Nance v British Columbia Electric Rly. Company Ltd

JurisdictionUK Non-devolved
Judgment Date1951
CourtPrivy Council

Negligence - Motor vehicle - Running-down accident to pedestrian - Plea of contributory negligence - Whether duty owed by injured party to party sued - Duty to act carefully - Death of injured party - Damages - Quantum.

At the trial before a special jury of an action for damages brought by the appellant against the respondent company in respect of the death of her husband, who was run into by a street-car and killed instantly, the trial judge directed the jury that before they could find that the deceased had been guilty of contributory negligence, as was alleged, they must find that he owed a duty to the respondent, and that he committed a breach of that duty and was therefore negligent. The jury negatived contributory negligence and found the respondent company solely to blame.

Held, that there had been misdirection.

When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself, and contributed, by that want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

This, however, is not to say that in all cases the plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully. Generally speaking, when two parties are so moving in relation to one another as to involve risk of collision, each owes the other a duty to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle. When a man steps from the kerb into the roadway he owes a duty to traffic which is approaching him with risk of collision to exercise due care.

Dictum of Denning, L.J., in Davies v. Swan Motor Co. (Swansea) Ld., [1949] 2 K. B. 291, 324, that “when a man steps into the road he owes a duty to himself to take care for his own safety, but he does not owe any duty to a motorist who is going at an excessive speed to avoid being run down”, if it is to be interpreted in a contrary sense, disapproved.

In the light of the summing-up as a whole, however, the misdirection in the present case could not be regarded as vitiating the conclusion of the jury, and their verdict that the respondent was alone to blame should stand.

A plea that a plaintiff was guilty of contributory negligence should be treated as setting up want of care by the plaintiff for his own safety, whether in the circumstances of the accident the plaintiff owed a duty to the defendant or not.

Observations on the factors to be taken into account in assessing the quantum of damages.

Judgment of the Court of Appeal for British Columbia varied.

APPEAL and CROSS-APPEAL (No. 26 of 1950) from a judgment of the Court of Appeal for British Columbia (February 23, 1950) allowing in part an appeal from a judgment of Whittaker, J., (June 24, 1949) on the trial of an action before a special jury, in which the appellant claimed damages in respect of the death of her husband on January 18, 1949, through being knocked down and instantly killed by a street-car driven by a motorman employed by the respondent company.

The following statement of the facts is taken from the judgment of the Judicial Committee: The appellant brought the action out of which this appeal arose under the Families Compensation Act (R. S. of B. C. 1948, c. 116) on her own behalf and on behalf of the children and step-children of the deceased, and alleged that her husband's death was caused by the negligence of the motorman, for which the respondent company was responsible. The jury so found, awarding damages of $35,000, and in the subsequent proceedings the company's liability for negligence was admitted. The company, however, had pleaded in its defence that the negligence of the deceased was a contributory cause of his death. The Contributory Negligence Act of British Columbia (R. S. 1936, c. 52) provides that 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 shall be in proportion to the degree in which each person was at fault, provided that if it is not possible to establish different degrees of fault, the liability shall be apportioned equally. Consequently, if the company made good its allegation of the deceased's contributory negligence, it would be liable for only a portion of the damages awarded.

The accident occurred between 11 p.m. and midnight near the intersection of Kingsway, a main thoroughfare of Vancouver running approximately east and west, and Gladstone Street, which ran approximately north and south. Along Kingsway a double pair of rails was laid to carry the respondent company's street-cars. Kingsway was 55 ft. wide between the kerbs, and the roadway of Gladstone Street was about 30 ft. across. There was deep snow on the ground, but snow-ploughs had cleared the snow along the middle of Kingsway up to 8 ft. of the kerb on either side, thus leaving a central hand of swept surface occupied by the rails and the “devil strip” between them (in all 15 ft.), and also a selvage of a further 12 ft. on either side of the rails. The whole of the swept surface was slippery from ice, and the piled snow between that surface and the kerbs, though at a higher level, was somewhat trampled down where foot-passengers had previously crossed. The whole area was well lighted. There were no traffic lights to regulate the crossing of foot-passengers or vehicles at the intersection.

The appellant and her husband began to cross Kingsway from the north-east corner of the intersection, being on his left and holding his left arm. He was a very tall and heavy man, and somewhat lame. The pair could only proceed across the road at a “slow shuffle”, with some slipping on the snowy and icy surface. It was in dispute whether they were crossing at right-angles or were inclining their course slightly to their left.

The street-car pulled up on reaching the intersection to take on four passengers, who could be seen to be waiting near the south-west corner to board it. The appellant and her husband had already gone some way in crossing the road and were continuing to do so, when the motorman, without warning, restarted the car and it advanced rapidly towards them, knocking the deceased down, just before he got clear of the southernmost rail, with such violence that his body projected his wife forward clear of the track, and she also was injured. The distance travelled by the car after restarting, before it collided with the deceased, appeared to have been no more than some 75 ft., and the car, which was 44 ft. long, then pulled up within two lengths. The car was of a new type, which could very quickly pick up a high speed amounting to 30 miles an hour. The motorman was the only employee on that type of car and consequently had to take fares and supply tickets, as well as to drive the car. There was evidence that, at the time of restarting, he was giving a ticket to one of the passengers, and he admitted that he never saw the injured couple at all, although they would have been clearly within his vision if he had looked.

The jury answered in the negative the question whether the deceased was guilty of negligence which contributed to the accident. Judgment was therefore entered for the appellant for the full amount of $35,000. The company appealed to the Court of Appeal on the ground that the finding of the jury that the deceased was not guilty of contributory negligence was unreasonable and perverse and against the evidence, and further contended that a passage in the summing up of Whittaker, J., concerning that issue was wrong in law and that the jury would not have found as they did if, in that matter, they had been properly directed.

The passage in the judge's charge which was complained of was as follows: “Before you can find that Nance was guilty of contributory negligence, you must find that he owed a duty to the defendant, and that he committed a breach of that duty, and was, therefore, negligent”.

The three members of the British Columbian Court of Appeal (Sloan, C.J., O'Halloran and Sidney Smith, JJ.A.) were unanimous, for different reasons, in holding that the award of $35,000 could not stand. The Chief Justice was for reducing it to $20,000 (subject to a further reduction to $12,000 in respect of contributory negligence which he found proved); Sidney Smith, J.A., who did not find contributory negligence proved would have awarded $12,000; and O'Halloran, J.A., would have left the figure to be determined at a new trial on materials more adequate than those available at the actual trial. Both parties appealed.

1951. April 17, 18, 19, 20 and 23. David A. Sturdy (of the Canadian Bar) for the appellant. There was no misdirection. The trial judge correctly stated the law as to the duty of the deceased in the circumstances of the present case. He discussed the statement of defence, which alleged contributory negligence, the defence as disclosed in the course of the trial, and, exhaustively, all the individual conditions which existed at the time. [In connexion with the charge to the jury reference was made to Swadling v. CooperF1, Jones v. Canadian Pacific Ry.F2, Caswell v. Powell Duffryn Associated Collieries Ld.F3...

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