26, JOHN ANDREW CATES (DEFENDANT)..RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA.
NESBITT J.-I do not feel strongly enough to reverse in this case but I confess it is very near the line. :-Sedgewick, Girouard, Davies, Nesbitt and Killam JJ. cannot but feel that the trial judge was affected in his view that negligence had been made out by reading the trial judgment in Mc Dowall v. The Great Western Railway Co.
reversed in 1903 and this case, like that, seems to me to fail for lack of proof that the negligence complained of was itself the affecting cause of the accident, and on the further groun! that, granted negligence existed, the result was not what would reasonably be apprehended.
See Sharp v. Powell (3) ; Wood v. The Canadian Pacific Railway Co. (4).
I should have fell great doubt in holding the storm described came within the doctrine of vis major. See Garfield v. The City of Toronto where Hagarty O.J. summarizes all the authorities to date as determining the vis major rule to be satisfied when what has occurred " is extraordinary and that it could not reasonably be expected."
The evidence here would not have satisfied me as coming up to that standard.
I do not feel, as I have said, confident enough to reverse and restore the trial judge and, so, when in doubt, affirm.
The appeal should be dismissed with costs.
J.-In my opinion this appeal should be dismissed.
As I look upon the case it is one of fact only. The defendant committed no trespass or other actionable wrong in mooring his tug beside the plaintiff's. Whether any or how many or what class of men should have been kept on board, whether there should have been a watch, whether steam should have been kept up or other precautions taken, depended wholly upon the circumstances.
The cases which have been cited to show that the absence of certain precautions
Roi L Y was regarded as constituting negligence depended upon the particular facts and the respective situations J. of the vessels.
Viewing the evidence as a whole, I cannot find that the, defendant was negligent, under the circumstances, in leaving the tug as he did.
The storm that came up was one of exceptional violence and it is by no means certain that, without the observance of extreme and very unusual precautions, the injury could have been avoided.
Appeal dismissed wilth costs.
Solicitors for the appellant: Taylor, Bradburn
Innes.