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“PLUNKED ' O N TH E CORNER”

Comedy And Serial

' TIM

JUDGEMENT

-Continued from page l—-

_November 192B, about 6.30 a. m.. s collision took place between the car of the plaintiff and the car of the defendant ricer the centre of the‘ area of intersection of Prince and‘ .. Grafton Streets in the City of Char- _ iottetown whereby the plaintiff's car was damaged. - ‘Thewidth of the paved roadway , __on Prince Street between the curbs is 31 fect and of Grafton Street, ' _ where it enters the area of intersec- tion from the west, 33 1-3 feet. Ap- _ proximately at the central point of the area a silent policeman had been . located but had been removed before " ~ the accident. The point where it had i 1 1-; was not in doubt. ' "The plaintiff's car driven by John McAlccr was proceednig eastward, ' "along Grafton Street bound for the. railway station with a passenger for‘ the train, which. was scheduled to leave the station at 6.45 a. m. The! course of the plaintiff's car was at: right angles m that of the defend-i. cat's car. The area was lighted by| one or more street lights burning at, the time of the accident. The only‘ persons present at the collision who " were examined as witnesses on be- half of the plaintiff were the driver, John McAleer. and hm passenger, James Reid. Neither one of them saw the defendant's car until after the collision happened. The light shed by the evidence on the defcnd- , int/s car and his conduct is dim and uncertain. of his presence on the scene when) the light of his car flas-hed into the‘ plaintiff's car in the moment be- fore the collision.’ The defendant's car was then near to or upon the - place where the sllcnt policeman had been located. It was headed south and projected about 2% feeti into the southern half of Grafton; _Street. It does not appear that it} ml- iidvanced along Prince Street beyond that point. The plaintiff's!‘ . ear had on the other hard. after the "accident kept on its main course al- ong Grafton Street for about 70 ft. when it swerved, turned over on its ' ‘aide and cams to a stop. The exact __josition of the defendant's car inn inediately following theyaccident and ito condition are not disclosed by the evidence further than that it was “first over-turned, was at a point “about 25 feet distant from plaint- , ‘llffsfoar and shortly proceeded to its miiestination. The rear left fender of the plaint- iff's osr was inluredby the collision, tine roar tine flattened and other >.. damage done as, a direct result of collision’ or ‘indirectly by' the _ a" jive-turning of the car.

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Position of Car.

The only direct evidence to estab- lish negligence in the defendant is founded upon ‘the position of hiscar at the time of the accident. He had evidently been proceeding south- ward along Prince Street but wheth-

ér u: the time of the collision he was moving southward or was sta-

tionary is not made clear. In any case his cor at the critical moment

was located where it had a perfect right to be unless it thereby unlaw-

fully obstructed the passage of the

plaintiff's car.

What evidence is there oi‘ such ob- struction? It is properly claimed on behalf of the plaintiff that under the law of this Province his car had the right of way. Thut is a. right hovscvcr which is commonly over-es- timated. It has several limitations. It was tllc plaintiff's duty in pass- ing the other cur in such a case to "keep to the right of the intersection of the centres" of Prince and Grafton Streets. Under bye-law No. 2 of the City of Charlottetown, enacted un- der the authority of "The Motor Ve- hicle Act 1922," it was also the duty to "kccp to the right as near the curb as circumstances and weather conditions and traffic permit."

In the present one the plaintiff by going along the southern line of Grafton Strict. even without swerv- ing into fhc open way which was fur- ther to his right on Prince Street, had ample room to pass safely if he himself had observed the traffic rules. Wllcn the collision took place there was a space of 6 to 8 feet clear

We first become awgrgspace bctwccn his’ car and the

southern line of Grafton Street and beyond that to the right was the open wny on Prince Street.

Rules of the Road.

There are few questions which give rLse to more misunderstanding than the rules of the road. In a re- cont Ontario case, Allen V. Inrd rc- portcd in 34 Ontario Weekly Notes page 24s. Chief Justice Mulock de- livering the Judgment of tlls Court of Iippcnl thus states the general principles of the rule.

"Highways are not by law div- ided into right or wrong aid-as.‘ Subject always to legislation reg- ulating the use of highways one is entitled to drive along any part of a highway. provided that in the exercise of such right he has due regard for the rights of others. In other words, he must act reasonably. What is reason- able depends on all the attend- ant circumsta where .» he (defendant) was on the high- way at the time of the accide is only one circumstance-That one circumstance alone is not sufficient to establish negli- gcncc."

The fact that s. driver has wthe right of way may‘ be symateriai ques- tion in decidingwho is in fault but it still remains nu duty u. exercise IOIIOM-ble care to avoid a ‘collision with vehi ‘ Kipp-caching on his loft. He is still bound i6 look to;the left ss well as to the right for approach- in! vehicias. Ifthe driver. who does not hold the ‘right-oi way comes w a crossing and finds no one approach- ing it on the cross street, within such

Va distance as to. inoicote daageref

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no obligation to stop or wait but may proceed to use such crossing as a matter of fight. While the statute docs provide that a; intersections motor vehicles on the right hand side shall have the right of way it does not warrant or permit vehicles on the right hand side to proceed recklessly into a collision.

A " minsnt Principle

An excellent summary of the prin- ciples applied by the Appellate Div- ision of-the Supreme Court of On- tario in interpreting the rules of tho road’ is set forth in the head note of Henley v. Hayes, reported (1925) 3 D. L. R. page 782.

"A statutegiving s. right of way at intersections to vehicles on the right hand of other vehi- cles is only applicable where two vehicles are approaching an in- tersection so nearly simultan- eously thst a collision is inevit- able if both proceed without al- tering spced. It does not give a permanent right to all vehicles on the right hand side, irres- pective of- the position of other vehicles, nor can it be used as a cloak for the negligence of a. driver claiming the right of way who secs or ought to see that a collision is inevitable unless he slows down."

All rules of the road are subject to this dominant principle that/each so use thc- highway as not to make its use by others dangerous. Caution and care are constantly required of every driver. '

The action of the driver of plain- tiff's car seems to have been induc- ed by a fatal misunderstanding of his rights in this regard. On cross examination by Mr. McLean, K. C, the following questions were put to the driver, McAleer, and the follow- ing answers were given by him.

Q. You went to within 21-2 feet of the intersection?

A. Yes sir.

Q. Why old you not go to the east s little more?

A. I did not have to.

Q. No matter what would hap- pen?

A. I had the right of way.

Q. That is the reason you stood right in to the centre of thc inter- section?

A. I wasn't rig/ht in. I was 21-2 feet away from it.

On tho question of the action of the cars at the time of the collision. the defendant's counsel‘ finued the crom examination of the driver, this

Q. McDonald was standing there quiet without s move?

A. l-low doyoumean ‘was stand- ins?’ ..

Q. Bis cor was standing

‘A. No sir. I

Qf How dooyqu-lrnowf

A. He hit us. He bit the car that Ives driving. -- . '

. Q. Will you deny that you hit his car, hit him on the front wheel?

A. Ne sir.

Q. You vol-ridden: that you hit his ear on choicest-fender‘!

A. ifo sir. I ' v

Q. You may have hit his ear?

A. -I don't snow. ‘

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to witness- '

Q. 1 want you to explain what you meant when you said you did not know whether you hit his car.

A. I don't know anything about where they struck; _

Q. You first know he ran into you?

A. Yes sir.

James)‘. Reid, the passenger in plaintiff's car, testlfied-"The car came dowzrPi-ince Street and hit us. . I had a $10.00 bill in the book iii my pocket. I was just in the act_ 0i putting it in my pocket. He was lust in the intersection when the light flared in on the back seat where I was sitting. Immediately it all hap- pened like that and when it hit us I was knocked to the side of the car and had concussion of the brain."

Then followed a question by plain- tiff's counsel.

Q. You say you had struck?

A. I don't know whether it‘ had struck. and in cross examination in answer to the following questions?

‘Q. You cannot swear whether he ran into you?

»A. The only think I know is that I went to the left.

Q. You were in the back seat. You-were not observing?

A. No sir.

The $10.00 bill was found in the car next morning witness said he had not time to put it away. He saw the flash and immediately the col- lision took place. ‘

Further Evidence Reviewed

Some further evidence was given by several witnesses as to marks upon Prince Street claiméd by plain- tiff to have been made by the Wheels of a car heavily braked, the marks extend on Prince Street southwardly to near the site of the silent police- man and continue in a curve east- wardly on Grafton Street, but tile; connection of the marks with the de-' tenant's car and the inferences that might be drawn from the character and direction of the marks were purely speculative. if made by the defendant's car they may have evi- denced an effort on his part to stop the csr to avoid a collision.

Owen Proud, who keeps a garage for the repair of cars and who re- paired piaintifrs car aftcr the col- lision, was of the opinion that the, character of the injury to plaintiff’: car indicated that it was done by tho defendant's car running into the plaintiff's.

Upon such wavering and self-con- tradictory testimony as that given by the two witnesses who were im- sent at the accident and the specu- iatlve nature of the remainder of the testimony for the plaintiff and con sldcring that the plaintifl had ample room to have passed safely by keep- ing to ‘the right of his side of the roadway, as was his legal duty, I would hesltat to say that a prime facie case has been made out against the defendant even without taking into account the all important ques- tion of contribuwry negligence on the part of the ialntiif, which will. now be consirie .

Question For Decision

fibeultliaetsquestioutobeescfd-

ad is-assuming that the defendant was guilty of negligence, did the plaintiff by some negligence on his part help to bring about the disas- m? 1t will not ‘avail the plaintiff to prove that the defendant was negligent to any degree short of be- ing the sole cause of the accident.

In-Davy v. ‘The London d: Scum Western Railway Company ‘reported l2 Q. B. D., page 70, Brett, H. R» thus defines the onus placed upon the plaintiff in such a case-

"The plaintiff's cause of ac- tion being that tlle accident to him was caused solely by the. negligence of the dofcndont, if he omits to give prima facle evi- dencc of any part of his cause he mus; b: non-suited."

In that case the defendant's rail- way crossed a public footpathon the level. A foot passenger while crossing from the down side to the upside of the railway Wm knocked down and injured by a train on the uplliie. Owing to the position of certain buildings which stccd by tile line it was impomible for anyone crossing from the down side of the line to sec a train coming until he

ot within a step or two of the down line, but a person standing on the down line had a clear view up and down ‘the line for several hundred yards. Plaintiff stated that he had looked to the right but not to the left. If he had looked he must have seen the train coming. The engine driver did not whistle. There was a servant of the Company. employed as gatekeeper a1; the crossing, standing near the crossing but he gave no warning. Plaintiff was nonsuited at the trial. On appeal it was held "that the nonsuit was right- that though there was evidence of negli- gence on the part of defendants, yet according to the undisputed facts of the case the plaintiff has shown that the accident was solely caused by his omission to use the care which any reasonable man would have used."

That was a case where the acci- dent happened through the fault of botli plaintiff and defendant, and this having been shown by the plain- tiff's own evidence it was, held that he could not recover and the non- suit was confirmed.

There is perhaps no clearer defin- ition of the onus which the common law imposes on a plaintiff» in an ao- tion of this kind than was given by Lord Ellenborough, C. J., in Butter- fieid v. Forrester, reported 1i East's Reports at page 6D (1809,) when he ssid- . ~

"Two things must concur to support this action, an obstruc- tion in the road by the fault of the defendant, and no want of ordinary cars .to'evoid it on the part of the plaintiff." ‘

Plaintiff's llesponsbllity

It is now in order to consider whether or not the plaintiff in the events which happens! wssdree from blame; wilctbor by his unlawful acts or omissions he was responsible in any degree for the accident.

He was "in the taxi bull-nest” as he said. that is, he kepha numbcr of maim- can and-Imilliivgdnversi

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chaufleurs were. pawns-n far hire. Thecarinthiscsseawfm to have been unobkfitionabls. It W“ duly registered a_.ud in good condition. but it is contended on behalf of $119 defendant that the driver was dis- qualified by the statute law of this Province from driving the car and that the plaintiff by authorising or suffering him to operate the car was guilty ofnegllgence. The statute re- ferred to is "The Motor Vehicle Act 1922," as amended and the 1'01"!” sections are-

Sec. ‘Io-Every owner of a register- ed car shall be entitled to receive an operator's license free of charge provided such owner is not less than seventeen years of age and shall produce a certificate of- qualification‘ to operates. motor vehicle, or such other evidence of qualification as shall be satisfactory to the Secretary. Like privilege may be extended, if similarly qualified and of the proper age, to one member of the owner's family or to such other person as the Secretary may see fit. Such ope‘:- atoris license shall not permit. the person to whom it is granted to act as a professional chauffeur for wages or for a livelihood. Such license must be carried by the person to whom it is issued when operating a motor vehicle.

Sec. Wa-Special operator's licenses may be grantedto qualified persons who do not wish to operate motor vehicles for wages and who are not members of owner's family by pay- ing a special fee for such license.

The requirements of the law r:- spectl-ng chauffeurs, much more ex- acting than for drivers of private cars, are set forth in S. S. 6i and 62 of the Act, as follows-

Scc. til-No chauffeur shall oper- ate a. motor vehicle on the public highways in this Province unless he or she has been duly ‘icenscd and registered under the provisions of this Act and is upwards of seventeen years of age, arid shall have paid for such registration and badge, such fee as may from’ time to time be fixed by the Lieutenant Governor in Coun- cil and shall have complied with all the provisions of this Act.

Sec. its-Before the chauffeurs li- cense is granted, for the first time. the applicant for such license must file withthe, Secretary s satisfac- tory certificate of competency from an authorized examiner who has been duly appointed by the Secretary for that purpose or from a Technical School or from such other reliable source as the Secretary may approve of; gttesting to his fitness. and to his technical knowledge of the mechan- ism of motor vehicles, his sobriety and general good character; and if the Secretary is satisfied that the applicant is a flt and proper person to receive such llcense,,he shall grant and register the same.

And Section 67 provides that "no person shall employ as chauffeur of a motor vehicle any person not es- pecially licensed as such." Embracing _all classesof drivers is Section 60, which is as follows- Sec. oil-No person shall operate a motor vehicle on the public high- ways of this Province unless he or she is duly licensed to do so under the provisions of this Act.

Act for extra provincial cars: the drivers must be qualified and the car registered according to the law of the Province or Stats in which the owner resides.

v c tent-Ion t. rumun

It was urged by plaintiff's counsel on the argument that Section 60 does not absolutely prohibit an ‘unlicen- sed person from driving s car, but that it operates merely as a traffic regulation. the breach of which would be satisfied by a. fine. and the case ci Godfrey v. Cooper, reported 51 D.L. R. at page 455, was chiefly relied up- on to support this contention. I do not think that case applies. What it did decide was that Passengers in a motofcsr driven for hire on the highway were not prejudiced in their action for damagssby reason only of the fact that the driver of the motor car was unlicensed and was guilty of contributory negligence.

In my opinion Section 60 means exactly what its words import. It stands as a barrier against unquali- fied or disqualified persons driving motor cars on the public highways. It gives effect. for example. to the disqualiflcition of persons under 1'! years of ago. Such a person cannot get a license. I; assures passengers for hire in taxi cars that the orlvor is a competent driver. of good char- acter, conformabiy to the provisions of B. S. s1 and o2 of the statute above quoted. otherwise he could not hold a licorice. Without the license there could be no effective control of the motor vehicle trams under the statute. - _

There is no question that the lol- illIi-url ind the rover u» prevent m! unlicensed person from operating a motor oar on the highways. They could lot llllfellvin claim words