Supreme Court of Canada
Williams v. The City of Portland (1891) 19 SCR 159
Date: 1891-05-12
Edward Williams and Alice S. Williams, his wife (Plaintiffs)
Appellants
And
The City of Portland (Defendants)
Respondents
1890: Oct. 31; 1891: May 12.
Present.—Sir W. J. Ritchie C.J. and Strong, Founder, Taschereau, Gwynne and Patterson JJ.
Williams v. The City of Portland
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
Municipal corporation—Statutory powers—Control over streets—Alteration of grade—Negligence—Contributory negligence—34 V. c. 11 (N.B.)—45 V. c. 61 (N.B.)
The act of incorporation of the town of Portland, 34 Y. c. 11 (N.B.), which remained in force when the town was incorporated as a city by 45 V. c. 61 (N.B.), empowered the corporation to open, lay out, regulate, repair, amend and clean the roads, streets, etc.
Held, that the corporation had authority, under this act, to alter the level of a street if the public convenience required it.
W. was owner and occupant of a house in Portland situate several feet back from the street with steps in front. The corporation caused the street in front of the house to be cut down, in doing which the steps were removed and the house left some six feet above the road. To get down to the street W. placed two small planks from a platform in front of the house and his wife in going down these planks in the necessary course of her daily avocations slipped and fell receiving severe injuries. She had used the planks before and knew that it was dangerous to walk up or down them. In an action against the city in consequence of the injuries so received:
Held, affirming the judgment of the court below, that the corporation having authority to do the work, and it not being shown that it was negligently or improperly done, the city was not liable.
Held also, that the wife of W. was guilty of contributory negligence in using the planks as she did knowing that such use was dangerous.
Appeal from a decision of the Supreme Court of
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New Brunswick setting aside a verdict for the plaintiffs and ordering a non-suit.
The action was brought against the city of Portland for injuries to the plaintiff Alice S. Williams incurred under the following circumstances. Plaintiffs' house had a platform in front and steps leading down to the street. The city authories altered the grade of the street in front of this house, and in doing so removed the steps leaving a perpendicular fall of some six feet from the platform to the street as altered. These steps were the usual means of ingress to and egress from the house, and after they were removed the plaintiff Edward Williams placed two deals about ten feet long where the steps had been. The plaintiff Alice S. Williams in going down these deals to cross the street and feed her hens on the other side sustained the injuries for which the action was brought.
On the trial the plaintiffs obtained a verdict for $625 damages. On motion to the Supreme Court of New Brunswick this verdict was set aside and a non-suit ordered, the court being of opinion that the cutting down of the street being for the convenience of the public defendants were not liable, and, also, that there was contributory negligence on the part of the plaintiffs. From this judgment of non-suit the plaintiffs appealed.
Pugsley, Sol. Gen. for New Brunswick, for the appellants. Under its charter the city of Portland had power to open, lay out, regulate, repair, amend and clean the streets. This gives no authority to alter the grade. Nutter v. Accrington Board of Health.
If the defendants could cut down the street they were guilty of negligence in encroaching upon plaintiffs' property and removing the steps.
The plaintiffs having been deprived of their means
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of access to the street adopted a reasonable mode of securing it, and cannot be prevented from recovering from the fact of the plaintiff Alice S. Williams having used it. See Clayards v. Dethick.
Currie for the respondents referred to Boulton v. Crowther; Smith v. Corporation of Washington; as to the power to alter the grade; and on the question of liability for negligence to Adams v. Lancashire & Yorkshire Railway Co.; Wakelin v. London & South Western Railway Co..
Sir W. J. RITCHIE C.J.—I think the town of Portland, under the authority given to it by 34 Vic. cap. 11 s. 83 to open, lay out, regulate, repair, mend and clean the roads, bye roads, highways, streets, sidewalks, had full power to alter if need be the levels of the streets. This principle we recognized and acted on in this court in Pattison v. The Mayor of St. John. There is no evidence that defendant went beyond the line of the street; there is evidence that the cutting was all within the line of the street. There was no evidence whatever that the work was done negligently or improperly; though the jury found such to be the case there was no evidence whatever to establish this. There was clear evidence of contributory negligence. I think the injury the plaintiff sustained was brought about entirely by the manner in which the planks were placed and which plaintiff admits it was dangerous to go up and down. It is abundantly clear that it was because the planks were so placed that it was not reasonably safe for plaintiff's wife to pass over them in the manner she did that caused the accident.
STRONG J.—For the reasons given by the court below I am of opinion that this appeal should be dismissed.
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FOURNIER J.—Concurred.
TASCHEREAU J.—I think that the judgment ordering a non-suit was right. I have come to this conclusion upon the ground that it is clear, by the evidence adduced at the trial, that the accident to the plaintiff Alice S. Williams was entirely due to her want of proper care and caution in the use of the planks to get from the house to the street, placed there by her husband in such a position that it was dangerous to pass over them. I would dismiss the appeal.
GWYNNE J.—The declaration filed by the plaintiffs in this action proceeds wholly upon the allegation that the defendants wrongfully cut down a certain street or highway in the city of Portland in the Province of New Brunswick in front of dwelling house of the plaintiff, Edward Williams, so as to make the said street and highway considerably lower than it had previously been, and also wrongfully, illegally and improperly removed certain steps which the plaintiff, Edward, used for affording access from his dwelling house to the street, so as to make it dangerous getting from the said dwelling house and premises to and upon the said street and highway, and that the defendants frequently promised to replace the said steps, so as to continue them down to the said street so lowered, but did not do so.
Upon this foundation is erected the superstructure which constitutes the gist of the action, namely:
That the said Edward Williams, relying upon the said promise, in order to get access to said street and as a temporary means of getting such access was obliged to and did, prudently, carefully, and in a reasonable manner, place boards leading in a slanting direction from the said premises to the said highway as a temporary means of getting from said dwelling house upon said highway until the said defendants should place said steps there as they had agreed and were lawfully
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bound to do, the said plaintiff, Edward Williams, using all proper and reasonable care in that behalf, and the said Alice S. Williams, then being the wife of the said Edward Williams, while seeking to pass from said dwelling house to said street by the way which she had theretofore been accustomed to, and had a right to go, was stepping down the said boards when, without any fault of her own, she slipped and fell, and was very severely bruised, wounded, maimed and injured, and became and was sick and disabled for a long time and suffered great pain of body and mind.
And the plaintiffs claimed for the said injury to the said Alice 8. Williams the sum of $2,000, and the said Edward Williams for the loss of the comfort of the services of his said wife and for expenses of nursing her and for medical attendance claimed the further sum of $500.
To this declaration the defendants pleaded in their second plea that they did the several acts complained of under, and by virtue of, the authority in them vested by the act of the general assembly of the province of New Brunswick, 34 Vic. ch. 11, passed to incorporate the town of Portland, and acts in amendment thereof, and without any negligence or improper conduct on the part of the defendants, and not otherwise. And as to the removal of the steps leading from the plaintiffs' dwelling house to the said street the defendants in a fifth plea pleaded, that such steps were upon, and wrongfully encumbering, said highway or street, and the defendants as they lawfully might took away and removed such steps from off said highway or street. The defendants in other pleas denied that they had ever promised to replace said steps and continue the same down to the street as lowered, but the whole case is involved in the sufficiency of the defence as pleaded in their second plea that what the defendants' did in lowering the street as set out in the plaintiffs' declaration was authorized by the acts of the legislature of
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the province of New Brunswick in that plea mentioned and under which the defendants justified.
A protracted inquiry into much irrelevant matter seems to have taken place at the trial, for in view of the fact that the whole foundation of the action as laid in the declaration was the allegation that the act of the defendants in lowering the street, as they undoubtedly did, was illegal and so wrongful to the plaintiffs, the whole question was reduced to one of law, namely, whether the acts under and in virtue of which the defendants justified authorized them so to lower the grade of the street. As to the removal of the steps in the declaration mentioned as formerly leading from the plaintiffs' dwelling house to the street the evidence showed what was done to have been an act incidental to, and necessarily consequential upon, the lowering of the street as lowered. These steps rested upon the street or highway, and the lower ones consisted merely of rough boards laid across a channel in the highway used for drainage purposes, and after the lowering of the street or highway the plaintiffs' dwelling house was left standing several feet nearly perpendicularly above the line of the street or highway as lowered, and so the access from the dwelling house to the street which had before existed was undoubtedly cut off as a consequence necessarily resulting from such lowering of the street. There was no evidence offered at the trial for the purpose of shewing, that, nor indeed did the declaration contain any complaint that, the defendants in lowering the street had crossed the limit of the street, and had entered upon and had cut down any part of the plaintiffs' land; they were granted leave at the trial to amend their declaration by inserting a count to that effect, if they desired to do so, but they declined availing themselves of the privilege thus granted to them. If such a case had
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been made it would have been necessary to inquire whether such a trespass on land of the plaintiff, Edward Williams, would have rendered the defendants liable for the injury sustained by the wife of Edward Williams occasioned by her using the mode of descent provided by the husband for procuring access from his dwelling house to the street, which, if it was legally lowered, the plaintiffs have not shewn any right so to encumber. Several questions were submitted to the jury by the learned judge who tried the case, all of which the jury answered unfavorably to the defendants. It is, however, unimportant now to consider these questions, or to inquire whether the answers to them are supported by the evidence, for it was agreed at the trial that the verdict should be taken in accordance with the answers of the jury to the questions submitted to them, subject to the opinion of the court whether a non-suit should not be entered upon points taken and moved at the trial and reserved for the consideration of the court. A non-suit has been ordered to be entered by the Supreme Court of New Brunswick pursuant to the leave so reserved, and from that judgment this appeal is taken.
The only points of non-suit so taken which are at all necessary to be considered are that the defendants are not liable to the plaintiffs by reason of their having lowered the grade of the street, that having been a lawful act done by them in the service of their jurisdiction as a municipal corporation, and done for the benefit and convenience of the public; and that there was no evidence of any negligence committed by the defendants in the lowering of the street, or of any duty owed by the defendants to the plaintiffs a breach of which had been committed, so as to entitle the plaintiffs to recover in the action.
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By the Provincial statute, 34 Vic. ch. 11, the town of Portland was incorporated and by the fourth section of the act it was enacted that the fiscal, prudential and municipal affairs, "and the whole local government of the town" should be vested in a town council consisting of a chairman and twelve other persons to be elected annually by the ratepayers as in the act directed, "and in no other power or authority whatever." By the 57th section it was enacted that such town council should have the sole power and authority to make by-laws for the good rule and government of the town, and for the better carrying out of the provisions of the act, and from time to time to revise, repeal, alter or amend any by-laws, ordinances, rules or regulations whatsoever by them made under the authority of the act, and by the 83rd section it was enacted that the town council should have the sole and exclusive management and control of all roads, bye roads, highways, streets, sidewalks, wharves, docks, slips, ways, lanes and alleys within the said town, and power to open, lay out, regulate, repair, amend and clean the same, and to put and build drains, culverts and bridges therein, and should control the expenditure of all legislative grants for bye roads within the said town, and of all moneys assessed and collected or expended from the general revenues of the said town, for and on account of the making, repairing and improvement of any such roads, bye roads, highways, streets, sidewalks, wharves, docks, slips, ways, lanes and alleys.
By the 84th section the town council was invested with all the powers as to the expenditure and commutation of statute labor which were vested in the General Sessions of the Peace, and in the Commissioners and Surveyors of roads, under the Provincial statute, 25 Vic. ch. 16, to be exercised in such manner and through such officers, agents and persons, as the town council
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should prescribe. By this act, 25 Vic. ch. 16, the commissioners of roads were empowered to expend the statute labor and the monies arising from the commutation thereof in making or "improving the roads and bridges in the best manner," the places where and the manner in which such improvements should be made being left to the discretion of the commissioners.
By 45 Vic. ch. 61 the town of Portland was erected into a city, and it was thereby enacted that the act of incorporation of the town of Portland, 34 Vic. ch. 11, should apply to the city of Portland, and that the words "Town of Portland," "Town," "Town Council," "Chairman," whenever occuring in said act of incorporation, 34 Vic. ch. 11, should thenceforth be read as "City of Portland," "City," "City Council," "Mayor."
These are the acts under which the defendants have justified the lowering the street, the legality of which the plaintiffs dispute. There can be no doubt, in my opinion, that the statutes under which the defendants have justified do authorize the defendants to lower the grade of the streets wherever necessary within the limits of the city in such manner and to such extent as shall appear to the town council to be the best manner for serving the interests of the municipality and the convenience of the public. The powers vested in the local municipal corporations throughout the Dominion are vested in them as part of the system of local self-government authorized by sec. 92, item 8, of the British North' America Act, whereby the local legislatures are exclusively empowered to make laws in relation to municipal institutions in the province, the policy being to place all matters of a purely local nature, which the regulating the grade of the streets in a municipality eminently is, under the absolute management and control of the municipal corporation, as a power essentially necessary to the interest of the public,
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and the good rule and government and prosperity of the municipality. If deprived of this power the municipalities throughout the Dominion would be stripped of a power which seems to be essentially necessary to the success of these institutions as local self-governing bodies. It is well established that if the lowering of the street in question was an act which was authorized no action lies at the suit of the proprietor of adjacent lands for any injury thereby occasioned to his property, unless it be for injury arising from negligence in the manner in which the work was executed, nor can he claim any compensation for such injury unless under a special legislative provision to that effect, and in the manner directed in such legislative provision if any special mode be directed, if not then by action. The present action, however, is not brought for any injury alleged to have been done to the property of the plaintiff, Edward Williams, abutting on the street which has been lowered in front of his dwelling house. The action and the claim made iu it are of a totally different nature, namely, that the total absence as is alleged of any right in the defendant corporation to lower the street, and by so doing to cut off the access which he had had from his dwelling house to the street as it was before being lowered, entitled the plaintiff, Edward. Williams, to provide himself with access from his dwelling house to the street as lowered, and that the defendants, by reason of their act being unauthorized, are responsible for the injury sustained by the wife of Edward Williams in using the mode of access provided by him. If the act of the defendants was a lawful act, if they were authorized to lower the street so as to deprive the plaintiff Edward Williams and his family of access to the street as lowered, there is no foundation laid for the action which has been brought and no
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action does lie at the suit of the plaintiffs, or of either of them; and it is unnecessary to inquire whether any action would lie under the circumstances appearing in evidence, as to the immediate cause of the injury complained of having been the defect in the mode of access constructed by the plaintiff Edward Williams himself, even if the defendants had not had, as is alleged, any authority to lower the street. The case of Nutter v. Accrington Local Board of Health and certain questions put to counsel by Bramwell and Brett L.JJ. in the course of the argument were relied upon by the learned counsel for the appellants in support of their contention, but that case carefully examined and thoroughly understood seems rather to support the contention of the respondents, namely, that they had authority to lower the street in question here.
The action was to enforce an award made in favor of the plaintiff, giving to her compensation for injury done to her property by reason of the grade of a highway near her house having been raised, and the question was whether she was entitled to compensation under the Public Health Act of 1848, 11 & 12 Vic. ch. 63, for such alteration made in the road upon which her house abutted.
By section 2 of the act it was enacted that the word "street" in the act should apply to and include any highway (not being a turnpike road) any road, public bridge (not being a county bridge), lane, footway, square, canal, alley or passage within the limits of any district.
By section 68 it was enacted that all present and future "streets" being, or which at any time should become, highways within any district of a local board should vest in and be under the management and control of the local board of health, and that the said local
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board should cause all such streets to be levelled, paved, flagged, channelled, altered and repaired as occasion might require.
Section 144 provided for compensation being granted to all persons sustaining any damage by reason of the exercise of any of the powers of the act. In the town of Accrington there was a road called the Whalley road in respect of which a turnpike road had been established by 29 Geo. 3, ch. 107; part of this road was within the district of the Accrington local board, and it was on such part that the plaintiffs' property was situate. In 1858 the Local Government Act, 21 & 22 Vic. ch. 98, was passed (in amendment of the Public Health Act 11 & 12 Vic. ch. 63,) by the 41st section of which act it was enacted that it should be lawful for any local board by agreement with the trustees of any turnpike road, or with any corporation or person liable to repair any street or road, or any part thereof, to take upon themselves the maintenance, repair, cleansing, or watering of any such street or road, or any part thereof, on such terms as the local board and the trustees, or corporation, or person, or surveyor aforesaid might agree upon between themselves. Prior to 1871 an agreement was entered into between the Accrington local board and the trustees of the turnpike road, whereby amongst other things the trustees undertook to raise the carriage way at a part of the road immediately opposite the house and land of the plaintiff, and the local board on their part undertook to raise the footpath along the plaintiff's land to a corresponding height. It was for this work that the plaintiff claimed compensation, and had procured an award in her favor to enforce which the action was brought.
The contention of the defendants was that the road in question being a turnpike road was, by the second
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section of 11 & 12 Vic. ch. 63, excepted from their jurisdiction, and that the work done was not done under the authority of that act, but under the agreement entered into with the trustees under 21 & 22 Vic. ch. 98, and that therefore the compensation clause of 11 & 12 Vic. ch. 63 did not apply, and that the plaintiff was not entitled to compensation. The Court of Queen's Bench concurring in this contention gave judgment for the defendants from which the plaintiff appealed. Upon the appeal counsel for the plaintiff contended:
1st. That the road was a "street" within 11 & 12 Vic. ch. 63, and under the control and management of the local board, notwithstanding that the piece of road in question was part of the turnpike road; and
2nd. That even if not a "street" within the above statute the local board had power under 21 & 22 Vic. ch. 98, s. 41, by agreement with the turnpike trustees, to take upon themselves the maintenance, repair, cleaning and watering of it.
It was with reference to this contention that Bramwell L.J. put the question to counsel: "What power had the trustees to raise the road?" And that Brett L. J. said: "Maintenance must mean keeping it up as it is; could they level a hilly road?" to which questions counsel immediately gave answer:—
By 9 Geo. 4 ch. 77, sec. 9, the trustees of any turnpike road are empowered to make, divert, shorten, vary, alter and improve the course or path of any of the several and respective roads under their care and management.
And he argued that under this clause the trustees of the turnpike road had power to make the alteration complained of, and although they could do so without paying compensation, still they could authorize the local board to make the alteration under sec. 41 of 21 & 22 Vic. ch. 98, and that sec. 4 of that act made the provisions of the Public Health Act of 1848 apply
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and so that the plaintiff was entitled to compensation under sec. 144 of 11 & 12 Vic. ch. 63.
This 4th sec. of 21 & 22 Vic. ch. 98, as thus applied and relied upon, enacts that:
This act shall be construed together with, and deemed to form part of, the Public Health Act of 1848; words used in this act shall be interpreted in the sense assigned to them in said Public Health Act; and the provisions of each of the said acts shall, so far as may be consistent with the provisions of this act, be respectively applicable to all matters and things arising under the other act.
The argument for counsel for the defendants was that the turnpike road was not a "street" within 11 & 12 Vic. ch. 63, and so was not by that act placed under the control and management of the local board, and that section 144 did not apply—that what the local board had done was by authority of the trustees who could have done it themselves without rendering compensation, and that the local board could justify under the trustees of the turnpike road and so were not liable to render compensation to the plaintiff. The majority of the Court of Appeal, consisting of Lord Justices Cotton and Brett, were of opinion that the road in question was a "street" within 11 & 12 Vic. ch. 63, and was therefore under the control of the local board, notwithstanding that it was also a turnpike road, and that therefore the plaintiff was entitled to compensation under section 144 of 11 & 12 Vic. ch. 63. Bramwell L.J. dissented and was of opinion that a turnpike road was not a "street," or under the control of the local board within 11 & 12 Vic. ch. 63, and that therefore the judgment of the Queen's Bench Division should be affirmed. In the observations made by him in his judgment, however, he gives a most complete answer to the above questions put by himself and Brett L.J. to counsel for the plaintiff during the argument. He there says:—
If the acts were done, as indeed they were, and the alteration was
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made under the powers of the turnpike trustees, I cannot see that any action would be maintainable against the turnpike trustees or those who acted in their behalf. The trustees are empowered under their act of parliament to raise and alter the levels of the road, and it has been held in a case in the reports of Barnwell and Cresswell. Boulton is Crowther, 2 B. & C. 703, that no action lies against the trustees of a turnpike road for acts done bonâ fide and within their jurisdiction.
But, he adds:—
I am inclined to look upon it as a principle that no action ought to be maintainable. * * * * * Supposing that the owner of property adjoining a highway is not the owner of the soil in the highway, I do not think he has any right by the law of the land to have the road continued at a particular level. It may be a great inconvenience to him, no doubt to have the road altered, if he has built with reference to the level of the road, but it may be an inconvenience to the public not to have the level altered, and I do not know that he has any vested right in the road remaining at that level to the inconvenience of all mankind. If this view is right then there is no ground for saying that the defendants are continuing and maintaining a wrong which they have committed. If the act was rightly done by the turnpike trustees the defendants are justified in maintaining it.
Now the right which Lord Justice Bramwell in these observations says the trustees had "to raise and alter the levels of the road," was contained in the statute 9 Geo. 4 ch. 77, sec. 9, cited by counsel for the plaintiff in answer to the question put to him by the Lord Justices, in which statute the power granted is stated to be "to make, divert, shorten, vary, alter and improve" the course of the road under the "care and management of the trustees." We have then the opinion of Lord Justice Bramwell himself in answer to the questions put by himself and Lord Justice Brett that those words were sufficient to confer authority upon the trustees of the turnpike road to cut down hills, to raise hollows, and to raise or lower the level of the road under their care, but whether these words would or would not be sufficient to authorize the local board
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of health, or turnpike trustees, in England to alter the levels of roads under their care, we cannot, in my opinion, permit a doubt to be entertained that the nature and contstitution of local municipalities in this Dominion is such that when, as in the statute incorporating the defendants, and in like statutes, the highways in the municipalties are placed under the sole and exclusive management and control of the councils of the municipalities with power to regulate repair, amend and improve the same the municipal corporations have most ample power to cut down hills, to raise hollows and from time to time to alter the levels of all such highways in such manner as shall seem to them to serve best the interests and convenience of the public. The case is, in fact, concluded by Pattison v. The Mayor of St. John in this court. There can then be no doubt that the corporation of the City of Portland had ample power to lower the level of the street in question, and as the allegation that they had no such power is made the sole foundation of the action as laid in the declaration in this cause the nonsuit was rightly ordered, and it is unnecessary to refer to the other matters discussed at the trial. The appeal must, therefore, be dismissed with costs.
PATTERSON J.—This action is brought by husband and wife to recover damages for injuries received by the wife. The act of the defendants which is complained of is the lowering of the street in front of the house and premises of the husband, but he does not base his claim upon any asserted injury to or depreciation of his property. He asserts that the defendants cut down the street and removed some steps by which he used to descend from his house to the street at its former level, and promised to replace them but did not
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fulfil that promise, and he says that, relying on that promise, he was obliged, in order to get access to the street, and did prudently, carefully and in a reasonable manner, place boards leading in a slanting direction from his premises to the highway as a temporary means of getting from his house to the highway until the defendants should replace the steps as they had agreed and were lawfully bound to do; and it is then averred that the wife slipped when going down the boards and was hurt. There is no allegation that the lowering of the street was unlawful or improper. The removal of the steps is charged to have been wrongful, illegal and improper, but no right to have the steps there is shewn. They are not even alleged to have been on the plaintiffs' property. The allegation is that—
There were and had been for a long time wooden steps leading from the said dwelling house and premises to the said street and highway;
evidently meaning that the steps led from the higher elevation down to the then level of the street,
which steps were then, and had been for a long time prior to the grievances hereinafter mentioned, rightfully and lawfully there.
All of which would be true of steps used by permission of the corporation within the line of the highway. In face the statement of complaint relies upon the alleged promise to replace the steps, though it does not allege any consideration for the promise.
The inquiry naturally suggested is: What cause of action in the female plaintiff is intended? No duty to her on the part of the defendants is averred, the idea conveyed by the pleading being that she is suing because she had received an injury which she might have escaped if the defendants had fulfilled their promise to her husband. And, as far as the husband is concerned, he appears to put forward his wife's injuries
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as special damage from the same breach of contract.
It is too late, however, to criticise the pleading, and the plaintiffs, both or one of them, must succeed if the verdict they have obtained can be supported on the law and evidence.
I do not think it can possibly be supported.
The alleged contract may be put aside at once. There is no pretence that it can be maintained.
Consider the case in the first place as if the cutting down of the street and the removal of the steps were unlawful acts, and, if you please, trespasses on the property of the husband. As already remarked the action is not for damages in respect of the property. Had it been so the measure of the damage would probably have been the price of a new set of steps. The position is that the platform of the house is left with a drop of six feet down to the level of the roadway.
Now, assuming in his favor that there was no other way to get down, though there is evidence that there was another way, would the plaintiff be justified in saying:—
I have been accustomed to walk straight from my door to the street and I shall continue to do so. If I fall town the six feet where I used to have steps to go down, and am hurt, the corporation must pay me damages.
No one would contend for such a proposition. Clayards v. Dethick whatever it decides, is not an authority that a man may run into obvious danger and then look to the person who caused the danger to make good any harm that follows. In Lax v. Darlington, Bramwell L.J. made some remarks upon expressions used in Clayards v. Dethick (1) which may usefully be referred to when that decision is appealed to. One of his illustrations is not inapposite here.
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Suppose, he said, a man is shut up in the top room of a house unlawfully, is he bound to stay there? He is not bound to do anything of the kind; he may jump out if he likes to run the risk of breaking his neck or his limbs; he may let himself down by a rope or a ladder, but if he runs the risk of getting out and breaks his neck, the person who shuts him up is not guilty of manslaughter; and if he breaks his leg, he ought not to have any right of action against that person although he was not bound to stay there.
Here the plaintiffs did not jump down from the platform, they constructed a gangway and took the risk of getting down by it. It was a very unsafe and impracticable gangway, made by laying from the platform to the street two small planks 7 and 9 inches wide and 9 1/2 and 10 1/2 feet long. The platform being six feet high the planks must have rested on the ground about 8 feet off, forming a steep incline that would require some acrobatic skill to walk on at any time, but making it no matter of surprise that when the planks were wet the plaintiff Alice slipped off them. There would have been greater reason for surprise if she had not fallen.
It seems therefore clear that, irrespective altogether of the right of the defendants to do the acts complained of, the evidence fails to support the charges that those acts occasioned the injuries to the plaintiff Alice. The question of contributory negligence does not arise as a separate issue. The plaintiffs had to establish that the injuries complained of were occasioned by the acts charged against the defendants, and they have shown clearly what it was that caused the accident, and that it was the attempt to use the unsafe gangway which they had themselves constructed and which they knew to be dangerous.
There was under these circumstances nothing to leave
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to the jury, and I do not understand any of the questions on which the jury pronounced to have referred to the aspect of the case which I have been discussing. Several questions were asked relating to other means of access to the highway and as to the possibility of using, and the prudence of not resorting to, such other means in place of the planks, but the other access referred to was a route by another part of the platform. The question most directly relating to the planks was this:—
Was it reasonably necessary for the plaintiff in order to get from his premises to the street to put the planks in the position they were placed?
the learned judge explaining that by "reasonable," he meant reasonably necessary considering the other means the plaintiff had of getting to the street. This question did not, any more than the others, touch the subject of the dangerous character of the gangway.
The point decided in Adams v. Lancashire & Yorkshire Ry. Co. is very like that on which this case might turn on the assumption that the defendants were to blame for removing the steps. The company there had been negligent but the plaintiff had brought the injury on himself by his own act. He was non-suited by the court in banc. Brett L. J., who had tried the action, agreed in the judgment, though apparently with some hesitation. I shall read from his observations a passage which was quoted with approval in the recent case of Lee v. Nixey, and which is apposite to the case in hand:
I think the jury were justified in finding that the defendants were negligent; but the immediate result of their negligence was not any peril to the plaintiff, but only considerable inconvenience. It has been argued that no amount of inconvenience, if there be no actual peril, will justify a person incurring danger in an attempt to get rid of it. I confess I am not prepared to go that length. I think if the inconvenience
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is so great that it is reasonable to get rid of it by an act not obviously dangerous, and executed without carelessness, the person causing the inconvenience by his negligence would be liable for any injury that might result from an attempt to avoid such inconvenience.
Here the method adopted by the plaintiffs for reaching the street was obviously dangerous.
But there cannot be any serious dispute as to the authority of the defendants to change the level of any portion of the street under their statutory power to "open, lay out, regulate, repair, amend and clean" the roads, &c. within the town. The same section gives the town council the control of the expenditure of moneys for the "making, repair and improvement" of the roads. The word "improvement" is evidently used as the synonym of "amend," and these terms include something beyond merely repairing, being in each instance used in addition to the word "repair." This subject has been fully discussed in the judgments delivered in the court below. I shall content myself with saying that I agree with the views expressed by Mr. Justice Tuck and Mr. Justice King.
I agree that the appeal should be dismissed.
Appeal dismissed with costs.
Solicitor for appellants: Wm. Pugsley.
Solicitor for respondents: I. Allen Jack.
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