Rob Vickery - v. -, 2011 SKPC 173

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 173 Date: November 10, 2011 File: 10-1005 Location: Prince Albert _____________________________________________________________________________ Between: Rob Vickery - and - Christopher J. Kereluk Peter V. Abrametz For the Plaintiff Brian Gamble (Agent for Kereluk) For the Defendant _____________________________________________________________________________ JUDGMENT M. M.

BANIAK , J _____________________________________________________________________________ [ 1 ] The Plaintiff, Rob Vickery, drove a vehicle registered to Adam Brad. [ 2 ] The Plaintiff claims against the Defendant for damages in the amount of $750.00.

[ 3 ] On March 20, 2010, Rob Vickery was operating a Kenworth tractor trailer fully loaded with gravel. Gravel was being stockpiled for the road construction project twinning Highway 11 to Prince Albert. The trip entailed crossing Highway 11 from west to east at the intersection of Highway 11 and the MacDowall north access road. A stop sign was in place at the intersection. The accident occurred shortly before 3:00 a.m. (2:51). [ 4 ] Mr.

Vickery testified that he has 25 years of driving experience and that he has driven approximately four million miles during that time. [ 5 ] On the day in question, he testified that he had come to a complete stop at the intersection of the grid road and Highway 11 as there were some cars going south on Highway 11 from Prince Albert. After ascertaining that all was clear, and not seeing any vehicles from either direction, he proceeded to cross the highway.

In his own words “before I proceeded from the stop sign everything was clear - I was practically clear before I felt the trailer shake”. [ 6 ] Fearing the worst (“I thought I was going to find dead people”) he jumped out of the truck and dialed 9-1-1. The vehicle that struck him was a blue pickup pulling a U-haul trailer and driven by the Defendant, Mr. Kereluk. Mr. Vickery further testified that once the door to the blue pickup opened he smelled a strong odour of alcohol and he saw beer bottles all over the place. [ 7 ] The first words uttered by Mr. Vickery were: “where did you come from?

I didn’t see no headlights.” He believed that if the Defendant had his headlights on he would have been able to see him from at least a mile away, and that the Defendant should have been able to see the semi-trailer from a quarter to half a mile away as it was well lit. [ 8 ] Also, he testified that there was an amber light flashing about a quarter kilometre from the intersection to alert traffic that there were trucks turning. [ 9 ] Mr.

Vickery examined the scene at daylight and observed the skid marks left by the Defendant’s vehicle to be approximately 50 to 60 feet long and in the same lane - no part of the skid was visible in the adjacent lane. Mr. Vickery’s contention is that the Defendant’s drinking, speeding and inattention (such as not having his lights on) were the cause of the accident. [ 10 ] In cross-examination, Mr. Vickery acknowledged that he wanted to recover the insurance deductible and clear his driving abstract. [ 11 ] An accident report was prepared by Constable Chris Hujber of the Prince Albert RCMP (Exhibit P6).

I will reproduce the description of the accident portion of the report in its entirety: V1 NE bound travelling 109 km/hr. V2 crossed Hwy 11 SE bound, V1 t-boned trailer of V2. Occupants of V1 transported to hospital. Driver of V1 had smell of mouth alcohol, blood taken, awaiting results. [ 12 ] No alcohol related charges were laid against the Defendant, Mr. Kereluk. [ 13 ] Mr. Kereluk testified that he had picked up a U-haul trailer in Prince Albert and drove to Moose Jaw to help his uncle move. Once they loaded the trailer he started driving back to Prince Albert. He admitted to consuming some beer that night.

By his estimate, he had 4 to 5 bottles that night. His uncle, his cousin, and one of her friends were also in the truck. The cousin and her friend were sitting in the back seat. All the passengers were drinking beer. Mr. Kereluk denied drinking while driving. He testified that he was not over tired; that his conversation with the passengers in the back seat was not a factor in the accident; and that the consumption of alcohol did not cause the accident. [ 14 ] During cross-examination Mr. Kereluk stated that he had set the cruise control for 105 or 110 km/hr.

In response to a question suggesting that he may have had more than 4 or 5 beer, he answered “drank about 4 or 5 in Saskatoon, could have been 5 or 6 or 1or 2.” He maintained that he was not drinking while driving. He did acknowledge that he did not see the semi crossing the highway until the

end when he was alerted to its presence by his uncle. He also agreed that if he had not been talking to the passengers in the back seat and paying more attention to his driving that this accident may have been avoided. [ 15 ] Throughout, I found Mr.

Kereluk’s testimony to be straightforward, honest and sincere - he did not attempt to be evasive or to minimize his involvement in the accident - if anything, he was, at times, only too eager to agree with the Plaintiff’s counsel’s version of events leading up to the accident. [ 16 ] The last witness to testify was Mario Hudon, the Defendant’s uncle, who was also the front seat passenger. He testified that Mr. Kereluk drank some beer in Saskatoon, but that he did not drink inside the truck while driving.

He testified that he was gazing out the side window and when he turned his head he saw the semi: “I was looking sideways, then I looked ahead and saw the truck and screamed.” [ 17 ] Mr. Hudon could not say if the semi pulled out from the stop sign prematurely or if it did not stop at all. [ 18 ] During arguments, the Plaintiff submitted that the evidence shows that he stopped at the stop sign and, not seeing any vehicles on either side of him, proceeded to cross the highway. In contrast, the Defendant, Mr.

Kereluk, had consumed beer that night; he was exceeding the speed limit; and he was not paying attention to the road, being busy talking to the passengers in the back seat. In fact it was the front seat passenger that noticed the semi-trailer first. In short, the Defendant was driving without due care and attention. [ 19 ] The Defendant argued that the semi-trailer was struck on the back end, when it had almost crossed the highway. It stands to reason, therefore, that the Plaintiff left the stop sign too soon and did not have enough time to cross the highway. In Mr.

Gamble’s words, “a stop sign is a stop sign” and one cannot proceed until all is clear. ANALYSIS [ 20 ] “Negligence” is defined in Black ’s Law Dictionary as “the omission of that care which a man of common prudence usually takes of his own actions.” [ 21 ] The Shorter Oxford English Dictionary defines “negligence” as: 1. Want of attention to what ought to be done or looked after; lack of proper care in doing something. 2.

An instance or act of inattention or careless behaviour. [ 22 ] “Contributory negligence” is described as “...any want of ordinary care on the part of the person injured, (or on the part of another whose negligence is imputable to him) which combined and concurred with the defendant's negligence, and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.” [1] [ 23 ] Simply put, it is the negligent act of the Plaintiff, which, combined with the negligent act of the Defendant, becomes the proximate cause of the injury or damage. [ 24 ] Relevant sections of The Traffic Safety Act , c.

T-18.1, S.S.: 2(qq) “stop” means:

(

i) when required, a complete cessation from movement. 213(1) No person shall drive a vehicle on a highway without due care and attention. 219(4) Before entering a highway, the driver of a vehicle shall yield the right of way to vehicles on the highway. 219(5) At an intersection where a sign is erected conveying the message “yield” by words or symbols, the driver of a vehicle shall yield the right of way to other vehicles in or approaching the intersection. [ 25 ] The fact situation in this case is relatively straightforward. The evidence clearly establishes the following: 1) The Defendant, Mr.

Kereluk, after consuming several bottles of beer, proceeded to drive a pickup pulling a U-haul trailer full of furniture. The trip was to be from Moose Jaw to Prince Albert; 2) The Defendant was going slightly over the speed limit - his evidence was that he set the cruise control at between 105-110 km/hr. The police report lists the Defendant’s vehicle travelling at 109 km/hr; 3) The Defendant was busy talking to the two passengers in the back seat - sometimes turning his head backwards while doing so. In fact, it was the passenger in the front seat, Mr. Hudon, who saw the semi in front of them and alerted Mr.

Kereluk to the danger; 4) The skid marks were only 50 to 60 feet long, which suggests that Mr. Kereluk only saw the semi immediately prior to the collision. As such, he was in no position to take any preventive or evasive action. [ 26 ] Based on the above, I conclude that Mr. Kereluk’s manner of driving contributed to this accident. [ 27 ] However, the Plaintiff, Mr. Vickery, is not without blame either. He testified that the landscape in either direction was fairly level and unobscured; that he would have been able to see the Defendant’s vehicle’s headlights from a mile away.

It was his conclusion that the reason he did not see the Defendant’s vehicle was because the Defendant was driving without his lights on. [ 28 ] In my view, this explanation is not credible. One may inadvertently drive without lights in a city where there are numerous street lights, or on a well lit freeway within city limits, but one is not likely to travel at 109 km/hr on a dark highway at 2:51 a.m. in March, for over an hour, without noticing that his lights are not on. Even if one had excellent night vision, one would be unable to maintain that speed for that length of time without the lights being on.

Moreover, the police report describes the Defendant’s vehicle as being a 2004 GMC Sierra. The Court can take notice of the fact that on a vehicle of this make and vintage the lights are automatically activated once the vehicle is started. And finally, the Defendant testified that he noticed the trailer at the last moment - “I saw the tires from my own headlights.” [ 29 ] Accordingly, it is my conclusion that the Plaintiff, Mr.

Vickery, either did not see, for whatever reason, the approaching Defendant vehicle, or, if he did see it, he miscalculated the distance it was from the intersection and assumed that he had enough time to cross the highway. Either way, he proceeded from the stop sign before it was safe to do so. [ 30 ] Consequently, I find both parties to be equally at fault for the accident.

[ 31 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 10 th day of November, A.D. 2011. __________________________________ M. M. Baniak, J [1] Railroad Co. v. Young , 153 Ind. 163, 54 N. E. 791.