Judgment of the Court
THE CHIEF JUSTICE.-All the learned judges before whom this cause came in the Supreme Court of New Brunswick agreed that there was no proof of misfeasance on the part of the appellant.
The case therefore altogether depends on the liability of the appellant for the non-repair of the street.
The accident, according to the evidence, was caused either by the difference of level between King Street and an adjoining private way, or it was caused by a subsidence of the footway which had been allowed to get out of repair. The sidewalk of King Street had been asphalted by the corporation and so raised to a higher level than the private way. If the accident was caused by this difference of level there would be clearly no misfeasance.
If, on the other hand, it was occasioned by the asphalt having been allowed to get out of repair, that would be mere negligence or non-feasance for which, according to the decisions of the Privy Council, no action will lie by a person injured in consequence of such neglect. The decision in Bathurst v. Macpherson as explained by Lord Hobhouse in giving judgment in Pictou v. Geldert proceeded altogether upon acts of misfeasance for which the corporation was undoubtedly liable. The Justice.
defendants there had dug holes in the highway which, if left open, constituted public nuisances. They covered these holes but not sufficiently, and the filling having given way the holes were left open, by which the accident was occasioned.
Nothing of this kind can be said of the acts of the appellant here in respect of the asphalted footway. Granting that the corporation had laid down this asphalt way and was bound as a public duty to repair it, the accident, if it did occur on the public way, was, at most, occasioned by the mere neglect of the corporation to keep it in repair. Then, assuming that the city was bound as a duty towards the public to repair, a point on which I express no opinion as none is called for in the present case, the respondent clearly has no right of action. The cases of Pictou v. Geldert and Sydney v. Bourke are in this aspect of the case conclusive authorities against the respondent's right to recover, and the nousuit directed by Mr. Justice Landry was entirely right. The appeal must therefore be allowed with costs. Appeal allowed with costs.