Shell Oil Co. v. Landry

J.:-According to the respondent he had been riding his bicycle westerly on St. Paul Street, about five feet from the north rail of the west bound track. Deciding J. to cross the street to his left to enter Charest Blvd., he allowed two automobiles, travelling a little faster than he, to pass him on his left. Then looking ahead and behind, and seeing nothing, he turned on to the tracks and at that moment saw the appellant's truck approaching from the west about four or five feet from the southerly curb and about forty or fifty feet away.

He says that he had not been able to see this truck before, owing to the fact that there were one or two trucks parked on the south side of the street, although he admits that before he got on the tracks he was able to see about 150 feet to the west on the south side of the street. On seeing the approaching truck the respondent says he applied his brakes but skidded two or three feet without, however, being able to avoid contact, with the result that his front wheel and the left front mudguard of the truck collided. He says he fell to the ground some twelve or fifteen feet from the south curb.

The appellant's driver says that he was travelling in the position the respondent says, at a speed of about eighteen or twenty miles an hour. According to him there was traffic approaching St. Paul Street on Charest Bldv. to his right as well as traffic all along the street on his left, going west, consisting of automobiles and bicycles. None of this traffic turned left or gave any signal of intention to do so. He first remarked the plaintiff when the latter was on the car tracks crossing at a sharp angle about ten or twelve feet in front of him. He immediately applied his brakes but could not avoid the accident which he agrees took place as indicated by the respondent.

Negligence on the part of the respondent was found by the learned trial judge in failing to see the truck and in crossing as he did without looking and without giving any signal. The sole question on this appeal is whether or not the finding of the learned trial judge that the appellant's driver had met the presumption resting upon him by reason of section 53 of the Motor Vehicles Act, is open to attack. The learned trial judge has accepted the evidence of the appellant's driver as to the speed at which he says he was travelling at the time and finds that it was reasonable in J. the circumstances. There is, however, the question as to whether or not the appellant's driver ought to have seen the respondent before he in fact did see him. His answer was that while he may have seen him he did not notice him as the respondent gave no indication of desiring to turn to his left and that he seemed suddenly to appear from behind an automobile travelling west.

It therefore appears that the appellant's truck, in the position in the street in which it was, on the evidence of both parties, left some nine or ten feet between it and the southerly rail of the west bound tracks, with the result that at least that distance and probably a foot or two more separated it from the line of traffic going west. Accordingly the appellant's driver had ample opportunity to observe the movements of approaching traffic some distance in front of him., Operators of west bound vehicles had equal opportunity of observing appellant's vehicle.

The learned trial judge rejected the evidence of the respondent that he could not see the approaching truck by reason of a truck parked on the south side of the street and held that he either did not look at all or did not look sufficiently.

As to the appellant's driver two things are charged against him: (1) that his speed was in fact greater than he says and, in any event, excessive in the circumstances; (2) that he ought to have seen the respondent before he in fact did and had he done so he could have stopped or deviated had his speed been what it should have been.