Supreme Court of Canada
Quebec Railway, Light & Power Co. v. Fortin, (1908) 40 S.C.R. 181
Date: 1908-05-05
The Quebec Railway, Light and Power Company (Defendants) Appellants;
and
Mathilda Fortin (Plaintiff) Respondent.
1908: February 24, 25; 1908: May 5.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Negligence—Master and servant—Duty of employee—Insulation of electric wires—Onus of proof.
An electric line-foreman in the company's employ met his death from contact with imperfectly insulated live wires while at work in proximity to them in the power-house. The evidence left some doubt whether the duties of deceased included the inspection and care of the wires both inside and outside of the power-house, or whether his engagement was to perform the duties in question in respect only to the wires outside the power-house walls.
Held, that the onus of proof as to the point in dispute was on the defendants and, such onus not having been satisfied, they were liable in damages.
Judgment appealed from affirmed, Davies J. dissenting on a different view of the evidence, and holding that the duties of deceased included the inspection and care of the interior wiring.
APPEAL from the judgment of the Court of King's Bench, appeal side, affirming the judgment of the Superior Court, District of Quebec, whereby the plaintiff's action was maintained with costs.
The material circumstances of the case and questions at issue on the appeal are stated in the judgments now reported.
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Stuart K.C. for the appellants.
Alleyn Taschereau for the respondent,
The Chief Justice.—I am of opinion that this appeal should be dismissed with costs.
Davies J. (dissenting).—This action was brought by the widow of the deceased, one Wilfrid Guimont, to recover damages from the company for the death of Guimont caused by an uninsulated wire in the power-house of the company, at Montmorenci.
The question as to the liability of the appellant company for the death of the deceased turns entirely upon whose duty it was to see that the wires were sufficiently and properly insulated.
If this was part of deceased's duty as line-foreman, then it is quite clear that his death consequent upon his failure to discharge it could not be charged against the company or held to be merely contributory negligence on his part.
In the case suggested his own neglect would be clearly the cause of his death, and of course it could not be contended successfully that a company or employer who engaged a man for the special duty of seeing that dangerous wires transmitting electricity were kept properly insulated could be held liable for his death in case that death was caused by his own neglect of duty.
I have examined and considered the evidence upon the crucial question as to the duty of the deceased with respect to the wires of the company passing into and through the power-house, and, in my opinion, the evidence of Mr. Doddridge, the superintendent of
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the company, and of Langford, described as the company's master mechanic, leaves no room for reason- able doubt that it was as much the duty of the de- ceased to inspect and keep in repair the electric wires running into and through the power-house as those parts of the wires outside of the power-house. With respect to the latter his duty was admitted and I think the positive testimony of the officers I have mentioned as to deceased's duty in inspecting and keeping the wires in the power-house properly insulated and repaired and his frequent and regular visits to the power-house for the ostensible purpose of discharging that duty leave no room for reasonable doubt on the point or on his understanding of it.
As the death of the deceased was caused by his negligently passing or attempting to pass under a wire within the power-house which had become uninsulated and out of repair and which it was his special duty to keep insulated and repaired, I think the appeal should be allowed and the action dismissed.
Idington J. concurred with Maclennan J.
Maclennan J.—After a very careful consideration of this case I am of opinion that we ought to dismiss the appeal.
The question is whether, upon the evidence, the condition of the wires which caused the death of the plaintiff's husband was due to his own neglect of duty; whether in fact the deceased was the person whose duty it was, as the servant of the defendants, to have inspected the wires and to have repaired their defective condition.
The company have a power-house at Montmorenci
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Falls, from which they supply light and power to the City of Quebec and other places by means of over- head electric wires.
The power-house contains a very large number of wires, some of them of very high voltage. These or most of them, are strung high overhead. A platform, three or four feet wide and fourteen feet above the floor, stretches across from side to side and is only reached by a moveable ladder.
The deceased was foreman of the company's linemen, and was subject to the orders and direction of Mr. Doddridge, the company's superintendent, and of Mr. Langford, their master mechanic. Mr. Doddridge describes his character and qualities as "splendid" and Langford describes him as "a good man," "a man in whom he had every confidence," "a man that knew his business," "a very competent man," "one of our best men."
It is not disputed that his duty was, with the assistance of men under him, to keep the company's wires, outside of the power-house, in order. But the accident having occurred within the power-house, the question is whether he had any duty of inspection and repair over the wires, or those parts of them, which were within the power-house.
It is in evidence that, about six months before the accident, he had, in obedience to special directions, changed the positions of two wires in the power-house. In their changed position, these two wires crossed the platform, at a considerable angle, and about two and a half feet above it.
On the day of the accident he had been directed to change some other wires and, with an assistant, had climbed the platform, by means of a ladder, to prepare
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to do the work directed. While passing under the wires, which he had placed six months before, he was killed by contact with one of them and it was found that for about ten inches, immediately over the platform, one or both of the wires had not the usual or any isolation coating upon them. But there is no evidence how that defect had arisen, or how long it had existed.
Several witnesses say that the duties of the deceased were confined to the lines or wires outside the power-house, except when he received special orders. Mr. Doddridge says that he, Doddridge, solely had charge of the linemen, including the deceased, but he does not say that the deceased had any duty of inspection within the power-house.
What he says rather suggests the contrary; he says:
He had charge of all the linemen, what we call all the outside linemen of all the high tension work, of the main line work, and work around the power-house.
The only witness who says that the deceased had any duty of inspection within the power-house is Mr. Langford. He says positively that he had the duty of inspecting the wires within as well as those without the power-house, and to see that they were in good order. In cross-examination, however, he says he did not know whether there was any written agreement with the deceased, and that that would come under Mr. Doddridge's position.
He did not know who engaged the deceased, but he was under Mr. Doddridge,
which I take to mean that the duties of the deceased must have been arranged between him and Mr. Doddridge. When pressed whether deceased was obliged to inspect the wires inside the power-house, his answer
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was: "He was engaged as line-foreman." Then he says he himself had charge of the power-house, had a mechanic for the power-house,
who is specially appointed to take care of the power-house, and for the inspection of the different works in the power-house, dynamos, " and water-wheels, and that sort of thing.
There is no witness who says he ever saw the deceased do anything in the power-house, during all the six years of his employment, except upon special instructions.
I think the proper conclusion is that there is no sufficient evidence that the deceased, as the servant of the defendants, had the duty of inspecting and repairing the live wire which caused his death.
I also think that this conclusion is greatly strengthened by the high character given to the deceased by Doddridge and Langford, his superior officers. It is not to be supposed, without very clear testimony to the contrary, that such a man would have neglected to inspect the wires in the powerhouse, as well as those without, and to discover and repair the defective and dangerous wire which caused his death, if it had been his duty to do so.
The appeal should be dismissed.
Duff J.—The only point seriously in dispute on this appeal is whether or not the husband of the respondent was entrusted with, as one of the duties of his employment, the responsibility of seeing to the safe insulation of the wires from which he received the shock which caused his death.
On this question the onus was on the appellants and, after a careful examination of the evidence, I
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agree with the court below that that onus has not been satisfied.
Appeal dismissed with costs.
Solicitors for the appellants: Pentland, Stuart & Brodie.
Solicitors for the respondent: Lavergne & Taschereau.
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