Supreme Court of Canada
Elliott v. Winnipeg Electric Ry. Co., (1918) 56 S.C.R. 560
Date: 1918-06-25
Elizabeth Elliott (Plaintiff) Appellant;
and
The Winnipeg Electric Railway Company (Defendants) Respondents.
1918: May 17, 20; 1918: June 25.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin, and Brodeur JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.
Negligence—Street Railway—By-law—Removal of Snow—Validating Act—Statutory duty.
By the terms of the by-law authorizing the Electric Railway to operate over the streets of Winnipeg the company was obliged to keep the tracks and the roadway for eighteen inches on each side clear of ice and snow and cause the same to be spread over the rest of the street so as to afford a safe passage for vehicles. If the city engineer considered that the work was not properly done he could have it performed at the company's expense and could, at his discretion, order the company to remove the snow and ice entirely. By a provincial statute this by-law was ratified and confirmed "in all respects as if (it) had been enacted by the legislature." At a certain point on its line the company swept the snow four feet back from the track where it formed a bank sloping somewhat steeply down to the track, and E., attempting to board a car, fell on this slippery surface and was severely injured. The city engineer never objected to this method of removing the snow.
Held, reversing the judgment of the Court of Appeal (28 Man. R. 363), Davies J. dissenting, that the company had not performed its statutory duty of keeping the street safe for traffic and was liable in damages to E. for the injury so sustained.
Held, per Anglin J., that the nature and extent of the statutory duty, the manner in which it should be performed and the correlative rights of the defendant company were not properly presented to the jury and there should be a new trial.
APPEAL from a decision of the Court of Appeal for Manitoba, reversing the judgment at the trial in favour of the plaintiff.
The material facts are stated in the above head-note.
[Page 561]
B. L. Beacon for the appellant. As to breach of statutory duty see Fulton v. Norton, and Butler v. Fife Coal Co..
The clause of the by-law respecting the removal of snow and ice is part of a public statute (R.S.M. [1913] ch. 168, secs. 5 and 9) and should be construed liberally in favour of the public. Craes Statute. Law (4th ed.), page 465; Shea v. Reid Newfoundland Co., at page 544.
The case, from the evidence produced, could not have been withdrawn from the jury and the verdict should not have been disturbed. See Toronto Power Co. v. Paskwan, at page 739.
Laird K.C. for the respondent. The by-law was merely a contract between the city and the company and gave no right of action for a breach to one of the public. City of Kingston v. Kingston &c., Electric Railway Co.; City of Toronto v. Toronto Railway Co., at page 547.
The contract provides for a summary enforcement of the company's obligation which is the only available remedy. City of Winnipeg v. Winnipeg Electric Railway Co..
If there is a statutory duty it is one for the benefit of the city only. Johnston v. Consumers Gas Co.; Sharpness New Docks v. Attorney Generality.
B. L. Beacon for the appellant.
Laird K.C. for the respondent.
The Chief Justice.—I agree that the appeal should be allowed with costs for the reasons given by Mr. Justice Idington.
[Page 562]
Davies J. (dissenting)—This is an appeal from the unanimous judgment of the Court of Appeal for Manitoba setting aside a judgment for $4,000 in favour of plaintiff entered by the trial judge on a general verdict of a jury who found that amount as damages.
The claim of the plaintiff is one for personal injury caused to her as she was about to enter one of the defendant's cars and is and must be based upon the defendant's negligence.
The plaintiff, it appeared in evidence, was with her daughter at the corner of Portage Avenue and Belmont St. waiting for a west bound car which, when it came along, stopped a little west of its usual stopping place. They walked west to where the car was standing and when they arrived opposite to the entrance door of the car, but before plaintiff had reached up her hand to grasp the rail, she slipped and fell. The evidence shewed that there was a slope or incline in the snow starting about three and a half or four feet north of the north rail of the car track and sloping to the edge of the rail. Deacon, one of plaintiff's witnesses, stated that at the point where the accident happened the snow
was swept clear from the track between the rails and swept back, sloping back to a ridge about four feet;
and that from that point to the north curb the street was level. The same witness further states that at the time
there was a lot of automobile and jitney traffic on Portage Avenue, that they ran one wheel between the rails and the other on the incline in order to keep off the deep snow and that the effect of this traffic was to make the incline or slope hard and slippery.
Some evidence was given by defendant's witnesses to the effect that the incline was not as great as Deacon stated but of course the jury had a right to accept his evidence in preference to that of others and assuming
[Page 563]
they did so the vital question arises in what respect were the defendants guilty of negligence causing or contributory to the accident?
The defendant company was incorporated by the Legislature of Manitoba by legislation which expressly validated and confirmed a by-law of the City of Winnipeg giving to the defendant company the right to construct and operate a street railway on the streets of the city of Winnipeg for the carrying of passengers and prescribing the terms and conditions of such construction and operation. Full provision is made as to the location and manner of construction of such railway subject to the approval of the city engineer.
Sub-clause f of clause 3 of the by-law deals with the main question of the defendants' liability in such a case as this and is as follows:
(f) The said applicants shall at all times keep so much of the streets occupied by the said line of railway as may lie between the rails of every track and between the lines of every double track and for the space of eighteen inches on the outside of every track cleared of snow, ice and other obstructions and shall cause the snow, ice and other obstructions to be removed as speedily as possible, the snow and ice to be spread over the balance of the street so as to afford a safe and unobstructed passageway for carriages and other vehicles. Should the said engineer at any time consider that the snow or ice has not been properly or as speedily as possible removed from or about the tracks of the railway lines or not properly or as speedily as possible spread over the street, he may cause the same to be removed and spread as aforesaid and charge the expense to the said applicants who shall pay the same to the city. If, however, the engineer is of opinion that the snow or ice should be removed entirely from the streets so as to afford a safe passage for sleighs and other vehicles the said applicants shall at once do so at their own expense and charge, or in in case of their neglect the engineer may do so and charge the expense to them and they shall pay the same.
Apart from the question of negligence in carrying out the obligations which this sub-clause (f) imposes upon it the company is not liable for the condition or non-repair of the city's street. It is the duty of the city to keep the streets in repair and if by reason of
[Page 564]
its failure to do its duty in that respect any one sustains injuries it is the city that would be liable.
The city is not a party to this action and I do not desire to express any opinion whatever as to its liability for the plaintiff's injuries.
The question then in this case is whether or not the defendants have been guilty of negligence in discharging their obligations with respect to the removal of the snow and ice which would from time to time in Winnipeg gather on and alongside of their car tracks.
I do not think the defendants' obligation as to the removal and disposition of the snow can be expressed more clearly than the sub-section above quoted has expressed them. The city engineer is to determine whether the company has or has not properly removed the snow from about the track of the railway lines and if he decides they have not he is empowered to remove it at their expense. There was not a scintilla of evidence to shew that the engineer had at any time determined that the company had not properly removed the snow at all times. The only inference to be drawn from the evidence is that he was quite satisfied.
If the company complies with its obligation in that regard without negligence and causes injury to others no liability for damages rests upon them, on the plain and simple ground that the doing of an act authorized by the legislature cannot, without negligence involve liability to others for injuries they may suffer in consequence.
The rule or principle of law on this point seems clearly beyond doubt. In the case of Canadian Pacific Railway Co. v. Roy, their Lordships of the Privy Council held expressly that a railway company authorized by statute to carry on its railway
[Page 565]
undertaking in the place and by the means adopted is not responsible in damages for injury not caused by negligence but by the ordinary and normal use of its railway or, in other words, by the proper execution of the powers conferred by statute. In that case some sparks which escaped from an engine drawing a train of the railway company set fire to and destroyed the plaintiff's barn, but as there was no negligence on the part of the company they were held not to be liable for the loss.
See also Geddis v. Bann Reservoir, at pp. 455-6, and Hammersmith Railway Co. v. Brand.
The claim in this case is that the accident to the plaintiff was caused by a slippery incline from the main surface of the snow on the street to the rail upon which incline the plaintiff slipped and fell. But this incline was necessarily caused by the company in the exercise of its statutory powers and obligations in removing the snow from its tracks and spreading it upon the street. That afterwards it was pressed down by motor and jitney traffic leaving a hard smooth "surface" sloping upwards from the rails is something for which the company is in no way responsible. Such a slope or incline as made by the company was unavoidable if they were to fulfil their obligations. If the defendant company had removed all the snow from the eighteen inch strip outside of the rails leaving a perpendicular wall at the eighteen inch distance from the street the incline or slope would naturally have been greater, and the danger to the public much greater than its removal from the rails on a gradual incline. The fact, as Mr. Justice Perdue remarks, that part of the snow remained upon the strip was not an act of negligence
[Page 566]
which either caused or contributed to plaintiff's accident. The 18 inch strip of the incline complained of was entirely covered by the overhanging car and the steps of the car and plaintiff's accident occurred further up on the incline just before reaching out her hand to catch the rail or raising her foot to step on the car.
The actual facts are that in a city like Winnipeg, where there are such heavy falls of snow in the winter time, there must without negligence necessarily be in the removal of the snow from the track by the most modern and improved methods an incline or slope to the top of the snow in the street, that this incline or slope was at the time of the accident to the plaintiff made hard and slippery by the automobile and jitney traffic and that this condition was aggravated by a recent light fall of snow. Neither for the effect of the motor and jitney traffic in hardening and making slippery the incline or slope or for the light fall of snow which aggravated and increased the danger of these conditions the combination of which caused plaintiff's accident can the company be held liable.
There was no evidence whatever that the city's engineer was not satisfied with the manner in which the company had discharged its obligations with regard to the removal of the snow from and adjoining its tracks and on the other hand there was clear and undisputed evidence that they had so removed it by the latest and most approved methods and without negligence of any kind.
I agree with the learned judges of the Court of Appeal that the only evidence from which negligence could possibly be inferred was with regard to the incline and that no such inference could properly be drawn. It is not stated by any one that this incline was steeper
[Page 567]
than it should have been or that defendants could have avoided making an incline if they discharged their obligations.
There were only two ways in which the company could discharge its obligations with respect to the snow outside of the outer rail for the distance of 18 inches; one was to remove it entirely for that distance and either leave a perpendicular wall of snow 18 inches outside the rail and from the top of that wall leave or make an incline or slope to the top of the snow on the street level or remove the snow as they did by well-known modern appliances in an incline or slope from the rail to the snow on the street level. They adopted the latter course which had the approval, as I infer, of the engineer inasmuch as he never disapproved in any way. The other course of leaving a perpendicular wall at the 18 inches limit from the rail would obviously have created an intolerable and dangerous condition alike to vehicular traffic and to pedestrians and would doubtless have met with the prompt disapproval of the engineer. The slippery condition of the incline was caused by the motor and jitney traffic and was increased by a light fall of snow the night before the accident. For neither of these was the defendant in any way responsible.
For these reasons I would dismiss the appeal with costs.
Idington J.—The legal foundation upon which, beyond question, appellant's right of action herein can be rested is that what was improperly done or left undone by respondent resulted in unjustifiably putting a public highway so out of repair as to constitute thereby that sort of public nuisance for which an action will lie at the suit of any traveller injured thereby,
[Page 568]
as she claims she was, against the party so creating the nuisance or contributing thereto.
The relevant law is daily applied for example against the negligent teamster who has left improperly his waggon or machine or load on the highway, or the contractor engaged in repair or reconstruction of part thereof, who has improperly done or left undone something whereby he has endangered needlessly those using, as of right, the highway, and thereby caused any injury and damage to any of them.
The Electric Railway Company given by virtue of any legislation a franchise for the use of any highway is protected, so far as acting within the powers so conferred, from liability to any action for accidental results solely and necessarily due thereto. But it must so absolutely live up to the terms and conditions of its franchise that the accident complained of, in any action for damages arising therefrom, cannot be attributed to its having done or left undone that which the terms of its legalized franchise may have imposed or rendered obligatory upon it.
Its licence is limited to that which it can rightfully enjoy, concurrently with an observance of such terms. An habitual disregard thereof may entitle the Attorney-General or other duly constituted public authority in that behalf to move the courts to deprive it of the franchise or enforce its observance.
Under our English system of law the private individual has, however, no such right to complain to the courts, unless and until he has suffered injury resulting from the non-observance of the said terms and conditions. Then he or she suffering have, in case a public nuisance is created, a right to complain.
It is this phase of the law which distinguishes the
[Page 569]
case of Ogston v. Aberdeen District Tramways Co. from some other cases.
The law as laid down in that case relative to the result of non-observance of the terms and conditions of the franchise leading to the creation of a nuisance is applicable here.
The observance of the respective set of terms and conditions used in any such like cases of a purchase may lead to different results as illustrated by the case of City of Montreal v. Montreal Street Railway Co., where that complained of was held to have been conceded to the railway company by the city's by-law and hence could furnish no ground of complaint. See also the cases of Morrison v. Sheffield, distinguishing Great Central Railway Co. v. Hewlett, which itself illustrates how the company had been adjudged liable and then protected by a later Act enabling it to maintain what had formerly been adjudged a nuisance, and the cases of the Dublin United Tramways Co. v. Fitzgerald; Geddes v. Bann Reservoir; Mersey Docks Trustees v. Gibbs; Metropolitan Asylum District v. Hill, and Canadian Pacific Railway Co. v. Parke, where the obligation not to be negligent is implied in the legislative grant if proven. See also cases cited in earlier reports of these cases.
The law, I take it, rendering liable one so transgressing its rights and disregarding its duties needs no elaboration, but from the argument adduced it seemingly needs in order to have confusion in thought and law eliminated from the discussion to have it pointed out that though the city may also have incurred liability
[Page 570]
in regard to what has taken place and is in question herein that does not in law excuse or exonerate the respondent.
In like manner and for the like purpose I may observe that it is quite possible that the appellant's action may be rested upon the statute which confirmed the contract between the city and respondent.
I avoid passing any decisive opinion upon that subject for the two-fold reason that it is not necessary herein to do so, and the elaborate examination of the law on that point to bring the question so raised within the range of easy solution and determination would be useless and needlessly confusing.
Once it might be shewn that the statute by its purview or language, to adopt the rule laid down by Lord Cairns in the case of Atkinson v. Newcastle Water Works Co., would support the action what have we gained?
We need not go further than the elementary principles of law which I have adverted to.
If the statute gives an action it can herein only proceed upon the same identical principles relevant to the application of the facts in either case. The whole question involved and all the questions involved, in any way one can look at the matter, must turn upon the tests of whether or not the respondent lived up to the terms and conditions of its licence to invade the highway and whether or not it was a result of its non-observance thereof which caused the appellant's injuries.
In directing the jury the learned trial judge used the word "negligence" which at first blush I was inclined to think might not most aptly describe all that
[Page 571]
was needed to direct the jury, once they were told the nature of the obligation resting on respondent.
I have tested it in many ways in my own mind and I cannot find any one that would better convey to the jurors' minds what in the last analysis was left for them to decide upon the evidence as applicable to the obligation resting upon the respondent when exercising its powers.
There certainly was evidence that would have to be submitted to the jury and their determination of it ought to have been held final and left undisturbed unless some misdirection shewn.
There was nothing complained of at the trial by counsel for respondent which gives any legal ground for setting the verdict aside.
The disregard of the request to submit questions to the jury is not in Manitoba a misdirection.
Much often is to be said in favour of submitting questions but I cannot think an obligatory rule of that sort would promote the administration of justice. Take for example the case of Jamieson v. Harris, which presented ordinary everyday sorts of facts which any jury ought to have been able to decide upon, by applying their common sense, yet after twenty-six questions submitted and answered it was decided here that the learned trial judge had missed the right mark to direct attention to.
The next ground of complaint made at the trial in regard to the charge was that the action had not been based on any breach of alleged statutory duty.
Inasmuch as (which I have already tried to explain) the real question to be decided, was (so far as facts upon which the jury had to pass were concerned) identically the same whether presented as a breach of
[Page 572]
statutory duty or as the liability arising from the creating of a nuisance, I fail to see any valid ground of objection in "what is thus put forward.
The more elaborate presentation which was made of the objection resolves itself into a mere verbal distinction without containing anything in substance.
So far as pointed at the question raised as to the possibility of resting an action upon the statute it can be of no avail, in my view, that the action can rest upon the liability for nuisance quite independently of the statute.
It is not always that a charge which possibly proceeded in the misconception in the mind of the learned trial judge of the exact expression applicable to the name of the relevant law can be upheld.
But in this case it could by no possibility have misled the jury in the most rigorous discharge of their actual duties. They were identical in either way that the case might have been presented.
And still more is that the case when we come to weigh the term negligence to which, in some way not made clear, objection may have been intended to have been taken.
The learned trial judge upon mere mention of it at once assumed the question of contributory negligence had not been passed upon and corrected as it seems to me the erroneous impression of counsel, who seems to have assented.
There seems to have been some ten or more acts or omissions which appellant had put forward as acts of negligence on the part of the respondent.
In one part of the charge the learned judge seems to say that if respondent was guilty of any of these it must fail. This seems too broadly stated but is not objected to and the general tenor of the charge was
[Page 573]
such as to confine the jury's attention to the question of whether respondent had properly observed its obligations in a clause of the contract referred to as "F" and which imposed upon it a manner of dealing with the snow which certainly does not seem to have been observed else the situation created thereby would not have been that which was presented in evidence.
A slope of eighteen inches over the three and a half feet of snow turned into ice on any street lying next outside the rail seems to have been the condition which produced the accident in question.
That certainly was not what one would have expected to find as the product of the due observance of the contract in question, nor was it a fit condition for vehicular travel.
If that resulted from respondent's treatment of the snow problem, then I see no defence to the action, or reason for interfering with the verdict of the jury.
But even falling a long way short of such a product there seems no reason for a new trial which is prohibited by the "Court of Appeal Act" unless there has in truth been a miscarriage of justice within the meaning of same.
It has occurred to me that the specification "F" requiring a clear space between the rails and eighteen inches outside the rail was not very suitable for probable conditions and that a slope may have been treated by way of compromise.
Moreover, that is only surmise and at best could not help the respondent which could be no party to anything but that specified.
The afterthought suggestion that the snow was to be spread over the balance of the street so as to afford a safe and unobstructed passageway for carriages.
[Page 574]
and other vehicles but did not provide for pedestrians does not seem to have much weight. If such a passageway for carriages and other vehicles had been produced, the walking would not have been bad.
What is complained of was neither fit for pedestrians nor passengers by carriages or other vehicles. No doubt the jury understood this and assumed rightly pedestrians had full right to travel there to reach the car.
If the slope had only been a full eighteen inches wide it would have been overcome by the overhanging side of the car and have done appellant no harm.
Had the actual specification in "F" been adhered to pedestrians would have been quite safe in trying to get aboard a car, but I imagine the city and its engineer would have had to face a problem they do not, as was their duty, seem to have efficiently tried to have discharged.
That is no reason for setting aside appellant's judgment.
The respondent asks for a new trial if we should be disposed to disturb the appellate court's judgment.
The only thing put forward in that regard not already considered and dealt with is the interesting question of the non-reception in evidence of photographs of the street as it existed a month or more after the accident. I think the learned trial judge was right in such refusal.
There has been quite enough of confusion of law and of fact introduced into this simple case without giving such another cause therefor. Whether photographs can ever be insisted upon or not I will not pass upon but certainly as a guide to the condition of snow and ice on a street in Winnipeg a month before taken is asking too much.
[Page 575]
The appeal should be allowed with costs here and in Court of Appeal and the judgment of the trial judge restored.
Anglin J.—I am with respect unable to accept the conclusion reached in the Court of Appeal in this case that there was no evidence on which a jury could reasonably base a verdict for the plaintiff. The very condition of the roadway as described by some of the witnesses—a slope extending from the rails outward rising eighteen inches in four feet—might (of course I must not be understood as saying or meaning that it should) be considered by the jury to have been not "safe" * * * for the passage of carriages and other vehicles," and to have been due, in part at least, to some negligence on the part of the defendant company's servants in exercising its statutory right (or duty) to spread "over the balance of the street" the snow removed from the railway tracks and the adjoining eighteen inch strips.
But I am of the opinion that the case was not properly submitted to the jury on this vital issue and that the defendant is entitled to a new trial. As the action should therefore, in my opinion, go before another jury, it would not be proper for me to discuss the issues involved further than is necessary to make clear the ground on which I would direct a new trial.
Upon the charge of the learned trial judge, although the jury should be of the opinion that in disposing of the snow handled by them the company's servants had done all that was required
to afford a safe and unobstructed passage for carriages and other vehicles,
they might, if they thought that there was a condition dangerous to pedestrians ascribable in some degree
[Page 576]
to the acts of the defendants' servants, find a verdict for the plaintiff. After reading the first sentence of clause (f) of the regulations embodied in by-law 543 of the City of Winnipeg, validated by sec. 34 of 55 Vict., ch. 56, whereby the defendant company was declared to be entitled to
all the franchises, powers, rights and privileges thereunder,
the learned judge said to the jury:
But apart altogether from the statute, but at the same time not inconsistent with it, the street railway company may remove such snow from its tracks and such portions of the streets as may be necessary for the operation of its cars. But if it does remove the snow, or alter its natural condition in any way, there is a duty cast upon it to do so in a reasonable manner and without negligence. If it removes snow from its tracks and throws it upon part of the highway adjoining the tracks in a careless and negligent manner or leaves it piled up or heaped up with a dangerous slope upon a highway, and if it was by reason of such negligence that the plaintiff slipped and fell, then (subject to the rule of contributory negligence which I will presently explain) the defendant would be liable.
You may quite properly require a high degree of care to such of the public who may in the ordinary course of events attempt to board a street car or who, in other words, are invited to cross, to the car, that portion of the street cleaned and distributed, but excepting in so far as the defendant may have rendered the street dangerous by its acts, it is not liable for the dangerous condition of a public street on which it receives and discharges passengers. However, in removing snow from one part of the street and depositing it on another part at an angle, you may fairly charge the defendant with knowledge of the traffic and its probable effect upon the snow so distributed.
Except under the authority of the by-law ratified by the legislature the defendant company had no right to interfere with the normal conditions of the highways. Anything in the nature of an obstruction or danger to lawful traffic thereon of any kind caused wholly or in part by its interference resulting in injury would, apart from the statutory sanction, amount to an actionable nuisance. The legislature saw fit, however, to give the company the right to remove snow and ice from their tracks and a defined space on either side of
[Page 577]
them in order to permit of the free operation of their tramcars. In doing so it thought proper to approve of the condition annexed by the city by-law to the exercise of the right so conferred, viz., that the company should spread the snow and ice so removed "over the balance of the street." It had no right to take away any of the snow or ice to any other place, unless the city engineer should so direct, when in his opinion that should become necessary
to afford a safe passage for sleighs and other vehicles.
The by-law approved by the legislature specified the manner in which the snow should be spread by the company, i.e.
so as to afford a safe and unobstructed passageway for carriages and other vehicles.
No doubt, as put by the learned judge, in this connection the defendant may fairly be charged with knowledge of the traffic on the highway and its probable effect. But the measure of its duty—the condition of the exercise of its right—is that, having regard to such traffic, it should spread snow and ice removed from its tracks, etc., so as not to obstruct or render unsafe vehicular traffic—always of course so far as the exercise of reasonable care and skill will enable that to be done. If, notwithstanding the exercise of such care and skill, a condition dangerous to pedestrians should ensue—either because of the excessive quantity of snow and ice thus accumulated on "the balance of the street," or because of other conditions not attributable to any neglect of the company's servants in the exercise of its statutory right with its incidental obligation, the company is not legally responsible. It would only have done that which the legislature authorized it to do in the very manner and to the extent specified by the approved by-law. It is solely
[Page 578]
because this aspect of the case was, in my opinion, improperly presented to the jury that there should be a new trial.
Objection to the learned judge's charge on this ground was probably sufficiently taken by counsel for the defendant, when he urged that
no person can set up a claim in law for damages based on negligence against a party who has complied with a statutory power or a statutory duty,
and again, that the plaintiff would not have a cause of action arising out of the slope in the highway unless that defect falls "within the purview of the statute"—meaning, I take it, that a condition due to the acts of the company's servants, which, although unsafe for pedestrians, was reasonably safe and unobstructed for vehicular traffic, would not entail liability on the company.
I would merely add, with respect, that this appears to be a case in which the learned trial judge might very properly have yielded to the suggestion of counsel for the defendant that questions, covering the several issues, should be submitted to the jury.
Brodeur J.—This is a case arising out of a street railway accident. By virtue of a by-law passed by the City of Winnipeg, the respondents were bound to keep the part of the street occupied by their lines for a space of 18 inches on both sides of the track clear of snow, ice and other obstruction and to spread over the balance of the street the snow or the ice so as to afford a safe and unobstructed passageway for carriages. This by-law was validated and confirmed by the legislature in all respects
as if the said by-law had been enacted by the legislature.
It appears by the evidence that on the day of the accident there was a slope which might be of a dangerous
[Page 579]
nature spreading at the rail and extending back about four feet to a height of about 18 inches. When the appellant came to board the street car she fell by reason of that dangerous condition and was very seriously hurt.
It is claimed by the appellant that the duty imposed upon the respondent company was a statutory one in view of the declaration made by the legislature and that the by-law should be considered as being enacted by the legislature itself. That view has been accepted by the trial judge but the Court of Appeal would not adopt it and reversed on that ground the judgment of the Court of King's Bench of Manitoba.
If the legislature had simply confirmed the by-law, the latter should be considered as a contract between the city and the street railway company. But in declaring that this by-law becomes a legislative enactment that duty imposed upon the railway company becomes a statutory duty and if in the exercise of those powers, or in the carrying out of those duties, the company acts negligently then there is liability on its part towards any person who might be injured as a result of that neglect.
Some evidence has been adduced to shew that this incline on the street was caused by the company and by the way the snow had been removed from the centre of the street and there was certainly sufficient evidence to justify the jury in coming to the conclusion that the duty imposed upon the company had been negligently carried out. On that ground, I should be of opinion that the findings of the jury should be sustained. Besides, the company in exercising a statutory power is under a common law duty not to injure the public. Geddes v. Bann Reservoir.
[Page 580]
It is suggested, however, that a new trial should be ordered because the judge did not properly instruct the jury as to the nature of the duty and obligation of the company.
If I refer, however, to that charge I fail to see that he has not given those proper instructions. I notice that he uses, in one part of his charge, the following words, and I think they cover the objection which has been raised:
But apart altogether from the statute but at the same time not inconsistent with it, the street railway company may remove such snow from its tracks and such portions of the streets as may be necessary for the operation of its cars, but if it does remove the snow, or alter its natural condition in any way, there is a duty cast upon it to do so in a reasonable manner, and without negligence. If it removes snow from its tracks, and throws it upon part of the highway adjoining the tracks, in a careless and negligent manner, or leaves it piled up or heaped up with a dangerous slope upon the highway, and if it was by reason of such negligence that the plaintiff slipped and fell, then the defendant would be liable. You may quite properly require a high degree of care to such of the public who may in the ordinary course of events attempt to board a street car, or who, in other words, are invited to cross to the car that portion of the street so cleaned and distributed. But excepting in so far as the defendant may have rendered the street dangerous by its acts, it is not liable for the dangerous condition of a public street on which it receives and discharges passengers. However, in removing snow from one part of the street and depositing it on another part, at an angle, you may fairly charge the defendant with a knowledge of the traffic and its probable effect upon the snow so distributed.
In those circumstances, I think that the judgment appealed from should be reversed and the judgment of King's Bench should be restored with costs of this court and of the courts below.
Appeal allowed with costs.
Solicitor for the appellant: Benjamin L. Deacon.
Solicitors for the respondents: Moran, Anderson & Guy.
Email this Content