Mikuletic v. Harvie, (1979) 1 Man.R.(2d) 156 (CA)

• Judge: Monnin, Matas and O'Sullivan, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 25, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 1 Man.R.(2d) 156 (CA)

Mikuletic v. Harvie (1979), 1 Man.R.(2d) 156 (CA)

MLB headnote and full text

Mikuletic v. Harvie

Indexed As: Mikuletic v. Harvie

Manitoba Court of Appeal

Monnin, Matas and O'Sullivan, JJ.A.

September 25, 1979.

Summary:

This case arose out of a pedestrian's action in negligence for damages for personal injuries after she was struck by the defendant's motor vehicle. The plaintiff woman attempted to cross a multi-lane city street sixty feet from an intersection and was struck by the defendant's vehicle - The defendant did not slow down until he actually saw the plaintiff; although a vehicle ahead in the next lane slowed to avoid the plaintiff.

The Manitoba Court of Queen's Bench dismissed the plaintiff's action and held that she was wholly at fault. The Court of Queen's Bench held that the defendant satisfied the onus on him under s. 144(1) of the Highway Traffic Act of proving that the accident was not his fault. The plaintiff appealed.

The Manitoba Court of Appeal allowed the appeal and held that the plaintiff and defendant were equally at fault. The Court of Appeal held that, although the defendant established that the accident was not wholly his fault, he failed to prove that the accident was not partly his fault as required by s. 144(1).

Torts - Topic 355

Negligence - Motor vehicle - Pedestrians - Street crossing - Non-intersection - The plaintiff woman crossed a multi-lane city street on foot sixty feet from an intersection and was struck by the defendant's motor vehicle - The Manitoba Court of Appeal held that the plaintiff and the defendant were equally at fault - The Court of Appeal held that the woman did not take reasonable care for her own safety and that the defendant driver failed to take warning from the slowing of another vehicle for the woman and did not try to stop until he actually saw her.

Torts - Topic 550

Negligence - Motor vehicle - Burden of proof on owner or operator of motor vehicle - Highway Traffic Act, R.S.M. 1970, c. H-60, s. 144(1) - The defendant driver struck the plaintiff pedestrian, who was attempting to cross a multi-lane city street sixty feet from an intersection - The Manitoba Court of Appeal held both the plaintiff and the defendant equally at fault and held that the defendant driver failed to satisfy the onus on him under s. 144(1) of the Highway Traffic Act of proving that the accident was not partly his fault - See paragraphs 9 to 10.

Cases Noticed:

Hartman v. Fisette (1976), 8 N.R. 301; 66 D.L.R.(3d) 516, appld. [para. 9].

Feener v. McKenzie (1971), 3 N.S.R.(2d) 829; [1972] S.C.R. 525; 25 D.L.R.(3d) 283, appld. [para. 9].

Statutes Noticed:

Highway Traffic Act, R.S.M. 1970, c. H-60, sect. 144(1).

Counsel:

H. Glinter, for the plaintiff/appellant;

W.P. Narvey, for the defendant/respondent.

This case was heard on September 25, 1979, at Winnipeg, Manitoba, before MONNIN, MATAS and O'SULLIVAN, JJ.A, of the Manitoba Court of Appeal.

On September 25, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

O'SULLIVAN, J.A. - see paragraphs 1 to 11;

MONNIN, J.A., dissenting - see paragraphs 12 to 13.

MATAS, J.A., concurred with O'SULLIVAN, J.A.