George Mathews Co. v. Bouchard

In an action by an employee to recover damages for injuries sustained there was some evidence of neglect on the part of the employers which, in the opinion of both courts below, might have been the cause of the accident through which the injuries were sustained, and both courts found that the accident was due to the fault of the defendants either in neglecting to cover a dangerous part of a revolving shaft temporarily with boards or to disconnect the shaft or stop the whole machinery while the plaintiff was required to work over or near the shaft.

, that although the evidence on which the courts below based their findings of fact might appear weak, and there might be room for the inference that the primary cause of the injuries might have been the plaintiff's own imprudence, the Supreme Court of Canada would not, on appeal, reverse such concurrent findings of fact.

APPEAL from the judgment of the Court of Queen's Bench for Lower Canada (appeal side) affirming the judgment of the Superior Court, District of Ottawa, which maintained the plaintiff's action with costs. In order to make certain repairs that had become necessary in their factory, the company had erected a temporary scaffolding on which there was a platform fourteen feet square at the height of about eleven feet from the floor, the edge of the platform at one end being close to the main shaft which, at this point, was PRESENT:-Sir Henry. Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ.

fitted with a collar to keep it from slipping. The collar was fixed to the shaft with a set-screw, the head of which protruded, and the condition of the whole arrangements thus made for the workmen's convenience was well known to the plaintiff who had assisted in erecting the scaffold and platform. While at work on the platform the plaintiff was ordered to place a piece of timber in position near the shaft which was then in motion and while doing-so his foot was caught and crushed by the set-screw in such a manner as to make the amputation of a part]of the foot necessary and render him lame for life. The plaintiff brought his action for $4,000 and the defendant, amongst other defences, pleaded that the injuries were caused by the plaintiff's own fault and carelessness, and that they could not have occurred had he used ordinary prudence in avoiding the danger of which he was well aware.

Bench, on appeal, Mr. Justice Boss6 dissenting. In rendering his judgment' in the trial court Mr. Justice

Gill considered " that the defendant was at fault in not either covering the shaft temporarily with boards, or by not disconnecting the shaft so as to stop it, or by not altogether stopping the whole machinery whilst plaintiff and the other men were required to work over or near the said shaft."

The plaintiff had been employed by the company for some time, as a general handy man, which he had represented himself to be, but he was careless and imprudent in his work upon the scaffolding at the time of the accident.

It was a temporary structure eleven feet above the floor, the shaft was visible to anybody working on the scaffolding, the plaintiff himself had changed the collar to the outside of the box the day before the accident, placed the set-scew in the position where it caught his foot, and the injuries were due solely to plaintiff's own fault. There is no proof of any careless or negligent act on the part the company and employers are not insurers of either the lives or safety of their employees.

See Mercier v. Morin (1); Walsh v. Whiteley (2) ; Sarault v. Viau (3); The Montreal Rolling- Mills Co. v. Corcoran (4) ; The Globe Woollen Mills Company v. Poitras (5) ; Roberts v. Dorion (6); Currie v. Couture (7) ; Tooke v. Bergeron (8) ; Sourdat, " Responsibilit6," no. 912; 34 Dalloz Rep. vo." Ouvrier," nos. 103, 104, 108 and note 1 atfoot of page 2106. It was impossible to stop the shaft revolving as it was used not only to drive all the machinery in the building but also to produce air currents necessary to prevent the loss of the hog products under treatment in the factory; an inconvenience and possible loss which could only be avoided by keeping the shaft constantly in motion.

See Smith v. Baker 4- Sons Poll v. Hewitt

(dissenting.) - The respondent's action is based on the ground that while employed as a workman in appellant's establishment, he, on July 31st, 1896, was ordered to mount a scaffolding and put in place a piece of timber near a shaft which was then in motion, and that, while so doing, through appellant's negligence not having the shaft properly covered, the respondent's foot was caught in the machinery and the little toe of his left foot torn off, necessitating amputation of a part of the foot, and rendering him lame for life.

The damages are set at $4,000.

The appellant pleaded a general denial, and an exception in which it was alleged that the respondent had been employed by the company for some time as a general handy man; that he was generally careless and imprudent in performing his duties; that the scaffolding on which he was working at the time of the accident was a temporary structure some eleven feet from the floor; that the shaft was visible to anybody working on the scaffolding, and that if respondent was injured it was due solely to his own imprudence, negligence and fault.

It appears by the evidence that the accident occurred under the following circumstances:

Certain repairs having to be made in the appellant's slaughter house and pork packing establishment, at Hull, P.Q., it became necessary for that purpose to erect a temporary scaffolding eleven feet from the floor and about seven feet from the roof. That was done by the respondent himself, with one Moore and one St. Denis. Touching one end of the scaffolding, which was fourteen feet square, was the main-shaft, and on the mainshaft, a collar to keep it from sliding; the collar was fixed to the shaft by a set-screw, the head of which protruded.

While working with Moore on the scaffolding and lifting a piece of timber, the respondent pushed his foot too near the end of the shaft, so that it was caught by the set-screw and badly crushed. The witnesses were not heard in the presence of the judge who rendered the judgment of -the Superior Court condemning appellants to pay respondent $1,323, which judgment was confirmed by the Court of Appeal, Mr. Justice Boss6 dissenting.

I am of opinion that there is error in these.judgments and that the appeal should be allowed. There is no evidence whatever that the negligence of the company, assuming negligence to be proved, caused the accident in question, and an affirmance of the condemnation against it would unquestionably be at variance with our own jurisprudence.

Tooke v. Bergeron (1); Bur/and v. Lee (2); Canada Paint Company v. Trainor

The trial judge does not find that the accident was caused by the company's negligence. le simply finds two facts, 1st, the accident, 2ndly, the negligent act of the company, without connecling the one with the other in any way whatever. It seems to be taken for granted in the courts below that because there was an accident, and because there was an act of negligence, it follows that the plaintiff has proved his case.

Now, that is not the law.

He had further to prove clearly that the accident was due to the negligent act charged, and he has not done it. The evidence might be consistent with his theory, but it is equally consistent, to say the least, with the theory that the accident was due to his own carelessness, and it is a rule that where the evidence is as consistent with one state of facts as with another it proves neither. The negligence of the appellant did not justify respondent's carelessness and imprudence, and the evidence is all one way, to use the expression of one of the witnesses that " there was no reason for a man meeting with an accident except throughihis own carelessness."

The accident, it is true, would not have happened if this shaft at that spot had been covered, but it is as clear that it would not have happened if respondent had used ordinary care and prudence. In Tooke v. Bergeron if the machinery there in question had been protected by a board the accident would not have happened; yet, the action was dismissed because the victim's own act was the direct cause of the accident.

That-is a precisely similar case.

Contributory negligence by the defendant is unknown in law as a ground to support a claim of this nature, where the accident would not have happened but for the claimant's own want of ordinary prudence. Volenti non lit injuria is the rule under the civil law as it is under the English law.

For instance, in France, where by the collision of two waggons during the night, one of the two drivers has been hurt, he cannot, on the ground that the other did not leave him half of the roadway, according to the regulations, recover damages against him, if he himself did not carry the proper lights on his waggon

And, in

Louisiana, it is now well settled that if the party injured might have avoided the accident by a reasonable amount of prudence, he cannot recover damages.

Alercier v. New Orleans and Carrollton Railroad Company (3); Schwartz v. Crescent City Railroad Company

; Woods v. Jones et al

Here, there was no danger whatever on the platform in question for a man of ordinary prudence.

It was large, well built, and well lighted, and respondent, better than any one else, knew of the common sense care required from any one working upon it, as he himself had placed the set-screw where it was when the accident happened.

We ruled in Tooke v. Bergeron (1) that where an employee sustains injuries in a factory through coming in contact with machinery, the employer, though he may be in default from not covering that machinery as required by the statute, is not liable in damages, unless it is shown that the accident by which the injuries were caused was directly due to his neglect. I feel bound by that ruling to hold here that appellant is not liable because not only it does not appear that the accident in question was directly due to their neglect, but it, on the contrary clearly appears that but for respondent's want of prudence and ordinary care, the accident would not have happened.

:

Gi J.-The principles governing actions like the present one are very well known; they have been laid down by this court in several cases and more particularly in The Montreal Rolling Mills Company v. Corcoran (2); and Tooke v. Bergeron

The rule law is therefore well established that no employer is responsible for his fault towards an employee, unless the latter proves that it is the immediate, necessary and direct cause of the injury he sustains. That rule is embodied in article 1053 of the Civil Code of Quebec; it is one of almost universal law among civilized nations, as well under the civil law as under the common law of England, a proposition which the authorities quoted in The Montreal Rolling Mills Company v. Corcoran (1) fully establish.

It has, however, been recently assailed with great vigour by eminent

""" jurists, and among others Labb6, Prosper Staer, G-ibon, . Hubert-Valleroux and B6chaux, as being unjust and unfair to the workingman who often finds it difficult Girouard J. and sometimes impossible to give a true account the accident; but in no less than ten or twelve decisions, which have reached us since The Montreal Rollinz Mills Company v. Corcoran was decided, the old rule has been re-affirmed most emphatically by the highest courts of France; Cass. 12 Dec. 1893, Pand.

Fr. '94, 1,507; Cass. 6th Fev. 1894; ibid. '94, 1,519;

Cass. 5 Avril, 1894, ibid. '95, 1,90; Orl6ans, fev.

1894, Douai, 21 fev. 1894, ibid. '94, 2,140; Paris, 4 Avril et 27 juillet, 1894, ibid. '95, 2,209; Cass. 7 aout, 1895, ibid. '95, 1,485; Cass. 15 juillet, 1896, et 13 jany. 1897, ibid. '97, 1.513.

These two last arrels have been accepted as having settled the French jurisprudence, and no hope of a remedy is entertained except by applying to the legislature.. The whole situation is carefully summarized in the interesting annotations

Mr. Fernand Chesnay to the reports of the arrits

The learned jurist concludes at page 517:

Finally, with regard to the " contravention aux lois reglements " or the police regulations, it must be noticed that the French laws, like the Factories Acts and other similar statutes in force in England, Scot- Bo land, Ontario and other British colonies are very dif- Girouard J. ferent from the Quebec Act; they do not contain any such enactment as section thirty-seven or article 3053 of the Quebec Revised Statutes, which declares in express terms that its provisions are not intended to modify " in any manner " the civil responsibility of the employer towards his employee.

Now, has the plaintiff proved that the defendant has been guilty of negligence which was certainly the cause of the accident?

The evidence adduced by him is weak; it is urged by the appellant, and not without reason, that his own imprudence was the primary cause of it; and if we are called upon to reverse a decision rendered in favour of the appellant, we should probably decline to do so; but we are far from being satisfied that the judgment appealed from is clearly.wrong; there is some evidence of neglect on the part of the employer, which two courts have considered as having caused the injury sustained, and in such a case the jurisprudence of this court is well settled that we would not disturb the finding of these two courts. The Superior Court and the Court of Appeal, almost unanimously, have found that the accident was due to the fault of the defendant

Witness Blondin says that in some of the mills in Hull (where the accident happened), and he'mentions those of Mr. Eddy, the shafts are generally covered, and he adds:

The position of the respondent was undoubtedly dangerous, but it is to be regretted that, with regard to the practice prevailing among mill-owners in Hull, the evidence is not more full and conclusive, although Girouard J. easily obtainable.

The dangerous position of the shaft was, in the opinion of the official inspector,

Guyon, the cause of the accident, and although it is only the evidence of an expert, it is entitled to a great deal of weight, especially as there is in fact no clear evidence of the direct and immediate cause of the accident.

There is also some evidence that the year previous, in 1895, Mr. Guyon had called the attention of the defendant to the unprotected and defective condition of the shaft, although this can only be inferred from his testimony, his letter written at the time to the appellant and intended to be filed of record as exhibit

" Y" to complete it, not being in the printed case before us, but it is proved that his recommendations, whatever they were, were only carried out in part, a fact he ascertained on a subsequent visit, made after the accident, in 1896.

Manufacturers should realize that it is in their interest to comply with the precautionary measures adapted by their neighbours~in similar establishments or suggested by the recognized authority, although their default may only subject them to the penalties or imprisonment; in doing so,j however, they may rest assured that they will save often troublesome and expensive litigation, sometimes irreparable injury, and in some cases, unfortunately too frequent, valuable lives.

Upon the whole and all the circumstances of the case being duly weighed, we think, but not without some hesitation, that the judgment of the two courts below should be confirmed, and the appeal is dismissed with costs.

GAUTHIER JEANNOTTE.

APPEAL from the judgment of the Court of Queen's Bench for Lower Canada which reversed, but without costs, the judgment of the Superior Court, District of Montreal, maintaining the plaintiffs action for libel and slander and condemning the defendant to pay one hundred dollars damages with costs as of an action of that class.

The circumstances under which the action was brought were as follows:

The plaintiff and defendant were rival candidates at an election of a member to represent the County of L'Assomption in the House of Commons of Canada, and during a public meeting of the electors at which both candidates were present the defendant stated to the meeting that he had bribed the plaintiff when he was presenting himself as a candidate, on the occasion of a former election for the Provincial Legislature, to retire from the field for a sum of money he had paid to him.

The defendant afterwards caused this state- :-Sir ment to be printed in a newspaper, and on a separate "dodger"

or fly-sheet, which was circulated in large numbers through the constituency, with a printed . challenge to the defendant and others implicated to justify their innocence of the charges made3 by taking an action for damages in case they were not guilty, and offering at the same time to make a deposit to cover the costs of suit. At the trial before Curran J. the plaintiff recovered a verdict which the Court of Queen's Bench set aside.

was of opinion that the appeal should be allowed and the judgment of Curran J. restored.

J.-Cet appel doit 6tre renvoy6. Nous n'avons Tien & ajouter aux remarques du savant juge en chef de la cour d'appel telles que publides dans le dernier num6ro des rapports judiciaires

L'analyse des faits de la cause y est complte et le raisonnement inattaquable.

Qu'il nous suffise de dire ici que Jeannotte ne devra pas. parce qu'il obtient le renvoi de l'action, croire qu'il 6chappe avec honneur de gette lutte devant les tribunaux. Dans un des paragraphes de son plaidover il r6clame le droit de dire publiquement de Gauthier qu'un candidat qui regoit une somme d'argent pour se retirer d'une lutte 6lectorale se vend et fait un acte d~shonorant.

Avec la cour d'appel, nous lui conc~dons ce droit, mais qu'il n'oublie pas que tout aussi d6shonorant est l'acte de celui qui ach~te ce candidat et de ses complices. L'appel est renvoy6, mais sans frais.

Les deux parties vont peut 6tre maintenant comprendre qu'elles auraient dfi pour plusieurs raisons 6viter ce proces. KING and JJ. concurred in the opinion that the appeal should be dismissed without costs.