Price v. B.C. Motor Transportation Ltd. and Ledbury

Price v. B.C. Motor Transportation Ltd. and Ledbury
Collection
Supreme Court Judgments
Date
1932-02-02
Report
[1932] SCR 310
Judges
Anglin, Francis Alexander; Rinfret, Thibaudeau; Lamont, John Henderson; Smith, Robert; Cannon, Lawrence Arthur Dumoulin
On appeal from
British Columbia
Subjects
Torts
Decision Content
Supreme Court of Canada
Price v. B.C. Motor Transportation Ltd. and Ledbury, [1932] S.C.R. 310
Date: 1932-02-02
Marjorie Price, Wife of Andrew Frederick Price, Deceased, and Marjorie Price as Next Friend of Olive Price, Irene Price, Bertram Price, Frederick Price, Kenneth Price and Annie Marjorie Freda Price (Plaintiffs) Appellants;
and
B.C. Motor Transportation Limited and William Ledbury (Defendants) Respondents.
1931: October 9, 13; 1932: February
Present: Anglin C.J.C. and Rinfret, Lamont, Smith and Cannon JJ
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Negligence—Motor vehicles—Collision—Responsibility—Action under Families' Compensation Act, R.S.B.C., 1924, c. 85 (Lord Campbell's Act)—Application and effect of Contributory Negligence Act, B.C., 1925, c. 8.
Plaintiff sued for damages for her husband's death in a collision between his automobile and defendant company's motor bus, on a wet morning, on Connaught Bridge, Vancouver. The trial judge gave judgment for plaintiff, which was reversed by the Court of Appeal, which dismissed her action (44 B.C. Rep. 24). She appealed.
Held (Anglin C.J.C. and Cannon J. dissenting): Plaintiff's appeal should be dismissed. Deceased was himself guilty of negligence, and the evidence did not establish negligence, in the bus driver.
The question arose whether or not, deceased being guilty of negligence contributing to the accident, plaintiff's action was maintainable under the Families' Compensation Act, R.S.B.C., 1924, c. 85 (" Lord Campbell's Act"), having regard to the Contributory Negligence Act, B.C., 1925, c. 8. The judgment of the majority of the court, without deciding the question, assumed, for purposes of the judgment, that the action was maintainable.
Per Anglin C.J.C., dissenting: On the evidence, both deceased and the bus driver were equally guilty of negligence causing the accident, the fault of each being in driving at a speed which, under conditions existing, was excessive, and the effect of which continued right down to the impact. A case was thus made for the application of the Contributory Negligence Act. That Act is applicable to cases under the Families' Compensation Act for the purposes both of enabling plaintiff to maintain an action under the latter Act notwithstanding contributory negligence of deceased, and of providing for apportionment of the liability for damages; and as, in the present case, the evidence did not satisfactorily establish degrees of fault, the liability should be apportioned equally, and defendants held liable for one half the damages found.
Per Cannon J., dissenting: On the evidence, the bus driver was guilty of ultimate negligence, in that prior to the impact he did not do everything reasonably required of him to avoid the possible consequence of deceased's loss of control of his car; and the judgment at trial in plaintiff's favour should be restored.
APPEAL by the plaintiff from the judgment of the Court of Appeal for British Columbia[1] , which reversed the judgment of D. A. McDonald J. in favour of the plaintiff (and of the infant children of the deceased, on whose behalf also she sued) in an action for damages for the death of the plaintiff's husband in a collision which occurred about 8.40 o'clock a.m. on September 1, 1929, on Cannaught Bridge, Vancouver, between his automobile and a motor bus of the defendant company which was driven by the defendant Ledbury. The Court of Appeal set aside the judgment of D. A. McDonald J., and dismissed the plaintiff's action. The material facts of the case are sufficiently stated in the judgments now reported. The appeal to this Court was dismissed with costs, Anglin C.J.C. and Cannon J. dissenting.
E.F. Newcombe K.C. for the appellant.
R. L. Maitland K.C. and W. A. Riddell for the respondents.
The judgment of the majority of the court (Rinfret, Lamont and Smith JJ.) was delivered by
LAMONTJ—The one question in this appeal is, was there evidence on which the trial judge could find the respondents guilty of negligence causing the death of the late A. F. Price, the plaintiff's husband? The injuries received by Price resulted from a collision between a 29 passenger bus belonging to the respondents the B.C. Transportation Limited, driven by the respondent William Ledbury, and a Star touring car driven by Price. The collision took place on Connaught Bridge which connects the north and south shores of False Creek—an arm of the sea—in the city of Vancouver. In the middle of this bridge is a swing span or draw, which opens to permit the passage of water traffic. This span is 264 feet long and the bridge is a little over 57 feet wide. On each side of the bridge is a steel hand railing, 4feet high. Next to the railing on each side is a side-walk, 6 feet 9 inches in width, then a roadway for vehicular traffic, 8 feet 9 inches wide. On the inside of each roadway there is a steel parapet consisting of three horizontal steel girders, 2 feet 4 inches in thickness, with flat steel bar lattice work in between. These parapets extend to a height of from 15 to 20 feet and continue throughout the entire span. In the centre of the span on the top of these parapets is the bridge tenderer's house from which he commands a view of the span. The space between these parapets is 21 feet 6 inches wide and on this space two street car tracks have been laid. It is common ground that if there were no street cars passing along this space both busses and motor cars travel between the parapets. Also that at the time of the accident the bridge was very slippery and it was raining heavily.
As the trial judge pointed out, the plaintiff in this case is in the unfortunate position of having to rely upon the evidence of the respondent Ledbury for an account of the manner in which the accident actually happened, as well as of the occurrences immediately preceding it. The deceased, Price, did not recover consciousness after receiving his injuries, and no one, so far as the evidence discloses, other than himself and Ledbury, saw the accident.
Ledbury's story shortly is, that he was on his way north to the Canadian Pacific Railway depot to pick up his passengers and had to cross Connaught Bridge; that when he reached the centre span, there being no traffic on the bridge, he took the inside route on the east side; that he had his right wheels between the most easterly street car rail and the easterly parapet, and his left wheels between the rails of the most easterly track; that when he got to the centre of the span or a little past he saw an automobile coming towards him which was then approximately about 200 feet from the north end of the span but, as it was on the westerly car track and there was room for them to pass each other, he kept on; that when he got almost to the end of the span another car, which he had not seen before, pulled out to the left from behind the automobile, apparently with the intention of passing and getting into the span ahead of it; that it got almost alongside of the automobile when its driver—who later was found to be Price—noticed the bus approaching and evidently put on his brakes to check his speed and get back behind the automobile, with the result that Price's car, which was a light Star touring car, commenced to skid and also to come over to the east. Ledbury says that when he saw the Star turn out he took his foot off the accelerator and put it on the brake; and when he saw it skidding in front of him he applied his brakes, but, notwithstanding the application of the brakes, the bus " went right on a certain amount ahead "; that, as the Price car was now over on his side, he realized that a collision was inevitable if he kept going on, so he turned his wheel to the left and " tramped on everything " he had in an attempt to get clear but, just as he turned, the impact took place. As to what happened to the Star car he had no knowledge, but he himself with his bus shot ahead and went over the west side of the bridge and fell 50 feet to the flats below. The bus alighted upside down with Ledbury underneath. Fortunately he was not killed but he spent two months in the hospital.
The trial judge found that Ledbury had been guilty of negligence causing the accident and gave judgment for the plaintiff. This judgment was reversed by the Court of Appeal, Mr. Justice M. A. MacDonald dissenting[2] .
The learned trial judge states the reasons for his finding as follows:
I cannot blame him at the immediate moment before the accident for having decided to turn to the right or to the left. One has not the time to give it proper consideration. Nevertheless I fix him with liability in this case and on this ground. I think his car was out of control shortly before the time of the impact. He himself states that even on that day and under those conditions and on that street and with that bus at fifteen miles an hour he could stop in from thirty to thirty-five feet. Later on in his cross-examination, he went further and said that even at twenty-five to thirty miles an hour he could still stop on that street, on a wet street within thirty to thirty-five feet. Now, if so, and accepting his own evidence, in my opinion he ought to have and he could have stopped his car when he saw Price turn out, as Price had a right to do, or at least he ought to have slowed his car down and he could have done so on his own evidence, to such an extent that he had it under absolute control, and if he had done either, I am satisfied that this accident would not have happened. None of the judges of the Court of Appeal found any evidence to support the view that the bus was "out of control" shortly before the impact and, in my opinion, there is no evidence upon which that finding can be upheld. I am also unable to agree with the learned trial judge that Price had a right to attempt to pass the car in front of him at the entrance of a narrow passageway (21 ft. 6 inches) without first ascertaining that there would be room to get by, which there would not be if either a bus or a street car were crossing the span to the north and opposite the automobile. The distance from each parapet to the nearest street car rail is 3 feet 3 inches. The rails of the street car are 5 feet apart, which is also the width of the devil strip. Ledbury says the automobile was running with its right wheels just over the westerly street car rail, and that he had his bus in the same position on the east side. The distance between the east and west street car rails is 15 feet. The bus was 8 feet 8 inches wide, while the width of the automobile, although not stated in the evidence, would not be less than 6 feet. With the right wheel of each vehicle just over the street car rail on their respective sides, it is clear that there would be no room for the Star car to get between them. To attempt to pass while both were approaching the entrance of the span, without first seeing that the road ahead was clear, was not the part of a prudent or cautious man.
Price being guilty of negligence contributing to the accident, the question arises whether or not the plaintiff's action is maintainable under the Families' Compensation Act. Without deciding the question I will assume that it is.
In his dissenting judgment Mr. Justice M. A. MacDonald said:
Appellant's driven was not called upon to take precautions (beyond ordinary care in driving) until deceased's car drifted' over to his side of the road. He was not obliged to take precautions when he saw deceased turn out to pass the car in front of him as that manoeuvre could and should be executed without danger to any one. If it could not, it should not have been attempted.
I agree that Ledbury was not called upon to act when he saw the Star car turning out to pass unless it was so close to him as to make a collision probable. Ledbury had" a right to expect, as he says he did expect, that on seeing the bus the driver of the Star car would check his speed and pull back behind the automobile. It was, therefore, only when he became aware, or should have become aware, that Price did not intend or was not able to get back into line that Ledbury had the duty cast upon him of taking whatever steps he could to avoid a possible collision. The learned judge also said:—
After the deceased skidded in front of the on-coming bus, however, he was helpless: he could not do anything to avoid the accident. His original negligence was exhausted. Only one person could avoid it, viz., appellant's driver fifty or sixty feet away. By his own evidence, as stated, he might easily have stopped within that distance—he said he could stop in thirty or thirty-five feet—and if he had done so the accident would not have occurred.
Assuming that the bus and plaintiff's car were 50 or 60 feet apart at the time Ledbury realized there was danger of a collision, I am, with deference, of opinion that the conclusion that he had that distance in which to stop his bus is not warranted. It is based on the assumption that Price's car was not skidding south to meet him. Ledbury says it was. The pavement was wet, the car was equipped with hard pressure tires which skid more easily than balloon tires. According to Ledbury the rear end skidded south until the front was pointing east. The question is, at what rate was it skidding south? If it was going south as fast as the bus was going north Ledbury did not have 50 or 60 feet in which to stop his bus, but only 25 or 30 feet. If the Price car was skidding south at a faster rate than that at which the bus was going, he would not have even that distance. Now, it is a well known fact that cars do sometimes skid rapidly and by skidding turn completely around. There is absolutely no evidence as to the rate of speed at which Price's car was skidding south and, in the absence of such evidence, it is, in my opinion, impossible to say that Ledbury, after becoming aware of the danger, could have stopped his bus in time to avoid a collision.
On the argument before us, counsel for appellant also contended that there was evidence from which an inference could be drawn that the bus was being driven at an excessive rate of speed. Ledbury says he was driving across the span at 20 or 21 miles per hour; that when he saw Price's car turn out to pass the automobile, it was about 100 feet from the north end of the span. At that moment he was still in the span but almost at the end of it; that he slowed his car to 15 miles per hour; that when he saw Price's car over on the car track on which he was driving, he applied his brakes and had, he thinks, practically stopped before the impact. Ledbury, it is true, makes a number of inconsistent statements: for instance, in one place he states that when the impact took place his bus was half in and half out of the span. In another place he says the collision took place 50 or 60 feet north of the span. He says in one place that at 15 miles per hour he could have stopped the bus in 30 or 35 feet, and, in another place, that at 25 or 30 miles per hour he could have stopped it in 35 feet.
Fortunately, however, we are in a position to fix by independent evidence some of the more material points bearing upon the accident. We have the evidence of Bennett, the bridge tenderer, who heard the crash of the collision while in his house, and immediately looked out. The trial judge accepted Bennett's testimony and we must give it full effect. Bennett did not see the collision, but when he looked out he saw the Star car turning around to the left and it finished by facing in a southerly direction, having made a complete circle. He also saw the gray bus which was on the devil strip. His evidence is:—
The COURT: Q. You saw the Gray bus travelling along, going north? — A. Yes, towards the west side of the road.
Q. How far, having regard to the west street car tracks? — A. It travelled right from the east side to the west side, or I might say, from the centre of the span to the west side of the street. When I saw it first it was in the centre of the span.
Q. Had it got off the span?—A. I wouldn't say whether it was just at the outside edge of the span.
Q. Just get it clear when you saw it first?—A. It had just gone off the span and travelled to the west side of the road.
Q. Then pointing north?—A. Yes.
Q. And as from east to west where was it, say, with reference to the devil strip?—A. It was on the devil strip when I saw it.
Q. When you first saw it?—A. Yes.
Q. Then what happened?—A. It travelled right to the west side of the road, and the girder-work took it from my sight.
***
Q. Did you observe the roadway, the surface of the bridge, rather. Did you look to see if there were any marks on it?—A. Oh, yes, casually I glanced round.
Q. Were there any marks?—A. I didn't see any marks whatever—oh, yes, I saw where the Star car had swung around.
Q. Where was that, on the west or east side of the bridge?—A. Around about ten feet away from the gate, lower down on the span on the north end.
Q. And how far from the sidewalk?—A. About six or eight feet. Bennett's evidence fixes definitely the place of impact at about 10 feet north of the span. This accords with the statement of Ledbury that at the moment of the impact his bus was half way out of the span—his bus being 29 feet long. It establishes also that the Star car spun around to the left and ran against the steel buttress at the end of the west parapet, throwing Price to the sidewalk. At this time the bus was on the devil strip going northwest.
Then we have the evidence of Caulfield, who, at the time of the accident, was walking north on the sidewalk of the bridge with a Mr. Hill, since deceased. Caulfield says the bus entered the span well over on its own side and was travelling at an ordinary rate of speed. He says he heard a crash and climbed through the girders to the inside of the span to see what had happened. He saw the Star car turn around and then come to "the west side of the span at a kind of an easterly triangle next the roadway." It struck the north end of the parapet on the west side of the bridge, throwing a man to the sidewalk, and bounced back in a northeasterly direction, a distance of 6 feet; that at this time the front of the bus was about the middle of the west street car track and was to the north of the Star car.
As the impact took place ten feet north of the span and prior to the time when Bennett saw the bus on the devil strip pointing northwest, and as the Star car swung clear around in a circle to the west side of the bridge, the manner in which the impact took place may, in my opinion, be reconstructed with reasonable certainty. Two witnesses were called by the plaintiff to give their views as to how it must have occurred. The first was K. S. Patrick, the plaintiff's father and a civil engineer. He testified that he had examined the Star car three days after the accident and found that the right fender had been crushed in and the hood dented on its right side and the engine and everything underneath was badly pushed back. He said that he figured the Star car was going southeast and, from the markings on the hood, the bus must have been going north and a little to the east, for the car was hit on the right—hand front corner. His evidence is:—
Q. That is your theory? — A. Yes.
Q. The left side of the front of the bus hit the car on the right-hand corner in front? — A. There is no doubt about this part of it. Q. Swinging the Star car around to the left in a complete circle? — A. Yes.
Q. And the bus proceeding beyond the other car further north and to the west side? — A. That is the only way it can be explained. ***
On cross-examination Patrick said that after the impact the bus would be "going northwest but more to the west I fancy."
Then we have the evidence of Alexander Bell, a police officer who was at the scene of the accident a few minutes after it occurred and who came to certain conclusions as to how the accident happened from seeing the condition of the Star car and from questioning the people who were present when he arrived, and also by questioning Ledbury in the hospital.
He gives the following testimony:—
Q. From your deductions there from what you saw, the Star car had skidded in front of the bus? — A. It looked that way.
Q. Would you draw that conclusion? — A. In my opinion both cars the bus was travelling on the street car tracks and the car that Price was driving was coming south on the street car tracks, too, and skidded right in front of it, and went over running east, and he got hit a glancing blow.
***
Q. Your idea is the Star car skidded before it was hit and was pointing nearly east? —A. Yes, and then carried clean around until the front end was facing south.
No witness saw the marks on the bus where it came in contact with the Star car, for, as soon as Ledbury was removed from under it, the owners had it taken away by a wrecking crew as the tide was coming in.
Viewing the evidence as a whole, I think the reasonable conclusion is that Ledbury saw the Star car turn out to pass the automobile when it was about 100 feet from the north end of the span, as he says; that when Price saw the bus he realized the impossibility of passing the automobile and applied his brakes; that on applying the brakes, the pavement being slippery, his car commenced to skid and he went skidding forward and a little to the left until the front of his car was pointing east, or perhaps north of east, when it received a glancing blow either on the side of the car or on the engine from the left front end of the bus and was sent spinning around to the left, while the bus, which a moment before the impact, had been turning to the left, proceeded in a northwest direction until it went over the edge of the bridge. Ledbury's suggestion that the right half of the bus hit the right half of the Star car is not consistent with the facts established by Bennett and other witnesses and must, in my opinion, be disregarded, as I think we must disregard the statement he makes in one place that, just prior to the impact, his front end was facing west. His statements as to what occurred just at the time of the accident shew that he had no clear recollection of the events, and that perhaps is not to be wondered at. He admitted that in the hospital he had been trying to work out in his mind how the accident must have occurred, and it may be that in endeavouring to reconstruct the final scene he failed to keep clear and distinct the line of demarcation between what he actually remembered and what, in his enfeebled condition, he imagined must have happened. As I read Ledbury's testimony, it is not that of a man who is wilfully endeavouring to mislead the court, but is that of a man who, until the moment his mind became affected by the agony of the collision, has a clear recollection of what actually happened, but who from that time has only a confused remembrance of the events which took place, and says so, but in answer to questions states what he thinks happened. Weighing his evidence upon that footing or even disregarding his entire testimony from the moment he became aware that Price was not able to get his car back into line behind the automobile, I am unable to find any evidence that he was at any time driving at an excessive rate of speed.
Then can any inference be drawn from the events which happened? Taking Ledbury's statement, from which he has never varied and upon which no doubt has been cast, that the Star car turned out to pass the automobile when it was about 100 feet from the north end of the span and that at that time he " was in the span almost coming out" or " practically at the end of the span," as he says in another place, we know that Price travelled 90 feet to the point of impact, while the bus travelled the 10 feet from the end of the span plus the distance the front of the bus was back from the north end of the span, at the moment Price turned out. The bus, therefore, must have travelled a much shorter distance than the Star car to the point of impact. The relative distance travelled by the two vehicles supports Ledbury's statement that he had slowed down considerably, and it may be that he had practically stopped, for who can say that if a light car (weighing only 1,190 pounds), skidding rapidly on wet asphalt, comes against a five and a half ton bus almost stationary, the impact would not produce the same result as we have in this case so far as the Star car is concerned? To my mind the result of the collision is just as consistent with the rate at which Ledbury says he was driving as with the suggestion that he must have been going much faster.
In my opinion the decision of the Court of Appeal was right and the appeal should be dismissed with costs.
ANGLIN, C.J.C. (dissenting).—I have given this case very thorough consideration, having read every word of the record through once at least, most of it twice, and some parts of it, notably the testimony given by Ledbury, three or four times. After carefully digesting the evidence of Ledbury, I am satisfied that he is an utterly unreliable witness, either because of a disinclination to tell the truth, or, more probably, because of inability to recollect the material facts due to his physical condition immediately following the accident. Of this witness, I take much the same view as did the learned trial judge, who appears to have accepted his testimony only when given against himself, or when corroborated, or entirely in accord with facts otherwise proved. In my opinion, therefore, the proper course will be to examine this case on the independent testimony and on Ledbury's evidence where he makes admissions against his own interest, or where his statements are fully corroborated and also, where they are wholly consistent with facts, either admitted, or otherwise satisfactorily proved.
Adverting to the reasons given for the judgment of the Court of Appeal[3] , I find that of the majority, who allowed the appeal, Macdonald, C.J.B.C., contented himself with stating that "there is no evidence upon which a judgment can be supported." Martin, J.A., merely agrees in allowing the appeal, giving no reasons for his conclusion. Only two judges of the majority give reasons—McPhillips and Galliher, JJ.A. The former said, "the onus probandi rested upon the plaintiffs to make out their case beyond any reasonable doubt"[4] . With respect, there is here a clear misdirection (Cottingham v. Langman[5] of himself by the learned judge, practically at the outset of his judgment, on a vital point. He applies to this civil case a rule applicable exclusively to the Crown's case in a criminal prosecution. (Clark v. The King[6] . The learned judge assumes all the facts as deposed to by Ledbury in the defendant's favour. He even goes further. For instance, he says,—
The motor car was, when first seen, upon its proper side following another motor car and when the vehicles were somewhere about 50 or 60 feet apart the deceased driving the motor car turned out to pass the motor car ahead of him, etc.
although Ledbury himself says that he did not see the deceased's motor while it was following the preceding car nor, indeed, until it was turning out to pass the preceding car, and adds that there was then about " 100 feet " between " the end of the span " and the car which preceded the deceased's motor car, which would imply that there must have been well over 100 feet between his omnibus and the deceased's motor car at that time. This latter fact is also asserted in the respondent's factum. From the assumption thus made, the learned judge draws the inference that
the driver of the motor bus was placed immediately in the " agony of collision " and he vainly in an attempt to avoid a collision turned sharply to the west—but in so doing struck the motor car a glancing blow on its right side.
The learned judge continues:
the motor bus, in thus attempting to avoid the motor car, mounted the board walk which runs along the west side of the bridge and crashed through the bridge rail,
ignoring the all-important fact, that the omnibus actually went through the bridge rail at a distance of 86 feet north of the point of collision, as will presently appear.
Having thus dealt with the facts, the learned judge proceeds:
Upon these facts must be gleaned some sufficient piece of evidence which can reasonably establish that the driver of the motor bus was reasonably at fault and was guilty of some negligence that can be said to have been the proximate cause of the accident or rather was it upon all the facts inevitable accident produced by the conduct of the driver of the motor car? Mr. Justice Galliher would seem to have based his judgment largely on Ledbury's discredited evidence. Upon it he finds as a fact that Ledbury
realized it was getting dangerous when the other car continued coming over in front of him and not straightening out at a time too late to take effective action.
Speaking of Ledbury's evidence as to his ability to stop within thirty to thirty-five feet under the circumstances then existing, when going 15 (or even 25) miles per hour, he says:
His answer as to stopping within 30 to 35 feet at 15 miles an hour should not be taken with regard to the situation as it had arisen as deposed to but that if called upon to come to a stop ordinarily under the condition of the pavement that morning he could do so in that distance.
He adds that
if liability cannot be fixed upon Ledbury on his own testimony then I consider no case is made out by plaintiff.
He finally bases his judgment largely on
the view that the learned judge below misconceived the effect that should be given to the answer as to the distance in which Ledbury could have stopped his car.
Of course, if one should assume all the facts to be as deposed to by Ledbury, the appellant's case would be at an end.
In his dissenting judgment, Mr. Justice M. A. Macdonald refers to the testimony at some length and comes to the conclusion that, on the whole case, there was enough to warrant the finding that
accepting the evidence of appellant's driver *** his negligence *** (was) the substantial cause of the accident.
He also finds that it was
because of the negligent driving of the deceased that his car skidded or drifted in front of the motor bus,
but, he adds, that after that happened " he was helpless " and the only person who could have avoided the accident was the " appellant's driver (then) fifty or sixty feet away." He holds the latter bound by his answer that, on the occasion in question, " he could stop in thirty or thirty-five feet" and finds that
he negligently adopted a course which did not prevent the accident, a course which if successful would allow him to proceed without loss of time (and there was some slight evidence that he was in a hurry) whereas he might have adopted another course, viz., to stop, that would effectually prevent it. Even if he only reduced his speed the impact would be slight.
It is common ground that the collision occurred on the Connaught bridge in the City of Vancouver on the morn- ing of Sunday, the 1st of September, 1929, about 8.40 o'clock, between a Star car driven by Price, the deceased, and a motor bus of the defendant company in charge of one Ledbury.
The precise point at which this collision occurred is, however, in dispute, the appellant claiming it was at the exit from the swing span and within the arms or uprights of the latter, the defendants claiming that the actual place of impact was some fifty feet north of that point. The only satisfactory evidence on this particular matter is given by Bennett, of whom the learned trial judge says that he accepts his evidence,—
I am satisfied, from a view, that Bennett saw what he testified to having seen.
The learned judge had, by consent, taken a personal view of the bridge.
Bennett, the bridge tender, who was in his house situated above the middle of the bridge, although he did not see the actual collision at the moment of the crash, tells us that his attention was immediately drawn to the colliding cars. On going down to the bridge below he found marks upon the surface of the bridge indicating where Price's Star car had spun around immediately upon its being struck by the oncoming bus. These marks were at a distance of about 10 feet north of the northern upright of the bridge and indicate fairly closely the actual point of impact. This evidence was substantially corroborated by Caulfield, who said:
Q. Then what is the next thing you know of the accident? —A. Well, the next thing we heard was the crash. We did not see it.
Q. What did you do?—A. We went right through the girders into the centre of the span.
***
Q. What did you see?—A. At that time the Star car was coming like this, making this turn, and it hit some portion of the bridge and it came back; at that particular moment the man Price went out.
Upon this evidence, I find as a fact that the impact occurred at a point about 10 feet to the north of the swing span, or draw, of the bridge and some 86 feet south of the place where the motor bus eventually crashed through the rail on the west side, at a point by actual measurement 96 feet north of the north end of the draw-span. Ledbury in at least two places confirmed this view when, in his examination for discovery, he said:
Q. Did it come into the draw?—A. Yes, it came into the draw. It faced me, and I was paying too much attention to the other car at the time being and I didn't really notice it, but it came into the draw anyway—because he was coming into the draw, and this other car went to go around him to get into the draw—
***
and again,
Q. You were clear of the draw, weren't you, before the impact?—A. I wasn't quite clear of the draw. Half of the car was outside the draw.
It is also common ground that, prior to the accident, the motor bus was going north and the Star car going south.
The rate of speed of the motor bus, however, is not conceded. Ledbury admits he may have attained a speed of 21 miles per hour:
Q. Will you swear positively you were not going more than 20 miles an hour?—A. I won't swear positively I was not going more than 20 miles an hour. I might have been going 21 miles an hour.
On the other hand, the witnesses, Caulfield and Philp, both called for the defence, do not attempt to fix the precise speed. Caulfield, however, said:
Q. Cars on the bridge usually travel pretty fast?—A. Pretty sharp. They all do.
Q. You have observed that yourself?—A. Yes.
Q. Was this bus at the time you saw it, holding its own with the general rate of traffic?—A. I don't know. It was travelling no faster than they do when the bridge is full of traffic.
***
Q. What speed do they maintain?—A. Across the bridge as best they can, I suppose.
Q. But you are a man that has observed cars on the bridge, apparently. Do they travel rapidly, or very slowly on the bridge?—A. I don't know. They travel no faster on that bridge than they do on any ordinary highway, I don't suppose.
Bennett gave the following evidence:
Q. Did you hear anything before you heard the crash?—A. I might say just prior to the crash something came along at what I term a good rate, a high rate of speed.
The COURT: Q. You mean by the sound of the engine?—A. Yes, the sound it made at the end of the span. We have cover plates that cover the gap over, and when anything hits that it gives a severe jar. I heard that and then the smash of the crash. That is what brought it to my mind that it was travelling very quick.
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Mr. SINNOTT: Q. I am not quite clear, Mr. Bennett, about the large bus. Was that the bus from which you heard the sound?—A. Yes.
Q. Was there any other bus there?—A. There was nothing else. I didn't see any other on the street at all.
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Q. But does a heavy vehicle going fast make a different noise to a heavy vehicle going slowly?—A. Yes, it gives a different jar.
Mr. MAITLAND: Q. His lordship has put a suggestion now and I presume that your lordship means that you are going to have a view.
The COURT: Yes. Mr. MAITLAND: Q. Then you can demonstrate that to his lordship when he is there, can you?— A. If we get an example while we are there, you will recognize it yourself.
Upon the whole case, I am satisfied that Ledbury had actually attained a sped of between 23 and 25 miles per hour and that the Star car was coming towards him about equally fast.
There is not a little controversy as to whether or not there was a third car immediately preceding the Star car when Ledbury first looked in its direction. Ledbury speaks of the Star car as turning out behind the other to pass it. It is extraordinary, if this be so, that there is not any corroborative evidence of the presence of this third car. Bennett, Caulfield and notably Philp were each in a position to see such a car, if it were there; but no one of them told of having seen anything of such a car on the bridge at any relevant time. Apart from Ledbury's testimony, there is no evidence whatever of the presence of a third car and, if required to decide upon this issue, I would certainly determine that the presence of this car had not been established.
My own idea is that, when giving evidence, Ledbury really thought two cars had been approaching him prior to the accident. That may be accounted for in this way,— when he first looked he saw only one car, which was in fact the Star car coming straight towards him, at a distance of about 350 feet. His failure to recognize it as such may have been due to the heavy rain then falling, or to his paying insufficient attention to it at the time. When he again looked he saw a car coming towards him at an angle, at a distance of 100 feet beyond the end of the span, and, as he thought, beginning to skid towards his side of the bridge. This was, undoubtedly, the Star car. He is not pressed to say what became of the alleged preceding car after it passed him at about the entrance. He has no idea what became of it. Brooding over the matter during his more than two months in the hospital, as he admittedly did, when he says,
The way I had it figured out in the hospital, I had it doped out ***
he gradually began to think, and eventually firmly persuaded himself, that he had seen two cars where, in fact, there was only one, which he had noticed in two different positions. But, for the purpose of this judgment, I shall assume that there was a car immediately preceding the Star car, as stated by Ledbury. The case appears to have proceeded on this footing and appellant's counsel at bar seemed to be ready to accept it as correct. If so, it would seem reasonably clear that Price turned out to pass the other car, much as Ledbury says. Ledbury also says that he was paying close attention to this leading car and did not see the Star car following, as he admittedly should have done had he been looking carefully ahead.—
Q. Why didn't you see the second car?—A. I don't know. I guess I was not looking for it.
Of this state of facts, however, we have only Ledbury's evidence, there being no other witness. Otherwise, the only way one could account for Price being on the wrong side of the road and in front of the bus, as Ledbury alone says he was, would be that his car had skidded, not improbably on the greasy tram rails, and that it was already out of control when Ledbury says he saw it skid over in front of him.
We also have the fact conclusively proven that the motor bus crashed through the west railing of the bridge at a distance of 96 feet from the north end of the north girder of the draw and about 86 feet to the north of the point of impact and fell some 50 feet to the creek b