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Supreme Court of Canada

Negligence—Gratuitous passenger injured—Accident occurring on highway curve—Improper road construction—Failure of driver to see warning sign—Apportionment of liability.

The plaintiff sustained injuries while she was a passenger in a motor vehicle owned and operated by S when the motor vehicle went out of control and rolled over on a highway curve. The curve was in an area where certain new construction that had been done by crews of the Department of Highways to straighten out the highway was temporarily blended into the old road. The new construction ended at the beginning of the curve, but there was no sign indicating that this was the case. There were, however, two signs, first a curved arrow sign indicating a curve to the left and in the background a black and yellow checkerboard sign. The posted maximum speed was 50 m.p.h. and there was no sign indicating that the speed should be reduced on or approaching the curve. The curve, which began as a 3° curve and after some 350 feet became a 10° curve, was so constructed that, instead of being banked from the inner to the outer edge, it inclined in fact from the inner to the outer edge.

S was driving at a speed of 40 to 45 m.p.h. and was following a car driven by her son. The latter on reaching the curve encountered gravel for a distance of from 30 to 50 yards. His car skidded to the right and into the gravel at the edge of the pavement,

[Page 503]

raising a cloud of dust. As S entered the curve she struck this wall of dust. At the same instant her car passed over gravel on the road and was slewing, and as it turned sharply to the left she lost control of it. She testified that she had not seen the checkerboard sign or the curve sign because of the dust.

The trial judge found the defendant Department of Highways liable and awarded the plaintiff damages in the sum of $22,086.16. On appeal, the Court of Appeal allowed the defendant’s appeal and dismissed the action. An appeal from the judgment of the Court of Appeal was then brought to this Court.

Held (Martland and Ritchie JJ. dissenting): The appeal should be allowed.

Per Cartwright C.J. and Hall and Spence JJ.: In view of the evidence as to the construction and maintenance of the curve, the majority in the Court of Appeal was wrong in concluding that there was no negligence on the part of the defendant. On the other hand, the evidence indicated that S was not keeping a proper lookout as she came into the curve and that her failure to see the signs was apt to, and did in fact, contribute to the accident. The responsibility should be equally apportioned between S and the defendant. By s. 2 of The Negligence Act, R.S.O. 1960, c. 261, the plaintiff could not recover for the portion of the loss or damage attributable to S, and, accordingly, the plaintiff should be awarded $11,043.08.

Per Martland and Ritchie JJ., dissenting: The plaintiff had failed to establish any negligence on the part of the defendant which was a cause of this accident. The only duty of the defendant, in the circumstances of the case, was to provide an adequate warning. That duty was fulfilled by the setting up of the checkerboard sign at a point approximately 100 feet before the beginning of the curve.

APPEAL from a judgment of the Court of Appeal for Ontario, allowing an appeal from a judgment of Donohue J. Appeal allowed, Martland and Ritchie JJ. dissenting.

B.J. Thomson, Q.C., for the plaintiff, appellant.

K.D. Finlayson, Q.C., and P.H. Howden, for the defendant, respondent.

[Page 504]

THE CHIEF JUSTICE—The relevant facts and the course of the proceedings in the Courts below are set out in the reasons of other members of the Court.

I agree with the conclusion arrived at by my brother Hall and, subject to what follows, with his reasons.

I do not find it necessary to decide whether under s. 106 of The Highway Traffic Act, R.S.O. 1960, c. 172, the onus of establishing that Mrs. Sorra was not guilty of negligence rested upon the appellant. This appears to me to be a case in which the following words of Viscount Dunedin in Robins v. National Trust Co. Ltd.[1] are applicable:

But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.

Be that as it may, in the case at bar we are all of opinion that Mrs. Sorra was negligent and that her negligence was a cause of the accident. The question as to which there is a difference of opinion is whether there was a negligent failure on the part of the respondent to give an adequate warning which was an effective cause of the accident. I agree with my brother Hall that no sufficient ground has been shown for differing from the view of the learned trial judge on this point.

I would dispose of the appeal as proposed by my brother Hall.

The judgment of Martland and Ritchie JJ. was delivered by

MARTLAND J. (dissenting)—The facts of this case have been outlined in the reasons of my brother Hall. The findings of negligence on the

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part of the respondent, made by the learned trial judge, are, as stated by my brother Hall, as follows:

A. Having regard to the sharpness of the curve shown in Exhibit no. 9A, a speed control sign ought to have been placed well to the east of such curve.

B. The curve sign shown in Exhibit no. 9A was misleading, indicating as it did a mild curve rather than a sharp curve.

C. The defendant’s employees were aware that there was some gravel on the pavement at a critical point after the grading on October 23rd; that “there was in fact the fill of two standard size pails, that is from one to two cubic feet on the pavement at the most critical point” and the failure to inspect the road and remove this gravel was negligence.

D. The road was improperly constructed in that the adverse superelevation made it difficult for a driver of a motor vehicle to take the curve at the permitted speed of 50 m.p.h.

With respect to the first two findings, I cannot see how it can be contended that the absence of a speed control sign, or the nature of the curve sign, can be regarded as material causes of the accident, when the evidence establishes that there was a four-foot square black and yellow checkerboard sign approximately 100 feet to the east of the beginning of the curve. Such a sign has universal significance and was indicative of danger. The driver of the car, in which the appellant was a passenger, never noticed the sign.

With respect to the latter two findings, it is my opinion that the respondent did not owe a duty to provide, at all times, a well engineered highway, free of gravel. As my brother Hall has pointed out, the condition of the road, including the nature of the curve in it, at the time of the accident, was temporary, during the course of highway construction. If the condition of the highway at that time and place created a danger to motorists travelling above a slow speed, the respondent did owe a duty to give a warning to the motorist. That duty was fulfilled by the setting up of the sign.

The sole cause of this accident was the failure of the driver to see the warning sign, as a result of which she entered the curve at a speed at

[Page 506]

which she was unable to maintain control of her car. She says that she did not see the sign because of dust thrown up by her son’s vehicle, which was ahead of her. But she also says that she hit “the wall of dust” as she entered the curve, and that she saw the dust at the very last moment. She should have seen the sign before she reached the curve.

To summarize, in my opinion the only duty of the respondent, in the circumstances of this case, was to provide an adequate warning, which, in my opinion, it did.

I do not find it necessary to attempt to interpret s. 106 of The Highway Traffic Act, R.S.O. 1960, c. 172. The outcome of the appeal is not dependent upon the matter of onus. Even if the section is inapplicable, in my opinion the appellant has failed to establish any negligence on the part of the respondent which was a cause of this accident.

I would dismiss the appeal, with costs.

The judgment of Hall and Spence JJ. was delivered by

HALL J.—This is an appeal from the Court of Appeal for Ontario which allowed an appeal by the respondent from the judgment of Donohue J. in which he had found the respondent liable and had awarded the appellant damages in the sum of $22,086.16.

The action was for injuries sustained on October 25, 1964, by the appellant while a passenger in a motor vehicle owned and operated by one Renate Sorra when the Sorra vehicle went out of control and rolled over on a curve on Highway 124 in the District of Parry Sound in the Province of Ontario at a point approximately 2½ miles east of the junctions of Highways 124 and 69.

Highway 124 became a provincial highway in 1955. Prior to that time the road had been a series of township roads. It is a connecting link between Highways 11 and 69. In the area where the accident occurred, new construction began in November of 1962 and was completed in October 1963. The work was done by the Department of Highways’ own crews and the intention was to straighten out the road and to

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provide for an almost straight road to Parry Sound. Meanwhile, the new work of 1962 and 1963 was blended into the old road as a temporary measure and in this area there was the curve on which the accident occurred.

Travelling generally in an east-west direction, Mrs. Sorra approached the curve in question on the newly constructed highway which was straight for approximately one-half mile before the curve. The new construction ended at the beginning of the curve. There was, however, no sign indicating that this was the case. There were, however, two signs, first a curved arrow sign indicating a curve to the left and in the background a black and yellow checkerboard sign. The posted maximum speed for the highway in this area was 50 miles an hour and there was no sign indicating that the speed should be reduced on or approaching the curve.

The road surface on the curve was of a temporary nature, it being the intention to bring it up to standard specifications when construction was resumed. The curve began as a 3° curve to the left and after some 350 feet became a 10° curve. The transition from 3° to 10° created what is called a “compound curve”. The curve was not “banked” in the accepted sense of the surface rising from the inner to the outer edge of the pavement. This usual procedure is called “superelevation”. Actually portions of the roadway on the curve sloped from the inner to the outward edge, a condition technically called “adverse superelevation”. The purpose of “banking” a curve from the inner to the outer edge is, of course, well known and is regarded as proper highway engineering. The maintenance of a condition of adverse superelevation, combined with changing the curve from a 3° to a 10° curve was alleged by the appellant as creating a trap for users of the highway and thereby a condition of non-repair of the highway.

Mrs. Sorra testified that she was driving at a speed of from 40 to 45 miles an hour and that as she drove she saw a sign near McKellar to the effect that the speed limit was 50 miles an hour. She says she saw no other speed signs and there was no evidence that any such signs existed.

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She was following a car driven by her son, O.F. Sorra. His evidence is that as he came to the curve driving at a speed of from 45 to 50 miles an hour he was being followed by his mother’s car visible to him in his rear view mirror. He says there was gravel on the westbound lane over an area of from 30 to 50 yards in length, and as he was proceeding through the curve the rear end of his car skidded to the right and into the gravel at the edge of the pavement, raising a cloud of dust. When this occurred, he lost sight of his mother’s vehicle, and after rounding the turn he stopped and waited for his mother, and when she did not appear he returned and found her and the appellant and the overturned car some 8 or 10 yards from the left shoulder of the road.

There was evidence of engineers and experts tendered on behalf of the appellant as well as for the respondent, some to the effect that the curve and the condition mentioned was a danger and a trap or menace at the posted speed of 50 miles an hour or thereabouts and other evidence to the effect that the curve was reasonably safe for traffic at 50 to 60 miles an hour. The accident occurred at about 5:30 p.m., just as it was getting dark. Mrs. Sorra testified that she was using her headlights on low beam, and she says that as she entered the curve she “hit a wall of dust” which she saw at the very last moment. This was the dust thrown up by her son’s vehicle. At the same instant her car passed over gravel on the road and was slewing, and as it turned sharply to the left she lost control of it. She testified that she had not seen the checkerboard sign or the curve sign and she attributes this to the cloud of dust referred to. She was unaware that there was a curve at that point until she got to it.

After going over all the evidence which had been tendered, the learned trial judge made the following findings of fact which he set out as such in his reasons:

1. Mrs. Sorra was driving her car at a speed of 40 to 50 m.p.h. The posted maximum speed on the

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road was 50 miles per hour. Her car was in good condition and she was keeping a proper lookout. Her headlights were lighted and on the low beam. Her son, O.F. Sorra, was driving about 100 yards ahead of her. As he entered the curve he encountered gravel on the pavement. The rear of his car swerved to the right and onto the shoulder of the road which caused a volume of dust to rise.

2. This dust obscured the checkerboard sign in such a manner that Mrs. Sorra did not see it.

3. I believe that she saw the curve sign but was led by its appearance to expect a mild curve. Approximately at the same time that she realized she had to turn more sharply to the left, she encountered the gravel on the pavement. Her turning movement combined with the gravel caused her car to slew to the right and she lost control of it. The injury to the Plaintiff followed.

and as against the respondent he made the following findings of negligence:

A. Having regard to the sharpness of the curve shown in Exhibit no. 9A, a speed control sign ought to have been placed well to the east of such curve.

B. The curve sign shown in Exhibit no. 9A was misleading, indicating as it did a mild curve rather than a sharp curve.

C. The Defendant’s employees were aware that there was some gravel on the pavement at a critical point after the grading on October 23rd. I find that there was in fact the fill of two standard size pails, that is from one to two cubic feet on the pavement at the most critical point and the failure to inspect the road and remove this gravel was negligence.

D. The road was improperly constructed in that the adverse superelevation made it difficult for a driver of a motor vehicle to take the curve at the permitted speed of 50 m.p.h.

and he concluded by finding the respondent 100 per cent at fault. He assessed the appellant’s damages at $22,086.16. There is no issue as to quantum involved in this appeal.

It had been urged that there was an onus on the appellant by reason of s. 106 of The Highway Traffic Act, R.S.O. 1960, c. 172, to establish that

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Mrs. Sorra was not guilty of any negligence. The respondent raises the question in her factum by postulating:

Whether the (Plaintiff) Appellant has placed upon her the onus of disproving the negligence of the driver of the vehicle of the Defendant Renate Sorra, pursuant to the provisions of The Highway Traffic Act, R.S.O. 1960, c. 172, s. 106.

I am unable to see where s. 106 of The Highway Traffic Act has any relevance at all in the instant case. Subsection (2) of s. 106 states clearly that the section is not to apply in case of a collision between motor vehicles, etc., nor to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger. The section, accordingly, has no application in the case of a claim by a passenger for injuries sustained while a passenger and that is the situation of the appellant here. The case, accordingly, falls to be determined without reference to s. 106 and the burden was on the appellant to establish negligence on the part of the respondent and for the respondent to establish negligence on the part of Mrs. Sorra and by s. 2 of The Negligence Act, R.S.O. 1960, c. 261, if there was negligence on the part of Mrs. Sorra the appellant cannot recover for the portion of the loss or damage attributable to Mrs. Sorra.

In the Court of Appeal Schroeder J.A., speaking for himself and Kelly J.A., appears to have retried the case on the merits and to have ignored the findings of fact made by Donohue J. on the conflicting evidence which he heard and assessed. He came to the conclusion that the accident was caused solely by the negligence of Mrs. Sorra and that there was no negligence on the part of the respondent. Laskin J.A., while agreeing that there was negligence on the part of Mrs. Sorra, was also of the view that there was negligence on the part of the respondent and would have apportioned responsibility equally between the driver of the Sorra car and the respondent.

I do not see how the majority in the Court of Appeal was justified in ignoring the evidence that the construction and maintenance of the curve in the condition it was in, namely, a 3° curve changing into a 10° curve and constructed so that, instead of being banked from the inner

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to the outer edge, it inclined in fact from the inner to the outer edge, a condition which was described by some of the witnesses as dangerous and faulty construction. I am, therefore, unable to agree with the conclusion that there was no negligence on the part of the respondent. On the other hand, Mrs. Sorra’s own testimony that she did not see either the curve or the checkerboard sign at all indicates that she was not keeping a proper lookout as she came to the curve and that her failure to see those signs was apt to, and did in fact, contribute to the accident that followed.

I would, accordingly, agree with Laskin J.A. and apportion the responsibility equally between Mrs. Sorra and the respondent and award the appellant damages in the sum of $11,043.08 with costs here and in the Courts below.

Appeal allowed with costs, MARTLAND and RITCHIE JJ. dissenting.

Solicitors for the plaintiff, appellant: Thomson, Rogers, Toronto.

Solicitors for the defendant, respondent: Price, Barrett, Mills, Finlayson & Hollyer, Toronto.



[1] [1927] A.C. 515 at 520.

 

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