Judgment of the Court
J.:-This appeal is from a majority judgment of the Court of Queen's Bench' which allowed, in part, an appeal from a judgment of the Superior Court condemning respondent to pay to appellant's late husband, Rodolphe L. Vall6e, a sum of $5,890.36 as the amount of damage caused by fire to a house owned and occupied by the said Rodolphe L. Vall6e.
The fire in question resulted from a gas explosion which took place in the basement of the said premises, and at the trial it was conceded that gas had penetrated into the building from a break in a gas pipe outside the said building which was part of a propane gas distribution system then owned and operated by respondent and under its control. The cause of the break was not established. The Court of Queen's Bench unanimously confirmed the judgment of the Superior Court as to the amount of the damage caused to the premises and as to the liability of respondent under art. 1054 of the Civil Code. The majority held however, that appellant's late husband was also at fault and reduced by one-half the damages fixed by the learned trial judge. Bissonnette and Hyde JJ. dissenting, would have dismissed the appeal.
From that judgment, appellant as the universal legatee of her late husband (who died pending the appeal to the Court below) has appealed to this Court.
The facts are fully set out in the judgments below and are not now really in dispute. On the evening of the accident, the late Rodolphe Vall6e, his wife and their two sons, with some friends, were celebrating a family anniversary in the premises. Appellant had complained to her husband for some time previously of a peculiar odor in the house, which he said he himself could not detect. On the evening Cnl in question, the guests also noticed the odor which they were unable to identify, and Vallie and his two sons (one of whom was a professional engineer) set out to inspect the house and see if they could discover it. Finding nothing in the kitchen, Vall6e and the sons went down to the cellar where they spent some fifteen minutes seeking for a possible source of the odor. One of the sons used his cigarette lighter in the process. They tried the gas meter without incident and then began to suspect the sewer. One of the sons started back upstairs followed by the father, leaving the other son (who died prior to the trial) still carrying on the investigation, when an explosion occurred -presumably from the ignition by the flame of the cigarette lighter-of gas which had seeped into the cellar from outside. Vallie and the surviving son both testified that at no time did they suspect the presence of gas. Their evidence on this point was not shaken on cross-examination and it was accepted by the learned trial judge. As Bissonnette J. pointed out in the Court below the fault, if any, of appellant's late husband could only have been a fault of omission, in that he failed to prevent his son from using or continuing to use a cigarette lighter when he knew or was bound to know that such use was dangerous.
The search in the basement for the source of the objectionable odor was carried on without mishap for some fifteen minutes in the immediate vicinity of the pipes and gas meter with the aid of a cigarette lighter, but precisely what happened after this inspection as the father and one son were leaving the basement, is not established. The explosion was due primarily to the presence of explosive gas for which respondent was clearly responsible under art. 1054 of the Civil Code. This propane gas is heavier than air and apparently lay along the floor of the basement. In the circumstances this was not a condition which, in my opinion, a reasonably prudent layman could be expected to know about.