of such child may be received, though not given upon oath if, in the opinion of the judge, justice or other presiding officer, as the case may be, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
(2) No case shall be decided upon such evidence alone, and such evidence must be corroborated by some other material evidence.
The jury found that the motorman " was negligent by not being on a proper lookout," and judgment was entered for the plaintiffs for damages.
The Appellate Division (1), by a majority, reversed the judgment at trial, on the ground that, although the evidence established that the boy was run over by the street car in question at the place alleged, and as a result lost his leg, yet there was no evidence to corroborate the story of the infant witnesses for the plaintiffs going to show that the accident was caused by negligence of the defendant's motorman, and such corroborative evidence was necessary in order for the plaintiffs to succeed.
Hyndman J.A., whose judgment was concurred in by Harvey C.J.A., and Mitchel J.A., said, in the course of his judgment (after referring to authorities):
In these cases it would appear that what is meant by " other material evidence," is material to the issue to be sustained by the party to be corroborated. In the case at bar since the substantial issue is negligence, it must mean, material to the issue of negligence.
Every particular, of course, need not, and in most cases could not, be corroborated, but in some substantial respect the negligence complained of must be. It is not sufficient that some particular of the evidence given in the case be corroborated unless it is connected with the issue of negligence.
Just how this accident happened, apart from the infants' evidence, is to my mind left to conjecture and capable of different theories, and there is not the necessary corroboration of their testimony touching the heart of the question or issue involved in the action, namely, negligence. Beck and Clarke JJA., dissented from the judgment of the majority of the Appellate Division.
The plaintiffs appealed to this Court.
A. M. Sinclair K.C. for the appellant.
W. S. Ball K.C. for the respondent.
Counsel for the appellant was stopped by the Court, and on the conclusion of the argument of respondent's counsel the judgment of the Court was orally delivered by
(1) [19281 1 W.W.R. 815.
S.C.R.]