(DE- APPELLANT, *Feb.
FENDANT) .........
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*May 6.
AND
ANDREW M. LEE (PLAINTIFF)...............RESPONDENT. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE.)
In an action for damages by an employee for injuries sustained while operating an embossing and stamping press, it appeared that when the accident causing the injury occurred, the whole of the employee's hand was under the press, which was unnecessary, as only the hand as far as the second knuckle needed to be inserted for the purpose of the operation in which he was engaged. It was alleged that the press was working at undue speed, but it was proved that the speed had been increased to such extent at the instance of the employee himself, who was a skilled workman. Held, reversing the judgment sf the Court of Queen's Bench, that the injury occurred by a mere accident not due to any negligence of the employer, but solely to the heedlessness and thoughtlessness of the injured man himself, and the employer was not liable. APPEAL from the judgment of the Court of Queen's Bench for Lower Canada (appeal side) affirming the judgment of the Supreme Court, District of Montreal in favour of the plaintiff for $3,000 damages and costs. . The plaintiff brought his action for $6,000 damages for injuries sustained whilst employed by the defendants in operating an embossing and stamping press, which, he alleged, worked irregularly, and at too great speed and was not in good order, and that upon being urged to hurry his work his right hand was crushed in the press and had to be amputated.
The defence was in effect that no fault was to be attributed to the PRESENT.-Taschereau, Gwynne, Sedgewick, King and Girouard JJ. defendants, but that the accident was due to the carelessness of the plaintiff himself in thrusting his hand too far into'a dangerous machine in a manner quite unusual, unnecessary and improper.
The trial judge, Mr. Justice Archibald, found the defendant guilty of negligence, because it appeared that up to about two months previous to the accident the machine was geared to run at about 18 revolutions per minute; that the speed was increased so that it ran at the rate of about 29 revolutions per minute, and that after the accident the machine was restored to its previous speed; that the operation of the machine was irregular, probably owing to the variable resistance offered by one or more large machines which were attached to the same shaft in defendant's premises; and that the lever provided to throw the press out of gear when necessary was uncertain in its action. The learned judge concluded that the speed at the time the accident was excessive and dangerous, more especially when combined with the irregularity of the operation of the machine, and that the defendant, through his agent, was aware of the unsatisfactory condition and running of the machine previous to the accident in question, and should be held responsible in damages. The Court of Queen's Bench on the appeal affirmed the decision of the trial judge for practically the same reasons.
G. Stuart Q.C. and Francis McLennan for the appellant. The plaintiff was a skilled workman and had himself asked to have the speed of the machine increased.
No fault attributable to the defendant is shewn to have caused the accident, but it was rather the result of plaintiff's own imprudence. The defendants cannot be held liable for injuries unless they were actually the result of negligence clearly chargeable against them. See remarks of Lord Chief Justice