Majority
The judgment of the Court was delivered orally by
MARTLAND J.
MARTLAND J.—The appeal in this case has already been dismissed with costs. It is now necessary to consider the cross-appeal.
We are all of the opinion that, in the circumstances of this case, the Court of Appeal was in error in finding the respondent to be partly responsible for the accident which caused her injuries. The issue of the case was mainly dependent upon the credibility of the witnesses on each side, and findings were made by the trial judge in favour of the respondent. In our view the Court of Appeal failed to give due weight to those findings, but, instead, elected to retry the case. It was not entitled to disturb the findings at trial unless the trial judge had made a palpable error. In our opinion he
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did not. The cross-appeal is allowed and the judgment of the trial judge is restored. The respondent is entitled to costs in this Court and in the Court below. The case is returned to the Supreme Court of Prince Edward Island for the assessment of damages.
Appeal dismissed with costs, cross-appeal allowed with costs, judgment at trial restored.
Solicitors for the appellants and cross-respondents: MacLeod & MacLeod, Charlottetown.
Solicitors for the respondent and cross-appellant: Farmer, Dalzell & Farmer, Charlottetown.
Footnotes
- [1] (1974), 6 Nfld. & P.E.I.R. 530.