Supreme Court of Canada
Canadian Westing-House Co. v. Can. Pac. Ry. Co., [1925] S.C.R. 579
Date: 1924-06-08
Canadian Westinghouse Company (Plaintiff) Appellant;
and
Canadian Pacific Railway Company (Defendant) Respondent.
1924: March 13, 14, 17; 1924: June 8.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Carrier—Bill of lading—Burden of proof—Negligence
The bill of lading for carriage of goods by railway provided that the carrier should be liable for any loss or damage thereto except, inter alia, if the same was caused by act or default of the shipper. Also, that when at the shipper’s request the goods were carried in open cars the carrier would only be liable for negligence and upon it would be the burden of proving freedom from such negligence. Goods were shipped on open cars upon which it was the duty of the shipper to load them.
Held, that the carrier has not discharged the burden of proving freedom from negligence if the court or jury is left in a state of real doubt as to negligence or no negligence.
Held also, that the carrier is not obliged to show how the accident causing injury to the goods was brought about; he is only required reasonably to satisfy the judge or jury that all possible precautions were taken against risks to be reasonably anticipated.
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In this case the evidence did not suffice for a decision either as to the negligence in whole or in part of the shipper in loading the cars or as to whether or not the accident was due to a defect in the car or railway or neglect in working the railway for which the carrier is answerable. Therefor a new trial is ordered.
Per Idington J. dissenting. The appeal should be allowed and the judgment of the trial judge restored.
Judgment of the Appellate Division (54 Ont. L.R. 238) reversed.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario reversing the judgment of a Judge in Chambers in favour of the appellant.
The facts are stated in the above head-note.
Lafleur K.C. and Leacy K.C. for the appellant.
Tilley K.C. and John D. Spence for the respondent.
IDINGTON J. (dissenting).—This arises out of an action tried by the Honourable Mr. Justice Logie wherein appellant sought to recover damages done to its goods shipped at Hamilton to be carried to Grand’Mère in Quebec, and which were destroyed in an accident, near Elliott in Eastern Ontario, as the result of the first of the two cars on which they were loaded having evidently got off the track followed by some fourteen more cars all of which were more or less wrecked.
The learned trial judge found the respondent liable and entered judgment for $52,928.72.
The now respondent appealed therefrom to the Appellate Division of the Supreme Court of Ontario.
That court reversed said judgment and dismissed the action.
Some remarkable propositions of law and fact put forward on the argument before us induced me to read the entire evidence in the case and as result thereof and perusal of the several judgments respectively of the learned trial judge and those writing in the Appellate Division, and due consideration thereof, I have come to the conclusion that the learned trial judge’s judgment was well founded and should be restored.
I agree entirely in his statement of the facts so far as that sets them forth as it does fully in a general sense and see no useful purpose to be served by repeating same here.
He, at the close thereof and his reasons for judgment, rested same upon a needlessly narrow basis which has been
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laid hold of in argument in the court below and here, as if covering all he had said worthy of consideration.
The paragraphs I refer to are as follows:—
Sitting as a jury, I draw the inference upon the evidence of Leslie Wilson and others of the defendants’ servants, that the defendants’ theory as to how the accident occurred cannot be the true one.
That a load which had travelled 210 miles without oscillation or loosening of its packing, should suddenly run amock on a smooth and perfect piece of track by reason of an alleged breaking of some packing under the deck of the car, seems incredible.
Had the accident occurred on a curve, I could understand the force of the argument, but there was uncontradicted evidence that upon a track and roadbed such as was proved to exist at the point of derailment such an oscillation as Wilson described was impossible.
How, then, did the accident occur? A broken flange, a weakened spring, a sudden failure of the running gear, any one of these would account for it.
But the defendants do not help the court as to these possibilities. They are obvious possibilities from which unexplained negligence might be inferred and they are not eliminated.
But I do not base my judgment on these.
There is evidence for me, sitting as a jury, to act upon in the admittedly defective condition of the car flooring from which I draw the inference that the accident happened by reason of this giving way suddenly—thus setting up the oscillation observed by Wilson and in consequence, the wreck.
I respectfully submit that the entire possibilities, indeed probabilities, of the cause of the accident were far from being confined by the evidence to “the admittedly defective condition of the car flooring” or its giving way suddenly.
That, and much other, evidence in the case tends to demonstrate that the car was an old one liable to have many weaknesses besides that one.
That flooring being now admittedly so suggests its condition should be taken as an indication and guide, that old age in all the parts of that car, despite its having been in a repair shop, as alleged in respondent’s factum, but for obvious reasons not laboured with in the evidence, should be looked to for the many other possible causes of its strange movements.
Hence we should, looking to the almost overwhelming evidence of experts and others as to the actual cause of the accident, ask how such a getting on the rail and consequent fall could have happened, and if we apply our own common sense to the facts so submitted, we shall find there evidently was something far beyond the breakage of some material used to secure safe carriage.
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The train was on a safe level track at the time in question. The mere breakage of a small block of wood, put there for safety sake, even if it occurred as contended, would not account for the car climbing the rail and bringing about the disastrous consequences now in question.
But if by reason of other defects correspondent with the results of old age which rendered the floor of the car such as never should have been tendered for such use as asked for by appellant, led to its climbing the rail, then such motion on its part would account for the breaking of the pieces of wood used to tie it there.
The story about another like piece of wood having been found farther back is simply not proven. No one pretends to swearing it was found immediately after the accident where someone says it was found next day.
How many curious people crowd into the scene of such an accident and pick up and throw away anything found.
The pitiable part of this whole business in question herein, is that no real and proper method of investigation was immediately instituted, and hence no explanation forthcoming but such inferences as are, I submit, quite unwarrantable, are presented as if facts. Neither the wheel nor any part of the truck it belonged to was sought out for identification and inspection of their breakages, and I cannot agree that in any way has the respondent discharged the onus cast upon it which the bill of lading contract does.
Res ipsa needs some knowledge of facts to permit it to speak. It goes far enough here to tell us that the actual application made, though not in express words, was in defiance of the story res ipsa tells.
This putting of the cart before the horse, however ingenious, is met by evidence shewing that the destruction of these blocks of wood was more likely to have been the result of the car leaving by climbing the rails and that caused by some other accidental defect in its flange being broken or a weakened spring, or sudden failure of its running gear.
I do not think that the learned trial judge at all intended to discard such possibilities, but inadvertently expressed himself as if he intended to, and found part only of the full grounds on which he desired to rely, as his previous expression indicated.
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At all events it is the wider aspect of the case I desire to present and which seems in accordance with the facts as he has presented them in earlier passages.
I cannot agree with Mr. Justice Ferguson’s view that the appellant was bound to see by close inspection the actual nature and unseen defects of the car offered and that the respondent’s liability under its bill of lading was not bound by its acts in regard thereto as part of its obligation to demonstrate that it had not been negligent.
It is proven by more than one witness that the system adopted for safely packing upon a flat car such goods as in question for transportation, had been in use by appellant for twelve years or more, and no railway accident ever heard of as result thereof. The extent to which this was the case during said period is not told. If ten or twenty times or more a year it might have absolutely demonstrated the absurdity of oscillation theory being relied upon so successfully as it has been.
I would allow the appeal with costs here and in the Court of Appeal, and restore the judgment of the learned trial judge.
The judgment of the majority of the court (Duff, Mignault and Maclean JJ.), was delivered by:—
DUFF J.—By the first section of the bill of lading, so called,
the carrier of the goods herein described shall be liable for any loss or damage thereto except as hereinafter provided.
By sec. 3,
the carrier shall not be liable for loss, damage or delay to any of the goods herein described caused by * * * inherent vice in the goods or the act or default of the shipper or owner.
And again, by section 3:
when * * * at the request of the shipper, the goods are transported in open cars, * * * the carrier * * * shall be liable only for negligence; and the burden of proving freedom from such negligence shall be on the carrier.
The liability of the carrier declared by section 1 is qualified by the exceptions expressed in the sentences quoted from section 3. The onus is, of course, upon the carrier to bring himself within the exceptions; and, in the present instance, the respondents could, in point of law, establish freedom from responsibility by bringing themselves within the conditions of either of these exceptions. The open car
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on which the machinery was carried was supplied at the request of the appellant company, and under the regulation of the Board of Railway Commissioners, it was the duty of the appellant company to load the car—a duty which they undertook to perform. If the derailment and consequent injury to the machinery were directly caused, in whole or in part, by negligent loading, the appellant company is not entitled to recover, because, if that be so, the loss is at least a loss caused in part by its negligence, and that circumstance, according to settled and well-known principles, disentitles it to recover any part of the loss. Again, it is open to the respondents to shew freedom from negligence on their part, or, in other words, that the accident did not arise from any want of care on their part. This, of course, would be an answer to the appellant company’s action. We think it is of some importance to notice rather particularly this point touching the burden of proof. We think the last words of section 3, “the burden of proving freedom from negligence shall be on the carrier,” cast upon the respondents the burden of proof in point of substantive law; that is to say, if, when all the evidence is in, the tribunal of fact has not been satisfied upon the point, but is left in a state of real doubt as to negligence or no negligence (negligence here, of course, means negligence causing the damage in respect of which the claim is made), then the issue must be decided against the respondents.
The respondents are, of course, in a vastly more favourable position as touching knowledge and means of ascertaining facts bearing upon this issue than the appellants; and that is a circumstance which may very materially affect the decision of the question whether, on any given state of the evidence, the respondents are entitled to ask the court to hold that the evidence produced is sufficient to support a conclusion that the accident was not due to a failure on the part of their servants to exercise proper care in relation to the sufficiency of the company’s cars or equipment or the working of their railway. It is, perhaps. needless to say that the respondents, in order to bring themselves within this exception, are not required to shew how the accident was brought about. They are not obliged to demonstrate “freedom from negligence.” Evans v.
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Astley. It is sufficient if they produce evidence reasonably satisfying the tribunal of fact that all proper precautions have been taken in order to provide against risks which might reasonably be anticipated.
These, then, were the issues which it devolved upon the learned trial judge to deal with on the evidence. The judgment of the learned judge, holding the respondents responsible, was based upon a finding of fact which is expressed by him in these words:
There is evidence for me, sitting as a jury to act upon in the admittedly defective condition of the car flooring from which I draw the inference that the accident happened by reason of this giving way suddenly—thus setting up the oscillation observed by Wilson and in consequence, the wreck.
It is sufficiently clear from other passages in the judgment, that by this the learned trial judge means that the armature broke through the floor in a downward direction, and this he ascribes to
negligence in supplying a car unsuitable for the purpose for which it was intended and dangerous for a heavy load by reason of the defective condition of the floor or deck.
The learned judge appears to assume that the semi-circular body of metal which constituted the load was sustained by the wooden deck or flooring of the car, two and a quarter inches thick, and that it was so placed that if this wooden deck or floor proved in itself to be insufficient to support the weight concentrated in the spaces occupied by the two feet of this semicircular arc, the accident which resulted must be ascribed to the negligence of the respondents in supplying a car with such a floor.
Now if the armature in fact was loaded in such a way that a wooden floor, two and a quarter inches thick, was required to support, unaided, such a strain, then we should have thought that, however flawless the condition of the floor, prima facie any accident resulting from the load breaking through in consequence of the floor being insufficient to stand the strain put upon it by the weight of the load must be ascribed to the negligence of the persons who acted so foolishly as to place such a weight upon a support so manifestly insufficient. If that were the true account of what occurred, we should have said that the respondents’ case was complete, for, as already mentioned, it is
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sufficient for the respondents in this case to shew that the accident or default of the shipper was in part the direct cause of the accident.
But this rather easy way of disposing of the litigation is, when the facts are taken into account, inadmissible.
It was not seriously argued here on either side that the load was so placed as to make the support of the ends of the metal arc dependent upon the strength and rigidity of the wooden floor. The real support for the load was the metal frame of the car upon which those parts of the floor rested which were occupied by the feet of the arc. The wooden frame was subjected to forces of compression, but, if the bolts and the blocking held, not to any breaking strain, and the learned judge’s account of the manner in which the accident happened must clearly be rejected.
The learned judge also finds that the wooden blocks, which were screwed up against the frame of the car by bolts passing through the feet of the armature for the purpose of steadying the load by receiving any strain due to oscillation or swaying, were sufficient for their purpose; but we cannot escape the impression that the learned judge was under a misapprehension as to the disposition of these blocks of wood and the exact purpose they were designed to serve, for, if he had appreciated the manner in which the feet of the armature were supported and secured, we do not think he could have reached the conclusion expressed in the finding just discussed.
The learned judge also expressed a view that the appellants had not satisfied the onus resting upon them of disproving negligence. The language of the learned judge, however, lends itself to the interpretation that the respondents, in order to acquit themselves of this onus, must in some way identify the cause of the collapse of the car, and shew that this was a cause for which they are not answerable under the stipulations of the contract.
On the two cardinal issues—on the one hand whether the accident was caused, in whole or in part, by the default of the appellants in performance of their duty to exercise proper care in loading the car; and, on the other, whether the accident was due to some defect in the car or railway or some act or neglect in the working of the railway, for which the respondents are answerable; the judgment of
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the learned trial judge does not disclose findings which can properly be made the basis of a decision.
We have carefully considered the judgments in the Appellate Division but we have come to the conclusion that the issues of fact involved in this case cannot satisfactorily be decided by an appellate court, deprived of the means which a trial judge has at his command of estimating and testing the value of expert and other evidence in the course of its development, and without the assistance of findings on the relevant issues by a trial judge, and that there should be a new trial. We have accordingly refrained from discussing the points in controversy further than seemed absolutely necessary. There should be a new trial, and all costs, including the costs of the abortive trial, should abide the event.
Appeal allowed. New trial ordered.
Solicitors for the appellant: Gibson, Levy, Scott & Inch.
Solicitors for the respondent: MacMurchy & Spence.
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