D. C. 1907 TINSLEY V. TORONTO Magee, J. across in time to get on board before the car started again. Momentary forgetfulness, though a dangerous doctrine in its application, was, as in other cases, held not to be necessarily negligence in Scriver v. Lowe (1900), 32 O.R. 290, and was considered a proper matter to be left to the jury. Cases are many in which the necessity for care in crossing the tracks of railways is dwelt upon, but no case was cited in which it was held that under no circumstances is that care excused. I do not think it should be held unreasonable for a jury to say that it would be excusable from a belief created by the rule and custom of the defendants themselves that the necessity for it did not exist. Surely, if there is a departure from a well-known practice, on which in daily life men are wont to rely, greater care is required from the one who makes the departure, and knows his own intent, than from the one who does not know that intent. The jury here have found in favour of the plaintiff. If their findings were moved against, would they be interfered with? From the decisions in such cases as Preston v. Toronto R.W. Co., 13 O.L.R. 369, Morrow v. Canadian Pacific R.W. Co. (1894), 21 A.R. 149, and Gosnell v. Toronto R. W. Co. (1894), 21 A. R. 553, and 24 S.C.R. 582, I do not think they would. I think the case could not have been withdrawn from the jury, and therefore the judgment should stand. MABEE, J.-The plaintiff's case is that on the evening of December 31st last, or, perhaps, just past midnight, at the southeast corner of University and College streets, he saw a car about one hundred yards to the east, travelling west along College; he also saw a lady and gentleman standing at the north-east corner of College and the entrance to the park, the place one would stand who intended taking a westbound car on College. The plaintiff, desiring to take this car, crossed College diagonally to reach the point where he expected the car to stop. It did not stop, but struck him and inflicted serious injury. The plaintiff says: "I thought the car was going to stop; naturally anybody would when they saw the man waiting for the car, they would think the car was going to stop." There was a clear view to the east, an electric light at the corner, no other car or vehicle in sight, and nothing to attract the plaintiff's attention from his situation in crossing the street with the car approaching. He says that he was perfectly capable of taking care of himself, and that he does not know whether the car was coming fast or slow, but that it was in full view, and that he knew while crossing the street the car was still coming. The gentleman standing at the opposite corner had signalled the car, but it does not appear that the plaintiff had seen any such signal or relied upon it, even if that would have made any difference to the case. There was some evidence that the motorman had been drinking, although in the evidence adduced for the defence that fact was strongly controverted. The defendants' counsel moved for a nonsuit, and, although many witnesses were called for the defence, the case for the plaintiff was not put upon any higher ground than he himself put it. The question is whether there should have been a nonsuit. The jury found the defendants' negligence to consist of "not stopping on signal and not having car under control when approaching crossing." I do not apprehend how the finding of not stopping on signal had anything to do with the matter. The plaintiff had given none, had seen none given, and was not relying upon a slackening of speed or a stopping in consequence of any signal given. His whole case consisted of an expectation upon his part that the car would stop because of the two persons standing at the corner. The finding that the car was not under proper control, I presume, is based upon No. 58 of the company's rules, which was put in by the plaintiff, which provides that "when approaching crossings and dangerous places the speed must be reduced and the car kept carefully under control." It also appeared in the plaintiff's case that these rules did not apply to "night cars," but, apart from this, was the speed of the car the proximate cause of the accident? The plaintiff, among other cases, relied upon Preston v. Toronto R.W. Co., 13 O.L.R. 369, but it seems to me the facts there are not at all similar to the present case. There the defendants had prevented the plaintiff turning his bicycle to the right; he then looked to the left side of the car, and saw and heard nothing to indicate danger in that direction; then it was shewn the defendants had omitted to sound a gong; this, had it been sounded, might have apprized the plaintiff of his danger. D. C. 1907 TINSLEY V. TORONTO R.W.CO. Mabee, J. D. C. 1907 TINSLEY v. TORONTO Mabee, J. Vallee v. Grand Trunk R.W. Co., 1 O.L.R. 224, was also relied upon, but, I think, does not assist. All that was held in that case was that the plaintiff was entitled to have had the statutory warning given. She saw the train when she was seventy feet from the track, and not before. The jury thought she had not been guilty of contributory negligence in approaching to that point without having seen the train; but suppose she had seen the train when she was a hundred yards away, and proceeded on her course, knowing the train was approaching, would it have not been a case of the plaintiff herself being the author of the accident? Sims v. Grand Trunk R. W. Co. (1905), 10 O. L. R. 330, is different from the present case in a crucial point, and that is in Sims not seeing the approaching train, and defendants' omission to give a statutory warning. In the case in hand the plaintiff saw the approaching car, and the defendants are not in breach as to any statutory warning. Gosnell v. Toronto R.W. Co., 24 S.C.R. 582, is another case where the plaintiff had not looked to see if a car was approaching, and all the case stands for is the principle that not to look is not contributory negligence. I am not able to see how the speed of the car forms any element in the plaintiff's case. There is some authority for the proposition that had the plaintiff formed some judgment upon the speed of the car, and estimating the time, had concluded he could cross, being run down he could contend the defendants were in default in running the car at an excessive rate of speed, but I do not see how any such matter enters into this case. He paid no attention to speed, and formed no opinion as to his being able to cross in safety. In a dissenting judgment of Mr. Justice Gwynne, in Gosnell v. Toronto R. W. Co. (ante), it is said at p. 584: "This case does not turn upon a question as to the rate of speed at which the railway car was going immediately preceding the occurrence of the accident, but rather upon the conduct of the plaintiff himself in entering upon the track at the time he did; and, indeed, the rate of speed assuming it to have been excessive, would seem to make the conduct of the plaintiff.. only the more inexcusable." This has much greater force applied to a case where the plaintiff has seen the car approaching. The difficulty in the case in hand is to see in the plaintiff's evidence what facts exist that may reasonably be said to cut his conduct down to contributory negligence only, and to keep him out of the unfortunate position of having by his own reckless and heedless actions himself caused the accident. If he does not fall in the latter class, he has, of course, the right to have his case go to the jury. A man, seeing a car approaching at a rapid rate of speed, grossly excessive let it be, walks in front of it, expecting it to stop, there being no duty to stop, whose is the negligence that in law is the cause of the accident that follows? The excessive and, let it be, unreasonable speed of the car was negligence by those in charge, but that was not the last negligent act that interposed; it was the unreasonable and negligent act of the man' placing himself in a position of peril. In the case of Gosnell v. Toronto R.W. Co. (No. 2), 4 O.W.R. 213, the plaintiff was nonsuited. He attempted to cross the street, having seen the car approaching (100 feet away), without looking for the car again, and governing his conduct accordingly. In Gallinger v. Toronto R. W. Co., 4 O. W. R. 522, a Divisional Court affirmed the nonsuit of Mr. Justice Ferguson, where the plaintiff alighted from a westbound car on the north track, and proceeded to cross the north and south tracks in front of an approaching east-bound car on the south track about 100 feet away, travelling from eight to ten miles an hour. No brakes were applied or gong sounded. In this case the plaintiff did not see the eastbound car approaching; had he looked and seen the car, and still attempted to cross, the case would have been much stronger against him. In Danger v. London Street R.W. Co., 30 O.R. 493, a Divisional Court affirmed a nonsuit where the plaintiff turned his conveyance upon the track without looking, and knowing a car was approaching. This car was travelling at a very rapid rate of speed, and no gong was sounded. The plaintiff's own negligence was held to be the proximate cause of that accident. Davey v. London and South-Western R.W. Co., 11 Q.B.D. 213, 219, is quoted, and the words of Denman, J., in that case are particularly applicable here: "The plaintiff brought his injuries upon himself by his own act as much as if, seeing the train (car) coming, he had tried to D. C. 1907 TINSLEY V. TORONTO Mabee, J. D.C. 1907 TINSLEY บ. TORONTO R.W.CO. Mabee, J. cross in front of it": see also Stubley v. London and NorthWestern, L.R. 1 Ex. 13, at pp. 19 and 20. I do not read the case of Cranch v. Brooklyn Heights R.W. Co., 107 N.Y. App. Div. 341, relied upon by Mr. Denton, as affording assistance. The questions of the defendants maintaining a station where the accident happened, the custom of stopping their trains at a point where, had the train stopped that injured the plaintiff, no accident would have happened, make the facts entirely dissimilar see also Allen v. North Metropolitan Tramways Co., 4 Times L. R. 561, where upon facts a good deal like the Cranch case the Court of Appeal upheld a nonsuit. It is needless to travel through more of the cases upon this subject. It is apparent that in the development of the plaintiff's case it became clear that there were no facts in dispute upon which negligence of the plaintiff turned. No witness placed his case upon any higher ground than placed by himself, and his was the controlling evidence. It does not appear that the motorman could, after he saw or should have seen the plaintiff's position of peril, have taken any step to avoid the accident. It is very difficult, upon the plaintiff's statement, to understand, if he were in possession of all his faculties, why this unfortunate accident happened. He came in contact with the car at an angle; it necessarily, at that hour of the night, in a deserted street, at a speed of eighteen miles an hour, must have been making a great noise; had he been paying any attention whatever he must have heard and seen, before the moment of impact, that the car was not stopping, and he was struck at about the point on the street where the car would have stopped had the plaintiff's expectations been realized. I have no hesitation whatever in arriving at the conclusion that the plaintiff should have been nonsuited. G. F. H. |