Price v. B.C. Motor Transportation Ltd. and Ledbury

the judgment of D. A. McDonald J. in favour of the plaintiff (and of the infant children of the deceased, on whose behalf also she sued) in an action for damages for the death of the plaintiff's husband in a collision which occurred about 8.40 o'clock a.m. on September 1, 1929, on Connaught Bridge, Vancouver, between his automobile and a motor bus of the defendant company which was driven by the defendant Ledbury. The Court of Appeal set aside the judgment of D. A. McDonald J., and dismissed the plaintiff's action. The material facts of the case are sufficiently stated in the judgments now reported. The appeal to this Court was dismissed with costs, Anglin C.J.C. and Cannon J. dissenting.

J.-The one question in this appeal is, was there evidence on which the trial judge could find the respondents guilty of negligence causing the death of the late A. F. Price, the plaintiff's husband? The injuries received by Price resulted from a collision between a 29 passenger bus belonging to the respondents the B.C. Transportation Limited, driven by the respondent William Ledbury, and a Star touring car driven by Price. The collision took place on Connaught Bridge which connects the north and south shores of False Creek-an arm of the sea-in the city of Vancouver. In the middle of this bridge is a swing span or draw, which opens to permit the passage of water traffic. This span is 264 feet long and the bridge is a little over 57 feet wide. On each side of the bridge is a steel hand railing, 4 feet high. Next to the railing on each side is a sidewalk, feet 9 inches in width, then a roadway for vehicular traffic, 8 feet 9 inches wide. On the inside of each roadway there is a steel parapet consisting of three horizontal steel J. girders, 2 feet 4 inches in thickness, with flat steel bar lattice work in between. These parapets extend to a height of from 15 to 20 feet and continue throughout the entire span. In the centre of the span on the top of these parapets is the bridge tenderer's house from which he commands a view of the span. The space between these parapets is 21 feet 6 inches wide and on this space two street car tracks have been laid. It is common ground that if there were no street cars passing along this space both busses and motor cars travel between the parapets. Also that at the time of the accident the bridge was very slippery and it was raining heavily.

As the trial judge pointed out, the plaintiff in this case is in the unfortunate position of having to rely upon the evidence of the respondent Ledbury for an account of the manner in which the accident actually happened, as well as of the occurrences immediately preceding it. The deceased, Price, did not recover consciousness after receiving his injuries, and no one, so far as the evidence discloses, other than himself and Ledbury, saw the accident. Ledbury's story shortly is, that he was on his way north to the Canadian Pacific Railway depot to pick up his passengers and had to cross Connaught Bridge; that when he reached the centre span, there being no traffic on the bridge, he took the inside route on the east side; that he had his right wheels between the most easterly street car rail and the easterly parapet, and his left wheels between the rails of the most easterly track; that when he got to the centre of the span or a little past he saw an automobile coming towards him which was then approximately about 200 feet from the north end of the span but, as it was on the westerly car track and there was room for them to pass each other, he kept on; that when he got almost to the end of the span another car, which he had not seen before, pulled out to the left from behind the automobile, apparently with the intention of passing and getting into the span ahead of it; that it got almost alongside of the automobile when its driver-who later was found to be Price-noticed the bus Pan approaching and evidently put on his brakes to check his B.C. 'i-ron speed and get back behind the automobile, with the result TRAHsthat Price's car, which was a light Star touring car, commenced to skid and also to come over to the east. Ledbury LEDURY. says that when he saw the Star car turn out he took his foot lamont J. off the accelerator and put it on the brake; and when he saw it skidding in front of him he applied his brakes, but, notwithstanding the application of the brakes, the bus " went right on a certain amount ahead "; that, as the Price car was now over on his side, he realized that a collision was inevitable if he kept going on, so he turned his wheel to the left and " tramped on everything " he had in an attempt to get clear but, just as he turned, the impact took place. As to what happened to the Star car he had no knowledge, but he himself with his bus shot ahead and went over the west side of the bridge and fell 50 feet to the flats below. The bus alighted upside down with Ledbury underneath. Fortunately he was not killed but he spent two months in the hospital.

I cannot blame him at the immediate moment before the accident for having decided to turn to the right or to the left. One has not the time to give it proper consideration. Nevertheless I fix him with liability in this case and on this ground. I think his car was out of control shortly before the time of the impact. He himself states that even on that day and under those conditions and on that street and with that bus at fifteen miles an hour he could stop in from thirty to thirty-five feet. Later on in his cross-examination, he went further and said that even at twentyfive to thirty miles an hour he could still stop on that street, on a wet street within thirty to thirty-five feet. Now, if so, and accepting his own evidence, in my opinion he ought to have and he could have stopped his car when he saw Price turn out, as Price had a right to do, or at least he ought to have slowed his car down and he could have done so on his own evidence, to such an extent that he had it under absolute control, and if he had done either, I am satisfied that this accident would not have happened.

(1) 44 B.C. Rep. 24; [1931] 2 W.W.R. 350; [1931] 3 DL.R. 548. None of the judges of the Court of Appeal found any evidence to support the view that the bus was " out of con- B. Mor trol " shortly before the impact and, in my opinion, there is evidence upon which that finding can be upheld. I as am also unable to agree with the learned trial judge that Price had a right to attempt to pass the car in front of him at the entrance of a narrow passageway (21 ft. 6 inches) without first ascertaining that there would be room to get by, which there would not be if either a bus or a street car were crossing the span to the north and opposite the automobile.

The distance from each parapet to the nearest street car rail is 3 feet 3 inches. The rails of the street car are 5 feet apart, which is also the width of the devil strip. Ledbury says the automobile was running 'with its right wheels just over the westerly street car rail, and that he had his bus in the same position on the east side. The distance between the east and west street car rails is 15 feet. The bus was 8 feet 8 inches wide, while the width of the automobile, although not stated in the evidence, would not be less than 6 feet. With the right wheel of each vehicle just over the street car rail on their respective sides, it is clear that there would be no room for the Star car to get between them. To attempt to pass while both were approaching the entrance of the span, without first seeing that the road ahead was clear, was not the part of a prudent or cautious man.

Price being guilty of negligence contributing to the accident, the question arises whether or not the plaintiff's action is maintainable under the Families' Compensation Act. Without deciding the question I will assume that it is. In his dissenting judgment Mr. Justice M. A. MacDonald said:- I agree that Ledbury was not called upon to act when he saw the Star car turning out to pass unless it was so close to him as to make a collision probable. Ledbury had a right to expect, as he says he did expect, that on seeing the bus the driver of the Star car would check his speed and pull back behind the automobile. It was, therefore, only when he became aware, or should have become aware, that Price did not intend or was not able to get back into line that B.c. Ledbury had the duty cast upon him of taking whatever steps he could to avoid a possible collision.

The learned judge also said:- Assuming that the bus and plaintiff's car were 50 or 60 feet apart at the time Ledbury realized there was danger of a collision, I am, with deference, of opinion that the conclusion that he had that distance in which to stop his bus is not warranted. It is based on the assumption that Price's car was not skidding south to meet him. Ledbury says it was. The pavement was wet, the car was equipped with hard pressure tires which skid more easily than balloon tires. According to Ledbury the rear end skidded south until the front was pointing east. The question is, at what rate was it skidding south? If it was going south as fast as the bus was going north Ledbury did not have 50 or 60 feet in which to stop his bus, but only 25 or 30 feet. If the Price car was skidding south at a faster rate than that at which the bus was going, he would not have even that distance. Now, it is a well known fact that cars do sometimes skid rapidly and by skidding turn completely around. There is absolutely no evidence as to the rate of speed at which Price's car was skidding south and, in the absence of such evidence, it is, in my opinion, impossible to say that Ledbury, after becoming aware of the danger, could have stopped his bus in time to avoid a collision.

On the argument before us, counsel for appellant also contended that there was evidence from which an inference could be drawn that the bus was being driven at an excessive rate of speed. Ledbury says he was driving across the span at 20 or 21 miles per hour; that when he saw Price's car turn out to pass the automobile, it was about 100 feet from the north end of the span. At that moment he was still in the span but almost at the end of it; that he slowed his car to 15 miles per hour; that when he saw Price's car PRICE over on the car track on which he was driving, he applied B.C. Moron his brakes and had, he thinks, practically stopped before TsAs- the impact. Ledbury, it is true, makes a number of inconsistent statements: for instance, in one place he states that when the impact took place his bus was half in and half Lamot J. out of the span. In another place he says the collision took place 50 or 60 feet north of the span. He says in one place that at 15 miles per hour he could have stopped the bus in 30 or 35 feet, and, in another place, that at 25 or 30 miles per hour he could have stopped it in 35 feet.

Fortunately, however, we are in a position to fix by independent evidence some of the more material points bearing upon the accident. We have the evidence of Bennett, the bridge tenderer, who heard the crash of the collision while in his house, and immediately looked out. The trial judge accepted Bennett's testimony and we must give it full effect. Bennett did not see the collision, but when he looked out he saw the Star car turning around to the left and it finished by facing in a southerly direction, having made a complete circle. He also saw the gray bus which was on the devil strip. His evidence is:- The Couar: Q. You saw the Gray bus travelling along, going north? -A. Yes, towards the west side of the road.

Q. How far, having regard to the west street car tracks?-A. It travelled right from the east side to the west side, or I might say, from the centre of the span to the west side of the street. When I saw it first it was in the centre of the span.

Q. Had it got off the span?-A. I wouldn't say whether it was just at the outside edge of the span.

Q. Just get it clear when you saw it first?-A. It had just gone off the span and travelled to the west side of the road.

Q. Then pointing north?-A. Yes.

Q. And as from east to west where was it, say, with reference to the devil strip?-A. It was on the devil strip when I saw it.

Q. When you first saw it?-A. Yes.

Q. Then what happened?-A. It travelled right to the west side of the road, and the girder-work took it from my sight.

Q. Did you observe the roadway, the surface of the bridge, rather. Did you look to see if there were any marks on it?-A. Oh, yes, casually I glanced round.

Q. Were there any marks?-A. I didn't see any marks whateveroh, yes, I saw where the Star car had swung around.

Q. Where was that, on the west or east side of the bridge?-A. Around about ten feet away from the gate, lower down on the span on the north end.

Q. And how far from the sidewalk?-A. About six or eight feet. Bennett's evidence fixes definitely the place of impact at about 10 feet north of the span. This accords with the pCE statement of Ledbury that at the moment of the impact his bus was half way out of the span-his bus being 29 feet long. It establishes also that the Star car spun around to the left and ran against the steel buttress at the end of the west parapet, throwing Price to the sidewalk. At this time J the bus was on the devil strip going northwest.

Then we have the evidence of Caulfield, who, at the time of the accident, was walking north on the sidewalk of the bridge with a Mr. Hill, since deceased.

Caulfield says the bus entered the span well over on its own side and was travelling at an ordinary rate of speed. He says he heard a crash and climbed through the girders to the inside of the span to see what had happened. He saw the Star car turn around and then come to " the west side of the span at a kind of an easterly triangle next the roadway." It struck the north end of the parapet on the west side of the bridge, throwing a man to the sidewalk, and bounced back in a northeasterly direction, a distance of 6 feet; that at this time the front of the bus was about the middle of the west street car track and was to the north of the Star car.

As the impact took place ten feet north of the span and prior to the time when Bennett saw the bus on the devil strip pointing northwest, and as the Star car swung clear around in a circle to the west side of the bridge, the manner in which the impact took place may, in my opinion, be reconstructed with reasonable certainty. Two witnesses were called by the plaintiff to give their views as to how it must have occurred. The first was K. S. Patrick, the plaintiff's father and a civil engineer. He testified that he had examined the Star car three days after the accident and found that the right fender had been crushed in and the hood dented on its right side and the engine and everything underneath was badly pushed back. He said that he figured the Star car was going southeast and, from the markings on the hood, the bus must have been going north and a little to the east, for the car was hit on the right-hand front corner. His evidence is:- On cross-examination Patrick said that after the impact the bus would be "going northwest but more to the west I Li-y fancy."

Then we have the evidence of Alexander Bell, a police officer who was at the scene of the accident a few minutes after it occurred and who came to certain conclusions as to how the accident happened from seeing the condition of the Star car and from questioning the people who were present when he arrived, and also by questioning Ledbury in the hospital.

He gives the following testimony:- No witness saw the marks on the bus where it came in contact with the Star car, for, as soon as Ledbury was removed from under it, the owners had it taken away by a wrecking crew as the tide was coming in.

Viewing the evidence as a whole, I think the reasonable conclusion is that Ledbury saw the Star car turn out to pass the automobile when it was about 100 feet from the north end of the span, as he says; that when Price saw the bus he realized the impossibility of passing the automobile and applied his brakes; that on applying the brakes, the pavement being slippery, his car commenced to skid and he went skidding forward and a little to the left until the front of his car was pointing east, or perhaps north of east, when it received a glancing blow either on the side of the car or on the engine from the left front end of the bus and was sent spinning around to the left, while the bus, which a moment before the impact, had been turning to the left, proceeded in a northwest direction until it went over the edge of the bridge. Ledbury's suggestion that the right half of the bus hit the right half of the Star car is not consistent with the facts established by Bennett and other witnesses and must, pCE in my opinion, be disregarded, as I think we must disregard the statement he makes in one place that, just prior to the impact, his front end was facing west. His statements as to what occurred just at the time of the accident shew that he had no clear recollection of the events, and that perhaps is not to be wondered at. He admitted that in the hospital he had been trying to work out in his mind how the accident must have occurred, and it may be that in endeavouring to reconstruct the final scene he failed to keep clear and distinct the line of demarcation between what he actually remembered and what, in his enfeebled condition, he imagined must have happened. As I read Ledbury's testimony, it is not that of a man who is wilfully endeavouring to mislead the court, but is that of a man who, until the moment his mind became affected by the agony of the collision, has a clear recollection of what actually happened, but who from that time has only a confused remembrance of the events which took place, and says so, but in answer to questions states what he thinks happened. Weighing his evidence upon that footing or even disregarding his entire testimony from the moment he became aware that Price was not able to get his car back into line behind the automobile, I am unable to find any evidence that he was at any time driving at an excessive rate of speed.

Then can any inference be drawn from the events which happened?

Taking Ledbury's statement, from which he has never varied and upon which no doubt has been cast, that the Star car turned out to pass the automobile when it was about 100 feet from the north end of the span and that at that time he " was in the span almost coming out " or " practically at the end of the span," as he says in another place, we know that Price travelled 90 feet to the point of impact, while the bus travelled the 10 feet from the end of the span plus the distance the front of the bus was back from the north end of the span, at the moment Price turned out. The bus, therefore, must have travelled a much shorter distance than the Star car to the point of impact. The relative distance travelled by the two vehicles supports Ledbury's statement that he had slowed down considerably, and it may be that he had practically stopped, for who can say that if a light car (weighing only 1,190 pounds), skidding rapidly on wet asphalt, comes against a five and a half ton bus almost stationary, the impact would not produce the same result as we have in this case fra h a so far as the Star car is concerned? To my mind the result of the collision is just as consistent with the rate at which Lam.tJ. Ledbury says he was driving as with the suggestion that he must have been going much faster.

In my opinion the decision of the Court of Appeal was right and the appeal should be dismissed with costs. C.J.C. (dissenting) .- I have given this case very thorough consideration, having read every word of the record through once at least, most of it twice, and some parts of it, notably the testimony given by Ledbury, three or four times. After carefully digesting the evidence of Ledbury, I am satisfied that he is an utterly unreliable witness, either because of a disinclination to tell the truth, or, more probably, because of inability to recollect the material facts due to his physical condition immediately following the accident. Of this witness, I take much the same view as did the learned trial judge, who appears to have accepted his testimony only when given against himself, or when corroborated, or entirely in accord with facts otherwise proved. In my opinion, therefore, the proper course will be to examine this case on the independent testimony and on Ledbury's evidence where he makes admissions against his own interest, or where his statements are fully corroborated and also, where they are wholly consistent with facts,. either admitted, or otherwise satisfactorily proved.

Adverting to the reasons given for the judgment of the Court of Appeal (1), I find that of the majority, who allowed the appeal, Macdonald, C.J.B.C., contented himself with stating that " there is no evidence upon which a judgment can be supported."

Martin, J.A., merely agrees in allowing the appeal, giving no reasons for his conclusion. Only two judges of the majority give reasons-McPhillips and Galliher, JJ.A. The former said, " the onus probandi rested upon the plaintiffs to make out their case beyond any reasonable doubt" (1).

With respect, there is here a clear misdirection (Cottingham v. Langman (2) ) of himself by paRce the learned judge, practically at the outset of his judg- B.C. 191020. ment, on a vital point. He applies to this civil case a rule TRahsapplicable exclusively to the Crown's case in a criminal LTAND prosecution. (Clark v. The King (3) ). The learned judge assumes all the facts as deposed to by Ledbury in the defendant's favour. He even goes further. For instance, he says,- The motor car was, when first seen, upon its proper side following another motor car and when the vehicles were somewhere about 50 or 60 feet apart the deceased. driving the motor car turned out to pass the motor car ahead of him, etc.

although Ledbury himself says that he did not see the deceased's motor while it was following the preceding car nor, indeed, until it was turning out to pass the preceding car, and adds that there was then about " 100 feet " between " the end of the span" and the car which preceded the deceased's motor car, which would imply that there must have been well over 100 feet between his omnibus and the deceased's motor car at that time. This latter fact is also asserted in the respondent's factum. From the assumption thus made, the learned judge draws the inference that the driver of the motor bus was placed immediately in the "agony of collision " and he vainly in an attempt to avoid a collision turned sharply to the west-but in so doing struck the motor car a glancing blow on its right side.

The learned judge continues:

the motor bus, in thus attempting to avoid the motor car, mounted the board walk which runs along the west side of the bridge and crashed through the bridge rail, ignoring the all-important fact, that the omnibus actually went through the bridge rail at a distance of 86 feet north of the point of collision, as will presently appear.

Having thus dealt with the facts, the learned judge proceeds:

Upon these facts must be gleaned some sufficient piece of evidence which can reasonably establish that the driver of the motor bus was reasonably at fault and was guilty of some negligence that can be said to have been the proximate cause of the accident or rather was it upon all the facts inevitable accident produced by the conduct of the driver of the motor car?

(2) (1913) 48 Can. S.C.R. 542, at (3) (1921) 61 Can. S.C.R. 608, at 626-7.

Mr. Justice Galliher would seem to have based his judgment largely on Ledbury's discredited evidence. Upon it o he finds as a fact that Ledbury realized it was getting dangerous when the other car continued coming over in front of him and not straightening out at a time too late to take effective action.

LEDBURY. Speaking of Ledbury's evidence as to his ability to stop An within thirty to thirty-five feet under the circumstances then existing, when going 15 (or even 25) miles per hour, he says:

His answer as to stopping within 30 to 35 feet at 15 miles an hour should not be taken with regard to the situation as it had arisen as deposed to but that if called upon to come to a stop ordinarily under the condition of the pavement that morning he could do so in that distance. He adds that if liability cannot be fixed upon Ledbury on his own testimony then I consider no case is made out by plaintiff.

He finally bases his judgment largely on the view that the learned judge below misconceived the effect that should be given to the answer as to the distance in which Ledbury could have stopped his car.

Of course, if one should assume all the facts to be as deposed to by Ledbury, the appellant's case would be at an end.

In his dissenting judgment, Mr. Justice M. A. Macdonald refers to the testimony at some length and comes to the conclusion that, on the whole case, there was enough to warrant the finding that accepting the evidence of appellant's driver his negligence * * * (was) the substantial cause of the accident.

He also finds that it was because of the negligent driving of the deceased that his car skidded or drifted in front of the motor bus, but, he adds, that after that happened " he was helpless" and the only person who could have avoided the accident was the " appellant's driver (then) fifty or sixty feet away." He holds the latter bound by his answer that, on the occasion in question, " he could stop in thirty or thirty-five feet " and finds that he negligently adopted a course which did not prevent the accident, a course which if successful would allow him to proceed without loss of time (and there was some slight evidence that he was in a hurry) whereas he might have adopted another course, viz., to stop, that would effectually prevent it. Even if he only reduced his speed the impact would be slight.

It is common ground that the collision occurred on the Connaught bridge in the City of Vancouver on the morning of Sunday, the 1st of September, 1929, about 8.40 o'clock, between a Star car driven by Price, the deceased, and a motor bus of the defendant company in charge of one Moo Ledbury.

The precise point at which this collision occurred is, however, in dispute, the appellant claiming it was at the exit from the swing span and within the arms or uprights of the latter, the defendants claiming that the actual place of impact was some fifty feet north of that point. The only satisfactory evidence on this particular matter is given by Bennett, of whom the learned trial judge says that he accepts his evidence,- The learned judge had, by consent, taken a personal view of the bridge.

Bennett, the bridge tender, who was in his house situated above the middle of the bridge, although he did not see the actual collision at the moment of the crash, tells us that his atteiition was immediately drawn to the colliding cars. On going down to the bridge below he found marks upon the surface of the bridge indicating where Price's Star car had spun around immediately upon its being struck by the oncoming bus. These marks were at a distance of about 10 feet north of the northern upright of the bridge and indicate fairly closely the actual point of impact. This evidence was substantially corroborated by Caulfield, who said:

Upon this evidence, I find as a fact that the impact occurred at a point about 10 feet to the north of the swing span, or draw, of the bridge and some 86 feet south of the place where the motor bus eventually crashed through the rail on the west side, at a point by actual measurement 96 feet north of the north end of the draw-span.

Ledbury in at least two places confirmed this view when, in his examination for discovery, he said:

time being and I didn't really notice it, but it came into the draw anyway-because he was coming into the draw, and this other car went to go around him to get into the drawand again,

Q. You were clear of the draw, weren't you, before the impact?-A. I wasn't quite clear of the draw. Half of the car was outside the draw. - It is also common ground that, prior to the accident, the motor bus was going north and the Star car going south. The rate of speed of the motor bus, however, is not conceded. Ledbury admits he may have attained a speed of 21 miles per hour:

Q. Will you swear positively you were not going more than 20 miles an hour?-A. I won't swear positively I was not going more than 20 miles an hour. I might have been going 21 miles an hour.

On the other hand, the witnesses, Caulfield and Philp, both called for the defence, do not attempt to fix the precise speed. Caulfield, however, said:

Q. Cars on the bridge usually travel pretty fast?-A. Pretty sharp. They all do.

Q. You have observed that yourself?-A. Yes.

Q. Was this bus at the time you saw it, holding its own with the general rate of traffic?-A. I don't know. It was travelling no faster than they do when the bridge is full of traffic.

Q. What speed do they maintain?-A. Across the bridge as best they can, I suppose.

Q. But you are a man that has observed cars on the bridge, apparently. Do they travel rapidly, or very slowly on the bridge?-A. I don't know. They travel no faster on that bridge than they do on any ordinary highway, I don't suppose.

Bennett gave the following evidence:

Q. Did you hear anything before you heard the crash?-A. I might say just prior to the crash something came along at what I term a good rate, a high rate of speed.

The CouRT: Q. You mean by the sound of the engine?-A. Yes, the sound it made at the end of the span. We have cover plates that cover the gap over, and when anything hits that it gives a severe jar. I heard that and then the smash of the crash. That is what brought it to my mind that it was travelling very quick.

Mr. SiNNor: Q. I am not quite clear, Mr. Bennett, about the large bus. Was that the bus from which you heard the sound?-A. Yes. Q. Was there any other bus there?-A. There was nothing else. I didn't see any other on the street at all.

Q. But does a heavy vehicle going fast make a different noise to a heavy vehicle going slowly?-A. Yes, it gives a different jar.

Mr. MArrSAND: Q. His lordship has put a suggestion now and I presume that your lordship means that you are going to have a view. The Cour: Yes.

Upon the whole case, I am satisfied that Ledbury had actually attained a sped of between 23 and 25 miles per hour rAIoz and that the Star car was coming towards him about equally fast.

There is not a little controversy as to whether or not there was a third car immediately preceding the Star car when Ledbury first looked in its direction. Ledbury speaks of the Star car as turning out behind the other to pass it. It is extraordinary, if this be so, that there is not any corroborative evidence of the presence of this third car. Bennett, Caulfield and notably Philp were each in a position to see such a car, if it were there; but no one of them told of having seen anything of such a car on the bridge at any relevant time. Apart from Ledbury's testimony, there is no evidence whatever of the presence of a third car and, if required to decide upon this issue, I would certainly determine that the presence of this car had not been established. My own idea is that, when giving evidence, Ledbury really thought two cars had been approaching him prior to the accident. That may be accounted for in this way,when he first looked he saw only one car, which was in fact the Star car coming straight towards him, at a distance of about 350 feet. His failure to recognize it as such may have been due to the heavy rain then falling, or to his paying insufficient attention to it at the time.

When he again looked he saw a car coming towards him at an angle, at a distance of 100 feet beyond the end of the span, and, as he thought, beginning to skid towards his side of the bridge. This was, undoubtedly, the Star car. He is not pressed to say what became of the alleged preceding car after it passed him at about the entrance. He has no idea what became of it. Brooding over the matter during his more than two months in the hospital, as he admittedly did, when he says, he gradually began to think, and eventually firmly persuaded himself, that he had seen two cars where, in fact, there was only one, which he had noticed in two different positions.

But, for the purpose of this judgment, I shall assume that there was a car immediately preceding the Star car, as stated by Ledbury. The case appears to have proceeded on this footing and appellant's counsel at bar seemed to be ready to accept it as correct. If so, it would seem reasonably clear that Price turned out to pass the other car, much as Ledbury says. Ledbury also says that he was paying close attention to this leading car and did not see the Star car following, as he admittedly should have done had he been looking carefully ahead.- Of this state of facts, however, we have only Ledbury's evidence, there being no other witness.

Otherwise, the only way one could account for Price being on the wrong side of the road and in front of the bus, as Ledbury alone says he was, would be that his car had skidded, not improbably on the greasy tram rails, and that it was already out of control when Ledbury says he saw it skid over in front of him. We also have the fact conclusively proven that the motor bus crashed through the west railing of the bridge at a distance of 96 feet from the north end of the north girder of the draw and about 86 feet to the north of the point of impact and fell some 50 feet to the creek below, Ledbury being imprisoned in it.

It is also common ground that the bridge was in a very dangerous condition that morning, owing to the first rain of the season having fallen. The pavement of the swing span of the bridge was very slippery, it being made of wood blocks (" the portions north and south being covered with asphalt "), so much so that Philp admits these facts. He adds:

It is true that, only three questions further on, in answer to the court, Philp said:

But this only serves to show the facility with which this witness can accommodate his answers to momentary exigencies.

Speaking of the dangerous condition of the bridge on the morning in question, and of the difficulty of driving motor pi, cars occasioned by it, Ledbury himself says:

B. Q. What is your average general rate of speed when travelling over the bridge, when you are driving the motor bus?-A. Very seldom over 20 miles an hour, but on really dry pavements we can go 25.

Q. I suppose your reason for that is that it is rather dangerous driving faster than 20?-A. Very dangerous. It isn't too bad when it is dry, but it is a very dangerous bridge when it is wet.

*.C. Q. So proceeding fast on that bridge would be a dangerous matter on a wet pavement?-A. Yes, yes.

.

Q. And it would be particularly dangerous on that portion of the bridge known as the draw-the draw bridge?-A. The span, yes. And also,

Q. What condition was the bridge in that morning?-A. Well, that bridge is always a bad bridge on a wet morning. Everybody knows that, that has driven over there.

and again,

Q. Question 154.

I asked you "At 15 miles an hour it is very easy to control the speed of the car-with your steering apparatus and your four-wheel brakes?-A. Well I don't know. I doubt it, on that morning, if you could control a car at five miles an hour. You would have difficulty in controlling it to any extent-the control was beyond any person on account of the condition of the bridge that morning." Now you said you could not control your car at 5 miles an hour. Is that right?-A. Well, you may have misunderstood me in that statement.

Q. What is your explanation of it now?-A. My explanation is that I would not-with the condition of the roadway that morning on that bridge, at 5 miles an hour I would not be able to bring my car to a dead stop.

Q. You said you could not control your car?-A. That is what I meant by controlling.

Q. At 5 miles an hour you could not bring your car to a dead stop? -A.

No.

The CounT: Q. You say you could not bring it to a dead stop at 5 miles?

What do you mean by that?-A. I mean to say at 5 miles an hour even if you put your brakes on right there, you will skid.

Q. You mean you cannot stop instantly?-A. Yes.

Q. You mean within a foot or two?-A. Yes, within a foot or two. Q. Do you mean to say that a bus cannot, in an emergency be pulled up on these wet pavements of Vancouver, within a distance of 100 feet, or that they are going to skid 80 to 100 feet in an emergency application of the brakes?-A. No, I didn't say so.

The CounT: He has already answered that; at miles an hour under these conditions that morning, he could stop in 30 or 35 feet.

Mr. SiNNorr: Yes.

The Then what is the good of pressing it?

There is also no dispute that, after describing one complete circle (if not two), the Star car either plunged forward or, still gyrating, struck the draw of the bridge at the north end on the west side and rebounded about 6 feet northward.

Caulfield, ai very careful witness, deposed to B.C. M this, and his evidence must be accepted as reliable.- Q. You left the sidewalk?-A. We left the sidewalk and went right into the centre of the span.

Q. Through the girders?-A. Yes, through the girders, into the centre of the span. And as soon as we done that-- Angin

Q. Did you look up the span?-A. We looked up the span.

Q. What did you see?-A. At that time the Star car was coming like this, making this turn, and it hit some portion of the bridge and it came back; at that particular moment the man Price went out.

The CouT: I don't quite get that.

Mr. HUTCHEsON: He said it hit a portion of the span, sir, hit a portion of the span, and then went back.

The WrTNEss: Jumped back as it hit the span, it came back. The CounT: Q. At the north?-A. At the west side of the span. Q. And the north end?-A. Yes.

Q. But when you say it jumped back, it jumped towards the west?- A. No, the car came to the west side of the span at a kind of an easterly triangle next the roadway.

Ledbury gave this evidence:

Q. Draw a line from the nose of his car.-A. He came about here. Q. Mark that " P " again please.-A. Yes. Then I saw right away that there was no chance, that I would have to hit him. There was no chance of stopping because on account of the wet pavement I knew; he is almost practically in front of me then.

The CoURT:

Q. Are your wheels locked now?-A. No.

Then I tramped on everything I've got and swung my wheel right over to the left like that.

Mr. Q. That would put your car trying to shoot her over to the west?-A. Yes.

The CoUr: Q. Did you notice that other car any more?-A. No. I never paid any more attention. I don't know where this car went to at all. My vision went all on this car. I swung right over to the left, and just as I turned my wheels, I just had my wheels turned like that, bang he went like that. That is all I know.

Mr. Q. Well, now, how was the Price car travelling?-A. Well, I would not like to say at what speed or anything like that. He was travelling-the first car was coming towards me just as fast as I was going, if not faster, and he must have been going a little bit faster to try and get around this car into the span.

Ledbury attempts to account in this way for the fact that the bus ran some 86 feet after the impact before plunging into the creek. He says:

Q. What happened to your car then, do you know?-A. Yes. I felt my end come around almost, and the next thing that loomed up in front of me was the railing of the bridge. The railing of the bridge was practically almost facing me, maybe at a slight angle.

Q. As your car came right around, or swung, that is what you mean? -A. Yes.

Q. In what direction were your wheels pointing?-A. Well, my front wheels would be to the west, but not directly west. I imagine it would not be directly west.

Q. And then what happened?-A. Well- Q. You went over the railing?-A. No. Well, I went over the railing I will admit, but I tried to save myself going over the railing, and to try and save himself when a person gets into a skid, the first thing any driver would do would be to take his foot off the brakes, step on the gas and try and take his car out of the skid.

Q. That gives you better control?-A. Well, that does not give me better control. It gives me control to try and get her out of the skid. Q. Why could you not straighten her out?-A. Because the wheels appeared to be locked.

Q. What did that?-A. The impact I imagine.

Q. The collision?-A. Yes. The way I had it figured out in the hospital, I had it doped out, that the fender must have caught on the wheel and held the wheel and I could not bring it back.

Bennett, who, as already stated, was explicitly found by the trial judge to be a very satisfactory witness, and whom we can entirely believe, said:- I saw the Gray bus travelling along, and then there was a blind space in the girder work. Ordinarily I should have seen it again.

The CouRT: Q. You saw the Gray bus travelling along, going north? -A.

Yes, towards the west side of the road.

Q. How far, having regard to the west street car tracks?-A. It travelled right from the east side to the west side, or I might say, from the centre of the span to the west side of the street. When I saw it first it was in the centre of the span.

Q. Just get it clear when you saw it first?-A. It had just gone off the span and travelled to the west side of the road.

Q. Then pointing north?-A. Yes.

Q. And as from east to west where was it, say, with reference to the devil strip?-A. It was on the devil strip when I saw it.

Q. When you first saw it?-A. Yes.

Q. Then what happened?-A. It travelled right to the west side of the road, and the girder-work took it from my sight.

Q. And when you caught it again where was it?-A. I thought to myself the thing is gone. It is a most mysterious disappearance. we have a door on the side, and I opened the door, and there was nothing there, just a gap in the hand rail.

Q. Where was that gap in the hand rail in regard to the Star car, north of it?-A. North of it, yes.

Q. How much?-A. About 100 feet. The Star car was right down by the end of the span.

Q. You saw it turning?-A. Yes.

Q. And then it faced north?-A. Faced south.

Q. Came right around, making a complete circle?-A. Yes. Of course, I am not saying directly south.

I wouldn't say directly south, but approximately.

Q. No, no, but approximately?-A. Yes.

Mr. SINNOrr: Q. I am not quite clear, Mr. Bennett, about the large bus. Was that the bus from which you heard the sound?-A. Yes. Q. Was there any other bus there?-A. There was nothing else. didn't see any other on the street at all.

B.C. MoTon

Mr. Q. If any vehicle entering the draw at the north end that morning at that particular time when the bus was there, could it have escaped being hit?-A. That I can't say. According to the position of the bus when I saw it there was no room for anything else.

Caulfield evidently did not see the bus until later as he only speaks of it as " facing west and east," about the time it crashed through the railings.

Dealing with the question of his speed before and at the moment of the impact, Ledbury says:

Q. Did you say you maintained a speed of miles an hour until you struck this car driven by Price?-A. No, no.

Q. You cut down your speed before that?-A. My nose was just at the end of the span.

Q. Then you were going less than 15 miles an hour when you collided with Price?-A. Oh, yes.

Q. And much less than that?-A. Oh, yes.

Q. How much less would you be going than 15?-A. I had practically stopped I guess.

Q. When you struck Price?-A. Yes.

Q. Almost stopped when you struck Price?-A. Yes.

Ledbury was not pressed to say why, if his car was " practically stopped " at the moment of the impact, he did not allow it to rest there, but " tramped on everything " he had. Ledbury himself, in his earlier evidence, had, in fact, contradicted his statement that his car had " practically stopped " before the impact when he said:

Q. Draw a line from the nose of his car.-A. He came about here. Q. Mark that " P " again please.-A. Yes. Then I saw right away that there was no chance, that I would have to hit him. There was no chance of stopping because on account of the wet pavement I knew. Ledbury had, unguardedly perhaps, admitted that his bus was going " about 15 miles an hour *

* * right at the moment of the impact." He, almost immediately afterwards, made the statement that I have quoted above from his evidence, viz., that he had " practically stopped," etc. But, when one looks at his testimony given elsewhere in the book, it is apparent that his possibly unguarded admission was nearer the truth. Thus, he says on discovery:

Q. Now, before the impact, did you apply your brakes?-A. Yes, absolutely, my wheels were locked.

Q. Which brake did you apply?-A. My air brake.

Q. Your air brake?-A. Yes.

Q. That is the four-wheel brake?-A. That is the brake we always use.

Q. Did you apply your emergency brake?-A. No, I didn't need to, because that is absolutely no good under those conditions.

Q. What made you apply your brakes?-A. Well, I seen that he was P. coming towards me.

B.C. MoToR Q. Yes, and how far were you from the other car when you applied your brake?-A. Well, he was-he had just turned out and he was in front of me when I applied the brake.

Q. Mr. SINNOrr: When you applied the brake?-A. Yes.

Q. And your car didn't stop?-A. No.

Q. It carried right on?-A. Yes, it carried on a certain amount ahead. WJC. Q. And you struck the other car?-A. He struck me-or we both struck together-there was no argument about that.

Q. You both came together?-A. Yes.

On examination-in-chief at the trial, he said:

Q. Mark that "P" again please.-A. Yes. Then I saw right away that there was no chance, that I would have to hit him. There was no chance of stopping because on account of the wet pavement I knew; he is almost practically in front of me then.

The Q. Are your wheels locked now?-A. No.

Then I tramped on everything I've got and swung my wheel right over to the left like that.

Mr. Q. That would put your car trying to shoot her over to the west?-A. Yes.

The CouRT: Q. Did you notice that other car any more?-A. No. I never paid any more attention. I don't know where this car went to at all. My vision went all on this car. I swung right over to the left, and just as I turned my wheels, I just had my wheels turned like that, bang he went like that. That is all I know.

And, on cross-examination:

Q. Well, you had ample time; you were only travelling at 15 miles an hour; what explanation have you got to offer now for doing what you did on that occasion.-A. If he had done what I imagined he was going to do, I had ample room to pass him, the direction which I turned. Q. You began to calculate in your mind and figure things out for yourself?-A. To a certain amount, yes.

Q. But you did not figure out that it would be a good thing to stop your car dead at that time, at that point?-A. Well no.

Q. Don't you think that would be the most natural thing for a careful driver to have done?-A. No, because I have run against the same kind of a position practically, before; other times before.

Q. You said you have- -A.

I have seen cars doing the same thing.

Q. That is, you were travelling less than 15 miles an hour?-A. About Mr. SINNOrr: Q. Did your air brakes lock your wheels?-A. They did at the impact, certainly.

Q. They did not before that?-A. No, because that is the reason I left the clutch out.

The Q. Just at the moment of the impact?-A. Yes. Mr. SINNorr:

Q. So that your wheels were not locked before the impact?-A. No, the wheels would not be locked.

Q. Is it good or bad practice to lock the wheels?-A. It is bad practice TwuNsin bad weather.

Q. But you locked your wheels?-A. Not at that time.

Q. Later on?-A. Yes.

The Couar: Q. You were up against it then? It did not make much difference what you did then?-A. It is just a matter of putting on every- OJ.C.

thing you have, and turning to try and make a miss if you can. It is just a chance, that is all.

Q. Did you shut the power off in your bus?-A. No.

Q. You never did that?-A. No.

Q. Is that not the proper practice in an emergency?-A. No, no. Q. It is not?-A. No.

Q. So then it would be considerably reduced when it was receiving no gas?-A. It would not be considerably reduced because the momentum carries her.

Q. You were travelling on your own momentum?-A. Yes.

Q. Without the aid of your engine at all?-A. Oh, that is only for a distance of about 25 feet.

Q. That is for 25 feet?-A. Yes.

Q. What did you do at the end of the 25 feet?

You were 25 feet inside the draw?-A. No, I would not be 25 feet inside the draw. would say half the bus would be over a kind of plate there, and one-half would be in the span, and one-half outside the span. Just then I would put my foot on the gas again.

Q. What gear were you travelling in then?-A. In high gear, just the same gear.

For my part, I do not believe that Ledbury had " practically stopped " his car before striking the Star car; otherwise, several facts cannot be accounted for. In the first place, one cannot account for the violent spinning around of the Star car, which, on the evidence of Caulfield and Bennett, occurred immediately after the impact. Moreover, the fact that the bus continued straight ahead, eventually turning west and crashing through the rails some 86 feet further on, is, to me, entirely inconsistent with the idea, as deposed to by Ledbury, that he had his car " practically stopped " at the moment of the impact. In my opinion, he had slowed down very little, if at all, and was still travelling at from 15 to 20 miles per hour at the moment of the impact.

The fact that the Star car afterwards either had momentum or power sufficient to cause it to run ahead about ten feet, strike the upright of the swing bridge and rebound some six feet, or that, in its gyrating movement, it swung forward sufficiently to strike the northern upright of the draw on the west side, shows that that car also had been travelling at a high rate of speed prior to the impact. pan This inference may be subject to some doubt-greater than any that can be suggested in regard to that which I have drawn as to the speed of the omnibus. At all events, Ledbury admits that after, as the learned judge said, the Star car was " in difficulties,". Price did everything humanly possible to avert a collision. His evidence is:

The foregoing circumstances make it perfectly clear to me that both cars had been travelling at a rate of speed quite unreasonable, having regard to the conditions existing on the morning in question. As my brother Smith very pertinently remarked during the argument, Price's duty to stop his car was just as clear and just as urgent as was that of the driver of the motor bus, in order to avoid the impending collision.

We must, however, not forget that the Star car was available for examination and inspection after the accident, whereas the bus was immediately dismantled (it may have been necessary to do so) and was put into such a condition that no inspection of it would be of any value for evidential purposes.

Moreover, no one deposes to seeing any skid marks on the roadway made by the bus, whereas the marks made by the Star car, as it spun around were plainly visible to Bennett.

These circumstances give rise to suspicion against the dependability of the defendants' case. In addition to this is the fact that the emergency brakes on the bus were, to his knowledge, to quote Ledbury, " no good" to stop the car in an emergency.

Both drivers would seem to have been in somewhat of a hurry on the morning in question. Macdonald, J.A., says: no doubt referring to the fact that Ledbury was due at the station at eight o'clock that morning. His story is, that On arriving at the car sheds at about 8:00 o'clock he found his bus had a flat tire. He was told he would have to wait for the mechanics to repair it and the latter took considerable time to do so; so much so that his boss, Reynolds, telephoned him to enquire the cause of delay and, upon being told of the flat tire, he instructed Ledbury to be on hand for the nine o'clock load. Reynolds was not called, as he apparently might have been, to corroborate the statement of Ledbury as to the fact, the effect and purport of the telephone communication. Philp, who gave evidence of meeting Ledbury at the garage, is not asked to corroborate him as to the time he left there. On discovery, Ledbury says that he " was supposed to be on duty anywhere around eight o'clock

*

*

* at the C.P.R. station."

He also says he arrived at the garage on Cambie Street " about 7:30," when he found he had " a flat tire," and had to wait some time before he could get a tire man to attend to it. Asked when he left the garage, he said,

* * somewhere around about 8:30 I would imagine."

On examination-in-chief, at the trial, he varies this statement by saying he reached the garage at " a quarter to eight," and he speaks of the delay in waiting for the tire man and of Reynold's telephone call while he was waiting. As to the time of departure, he says:

Q. On cross-examination he said, it was his duty to be at the C.P.R. depot " somewhere around 8 o'clock." He does not say at what hour he reached the garage, but proceeds to tell of finding a flat tire, of a telephone call from Reynolds which he describes as not " a hurry up call."

He says it was only a call " to find out what was wrong with me, why I was not down at 8 o'clock." Asked when he got the flat tire changed, he answers " I don't know what time. I was ready to pull out about half-past 8." He does not fix the exact time when the tire was changed. He speaks of meeting Philp coming into the garage but said he had no conversation with him. When the accident occurred, Ledbury says he was on his way to take up his 9:00 o'clock load. As to Price, he had been at work all night and was going home on Sunday morning, no doubt, to have breakfast and rest.

PRICE From the foregoing, I am satisfied that there was abund- . ant evidence to warrant a finding of negligence on the part of the bus driver in travelling at too high a rate of speed T.D having regard to the conditions at the time of the accident, and that that was really what prevented Ledbury from stopping and avoiding the impact. If made by a jury, these findings could not be disturbed.

Such findings of a trial judge differ little, if at all, in their weight from the findings of a jury. No doubt, it is the duty of the Court of Appeal to act upon its own conclusions on questions of fact as well as of law (Coghlan v. Cumberland (1) ). Stated otherwise, it is the duty of the Court of Appeal to draw proper inferences where the issue does not depend on the veracity of witnesses, and the facts are clear (per Lord Dunedin in Cooper v. General Accident, &c., Corp. (2); Admiralty Commissioners v. SS. Volute (3).

But, what Lord Chancellor Loreburn said, in Lodge Holes Colliery Co., Ltd. v. Wednesbury Corp. (4):

I need not repeat what has often been said as to the advantages enjoyed by a judge who has heard the witnesses. When a finding of fact rests upon the result of oral evidence it is in its weight hardly distinguishable from the verdict of a jury, except that a jury gives no reasons. The former practice of Courts of Equity arose from the fact that decisions often rested upon evidence on paper, of which an Appellate Court can judge as well as a Court of first instance.

still holds good.

(Montgomerie & Co. Ltd. v. Wallace- James (5); See Dominion Trust Co. v. New York Life Ins. Co. (6) ).

The findings of the trial judge are expressed as follows: * * * accepting his (Ledbury's) own evidence, in my opinion he ought to have and he could have stopped his car when he saw Price turn out * * * or at least he ought to have slowed his car down and he could have done so on his own evidence, to such an extent that he had it under absolute control, and if he had done either, I am satisfied that this accident would not have happened.

Otherwise, he is on the other horn of the dilemma, that he is mistaken as to the speed at which he was going and his car was going at such a rate of speed that, under all the circumstances, he was unable to stop or to hold it under control, so that he could stop it in the event of something coming in his way. I hold, therefore, that the defendant, the B.C. Motor Transportation Company, and Ledbury, are responsible for this accident.

(1) [18981 1 Ch. 704.

(4) [19081 A.C. 323, at 326. (2) [1922] 2 Ir. R. 214, at p. 219.

(5) [1904] A.C. 73, at 75. (3) [19221 1 A.C. 129, at 135.

(6) [19191 A.C. 254, at 257-8. It will be noted that I agree with the alternative view of the learned trial judge as to " the cause " of the accident, viz., antecedent, disabling excessive speed. I think, however, that he was in error in ascribing the fault which caused the accident entirely to Ledbury. I think Price was, probably, equally to blame and was guilty of like fault with Ledbury, and that both should be held responsible for the ci..

consequences.

Antecedent, disabling negligence in maintaining too high a speed may well be found, under such circumstances as existed at the time, to amount to " ultimate " negligence. (British Columbia Electric Ry. Co. Ltd. v. Loach) (1). Ledbury's conduct might have amounted to " ultimate " negligence were it not for the fact that Price had, apparently, the same opportunity to stop as had Ledbury and the same duty was cast upon him to do so. In his case, too, his inability to stop was due to the same cause as Ledbury's, viz., excessive speed. He, too, might have been guilty of "ultimate" negligence, had Ledbury not been in the like plight. As the case stands, it appears to me that dangerously excessive speed on the part of both drivers was alike the cause of the inability of each to stop in time to avoid the collision; and that both cars were practically out of control at a time when, if his car had been under control, it was the clear duty of each driver to stop to avoid collision. Both appear to me to be at fault in this regard; the fault consisting in excessive speed, the effect of which, in the case of each, continued right down to the impact.

A case is thus made for the application of the Contributory Negligence Act (Statutes of B.C., 1925, c. 8, s. 2), the case being clearly one, in the language of that statute " where by the fault of two or more persons damage or loss is caused to one or more of them."

The statute goes on to provide that " the liability to make good the damage or loss shall be in proportion to the degree in which each person was at fault."

There is nothing here to suggest that the plaintiff in the action must be one of the persons so at fault. It would seem to be enough that the defendant should be a party to whom responsibility for the fault of one or other of the persons causing the damage may be attributed. Something was suggested at bar by counsel for the respondent to the effect that this statute is inapplicable to cases under Lord Campbell's Act. On examination, I cannot find anything to justify this contention. As there was PICE no argument on the point, I am at a loss to conceive on' B.C. oro what it rests; nor does the factum aid in this respect. But, as this question is res nova, it may not be passed over with- I/fD. out due consideration.

The statute, commonly known as Lord Campbell's Act ((1846) 9 & 10 Vict., c. 93), adopted in British Columbia by virtue of Ordinance No. 70 (1867), is part of the English law introduced into that province, and deals with the situation in which the maxim ex morte hominis non oritur actio (or, as sometimes put, actio personalis moritur cum persona), was applied at common law to exclude actions for damages occasioned by the death of a person by reason of a wrongful act of the defendant.

At present, this statute is to be found as c. 85, R.S. B.C. 1924, ss. 3, 4 (1) and (2), and 5, of which read as follows: 3. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to an indictable offence.

4. (1) Every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the Court or jury before which the action shall be tried may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs, not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the Court or jury by their judgment or verdict shall find and direct, or as may be determined by the Court upon motion for judgment or further consideration.

(2) Provided that if there be no executor or administrator of the person deceased, or, there being such executor or administrator, no such action as above mentioned shall within six calendar months after the death of such deceased person have been brought by and in the name of his or her executor or administrator, then and in every such case such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been if it had been brought by and in the name of such executor or administrator; and every action so to be brought shall be for the benefit of the same person or persons as if it were brought in the name of such executor or administrator.

The ground now taken by the plaintiff is that the defence of contributory negligence being done away with by the statute of 1925 leaves the right of action under Lord Campbell's Act absolute and unqualified. In other words, the other provisions of the Contributory Negligence Act would have no application to a case under Lord Campbell's Act. I find nothing in the Contributory Negligence Act to exclude its application as a whole to cases under Lord Campbell's Act, which are so common. On the contrary, everything in the former statute indicates that such cases must have been present to the mind of the Legislature which enacted it.

Contributory negligence is a defence which the statute does away with, but only conditionally, the condition being that,

I cannot conceive that the Legislature intended that this Act should apply for the purpose of enabling the plaintiff to maintain an action under Lord Campbell's Act, notwithstanding the establishment of contributory negligence imputable to her, and yet should not also apply for the purpose of providing for the apportionment of her damages under section 2.

That this case comes within section 2 is perfectly clear, the term or condition of its application thereby provided being that, where contributory negligence is shown, there shall be an apportionment of damages in proportion to the degree in which each person was at fault. Any person taking advantage of the Contributory Negligence Act must do so on the terms and conditions laid down by the Legislature. Had there been a counterclaim, or a demand for set-off O or " compensation " by the defendant Ledbury in respect to his physical injuries, or by his co-defendants for the loss of their bus, there would have been considerably more difficulty in applying to such a claim the provisions of the Contributory Negligence Act. Particularly is this so in view of clause (b) of the proviso to section 2, since such a claim would be made against the plaintiff in the present action, who in no wise represents the estate of the deceased Price, but brings an action for statutory damages given her by Lord Campbell's Act, which is independent entirely of any possible right of action derived from Price, although it is a condition of her right of action that her husband, had he survived, would have had a good cause of action.

The burden is, however, now cast on this Court to determine the proportion in which the damages sustained should be borne. Having regard to all the circumstances of the case, I deem it impossible to find that the evidence has satisfactorily established degrees of fault, with the result that the liability should be apportioned equally (section 2 (a) ). In the result, therefore, of the $24,000 damages found to have been caused to the plaintiff, she should recover $12,000, i.e., $7,500 to the mother and $4,500 to the six children in equal shares. The plaintiff is entitled to her costs in this Court; but, as the defendants were obliged to go to the Court of Appeal to escape the consequences of the more onerous judgment of the trial court, I would not disturb the order as to costs in that Court. The plaintiff is entitled also to recover from the defendants the costs of the action; subject, however, (except as to costs, if any, expressly awarded to her " in any event of the action " by orders of the court) to the provision of section 4 of the Contributory Negligence Act, that

J. (dissenting).-I have had the advantage of perusing the carefully prepared judgments of my Lord the Chief Justice and of my brother Lamont. With great respect, I cannot agree with either of them.

After reading the evidence, I have reached the conclusion that both the respondents, the employer, and the employee, Ledbury, are bound by the latter's version of the circumstances which accompanied the death of appellant's husband.

Even admitting that Ledbury was entitled to assume that Price would observe the statutory obligation imposed by R.S.B.C., 1924, ch. 103, sec. 21, and would, after finding it impracticable to turn out to the left, " so regulate the speed of his vehicle as to allow " the other car, which he was trying to overtake, " to precede him to some point on the highway where such turning-out to the left and a passing (could) safely be effected," the whole case hinges on the answer to the following question:

Was the accident inevitable after Price tried to overtake the third car? Have Ledbury and his employer exculpated themselves in answer to the prima facie case resulting, in favour of plaintiff, from the fact, admitted by Ledbury, that, in order to dodge Price's car, he " tramped on everything and swung his wheel right over to the left " invading the other car's side of the roadway which of necessity was to be used by it, if it succeeded in coming back to its place behind the third car? Ledbury erred when he abandoned the right side of the roadway to cross over to his left, instead of stopping his car, as he acknowledges he could have done in that space and time, as soon as he realized that the other vehicle, through skidding or otherwise, was in difficulties and unable to get out of his way. The version of the accident, as given by Ledbury, the only surviving eyewitness of the circumstances leading to it, whose physical and mental conditions were such when he gave evidence, as to be acceptable, perhaps of necessity, to both parties who now rely on his testimony, shows, in my opinion, that the latter was guilty of ultimate negligence and did not do everything that could reasonably be required of him to avoid and prevent the possible consequence of Price's loss of control of his own car in his effort to get ahead of the car preceding him.

For the reasons given by the trial judge, and by Mr. Justice M. A. Macdonald in his dissenting judgment, I would allow the appeal with costs and re-establish the judgment of the trial judge in favour of plaintiff.

Solicitors for the respondents: Maitland & Maitland. APPEAL by the defendant Winston from the judgment of the Appellate Division of the Supreme Court of Ontario (1) which, on an equally divided court, dismissed his appeal from the judgment of O'Connell, Co. C.J., who, on the verdict of a jury, gave judgment for the plaintiff against both defendants (the present appellant and one Wright) for damages for personal injuries caused by being struck, while on the sidewalk near the intersection of St. Clair and Wells Hill Avenues, Toronto, by the appellant's motor car. The jury found that the defendant Wright's negligence was " in cutting in on Winston's car without giving due notice to (sic.) such intention," and that the defendant Winston's (appellant's) negligence was " in not having his car under proper control to meet an emergency."

The appellant contended that there was no evidence to support the jury's finding of negligence against him, and that it should have found that he was not guilty of any negligence causing the accident.

On the appeal to this Court, after hearing argument of counsel, the Court delivered judgment orally.

C.J.C. would order a new trial; Rinfret and Smith JJ. would allow the appeal and dismiss the action as against appellant; Lamont and Cannon JJ. would dismiss the appeal. In the result, the judgment of the Court, delivered by the Chief Justice, was that the appeal be allowed and a new trial ordered, the costs of the abortive trial and of the appeals to the Appellate Division and to this Court to follow the event of the new trial.

8.C.R.]

Lamont J. (with whom Cannon J. concurred) stated that in his opinion there was no sound reason for interfering with the judgment as it stood; that the meaning of the jury's verdict was plain; they found an emergency due to cutting in, and found that the appellant was guilty of negligence in not having his car under control; from appellant's own evidence, he was driving at 18 to 20 miles an hour, and he had put his foot on the brake; the evidence was that the curb was five inches high, and that appellant not only jumped the curb and caught the plaintiff, but also that his car then ran 38 feet; on these facts it was open to the jury to say that the accident would not have occurred if he had had his car under control.

Smith J. (with whom Rinfret J. concurred) stated his opinion that the jury had not made any finding on which the judgment against appellant could be sustained; the only negligence on his part that the jury was able to find finally undertook to find-was that he had not his car under control to meet an emergency; implying that he should have been prepared in advance to meet this emergency, which he could not foresee; that the jury did. not make any finding that appellant was negligent in what he did after being placed by Wright in the emergency; that there is no obligation imposed by law on a driver to. keep himself specially prepared for action in connection with some possible unforeseen emergency in which he may be placed; and there was no evidence, up to the time he was interfered with by the negligence of Wright, that appellant was not in full control of his car; that what the jury pretended to say was negligence does not in law constitute negligence. The learned judge agreed with the-