Roux v. Clarkson

(DE- A

*April 26,27.

FENDANT) ..........................

*Dec. 5.

AND

EDNA FIELD AND JAMES W. FIELD)

(PLAINTIFF)ESPONDENTS.

ON APPEAL FROM THE COURT OF APPEAL EITISH COLUMBIA

Per The Chief Justice and Davis and Hudson JJ.-It is unmecessary to consider whether or not the doctrine of res ipsa loquitwr has any application to this case. It is sufficient to observe that the case for the respondents was formulated in the pleadings and deeeloped at the trial as an action for negligence against the appellat without any reference to that rule. The case went to the jury, without any objection, on the basis of an action for negligence in which the burden lay upon the respondents. That being so, the respondents are not entitled upon an appeal to recast their case and put it upon a basis which had not been suggested at the trial.-Scott v. Pewie B.C.R. 91) approved.-Comments on section 60 of B.C. Supreme Court Act, R.S.B.C., 1936, c. 56.-Sisters of St. Joseph v. Fleming ([19381 S.CR. 172) ref.

Per Crocket and Kerwin JJ.-The rule of "res ipsa liqucJt-u" was not relied upon at the trial and may not be put forth to assist the respondents before the Court of Appeal or this Court.

This being so, there is no ground upon which the verdict of the jury should have been disturbed.

* PRESENT:-Duff C.J. and Crocket, Davis, Kerwin asld Hudson JJ.