Eid Estate v. Dumas, 1 NBR (2d) 445

JudgeCartwright, C.J.C., Martland, Ritchie, Hall and Pigeon, JJ.
CourtSupreme Court of Canada
Case DateMay 08, 1968
JurisdictionCanada (Federal)
Citations1 NBR (2d) 445;[1969] SCR 668;1969 CanLII 88 (SCC);5 DLR (3d) 561;(1969), 1 N.B.R.(2d) 445 (SCC)

Eid Estate v. Dumas (1969), 1 N.B.R.(2d) 445 (SCC);

    1 R.N.-B.(2e) 445

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Sommaire et texte intégral

Estate of Ole Eid v. Dumas

Indexed As: Eid Estate v. Dumas

Répertorié: Eid Estate v. Dumas

Supreme Court of Canada

Cartwright, C.J.C., Martland, Ritchie, Hall and Pigeon, JJ.

May 16, 1969.

Summary:

Résumé:

Plaintiff estate awarded $34,500 damages pursuant to Fatal Accidents Act for death of plaintiff passenger arising out of a motor vehicle accident.

The Supreme Court of Canada held defendant driver 100% at fault for "gross negligence", for falling asleep at the wheel of his motor vehicle when driving the plaintiff passenger home from a party at 4:00 a.m.

The Supreme Court of Canada held that plaintiff passenger did not take upon himself the whole risk of being injured as a result of the grossly negligent driving of the defendant/respondent and that maxim volenti non fit injuria did not apply.

The Supreme Court of Canada held that plaintiff passenger was not contributorily negligent and did not show any disregard for his own safety and that the plaintiff passenger's delays in not returning home until 4:00 a.m. did not constitute a negligent act which contributed to the accident.

Torts - Topic 6726

Defences - Consent, assumption of risk - Implied consent, motor vehicle passenger - Negligence - Consent to risk - Whether maxim non fit injuria applies to passenger in motor vehicle who knew that defendant driver was tired and might fall asleep (Supreme Court of Canada).

Torts - Topic 328

Negligence - Motor vehicle, gratuitous passengers - What constitutes gross negligence - Whether defendant driver grossly negligent within the meaning of section 242 of the New Brunswick Motor Vehicle Act, where defendant driver fell asleep at the wheel and woke when the car hit a culvert (Supreme Court of Canada).

Torts - Topic 347

Negligence - Motor vehicle, passengers, general - Contributory negligence of driver or passenger, contributing to driver's negligence - Contributory Negligence Act - Whether plaintiff passenger contributorily negligent in delaying the defendant driver in going home until 4:00 a.m. (Supreme Court of Canada).

Cases Noticed:

Yarmouth v. France (1887), 19 Q.B.C. 647, folld.

Lehnert v. Stein, [1963] S.C.R. 38, folld.

Car and General Insurance Corp. v. Seymour and Maloney, [1956] S.C.R. 322, folld.

Nance v. B.C. Electric Railway Co., [1951] A.C. 601, folld.

Guay v. Picard, [1964] Q.B. 348, folld.

Statutes Noticed:

Motor Vehicle Act, S.N.B., 1955, c. 13, sect. 242(1)

Counsel:

Patrick A.A. Ryan, for plaintiff/appellant;

Donald M. Gillis, Q.C., and J. Turney Jones, for defendant/respondent.

APPEAL from a judgment of the New Brunswick Court of Appeal, dated May 8, 1968, 68 D.L.R. (2d) 261, which affirmed the judgment of the trial court dated January 2, 1968, which dismissed the plaintiff's action for damages for death arising out of a motor vehicle accident pursuant to the Fatal Accidents Act.

Provisionally the trial court awarded $7,500. to the Estate of the deceased's widow (widow died approximately 14 months after the accident), and awarded $27,000. to the only surviving dependent, a 14 year old son of the deceased, who would have probably attended high school and technical college for 9 years following his father's death. Deceased was 57 years of age and earning $10,000 to $12,000. per annum at his death, with good prospects.

Cartwright, C.J.C., Hall, and Pigeon, JJ. concurred with Ritchie, J.

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