Challoner v. Township of Lobo

upon according to what was intimated by counsel at the argument.

Wm Wyld.

CHALLONER v. THE TOWNSHIP OF LOBO AND GEORGE OLIVER.

, APPEAL from the judgment of the Court of Appeal for Ontario (1) reversing the judgment of the tiial court and dismissing the plaintiff's action with costs.

The action was to restrain the corporation and their contractor from constructing a drain under authority of a by-law and, in the trial court, Meredith C. J. decided in favour of the plaintiff (2).

On appeal by the corporation to the Court of Appeal for Ontario, this judgment was reversed that court holding that the " last revised assessment roll " governing the status of petitioners in proceedings under the )rainage Act, was the roll in force at the time the petition was adopted by the municipal council and referred to the engineer for inquiry and report, and not the roll in force at the time that the by-law was finally passed. The contractor (Oliver) had been made a party to the appeal in the Court of Appeal for Ontario (1) and appeared at the hearing but did not himself appeal. On motion, subsequently made, the Court of Appeal for Ontario held that the effect of allowing the appeal of the corporation with costs did not give the contractor any costs on such appeal.

The present appeal was by the plaintiff (Challoner), both defendants being made respondents.

After hearing counsel for the parties, the court reserved judgment and, on a subsequent day, dismissed the appeal with costs against the appellant in the issue before the Supreme Court of Canada with the corporation but without costs to the respondent Oliver.

The following reasons for judgment were delivered. J.-This is an appeal from the judgments reported at pages 156 and 292 of the first volume of the Ontario Law Reports.

The majority of the court are against the appellant.

If the result had depended on my conclusions, I would have been inclined to adopt the view of the case taken by Meredith C.J. at the trial as reported

However, a dissent would not help the appellant.

The appeal is dismissed with costs against the appellant on the issue before this court with the Township of Lobo, but without costs in this court to the respondent Oliver.

and JJ. were of opinion that the appeal should be dismissed for the reasons given by Mr. Justice Osler in the Court of Appeal for Ontario.

Appeal dismissed with costs to respondent, the Township of Lobo, but without costs to respondent Oliver.

Solicitors for the Township of Lobo, respondent: Macbeth & Macpherson.

Buclee.

THE DOMINION COAL COMPANY v. THE

S. "LAKE ONTARIO.

*May . APPEAL from the judgment of Macdonald C.J. in the Nova Scotia Admiralty District of the Exchequer

Court of Canada dismissing the action in rem of the appellants with costs.

The steamship " Lake Ontario " was proceeding in charge of a pilot to her dock in the Harbour of Halifax,

N.S., on a blustery night in the month of January, 1900, the weather being intermittently clear and cloudy, and came in collision with and sank the appellants' coal barge " A. L. Taylor" lying at anchor on the northern side of George's Island.

The steamship had signalled, by guns and whistles, for a medical officer when approaching the quarantine o o grounds shortly before the collision occurred and the evidence of her officers and several of her seamen shewed that her officers and crew were alert and anxiously working the ship through anchored vessels in the darkness and in blustery weather; that they came suddenly upon the " Taylor " and that no lights were seen upon her by any of them.

On the other hand, the caretaker of the barge, who was not on deck at the time, swore that a proper anchor light was burning on the barge and his statement as to the light was corroborated by a captain of a fishing schooner lying close by and several boatmen and labourers on the wharves

The trial court judge accepted the evidence for the defence as correct and found that the collision subsequent loss were wholly attributable to the negligence of the "Taylor"

in failing to have a proper anchor light and to keep a sharp lookout. The action was accordingly dismissed with costs and the plaintiffs appealed to the Supreme Court of Canada.

After hearing counsel for the parties, the court pronounced judgment dismissing the appeal with costs as it appeared that the case was clearly one depending solely upon the appreciation of the evidence by the trial judge and that there was evidence on behalf of the defence which, if believed, would entitle the defendant to succeed.

The learned trial judge held that it was the duty the steamer, upon hearing fog signals sounded by the schooner, to have stopped her engines as far as possible and to navigate with caution until the danger of collision was over; that the steamship had neglected these precautions and was, therefore, wholly to blame for the collision, and he assessed the damages against the " Pawnee " as follows, viz.: $4,000 for the value of the schooner; $90 for her freight, and, after deduction of the value of a few items, $550 for personal effects. After hearing counsel for the parties, the court reserved judgment and, on a subsequent day, allowed the appeal in part, the value of the schooner being reduced to $2,500, thereby reducing the verdict by $1,500.

Mr. Justice Gironard J. dissented.

No costs were allowed on the appeal.