Reynolds v. C.P.R.

J.-In this case two actions by the appellants against the Canadian Pacific Railway Company were tried together before Mr. Justice Grant and a jury. The verdict was in favour of the appellants, but was set aside by the Second Appellate Divisional Court and the actions were dismissed.

The plaintiff Reynolds (now represented by his executors, for he died since the trial) was driving a Ford motor car along Craig road in the county of Frontenac, on November 13, 1925, his wife occupying with him the front seat and Mrs. Mary Craig and her daughter the rear one. They all resided in the vicinity, and knew that a train of the defendant company travelling to the north would cross Craig road, at a point called Doucet's Crossing, at about half-past twelve in the afternoon, and they had left their homes shortly before that hour. The railway line (the old Kingston and Pembroke single-track railway, acquired by the defendant in 1913), immediately to the south of the crossing, passes through a cutting made in the side of a hill, the east bank of which, at the time of the accident, was said to have intercepted the view of a train coming from the south, and all the plaintiffs must have known that the crossing was dangerous. Reynolds approached the crossing without reducing his speed, which he stated was about twelve miles an hour. When he was twenty or twenty-five feet from the rails, Mrs. Craig called out " There's the train." Reynolds applied the brakes, but the car had almost touched the rails when it stopped, and in Reynolds' endeavour to back it before re- C.P.R.

leasing the brakes, his engine stalled, so that the front part of the car was struck by the pilot of the locomotive and the plaintiffs were injured. They all claimed damages, Reynolds and his wife in one action, and Mrs. Craig and her daughter in another.

Three grounds of negligence were particularized: 1. that the locomotive had not whistled at the whistling post a quarter of a mile from the crossing; 2, that the bell had not rung; 3. that the persons in charge of the railway threw up or maintained an embankment on the east side of the track in a manner to obscure the view of a train coming from the south.

The learned trial judge instructed the jury that if they found both the plaintiffs and the defendant guilty of negligence contributing to the accident they should, under The Contributory Negligence Act, Statutes of Ontario, 1924, c. 32, apportion the total amount of the damages according to the degree in which each party was in fault.

The jury answered the following questions put to them by the learned trial judge:- 1. Question: Was the defendant railway guilty of negligence causing the accident?

Answer: Yes.

Answer: Whistle not blown at whistling post, maintaining banks that obstruct view of train coming from south. 3. Question: Could the plaintiff, Thaddeus L. Reynolds, by the exercise of reasonable care, have avoided the accident?

Answer: Yes.

Answer: Partially to blame in neglecting to ascertain the time that train was due at crossing.

Answer: No.

The seventh question asked the jury to assess the total damages of each of the plaintiffs. The answer was:- T. L. Reynolds, $10,900.

Sarah F. Reynolds. No damages given at all.

Mary Craig, $1,100.

Jeannette Craig, $50.

(c) of the defendant railway-75 per cent. The learned trial judge called the attention of counsel to the unsatisfactory character of the answer to question 4, but neither of them asked the judge to direct the jury to reconsider their answer in order to have the matter made clear. On the findings judgment was rendered in favour of Reynolds for $8,175, being 75 per cent. of his damages, and in favour of Mary Craig and Jeannette Craig for $1,100 and $50 respectively.

The defendant having appealed to a divisional court, the plaintiff, T. L. Reynolds, cross-appealed seeking to have the finding of contributory negligence against him set aside. The main appeal was allowed and the two actions were dismissed.

The cross-appeal of T. L. Reynolds was rejected.

Reynolds' executors and Mary Craig alone have appealed from this judgment. There is no appeal by Jeannette Craig.

With great respect, we think that the judgment of the appellate court setting aside the finding of the jury that the locomotive had not whistled at the whistling post as required by the statute cannot be sustained.

Not only was there evidence, usual in such cases, that the whistle had not been blown at the statutory distance from the crossing, given by persons who deposed that they were paying attention and were in a position to hear and would S.C.R.

have heard had it been sounded, but there was not a little confusion on the part of some of the witnesses-notably .

Walworth, Margaret Doucet, Clow and wife, and Kenyon C..

-as to whether there had been more than one whistle signal given before the train passed over the crossing and as to whether the signal, if only one, was given at the whistmignal j. ling post or immediately before the accident when the train was only a few yards from the crossing. The questions whether more than one signal had in fact been given and whether a whistle signal had been sounded at the whistling post, as prescribed by the statute, could not properly have been withdrawn from the jury, and the evidence, in our opinion, is not so overwhelmingly in favour of the view that the statutory signal was given that we should sustain the judgment setting aside the jury's finding to the contrary (Laporte v. Canadian Pacific Ry. Co. (1).)

Scores of verdicts based on similar evidence have been sustained on appeal.

As to the other ground of negligence found by the jury, that the defendant had maintained an embankment on the east side of the railway in a manner to obscure the view of a train coming from the south,-after a full hearing and consideration of the evidence relied on by the parties, we incline to the view that even if the existence of the bank along the railway, caused by the cutting made through the hill and any necessary cleaning out of the ditch, could be regarded as negligence in law, there was no foundation in fact for the finding that the bank maintained by the railway obstructed the view of a train coming from the south. The construction of the railway at this point no doubt required that the hill should be cut through. It is true that some witnesses asserted that the east bank of this cutting was increased in height by throwing on it materials taken from the ditch when from time to time it was cleaned out. But we are not in position to say that the defendant company in any way acted negligently with respect to the sides of the cutting, even granting that some material may have been thrown on either bank in the normal cleaning out of the ditches. Moreover the photographs filed at the trial graphically shew that what obstructed the view of the railway from the approach by Craig road, was not the eastern bank of the cutting, but the hill itself which extends beyond the right of way of the defendant, and is higher on the adjacent property than it is on the railway right of aV.R. way.

T. L. Reynolds and the defendant.

We have therefore come to the conclusion that a new trial of Reynolds' action must be directed, which shall proceed as if this action had been brought by his executors under the Revised Statutes of Ontario, 1914, c. 151.

The unsatisfactory character of the answer of the jury to question 4 renders it advisable that the new trial be not restricted to the apportionment of damages, but should take place generally on all issues.

This does not mean that we think that Reynolds should be absolved from contributory negligence in approaching the crossing as he did. We express no opinion on that point which will be a matter for the jury's consideration.

We see nothing that could justify a finding of contributory negligence against Mary Craig, who has obtained leave to appeal, her recovery being under the appealable amount. Her appeal, therefore, will be allowed with costs here and in the appellate court, and the judgment of the trial court in her favour restored.

Reynolds' executors should have their costs in this court but should pay the defendant's costs in the Appellate Divisional Court, with set off. Costs of the abortive trial in Reynolds' case will abide the event of the new trial.

,Appeals allowed with costs. New trial ordered of Reynolds' action.