SIR W. J. RITCHIE C.J.-In this case there having been no evidence of either the street or the sidewalk being out of repair, on the contrary, the evidence showing that the sidewalk was in a good state of repair, I think the mere fact of the sidewalk at the street crossing being four inches or less higher than the crossing was no such evidence of neglect or violation of the legal duty on the defendant's part as was proper to be submitted to the jury. To hold that such a liability was intended to be imposed by the legislature on municipal bodies would be most unreasonable and would practically burden municipalities to an extent that could never have been contemplated by the legislature.
Unless we are prepared to hold, which I am not, that municipal bodies are bound by law to make the street crossings meet the sidewalks on the level, and that they are liable if the side-walk rises on the perpendicular four inches or less above the crossing at the point contact, I cannot see how the plaintiff can recover.
While not desiring to relieve municipalities from the duties and responsibilities fairly cast upon them I think we should be careful not to subject them to an action for negligence because, as Chief Justice Wilson says, the edge of the sidewalk happens to be four inches higher than the crossing at the point of contact.
think the appeal should be allowed.
and JJ. were of opinion that the appeal should be dismissed.
J.-I would allow this appeal, and order a non-suit to be entered.
I cannot see that any actionable wrong has been proved against this corporation.
The street itself and the sidewalk -were in a perfect state of repair. That the sidewalk was from two to four inches higher than the street is the only ground of this action.
I agree with the remarks made by the Chief Justice of Ontario and Mr. Justice Burton in the Court of Appeal.
GWYNNE J.-I entirely concur with the judgments in this case of Sir Adam Wilson, late Chief Justice of the Queen's Bench Division, and of the Chief Justice of Ontario and of Mr. Justice Burton in the Court Appeal of Ontario, that the fact of a sidewalk in the city of London being four inches above the level the roadway was no evidence proper to be submitted to a jury of neglect by the corporation of any legal duty so as to make them responsible therefor, either in a criminal prosecution or a civil action, and that the plaintiff, therefore, in this case, should have been non-suited. The appeal should be allowed with costs, and a rule for judgment of non-suit be ordered to be issued in the court below.
Appeal allowed with costs.