Auld et al. v. Wallace’s Moving Storage Ltd. et al., [1975] 2 SCR 820

Supreme Court of Canada

Auld et al. v. Wallace’s Moving Storage Ltd. et al., [1975] 2 S.C.R. 820

Date: 1974-10-01

Robert William Auld and Mae Gertrude Auld (Plaintiffs) Appellants;

and

Wallace’s Moving & Storage Limited and Donald Spagnoletti (Defendants) Respondents;

and

James Landry and Eastern Automobile Company Limited (Third Parties) Respondents.

1974: June 26, 27; 1974: October 1.

Present: Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Appeal—Jury—Credibility—Function of jury—Whether verdict contrary to weight of evidence—Test to be applied by appellate court.

Trial—Denial of motion to take case from jury—Inflammatory terms—Adequacy of Judge’s direction.

The three vehicles involved were being driven east on the Trans-Canada Highway near Monastery, N.S., between 1 p.m. and 2 p.m. on a clear, dry Sunday afternoon. An accident occurred when the truck driven by Spagnoletti struck the rear of the car owned and driven by Auld. The third car driven by Landry was part of the res gestae but not involved in the actual collision. The evidence at trial was confusing and contradictory, involving three completely different, yet corroborated, versions by the three drivers. The jury found Spagnoletti 100 per cent at fault and judgment was rendered accordingly. The Appeal Division came to the conclusion that the jury’s findings should be set aside as being against the weight of the evidence.

Held: The appeal should be allowed with costs.

Per Ritchie J.: The governing consideration rests upon an assessment of the credibility of witnesses. It was the function of the jury to weigh that evidence and there were none of the very exceptional circumstances which sometimes exist and entitle an appellate Court to undertake that function.

[Page 821]

Per Pigeon, Dickson, Beetz and de Grandpré JJ.: The test to be applied in a matter of this kind allowed the jury to accept the uncorroborated testimonies of Mr. and Mrs. Auld, especially since the evidence as a whole was confusing and contradictory. Credibility is essentially the domain of the jury. A jury verdict should not scrutinized with a magnifying glass but should be applied reasonably if the entire picture is clear.

There was no reason to interfere with the trial judge’s decision, affirmed in the Court of Appeal, to deny the defendants’ motion that the case be taken from the jury because of what counsel referred to as “inflammatory terms”.

[McCannell v. McLean, [1937] S.C.R. 341; Dale v. Toronto R. Co. (1915), 24 D.L.R. 413 referred to]

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1] allowing an appeal from a judgment at trial of Bissett J. with a jury. Appeal allowed with costs.

J.M. Davidson, and R. Parker, for the plaintiffs, appellants.

D.R. Chipman, Q.C., for the defendants, respondents.

W.J. Grant, Q.C., and C.A. Beckett, for the third-parties, respondents.

RITCHIE J.—This was indeed a case where, as Mr. Justice Cooper observed in the course of his reasons for judgment: “The evidence as to how the accident happened can only be described as confusing and contradictory.”

In my opinion the governing consideration in determining liability here rests upon an assessment of the credibility of the witnesses. The members of the jury obviously believed the evidence of the appellants notwithstanding the fact that it conflicted in many important particulars with the evidence of others, but it was their function to weigh that evidence and, with the greatest respect for the views expressed in the Appeal Division, I cannot find in this case the

[Page 822]

kind of very exceptional circumstances which sometimes exist entitling an appellate court to undertake that function.

I sympathize with the conclusion reached by the Appeal Division and it is one which I might well have reached had I been sitting on the jury; but handicapped by the great disadvantage of not having seen and heard the witnesses, I am unable to substitute my assessment of their credibility for that of the jury.

For these reasons I would dispose of this appeal in the manner proposed by my brother de Grandpré.

The judgement of Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by

DE GRANDPRÉ J.—As a result of a motor car accident, the following actions were commenced:

Mr. and Mrs. Auld against Wallace and Spagnoletti with Landry and Eastern Automobile as third parties; Wallace also entered a counterclaim.

Webb against Auld, Landry and Eastern Automobile with Wallace and Spagnoletti as third parties.

OSF Industries against Auld, Landry, Eastern Automobile with Wallace and Spagnoletti as third parties.

The Auld case was set for trial before a judge and jury in Pictou and the parties agreed that the determination of liability by the jury (subject to any appeal) would be binding on all of them.

To bring the problem before this Court, leave to appeal, where needed, was granted by the Appeal Division of the Supreme Court of Nova Scotia.

The main point in issue is thus the determination of the liability for an accident where a large trailer truck, 56 feet in length, belonging to Wallace and driven by Spagnoletti, struck the rear of a passenger car owned and driven by Auld. A third motor car belonging to Eastern Automobile and driven by Landry, although not physically involved in any impact, was from the

[Page 823]

outset considered part and parcel of the res gestae for reasons that will appear shortly.

All three motor cars were being driven from west to east, that is from Antigonish to Cape Breton on Trans-Canada Highway (No. 104) near Monastery. It was between 1 and 2 p.m. on March 1, 1970, a Sunday. The weather was nice and the pavement dry.

The accident occurred near the eastern end of a bridge having some 315 feet in length and 32 feet 4 inches in width between concrete curbs. On the west side of the river, the road goes down into the valley for more than half a mile and the grade for the last 2000 feet is approximately five per cent. For one driving east, there is a good visibility west of the bridge for approximately 2000 feet. From the east side of the bridge, the road goes up the other side of the valley and there is a similar grade of five per cent for approximately 2000 feet. Soon after the road leaves the bridge on the east side, it curves slightly to the left for approximately 500 feet. To complete the basic picture, two other facts should be mentioned:

1. both east and west of the bridge, the paved portion of the highway is wider, the paved shoulders being much more substantial off the bridge than on the bridge;

2. the day before the accident with which we are here concerned, another accident had taken place on the bridge as a result of which some 20 feet of the railing had been torn off near the eastern end of the bridge on the south side, namely the right hand side in the direction followed by the three motor cars.

Three completely different versions of the accident were given in evidence by the three drivers:

1. Auld told the jury that at all material time he had been proceeding well below the speed limit on his own side of the road when as he was approaching the eastern end of the bridge

[Page 824]

he was overtaken by Landry and immediately afterwards struck on the rear left side by the truck which sent his car spinning around; the evidence discloses that after the accident Auld’s car was more or less at the east end of the bridge, looking back towards the west, partly on the westbound lane partly on the north paved shoulder;

2. Landry, for his part, testified that he at no time overtook Auld and that the impact between Auld’s car and the trailer truck occurred behind him, as a result of which Auld’s car was seen practically overtaking Landry’s automobile in the westbound lane proceeding backwards whereas the truck left the bridge behind Landry through the opening created by the accident of the previous day; Landry maintains that he was well on his side of the road and proceeding at a speed in the neighbourhood of 50 miles per hour;

3. Spagnoletti, the truck driver, stated that before he entered the bridge when driving at about 50 miles per hour, he saw the two cars almost half a mile ahead of him; he was getting closer to the bridge when he noticed what he described in his own words:

When I started getting closer to the bridge, I noticed the one car stop and I was starting to come up close behind and so I tried to stop my vehicle. But it takes quite a long distance to stop that vehicle and I didn’t think it would stop in time, in my opinion.

The second car was then stopped or nearly stopped behind the first one; when Spagnoletti made that decision to overtake them, the two cars were 400 or 500 feet in front of him; then Auld slowly swung out to overtake Landry at which time the truck itself was already occupying the left lane for traffic proceeding from west to east; it was not possible to avoid an accident and, although the brakes were applied to reduce the speed to 30 miles per hour, the truck crashed into the rear

[Page 825]

of Auld’s car and finally landed on the east bank of the river below the bridge having gone around the front of Landry’s automobile.

The passengers in the two automobiles supported their respective drivers but Webb, the companion of Spagnoletti in the truck, did not see the accident being asleep at the time. However, Spagnoletti’s evidence (except as to speed) was substantially corroborated by an independent witness, one Snow, and to a lesser extent by the two companions of that witness.

Snow had stopped his small truck on the north shoulder west of the bridge, had crossed the roadway on foot and had walked a few feet on the south concrete curb in an easterly direction towards the opening in the railing of the bridge when he heard and saw the motor cars and the accident. At that time, his companions were seated in the truck. Two points in Snow’s evidence should be underlined:

1. Landry would have been stopped directly across from the hole in the railing of the bridge;

2. the speed of the truck at impact was around 50 or 55 miles per hour.

With this evidence in the record, the jury came to the following conclusion:

1. Was there any negligence on the part of Spagnoletti which caused or contributed to the damages?

“Yes”

If so, of what did such consist?

1. Inexperience.

2. Apparent lack of control of his vehicle.

3. Failure to signify intention to pass by blowing his horn.

2. Was there any negligence on the part of Landry which caused or contributed to the damages?

“No”

If so, of what did such consist?

3. Was there any negligence on the part of Auld which caused or contributed to the damages?

[Page 826]

“No”

If so, of what did such consist?

4. If your answer to more than one of questions 1, 2 and 3 is “yes”, is it possible for you to apportion the percentage of fault of each of the persons referred to in those questions that you answered “yes”?

“Yes”

5. If your answer to question 4 is “yes”, what percentage of fault do you attribute to each?

(a) Spagnoletti	—	100%
(b) Landry	—	0%
(c) Auld	—	0%

Judgment was rendered in accordance with the verdict but the Appeal Division of the Supreme Court of Nova Scotia came to the conclusion that the jury’s findings cannot stand because “they are against the weight of evidence and such that no jury reviewing the evidence as a whole and acting judicially could have reached”. Of course, the Court of Appeal explicity adopted the test laid down by Duff C.J. in McCannell v. McLean[2].

The question to be determined by this Court is whether or not the Appeal Division of the Supreme Court of Nova Scotia was right in thus setting aside the jury’s verdict. In my opinion, the answer must be in the negative.

Cooper J., speaking for the Court, prefaced his detailed examination of the evidence with the statement: “The evidence as to how the accident happened can only be described as confusing and contradictory”. This review of the evidence undertaken by Cooper J. was concluded with the following:

The jury in answering question three must have accepted the testimony of Mr. and Mrs. Auld as to how the accident happened. Could they have done so in view of the evidence as a whole and if they acted judicially? In the first place, one thing that seems established is that there were only two motor vehicles on the bridge immediately prior to the accident. One was the Auld vehicle and the other the Landry vehi-

[Page 827]

cle. The evidence of Snow, his wife, and Spagnoletti is that it was the second in line of the two vehicles that was struck. In other words, the Landry vehicle was at all relevant times ahead of the Auld vehicle. The evidence of the Landrys was to the same effect. There is no support in any of the evidence of any of the witnesses other than Mr. and Mrs. Auld that the Landry vehicle has been behind the Auld vehicle and had passed the Auld vehicle.

If the Auld version of the accident is correct, the impact occurred in the right-hand traffic lane for vehicles proceeding from west to east.

The evidence of Mr. Snow and his wife and Spagnoletti is that the impact occurred in the left-hand lane. In fact, no witness supports the Auld version in this respect. The Landrys, father and son, did not see the impact, but saw the Auld vehicle in the left-hand lane. Their evidence as to the car proceeding in reverse direction at the speed it must have been going if their testimony is correct is clearly incredible, but their evidence as to the Auld vehicle being in the left-hand lane is consistent with the evidence of the other witnesses. Moreover, Mr. Auld said that upon impact his car ‘took a right-hand turn around and when it swung, the car was facing Antigonish with it stopped’ and again in answer to the question, ‘You’re saying your car spun to the right?’ he said ‘spun to the right’. If the Auld vehicle was in its right-hand lane upon impact as Mr. Auld said it was, it seems almost impossible for it to have stayed on the road and have ended up as Mr. Auld said it did.

Surely, the test to be applied in a matter of this kind allowed the jury to accept the uncorroborated testimonies of Mr. and Mrs. Auld, especially in a matter where the evidence as a whole is “confusing and contradictory”. Credibility is essentially the domain of the jury. This in itself should dispose of the appeal and bring us to the conclusion that the verdict of the jury should be restored.

However, I would like to add a few words:

1. If the Auld’s vehicle was in its right hand lane upon impact, it is quite possible for it to have spun around and to have ended up in its left-hand lane facing in the other direction;

[Page 828]

the width of the pavement at the scene of the accident is certainly substantial enough to accommodate a Chevrolet motor car having a maximum length of 17½ feet;

2. It was physically impossible for the accident to have occurred in the fashion described by Spagnoletti and Snow considering that, according to them, Landry’s car was stopped opposite the hole in the railing created by the accident of the previous day and that Spagnoletti’s truck left the bridge through that opening; Landry’s car would then have been very much involved physically in the accident;

3. On the pure “weight” aspect of the evidence, four witnesses have stated that Landry never stopped on the bridge as opposed to four who stated that such stopping took place.

I cannot but repeat with respect that the jury acting judicially could have reached the verdict expressed in their answers.

Counsel for respondents has argued very strongly that by stating that Spagnoletti had been negligent for his “failure to signify intention to pass by blowing his horn”, the jury had accepted the version of the accident offered by the truck driver and the independent witness Snow. I am unable to accede to this proposition. Whatever was meant by that answer (with imagination, it is possible to give it many meanings), the proper approach is to look at the verdict as a whole and to determine what conclusions were truly reached by the jury. In the present instance, it is clear that they meant to put all of the blame on Spagnoletti and that, in their view, neither Auld nor Landry had contributed to the accident. As has been mentioned repeatedly, a jury’s verdict should not be scrutinized with a magnifying glass but should be applied reasonably if the entire picture is clear. In the present case, I have no doubt that it is.

The defendants respondents have submitted that should this Court come to the conclusion that on its face the jury’s verdict should stand, a new trial should nevertheless be ordered

[Page 829]

because of the three submissions made to the Court of Appeal but not accepted by that Court.

In his address to the jury, counsel for Landry said:

There is a story told about long ago, a man on his way to Samaria who had a problem along the road and some kind man came by and helped him and it comes to us as the story of the Good Samaritan, that we all know—and we all know well. But today, in New York and the major cities such as Montreal and, I presume, in Toronto, there is the doctrine of non-involvement—’Let thy brother perish by the side of the road but don’t bother me—don’t get me involved—don’t bother me with your troubles—you look after your own and don’t bother me.’

James Landry, at his own personal risk, because there was fire already started there, helped haul Webb out of the cab to safety and I think that photograph very graphically shows the wreckage of that cab. And he helped haul him out to safety, so that he could get back to Ontario to sue him; put out the flames so that the Wallace van wouldn’t be destroyed or the Ontario fixture company wouldn’t have their material burnt and, as it turned out, so they could later sue him and bring him into this court today.

Counsel for Spagnoletti and the Storage Company forthwith made a motion that the case be taken away from the jury because of what he described as inflammatory terms. This motion was denied by the trial judge and this judgment was affirmed on appeal, the court below relying in particular upon Dale v. Toronto R. Co.[3] I do not see any reason to come to a different conclusion.

A second ground was the rejection by the trial judge of the evidence of constable Dwyer with respect to a conversation with Mr. Auld. Here again the Court of Appeal agreed with the trial judge and I am disposed to confirm on the simple ground that the evidence of the constable, which had been submitted to the trial judge on a voir dire, could not have substantially

[Page 830]

modified the picture so that no substantial wrong or miscarriage of justice was thereby occasioned.

As to the alleged misdirection of the jury on the law, particularly because the trial judge did not refer explicitly to the Motor Vehicle Act, I do not see that there was such obligation on his part. The Court of Appeal underlined that, reading the charge as a whole, the jury were clearly told all they needed to know about the law.

On the whole, I would maintain the appeal, set aside the rule of the Appeal Division of the Supreme Court of Nova Scotia, dated October 9, 1973, and reinstate the order of the Trial Division, dated May 11, 1972, with costs throughout.

Appeal allowed with costs.

Solicitors for the plaintiffs, appellants: T. Robert Parker, Pictou.

Solicitor for the defendants, respondents: David R. Chipman, Halifax.

Solicitors for the third parties, respondents: William J. Grant, Truro.