Gavin v. Kettle Valley Railway Co.

Gavin v. Kettle Valley Railway Co.

The Supreme Court of Canada held that the Court of Appeal was justified in ordering a new trial because the jury should have been required to find whether the driver, after becoming or ought to have become aware of the danger, could by reasonable care have avoided the accident; however the Court reversed the Court of Appeal's costs order because s.55 of the R.S.B.C. 1911 required that where a new trial is granted on a ground of objection not taken at trial the costs of the appeal are payable by the appellant, so the costs order against the plaintiff was erroneous and must be reversed (appeal allowed in part).

Citation
(1919) 58 SCR 501
Parties
Plaintiff/appellant: Duncan Gavin; Defendant/respondent: The Kettle Valley Railway Co.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
19 May 1919
Procedural Posture
Torts Negligence (motor Vehicle V. Train) / Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia (judgment on Appeal)
Outcome
Appeal allowed in part: order of Court of Appeal upholding a new trial affirmed on the merits; order as to costs by the Court of Appeal reversed and costs awarded to the appellant for the Court of Appeal appeal and to the appellant for this Court's appeal.
Legal Topics
Contributory Negligence, Jury Directions, Costs, Statutory Interpretation, Duty of Care at Railway Crossings
Source Language
English
Torts Negligence Civil Procedure Evidence Contributory Negligence Jury Directions Costs Statutory Interpretation +1 more

Case Brief

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Parties

Duncan Gavin

Plaintiff/appellant

The Kettle Valley Railway Co.

Defendant/respondent

Procedural Posture

Torts Negligence (motor Vehicle V. Train) / Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia (judgment on Appeal)

Legal Issues

  1. 1 Whether the trial judge failed to properly direct the jury by not submitting a question as to whether the driver, after becoming or ought to have become aware of the danger, could by reasonable care have avoided the accident
  2. 2 Whether the Court of Appeal properly ordered a new trial for that failure
  3. 3 Whether the Court of Appeal erred in ordering costs against the appellant contrary to s.55 of the Supreme Court Act (R.S.B.C. 1911, c.58)

Ratio Decidendi

The Supreme Court of Canada held that the Court of Appeal was justified in ordering a new trial because the jury should have been required to find whether the driver, after becoming or ought to have become aware of the danger, could by reasonable care have avoided the accident; however the Court reversed the Court of Appeal's costs order because s.55 of the R.S.B.C. 1911 required that where a new trial is granted on a ground of objection not taken at trial the costs of the appeal are payable by the appellant, so the costs order against the plaintiff was erroneous and must be reversed (appeal allowed in part).

Court Disposition

Appeal allowed in part: order of Court of Appeal upholding a new trial affirmed on the merits; order as to costs by the Court of Appeal reversed and costs awarded to the appellant for the Court of Appeal appeal and to the appellant for this Court's appeal.

Orders

  • New trial ordered (order of Court of Appeal as to merits affirmed)
  • Order of the Court of Appeal as to costs reversed