Judgment of the Court
DuFF J.-There is no material dispute as to the primary facts. On the day the offence is alleged to have been committed, the hoisting machinery in one of the shafts of the (1) (1928) 63 Ont. L.R. 275.
(2) [19211 1 W.W.R. 443; affirmed, 62 Can. S.C.R. 40.
S.C.R.]
Frood Mine was in operation raising muck from the bottom of the shaft. The accused was the hoistman in charge V* of this machinery. There were two cages or skips raised Df and lowered simultaneously, at the same rate of speed, by the same machinery. Part of the duty of the hoistman was to arrest the machinery as the descending skip was nearing the bottom of the shaft, to give warning of its approach to the workmen engaged there. On the occasion in question, this precaution was not observed, and one of the workmen, caught unawares, was struck by the skip and killed.
There was a dial which showed the position of the skips at any moment, and a buzzer which, when working, announced the arrival of the skips at points 100 feet from the top and bottom respectively. On the occasion with which we are concerned, the buzzer was out of order.
It was the duty of the hoistman to follow the ascent and descent of the skips, and for this purpose to give close attention to the dial; but on the occasion in question, the attention of the accused was diverted for a moment, and during that moment, the descending skip reached a point so near the bottom of the shaft, that when his attention to the dial was restored, he was too late, with the means at his command, to bring the skip to rest and avert the tragedy.
The Mining Regulations require the arrest of the descending skip for the protection of workmen engaged below, and the duty to conform to the regulation is a duty of the strictest order. It is indisputably one of those duties contemplated by sections 247 and 284 of the Criminal Code. The question to be considered, is whether the momentary inattention of the hoistman involved, under the circumstances, a breach of duty of the kind that entails criminal responsibility.
The accused was an experienced hoistman, and admittedly had been most conscientious in the performance of his duties. His explanation of his conduct is that his attention was attracted by a violent noise proceeding from some appliances known as "clapperboards," situated behind him, which appear to be groups of electrical contactors controlling the hoisting apparatus. It was the duty of the hoistman to report any irregularities in the working of the machinery, and these " clapperboards " had been reported upon, but there had been some difficulty in precisely iden- ine tifying the nature of the defect. There were two sets of such appliances, and there had been some doubt as to which of these was the seat of the trouble. With this in his mind, on hearing the noise on the day of the accident, his attention was immediately attracted with more than usual force to the " clapperboards."
It is conceded that when these " clapperboards " are out of order, the noise proceeding from them may be of a violent and disturbing nature. The official inspector and the mining officials agree that this noise might be expected to produce some distraction of the hoistman's attention; that in the situation of the accused, only a man of very steady nerves would be proof against the impulse to turn his eyes to the source of the disturbance.
The almost involuntary act of the accused, in yielding, in the special circumstances, to this impulse, does not appear to be an act of such culpability as falls within the category of criminal negligence.
On this point the decision of the court below is manifestly right.
The contention advanced on behalf of the Attorney General is, that, by force of sections 247 and 284 of the Criminal Code, criminal responsibility ensues when there is neglect of a duty to exercise reasonable care in the control of a thing, which, in the- absence of such care, may endanger human life; and that-at least where (as here) no question of skill is involved-neglect of such a character as to give rise to civil responsibility gives rise to criminal responsibility also. In support of this proposition, the decision of this court in McCarthy v. The King (1) is cited.
This is a misapprehension of the effect of .McCarthy's case (1).
Two of the judges who took part in that decision expressed the view now advocated by the Attorney General, but that was not the ground of the decision. In that case the court had to consider the charge of a trial judge in a prosecution for manslaughter in these circumstances: the accused, driving an automobile in a frequented street at about twelve miles an hour, ran into a workman working in a manhole in the street and killed him. The manhole was covered by a tarpaulin tent about three or S.C.R.]
four feet wide at the bottom, five or six feet high and several feet long. The vision of the accused was obstructed .
owing to the dirty condition of his windshield, and for this reason, he said that from time to time he looked out from J*the side of the car, but failed to observe the tarpaulin covering the manhole. The trial judge instructed the jury that if the death of the deceased was due to " some want of ordinary care which an ordinary prudent man would have observed in the driving of the car," it was their duty to convict. He directed their attention to the distinction between the degree of negligence required to affect a defendant with liability in a civil case, and the culpable negligence required to justify a conviction in a criminal case; he presented to them, as the cardinal issue, the question whether the accused was maintaining a " proper lookout "; and he told them, if they were convinced that the accused, if he " had been looking ahead at all as a driver of a motor car should have looked ahead," would have seen the obstruction in the street, they would be justified in finding him guilty of " culpable negligence."
The trial judge reserved a question as to the correctness of his instruction touching " the negligence which under the circumstances of the case would render the accused guilty of manslaughter."
The question so stated was the subject of the enquiry in this court, and that inquiry involved an examination of the effect of the sections of the Criminal Code above mentioned, as applied to the facts in evidence and the charge of the trial judge. The court was unanimous in the view that failure to maintain a " proper lookout " amounted, in the circumstances, to culpable negligence within the contemplation of the criminal law, and that, speaking more generally, a want of ordinary care in circumstances in which persons of ordinary habits of mind would recognize that such want of care is not unlikely to imperil human life, falls within that category. But the decision does not attempt to lay down an abstract rule for determining the incidence of criminal responsibility for negligence.
This is all that is necessary for the disposition of the appeal. We think it right to add that we see no reason to differ from the view expressed by Sedgwick J., speaking for the majority of this court, in Union Colliery Co. v. The