Storry v. Canadian National Ry. Co., [1940] SCR 491

Supreme Court of Canada

Storry v. Canadian National Ry. Co., [1940] S.C.R. 491

Date: 1940-06-29

Edgar A. Storry (Plaintiff) Appellant;

and

Canadian National Railway Company (Defendant) Respondent.

1940: May 30; 1940: June 29.

Present: Duff C.J. and Crocket, Davis, Hudson and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Railways—Motor vehicles—Plaintiff’s motor car stalled on railway track—Plaintiff waving to approaching train and trying to push car off track—Train striking motor car and latter striking plaintiff in act of escaping—Claim against railway company for injury to plaintiff and damage to his car—Questions as to negligence of railway company and of plaintiff—Wrongful withdrawal of case from jury—Power of Court of Appeal in giving judgment on the evidence—Question as to application of s. 48 of Highway Traffic Act, R.S.O., 1937, c. 288.

Plaintiff in his motor car, going easterly, in daylight, while approaching a railway crossing, heard the whistle from defendant’s train coming from the south. He applied his brakes, and the engine of his car stalled but the car kept going and stopped with its rear end over the east side of the railway track. He saw that the train was 1,000 feet or more distant, he alighted, went to the back of his car, waved signals to the train to stop, alternating with attempts to push the car off the track, until the train (which had kept sounding warning whistles) was near (60 or 70 feet away, when plaintiff first realized it was not going to stop, according to his evidence), when he ran to get behind a “wig-wag” signal post on the northeast corner of the crossing. When he had nearly reached the post, he slipped and in falling threw his arm around the post and at that moment his car, being struck and thrown forward by the train, crashed into the post and crushed his arm. He sued defendant railway company for damages for personal injuries and damage to his car.

At trial with a jury, plaintiff was non-suited without submission of his case to the jury. The Court of Appeal for Ontario ([1940] 2 D.L.R. 101) held that there was no evidence that defendant was the cause of plaintiff’s personal injuries; that plaintiff himself was the sole cause; but that, with respect to the claim for damage to the car, plaintiff might be entitled to the verdict of a jury on the questions whether the train could have been stopped and whether it ought to have been stopped before it reached the crossing; and plaintiff was given a right to elect for a new trial limited to that claim, but as he did not so elect his appeal was dismissed. He appealed to this Court.

Held: Plaintiff was entitled to have his claims, both for damage to his car and for personal injuries, submitted to a jury.

Per the Chief Justice, Davis and Taschereau JJ.: It was open to the jury to take the view that the train could have been stopped and that it was negligent not to stop it to avoid collision with the motor car

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on the ground that defendant’s engine driver, seeing plaintiff and his car, his signals and attempts to move the car, had not exercised the reasonable care incumbent upon him to employ in order to avoid unnecessary injury to property and persons on the highway; and the jury might properly have considered that to this negligence was proximately due the emergency which plaintiff said confronted him when he first realized (if the jury accepted his evidence as to when he first realized) that the train was not going to stop. If on these questions of fact the jury found against defendant, then the question of fact would remain for the jury whether plaintiff’s injuries were solely the result of negligent conduct of himself or were, in part at least, caused by the negligence of defendant. As to defendant’s contention that, in view of plaintiff’s direction in running and the way his injuries occurred, his injuries did not follow in the ordinary course of things from its negligence, if there was such—that issue depends upon the answer to the question (which was for the jury) whether or not plaintiff’s conduct when he ran for safety was so unreasonable in the particular circumstances as to take it outside of the category, the ordinary course of things. While remoteness of damage in itself is no question for the jury, issues as to reasonable conduct are questions for the jury.

Where the evidence is such that it should have been submitted to the jury, the power of the Court of Appeal to dismiss the action on the ground that on the whole of the facts in evidence only one reasonable conclusion could be arrived at (Ontario Judicature Act, s. 26) is a power which must be exercised with caution and, generally speaking, only when it is quite clear that the Court of Appeal has all the available evidence before it (Paquin v. Beauclerk, [1906] A.C. 148, at 161; McPhee v. Esquimalt & Nanaimo Ry. Co., 49 Can. S.C.R. 43; Skeate v. Slaters, [1914] 2 K.B. 429).

Sec. 48 of the Highway Traffic Act, R.S.O., 1937, c. 288, has no application to the present case, where the role of the automobile was simply that of a projectile moving under the impulse of a blow from a railway train delivered at a highway crossing.

Per Crocket J.: There was sufficient evidence to go to the jury on the question whether defendant’s engineer could have avoided hitting the motor car by the exercise of due care; and it follows that there was sufficient evidence to leave to the jury upon the further issue as to whether plaintiff’s injuries, which immediately followed, were the direct and natural consequences of the train hitting and throwing the car in the direction in which plaintiff ran; this involves consideration of the question whether plaintiff, when he realized or should have realized that the train would hit the car, could in the existing circumstances have avoided the injuries by exercise of reasonable care; and that was a question peculiarly for the jury.

Per Hudson J.: There was some evidence which might properly have been submitted to the jury as to whether or not defendant’s employees saw or reasonably should have seen plaintiff’s predicament in time to stop the train and avoid the collision, and, this being so, the claims both for damage to the car and for personal injuries should have been submitted; it is a question of fact whether or not plaintiff acted reasonably under the circumstances, and on this he was entitled to have an expression of the jury’s views.

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APPEAL by the plaintiff from the judgment of the Court of Appeal for Ontario[1] dismissing his appeal from the judgment of McFarland J. at trial dismissing his action, which was brought to recover damages for personal injuries and damage to his motor car when it was struck by defendant’s train.

On November 29, 1938, at about ten o’clock a.m., the plaintiff in his motor car, going easterly, was approaching a crossing on defendant’s railway tracks in the village of Stouffville, Ontario, when he heard the whistle from defendant’s train coming from the south. He applied his brakes, and the engine of his motor car stalled but the car continued going and it stopped with its rear end over the east side of the railway track. Plaintiff saw that the train was 1,000 feet or more distant, and he alighted, went to the back of the car, waved signals to the train to stop, alternating with attempts to push the car off the track, until he realized that the train (which had kept sounding warning whistles) was near him (60 or 70 feet away, according to plaintiff’s evidence). The above matters are dealt with in more particularity in the reasons for judgment of the Chief Justice of this Court, now reported, and in the reasons delivered in the Court of Appeal¹. The plaintiff then ran to get behind a “wig-wag” signal post on the northeast corner of the crossing. When he had nearly reached the post he slipped and in falling threw his arm around the post to save himself and at that moment his motor car, being struck and thrown forward by the train, crashed into the post and caught and crushed his arm.

The case was tried before McFarland J. with a jury. At the close of the plaintiff’s case, counsel for the defendant moved for a non-suit and judgment on the motion was reserved. On the completion of the evidence the motion was renewed and was granted, the trial judge holding that the plaintiff had not established a prima facie case sufficient to justify the matter being referred to the jury, and the action was dismissed with costs.

The Court of Appeal held that there was no evidence that the defendant was the cause of the plaintiff’s personal injuries; that the plaintiff was himself the sole cause; but that, with respect to the claim for damage to the motor

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car, it might be that the plaintiff was entitled to have the verdict of a jury on the questions whether the train could have been stopped and whether it ought to have been stopped before it reached the crossing. And the plaintiff was given the right to elect within a fixed time for a new trial limited to that claim; and if he did not so elect, the appeal should be dismissed with costs. The plaintiff did not so elect, and the appeal was dismissed with costs. The plaintiff appealed to this Court.

R.R. McMurtry and H.A.C. Breuls for the appellant.

R.E. Laidlaw K.C. and A.D. McDonald for the respondent.

The judgment of the Chief Justice and Davis and Taschereau JJ. was delivered by

THE CHIEF JUSTICE—I fully agree with the Court of Appeal that the appellant was entitled to have his claim for damages in respect of the loss of his motor car submitted to the jury; in other words, that there was reasonable evidence that the loss of the motor car was due to the negligence of the respondent railway company.

With great respect, I am unable to concur with their view that the trial judge was right in withdrawing from the jury the claim as to personal injuries.

In substance, the view of the Court of Appeal is that the learned trial judge ought to have submitted to the jury the appellant’s claim that the destruction of his automobile, which was struck by the respondents’ train, was the result of the negligence of the servants of the respondents in charge of the train and that consequently he was entitled to recover damages in respect of that negligence from the respondents. The Court of Appeal held that the appellant was entitled to have the jury pass upon the questions “whether the train could have been stopped and whether it ought to have been stopped before it reached the crossing.” If they so found, the appellant would have been entitled to a verdict in respect of the destruction of his motor car, but the Court of Appeal’s view was that, starting from the proposition that the respondents were negligent and that the result of this negligence was the impact of the railway train upon the motor car and the

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throwing of the motor car from the place where it was to the place where it struck the appellant, this negligence was, nevertheless, not the cause of the injury thereby resulting to the appellant but that these injuries were the consequence of the appellant’s own negligence and that the negligence of the respondents in no material respect was a contributing cause in producing them.

It is to be observed that the impact of the train upon the appellant’s automobile had the immediate physical consequence of throwing the automobile to the point where it struck the appellant. The chain of physical occurrences is uninterrupted and, prima facie, the injury to the appellant is the natural and direct result of the impact of the train upon the motor car, in respect of which, on the evidence adduced, it was a question for the jury whether or not the respondents are responsible in law.

This, however, is by no means the whole story. The respondents contend, and the Court of Appeal has held, that by the exercise of the most ordinary care the appellant could have avoided the consequence of the respondents’ negligence and that the appellant’s injuries were solely due to his own negligent and heedless acts. As I think there must be a new trial, I refrain from discussing the facts further than is absolutely necessary in order to make intelligible my view of the case.

The plaintiff is a farmer living two or three miles out of Stouffville. On 29th November, 1938, at about 10 o’clock in the morning he drove to Stouffville in his motor car, entering the village from the west on Main street. This is a paved street running approximately east and west and it crosses, almost at right angles, the respondents’ line of railway from Toronto to Lindsay. Coming along Main street to this crossing from the west there is first a local railway siding, then a vacant strip of land a few feet in width, and then the single track through railway line. Both the siding and the through line are planked on the crossing while the space between them is filled with cinders at about the same level.

As the plaintiff, driving easterly, approached the crossing at a speed of from eight to ten miles per hour, he heard the whistle of a locomotive from the south. He at once applied his brakes, and he says he put them on “pretty full.” He was then to the south of the centre line of the

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paved roadway and about thirty feet west of the westerly rail of the local siding. When the appellant applied his brakes his engine stalled and he did not get it started again. The motor car, however, continued on its way to the siding, across the siding, and the intervening strip and on to the main line. There it stopped, with the front wheels east of the easterly rail of the main line and the rear wheels at or close to that rail. When his car stopped the appellant saw that the train was still 1,000 feet or more distant; he at once alighted, thinking he might be able to push his car off the track. He first went to the back of the car, and with both arms elevated waved a signal to the train to stop. Then, turning to his car, he tried to push it ahead but could not move it, and having again, according to one of the witnesses, signalled the train to stop (the train was due to stop at Stouffville station less than forty yards north of the crossing), he made another and more persistent attempt to get the car over the rail. The train continued whistling—“tooting,” he said, “for him to get off”—and he turned again to signal and did again signal the train to stop. He then realized that the train was coming toward him at a distance of 60 or 70 feet at from 30 to 35 miles an hour and, he says, it was not until then that he knew it was not going to stop. If the jury took the view that the servants of the railway company in charge of the train could have brought the train to a stop and were negligent in not bringing it to a stop in order to avoid collision with the motor car, they would do so on the ground, or they might do so on the ground, that the driver of the locomotive, having the appellant and his car in full view in broad daylight, seeing his signals, observing his two separate attempts to move his car off the railway track, had not, in the management of the train, exercised that reasonable care which it was incumbent upon him to employ in order to avoid unnecessary injury to property and persons on the highway. If this were their view, and if they should accept the appellant’s statement that he first knew they were not going to perform their duty when the train was within 60 or 70 feet of the car, then the issue of fact would remain whether or not the injury which befell the appellant, notwithstanding his attempt to escape, was solely the result

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of his own ineptitude and negligence, or whether the negligence of the railway servants was, in part at least, the cause of it. I am unable to agree that the jury might not properly have considered that the driver of the locomotive acted not only negligently but recklessly in giving no attention to the situation of the appellant and his car, and that to this negligence was proximately due the emergency which the appellant says confronted him when he first realized that the train was not going to stop. The jury in respect of this topic would be entitled to draw all proper inferences from the fact that the respondents did not call the driver of the locomotive as a witness. I think these questions were questions of fact for them. If they answered these questions in the affirmative, then it was still a question of fact for them whether or not the appellant’s subsequent conduct was the sole cause of his injury.

With great respect, I am unable to agree with the view of the Chief Justice of Ontario that the fact the appellant accidentally slipped when running away from the track interrupted the chain of causation. If the jury accepted the appellant’s story that he first realized the train was not going to stop when it was almost upon him, then the point for them to consider was whether in the circumstances, giving to his evidence as to the condition of the planking and the road east and west of the motor car as much weight as they might think proper, the appellant’s injuries were due to the failure on his part to act with that degree of care for his own safety that a person of ordinary prudence placed in like circumstances would have shown. If they took the view that there was no such failure, then the fact that he accidentally slipped could not prejudice his right to recover. Remoteness of damage in itself is, of course, no question for the jury, but issues as to reasonable conduct are such questions. In this case the respondents contend that the appellant’s injuries did not follow in the ordinary course of things from their negligence, if there was such; that issue depends upon the answer to the question whether or not the appellant’s conduct when he ran for safety was so unreasonable in the particular circumstances to to take it outside of the category, the ordinary course of things.

There is another point which requires notice. The Court of Appeal, no doubt, has wider powers than the trial judge.

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Even in a case where it is the duty of the trial judge to submit the case to the jury, the Court of Appeal may be in a position to set aside the verdict and either grant a new trial or give judgment on the ground that on the whole of the facts in evidence only one reasonable conclusion could be arrived at (Ontario Judicature Act, sec. 26). This is not material here, because there being, as I think, evidence which it was the duty of the trial judge to submit to the jury, the action ought not to be dismissed in any view of that evidence, because the power to dismiss the action on this ground where there is evidence for the jury is a power which must be exercised with caution and, generally speaking, only when it is quite clear that the Court of Appeal has all the available evidence before it (Paquin v. Beauclerk[2]; McPhee v. Esquimalt & Nanaimo Ry. Co.[3]; Skeate v. Slaters[4]). In this case, as has already been observed, the respondents did not see fit to produce the driver of the locomotive.

I may add that I think section 48 of the Ontario Highway Traffic Act has no application to a case of this kind where the role of the automobile was simply that of a projectile moving under the impulse of a blow from a railway train delivered at a highway crossing.

The appeal should be allowed; a new trial should be ordered with costs of the appeal to the Court of Appeal and to this Court, the costs of the abortive trial to abide the event of the new trial.

CROCKET J.—I think this appeal should be allowed and the whole action sent back for a new trial, as well in respect of the claim for personal injuries, as in respect of the claim for damage to the plaintiff’s motor car. The judgment of the Appeal Court gave the plaintiff the option of accepting an order for a new trial, limited to the latter claim and taking the risk as to costs, or of having the entire action dismissed with costs. As the plaintiff did not elect to take an order for a new trial so limited, the action was formally dismissed with costs.

That the evidence adduced on the trial was such as to entitle the plaintiff to have his case presented to the jury on the issue as to whether the damage to the motor car

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had been caused in whole or in part by the negligence of the engineer of the defendant’s train in approaching the crossing, seems to me to be quite clear. Indeed the judgment of the Appeal Court in giving the plaintiff the option of accepting a new trial upon that issue can only mean that the learned Appeal Judges were of that opinion themselves. Their decision to dismiss the action entirely in the event of the plaintiff not electing to take an order for a new trial, limited in the manner indicated, can only be maintained upon the ground that they were themselves justified in trying and disposing of that issue upon the printed trial record. It seems to me, with the highest respect, that they were not warranted in so doing. If there was sufficient evidence to go to the jury that the defendant’s engineer could have avoided hitting the motor car by the exercise of due care on his part as the train was approaching the crossing—and it must be taken there was—, it seems to me equally clear that there was also sufficient evidence to leave to the jury upon the further issue as to whether the serious personal injury, which immediately followed, was the direct and natural consequence of the locomotive hitting and throwing the car in the direction in which the plaintiff ran in his attempt to escape injury himself. This, of course, involves consideration of the question as to whether the plaintiff, when he realized or should have realized that the train would hit the car, could in the existing circumstances have avoided the injury by the exercise of reasonable care upon his part. To my mind that was a question peculiarly for a jury, and one which, (I say this also with every respect), the jury, who heard all the witnesses as they gave their evidence, was in a much better position to determine than the learned judges sitting on appeal.

The appellant should have his costs of appeal to the Court of Appeal and to this Court, the costs of the abortive trial to abide the event of the new trial.

HUDSON J.—The plaintiff’s automobile stalled on the defendant’s railway line on a highway crossing. The plaintiff got out and endeavoured to push his automobile across, but his efforts not being at all successful and finding that a train on the defendant’s tracks was rapidly approaching, he abandoned his efforts and ran some 27 feet to a point behind a signal post. At that moment the train arrived,

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struck the automobile and threw it over to the post and there injured the plaintiff. The motor car was wrecked.

The action was brought on for trial before Mr. Justice McFarland and a jury, but the case never was submitted to the jury, Mr. Justice McFarland coming to the conclusion that there was no evidence to support the plaintiff’s claim. He held specifically that there was no negligence on the part of the defendant company in the operating of its train, that is, that all the provisions of the law had been complied with and that the plaintiff himself was solely responsible for the accident.

On appeal, the Court of Appeal directed a new trial limited to the claim in respect of the motor car, holding that the plaintiff’s personal injuries were due to his own negligence.

On reading over the evidence I would not care to disturb the findings of the learned trial judge in respect to the defendant company having observed all the statutory requirements in regard to operation.

The only point on which there may be room for doubt is as to whether or not the defendant’s employees saw, or reasonably should have seen, the plaintiff’s predicament in time to stop the train and avoid the collision. Apparently the learned judges in the Court of Appeal thought that there was some evidence on this point which might properly have been submitted to the jury and it was for that reason that they gave the judgment which they did. With some hesitation, I come to the conclusion that I should not differ from them in this view. On the other hand, once this is admitted, I find it difficult to agree with the views of the Court of Appeal in respect to the personal injuries. The facts are extraordinary and anyone might very well come to the same conclusion as did the learned judges below. Still it is a question of fact whether or not the plaintiff acted reasonably under the circumstances and on this he was entitled to have an expression of the jury’s views.

I think the judgment appealed from should be set aside and a new trial directed—costs to abide the event.

Appeal allowed with costs; new trial ordered.

Solicitors for the appellant: Weldon, Breuls & Arnold.

Solicitor for the respondent: R.E. Laidlaw.