THE McCLARY MANUFACTUR- RESPONDENTS. *M-ar11. ING COMPANY (DEFENDANTS)...
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APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. GwYNNE J.-The evidence in this case fails, in my opinion, to show any negligence of the defendants to which the accident from which the plaintiff sustained the injury he complains of can be attributed.
Being engaged as a workman in a room in a factory to which he could have proceeded without any danger or risk of danger whatever, and whither a fellow workman had without any difficulty just proceeded but a few steps ahead of him, he went out of his course and walked into an elevator the door of which was open it is true, but necessarily open because of some mechanics being then employed doing some necessary work to it, one of whom was so employed at the very opening through which the plaintiff fell and which he had approached without apparently taking any notice where he was going. The case does not present a question of contributory negligence at all; the only which is warranted by the evidence is that V. the accident happened by and the 'injury consequent thereon is attributable wholly to the carelessness of the unfortunate sufferer himself and for which the defendants are in no way responsible. The appeal must in my opinion be dismissed.
J.-I am of opinion that this appeal should be dismissed for the reasons stated by Mr. Justice Burton in the Court of Appeal.
The accident which happened to the plaintiff was occasioned by his own carelessness and not through any negligence on the part of the company. The repairing of the elevator was a necessary act on their part. It is true that the guard protecting the elevator was not up at the time of the accident and that if it had been up the accident would not have occurred, but at the time the defendants' workmen were engaged in repairing the elevator, workmen were about it and around it engaged in that duty, and the accident happened in consequence of the defendant, instead looking about him, looking up towards the roof of a room in which he was walking to a man engaged in the repairs and actually collided with a workman at the opening also engaged in the repairs.
One can hardly conceive of a case stronger than the present where it can be said that the man himself was wholly to blame for what happened to him.
I am of opinion that the appeal should be dismissed with costs. concurred.
Appeal dismissed with costs.