Supreme Court of Canada
Montreal Light, Heat & Power Co. v. Regan, (1908) 40 S.C.R. 580
Date: 1908-10-06
The Montreal Light, Heat and Power Co. (Defendants) Appellants
and
Mary Regan, es nom et es qualité (Plaintiff) Respondent.
1908: June 11, 12; 1908: October 6.
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Negligence—Dangerous works-—Protection of employees—Evidence— Questions for jury—Judge's charge—Findings of fact—Inferences.
An experienced employee of the defendants. was killed by an explosion of illuminating gas while discharging his duties in the meter-room at the defendants' gas works. It was shewn that there might possibly have been an escape of gas from the controllers or other fixtures in the room or in the blow-room adjoining it; that, there had been no special precautions by the defendants to detect any such escape of gas that might occasionally happen; and that the meter-room, had always been and, at the time of the accident, was lighted by means of open gas jets. There was no exact proof of any particular fault, attributable to the defendants, which could1 have been the whole cause of the explosion, and its origin and course were not explained. In an action for damages by the widow and representatives of deceased, the jury found that the explosion had resulted from the fault and imprudence of the defendants in lighting the meter-room by open gas jets, and contributory negligence on the part of deceased' was negatived.
Held, affirming the judgment appealed from (Q.R.16 K.B.246), Davies and Maclennan JJ., dissenting, that, m the circumstances, the jury were justified in finding that there had been such negligence and imprudence on the part of the defendants, in such use of open gas jets, as. would render them responsible for the injury complained of.
APPEAL from the judgment of the Court of King's Bench, appeal side, affirming the judgment rendered
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in the Superior Court, sitting in review, at Montreal, which ordered that judgment for the plaintiff should be entered upon the findings of the jury at the trial, in the Superior Court for the District of Montreal.
The circumstances of the case and the questions at issue on this appeal are stated in the judgments now reported.
R. C. Smith K.C. and G H. Montgomery for the appellants.
Oughtred K.C. and W. H. Butler for the respondent.
Girouard J.—I am of opinion that this appeal should be dismissed with costs, for the reasons stated by Mr. Justice Duff.
Davies J. (dissenting).—The conclusion which I have reached with respect to this appeal is that it should be allowed and the action dismissed.
The findings of the jury on all of the questions asked them are not apparently consistent, but I do not think that reading them together there can be any reasonable doubt as to their meaning.
The form in which the 8th question was put to them is doubtless responsible for the answer given. Indeed it is difficult to see how any other answer than the one given could have been given unless indeed the answer was divided so as to cover separately each of the periods they were asked to cover. The question read:—
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8. Was the plant and machinery in use in the said building in perfect running order at the time the explosion occurred and immediately afterwards?
The answer is "No,"
If the gas fittings and pipes were understood by the jury as being part of the plant and machinery in use, of course as they were all wrecked and destroyed by the explosion they could not be said to be in perfect running order immediately after it occurred. The jury may or may not have understood these gas fittings and pipes to have been part of the plant and machinery. Nor does it appear to me that standing alone even if it had been limited to the time when the explosion occurred a categorical answer, yes, or no, would have been of much service. Something other and further than such an answer would be necessary to found any reasonable inference of fault or negligence on the company's part for which they could be held liable in this action.
If the gas pipes for the lighting of the power house were not considered by the jury as part of the plant or machinery then the answer seems to me to be one impossible under the evidence to uphold.
It is argued that, reading the judge's charge with the answer given, the meaning of the jury was that they intended to find there was a leak in the plant but the uncontroverted evidence of the perfect condition of the plant immediately after the explosion is inconsistent with any such meaning being read into the jury's finding. Probably their meaning was that which they subsequently stated in answer to the 12th question that the plant was not in perfect running order with the use of the gas jets to light the room. In their answer to this latter question they find that the explosion was caused by the fault, negligence,
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want of care and imprudence of the defendants "by lighting the meter and blow-rooms by ordinary gas jets" and negative any such fault or negligence either in the ventilation of the room or in the sufficiency of the plant or machinery. As I construe their answers to the 12th question they negative any fault or negligence other than that expressly found of "lighting the meter and blow-rooms by ordinary gas jets."
They also expressly negative contributory negligence on the part of the deceased.
With these findings of the jury the question is: Was there any evidence from which the jury could as reasonable men conclude that the method adopted and maintained for nearly half a century of lighting the room by gas was in itself fault and negligence on the defendants' part?
The evidence of the experts was that this method of lighting the meter-room was, with the exception of one establishment in or near Boston, the method and practice adopted everywhere in Europe as well as America. There was no reason whatever as I gather from the evidence why a leak or escape of gas should occur in the meter-room any more than in any other room in the establishment, and the jury were unanimous in the finding that the explosion was not caused by "insufficient plant or machinery" which I construe as meaning was not caused by any defective plant or machinery.
The cause of the presence of gas in explosive quantities in the room is left by the evidence and the findings of the jury a mystery unsolved.
The alleged faults and negligence of the defendants in the matter of ventilation and plant and machinery
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being negatived and eliminated we are left alone with the finding of negligence in the fact of the lighting of the room with gas jets.
Is this alone negligence? It does not appear to me to be so in the absence of any evidence shewing special damage to be reasonably apprehended in this meter-room beyond that of other rooms, and in the presence of the evidence that the practice of so lighting the room was one almost universally adopted by gas factories throughout the world without so far as the evidence shews any explosions such as the one we are considering having occurred.
Some observations of the Judicial Committee in the case of McArthur v. Dominion Cartridge Company, at page 76, have been relied on. But any such observations must, of course, be read in the light of the facts of the case then before their Lordships and as found by them.
Their Lordships in that case say, with reference to the mechanism of the cartridge machine the working of which was being considered:—
But these automatic fingers occasionally at any rate acted in an uncertain not to say aii erratic manner. Up to the time of the explosion though no doubt less frequently at the last than at the first cartridges were now and then presented in a wrong posture and the blow or punch fell sometimes on the side of the cartridge and sometimes on the metal end in which the primer or percussion cap had been inserted. The evidence was that a considerable number of these failures occurred from time to time and that the injured cartridges were collected and sent away to be scrapped or broken. It seems to be not an unreasonable inference from the facts proved that in one of these blows that failed a percussion cap was ignited and so caused the explosion. There was no other reasonable explanation of the mishap when once it was established to the satisfaction of the jury. that the injury was not owing to any negligence or carelessness on the part of the operator. The
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wonder really is not that the explosion happened as and when it did but that things went on so long without an explosion.
Now the ground of that decision seems to me to be the proof of existing defects in the working of the machinery which experience had brought to the notice of the company and which from time to time caused failures in the loading of the cartridges from which danger ought reasonably to have been anticipated and (other possible causes having been eliminated) from which it was not an unreasonable inference actually did cause the explosion there in question.
But where in the case before us are the analogous facts from which it might reasonably be inferred the explosion here in question occurred.
I am unable to find any. The evidence as to the lighting of the room with gas jets being negligence in itself or likely to cause an explosion is all the other way. It is true, no explanation of the presence of explosive gas in the room is or can be given, and that the deceased operator is absolved from any negligence. There is, in fact, no explanation of the said mishap at all. It remains an unexplained mystery. But the facts and findings from which a "not unreasonable inference" should be drawn that the mishap was occasioned by fault or negligence on defendants' part are wanting. In the face of the jury's finding of the condition of the plant and the machinery, and of the evidence as to its being put into successful operation again immediately after the explosion without any defect being shewn and also of the evidence of universal experience with the method of lighting condemned by the jury, I would say any such inference attributing the mishap to defendants' negligence would be unreasonable.
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The burden of proof which lay upon the plaintiff has not been discharged and under the circumstances and on the findings actionable negligence cannot be imputed to them.
Idington J.—I think for the reasons that appear in the judgments of Chief Justice Tait, in the Superior Court, in review, and of Mr. Justice Carroll in the Court of King's Bench, in appeal, that this appeal should be dismissed with costs.
I may add that I have felt much pressed by the form of .the questions framed before trial for the submission of the case to the jury. There has been a consequent difficulty in considering the answers made by the jury.
Taking, for example, that to part of the 12th question, it appears at first sight as if the use of gas to light a room was an act of negligence in the opinion of the jury.
Taking the answer to the 8th question it might be doubtful whether it was before or after the explosion that it was found that the plant and machinery were not in good running order.
I think the charge of the learned trial judge in dealing with this 8th question, whereby he directed the attention of the jury to finding in their answer to the question whether or not there "was a leak, that necessitated the explosion" must be kept in view in considering the question and the answer made.
The same need arises for considering the charge in relation to the 12th question, and of trying to understand the answer in light of the charge.
The jury are not to blame. It is the frame of the question they had to deal with. the appellant was
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not entirely blameless in allowing such questions to be submitted to the jury without making some better effort than appears to have been made to rectify the matter.
The evidence, the charge, and the answers, when read together, leave little doubt however as to the: meaning of the findings.
The deceased was exonerated entirely from blame and so clearly was he entitled to be so exonerated that the appellant assented to it being done.
In face of that we were troubled with suggestions of how he might have brought about the explosion. Diverting attention to that question, which ought to be considered as absolutely settled, only helps to confuse matters already confused enough.
There can be no doubt that the jury found that there was a leak through somebody's fault or some defect of the apparatus used whereby the gas escaped into a room where there was fire to light it.
The evidence furnished such a case for plaintiff as could not in law be withdrawn from the jury, when deceased was exonerated.
That is all we have to do with, unless by reason of misdirection the trial should be set aside. As a whole I do not think the charge did in fact prejudice any one.
It was urged upon us that legal negligence is a mixed question of law and fact and that the jury ought not to be allowed to pass upon it, but merely find the facts upon which the court should pass.
This sort of objection has been, in a former case, ineffectually brought before this court. There should be no difficulty in the matter. The trial judge is supposed to direct the jury as to the law bearing on the
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facts, and the jury is bound to follow the instruction they get in this way. If the learned judge fail to direct aright, on the law, then the party affected, objecting, can have the verdict set aside. And on the other hand, if the jury fail to follow the law thus properly and correctly given them, their verdict will be set aside.
The common case of larceny usually presents no difficult question of law, but yet it may. There can only, as a rule, be one issue of guilty or not guilty presented to the jury. Yet no one ever was heard to raise any doubt as to the propriety of submitting such questions of mixed law and fact to a jury.
There is just about as little difficulty in making a jury understand the law of negligence (which is but the outcome or growth of law derived in the last analysis from the common sense of the common people) as in the law regarding larceny.
Maclennan J. (dissenting).—I agree in the opinion given by Mr. Justice Davies.
Duff J.—The respondent's husband, John Douglas, was killed in an explosion in the gas works of the appellants in Montreal. The explosion occurred in a compartment of the works comprising two rooms connected by a door, known as the meter-room and the blow-room, respectively; and was admittedly the result of gas which had escaped from the appellants' pipes coming in contact with the open flame of the gas jets by which these rooms were lighted.
The jury found that the disaster was attributable to the negligence of the appellants in lighting the rooms by means of a flame exposed to the atmosphere,
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and the judgment for the plaintiff in the Court of Review, based upon this finding, was affirmed by the Court of Appeal.
The appellants assail this judgment in two ways: —First, there is, they contend, no evidence to support the finding that the practice of lighting the rooms by the means employed was a negligent practice; and,—Secondly; assuming the appellants to have been at fault therein, the evidence does not, it is argued, afford any basis for a conclusion that it was that fault which led to the catastrophe.
Either of these contentions would, of course, if accepted, be sufficient to maintain the appeal; but, in my opinion, they ought both to be rejected. The questions raised by them being perfectly distinct I will discuss them separately.
By the law of the Province of Quebec an employer is bound to take reasonable care that his employees shall not in the prosecution of their duties, by reason of any defect or insufficiency in his plant or appliances, be exposed to any risk of injury which, having regard to the character of the work, is an unnecessary risk; and it is but a corollary to this rule that where the work in which the employee is engaged is of such a character that a reasonably prudent and competent employer would anticipate that, in the prosecution of it, his safety may be endangered it is the duty of the employer to take all reasonable measures to protect him from that danger.
I do not stop to consider whether the law of Quebec imposes upon the employer any higher obligation; it is enough, I think, for the purposes of this appeal, that unquestionably the obligation, as I have stated it, does rest upon him; and it will (in the view I take
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of the case) be a sufficient test of the first of the above contentions to ascertain whether a finding that the appellants have failed in the discharge of this obligation is a finding which, upon the evidence, can be sustained.
I shall state very briefly why I think the evidence is sufficient; but before doing so I wish to touch upon a question which gave rise to some controversy in the court below, and upon which there was not a little discussion before this court.
Counsel for the appellants pressed upon us the view that the question of fault or no fault, in so far as it involves a judgment upon the conduct of the appellant, is a question of law in the sense that it is a question for the court and not for the jury; and, in view of the urgency with which their contention was advanced, it may be worth while stating why in my opinion that is a proposition which cannot be maintained.
More than once the Judicial Committee of the. Privy Council has said that the question of negligence under the law of Quebec is a question of fact for the jury: e.g. in Lambkin v. South Eastern Railway Company, by Sir Robert Collier, at page 354; and in Tobin v, Murison, by Lord Brougham, at page 126; but I do not in the least disagree with the view of the learned judge who delivered the judgment of the majority of the Court of Appeal that the question of negligence or no negligence is a mixed question of law and fact when that phrase is understood in the sense in which it was used by him. It is for the court to state to the jury the rule of law which prescribes the standard of care by which the defendants'
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conduct is in such an action to be tested; it is for the jury in any given case to say whether he has or has not come up to that standard. It was, in this case, the duty of the jury to accept from the court and to act upon the instructions given by the court concerning the character of the duty which an employer owes to his employees as touching the safety and sufficiency of his plant and appliances; it was on the other hand a question exclusively for the jury whether, in lighting the rooms in question by the means employed, the appellants made default in the performance of that duty.
As regards this last question (assuming the evidence to be such that as to the effect of it more than one reasonable view be possible) the jury are the constitutional tribunal appointed to determine it and upon it their judgment is decisive. If, on the other hand, the evidence be in such a state that one reasonable view only is admissible, and the verdict of the jury is incompatible with that view, the verdict, of course, may be set aside; but it is well perhaps once again to repeat that the question for the Court of Appeal upon an application for such a purpose is not whether the view of the jury is right or wrong, but whether it is a view that jurymen, regarding the question as persons appointed to decide a question of fact —to try a question of conduct in the light of every day experience—may reasonably and fairly take.
The respondent's case was that owing to one cause or another there was a foreseeable danger of an escape of gas from the appellants' pipes into the rooms in question; and that although gas of that character, when escaping in the open is quite harmless, it may, when introduced in considerable quantities into a
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confined space filled with atmospheric air, become a dangerous agent; and that, consequently, upon the principle stated above, it was the duty of the appellants to take reasonable care to protect their employees against injury from it. Especially, they say, it was, in the circumstances, their duty to protect their employees from the danger which might arise from the accumulation of gas in such quantities as with the atmosphere of the room would form an explosive compound.
It is not disputed that the chances of an explosion ensuing upon such an accumulation of gas might have been almost if not wholly eliminated by lighting the rooms with properly protected incandescent electric lights instead of gas jets necessarily exposed to the atmosphere; or that, if the appellants ought to have anticipated the danger of such an accumulation of gas, it was their duty, in the circumstances, to protect their employees from the consequential risk of an explosion by adopting the safer method of lighting their premises.
The point, therefore, upon which the controversy before the jury turned was whether or not the risk of an escape of gas in such volume as, in this manner, to endanger the safety of the appellants' employees, was a risk which the appellants as reasonably prudent employers ought to have foreseen; and the question for us is whether or not the evidence reasonably supports a finding upon that point in the affirmative. The meter-room contained two large meters for measuring the gas supplied to the consumers in the city; two large appliances known as controllers for regulating the pressure of the gas in the company's mains; and one small controller for regulating the
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pressure in the pipes supplying the works themselves. Through all these appliances gas, of course, necessarily passed. Appreciable risk of its escaping from the meters themselves does not appear to have been suggested; but the respondent gives evidence to shew that there was considerable risk of escape from the controllers.
In the blower-room it was said that there was some danger of escape from the pipes connected with the blower, a large fan devised for the purpose of increasing the pressure of the gas in the mains; and some support for this contention was afforded by the fact that since the mishap giving rise to these proceedings an accident to a valve attached to one of these pipes led to an escape of gas in such volume that an employee entering the room was overpowered by it and rendered unconscious.
The escape of gas from the controllers in the meter-room was in the ordinary course prevented by the presence in each of them of what is technically known as a water-seal. So long as these seals remained intact an escape of gas was admittedly impossible; and the appellants offered expert evidence to the fact that the protection thus afforded could only be impaired by the evaporation of the water. There was moreover a good deal of evidence to the effect that gas is generally employed as a means of lighting the meter-rooms of gas works. On the other hand the appellants' witnesses did not speak with any clearness when pressed with the question whether pressure controllers are generally placed in meter-rooms when these rooms are lighted with gas; nor did the appellants offer any evidence to shew the character of their own experience with the controllers in
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question as regards the possibility of an escape of gas from them.
The respondents, moreover, at the trial advanced the contention, which they supported with positive evidence, that long before the mishap in question experience had shewn that the pressure of gas in the mains and pipes might be so great as to break the water-seals in the controllers; and that in the case of the smaller controllers this was a contingency so likely to happen that it ought to have been anticipated and provided against. In support of this contention they called as a witness one Power, who for seventeen years had been the superintendent in charge of the appellants' station at Ottawa Street, in Montreal. The effect of his uncontradicted testimony was that at that station it was not an uncommon thing for the water in the larger controllers to overflow as a result of the pressure of the gas, and that the smaller controller sometimes became from the same cause wholly unsealed. A more significant fact disclosed by this witness (and on this point also there was no contradiction) was that at its Ottawa Street station the gas company had an employee whose special duty it was to remain in the meter-room for the purpose of taking steps to prevent any evil consequences from an accidental escape of gas. These statements, let me repeat, were uncontradicted; and it was not suggested in cross-examination or otherwise that the controllers which had been under the superintendence of Power differed in any way from those in use where the explosion occurred.
In this state of the evidence, and especially in view of the absence of any evidence shewing the actual experience of the appellants as touching the possibility
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of the escape of gas at the station where the accident in question took place, 1 am unable to say that the jury had not before them material from which they might reasonably conclude that the presence of gas in that part of the works in sufficient quantities to create a risk of explosion was a danger which the appellants ought to have anticipated; and that they had failed to take reasonable precautions for the protection of their employees against that danger.
The second contention remains. That contention, if I am right in the views I have expressed, admits of a short answer. If the fault of the appellants consists in that which I have just indicated, namely, that they failed to make reasonable provision for the protection of their employees from a danger which they should have anticipated, and that danger was the presence of gas in such quantities as to create the risk of explosion, then the jury were unquestionably entitled to find that the disaster in which the deceased John Douglas lost his life was attributable to that fault as one of its effective causes. We have not here the case of an accident due to some injury to the plant or appliances of an employer through the operation of force majeure or through the wilful intervention of a third person for whom the employer is not responsible or of the injured person himself; in such cases it might be necessary to consider whether chain of liability ought to be held to be interrupted by the novus actus interveniens; but it is here unnecessary to express any opinion upon any such hypothetical case.
By consent, the verdict of the jury negatived any fault on the part of Douglas; and there is no hint in
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the evidence of the presence of either of the other causes mentioned.
Appeal dismissed with costs.
Solicitors for the appellants: Brown, Montgomery & McMichael.
Solicitors for the respondent: Filion & Butler.
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