Dumphy v. Martineau, (1908) 42 SCR 224

Supreme Court of Canada

Dumphy v. Martineau, (1908) 42 S.C.R. 224

Date: 1908-06-10

Dumphy v. Martineau Et Al.

1908: June 10.

Present: Girouard, Davies, Idington, Maclennan and Duff JJ.

Negligence—Builders and contractors—Carelessness of workmen— Liability of employer—Dangerous appliances—Electric wires— Volunteer—New trial.

APPEAL from the judgment of the Court of King's, Bench, appeal side[1], affirming the judgment of the Superior Court, sitting in review at Montreal, which dismissed the plaintiff's (appellant's) motion for a verdict non obstante veredicto or, alternatively, for a new trial, and dismissed her action, upon the findings of the jury at the trial.

The appellant's husband witnessed an accident which happened to an employee of the respondents, engaged in building operations on one of the public streets of the City of Montreal. A wire cable used on a derrick coming in contact with high voltage wires of the Montreal Light, Heat and Power Co., the employee received an electric shock and was being assisted by the foreman of the contractors. The appellant's husband rushed to their assistance and, in trying to extricate the employee, both were killed by electricity passing through the cable. The appellant brought a joint and several action, on behalf of herself and her children, against the contractors and the Montreal Light, Heat and Power Co.[2], for damages and charged the contractors with negligence in placing

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and operating the derrick in dangerous proximity with the live wires. The jury exonerated the appellant's husband from blame in voluntarily going to the rescue of the men who were in contact with the electric current, and found the company at fault for neglecting to protect their live wires, but found, also, that the contractors were not to blame for the accident. On these findings, in respect to the contractors, the case was referred by the trial judge to the Court of Review which dismissed the action against the contractors with costs. This decision was affirmed by the judgment now appealed from, Trenholme J. dissenting.

After hearing counsel on behalf of the parties, the Supreme Court of Canada allowed the appeal with costs in the Supreme Court of Canada and in the Court of King's Bench and ordered a new trial, the costs of the first trial in the Superior Court, District of Montreal, to abide the result.

Appeal allowed with costs.

Lafleur K.C. and J. M. Ferguson K.C. for the appellant.

Lamothe K.C. and R. A. E. Greenshields K.C. for the respondents.