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Motor vehicles—Negligence—Pedestrian walking near centre of highway struck by motor vehicle—Driver failing to satisfy Court he had sounded horn—Fault apportioned equally—The Vehicles Act, 1957 (Sask.), c. 93, ss. 112(1), 151(1), 158(1) [amended 1960, c. 29, s. 18].

Evidence—Burden of Proof—Injuries sustained by pedestrian when struck by motor vehicle on highway—Whether onus placed on driver discharged—The Vehicles Act, 1957 (Sask.), c. 93, 158(1) [amended 1960, c. 29, s. 18].

The plaintiff while walking along on a rural highway at night was struck from behind by an automobile owned by the first defendant and driven by the second defendant. The plaintiff, dressed in a dark suit, was walking northward, and according to the evidence of the defendant driver appeared to be walking in a normal manner two or three feet to the east of the centre of the road. The driver, who was also proceeding north, first saw the plaintiff when he switched his lights on to high beam, after meeting an approaching vehicle. His estimate was that the plaintiff was then about 150 feet ahead. The driver was then travelling at a speed of about 45 miles an hour. He immediately applied his brakes and pulled toward his right. There was room to

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pass the plaintiff had he not jumped toward his right, into the path of the car, at the last second. The car stopped, after skidding ahead, just after striking the plaintiff. The driver did not remember whether he had sounded the car’s horn or not.

An action brought by the plaintiff for damages for personal injuries was dismissed at trial and an appeal from the trial judgment was dismissed by the Court of Appeal. The plaintiff then appealed to this Court.

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


Per Hall, Spence and Laskin JJ.: The plaintiff was partly at fault in that he was not walking close to the left edge of the highway and was, therefore, in breach of s. 151(1) of The Vehicles Act, 1957 (Sask), c. 93. However, the driver failed to discharge the onus placed on him by s. 158(1) of proving that “the loss or damage did not entirely or solely arise” through his negligence. He was also at fault and he failed to show that he was not at fault by failing to satisfy the Court that he had sounded the horn on seeing the plaintiff and at a time when, seeing that the plaintiff did not appear to be aware of the car’s approach, it must have been manifest to the driver that some warning was required. The requirement of s. 112(1) of sounding the horn only when reasonably necessary emphasized the necessity to do so when reasonably necessary.

In accordance with the provisions of s. 2 of The Contributory Negligence Act, R.S.S. 1953, c. 83, fault should be apportioned equally.

Per Martland and Judson JJ., dissenting: The finding of the Courts below that “the defendant did what any reasonable man would do in an effort to avoid hitting the plaintiff” should not be disturbed.

APPEAL from a judgment of the Court of Appeal for Saskatchewan, dismissing an appeal from a judgment of MacDonald J. Appeal allowed, Martland and Judson JJ. dissenting.

H.C. Rees, Q.C., and K.C. Binks, Q.C., for the plaintiff, appellant.

D.B. MacDonald, Q.C, for the defendants, respondents.

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The judgment of Martland and Judson JJ. was delivered by

MARTLAND J. (dissenting)—This appeal is from a judgment of the Court of Appeal for Saskatchewan, which, by unanimous decision, dismissed the plaintiff’s appeal from the judgment at trial, dismissing his action, with costs. The claim is for personal injuries sustained by the plaintiff who, while a pedestrian on a highway, was struck by an automobile owned by the defendant, John Swetlishnoff, and operated by the defendant, Michael Swetlishnoff, who is hereinafter referred to as “the driver.” There are concurrent findings by the Courts below, absolving the driver from negligence and holding that the accident resulted solely from the negligence of the plaintiff.


The accident occurred at about 12:30 a.m. on October 11, 1964, on a gravelled road in Saskatchewan. There were two sets of worn traffic lines on the road, one on each side of the centre line. The plaintiff, dressed in a dark suit, was walking north on the highway, and, according to the evidence of the driver, accepted by the trial judge, was apparently walking near the centre line in the left-hand track of the set of tracks on the east side of the road. The driver, who was also proceeding north, first saw the plaintiff when he switched his lights on to high beam, after meeting an approaching vehicle. His estimate, which, on his evidence, can only be regarded as a rough approximation, was that the plaintiff was then about 150 feet ahead. The driver was then travelling at a speed of about 45 miles an hour. He immediately applied his brakes and pulled toward his right. The automobile was in good mechanical condition. There was room to pass the plaintiff had he not jumped toward his right, into the path of the car, at the last second. The car stopped, after skidding ahead, just after striking the plaintiff. It was then on the east edge of the road.

On these facts, I am not prepared to disturb the finding of the Courts below that, to quote

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the judgment of the Court of Appeal: “The defendant did what any reasonable man would do in an effort to avoid hitting the plaintiff.”

I would dismiss the appeal with costs.

The judgment of Hall, Spence and Laskin JJ. was delivered by

HALL J.—About 12:30 a.m. on October 11, 1964, the appellant, while walking along on a rural highway three miles north of Buchanan, Saskatchewan, was struck from behind by an automobile owned by the respondent John Swetlishnoff and driven by his son Michael Swetlishnoff who will be referred to as “the driver” in these reasons.

The driver who was alone in the vehicle was the only witness to testify concerning the actual impact. The appellant was rendered unconscious, suffering severe injuries and did not recover consciousness until some days later. He has no recollection of being hit or of what happened immediately prior thereto.

The travelled portion of the highway was 24 feet wide. It was a gravelled level dry roadway with ditches on both sides and, of course, no sidewalks. Pedestrians had to walk on the roadway.


When he was first seen by the driver, appellant was walking northward and the driver said he appeared to be walking in a normal manner about two or three feet to the east of the centre of the road in what the driver described as a smooth or worn path made by northbound traffic. There was, accordingly, a space of about nine to ten feet at most to his right and some 15 feet to his left. A standard automobile is about six feet in width. There was no southbound or oncoming traffic to affect the driver’s vision or manoeuvrability after he saw the appellant. The driver had met a southbound automobile before seeing appellant but had switched his lights back to high beam after this meeting and then saw appellant plainly for he observed that appellant was bare-headed and with his hands to his sides and some 150 feet ahead. The driver said he had been going from 40 to 45 miles per hour before meeting the southbound

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vehicle and that he had slackened speed somewhat and dimmed his lights, and that after meeting the other vehicle had begun to accelerate as he switched the lights to high beam.

Appellant, as a pedestrian, was in breach of s. 151(1) of The Vehicles Act of Saskatchewan, 1957, c. 93, which reads:

No person shall walk along the portion of a public highway used for vehicular traffic otherwise than close to the edge thereof on his left.

He was not walking close to the left edge of the highway. His counsel concedes that in the circumstances of this case appellant was partly at fault. The real issue in the appeal is whether the driver satisfied the onus placed on him by s. 158 (1) of The Vehicles Act as amended by 1960, c. 29, s. 18, which reads:

Where loss, damage or injury is sustained by a person by reason of a motor vehicle upon a highway, the onus of proof that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicle is on the owner or driver.

In exonerating the driver completely from all fault, the learned trial judge failed to refer to or apply s. 112(1) of The Vehicles Act which reads:

Every motor vehicle shall, while driven on a public highway, be equipped with a suitable horn or other device capable of emitting sound audible under normal conditions at a distance of not less than 200 feet, and such horn or device shall be sounded only when it is reasonably necessary to notify pedestrians or others of the approach of the vehicle.

I will deal with the significance of this omission later in these reasons.

As mentioned, the driver said he saw appellant when about 150 feet behind him. When asked, “Can you give any reason why, Michael, you did not see Mr. Ptycia until you did?” he replied, “Well mainly because of his dark clothing, I

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imagine, that’s about all.” Then, as to what he did on seeing appellant, the driver testified:

Q. Now you saw this person on the road. Now in which direction was he facing, do you know?

A. North.


Q. Looking away from you then?

A. That’s right.

Q. You hit your bakes. What happened?

A. Well as soon as I applied the brakes I pulled to my right to miss him.

* * *

Q. Well in any event there was nothing between John Ptycia and the left ditch to prevent you from driving there? There was no obstruction there?

A. No, not at the time, no.

* * *

Q. When you applied the brakes did your car go into the skid right away?

A. Well I stopped the wheels dead, yes.

* * *

Q. Yes. Now the thing that interests me—about that put on the brakes, the term you used in the examination for discovery, you “hit the brakes”. Did the car skid all the way until you came into contact with John Ptycia?

A. Until I stopped.

Q. Until you stopped.

A. I believe so, yes.

* * *

Q. And would you agree with me that those skid marks were something in excess of a hundred feet?

A. I really couldn’t remember but I believe so, yes.

The skid marks were measured by an R.C.M.P. constable who was called to the scene of the accident, but this constable did not give evidence at the trial nor was any explanation given as to why he was not called.

Asked whether he had sounded the horn, he said:

Q. Now did you to your knowledge, Michael, sound the horn of this car?

A. I don’t remember. If it was, it was just automatic reflex, I don’t know.

Q. You don’t recall?

A. No, I don’t.

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In summary, then, all the driver did on seeing appellant in his path 150 feet away was to apply the brakes, causing the vehicle to skid with wheels locked for something in excess of 100 feet at the same time directing the vehicle towards the east shoulder of the road, having elected to pass the pedestrian on the right. The driver was under no statutory duty to pass the pedestrian on the left, but in the situation that confronted him chose to pass in the narrower part on the right. As the vehicle caught up to appellant, he appears to have continued walking in the same traffic path and gave no sign of being aware that the vehicle was about to pass him until almost immediately before being hit he gave a jump or hop to his right and was struck by the front of the vehicle directly in front of the driver. It is clear that this jump or hop was in the last split second before he was hit. The learned trial judge correctly assessed this move by holding: “I do not find negligence in the plaintiff’s jump to the right in itself as that was done in the agony of the moment.”

Having reviewed the circumstances, the learned trial judge came to the conclusion that the driver had discharged the onus imposed by s. 158(1) and that “the defendant did what any reasonable man would do in an effort to avoid hitting the plaintiff.” With respect, I am unable to agree with this conclusion. The learned trial judge reached his conclusion upon findings that are not supported by the evidence and by giving undue weight to testimony from five witnesses whose evidence, if admissible at all, was of little or no weight. Relying on the evidence of these witnesses, he found:

The evidence leaves no doubt in my mind whatsoever that John Ptycia, proceeding north on the grid road, was walking in the middle of the road and that he was “wobbling” from one side of the road to the other.

The important fact to observe here is that the driver, and he was the only one who saw appellant immediately before the impact, did not suggest or imply that appellant was zigzagging or wobbling or walking otherwise than in a normal manner northward two or three feet to the right of the centre of the road from the time the driver first saw him until a split second before the im-

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pact. His manner of walking prior to coming into the driver’s vision cannot have affected events that happened after the driver saw him and this emphasis on evidence of events that happened prior to appellant coming into the driver’s vision so coloured the trial judge’s reasons that they cannot be accepted as findings of fact which this Court ought not to review even though those findings have been concurred in by the Court of Appeal.


It appears clear to me that the learned trial judge concerned himself unduly with fault on the part of appellant and gave too little weight tos. 158(1). The driver also had a duty towards appellant when he was observed 150 feet in the path of the northbound vehicle and apparently unaware of its approach. In those circumstances, there was, in my opinion, an obligation on the driver to sound the horn. The requirement of s. 112(1) of sounding the horn only when reasonably necessary emphasizes, I think, the necessity to do so when reasonably necessary. The burden cast upon the driver by s. 158(1) remains on him to the end of the case. It is not discharged by an equivocal statement that he may or may not have sounded the horn. The speed of his vehicle was, as he says, from 40 to 45 miles an hour when he first saw appellant. The vehicle came to a stop as it hit appellant. Taking 22 miles an hour as the average speed over the distance of the skid mark means that the driver had a minimum of three seconds after he saw him in which to warn appellant of the car’s approach. Three seconds is not a long interval of time, but accidents happen or are avoided in intervals of seconds or fractions of a second and not in intervals of minutes for even 15 seconds prior to hitting appellant the driver, coming at 45 miles an hour, was yet almost one-fifth of a mile behind him.

Now, dealing with the evidence of the five witnesses to which the learned trial judge gave such weight, it must be noted:

(1)    As to Swanton: This man said that while driving southward toward Buchanan in the early

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hours of the morning of October 11 and when about 3½ to 4 miles north of Buchanan he saw a man wearing dark clothes on the road whom he did not identify as being the appellant. It is significant to observe that if the evidence of the respondent driver is accepted, the accident happened 3 miles north of Buchanan and not where Swanton said he saw a pedestrian.

(2) As to Mr. and Mrs. Tratch: Mr. Tratch testified that when travelling at 25 to 30 miles an hour he saw appellant on the road 100 feet or so away who, as the car neared him “took across the road in front of me” from the west to the east and that he was “kind of wobbly walking in front of the car.” Mrs. Tratch said: “I seen a man. He was going north and we were going south. And that man was going—he didn’t go straight. It was going like zigzag or—on that road. We were passing him.” This meeting was not located in relation to the point of impact.


(3) As to Mr. and Mrs. Statchuk: Mr. Statchuk testified at or about 3 miles from Buchanan, while driving southward at about 40 miles an hour, he met appellant. His evidence was that appellant was 10 feet or so in front of the car when first seen by him in the middle of the road. Statchuk says that at the time he was driving at 40 miles an hour. There is no suggestion of any other traffic on the road at the time. He did not explain why, if his vehicle carried the lights required by law, he did not see appellant until within 10 feet or so of him. Mrs. Statchuk said: “And when we came closer he sort of jumped to the road or wobbled on the middle of the road.”

It must be observed that none of these five witnesses were in the vehicle which the respondent driver met shortly before he saw the appellant. That driver did not testify. Appellant’s manner of walking or wobbling at times or places other than when such conduct could affect the driver was, I think, inadmissible, but in any event in the circumstances of little weight in determining fault as between appellant and the driver at the material time when he was first seen by the driver and

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until he was hit. See Call v. Smith and Hellofs[1], Martin J.A. at p. 543, and Petijevich et al. v. Law[2].


In rinding the appellant solely at fault, the learned trial judge appears to excuse the failure to sound the horn by saying he cannot believe appellant would not hear a car approaching or see its lights. There was no evidence on this point and the learned trial judge assumes what might not necessarily be so. Again, the learned trial judge said he was satisfied that a reasonable driver would not expect anyone to be in the middle of that road shortly after midnight. This is, I must say, an assumption wholly unwarranted by the evidence. In a rural community any reasonable driver would expect to see pedestrians using a gravel road walking in the smoother paths. In any event, a driver should drive with the expectation that other traffic, both vehicular and pedestrian, will be on the highway. There is absent from this case any suggestion that the reason the driver struck appellant was because he was blinded by approaching lights or by the fact that appellant came suddenly from the side of the road or that the weather was bad or anything of that kind. Here the driver plainly saw appellant 150 feet away and did nothing but apply his brakes and incline his car to the right. I do not think that it is the law that what the driver did in this instance was sufficient to exonerate himself completely from all blame. Accordingly, I am of opinion that the learned trial judge erred in holding the appellant solely at fault. It is clear to me that the driver was also at fault and he failed to show that he was not at fault by failing to satisfy the Court that he had sounded the horn on seeing appellant and at a time when, seeing that the appellant did not appear to be aware of the car’s approach, it must have been manifest to the driver that some warning was required. The Saskatchewan Contributory Negligence Act, R.S.S. 1953, c. 83, s. 2, provides that if the Court is unable to determine the respective degrees of fault of appellant and respondent that the fault should be apportioned equally between them. I am unable to say that one was more

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at fault here than the other and I would accordingly apportion fault equally.

As the learned trial judge did not assess damages, the case must be referred back to him to do so on the basis of this judgment. Appellant will have his costs in this Court and in the Court of Appeal. The costs of the trial proceedings and of the proceedings to determine the amount of damages should be dealt with by the learned trial judge having regard to the provisions of the Contributory Negligence Act of Saskatchewan.

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

Solicitors for the plaintiff, appellant: Rees, Shmigelsky, Angene & Carey, Saskatoon.

Solicitors for the defendants, respondents: Morrison, MacDonald & Morrison, Yorkton.

 



[1] [1938] 3 W.W.R. 539.

[2] [1969] S.C.R. 257 at 263-4.

 

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