Ince v. Toronto (City)

GWYNNE Jf.-In thejudgment of the Court of Appeal at Toronto in this case and in the reasons upon which that judgment is founded I entirely concur. For the suggestion that the original grade upon which the street crossing where the accident occurred was constructed was so faulty and defective as to constitute any ingredient in establishing that "gross negligence" of the Corporation necessary to maintain an action against them, there was not in the evidence the slightest foundation whatever; and the only other suggestion of negligence of the Corporation was in substance to the effect merely, that they had not succeeded in preventing the severe inclemency of the weather upon the morning in question, in which inclemency a high wind travelling at the rate of from 24 to 28 miles an hour constituted a most material element, from being attended with its natural consequences. There was evidence that- between the hours'of 7 and and of and 10 on that morning the Corporation had made use of the ordinary method to countervail the inclemency of the weather by spreading sand upon the crossing in question, but that such method proved ineffec. tual in the present case was reasonably attributable to the high wind not suffering the sand to remain upon the slippery places where it was spread. To hold the defendants responsible in the present case would not only have the effect, as stated by the learned judges of the Court of Appeal, of depriving the defendants altogether of the recent Ontario statute which exempts municipal corporations from liability in the cases of accidents occasioned by falling on icy TF places unless in case of gross negligence by the Corporation, but would introduce a new element of liability by making the Corporation responsible as for gross negligence in not providing means which shall prove effectual to prevent injury happening to any one from ice upon the streets in the city being occasioned by the inclemency of the weather however severe it be.

The appeal must, in my opinion, be dismissed with costs.

Appeal dismissed with costs.

Wright.