Long v. Toronto Rway. Co.

Long v. Toronto Rway. Co.
Collection
Supreme Court Judgments
Date
1914-06-19
Report
(1914) 50 SCR 224
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Ontario
Subjects
Torts
Decision Content
Supreme Court of Canada
Long v. Toronto Rway. Co., (1914) 50 S.C.R. 224
Date: 1914-06-19
Mary Long (Plaintiff) Appellant;
and
The Toronto Railway Company (Defendants) Respondents.
1914: June 10, 19.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Negligence—Electric railway—Duty of motorman—Contributory negligence—Reasonable care.
L. started to cross a street traversed by an electric railway and proceeded in a north‑westerly direction with his head down and apparently unconscious of his surroundings. A car was coming from the east and the motorman saw him when he left the curb at a distance of about fifty yards. Twenty yards further on he threw off the power and when L., still abstracted, crossed the devil strip and stepped on the track reversed being then about ten feet from him. The fender struck him before he crossed and he received injuries causing his death. On the trial of an action by his widow the jury found that the motorman was negligent in not having his car under proper control, that L. was negligent in not looking out for the car, but that the motorman could, notwithstanding, have avoided the accident by the exercise of reasonable care. A majority of them found, also, that L.’s negligence did not continue up to the moment of impact.
Held, Davies and Anglin JJ. dissenting, that the jury were entitled to find as they did; that when the motorman first saw L. he should have realized that he might attempt to cross the track and it was his duty, then, to have the car under control; and that his failure to do so was the direct and proximate cause of the accident for which the railway company was liable.
Held, per Davies J.—The motorman was not guilty of negligence prior to the negligence of L. which consisted in stepping on the track when the car was near and it was then too late to prevent the accident.
Held, per Anglin J.—The findings of the jury, especially the finding that L.’s “negligence was not a continuing act up to the moment of the accident,” were not satisfactory and there should be a new trial.
(Leave to appeal to the Privy Council was refused, 4th Aug., 1914.)
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario setting aside the verdict for the plaintiff at the trial and dismissing his action.
The facts of the case are stated in the above head-note.
Raney K.C., for the appellant. The jury could and did find that though the plaintiff was negligent the motorman could, by exercising reasonable care, have prevented the accident. This being so the plaintiff is entitled to the verdict. Pollock on Torts (9 ed.), pages 471 et seq. Radley v. London & North Western Railway Co.[1], at page 759; The Bernina[2].
Dewart K.C. for the respondents. On the evidence given the case should not have gone to the jury. See Davey v. London & South Western Railway Co.[3]; Dublin, Wicklow & Wexford Railway Co. v. Slattery[4]; Grand Trunk Railway Co. v. McAlpine[5].
We also rely on Jones v. Toronto & York Radial Railway Co.[6]; Brenner v. Toronto Railway Co.[7], at page 556.
THE CHIEF JUSTICE.—In view of the admitted negligence of the deceased, the question to be decided is: Could the motorman have prevented the accident by the exercise of ordinary prudence? The jury found in answer to questions 4, 5 and 6 that the plaintiff’s husband was negligent in not looking for the car, but that notwithstanding such negligence, the accident might have been prevented if the car had been under proper control and the brakes had been put on. Those answers would have been more helpful if the jury had fixed the period of time at which this precaution with respect to the brakes should have been taken. But to appreciate their full significance, the answers must be considered in the light of the evidence. For instance, the motorman says that he had the deceased in view from the time the latter left the sidewalk up to the very moment of the accident, and that
he kept straight on crossing the street with his head down in the direction of the car absolutely absorbed, not thinking of what he was doing,
and this, notwithstanding the insistent ringing of the gong. The motorman also admits that he realized almost immediately when he first saw the deceased that there might be trouble, and notwithstanding, at a distance of thirty yards from the point of the accident, the car was moving at the rate of ten miles an hour. The motorman adds that
he realized the deceased was not going to stop in his attempt to cross the track when he was only ten feet from him,
and he then reversed his power and applied the brakes. In these circumstances, the unfortunate man is run down and the jury find that the car was not under proper control at the time of the accident and that the brakes should have been applied sooner.
It would be difficult to reach any other conclusion unless the jury were prepared to say that the motor- man who admits he was fully aware of the possibility of trouble at a time when, by the exercise of reasonable care, he might have avoided the accident, was entitled to run the pedestrian down because the latter was negligently unconscious of the coming of the car.
The general effect of the answers to the first six questions is: Assuming that the negligence of the deceased began apparently when he left the sidewalk and continued until the moment of the accident; the motorman who says he anticipated danger from the moment he first saw the deceased coming towards the tracks was under a duty to be on the alert, and he should, in the circumstances have expected that the deceased would attempt to cross the track—which was indeed the only danger to be anticipated—and have been prepared for that emergency. The jury find that he failed in that duty. His negligence was, therefore, the immediate cause of the accident.
The answer to question seven, which was put by the judge of his own motion, has a tendency to create some confusion. That question and the answer thereto are as follows:—
7. Could the motorman and the deceased each of them up to the moment of the collision have prevented the accident by the use of reasonable care—in other words, was the negligence of deceased a contributing act up to the very moment of the accident?
Answer.—10 say “No,” and 2 say “Yes.”
In his charge to the jury, the effect of that question is thus explained by the trial judge:—
Now, the seventh question is a very peculiar one. Could the motorman and the deceased each of them up to the moment of the collision have prevented the accident by the use of reasonable care—in other words, was the negligence of the deceased a contributory act up to the very moment of the accident? I do not think I can make it any clearer than I have made it there. Did the unfortunate deceased’s act contribute up to the moment of the accident? Well, in a sense, it did, physically, because he went right on, but that is not what is meant by this question. The question is: Did he become aware that the car was approaching and was he able to avoid the danger? That is the sense in which that question is put. We do not know anything about his condition of mind at all. Apparently there is a question of whether he was under the influence of liquor or not. The policeman says he was a short time before. The man who was with him says he was not. I do not think it makes a great deal of difference in any event, it is just what his state of mind was, which you are the judges of, from the best information that can be placed before you.
Although not completely satisfactory, I am disposed to think that the effect of the answer is that, at the moment of impact, the deceased was unconscious of the near approach of the car, and that the motorman who had the last opportunity to avoid the accident, failed in his duty.
The general effect of the verdict when read with the evidence and the charge of the trial judge is, therefore; that, notwithstanding the negligence of the deceased the motorman might have avoided the accident by the exercise of ordinary prudence and, in that view, the appeal should be allowed with costs here and below. Tuff v. Warman[8]; Radley v. London and Northwestern Railway Co.[9]
DAVIES J. (dissenting).—I think the judgment of the Court of Appeal was correct and that this appeal should be dismissed.
In my opinion the evidence and the findings of the jury upon it are conclusive that not the negligence of the company, but the reckless negligence of the deceased caused his death.
In answer to the questions put to them the jury found, first, that the death of the plaintiff’s husband was not caused by any negligence on the part of the respondent company prior to the negligence of the deceased; secondly, that the negligence of the plaintiff’s husband (deceased) which caused or contributed to the accident, was such that without it the accident would not have happened; and thirdly, that such negligence consisted “in not looking for the car.”
The last answer necessarily refers to the moment when the deceased stepped on to the car track in front of the car.
These three findings of the jury negativing negligence on the company’s part prior to the negligence found on the deceased’s part which caused or contributed to his death, seem to me to settle the question that up to the moment when the motorman ought reasonably to have apprehended that the deceased was going to step on to the track in front of the car, there was no negligence on the company’s part.
In this connection I may say that it was proved to be the daily practice for people to cross the street from the sidewalks out to the car tracks and there await the passing of the car. The street was double tracked. People were, of course, within their rights in so acting and this practice did not ordinarily call for any special precaution on the part of the motorman of the cars. Special conditions and circumstances no doubt would call for special precautions, such for instance as a man evidently running so as to cross the tracks, or a drunken man incapable of taking full care of himself and looking as if he intended to cross the tracks, or a child apparently so small and young as to be incapable of appreciating danger. In this case it was contended that the deceased was crossing the street slowly with his head bent down and not looking for the car, and that this condition threw an additional onus upon the motorman as to the degree of care he was to take, especially as he admitted throwing off the power and so reducing the speed when he saw the deceased approaching the car tracks. But there was nothing to indicate any intention on the part of the man to cross the tracks in front of the car and the throwing off of the power was at the most only a commendable and prudent precaution.
Reliance, however, was placed upon the findings of the jury in answer to questions 5 and 6, that notwithstanding the deceased’s negligence in stepping on the track without looking for the car, the defendants could by the exercise of reasonable care have averted the collision
by putting on the brakes and having the car under proper control.
These findings of negligence, properly construed, seem to me without any evidence whatever to support them. They cannot be construed as imputing negligence to the defendants prior to that of the deceased because the jury’s answer to question one emphatically negatived any such negligence. They can only mean that after the motorman ought to have apprehended danger from the deceased stepping on the track he should have put on the brakes. But it was not until the man was in the act of stepping from the south track on to the devil strip and the north track, that the motorman should have apprehended any such action, and any attempt to stop or control the car’s speed at that moment by putting on the brakes would have been perfectly useless. The motorman’s evidence is to the effect that the deceased was about ten feet in front of the car when he first apprehended that de- ceased intended crossing the track and that he immediately reversed. If he was right, or approximately right, in this no doubt can exist that the action he took in reversing was the only possible effective action he could have taken. Putting on the brakes at that moment would have been absolutely useless.
Appellant’s counsel contended that at the inquest the motorman had stated that when he reversed the car was a car length or a car length and a half from the deceased and that the jury had a right to believe the statement alleged to have been made at the inquest as to the distance. But Stevens, the motorman, when questioned at the trial respecting this alleged statement read to him from the reporter’s notes of the evidence, swore that the report was a mistake and that he never did say that. No attempt was made to contradict him or to prove that he had said so.
No witness suggests even that the deceased was a car length or a car length and a half in front of the car when he stepped on the track. If he had been he would certainly, in view of the speed at which the car was moving at the time, have got safely across, Charles Allen, who saw the accident, says:—
I seen the gentleman just as he stepped on to the car tracks, just as he seemed to put his foot on to the car track, the north track.
And being asked what then happened, he said:—
I seen the gentleman seemed to throw out his hands as though he had realized his danger on the instant and the round part of the fender on the north side seemed to catch him.
Beyond the cross-examination of the motorman as to his statement at the inquest, our attention was not called to any evidence of any kind as justifying the contention that the deceased was further away from the car when the motorman reversed than he said he was. The width of the car tracks, the speed of the car, and the distance the car ran after the accident, coupled with the evidence I have quoted above, compel the conclusion that the motorman’s statement of the distance the deceased was from the car when he first apprehended he was stepping on to the track was approximately correct. I do not see any ground or justification for any inference to the contrary.
I, therefore, conclude that there was no evidence whatever to support the jury’s answer to question 6 if the meaning and effect of that answer is that the accident could have been averted after the motorman ought reasonably to have apprehended that the deceased man contemplated stepping on the track in front of the car.
I think the motorman took the only possible effective means of averting the accident by reversing when he did and that to have applied the brakes instead would have been necessarily ineffective and useless.
I confess myself unable to understand the real meaning of the seventh question even when read in light of the charge of the trial judge. It seems to me clear that considering the distance between the deceased and the car at the time he stepped on the track his negligence in so stepping without looking for the car must be held to be contributory negligence and is so found by the jury. Nothing that then or afterwards could be done by the motorman could have averted the accident. The deceased might possibly have stepped back and so averted it, but that the negligence of the deceased in stepping on the track in front of the car without looking, and attempting to cross, as found by the jury, was a continuing contributory act up to the moment of the accident, I have not heard anything to cause me to doubt.
It is important to observe that there is no finding that the motorman did not sound his gong, as he swears he did, or that he did not reverse as soon as he should have done. The finding that he should have applied the brakes and had the car under better control can only mean, read in the light of their previous findings, that the motorman should have applied the brakes instead of reversing when he did. But there is not a scintilla of evidence to warrant that finding. Indeed, the evidence shews that reversing was then the only possible available means of averting the accident under the circumstances proved.
The contributory negligence of the deceased being a direct and effective cause of the accident is a complete answer to the action, unless there was something done or omitted afterwards by the motorman which he ought not to have done or omitted which could have prevented the accident.
The jury do not say that the motorman did not reverse as soon as he ought reasonably to have apprehended that the deceased intended to step on the track. If, instead of reversing when he did, he had then applied the brakes he might well have been found guilty of negligence.
Then with reference to the throwing off of the power and so reducing the speed of the car at about 35 or 40 yards before reaching the place of the accident which the motorman swears he did as a matter of precaution, the jury do not find that there was any negligence with regard to that.
My own judgment is that the jury intended their answer, as to want of reasonable care in not putting on the brakes, to apply to a period anterior to the negligence of deceased in stepping on the car track, because it seems absurd to apply it to a time coincident with or subsequent to the deceased’s negligence, when it must have been ineffective in preventing the accident. The plan adopted of reversing was much more effective then and was apparently the only possible thing to have done. But if that is what the jury meant, as I think it was, then it is not only in direct conflict with their first finding that the defendant company was not guilty of any negligence prior to the negligence of the deceased, but it could not, in my judgment, have any effect given to it in this action where subsequent contributory negligence constituting a direct and effective cause of the accident is found. If, on the contrary, it meant, what the question and answer read together seem reasonably to imply, that “notwithstanding the negligence of the deceased” the company were guilty of negligence in not afterwards applying the brakes, then I think the finding is utterly without evidence or warrant to support it and that what was done after deceased’s negligence, namely, “reversing,” was the only possible effective thing that could be done.
The answers of the jury, therefore, to questions 5 and 6, whether held applicable to a time anterior to the contributory negligence of the deceased man or subsequent to it, cannot affect the result. There is no evidence whatever to justify a finding that the brakes should have been applied after the contributory negligence of the deceased occurred or that such action could possibly at that time have averted the accident. If, on the other hand, the finding applies to the time anterior to the contributory negligence of the deceased which was a direct and effective cause of the accident, it cannot entitle the plaintiff to succeed.
That has been the principle on which this court has for years acted and it is one sanctioned and approved by the highest authorities in England.
The London Street Railway Co. v. Brown[10]; Brenner v. Toronto Railway Co.[11]; Spaight v. Tedcastle[12], at page 226; The Bernina[13], and specially pages 88 and 89.
IDINGTON J.—I accept the law as being correctly laid down in Pollock on Torts, 9th ed., page 473, as follows:—
If the defendant could finally have avoided the mischief by ordinary diligence, it matters not how careless the plaintiff may have been at the last or any preceding stage.
The deceased according to evidence the jury were entitled to accept was crossing from the southerly to the northerly side of Queen street, in an oblique line tending westerly when respondent’s car, running from the east to the west, struck and killed him.
The line thus taken by deceased tended to prevent him, when evidently from some cause or other in an unobservant mood, from as readily seeing the coming car as he otherwise might have done.
The motorman says he saw him from the time he stepped off the sidewalk to pursue the path he took, and kept him in his eye till he was struck.
The story is a striking one and, to comprehend clearly and accurately the issue now presented for our solution, better be given in the language of the man who ought to know the facts. The same man had been examined before the coroner, who had held an inquest. The stenographer’s report of his examination at the inquest was referred to at the trial hereof and material parts of it read to him and his assent, or dissent, as the case might be, got. This is to be borne in mind in estimating both the value of the witness’s evidence and his integrity. The following are extracts from the stenographic record at the trial.
Mr. Raney: Q. This is what you said at the inquest, Mr. Stephen, page 13, the question was: “Tell us how the accident happened as you saw it,” and your answer was, “Well, as I was going west on Queen street between John and Peter streets or Soho street, I seen a man leave the sidewalk with the intention of crossing the track. I guess I was about 50 yards from him when I see him first, well, I started ringing my gong and he was going with his head down, looking downwards. He never paid any attention and I throwed off my power and kept ringing my gong, but he did not seem to take any notice at all. So when I seen that there was danger I reversed my car, but it did not stop quick enough to save hitting him and he was struck with the north-west corner of the fender”—
* * * * * * *
Q. Was that a truthful answer, Mr. Stephens? A. Yes.
* * * * * * *
Q. You said your speed on this night when you came up from John to Peter was about fifteen miles an hour—I suppose that is more or less of a guess, is it? A. Yes, just about the ordinary.
* * * * * * *
Mr. Raney: Q. And you threw your power off, and when did you begin to ring your gong. A. Just when I threw my power off.
Q. Just when you threw your power off—and did you throw your power off as soon as you saw the man stepping off the sidewalk with his head down? A. I just threw my power off after I seen him coming towards the track.
* * * * * * *
Q. How long after? A. Just as soon as he got off.
Q. At the inquest you were asked, “when did you change your speed”—how far did you go when you changed your speed? A. I threw my power off—when I started ringing my gong.
Q. When did you start ringing your gong? A. When I saw him approaching the track.
Q. How far were you from him then? A. “I was about, when I seen him approaching the track I was about fifty yards”—is that right? A. When I seen him first I was about fifty yards.
Q. Would you say it was as near? A. I was about fifty yards when I seen him first.
Q. It was then you threw your power off? A. Well, I was getting closer all the time.
Q. We will read what you say? “You did not throw off your power then did you? Did you throw your power off fifty yards from him? A. Well, as soon as I seen he was going to approach the track I threw off my power. Q. And then you were fifty yards away? A. Of course, I was getting closer, you know, I would be about thirty at that time. Q. And he seemed still to keep on walking in a northwesterly direction,” and you say, “Yes,” of course it must be northwesterly according to your evidence. Now was there anything to obstruct your view of the man 1 A. No.
Q. You had a clear view of him all the time? A. Yes.
Q. From the moment he left the sidewalk until you hit him? A.
Yes.
Q. And during that time you had him always in sight? A. Yes.
* * * * * * *
Q. And did he ever give the least sign of apprehending the approach of your car—did he ever give the least sign that he knew that your car was approaching him? A; No, I do not think he did.
* * * * * * *
Q. If any car passed would it pass east before? A. Before I saw him?
Q. Before you got him in line? A. Yes.
Q. No traffic at all in the street? A. No.
Q. Then you were asked again—these are the Crown’s questions to you—page 15, two‑thirds of the way down—“How far were you from him when you started gonging? Were you the full fifty yards away?” And you said, “Yes,” “And you kept gonging him until you got to Soho street?” and your answer was “Yes, gonging him all the time.” “Q. Did he give any sign of having heard you?” and your answer was, “No, he never heard at all, kept going ahead with his head down.” These answers are true? A. Well, yes.
* * * * * * *
Q. Now how far were you away from him when you reversed? A. Ten feet.
Q. Ten feet? A. I reversed as soon as I seen he was in danger.
Q. How long is your car? A. About thirty feet.
Q. About thirty feet long? A. Yes.
Q. Now I see on page 17 of your evidence at the inquest you were asked, “How far away were you from him when you reversed?” and you answered, “About a car length.” A. That is a mistake, I never did say that. Q. Then at page 21 you were asked that question, “How far”—I had better read the question before to get the context. “Q. Then what did you do? A. Well, as soon as I seen he was in danger, as soon as I seen he was stepping on to my track I reversed. Q. How far were you from him then? A. About a car length and a half” A. That is a mistake.
Q. That is a worse mistake? A. I never said that.
Q. That is a worse mistake than the former one? A. Yes.
Q. Now you say that you were within ten feet of him when you reversed? A. Yes, that is where I was.
Q. Then how far did the car go after you hit him? A. Pretty near half a car length.
* * * * * * *
Mr. Raney: Line 10. Q. “You were about one hundred and fifty feet back east of him when you first saw him? A. Yes. Q. And he left the south side of Queen street with his head down in this way, absolutely absorbed, not thinking what he was doing? A. Yes. Q. And he walked across the street? A. Yes. Q. And in a northerly direction? A. North‑westerly direction?” A. North-easterly.
Q. You mean north-easterly? A. Yes.
Q. “You had him in view all the time? A. Yes. Q. Did you begin to gong him as soon as you saw him? A. As soon as I saw him. Q. That was at one hundred and fifty feet away? A. Yes. Q. Then you thought that there might be trouble and you threw off your power? A. Yes. Q. How far were you away when you threw off your power? A. Probably forty or thirty-five yards”—now are these answers correct with the exception of the correction you have just made, north-easterly for north-westerly? A. Well, I never thought he was going to cross in front of the car.
* * * * * * *
Q. So the first thing you did was to gong him with your foot? A. Yes.
Q. And then as he did not pay any attention you threw your power off? A. And kept gonging him repeatedly.
Q. Now what was the character of the gonging that you did—was it a slow pressure or did you give it a rapid pressure A. Rapid pressure.
Q. All the time. A. Repeatedly.
Q. For the whole hundred and fifty feet, or fifty yards? A. Repeatedly.
Q. And was that for the whole distance? A. Yes.
* * * * * * *
Q. Did this man hesitate at all as he came across the street? A. No, I do not think he did, he was walking so slowly.
Q. Never hesitated and never looked up? A. No, he was just going with his head kind of hung. Q. This is a question from a juror, “Q. This man that was crossing the track, did you notice he hesitated at all or did he keep going an even pace? A. He never hesitated at all. Q. Kept going slowly? A. Kept moving slowly. Q. Gave no sign that he heard you coming? A. Never looked up”—these answers are true? A. Yes.
Queen street is unusually wide and from the south curb to the track the car ran on is shewn to be twenty-eight feet six inches.
The issue presented to us is whether or not the man seeing another he thus described as so dead to his surroundings as to fail to respond to such desperate efforts as were made to arouse him, had duly and properly run him down. If we can say so then the judgment appealed from is quite right. And it seems to me we must be able to say so before we can uphold it.
It seems according to past instances from Davies v. Mann[14], down to the recent case of O’Leary v. The Ottawa Electric Railway Co.[15] (appeal from which judgment was dismissed by an equal division in this court) in a great variety of cases to have been held that it was for the jury to say whether or not, in a case where the defendant had apprehended, or ought to have apprehended, danger of injury to another who had been negligent of his person or his property, he (the defendant) had exercised ordinary care to avert such injury. Hence the law has hitherto been taken to be as laid down in the passage above quoted from Pollock.
The jury has said deceased was negligent but by answering another question, No. 5, seems clearly to intend that ultimately the respondent had not taken proper care to avert the accident—in other words—had not used that ordinary care the law required. Question No. 7, though, I submit with great respect, unhappily framed, yet evoked a reply confirmatory of the same view and minimized the negligence of deceased as viewed by the jury.
Such read in light of the charge seems clearly to be the result of these findings. And so read there can be no judgment dismissing the action unless the court comes to the conclusion it should never have been submitted to a jury but dismissed.
I cannot think that a man who realized, as the motorman professes, for such a length of time and space the danger he was in of injuring the deceased, whose movements and conduct he had kept steadily in his eye, was justified in running him down.
However that may be I can still less think that there was no case to submit to the jury.
I can conceive of men taking, as in fact the members of this very jury did, opposite views in such a case. And it seems to me that the learned Chief Justice who tried the case realized all the difficulties, used his long and wide experience of such cases, and ruled according to the law as it has been administered by him and others for a quarter of a century. The Court of Appeal has gone a long way in the direction of establishing (what railway companies have struggled so long to establish) the hard and fast rule of “stop, look and listen” as an impassable barrier in the way of future recovery by any persons, or their representatives, in cases where the so-called rule has not been observed.
It has never hitherto formed part of English or Canadian law. Each case with its attendant circumstances has been dealt with independently of such rule, though elements in it may have formed part of the basis acted on in many cases.
There may be in the motorman’s story a good deal of fiction. He may not in fact have been so very apprehensive and realized so well the danger as he says. Indeed, it would seem charitable to doubt it in looking at the results.
It does not, however, lie in the mouth of respondent to say we should do so.
Nor does his own intimation that he did not think the man would attempt to cross, conclude the matter, for the judge and jury were entitled to consider his acts of throwing off the power and continually ringing his gong as conclusive evidence that he thought there was danger of his crossing and being run down. And yet he failed to use that ordinary diligence motormen feeling such danger should have used.
If he had continued at the high rate of speed he was going, before realizing the danger, he would have passed the man without hurting him.
Apprehending what his conduct says he did, ordinary common sense dictated his doing more than he did.
There is in the evidence another and entirely different story which if correct might have been well accepted by the jury to justify a verdict for the defendant.
I am not concerned at all with that for it lay within the province of the jury to determine which story was right.
I am only concerned with the law and for the maintenance of the law and long established means of applying it by leaving to the jury the facts unless so clear beyond peradventure that there is nothing to try.
It has been suggested this motorman exercised his judgment. Again it was for the jury to say whether such judgment could be held to be in conformity with what men of common sense exact, under the name of ordinary care or diligence.
The motorman’s amending version that the deceased travelled north-easterly in his crossing, is in conflict with the evidence and surrounding circumstances. But if correct, then the deceased was facing the light of the coming car and a greater object of the motorman’s pitying care than if going obliquely to the northwest. Is a man seeing another in such state entitled to shout at him and knock him down if he won’t get out of the way?
I think the appeal should be allowed with costs and the judgment of the learned trial judge restored.
I wrote the foregoing opinion shortly after the first argument herein a year ago, and though a longer line of authorities has been cited on the second argument than on the first, I have heard nothing to shew that there has been any change in the operation of the clear legal principles so long established which I have referred to in the foregoing.
DUFF J.—Broadly, the rule as regards the effect of a plaintiff’s negligence is that his want of care, assuming it to be of such a character as to constitute what is understood in law to be negligence, is a complete answer to a claim founded on the defendant’s negligence, if it was in whole or in part the “proximate” or “direct cause” of the plaintiff’s misfortune. In Walton v. London, Brighton & South Coast Railway[16], at pp. 429 and 430, Mr. Justice Willes in the course of a discussion of the judgment of the Exchequer Chamber in Tuff v. Warman[17], says:—
If there is no evidence of negligence on the part of the plaintiff, then the only question is whether there has been negligence on the part of the defendant. But in cases where there has been negligence on the part of the plaintiff, the question is whether that was the direct cause of the accident or proximately contributed to it.
* * * * * * *
If there was evidence of negligence on the part of the plaintiff, the further question arises whether that negligence was the proximate or direct cause of the accident.
In his judgment in The Bernina[18], at p. 61, Lord Esher states the rule in these words:—
(5) If, although the plaintiff has himself or by his servants been guilty of negligence, such negligence did not directly partly cause the accident, as if, for example, the plaintiff or his servants having been negligent, the alleged wrongdoers might by reasonable care have avoided the accident, the plaintiff can maintain an action against the defendant. (6) If the plaintiff has been personally guilty of negligence which has partly directly caused the accident, he cannot maintain an action against any one.
And at pp. 88 and 89 Lord Justice Lindley discusses the subject in the following passage:—
If the proximate cause of the injury is the negligence of the plaintiff as well as that of the defendant the plaintiff cannot recover anything. The reason for this is not easily discoverable. But I take it to be settled that an action at common law by A. against B. for injury directly caused to A. by the want of care of A. and B. will not lie. As Pollock C.B. pointed out in Greenland v. Chaplin[19], the jury cannot take the consequences and divide them in proportion according to the negligence of the one or the other party. But if the plaintiff can shew that although he has himself been negligent, the real and proximate cause of the injury sustained by him was the negligence of the defendant, the plaintiff can maintain an action, as is shewn not only by Tuff v. Warman17, and Radley v. London and North Western Railway Co.[20], but also by the well-known case of Davies v. Mann[21], and other cases of that class. The cases which give rise to actions for negligence are primarily reducible to three classes as follows:—
1. A. without fault of his own is injured by the negligence of B., then B. is liable to A. 2. A. by his own fault is injured by B. without fault on his part, then B. is not liable to A. 3. A. is injured by B. by the fault more or less of both combined, then the following further distinctions have to be made: (a) if, notwithstanding B.’s negligence, A. with reasonable care could have avoided the injury, he cannot sue B.: Butterfield v. Forrester[22]; Bridge v. Grand Junction Railway Co.[23]; Dowell v. General Steam Navigation Co.[24]; (b) if, notwithstanding A.’s negligence, B. with reasonable care could have avoided injurying A., A. can sue B.: Tuff v. Warman17; Radley v. London and North Western Railway Co.20; Dames v. Mann21; (c) if there has been as much want of reasonable care on A.’s part as on B.’s or, in other words, if the proximate cause of the injury is the want of reasonable care on both sides, A. cannot sue B. In such a case A. cannot with truth say that he has been injured by B.’s negligence, he can only with truth say that he has been injured by his own carelessness and B.’s negligence, and the two combined give no cause of action at common law.
I think the jury was entitled to find in this case the following facts: That the motorman became aware some time before the collision that if the deceased, Frank Long, continued in the direction in which he was going there was risk of collision between him and the car. He also became aware that the deceased was absorbed and quite inattentive to his surroundings. They were further entitled to take the view that if the motorman was a person competent to take charge of an electric car running on such a thoroughfare as Queen street, he ought to have realized (early enough to have enabled him to stop his car or to bring it under such control as would enable him to stop it without risk of injury to the pedestrian) that in the circumstances it was his duty not to assume the risk of proceeding without taking such measures. They were also entitled to find that Long in fact did not become aware of the proximity of the car until the moment he was struck or immediately before. As to the question, these facts being established, as between Long’s heedlessness and the motorman’s failure to do his duty in the circumstances, Long’s heedlessness was a direct or proximate cause of the accident, the broad common sense of the matter seems to dictate the answer that the negligence of the motorman (who saw Long’s failure to realize the peril of pursuing his course and his state of abstraction, and who ought himself to have realized the peril) was, to use the language of Lord Justice Lindley, quoted above, “the real and proximate cause of the accident.”
On the law the respondent’s contention is that, assuming the facts to be as just stated, the case is within the specific rule (a) enunciated in the passage quoted above from Lord Justice Lindley’s judgment as applicable to the third class of cases mentioned by him, viz., where A. is injured by B. through the fault more or less of both combined, then if notwithstanding B.’s negligence, A. with reasonable care could have avoided the injury, he cannot sue B.; and that it is not within the rule enunciated by the Lord Justice as Rule (b). It cannot be doubted that if we take the moment when Long stepped across the south rail, or the latest moment, whenever it was, at which by hurrying across the track he could have escaped the car, as being the crucial moment, and confine our attention to the physical possibilities of the situation at the moment so taken, the case appears to be literally within the Ian- guage of the rule (a). Co