I Cite as: Naugler v. Llewellyn, 1990 NSCA 96 S.C.A. No. 02346 t IN THE SUPREME COURT OF NOVA SCOTIA I APPEAL DIVISION Jones, Hart and Freeman, JJ.A. I BETWEEN: I TERRY LEE NAUGLER Edmund R. Saunders for the appellant Appellant I Clarence A. Beckett, Q.C. for the respondent - and -I Appeal Heard: December 6, 1990 IVAN LLEWELLYN I Judgment Delivered: Defendant December 6, 1990 I "I THE COURT: Appeal dismissed with costs per oral reasons for judgment of Jones, J.A. ~ I Hart and Freeman, JJ.A. concurring I I I I L I E
I t The reasons for orally by: I JONES , J . A. : I This is an appeal Justice Nunn dismissing the I damages for injuries received accident. I The appellant was I motor vehicle as he crossed Cross, Lunenburg County, on I weather was clear and there for some 2,000 feet to the point of impact. I limit was 90 kilometers per ~ 16 years of age and was crossing the road with a friend when struck. The appellant ! looked both ways before crossing and did not traffic. In a statement following I an adjuster the appellant stated that he I The respondent testified that approximately 50 m.p.h. and I on the opposite side of the 600 feet. When his vehicle I the boys "shot across the found that there was no negligence I the respondent which caused t accident. Under s. 248 of I I judgment were delivered from a decision of Mr. appellant's action for in a motor vehicle struck by the respondent's highway 103 near Hebb' s October 27, 1987. The was an unobstructed view The speed hour. The appellant was school claimed that he see any the accident to was running. he was travelling at observed the two boys road at a distance of was 50 or 100 feet away road". The trial judge on the part of or contributed to the the Motor Vehicle Act the
- 2 onus of proof was on the respondent to injuries did not arise entirely his negligence. The sole issue on the appeal is whether the respondent had rebutted the argued that the respondent to sound his horn. The trial stated: "In this case, I am defendant has rebutted I accept his evidence plaintiff and Whynot on of the road and that he them. I also accept ran across the street path of the defendant's vehicle. It is unreasonable to plaintiff and Whynot had merely been walking across the street after directions and saw no when, in a straight line of clear visibility of considerable distance, vehicle was there as a pulp truck fallowing quite closely behind. Without considering the plaintiff referred to earlier, it is apparent that the plaintiff and for oncoming traffic in defendant was travelling, paying no attention, seen and/or heard the and the plaintiff ran out across the highway. The only other conclusion the plaintiff did not vehicle, which he denies, he could safely run across either case, fault would defendant. I find no negligence defendant and that he has burden referred to negligence resulting injuries is attributable to him. action of running across I show that the or solely through J I presumption. Counsel I was negligent in failing judge in his decision I satisfied that the I the presumption. that he saw the the opposite side continued to watch J that the plaintiff directly into the J accept that the checking in both traffic approaching the defendant's well as, at least, statement of the Whynot did not check the direction the or perhaps were I as they should have approaching vehicles, I possible is that see the defendant's and felt that the road. In not rest upon the J on the part of the met the statutory earlier. The sole J in the plaintiff's His careless the road, directly J I I
I . - 3 ~ t into the path of the defendant's vehicle, was the sole cause of the accident and subsequent injuries. The defendant, in I these circumstances could not have done anything to avoid striking the plaintiff." I He accepted the evidence that the respondent did not have time to sound his horn. We find no error I on the part of the learned trial judge in applying I s. 248 of the Motor Vehicle Act or in assessing the evidence. The appeal is dismissed with costs. I I I Concurred in: Hart, J .A. / ~ Freeman, J.A. ~ /~ I I I I I I l [ [
1987 IN THE SUPREME COURT OF TRIAL DIVISION BETWEEN: TERRY LEE NAUGLER, - and - IVf\N LLEWELLYN, HEARD: At Bridgewater, Honourable Mr. May 14th, 1990. DECISION: June 8, 1990 COUNSEL: Wayne K. Allen, Q.C., for the Plaintiff Clarence A. Beckett, Q.C., for the Defendant i . J S.BW. No. 1341 NOVA SCOTIA I I I I PLAINTIFF J ] l DEFENDANT l Nova Scotia, before the Justice D. Merlin Nunn, on ] ] J J I I
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.