Majority
Robinson Q.C. for the appellant.
May for the respondent.
Judgment of the Court
CHIEF (Oral).-We are all of opinion that it is impossible to get over the fact that the initial post on appellant's claim was south of the boundary.
Two courts in British Columbia have so decided, which alone would be sufficient, but beyond that the fact is not only clear on the evidence, but is conceded by the appellant.
The necessary consequence is that his claim is utterly void.
As Mr. Justice Martin says, in giving judgment for the Supreme Court of British Columbia, the position is the same as if there had never been such a claim The appeal must be dismissed with costs.
Judgment of the Court
THE CHIEF JUSTICE.-This is an action recover damages for an injury to the appellant, the plaintiff in the action, caused as it is alleged by the respondents' negligence.
The respondents in their defence deny the negligence imputed to them, and also set up that if the appellant was injured by the negligence of any one it was by that of a fellow servant of the appellant, in the same employment.
The action was tried before Mr. Justice Irving and a special jury.
The evidence given at the trial has not been printed and we have not been furnished with a copy of it by the appellant, as it was suggested at the hearing of the appeal that we should be. It appears, however, from the factum of both parties that the only neglect of duty imputed to the respondents was that set forth in the statement of claim, namely, " having the track in Justice.
a dangerous condition from the growth of long grass and weeds " in which the appellant's foot became entangled and so led to the accident.
The learned judge left several questions to the jury, who found that there was negligence on the part of the respondents, and assessed the damages at $6,500.
Notwithstanding this finding, and upon the evidence which he was entitled to consider, the judge entered the judgment for the respondents.
Upon appeal to the Supreme Court en banc this judgment was affirmed. Although the point does not seem to have been taken either at the trial or on the appeal, it appears to us that there was no evidence of negligence upon which the jury could have reasonably found for the appellant.
It was the duty of the judge to determine whether there was any evidence of negligence proper to be submitted to the jury. This involves the consideration of matters of fact, and in determining it judges are to bring to bear their common experience of such matters as jurors have to do in questions fact left to their decision.
This is so well settled by the highest authority that there can be no question the correctness of the principle. Dublin, Wicklow and Wexford Railway Co. v. Slattery ; Flannery v. Waterford and Limerick Railway
It is not of course every omission to do something which would have avoided an accident which constitutes negligence in law.
In order that a duty should be imposed upon a person the neglect of which constitutes an actionable wrong, it must be apparent that the want of care or attention is reasonably likely to endanger the safety of others. It is not sufficient that the omission did in fact cause an accident, if it was not to some extent obvious that such consequence was likely to result from it.
This is, it is true, to a great extent a question of .degree but still it is one which it is held must be dealt with by the judge in deciding the preliminary question whether there is any evidence proper to be left to the jury.
Crafter v. The Metropolitan Railway
Co. was a case in which this rule was acted upon, and so far as I can judge from the meagre report of the case of Smithlwhile v. Moore (2) it was also there applied by Mr. Justice Phillimore.
Can it then be said in the present case that the permitting grass and weeds to grow on the side track was so obviously likely to result in danger to the respondents' employees that it constituted negligence ?
In point of fact no doubt we must assume that the accident to the appellant resulted from such growth but that, as has been said, is not conclusive.
The brass facings on the stairs in the case of Crafter v. The Railway Co. (1)
led to the accident in question there, but it was not held to establish negligence, nor was the broken pane of glass in the action which came before Phillimore J. I am of opinion that in the present case the not keeping down the natural growth of weeds and grass was not such an omission as could reasonably have been foreseen to be likely to endanger the safety of the railway servants working upon the track.
Upon the other point also, that of common employment, upon which the court below proceeded, the judgment is, we think, in all respects right. The