Judgment of the Court
CARTWRIGHT J.:-This is an appeal from a judgment of of the Court of Appeal for Ontario which, by a majority, allowed the plaintiff's appeal from a judgment of Wells J. dismissing the action and directed a new trial; Schroeder J.A. dissenting, would have dismissed the appeal.
Locke, Cartwright, Martland, Judson and Ritchie JJ. 1[19581
O.R. 37, D.L.R. (2d) 371.
The action was for damages for personal injuries suffered by the respondent in a collision between a motor car owned and driven by one Menard, in which the respondent was a Tmuc passenger carried gratuitously, and a motor car owned and driven by the appellant.
The collision occurred in the City of Ottawa at the intersection of Laurier Avenue and Waller Street, on September
26, 1955, at about 6.30 a.m. Laurier Avenue runs east and west; Waller Street runs north and south. The movement of traffic at this intersection is controlled by signal lights, as provided by s. 41(2) of the Highway Traffic Act, R.S.O.
1950 c. 167. The car in which the respondent was carried was being driven south on Waller Street and the appellant was driving west on Laurier Avenue. Each driver claimed that he entered the intersection with the green signal light in his favour and the crucial question was as to which of them was right in this assertion. The evidence of the two drivers on this point was definite and in direct conflict. One of them must have been mistaken.
In the course of an admirable charge the learned trial judge repeatedly impressed upon the jury that their main task was to decide which driver had the traffic light in his favour. He said, for example:- The learned trial judge did not withdraw the question of contributory negligence from the jury; he instructed them accurately and adequately as to the duty of a driver who has the signal light in his favour and went on to tell them, quite properly, that on the evidence there was little room for a finding of negligence on the part of whichever driver did in fact have the signal light in his favour.
The following questions were submitted to the jury: Was there any negligence on the part of the defendant driver, James Herd, which caused or contributed to the injuries suffered by the plaintiff, Zvone Terkuc? Answer Yes or No.
Cartwright J.
2. If your answer to Question No. 1 is "Yes" then state fully, giving the facts on which you base your conclusions, the particulars of such negligence.
3. Was there any negligence on the part of the driver of the Plaintiff's car, Jacques Menard, which caused or contributed to the injuries suffered by the Plaintiff? Answer Yes or No.
4. If your answer to Question No. 3 is "Yes", then state fully, giving the facts on which you base your conclusions, the particulars of such negligence.
5. If your answer should disclose that there was negligence on the part of both drivers which caused or contributed to the injuries suffered by the plaintiff, then state in percentage the respective degrees of negligence of each:
James Herd
%
Jacques Menard %
100%
6. At what amount and irrespective of any other consideration do you assess the total damages suffered by the Plaintiff, Zvone Terkuc? After deliberating for some two hours the jury returned to the court room and stated that they had reached a verdict. The list of questions was handed to the learned trial judge and contained the following answers:
To Question 1: Yes.
To Question 2: Excess of speed shown by force of impact.
To Question 3: Yes.
To Question 4: Failure in looking for cross-bound traffic.
To Question 5: James Herd
60%
Jacques
Menard
40%
100%
To Question 6: $16,940.00
The learned trial judge without referring to counsel or inviting any submission from them said to the jury: You see your difficulty is you haven't answered the essential questions. You say "Yes" to Question 1 and say "excessive speed shown by force of impact". In so far as this driver is concerned, if he had the green light he was entitled to go through. If 'he had the traffic light he did not have to look for anything unless it was apparent to him that something was coming through against the light. Try to grapple with the essential points in this case. You have a duty to do; now try and do it.
The jury thereupon retired and after deliberating for a further two hours returned the following answers to the questions:
On these answers the learned trial judge, on motion of counsel for the defendant gave judgment dismissing the action with costs.
The majority in the Court of Appeal were of opinion that the course followed by the learned trial judge was not a proper one. With respect, I am unable to agree with this conclusion.
The answers of a jury must, of course, be read in the light of the evidence and of the charge; on so reading the answers first made by the jury it was apparent that they had failed to grapple with the question as to which driver had the signal light in his favour which had been clearly presented to them as the essential point which they were required to determine. In these circumstances the learned trial judge had the power and it was his duty to instruct the jury to deal with that question. Particularly in view of the full and accurate charge which he had given on this point, his redirection, which is quoted in full above, while brief was adequate.
That the learned judge had the power to send the jury back to reconsider their answers is made plain by the authorities collected in the reasons of Schroeder J.A. I would add a reference to two decisions relied upon by counsel for the appellant. In Napier v. Daniel and Welsh', Tindal C.J. said:
S.C.R.
Statutes and regulations cited
-
Unresolved citations
- s. 41(2) of the Highway Traffic Act