Supreme Court Judgments

Supreme Court of Canada

Manuge v. Dominion Atlantic Railway Co., [1973] S.C.R. 232

Date: 1972-10-18

Robert W. Manuge and Elizabeth Manuge (Defendants) Appellants;

and

Dominion Atlantic Railway Company (Defendant) Respondent

and

Lloyd Augustus Ritchie (Defendant)

and

Everett William Killam and Myrtle Deltina Killam (Plaintiffs).

Everett William Killam and Myrtle Deltina Killam (Plaintiffs) Appellants;

and

Robert W. Manuge and Elizabeth Manuge (Defendants) Respondents

and

Dominion Atlantic Railway Company (Defendant) Respondent

and

Lloyd Augustus Ritchie (Defendant).

1972: June 5, 6; 1972: October 18.

Present: Martland, Judson, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Railways—Collision between motor vehicle and dayliner at private level crossing—Failure of railway company to maintain adequate visibility—Whether liability on part of railway—Doctrine of exceptional or special circumstances not applicable.

Motor vehicles—Level crossing accident—Injuries suffered by passenger—Employee being driven home from work by employer—Whether passenger being transported as driver’s “guest without payment”—Motor Vehicle Act, R.S.N.S. 1967, c. 191, s. 223(1).

An action was brought by EK and MK (husband and wife) against RM and EM (also husband and wife) and the respondent railway company in respect of injuries sustained by EK in a level crossing

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accident. The accident occurred when a motor vehicle owned by RM and driven by EM, and in which EK was a passenger, collided, at a private level crossing, with a dayliner owned and operated by the railway company. In the same action the Ms claimed against the company and its operator, LR, for damages suffered by them as a result of injuries to EM.

The action was tried with a jury which found that there was negligence on the part of both EM and the railway company, the degree of fault being 30 per cent for the former and 70 per cent for the latter. The operator, LR, was exonerated from any charge of negligence. The determination of the damages suffered by each party was reserved for the trial judge and in rendering judgment he found that MK had suffered no damage as a direct result of the collision, that EK suffered general damages of $15,000, that EM suffered general damages of $30,000 and her husband special damages of $5,058, and it was accordingly directed that EK recover $11,049.50, that RM recover $4,240.60 and that his wife recover $21,000 from the railway company.

On appeal, the result of the judgment of the Appeal Division of the Supreme Court of Nova Scotia was to dismiss the two claims brought by the Ms and the Ks against the railway company and to affirm the trial judgment dismissing the action which EK and MK had brought against RM and EM.

Held (Spence J. dissenting in part): The appeals of the Ks and the Ms against the railway company and the appeal of the Ks in the action brought by them against the Ms should be dismissed.

Per curiam: In determining whether or not a person is a guest within the meaning of the phrase “guest without payment” in s. 223(1) of the Motor Vehicle Act, R.S.N.S. 1967, c. 191, the test to be applied is whether the purpose of the transportation is social only or whether it is in performance of a contractual obligation or otherwise for a commercial or business purpose. EK, who worked for the Ms as a gardener at their summer place, was being driven home from his work solely out of courtesy or friendship or as a neighbourly favour. Accordingly, it having been found that there was no gross negligence on the part of EM which caused or contributed to the damages, it followed that by reason of the provisions of s. 223 the action of EK against

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the Ms must be dismissed, and this also, of course, applied to the action of MK.

Per Martland, Judson, Ritchie and Pigeon JJ: Where the Legislature authorizes a railway to cross a way, public or private, and does not require from the company any precaution to avoid danger, the Legislature intends that the persons who have to cross that line should take the risk incident to that state of things. On the other hand, the operators of a railway are bound to use at all times reasonable care, vigilance and skill which experience shows to be proper and necessary in order to avoid accidents and, where there are exceptional or special circumstances creating an unusual danger at such a crossing, the railway may be required to take additional precautions and to provide for reduction of speed, sounding of signals and all other reasonable means of alerting the users of such a crossing of the approach of a train.

However, this was not a case in which the doctrine of exceptional or special circumstances should be applied. The dangerous curve at the crossing had existed since the railway was constructed sometime in the 1870’s and the private road had run over it for at least 70 years without any collision having occurred, although there was some evidence of two near misses in that period. It was thus clear that while the danger was apparent to all users and must have been known to the railway, it had not manifested itself by the occurrence of any accident during this very considerable number of years. Also, the use of this crossing appeared to have been limited to the K family and their friends and other callers and it was fair to assume that most of these people would have been familiar with the time when the dayliner was due to pass. Also, immediately before and at the time of the accident, the bell was being sounded on the dayliner.

Per Spence J., dissenting in part: The finding that there was negligence on the part of both EM and the railway company was for the jury and the jury’s answer should be allowed to stand. The answer “failure to maintain adequate northern visibility at western approach to crossing” was the stating in clear terms of the ground of negligence which could be found against the railway. Accordingly, the appeals of RM, EM and EK against the respondent company should be allowed and to each should be awarded the damages allowed by the trial judge.

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[Allen v. Gen. Mgr. C.N. Railways (1924), 57 N.S.R. 252; Reynolds v. Canadian Pacific Railway Co. (1926), 59 O.L.R. 396, applied; Commissioner for Railways v. McDermott, [1967] 1 A.C. 169, distinguished; Canadian Pacific Railway Co. v. Babudro and Sdraulig, [1969] S.C.R. 698; Lake Erie and Detroit River Ry. Co. v. Barclay (1900), 30 S.C.R. 360; Columbia Bithulithic Ltd. v. British Columbia Electric Ry. Co. (1917), 55 S.C.R. 1, referred to.]

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], allowing an appeal by defendant railway company from a judgment of Hart J. Appeal dismissed, Spence J. dissenting.

D. Chipman, Q.C., and J.W.E. Mingo, Q.C., for Robert W. Manuge and Elizabeth Manuge.

A. Boyd MacGillivray, Q.C., for Everett William Killam and Myrtle Deltina Killam.

R.J. Downie, Q.C., for Dominion Atlantic Railway Company.

The judgment of Martland, Judson, Ritchie and Pigeon JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Appeal Division of the Supreme Court of Nova Scotia (Coffin J.A. dissenting in part) which allowed an appeal by the Dominion Atlantic Railway Company (hereinafter referred to as “the railway Company”) from a judgment rendered at trial by Mr. Justice Hart sitting with a jury whereby the railway company had been found 70 per cent at fault for an accident which occurred when a motor vehicle driven by Mrs. Elizabeth Manuge in which Everett Killam was a passenger, collided with a dayliner owned and operated by the railway company, at a private level crossing of the railway tracks which run north and south near Lake Annis in the County of Yarmouth, Nova Scotia. The result of the judgment of the Appeal Division was to dismiss two claims brought by the Manuges and the Killams against the railway company and to affirm the judgment of the learned trial judge dismissing the

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action which Mr. and Mrs. Killam had brought against Mr. and Mrs. Manuge.

At the time of the collision the dayliner was being operated by the defendant Lloyd Augustus Ritchie who was exonerated from any charge of negligence by the jury’s verdict and is not a party to this appeal. The motor vehicle driven by Mrs. Manuge was a Volvo which was owned by her husband and in which she was driving Everett Killam to his home after his day’s work.

The action was brought by Mr. Killam and his wife against the Manuges and the railway company in respect of injuries sustained by Mr. Killam in the collision. In their defence, Mr. and Mrs. Manuge alleged that Mr. Killam was a guest passenger and that the collision was a result of the negligence or contributory negligence of the railway company and Ritchie. In the same action Mr. and Mrs. Manuge claimed against the railway company and Ritchie for damages suffered by them as a result of the injuries to Mrs. Manuge.

The trial took place before Hart J. sitting with a jury. The questions put to the jury and the answers received were as follows:

1. (a) Was there any negligence on the part of

Elizabeth Manuge?

Yes.

(b) If so, of what did such negligence consist?

Not exercising extreme caution knowing the regularly scheduled train time.

2. Was the Plaintiff, Everett Killam, a guest without payment for his transportation in the motor vehicle?

No.

7-2

3. (a) Was there any gross negligence on the part of Elizabeth Manuge which caused or contributed to the damages?

No.

(b) If so, of what did such negligence consist?

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4. (a) Was there any negligence on the part of Ritchie in the operation of the train which caused or contributed to the damages?

No.

(b) If so, of what did such negligence consist?

5. (a) Was there any negligence on the part of the Dominion Atlantic Railway Company, its servants and agents, which caused or contributed to the damages?

Yes.

(b) If so, of what did such negligence consist?

Failure to maintain adequate northern visibility at the western approach to the crossing.

6. (a) Was there any negligence on the part of Everett William Killam which caused or contributed to the damages?

No.

(b) If so, of what did such negligence consist?

7. (a) If you have found negligence on the part of two or more persons, state whether it is possible to find different degrees of fault.

Yes.

(b) If your answer is yes, state the degree of fault for each person found negligent.

Eight of the nine jury members agreed the fault would be 30 per cent for Mrs. Manuge and 70 per cent for the D.A.R. Railway.

By agreement among counsel the determination of the damages suffered by each party was reserved for the trial judge and evidence of such damage was heard at a later date. In rendering his judgment, Mr. Justice Hart found that Mrs. Killam had suffered no damage as a direct result of the collision, that Mr. Killam suffered general damages of $15,000, that Mrs. Manuge suffered general damages of $30,000 and her husband special damages of $5,058, and it was accordingly directed that Mr. Killam recover $11,049.50, that Robert Manuge recover $4,240.60 and that his wife recover $21,000 from the railway company.

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In the course of his judgment, the learned trial judge, in the legitimate exercise of his authority, directed that the answer of the jury to the second question be set aside as being “perverse and such that no jury reviewing the evidence as a whole and acting reasonably could have reached”. See Silver’s Garage Ltd. v. Town of Bridgewater[2], and Order XXIV r. 32 of the Rules of the Supreme Court of Nova Scotia (as they then were).

The second question was obviously put to the jury with a view to the effect, if any, to be given to s. 223 of the Motor Vehicle Act on the circumstances. Subsection (1) of that section reads:

(1) No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.

The most revealing evidence bearing on the question of whether or not Mr. Killam was being transported as Mrs. Manuge’s “guest without payment for such transportation” is to be found in the following part of Mr. Killam’s evidence which is referred to by the learned trial judge:

Q. Mr. Killam, going back to prior to this accident, you have lived in this area all your life?

A. Practically, yes.

Q. And I take it that you have known Mrs. Manuge from childhood?

A. Yes.

Q. The two of you went to school together?

A. That’s right.

Q. You have been a family friend and gardener for the Goudey family for many, many years?

A. That’s right.

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Q. And this friendship has extended to the Manuges since she married her husband Mr. Manuge: is that correct?

A. Yes.

Q. And that was about some twelve or thirteen years ago they were married?

A. Yes.

Q. And you have been good friends of them ever since?

A. Yes.

Q. You weren’t paying them any money for this drive?

A. No.

Q. And I say “this drive” and I mean the drive home?

A. No, no.

Q. Never paid them for a drive in their car?

A. No.

Mr. Killam had looked after the Manuges’ summer place for a good many years, cutting the grass, tending the garden, making minor repairs and generally keeping an eye on the property when the Manuges were away, and on many occasions Mrs. Manuge would drive him to his home which was about three-quarters of a mile away at the end of the day. In this regard, she was asked:

Q. And, would you tell us one more thing. Would you tell us whether or not you have an agreement to drive Mr. Killam home following his work at your place, or whether you just did it as a matter of courtesy?

A. Just as a matter of courtesy.

In assigning a meaning to the words “guest without payment for such transportation” as they occur in s.223(1) of the Motor Vehicle Act, I adopt the test employed by Mr. Justice Cooper in the course of the reasons for judgment which he rendered on behalf of the majority of the Court of Appeal in the present case where he said:

The test to be applied in determining whether or not a person is a guest within the meaning of the phrase “guest without payment” in my opinion is whether the purpose of the transportation is social

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only or whether it is in performance of a contractual obligation or otherwise for a commercial or business purpose…

In affirming the direction of the learned trial judge that the answer to question No. 2 should be set aside as perverse and the question answered in the affirmative, Mr. Justice Cooper, with whom Mr. Justice Coffin agreed in this regard, made an exhaustive review of the evidence and of the relevant authorities and concluded by saying:

Mr. Killam had no contractual right to be transported to his home on the afternoon of July 19, 1967. There is no evidence whatsoever that the terms under which Mr. Killam worked for the Manuges at their summer home involved an obligation binding upon either Mr. Manuge or Mrs. Manuge that he must be driven either from his home to his work or from his work to his home. Nor is there evidence that the drive home on July 19, 1967, was otherwise for a commercial or business purpose. On the other hand, there is evidence that Mr. Killam was driven home from his work solely out of courtesy or friendship or as a neighbourly favour.

I agree with this conclusion, and as the jury found in the answer to question No. 3 that there was no “gross negligence on the part of Elizabeth Manuge which caused or contributed to the damages” it follows that by reason of the provisions of s. 223 of the Motor Vehicle Act and the findings to which I have referred, Mr. Killam’s action against the Manuges must be dismissed. This also, of course, applies to the action of Mrs. Killam which was in any event dismissed by the learned trial judge with the approval of the Court of Appeal. I would accordingly dismiss the appeal lodged on behalf of Mr. and Mrs. Killam in their action against Mr. and Mrs. Manuge.

The railway company appealed to the Appeal Division from the jury’s answer to the 5th question whereby it was found to have been negligent because of “failure to maintain adequate northern visibility at the western approaches” to the railway crossing where the collision occurred. In the course of his reasons for judgment, Mr. Justice Cooper made a complete survey of all the evidence having to do with the nature and location of the crossing and the northern visibility at the

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western approaches thereof, and after reviewing the applicable statutory provisions and a very great body of case law, he concluded that the railway company was under no duty to the Manuges or the Killams with respect to the maintenance of adequate visibility at the Killam crossing and for this reason allowed the railway company’s appeal. It is from this determination that the Manuges and the Killams both appeal.

Immediately before and at the time of the accident, Mrs. Manuge was driving her Volvo motor vehicle in an easterly direction on the private road leading to Mr. Killam’s house and it was at the point where this road crosses the railway line that the collision occurred. The visibility available to Mrs. Manuge at the crossing in question is described in the following terms by Mr. Justice Cooper:

The cumulative effect of these photographs is, in my opinion, simply that the tracks to the north of the Killam Crossing, that is, in the direction from which the dayliner was coming at the time of the accident, could not be seen from the driver’s seat of a Volvo motor car until the car was actually entering upon the crossing itself and then only for a distance of approximately 200 feet. The view to the north from a point 50 feet west of the crossing and points in between to the crossing itself is blocked by the embankment.

And again:

I have no doubt that the northern visibility at the western approach to the crossing was indeed inadequate. I think it a reasonable and proper inference from the evidence that on July 19, 1967, the driver of a motor vehicle approaching the crossing from the public highway would obtain nothing more than an occasional glimpse of a dayliner approaching from the north.

The defects in visibility at this crossing were occasioned by reason of a sharp curve in the railway line as it came through a cut through rising land and were further complicated by the comparatively high banks and foliage which further concealed the view at the time in question.

Mr. Killam described an occasion some years previously when he had a hired man working on

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his property with a bulldozer and he had approached the section foreman of the railway asking him whether he could get permission to clear away some of the banks on the west side of the track so as to afford better visibility when crossing to his house. Mr. Killam stated he was referred to the section foreman’s immediate superior who in turn told him that he would have to get permission from the roadmaster at Kentville. Mr. Killam never went any further with this project and I do not think that his conversation with the section foreman and his immediate superior can be treated as a serious application to the company for permission to clear away the obstructing bank. It is clear that Mr. Killam fully appreciated the danger and talked to many people about it, but I do not think there was ever a firm offer on his part to improve the visibility at the crossing at his own expense or a refusal by the railway company to accept such an offer.

The railway line had been built some time in the late 1870’s but the Killam house was not built until about the turn of the century when it is to be assumed that the private road was also constructed. The road had been kept up by the Killam family since the time of Everett Killam’s grandfather who had been a section foreman on the railway and, at any rate from the time when the Killams first acquired the property, it does not appear to have been used as anything but a private road. Nothing was ever paid to the railway in connection with the crossing which was supplied and maintained by it without any contract, and there is no suggestion that there was any defect in the crossing itself which caused or contributed to the collision.

Mr. Justice Cooper’s exhaustive analysis of the applicable statutes supports the proposition that the railway is under no statutory obligation to ensure the safety of the approaches to such a crossing and the multiplicity of authorities which he has cited are directed towards establishing that the crossing is to be treated as a right of way for the occupiers of the Killam home over the soil of the railway contained within the limits of the crossing and that the users of that right of way do so at their own risk. In support of this proposi-

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tion, Mr. Justice Cooper cites the judgment of Mr. Justice Rogers, speaking for the majority of the Supreme Court of Nova Scotia, en banc, in Allen v. General Manager C.N. Railways[3], where he says at pp. 255 and 256:

The farm crossing owner …must at his peril be on the lookout for trains even if, as so frequently happens, they are not running on schedule time. In Cliff v. Midland Ry. Co., (1870), L.R. 5 Q.B. 258, Lush J., at p. 264, lays down the principles upon which cases of this kind are to be determined:

“I think that where the legislature authorizes a railway to cross a way, public or private, upon a level, and does not require from the company any precaution to avoid danger, the legislature intends that the persons who have to cross that line should take the risk incident to that state of things.”

On the other hand, as the Judge also points out the operators of a railway are bound to use at all times reasonable care, vigilance and skill which experience shews to be proper and necessary in order to avoid accidents.

I adopt this as a correct statement of the law subject, however, to the qualification which formed the basis of Mr. Justice Coffin’s dissenting opinion and which is to the effect that where there are exceptional or special circumstances creating an unusual danger at such a crossing, the railway may be required to take additional precautions and to provide for reduction of speed, sounding of signals and all other reasonable means of alerting the users of such a crossing of the approach of a train.

Mr. Justice Coffin found that the evidence disclosed the existence of such circumstances at the Killam crossing and therefore concluded that the jury’s answer to question No. 5 should have been enlarged so as to include a finding that there was negligence on the part of the railway “in not taking particular precautions in giving directions to the operator of the dayliner in view of the

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special circumstances arising from the lack of visibility”.

As was pointed out by Mr. Justice Judson, speaking for the majority of this Court in Canadian Pacific Railway Co. v. Babudro and Sdraulig[4]:

This Court in Alexander v. Toronto, Hamilton & Buffalo Ry. Co., [1954] S.C.R. 707, dealt with the doctrine of exceptional or special circumstances and it is one to be applied with great care.

I do not attempt to formulate a comprehensive definition of the “exceptional or special circumstances” which require a railway to take such additional precautions, but such circumstances are discussed in Lake Erie and Detroit River Ry. Co. v. Barclay[5]; Columbia Bithulitic Limited v. British Columbia Electric Ry. Co.[6], and in the numerous cases referred to by Laidlaw J.A. in the reasons for judgment which he delivered on behalf of the Court of Appeal of Ontario in the Alexander case[7], all of which satisfy me that this is not a case in which the doctrine of exceptional or special circumstances should be applied.

The dangerous curve at the Killam crossing had existed since the railway was constructed sometime in the 1870’s and the private road had run over it for at least seventy years without any collision having occurred, although there was some evidence of two near misses in that period. It is thus clear that while the danger was apparent to all users and must have been known to the railway, it had not manifested itself by the occurrence of any accident during this very considerable number of years. It is pertinent also in this regard to observe that the use of this crossing appears to have been limited to the Killam family and their friends and other callers and I think it is fair to assume that most of these people would have been familiar with the time when the dayliner was due to pass. It should also be said in

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this connection that immediately before and at the time of the accident, the bell was being sounded on the dayliner.

I think that the present case is governed by the same considerations as those which were applied by the Court of Appeal of Ontario in Reynolds v. Canadian Pacific Railway Co.[8], which was a case of a highway crossing a railway and where the negligence alleged was that the defendants threw up or maintained an embankment on the eastern side of their track which obscured a train coming from the south from the view of persons travelling along a private road. The jury found negligence on the part of the Canadian Pacific Railway Company causing the accident, “in not blowing the whistle at the whistling post, and in maintaining a bank which obstructs the view of trains coming from the south”. In that case Latchford C.J.O. in the course of his reasons for judgment said at p. 401:

The maintaining of the bank in its original or heightened condition was not negligence in law, and in my view was quite wrongly so found by the jury. Subject to the order of the Railway Board under sec. 258 of the Act, the defendants had the absolute right to leave the bank in its original condition after the line was cut through it during construction, or to raise it as several witnesses deposed that it was raised.

The bank was on their own property, and maintaining it was not negligence. However, as that is one of the grounds on which the defendants have been expressly found negligent, the verdict and judgment cannot stand.

Much stress was laid by counsel for the appellants on the case of Commissioner for Railways v. McDermott[9], which concerned an accident that occurred at a level crossing which offered the sole means of access to a small village and where the respondent had tripped owing to the crossing being unlighted and in bad repair. Although in the course of his reasons for judgment Lord

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Gardiner L.C., made some general statements which the appellant urged in support of its contention that the present respondent had been negligent, I think it enough to say that the McDermott case is governed by its own circumstances and particularly by the situation referred to by Lord Gardiner in the course of his reasons for judgment at pp. 189 and 190:

This case is concerned with a level crossing lawfully and necessarily used to a substantial extent by all the inhabitants of a village and their guests and persons having business with them. No opinion is expressed with regard to private crossings or crossings only slightly used.

When it is also remembered that in the present case there is no suggestion as to lack of maintenance of the crossing itself by the railway company, it will be seen that the McDermott case is clearly distinguishable, and has no application to the facts here disclosed.

In the result, I would dismiss the appeals of the Killams and the Manuges against the railway company, and the appeal of the Killams in the action brought by them against Mr. and Mrs. Manuge.

The respondent, Dominion Atlantic Railway Company, will recover its costs of this appeal from Everett W. Killam and Myrtle Killam and from Robert and Elizabeth Manuge. Mr. and Mrs. Manuge are entitled to their costs as against Mr. and Mrs. Killam in respect of the appeal asserted in the action brought against them by these appellants.

SPENCE J. (dissenting in part)—I have had the opportunity of reading the reasons of Mr. Justice Ritchie and I adopt the statement of facts as set out in those reasons but I shall add further reference to the facts during the course hereof.

Firstly, I agree with Mr. Justice Ritchie in reference to the appeal by Everett William Killam and Myrtle Deltina Killam against Robert M. Manuge and Elizabeth Manuge, and I would dismiss that appeal with costs.

Secondly, I would not disturb the judgment below for the dismissal of the appeal of the said

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Myrtle Deltina Killam against the defendant Dominion Atlantic Railway Company and that appeal should also be dismissed with costs to be limited to only those costs arising from the joinder of the said Myrtle Deltina Killam as a plaintiff in the action against the said Dominion Atlantic Railway.

I turn next to the question of the liability of the defendant, here respondent, Dominion Atlantic Railway, to the plaintiffs, Robert W. Manuge, Elizabeth Manuge and Everett William Killam. I adopt the description of the private crossing at which the unfortunate accident occurred as given by Mr. Justice Cooper in his reasons for judgment in the Appeal Division of the Supreme Court of Nova Scotia and as cited by Mr. Justice Ritchie. That crossing existing under those conditions was described in the factum filed on behalf of the appellants, Manuge, in what I believe to be the apt words as “nothing less than a trap”. There are no statutory provisions dealing with the operation of railroad trains or with the state of maintenance of the railway right of way applicable to private crossings. As pointed out by Mr. Justice Cooper in his reasons the crossing at this point was installed probably at or about the turn of the century as a farm crossing, although there is now no evidence that the premises to which the crossing leads, those owned and occupied by the plaintiff Everett William Killam, are now conducted as a farm. The provisions of s. 277(1) of the Railway Act, R.S.C. 1952, c. 234, which were in effect at the time with which this accident is concerned required the railway to erect and maintain fences at farm crossings to a minimum height of four feet six inches at each side of the railway and swing gates in such fences. Section 278 required the person for whose use farm crossings are furnished to keep the gates at each side of the railway closed when not in use. Had this section been complied with then, before the appellant, Everett William Killam, or anyone else desiring to use the crossing to enter or leave his property were able to do so, they would have had to dismount from their vehicle and open the gates on each side. In fact, there was no gate and there was no evidence that there ever had been a gate on the westerly side of the railway right of way that

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is the side from which this motor vehicle involved in the accident approached the crossing. Since there has been no finding and I think there is no evidence to support a finding that the crossing may now be regarded as a farm crossing, I cannot find that such a provision applied or that breach thereof was negligence on the part of the railway.

As I did in my dissenting judgment in Canadian Pacific Railway Co. v. Babudro and Sdraulig[10], at pp. 709-10, I adopt the words of Robertson C.J.O. in Anderson v. Canadian National Railway Co.[11], at pp. 175 and 176, when he said:

“It will not be doubted, I think, that a railway company, such as the appellant, has no more liberty than anyone else to be negligent.”

and after reviewing certain authorities continued:

“The result of the decisions seems to be that, under ordinary circumstances, the railway is permitted to carry on its usual operations in the normal way, at a highway level crossing, without other precautions and warnings than are prescribed by The Railway Act or by the Board, but if the operations are carried on in such a way, or are of such a character, that the public using the crossing is exposed to exceptional danger, as in the Barclay case, or if there are exceptional circumstances, as in the Montreal Trust Co. case, that render ineffective or insufficient the precautions and warnings generally prescribed, then, in such cases, it may be left to a jury to say whether or not the railway has been negligent in failing to adopt other measures for the protection of those who may use the crossing.”

I have not found any decision which leads me to believe that the exceptional circumstances referred to by the Chief Justice are confined to circumstances with reference to the operation of the train or that the failure to adopt other

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measures for the protection of the public, which the Chief Justice views as being necessary when such exceptional circumstances are present, are confined to a change in the operation of the trains on the track, and I am of the opinion that there may well be exceptional circumstances arising from conditions of the terrain on the right of way or blind curves or perhaps other such features as will require other measures for the protection of those who may use the crossing, and that such other measures may well be the elimination of such unusual features in the terrain. It may be said that view is directly contra to that expressed in the Appellate Division of the Supreme Court of Ontario in Reynolds v. Canadian Pacific Railway Co.[12], where Latchford C.J., referring to a bank on the right of way, the maintenance of which by the railway having been stated by the jury as one of the grounds of negligence which it found against the railway, said:

The maintaining of the bank in its original or heightened condition was not negligence in law, and in my view was quite wrongly so found by the jury. Subject to the order of the Railway Board under sec. 258 of the Act, the defendants had the absolute right to leave the bank in its original condition after the line was cut through it during construction, or to raise it as several witnesses deposed that it was raised.

In my view that statement was much too broad to reflect the law applicable and was not appropriate to the facts in the case there under consideration. The balance of the Chief Justice’s judgment was concerned with a consideration of whether or not the existence of the side bank had anything to do with the accident and also that whether or not the train had sounded a warning whistle or warning bell. When the case came to this Court[13], Mignault J., in giving judgment directing a new trial because of the Court of Appeal having set aside the jury finding that the train whistle had not been sounded as required by the statute, said

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on p. 510, as to the other ground of negligence found by the jury:

As to the other ground of negligence found by the jury, that the defendant had maintained an embankment on the east side of the railway in a manner to obscure the view of a train coming from the south,—after a full hearing and consideration of the evidence relied on by the parties, we incline to the view that even if the existence of the bank along the railway, caused by the cutting made through the hill and any necessary cleaning out of the ditch, could be regarded as negligence in law, there was no foundation in fact for the finding that the bank maintained by the railway obstructed the view of a train coming from the south.

I therefore am of the opinion that this Court did not approve of the statement by Latchford C.J. in the Appellate Division. As long ago as Gowland v. Hamilton, Grimsby and Beamsville Electric Railway Company[14], the presence of heavy bush at each side of a private crossing was held to constitute such exceptional circumstance as would justify the jury finding the operation of an electric car to be negligent when it had been driven across a crossing at between 20 and 25 miles per hour without warning bell or whistle. Kelly J., the trial judge, at p. 374, made a statement when giving judgment in accordance with the jury’s answers, applicable in my view to this situation:

But, apart from any duty imposed upon it by statute, I am of opinion that it [the defendant railway] was under obligation to exercise care which the jury, in the above view, find that it did not exercise. The plaintiff was not outside of his rights in being upon the defendant company’s lands when the accident happened. The driveway across the defendant company’s tracks, built and used as it was, affording a means of entry to Carpenter’s property from the public road, must be taken to have been there with the consent and approval of the defendant company…

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The appeal was dismissed by the Appellate Division. In the present case there would seem to be no doubt whatsoever that this private crossing was there with the consent and approval of the respondent, Dominion Atlantic Railway Co. In fact, that company, as I have said, showed it at one time in its records as a farm crossing and as well maintained the planking on the crossing at its own expense.

The question therefore for determination of the present case is whether or not the circumstances constituted exceptional circumstances within what I believe to be the applicable rule, as expressed by Robertson C.J.O. in Anderson v. Canadian National Railway Co., supra. The photographs and the other evidence give graphic support for the description by Mr. Justice Cooper to which I have already referred. A crossing with such poor visibility that the front wheels of an automobile would, when one were driving it, be between the rails before vision of as much as 200 feet up the track to the curve could be obtained is a circumstance of the most unusual character. Rather than to have removed the danger at the very slightest of cost, the respondent, Dominion Atlantic Railway Co., seemed to have increased it. There had been at one time at the east side of the railway right of way, where the crossing entered it, the usual railroad sign but that had been taken down by the railway company. The section foreman, Deveau, could not remember whether he had done it himself or whether another had done it. There seems no doubt by the evidence that the ditching performed by the railroad employees had resulted in some throwing up of material to the top of the bank and increasing its height and, therefore, decreasing the visibility. Moreover, the bushes along the right of way, which had in other years been cut, according to the evidence of the plaintiff, Everett William Killam, had not been touched during the year in which the accident occurred, and the accident occurred on July 19th so there had been plenty of opportunity.

There can be no doubt that the respondent railway knew the situation and the danger inherent in the situation. The evidence of the plaintiff, Everett William Killam, was that he had made a

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nuisance of himself in complaining to the section man and to almost everyone else as to the danger of the crossing. He also testified to having a bulldozer there for the purpose of widening his own private road and that when such a machine got to the point where it would cross on to the property of the railway he requested Deveau, the section man, to give him permission to do so and that Deveau simply referred him to his superior. Killam further testified that he discussed the situation with the superior, Thibeau, the then assistant roadmaster, and that in turn Thibeau referred him to his superior in Kentville. Thibeau gave evidence that the date when the request was made he was no longer assistant roadmaster and was not in the area. Deveau did not even remember the conversation. It is quite evident that the jury from its verdict believed, as I am of the opinion that they were entitled to believe, the evidence of Killam. At any rate, I regard that as immaterial as certainly there was evidence and uncontradicted evidence that Killam constantly complained of the danger of the crossing in his conversations with Deveau and that Deveau, being the section foreman, was under a duty to inform his superiors as to the danger of the crossing. Indeed, neither Deveau nor Thibeau, who travelled past this crossing once a day, could have failed to have realized the startling danger it presented to anyone attempting to drive along the private road from the highway easterly across the crossing into the Killam property. It is said that the crossing during the sixty or more years in which it existed had not resulted in any accidents but I am of the opinion that that is not an important consideration when determining whether the circumstances should be regarded as exceptional. The crossing was used by few persons and it is probably true that most of the persons realized the very grave danger which it presented. Moreover, the line was infrequently used by trains and during the time when that traffic was by steam trains the approach of such a machine was usually accompanied by a considerable noise. Too often a danger is allowed to exist until the occurrence of a fatality makes it impossible to ignore that danger any longer. I am therefore of the view that the circumstances in effect at this crossing did constitute exceptional

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circumstances which call upon the defendant, Dominion Atlantic Railway Co., to take some further steps for the protection of the persons using the crossing. Indeed, that was the view of the Judicial Committee in a late decision as to a private crossing in Australia in Commissioner for Railways v. McDermott[15]. I can see no essential difference between the circumstances in that case where, as Lord Gardiner pointed out, the crossing was used by the inhabitants of a small village, their guests and persons having business with them, and the present case where the crossing was used by the Killam family and their guests and persons having business with them. In fact, one of such persons having business with the Killams very narrowly escaped a fatal accident only a few years before.

The problem then presents itself—was, the failure to take such other measures for the protection of the persons using the crossing the cause of this accident involving the vehicle driven by the appellant, Elizabeth Manuge, in which the appellant, Everett William Killam, rode as a front seat passenger? There can be no doubt upon all of the evidence that few people in the area knew, as well as these two appellants, of the crossing and its dangers. The appellant Killam had lived all his life in his home just to the east of the railway line and must have crossed this crossing well-nigh every day of that life. The appellant, Elizabeth Manuge, lived in a summer home about three-quarters of a mile distance at which the appellant Killam had worked as a handyman for many years, firstly prior to her marriage and during the thirteen years which followed her marriage. During that time she had, on a very large number of occasions and perhaps the majority of days when she was in residence, driven her co‑appellant along this private road and across this private crossing to his home. Both were vividly aware of the danger of the crossing and so testified. Then should it not be said that having the danger in mind, their placing themselves in the position where they were struck by the respondent, Dominion Atlantic Railway, electric car, was solely the fault of their own negligence and that they failed to act to avoid a danger of which they were aware? I am of the opinion that there is no doubt

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the appellant, Elizabeth Manuge, must be found to have been negligent and because of the statute provision, her co-appellant’s right to recovery is diminished by that negligence. Certainly prior to the contributory negligence statutes such negligence on the part of the appellant, Elizabeth Manuge, would have barred both her recovery and that of her husband. I am of the opinion that since the enactment of the statute provision contained in contributory negligence statutes, if there is negligence on the part of both the plaintiff and defendant which contributes to the accident then such statutes apply so that recovery is not barred but the amount of the recovery apportioned. This would seem to be the view of the British Columbia Court of Appeal in Whitehead v. North Vancouver[16], and also in Bisson v. District of Powell River[17], at p. 248, where McFarlane J.A. adopts the view stated by Glanville Williams in Joint Torts and Contributory Negligence, 1951, para. 77 on p. 319 and following. I have already pointed out how, in my view, there was negligence on the part of the respondent, Dominion Atlantic Railway, in failure to take further measures in view of the exceptional circumstances. Whether the plaintiffs’ mere foolhardy disregard of the danger caused or contributed to the accident may be determined upon a further consideration of the evidence. It is true we have no evidence from either the appellant, Elizabeth Manuge, or the appellant, Everett William Killam, as to the actual circumstances which occurred at the moment of the accident as, due to traumatic amnesia, both of them have lapses of memory from sometime before the accident occurred to long after. However, as I have said, other evidence showed that the front wheels of their vehicle had to be between the rails before there could be any appreciable vision of the curve. Moreover, the appellant, Elizabeth Manuge’s, small daughter, Marianne Manuge, who sat on the right-hand side of the rear seat, was able to give evidence. The learned trial judge after examining the Manuge child on a voir dire determined that she could be sworn and she therefore testified under oath. She swore that the appellant, Elizabeth Manuge, brought the vehicle to a full stop “before the train

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track” and on this topic she was very certain. She further testified that the appellant, Elizabeth Manuge, asked her if it was clear “her way”, i.e. to the right or south and that the appellant, Elizabeth Manuge, looked “her way”, i.e. to the left, and continued “And then I heard the whistle on the train and when we were just crossing the tracks, I saw the train. I was about to tell her that I saw it but I was too late.” It is therefore apparent on this evidence, and it is the only evidence on the subject and it was not denied or indeed made the subject of any cross‑examination, that the appellant, Elizabeth Manuge, did take what seems to be well-nigh the sole step she could take to avoid the accident. She stopped and she looked; not merely slowing down, but stopped. One may well ask what more could she have done. Perhaps if she had asked her co-appellant, Killam, to disembark and walk across the crossing so he could stand on the east side of the rails and look toward the curve, she could have avoided the accident. The appellant, Elizabeth Manuge, evidently did not do so. Under those circumstances the jury found that there was negligence on the part of both Elizabeth Manuge and Dominion Atlantic Railway and found that the former was 30 per cent at fault while the latter was 70 per cent at fault. For the reasons I have outlined, that finding was for the jury and I am of the view that the jury’s answer should be allowed to stand. I see no reason for the extension of the answer and in fact I cannot see how either this Court or the Appeal Division of the Supreme Court of Nova Scotia would have any jurisdiction to extend the answer. In my view the answer “failure to maintain adequate northern visibility at western approach to crossing” was the stating in clear terms of the ground of negligence which could be found against the respondent, Dominion Atlantic Railway, and it should stand.

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To summarize therefore, I would allow the appeals of Robert W. Manuge and Elizabeth and Everett William Killam against the respondent, Dominion Atlantic Railway, and award to each the damages allowed by the learned trial judge. The award of costs by the learned trial judge should be restored and the three appellants should be entitled to their costs in the Appeal Division and this Court. The other appeals I have disposed of above.

Appeals of the appellants Robert W. Manuge and Elizabeth Manuge and of the appellants Everett William Killam and Myrtle Deltina Killam against the respondent Dominion Atlantic Railway Company dismissed with costs; Spence J. dissenting, except as to appeal of Myrtle Deltina Killam. Appeal of Everett William Killam and Myrtle Deltina Killam against the respondents Robert W. Manuge and Elizabeth Manuge dismissed with costs.

Solicitor for Robert W. Manuge and Elizabeth Manuge: J.W.E. Mingo, Halifax.

Solicitor for Everett William Killam and Myrtle Deltina Killam: A. Boyd MacGillivray, Yarmouth.

Solicitor for Dominion Atlantic Railway Company: R.J. Downie, Halifax.