Judgment of the Court
GWYNNE J.-The respondent instituted this action against the appellants for injuries sustained by him when employed as a machinist in the service of the defendants, caused, as he alleges, by the negligence of the defendants.
In such an action it was necessary for the plaintiff to allege in his declaration the act or MAS.ALL, acts, whether of omission or commission, relied upon by him as the cause of the injury sustained by him, Gwynne J. and that such act or acts constituted negligence of the defendants or of their servants for whom they were responsible.
Accordingly in his declaration, after certain prefatory allegations to the effect that he had been employed to carry out the junction of the casing of a tank which the defendants were constructing in connection with the Montreal waterworks, and that he proceeded with the work inside the tank by bolting the iron work together, and that when the work was sufficiently advanced to be ready for the lead to be poured into the strip between the tank and the casing he applied to the defendants for two pounds of lead and that they only gave him one pound, which as the plaintiff alleges was insufficient, and that the defendants told the plaintiff to work upon the bolting of the sides of the junction at the outside, he then proceeds to allege the acts relied upon by him as the cause of the injury which happened to him, and the nature of the injury, as follows:
7. In obedience to such orders the plaintiff immediately began work on the outside, and while he was so employed the defendants without in any way warning the plaintiff sent other workmen to finish the pouring of the boiling lead on the unfinished part inside, although they and their managers knew that the plaintiff was working in an exposed position on the outside.
8. The person so sent to pour the lead on the inside began to do so, when some of the boiling lead so poured came into contact with part of the oakum filling which was in a wet condition owing to the negligence of the defendants, their managers and workmen, and also to the fact that the water had penetrated to it from the water gates constructed by the defendants at the head of the said tank, the said water gates being in a defective, improper and dangerous condition due to the unworkmanlike way in which they had been put in by the defendants.
9. An explosion immediately occurred and the steam and lead Cw therefrom in a moments time rushed through the apperture connecting the casing with the tank and struck the plaintiff's eyes before he could save himself.
10. After suffering excruciating pain and being confined to the Gwynne J. hospital and to his house for a long time the plaintiff now finds himself blind in both eyes for life as a result of .the said accident. The said accident was in no way due to any act or omission on the part of the plaintiff, but was on the contrary due to the negligence of the defendants, their managers, and representatives. 12. The defendants were in particular negligent and blameable in three important respects, to wit :- First, in not supplying the plaintiff with two pots of lead so as to finish the inside work, as he himself had requested them to do upon commencing that part of the work.
Secondly, in sending the plaintiff to work in an exposed place and in directing other persons to finish the work without informing him. Thirdly, in allowing the oakum to be in a wet condition.
The plaintiff claimed fifteen thousand dollars. The defendants in their pleas in substance denied that the explosion which was the cause of the injuries sustained by the plaintiff was occasioned by any negligence of theirs and averred that the plaintiff sustained the injuries of which he complains by reason of his own negligence and imprudence.
To this defence the plaintiff answered by denying that he sustained the injuries by any negligence of his own, and he re-asserted that, on the contrary, the said accident was wholly owing to the negligence of the defendants.
The trial took place upon questions submitted to the jury upon an assignment of facts under the provisions of arts. 353 and 414 C. C. P.
In consequence of the manner in which these questions were answered by the jury and for alleged misdirection in the charge of the learned judge before whom the case was tried, the defendants moved for a new trial which was refused by the Court of Review. They thereupon appealed to the Court of Queen's Bench in Montreal, a majority of which court, the Chief Justice Sir Alexander Lacoste dissenting, dis- Cowns missed the appeal.
Hence the appeal to this court. Concurring as we do in the dissentient judgment of the Chief Justice, which shows very clearly, as we e think, that if the judgment of the majority of the Court of Appeal should prevail the statutory provisions contained in the Code of Civil Procedure of the province in relation to trial.by jury would be wholly set aside, it might be quite sufficient for us to express our concurrence in that judgment, but the argument pressed very earnestly upon us by the learned counsel for the respondent calls for some few remarks
The argument pressed upon us was that paragraph 11 of the declaration of the plaintiff above set out in full contained an averment of an independent cause of action which rendered all inquiry into the acts of negligence charged in the 8th paragraph and specially designated in the 12th paragraph wholly unnecessary and irrelevant, and that the effect of the plaintiff's answer pleaded to the defendants' pleas was that the plaintiff abandoned the particular acts alleged in the declaration as the acts of negligence complained of and rested wholly on the charge of negligence generally as contained in the 11th paragraph.
This argument, if not based upon appears to be sanctioned by, the charge of the learned judge who tried the case to the jury, for he appears by it to have told the jury that the 4th question which is,
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was the important question, and that if they should answer either affirmatively or negatively then that the 5th, 6th and 7th questions became absolutely unnecessary. However, as the questions were put, he submitted them to the jury, observing however that if he had prepared the questions he would have omitted them altogether.
Now, from this contention that the 11th paragraph of the declaration contains an independent cause of action and that the plaintiff's answer to the defendants' pleas had the effect claimed, we must dissent wholly. The 11th paragraph, as is very plain from its terms and context, contains simply an allegation that the " said " accident, namely, the accident caused by the explosion mentioned in the 9th paragraph, which explosion was caused by the acts mentioned in the 8th paragraph, was in no way due to any negligence of the plaintiff, but was on the contrary due to the negligence of the defendants, which had already been charged in the 8th paragraph.
This 11th paragraph in fact contains nothing more than a redundant repetition of the allegations in previous paragraphs-that the explosion was caused by the acts of negligence already alleged; it did not in any respect render it unnecessary for the plaintiff to prove in order to succeed in his action the particular acts of negligence relied upon by him as those, which caused the explosion.
Then in the 12th paragraph the plaintiff alleges three particular acts which he avers to be important and which he charges to have been acts of negligence of the defendants, one of which is mentioned in the 8th paragraph namely-" in allowing the oakum to be in a wet condition."
Then as to the plaintiff's answer to the defendants' pleas it is simply a denial of the negligence imputed by the defendants' pleas to the plaintiff as the cause of the injuries he had sustained and a repetition of the allegations in the declaration that they were due to the negligence of the defendants. This mode of pleading is, in effect, simply equivalent to a "joinder of issue" pleaded by a plaintiff to a defendant's plea of like nature according to the form of pleading in use in the other provinces of the Dominion. But the principles of pleading in an action of this nature must not be lost sight of and it has not Cowus been suggested as regards them, that there is any difference between the jurisprudence of the Province of Quebec and that of the other Provinces of the G J. Dominion and of England, although there is a difference between their forms of pleading and in procedure, and in the effect of what is called contributory negligence.
It is an established principle that a plaintiff.can succeed in an action only secundum allegata et probata, and that in an action like the present for negligence causing an injury to the plaintiff he must allege and prove facts sufficient to shew a duty owed by the defendant to the plaintiff and a breach of such duty, and that such breach- of duty occasioned the injury complained of; affirmative proof of the facts relied upon as constituting the negligence complained of must be given by the plaintiff, and such facts must be inconsistent with due diligence on the part of the defendant, and therefore if the evidence should be equally consistent with the existence or non-existence of negligence the plaintiff cannot succeed.
Bullen and Leake on Pleading p. 9 and precedents of declarations passim. Cotton v. Wood (1); Ham mack v. White ; Montreal Rolling Mills v. Corcoran In Wakelin v. London and South Western Railway Co. (4), an action by the representatives of a deceased person alleged to have been killed by the negligence of the defendants, Lord Halsbury, L. C., says at page 44:
In the same case, at page 47, Lord Watson held that it lay on the plaintiff to prove affirmatively some negligent act or omission on the part of the defendants or their servants which materially contributed to the injury complained of; that the burden of proof lies on the plaintiff does not admit of dispute, and he adds: The case of .Montreal Rolling Mills v. Corcoran (1), was decided upon the same principles recently in this court.
Now in the case before us the plaintiff in his declaration alleges that the cause of the injury complained of was the explosion mentioned in the 9th paragraph.
That this is an undoubted fact is not disputed. He also alleges that this explosion took place from the facts alleged in the 8th paragraph. These allegations and that charged in the 7th paragraph constituted the whole of the negligence complained of in the declaration and to the acts so charged as constituting the negligence complained of the plaintiff's action and his proof therein are confined.
See the observations of Lord O'Hagan in Metropolitan Railroay Co. v. Jackson at page 202. It is to these matters that the question No. 5 in the assignment of facts was applied. That question is divided into four parts, as follows:
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To which the jury answer that there was no evidence. As to this question it must be admitted that it was on an immaterial point for it could not be held that such neglect if it had been established in evidence is what the law regards an act which was cause of the explosion.
However, the jury have by their answer substantially found that this alleged act of omission was not established.
to which the jury answer that the place was "not considered exposed."
Thus substantially also finding that the alleged act of negligence was not established. to which the jury answer " No."
They thus negative the negligence charged in that respect.
to which the jury answer " not wet when put in." Now the evidence showed that the immediate cause of the explosion was the wet condition in which the oakum was when the lead was poured in, and the answer of the jury to this question certainly wholly fails to find that such wet condition was attributable toany act of omission or of commission of the defendants or for which they are responsible, and that they were so responsible was the most material fact in the case for the plaintiff to establish; indeed, in view of the other answers of the jury to the 5th question, the sole point upon which the question of the liability of the defendants rested. The 6th, 7th and 8th questions related to that part of the defence which charged the accident to the plaintiff to be attributable to the plaintiff's own negligence and imprudence, and as to. this the jury have by their answers to the questions. submitted to them found that " to a certain extent " the accident was attributable to the plaintiff's own imprudence and want of care, and for this reason they have deducted from the total sum of $7,500 as the amount w Jof plaintiff's damages the sum of $3,500.
The result of all this appears to be that the jury have attributed to the plaintiff himself nearly half of the injury which he has suffered and they have failed to find that the defendants are guilty of the only act of negligence charged against them in the declaration and of which any evidence was offered as constituting the cause of the explosion which was the very gist the matter in issue as affecting the defendants' liability; for these reasons we are of opinion that the judgment for the plaintiff cannot be sustained, and that the defendants' application for a new trial should have been granted. The appeal must therefore be allowed with costs in this court and also in the Court of Queen's Bench, and we order a new trial and without costs, as we are of opinion that the contention of the appellants that the learned judge's observations to the jury in relation to the 4th question and the matters upon which the learned judges directed them that that question turned, is well founded.
As the new Code of Civil Procedure, Art. 427 enables the judge presiding at a trial to add to strike -out or amend any of the facts assigned to be submitted to the jury if he considers that by so doing a more perfect trial of the issues will be secured, it will no .doubt be a subject of special consideration that the questions submitted to the jury shall be so framed as to avoid confusion and contradiction in the answers -of the jury and to arrive at the truth of the cause of action which the plaintiff has affirmed and which the defendants have denied, namely, that the defend- :ants are responsible for the explosion which is alleged by the plaintiff to have caused him the injury of which he complains.
Cowns While juries naturally feel deep sympathy with the plaintiff, as indeed every one must do, for the very serious injury he has suffered, the defendants have a right to insist that they shall not be made responsible therefor . unless their responsibility shall be established in accordance with the principles law applicable to the case with which they are charged by the plaintiff in his declaration.
Appeal allowed with costs.
New Trial granted without costs.
Solicitors for the appellants: Bisaillon, Brouseau.
Lajoie.