Canadian National Rys. v. Lepage

de se pourvoir devant la Cour Supreme contre les cons6quences de ce jugement, qui aurait autrement constitu6 chose jug6e et l'aurait empich6e, au besoin, de faire valoir ses moyens sur la contestation du rapport de distribution Sherbrooke.

Son appel devant cette cour 6tait done justifi6 et lui donne droit A ses frais contre Vachon, qui est venu ici d~fendre le jugement de la Cour du Bane du Roi. Chaque partie cependant paiera ses frais, dans cette contestation, devant les autres cours. A la Cour Sup6rieure, la cause quant A Vachon s'est instruite ex parte; et le jugement de la Cour du Banc du Roi a !maintenu son appel, mais pour un motif que nous trouvons mal fond&. Nous ferons done droit A l'appel 6galement sur la contestation avec Vachon et le jugement attaqu6 sera infirm6 avec d6pens de l'appel devant cette cour. Mais le jugement de la Cour Sup6rieure, dans ce cas, devra 6tre modifi6. La d6claration qui a trait h 1'hypothbque de Vachon en sera retranch6e et il sera simplement d6cid6 que l'appelante n'avait pas d'intirit dans la pr6sente action A prendre ses conclusions sur ce point contre Vachon, tous ses droits sur la contestation du rapport de distribution A Sherbrooke 6tant sauvegard6s.

RINFRET J.-Some few minutes after nine o'clock in the evening the respondent's husband, Alphonse Talbot, was in the waiting-room of the station owned by the appellant (1) (1927) Q.R. 43 K.B. 342.

railway company, at Mont Joli. Although the train he intended to take was due only at 11.50 p.m., it is not disputed that Talbot stayed where he was with the acquiescence of the company.

The waiting-room had four doors: one leading to, or from, the platform on the track side; a second to the office of the station-master, from which, as usual, tickets were sold through the wicket; a third bore on a metal sign fastened to it the inscription in large yellow letters: " Water Closet " -" Chambre de toilette "; and the fourth, unmarked, was at the rear to the right hand of one entering the waitingroom from the station platform. This latter door opened inwards and gave access to a landing place at the head of the stairs leading to the cellar, which stairs descended at right angles to the doorway. In stepping on the landing, one found a blank wall in front of him; so that, in order to descend the steps, he had first to turn to his right and then go down. The top landing was thus encased on three sides by the walls of the building and the door, with a floor space of 3 feet 10 inches wide between the latter and the wall opposite and extending on the stair side (as the evidence shows) from one to two feet beyond the door. There was nothing unusual about these stairs. They were just ordinary stairs (comme un autre escalier). It was suggested that two employees had already fallen when descending, but no proof was made of the actual occurrences, far less of the surrounding circumstances, and no conclusions can be derived -therefrom relevant to the present action.

The station-master tells us the use to which the cellar was put:- None but employees of the company had any business in the cellar and it was common ground that the door leading to it was not intended to be used by the public. Po the last three years it had been the habit to leave it unlocked, and it was so on the night in question.

Talbot had been sitting in the waiting-room for some time, on a seat facing the toilet-room, his travelling bag beside him. He was seen to get up (although he left his bag by the seat), to walk towards the rear, to open the ' door leading to the cellar stair-case and to pass through it. Then he was heard to fall to the floor below. Those who had been in the waiting-room at once went down to the cellar, where he was found lying unconscious. He died the following evening from a fracture of the skull caused by the fall.

The waiting-room was well lighted, while the landing and the stair-case were dark.

All these facts are undisputed and liability admittedly depends exclusively upon the inference to be drawn from them.

The widow and the children brought action against the company. The only charge of negligence in the declaration was:- A

The case was tried without a jury and the trial judge held that the door (which he found to be for the exclusive use of the employees) should have been locked, but had been left ajar, so that Talbot evidently believed and had reason to believe that this door was an exit or, at least, was intended to be used by the public. He thought the company had been negligent.

Three of the judges of the Court of King's Bench adopted the reasoning of the trial judge, while the two others, Dorion and Allard JJ., were of the contrary opinion and would have dismissed the action.

The respondent's case is rested on fault consisting not in any positive act or imprudence, but in the neglect of the company and its employees (art. 1053 C.C.).

The fault ascribed to the employees is their omission to keep the door locked, and to the company, its failure to indicate that ingress through that door was forbidden.

It is a familiar principle that neglect may, in law, be considered a fault only if it corresponds with a duty to act. What, then, was the duty of the company towards the deceased?

No doubt, if the door had been locked, the accident would not have happened. Such, however, is not the test, and the duty must be made out upon legal grounds. Railway companies must maintain and operate stations Rinet and provide them with accommodation and facilities for their passengers; but these stations are their private property, and it is necessary and proper that the companies should operate them also for their own convenience and the carrying out of their work and duties. A waiting-room is, of course, one of the facilities expected in a railway station, and an intending passenger is entitled to the use of it. In some stations, but not by any means in all of them in the country districts, a toilet-room connecting with the waiting-room is also provided. This was the case at Mont Joli. Usually several doors open into or lead out of the waiting-room.

The public may not assume that access is allowed through all these doors. The company must have rooms and offices for the exclusive use of its employees and the efficient conduct of its business. These rooms and offices may, and often must, open on to the waiting-room.

We know of no reason why the company should expect intending passengers to be likely to open these doors or why the passengers should believe that they are entitled to do so. Generally speaking, -and in the absence of some sign or indication from the lay-out, a door leading out of a public room is in itself a warning that access beyond it may be restricted.

Passengers at the Mont Joli station were shown by appropriate notices what doors were intended for their convenience and accommodation. The absence of any notice on the door in question should at least have put the deceased upon inquiry whether he should attempt to open it and (more particularly) to proceed further into a place where he had no business. The question for Talbot was not whether there was anything to indicate to him that he should not use the door and stair-way, but rather whether there was anything to indicate to him that he might do so. There may be peculiar circumstances where leaving a door ajar (" entr'ouverte ") is an invitation to enter. More often it is as indiscreet to S.C.R.

open a door wider, when it is almost closed, as it would be, were it completely closed, to open it at all. Moreover, that, on the night in question, this particular door was ajar is not established. The only evidence upon the point is that of one Lebrun, who says:- We cannot, as a general principle, accept the proposition that, in the waiting-room of a railway station, where the doors intended for public use are indicated, failure to put on the other doors notices that ingress through them is forbidden is negligence.

It was argued, however, that the duty of the appellant was to guard against any mistake which a man might naturally make. Evidence was offered that, to the knowledge of at least one of the employees of the company, there were instances where people had walked to the door and opened it, apparently in the mistaken belief that it led to the toilet-room. That is the strongest point made in support of the respondent's case and was, no doubt, the reason which induced the trial judge to hold

The argument is fortified by the fact that this was also the view taken by three judges of the Court of King's Bench. The consequence, it is said, must follow that, in order to guard against this possible mistake, the company should have kept the door locked.

A duty such as this could perhaps be cast upon the company if, beyond the door, a condition of unusual danger was to be found, as, for example, a hole, a precipice, an open trap-door.

But such things differ toto coelo from this staircase. The basis of a charge of negligence in omitting to lock the door is lacking. There was no duty owing to the deceased to keep it locked.

Counsel have not brought to our attention any decision, under the law of Quebec or of France, applicable to this case. The general principle is laid down in Sourdat, De la Responsabilitg, 6e 6d., vol. 1, no. 661. But the case bears a strong resemblance to Toomey v. London and Brighton Railway Co. (1), which, although decided under the English law, may be usefully cited as an illustration. On the platform of a railway station, there were two doors in close proximity to each other. One had painted over it the words: " For gentlemen " and the other: " Lamp.-room." The plaintiff, being unable to read, inquired from a stranger where he would find the urinal. Having received a direction, he by mistake opened the door to the lamp-room, fell Rinfret J. down some steps and was injured. Upon action being brought, the ground taken was that the door should have been kept locked. The plaintiff was non-suited by the trial judge, who said that, in the absence of evidence that the place was more than ordinarily dangerous, no negligence could be found on the part of the company. This judgment was affirmed by the Court of Common Pleas. But, should we have regarded the failure to keep the door locked as something amounting to legal negligence in the premises, the respondent, in our view, would still fall short of proving that the unfortunate accident was due to this omission. The cause of the accident was Talbot's own want of caution in proceeding beyond the door in the dark and in a strange place. In the previous instances told about in the evidence, where strangers opened this door by mistake, they perceived the imprudence of advancing and they went no further. In the words of one of the witnesses:- We have there a vivid illustration of what a careful and reasonable person would do under these circumstances and what Talbot should have done. Unfortunately, he chose to run the risk of going ahead in the dark and through his own carelessness in so doing he fell down the stairs. The judgment of the Court of Appeal proceeds largely upon a discussion of the judgment of this court in Knight v. Grand Trunk Pacific Ry. Co. (1), and the case of Walker v. Midland Ry. Co. (2), which are the only cases referred to in the reasons of the judges.

Knight v. G.T.P. Ry. (1) was a case from the province of Alberta and, although the circumstances were somewhat different, many of the principles there laid down are familiar rules of the civil law applicable here.

As for Walker v. Midland Ry. Co. (2), we are forcibly reminded of the words of the Earl of Selborne (with whom S.C.R.

Lord Bramwell and Lord Watson concurred) in his speech before the House of Lords. They seem peculiarly apposite and no exception can be taken to them in a case which must be decided upon the law of Quebec. The facts were these:

A guest in an inn, the property of the respondent company, left his bedroom in the middle of the night to J go to a water-closet. There were properly lighted and easily accesible closets in the same corridor, but he went into a dark " service-room," the door of which was shut, but not locked, and fell down the unguarded well of a lift at the end of the room and was killed.

The " serviceroom " was not lighted or used at night and boarders had no business there at any time. In an action brought by the personal representatives of the deceased, the House of Lords, affirming the judgment of the court below, held that there was no evidence of negligence on the part of the defendant company to go to a jury. After having stated the facts and pointed out the particular circumstances, Lord Selborne said:- The appeal should, therefore, be allowed and the action dismissed. The appellant is entitled to its costs throughout if it elects to claim them.

C. V. Darveau.