sitting in review at Montreal, which affirmed the judgment of His Lordship, Mr. Justice Doherty, entered upon the findings of a special jury at the trial, in favour of the plaintiff, for $11,067, with costs. .
The plaintiff was injured in attempting to alight from a passenger elevator in use in the appellants' hotel. He was a guest of the hotel, at the time, and was using the elevator, in the usual manner, to pass from one part of the hotel to another. At the trial, in answer to questions submitted to them, the jury found, among other things, that the accident was not due to any fault of the plaintiff, that it was due to the fault of the defendants, owing to the practice of not closing the door of the elevator before putting it in motion, and they assessed the damages at $11,067, for which the judge entered a verdict for the plaintill with costs.
This judgment was affirmed by the judgment appealed from.
DUFF J.-The principle which we have to apply here is, for the purposes of this case, aptly put by the language of Lord FitzGerald, delivering the judgment of the Judicial Committee, in The Commissioner for Railways v. Brown(1) at page 134;- There is nothing rare or exceptional about this' case; it is the common case of a conflict of evidence which the jury, having the witnesses before them, have resolved by accepting the story of one side and rejecting that of the other.
We could not allow this appeal without disregarding this rule and adopting a principle of decision which would open for examination, as res nova in a court of appeal, every issue of fact tried and passed upon by a jury.
Appeal dismissed with costs.