The judgment of the court was orally delivered by C.J.C.-There is no finding of fact in this case as to the rate of speed at which the defendant's omnibus was moving. There is a finding by the learned trial judge that it was travelling at -an excessive speed, having regard to all the conditions-short range of visibility, the fact that there was a tram car line upon the street, and (the crucial point), the condition of the pavement, which, in his opinion, was, or ought to have been, known to the driver. He makes no finding apart from that. The case really turns upon the question whether or not the icy condition was, or ought.to have been, known to the driver. That it was not in fact known to him seems abundantly clear. We are also of opinion that it cannot be said that it ought to have been known to him. That the condition of the pavement was quite abnormal and not to be expected is shown by the evidence of half a dozen witnesses. The driver of the bus realized the existence of that icy condition only when he came to apply his brakes. It was then too late to avoid the accident because the wheels of the bus " skidded " on the icy surface of the road way.
Mr. Justice Galliher who dissented seems to us to have best realized what the situation was. He points out, what I have already alluded to, the learned trial judge's assumption that the driver ought to have known the condition of the highway. " The main feature," he then goes on to say With that statement, having regard to the evidence, I, and I believe my learned brothers also, are fully in accord. In our opinion there is not sufficient evidence to support the finding of the learned trial judge.
The appeal is allowed with costs here and in the Court of Appeal, and the action is dismissed with costs.
Solicitors for the appellant:
Walsh, McKim, Housser & Molson.
C.J.C. Solicitor for the respondent: R. P. Stockton.
THOMAS v. GUAY
APPEAL from a decision of the Court of King's Bench, appeal side, province of Quebec (1) varying the judgment of the Superior Court, Belleau J.
The respondent by his action sought to revendicate from the appellant two parcels of land. The appellant alleged that he was the owner of the property with a good title; and he also claimed a right of retention until reimbursed for the costs of repairs and improvements made to the property.
The Superior Court maintained the respondent's action and dismissed the appellant's plea. Both parties appealed to the Court of King's Bench, the respondent in order to have struck off the reserve of a right of servitude in favour of the appellant and the latter to have his plea of compensation maintained. The main appeal was allowed by the appellate court and the cross-appeal dismissed.
The Supreme Court of Canada, after hearing counsel for both parties, reserved judgment, and, at a subsequent date, dismissed the appeal with costs.
Appeal dismissed with costs. Ls. St-Laurent, K.C., for the appellant.
C. Dessaulles, K.C., and Ls. St-Jacques for the respondent.