KING J.-Assuming it to be reasonable as between the mine owners and their servant that the dynamite needed for immediate use in the mines should be taken from the magazine to the hoisting engine house at the pit's mouth, there to be thawed out in preparation for use, the evidence still shows that an unnecessary large Q.
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quantity was accumulated there at the time of the explosion.
The dynamite (or dualine as this preparation of it was called)'as received from the manufacturers was contained in wooden boxes of from 18 to 20 inches in . length by 15 by
The dynamite in each box weighed about 50 pounds, and was in the shape of sticks, J. of which there were sixty or seventy in each box. It was purchased by defendants in large quantities from the manufacturers, and was stored in a magazine constructed for the purpose upon defendant's premises at a safe distance from the works having regard to the possibility of an explosion. It appears from the evidence of Williams, the superintendent of the mine, that the daily average use was about four boxes, and that the course of business was that a person specially entrusted with the duty would, in the morning and again at noon, carry two of the boxes from the magazine to the hoisting engine room, were they would be deposited in a certain manner near a steam pipe for the purpose of being thawed, the temperature of the sticks being originally at about 400 Fahrenheit. This transfer of two boxes at each of these stated periods, instead of the entire number for the day at one time, evidently points to this as being in the opinion and practice of the company a reasonable limit to the quantity to be accumulated in proximity to the works.
The like conclusion follows upon the fact that the company with a view to safety had prepared a specially constructed zinc box in which to place the dynamite brought from the magazine, and that the capacity of this was limited to that of two of the original boxes. It consisted of two zinc boxes placed one inside the other, with an air space of a couple of inches all around between the two, and as thus constructed it is stated by the superintendent to be the best sort of a receptacle for the purpose. In ordinary course when the two original boxes were brought from the magazine their contents were transferred to the zinc box. The following appears in the examination of the superintendent:
?
Now it appears that at the time of the explosion, although half the working day was over, there were nearly four boxes in the hoisting engine house. The zinc box, capable of containing two of the original boxes, was nearly full, and there were also, upon the platform beside it, two other of the original boxes which had not been opened at all, in all a quantity of between 150 and 200 pounds in weight.
The defendants produced an expert witness named Penhale, the manager of another asbestos mine. It appears that at his works the magazine was 1,500 feet distant from other buildings, and that the thawing out process was carried on in a small building separate from others which, when not in use, was kept locked.
Upon his direct examination the following occurs:
? Then on cross-examination:
Clearly, therefore, upon the evidence adduced by the defendants themselves there was, at the time of the explosion, an unnecessary and unreasonable quantity of this highly dangerous explosive in dangerous proximity to the workmen engaged in carrying on their work; and no attempt is made to excuse or explain the circumstance.
King J. The negligence involved in this was one of the efficient causes Rivard's death which, as admitted and as found, was caused by the explosion that in fact took place, and was not the conjectural consequence of a smaller explosion.
The peril to life from high explosives is so great and, as shown by the evidence, the cause of their explosion frequently so obscure, that damage may fairly be anticipated as likely to ensue from the act one who accumulates an unusual and unreasonable quantity in dangerous proximity to others.
In placing it where an opportunity for damage may be created, either by the nature of the substance or by fortuitous circumstance or neglect of others or other cause, he takes the chance of the happening of such other event and cannot disconnect himself from the fairly to be anticipated consequences of his own negligence. It hence becomes unnecessary to determine as to other agencies contributing to the result, provided it appears that neither the deceased (nor any one whose act or omission may prove a legal bar) had any connection with it, and Liat he is not precluded from urging defendant's neglect.- Then as to whether Rivard had any part in causing the explosion; he was employed as engineer in a wholly distinct but contiguous building, and his body was found more remote from the point of explosion than the farthest limits of his engine house. Besides, the fact that victuals were found in his mouth shows (as stated by the superintendent) that~he was eating Tt his dinner when the explosion took place, and the court below naturally acquitted him of all participation in the cause of the explosion.
Then as to the acts or omissions of fellow'servants. According to the French law common employment is, J. no defence, and does not exonerate the employer from liability for the negligence of a servant who may by his negl.gence have caused an accident from which another servant has suffered.
This has been held. more than once in this court.
The Queen v. Filion (1) ; The Queen v. Grenier
Nor was the deceased a consenting party to the excessive quantity of dynamite being deposited near him, for theevidence shews that the deposit of such a quantity was contrary to the usual course of business.
In the declaration, (after averring that the explosion which caused the death was that of at least three boxes of dualine, in the building contiguous to that occupied by the deceased,) it is averred that
In what has been adduced there is proof of this allegation and hence the appeal should be dismissed. GWYNNE
J. (dissenting).-If this case were not concluded by authority I must confess that I should have reason to distrust my own judgment in hesitating to concur in a judgment in which so many of my learned brothers, as well in the courts of the Province of Quebec, as in this court, so unanimously concur. However, I am bound to say that in my opinion, the case is concluded by the authority of this court in several cases, and by the authority of all the courts in England in very many cases wherein the principles governing the determination of cases of the nature of that now under consideration are clearly laid down, to all of which authorities thejudgment in the present case is, in my opinion, directly adverse. That judg- J. ment appears to me to introduce a wholly new principle for the determination of actions like the present one, namely, that although the cause of the explosion which occasioned the injury complained of is admitted to be absolutely unknown, it is nevertheless to be presumed that the explosion was caused by some negligence of the defendant, that is to say, that some negligence of the defendant was the causa causans of the explosion and that the onus of removing this presumption is cast upon the defendant.
This, with great deference, appears to me to amount to the proclamation of the doctrine that upon the defendant was cast the onus of showing the actual cause of the explosion which is admitted to be absolutely unknown.
It has been judicially declared over and over again that in actions of this nature the inquiry is whether the defendants were guilty of negligence which was the causa causans of the accident which occasioned the injury complained of, that is to say, in the present case, was the causa causans of the explosion which killed
Rivard the deceased husband of the plaintiff. In the statement of claim the only matter which is charged as the negligence of the defendant, the now appellant, which was complained of, was the mere fact of having the explosive material which consisted of dynamite in the building where the explosion took place, which killed Rivard, and two other employees of the appellant, namely Pierre Ratt and Alphonse Morin.
It was not contended that there was any positive provision of law which made it to be unlawful for the defendant- to use the dynamite in the manner in which was being used, or to have it in the building where it was when the explosion took place, but at the trial in the Superior Court several suggestions were made on behalf of the plaintiff as to the actual cause of the Gwynne J. explosion and, among them, that it had occurred in some unexplained manner by spontaneous combustion.
If it had been so caused it did not clearly appear how such a cause of the explosion could be attributed as actionable negligence in the defendant, but this is unimportant now, for the evidence established sufficiently the absolute impossibility of dynamite being exploded by spontaneous combustion, and this suggestion as well as the others made on behalf of the plaintiff were rejected by the learned judge of the Superior Court as wholly inadmissible. The learned judge in pronouncing his judgment thus expresses himself: In another place the learned judge says:
The material question he thought was:
But with deference, the actual cause of the explosion is the very essential point with which we have to deal in the present action, the very gist of which is to establish that cause to be due to the negligence of the defendants as the causa causans of the explosion. and with the consequences of the explosion we cannot intelligently and judicially deal until we know its cause. Moreover, in order to determine whether prudent precautionary measures to prevent the explosion which occurred had been taken, it is necessary to know what it was that caused the explosion, for by that cause the nature, character and sufficiency of the . precautionary measures that should have been taken to prevent the explosion must be tested. Otherwise J. the happening of the explosion must be taken as conclusive evidence of its having been caused by the negligence of the defendant.
The learned judge, while rejecting the suggestions made on behalf of the plaintiff as to the cause of the explosion, came himself to the conclusion that the explosion was caused by fire kindled by the ashes of pipes, by matches or in some other way before the engineers had left off work at 12 o'clock. This fire, as he held, had remained latent during some time and developed itself and produced the heat requisite to cause the explosion, that is to say 3600 F., for by the evidence it had appeared that for fire to cause the explosion of dynamite, it was necessary that a heat of 3600 F. should be attained. The sole evidence upon which this theory of the explosion having been caused by pre-existing fire was rested consisted of evidence which was given to the effect that Morin, one of the persons killed by the explosion, and who had just reached the door of the building and was about to enter therein when the explosion took place, cried out "fire" upon the instant of the explosion taking place, and was killed.
Now, with the greatest deference, it appears to me that this theory of pre-existing fire, caused in the manner suggested, having been the causa causans of the explosion belongs as much to the region of conjecture and surmise as did the theory of spontaneous combustion, and the other theories put forward on the part of the plaintiff and which were rejected by Ti the learned judge as inadmissible.
Moreover, the evidence had shown that when the engineers left off working at 12 o'clozk for their dinner everything was in a good and safe condition, and further assuming that a pre-existing fire caused in the manner suggested J. was the causa causans of the explosion, it was as reasonable to conclude that such fire was caused by ashes from pipes or by matches in the hands of the deceased Rivard or of some other of the employees of the defendant who were in the buildings before the engineers stopped work at 12 o'clock, or in the hands of those who remain in the building after twelve o'clock.
All however is mere conjecture and surmise. In the Dominion Cartridge Co. v. Cairns this court was of opinion that for the determination of that case,
This contains the very gist and substance of that decision, and, if I am not mistaken, the Privy Council refused leave to appeal from that judgment (2). The last sentence in tb e above judgment appears to describe precisely the condition of the present case in this, that the actual cause of the explosion is still a matter absolutely unknown and it cannot therefore be judicially pronounced that the explosion was caused by negligence of the defendant.
So likewise, and for the same reason the judgment in the present case appears to me to be in direct conflict with the unanimous judgment of this court in the Canada Paint Co. v. Trainor wherein the court said:
and for that reason the appeal was allowed.
So likewise and for the same reason the judgment in . the present case now before us in appeal appears to be e J. directly at variance with the judgment of this court in The Montreal Rolling Mills Co. v. Corcoran and the principle there enunciated as governing actions of like nature as the present, and indeed at variance with all the judgments of this court and of the courts in England in cases like the present.
In Tooke v. Bergeron an appeal was allowed by this court because it was not shewn sufficiently in the evidence that the cause of the accident was directly due to the negligence of the defendant, appellant. So likewise in Cowans v. Marshall (4), which was the case of injury caused by explosion, and wherein the principles governing cases of this nature as established in the English courts, were discussed, an appeal was allowed because the evidence failed to prove the cause of the explosion.
So likewise in the Canada Coloured Cotton Co. Kervin the latest case in this court upon the question under consideration. The case was of a person employed in a cotton factory being caught by the machinery and killed. The case of the plaintiff, the personal representative and widow of the deceased, was that the deceased was caught by the machinery at the place where in the course of his duty he was engaged, and that he had been so caught by reason of the default and neglect of the appellants in not having the place where the deceased was engaged in the discharge of his duty sufficiently protected. The case of the appellants was that there was no evidence of the accident having been caused at the place suggested by the plaintiff, and that the accident might have occurred at a different part of the machinery where the deceased had no business to be, J. and the court allowed the appeal upon the ground that the evidence failed to establish the cause of the accident and how it had occurred. This is the latest case in this court and in it the principle is unequivocally affirmed that if the actual causa cavsans of the catastrophe which causes injury to any one is unknown, judgment cannot be recovered against the defendant upon a charge of his negligence having caused the accident.
It is suggested that the quantity of dynamite which was in the building at the time of the explosion was greater than should have been allowed to be there, but there is nothing in the judgment asserting a contention, nor anything in the evidence to support a contention that the quantity of the dynamite in the buiding had, or could have had any effect in causing the explosion.
In fine, the .judgment of the Superior Court appears to me to amount to this, that although the actual cause of the explosion is absolutely unknown, and although no cause can be suggested for it which rests upon anything else than conjecture and surmise, still as the explosion could not have taken place in the building if the dynamite had not been there, this is sufficient to require the court to pronounce a judgment that the explosion was caused by negligence the defendant.
If the judgment of the Superior Court be maintained by this court, it appears to me to be so in conflict with all the judgments heretofore rendered by this court in cases of a like nature with the present,