Civil Procedure-Inadequate consideration of an issue by trial court
Negligence=-Contributory negligence-Last opportunity rule
Tort-Vicarious liability-Party primarily liable

When a servant drives negligently and there is a collision, he should
not be dismissed from the action simply because there is an owner of the
car who is vicariously liable. The servant is the party primarily liable.

When a driver is negligent and there is a collision this does not end
the case; there must be consideration of whether the other party had the
last opportunity to avoid the accident and was. therefore contributorily neg-
ligent. A bare statement by the court below that there was no cdntribu-
tory negligence is insufficient if the' circumstances show a likelihood of con-
tributory negligence.

Revision

February 20, 1930. The court below framed three issues:
1. Was there negligence in the driving of defendant's car?
* Court: Bell c.r. and Owen

2. If so, is the first or second defendant liable?

3. What is the amount of damages?

On the first issue the court found that there was negligence, and
on the second issue that the first defendant was liable on the ground
that the relationship between the defendants was that of master and
servant. These are findings of fact and there was evidence upon
which the court could come to the decision that it did. I see no
sufficient grounds for interfering with these findings, but two com-
ments are desirable.

In the judgement it is stated that the plaintiff had the right of
the road. What is the right referred to I do not know, but pre-
sumably the words are not meant to mean that the person driving
along the main road is entitled to do so careless of the rights of other
drivers coming from the side roads.

Secondly, I do not understand why the second defendant, the
driver, was dismissed from the action. He is the person primarily
liable, if either defendant is liable, even though the first defendant
may be himself also liable.

But the finding that there was negligence in the driving of
defendant's car does not finish the case. There remains the question .
whether, notwithstanding the negligence of the driver of the defend-
ant's car, the driver of the plaintiff's car could by exercising ordinary
care have avoided the accident. In other words was there contributory
negligence?

The test to be applied is whether the defendant's negligence was
the real direct and effective cause of the accident. Where the acts
of negligence are not contemporaneous this test in general results in
throwing the responsibility on that party who last had an opportunity
of avoiding, by the exercise of ordinary skill or care, the effect of the
negligence of the other and who failed to do so.

It is true that the judgement refers to the question of contributory
negligence and says that there was none. But in my opinion this
issue has not been adequately gone into. No specific issue was
framed as it ought to have been.

The case must therefore be sent back for the trial of the issue
of whether there was contributory negligence on the part of the