Supreme Court of Canada
London (City) v. Goldsmith, (1889) 16 S.C.R. 231
Date: 1889-03-18
The Corporation of the City of London (Defendants) Appellants;
and
Susan Goldsmith (Plaintiff) Respondent.
1888: October 22; 1889: March 18.
Present: Sir W.J. Ritchie C.J. and Strong, Fournier, Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Municipal corporation—Negligence—Public highway—Construction of crossing—Elevation above level of street
A Municipal corporation is under no obligation to construct a street crossing on the same level as the sidewalk, and that a sidewalk is at an elevation of four inches above the level of the crossing is not such evidence of negligence in the construction of the crossing as to make the corporation liable in damages for injury to a foot passenger sustained by striking her foot against the curbing while attempting to cross the street. Strong and Fournier JJ. dissenting.
APPEAL from a decision of the Court of Appeal for Ontario affirming, by an equal division of the court, the judgment of the Divisional Court and of the judge at the trial in favor of the plaintiff.
This was an action against the city of London for damages caused by the plaintiff striking her foot against a street curbing raised above the level of the crossing and falling down, by which she was seriously injured. The accident occurred after dark and the plaintiff claimed that both from the improper construction of the crossing, it being alleged to be from four to six inches below the level of the sidewalk, and from its being allowed to fall into disrepair, the city was guilty of negligence and liable to the plaintiff for the injuries sustained by the fall. The
[Page 232]
defendants claimed that the only objection to the crossing was as to the manner of construction, namely, below the level of the sidewalk, and as that was a matter discretionary with the civic authorities the courts should not interfere with their action. It was also claimed by the defence that the sidewalk was only elevated one and a-half or two inches.
At the trial a verdict was given for the plaintiff and the damages assessed at $500. The Divisional Court sustained the verdict, the Chief Justice dissenting, and on appeal the judges of the Court of Appeal were equally divided in opinion, and the judgment of the Divisional Court was therefore affirmed. The defendants then appealed to the Supreme Court of Canada.
W.R. Meredith Q.C. for the appellants. The rule governing actions of this kind is that the defendants are not liable unless they could be indicted for a nuisance which it is clear could not be done in this case. Ringland v. The City of Toronto; Boyle v. The Town of Dundas; Ray v. The Town of Petrolia; The Town of Portland v. Griffiths.
As to how far the courts will interfere with municipalities in the exercise of their judicial functions see Slattery v. Nailor; St John v. Pattison.
The following authorities were referred to as cases ejusdem generis where the defendants were held not liable. Metropolitan Ry. Co. v. Jackson; Giblin v. McMullen; Crafter v. The Metropolitan Ry. Co.; Metropolitan Ry. Co. v. Wright; Hamilton v. Johnston.
R.M. Meredith and Love for the respondent. The
[Page 233]
question as to the construction of the crossing is one solely for the jury, and a court of appeal will not interfere with their verdict. Dublin, Wicklow & Wexford Ry. Co. v. Slattery.
As to the merits see Moore v. Lambeth Waterworks Co.; Blackmore v. Vestry of Mile End, Old Town; George v. City of Haverhill.
SIR W.J. RITCHIE C.J.—In this case there having been no evidence of either the street or the sidewalk being out of repair, on the contrary, the evidence showing that the sidewalk was in a good state of repair, I think the mere fact of the sidewalk at the street crossing being four inches or less higher than the crossing was no such evidence of neglect or violation of the legal duty on the defendant’s part as was proper to be submitted to the jury. To hold that such a liability was intended to be imposed by the legislature on municipal bodies would be most unreasonable and would practically burden municipalities to an extent that could never have been contemplated by the legislature.
Unless we are prepared to hold, which I am not, that municipal bodies are bound by law to make the street crossings meet the sidewalks on the level, and that they are liable if the side‑walk rises on the perpendicular four inches or less above the crossing at the point of contact, I cannot see how the plaintiff can recover. While not desiring to relieve municipalities from the duties and responsibilities fairly cast upon them I think we should be careful not to subject them to an action for negligence because, as Chief Justice Wilson says, the edge of the sidewalk happens to be four inches higher than the crossing at the point of contact. I think the appeal should be allowed.
[Page 234]
STRONG and FOURNIER JJ. were of opinion that the appeal should be dismissed.
TASCHEREAU J.—I would allow this appeal, and order a non-suit to be entered. I cannot see that any actionable wrong has been proved against this corporation. The street itself and the sidewalk were in a perfect state of repair. That the sidewalk was from two to four inches higher than the street is the only ground of this action.
I agree with the remarks made by the Chief Justice of Ontario and Mr. Justice Burton in the Court of Appeal.
GWYNNE J.—I entirely concur with the judgments in this case of Sir Adam Wilson, late Chief Justice of the Queen’s Bench Division, and of the Chief Justice of Ontario and of Mr. Justice Burton in the Court of Appeal of Ontario, that the fact of a sidewalk in the city of London being four inches above the level of the roadway was no evidence proper to be submitted to a jury of neglect by the corporation of any legal duty so as to make them responsible therefor, either in a criminal prosecution or a civil action, and that the plaintiff, therefore, in this case, should have been non-suited. The appeal should be allowed with costs, and a rule for judgment of non-suit be ordered to be issued in the court below.
Appeal allowed with costs.
Solicitors for appellants: Meredith & Cox.
Solicitor for respondent: Francis Love.
Email this Content