In an action for damages by reason -of the death of plaintiffs son caused by his being struck, while walking on a highway, by a motor car driven by one of the defendants, the trial Judge, on the jury's answers to questions put to them, dismissed the action. The Court of Appeal for Ontario ([19421 O.W.N. 288) set aside the verdict and judgment at trial and ordered a new trial. The Supreme Court of Canada now restored the judgment at trial, holding that there was evidence properly submitted to the jury upon which they might reasonably find, as they did, a verdict for the defendants.
It was stated in this Court, per the Chief Justice and Davis, Kerwin and Hudson JJ., that the proper course was not followed in respect of the form of certain questions submitted to the jury (which appear in this report infra); that the proper procedure was that laid down in Newell v. Acme Farmers Dairy Ltd., [19391 O.R. 36, as expressed in the headnote in the report of that case (quoted in the reasons for judgment in this Court in the present case); and it was pointed out that some observations made in this Court in Landreville v. Brown, [19411 S.C.R. 473, were not sanctioned by the majority of the Court. APPEAL by the defendants from the judgment of the Court of Appeal for Ontario (1) allowing the plaintiff's CJ. and Rinfret, Davis, Kerwin and Hudson JJ. (1) [19421 0.W.N. 288.
19a action, upon the findings of the jury) and ordering a new trial.
Eu The action was brought under the Fatal Accidents Act, R.S.O. 1937, c. 210, for damages by reason of the death of the plaintiff's son, Ronald A. Healey. The deceased, while walking with others northerly on a highway into the village of Kemptville, Ontario, between 7 and 7.30 p.m. on November 17, 1940, was struck by a notor car owned by the defendant Theodore Beach Sr. and which was being driven by the defendant Theodore Beach Jr. northerly on said highway, which accident caused the deceased's death. Plaintiff alleged that the accident was due to the negligent operation of the motor car.
At the trial the questions put to the jury and their answers were as follows:
1. Was the defendant, Theodore Beach Jr., guilty of any negligence which caused or contributed to the accident? (Answer Yes or No.) ANSWER: No.
2. If your answer to Question 1 is "Yes" then state fully the particulars of his negligence.
ANSWER: (Not answered.)
3. Was Ronald
A. Healey guilty of any negligence which caused or contributed to the accident? (Answer Yes or No.)
ANSWER: Yes.
We the Jurors found Ronald A. Healey guilty of negligence by walking on the highway on a night when weather conditions were so poor for driving a car.
A good sidewalk was provided for pedestrians and was in better condition for walking on than the highway.
4. If your answer to Question 3 is "Yes" then state fully the particulars of his negligence.
ANSWER: (Not answered except as above.)
5. If you find that Theodore Beach Jr. and Ronald
A. Healey were both negligent state the degree of fault or negligence of each. ANSWER: (Not answered.)
6. Did the plaintiff suffer any pecuniary loss or damage by reason of the death of Ronald
A. Healey? (Answer Yes or No.)
ANSWER: No.
7. If your answer to Question 6 is "Yes" at what amount do you assess the damages?
ANSWER: (Not answered.)
and judgment was given dismissing the action. The Court of Appeal set aside the verdict and judgment and ordered a new trial (1).
The defendants appealed.
T. N. Phelan K.C. and B. O'Brien for the appellants. S. E. Stewart for the respondent.
we stated at the conclusion of the argument, there was, in our opinion, evidence properly submitted to the jury upon which they might reasonably find as they did a verdict for the appellants; and the appeal must accordingly be allowed and the judgment at the trial restored.
We think, however, we ought to say explicitly that the proper course was not followed in respect of the form of the questions submitted to the jury. These questions were considered by counsel and agreed to; and it appears that trial judges in Ontario have in this matter felt themselves under some constraint by reason of some observations made in this Court in Landreville v. Brown (2). These observations were not sanctioned by the majority of the Court. The proper procedure is laid down by the Court of Appeal in Newell et al. v. Acme Farmers Dairy, Ltd. (3).
In the report of that case the headnote is in these words:- With the decision as thus stated, we are in agreement. The appeal is allowed and the judgment at the trial is restored with costs throughout.