On August 26, 1994, at about 9:15 p.m., the Plaintiff , Jason Zsoldos, was riding his motorcycle home when he collided with a Canadian Pacific (Defendant) freight train. While the Plaintiff has no memory of the collision, it is apparent that he did not see or hear the cars of the train until it was too late to avoid a collision. He slid under the train and as a result lost both arms and a leg. At the trial, the only issue was liability. The trial judge found the Appellants Defendant and Gordon Gosnell, the engineer, 75% negligent and assessed the Plaintiff's contributory negligence at 25 % by analogy to when an injured party had failed to wear a seat belt.
The Plaintiff was 22 years old at the time of the collision. He lived with his family in a rural area near the village of Bothwell in Lambton County, Ontario, about 62 yards from the Defendant rail line. He was quite familiar with the line, since he crossed it daily during the day and at night where it crossed McCready Road, a north-south gravel road. McCready Road is straight and flat with farm fields along it. There was a maturing cornfield on the east side of the road and another unknown crop on the west side. The speed limit on McCready Road is 80 kilometres per hour.[49.6 mph]. The Defendant level crossing on McCready Road is like thousands of rural crossings in Ontario and throughout Canada.
The two cross bucks mark the crossing that bear refl ectorized tape only on the front. The cross buck on the south side, the direction from which the Plaintiff was approaching, is 15 feet south of the south rail. There is also an advance warning sign 290 feet before the crossing. This sign, built by the town , alerts motorists to the upcoming railway crossing and warns motorists to reduce their speed to 20 kilometres per hour [12.4 mph] as they approach the crossing. This is a so-called "passive" system. There are no active warning systems such as lights, bells or gates to warn a motorist that a train is in the crossing. No street lights shine onto the crossing.
At the time of the collision, Defendant was running 6 to 10 trains a day on this line with 4 or 5 running at night, none on a fixed schedule. The train which the Plaintiff hit consisted of three engines and 58 freight cars. Most of the cars were of United States origin and did not have refl ectorized markings on them. The train was over a kilometre [.62 miles] long and the Plaintiff collided with the 35th car. Thus, the lead engine with its headlights and whistle had long since passed through the crossing at the time of the collision. The train had just left a siding and was only getting up to speed as it reached the crossing. The 35th car was moving at about 20-25 m.p.h. at the time.
The Plaintiff had been drinking beer with some friends before he set off for home at about 9:10 p.m. The trial judge found that the Plaintiff had a blood alcohol level just below the legal limit at the collision. He was travelling at the 80 km/hr [49.6 mph] speed limit and did not reduce his speed as he got near the crossing. The night was moonless, dark, clear and warm . The Plaintiff probably had his headlight set on high beams.
The Bothwell crossing is a typical rural crossing but its somewhat unusual feature is that the road comes up to the crossing at an acute angle of 45 degrees. That was why the sign advised ( but did not require) motorists to slow down to 20km/hr Page 202 [12.4 mph]...