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RAILWAYS - Liability - Civil actions - Crossings - Safety at road and rail crossings

Wednesday, February 28, 2018 @ 9:32 AM  

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Appeal by the defendant railway company from a finding that the respondent was not contributorily negligent. The respondent was involved in a motor vehicle accident at a railway crossing with a train owned and operated by the appellant. The respondent pleaded guilty to a charge of driving without due care and attention. The respondent, who was seriously injured in the accident, commenced a claim in negligence. The trial judge found that neither the signal lights nor the bells south of the crossing functioned properly at the time of the collision. While he found that the train's crew members had nothing to do with the signal lights failing to engage and there was no evidence that the signal lights were inadequately or improperly maintained, he also found that the train's conductor was negligent because he either saw that the signal lights were not working and failed to tell the engineer to break in a timely way, or failed to notice that the lights were inoperative because he did not maintain his duty to keep a proper lookout. The judge found that the respondent was not contributorily negligent as he was not speeding or otherwise driving erratically when he approached the crossing, and the appellant had not established that he was not wearing a seatbelt. The appellant appealed the decision, arguing that the judge misapprehended the evidence of a key eyewitness and failed to find that the respondent's duty of care involved more than wearing a seatbelt and not driving erratically.

HELD: Appeal dismissed. The judge did not misapprehend the evidence, but made findings based on all of the evidence. The judge did not err in finding that the respondent took reasonable care given that he was not speeding, the train suddenly appeared and there were no bells or flashing lights. It was implicit in the judge’s reasons that she found there was nothing the respondent could have done to avoid or minimize the effects of the accident.

Chand v. Martin (appeal by Southern Railway of British Columbia Ltd.), [2018] B.C.J. No. 189, British Columbia Court of Appeal, M.V. Newbury, L. Fenlon and G. Dickson JJ.A., January 30, 2018. Digest No. TLD-February262018007