J.-The boy was nearly eight years of age and his home was in the immediate vicinity of the work, and it is conceded for the purposes of the case that the machine was partly upon the lane, contiguous to which the work was in progress. Each case must, I think, be decided upon its own facts, and I agree that this appeal should be dismissed; but I am not satisfied to assent to the general proposition that in all cases there is an absolute duty. Appeal dismissed with costs. Solicitors for the appellant: Genest, Gglinas & Renaud. Solicitors for the respondent: Th6berge & Th6berge. PHILIAS DUPER
MONTREAL TRAMWAYS LIMITED trial judge in not instructing the jury properly as to the application to the case of the doctrine of common fault, and as to the use to be D*f' made of annuity tables by the jury in arriving at the amount of the verdict.
Held that the order for a new trial pronounced by the appellate court should not be interfered with.
Per Anglin C.J.C. and Smith J.-It is unnecessary to decide the question whether or not the respondent was entitled as a matter of right to the order for a new trial made by the appellate court, as the result of the trial is so unsatisfactory that this court in the exercise of its own judicial discretion, inherent and statutory, ought to affirm such order.
Per Duff, Rinfret and Cannon JJ-As to the question whether counsel for the respondent, at the trial, has " duly excepted to such misdirection " by the trial judge in the manner provided for by article 498 C.C.P., the circumstances of this case and the entries in the book of proceedings show that there has been a sufficient compliance with the requirements of the code. Moreover, per Duff, Rinfret and Smith JJ., this being a matter of practice and procedure, the judgment of the appellate court should be clearly wrong before this court ought to reverse it.
Per Duff, Rinfret and Smith JJ.-The fact that no mention of a by-law of the city of Montreal applicable to the case was made by the trial judge, in his charge made in French, (although asked to do so), and also the manner in which it was referred to in his charge made in English, amounted to a refusal "to instruct (the jury) on a matter of law" (Art. 498 C.C.P.) and constituted an additional reason for granting a new trial.
Judgment of the Court of King's Bench (Q.R. 50 K.B. 414) aff.
APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec (1), reversing the judgment of the Superior Court, Duclos J., in favour of the appellant and ordering a new trial.
The appellant was conducting a horse-driven truck out of a yard when he noticed a street car, some distance away; thinking that he had sufficient time to cross the tracks, he continued his way, but the tram-car struck the wagon killing one of the horses and throwing the appellant on the pavement, causing him serious injuries. The appellant brought an action in damages against the respondent company, and the latter alleged in its plea that the appellant was to blame in driving his truck in front of a moving tram-car when so close as to render the accident inevitable. The jury found the appellant was blameless and having in no way contributed to the accident and assessed the damages at $23,040, the full amount claimed.
The trial (1) (1931) Q.R. 50 K.B. 414.
S.C.R.]