which he was unable to extricate himself in time to avoid Ross striking the boy. On appeal, this judgment was reversed RP;E and a new trial ordered, limited to the assessment of dam- ages, the appellate court holding that the defendant was travelling at an excessive speed, and, although the boy was negligent in crossing the highway without looking, the real reason why the defendant could not avert the impending accident was his excessive speed.
On appeal to the Supreme Court of Canada, after hearing the argument of counsel for the appellant and the respondent, the Chief Justice, speaking for the Court, delivered an oral judgment, allowing the appeal with costs. Alfred Bull K.C. for the appellant.
F. N. Donnenworth for the respondent.
THE SISTERS OF ST. JOSEPH OF
*Nov.10,
THE DIOCESE OF LONDON IN
APPELLANTS; ONTARIO
(DEFENDANTS)
..........
AND
Mar.18. EDWARD FLEMING
(PLAINTIFF) ......
.RESPONDENT. ON APPEAL FROM THE OF APPEAL ONTARIO Hospitals-Negligence-Patient in hospital burned during diathermic treatment-Negligence of nurse-Liability of hospital. Plaintiff was admitted as a Patient to defendants' hospital under a contract for board, nursing and attendance. Defendants maintained and operated for profit in the hospital an equipment for diathermic treatments. Plaintiffs physician (who had diagnosed his trouble as sciatica) ordered the nurse supervising the floor on which plaintiff was located, to see that he was given a diathermic treatment to relieve his pain; and a treatment was given. It was administered by a nurse who was a permanent member of the hospital staff and was in charge of such treatments. Plaintiff's physician had not (nor had any other physician) anything to do with the actual treatment. There was no suggestion of defect in the equipment or of lack of competence in the nurse to use it. In -the treatment the plaintiff was severely burned. Plaintiff, alleging that the burn was caused by negligence of the nurse administering the treatment, sued defendants for damages. The trial judge gave judgment for plaintiff, which was affirmed by the Court of Appeal for Ontario ([1937]
O.R. 512). Defendants appealed.
Held: (1) On the evidence, the finding in the courts below of negligence in the nurse must stand.
CJ. and Crocket, Davis, Kerwin and Hudson JJ.