Prince v. Vandenberg and Spencer (A.) Co., (1973) 6 Nfld. & P.E.I.R. 292 (NFCA)

• Judge: Furlong, C.J.N., Puddester and Higgins, JJ.
• Court: Court of Appeal (Newfoundland)
• Case Date: June 28, 1973
• Jurisdiction: Newfoundland and Labrador
• Citations: (1973), 6 Nfld. & P.E.I.R. 292 (NFCA)

Prince v. Vandenberg (1973), 6 Nfld. & P.E.I.R. 292 (NFCA)

MLB headnote and full text

Prince v. Vandenberg and A. Spencer & Co. Ltd.

Indexed As: Prince v. Vandenberg and Spencer (A.) Co.

Newfoundland Court of Appeal

Furlong, C.J.N., Puddester and Higgins, JJ.

November 5, 1973.

Summary:

This case arose out of a claim for damages for personal injuries arising out of a motor vehicle accident. The plaintiff was a salesman for the Fuller Brush Company. The defendant driver was a Fuller Brush Regional Manager. The defendant was driving the plaintiff to an area of Newfoundland which was to be serviced for the Fuller Brush Company by the plaintiff passenger. The defendant was travelling 20 to 30 miles per hour on a downhill curve on a snow covered, narrow and winding highway. There were 4 to 5 foot snowbanks on either side of the highway. When the defendant driver saw a truck coming up the hill the defendant attempted to slow his vehicle, lost control of the vehicle, struck a snowbank, and skidded and struck the truck which had stopped on its own side of the road. The trial judge held that the defendant driver was negligent and that his negligence was the sole cause of the accident. The trial judge held that the defendant was negligent for driving at too great a speed to allow him to control his motor vehicle in the circumstances. The trial judge held that the defendant driver was not grossly negligent and was not liable to the plaintiff passenger.

On appeal to the Newfoundland Court of Appeal the appeal was dismissed and the judgment of the trial judge was affirmed.

Practice - Topic 8800

Appeals - Duty of an appellate court regarding findings of fact by a trial judge - The trial judge rejected the evidence of certain witnesses and accepted the evidence of other witnesses - The Newfoundland Court of Appeal stated that it would not disturb the fact findings of the trial judge unless it was satisfied that the trial judge was plainly or clearly wrong - See paragraphs 34 to 41.

Torts - Topic 327

Negligence - Motor vehicle - Passengers - "gratuitous" or "guest without payment" defined - The defendant driver, a Fuller Brush regional manager, was taking the plaintiff passenger, a Fuller Brush salesman, to show the salesman an area of Newfoundland which the salesman was to service for the Fuller Brush Company - The Newfoundland Court of Appeal held that the potential benefit to the defendant did not constitute consideration - The Newfoundland Court of Appeal held that the plaintiff salesman was a gratuitous passenger - See paragraphs 9 and 54 to 57.

Torts - Topic 328

Negligence - Motor vehicle - Passengers - What constitutes gross negligence - The defendant driver was travelling 20 to 30 miles per hour on a downhill curve on a snow covered rural road which was narrow and winding - When the defendant driver saw a truck coming up the hill the defendant attempted to slow his vehicle, lost control of his vehicle, struck a snowbank, and skidded and struck the truck which had stopped on its own side of the road - The Newfoundland Court of Appeal held that the defendant driver was negligent but was not grossly negligent and was not liable to the plaintiff passenger.

Cases Noticed:

Drake v. Power (1960), 46 M.P.R. 91, dist. [para. 7].

Roche v. Baird (1962), 42 M.P.R. 272, folld. [paras. 13, 14 and 44].

McCulloch v. Murray, [1941] 3 D.L.R. 42, folld. [paras. 13 and 43].

Matthieu v. St. Michel & Brossard (1956), 3 D.L.R.(2d) 428, folld. [para. 34].

Greenlund v. Drysdale (1958), 12 D.L.R.(2d) 765, folld. [para. 34].

Rosenblatt v. Weiss (1955), 17 W.W.R. 278, folld. [para. 34].

Scott Weeks v. Sackville Downs Ltd. et al., 40 M.P.R. 305, folld. [para. 34].

Clarke v. Edinburgh and District Tramways Co. Ltd., [1919] S.C. (H.L.) 35, folld. [para. 40].

SS. Hontestroom v. SS Sagaporact, [1927] A.C. 37, folld. [para. 40].

Johnston v. Arbeau (1959-60), 43 M.P.R. 282, refd to. [para. 44].

Gilbert v. Upshall, 1 Nfld. & P.E.I.R. 12, folld. [para. 46].

Drover v. Wheaton (1956), 5 D.L.R.(2d) 389, folld. [para. 48].

Semeniuk v. Scoyoe, [1955] 4 D.L.R. 780, folld. [para. 50].

Burke v. Perry, [1963] S.C.R. 389, folld. [para. 51].

Statutes Noticed:

Highway Traffic Act, S.N. 1962, c. 82, sect. 220(1) [paras. 55 and 63].

Counsel:

[None disclosed].

This appeal was heard by the Newfoundland Court of Appeal on June 28, 1973. Judgment was delivered on November 5, 1973 and the following opinions were filed:

FURLONG, C.J.N. - see paragraphs 1 to 15,

PUDDESTER, J., - see paragraphs 16 to 60,

HIGGINS, J., - see paragraphs 61 to 65.

F.J. AYLWARD, Q.C., for the plaintiffs-appellants

DAVID RICHE, for defendant-respondent

J.J. GREENE, Q.C., for the defendant respondent, A. Spencer & Co. Ltd.