C.A. No. 101082
NOVA SCOTIA COURT OF APPEAL
Cite as: Sharpe v. Rhyno, 1994 NSCA 177
Hallett, Jones and Freeman, JJ.A.
BETWEEN:
ELDEN CHESTER SHARPE and ) Robert M. Purdy
CINDY MARIE SHARPE ) for the Appellant
)
Appellants )
)
- and - )
) J. Gregory MacDonald
) for the Respondent
SHEILA JANE RHYNO )
)
Respondent ) Appeal Heard:
) October 13, 1994
)
)
) Judgment Delivered:
) October 13, 1994
)
)
)
)
)
)
)
)
THE COURT: Appeal dismissed per oral reasons for judgment of Hallett, J.A.; Jones and Freeman, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
HALLETT, J.A.
This is an appeal from a decision of MacDonnell J. in a pedestrian/motor vehicle accident. The learned trial judge found both the pedestrian and the driver negligent and apportioned fault 55% that of the pedestrian and 45% that of the driver. The driver has appealed his findings on the following grounds:
i) Did the Learned Trial Judge err in allocating any fault against the Appellant, Cindy Marie Sharpe?
ii) Did the Learned Trial Judge err in attributing fault to the Appellant, for taking no action when she saw a group of adults standing on the sidewalk beside the road on which he was travelling?
iii) Was the Learned Trial Judge's finding, that the Appellant had ample opportunity to take evasive action to avoid the collision, contrary to and not based upon the evidence adduced at trial?
iv) Did the Learned Trial Judge err in determining that the question of whether the Respondent fell on the roadway, before being struck, was immaterial to the question of the Appellant's negligence?
v) Was the Learned Trial Judge's finding, that the Appellant was not keeping a proper lookout and did not exercise reasonable care, contrary to, and not based upon the evidence adduced at trial?
vi) Were the inferences drawn by the Learned Trial Judge contrary to and not in conformity with the weight and preponderance of the evidence?
After reviewing conflicting evidence from a number of witnesses the learned trial judge concluded:
" The Plaintiff, contrary to the provisions of Section 125(3) crossed the Drummond Road at a point other than a marked crosswalk, and failed to yield the right of way to the approaching vehicle operated by the Defendant, Cindy Sharpe. Whether she misjudged the speed at which the Sharpe vehicle was travelling, or failed to see it approaching, although plainly visible, or for what ever reason, the Plaintiff was negligent.
I find that the Defendant, Cindy Sharpe, has met the onus set out in Section 248(1)(b) of the Motor Vehicle Act, in that the injury to the Plaintiff did not entirely or solely arise through her negligence or improper conduct.
I must now decide if the conduct of the Defendant, Cindy Sharpe, at the time or prior to the collision was also negligent and thus a contributing cause of the accident.
I find that the Defendant, Cindy Sharpe, although aware of the fact that it was quite common for pedestrians to cross Drummond Road in the area of the accident despite the lack of a marked crosswalk at that section, took no action, once she observed the group of persons on the sidewalk, and noted the Plaintiff start across the highway to avoid an accident. The Defendant, Cindy Sharpe, had a clear view for a considerable distance of the Plaintiff and other persons standing on the sidewalk adjacent to Drummond Road. Once the Plaintiff started to cross Drummond Road she had ample opportunity to take evasive action by driving to her left, and thus avoiding the Plaintiff. Her evidence was that there were no approaching vehicles, or other traffic or parked vehicles in the area, and the street being 27 feet wide at that point she could have easily avoided the Plaintiff, unless her speed was considerably higher than she testified, or she was paying no attention to what was happening at the time.
As to whether the Plaintiff fell before or after being hit by the Defendant's vehicle, it is immaterial to the question of the Defendant, Cindy Sharpe's, negligence.
Under all the circumstances, I find that the Defendant, Cindy Sharpe, was not keeping a proper look-out, and did not exercise reasonable care in the operation of the vehicle owned by the Defendant, Elden Chester Sharpe, at or just prior to the collision with the Plaintiff.
Applying the Contributing Negligence Act to the factual situation as presented by the evidence at trial, I find that the fault for the collision should be apportioned 55 percent to the Plaintiff, and 45 percent to the Defendants."
We have reviewed the evidence and have considered the very able argument of counsel for the appellant. We are of the opinion that the trial judge was not wrong in finding the appellant did not keep a proper look-out. Therefore, the trial judge did not err in allocating fault to the driver.
The second issue raised by the appellant is that the trial judge erred in the apportionment of fault. In Sparks v Thompson, [1974] 6 N.S.R. (2d) 481 this Court had varied an apportionment of fault by a trial judge. The case went to the Supreme Court of Canada. In allowing the appeal and restoring the apportionment of fault as determined by the trial judge Ritchie J., writing for the Court, stated at p. 488:
" With all respect it appears to me that in varying the apportionment of fault awarded by the learned trial judge, the members of the Appeal Division failed to give due weight to the series of cases in the English courts and in this Court which subscribed to the proposition stated by Lord Wright in the House of Lords in The "Umtali" (1939), 160 T.L.R. 114, where he said:
I ought to add that it would require a very strong and exceptional case to induce an Appellate Court to vary the apportionment of the different degrees of blame which the judge has made when the Appellate Court accepts the findings of the judge. I doubt that there ever could be a case where the Appellate Court would take that course, but certainly this is not such a case."
Having reviewed and considered the evidence we see no reason to vary the apportionment of fault by the trial judge. The appeal is dismissed with costs in the amount of $1,500.00 plus disbursements.
Hallett, J.A.
Concurred in:
Jones, J.A.
Freeman, J.A.
C.A. No.101082
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
ELDEN CHESTER SHARPE and
CINDY MARIE SHARPE )
)
Appellants )
- and - ) REASONS FOR
) JUDGMENT BY:
SHEILA JANE RHYNO )
) HALLETT, J.A.
) (orally)
Respondent )
)
)
)
)
)
)