Regal Oil & Refining Co. v. Campbell

much value even although some of it is against his interest." The part underlined has reference to Herbert Rickard's statement that he watched the boys until the rear of the colt was about feet beyond them and that he had pro- Keri J. ceeded possibly 5 feet further before he heard the sound K of the impact.

In dismissing the respondents' action the trial judge took the view that the plaintiff had failed to show how far past the meeting point Herbert Rickard had progressed with the colt before the accident happened, but in my view that problem is solved by the evidence indicated above. In view of the pony's lameness Herbert Rickard was acting prudently and properly in travelling on the grass plot, but, having seen the children, he was bound to proceed in a reasonable manner and so as not to endanger them. There was no scienter; the colt was under proper control, and Herbert Rickard had no reason to expect that the boy would run after the colt or that the animal would kick. I cannot find that he or his father as owner of the animal are responsible in law for the injury to the unfortunate infant respondent.

I would allow the appeal with costs throughout and restore the judgment of the trial judge. the judgment of Cannon J. now reported. The appeal to this Court was dismissed with costs.

C.J. (Davis and Kerwin JJ. concurring)-This appeal should be dismissed.

First, a word as to the law. By the common law, an employer is under an obligation arising out of the relation of master and servant to take reasonable care to see that the plant and property used in the business in which the servant is employed is safe. That is well settled and well known law.

It is equally well settled that he does not warrant the safety of such plant and property. (Wilson v. Merry (1); Young v. Hoffman (2); Fanton v. Denville (3)). The question whether or not he can fulfil his obligation by delegating the performance of it to employees, whose competence he has taken reasonable care to ensure, is a question upon which it is not clear that the authorities are harmonious.

The judgment of the Privy Council in Toronto Power Co. v. Paskwan (4), as interpreted in the head-note, would seem to say that he cannot discharge this duty by employing competent delegates for that purpose; that, in other words, he is responsible for the safe condition of the plant and premises so far as reasonable -care can make them so.

There are two decisions of this court (Ainslie Mining & Railway Co. v. McDougall (5); and Brooks, Scanlon, O'Brien Co. v. Fakkema (6))

which would appear to sanction the rule as stated in the head-note in Toronto Power Co. v. Paskwan (1).

In the subsequent case of OL Bergklint v. Western Canada Power Co. (2), the distinc- & tion is drawn between the original installation of the plant and the maintenance of it. As to original installation, the duty to take reasonable care for the safety of the employee CJ. is, under the decisions of this Court, as finally interpreted in Bergklint's case (2), one of which the employer cannot divest himself by appointing competent delegates, while, under the common law, the opposite is the case in respect of subsequent maintenance. These decisions are, perhaps, in conflict with the decision of the Court of Appeal in Fanton v. Denville (3), and, possibly, with other decisions of that Court.

In the present case, we are really not concerned with this conflict (if such there be) for two reasons. First, no evidence was offered to show that the employers had exercised care in entrusting the duty of making the plant safe for the employees to competent delegates; and, where the defendant relies upon delegation, the onus is upon him to establish it (Canadian Northern Ry. Co. v. Anderson (4)). Second, the doctrine of common employment has been abrogated in Alberta (R.S.A. 1922, c. 178, s. 2).

I cannot endorse the argument that the employee can .only succeed by establishing ignorance in himself and knowledge in the master. I agree with the following passage in the judgment of Rich and Dixon JJ. in Jury v. -Commissioner for Railways (5):

Such being the state of the law, I have only to add that OiL the doctrine in Rylands v. Fletcher (1) can have no appli- & to.T cation. This was expressly held by the majority of this Court in Toronto Power Co. v. Raynor (2).

In my judgment in that case I said:

The judgment of Mr. Justice Clute in the Court of Appeal proceeds, Duff C.J- as far as I can gather, on the application of the doctrine of Rylands v. Fletcher (1).

This doctrine has never been applied and could not, without bringing the direst confusion into the law on the subject, be applied in cases of this description between master and servant, where apart from statute the question must always be (the master being charged with responsibility for harm coming to the servant in the course of his employment): Was the harm caused by the failure of the master in any duty to the servant arising out of the relation subsisting between them? The duty of protecting or compensating the servant for harm arising from the perils incidental to the service which cannot be avoided by any reasonable degree of care on the part of the master, is not one of the duties which the law casts upon the master.

On the contrary,

The doctrine of Rylands v. Fletcher (1) imposes a responsibility which in the first place is, speaking generally, absolute for the consequences of the escape of the noxious agent (excepting where the escape is due to the act of God or the mischievous intervention of a third party) and in the second place cannot be discharged by employing independent contractors or servants never so competent and never so well equipped as to skill and means.

The appellants can only succeed, then, on one of two grounds: contributory negligence or volenti non fit injuria. As regards the defence of volens, the question, as Lord Watson said in Smith v. Baker (3), is, did the employee agree that if injury befell him the risk would be his and not his master's?

This defence was very fully discussed in McPhee v. Esquimalt & Nanaimo Ry. Co. (4) where Smith v. Baker (supra) and Williams v. Birmingham Battery & Metal Co. (5) were applied.

I do not think it is seriously open to question that theissue of volens was in this case one for the jury.

There is much more to be said in favour of the appeal. under the contention that the finding of the jury negativingcontributory negligence cannot be supported. After, however, carefully considering and reconsidering the evidence in its bearing upon this issue, my conclusion is that thejudgment of the Court of Appeal ought not to be reversed.. (1) (1868) L.R. 3 H.L. 330.

(3) [1891] A.C. 325.

(2) (1915) 51 Can. S.C.R. 490, at

(4) (1913) 49 Can. S.C.R. 43. 503, 505.

(5) [1899] 2 Q.B. 338.

The respondent was obviously much concerned about the manner in which the apparatus emptying the truck was working. The overflowing of the drum was not the conmo sequence of any want of zeal on his part. In the result, I am not satisfied that the jury might not, without exposing themselves to a charge of acting arbitrarily and unreasonably, have thought any slip, any miscalculation or error of judgment excusable; and not incompatible with the absence of negligence either as commonly understood by laymen or in the sense of the law.

In the view just expressed, the responsibility of the Regal Distributors, Ltd., is not disputed; there would also appear to be a prima facie case against the other company. The appeal should be dismissed with costs.

J. (Rinfret and Kerwin JJ. concurring)-The appellants appealed before this Court from a judgment of the Appellate Division of the Supreme Court of Alberta, dismissing their appeal from the judgment of the trial Court based upon the verdict of a jury which awarded the plaintiff damages to the sum of $24,585.

The appellant, the Regal Oil and Refining Co. Ltd. (hereinafter called the Refining -Co.), is engaged in the refining and manufacture of petroleum products, and the appellant, Regal Distributors Ltd. (hereinafter called the Distributing Co.), in the distribution of such products. The Refining Company engaged the respondent by an agreement in writing dated February 15, 1929, to operate for it a bulk station plant at Beiseker. The Refining Co. was granted a lease of land on the 29th of April, 1929, on which immediately thereafter was erected the plant in question by a contractor engaged by the Refining Co.

The building and equipment were turned over to the respondent late in April or early in May, 1929. It consisted of a building constructed of corrugated iron on a wooden frame and contained platform scales and Blackmore twin pumps for the handling of gasoline and oil.

In addition to the main room of the plant there was an adjoining room about 6 feet square in which was housed a Fairbanks-Morse gasoline engine. This engine room contained no window and was entered by a door from the platform. The power to operate the pumps was provided by the engine which was connected with the pumps by a shaft 11 inches in diameter which ran from the engine through the wall between the engine rooin and the warehouse proper. This shaft passed through a & hole in the wall which was about 10 inches from the floor and about 10 inches in diameter.

Notwithstanding the presence of a gear box, there would be left, after taking J this obstruction into account, approximately an area of square inches, through which fumes from the warehouse could pass into the engine room. The exhaust pipe of the gasoline engine was not extended out of the engine room and any fumes or sparks from the engine were projected into the room.

The equipment in addition included two storage tanks. No. 1 was used for gasoline and No. 2 for tractor fuel.

On the 1st June, 1929, the Distributing Company took over the marketing facilities of the Refining Company. On the 16th of September, 1929, the Distributing Company wrote a letter on the notepaper of the Refining Company to the respondent, informing him of the change in " the organization of the different branches of our Company," and that his operations were to be carried on under the name of the Regal Distributors Limited.

After some changes in the mechanical equipment to permit the shipping of the petroleum products to this station in automobile tank trucks, the first such shipment was received at about 3.30 p.m. on the 22nd of August, 1932.

The respondent had received instructions pointing out to him the importance of emptying such trucks as speedily as possible. The trucks had been hired by the Refining Company and contained tractor fuel, which is admitted to be of a highly inflammable nature. During the operation of pumping the contents of the truck into the storage tank No. 2, the pump was not working to the respondent's satisfaction and he decided that the remainder of the tractor fuel, about 500 gallons, should be placed into drums. To do so he placed the drum on scales; and by an adjustment of valves, the destination of the flow from the truck was changed from the storage tank to the drum. After filling seven or eight drums in this manner, he found that the fuel was coming very irregularly and very slowly. One Schultz was on top of the truck watching the progress of the pumping and exchanged signals with the respondent, who would move from his position to a point on the platform from which he could see Schultz to determine if the truck was about empty. Having received from Schultz a signal which he understood as meaning that the tank was empty, the respondent turned to go in and turn off the quick closing valve located immediately above the scales, and at that moment he saw the tractor fuel overflow from the drum Can 3. and Russel, the truck driver, run and close the valve. The respondent then went into the engine room and shut off the engine by closing the fuel valve and turning down the oil cup. As he was leaning over the engine to close the latter, he saw a bunch of flame come from the exhaust. There were one or two explosions which blew the respondent through the wall of the engine room and deposited him on the ground at the rear of the truck with his clothing in flames. As a result of the accident, the respondent has lost completely the use of both hands, after undergoing great pain and suffering and actual out of pocket expense of

$584.90.

In his charge, the learned trial judge stated that the determining factors in the case were three issues of fact:

first, the claim by the respondent that the appellants were negligent in the construction and maintenance of this plant for the storage and delivery of dangerous explosives; second, the reply by the defendants that in any case the respondent accepted any hazards that were incident to the operation of that plant; and third, that the accident was chargeable in whole or in part to the respondent's own negligence in regard to the operation of filling the last drum immediately prior to the accident.

Respecting the first point, complaints in regard to the structure were: (a) the exhaust pipe was not carried out from the smaller enclosure in which the gasoline engine was placed; (b) there was an opening in the wall near the floor of that structure that would allow vapour fumes to get into the engine room. The learned trial judge pointed out, and my reading of the record confirms his view, that the evidence of Mr. Robb, the expert, which was not contradicted, is to the effect that if these features had not existed, it would have been a safer structure for the purpose for which it was intended; he added that it was the duty of the appellants to construct the building and plant in a way that would not expose employees or anyone who had occasion to come around it, to unnecessary danger. Referring to the first ground of defence, that the respondent had accepted & the hazard which would naturally be incident to a plant of this kind, knowing that naphtha and gasoline are very CA..,L. volatile and would evaporate in warm weather and the can J. vapour spread around, and also to the fact that the respondent knew from long experience how to run the engine, the jury were asked to decide whether or not the respondent could be reasonably justified in assuming that the appellants' construction engineer should be capable of determining what would be a reasonably safe arrangement, and whether or not the respondent would be chargeable with a technical examination of all the plant to satisfy himself it was absolutely safe before he entered on his employment. It was also pointed out that the plant was not there at all when he entered this employment.

As to the third issue, the learned trial judge also put the question to the jury, whether or not the respondent was negligent when he left his position at the scales when he thought that the drum was only about one-half full. The learned trial judge then said that independently of the overflow of gasoline which the jury might or might not attribute to the negligence of the respondent, it was the uncontradicted evidence of Mr. Robb, the expert, to the, effect that there would be a certain amount of gasoline vapour expelled from the drums and that if that vapour from the drums got into the engine room, it must have contributed to the accident.

The appellants, realizing that they have to contend against the verdict of the jury and the concurrent judgments of both courts below on these three questions of fact, submit:

1st. There is no negligence proven against either of the appellants;

2nd. There is certainly no justification for a judgment against both defendants;

3rd. The plaintiff respondent's contributory negligence disentitles him to any verdict;

4th. The maxim: Volenti non fit injuria, affords a complete defence.

J. 5th. The learned trial judge failed to instruct the jury properly or at all for the failure of the appellants to instal an automatic barrel filler and the liability of the appellants with respect thereto. This point was not insisted upon at the argument before us. The jury came back to court and asked for the reading of the evidence on that point. Appellants never asked for a special direction, and, in any case, the absence of instructions would seem to have favoured the appellants more than the respondent, because the latter suggested to the appellants' inspector the desirability of such an addition to the plant which would have prevented any overflow.

6th. The damages awarded were excessive and unreasonable.

The position of the respondent in regard to all these points is that the jury has found in his favour on competent evidence, and he quotes the definition of the function of this Court by My Lord, the Chief Justice, in C.N.R. v. Muller (1), where he said:

The jury had before them the opinion of Mr. Charles A. Robb, Professor of Mechanical Engineering in the University of Alberta, who, the appellants readily admitted, was duly qualified as an expert, who said:

8.C.R.]

Q. Mr. WALsH: When you have this mixture of from one point five per cent to six per cent by volume of gasoline fumes with air what else is needed to cause trouble?

Cannon J.

A. The introduction of a spark or flame is sufficient.

Q. Mr. WAusH: It was as inflammable as gasoline? What we laymen speak of as gasoline that we use in our cars?

A. The answer is in the affirmative, yes.

Q. Here is another question, in your opinion would this plant have been capable of safer operation with the engine house in a building entirely separate from the warehouse?

A. Yes.

Q. So then to recapitulate you say that the first safety measure that might have been taken was some form of separation of the engine room from the warehouse?

A. Yes.

Q. Having in view the object of preventing fumes of gasoline and tractor fuel from the warehouse entering the engine room?

A. Yes.

Q. And you say second, that you would have piped the exhaust from that engine to a place of safety outside the building?

A. Yes.

Q. You agree with me that the automatic drum filler would have been of some assistance as a safety measure?

Q. And finally you say that it would have been better if they had had them in a separate building?

A. Yes.

In view of the facts proven and of this competent evidence, the jury could reasonably find, as they did, and return a verdict in favour of plaintiff on the three issues of fact submitted to their consideration, as shown above. As to the application of the maxim " volenti non fit injuria," as it was clearly set out in Letang v. Ottawa Electric Railway Co. (1), it must be found as a fact, in order to afford a defence to an action for damages for personal injuries due to the dangerous condition of the premises to which the plaintiff has been invited on an errand of business, that he freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, expressly (1) [1926] A.C. 725.

or impliedly agreed to incur it. Lord Shaw, at page 730, quoting Bowen L.J., in Thomas v. Quartermaine (1). says: injuria-but The evidence adduced by the defendants was fully put to the jury by the learned trial judge to show that the respondent knew that it was a common thing for the engine to backfire from time to time; that if any fault existed in the construction of the building it existed from the time the respondent took over the plant; that he knew that the tractor fuel was a highly inflammable product and the vapour from it highly inflammable and dangerous; that he apprehended the danger of a spark exploding this kind of vapour; that he would not light a match there, and that he never complained. According to the rule above quoted, this would not be sufficient; the jury had to be satisfied that, not only did the plaintiff know, but that he accepted voluntarily to run the risk. See Baade v. Hill (2), and the authorities therein collected in the able judgment of Hughes J.

The appellant failed to show to the satisfaction of the Court that the damages awarded were excessive and unreasonable, and indeed did not insist before us for a reduction of the amount. The respondent proved that he was now totally incapacitated so far as manual labour was concerned, that he earned before the accident about $2,500 a year; according to the insurance statistics, his natural earning period would be about 32 years.

Even taking into account the natural vicissitudes, including accidents, diseases and possible death, we cannot say that the amount awarded under those circumstances is unreasonable.

Despite the able argument of Mr. Biggar, we must reach the conclusion that he has not successfully established that the findings of the jury or the courts below were clearly wrong on the facts of the case.

8.C.R.]

There remains the point of the joint liability of both appellants. Are they both liable if the verdict stands? The Refining Co. made the agreement, also secured the lease from the C.P.R. of the site where they built the plant and gathered the dangerous explosives. Both companies have the same general manager and the following notice o Jwas sent to the respondent:

The Distributing Company is the one who was in charge of the premises at the time of the accident and had control over the respondent. Under the principle laid down in Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co. Ltd. (1), both these companies would be liable towards the plaintiff. The Refining Company by the hands of its employees brought into the plant the dangerous substance for storage on the site which it had leased from the C.P.R. The lease provided that " the lessee will not during the said term, assign or sublet the said premises or any part thereof unto any person or persons, without first obtaining the written consent of the lessor."

The lease was never assigned to the Distributing Company prior to the date when the plaintiff sustained his injuries. The Refining Company, therefore, was the occupant of the lands at all times prior to this action.

As far as the Distributing Company is concerned, which in fact is only a continuing incorporated department of the Refining Company, it also occu-