Williams v. Fedoryshin

MARTLAND J.:-This is an appeal from a judgment of the Court of Appeal for Ontario, which set aside the judgment at the trial of Treleaven J. and dismissed the appellant's claim against the respondent.

The action arose out of an accident which occurred shortly after 6.00 p.m. on December 12, 1955. The appellant, a widow, 69 years of age, was struck by an automobile, owned and driven by the respondent, when she had nearly crossed provincial highway no. 8 at a place on the highway about one-half a mile east of the Village of Stoney Creek in the County of Wentworth.

The road in question is paved. It is 21 feet wide, running east and west, and was straight for a considerable distance in each direction from the place where the accident occurred. S.C.R.

There was evidence that it was dry. The appellant was walking across it from north to south and the respondent was driving east at approximately 45 miles an hour. She Marnd J. was about two feet from the south edge of the road when she was struck by the right front fender of the respondent's car. This vehicle was a new Meteor, having been purchased in August 1955. It was in good mechanical condition, including the brakes and headlights.

On the south side of the road, toward which the appellant was walking, there were two gas stations, a restaurant and other places of business located about 50 feet south of the south side of the road. There is a gravelled area in front of these buildings level with the highway, which extended for about 300 feet west from the place where the accident occurred, which was opposite the restaurant. The lights from these places of business illuminated the road as far as its north side.

The respondent testified that there were ridges of ice, about three feet south of the south edge of the highway, about two feet in height, which blocked access to the gravelled area, except for two entrances about 15 to 30 feet in width. The police constable who investigated the accident and the appellant's son both gave evidence that there were no ridges which would prevent a car from being driven off the road on to the gravelled area at any point along the portion of the road adjoining that area. In her evidence the appellant stated that she looked both toward the east and the west before crossing the road and did not see the respondent's car. The respondent says that he first saw the appellant when she was on the north shoulder of the road. He saw her commencing to cross the road. He states that he was approximately 150 feet west of her when he first observed her.

When he saw the appellant the respondent applied his brakes hard and proceeded straight east down the highway to the point of impact. He did not sound his horn or attempt to swerve either to the right or to the left. He stated that an approaching vehicle made it impossible for him to make a turn toward his left. Following the accident there were skid marks on the road 37 feet in length running straight back from the point where the respondent's automobile had stopped. At the place where it stopped, approximately parallel to the south edge of the road, the right front wheel was about two feet north of the south edge of the road.

The appellant suffered serious injuries. The learned trial judge decided that the respondent was 75 per cent. to blame for the accident and gave judgment in favour of the appellant for $8,903.55 with costs. The Court of Appeal unanimously held that the appellant was solely responsible for the accident on the basis that if she had looked in a prudent and careful manner she should have seen the respondent's vehicle approaching, would then have realized the danger of proceeding across the road and, if she had waited until the respondent's car had passed, the accident would not have occurred. It was held that her negligence was the sole cause of her damages. It is from this judgment that the present appeal is brought.

This is a case in which the "onus" section, s. 51, of The

Highway Traffic Act, R.S.O. 1950, c. 167, is applicable. The respondent had the burden of proving that the appellant's loss or damage did not arise through his negligence. The learned trial judge found that the respondent had failed to satisfy that onus.

In my opinion he was properly entitled to reach that conclusion in the light of the evidence adduced. The respondent was aware of the appellant's intention to cross the highway from the moment that she commenced to walk on to the road. He was then at least 150 feet away, driving a new car in good mechanical condition and equipped with good brakes. He says that his speed was approximately

45 miles per hour. He failed to sound his horn to warn her of his approach. He made no attempt to turn to his right, though there was evidence to show that this could have been done safely. He proceeded in a straight line down the highway until he collided with her.

The learned trial judge went on to find that there was some contributory negligence on the part of the appellant, which finding is not questioned on this appeal. He stated that it could not be said how far away the respondent's car was when she started to cross the road. He was inclined

S.C.R.

to think that it was a little further back than the respondent had said and it was closer than the appellant had said. He concluded that the appellant either did not look or failed to look carefully enough. He said that it would have been the part of prudence to wait until the car had passed, but that the appellant had the right to assume that, at the distance it was, the respondent would let her get across the road in safety.

In his well known judgment in Winnipeg Electric Company v. Geel', Lord Wright, in discussing how a defendant might meet the onus imposed by s. 62 of the Manitoba Motor Vehicles Act, says:

In the present case the respondent has not proved that the appellant placed herself in the way of his vehicle in such a manner that he could not reasonably avoid her. The Court of Appeal took the position that the appellant was the sole proximate cause of her damage, because, if she had waited until the respondent's car had passed, there would have been no damage. While it is obvious that there would not have been an accident if the appellant had waited until the respondent's car had passed, I do not think it follows that she was, therefore, the sole proximate cause of the damage she sustained. The point is that, although erroneously as it turned out, she believed that she could proceed safely across the road. Having started to cross the road, the respondent then had a duty to take all reasonable means to avoid colliding with her. He did run into her and thereby the onus rested upon him to establish that he could not have reasonably avoided the impact. From the moment she started to cross the road the appellant had been seen by the respondent, who then took no steps to warn her of his approach, or, save by the application of his brakes, to avoid striking her. He failed to satisfy the onus placed upon him.