a- FANT, BY JAMES PARSONS,
APPELLANTS; NMay 18.
HIS FRIEND (PLAINTIFF)..........
-Nov.
AND
PIGGOTT & INGLIS (DEFENDANTS)...RESPONDENTS. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. KING J.-The negligence complained of, consisted in the leaving of a number of highly explosive detonators. & or caps in a place where they might innocently be picked up and handled in a way leading to their & explosion by persons unaware of their dangerous character
J.
At the trial the plaintiff was non-suited upon the ground that there was no evidence connecting the defendants with the act of leaving.the caps where they vere found. Upon direct appeal, the Court Appeal upheld the non-suit, per Burton C.J.O. and Maclennan-J.A , Osler and Moss JJ.A. dissenting. The facts of the case are shortly stated in the opinions of the learned judges.
Assuming what, upon the evidence, the learned Chief Justice thought might properly be found by a jury, viz., that the caps which were picked up were the property of defendants; and having regard to the proof that such kind of caps were kept by defendants in the tool box, in front of and near which the caps in question were found, and that they were taken out and put back as occasion might require by defendants' workmen; and having regard to the proof mentioned by the learned Chief Justice and Mr. Justice Maclennan, that workmen in defendants' service, upon the same work but in other gangs, found it useful and expedient when a blast was about taking place to hurriedly place any such explosives as they might happen to have in their possession under their tool box and then run away; it would seem to be a fair inference, (in the absence of circumstances leading to a different conclusion) to attribute the act of placing the defendants' caps upon the ground outside the box to those who alone are shown to have had the handling of them or the right of handling them. The alternative supposition that they may have been removed from the tool box by stranger and then left -upon the ground has no probabilities, and no evidence in its support. If there were circumstances leading to such conclusion it was for defendants, with their fuller knowledge of the way in which their property was managed, to supply the proofs.
On the case as it stands, the evidence seems sufficiently to connect J. defer dants with the act or omission by which the caps were placed or left where they were found.
Then as to the negligence involved in such act or omission, the law imposes a duty of carefulness upon those who have the management or control of things which are or may be dangerous to human life or limb. The danger to be apprehended from the indiscriminate handling of these detonators was so great and so obvious that a high degree of caution was reasonably to be observed on the part of defendants to prevent them falling into the hands of strangers.
None of the learned judges suggested that there was any lack evidence from which negligence might be deduced, provided that the defendants were proven to be responsible for the detonators being found outside the tool box.
As to the plaintiffs act in exploding the cap by picking the apparently harmless substance in the bottom of the case with a piece of wood, this was not an act necessarily importing want of due caution. Assuming that defendants negligently suffered such a dangerous instrument to fall into the hands of persons unaware of its character, they might reasonably have foreseen that it might in the hands of such persons be treated in such a way as to explode it, and the act of such person in ignorance of its dangerous character, whereby an explosion took place, could not be said to be his voluntary act in the sense that would incapacitate him from recovery.
If he was negligent and thereby contributed to the result still, unless such negligence is necessarily to be imputed upon the evidence, it would be for the jury to pass upon it. .
question was raised as to whether the place where & the caps were found was a place where the plaintiff Kig J. had no right to be; this however (as stated by the judges of the Court of Appeal) was, upon the evidence, a question for the jury.
For these reasons the appeal should be allowed with costs, the non-suit set aside and a new trial had. The defendants must also pay the costs in the Court of Appeal.