Judgment of the Court
J.-We are all of the opinion that this appeal should be dismissed. The Supreme Court of Nova Scotia set aside the findings of the jury and directed a new trial to be.had, and in view of that I will abstain from making any remarks upon the case or the evidence at the former trial which could possibly prejudice either party.
The trial judge directed judgment to be entered upon the findings of the jury. He did not profess to supplement their findings by any additional finding of fact of his own. We are, therefore, relieved from considering the question raised at the argument whether he could under the "Judicature Act of Nova Scotia," in a case such as this, where a jury had been applied for and granted and specific questions put to them, supplement their findings on these questions by findings of his own.
I think the first question, in the form in which it was put, open to the criticism passed upon it by Russell J. in delivering the judgment of the court, and that it might well have misled the jury. I think also that the third question and answer are fatally defective because they do not shew any necessary connection between the general negligence found by the jury and the plaintiff's accident. Nor do I think that any such connection could be fairly and necessarily inferred from all the findings together.
It is elementary law that a defendant cannot be held liable for any act of negligence he may have been guilty of unless such negligence be the direct and proximate cause of the plaintiff's injury.
In a case such as this the jury should be asked specifically to state what the negligence of the defendant company was which caused the plaintiff's injury. Mere general findings of negligence, unless such negligence is shewn and found to be the direct and proximate cause of the injuries complained of, are quite insufficient to support a judgment.
The defendant company has the statutory right or privilege of removing snow and ice from its tracks to enable it to operate its cars, and Rule 9, which is comprised together with other rules in a schedule attached to and made part of the company's charter, gives the city engineer full power to determine whether the snow so removed from the car tracks shall be taken away from the street altogether or levelled to a uniform depth for such a distance each side of the track as the engineer may determine.
But apart altogether from this rule, but at the same time not inconsistent with it, there is a duty cast by law upon the Electric Company to carry out their statutory privilege in the first instance in a reasonable and proper way, and without negligence. If after or during a snow storm or at any time they remove snow and ice from their track and throw it upon the part of the highway adjoining the track in a careless and negligent way, or leave it piled or heaped or placed upon the highway in a negligent way or manner, and an accident is thereby caused to any person lawfully using the highway the company would be clearly liable. This, of course, would be subject to proof of contributory negligence on the part of the injured person and the finding that their negligence in the way and manner of placing the snow and ice upon the roadway was the direct and proximate cause of the injury.
This is a matter entirely apart from any determination of the engineer as respects the uniform levelling of the snow and ice or its entire removal. The questions that naturally arise in this case are: Was there such negligence as I have spoken of, and was it the direct cause of the plaintiff's injuries? and also, in case these questions are found in the negative: Did the engineer come to a determination with reference to the disposition of the snow and ice on this roadway in question and did he communicate it to the company? If so, did the company carry out his orders in a reasonable, careful and proper way? If not, in what respect did they fail to obey the orders or negligently carry them out, and was this failure or negligence the direct cause of plaintiff's injuries?
If the dangerous condition of the street at the time of the accident arose from other causes than the negligence of the defendant company, such, for instance, as the street traffic in changing climatic conditions causing ridges of snow and ice, or the action of the adjoining householders in throwing snow and ice from the sidewalk into the street, of course the company could not be held liable.
These are questions a jury is peculiarly qualified to answer and I have no doubt, with the experience gained in the first trial, questions will be framed in such a way as to enable a satisfactory and final disposition of the case to be made.
The appeal is dismissed with costs.
Appeal dismissed with costs.