Lacombe v. Power

failed to prove that her son's death was caused by actionable fault of the respondents necessary to entail their liability under article 1053 C.C.

Held, further, that before a plaintiff can invoke a presumption of fault against a defendant under art. 1054 C.C., he is obliged to establish (a) that the damage was in fact caused by the thing in question within the meaning of that article; and (b) that that thing was at the time under the care of the defendant.

The automobile on which the deceased was working was safe and harmless while in the position in which he had placed it and it became dangerous only because it either started of itself or was put in motion. If the proper inference from the evidence was that the automobile started of itself, i.e., without the intervention of human agency, and owing to something inherent in the machine, the ensuing damage might be ascribable to it as a " thing " and be within the purview of art. 1054 C.C. But if its movement was due to an act of the deceased, conscious or unconscious, the damage was caused, not by the thing itself, but by that act, whether it should be regarded as purely involuntary and accidental or as amounting to negligence or fault. On the latter hypotheses, the provision of art. 1054 C.C., invoked by the appellant, does not apply: either the case was one of pure accident, entailing no liability; or, if there be liability, it must rest on fault to be proven and not presumed.

Upon the evidence, the most likely cause of the movement of the automobile was the act of the deceased workman in pressing down the self-starter, probably inadvertently, as the car was in gear and unbraked in a place where it was dangerous to start it, and the workman must have known that fact unless he were utterly careless or indifferent as to his own safety.

Quaere whether, upon the facts in this case, the automobile was not, for the purposes of art. 1054 C.C., at the time of the accident under the care of the deceased who was an expert workman, rather than under the care of the respondents.

APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec (1), reversing the judgment of the Superior Court, D6saulniers J., and dismissing the appellant's action.

The appellant brought action to recover damages occasioned by the death of Lionel Tremblay, her son, who was killed on the 11th of May, 1925, while in the employ of the respondents. The respondents, at the time of the accident, were carrying on business as vendors of motor cars, and they maintained a garage or work shop for repairs and service. It was a rented building of four stories (counting the ground floor), and in that garage was a platform elevator or hoist at the back which was used to bring cars and materials to the various floors. On the day of the accident, (1) (1927) Q.R. 43 K.B. 198.

11928J Lionel Tremblay was working on the third floor. About one o'clock in the afternoon he brought up on the elevator from the main floor an automobile sent in for repair. The hoist stopped at the third floor and the deceased ran it off and stopped it opposite to, a few feet from and facing the elevator. The elevator continued to the fourth floor, where another employee got off and the operator lowered the hoist to the main floor where it was usually kept. The deceased then worked for over an hour upon the car; at the time of the accident he was standing with one knee on the runningboard and his body inside the car, and, while he was so employed the car suddenly started, crashed through the wooden barrier, and fell down the elevator shaft to the bottom, carrying with it the appellant's son, who was so injured in falling that he died the same day. The appellant brought an action for $4,999.99, alleging fault on the part of the respondents in the following particulars:

C.J.C.-In her declaration the appellant undoubtedly confined her claim to a cause of action based on art. 1053 C.C., alleging fault in three respects attributable to the respondents.

Here her counsel sought also to invoke the provision of art. 1054 C.C., which renders every person responsible for all damage caused " by things which he has under his care." It is not clear whether this position was taken in the Court of King's Bench, but two of the learned judges in that court base their dissent largely upon an application of art. 1054 C.C.

Before the plaintiff can invoke a presumption of fault against the defendants under art. 1054, she is obliged to establish (a) that the damage was in fact caused by the thing in question within the meaning of that article, and that that thing was at the time under the care of the defendant.

The automobile on which the deceased was working was safe and harmless while in the position in cW.o.

which he had placed it on the third floor of the defendants' garage. It became dangerous only because it either started of itself or was put in motion. If the proper inference from the evidence was that the automobile started of itself, i.e., without the intervention of human agency, and owing to something inherent in the machine, the ensuing damage might be ascribable to it as a " thing " and be within the purview of art. 1054 C.C. But if its movement was due to an act of the deceased, conscious or unconscious, the damage was caused, not by the thing itself, but by that act, whether it should be regarded as purely involuntary and accidental or as amounting to negligence or fault. On the latter hypotheses, the provision of art. 1054 C.C., invoked by the appellant, does not apply: either the case was one of pure accident, entailing no liability; or, if there be liability, it must rest on fault to be proven and not presumed. On the evidence before us, the most likely cause of the movement of the automobile was the act of the deceased workman in pressing down the self-starter-probably inadvertently, as the car was in gear and unbraked in a place where it was dangerous to start it, and the workman must have known that fact unless he were utterly careless or indifferent as to his own safety. That the car was started in any other way would seem highly improbable and may not be assumed in the absence of any evidence of facts which would warrant such an inference.

Moreover, as was pointed out during the argument, we should have to consider very carefully whether, upon the facts before us, the automobile was not, for the purposes of art. 1054 C.C., at the time of the accident under the care of the deceased, Tremblay himself, who was an expert workman, rather than under the care of the defendants. The action cannot, in our opinion, be maintained under that article.

Nor has the plaintiff established fault of the defendant which was the cause of the death of Tremblay so as to render them liable therefor under art. 1053 C.C. Assuming that the deceased was obliged to work upon the car where it was, he might have averted any danger by turning the front wheels sideways or by throwing the transmission out of gear and setting the brakes. As a skilled workman he should have realized the risk to which he was exposed in working upon the unbraked car while in gear, situated as jf it was, and he must have known that the means of avoiding such risk were entirely in his own hands. Under such circumstances the maxim volenti non fit injuria would seem to be much in point. The place was in fact dangerous only because the deceased neglected obvious precautions which would have made it quite safe.

Tremblay probably actually knew, at all events he should have seen, that the elevator was not stationed at the third floor, and that the elevator shaft was open, save for the light railing which served as a guard to prevent persons passing accidentally falling into it.

There was no duty incumbent on the defendants to guard against such an occurrence as that which actually happened. We are not prepared to impose on the proprietor of every garage such as that operated by the defendants, the duty of maintaining at each opening of an elevator shaft a barrier of sufficient strength to withstand the impact of any automobile which may be allowed to run against it. There may be circumstances under which such a duty would arise, but there is no evidence of their existence in the present case. The defendants owed no such duty to the deceased Tremblay. Had he taken the precaution either of turning the front wheels of the car away from the direction of the elevator shaft or of throwing the transmission out of gear and setting the brakes before attempting to do work upon the automobile which involved danger of his accidentally pressing the self-starter, the unfortunate occurrence which cost him his life would not have happened. If he was not " the author of his own injury," at least the plaintiff has failed to prove that his death was caused by actionable fault of the defendants necessary to entail their liability under art. 1053 C.C.

The appeal fails and must be dismissed with costs. Appeal dismissed with costs. Solicitors for the appellant: Godin, Dussault & Cadotte. Solicitors for the respondents: Laverty, Hale & Dixon. Saskatchewan (1), affirming the judgment of Taylor J. and dismissing the appellant's action on a guarantee. The appellant on May 29, 1922, entered into a written contract with one Jansen, whereby inter alia it agreed to sell to Jansen such goods as Jansen might reasonably require for sale within a prescribed area in the province of Saskatchewan. Jansen by that contract agreed to pay for such goods, and to pay carriage, freight, etc., thereon. The appellant claimed that under this contract Jansen became indebted to it in the sum of $1,545.18, and on November 25, 1922, the appellant forwarded to Jansen a new contract similar to the previous one, dated November 25, 1922, signed by it, and asking him to execute the same and obtain the signatures of two sureties thereto. This is the contract sued on by the appellant. In this contract Jansen's indebtedness to the appellant is mutually agreed between him and the appellant to be $1,545.18.

The contract is in two parts: (1) a contract with the principal Jansen; and (2) an underwritten contract with the sureties. It bore the signature of Jansen, and provided that it would expire on March 1, 1924. Some time in May, 1923, Jansen obtained the signatures of the respondents Minke' and Bort to the under written contract, which, after reciting the consideration therefor, among which is the sale and delivery by the appellant to Jansen of goods and other articles, and the extension of the time of payment of the indebtedness then due from Jansen to the appellant proceeds as follows:expressly authorize the amount of said indebtedness to be written therein, .and jointly, severally and unconditionally promise to pay for said goods and other articles, and the prepaid freight, cartage, postal, or express ANS charges thereon, at the time and place, and in the manner in said agree- :nient provided.

The effect of this was to divide the guarantee into two parts, -one a guarantee for the payment of a past due debt, the -other a guarantee for the payment of future advances. On the termination of this second contract the appellant claimed that Jansen still owed them $1,129.54 on the old indebtedness of $1,545.18, and brought this action against Jansen as the principal debtor and Minke and Bort as sureties, to recover the said $1,129.54. In other words, the action is brought on the guarantee for the payment of the past due debt.

RINFRET J.-This is a plea of non est factum.

The learned trial judge, in his reasons for judgnent, says:- I am very clear that in signing the documents these two defendants were not aware and had not called to their attention in any way the -covenant under which it is suggested that they assumed liability for the past indebtedness of Jansen, and that Jansen deceived them as to the -contents of the document which he asked them to sign.

These two ,defendants could then neither read nor write anything beyond their names. Bort has since, through the assistance of his children now growing up and at school, acquired a little proficiency.

But they are both :men of very limited understanding, limited vocabulary, slow of perception and without education. Even could they have read or had they had -the document read to them, they could not without explanation have ?understood its meaning or effect.

These findings were not disturbed by theCourt of Appeal, although, in view of one paragraph of the defence, that court thought the respondents must be held to have known they were signing a guarantee for future advances. On these findings, the case stands as one where a docu- 'ment was falsely explained to illiterate persons, and they :signed it believing it to contain only what was represented -to them. Under these circumstances, they were not bound S.C.R.