最初由 crystal-l 发布：
案例
打官司是很复杂的一件事情, 根据现在所知道的情况,很难找到什么案例支持,因为关于这样的案件一查起来有好多,但情况只要有一点不同,结果就会不一样.一定要找律师,经济困难可以申请LEGAL AID. 我只能提供一个例子,就是自行车骑车人就算是违反规定导致车祸,也得到一定的赔偿,这个案例不一定适用(因为还不能认定钟先生就是违规,而汽车司机就没有违规或NEGLIGENCE),我的意思只是说钟先生的家属应该要打这个官司,争取合理赔偿,起码办理后事的费用是能争取到的.
DeJussel v. Hajzer
1948 CarswellOnt 221
Ontario Court of Appeal, 1948
Subject: Public; Evidence
Motor Vehicles --- Evidence -- Actions in tort -- Statutory presumption of negligence -- Discharge of presumption -- Proof of absence of negligence
Courts -- Jurisdiction in Appeal -- Trial Judge Giving no Reasons for Judgment -- Assumptions to be Made on Appeal -- Finding as to Discharge of Statutory Onus.
Evidence -- Effect of Uncontradicted Evidence -- Binding Effect as against Party Calling such Evidence.
Motor Vehicles -- Negligence -- Statutory Onus -- Sufficiency of Evidence to Rebut -- Injury to Cyclist Riding where Bicycles Forbidden by Statute -- The Highway Traffic Act, R.S.O. 1937, c. 288, s. 48(1).
An appeal by the plaintiffs from the judgment of McFarland J. dismissing the action.
The plaintiffs were the widow and child of Paul Felix DeJussel, who died as a result of injuries sustained by him when struck by an automobile owned and driven by the defendant. The deceased, at the time of the accident, was riding a bicycle on the Queen Elizabeth Way, contrary to regulations made under The Highway Improvement Act, R.S.O. 1937, c. 56.
The trial judge gave no reasons for dismissing the action. The plaintiffs' principal contention upon the appeal was that the defendant had not discharged the onus under s. 48(1) of The Highway Traffic Act, R.S.O. 1937, c. 288. The effect of the evidence is stated in the reasons for judgment of Laidlaw J.A.
Henderson J.A. (dissenting) :
1 The learned trial judge gave no reasons for judgment, but his dismissal of the action means that the defendant satisfied him that the accident which caused the death was not due to negligence or want of care on his part.
2 Upon consideration of the evidence, and the arguments and authorities advanced upon the argument, I can find no reason for differing from the conclusion of the learned trial judge, and I would therefore dismiss the appeal with costs.
3 The riding of bicycles on the highway in question is forbidden by a regulation which has the force of law, and the question might be asked whether, under those circumstances, the bicycle in question, without a headlight, constituted a nuisance, but I do not find it necessary to discuss this aspect of the case.
Laidlaw J.A. :
4 It is quite proper to assume that the learned trial judge made all findings necessary to support the judgment pronounced by him. In particular, it may be assumed that he was satisfied that the loss or damage, if any, sustained by the plaintiffs did not arise through negligence or improper conduct of the defendant. But it cannot be assumed that the learned judge accepted or rejected any particular portions of the evidence. There is nothing to indicate what evidence he believed or disbelieved, or whether he disbelieved any of it. It cannot be successfully argued that he disbelieved the evidence given by the witness Olmstead, and it is to be noted that that witness was called by counsel for the defence. In calling a witness counsel impliedly represents to the Court that the witness is one whose testimony is worthy of belief, and that it ought to be given weight and effect by the Court, and he invites the Court to accept it. There is no apparent reason in this case to discredit Olmstead or to minimize the weight or effect of the evidence given by him. If that evidence is not incredible, it would appear that the deceased was riding his bicycle on the pavement of the highway in front of the motor car before the accident. Olmstead saw it "seconds before it was struck". He saw it "zigzagging", trying to get off the pavement. He saw the car make "a definite swerve to the left", indicating to me that the driver of the car saw the bicycle at some time before the collision. The lights of the car were good. They lighted up the pavement and, according to one witness called for the defence, lighted up the shoulder of the road "pretty good". When that evidence, which, as I have said, counsel for the defendant impliedly invited the Court to accept, is uncontradicted and is given proper weight, it is not in my opinion sufficient discharge of the onus of proof resting on the defendant under s. 48(1) of The Highway Traffic Act merely to say, as he did in effect: "I don't know where the bicycle came from; all I can say is I didn't see it at any time".
5 I do not say that the defendant could not have discharged the statutory onus of proof, and I do not say that he was negligent in the circumstances. It is not necessary for me to express any opinion in respect of those matters. I simply say that I am not satisfied that the loss or damage sustained by the plaintiffs did not arise through negligence or misconduct of the defendant. That conclusion can be reached without the necessity for interfering in any way with the judgment of the learned trial judge as to the credibility of the witnesses who testified at trial, because, as pointed out, there is nothing to indicate that any of the witnesses or any part of the evidence given by them was discredited by him.
6 Counsel for the respondent urged that the deceased was on the highway in violation of a regulation having the force of an absolute statutory prohibition. He argued that any person who sustained loss or damage by reason of the bicycle on the highway would have a right of action against him and he would be liable in law for such loss or damage without proof of any negligence on his part. He supposed that in this case the motor car had been damaged in the collision by the bicycle, and concluded that in that event the owner of the motor car could recover those damages by merely proving the fact of the collision. He then contended that in the converse case of an action by the rider of the bicycle, or his dependants, there is no liability in law on the part of the driver of the motor car unless it can be clearly found on the evidence that he was guilty of actionable negligence.
7 It may be admitted for the purposes of the case that the deceased was wrongfully riding his bicycle on the highway in violation of an absolute statutory prohibition, but s. 48(1) of The Highway Traffic Act is applicable when loss or damage is sustained by "any person". It was established that the loss or damage sustained by the plaintiffs arose by reason of the motor vehicle driven by the defendant on the highway, and in my opinion the statute places upon him the onus of proving that such loss or damage did not arise through his negligence or misconduct unless it can be properly held that he was under no duty whatever to the deceased. It cannot be so held in law.
8 Counsel then argued that, in event of a finding that the respondent had not discharged the onus of proof upon him, it should be found that there was contributory negligence of the deceased and that an apportionment of fault and damage ought to be made under the provisions of The Negligence Act, R.S.O. 1937, c. 115. The onus of proof of such alleged contributory negligence was upon the defendant. I think that there was no evidence adduced at trial from which it could reasonably be found that there was negligence on the part of the deceased which was a contributory cause of the collision and the damages resulting therefrom. The onus of proving such negligence has not been discharged by the defendant, and therefore the Court cannot give effect to this contention on his behalf.
9
10 The appeal should therefore be allowed with costs. The judgment of the Court below should be set aside and in place thereof judgment should be entered for the plaintiffs for the amounts hereinbefore set forth.
11 Roach J.A. agreed with Laidlaw J.A.
Appeal allowed with costs, Henderson J.A. dissenting.
正根儿！
英美法系是以判例为依据的，这个个案很重要！
回复
crystal-l
2006-02-07 18:30
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打官司是很复杂的一件事情, 根据现在所知道的情况,很难找到什么案例支持,因为关于这样的案件一查起来有好多,但情况只要有一点不同,结果就会不一样.一定要找律师,经济困难可以申请LEGAL AID. 我只能提供一个例子,就是自行车骑车人就算是违反规定导致车祸,也得到一定的赔偿,这个案例不一定适用(因为还不能认定钟先生就是违规,而汽车司机就没有违规或NEGLIGENCE),我的意思只是说钟先生的家属应该要打这个官司,争取合理赔偿,起码办理后事的费用是能争取到的.
DeJussel v. Hajzer
1948 CarswellOnt 221
Ontario Court of Appeal, 1948
Subject: Public; Evidence
Motor Vehicles --- Evidence -- Actions in tort -- Statutory presumption of negligence -- Discharge of presumption -- Proof of absence of negligence
Courts -- Jurisdiction in Appeal -- Trial Judge Giving no Reasons for Judgment -- Assumptions to be Made on Appeal -- Finding as to Discharge of Statutory Onus.
Evidence -- Effect of Uncontradicted Evidence -- Binding Effect as against Party Calling such Evidence.
Motor Vehicles -- Negligence -- Statutory Onus -- Sufficiency of Evidence to Rebut -- Injury to Cyclist Riding where Bicycles Forbidden by Statute -- The Highway Traffic Act, R.S.O. 1937, c. 288, s. 48(1).
An appeal by the plaintiffs from the judgment of McFarland J. dismissing the action.
The plaintiffs were the widow and child of Paul Felix DeJussel, who died as a result of injuries sustained by him when struck by an automobile owned and driven by the defendant. The deceased, at the time of the accident, was riding a bicycle on the Queen Elizabeth Way, contrary to regulations made under The Highway Improvement Act, R.S.O. 1937, c. 56.
The trial judge gave no reasons for dismissing the action. The plaintiffs' principal contention upon the appeal was that the defendant had not discharged the onus under s. 48(1) of The Highway Traffic Act, R.S.O. 1937, c. 288. The effect of the evidence is stated in the reasons for judgment of Laidlaw J.A.
Henderson J.A. (dissenting) :
1 The learned trial judge gave no reasons for judgment, but his dismissal of the action means that the defendant satisfied him that the accident which caused the death was not due to negligence or want of care on his part.
2 Upon consideration of the evidence, and the arguments and authorities advanced upon the argument, I can find no reason for differing from the conclusion of the learned trial judge, and I would therefore dismiss the appeal with costs.
3 The riding of bicycles on the highway in question is forbidden by a regulation which has the force of law, and the question might be asked whether, under those circumstances, the bicycle in question, without a headlight, constituted a nuisance, but I do not find it necessary to discuss this aspect of the case.
Laidlaw J.A. :
4 It is quite proper to assume that the learned trial judge made all findings necessary to support the judgment pronounced by him. In particular, it may be assumed that he was satisfied that the loss or damage, if any, sustained by the plaintiffs did not arise through negligence or improper conduct of the defendant. But it cannot be assumed that the learned judge accepted or rejected any particular portions of the evidence. There is nothing to indicate what evidence he believed or disbelieved, or whether he disbelieved any of it. It cannot be successfully argued that he disbelieved the evidence given by the witness Olmstead, and it is to be noted that that witness was called by counsel for the defence. In calling a witness counsel impliedly represents to the Court that the witness is one whose testimony is worthy of belief, and that it ought to be given weight and effect by the Court, and he invites the Court to accept it. There is no apparent reason in this case to discredit Olmstead or to minimize the weight or effect of the evidence given by him. If that evidence is not incredible, it would appear that the deceased was riding his bicycle on the pavement of the highway in front of the motor car before the accident. Olmstead saw it "seconds before it was struck". He saw it "zigzagging", trying to get off the pavement. He saw the car make "a definite swerve to the left", indicating to me that the driver of the car saw the bicycle at some time before the collision. The lights of the car were good. They lighted up the pavement and, according to one witness called for the defence, lighted up the shoulder of the road "pretty good". When that evidence, which, as I have said, counsel for the defendant impliedly invited the Court to accept, is uncontradicted and is given proper weight, it is not in my opinion sufficient discharge of the onus of proof resting on the defendant under s. 48(1) of The Highway Traffic Act merely to say, as he did in effect: "I don't know where the bicycle came from; all I can say is I didn't see it at any time".
5 I do not say that the defendant could not have discharged the statutory onus of proof, and I do not say that he was negligent in the circumstances. It is not necessary for me to express any opinion in respect of those matters. I simply say that I am not satisfied that the loss or damage sustained by the plaintiffs did not arise through negligence or misconduct of the defendant. That conclusion can be reached without the necessity for interfering in any way with the judgment of the learned trial judge as to the credibility of the witnesses who testified at trial, because, as pointed out, there is nothing to indicate that any of the witnesses or any part of the evidence given by them was discredited by him.
6 Counsel for the respondent urged that the deceased was on the highway in violation of a regulation having the force of an absolute statutory prohibition. He argued that any person who sustained loss or damage by reason of the bicycle on the highway would have a right of action against him and he would be liable in law for such loss or damage without proof of any negligence on his part. He supposed that in this case the motor car had been damaged in the collision by the bicycle, and concluded that in that event the owner of the motor car could recover those damages by merely proving the fact of the collision. He then contended that in the converse case of an action by the rider of the bicycle, or his dependants, there is no liability in law on the part of the driver of the motor car unless it can be clearly found on the evidence that he was guilty of actionable negligence.
7 It may be admitted for the purposes of the case that the deceased was wrongfully riding his bicycle on the highway in violation of an absolute statutory prohibition, but s. 48(1) of The Highway Traffic Act is applicable when loss or damage is sustained by "any person". It was established that the loss or damage sustained by the plaintiffs arose by reason of the motor vehicle driven by the defendant on the highway, and in my opinion the statute places upon him the onus of proving that such loss or damage did not arise through his negligence or misconduct unless it can be properly held that he was under no duty whatever to the deceased. It cannot be so held in law.
8 Counsel then argued that, in event of a finding that the respondent had not discharged the onus of proof upon him, it should be found that there was contributory negligence of the deceased and that an apportionment of fault and damage ought to be made under the provisions of The Negligence Act, R.S.O. 1937, c. 115. The onus of proof of such alleged contributory negligence was upon the defendant. I think that there was no evidence adduced at trial from which it could reasonably be found that there was negligence on the part of the deceased which was a contributory cause of the collision and the damages resulting therefrom. The onus of proving such negligence has not been discharged by the defendant, and therefore the Court cannot give effect to this contention on his behalf.
9
10 The appeal should therefore be allowed with costs. The judgment of the Court below should be set aside and in place thereof judgment should be entered for the plaintiffs for the amounts hereinbefore set forth.
11 Roach J.A. agreed with Laidlaw J.A.
Appeal allowed with costs, Henderson J.A. dissenting.
相对于机动车，自行车的路权等同于行人，高于机动车；相对于行人，自行车的路权等同于机动车，低于行人。我想这个原则在我们大家学车考驾照的时候都明白吧！教练是不是没少提醒学员注意避让行人与自行车？
You are right! Every driver should try his/her best to avoid the accident. However, the accidents still happened due to the conditions out of control.
In this case, if the driver tried to avoid Mr. zhong and hit another car or run into a pedestrian, he would be at fault or he might get injured too.
最初由 MV55 发布：
Truth and fairness
Even we would like to help, we need to know what actually happened. If Mr. Zhong was at fault, it is unfair to force the other side to pay for the tragedy.
Think in this way, if someone run into your car in the middle of the road (or on the highway) when you are driving, will you be kind enough to pay for his tragedy?
The society is ruled by law and truth not by sympathy.
有多小對和多小錯, 由法庭决定，
要賠的是保險公司,
第三者保險就是這樣用的。
回复
小心为上
2006-02-07 13:59
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最初由 MV55 发布：
Truth and fairness
Even we would like to help, we need to know what actually happened. If Mr. Zhong was at fault, it is unfair to force the other side to pay for the tragedy.
Think in this way, if someone run into your car in the middle of the road (or on the highway) when you are driving, will you be kind enough to pay for his tragedy?
The society is ruled by law and truth not by sympathy. 👍️
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MV55
2006-02-07 13:55
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Even we would like to help, we need to know what actually happened. If Mr. Zhong was at fault, it is unfair to force the other side to pay for the tragedy.
Think in this way, if someone run into your car in the middle of the road (or on the highway) when you are driving, will you be kind enough to pay for his tragedy?
The society is ruled by law and truth not by sympathy.
最初由 grainsw 发布：
我觉得作者对所谓“撞死白撞”的理解有误
“撞死白撞”其实是是一个通俗而不准确的说法。在行人违反交通规则的情况下，有两中可能：
1。汽车可以避免事故，但因为司机的疏忽甚至放纵而导致事故发生。
2。司机无法避免。
I think there are anther 2 conditions.
1. Even the driver can not react that fast, if the road condition or tranfic system design has its own defects, such as the example case, there are no route for pedestrain or bike, pit on the road....
2. What we called Force Majeure in Law, the superior force. E.g, heavy rain, nearby other accidents, windy weather etc...
I will get $50 fee for this article, will again donate to Zhong's famiy fund account. The editor of 51.ca had been very helpful to improve this article.
可怜钟道昌:加拿大也是“撞了白撞”？