The appellant's motor " bus " was being driven down a steep incline on a frosty and foggy morning, the street being in an icy condition, when the driver saw that a street car had stopped in front of him. He tried to stop the " bus " and in order to avoid a collision ran it sharply to the right over the curb and sidewalk, struck a telephone pole and injured the respondent who was a passenger in the bus. The trial judge held that "having regard to the conditions, the short range of visability, the fact that there was a street car line upon the road, and the condition of the pavement, as it was, or ought to have been known to the driver, the motor bus ought to have been and might have been kept under such control that it could have been stopped without doing any damage," and he gave judgment in favour of the respondent, which judgment was affirmed by the Court of Appeal.
Held that there was not sufficient evidence to support the finding of the trial judge. Under the circumstances of this case it cannot be reasonably said that the driver knew or ought to have known the icy condition of the pavement, as he had been faced with an unexpected situation such that, had it not existed, no difficulty would have been experienced in negotiating the hill.
Judgment of the Court of Appeal ([1927] 2 W.W.R. 692) rev. APPEAL from the decision of the Court of Appeal for British Columbia (1), affirming the judgment of the trial judge, D. A. McDonald J. (2), and maintaining the respondent's action for damages for personal injuries caused by negligence.
The material facts of the case, as stated by the trial judge and his findings on the evidence are the following: " This is an action for damages for injuries suffered by a passenger proceeding from Port Moody to Vancouver in a motor bus operated by the defendant for hire.
"The decision of the case rests not I think upon the credibility of any of the witnesses, for I believe that all the witnesses told the truth, as best they could, but rather *PRESENT:-Anglin CJ.C. and Mignault, Newcombe, Rinfret and Smith JJ.
(1) [1927] 2 W.W.R. 692.
(2) (1926) 38 B.C. Rep.
Cases cited
- 2 W.W.R. 692 2 W.W.R. 692