Judgment of the Court
THE (Oral) :- We are all of opinion that this appeal should be dismissed.
Negligence by the servant of the appellant is clearly proved, in fact there could not be a stronger case, and the defence as to Justice.
contributory negligence entirely fails, not only on the authority of Davies v. Mann but also on the opinions expressed in Gardner v. Grace where the cause of action was an injury to a child of three years of age. In that case Channell B. said:
This seems to be the result of the cases, English as well as American, though there may be some contradictory decisions.
A new trial is asked for on the ground of the improper admission of the evidence of the nurse who attended the plaintiff's child, that in her opinion a urinary trouble with which the child was affected resulted from the accident.
I cannot find in the record that any such opinion was expressed by the nurse, but if it was, we could reject her evidence altogether and still maintain the verdict.
The case was tried by a judge without a jury, and the position of a Court of Appeal in such a case, as distinguished from a case tried with a jury, is clearly pointed out by Bramwell in the case of v. Hough in these words:
Another point argued was that Gorman was not in the employ of the defendant when the accident happened. That he was in such employ at the time there can, in our opinion, be no doubt. Whatman v. Pearson (1) was a stronger case than the one before us, and I Justice. do not think the learned counsel has been successful in his attempt to distinguish it from the present. Though Gorman had for a time abandoned his master's business, he had resumed it when he started out to deliver the remaining parcel just as much as if he had returned to the store and made a fresh start.
As to damages Mr. Justice Hanington, in giving judgment in the court below on the motion for a new trial, says:
In this I entirely concur.
I think the learned judge who tried the case was right in his findings as to the facts, as well as in his ruling as to the law.
The appeal should be dismissed with costs.
Appeal dismissed with costs.