1 February 2009
Court Rules Against CPR
A Southwestern Ontario man who lost both arms and a leg after
driving his motorcycle into a moving train has won a second court battle in an unusual case against the Canadian Pacific Railway.
Ontario's highest court has rejected the railway's claim a trial judge erred in awarding Jason Zsoldos of Newbury $3.5 million in
damages.
The ruling was greeted with cautious relief by Zsoldos and his legal team at Siskinds in London. "I'm very happy the courts are
seeing things from a common sense point of view," Zsoldos, 35, said. "I'm not getting my hopes up until we are done."
Lawyer Jim Mays expects the railway will seek leave to appeal the latest decision, just as it did for the first.
"This could be the second-last chapter," Mays said.
But, he added, "We're very happy that three experienced and learned judges of the Ontario Court of Appeal reviewed and agreed
with the analysis of the trial judge in this case."
Zsoldos was driving home on his motorcycle about 9:15 p.m. 26 Aug 1994 when he collided with a dark, 58-car
freight train running through an unlit crossing with no warning lights or signal gates.
He was dragged under the train and tossed onto the other side of the tracks. He might have died there, had a motorist who slowed for
the train not heard his moans through an open car window.
Faced with a life of pain, limitations, and rehabilitation, Zsoldos has fought back, regaining his licence, buying a
specially-equipped pickup truck, and delivering RVs for a living. He also sued the CPR.
At a trial in 2006, Mays argued the unlit crossing, lack of reflective tape on the cars, and acute angle of the tracks as they cross
the road made it impossible for Zsoldos to see the unlit freight cars.
The railway's lawyers argued the accident was largely Zsoldos's fault, saying he'd been drinking and was driving too fast.
Justice Helen Rady ruled the railway was 75 percent responsible and Zsoldos 25 percent responsible.
The railway failed to carry out any inspections of the crossing at night to determine if there was adequate protection for motorists,
she said.
"The accident would have occurred whether Mr. Zsoldos was impaired or not, given CP's failure to take reasonable care to protect
motorists approaching this crossing."
The court ruling supporting her decision was released last week.The railway has 60 days to seek leave to appeal to the Supreme Court
of Canada.
|
