicle on the highway to maintain fences on his property against the escape of
animals: and secondly, that such an owner owes no duty to a person so using
that highway to exercise reasonable care to keep his animals off the highway. These
are purely negative rules; the owner, in relation to an animal on his land
bordering on a highway,
[Page 515]
intent on the ordinary husbandry of and on his
own land and that alone, remaining wholly negative toward the use of the
highway, incurs no liability for its escape; it is a case of pure non-feasance,
total non-action and non-purpose in the absence of a duty. The judgment does
not touch the question of a duty arising when he knows of the presence of his
animals on the highways or when he does an affirmative act, the known or
contemplated and inevitable consequence of which is that they go upon the
highway. The direct and obvious act would be driving them there, but the act of
being responsible for their presence is not limited to its being against or
directive of the inclination of the animal; if it is turned out of the barn,
for example, on to a roadway that leads to a gate opening on the highway and
that gate is intended to be open or is thereupon opened and the owner knows
that the cattle will, in the circumstances and of their own accord and
inclination from use or other inducement, pass along on to the highway, there
is more than negative conduct on his part. Turning them out in front of an open
gate or opening the gate when they are turned out, with a mind aware of what
they will do, without more, is an affirmative act intended to lead and leading
to their being at large on the highway.
That was the factual situation here: the cows
were milked in the barn in the mornings; the inference is clear that on the day
in question they were not taken to the pasture, and in the ordinary course of
feeding they ranged the highway daily from morning till night; to the question,
“Where did he pasture the animals”?, Hartin, the farmhand of the appellant, in the
latter’s presence, answered, “Well, sir, they was running on the roads” and it
remained unchallenged.
The state of mind of the owner is made clear by
his statement to the police officer that the cattle were his “property” and
that he would “let them go where I like”. The rules laid down in Searle are
historical incidents of life in rural England arising from conditions relatively primitive, which the advent of
the motor vehicle has revolutionized. There are to be noticed, also, as
affecting the application of old rules to new social life, the special
circumstances of the earliest days of Ontario to which Roach J.A.,
[Page 516]
speaking for the Court of Appeal, makes reference, such as the origin of
highways by governmental action, their ownership in the Crown, and the series
of statutes dealing with fencing and with animals running at large.
Assuming but not deciding that the rule so laid
down was brought by the colonists to the province, its scope is to be confined
strictly to the limits defined. To “let them go” implies, in the circumstances
here, a removal of restraint or the acquiescence in their movement, the actual
nature of which we do not know because the owner did not see fit to take the
stand. The testimony of the farmhand and his wife who had lived and worked on
the farm for about a year, unchallenged on cross-examination and uncontradicted
by him, furnishes ample evidence for that inference. He is, then, in the same
position as a drover along the highway who, admittedly, is held to the exercise
of reasonable care in driving cattle on to and along the highway. In Searle,
Lord Porter expressed the view that to put or drive animals on to the
highway was not within the rules there laid down.
The judgment of the Court of Appeal3
was placed on a failure in a duty of care in relation to the animals where they
were, but it was based on the presence of a large number, 20, animals as
distinguished from one. The validity of this distinction I do not find it
necessary to inquire into, and I express no opinion upon it one way or the
other.
I have had the privilege of reading the reasons
of my brother Judson in which liability is put upon the duty of an owner to use
reasonable care to keep his animals from trespassing on the highway. I agree
that vis-à-vis the owner of the fee there is a trespass when the animals
are not using the highway for the ordinary purpose of passage; I do not find it
necessary, however, to go to the extent of finding such a duty in this case.
There was here more than mere failure to use reasonable care; what the animals
did was the virtually inevitable and foreseen consequence of turning them loose
at the barn. Although I am inclined to agree with it, the rule of a positive or
active duty extending, say, to reasonable inspection and maintenance of means
used to
[Page 517]
contain the animals on the owner’s land, goes
beyond the necessities of what is before us, and I leave it for future
decision.
I would, therefore, dismiss the appeal with
costs.
LOCKE J. (dissenting):—This is an action
for damages for personal injuries said to have been occasioned by the
negligence of the appellant in permitting his cattle to graze upon a county
highway in Ontario. As, in my
opinion, the evidence demonstrates that, to adopt the language of Lord Sumner
in British Columbia
Electric v Loach, “the efficient, the proximate, the
decisive cause” of the respondent’s injuries was his own negligence, I would
allow the appeal. Even had the cattle been unlawfully on the highway or in the
position of trespassers, and I agree with Mr. Justice Roach that they were
not, neither fact would, in my view, be any more material than was the fact
that the child whose case was considered by the House of Lords in Excelsior
Wire Rope v. Callan was
a trespasser.
By the statement of claim the respondent alleged
that while driving east upon a highway in a Willys jeep, on going over a crest
of a hill he was suddenly confronted by several head of cattle belonging to the
defendant that were trotting towards him, that he thereupon stopped the vehicle
and “was charged by three or more of the cattle”, in consequence of which he
suffered severe personal injuries. Particulars of the negligence complained of
were: (a) that the defendant had knowingly permitted his cattle to be at
large upon the highway without proper supervision; (b) that he failed to
fence or maintain his fences adjoining the roadway in a reasonable state of
repair and that they were inadequate to contain cattle; (c) that he had
knowledge of “the vicious propensity of cattle that when confronted with a red
coloured object, charge the object”, that he failed to see that the cattle were
kept in an enclosure strong enough to prevent them charging and attacking
persons and property on the highway; (d) that the appellant had
negligently left an opening in the fence through which the cattle strayed; and
lastly, (e) that the cattle were followed by two bulls who were chasing
them, thus constituting a nuisance on the highway.
[Page 518]
No attempt was made at the hearing to support
any of the allegations in (c) and (e) above. Had they not
been included, the defendant might well have objected that the statement of
claim did not disclose a cause of action and set the question down for argument
before trial under Rule 122 of the Supreme Court of Ontario.
The evidence given in support of the claim was
both confusing and contradictory and it is necessary to examine it in detail.
The respondent was driving in a westerly
direction upon a gravel road, accompanied by two men by name Asselstine and Stinchcombe.
These three were the only eye witnesses of the accident. Atkinson was the
driver of the conveyance which was owned by a third person and which he was
driving in an endeavour to detect a defect in its mechanism. It was about
4 o’clock in the afternoon: the weather was fair and the road was dry and
he had driven over it several times before. Atkinson said that he was driving
between 30 and 35 miles an hour when he drove over a small hill or knoll and
saw ahead of him some cattle, whereupon he reduced the speed of the car to 10
or 15 miles an hour. Proceeding at this rate driving through the cattle without
mishap, he came to another knoll which, as he proceeded, fell sharply away in
front of him. He did not say that he had thereafter increased the speed of the
car. He said that this second hill was so steep “when coming over the top you
have no vision to see until you get right down to the bottom” and said that it
was when he reached the bottom “that there was three head of cattle coming
towards me at a fair pace”. According to him, he “could not see them until they
were right on top of me, your view was obstructed”, and he said that as soon as
he saw them he put on the brakes and brought the vehicle to a stop but that,
just as he was coming to a halt, the three cattle struck it. He said nothing
about passing any cattle between the top of the knoll and the point of impact.
When cross-examined, he said that he had not seen the three cattle approaching
until they were the length of the jeep away, and this was shown to have been
from 10 to 14 feet.
Asselstine, who was sitting on the extreme right
of the front seat of the vehicle, said in direct examination that as soon as
they came over the hill he saw 15 or 20 head
[Page 519]
of cattle, some in the center of the road and
some in the ditches, and that they were then about 20 or 25 feet away. In
answer to a leading question he answered in the affirmative when asked if he
had seen them after they had driven over a second knoll or hill. After the
learned trial judge had pointed out the leading nature of the question, he
directed that the witness give his account of the matter again. This reads as
follows:
We just popped over the hill and there was
the cows; there is kind of an opening through them, and threw the brakes on and
started through them.
Asked by the trial judge to explain what he
meant, he said:
There was a flock of cows all over the
road, so we threw the brakes on and thought we would get through, and the
closest I can figure it is we got through a few of them and just have hit some
more where—
Following this, the transcript reads:
MR. RICHARDSON (the defendant’s
counsel): Got through a few and then hit one?
THE WITNESS: Yes, we threw the brakes on
and were still sliding, and the closest I can figure it is one stepped out in
front of us.
HIS LORDSHIP: Went through a few and hit
one.
MR. RICHARDSON: Still sliding.
HIS LORDSHIP: Threw brakes on and still
sliding.
Q. You were still sliding when you hit the
one?
A. Yes, sliding through the gravel.
The witness said that their speed was about 30
miles per hour when they reached the top of the hill. He said nothing about a
second hill.
The cross-examination reads in part:
Q. Well, now, then, as I understand your
story you came over a knoll, hopped over a knoll to use your expression, and
when you got to the top of the knoll you saw the cattle down in the valley, is
that right?
A. Right.
Q. And immediately your driver applied his
brakes and skidded?
A. Right.
Q. Is that right. Yes. And he
skidded—missed some of the cattle and hit one or two?
A. Right.
The witness had not said that the cattle were
down in the valley.
[Page 520]
Stinchcombe was seated between Atkinson and
Asselstine and says that they were driving at about 30 to 35 miles an hour when
they approached the first hill. He said:
We went over two small hills after we
passed Mr. Fleming’s house, and about the third hill, it was a sharp hill,
you couldn’t see anything, we went over it and dropped right down and the
cattle were right in the middle of the road.
MR. PRINGLE (the plaintiff’s counsel):
Q. Speak up loudly, please.
A. There was about 15 or 18 head of cattle
in the middle of the road when we dropped over the third sharp hill.
Q. Yes, and how far away were they from you
when you first saw them?
A. Well, about two or three lengths of the
jeep, I think.
Q. Where were they on the road?
A. Well, approximately blocking the whole
road.
Q. And what did you observe happen then?
A. Well, Mr. Atkinson applied the
brakes and then I don’t recall too much. We skidded into the cow.
Q. And how far did you skid after you hit
the cattle, do you know?
A. Not too far, pretty well stopped us.
Q. How many cattle did you run into and
hit?
A. I think we hit three of them, one was
skinned up.
He said further that when they first saw the
cattle the latter were facing the jeep and, asked if he had struck the animals,
said:
Well, one we hit her in the side, on the
side, and I couldn’t say where we hit the other one.
He said that, generally speaking, the herd was
facing them and that, while some of the animals were moving around, the others
were moving towards them. On cross-examination, he said that when they got to
the hill, which presumably meant the third hill which had not been mentioned by
the other witnesses, they saw the cattle about 25 to 30 feet distant and that
Atkinson had reduced the speed to between 5 and 10 miles an hour when the
animals were struck, and said that the brakes had been applied immediately the
cattle became visible.
This is all the evidence that was given on
behalf of the respondent to sustain the charges of negligence and the account
of each of the witnesses differed materially, as will be seen. However,
evidence given for the appellant by a disinterested witness is of some
assistance in coming to a conclusion upon the facts.
[Page 521]
Constable Bolyea of the London Township Police
Force arrived at the scene at about 4.40 p.m. He found the jeep on the south travelled portion of the road and
two dead cows, one lying to the rear of it on the shoulder of the road and one
in a ditch to the north. He was able to determine the point of impact and, from
that point, there was a skid mark 39 feet long to the west which had been made
by the jeep. From the westerly end of this skid mark to the top of the hill the
distance was 150 feet. Describing the road, he said that there were two sharp
inclines and it was on the most easterly of these that the accident had
occurred. He said that from the top of this hill the driver of a car had a
clear view to the place where the cattle were struck, and that there was an
unobstructed view for 500 yards to the east. He described the grade as being “a
gradual grade down to where the cows are”. He said further that the position of
the jeep showed that it had continued to the east after striking the animals, a
distance which, he thought, might be two or three lengths of the vehicle.
That there was a clear view from the brow of the
second hill to the place of the collision was also proven by another
distinterested witness, Joseph H. Yeomans, who helped the police officer in
taking measurements on the road. His son, Clifford Yeomans, had been with him
at the appellant’s farm and had seen the jeep approaching the location where
the accident occurred and estimated its speed as being at least 50 miles an
hour.
It would have been of material assistance in
dealing with this appeal if the learned trial judge had dealt rather more fully
with the issues of fact upon which any finding of negligence must depend. In
the reasons delivered by him he found that the respondent was driving at a
reasonable rate of speed and that the distance from the brow of the hill “to
the point of impact with several of an unattended herd of some 20 head of
cattle” was established to his satisfaction as 189 ft. The learned judge did
not say at what point, whether at the brow of the second hill or at some
earlier stage, the speed of the jeep had been reasonable nor what he considered
to be reasonable in the circumstances, or mention the fact that the respondent
had said that, when he drove through the cattle on the road between the first
and the second hills, he had reduced the speed to
[Page 522]
about 10 to 15 miles an hour. It was after doing
this that he reached the brow of the second hill. The reasons further state
that the witness Asselstine had said that they were travelling from 15 to 20
miles an hour when they came over the hill, but the witness had not said this.
The only evidence given by him as to the speed was that, just prior to the
accident, it was about 30 miles an hour.
The finding that the distance from the brow of
the hill to the place where the cattle were struck was 189 feet, as stated by
Constable Bolyea, shows that the learned trial judge found against the
credibility of the respondent. While the latter had sworn that he could not see
the three cows which, he said, ran into his jeep, until he reached the bottom
of the second hill, he did not attempt to explain why this was and he was not
called to give evidence in rebuttal to the constable’s evidence that the view
was unobstructed from the top of the hill to the point of collision and for
more than 300 yards further to the east. The respondent’s account, as I have
shown, was that he had driven through the main body of the herd, which was
between the first and the second hills, and he did not suggest that there were
any other cattle on the road after he drove over the second hill, except the
three which, he said, charged into the jeep. As to these, he said he did not
see them until they were about 12 or 14 feet distant.
The learned judge accepted the evidence of the
constable that the accident happened on the eastern side of the second hill. He
obviously did not believe the witness Asselstine who said nothing about a
second hill but whose account was that they came over a hill and came suddenly
upon the cattle on the road some 20 to 25 feet away, that the respondent put on
the brakes and drove through the herd and, while the car was sliding, a cow
stepped in front of it and was hit. This would place the scene of the accident
as between the first and the second hills and bears no resemblance to the
respondent’s story in any respect.
As to Stinchcombe, he said that the accident
occurred on a third hill which, as the constable’s evidence shows, did not
exist. He said that the cattle were blocking the road when they came over the
hill and were then only about 20 or 30 feet away, whereupon Atkinson had
promptly put on the brakes and the jeep had skidded into the herd at a
[Page 523]
speed of from 5 to 10 miles an hour. The finding
of the learned judge as to the place of the accident shows that he did not
believe this witness: it is, indeed, impossible, in view of the evidence of the
constable and of the length of the skid marks, that his evidence could be true.
No finding was made as to the truth of the
respondent’s evidence that the three cows had charged unexpectedly into the
jeep. Neither Asselstine or Stinchcombe had said that this had occurred and,
indeed, their evidence appears to contradict it. Asselstine had said that a cow
had walked in front of the jeep while it was skidding and been struck.
Stinchcombe, that the cattle were facing them when they first saw them and that
he thought they had struck three, one being struck on the side: he was unable
to say where the others were hit.
The reasons delivered at the trial do not
mention the fact that the respondent had sworn that he had brought the jeep to
a halt or practically to a halt (he said both) by the time the collision
occurred and that it had not skidded, whereas the evidence of Constable Bolyea
showed that the jeep had skidded 39 feet before hitting the animals and had
continued to the east some two or three lengths of the vehicle.
The learned judge appears to me to have based
his finding of liability against the appellant on what he considered to be the
breach of a duty which is referred to in a passage from the judgment of Romer
L.J. in Deen v. Davies. It
is there said that the owner of an animal who brings it upon a highway owes a
duty to those using the highway to use reasonable care to prevent the animal
damaging them and that this duty arose when an owner permitted cattle to
pasture unattended on the highway. After considering at length a number of
authorities, the learned judge found that the appellant’s cattle were not
lawfully upon the highway and that he ought to have anticipated that their
presence there would create a dangerous situation.
Without discussing the accuracy of the statement
relied upon, which I consider to be unnecessary, and with great respect for the
opinion of the learned trial judge, he appears to have overlooked the fact that
while, undoubtedly, without the presence of the cattle upon the highway the
[Page 524]
accident would not have occurred, this does not
decide the matter. Their presence was a causa sine qua non undoubtedly,
but that is not the point. The judgment at the trial unfortunately did not deal
with the real question to be determined on the issue of negligence.
The unanimous judgment of the Court of Appeal
was delivered by Roach J.A. That learned judge did not agree with Moorhouse J.
that the cattle were trespassing on the highway. With this I agree though I
think, in view of the evidence which I have referred to, the matter is of no
moment.
The findings of fact made by Roach J.A. read:
The cattle were somewhere along the second
hill and within 150 feet of its top. They were not visible to the persons in
the jeep until, as one of those persons put it, the jeep “popped” over the top
of the second hill. The cattle were strung out along the roadway of that second
hill, some of them sufficiently close to the shoulders on either side that the
plaintiff, by the exercise of some dexterity, was able to steer the jeep
between them and avoided striking any of the cattle in the fore part of that
herd. However, there were three stragglers at the far end of the herd and
separated from the rest of it by a short distance. It was probably the
commotion in the front section of the herd as the cattle beasts scampered
in the direction of each side of the road, and the noise of the jeep, that
bestirred these three stragglers. They were on a piece of the travelled portion
of the road at each side of which the shoulder dropped off rather precipitously
into a deep ditch. Almost abreast of each other these three stragglers suddenly
started running up the road toward the jeep and collided almost head on with
it.
I am unable, with respect, to agree that this
correctly summarizes the evidence. The main body of the cattle were not strung
along the roadway of the second hill, if the evidence of the respondent and
Asselstine is to be believed. They say that it was when they drove over the
first hill that they encountered the main body of the animals on and alongside
the road, and the respondent said that it was after he had driven through this
herd at the reduced speed of 10 to 15 miles an hour that he came to the second
hill and that it was not until he got “right down to the bottom” of it that he
first saw the three cows some 10 to 14 feet distant. He did not say, and there
is no evidence, that there were any other cattle on or along the roadway
between the top of the second hill and the point of impact. As the evidence
shows, the “three stragglers” were over the second hill at the bottom of the
grade and separated from
[Page 525]
the main body by more than 189 feet. I can find
nothing in the evidence to support the suggestion that the three cows were
startled into running by any scampering by the other animals.
The reasons of the Court of Appeal say nothing about
the speed of the vehicle as it drove down the second hill, a vital matter to be
considered in determining liability in this case. The respondent’s story that
the vehicle had not skidded and that it had stopped or practically stopped at
the time of impact was shown to be untrue by the constable’s evidence and the
skid marks on the road.
While the judgment at the trial appears to have
been based on the ground that the cattle were trespassers upon the highway,
Roach J.A. found that they were not. The judgment appealed from appears to
proceed on the basis that while the presence of the cattle upon the highway was
not unlawful, the appellant should have foreseen that their presence on this
hilly road might result in their being struck by vehicles, the drivers of which
were unaware of their presence, coming suddenly upon them.
Whatever there is to be said for this as a
proposition of law, in my opinion, and with the greatest respect, it has no
bearing upon the issue in this case.
While the Courts below have found that the
appellant was partly to blame, they appear to have done so for different
reasons and upon differing views as to what the evidence disclosed. As pointed
out by Taschereau J. in delivering the judgment of this Court in The North
British and Mercantile Insurance Company v. Tourville, even were there concurrent findings
upon the facts, it would be our duty to examine the evidence and come to our
own conclusion as to where the liability rests. Other than that the appellant
was guilty of some act of negligence which contributed to the occurrence of the
accident, the findings in this matter do not appear to me to be concurrent. We
are in equally as good a position as the learned judges of the Court of Appeal
to determine the weight to be given to the conflicting evidence upon which this
claim is based.
[Page 526]
Accepting the evidence of the respondent that
the speed of the jeep was about 30 miles an hour when he first came upon the
herd, that he reduced that speed to some 10 to 15 miles an hour before he came
to the brow of the second hill, at that point, as was proven to the
satisfaction of the trial judge, he had a clear and unobstructed view of the
road down the hill to the place of collision. There were no other cattle on
this part of the roadway. The skid marks which showed clearly on this gravel
road did not commence for a distance of 150 feet from the summit, so that the
brakes were not firmly applied until the jeep was within 39 feet of the cattle.
The length of the skid marks and the fact that the jeep carried on to the east
an appreciable distance after striking the cattle with such force that they
died almost immediately is conclusive proof, in my opinion, that after driving
over the top of the second hill the respondent had increased the speed to a
very considerably higher rate before suddenly applying the brakes. As the
approaching jeep would be plainly visible to the animals on the road for at
least 189 feet, the evidence given, only by the respondent, that the cows
charged headlong into it appears to me to be as manifestly untrue as his denial
that the jeep had skidded. His evidence as to this would appear to have been
given in order to support the admittedly groundless charges in the statement of
claim that the animals were vicious, to the appellant’s knowledge, and would
charge a red coloured object and that they had been chased by two bulls. There
was no red object and the respondent admitted that the presence of the bulls
somewhere in the herd had nothing to do with the occurrence. Stinchcombe’s
evidence was that at least one of the animals was struck on the side, which
would indicate that it had been trying to get off the road to avoid the
oncoming car.
It is a common occurrence throughout Canada for drivers, both of horse-drawn
vehicles and motor cars, to meet small numbers or herds of cattle upon country
highways such as this. Cattle are slow-moving animals and readily frightened
and persons encountering them in these circumstances are charged with knowledge
of this fact and with the duty of driving with caution to avoid injuring them.
No prudent person would drive a horse-drawn vehicle through cattle found upon
the highway at a speed of 10 miles an hour since
[Page 527]
to do so would be simply to court trouble.
Drivers of motor vehicles charged with this duty are probably too often
inclined to forget that a motor car in motion upon a highway is a dangerous
machine, the management of which imposes upon them a high degree of care to
avoid injury to others. It is to be noted that a special section of the Highway
Act of Ontario, R.S.O. 1950, c. 167, s. 46, deals with the duty of such
drivers to avoid frightening horses or other animals upon the highway.
The evidence in the present matter discloses, in
my opinion, a complete and reckless disregard by the respondent of his duty to
avoid injuring these animals. They were in plain view on the roadway ahead and
yet he drove toward them at a speed which precluded him from stopping, and the
animals from escaping.
In Davies v. Mann, the owner of a donkey had left it
upon the highway fettered in the fore feet and thus unable to get out of the
way of the defendant’s wagon which was going at a quick pace along the road. It
was held that the jury at the trial had been properly directed that, although it
was an illegal act on the part of the plaintiff to put the animal on the
highway, he was entitled to recover. Lord Abinger C.B. said that while it was
not denied that the animal was lawfully on the highway, were it otherwise it
would have made no difference since the defendant might by proper care have
avoided injuring the animal. Baron Parke, after referring to what he had said
to the same effect in Butterfield v. Forrester, said that the judge at the trial
had been right in telling the jury that the mere fact of negligence on the part
of the plaintiff in leaving his donkey on the public highway was no answer to
the action, unless its being there was the immediate cause of the injury and
that if they were of the opinion that it was caused by the fault of the
defendant’s servant in driving too fast, the mere fact of putting the animal
upon the road did not bar the plaintiff of his action. Although the donkey
might have been wrongfully there, still the defendant was bound to go along the
road at such a pace as would be likely to prevent mischief.
[Page 528]
It is rarely, indeed, that in a traffic accident
the facts are so similar to those in a leading case as the facts disclosed by
the evidence in the present matter are to those in Davies v. Mann. It
was, in my opinion, the reckless conduct of the respondent which was the sole
cause of this accident. I would set aside the judgments of the Court of Appeal
and at the trial and direct that judgment be entered dismissing the action and
allowing the appellant’s counterclaim, with costs in all courts.
This is an action and not a reference and it has
not been the practice of this Court to express opinions on questions of law
which are unnecessary for the disposition of the issues in the case before it.
For this reason, I express no opinion as to whether the common law of Ontario, as it affects the liability of the
owner of domestic animals who allows them to stray upon a country highway,
differs from the law of England
as stated in Searle v. Wallbank.
I would allow this appeal and dismiss the action
with costs throughout.
CARTWRIGHT J. (dissenting):—This is an
appeal from a unanimous judgment of the Court of Appeal, affirming the judgment of Moorhouse J. in
favour of the respondent for $5,608.40 damages, and varying the judgment to
provide that the appellant should recover $220 on his counterclaim.
The respondent suffered serious personal
injuries and no complaint is made as to the amount of his total damages which
the learned trial judge assessed at $9,347.34.
On the afternoon of August 2, 1952, the
respondent, accompanied by two passengers, was driving easterly in a Willys
jeep on a county road in the County of Hastings. The road was described as hilly.
Its surface was gravelled. The appellant was the owner of a farm part of which
was on the north and part on the south side of this road; he owned 18 cows and
2 bulls, most or all of which were on the road unattended at the time of the
accident. The appellant’s fields adjoining the highway were fenced but,
according to the weight of the evidence, the fences were inadequate to prevent
cattle straying onto the highway. The jeep came into contact with three of the
cows, one on the front of the jeep and one on each side; two of the cows were
killed.
[Page 529]
The respondent testified that the cow that “came
along” the left side of the jeep “struck where the gas tank is and the weight
of its stomach came out on my left leg.” His evidence continues:
Q. How would it hit you on the knee? A.
There is no door on the jeep, it is all open.
Q. And part of its body came in the door?
A. Yes.
Q. And hit you on the knee? A. Yes, the
pressure.
Q. What did it do to your knee? A. Well,
the doctor said it broke it up into splinters, broke it off.
In the statement of claim the respondent alleged
in part:
He (the plaintiff) was proceeding in a
lawful and prudent manner, having regard to the hilly condition of the road.
While going over a crest of a hill he was suddenly confronted by several head
of cattle belonging to the Defendant, that were trotting towards the jeep.
These cattle were owned by the Defendant but were not under the care and
control of the Defendant, his servants or agents.
4. The Plaintiff stopped his vehicle and
was charged by three or more of the cattle, one of the animals colliding with
the left side of the vehicle causing severe injury to the left leg of the
Defendant, the other animals struck the jeep causing damage to the vehicle.
* * *
7. The Plaintiff states and the facts are
that the injuries sustained by the Plaintiff to his person and the vehicle were
caused by the negligence of the Defendant, in that:—
(1) He knowingly permitted his cattle to be
at large upon the Highway without proper supervision;
(2) He failed to fence in or in the
alternative, he failed to maintain his fences adjoining the roadway in a
reasonable state of repair. The said fences were in a poor and rundown
condition, and totally inadequate to contain cattle;
(3) He had knowledge of the vicious
propensity of cattle that when confronted with a red coloured object, charge
the object. He failed to see that the cattle were kept in an enclosure strong
enough to prevent them charging and attacking persons and property on the
Highway.
(4) The Defendant had negligently left an
opening in the fence through which the cattle were straying on the Highway.
(5) The cattle were being followed by two
bulls who were chasing the cattle, thus constituting a nuisance on the Highway
which was the duty of the Defendant to prevent.
There was no evidence to support the allegations
in sub-paras. (3) and (5) of para. 7, or to suggest that the appellant
had knowledge of a tendency on the part of any of his cattle to run into or
blunder into vehicles or persons on the highway.
[Page 530]
The respondent’s evidence, which appears to have
been accepted by the learned trial judge, was to the effect that he was driving
at a reasonable speed, that as he came over the top of a hill he was confronted
by a number of cattle, that he slowed down to between 10 and 15 miles per hour,
that he passed these cattle without mishap, that he then dropped over a second
and sharper hill and was confronted by the three cows that came in contact with
the jeep, that they were coming towards him “at a fair pace”, that he proceeded
to bring his vehicle to a stop and that just as he was coming to a halt the
three cows struck the jeep.
The learned judge found that from the point at
which the three cows came into the respondent’s vision to the point of impact
was 189 feet. He also found that the appellant’s cattle were allowed to run at
large and graze upon the highway, that this was a usual occurrence and must
have come to the attention of the appellant.
After a careful examination of the relevant
authorities the learned judge summed up his conclusions as follows:
Applying the principles to be deduced from
the aforesaid cases as I interpret them, I find the defendant did owe a duty to
the plaintiff and that he failed in that duty. His cattle were unlawfully upon
a hilly highway traversed by motor vehicles to his knowledge and he ought
reasonably to have anticipated that this would create a dangerous situation.
* * *
The plaintiff was himself negligent in that
under all the circumstances, he was not keeping such a lookout and did not have
his vehicle under such control that he could stop if his way was impeded, as it
was in the depression in the highway. I find the percentage of negligence
attributable to the plaintiff is 40% and to the defendant 60%.
It would seem from the last-quoted passages that
the learned trial judge was of the view that the respondent had not brought his
jeep to a stop at the moment of impact, and that his failure to do so was
negligent and was an effective cause of the accident, the other effective cause
being the existence of a dangerous obstruction to traffic (i.e. the three cows
or the one cow the contact with which caused the respondent’s injury) allowed
by the appellant to be upon the highway in breach of his duty to users of the
highway.
In my view the judgment of the Court of Appeal
in Noble v. Calder correctly
decides that the duties of an owner of cattle whose lands adjoin a public
highway are
[Page 531]
regulated by the common law of England except so
far as that law has been modified by relevant statutes or by-laws. With the
greatest respect to those who entertain a contrary view, I can find no
sufficient reason in the historical differences between the ways in which
highways came into existence in England and in Ontario to warrant the
formulation in the two jurisdictions of different rules of law as to the duty
of the owner of a field abutting a highway. The English decisions reviewed and
approved in Searle v. Wallbank appear
to me to be based not on a supposed right of the owner to let his animals run
at large on the highway but on the absence of any duty to users of the highway
to keep his animals from straying thereon. I think I am right in saying that in
every Ontario case in which such a duty was held to exist there was a
prohibition against permitting unattended animals to be on the highway
contained in either a statute or a by-law.
It is true that the rule affirmed in Searle
v. Wallbank grew up before the advent of fast moving traffic on the
highways and there is much to be said for the view that with the coming of such
traffic a duty which had not hitherto existed should have been imposed upon the
owners of animals. But that view was carefully considered and definitely
rejected by the House of Lords in Searle v. Wallbank. As was pointed out
by Viscount Maugham, the suggested duty would be onerous. The reasons urged in
favour of its imposition would seem to me to have greater force in England than
in Ontario as, if one may take notice of matters set out in Year books and
almanacs, there are far more domestic animals and far more motor vehicles to
the square mile in the former than in the latter.
I take it then that the law of Ontario is the
same as that laid down in Searle v. Wallbank and correctly summarized in
the head-note to that case as follows:
The owner of a field abutting on the
highway is under no prima facie legal obligation to users of the highway so to
keep and maintain his hedges and gates along the highway as to prevent his
animals from straying on to it nor is he under any duty as between himself and
users of the highway to take reasonable care to prevent any of his animals, not
known to be dangerous, from straying on to the highway.
[Page 532]
Accepting this as an accurate statement of the
applicable law, I find myself unable to say that this case is removed from its
operation by the circumstance that the appellant owned a total of twenty
animals all of which frequently strayed onto the highway.
If the proper inference to be drawn from all the
evidence was that the appellant had not merely failed to take any steps to keep
the animals from the highway but had actively placed them thereon, different
considerations might well arise; but it appears to me that what is proved
against the appellant is a case of non-feasance which neither his knowledge nor
his indifference can transform into misfeasance. In my opinion the appeal
succeeds.
Since writing the above I have had the advantage
of reading the reasons of my brother Locke. If I had formed the opinion that
the presence of the cattle on the highway constituted a breach of a legal duty
owed by the appellant to the respondent I would for the reasons given by my
brother Locke have agreed with his conclusion that the appeal should be allowed
on the ground that the negligence of the respondent was the sole effective
cause of the accident.
I would allow the appeal, set aside the
judgments below and direct that judgment be entered dismissing the action and
awarding the appellant $550.00 on his counterclaim, with costs throughout.
The judgment of Fauteux, Abbott and Judson JJ.
was delivered by
JUDSON J.:—The accident which gives rise to this
litigation happened on a country road in the Province of Ontario on a summer
afternoon between the plaintiff, the driver of a motor vehicle, and three cows,
part of a larger herd belonging to the defendant which was grazing on the side
of the road. Both the learned trial judge and the Court of Appeal have found that there was nothing unusual
in the presence of these animals on the highway and that their owner made no
effort to keep them within the boundaries of his property, the fences of which
were in a state of very poor repair. The defendant’s appeal to this Court
raises squarely the question whether an adjoining owner owes a duty of
reasonable care
[Page 533]
to users of the highway to prevent domestic
animals, not known to be dangerous, from straying on to the highway. Searle
v. Wallbank, followed
in Ontario in Noble v. Calder, both
deny the existence of any such duty. The judgment under appeal has found the
defendant, the owner of the animals, partly responsible for this accident, a
distinction having been drawn on the facts between the present case and Noble
v. Calder. I think it desirable now when the matter is in this Court for
the first time to examine further into the nature of the obligation, if any.
There were two reasons implicit in the judgment
in Searle v. Wallbank for the rejection of the duty. The first is based
upon the history of the highways of England, which came into being largely as a
result of dedication by adjoining owners, who gave to the public no more than a
right of passage which had to be exercised subject to the risk of straying
animals. The second is based upon the facts as they existed until the advent of
fast moving traffic. It is put in this way by Maugham L.C., at p. 353:
No facts in my opinion have been
established which would tend to show that farmers and others at some uncertain
date in our lifetime became subject for the first time to an onerous and
undefined duty to cyclists and motorists which never previously existed.
It is beyond dispute that for centuries straying
animals on the highway did not present any risk to slow moving traffic. The
only risk in the situation arose when an animal mansuatae naturae showed
a vicious propensity, and for this the owner was only liable on proof of
scienter.
I am in complete agreement with the reasons of
Roach J.A. in the judgment under appeal when he says that the historical basis
for the rule in Searle v. Wallbank, dependent as it is upon the
peculiarities of highway dedication in England, has never existed in Ontario.
This seems to me to be of the greatest significance when considering the rights
of the public on these highways. The public right of passage on the highways of
Ontario was never subject to the risk of straying animals for the historical
reasons given in Searle v. Wallbank. For the most part the highways of
Ontario did not come into being as a result of dedication by adjoining owners.
They were created when the province
[Page 534]
was surveyed. The fee remained in the Crown and
it is now vested either in the Crown in right of the Province or in the
municipalities. This distinction between the legal position in England, where
the ownership of the fee in the highways still remains in the adjoining owners,
and that in Ontario, where the fee is in the highway authority, was traced in
detail by Boyd C. in Ricketts v. Markdale. How, in these circumstances, can an
adjoining owner acquire any right to permit his animals to stray on the
highway? Against the highway authority, his animals are trespassers. His right
is the same as that of any other member of the public and no higher, namely,
the right of passage for himself and his animals, the right of access to his
property and special rights which are of no significance in this inquiry, such
as the right of purchase when highways are closed and the right to occupy
unopened road allowances. There is therefore no reason for giving adjoining
owners any special rights to permit the straying of animals. This alone is
sufficient to distinguish the law of Ontario from the law of England and to
render the principle stated in Searle v. Wallbank inapplicable here.
The other foundation for the principle of
immunity in favour of the adjoining owner was that until the advent of fast
moving traffic no cause of action could possibly have existed. There was in
fact no real risk worthy of judicial consideration from the mere presence of
straying animals on the highway. There was nothing that called for the
interference of the law in this situation. But does it follow as a consequence
of this that there can be no cause of action today when the facts are entirely
different and when there has been a developing law of negligence for the last
150 years? As was pointed out by the learned editor in 66 L.Q.R. 456, the real
objection to the decision in Searle v. Wallbank is that a conclusion of
fact has hardened into a rule of law when the facts upon which the original
conclusion was based no longer exist:
As long as the conclusion of fact and the
rule of law were not in conflict, this shift from the one to the other passed
unnoticed but now that the “experience of centuries” is no longer valid under
the changed conditions of modern motor traffic it is not surprising that the
law on this point is subject to criticism.
[Page 535]
A rule of law has, therefore, been stated in Sarle
v. Wallbank and followed in Noble v. Calder which has little or no
relation to the facts or needs of the situation and which ignores any theory of
responsibility to the public for conduct which involves foreseeable
consequences of harm. I can think of no logical basis for this immunity and it
can only be based upon a rigid determination to adhere to the rules of the past
in spite of changed conditions which call for the application of rules of
responsibility which have been worked out to meet modern needs. It has always
been assumed that one of the virtues of the common law system is its
flexibility, that it is capable of changing with the times and adapting its
principles to new conditions. There has been conspicuous failure to do this in
this branch of the law and the failure has not passed unnoticed. It has been
criticized in judicial decisions (including the one under appeal), in the texts
and by the commentators.
The anomalous nature of the rule is emphasized
by comparison with the rights and obligations existing between adjoining
owners. In this situation the owner of the animals must keep them upon his land
under control and is liable for trespass if they escape and do such damage as
it is in their nature to commit. The right of action for trespass exists also
in the owner of the soil of a highway if cattle depasture his herbage. An owner
may only drive his animals on to the highway for the purpose of passage and if
he does so he must exercise reasonable care while they are using the highway
for this purpose. By contrast, the rule is said to be one of non-liability if
the animals are permitted to stray. Further, what difference is there between
driving the animals on to the highway and turning them loose on the property
when it must be apparent, as in the present case, that sooner or later they
will be on the highway?
My conclusion is that it is open to this Court
to apply the ordinary rules of negligence to the case of straying animals and
that the principles enunciated in Searle v. Wallbank, dependent as they
are upon historical reasons, which have no relevancy here, and upon a refusal
to recognize a duty now because there had been previously no need of one, offer
no obstacle. The course of judicial decision in Ontario indicates that until
the decision in Noble v. Calder, the principles of Searle v. Wallbank
have never been the determining
[Page 536]
factor. This, I think, can be said with
certainty although it is not always easy to trace a consistent line of
reasoning. The cases have turned largely upon a consideration of local by‑laws
where the highway authority is the municipality, and statutory prohibitions
where the province is the authority. They are fully reviewed both on fact and
law in the reasons of Roach J.A. in the Court of Appeal.
This accident happened on a county road and
there was no municipal by-law prohibiting the straying of animals. In Patterson
v. Fanning, there
was such a by-law and the judgment of Armour C.J.O. was founded on this fact
and led him to the conclusion that the animal was unlawfully at large. The
judgment of Osler J.A., however, was founded on negligence and nothing more,
and he held that there was liability because the damage was such as might reasonably
be expected to follow the negligent act.
I have some difficulty with the deduction of the
learned Chief Justice drawn from Ricketts v. Markdale that, had it not
been for the by-law, the animals would have been lawfully at large upon the
public highway. The Court of Queen’s Bench as early as 1877 in Jack v.
Ontario, Simcoe and Huron R.R. Union Co.,
had denied the right of anyone to have his animals wander at large upon the
highway. Moreover, Ricketts v. Markdale merely held that children had a
right to play upon the highway if there was no general law or by-law against
it. It is difficult to see how a by-law against children playing on the highway
could, in itself, prevent anyone from recovering on behalf of an injured child
against a wrongdoer, or how the conclusion follows that if there is no
prohibitory by-law, animals may be permitted to stray on the highway.
The next two decisions, McMillan v. Wallace and Direct Transport Ltd. v.
Cornell, were
both decided under a section in The Highway Improvement Act which
imposed a penalty upon owners of certain animals who permitted them to run at
large upon the King’s Highway. This was held to involve a statutory prohibition
and the imposition of something very close to absolute liability. In the second
of these two
[Page 537]
cases, the court stated the proposition in
slightly different terms following the decision in Lochgelly Iron and Coal
Co. Ltd. v. M’Mullan, which
held that the breach of the statutory duty was in itself negligence and
entailed liability for damage caused to the plaintiff since the statute in
effect prohibited the presence of the cattle on the highway. In consequence of
these two decisions, The Highway Improvement Act was amended in 1939 and
the amendment is now to be found in R.S.O. 1950, c. 166, s. 86(3), in these
terms:
…this subsection shall not create any
civil liability on the part of the owner of horses, cattle, swine or sheep for
damages caused to the property of others as a result of the horses, cattle,
swine or sheep running at large within the limits of the King’s Highway.
The amendment helps very little in the
clarification of this problem. It appears to leave untouched claims for
personal injury and it is at least arguable whether the section in itself
had ever imposed any civil liability. The liability was imposed in the two
cases because the Courts, using the statute as a guide to the conduct expected
of a keeper of animals, imposed an absolute duty to prevent them from straying,
an imposition which to me seems just as objectionable as the failure to impose
any duty at all. It was held in Noble v. Calder that the 1939 amendment
to The Highway Improvement Act meant a return to the common law of
England as expressed in Searle v. Wallbank. I can gather an intention to
abolish the use of the statutory standard without more to decide the case, but
does it follow that the amendment was meant to introduce the common law of
England as expressed in Searle v. Wallbank? The alternative inference is
that the Courts were left to decide the matter untrammelled by the statutory
prohibition and not that animals were free to stray upon the highway and that
their keepers were under no duty to guard against such straying.
The last case to which I wish to refer is Wyant
v. Welch. This
was a county road accident and there was a by-law declaring it unlawful for any
person to suffer or permit certain animals to run at large on county highways.
The case was tried by a jury and the jury found in answer to two questions that
the defendant did not fail to observe the duty imposed upon him by the by-law
and was not guilty
[Page 538]
of any negligence which caused or contributed to
the accident. The finding of the Court of Appeal was that the by-law did not
contemplate the creation of a cause of action beyond what was given by the
common law but there was no definition of what right of action the common law
did give and there was, in addition, the jury’s finding that there had been no
negligence.
My conclusion is that there is nothing in this
line of authority, with the exception of Noble v. Calder, which holds
that the common law of England as defined in Searle v. Wallbank was ever
the common law of the Province of Ontario. I would dismiss the appeal, not,
however, for the final reason stated in the Court of Appeal, which depended
upon the number of animals involved, but rather because, in my opinion, the
duty rejected in Searle v. Wallbank does exist in the Province of
Ontario. As pointed out by Roach J.A., there can be no difficulty in the
application of the ordinary rules of negligence to the facts in this type of
case and the matter should be left to the tribunal of fact to determine, with
due regard to all the circumstances, including the nature of the highway and
the amount and nature of the traffic that might reasonably be expected to be
upon it, whether or not it would be negligent to allow a domestic animal to be
at large.
The appeal should be dismissed with costs. The
learned trial judge’s apportionment of responsibility has been sustained by the
Court of Appeal and I do not think that this is a case where this Court should
take another view.
Appeal dismissed with costs, Locke and
Cartwright J.J. dissenting.
Solicitors for the defendant, appellant:
Richardson & MacMillan, Toronto.
Solicitors for the plaintiff, respondent:
Pringle & Pringle, Belleville, Ontario.
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