J. R. Watkins Co. v. Minke

[19281 by that portion of the document containing a liability never explained to them and indeed entirely different from that .

which they were told they were assuming. As to that part of it, the document cannot be taken to be their act and deed. '

It follows that the respondents could not be held for the past due indebtedness of Jansen, which they never intended to-and in fact never did-guarantee. The action seeking to hold them responsible for such indebtedness was therefore rightly dismissed.

.APPELLANT;- *May 10.

AND

DAME J.

Negligence-Automobile accident-Injury to passenger-Presumption of fault-Motor Vehicles Act (R.S.Q. [19251 c. 85, s. 58 (2)-Liabilityof owner under Arts. 1058 and 1054 C.C.

The appellant claimed damages resulting from an automobile accident and alleged that, while at the invitation of respondent's chauffeur he was a passenger on respondent's truck, he was injured through fault of the chauffeur by being caught between the car and the pavement, when the truck struck the curb and broke a wheel.

Held, affirming the judgment of the Court of King's Bench (Q.R. 43 K.B. 251), that the respondent was not liable.

Held, also, that section 53 (2) (a) of the Motor Vehicles Act (R.S.Q. [1925] c. 35), which creates a presumption of fault against the owner of a motor vehicle which he must rebut, applies only in the case of a person injured while travelling upon a highway and does not apply in favour of a passenger in an automobile which is driven by the owner's servant.

*PRESENT:-Anglin CJ.C. and Mignault, Rinfret, Lamont and Smith JJ &

Bench, appeal side, province of Quebec (1), affirming the judgment of the Superior Court, Philippe Demers J., and dismissing the appellant's action in damages.

The respondent is a funeral director and occasionally employed the appellant. On the 26th of April, 1926, the appellant, after having completed the services for which he had been retained, was about to leave the respondent's premises, when the driver of a truck owned by the respondent asked the appellant to help him to carry some furniture to its destination. On the way back, the chauffeur drove the respondent's car onto the sidewalk, broke a front wheel, upsetting the car, and the appellant, being caught between the car and the pavement was seriously injured. The appellant claimed $5,000 damages.

ANGLIN C.J.C.-We are all of the opinion that this appeal must be dismissed.

Three distinct grounds of claim are presented.

First, it is said that, on the interpretation of section 53 (2) of the Motor Vehicles Act (R.S.Q., 1925, c. 35) there is a presumption of fault against the owner of the motor S.C.R.

vehicle in which the plaintiff was injured, which he must rebut; that that presumption applies equally in favour of a passenger in the car and of a person travelling on the highway. We are entirely against that view of the construction of the article. In our opinion, the article applies. only in the case of a person travelling upon the highway; it does not apply in favour of the plaintiff who was a passenger in the automobile which was owned by the defendant and driven by his servant. The French version of thestatute removes any possible doubt on this point.

In the second place, it is contended that fault is presumed against the defendant under article 1054 of the Civil Code, because the injury was caused by a thing under her care. Our view is that that provision has no application to a case where, as here, the real cause of the accident is the. intervention of some human agency-the question whether such human agency-that of the driver in this case-is at fault being a question of fact. Damage is not caused by a thing which is in the control of the defendant within the' meaning of art. 1054 C.C. where it is really due to some fault in the operation or handling of the thing by the person in control of it.

The third ground is that there was fault of the driver, a. person under the defendant's control. In that case such fault must be proved just as under art. 1053 C.C. fault of the defendant himself, where he is in personal control,. must be established. There are concurrent findings against the appellant in this respect. These findings would be very difficult in any case to overcome. But they are particularly so, in this case, where there is only one witness who gives evidence relating the facts, and that witness is. believed, such belief being expressed by the trial judge and by the Court of Appeal. In these circumstances, error in the finding not being demonstrated,-not being made manifest-it is impossible for us to interfere.

The appeal is dismissed with costs.

Appeal dismissed with costs.