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The Ontario Court of Appeal upheld a trial judge decision where the railway company was found 75 percent liable. The Court of Appeal commented on the 25 percent contributory negligence on the Plaintiff as attributed by the trial judge as excessive. The trial judge had based this number on the lack of seat belts.
With respect to the railway companies liability it rested primarily on a failure to do routine inspections. Despite, the fact that the trial judge agreed that it did follow industry regulations.
The Ontario Reports has summarized the case as follows:
Zsoldos v. Canadian Pacific Railway Co. 93 O.R. (3d) 321, Court of Appeal for Ontario
The plaintiff was seriously injured in 1994 when his motorcycle struck a train at a rural railway crossing at night. There was an advance warning sign 290 feet before the crossing, which alerted motorists to the presence of the crossing and advised them to reduce their speed. There was no active warning system such as lights, bells or gates to warn a motorist that a train was in the crossing, and there was no artificial illumination of the crossing by street lights. The road approached the tracks at an acute angle of 45 degrees, and sightlines could be obscured by crops. The plaintiff did not reduce his speed. His blood alcohol content at the time of the collision was just below the legal limit. The plaintiff brought an action against the railway company for damages for negligence. The trial judge noted that the applicable government regulations did not mandate any level of warning beyond the passive system in place at the crossing. She concluded, however, that given the amount of discretion the defendant had in determining what safety measures should be established at level crossings, mere compliance with the regulatory framework did not necessarily relieve the defendant of liability. She found that the plaintiff could not have stopped before the crossing, even had he begun to reduce his speed at the advance warning sign. She found that the defendant was negligent in failing to carry out any inspections of the crossing at night and in making no attempt to determine whether the passive system was sufficient to protect motorists using the crossing at night. She further found that had the defendant conducted a nighttime inspection, it would have concluded that additional protection was necessary, the technology for which clearly existed and the cost of which would not be an impediment. She found the defendant 75 per cent negligent. Although she found that the accident would have occurred even if the plaintiff were not impaired, she concluded that his impairment and the fact that he was driving too quickly given the dark conditions both contributed to the accident. She found the plaintiff 25 per cent contributorily negligent. The defendant appealed.
Held, the appeal should be dismissed.
It was open to the trial judge to find that the defendant''s failure to carry out nighttime inspections of the crossing was negligent. While the defendant did not fall below industry standards, even a common practice may be negligent if it is fraught with obvious risk. The failure to carry out nighttime inspections was fraught with obvious risk. It was also open to the trial judge to find that the defendant''s failure to take additional measures constituted negligence. She was not required to deal with each proposed measure individually and consider the feasibility, including cost, of each measure. It was sufficient that she found that measures were available in 1994 that a reasonable railway operator could have employed to meet the standard of care.
The trial judge did not fail to properly address the issue of causation. She found that with additional protection, the plaintiff would have received sufficient warning of the presence of the train in the crossing, thereby allowing him to avoid the collision. There was evidence to support that finding.
The trial judge erred in fixing the amount of contributory negligence on the basis of an analogy to seatbelt cases. She did not identify any precautionary measures that the plaintiff should have taken that would have reduced the severity of his injuries. The only conduct by the plaintiff that contributed to the accident was excessive speed. In those circumstances, the 25 per cent assessment of responsibility to the plaintiff may have been somewhat excessive, but there was no cross-appeal by the plaintiff.
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