Walker v. Enders

W.W.R. (N.S.) the trial of the action before Wood J. and 'a jury. Sidney Smith J.A. dissenting from the opinion of the majority, would have dismissed the appeal.

Loce J.

The appellant, a young married woman, was on February 27, 1952, driving with the respondent in his motor vehicle as a gratuitous passenger, en route from Avola, B.C. to Kamloops. She was sitting in the front seat to the right of the driver with her small child beside her.

The respondent left Avola at about 8.30 in the morning and had -driven some 45 or 50 miles when the accident which gave rise to the action occurred.

The road was narrow, winding and hilly, running approximately north and south. The snow had been removed by snow clearing equipment, the surface being, according to all of the evidence, icy and very slippery in spots. At the place where the accident occurred, the travelled or cleared portion of the highway was 14 ft. 8 ins. in width. As the car approached the brow of a hill where th'e road curved to the right, an oil truck proceeding in the opposite direction which was 8 ft. in width and 24 ft. long was coming up the hill and a collision occurred in which the appellant suffered personal injury. When the driver of the truck observed the respondent's car coming down the hill, he endeavoured to draw over to the extreme right of the travelled portion of the road and had brought his vehicle practically to a stop when the collision occurred.

The respondent, on his part, observing the oncoming truck at a distance which he estimated at about 100 ft., attempted to pull over to the right and stop his car. There were icy ruts in the roadway from 3 to 5 inches deep and, according to him, the wheels of his car were in them and, while he put on the brakes, he was unable to bring the vehicle to -a halt.

The evidence as to the speed of the respondent's car as it reached the top of the hill is conflicting and unsatisfactory. According to the appellant, they were travelling at about 30 miles per hour when the truck came into sight, but this was clearly merely a rough estimate on her part. An officer of the Mounted Police, who attended the scene of the accident after the cars had been removed, said that the marks found at the place of the collision indicated that the front wheels of the truck had been driven into the bank of snow on the east side of the road and that the right rear dual wheels were up against the snow bank. He found the hill to have been very slippery. Asked as to the distance at which the drivers of vehicles approaching in opposite directions could see each other, he estimated this as about 150 ft, and said that, travelling at the rate of 15 miles an hour under the existing conditions, he considered a car going 'down the hill could be brought to a stop in 150 ft. Asked by the learned trial Judge if, after viewing the damage to the respondent's car, he could estimate the speed at the time of the collision, he expressed the view that it had been 25 miles an hour at least.

It was shown that the respondent was familiar with the road, having driven on it ,on several occasions, and that he was aware that large vehicles like the truck might be met -along the way. According to his evidence, he had put his car into second gear as he approached the hill and the speed on the hill had not exceeded 15 miles when he saw the oncoming truck. He had then put on the brakes and put the car into low gear, but it had skidded in the ruts and he had been unable to 'avoid the collision. He admitted that the road was in a dangerous condition and said that he thought that he should not have been driving on it with the woman and her child.

Both the respondent and the driver of the truck were found by the jury. to have been guilty of negligence which contributed to the accident.

In the case of the former, the negligence found was "failure to have his car under proper control" and this they held to have been gross negligence.

The learned trial Judge upon the jury's findings directed that judgment be entered against the respondent but dismissed the action 'against the owner and the driver of the truck. The present appellant appealed to the Court of Appeal from that portion of the judgment dismissing the action as 'against the last named defendants but that Court dismissed the appeal and they are not parties to the present appeal.

Section 82 'of the Motor Vehicle Act of British Columbia R.S.B.C. 1927, 227, providbs that no action shall lie against either the owner or driver of a motor vehicle by a person who is carried as a passenger for any damage sustained by reason of the operation of the vehicle, unless there S.C.R.

has been gross negligence on the part of the driver which has contributed to the damage in respect of which the action is brought. The exceptions in the case of a person -transporting a passenger for hire and in the case of -a person to whose business the transportation of passengers is normally incidental do not apply in the present case where the respondent was carrying the appellant without reward. In Studer v. Cowper (1), the meaning to be attributed to the expression "gross negligence" in The Vehicles Act, 1945 of Saskatchewan was considered and the cases reviewed in the judgments delivered. While the section of the British Columbia statute does not include the words "or wilful and wanton misconduct" after the words "gross negligence" as does s. 141(2) of the Saskatchewan Statute, I think the same meaning is to be assigned to the words "gross negligence" in each.

In City of Kingston v. Drennan (2), Sedgwick J., delivering the opinion of the majority of the Court, construed the expression as it appeared in the Consolidated Municipal Act -of Ontario as very great negligence, and in Holland v. City of Toronto (3), Anglin C.J.C. said that this was a paraphrase which, for lack of anything better, had been generally accepted.

In McCulloch v. Murray (4), Sir Lyman Duff C.J.C. said that he did not consider that it was any part of the duty of this Court in applying the provisions of The Motor Vehicle Act of Nova Scotia to define gross negligence and that it was undesirable to attempt to replace by paraphrases the language which the Legislature had chosen to express its meaning.

Having said this, he continued by saying that the expression implied conduct in which -there was a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually governed themselves. I think this view is the same as that expressed in Drennan's case and in Holland's case. In the present matter, there was evidence upon which the jury might find, if they chose to believe it, that the respondent had driven his car to the brow of the hill at a speed of from 25 'to 30 miles an hour at a time when the narrow winding road was partially covered by ice, rendering