decision, an appeal shall lie to the Supreme Court of Canada from the judgment or decision on any question of law or of fact of the judges who tried the petition.
The judgment of the court was delivered orally by the Chief Justice, at the conclusion of the argument, as follows:
" We are all of the opinion that there is no jurisdiction to entertain this appeal. The motion to quash is granted with costs."
Appeal quashed. OLE SIGERSETH, AS ADMINISTRATOR
OF
*Feb 9.
THE
ESTATE
OF
MATIAS
SIGERSETH,
APPELLANT; *Mar. 8.
DECEASED (DEFENDANT)
................
AND
ERLING PEDERSON (PLAINTIFF) .......
RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN Negligence-Master and servant-Injury to farm employee in employer's dwelling-Defective conditions alleged as cause-Alleged negligence of employer-Reasonable efforts by employer to remedy condition- Error of judgment as to cause of trouble-Acceptance by employee of risk.
Plaintiff was employed by S. as a farm labourer. They lived together in a shack on S.'s farm. It was heated by a stove, which gave trouble by smoking, which assisted by plaintiff, tried to remedy. One afternoon plaintiff, feeling ill, went to bed, S. sitting up to look after the stove. Plaintiff awoke two days later with his feet frozen. S. was found dead on the floor. The cause of his death was matter of conjecture.
The fire in the stove had burned out. Plaintiff claimed damages from S.'s estate.
Held, plaintiff could not recover; S. did all a reasonable man would have done to render the shack safe; assuming that S. committed an error of judgment in thinking (as apparently plaintiff thought also) that the cause of the trouble was in the stove (which S. proposed to replace by a new one as soon as weather permitted) and in not suspecting it to be in the " roof-jack " (serving as a chimney), such an error C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.