Stewart et al. v. Routhier, [1975] 1 SCR 566

Supreme Court of Canada

Stewart et al. v. Routhier, [1975] 1 S.C.R. 566

Date: 1974-01-22

Janet Elizabeth Stewart, Administratrix of the Estate of Judy Ellen Kim

and

Janet Elizabeth Stewart, Administratrix of the Estate of Han Young Kim

and

Anthony Young Kim, an infant by his next friend, Janet Elizabeth Stewart Appellants;

and

Charles Routhier and Antoinette Routhier Respondents.

1973: October 9; 1974: January 22.

Present: Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Negligence—Occupier’s liability—Private level crossing—Unusual danger—Standard of care of owner of motel—Access road to motel.

The late Han Young Kim was driving from London, Ontario to Halifax, Nova Scotia with his wife, infant son and brother-in-law. At around 7.30 a.m. on June 25, 1969, he decided to make use of the respondents’ motel facilities and turned off the highway onto the private roadway leading to the motel. The motor vehicle in which the party were travelling was proceeding over this private roadway at a slow rate of speed. At the point at which the main railway line from Moncton to Montreal crossed the roadway a railway locomotive struck the right rear corner of the motor vehicle, the driver Han Young Kim was killed instantly, his wife, Judy Ellen Kim, died within an hour, the infant was very seriously injured and the brother‑in‑law received minor injuries. The signs erected to warn motorists of the level crossing were either badly placed or obscured by foliage and did not give adequate warning of the unusual danger presented at this main line level crossing.

Held (Ritchie J. dissenting): The appeal should be allowed.

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Per Spence, Pigeon, Laskin and Dickson JJ.: The occupier had failed in his duty to give adequate warning of a most unusual danger and is accordingly liable. Charles Routhier was the lessee of the private crossing and the judgment should be against him only. The driver of the car was negligent in failing to bring the vehicle to a complete stop before entering the crossing and in the circumstances the fault should be apportioned 25 per cent to the driver and 75 per cent to the occupier.

Per Ritchie J. (dissenting): It was in my view the failure of the driver of the car to stop after he had actual notice of the crossing that caused the collision. I am unable to detect any error in principle or manifest misinterpretation of the evidence which would justify a departure from the general practice of this Court not to interfere with concurrent findings of fact in two provincial courts.

[Indermaur v. Dames (1866), L.R. 1 C.P. 274 affd. (1867), L.R. 2 C.P. 311; Morton v. William Dixon, Ltd., [1909] S.C. 807; Paris v. Stetney Borough Council, [1951] 1 All E.R. 42; Noddin v. Laskey, [1956] S.C.R. 577 referred to.]

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], affirming a judgment of Pichette J., in part, dismissing an action for damages. Appeal allowed with costs, Ritchie J. dissenting.

E.A. Cherniak and M.P. Downs, for the appellants.

J.E. Murphy, Q.C., and H.B. Trites, Q.C., for the respondents.

The judgment of Spence, Pigeon, Laskin and Dickson JJ. was delivered by

RITCHIE J. (dissenting)—This is an appeal from a judgment of the Appeal Division of the Supreme Court of New Brunswick affirming the judgment rendered at trial by Mr. Justice Pichette and dismissing the appellants’ claim arising out of a collision between a Volkswagen automobile owned and operated by the late Han Young Kim and a C.N.R. freight train, which occurred at 7: 45 a.m. on June 25, 1969, at a point where the railway line crosses a private road leading to a motel, owned and operated by

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the respondents, near New Mills in Restigouche County, New Brunswick. Mr. Kim was killed in the accident, his wife died shortly afterwards as a result of injuries which she had received, their infant child suffered serious injury and John Coe, who was the only other passenger, was injured to a lesser degree.

The private road in question is approximately 18 feet in width and stretches from the main highway (No. 11) for a distance of 525 feet to the respondents’ motel.

At a point 125 feet from the railway tracks on the easterly side of the road there was a sign, erected by the respondents, reading “R.R. CROSSING”. There is some dispute as to the height of this sign but there is no doubt that it was placed at or just before a point where the road veers to the left westwardly and proceeds down a 15-foot grade to the railway crossing. The evidence of John Coe, who was the only survivor of the accident except the infant child, was that at the time when it started down this slope the Kim vehicle had reduced its speed to 10 miles an hour and continued to slacken speed so that it was almost stationary when it reached the railway tracks. This evidence is as follows:

Q. Do you know at what speed you were travelling at as you started down the hill?

A. I would say it was less than 10 m.p.h.

Q. Now when were you first aware of the railway tracks and the crossing?

A. When we were on the track that is the first time I noticed them—that we were on them.

And later in answer to a question by the trial judge:

Q. Did the driver of the car stop at all or hesitate on the crossing, or did he just carry on?

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A. I would say that when the front end of the car was on the crossing we were almost at a dead stop, but not quite; maybe may have been going between 1 and 5 m.p.h. At no time did he make a complete stop. On the other hand the speed did vary from reaching the top of the hill to the bottom; we were going faster at the top; he must have applied the brake or let up on his gas, because we began going slower.

The condition of the road between the top of the hill and the railway crossing is described in the reasons for judgment delivered by Mr. Justice Hughes on behalf of the Appeal Division in the following terms:

At the sign the roadway bends sharply to the left and slopes downward on a 15% gradient for a distance of about 114 feet, then for 10 feet it is level until it meets a private railway crossing on the main line of the Canadian National Railway Company running between Campbellton and Moncton. Between the bend in the roadway and a point 40 to 50 feet from the crossing the roadway is cut through a bank on which bushes, shrubs and a few trees obscure to some extent a driver’s view of the railway crossing. Fifteen to 20 feet southerly from the crossing there was another sign on the easterly side of the road facing southerly which read “PRIVATE CROSSING PERSONS USING THIS CROSSING DO SO AT THEIR OWN RISK”. This sign was posted and maintained by the Canadian National Railway Company but due to weathering it is at least doubtful if it was clearly legible for a distance of more than 50 feet. A series of photographs taken on the day of the accident by Gordon E. Campbell, a claims agent for the Railway Company, from a point 37 feet southerly from the crossing shows that there was an unobstructed view from that point of the tracks for a distance of 700 to 800 feet in an easterly direction.

It was contended on behalf of the appellants that the visibility on the morning in question was so poor as to make it difficult to distinguish the signs and to obscure any view of the tracks from an approaching motorist. In this regard I am very considerably influenced by the finding

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made by the learned trial judge which was undisturbed in the Appeal Division and which reads as follows:

Counsel for the Plaintiffs have also alleged poor visibility on the morning of the accident. It would be, if that had been the case, one more reason for the late Han Young Kim to stop at the railway crossing before attempting to cross it. But I am not satisfied that the visibility was so poor. ‘It had been raining in the evening but not—it was clouded over and not raining: it was rather dark but it was daylight’. (John C. Coe, transc. p. 89). Philip LeBlanc, who was a diesel helper on the train, testified that as the train approached the Bonaventure crossing he saw the vehicle which eventually was involved in the accident and that when he first saw it it was approximately 100 feet from the crossing and that immediately the train was put on emergency… So, in my opinion, visibility had nothing to do with the accident.

Counsel for the Plaintiffs also allege that there was a lack of visibility to the east due to a bank with bushes and grass on top of it. This is one more reason why the late Han Young Kim should have been more careful. But I am not satisfied that this was a blind crossing, as Counsel for the Plaintiffs would want me to find.

It is quite true that the view of the railway tracks to the eastward of the crossing was obscured by a bank with bushes for some distance until a car approaching the railway tracks had reached a point about 37 feet from them and that Mr. LeBlanc’s view from the engine of the train was not impeded by this bank owing to the height of the engine. The evidence which was believed by the learned trial judge, however, appears to me to establish that as Mr. Kim came to the sign at the top of the hill he started to decelerate until his vehicle was very nearly stopped before he reached the tracks and that as the train approached closer to the crossing he accelerated in the hope of getting over ahead of it. This is made apparent from the evidence of Coe where he is asked:

Q. Now as you saw that train what happened from then on?

[Page 571]

A. My brother-in-law accelerated, so I assume he saw the train too, and we had almost made it across the track when the train hit us.

It is to be remembered that as the Kim vehicle came down the hill at between 10 and 5 miles per hour, the freight train was approaching from the east at 50 to 55 miles per hour with its headlights on, its siren blowing and its bell ringing and that for at least 37 feet before the crossing the tracks to the eastward were clearly visible for at least 600 feet. I agree with the learned trial judge when he says of Mr. Coe:

It is almost impossible to believe that this witness did not hear either the bell or the siren of the diesel locomotive which were both functioning prior to the train arriving at the crossing.

It is to be noted also that although it was shown that the motel did an active business and that the road was used by many guests during the summer months, there was evidence of only one other accident having occurred at the crossing.

I am, however, in agreement with the learned trial judge and the Appeal Division in finding that Han Young Kim and his party were invitees and that the respondents owed them a duty to warn them against any unusual danger that they might encounter on the private road. I think also that the railway crossing at the foot of the hill might well be considered an unusual danger to anyone proceeding along the road at a rate which would make it difficult to stop between first seeing it and reaching it, but to a driver like Kim who had already slowed to 10 miles per hour when he passed the sign at the top of the hill, no such difficulty or danger presented itself. Under the circumstances of the present case I do not think that any inadequacy that there may have been in the sign which was placed just to the south of the hill was shown to have caused or contributed to the accident, because whether he saw the sign or not, Kim had slowed down to such a rate that he had

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actual notice of the crossing itself in time to have stopped with ease before entering upon it and therefore the result which the sign was designed to achieve was in fact achieved in this case. Like the learned trial judge, I am not satisfied that the appellants have discharged the burden which they assumed under the pleadings of proving by a preponderance of evidence that there was a causal connection between inadequate warning and the accident.

As Han Young Kim was killed, no man can say whether it was the presence of the “R.R. CROSSING” sign or the view which he had of the crossing itself from the top of the hill which caused him to slow down, but there must have been some reason for his marked reduction in speed from the time he passed the sign until he reached the tracks themselves.

In the course of the reasons for judgment which he has prepared for delivery in this case, my brother Spence recognizes that the crossing was clearly visible to Kim in time for him to stop his vehicle before proceeding onto it and that there was also a sign, which was there to be seen, erected by the G.N. Railways on the east side of the road about 10 or 15 feet from the crossing warning that persons using it did so at their own risk. My brother Spence would attribute 25 per cent of the fault for the accident to the driver for his failure to stop sooner and I think that the main differences between us are that (i) I would not disturb the finding of the trial judge that “visibility had nothing to do with the accident” and (ii) in my view it was not the condition of the sign but the failure of Kim to stop after he had actual notice of the crossing which caused the collision. Had he stopped and looked to his right before entering the crossing, he would have inevitably seen a train approaching at 50 miles an hour, ringing its bell and sounding its whistle. There is no evidence that Kim failed to see the sign and his actions as he crested the hill strongly indicate that he appreciated the desirability of slowing down. There is no explanation as to why he accelerat-

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ed when he reached the tracks in an effort to get over them ahead of the train.

While I understand that the learned trial judge based his decision to a considerable extent upon the photographs taken of the scene on the day after the accident, and I appreciate the fact that the inferences to be drawn from these photographs can be as well assessed by a court of appeal as by a trial court, it is nonetheless quite apparent to me that Mr. Justice Pichette was strongly influenced by the unfavourable impression which he formed of some of the appellants’ witnesses and particularly of the testimony of the witness Coe with respect to visibility. The language employed by Lord Sumner in S.S. Hontestroom v. S.S. Sagaporack[2] approved by this Court in Prudential Trust Co. Ltd. v. Forseth[3], at p. 216, appears to me to be particularly apt to the circumstances where he said at pp. 47-48:

If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.

See also Semanczuk v. Semanczyk[4], at p. 667.

In the present case the Appeal Division did not disturb any of the findings of the trial judge and I am unable to detect any error in principle or manifest misinterpretation of the evidence which would justify a departure from the general practice of this Court not to interfere with concurrent findings of fact in two provincial courts.

For all these reasons, and with the greatest respect for those who may entertain a different view, I would dismiss this appeal with costs.

[Page 574]

SPENCE J.—This is an appeal from the judgment of the Supreme Court of New Brunswick, Appeal Division, pronounced on March 9, 1972. By that judgment, the Appeal Division had dismissed an appeal from the judgment of Pichette J. pronounced on December 21, 1971. The learned trial judge had dismissed the action of the plaintiff in all her three capacities but had fixed the damages in the event of other disposition on appeal.

Although the notice of appeal to the Appeal Division asks that the damages as fixed by the learned trial judge should be increased, the reasons for judgment of the Appeal Division make no reference to the quantum of such damages and the appellants in their factum upon this appeal state that the appeal is on the issue of liability alone.

The late Han Young Kim, a professor at the University of Western Ontario, in London, Ontario, was driving a Volkswagen van from London to Halifax, having been engaged to give a summer course at Dalhousie University. With him as passengers were his wife, the late Judy Ellen Kim, his infant son, Anthony Young Kim, who had been born on December 5, 1967, and his brother-in-law John Coe, then seventeen years and six months old.

On the morning of June 25, 1969, they left Mack’s Motel, near Dalhousie, New Brunswick, at something before 7:30 a.m. The late Mrs. Kim had been unwell during the night and the group determined that she would feel better and that they would be making some progress if they commenced driving toward Halifax at once and had breakfast later. The late Han Young Kim drove the vehicle easterly on Highway 11 and at a point east of Dalhousie, at what would appear to be about 7:40 a.m. on this morning, came upon two signs, the larger of which faced east and which therefore could not be read by the driver, the words of which were: “BONAVENTURE MOTEL, CABINS, DINING ROOM” and an arrow with the words “500

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feet” imprinted thereon pointing northward. There was, in addition, a sign on the south side of the road facing east which, of course, could be read by the occupants of the van. That sign has since disappeared but it is admitted by the defendant Routhier that its words were “DINING ROOM OPENS AT 8:00 A.M.” or to like effect.

The late Han Young Kim immediately turned to his left into the roadway indicated by these signs and drove northward on this gravel road which was about thirteen feet wide. He came to a point about 390 feet north of Highway 11 and there the road bends rather sharply to the left. He followed around that bend and proceeded down a slope in the road of about fifteen per cent reaching a railroad track. His speed as he drove down the slope was not more than ten miles per hour and when he reached the railroad track he was proceeding at something between one and five miles per hour; in short, very slowly indeed. I am here summarizing the evidence of the said John Coe who sat on the right-hand side of the front seat; the late Mrs. Kim sat immediately behind John Coe, and the baby Anthony was to her left.

When the front wheels of the vehicle were actually on the rails of the railway crossing, Coe, for the first time, realized that a locomotive was bearing down on them from the east. It would appear that the late Han Young Kim made the same observation at the same second, as he attempted to accelerate the van but the locomotive struck the right rear corner of it. The impact, of course, was terrific; the van was well nigh demolished. The late Han Young Kim was killed instantly, the late Judy Ellen Kim received such injuries as caused her death within an hour, the baby was very seriously injured, and John Coe received rather minor injuries.

The Bonaventure Motel at which the group sought breakfast was owned and had been operated since 1957 by the defendant Charles Routhier and his wife Antoinette Routhier. Routhier owned the land and possessed a lease of a right of way across the railroad tracks of

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the Canadian National Railways. It was, of course, necessary for the Routhiers, their servants, tradesmen and all guests at their motel for either meals or sleeping accommodation to drive across this private railroad crossing in order to reach the buildings which composed the motel enterprise. That enterprise was one of considerable size and the defendants have both agreed that on many occasions more than fifty people would be given sleeping accommodation, and that in addition to those overnight visitors they often served dinner parties of fifty or more people, so that the road, although a private road, must be considered to be a rather busy one. The railway line of the C.N.R. is equally busy.

At trial, there was much debate as to the number of trains which pass over this private crossing and I think the evidence may be conservatively summarized as being that at least four passenger trains and four freight trains did so during the course of the day. The railway line was the main line from Halifax and Moncton to Montreal.

The gravelled thirteen foot private roadway passed through uncultivated land on leaving the main highway, some of which was cleared but much of which was heavily bushed. A northbound driver thereon should have had his first notice of the existence of the railroad crossing just at the point of the curve where, on the right hand side of the road, a sign stood. This sign was white and had on it in red letters these words “R.R. CROSSING”. I shall have to make much further reference to this sign hereafter. When the driver at that point rounded the curve in the private road, he faced the Bonaventure Motel, which was some two hundred feet further north and which stretched right across the centre of his vision. The building was painted white with red trim and all witnesses agree it provided a most attractive vista. About 124 feet in front of him, as he rounded the curve, the railway line crossed this private road. There were at the time of the accident, on the right-hand side of the private road, a bank and under-

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brush. The witness Campbell, who, acting as claims adjuster for the Canadian National Railways, took photographs, to which reference shall be made hereafter, on the very day of the accident, agreed that the bank down the right hand side of the private road was about four feet high, running to a point about 42 feet south of the south rail of the railway line, and that there grew above the level of the bank raspberry bushes and small alders to a height of about another three feet. Therefore, it was impossible, as a driver proceeded northward on this private road, to see any distance up the track until he reached a point about 42 feet south of the track.

The crossing and a few feet of rail on either side of it were, of course, quite visible to the driver proceeding northward down the slope. Some short distance south of the tracks, and again on the east side of the road, it would appear about ten or fifteen feet away from the tracks, stood a sign erected by the Canadian National Railways which bore wording to the effect that the crossing was a private crossing and that persons using it do so at their own risk. This was a white sign but the black lettering thereon had been weathered so that it was difficult to read the sign unless one were within fifteen feet of it.

The sign to which I have made reference bearing the words “R.R. CROSSING” is critically important. Indeed, I am inclined to be of the opinion that that sign is the most important feature of the evidence.

The witness Campbell, who, as I have said, as a claims adjuster for the C.N.R., took many photographs on the very day of the accident, and these photographs were produced by the defendants at the trial. The learned trial judge, in his reasons for judgment, stated that he preferred to use these photographs, Exhibits D.1 to D.11, in preference to those produced by the plaintiffs as the latter had not been proved properly and it was uncertain when they had

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been taken. I am content also to use Exhibits D.1 to D.11 taken by the witness Campbell and identified by him, but I shall have to refer to some photographs produced by the plaintiffs which, according to the evidence of the witness G. Craft, an insurance adjuster from Campbellton, New Brunswick, were taken in July 1970, more than a year after the accident.

The sign reading “R.R. CROSSING” at the curve in the road is graphically shown on Exhibits D.1, D.2 and D.3 filed by Mr. Campbell. Mr. Campbell, in his examination-in-chief by defence counsel, was not asked how high that sign stood from the road, but in cross-examination he was strongly questioned as to how high from the road a similar sign stood at the time of the trial in May of 1971. He was quite unable to remember the sign which he had seen on the very morning of the trial, and quite unable to say that it now stood some six and half to seven feet above the road. He was shown several photographs taken by the witness Craft, particularly Ex. P.12(1) and (2) and agreed that the same sign there pictured seemed to stand much higher than the sign which he had photographed in his exhibits D.1, D.2 and D.3.

Mr. Donald J. Olson, a brother of the deceased Judy Ellen Kim, inspected the sign on June 27, the second day after the accident, in mid-morning and he gave its exact height from the ground as 26 inches.

Mrs. Button, another witness for the plaintiffs and a person who lived in the nearby Dalhousie area, described it as “not four feet high”. That witness also said that the sign was partially obscured by raspberry bushes and the learned trial judge dismissed her evidence with the words “I simply do not believe her testimony”.

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The defendant Routhier was cross-examined very carefully in reference to this “R.R. CROSSING” sign. He admitted, “I remember splicing the post because the bottom was rotten”. And to the question, “Did you splice it and make it higher?”, he replied, “I don’t recall whether it was me or my brother-in-law I remember saying that post was kind of shakey and it had to be spliced.” And when he was asked “And when you spliced it you made it higher?”, he replied “I don’t recall doing it myself”.

Q. Well, who did it?

A. It could be my brother-in-law. I have quite a few employees. I can’t say who done the job.

Q. You heard Mr. Campbell’s evidence he came out this afternoon, that this post was formerly about 2½ feet off the ground and is now very much higher?

A. I will agree to that. I spliced it.

Although counsel appears to have misstated the evidence of Campbell, the admission of the defendant does confirm the evidence of other witnesses, particularly Olson, that the sign which was only 26 inches above the ground is now some 6½ or 7 feet above the ground. The learned trial judge seems to have compromised between these distances by describing the sign as “about three or four feet high from the ground indicating a railroad crossing”. I point out that it is quite plain from Exhibits D.2 and D.3 that the length of the post on the sign could not be an indication of the distance the board on the sign stood above the level of the road as the post was quite evidently set in the bottom of the ditch rather than along the east side of the road and I think those two exhibits, D.2 and D.3, produced as they were by the defence witness Campbell, strongly confirm the evidence given by Olsen that this most important sign stood only 26 inches above the level of the ground on the morning when the deceased Han Young Kim drove by on the road.

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I have discussed at some length the evidence of the changes in the position and height of the “R.R. CROSSING” sign not because I regard such changed position as evidence going toward establishing that the maintenance of the sign in its original position was a negligent act on the part of the defendant Routhier but rather to explain what, in my opinion, was the major misapprehension of the evidence by the learned trial judge which led him into error in coming to his conclusion that the defendant had not failed in the duty cast upon him toward the invitees to his premises.

The weather on the morning of the accident was described by Mr. Coe in these words:

It had been raining in the evening but not—it was clouded over and not raining; it was rather dark but it was daylight.

I am of the opinion that one must picture the approach of the late Han Young Kim and his family to the motel on this morning. The defendant as operator of the motel was required to expect that his patrons should approach the motel under weather conditions as they existed that day and with the leaf growth as it existed at that time of the year. Kim would drive northward on the private road and would note that it bent to the left. As illustrated in the photograph, Ex. D.1, he would have no vision at all beyond the curve and therefore prudence would dictate that he drive as close to the right-hand side of the narrow road as was possible. He was driving a Volkswagen van and so was sitting high up and, of course, would be looking to his left so that he could safely negotiate the curve. A sign only two feet two inches above the road level on the right-hand side of the road would easily be unnoticed under these circumstances.

Photograph Ex. D.2 illustrates the approach to this curve on this narrow road. In the immediate foreground of the exhibit, D.2, there is a large bush on the right-hand side of the road and a little distance south of the “R.R. CROSSING” sign. Remembering that one would expect

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Kim to drive northward with his vehicle close to the right-hand side of the road, it can be easily understood that this bush would cut down the view of the sign.

There is no doubt that the late Han Young Kim and his family were in the position of invitees. Both defendants have agreed that the signs at the point of entry into the private road from Highway 11 were placed there as an invitation to patrons to use the services of the motel and that Kim and his party were in the act of accepting that invitation and using those services.

The accident occurred almost exactly at 7:40 a.m. and according to the sign and according to the evidence the defendants were offering to serve meals from 8:00 a.m. on.

The learned trial judge adopted the oft-quoted and authoritative statement of Willes J. in Indermaur v. Dames[5], at p. 288.

The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact.

I shall deal hereafter with whether Kim was using reasonable care on his part for his own safety but I point out that he was “entitled to

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expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger”. Instead of the realization of that expectation, Kim made a rather sharp turn to the left on a narrow gravel road which from there on sloped 15 per cent down to within nine and a half feet of the railway rails and the only notice of the existence of those was a sign twenty-six inches from the ground on the right-hand side just at the curve in such a position as it would be difficult to understand how he could have noticed it on this particular morning and then a perfectly useless sign almost at the rails. As Kim drove down that slope, he faced a motel spread across the centre of his vision which was a glistening white building with red trim most attractive to the eye. Between that motel and himself, the railway line crossed the private road.

The witness Coe, who rode in the front seat opposite Kim, was asked:

Q. Now how visible were the tracks this particular morning?

A. They weren’t at all visible I don’t believe, based on having gone back to the site since the accident and seeing them on an entirely different type of day you could see the crossing from the top of the hill on a clear day and at a different type of timing of the year, no foliage or anything obstructing the view of the crossing itself. However, on that morning I think that crossing blended in so well that it was almost completely unnoticeable.

(The italics are my own.)

It must be remembered that Kim, as he proceeded down this slope, had on his right, that is, to the east, the side from which the train came, a four-foot bank topped by three feet of bush growth until he was about forty-two feet away from the rails. The failure to give adequate warning of this combination of circumstances, all within the control of the defendants, I believe did not constitute using reasonable care to prevent damage from unusual danger.

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Much examination was concerned with the failure to add other warnings such as a stop sign at the tracks or a gate which would require a motorist to stop and open the gate before he proceeded across the track.

Hughes J.A., in giving reasons for the Court of Appeal, adopted the statement made by Lord Dunedin in Morton v. William Dixon, Ltd.[6], which had been also adopted in the House of Lords in Paris v. Stepney Borough Council[7], and restated by Rand J. in this Court in Noddin v. Laskey[8], at p. 585. That rule, in Lord Dunedin’s words, was:

Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either—to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or—to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.

It is difficult to apply that test to the present case in that there was absolutely no evidence as to the existence or non-existence of stop signs at private crossings but certainly, in my opinion, the need for further warning signs or a major improvement in the warning signs which did exist was so obvious that it would be folly to neglect to provide them. A red hexagonal sign with the word “STOP” in bold, white letters has become a well nigh universal indication of an order that a motorist should stop before proceeding. Certainly, such a sign would have no legal compulsory effect on the motorist north bound on this private road but the inevitable reaction would be that he would stop. A stop sign, however, would not be the only means. If that 26 inches high “R.R. CROSSING” sign had been lifed to about six feet above the road level and had perhaps been made more emphatic, its efficiency would have been enormously increased. It must be remembered that this was

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no railway siding which might have been unused or very infrequently used. It was the main line of the C.N.R. from Halifax to Montreal.

A very careful consideration of all the evidence convinces me that when Kim drove north on that private road he faced a most unusual danger and that no reasonable care to prevent damage had been taken by the occupier. The plaintiff Janet Elizabeth Stewart is therefore entitled to judgment against the defendant Charles Routhier.

The defendants, by notice of motion, amended their statement of defence by the addition of paragraph 14 as follows:

14. In the alternative the defendants plead the provisions of the Contributory Negligence Act.

That notice of motion was allowed by the learned trial judge at the trial.

The Contributory Negligence Act of the Province of New Brunswick, is Chapter 16 of the Statutes of New Brunswick, 1961-62. Section 1(1) thereof provides:

1. (1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.

In applying that section, I return to an assessment of the evidence.

For the reasons I have already outlined, I am not of the opinion that the late Han Young Kim could be charged with any negligence until he had turned the bend to the left just as he passed the “R.R. CROSSING” sign. Thereafter, Kim drove northerly down the 15 per cent slope at a speed which his passenger in the front seat, Coe, described as not more than ten miles per hour and which speed decreased until, at the

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time the front wheels of his vehicle were actually on the rails, it was almost stopped. The view which faced Kim while he drove slowly down this slope is accurately pictured in the photograph Ex. D.3. It is true that at his eye level and right across the centre of the vision was the attractive white and red motel, but almost midway between that motel and his then position was the railway crossing. Although almost useless as a warning of the private nature of the crossing, it was nevertheless a visible notice that the crossing was there. Due to the fact that he was proceeding past a bank on the east side of the road, only a few feet of rails east or west of the actual timber covered crossing were visible until he had reached a point about 42 feet south of the crossing, but those few feet of rails were visible and his speed was so slow that he could have with ease brought his vehicle to a complete stop south of the south rail. Instead, he allowed his vehicle to drift onto those rails at a very slow speed. His front seat passenger Coe only noticed the on-rushing locomotive when it was sixty feet away and it would appear from the acceleration by Kim, which Coe observed, that Kim only became aware of the locomotive at the same instant.

Under these circumstances, I am of the opinion that Kim must be charged with contributory negligence. One is tempted to bring into effect the provisions of the subsection and find that it is not possible to establish different degrees of fault and therefore apportion the liability equally. However, I am so struck with the continued existence of circumstances of unusual danger as Kim drove northerly on the private road and then the sudden appearance of the railway crossing as a rather gray and inobtrusive feature of the landscape immediately beneath the attractive motel than I think it would be just to find that the occupier was 75 per cent at fault and Kim only 25 per cent at fault.

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The plaintiffs sued both the defendants Charles Routhier and Antoinette Routhier as occupiers of the motel premises but the defendants obtained the order of Barry J. on consent to amend paragraph 2 of the statement of defence and to plead that the defendant Charles Routhier was the owner and occupier. The plaintiffs joined issue with that defence and said further that the defendant Charles Routhier was the lessee of the private crossing. I am, therefore, of the opinion that judgment should go against the defendant Charles Routhier only and that the action should be dismissed against the defendant Antoinette Routhier without costs.

I would, therefore, allow the appeal and amend the judgment at trial as follows:

Janet Elizabeth Stewart, Administratrix of the Estates of Judy Ellen Kim and Han Young Kim, to have judgment against the defendant Charles Routhier for 75 per cent of $3,992.15, the special damages as found by the learned trial judge, that is, $2,994.11.

Anthony Young Kim, suing by his next friend, Janet Elizabeth Stewart, should have judgment against the defendant Charles Routhier for 75 per cent of $6,000, the general damages found by the learned trial judge, i.e., $4,500.

Janet Elizabeth Stewart should have damages under the provisions of the Fatal Accidents Act against the defendant Charles Routhier for 75 per cent of $40,000 which the learned trial judge found were the damages assessable under that statute, i.e., $30,000.

The appellants are entitled to their costs against the defendant Charles Routhier in this Court, at trial, and in the Appeal Division.

Appeal allowed with costs, RITCHIE J. dissenting.

Solicitors for the appellants: Gilbert, McGloan, Gillis, Jones and Church, Saint John.

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Solicitors for the respondents: Murphy, Murphy & Mollins, Moncton.