Kerr v. Cummings

KERWIN J.:-The appellant was a gratuitous passenger in an automobile owned by the respondent and driven by one Brentzen from Nanaimo northerly towards Port Alberni in the province of British Columbia. About fifteen miles from Nanaimo the car rammed a concrete abutment of a highway bridge on the west side of the road. Brentzen and another passenger were killed while a third passenger was so badly injured that he remembers nothing of the accident.

The appellant had fallen asleep when the car was about seven miles out of Nanaimo and he does not know what happened. He was seriously injured and brought the present action to recover damages for such injuries. By virtue of section 81 of the British Columbia Motor Vehicles Kerwin, Estey, Locke, Cartwright and Fauteux JJ. (1) [1952] 2 D.L.R. 846; 6 W.W.R. (N.S.) 451.

Act, R.S.B.C. 1948, chapter 227, the respondent is liable for such damages if it can be shown that Brentzen was grossly negligent as provided by section 82 of the Act:- The trial judge and the majority of the Court of Appeal (1) decided that the appellant had failed to show such gross negligence.

I can find nothing to suggest, as is intimated in the reasons of the dissenting judge in the Court of Appeal, that the case proceeded on the basis that gross negligence is not shown unless it is proven conclusively as if it were a prosecution for criminal negligence in a criminal Court and, in any event, I do not proceed on any such basis. This, of course, is a civil case but it is one where something more than negligence must appear. As was held by this 'Court in Studer v. Cowper (2), this means there must have been very great negligence.

Without referring to any of the decisions where the maxim res ipsa was applied in cases of claims for damages caused by the operation of a motor car, it is impossible, in my view, to say that the mere happening of the occurrence in the present case gives rise to a presumption 'that it was caused by very great negligence on the part of Brentzen.

It was argued that the proper inferences from the evidence are that he had no sleep the night before, and that starting out from Nanaimo about seven o'clock in the morning of a November day he had fallen asleep at the wheel. I cannot read the evidence as indicating either of these things, which in my view are mere suppositions. It is further said that the marks on the left shoulder of the road indicate that the automobile must have been driven from the right to the left side of the centrally paved portion of the highway, because there are tire marks showing that for 66 feet the car proceeded along the shoulder and into the concrete abutment. However, these circumstances do not indicate what caused the auto to go from the right to