Supreme Court Judgments

Supreme Court of Canada

Canadian National Railway Co. v. Vincent, [1979] 1 S.C.R. 364

Date: 1978-10-31

The Canadian National Railway Company (Defendant) Appellant;

and

France Vincent (Plaintiff) Respondent.

1978: April 27; 1978: October 31.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Negligence—Accident at a level crossing—Quasi-delictual fault—Contributory negligence—Facts to be decided by jury—Respect for the jury’s verdict—Civil Code, art. 1053—Code of Civil Procedure, arts. 363, 380—Railway Act, R.S.C 1970, c. R-2, ss. 342(4), 372.

Respondent, then eleven years of age, was hit by a locomotive as, riding her bicycle, she was entering a level crossing in a densely populated area of Montreal. The Superior Court, following a jury verdict, held appellant to be liable to the extent of 55 per cent and condemned it to pay respondent the sum of $55,429. The majority of the Court of Appeal upheld this judgment. The appeal before this Court raises the issue of whether the verdict of the jury should be held to be unreasonable because the facts for which the appellant was blamed by the jury would not, in law, constitute a fault for which appellant can be held responsible.

Held (Martland and Spence JJ. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.: Even though appellant did not breach any statute or regulation, it must nevertheless be determined whether it committed a quasi-delict, that is whether its conduct was that of a reasonable person concerned about the interests of others and placed in the same external situation. In a jury trial the function of the judge is to state the law, while that of the jury is to decide the facts. Inasmuch as the jury has acted within its competence, the verdict is binding on the Court unless it is unreasonable. Where, as in the case at bar, the criterion that is to be used to determine whether there has been a quasi-delict is the conduct of a prudent and reasonable man, it is up to the judge to explain to the jury what is meant by this prudent and reasonable man but it is up to the jury, on the other hand, to decide whether the conduct of the defendant meets the requirements of this criterion. In deciding that appellant had

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been imprudent in not taking maximum safety measures, the jury did not adopt a standard of prudence and foresight so high as to show a lack of understanding of reality or to indicate a disregard for the dictates of reason. The jury’s finding that respondent’s fault did not have the degree of unforeseeability that would have made it a “cas fortuit” and that appellant should assume part of the liability for the accident is essentially a question of appreciation of the facts. The jury resolved it after taking all circumstances into account. Its decision could have been different but does not seem irrational.

Per Martland and Spence JJ., dissenting: The jury’s findings of negligence are contrary to the weight of the evidence and cannot be supported. This is an unreasonable and unjust verdict that should be set aside.

[Metropolitan Railway Co. v. Jackson (1877), 3 A.C. 193, followed; Gagné v. Côté, [1970] S.C.R. 25; Canadian National Railway Co. v. Ashby, [1976] C.A. 594; Vachon v. Pouliot, [1970] C.A. 964; City of Verdun v. Yeoman, [1925] S.C.R. 177; City of Ottawa v. Munroe, [1954] S.C.R. 756; Volkert v. Diamond Truck Co. Ltd. (1939), 66 Que. K.B. 385; Lemoine v. Drake (1940), 68 Que. K.B. 567; Lajeunesse v. Lamarche, [1970] C.A. 73; Vineberg v. Larocque, [1950] Que. K.B. 1; Glasgow Corporation v. Muir [1943] A.C. 448; Qualcast (Wolverhampton) Ltd. v. Haynes, [1959] A.C. 743; Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687, referred to: C.N.R. v. Lancia, [1949] S.C.R. 177; Wade v. C.N.R., [1978] 1 S.C.R. 1064, (1977), 80 D.L.R. (3d) 214; distinguished.]

APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Superior Court. Appeal dismissed, Martland and Spence JJ. dissenting.

Roland Boudreau, Q.C., Alphonse Giard and Michel Martineau, for the appellant.

Jean Crépeau, Q.C., and Louis A. Toupin, for the respondent.

The judgment of Laskin C.J. and Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ. was delivered by

PRATTE J.—Appellant is appealing from the majority decision (Turgeon and Kaufman JJ.A.,

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Tremblay C.J. dissenting) of the Court of Appeal of the province of Quebec upholding the judgment of the Superior Court of the district of Montreal (Nadeau J.) which, following the verdict of the jury, had held appellant to be liable for the accident that occurred to respondent to the extent of 55 per cent and had condemned appellant to pay respondent the sum of $55,429 in damages, with interest and costs.

The only issue raised by this appeal is whether the verdict of the jury should be held to be unreasonable because the facts for which the appellant was blamed by the jury would not, in law, constitute a fault for which appellant can be held responsible.

The accident which gave rise to this dispute occurred in the City of Montreal during the afternoon of April 15, 1964; respondent, then eleven years of age, when riding her bicycle in the wrong direction on Préfontaine Street, a one-way street, was hit by one of appellant’s locomotives as she was entering a level crossing.

There is no dispute as to the circumstances of the accident, which are described as follows by Turgeon J.A. (the decision of the Court of Appeal is summarized at [1975] C.A. 761):

[TRANSLATION] There is evidence to show that the area where the accident took place is densely populated, that it contains nine churches, seven schools and eleven playgrounds in the more or less immediate vicinity of the railway tracks, that Adélard Langevin school has a schoolyard located a few feet from the railway which is used by between seven and eight hundred pupils. There are approximately 90,000 people affected by the railroad’s activities in this area. It is a very busy line.

The Préfontaine Street level crossing consists of five railway lines running west to east and intersecting Préfontaine Street, which runs in a south-north direction. It is equipped with flashing lights with bells arranged in the following manner: one light at the southeast corner, one at the southwest corner and one at the northwest corner of the five sets of tracks. The accident occurred on the first set of tracks north of the level crossing. At this point, just before the level crossing, the trains

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coming from the west, such as the locomotive which caused the accident, are coming out of an inclined curve and running alongside buildings, including those of a transport company.

At the time of the accident there was a large truck parked facing south, on the northwest side of Préfontaine Street. According to the witness Pellerin, who was on board the locomotive as assistant fireman, this truck was parked about twelve feet from the tracks, beside the signal post, and was blocking his view.

The victim France Vincent was eleven years old. She was living on Préfontaine Street, and when the accident occurred she was coming home from playing in the Marchand schoolyard located south of the railway tracks. Heading south, almost in the centre of Préfontaine Street, she passed the truck parked on the northwest side and then rode onto the railway tracks. It was then that the accident occurred. The train was travelling west and the victim was dragged for some distance before it stopped.

France Vincent said that before the accident she had neither seen nor heard the approaching train, no doubt because her view was obstructed by the above-mentioned truck.

The locomotive involved in the accident was a shunting yard locomotive with the engine at the front and the control cab at the rear, so that the engineer, who was sitting on the right rear side, could not see anything on the left side, and vice versa for the fireman, who was seated on the left side of the cab. This locomotive had no speed indicator, nor did it have a brake handle within reach of the fireman, on the left side of the cab. In an emergency he had to ask his colleague to apply the brakes.

The three people who were at the rear of the locomotive when the accident occurred were Henri Aubertin, locomotive engineer, seated on the right side of the cab, who looked after the operation of the engine; Léonce Pellerin, locomotive fireman, seated on the left side of the cab and responsible for supervision; and Roger Briand, brakeman, who was standing in the car directly behind the locomotive.

To this summary of the facts, which is fully supported by the evidence, I wish to add only that it was within appellant’s knowledge that children frequently played on the railway tracks in the vicinity of the place where the accident occurred. The situation was such that the locomotive engineer, Henri Aubertin, who was familiar with the area where he frequently worked, had developed

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the habit of using the locomotive’s bell even though this measure was prohibited by the City of Montreal by-laws; his testimony reads in part as follows:

[TRANSLATION] Q. YOU do not remember having seen children?

A. No, because there are so many in that area, I do not remember.

Q. When you say there are so many in that area, when you have gone past there over the last two years, have you often seen children?

A. Yes, many.

…

Q. Now, when you were approaching Préfontaine Street, did you, as you were in charge, responsible for the locomotive, did you make any signals, did you give any signals when you were approaching the level crossing?

A. Yes, the locomotive’s bell was operating.

Q. Were you required to use the bell?

A. No, not necessarily. I did this simply as a safety measure.

Q. Did you use the whistle?

A. No, I didn’t use the whistle.

Q. Why didn’t you use the whistle?

A. It is prohibited by the city of Montreal by-laws.

Q. Did the by-laws, to your knowledge, also mention the bell?

A. Absolutely.

Q. And if I understand correctly, you yourself used the bell anyway?

A. Yes, because in that area there are always children on the tracks. We use the locomotive’s bell as a safeguard.

Respondent, who was seriously injured in this accident and suffers from a permanent partial disability, sued appellant in damages for $101,280. The case was heard by a judge and jury. The jury rendered a verdict of contributory negligence whereby it assigned 95 per cent of the liability to appellant and 5 per cent to respondent. The jury also assessed the damage suffered by respondent at $100,780. The jury’s verdict reads as follows:

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[TRANSLATION]

TO BE SUBMITTED TO THE JURY

1—On or about April 15, 1964, at about 4:40 p.m., was France Vincent, the minor daughter of plaintiff Jean-Guy Vincent, involved in a collision with a train at the level crossing on Préfontaine Street in Montreal?

A. Yes—unanimous

2—Was the said train at the time under the care and supervision of the employees of defendant, the Canadian National Railways, who were at the time performing the duties for which they were employed?

A. Yes—unanimous

3—Was the accident solely and exclusively attributable to the actions or omissions of defendant itself and of its employees in charge of the locomotive? If the answer is yes, state what these actions or omissions consisted of. (Please give all necessary details, in each of the above two cases, where appropriate.)

A. No—5 to 1

4—Was the accident solely and exclusively attributable to the actions or omissions of France Vincent? If the answer is yes, state what these actions or omissions consisted of. (Please give all necessary details.)

A. No—unanimous

5—If you have answered no to both preceding questions, was the accident attributable in part to the actions or omissions of the defendant itself and of its employees in charge of the locomotive and also in part to those of France Vincent? If the answer is yes, state what these deeds, actions or omissions of each of the above parties consisted of, giving all necessary details.

A. Yes—5 to 1

Defendant:

We think that in view of the densely populated area, right near a school with the train coming out of an inclined curve, maximum safety measures should have been taken. To this must be added the fact that it was impossible for Mr. Pellerin to apply the brakes, and the lack of a speed indicator.

Even though Pellerin’s view was obstructed by the truck, he continued on without ascertaining whether the tracks were clear, relying solely on the small white light.

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We think that in the circumstances the person responsible for safety should have instructed Mr. Briand or someone else to ascertain whether the tracks were clear after stopping the train.

Plaintiff:

We have found a lack of care and attention on the part of France Vincent.

6—If you have answered yes to the preceding question, state in what proportion the two parties should be held liable for the amount of damages suffered by the plaintiff.

A. Defendant 95 per cent; France Vincent 5 percent—4 to 2

7—Did plaintiff, in his capacity as tutor of his minor daughter, suffer or will he suffer damage as a consequence of this accident? If so, state what this damage consisted of or will consist of, and how much you are awarding for:

(a) Expenses and disbursements for doctors and hospitals:

$780.00 unanimous

(b) Future medical expenses (double prostheses):

$15,000.00 unanimous

(c) Esthetic damage:

$10,000.00 4 to 2

(d) Physical pain and suffering:

$5,000.00 unanimous

(e) Inconvenience and loss of enjoyment of life:

$10,000.00 unanimous

(f) Permanent partial disability:

$60,000.00 unanimous

Additional answers of the jurors in reply to the request from the Court for particulars concerning the verdict.

THE COURT:

In my view, there is a certain lack of precision regarding something which has been mentioned here, namely the lack of a speed indicator. I feel compelled to ask you to retire and specify whether, on the basis of the facts proved, notwithstanding what you noted there, the lack of a speed indicator, whether the speed was—whether you have determined on the basis of the evidence what the speed was, and to let us know.

There is perhaps another ambiguity when you say:

We think that in the circumstances the person responsible for safety should have instructed Mr. Briand or someone else to ascertain whether the tracks were clear after stopping the train. Do you mean after the accident or before?

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JUROR NO. 2—C. Brien replied:

Before the accident.

THE COURT:

For the speed, is it necessary for you to retire to discuss it or can you tell us what you found in the evidence concerning the speed?

JUROR NO. 5—C.A. Charette, answered:

That is to say, the train was doing 5 to 10 miles an hour but since there is no speed indicator it was not possible to determine the speed of the train. One of the employees of Canadian National testified that there was no speed indicator on that train.

THE COURT:

Does this represent your views?

JUROR No. 4—R. Labelle, answered:

The person in charge of safety—we are speaking of Mr. Pellerin. We should perhaps have said Mr. Pellerin.

THE COURT:

That is clear from the evidence.

Following this verdict, respondent asked that judgment be given in accordance with the verdict while appellant asked that the verdict be set aside.

In a judgment on September 22, 1970, the Superior Court (Nadeau J.) accepted the assessment of damages made by the jury but changed the apportionment of liability by increasing respondent’s share to 45 per cent; appellant was accordingly condemned to pay respondent the sum of $55,429 with interest and costs.

The judgment of the Superior Court reads in part as follows:

[TRANSLATION] WHEREAS the jurors blamed defendant’s employees for a certain number of faults;

WHEREAS this verdict does not seem unreasonable from the point of view of the existence of liability on the part of defendant, in the special circumstances disclosed by the evidence;,

WHEREAS, however, the jurors committed an error in the apportionment of the liability, and the verdict, which imposed 95 per cent of the liability on defendant and only 5 per cent on plaintiffs ward, cannot be justified in law;

WHEREAS in order to remain in keeping with the spirit of the verdict, a greater share of the liability must nevertheless be attributed to defendant than to plaintiffs ward; and whereas the Court believes it should

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establish the following proportions: 55 per cent of the liability on defendant and 45 per cent on plaintiffs ward;

WHEREAS even if the damages awarded appear high, they are not so high that the Court should intervene to reduce them;

FOR THESE REASONS:

Rendering judgment in accordance with the verdict, but changing it from the point of view of the apportionment of liability, ALLOWS the action in part and CONDEMNS defendant, the Canadian National Railways, to pay plaintiff ès qualité the sum of $55,429.00 with interest from the date of service of the action, and costs.

This judgment of the Superior Court was upheld by a majority of the Court of Appeal. Turgeon J.A., whose opinion was concurred in by Kaufman J.A., did not think that [TRANSLATION] “the verdict is so unreasonable and unjust that no jury could reasonably have rendered it having considered all the evidence”; in his view, [TRANSLATION] “the mere fact that a judge would have found that certain acts performed by appellant’s employees were not a fault, while the jury decided otherwise, does not constitute a sufficient ground for setting aside the verdict, …”.

Chief Justice Tremblay, on the other hand, would have allowed the appeal and set aside the judgment of the Superior Court because, in his opinion, [TRANSLATION] “the acts and omissions for which appellant and its employees were held liable by the verdict do not, in law, constitute faults” and because, as it would have been held by this Court in Canadian National Railways v. Lancia[2], [TRANSLATION] “it is for the judge, not the jury, to determine whether an act or omission constitutes a fault”.

It must be said at the outset that, under the verdict, appellant is not held liable by reason of any breach of the Railway Act (R.S.C. 1970, c. R-2) or of the regulations of the Canadian Transport Commission. The issue is rather whether appellant can be found guilty of negligence under arts. 1053 et seq. of the Civil Code, although it complied with all the special statutory and regulatory provisions to which it is subject. The special

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provisions governing appellant certainly do not have the effect of exempting it from the ordinary law of civil liability. Savatier in Traité de la responsabilité civile en droit français, Vol. 1, No. 181, at p. 225, said the following on this point:

[TRANSLATION] 181. Fault despite compliance with regulations.

When the regulatory authority intervenes to prescribe certain safeguards, it does so in the interest of third parties, not to their detriment. Except where otherwise provided, the precautions it is prescribing must therefore be viewed as being in no way exhaustive, and as not preventing those subject to the regulation from being also bound, apart from it, by any other obligations to exercise prudence.

This principle was unanimously accepted by this Court in Gagné v. Côté[3], where the issue was whether driving an animal-drawn vehicle at night without a light or a reflector constituted negligence even though the Highway Code did not impose any such obligation for this type of vehicle. Speaking for the Court, Pigeon J. indicated clearly the distinction between a breach of a regulation and a civil fault; referring to the Highway Code, he said inter alia at p. 28:

…the new provisions… required red lights in the rear of automobiles and trailers and a red light or a reflector in the rear of all bicycles and tricycles, but included no such requirement for animal-drawn vehicles.

Does this mean that driving at night a horse-drawn vehicle without a light or reflector cannot be considered as negligence? I do not think so. To hold this to be negligent is not, as was suggested, to usurp the functions of the legislature and to create an obligation that it has always refused to impose. Although extremely important from the point of view of civil responsibility, the section of the Highway Code is, essentially, a statutory provision to which a penalty is attached. Until such time as the legislature adds to it a provision applicable to cases such as the one before us, the police will obviously be unable to issue tickets in such cases and the courts of summary jurisdiction will be unable to impose penalties. This does not mean that the civil courts are not entitled to consider that a fault has been committed, because the

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statutory provisions do not mention all the obligations incumbent upon the citizens.

Moreover, s. 342(4) of the Railway Act (R.S.C. 1970, c. R-2) confirms this point of view. The situation is both accurately and concisely described by Casey J.A.: “Compliance with all the regulations does not necessarily mean that Appellant would escape responsibility under C.C. 1053” (Canadian National Railway Co. v. Ashby[4], at p. 595).

Thus, even though it has been established that appellant did not breach any statute or regulation, there remains to determine whether appellant was guilty of a quasi-delict which would make it liable to respondent. According to Mazeaud and Tunc (Responsabilité civile délictuelle et contractuelle, (6th ed.) Vol. 1, No. 439, at pp. 504 and 505), a quasi-delictual fault is an error in conduct which would not have been committed by a reasonable person concerned about the interests of others and placed in the same external situation as the person who caused the damage.

In the case at bar, to determine whether appellant committed a fault, we must compare its conduct to that of “a reasonable person, concerned about the interests of others, and placed in the same external situation”; the issue is, in short, whether appellant behaved like a prudent and reasonable person, aware of its obligations both toward its clients and toward the public, and taking into account the danger posed by some of its facilities.

It is from this point of view that we must decide whether the jury’s verdict should be set aside and the action dismissed.

The great weight that attaches to a verdict is well-known; it has often been said that the jury is sovereign. Its decision may not be quashed by the Court for the sole reason that it would have come to a different conclusion; the verdict is binding on

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the Court unless it is unreasonable. (art. 380 C.C.P.).

However, it is certain that the verdict of the jury carries such weight only inasmuch as the jury has acted within its competence.

The function of the jury is to decide the facts; that of the judge is to state the law. Article 363 C.C.P. is clear on this point:

363. The jury can only decide pure questions of fact, in the light of the evidence admitted by the judge; everything relating to the law is under the sole authority of the judge.

The rule stated in this article is not different from that which existed under the old Code (Vachon v. Pouliot[5]) or from that in effect at common law.

In order to determine the weight to be given to the verdict in the case at bar, it is necessary to distinguish between a question of fact and a question of law. Where the issue is as to whether there has been a quasi-delict, it is up to the judge to lay down the criterion that will be used to determine whether there has been fault; this is undoubtedly a question of law. In some cases the criterion is specific and rigorously objective; it is factual; this is the case, for example, where the law prescribes a specific requirement that can be easily measured: the maximum speed limit is 40 km an hour, all vehicles must stop at a red light, headlights must be turned on after sundown, and so on. In such circumstances the jury’s function is essentially to tell the judge whether these requirements of the law have been complied with, it is simply to establish the facts.

However, the role of the jury is much broader, in my view, where the criterion that is to be used to determine whether there has been a quasi-delict is, as in the case at bar, the conduct of a prudent and reasonable man. In this case, while it is up to the judge to explain to the jury what is meant by this prudent and reasonable man whose behaviour is to be used as a criterion, it is up to the jury, on

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the other hand, to decide whether the conduct of the party being sued meets the requirements of this criterion. The role of the jury then is not merely to establish the facts; it must also say whether the conduct of the defendant was that of a prudent and reasonable person which necessarily implies that the jury must determine how, in the circumstances of a given case, a prudent and reasonable person would have acted; it must translate this objective and theoritical criterion into concrete terms.

It does not follow, however, that the jury, when exercising this broad function, has absolute authority; its authority is the same as when it merely establishes the facts; in either case its verdict will be set aside if it is unreasonable. A jury can no more create a fault than it can create a fact. Whether the jury’s task is to establish the facts or to decide whether the defendant has behaved like a prudent and reasonable person concerned about the interests of others, the jury cannot create something which does not exist.

The criterion of a “reasonable person concerned about the interests of others” referred to by Mazeaud in his definition of a quasi-delict purports to be objective; owing to its highly theoretical character, however, this criterion necessarily becomes partially subjective in its practical application. Everyone does not have the same perception of the conduct of a reasonable man; some require a higher degree of foresight and prudence than others. The criterion that must be used in determining whether there has been fault is, in practice, variable: a fault will exist or not depending on the concept of the prudent and reasonable man that will be used by each person called upon the judge the conduct of the author of the damage.

The idea of the prudent and reasonable man held by the jury which has to decide whether there has been a quasi-delict will not necessarily be that of the judge. There are two possible situations. First there is the case where the divergence between the views of the jury and those of the judge consists only in a slight difference in the degree of prudence and foresight of a prudent and reasonable man. In this case the judge is bound by the authority of the verdict as if this were an apprecia-

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tion of purely material facts; in this limited sense, the question of whether someone has been negligent can be considered as a question of fact. Then there is the case where the difference in opinion is much more fundamental: the wrongful acts which the jury is blaming on the author of the damage cannot in law constitute a fault capable of making the party civilly liable, either because there is no causal link between the acts in question and the damage, or because the acts in question indicate the adoption of a criterion of prudence and foresight which is unreasonable, for example because it is too stringent or too lenient. In such a situation the effect of the verdict is effectively to transform a conduct which is clearly not wrongful into a wrongful conduct, or of creating a causal link where there is none, or vice versa: the verdict is in fact unreasonable, it must therefore be set aside.

This interpretation of the role of the jury and the authority of its verdict seems to me to accord with both doctrine and case law. Fleming (The Law of Torts, 5th ed., at p. 107) wrote as follows:

It is for the court… to lay down in general terms the standard of care by which to measure the defendant’s conduct; it is for the jury to translate the general into a particular standard suitable for the case in hand and to decide whether that standard has been attained.

Further, at pp. 292 and 293, the same author expressed the same idea as follows:

In truth, the jury’s function is twofold, partaking in the determination of legal consequences no less than of facts. For, aside from its traditional task of weighing the evidence as to facts alleged to give rise to liability, the jury participates in significant measure in settling the legal consequences flowing from the facts thus ascertained. For instance, it falls within their province to translate the metaphysical standard of the reasonable and prudent man into a concrete standard applicable to the particular case before them and, in that light, to decide whether the defendant failed to conform. This process involves not a determination of fact, but the formulation of a value judgment or norm which is qualitatively of almost equal significance to the enunciation of a rule of law by the court. The only difference between them is that the jury’s evaluation is decisive

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alone in the particular case before it, whereas the Judge’s pronouncement of principle is endowed with generality and precedential potential.

…

Next it is for the court to lay down the general standard of care exacted by law for the protection of persons in the plaintiffs position. This will ordinarily take the form of an incantation of the traditional formula of the reasonable and prudent man. In a few situations, however the legal standard of reasonable conduct has been defined with greater precision.

See also Street, The Law of Torts, 6th ed., at p. 131.

The leading case is a decision of the House of Lords in 1877 in Metropolitan Railway Company v. Jackson[6]. The following passages from the reasons of Lord Cairns are still good law and are worth citing:

The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the Judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever (at p. 197).

…

It is indeed impossible to lay down any rule except that which at the outset I referred to, namely, that from any given state of facts the Judge must say whether negligence can legitimately be inferred, and the jury whether it ought to be inferred (at p. 200).

This decision has been followed in a number of cases; I shall mention only City of Verdun v.

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Yeoman[7], City of Ottawa v. Munroe[8], Volkert v. Diamond Truck Co. Ltd.[9], Lemoine v. Drake[10].

In the recent case of Lajeunesse v. Lamarche[11], where the issue was whether defendant had committed a quasi-delict in not acting as a reasonable man, the Court of Appeal adopted the same point of view, but expressed it differently. Turgeon J.A. stated the following (at p. 78):

[TRANSLATION] The first question that arises is whether the verdict is so unreasonable and unfair that no jury, having considered all the evidence, could reasonably have rendered it. With deference to the trial judge, I do not think so. The fact that a judge has found that certain acts or statements by the defendant are wrongful, whereas the jury did not take them into account, does not constitute a sufficient ground for setting aside the verdict, since the courts must not substitute their own appreciation of the evidence for that of the jurors: the latter are the judges of fact.

Owen J.A. observed (at pp. 78-79):

This is not a case where there is no evidence upon which a jury could find a verdict against the defendant. The presiding judge stated to the jury the law prescribing a standard of care by which the defendant’s conduct should be tested and it was left to the jury to decide whether the defendant did or did not measure up to that standard. Nine out of twelve jurors so instructed came to the conclusion that the defendant did everything that a bon père de famille would have done in the circumstances and that there was no fault on his part. The court should not substitute its opinion for that of the jury on this point.

As Bissonnette J. said in Vineberg v. Larocque[12], at p. 11:

[TRANSLATION] Weighing the evidence is the function of the jury… but the question of whether there is any evidence and if so, whether it established a legal link between the parties, or whether the facts proven have a causal relationship, is a question of law.

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See also: Glasgow Corporation v. Muir[13], per Lord Thankerton, at pp. 454 and 455; Qualcast (Wolverhampton) Ltd. v. Haynes[14], per Lord Keith of Avonholm, at p. 755; per Lord Somervell of Harrow, at p. 757; per Lord Denning, at pp. 759 and 760.

In the case at bar, appellant is relying essentially on two decisions of this Court, Canadian National Railways v. Lancia[15] and Wade v. Canadian National Railways Company[16].

In my opinion, the decision in Lancia, to which reference was also made by Tremblay C.J. in his dissenting reasons, does not have the scope that appellant is giving it. The reasons of the judges, particularly those of Rinfret C.J., must be construed in the light of the particular facts of the case they had to decide. It is clear that in that case, the act alleged against the company could not constitute a fault in law; in holding the company liable, therefore, the jury had rendered an unreasonable verdict which had to be set aside. Rinfret C.J. said the following, inter alia (at p. 187):

It remained, however, for the Courts to decide whether, in the circumstances, the mere shouting, as found by the jury, amounted to a fault in law, or, in the language of the Civil Code (Article 1053) amounted to a fault or “offence” within the four corners of that section of the law.

It can be seen, from the review I have made of all the judgments of the learned judges both in the Superior Court and in the Court of King’s Bench (Appeal Side), that not only was the shouting of Tremblay not an offence or fault in the circumstances, but, moreover, it was not a contributory cause of the accident of which the boy, Lancia, was a victim.

(At p. 188):

It really comes to this—that the sole fault committed by any one in this accident was caused by the boy’s own reckless act in getting on the freight car and remaining there while the car was moving. Such being the case, it is impossible to say that the finding of the jury (shouting) could ever be declared a fault under the law of

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Quebec. As it was not a fault, it was the duty undoubtedly of the judges to so declare it, and, therefore, to dismiss the action on the verdict rendered. That is what should have been done by the trial judge (C.C.P., article 491), or by the Court of King’s Bench (Appeal Side) (C.C.P., article 508).

Kerwin J., as he then was, said simply (at pp. 188-189):

There was no evidence upon which the jury could reasonably find that the shouting of Tremblay, said by them to be the latter’s fault, was negligence contributing to the accident.

Kellock J. expressed his opinion in the following terms (at pp. 191-192):

It is of course clear that while it is for the jury to find the facts it is the function of the court to determine whether or not there is any evidence to support the findings and also to decide whether any particular answer is in law a finding of fault or negligence.

In the case at bar it is plain that the act of negligence pleaded as against the appellant was not established in evidence.

…

Upon the facts as found by the jury, any finding that Tremblay fell short of the conduct of a reasonably careful man must be regarded as perverse.

As for Locke J., he said the following (at p. 196):

The reckless driver of an automobile who, by his negligence, places the driver of another vehicle in a position of danger cannot complain if in the situation thus created the other person makes an error in judgment and a collision results. A trespasser cannot, in my opinion, create a situation of danger to himself and complain of an error of judgment in the steps taken to extricate him. There was here no evidence upon which to find that there had been any wilful act in disregard of humanity towards the boy, nor any act done with reckless disregard of his presence, nor any wilful act involving something more than the absence of reasonable care nor, in the language of Viscount Dunedin in Addles case, any “malicious injury”.

It would therefore be wrong to think that by this decision this Court intended to alter the rule laid down in Metropolitan Railway Company v. Jackson (supra), whereby the determination of what would have been the conduct of a prudent and

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reasonable man is a question of fact of which the jury, if it acts reasonably, is the final judge.

As for the decision in Wade, I fail to see that it is relevant here. This was a case governed by the common law where, according to the majority of the Court, the issue was whether defendant owed plaintiff a duty of care, this being a prerequisite to liability and, everyone seemed to agree, a question of law. However, the prior existence of a duty of care does not pose a problem in the case at bar, since it is governed by civil law where appellant’s conduct must be judged having regard to the general rule stated in art. 1053 C.C. (See David, Le droit anglais, at p. 119; Arminjon, Nolde, Wolff, Droit comparé, Vol. 3, at p. 169; Lawson, “The Duty of Care in Negligence: A comparative Study” (1947), 22 Tulane Law Review, 111; Walton, “Delictual Responsibility in the Modern Civil Law (more particularly in the French Law) as compared with the English Law of Torts” (1933), 49 L.Q. Review 70.)

In the case at bar, it is admitted that the judge correctly stated to the jury the principles of civil liability which the latter had to apply; in examining the verdict, therefore, we must ask ourselves whether it is unreasonable, and not whether, faced with the same questions as the jury, we would have decided differently. The decision of the jury must be respected, even if it does not meet with the approval of the judge presiding at the trial or of the appellate judges, provided however that it is not unreasonable or, in other words, [TRANSLATION] “that some of the evidence submitted to the jurors be capable of leading one acting according to the dictates of reason to decide like the verdict” (Vineberg v. Larocque, supra, at p. 7).

The jury decided that appellant had been imprudent in not taking “maximum security measures”; in addition to using the bell of the locomotive, it should have taken precautions other than those prescribed by the Railway Act (R.S.C. 1970, c. R-2) and the Canadian Transport Commission regulations. In support of its conclusion the jury noted the following factors:

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(a) “densely populated area”:

the population of the area through which the railway runs is approximately 90,000 people;

(b) “school district”:

there are ten schools and eleven playgrounds in the vicinity of the railway tracks; the yard of one of these schools, which has between 700 and 800 pupils, is only a few feet from the tracks, where children were often playing;

(c) “trains coming out of an inclined curve”:

this item obviously refers to the geography of the area, which prevented the locomotive operators from being able to see easily whether the level crossing was clear; their field of vision was partially obstructed by buildings and fences along a downhill curve immediately before the crossing where the accident occurred;

(d) “the fact that it was impossible for Mr. Pellerin to apply the brakes”:

Pellerin was the locomotive’s fireman; in this capacity he was responsible for ensuring that the train was operating under safe conditions, particularly at level crossings; the locomotive under his control was a shunting yard locomotive that was not equipped with a double brake control system; when he saw respondent about to enter the level crossing, he therefore had to instruct Aubertin to apply the brakes rather than doing so himself;

(e) “Pellerin’s view was obstructed”:

a truck, parked near the railway, was blocking Pellerin’s view; it prevented him from seeing whether the tracks were clear or whether traffic was about to enter the level crossing notwithstanding the imminent arrival of the train;

(f) “lack of speed indicator”:

unlike other locomotives, the one involved in the accident was not equipped with a speed indicator; the lack of an indicator obviously did not cause the accident; however, the jurors explained that the lack of an indicator made it impossible for them to determine the train’s speed. In view of this

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explanation, it is not unreasonable to believe, as Turgeon J.A. did, that the jurors [TRANSLATION] “doubted the credibility of appellant’s witnesses, who stated at the trial that the train’s speed was approximately six miles an hour.”

Another fact which weighed against appellant is that the train crew relied solely on the flashing lights located on either side of the crossing, whereas according to the jury they should have ascertained whether the track was clear “after stopping the train”; this safety measure was no doubt suggested to the jury by the fact that the train had stopped before the previous level crossing, located near the one where the accident occurred, so that the signal lights could be triggered. There is no doubt, however, that the duty to act prudently that is imposed on a railway company does not as a general rule include the obligation to stop the train at every level crossing in order to ascertain whether it is obstructed. I would even say that this obligation could only exist in very special circumstances that would dictate to a prudent and reasonable man such a stringent and exceptional course of action. Here I see nothing in the evidence to justify imposing such a strict obligation on appellant. It does not follow, however, that the verdict should be set aside. This was not in fact the only ground on which the jury found appellant to be liable; I would even say that this was not the principal ground; for my part, I think that this criticism merely indicates how dangerous the situation was in the eyes of the jury; I do not attach any greater significance to this ground of negligence mentioned by the jury.

According to the jury, additional safety measures were necessary owing to the special dangers created by the geography of the area, the density of the population, the proximity of the schools, the constant presence of children, and the poor visibility on the day of the accident.

I readily admit that in some respects the verdict is not as well expressed as one might have wished; as a whole, however, it indicates clearly the intent of the jury and the reasons why appellant was

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found partly liable (Dufour et al. v. Ferland[17]). The factors which the jury held against appellant indicate clearly that, in the opinion of the jury, the Préfontaine Street level crossing presented unusual risks which were made more serious on the day of the accident by the poor visibility that then prevailed. According to the jury, appellant should have been more careful. It is easy to think of a number of additional safety precautions which could have been taken by appellant and which could not be regarded as unrealistic. Thus, for example, seeing that the view was blocked, the crew could have further reduced the speed; or at any rate, given the geography of the area, an employee could have been posted at the front of the locomotive to signal the approach of the train to those about to cross the crossing; indeed, s. 372 of the Railway Act imposes the latter security measure in the circumstances mentioned in the section which are not those of the case at bar; it cannot be inferred, however, that such is not a measure which a prudent and reasonable man would have adopted in the circumstances of the accident which gave rise to this dispute. In deciding as it did, the jury did not adopt a standard of prudence and foresight so high as to show a lack of understanding of reality or to indicate a disregard for the dictates of reason; nothing could lead one to believe that the jury was motivated by irrelevant considerations.

Indeed, it is not irrational to hold the view that a railway company must exercise greater caution when a level crossing is dangerous and, in addition, the visibility nil.

It cannot be objected that respondent’s fault—which is certain and which was not disputed in this Court—was unforeseeable by appellant because respondent was riding in the wrong direction on Préfontaine Street. It is suggested that appellant relied and was entitled to rely on the traffic by-law being fully complied with by all those using Préfontaine Street.

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First of all and in any event, it seems to me that this reasoning can have no validity unless it is possible to say on the basis of the evidence that appellant in fact relied on the prudence of others, that its conduct was based on the assumption that the municipal traffic by-law would be complied with. Here, nothing would support such a conclusion. The two occupants of the cab were each watching one side of the railway tracks attentively, and there is no indication—on the contrary—that Pellerin, who was on the left-hand side of the cab, where the accident occurred, exercised less care than his companion because the traffic was supported to come only from the opposite direction; on the contrary, even though his view was obstructed and though he knew that Préfontaine was a oneway street, he nevertheless tried to see whether the tracks were clear and whether any traffic was about to cross. Called as a witness for appellant at the hearing, Pellerin testified in part as follows:

[TRANSLATION] Q. When you were approaching the level crossing, what did you do in the locomotive?

A. First, I looked to the north to see if there was any traffic. Then I continued to watch the tracks ahead of me. I was mostly looking around the back of the truck, at that time.

Q. Could you see a certain distance in front of the truck?

A. In front of the truck?

Q. Yes.

A. I saw part of the street, but there was something in the yard. There is a large, fairly high fence, there.

Q. There was something in the yard?

A. There was something there.

Q. Such as what?

A. Well… some type of machine, I don’t know …

Q. Which was where? Where was it, this machine? Wait a minute. There was D-7, a while ago. Where was this machine you saw?

A. It was… there is a yard, with a fence which turns the corner like that. Well, it was in the yard. But I can’t say what it was. That is because I was trying

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to watch the street to see if there was anything there.

It therefore cannot be said, in these circumstances, that appellant failed to adopt additional safety precautions because it knew that Préfontaine was a one-way street and because it was relying on the traffic by-law being observed.

As to the extent to which one is entitled to rely on the prudence of another, this is essentially a question of opinion and of fact. In his Traité de la responsabilité civile en droit français, 1939, Vol. 1, No. 189, at p. 236, Savatier wrote as follows:

[TRANSLATION] The appreciation of the foreseeability and avoidability of the harm caused depends on what it is, since the harm which a certain person has helped to cause, only because a third party has himself breached a rule which this person was entitled to believe would be observed, will be considered unforeseeable and unavoidable by that person. Thus a motorist who enters a level crossing where the gate is open is justified in believing that there are no trains coming;

…

This problem is of particular practical significance in the situation where a car knocks down, injures or kills a pedestrian who has thrown himself in front of it. It appears clearly, from reading the decisions, that the courts tend to make an initial distinction between adult pedestrians who are in control of their faculties and children or the infirm. Whereas the motorist is justified to a fairly large extent in relying on the judgment of the former group, in which gross carelessness will usually be the exception, on the other hand any careful motorist must anticipate the possible rashness of a child or the clumsiness of an infirm person. However, this rashness may be such that it exceeds the bounds of what a motorist could and should normally anticipate; it will then constitute a fortuitous occurrence. This is, as we have said, a question of fact and of evidence. Where the pedestrian has had the accident only because he has not only walked, but fallen, in front of the car, his fall adds a measure of unforeseeability which helps make this a fortuitous occurrence.

In establishing his course of action a prudent and reasonable man cannot ignore the careless actions that are often those of children; he must exercise all the more prudence and foresight if he knows that his activities present a particular

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danger which children generally seem inclined to ignore when they are not attracted by it.

Here appellant knew the area well; it was not unaware of the various facts which the jury held against it; it knew that children played on and around the tracks; it must have known that these children frequently crossed the railway tracks, sometimes on Préfontaine Street, sometimes elsewhere. A vast number of careless actions was foreseeable; I do not see why travelling in the wrong direction would be more unforeseeable than running across the railway tracks without looking to see if a train is about to cross the level crossing. Unfortunately all too often young cyclists do not obey the traffic regulations, whether they be stop signs, traffic lights or the direction of traffic. In these circumstances could appellant reasonably believe that the children could in many ways be careless but would never ride in the wrong direction? I do not think so.

In deciding that appellant should assume part of the liability for the accident, the jury in effect decided that respondent’s fault did not have the degree of unforeseeability that would have made it a “cas fortuit”. This is essentially a question of appreciation of the facts which the jury resolved after taking all circumstances into account; its decision could not doubt have been different; however, it does not seem irrational to me.

In Paskivski v. Canadian Pacific Limited[18], this Court held the railway company liable following an accident involving a child of seven who had slid under the wheels of a moving railway car while watching a train go through a level crossing. The circumstances of the accident are described by Dickson J. in his reasons. In a majority decision, this Court ruled that the railway company was guilty of the tort of negligence in not taking special measures to prevent the victim from sliding under the wheels of the railway car. In the case at bar,

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the circumstances of the accident are, in my opinion, at least as favourable to the victim as they were in Paskivski; in view of this decision, I do not see how it could be concluded that the verdict rendered by the jury in the case at bar, though no doubt strict, is so strict as to be unreasonable.

I would dismiss the appeal with costs.

The judgment of Martland and Spence JJ. was delivered by

MARTLAND J. (dissenting)—On April 15, 1964, at about 4:40 p.m., the respondent, then eleven years of age, rode her bicycle along Préfontaine Street in a southerly direction toward the intersection of that street with five railway lines of the appellant which run east to west. Préfontaine Street is a one-way street for traffic proceeding toward the north.

A freight train operated by the appellant was proceeding at a speed of about 5 or 6 miles an hour along the most northerly track from west to east. Its bell was ringing. Signal lights were flashing at a point north of this track on the west side of the street. Signal lights were also in operation on the south side of the tracks.

The respondent attempted to cross the tracks. Her bicycle came into collision with the locomotive of the train and the respondent was severely injured, having both legs severed, one below the knee and the other at the ankle. She said in evidence at the trial that she rode past a truck parked on the west side of the street not far from the tracks and that she never saw the train until the accident occurred, that she did not hear the bell and that she did not see the signal lights.

With respect to the point of contact between the locomotive and the train she gave the following evidence:

[TRANSLATION] And then I looked both ways then I arrived at Lafontaine Street, and on the right side there was a large truck, and I went by and I fell, the train was coming, it caught my front wheel.

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D. You hit the side of the train, if I understand correctly.

(The witness does not reply immediately.)

THE WITNESS:

Yes.

In the cab of the locomotive the engineer, Aubertin, who could control the brakes, was seated on the right hand side. The assistant engineer, Pellerin, who had no brake controls, was seated on the left hand side, being the side of the locomotive on which the accident occurred. A third man, Briand, the brakeman, was in the front of the van behind the engine.

Pellerin testified that he saw the respondent when she appeared from the west side of the parked truck. He called out to the engineer to “soak it” and the brakes were immediately applied. He gave the following answers in evidence respecting the point of collision:

[TRANSLATION] Q. Fine. Where was the bicycle?

A. It was under the van.

Q. Under the van. Fine. What part of your engine ran into the bicycle, when you saw that happen?

A. I might say… I might call the corner of the engine.

Q. The left front corner?

A. Yes, the left.

Q. Opposite you?

A. Yes. I was right here and it happened there.

Q. So that’s the left front corner?

A. Yes.

Q. From what you could see, was it the girl who hit the engine or the engine which hit the girl?

A. It would be the girl who hit the engine.

Pellerin also gave evidence as to the location of the train when he shouted to the engineer:

[TRANSLATION] Q. When you shouted “soak it”, when you saw this apparition in front of you, how far away were you?

A. Oh, about ten feet from the street, from Préfontaine Street.

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Q. What was about ten feet from Préfontaine Street? Was it the front of the engine or was it the cab? At that time had the engine already entered…

A. The engine had already entered the crossing. The front was about in the middle, I would say.

An eye witness of the accident, Dupuis, said in evidence:

[TRANSLATION] Q. And you, did you see a collision?

A. Yes, I saw the train hit France.

Q. With what part of the train did it hit France?

A. The front of the train.

Q. The front of the locomotive?

A. Yes.

The evidence shows that the area of Montreal in which the accident occurred is heavily populated and that there are ten schools and eleven playgrounds in the vicinity of the appellant’s railway lines.

The respondent’s action against the appellant was tried by a judge and jury. Questions were put to the jury. These questions and the answers given are set out in full in the reasons of my brother Pratte and it is not necessary to repeat all of them in full. The jury found that there had been fault on the part of both parties. Responsibility was assessed at 95 per cent to the appellant and 5 per cent to the respondent.

The jury was asked to state the nature of the fault of each of the parties. With respect to the appellant, the answer was as follows:

[TRANSLATION] We think that in view of the densely populated area, right near a school, with the train coming out of an inclined curve, maximum safety measures should have been taken. To this must be added the fact that it was impossible for Mr. Pellerin to apply the brakes, and the lack of a speed indicator.

Even though Pellerin’s view was obstructed by the truck, he continued on without ascertaining whether the tracks were clear, relying solely on the small white light.

We think that in the circumstances the person responsible for safety should have instructed Mr. Briand or someone else to ascertain whether the tracks were clear after stopping the train.

The jury was asked by the trial judge to clarify the last paragraph of the answer, as to whether it

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meant after the accident or before, and in reply said that it meant before the accident.

The little white light to which reference is made in the jury’s answer is a light in the locomotive to indicate that the signal lights at a street being approached are in operation. If the light is not showing the engineer is aware that the street signals are not operating and brings the locomotive to a stop.

Total damages were assessed at $100,780. The apportionment of responsibility was varied by the trial judge so as to make the appellant responsible for 55 per cent of the damages instead of 95 per cent.

The appellant appealed to the Court of Appeal, which by a two to one decision dismissed the appeal. Chief Justice Tremblay dissented.

The power of an appellate court to interfere with the findings of a jury was considered by this Court in the case of Vancouver-Fraser Park District v. Olmstead[19]. de Grandpré, J., who delivered the judgment of the Court, said at p. 839:

All of the relevant cases make it abundantly clear that jury verdicts must be treated with considerable respect and must be accorded great weight. This does not mean however that they should be regarded with awe. In the case at bar, the evidence examined as a whole, in my view, did not permit a jury acting judicially to reach the conclusion that the appellant was negligent.

In that case the Court of Appeal has refused to set aside the verdict of a jury in an action based on negligence because the Court was not persuaded that the jury verdict was “perverse”. de Grandpré J., at p. 836 accepted the statement of Lord Fitzgerald in Metropolitan Railway Co. v. Wright[20]:

The judgment of the noble and learned Earl who presided in the Court of Appeal imports that a verdict once found is not to be set aside unless it appears to be a verdict perverse or almost perverse. If my recollection does not mislead me, we have departed in this House, in several instances, from the old rule which introduced the element of “perversity”, and have substituted for it that

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the verdict should not be disturbed unless it appeared to be not only unsatisfactory, but unreasonable and unjust. The question, then, for your Lordships’ consideration is whether the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust.

In my opinion the verdict of the jury in the present case was unreasonable and unjust. The appellant has been found to be at fault for failing to prevent the accident in a situation where the appellant’s freight train, travelling at a slow rate of speed, approached Préfontaine Street with its bell sounding, and with signals of its approach in operation at the intersection. The unfortunate respondent, travelling in the wrong direction on a one-way street, appeared suddenly from behind a parked truck and struck the locomotive near its left front corner.

The jury, in finding the appellant at fault, made a general statement that, in the area in question, maximum security was required and there listed four particulars of what it found to be negligence.

The first was the impossibility of Pellerin applying the brakes. Chief Justice Tremblay points out that this was not required under the provisions of the Railway Act, R.S.C. 1970, c. R-2. In any event, it is obvious that this accident could not have been prevented even if Pellerin had been able to apply the brakes himself. When he saw the respondent the front of the locomotive was in the intersection.

The second particular was the absence of a speed indicator in the locomotive. This could not have any causal connection with the accident.

The third particular was that Pellerin proceeded on his way, although his view was obstructed by the truck, without verifying that the way was clear. The fourth particular is essentially a part of the third, i.e. that the train should have been stopped so that Briand or someone else could verify that the way was clear. If the failure to check that the route is clear by stopping the train, even at an intersection where signals warning of the approach of the train are operating, constitutes negligence, then the railway company is made

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subject to a duty to stop at each street intersection in a city. In my opinion there is no such duty. The operator of a locomotive approaching, at a lawful rate of speed, a street intersection at which warning signals are giving notice of the approach of the locomotive is in the same position as the driver of an automobile approaching a street intersection with a green light in his favour. He has the right of way. He must look out for an unexpected emergency and take such reasonable steps as he can if one occurs, but he is not obligated to stop to see if someone is approaching against the red light.

In my opinion the findings of negligence cannot be supported and the jury verdict is unreasonable and unjust.

I would allow the appeal and dismiss the action.

Appeal dismissed with costs, MARTLAND and SPENCE JJ. dissenting.

Solicitors for the appellant: Boudreau, Giard, Gagnon & Clerk, Montreal.

Solicitors for the respondent: de Grandpré, Colas, Amyot, Lesage, Deschênes & Godin, Montreal.