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Automobile Versus Wagon Appeal 08.86

In the appeal of Mabel Parkman and Arthur McKinnon "0111 111B judgment of Mr. Justice Arsenault two Judgments were 91131101139911- nne by the chief Justice. and thc iother by Mr. Justice Haszard.

Judgment of the Chief Justine

January 13th, 1925.

This is an application by 111C Plaintiff to set aside the verdict. of the Jury found for the Defendant on the trial of this cause at tht last June Term of this ‘Court. hold en in Summcrside. The action was brought to recover damages for al- leged injury to the person of th‘ Plaintiff arising out of a collision ‘between a motor car owned anti thivcn -by the Defendant and a, horso-tlrawn carriage in which the Plaintiff was riding in company with her two brothers Reginald and Meredith Parkman. The collision took place about. 7.30 p.111. of tht‘ 26th tiny of October, 1923, on the public highway where it crosses u bridge on Si. Peter's Road about three ‘miles wostwartlly from Char lottetowtt, known as Wright's t liritlge.

The bridge is trstccl structure. having a plank roadway givilll about 13% feot of clear road space. extending longatutlinally 50 feet and protected on each side by an iron ruil. Th1‘. ‘bridge is approach- led front the East ‘by p graduated 't-luy embankment about 100 feet long 11nd 21 fect wide, guarded on each 55th- hy a wooden rail. On tht _\Vt-st the approach is by a similar ,t-u1-hunkment sintilurly guarded and ubottl 00 feet in length.

The collision occurred on ‘tho Wvstttrn uttproatelt at some poin! lu-ttrontt ihc ‘bridge itself and 6'. lot-t “"051. of the bridge. The two vehit-lt-s came together with such violt-ttct: that the three occupants

95c value, now

of tho trurriage were thrown out the front whccl of the carriage -de~

_ . moiishctl so that the ax] rested o1 value now ‘G9 ‘the ground; ‘tile shafts ‘were brok- t-n, the right hi11d Wheel injured,

11nd the axle ‘bout, while the steer- ing gcnr of the car was put out oi service. Tht- Defendant a few days after this event settled with Frederick Parkman and Reginald, the claims made 111 respect of damage to the currlngc, harness and horse. De- fendant paid $55.00 for damages ond costs and agreed to ‘have tht‘ wagon rnpttirctl and had it repaired ‘at u further cost of $30.00. This hettlcment was made on thc 120th of October and on the 7th o. January following, the Plaintiff by her solicitors tnade the clni-m for personal injury which is the sub- ject of this stilt. Thc case came 011 Jto h.‘ 1111:1111 ‘itefortt Mr. Justice Ar-

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scuault and t1 Jury on the 18th day

85C value HOW of June, 102i. and was continued yd a ‘on the 14th, 16th, 17th 11nd 18th ' ' ' ‘ ' ' " ‘ ' ‘ (lays of June last when a. verdict

was rentlcrctl ‘for the Defendant. The Plaintiff now applies to have

[tho verdict set aside anti a new

-triai gruntvd btttwocn the parties

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inn tho following grounds:

L-That. the Defendant by hl~m- iself and his agents during the said iterm or during the course of the said ‘trial unduly and improperly solicited the Jury to favor the De- fendant andgive a verdict in the .l)cfentlttnt‘s favor, and used impro- por anti illegal means to influence the Jury to have a verdict in favor of ‘the Defendant.

2.—’l‘haf. the verdict was con- trary to the evidence and against. the weight of evidence and con- trary to the direction of tho Judge.

in support of the first ground for a new trial three affidavits have ‘been filed and read on behalf of the Plaintiff. viz:

The affidavit of Mabel Parkman the Plaintiff, dated 1st November. 1924.

The affidavit of Frederick Park- man, father of the Plaintiff. dated 1st Novmbcr. 1924.

Anti that of Reginald E. Park- man, brother of the Plaintifhdateti 3rd November, 1924.

Anti in reply thereto on behalf of the Defendant seven affidavits have ‘lteen fllcd and rend, viz: the affidavits of:

To Towellins. a" l1nen,‘231ns. wide, 55 .161... Moyagh, 6t szrme date. . . . ‘ Stewart Affleck( a Juror 011 ‘tho ‘t’ vdlue’ now trial, dated 191.11 Novem-hre. 1924.

- . llugh Smith, a Juror on thc trial.

dated 20th November, 1924.

40c Value. 110W Dot s. Gorrill, dated 19th No- for yd_ . . . . . . . I vem-bt-r, 1924.

Anti two affidavits of Benjamin Arsennult, each dated 20th Novctn‘ lter. i924.

l shall sot forth ‘the (rhargos nnd answers in tour divisions number- ed cttnsectttivoly, the evidence be- ing derived solely from the affidav- its uhovo referred to.

(1) The first charge "is thus stat- cd thy tho Plaintiff:

"i :1111 in-formt-d anti holicve that during tho trial in this cause the Defendant put 11p at the Waverley House on Water street ln Sum- merside. kept ‘by one ‘Benjamin Gallant, and that several of the Jurymen who tried this cause put up ut. the same place. and l saw ‘the snitl Defendant going in anti out of the Waverley House on sev- oral occasions during the course of thr- said trial and l saw one of the Jurymen around the same premis- es during the course of tho said trial."

Frederick Park-mun adds: “On Wednesday the 25th-day of J-une inst l went to Sumtmerside especi- ally to make enquiries about the

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actions of the Defendant in roil- tlon ‘to the Jury during the trial of this cause . . . . l called at the boarding "house of Mr. 8011111111111 Gallant who keeps the Waverley House on Water Street in Summer- slde and he informed me that the defendant, Arthur Mclfinnon. H1141 his, Attorney and his witnesses and moat of the Juryunen ‘put up at £11k‘ aaid Waverley House during the. coume of the said trial. He fnr~ her informed me t-hlt they all ‘had n great time during the trial and the; they ail talked together about ‘the case while It W88 ‘ill 117087951"

The Defendant denies that ‘his Attorney or any of the Juryllwfl on the trial of ‘this cause put up at the Waverley House during the trial. To the like effect is the tes- ti-moity of John Moynagh who de poses that “not a single Jurytman on the trial of this cause put up at the ssid hotel.“

Benjamin. Arsenault (erroneous- ly referred to as Benjamin Gallant by the Plaintiff, ‘her ‘father d ‘bro- :her in their affidavits ‘bore n) pro- prietor of the Waverley House, states as follows:

“2. l have read over a document thown to me purporting to ‘be a ‘opy of an affidavit made by Fred arick Parkman herein on the Isl 1f November, 1924. and i say ‘that he statement. contained ‘in said ai- l/davlt to the effect that l inform- ed the said Frederick Parkman that the Defend-ant, Arthur McKtlnnon and his attorney and ‘his witnesses ‘tnd ntost of the Jury-men put up at the Waverley House during the ..-oursc of the said trial is not true. l never ‘made any such statement :0 the said Frederick Parkman and utch statement if ‘made would not ‘me true for on the contrary, whilt the Defendant himself and some oi his witnesses put up at the said Woverley- House, the Defendant's Attorney never put up t'here, anti "tone of the Jurymen that were lurors upon the trial of this cause pui- up at the said Waverley Housi luring the course of the sqid trial. . . .

"3. i further state and say ‘that l have read also the statement in said affidavit that i further inform- ...~d the said Frederick Parkman. ‘that ‘they had a great time during the trial and that they all talked together about the case while it was in progress,’ and 1 say that ‘the statomenttontaineti in said affidav- it is not true as I never ‘made any such statement to the said Fred- erick Parkman and such statement would not be true if ‘it were made for the reason stated in Paragraph '2 of this affidavit."

The second charge, relates to a supposed attempt to corrupt or un- tluly influence one of the Jury.

Reginald Parkman dcposcs:

“8. That . On Tuesday the 17th tlay of June last 1 was going tilting Water Street . . in Sum- mcrsidc and I saw the Defendant and his witness John Moynagh talkink with two men, namely, George Knox and Dot S. Gorrill who were on the Jury panel at. the said June term of the Court. tbul who were not Jurymen on the trial of this causc——that 1 ‘passed close lo ‘those four "men anti overheard one of thcm saying to Dot S. Gor- rill, ‘You better get Smith.’ 1 then noticed that Gorrill ‘moved away from the other three ‘men and went up along Water Street in the sa-me direction which i was going ‘but fol-lowing behind ‘me; that in a minute or two l met Hugh Smith who was one of the Jurymen in the trial of ‘this cause. . . . and a-fter l passed Smith the said Gor- rill met Smith and passed him and turned back with S-mith and pro- ceeded in a Westerly direction along Water Street following ‘the Defendant and the said ‘Moynagh and Knox in the direction of ‘the Court House; I also turned about and followed the said Gorrill and Smith st a short distance behind them untll they got up to the Court House; when l went in-to the Court House l saw the Defendant. Gorrill. Knox and Moynsgh al-l sitting to- gether in the Court House."

Dot S. Gorrill says in reply:

"1. That I am not acquainted with Arthur McKiunon the wbove na-med Defendant, and never spoke to him in all my life.

"2. That l never directly or in- directly said or did anything to llugh Smith, one of the Jurymen onthe trial of this cause, or any othnr Jnrymnn, to influence him~1n rendering his verdict heroin."

And the said Hugh Smith in ‘hi! said affidavit deposos:

"4. That. Dot S. Gorrill did not

me in rendering my verdict here 1n ..

John Moynagh in his affidavit de- nies the statements in Paragra-phni 3, ‘i and 5 of Reginald Parkman’! affidavit and addsz

"I do not know Dot S. Gorrill rt‘ ferrcd to in said affidavit. nor dil l have any conversation with hi1: regarding the trial of this cause or any other matte-r at any time."

Arthur McKinnon, the Defendant, l1ls his said affidavit, swears:

"1 never knew nor did 1 have sly acquaintance with the said Dot S. Gorrill. I did not say to any Iper- son "You ‘better get Smith.” tor ‘did any one in ‘my presence ‘mike any such statement." And he fur- ‘thcr says: "1 had no conversahon Whatever with either Hugh Smith or Stewart Affleck»! never lhke to either of them in ‘my life."

The 4th charge is thus discitsed -by the affidavits referred to beow: The Plaintiff states that on several occasions during ‘the course tithe ‘trial she saw the defendant l1con- versation with several of thelury- men who sat on the trial o tthis cause-dha-t. on the ‘morning 4 the 16th day of June she saw 1h Do- fendam, standing 'by his moh- car. ‘the same car that was in tic coi- flsion. He was talking to number of persons on the street fdt about 15 minutes and pointing m. the different parts of his cafto the people. and ‘particular! eoratrlok Farmer. one of the uryten on the cause, ‘talking to hi-m lporent- ly about the car. Hef filaments are corroborated ‘by horbrother. Reginald Parkman. who 1y: that he and Mr. W. E. ‘ from a shop across the street dberveti the Defendant standing ‘by? is motor car and several peoplolofl stand-

11.’. ".1\.‘

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Get a box to-doy before it is too late. /

- ‘Wl-‘iflfltlrlas-w. “ rain-inn

n1; about. . ‘including ‘It. Patrick Iutnnor, and ‘he another Juryman-‘fthat he l .‘ . Bentley stood 3nd watched ‘and the .9801! standing fill. him for

say 0r do anything to me 611118!‘ 1L fiifeflliy 0i‘ 11101100111’ ‘i-O 111111191113“ bridge and the approach, all the

on said approach. space of time he saw the car 11p- ,parently coming directly towards

of it. but almost immediately the

wheel of the car entering between the shafts and the front wheel of the carriage (011 the right hand B1416 thereof) and the -body, break- ing the shafts and smashing off the from, wheel and breaking or bending back the rear axle breaking the wheel and throwing the three occupants of ‘the carriage

a Jury in June last, and n verdict

aside the verdict and for a new trial on the ground fhtt the verdict ren- dered is contrary to the evidence.

deuce and contrary to the direction

this suit. namelyvthe ‘position of

railing on ‘bridge and weltern approach all

motor, the carriage was ul-ttume patter the accident. The‘ lfdury to a‘.

THE CHARLO ITETOWN GUARDIAN

about 15 ‘minutes, during widoh the Defendant was talking 011611911081- ly and moving about the 0M’ Ind pointing out certain parts 0f tho oar. particularly to Mr. Farmer. He could not overhear Iwhst was said. but he assumed that they WBrO talking‘ ‘about the car and about this case. t.

On the following day Ml‘. Bell!- ley, Counsel ‘for the Pia till. CF08! examined the Defendant “Don this incident when Defendant admitted that ‘he had ‘been eslltlns about his car to a number of men on the street, and he appears t0 have been demonstrating the car in re- lation to the collision.

The Defendant null’ 11°! 118W known ‘that any Juryntan was Dre‘ sent, but the ‘fact that such ‘misht have ‘been the ease should have kept him of!‘ such daugeffli"! ground. His conduct in this rc- gard was highly intproper. and i! the Plaintiff had I101. discovered it until after the trial it would in my opinion ‘have ‘been sufficient around or a new trial, but the _Piain‘tiif ‘by observing the event. and having cross examined th.‘ Defendant up on the circumstances. must be tak- en to have had knowledge 0i’ ‘i119 facts and to have ltcqllififififid 111 the completion ot the trial before the same llury. The M-aintll‘! was put upon her guard. -but chose to take the chance or it verdict in her favor, and it is now too, late t0 raise the objection.

In respect 1,0 sllcll of the other charges as are not included under this ‘principle, they are either too immaterial t0 require serious con- sideration or are ctmipietely nulli- fled by the answering affidavits.

Referring now to the second

new trial:

Since ‘hearing Counsel on the ar- gument I have examined with care the notes of evidence ‘taken on the

Jury.

The evidence is very conflicting so that a perfectly satisfactory de- cision might be very hard to reach. ‘t was ‘the province ot‘ the J-ury to determine what evidence they should believe and what reject.

There l5 evidence to support the verdict. Tho difficulty in reaching a decision would arise. upon the weight of evidence.

Where the question is based up- op/the weight of evidence it has long been settled as a guiding .prin- ciple that a new trial should not be granted on the ground that the verdict i5 against the weight of evidence, if the verdict. is such as reasonable men could ‘have ‘found. Lord Hulslntry, in Metropolitan‘ Railway Co. vs. Wright (ll Ap. Cas. 152).st1ys: "lf reasonable-men might ‘find the verdict which has been found I think no Court has

of fact which ‘the law has confided to juries and not to Judges."

This was a case most suitable for trial ‘by Jury.

No question ‘arises upon the sniff-- ciency of the Judge's charge which clearly explained the legal rights. and duties applicable to the case.

it is iutpossl-ble for me to con- clud-e that tthe verdict is one which reasonable tmon ‘mitght not find.

The application should in my op- lnion be dismissed with costs.

Judgment of Mr. ‘Justice Haszard.

This is ‘an action ‘for the recovery of dantages for injuries sustained ‘by the Plaintiff in a collision be- tweeua motor vehicle driven by the‘ Defendant on a pu‘bllc highway so unakillfully and negligently as to occasion the Plaintiff to be thrown from the carriage in which she was riding to the ground and

month of October, 1923. anti when they entered the eastern approach of what is known as Wright's Bridge, in said Royalty, they ob- served a motor car then on the hill on the western side of the bridge. a considerable distance 11p tho raid, coming ‘towards the bridge with a/pparently only one light lighted. and as they ‘lteilnved, on lite smith '01‘ wrong side of the mad. They were then ‘prococtllng slowly, the horse walking. The driver of the tea-m ut oncc started to trot the horse, he says, in order lo get over the narrow part of tho brief-go before ‘the car would roach keeping ‘the south side of the

time keeping close to the railing lo a very short

thetm, and shouted to the driver

oar was upon them, the front

and

to the ground. whereby the Plain- tiff sustained the injuries before mentioned,

The ‘action was tried at Swmmor- side ‘by Mr. Justice Arsonatilt and

was rendered ‘for the Defendant. This application asks to set

and against ‘the weight of ovi.

of the trial Judge. Also on a fur- ther ground which l do not deal with here.

On a very careful reading of tho evidence, and full consideration of all the circumstances ‘in the case, 1 am unable to reach the conclu- sion that the Jury were justified in their finding for the Defendant. There appears to me to be one Out- standing fact which should guide LJury in finding their verdict in

the horse and carriage when the collision took place and after. The thi-ee persons who were driving in 1110 clfrifl-se and who had every opportunity of seeing the approach- ln-g our any they were close to the the south side of the

the time, and when etmclt by the

ground in ‘the application for a _

trial and the Judge's charge to the