Mervin Rayner - v. -, 2011 SKPC 113

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 113 Date: July 7, 2011 File: 19-11 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Mervin Rayner - and - Alana Rogers In Person For the Plaintiff In Person For the Defendant _____________________________________________________________________________ DECISION M.T.

GORDON, J _____________________________________________________________________________ [ 1 ] The Plaintiff sues for the cost of his deductible being $50.00 arising out of a motor vehicle accident with the Defendant on January 22, 2011, in Moose Jaw, Saskatchewan. [ 2 ] The Plaintiff asserts that the Defendant’s negligence was the sole cause of the accident. [ 3 ] It was around 8:00 a.m. on January 22, 2011, and the Plaintiff and his wife were returning home from breakfast.

The Defendant was going to get a coffee at Tim Horton’s. [ 4 ] The vehicles were on Brown Street in Moose Jaw, a rather narrow residential street that has one lane each way and parking on both sides. The street was snow covered, with piles of snow at various points along each side. There were some clean driveways on

each side, vehicles parked at various locations. [ 5 ] The Plaintiff was driving his van west on Brown Street and noticed the Defendant’s vehicle coming toward him (eastbound). The Plaintiff says he pulled over to the right as far as he could and stopped with the right wheel of the van on the edge of a pile of snow. [ 6 ] The Plaintiff says the Defendant’s van did not slow down. As a result the Defendant’s van clipped the exterior mirror of the Plaintiff’s vehicle causing the outside casing to come off. The Defendant stopped about 2 yards or 100 feet further east according to the Plaintiff.

The Plaintiff backed up his vehicle and spoke to the Defendant. Both parties asked why the other had not pulled over. The Plaintiff said the scratch at the midsection of his van was also caused by the accident. [ 7 ] The Plaintiff’s wife, Alice Rayner, testified and said there was no driveway her husband could turn into. She recalls asking her husband why the other vehicle was not pulling over. She also recalls the Defendant stating she was late for an appointment. [ 8 ] The Defendant, Ms. Rogers, testified she was operating a 2010 Dodge Caravan east on Brown Street that morning.

She noticed the Plaintiff’s vehicle approaching and kept thinking it would pull over. [ 9 ] Her evidence was that she pulled over as far to the right as possible with the right hand wheels of her van up against a snow bank. The vehicles were a bit too close. As a result, the plastic casing of the exterior mirror on her van was broken but still on the vehicle. She testified that the Plaintiff admitted the scratch on his vehicle, which was dirty and covered with salt was not new. [ 10 ] The Plaintiff later claimed his windshield had been damaged in the accident.

Both agreed the city should do a better job of snow removal. The Defendant denies speaking to Mrs. Rayner. DECISION: [ 11 ] The Plaintiff must prove his case on the civil burden. The Defendant, in her closing remarks, said she was prepared to admit fifty percent responsibility for the accident. [ 12 ] The Plaintiff and Defendant are on a narrow residential street that had piles of snow at various locations along each side, and driveways open to the street along each side. [ 13 ] Each party testified they pulled over as far as they could.

Each party stated the other could have earlier pulled into a clean spot and waited for the other vehicle to pass. [ 14 ] Ordinary negligence is defined by Black’s Law Dictionary as “the omission of that care which a man of common prudence usually takes of his own actions.” [ 15 ] In my view each party made an incorrect assumption about the other’s driving. There was no evidence on which I can conclude that the Defendant was so negligent in her driving, to conclude she was totally responsible for this accident. [ 16 ] The Plaintiff testified he saw her vehicle approaching.

I find the Plaintiff decided that the Defendant had more options to pull over so the Plaintiff just kept moving forward, albeit slowly. The photographs entered as exhibits show the area of the accident, a few days later. There are the marks visible in the snow and no doubt, in this residential area vehicles come and go. Therefore, other than showing the general layout of the street, the photographs are not helpful. [ 17 ] There are a few discrepancies in the evidence. I find it is more likely that the accident occurred as the Defendant described.

The Plaintiff, in my view, is justifying his actions after the fact. The distance the Defendant’s vehicle travelled before stopping does not

make sense. The claim by the Plaintiff for the scratch on his vehicle and cracked windshield arising out of the accident, again are not supported by the evidence. These are two full sized vans. The exterior mirrors came into contact with each other. There was no other contact between the vehicles. [ 18 ] I find that the Plaintiff and the Defendant are equally at fault for the accident. Dated at Moose Jaw, Saskatchewan, this 7 th day of July, 2011. _ M.T. Gordon, J