Supreme Court of Canada
Stephens v. Chaussé, (1888) 15 SCR 379
Date: 1888-03-02
ROMEO H. STEPHENS
Appellant;
And
CHARLES CHAUSSÉ
Respondent.
1888: March 2
Present—Sir W. J. Ritchie C. J. and Strong, Fournier, Henry and Gwynne JJ.
ON APPEAL FROM THE COURT OF QUEENS BENCH FOR LOWER CANADA (APPEAL SIDE).
Elevator—Negligence of employees—Liability of landlord—Damages—Art. 1054, C. (7.— Vindictive damages—Cross-appeal.
On the 13th April, 1883, C. an architect, who had his office on the third flat of a building in the City of Montreal, in which the landlord had placed an elevator for the use of the tenants, desiring to go to his office went towards the door admitting to the elevator and seeing it open entered, but the elevator not being there, he fell into the cellar and was seriously injured. In an action brought by C. against R., the landlord, claiming damages for the suffered injury and loss, it was proved at the trial that the boy, an employee of R. in charge of the elevator, at the time of the accident had left the elevator with the door open to go to his lunch leaving no substitute in charge. It was shown also that C. had suffered seriously from a fracture to his skull, had been obliged to follow for many months an expensive medical treatment and had become almost incapacitated for the exercise of his profession. C. had been in the habit of using the elevator during the absence of the boy. The trial judge awarded C. $5000 damages, and on appeal to the Court of Queen's Bench (appeal side) P. Q. that amount was reduced to $3000 on the ground that C. was not entitled to vindictive damages. On appeal to the Supreme Court of Canada;
Held, affirming the judgment of the court below, that R. was liable for the fault, negligence and carelessness of his employee (), and that the amount awarded was not unreasonable.
Held also, that the sum of $5000 awarded by the Superior Court was not an unreasonable amount and could not be said to include vindictive damages, but as no cross-appeal had been taken the judgment of the Superior Court could not be restored.
Appeal from a judgment of the Court of Queen's Bench for Lower Canada, rendered on the 30th of September,
[Page 380]
1887, by which the judgment of the Superior Court of the 30th June, 1885, for $5,000 was reformed and the damages awarded respondent reduced to the sum of $3000 with interest and costs.
This was an action of damages brought by the respondent against the appellant under the following circumstances :
The respondent, who is an architect residing in the city of Montreal, was lessee of two apartments in the building known as the Ottawa Hotel, of which building the appellant is proprietor. By the lease it was stipulated that the respondent should have the right to use the elevator in the premises.
On the 18th April, 1883, during the existence of the lease, the respondent entered the building from the street, and desiring to go to his office went towards the door of the elevator, and not seeing the appellant's employee, but seeing the door of the elevator open which indicated that the elevator was at its place to receive him, the respondent advanced to enter the elevator and fell through the opening to the cellar, where he was afterwards picked up unconscious and nearly dead. He was immediately taken to the hospital, and remained for many days between life and death. His skull was fractured and he was incapacitated from attending to his business for about a year.
To the respondent's action the appellant pleaded: That if the said plaintiff met with the accident and suffered injury and loss, as set out in the said plaintiff's declaration, it was through his gross negligence and wilful acts;
" That the said plaintiff without any right so to do was in the habit of bursting open the door leading to the elevator in question and of removing the fastenings to the same, and of making use of said elevator,
[Page 381]
notwithstanding the protestations of the said defendant and notwithstanding that defendant frequently notified the plaintiff to cease from interfering with and making use of said elevator."
At the trial in addition to the facts above stated it was proved that the elevator was in the care of an employee of the appellant, a lad aged fourteen years, and that on the 18th of April, 1883, the boy left the elevator on the level of the ground floor with the door open, and went out to take his lunch, and during his absence the accident happened.
As to damages it was proved that the respondent had suffered for many months and was obliged to undergo medical treatment for a period of over a year; had paid to one physician alone the sum of one hundred and eighty dollars, had been left an invalid and lost the sense of hearing in his right ear; had lost his clientéle and had been kept away from his business, (which had been bringing him an income of about $2000 a year) for a period of over twelve months.
The Superior Court presided over by Mr. Justice Jetté condemned the defendant to pay to the plaintiff the sum of $5000 by way of damages, but the Court of Queen's Bench sitting in appeal reduced the damages to the sum of $3000, on the ground that appellant was not liable to any vindictive damages, but only to such actual damages the respondent had suffered, and that such damages should, under the circumstances have been established at such reasonable amount as would indemnify the respondent for his loss.
Carter for appellant.
The only point which I can press upon the court is that there was contributory negligence on the part of the respondent who was an architect. The evidence shows that the respondent was in the habit of making use of the elevator without the use of the boy who was
[Page 382]
in charge. Every person ought to be on their guard when using an elevator. Wharton on Negligence (); Dalloz, Rep., Gen., Vo. Imprudence, ().
Saint Pierre for respondent was not called upon.
SIR W. J. RITCHIE C. J.—We do not think it necessaro to call upon the counsel for the respondent in this case. A grosser case of negligence could not be submitted for the opinion of the court. Considering the public and extensive use of elevators I think that we would be giving a most unjust judgment if we allowed this appeal. It is much like the case where a person opens his store and leaves a trap door open at the entrance. If a customer came in and fell into the trap could it be said he was guilty of contributory negligence The appeal should be dismissed with costs.
STRONG J.—I should be prepared in this case to restore the judgment of the Superior Court, but as the other members of the court are of a different opinion I concur in simply dismissing the appeal with costs. I am quite satisfied that this is a case in which negligence is established beyond all question. It is the duty of the proprietors of elevators to see that they have in their employ careful and competent employees, and if they omit this duty they are responsible to those who in lawfully using the elevators may suffer from their neglect. There is not the slightest evidence of contributory negligence. I am of opinion that the appeal should be dismissed with costs.
FOURNIER J.—As there has not been a cross-appeal taken I am of opinion that the judgment of the Court of Queen's Bench should be confirmed.
HENRY J.—If there had been a cross-appeal, I might
[Page 383]
have been disposed to restore the judgment of the Superior Court. I think there was negligence here for which the appellant was liable. It is very much like the case of a man leaving his horse on the street unguarded, in such a case if damage results the owner is responsible. The evidence in this case fully justifies the verdict and the appeal should be dismissed with costs.
GWYNNE J.—I entirely concur with my brother judges. I think that the amount awarded by the superior court was not unreasonable. $5000 damages can by no means in such a case as the present be said to be vindictive damages. It is a misapplication of the term»
Appeal dismissed with costs.
Solicitors for appellant: Kerr, Carter & Goldstein.
Solicitors for respondent: Saint Pierre, Globensky & Poirier.
Email this Content