I my '21. not THE cuaaolm. Cl-lARl.'.0'l'TETOWN of 0 Judge Trainer Gives Reasons For Judgment in Tweedy Case The foilowinfrsssons for judg- ment in the case of The King vs. George J. Tweedy. -in which the accused was found guilty of driving to the common of get. were given by Judge C.' St. Clair Trainor in the County Court Judge's Criminal Court of Queen's County. yesterday in delivering judgment: on the 19th day of June. A.D.. 1951. a Bill of Indictment for manslaughter was preferred by the Attorney-General before the Grand Jury of Queen's County at the June sittings of the Supreme Court against the accused in re- iation to the death of one Gerald Solomon. alleged, to have been caused by the accused on the 14th day of April. 1951. while driving a motor vehicle on a highway at or near Southport in Queen's County. When the Grand Jury had intimated that they would find "No Bill” on the man- slaughter charge but indicated a wiiiingncss to find a "True Bill” on a charge of dangerous driving, the indictment was thereupon amended by leave of the Court and a second Count charging dan- gerous driving was then added. The Grand Jury then dealt with the indictment by finding "No Bill" as to the charge of man- slaughter, but a "True Bill" on the charge of dangerous driving under Section 285(6) of the Crim- inal Code. On the 26th day of June. A.D. 1951. before arraignment in Supreme Court, the accused. be- ing on bail. appeared before me and elected Trial by a Judge with. out the intervention of a jury. under the provisions of Part. XVIII of the Criminal Code. The trial was then set for July 10. 1951, and the accused. on the said da.V. appeared before this Court and was formally charged as fol- iows: "You. George J. Tweedy. are charged for that you. on the 14th day of April. AD.. 1951. at or near Southport in Queen's County. did unlawfully drive a motor vehicle on a highway in a man- ner dangerous to the public. hav- ing regard to all the circum- stances of the case. including the nature, condition and use of the highwsy slid the amount of traf- fic which was actually at the time or might reasonably have expect- ed to have been on such high- way at the time. contrary to the Statute in such case made and provided.” No objection was taken to the charge or otherwise and a plea of "Not Guilty" was made. The foregoing charge is laid under the provisions of Sub-Sec- tion 6 of Section 285 of the Crim- inal Code of Canada as enacted by 1938 c.44 s16. which is as fol- lows: - "Every one who drives a motor vehicle on a street. road. high- way or other public place reck- lessly. or in a Tl'lH'l'il'i!!""Wlllch:ll dangerous to the public. having regard to all the circumstances of the case. including the nature. condition. and use of the street. road, highway or place. and the amount of traffic which is actual- ly at the lime. or which might reasonably be expected to be. on such street. road. highway or place. shall be guilty of an of- fence and liable is) upon indictment to impris- onment for a term not extfeedlnlg two years or to a fine not ex- ceeding one thousand dollars or to both such imprisonment and the cue M"rBusri:Il:"c'9TE:"';ini;' fine: or ' ' v (b) on Illhlmlsy conviction to 88 Cioic 51' where." Camnbe" imprisonment for a term not ex- ceeding three months or to a fine not exceeding one hundred do.- iars or to both such impi'ison- ment and fine." In a trial such as this I find myself in the unfortunate pos- ition of having to perform the? functions of both Judge and Jury. I. therefore. must diret-t myself as to the law it-volved in the case and apply that law to the facts as disclosed by the ev- idence. . Many authorities have been cited to me but often they gave but little help because of their ap- plication to a set of facts very different from this case. Coun- sel for the accused laid great stress on the case of Rex v. Greisman (1926) 4 D.L.R. 733 (Ont. C. A.) but that- case. al- though contalning references to many sound principles of criminal law, is not helpful in a case in.- volving Section 285(6) of the Criminal Code because it fails to live consideration to the now recognized distinction in degrees in criminal negligence. . In that case a man had died as I result of a motor accident. The accused was not charged with nslsughtcr but was charged with a lesser offence and Middle- ton. J. A.. delivering the Juds- tnsnt of the Court at p. 743. said: In this case death followed the lllesed negligence. If the negli- sonco was criminal at all the sc- been prosecuted for this offence." The foregoing cannot be accepted as law today. for Lord Atkln in SW1!!! the Judgment of the House of Lords in the case of Andrews VI. the Director of Public Poor- ecuti'o.l;s'. (1037) 2 A.B.lt. 552 at p. "31". apart altogether from any lnferanca to be drawn from sect. 34. Ieniertain no doubt that the fituiory offence of dangerous H: Vlnl ms be committed. WI?! the nesiinneo -is not of such a degree as "'""ll'llltter if death ohms. As "' lnltence. in the course of Irsument it was suggested that A man might execute the danger- Dlll manoeuvre of drawing out to bars a vehicle in front with an- other vehicle meeting him. and be lbs to show that hsyoulll have succeeded in his calculated in- tentlon but for some increase of loud in the vehicles in front: a class very doubtfuily of man- :"-llhhr. but very probably of lustrous driving. I cannot think 0'--Anything worse for users of in . -' .';':i.'.:.'iii-ll: ”.i'.”.?”'..'i'" ""' visdof the b would amount to 17 Ca dangerous driving unless his neg- ligence was so great that. if he had caused death. he must have been convicted of manslaughter. The offence of dangerous driv- ing referred to by Lord Atkin is found in Section 12 of The Eng- lish Road. which is almost ident- ical with Section 285(6) of the Criminal Code. The Andrews case seems to have been first applied in Canada in Rex v. Carr (1937) 3 D.L.R. 537 before the enactment of the pre sent provisions of 285(6) of the Code and when the alternative verdict on a motor manslaughter charge could be criminal negli- gence under Section 284 In that case Roweli. C..1.C. in delivering the judgment of the Court of Appeal said at pp. 541-2: "There are three degrees of ne;:- ligence recognized by law of whicl 1! DENY may be guilty in open? B-U118 a motor car. The greatest is described as gross negligence. such as driving recklessly with- out regard to the safety of oth- ers. and if as a result ' of such negligence a person lost his life the Jury would be justified it: returning a verdict of man- "5"3M"- A Very high degree of u ilgence must be proven to es tablish the crime of manalaughtel. The second is a lesser degree of negligence. such as is defined by s. 284 of the Criminal lcode - driving which could. not be de. scribed as reckless but still was beyond the speed limit authorized 3' AW. or not keeping a proper look-out while driving. under cir. cumstances where such conduct 00"” not properly begdescribed 55 Rross negligence. If, as n n-. lsult oftsuch negligence. a person if" M5 "fer 0 Jury would he justifled in returning a vex-aici gt "iminil Negligence. as was one in the case at bar. The third liability only. such as a mere "am M "rev although. of course. any degree of negligence may give rise to civil liability. The whoh, question of negligence ill the op- eration of motor vehicles and ggalnaldllubllliy therefore is fully site and the law declared in "'9 recent Judgmenvot the House 3' in Andrews v. Director Cr All ic Prosecutions (1937), 2;-, - PD. R. 344. See Rex v. Bate. ma" (1925 19 Cr- App. R. s. "The negligence authorized by law.- aside for .1 butt of his turncd moment to throw the which he should not He says he that anyone the sidewalk cross the road in the block. and, u was less careful t have been had he "I! a crossing. Motorists. how- eyer. must recognize that the 3 "399 is I Public highway which a pedestrian is entitled to cm”. and e is not limited to crossing at intersections only. and is i. ih. duty of the motorist to keep his eye on the road so as to avoid any accident to a pedestrian who may Come upon th hi h ," The Andrews caseewasgaxgytoi. lowed in o have did not antic- would step off and attempt to the middle of ndout-tediy. he han he would been approach- C. -7.. field that Section the Code refers to two offences and at p. 55 says: with eyes on the Andrews case. and noting Lord Atkin's re- mark that reckiessi is probably the most comprehensive epithet for the fundamental conception of "lmlnll nezllgence, and that 'lt is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would N-ll Justify a conviction for man- aiaughter'. 583) Parliament cannot be supposed to have in- f9"39d '0 "Dilly the expression recklcsaly' to a lesser kind or de- gree of negligence. It therefore seems clear to me that the ex- pressions 'recklessly' and 'ln a manner dangerous to the public' in s. 285(6) are not intended as alternative ways of describing the some offence. but refer to two distinct offences. Driving reck- lessly would be driving with a gross and criminal disregard of the lives and safety of others. and would therefore be appropriate to cases where death or grievous bodily harm is not proven to be caused thereby: driving in a mall- ner dangerous to the public would involve the lesser kind or degree- of negligence. but would be ap- plicable irrespectively of the act- ual results. "Thus Parliament. in following substantially the English Road Traffic Act. as distinguished by the l-lousa' of Lords. transferred to the field of Dominion crim- inal law the offence of driving in a manner dangerous to the pub- lic. which was formerly dealt with by provincial statutes and gen- erally known as driving to the common danger" . "So that. tho gh this offence hsl now become 'crimlnal' in the sense of being enacted under the DolninIon's jurisdiction in matters of or insl law. it cannot be said to be so in the some of invoking the fundamental conception of criminal negligence. In it. Dra- per (1942). I D.L.R. 719. C. . 237. a. CC. res. Robertson. C. .1. O. in the judgment of the On- tario Court of Appeal on an un- successful appssl from conviction for dangerous driving under s 85(0), says 0- 721 D.LR-t ll- 154 Can. C.C.): 'Counul for appel- lant properly re resented to the Court that sppo ant is a man of high character. a man of standing and sliility. and an experienced driver. who has for many years driven safety. If this charge won one that involved a question of moral turpltuds or a course of conduct. one would attach IN” 285(8) or distinct . . , convince the Court that Appel- lant could be guilty of any such misconduct." "There the appellant had turn-' ed left to pass I car without making sun that the left portion of the highway was free from ap- proaching traffic." At page 51 the learned Chief Justice continued: "In spite of 35 years of mo- toring in England under a Par- liamentary law prohibiting dan- gerous drivins. and a similar pa- rlod in Canada with provincial statutes prevailing up to 1937 and with the Dominion Cr. Code s. 285(6) in force since that date. there is remarkably little affirm- ative definition of dangerous driv- ing in any of the reported cases. The reasons would appear to be that. as ! shall shortly indicate, the expression driving in a man ncr. dangerous to the public is in itself so readily understandable. and that the conception resolves itself almost entirely into s quest- ion of fact. i "The appellant objects that the Judge in this case has not in- structed on the difference between the degree of negligence in civil cases and dangerous driving char- ges, and that he failed to, instruct the jury regarding the alstlngulsb- ing marks of originality and the high degree of negligence and the moral quality carried into the act which would be necessary to sup- port the present verdict. Appel- lant's counsel very properly re- ferred in this connection to the charge of O'Connor J. in R. I. Colllson. (1941) 1 W.W.R. 362. But. while Mr. Justice O'Connors charge to the jury is a model of clarity in most respects. it is pronounced under a general di rection of the applicable law to the following effect (p. 363): 'ln order to convict (on a charge of dangerous driving) you must find facts which in your opinion show that the dangcrousdriving show- ed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving 0! P1111153" ment.' "If it is suggested that the ex- pressions thcre used invoke the recognized fundamental conception of criminal negligence. as exP0lmd' ed in the Bateman and Andrews cases. and in so many cases which have followed them. such a con- tention is misleading as it would ignore the marked distinction drawn by Lord Atkin in the An- drews case. Unfortunately. the words used are exactly the ex- pressions which have been auth- oritatively used to describe the negligence involved in manslaugh- ter. and it has been repeiledly held that dangerous driving does not involve the same high degree of negligence nor does it involve the importation of any moral quality into the act. lf. 011 me other hand. the expression used by O'Connor J. means merely that Parliament has made dsozafm-'l5 driving a statutory offence against the criminal law of the land and has prescribed punishment for those offending against the SW- uic. such an expression would seem to be clear and obvious to the Jury without any comment by the Judge. No intermediate mean- ing for the ex. is susse-sled by counsel. 1 am again reminded of Lord Atakin's statement I1 P- ass of the Andrews ludement: i1 do not myself find the connota- tions of mens no helpful in dis- tinguishinp between degrees of negligence. nor do the ideas of crime and punishment in them- selves carry I ll!!! mum Nrleher in deciding whether in I partic- ular case the degree of neshaence shown is a crime and deserve! punishment". ”In my view. the expression 'driving in a manner dangerous to the public' is a conception much more readily understood than eith- er of the highly d9VCl0PGd Md often. technical conceptions of criminal negligence or civil neg- llgence. To attempt W explain dangerous driving to I 1111'? by reference tb-civil neslisence W0"1d be a definition per isnotlut The same offence of dangerous driving has been provinciaiiy prosecuted for many years before Magistrates and lay Justices with very little difficulty and a. nasal) still sl- iows an alternative enforcement by summary conviction. "There is. of course, an import- ant distinction between this of- fence and civil negligence. as. ap- pellsnt's counsel properly pomiqd out by reference to Lord Porters judgment in Akerele v. The King (1043) A.C. ass at p. 204. namely that guilt here depends on the 'probalb1e. not the actual result' of the negligence. if any. "The same distinction is more pointedly drawn in a case before the English Court of Criminal Ap- peal. involving 5. ill of the Road Tnffio Act. 1030. namely. King- man vs. seager, (193) 1 KB. 397. a case in which an acquittal by Justices was reversed by the Court of Appeal. a procedure (as Hum- phreyl J. pointed out) requiring a very strong case. Lord Horwart C. J. at p. 399 says: The justices seem to have confounded the po- tential with the Ictusl. snd to have taken the view that, for the .eapondent to be guilty, they had to find that there wu in fact danger to ascertained members of the public...The justices. as a reasonable tribunal. could not find that there was not a real. al- though a potential. danger to traffic which might reasonably be expected to be on the rosd'. "And i-lumphreys J. on the ,fol- lowing page II!!! '1 lInd0"”"d the finding of the Justices to mean that a speed cannot be 'dInler0u! unless some element of actual danger is proved. Tllst. is wrong. The conception of dInl0l'0"N11'lV' ing is therefore seen to be at once broader and narrower than that of civil negligence but in both directions it appears to me to be more understandable than civil negligence from 1110 Mint 0' view of the lay jury. I cannot think of any expression which would more clearly explain to I Jury the conception of a probable or potential danger than the skin I ngus of s. sssa). The well- I:aowa”word 'da I' notori- ously lnsans likely or probsbll to cause ury. sad the loomed trial Judge essriy impressed on the jury that they must take into consideration all tbs circumstan- Importance to those matters. for ll would bsnsxvesodinsly difficult to urs. condition sad use street. road, highway or plaoe."' From the evidence it appears that on the afternoon of April 14th. 1951. Gerald Solomon of Georgetown. accompanied by his fiancee. Mary MacDonald. and one Chutes Gardiner left George- town for Charlottetown in it. 1945 Ford truck, commonly spoken of as a three-ton truck. After st.- tcnding to various items of busi- ness and having had a meal at a restaurant they left Charlottetown on return to Georgetown. It is said that the lights of the truck were turned on at the Hiilsbor-' ough Bridge. They followed the pavement around South-port and passed a further curve at the end of the Keppoch Road, from which point the line of road is almost straight to a point somewhat be- yond whero the collision hereafter referred to occurred. From Southport corner onward there were several breaks in the. pavement with the last and worst. being about 429 feet west of the scene of the accident. in passing over this last rough spot or bump the tail gate of the truck became loose. The driver stopped the truck to the-right of the centre the pavement and he and Charles Gardiner got out and went to the rear of the truck to replace the tail gate. When the truck stopped the lights were on and were left. on until Solomon returned from the rear of the truck to procure a hammer for the purpose of driv- ing the gate into place. when he turned them off. He then return- ed to the rear of the truck and having replaced the gate and when both men were on the ground tying it in place. a car driven by the accused suddenly ran into the truck from the rear, knocking Charles Gardiner to the right shoulder of the road and crushing Gerald Solomon to in- stant death. From the evidence of Whiston Smith as to calling the R.C.M.P. and their report of the time of re- ceiving the call. the accident prob- ably took place about 7:20 p.m.. A.S.'I'. No Crown witness admits hav- ing seen the actual collision. Mrs. Isabel Seller, who was driving in the car with the accused. was called but her evidence was of a very indefinite and unsatisfactory kind. She says the first thing she noticed wrong was the car coming to a stop by the applica- tion of brakes. She felt no im- pact; and did not see the parked truck until after she got. out of the car. from which she does not remember getting. It. is most dif- ficult to understand this unless the shock: from circumstances and events erased ail- records from her mind. She does say that it was not dark but it was dusk. Her evidence in all of the circumstan- ces renders little help in the case. Mrs. Bessie Duffy. whose home is near the scene and some dist- once south of the pavement. and who was proceeding to visit at the home of Whiston Smith. which is situated at the intersec- tion of the paved highway and a side road oalled the Kinlock Road. gave evidence. She says she was about half way down across their field towardsv-the road when she first saw the truck. She gave an estimate of the dist- ance between her and the truck as 75 yards. which would be an under-estimate lbsho were but half way down. She said she had no difficlllty in seeing the truck and did not notice that it had lights on. She passed along into Smith's and saw the men at the tail of the truck and as she knock- ed at Smith's back door she heard the screeching of brakes and she heard a crash. Whiston Smith did not hear the crash but came to the door immediately. Both hurried out. to the scene about loo feet away. Smith said it was turning dusk but he had no trouble seeing. Gordon Gay at a distance of also of a mile east of o - the truck said he could see it plainly and a lady in it. Both Mary MacDonald and Charles Gardiner said lights were not necessary; they would serve as a protection.- But as to their evidence. it must be remembered that they might well be confused because of excitement and shock. Oliver Hume. a disinterested wit- ness who seems to have passed the scene very shortly after the accident. says he could see the vehicles stopped after he rounded the turn by the end of the Kep- poch Road. Sheldon Smaiiwood whose barn is 276 yards north of the highway and whose lane is just east of the scene of the acci- dent says he saw the truck drive up and stop and he saw the men go to do something at the rear of the truck. He went on about. his work and on being told of an ac- cident by his little girl he again looked and saw the car and truck. The defence produced Raymond MacDonald who lives near by and who went to the scene of the ac- cident. quite some time after. at best just before the ambulance arrived. and he says it was so dark that he had to put on his car lights to turn his car in the yard. This evidence is not help- ful becausa in the time which elapsed from the time of the ac- cident the degree of darkness would have greatly increased. The accused says. "It was almost dsrlr. It was 35 minutes past sun- set”. Now it may well be that he too suffered shock from the event and in foot the evidence of Ray- mond Hscbonald discloses that he seemed "quite worked up". And it may be that the statement as to the degree of darkness was partially an inference drawn by him from Exhibit 1 which stated that the time of sunset was 0:46 pm. When Exhibit 2 was tendered by defense counsel. 1 expressed the vi w that, it was of little value ut admitted it with the s provsl of the Attorney-General. pm a study of the matter I now feel that it is quite worth- less insofar as any useful infer- ence-osa be drawn from the al- legsd time of sunset. The exact time of sunset on April itth was given as I146 p.m. (AST). But the certificate does not state whether the time quoted is of the nth meridian. (which is the centre of Atlantic standard time zone). or the meridian of Char- - cos of the cast, including the nut- ot the lottetow-a which is approximately three degrees west of the doth meridian with s time variation of approximately 13 minutes, thus leaving the time of sunset at Charlottetown st sppproxlmstely 6:58 AST. So that the time of the accident may have been only about 20 minutes after sunset in- stead of 35 minutes as mentioned by "the accused. With this ques- tion standing in doubt the certifi- cate renders no assistance and the There was. doubtless. some limitation of visibility due to the approaching of night .and most vehicles were being operated un- der lights as required by the Highway Traffic Act. but it must not be forgotten that Oliver Hume. who "paged the scene after bhe accident said he did not turn on his lights until he was near Pownal, a distance of several miles. and that Sheldon Small- wood said he saw the men get out of the truck and do some- thing at. its rear from a distance of 270-275 yards. There was. therefore. not such a degree of darkness as would pre- vent the truck from being seen from a reasonably safe distance if a proper speed and a proper lookout were being maintained. This. however. does not take into consideration the question as to the effect on vision which the lights of approaching cars might have, and although the law was settled by the Judicial Commit- tee of the Privy Council in Stew- ari. v. Hancock (1941) 1 W.W.R. 161 when Lord Roche at p. 165 affirmed the dictum of Macnag-h- ten. J. in Tidy v. Bateman (1934) 1 KB. 319 where the latter said: "It cannot. I think. be said that i I l t t siruction in the roadway. a care- ful driver of a motor vehicle is of negligence if he runs into it." likewise settles the law as laid 5 down by Ostler. J. who says: "With that passage (referring to the above quotation from Tidy v. "- Bateman) I respectfully agree. it 5 a each case must depend on its own facts..." Many authorities were quoted to me and l have also examined 3 others but the facts of so many are so widely different from this case as to be of -but little assist- ance. But the case in which the facts seem nearest the present. ode is the civil case of l-lordal V. Beers (i94li 2 D.L.l'l. 240. This was an action under the Fail!-1 Accidents Act and Prendergast C. J.M.. delivering the judgment of the Manitoba Court of Appeal- said at. p. 241: "The rule seems to be that in cases of this class, where the lack of visibility of whatever degree it may be, is practically unvarylng as in the ordinary course of nature and nothing intervenes to suddenly increase ii..a.drlver must so adjust. his speed wlththe dist- ance from which obiecls On the road can be seen. that he Will he f s 1 ”This is the effect of the decis- ions of this Court in Pronak v. Winnipeg. Selkirk & Lake Winni- pek R. Co.. (1926) 2 D.L.B. 725. 34 C.R.C. 261. 37 Man. R. 320 (rc- versed by (1929) 2 D.L.R. sl. s.c. R. 314. as c.a.c. 124. and affirmed by (1933). l D.L.R. 1. AC. 61-40 C.R.C. 102) and that of the British Columbia Aplieal Court in McDer- mid V. Bowen, (1938) 3 'D.L.R. 617. 53 B.C.R. oe. holdmz that the I ' it 1 isibiiity'. - M311: Jghnztoln v. Giffen (1921). 52 D.L.R. ass at p. err. i8 A.L.R- 312- tbe Court of Alrpeal 0' Albert” also holds that a driver has "9 right to assume that the road is clcar.-but under all circumstances ...must be vigilant and must sn- ticlpate and expect the of ot.hcrs'. and the M3993 of Saskatchewan in Stanley vs. Noi'l Fruit. Co.. (1990) 3 DL'R1' 105 34 s.L.n. 137 (rcvrl. (ml). l1L'..a. soc. S.C.R- WM "'3" A driver must take IPWP"! :'”;;l;; tions to slllfd 883m” ".3. ted might reasonably 139 E""'”pah to grim h-oh;11i,imea to time as e ed. 9 W Y- . prflclf thdmiiresent. case. this l"8h' way from Winnipeg is much trav- elled by trucks as by 031" hiclcs and I would say 0"" - thousands of trucks that we. see on our streets and roads that it is common knowledge WM in” mi of all colors and all shades." In this case there W33 ",0.l,1't"' extpectfd change in the vislbl 1 .V- Any oncoming traffic there may have been was seen by the accus- ed and its effects on his vision were known to him and. there- fore. scl-verl to increase his obliga- tion to take greater care. A, in the rate of speed of the. accused's car. I10 CWW" w"'"3ff was in a position to live any gm dence except Mrs. Seller w I evidence I TNWG P"'Vi0"5i-V d'5' cussed and she says that me ""3 was not. fast. Wellington Mac- Neiii, n defence witness. says he trailed the accused from Char; lottetown at a distance o &i7DF0h imateiy 4'29 feet and he so!!!” 33 travelled at a rate from 20 p m.-p,h, But. because of his ev- danca on other questions upon which his chances for eXvl'O8G"1E opinion were equally ”"d' X 6'” not give much weight to his op n- b D C ioyllhore is no doubt. that there was a bad bump in the road at Duffy's gate at a distance given as no feet from the scene ofutihe accident and traffic erossinf I bump was obliged to slow down and the accused. corroborated by Wellington MacNcill. says he dill slow down. But the i'llI95.”0" 9 how slow is to ma llllCE'l'i5llfl.edF:; while the bump was describ very bad, it did not of certainty cross the entire width of the pavement for J. A. Rest-domth: Highway Engineer. called him 6 defence said there miiiht Vh been a foot it so left on elc side. and his plan (Exhibit 1) thl t. ”'-i-iii. t.l:onoudoes not exclude I possibility that. although the bum? was bad in part. there was s por- tion of the road sovmawtlst better stantial evidence as disclosed by the results should be pointed out. tragic death of Gerald Solomon has no direct bearing in relation to the charge upon accused is now being tried. Such. however. would not be the case the Grand Jury has already dis- posed of that question. Robertson. C. J. 0. said in the case of Rex v. Pursley. 72 C.C.C. 318 at p. 320: we are relevant only insofar as they may afford the driving was or was not dang- e-rou.s". the case of Burns vs. The King. 88 C.C.C. 51 at pp. 63-64: causing of death itself, though not idirectly in issue. is relevant in so ar dangerous." that the accused's backward motion after the pact because. accord-in-g to police photo, Exhibit A. the marks of than-:l'tlll;e it)l1rflSd" onhthe pavement - - cou e race ri tie the rear Who" me” '3 E" unnghted "b wheels of the ca.r.gThat the truck di-d move forward is also estab- bound to see it in time to avoid llshed bY the 9Vid?nC9 0' M31? in and must therefore be gumy MacDonald who said she felt it move forward a distance of 4 to 5 But by the same aftirma-lion be Y3'dl5- Charles C'”di"el' WY5 he poral Warner says the measured distance between the rear of the brakes were firmly applied for a distance of at least 50 feet. apart. from the light of experience plied. do not burn" immediately. dence of the accused himself: did you know what it was when you first noticed it? know it was stopped. a moving object or a stationary object? time when you did not know whether this thing was moving? 'A. and reduce my speed. As I got closer to this object. I noticed it was a truck on the highway, a 3-ton truck. , two men at the rear of the truck. Did you notice it then at . time? A. It all happened so quick- ject first. ized there were two men there? A. I think there was. appreciate that it was a parked n g I, k. wh ited -3 children who might be expected speed must be c0"5lS""i. "fl" 3:, p,,,fe"d .y,ff;kl.f;f.f.e.”:.d yo; to be travelling lion! that high- control of the car within 19 way at that hour on that Sat- do? firmly as I could." d , This judgment does not ex- ...T.:: ..t:":::::. ::'i.:';r. 3;. pm my on or an -- plicauon by the Mcused; firm idence nor of the questions of law when he saw the object and with- out knowing whether it was mov- ing or not he applied hisobrakes to reduce speed. and the second whal he definitely appreciated a parked truck. brakes as fimliy The distance therefore which the car travelled from the applica- tion of brakes to the point of im- pact was far in excess of 50 feet. But the car did not come to rest alone, but by reason of its mo- mentum not only i wheels skid sideways leaving a "tire burn" on the pavement. bul- it drove hho truck forward given distance eight inches. and that on a grade at least one wheel resting on the and to which a car could be lnsn- l a car had wedged itself and: the tail of the truck and had the force of impact in some massurv reduced by striking Charles Gardiner and throwing him to the shoulder of the road and by squeezilx the fully clothed body of Gerald Solomon in such s manner as to rupture his luns. his liver and right kidney, to dislocste his spine and to completely sever his spinal cord. and further to bend oeuvl-ed and pus over in safety at a higher rate of speed.snd that the accused's estimate of hisspeed in Purim over the bump could have been well below the actual rate. And lf'suoh were the case the results of the experimental evidence given by Borden Cham. pion and Raymond MacDonald would not be helpful. but in any case the accused states that he did increase speed after the bump and to an estimated rate of 35 m. degree of darkness can only be . in both 9; 1 d , ' . measured by the viva. voce evi- P-ll; But again that is only in lately ih. right; 3.5," i,,f.,”9f:, dence of the witnesses. 95tlm3le- ' doors, tending to jam the doors. to bend the radiator back over the engine. to damage the front cgwl. to knock the air cleaner from the carburetor. to damage the engine bonnet. by rolling it back against the left side of the windshield and damage the wind- shield, and lastly to make an in- dentatioh in the fire wall. this lat- ter being made by a direct blow on the end of a support for the box or rack of the truck. Mr. Champion estimated the weight of the accused's car and Mcllptmts at 3800 pounds but he declined to estimate t-he weight of'th-e irilck except to any that he doubted if it would weigh 3000 pounds. Unfortunately. the act- ual weight of the truck was not given i evidence but I would be surprise if, with its dual wheels. solid board box and tail gate. and Ca'Tl'.YlnB as it did Mary MacDon- aid. a girl of about ordinary weight was not at least in the vicinity of 5000 pounds. However, even if the truck were of a loser weight. the car must still have had a considerable amount of speed or momentum to move the truck forward as it did in all the circumstances above mention- ed. And since the brakes must already have been applied for a distance well in excess of 50 feet. the accused's car, at the time of the application, of brakes. must have been travelling at a much higher rate of speed than estim- ated by the witnesses. Defence counsel also urged that the damage from the impact lacked evidence of the scatter- ing of objects usually found after collisions involving a high rate of speed. But I think the cushion- Before dealing with the circum- of the collision. it that the which the n a. charge ofmanslaughtel; but 'The consequences of the driving n the manner charged as danger- evidence that And Campbell. C.J. fol- owlnrg the above decision. said in "The as it may afford evidence hat the driving was or was not I think it has been established car madee'no im- estlmony substantiated by the aw it move iorward. And Cor- rucl: and the front of the accus- d's car was '1 feet. 8 inches. The tire burns" on the pavement ex- mighl. be paraphrased into 3 g 3., g 1 th 1 t 1 d Statement that neillgence is 3 tame? bad? .3 dmimce "I 50 teen rldferfed ctoowouled ngglife torearey question of fact. not of law: that This is positive evidence that the duce that scauning effect. Th” there was 9. crash there can be no doubt because Mrs. Duffy heard it from Whiston Smith's back door and the defence witness Wel- lington MacNeill. heard it when he had passed over the bad bump which was no feet from the point of impact. Counsel for the -accused con- tended that if there had been no fatality in this case,no prosecu- tion would have been entered. That may well be true. but it does not assist in the solving of this case. for while every fatal accident on our highways is not the result of a crime, every crime committed on our highways does not result in a fatality. and many cases of dangerous driving do not reach the courts. Counsel also contended that the sole cause of the collision was the negligence of the driver of the truck in leaving it on the And hat brakes. even when firmly ap- produce a "tire there is the oliowlng extract from the evi- "Q. When you first noticed it. A. I cannot ay I did. I just noticed an ob- act on the highway. I did not Q. You did not know whether A. That. is right. Q. What did you do first at that I started to apply my brakes And what was one next? A. , , - - highway without lights as re- abie to so control his car wlthm 3:3)-pegf” A,V9i1'dtc.93ast:i3ppi;d.V5- quhed by the -Highway -I-mmc that distance as to avoid them. - - Act But if it we" .5 dnk u Q" You know now the" were contended tthe accused too was guilty of am infraction of the Highway Traffic Act in meeting traffic at a speed in exceu of 30 mph. But the test as to whether the driving was or was not dangerous is not to be de- termined on the basis of its dan- ger to the occupants of the truck. alone. but to all persons. including pedestrians and even that would think I noticed the ob- I noticed the truck. nd as l.goi. closer to it- Q. There was a stage you real- Q. You say first you did not Al I applied my brakes .5 urdey evening. involved for I have given the case-my best consideration and t I -have viewed the evidence in the light of the burden of proof which rests upon the prosecution. I have considered the form and wording of Section 3(8) of the Criminal Code and various legal authorities dealing with it. and the rule of law relating to cir- cumstantial evidence lrnd lastly my duty to acquit in the ease of reasonable doubt. and I sum forced to conclude that the accused is guilty of the offence as charged. and I so find him guilty. GOLKIRK. Enslsnd -(OP)- Town rat cather for 40 years, so- year-old Bert Barnaby retired be- cause "the form filling with the job these days is too much he applied his as he could. y the operation of the brakes did its rear the of seven feet. i nearing two per cent. to ICBVG -race Nmf Strange But True as us. ssuarum To keep Island folk from . ing sway back in Colonial day: fellow named Higgins was up - - ed "Public Pass Officer." His was to see that Captain of v did not carry away person; out a license or pass. ' P. T. Barnum, the f showman, did not coin the pbr "there is a sucker born every -- ute." This common saying can found in early writings. and B num was not born until 1810. P. T. B. did say was this: general public like to be h bugged." Horace Greeley fired similar arrow when he ass that "the public is one man ass." In pioneer days in this pl-ovum coppers were used to close . eyes of the dead. The custom orig , , mated in England and was broug here by our forefathers. The coil referred to here was the largl English copper coin called a penny. . What appears to be horns on the head of a giraffe are nothing but soft tufts of skin and fat. Not all surnames begin with I capital. Take for instance. the fam- ily names fiiennes. ffalliot. and-, ffulkes. Two small f'.s are the prop- i or way to begin these words. . s s s i ' - In 1716 the Lady of the Hay-. I stack. as she was called. was dis-5 - covered at Bouton. England, and; V placed in a mental institution by Hannah Moore, who lived near the farm where the beautiful but de.- mented giri had made her homaii:3'Ei for four years in a hsystack. Andi" ' strange as it may seem. the girl fili- died in the asylum without heril. identity ever having been learned. All animals except, man. swim naturally when forced into water.- but ordinary rabbits and hares, will drown after being in tha' water for any length of time. W'hy'I' Because their fur and skin are not impervious to water. The ancient Romans had noses that resembled the beak of an eag. le -- hence the name "Holna.n' Nose." Julius Caesar had such 1 smaller. O 0 Don't. believe the slogan "A ' clean tooth never decays." It. does: decay whether we clean it, or not - that 15.11 We do not eat the: right kinds of food. The teeth of our forefathers usually remained i. sound though worn down to thy - very gum line. In our own provinoe,. we occasionally meet persons. well- advanced in years who have nova. used a. toothbrush; yet they hnvg i pretty sound teeth. . Ever hear of the world-found: treatment for reducing fat cstadi "Sic" which sold for 520.00 a. bot. " tie? When analyzed by government Y chemists it was found to contain, one pound of powdered alum, & - cohoi 50 per cent - ten ounces mingled with enough wateir make a quart. The actual worth these fillers isso centsi No won Horace Greeley acclaimed "rifl- that goes 4 lay and off th hard paved sur- for me." OUT OUR WAY k No.1 0 1-WE,'l'i?lED' rr DUEIN .'.'l'H'..WA2.' we-aoualrr Agaeer-'1 .AN' NONE or TH sooner :HAD .TH'. NERVE 119 mu. il'r--weltllzeo rr DONE- AN' NEARLY atrrc :tsAcl-i o-ruez 5KlNNiNi- so-l Ti-iiN6.'. o. excuse ME l-120M! an WEL L public is one immense ass." . . . Thackeray crossed the ocean .- ths purpose of eating some Misssq i S chusetts oysters. when he them he asked publisher ls: Holds. the how of putting thqji down. "This way," said FielQ promptly. and proceeded to db patch his first oyster. Thackel-Q quickly followed suit. letter from v England Praises V Emerald Oil-Saki C ' "I am now in England and camsd get Emerald Oil here. If you havoul agent. let me know by return his-ab dress, as this is very urgent. "I ilnd Emerald Oil the best: r I have ever used for all kinds of Skill Irritation." Mr. J. Si.. Bedfordsbln. Elllilllld. a you or any relative or friend suffering from the itching irritation many common forms of skin discs get a bottle of Moone'a Emerald ou'll make no mistake. There”: ing finer or ulcker-acting. Stain) Greaseiess- conomieal. fl small tie lasts a long time. On sale wh , an 'i nouns patio co. saulmts pnanlvlacx REDDIN BROS.