Canadian Pacific Ry. Co. v. Rutherford

J.-This is an appeal by the defendant, the Canadian Pacific Railway Company, from an order of the Court of Appeal for Ontario ordering a new.trial in an action brought by Robert Rutherford for damages for injuries sustained by him shortly after midnight on November 30th, 1942. The plaintiff was driving his truck from Ottawa to Perth and, while passing through Carleton Place, ran into one of the railway cars of a standing freight train of the defendant at a point where the highway is crossed by the railway line.

There is no evidence that the railway car had been standing on the highway for a longer period of time than is allowed by statute, or, in fact, that it had been there for any particular time. The usual railway-crossing signs required by the Railway Act were in their proper place and, in addition thereto, the Company had erected a standard which carried a bell, and above the bell there was a light. It does not appear whether the bell and light had been installed as a result of an order of the Dominion Transport Commissioners or not.

It is not disputed that the bell was ringing and that the light was burning.

The windows of Rutherford's truck were closed and he did not hear the bell until he hit the railway car and, although he was familiar with the road and the crossing and was looking for the light, he did not see it; but, even he did not say that it was not burning. He said he saw the railway car when about fifty or sixty feet away from it, that his brakes were applied when he was between thirty to forty feet away and that, owing to the slippery surface of the highway, he was unable to bring his truck to a stop before the collision. A police constable who was at the scene of the accident shortly after its occurrence identified the marks of the tires on the plaintiff's truck as extending on the highway for a distance of 150 feet behind the truck, which still stood in the same position in which it was found after the accident.

The surface of the road was icy. Rutherford and a passenger with him put the speed of his truck at twelve or fifteen miles an hour RAco.

although the evidence of an automotive engineer, called by the defendant, was to the effect that, in his opinion, the truck must have been travelling at a speed greatly in excess J. of that. Rutherford and his passenger said that there was a heavy fog "so dense in front of you that you could not see", while the witnesses for the defendant said that the night was clear and cold and that visibility was good. The action was tried before Mr. Justice Urquhart and a jury who answered the first three questions put to them as follows:- In answer to subsequent questions, they found the plaintiff and the defendant equally in fault and fixed the total damages at $4,500.

Mr. O'Donnell first contended that the appeal should not be entertained because the appellant had, before the Court of Appeal, asked, in the alternative to its claim to have the action dismissed, for a new trial. Reliance was placed upon the decision in this Court in Ainslie Mining and Railway Co. v. McDougall (1), where Mr. Justice Girouard, speaking on behalf of the Court, followed two earlier judgments,-Mutual Reserve Fund Life Assn. v. Dillon (2), and Corporation of Delta v. Wilson, decided in March, 1905, and referred to in the third edition of Cameron's Supreme Court Practice at page 110. In those cases the appellants in this Court sought to hold the order for a new trial that they had obtained and, as stated- at page 143 of the Mutual Reserve case, "they cannot and do not appeal from the judgment ordering a new trial." In the present instance, while the Company's formal notice of appeal to. the Court of Appeal did ask in the alternative for a new trial, the report of the decision of that Court in [1945] O.R. 44, and the Company's memo. of points of law and fact, required to be filed by an appellant before the J. Court of Appeal, indicate that the only question argued was whether the judgment at the trial should be reversed and judgment entered in favour of the Company dismissing the action. Furthermore, counsel for the appellant stated at bar that he does not wish to hold the order for a new trial but desires to appeal from the order of the Court of Appeal which in fact refused his application to have the action dismissed, which is the judgment that he seeks in this Court. If he fails in that, he is satisfied to have the judgment at the trial restored Under these circumstances, it would appear that the rule set forth in the cases referred to does not apply.

The Chief Justice of Ontario stated that he expressed no opinion whether or not a finding by the jury of exceptional conditions of-fog such as the respondent says existed would support a judgment for him based on negligence of the Company in regard to the protection of the crossing when a freight train was standing across it. He considered that this question should be left to be decided when a -jury has determined whether or not there were in fact such exceptional circumstances as the respondent has alleged. I am willing to assume that the jury's answer to question. 3 is a finding that the fog was "so dense in front of you that you could not see", as testified to by the respondent.

Under those circumstances I can find no basis upon which the appellant may be held liable.

The train was not in motion and nothing was being done by the Company, or its employees, to create a dangerous situation. The railway car was entitled to be on the highway at the particular time and even if the fog existed to the extent suggested, the appellant was not required to take further precautions than it had done in the way of signs and warning signals. There was no common law duty upon the Company under the circumstances to take special measures of warning to persons on the highway while the train was stopped on the