McNeil v. Ryan, Chafe and Mulcahy, (1971) 1 Nfld. & P.E.I.R. 457 (NFCA)

JudgePuddester, Higgins and Mifflin, JJ.
CourtNewfoundland Court of Appeal
Case DateApril 22, 1971
JurisdictionNewfoundland and Labrador
Citations(1971), 1 Nfld. & P.E.I.R. 457 (NFCA)

McNeil v. Ryan (1971), 1 Nfld. & P.E.I.R. 457 (NFCA)

MLB headnote and full text

McNeil v. Ryan, Chafe and Mulcahy

Indexed As: McNeil v. Ryan, Chafe and Mulcahy

Newfoundland Supreme Court

On Appeal

Puddester, Higgins and Mifflin, JJ.

April 22, 1971.

Summary:

Appeal Court allowed appeal in part and varied the decision of the Trial Court which found the plaintiff automobile driver 100% at fault for a motor vehicle accident occurring on the highway at night. Appeal Court held defendant dump truck driver equally at fault with plaintiff automobile driver and awarded plaintiff $1520 as special damages for property damage and personal injuries. Defendant dump truck driver parked his vehicle at the side of the road partially on the shoulder and flagged down defendant oil truck driver coming in the opposite direction to ask for information. Seeing plaintiff automobile driver approaching at a distance, the oil truck driver pulled ahead to permit plaintiff to pass. Plaintiff did not see the dump truck stopped in his path and struck both trucks.

Appeal Court upheld the trial court's decision that the plaintiff was negligent in driving too fast but held that defendant dump truck driver was also negligent in parking his truck where it constituted an obstruction and a danger to other drivers. Since the court was unable to distinguish between the negligence of the two drivers, section 2(a) of the Contributory Negligence Act applied which provided that in such a case the plaintiff and defendant should be found equally at fault.

Torts - Topic 505

Negligence - Motor vehicle, rules of the road - Marking or warning of parked or stopped vehicle - Dump truck parked at night on side of road with oil truck stopped opposite it on other side of road - Dump truck struck by automobile approaching from rear of dump truck toward lights of oil truck - The Newfoundland Court of Appeal held drivers of automobile and dump truck equally at fault.

Cases Noticed:

Bruce v. McIntyre, [1955] S.C.R. 251, refd to.

McKee v. Malenfant, [1945] S.C.R. 651, refd to.

Mason v. Burke, [1968] 2 O.R. 5, refd to.

Statutes Noticed:

Contributory Negligence Act, R.S.N. 1952, c. 154, sect. 2(a).

Highway Traffic Act, S. Nfld. 1962, c. 82, sect. 163.

Counsel:

Robert Wells, for the plaintiff, appellant;

James A. Nesbitt, for the defendant, respondent Ryan;

Ernest G. Reid, for the defendants, respondents, Chafe and Mulcahy.

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