Arland and Arland v. Taylor
 O.R. 131-144
ONTARIO [COURT OF APPEAL]
LAIDLAW, AYLESWORTH and F.G. MACKAY JJ.A.
18th JANUARY 1955.
Appeals — Ordering New Trial — Misdirection of Jury — Whether Substantial Wrong or Miscarriage Occasioned — Failure to Object at Trial — Conflicting Opinions as to Burden under The Judicature Act, R.S.O. 1950, c. 190, s. 28(1).
These general propositions can be extracted from the authorities: (1) A new trial of an action is contrary to the interest of the public and should not be ordered unless the interests of justice plainly require it. (2) An appellant cannot ask for a new trial as a matter of right on a ground of misdirection or other error in the trial when no objection was made at trial. (3) A new trial cannot be granted because of misdirection or other error “unless some substantial wrong or miscarriage has been thereby occasioned” (The Judicature Act, s. 28(1)). (4) A new trial should not be granted on the ground of non-direction if the party complaining had an opportunity at the trial to ask the judge to give the required direction and did not do so. To this it may be added that (5) there is a conflict of judicial opinion in Ontario, as exemplified in Gage v. Reid (1917), 38 O.L.R. 514, and Storry v. C.N.R.,  4 .L.R. 169 at 174, as to whether or not the onus of showing that a substantial wrong or miscarriage has been occasioned by error at the trial rests on the appellant. Negligence — Objective Standard to be Applied — Impropriety of Trial Judge Telling Jurors to Place themselves in Defendant’s Position. The standard of care that is to be applied in determining whether or not a defendant has been negligent is an objective one, and is the standard of conduct of “a reasonable and prudent man”, i.e., a person of normal intelligence who makes prudence a guide to his conduct. It is improper for a juryman to judge the conduct of a person in given circumstances by considering, after the event, what he, the juryman, would have done in the circumstances, and it is consequently misdirection in law for a trial judge, in an action arising out of alleged negligence in the operation of a motor vehicle, to tell the jury to “place themselves in the driver’s seat” and ask themselves whether they would have done or omitted anything that the defendant omitted or did. Blyth v. Birmingham Waterworks Co. (1856), 11 Exch. 781 at 784; Glasgow Corporation v. Muir et al.,  A.C. 448 at 457, applied; Kralj v. Murray,  O.W.N. 58, followed; Eyres v. Gillis & Warren Limited et al. (1940), 48 Man. R. 164 at 170, agreed with.
AN APPEAL by the plaintiffs from the judgment of Kelly J., after trial with a jury, dismissing the action. 14th December 1954. The appeal was heard by LAIDLAW, AYLESWORTH and F.G. MACKAY JJ.A.
C. L. Dubin, Q.C., for the plaintiffs, appellants: The learned trial judge did not put to the jury the real issue raised by the evidence, which was: (a) When should the defendant have seen these children, and (b) could he, at the time he should have seen them, have avoided the accident? [LAIDLAW J.A.: Is it your submission that all the evidence shows that the defendant could have seen the children when he was more than 50 feet from them?] My submission is that at least there is evidence that he could have, and that the preponderance of evidence is that he could have seen them from a distance of 125 feet. [F.G. MACKAY J.A.: The child was illegally soliciting a ride, contrary to s. 47(2) of The Highway Traffic Act, R.S.O. 1950, c. 167, and was therefore illegally on the highway. A driver is not bound to anticipate anything of that sort.] I rely on McKee et al. v. Malenfant et al.,  4 D.L.R. 785. The real issue, as to when the defendant should first have seen the child, was not put to the jury by the trial judge. On the evidence of the defendant and his passenger, they did not see the child until they were within 60 feet, and the issue was whether he should have seen him sooner. [AYLESWORTH J.A.: Were the jury not entitled to say, on all the evidence, that not only did the defendant not see the infant plaintiff until he was 60 feet from him, but that was the limit of visibility, and he could not have seen him sooner?] Yes, but my complaint is that the issue was not put to them. [F.G. MACKAY J.A.: Visibility is a relative matter. One might see a lighted car 100 feet away, but an unlighted object only 50 feet away. It depends on the clothing of the child, and on the background against which he was standing.] [AYLESWORTH J.A.: This objection was not taken at the trial.] It is the duty of the trial judge to put the real issue to the jury for their consideration, and the litigant is entitled to that. The function of the trial judge is to direct the jury as to the law, and as to the relation of the facts to the law, so that the jury will have the issues properly before them: Rex v. Hughes et al.,  S.C.R. 517, 78 C.C.C. 257,  1 D.L.R. 1.(F.G. MACKAY J.A.: The plaintiffs were represented at trial by experienced counsel. You put a tremendous burden on the trial judge if you require him to see something that an experienced counsel does not see.]
[AYLESWORTH J.A.: The authorities are to the effect that a new trial is an indulgence, and where no objection has been made at trial the litigant is not entitled to a second chance unless there has been a real miscarriage of justice.] Failure to object is only one of the factors to be taken into consideration. [AYLESWORTH J.A.: But it is a factor of very great weight.] The astuteness of counsel should not be the test. The Court of Appeal’s reluctance to grant a new trial is conditional upon its being satisfied that the real issues were clearly put to the jury: Burman v. Ottawa Electric R.W. Co. (1910), 21 O.L.R. 446. The verdict will be set aside, and a new trial will be ordered, if the Court is satisfied that there has been a miscarriage of justice because the real issue was not put to the jury: Jones v. Spencer (1897), 77 L.T. 536. [F.G. MACKAY J.A.: Is that so even if the Court is of the opinion that the jury could not have come to any other conclusion on the evidence?] Yes. [AYLESWORTH J.A.: The cases seem to lay it down that the appellate Court considers the matter in stages: (1) Were the facts so put to the jury that the real issue was before their minds? (2) If not, is it clear that if they had been so put the jury would have reached the same conclusion?] It is the duty of the trial judge to see that the jury have a complete comprehension of the real issue of fact, and of the law: Spencer v. The Alsaka Packers Association (1904), 35 S.C.R. 362. A new trial may be ordered where the real issue was not put to the jury, even if it is not certain that they would have adopted the appellant’s view of the facts if the issue had been properly put to them: Hadley v. Carolis (1922), 22 O.W.N. 72. There is nothing said in the authorities in this connection about the failure to object at trial. Here I submit the real issue was not put to the jury at all; nowhere did the trial judge tell them of the duty of a motorist to look and see what there is to be seen. The trial judge misdirected the jury as to the standard to be applied in determining whether the defendant had been negligent, by telling them to put themselves in the driver’s seat of his car and ask themselves whether they would have done anything different from what he did.
The trial judge failed to relate the facts in evidence to the law as he gave it to the jury. [AYLESWORTH J.A.: He charged the jury strongly as to the burden of proof on a driver, and he reviewed the evidence of the driver’s actions, the evidence of the independent driver, and the evidence of the infant plaintiff.] [LAIDLAW J.A.: It would cause great confusion if this Court decided, as a matter of law, that where the onus is on the defendant the trial judge must direct the jury’s attention to particular matters that might or might not constitute negligence on his part. The jury have only to decide whether the defendant has satisfied them that he was not at fault.] To tell the jury that the driver must absolve himself of negligence, and not tell them what might constitute negligence in the facts of the case, is not putting the issue properly before them. The onus is of no assistance to a plaintiff unless the jury are instructed as to the manner in which the defendant can absolve himself. If there is misdirection in this respect it must result in a miscarriage of justice. R.D. Humphreys, Q.C., for the defendant, respondent: The trial judge’s charge was extremely favourable to the plaintiffs’ case. He stressed throughout the heavy onus on the defendant. In an “onus” case the jury can find merely that the defendant has not satisfied the onus, without specifically finding any particular form of negligence. To enumerate, in the charge to the jury, everything that might appear to them to be negligence would be an impossible task.
It was before the jury, both in the evidence and from the addresses of counsel, that the issue was whether the defendant driver had been guilty of any fault whatever. No objection was made by the plaintiffs’ counsel to the charge. The onus on the defendant is broad and heavy. Surely the appellants cannot pick out some little thing, already covered both generally and specifically, and say that it was not properly put to the jury. The trial judge repeatedly spoke of the heavy onus on the defendant.
As to his direction to the jury to put themselves in the driver’s seat, it would have been proper if he had said: “Ask yourselves, as reasonable men, what you would have done in the circumstances.”] [LAIDLAW J.A.: That is directly against the rule that should be applied here.] [AYLESWORTH J.A.: The trial judge repeated the test proposed by him, thus emphasizing it strongly.] He set out the standard of care in several places in his charge. [AYLESWORTH J.A.: But where he invites the jury more than once in his charge to put themselves in the driver’s seat, is that not the test that will remain uppermost in their minds?] The misdirection, if it was one, was corrected, and the jury could not have been misled. [LAIDLAW J.A.: The test is an objective one, what a reasonable prudent man would do in the circumstances.] Misdirection per se is not a ground on which a new trial will be ordered. It must appear that there has been a substantial wrong, and the verdict is to be considered with the whole charge and evidence: McNeil v. Fingard,  O.R. 396,  3 D.L.R. 389. It cannot be said that the jury could not reasonably have arrived at the same verdict if there had been no misdirection. C.L. Dubin, Q.C., in reply. Cur. adv. vult. 18th January 1955. The judgment of the Court was delivered by
LAIDLAW J.A.:– The plaintiffs appeal from a judgment of Kelly J. dated the 29th October 1953 after trial with a jury. The action was dismissed with costs after a finding that the defendant had satisfied the jury that the loss or damage suffered by the plaintiffs was not caused or contributed to by any negligence or improper conduct on the part of the defendant as owner and driver of a motor vehicle that hit the infant plaintiff while he was on a highway.
The appellants ask that the judgment at trial be reversed and that the respondent be held wholly, or at least partly, responsible for the loss and damage suffered by the appellants, or, in the alternative, for a new trial.
The grounds of appeal presented by counsel in argument are:
(1) The learned trial judge did not define to the jury the essential issues of fact upon which the liability of the respondent depends.
(2) The learned trial judge improperly instructed the jury to measure the conduct of the respondent by putting themselves in the driver’s seat of the respondent’s car.
(3) A jury acting judically and properly instructed could not find that the respondent had satisfied the onus of proof resting upon him.
The facts are short. On 15th January 1952, at about 8.25 a.m., the respondent was driving his motor car in a westerly direction on a highway about two miles west of the town of Uxbridge, and struck Robert Arland, aged about nine years, who was walking on the highway. The weather was foggy; the visibility was poor; the pavement was wet and, at the place of the accident, the respondent was driving on a down grade. The learned trial judge charged the jury properly that the onus of proof that the loss or damage sustained by the appellants did not arise through the negligence or improper conduct of the respondent, rested upon the respondent. He defined the meaning in law of negligence and referred the jury particularly to the plan (ex. 1) showing the highway for a distance east and west of the place where the infant appellant was struck, and also the profile of that section of the highway. He explained the manner of reading the plan and profile to determine the view available under normal conditions to a motorist travelling in a westerly direction before reaching the place of the accident. He directed the attention of the jury to the weather conditions and said, in part: “It is for you to say what the conditions were on this day. Some say it was misty, you could see some distance. One witness said that when patches of fog closed in he could not see 60 feet…. However, I am not going to try to decipher that evidence. Counsel dealt with it with you.” Later in his charge he said: “Now there is nothing in the Act [The Highway Traffic Act, R.S.O. 1950, c. 167] dealing with fog. I think the law has been well established in other cases that a driver who drives his car must drive having the vehicle under control, full control, within the limit of his visibility.”
It must not be assumed that I agree with the statement of law contained in the sentence of the charge last quoted, but I reproduce it for the purpose of indicating that in it, and elsewhere in the charge, the learned judge emphasized, and perhaps enlarged, the duty and responsibility of the respondent. Indeed, it is my impression, after reading and rereading the charge, that the way in which the case was left to the jury was not unfavourable to the appellants. The objection, however, is that the learned judge ought to have stated clearly the issues of fact and the essential questions which the jury had to consider and answer in determining whether or not they were satisfied that there was no negligence or improper conduct on the part of the respondent. It is not suggested that there is any evidence of negligence or improper conduct on his part after he saw the infant appellant on the highway, or that his brakes or other equipment on his motor vehicle were defective.
Counsel for the appellants argues that the learned judge should have pointed out explicitly that the two questions for the consideration of the jury were: First, did the respondent see the infant appellant on the highway as soon as he ought to have seen him? And, second, was the respondent driving at an excessive speed when he saw, or ought to have seen, the infant appellant on the highway? I do not say that it would not have been more satisfactory if the learned judge had put those questions plainly before the jury. Indeed, I think it would have been better if he had done so. Nevertheless, the case is one in which the issues of fact are so simple and the particular questions which counsel says should have been stated expressly to the jury are so evident and arose so plainly and logically in the case that I am not prepared to state that there was non-direction in the charge by reason of the omission to which objection is now taken by counsel. Moreover, it is important to observe that counsel for the appellants at trial did not take objection to the charge in respect of the point now raised by counsel on appeal to this Court, nor is the objection set forth in the notice of appeal as a ground of appeal. Therefore, it may be concluded fairly that counsel did not regard the point as of sufficient consequence to require an objection to the charge in respect of it or as of sufficient merit to make it a ground of appeal. It may be further concluded that counsel at trial was satisfied that the jury had a proper understanding of the issues of fact to be determined by them.
While the failure of counsel at trial to make an objection to a charge to the jury does not in every case preclude counsel on appeal from raising the objection, it should be made plain once again that the omission of counsel at trial to make an objection to the charge must not be regarded lightly, but, on the contrary, in such a case when counsel seeks to raise the objection as a ground of appeal, a new trial cannot be granted as a matter of right, but only as a matter of discretion. A new trial should not be granted unless the Court is fully satisfied that it is necessary in the interests of justice.
In Barthe v. Huard (1909), 42 S.C.R. 406 at 410, Davies J. pointed out “the imperative necessity of Courts of Appeal insisting, when asked to grant new trials as a matter of right, that only objections to particular statements made by the judge in his charge to the jury will be considered or given effect to when it is shewn that objection has been taken to them at a time when their misleading character can be corrected before the jury.”
In Adams v. Windsor Truck and Storage Co. (1920), 48 O.L.R. 446, 57 D.L.R. 317, Masten J. said: ” … no objection was taken at the trial to the charge of the learned trial Judge; no such objection was set out in the notice of appeal, as required by Rule 493 …”. He then referred to the judgment of Lord Birkenhead L.C. in Wilson et al. v. United Counties Bank, Limited et al.,  A.C. 102, and quoted the language of the Lord Chancellor in that case at p. 106 as follows: “I think it necessary to point out that, unless circumstances are wholly exceptional, appellants must be strictly held to the grounds of appeal which they think proper to set forth in the formal documents which are demanded from them. The object of indicating in detail the grounds of appeal, both to the Court of Appeal and to your Lordships’ House, is that the respondent parties may be accurately and precisely informed of the case which they have to meet. Their efforts are naturally directed to the contentions which are put forward by the appellants. They are entitled to treat as abandoned contentions which are not set forth. If in exceptional cases parties desire to add new grounds to those of which they have given notice, it will usually be convenient, by a substantive application, to apply to the indulgence of the Court which is to hear the appeal. In the present case, both in the Court of Appeal and before your Lordships, entirely new contentions have been submitted on behalf of the defendants. The practice is extremely inconvenient and ought in my judgment to be discouraged in every possible way.”
That rule was acted on in Lowry v. Robins (1919), 45 O.L.R. 84, referred to in Adams v. Windsor Truck and Storage Co., supra. I refer also to Rex v. Armstrong,  O.W.N. 24 at 26, 59 C.C.C. 172.
In Thompson v. Fraser Companies, Limited,  S.C.R. 109,  3 D.L.R. 778, it was held (I quote from the headnote): “A party should not be granted a new trial on the ground of non-direction in the trial judge’s charge to the jury, where having opportunity to do so, he did not ask the judge to give the direction the omission of which he complains of.” In that case Newcombe J. quoted the words of Lord Halsbury L.C., in Nevill v. The Fine Art and General Insurance Company, Limited,  A.C. 68 at 76, and which I reproduce in part as follows: “… where you are complaining of non- direction of the judge, or that he did not leave a question to the jury, if you had an opportunity of asking him to do it and you abstained from asking for it, no Court would ever have granted you a new trial; for the obvious reason that if you thought you had got enough you were not allowed to stand aside and let all expense be incurred and a new trial ordered simply because of your own neglect.”
It is opportune, perhaps, to direct attention to the general principles applicable to the matter of granting a new trial and to repeat the views expressed by Meredith J.A. in Brenner v. The Toronto Railway (1907), 15 O.L.R. 195 at 201, 8 C.R.C. 100, affirmed 40 S.C.R. 540, 8 C.R.C. 108: “It would be a thing  very much to be regretted, if any of the Courts should drop into a loose practice of granting new trials. One trial should, generally speaking, be quite enough: and no encouragement should be given to any sort of loose manner of conducting a trial, by any of the parties to it, upon the notion, that anyway, if they are only careless enough, they can get another trial. The cost of a wasted trial is a serious matter: the injustice of giving a party a second chance, expect for very substantial reasons, is manifest.”
In Caswell v. Toronto R.W. Co. (1911), 24 O.L.R. 339 at 350-1, Meredith J.A. said: “A new trial is a hardship under any circumstances; and when granted upon insufficient grounds is a very grave injustice; to take away from any one that which has been fairly won, and to subject him to the delay and cost, and the mental and physical strain, of another trial, as well as to the uncertainty of its outcome, is something which fairly may be thought intolerable. New trials are, of course, occasionally necessary in order that justice may be done between the parties, but they are contrary to the public interests, and may fairly be described as necessary evils, when necessary ….
“A strong case must, therefore, be presented before a new trial can properly be directed; so strong that even in some cases, where an injustice has been done to one of the parties at the trial a new trial is not granted unless the error was pointedly objected to at the time; and, all through the practice upon applications for new trials, the like reluctance in granting new trials is everywhere evident.
” … and sometimes, the Court, exercising a discretion of its own, grants a new trial, but seldom, and only when the interests of justice plainly require it.”
The above passage is quoted in Kralj v. Murray,  O.W.N. 58 at 60,  1 D.L.R. 781.
In accordance with the natural and proper reluctance of the Court to grant a new trial, and with the public interest, the Legislature of this Province has declared that a new trial shall not be granted except in certian cases. Section 28(1) of The Judicature Act, R.S.O. 1950, c. 190, provides: “A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to the jury, or by reason of any omission or irregularity in the course of the trial, unless some substantial wrong or miscarriage has been thereby occasioned.”
In Storry v. C.N.R.,  4 D.L.R. 169 at 174, 53 C.R.T.C. 71, Robertson C.J.O. said in part: “In a criminal case … the appeal … is to be allowed unless the Court is ‘of opinion that no substantial wrong or miscarriage of justice has actually occurred’ (s. 1014(2) of the Criminal Code). In a civil case the provision is that a new trial shall not be granted on the ground of misdirection ‘unless some substantial wrong or miscarriage has been thereby occasioned’ …. The burden is on the respondent in the one case of showing that there was no substantial wrong or miscarriage of justice, while in the other case the burden is on the appellant of showing that there was some substantial wrong or miscarriage of justice.”
This opinion is in direct conflict with that expressed by Meredith C.J.C.P. in Gage v. Reid (1917), 38 O.L.R. 514, 34 D.L.R. 46, which does not appear to have been referred to in Storry v. C.N.R. It is also in conflict with the opinions in Anthony v. Halstead (1877), 37 L.T. 433, and White v. Barnes,  W.N. 74. I refer also to Temple v. Ottawa Drug Company Limited et al.,  O.W.N. 295. In the latter case I expressed the view that “an appellant who seeks a new trial on the ground of misdirection must at least establish a doubt in the mind of the Court as to whether the misdirection occasioned a substantial wrong or miscarriage.” I did not decide whether or not the onus rested on the appellant to show that such a result actually occurred. Likewise, in the instant case, I find it unnecessary to determine that question. It must presently remain as one in which there is a conflict of opinion in the Courts of this Province.
I extract from the cases to which I have referred these general propositions:
(1) A new trial is contrary to the interest of the public and should not be ordered unless the interests of justice plainly require that to be done.
(2) An appellant cannot ask for a new trial as a matter of right on a ground of misdirection or other error in the course of the trial when no objection was made in respect of the matter at trial. (3) A new trial cannot be granted because of misdirection or other error in the course of the trial unless some substantial wrong or miscarriage has been thereby occasioned”.
(4) A party should not be granted a new trial on the ground of non-direction in the judge’s charge to the jury where, having opportunity to do so, he did not ask the judge to give the direction the omission of which he complains of.
I may add to that summary a statement that when a new trial is asked on the ground of misdirection or other error described in s. 28(1) of The Judicature Act, there is a conflict of opinion as to whether or not the onus of proof that substantial wrong or miscarriage of justice was occasioned thereby rests on the appellant.
In the instant case, the first ground of appeal fails because I am not satisfied that, in the particular circumstances, there was non-direction; because there was no objection taken by counsel in respect of the alleged non-direction; because the alleged non-direction was not set forth as a ground of appeal in the notice of appeal, and because, in any event, I am of the opinion that no substantial wrong or miscarriage of justice has been occasioned to the appellants.
The second ground of appeal arises from the following passage, in particular, in the charge to the jury: “First of all you will consider his [the respondent’s] negligence. I suggest that you put yourself in the driver’s seat of his car. After you have determined the weather and the conditions that existed, ask yourself– ‘Would I have done that? Was that reasonable for him to do? What precautions would I have taken that he did not? Would I have gone over that hill at the same speed that he did? Would I have reduced my speed?’, especially if you decided that as he approached he could not have seen over that hill”. I extract another passage of the charge in which the learned judge said: “… having put yourself in the driver’s seat and asked yourself whether he satisfied you under the circumstances, then we go on to the next question….” The learned trial judge told the jury in more than one part of his charge then ten of them “set the standard of what is reasonable under a given set of circumstances”.
The learned trial judge was in error in those instructions to the jury, and this manner of leaving the case to the jury was the subject of disapproval in Kralj v. Murray, supra. The standard of care by which a jury is to judge the conduct of parties in a case of the kind under consideration is the care that would have been taken in the circumstances by “a reasonable and prudent man”. I shall not attempt to formulate a comprehensive definition of “a reasonable man” of whom we speak so fequently in negligence cases. I simply say he is a mythical creature of the law whose conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time. He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard “adopted in the community by persons of ordinary intelligence and prudence.” See Blyth v. Birmingham Waterworks Co. (1856), 11 Exch. 781, 156 E.R. 1047, and Mazengarb, Negligence on the Highway, 2nd ed. 1952, p. 15.
In Glasgow Corporation v. Muir et al.,  A.C. 448,  2 All E.R. 414, Lord Macmillan at p. 457 said: “The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independant of the idiosyncracies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over- apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left the the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen. Here there is room for diversity of view … What to one judge may seem far-fetched may seem to another both natural and probable.” In Mazengarb, op. cit., p. 18, the learned author says: “In fixing responsibility, the law has adopted an external standard of care. It realizes that care is a matter of degree, and therefore it has set a standard which is neither too high nor too low. It seeks safety without at the same time unduly hampering transport and transit. It does not require the highest degree of care of which mankind is capable.” And I quote further from p. 20: “The legal standard of care always remains the same in the sense that it is what a reasonably prudent man would have done in like circumstances. But although this legal standard is fixed and immutable, the factual standard changes from time to time and from place to place.” It will be plain from the statements I have quoted that it is improper for a juryman to jduge the conduct of a person in given circumstances by considering, after the event, what he would or would not have done in the circumstances.
In Eyres v. Gillis & Warren Limited et al., 48 Man. R. 164 at 170,  3 W.W.R. 390,  4 D.L.R. 747, Trueman J.A., delivering the unanimous judgment of the Court of Appeal of Manitoba, referred to the definition of negligence as given by Baron Alderson in Blyth v. Birmingham Waterworks Co., supra, and then said: “In determining the standard of duty so definded a Judge must not interpose himself, for, the accident having happened, his point of view may be warped by extraneous or subjective considerations, however much he may think he is free from bias. It is for this reason that a jury must not be instructed by the Judge or counsel to put themselves in the place of a defendant in a negligence action when called upon to pronounce upon his conduct.”
That view was expressly concurred in by this Court, differently constituted, in Kralj v. Murray, supra. I concur in the views expressed in Eyres v. Gillis & Warren Limited et al., supra, and in Kralj v. Murray, supra, and express my opinion that the portion of the charge to which objection is taken in the instant case is misdirection in law. Nevertheless, there was no objection taken at trial in respect of it, nor was the matter raised in the notice of appeal as a ground of appeal to this Court. I am of the opinion that there was no substantial wrong occasioned by this misdirection in the particular circumstances of this case, and therefore this ground of appeal fails. I think that it was open to the jury, acting judiciously and upon the charge to them by the learned trial judge, to find that the respondent had satisfied the onus of proof resting upon him. There is no reason to interfere with this finding of the jury.
My conclusion is that this appeal fails on all grounds and must accordingly be dismissed with costs.
Appeal dismissed with costs.
Solicitor for the plaintiffs, appellants: Arthur W.S. Greer, Oshawa.
Solicitors for the defendant, respondent: Humphreys & Boychyn, Oshawa.