McFadden v. McGillivray

I think the evidence clearly proves that the suppliant's injuries were solely caused by the negligence of a servant of the Crown while acting in the scope of his duties or vemployment upon a public work within the meaning of s. 19 of the Exchequer Court Act, [reference to the amount Crocket J. of damages, which amount was later fixed as aforesaid].

J.-I would allow the appeal and order a new trial. In view of this, it would be inadvisable to discuss the evidence and I restrict my remarks, therefore, to a short statement of the reasons why I consider such an order should be made.

After considering the charge of the learned trial judge in its entirety, I have concluded the jury were there told that the allegation of the appellant (defendant) that the respondent (plaintiff) was travelling at an excessive rate of speed under the circumstances, was not open to them since the respondent was not exceeding the statutory limit of fifty miles per hour. This, of course, was misdirection. I have also come to the conclusion that there was misdirection in the charge where the jury were told that the respondent was under no obligation to have the lights on his automobile burning. The learned trial judge continued:- This was really withdrawing from the jury another allegation of negligence made by the appellant against the respondent, and this defect was not cured by other passages in the charge.

Objection was taken by the appellant that the jury had been given a wrong basis for the calculation of damages,-damages of both parties,-when the trial judge told them to be generous. This was probably corrected when the jury were recalled and they were told that they should not, in that connection, be unreasonable.

Under section 27 of the Ontario Judicature Act a new trial is not to be granted on the ground of misdirection " unless some substantial wrong or miscarriage has been thereby occasioned."

I take it that it was really on this ground that the Court of Appeal afirmed the judgment at the trial, because Mr. Justice Riddell, after pointing out continues:- With great respect, I find myself unable to agree with this conclusion.

The appellant was entitled to a finding from the jury, not merely on the question of the negligence of the driver of his own car but also on the question of the negligence of the respondent, and in particular as to whether both drivers were negligent. Two allegations of negligence on the part of the respondent were really withdrawn from the consideration of the jury, and the Court should not place itself in the position of attempting to determine what, on a proper direction, would be solely within the province of the jury on these vital matters. The appellant is entitled to his costs of the appeal to the Court of Appeal and to this Court. The costs of the first trial should abide the result of the new trial.

DAvIs J.-The directions of the learned trial judge virtually withdrew from the jury a consideration by them of the vital question as to the degree of care reasonably to