Cite as: J.P. MacInnes Trucking Ltd. v. Canadian National Railway Company, 1992 NSCA 82 IN THE SUPREME COURT APPEJI.L DIVISION Clarke, C.J.N.S., Matthews and Chipman, JJ.A. BETWEEN: J.P. MACINNES TRUCKING Lil1ITED and AUBREY TIMMONS Appellants - and - CANADIAN NATIONAL RAILWAY COMPANY, VIA RAIL CANADA INC., and RUSSELL CLARKSON Respondents THE COURT: Appeal dismissed with costs per oral reasons for judgment of Matthews, Clarke, C.J.N.S. and Chipman, J.A. concurring S.C.A. No. 02515 OF NOVA SCOTIA David A. Graves Christopher Robinson for the appellants Myer Rabin for Canadian National Railway and Russell Clarkson Robert M. Purdy for Via Rail Canada Inc. Appeal Heard: April 3, 1992 Judgment Delivered: April 3, 1992
The reasons ::or orally by: MATTHEWS, J.A.: This appeal arises out of a collision between a dayliner train and a large truck at the Auld's railway crossing at 11:36 a.m. that place the main line! railway tracks Sydney to Truro and highway from the Trans Canada highway That highway is more or less parallel with the tracks for some considerable distance to west and then turns to about 90 degrees. Both 1:he train and the truck prior to that turn were proceeding in a westerly direction. After a three day trial, Mr. Justice Kelly dismissed against the respondents and claims against the appellants. In essence this appeal of fact and inferences from trial judge. The crossing is controlled by railway crossing warning signals erected on both judgment were delivered Cove on May 30, 1986. At leading from number 344 which runs to Mulgrave intersect. proceeding from east intersect the tracks at on April 18, 1991, the appellants' claims allowed the respondents' concerns findings those findings by the sides of the track.
- 2 -They were properly installed in accord with the relevant regulations. The appellants' judge erred in failing to find that the signals were not operating at the time with conflicting testimony in judge said: "The burden of proving major area of negligence is on the Plaintiff and I do not find that discharged its obli~ration to that I can make a finding lights in particular were the time in question." . While it would have the parties had the trial judge this issue, he is not required to do so. The trial judge then evidence to determine tht:! issues day of the accident was clear the operator of the truck, did not see the train as he travelled along the highway parallel to the tracks, the operator of behind him, Mr. Hadley, did. · location of the train further have been easier for Hadley Timmons. However, Timmons did not look. of the train were illuminated. train, Mr. Clarkson, testified to the crossing, the required whistle signal sequence allege that the trial \ of the accident. Faced this regard the trial its case and each the Plaintiff has such an extent that the signal not working at been more helpful to been able to resolve turned to the other of negligence. The and fine. Although the appellant Timmons, a truck close Because of the then to the east, it would to see the train than The headlights The engineer of the that upon apptoach
·- 3 was commenced as the train located 1,522 feet east of the crossing. followed by Mr. Clarkson was short whistle, two "snap" warning a long whistle up to thE~ crossing. "You couldn't miss it". The trial the whistle was blown in the regulations . . . " . Various witnesses heard the train's whistle blow but Timmons did not hear the whistle until.the instance of the collision. As Timmons a mound of earth with S•:::>me with his view of the tracks in an easterly direction. However, Timmons did not stop crossing where he could see direction. He admitted in he did not look for a train at knew the area well; he was hauling gravel along that road on a daily basis, several Although the configuration of a sharp turn to his right before a mound of earth were problems he was well aware of them. expect to meet a train there at any time. that he should approach the Simply put, he did not look, passed the whistle post The sequence two long whistles, one whistles and then Hadley testified judge found that manner required by the including Hadley prior to collision, neared the crossing trees upon it interfered his vehicle near the up the tracks in that cross-examination that any time. Timmons times a working day. the road, necessitating the crossing, and confronting Timmons, He knew that he could He admitted crossing with caution. he did not listen for
- 4 the whistle and he certainly his vehicle prior to the crossing. This is but a brief overview of the evidence which is contained in three volumes. the transcript, the relevant video, studied the factums from counsel. In dismissing the counter-claim the trial judge negligence which caused the Mr. Timmons. In order to reverse must not merely entertain decision is right, we must We have concluded that there was which would permit this court to reverse or set aside his decision. We dismiss the appeal with costs. Concurred in: Clarke, Chipman, J.A. ---=------------------- made no effort to stop We have studied exhibits, watched the and heard oral argument claim and allowing the found that the only collision was that of the trial judge, we doubts as to whether his be convinced it is wrong. no error on his part •
reco.rding I 0 31 serv•ces 31 limited PROTHONOTARY FILE S.H. No. 61478 2 3 IN THE SUPREME COURT OF NOVA SCOTIA (Trial Division) ' 1 BETWEEN I J.P. MaciNNES TRUCKING I.TMJTED and AUBREY TIMMON~i ' Plaintiffs 10 - and -11 CAHAP!AN NATioNAL RA.ILwAx coMPANX I m 12 RAJL CANADA INC. and RUSSELL CLARKSON 13 Defendants 14 IS Oral decision of the Hor..oura.ble Mr. Justice F. B. William Kelly given in Halifax 1 Nova Scotia, on Thursday, the 18th 1 16 day of April, 1991. 17 II APPEARANCES: '' Christopher Robinsc·n, Esq. For the Plaintiffs 20 Myer Rabin, Esq. For the Defendants Canadian National 21 Railway company and Russell Clarkson 22 Robert Purdy, Esq. ) For the Defendant 23 ) Via Rail Canada Inc. 24 25 Certified Verbatim Reporters Halifax, Novo Scotia
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