Lake Erie and Detroit River Rway. Co. v. Marsh

NESBITT J.-This is a motion for special leave to appeal. We are of opinion that special leave should not be granted in this case.

They also found against the defence of contributory negligence.

There were added, too, findings of the necessity of further precautions which we think were surplusage and cannot on a fair reading be treated as part of 'the negligence but for which the accident would not have happened; and, therefore, no questions such as were raised in The Grand Trunk Railway Co. v. McKay were in our opinion involved.

Nor does the case raise the important question of the duty of a traveller to observe the precautions of looking and listening, on approaching a crossing, since the trial judge expressly charged that such was the duty .of the plaintiff and the plaintiff swore to the observance of the duty.

Whether this court would have come to the same conclusion as the jury is not the question. In applications to this court for special leave, it is bound to apply judicial discretion to the particular facts and circumstances of each case as *resented.

Cases vary so widely in their circumstances that the principles up'rn which an appeal ought to be allowed do not admit of anything .approaching Sto exhaustive definition. No rule can be laid down which would not necessarily be subject to future qualification, and any attempt to formulate any such rule might, therefore, prove misleading. The court may indicate certain particulars the absence of which will have a strong influence in inducing it to refuse leave, but it by no J. means follows that leave will be given in all cases where these features occur.

If a case is of great public interest and raises important questions of law and, yet, the judgment is plainly right, no leave should be granted.

See " Daily Telegraph " Newspaper Co. v. McLaughlin (1).

Where, however, the case involves matter of public interest or some important question of law or the construction of Imperial or Dominion statutes or a conflict of provincial and Dominion authority or questions of law applicable to the whole Dominion, leave may well be granted.

Such cases, as we understand, came peculiarly within the purview of this court which was established, as far as possible, to be a guide to provincial courts. in questions likely to arise throughout the Dominion. We think it was the intention of the framers of the Act creating this court that a tribunal should be established to speak with authority for the Dominion as a whole and, as far as possible, to establish a uniform jurisprudence, especially within matters falling within section 91 of the B. N. A. Act, where the legislation is for the Dominion as a whole, or, as I have said, where purely provincial legislation may be of general interest throughout the Dominion. Had this case involved a discussion of any special section of the RailwayAct and the powers of the railway committee, as suggested, we think it would have been a case for leave; had there been any such general question in dispute, as the undoubted duty of a traveller to observe care in approaching a railway crossing, or the question of whether or not an engine and tender running reversely were bound to observe other duties and obligations than those imposed by the

Railway Act, a case for leave might have been made

"V. out. But we think that no such questions were really involved, as the case was wholly disposed of by answers finding statutory negligence and against contributory negligence, with evidence which must have gone to the jury on each branch, findings that we cannot think should be disturbed.

The motion is therefore dismissed with costs.

J. also concurred with Nesbitt J.

Motion dismissed with costs.