Davidson v. Stuart, (1903) 34 SCR 215

Supreme Court of Canada

Davidson v. Stuart, (1903) 34 SCR 215

Date: 1903-11-03

James Burrows Davidson and Others (Plaintiffs)

Appellants

And

James Stuart and Others (Defendant.)

Respondent.

1903: Nov 3; 1903: Nov 30.

Present:—Sir Elzéar Taschereau G.J. and Sedgewick, Girouard, Davies arid Nesbitt JJ.

ON APPEAL FROM THE COURT OF KING’S BENCH FOR MANITOBA.

Negligenee:—Electric plant — Defective appliances—Master and servant — Electric shock — Engagement of skilled manager — Contributory negligence.

An electrician engaged with defendants as manager of their electric lighting plant and undertook to put it in proper working order, the defendants (placing him in a position to obtain all necessary materials for that purpose. About three months after he had been placed in charge of the works he was killed by coming in contact with an incandescent lamp socket in the power house which had been there during the whole of the time he was in charge* but, at the time of the accident, was apparently insufficiently insulated.

Held, that there was no breach of duty on the part of the defendants towards deceased who had undertaken to remedy the very defects that had caused his death and the failure to discover them must be attributed to him.

The judgment appealed from (14 Man. L. R. 74) ordering a new trial was affirmed but for reasons different from those stated in the court below.

APPEAL from the judgment of the Court of King’s Bench for Manitoba, en banc ([1]), reversing the judgment entered by Mr. Justice Richards upon the finding of the jury at the trial, and setting aside the verdict in favour of the plaintiff and ordering a new trial.

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The action was by the father, mother and three sisters of the late W. B. Davidson, deceased, for damages in consequence of his death which, it was alleged, had been caused through defendants’ negligence. The circumstances of the case are as follows:—

A few months prior to the time of the occurrence which resulted in the death of W. B. Davidson, the defendants had purchased the electric lighting plant at the Town of Selkirk, in Manitoba, which at the time was not in good working condition. They were unacquainted with electrical matters and engaged the deceased, a skilled electrician, to manage the plant and put it in proper working order and, to enable him to do so, they arranged to have everything that he might require for that purpose furnished upon his orders by an electrical supply company at Winnipeg. Deceased inspected the plant both before and after his engagement, put the electrical works in operation and, from time to time, ordered such electrical supplies as he considered necessary for repairs, alterations and new installations and acted as manager from the month of June, 1900, until his death, on 11th September following. On the latter date, there being some trouble with an air pump at the works, he went into the pump pit to examine it before it was attended to by the engineman in charge of the power house, and while going down, grasped the brass socket of an incandescent electric lamp in his hand and received a shock which killed him.

The electric lamp was hanging from a wooden grating over the pump pit and, although it was not of the kind most approved for use in pits and damp places, he had allowed it to remain there when making the alterations he thought necessary on assuming the management of the works. There was an ordinary lantern provided for the use of any person having to

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examine the machinery in the pump pit, but deceased did not make use of it and the inference appeared to be that he had taken the electric lamp in his hand to make an examination of the machinery instead of using the lantern. A short time after the accident the power house lights went out gradually and it was afterwards discovered that the electrical transformer had burned out.

The action was taken under the Manitoba statute respecting compensation to families of persons killed by accidents ([2]), as amended by 61 Vict. c. 11 (Man.) and charged the defendants with negligence in failing to remedy defects in the electrical plant and machinery some of which might have caused the accident.

The jury found a general verdict in favour of the plaintiffs for $1,500 damages, upon which judgment was entered by the trial judge. On appeal, the full court directed that the verdict should be set aside and ordered a new trial ([3]), on the ground that there was no evidence that the plaintiffs had suffered any damages that would entitle them to recover judgment under the statute. The plaintiffs now appeal.

Davidson K.C. for the appellants. The deceased while engaged in the performance of his ordinary duty of running an electric plant was instantly killed through the negligence of the defendants by reason of defects in the condition of the ways, works, machinery, plant, buildings and premises used in the business; the particular defects alleged being: (1.) Transformer in power house defective; (2.) Absence of a primary ground detector; (3.) Insufficient lightning arresters; (4.) Defective pump in pump house; (5.) Wet floor in pump house; (6.) Main switch-boom not provided with necessary safeguards and instruments

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to run the same; all of which arose and were not remedied owing to the negligence of the defendants.

There was evidence from which inferences of a reasonable expectation of pecuniary benefit could be drawn and, upon this, there was justification for the general verdict. Duckworth v. Johnson ([4]). Anticipated benefit may be the subject matter of damages; Franklin v. South Eastern Railway Co. ([5]); Ricketts v. Village of Markdale ([6]); Grand Trunk Railway Co, v. Weegar ([7]); Connecticut Mutual Life Ins. Co. v. Moore ([8]); Hetherington v. North Eastern Railway Co. ([9]); Jones v. Hough ([10]); Metropolitan Railway Co. v. Wright ([11]); Canada Atlantic Railway Co. v. Moxley ([12]). The rule adopted by the court below as to evidence of “reasonable expectation ” is too narrow and vigorous; it is in contradiction of the leading decisions; see cases already cited, and St. Lawrence and Ottawa Railway Co. v. Lett ([13]); Blake v. Midland Railway Co. ([14]); Руm v. Great Northern Railway Co. ([15]); Grand Trunk Railway Co. v. Jennings ([16]); Condon v. Great Southern Railway Co. ([17]), per Pigott C.B. and an American case particularly in point, Kane v. Mitchell ([18]).

As to the remaining reasons assigned by defendants affecting contributory negligence, character of deceased, whether he was a workman or contractor, care or negligence of defendants, etc., they have been submitted to and passed upon the jury upon evidence which should support their finding, and this court will not reverse on questions of fact unless convinced

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beyond all reasonable doubt that the judgment appealed from is clearly erroneous. Arpin v. The Queen (1); Sewell v. British Columbia Towing Co. (2); Royal Electric Co. v. Hévé (3). The defendants’ evidence is wholly insufficient to establish absence of negligence on their part or remove liability from them. Keasby on Electric Wires, pages 259, 269. It is for those who control the wires to shew that the accident occurred from some cause beyond their control and not by reason of any want of care in the construction or maintenance of their dangerous appliances. Ennis v. Gray (4); Citizens Light & Power Co. v. Lepilre (5).

Coutlée K.C. and Phippen for the respondents. Although the Manitoba statute differs to a certain extent from Lord Campbell’s Act, yet the principle upon which actions of this nature are given is the same and, to entitle the plaintiffs to succeed, they must shew a reasonable expectation of pecuniary benefit from the continuance of life of the deceased. There is no such proof in this case. Blake v. Midland Railway Co. (6); Chapman v. Rothwell (7); Franklin v. South Eastern Railway (8), at pp. 211, 213; Dalton v. South Eastern Railway Co. (9); St. Lawrence and Ottawa Railway Co. v. Lett (10); Grand Trunk Railway Co. v. Jennings (11); Mason v. Bertram (12); Rombough v. Balch and Peppard (13); Blackley v. Toronto Railway Co. (14); Ricketts v. Village of Markdale (15). For the reasons given for the judgments appealed from, and in the cases cited, the appellants have not established that reasonable expectation of pecuniary benefit from the continuance

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of the life of the deceased necessary to entitle them to succeed. They have been unable to shew more than that the deceased was a dutiful son. There is no evidence of any actual assistance to the plaintiffs by him at any time.

If the action is based on common law rights, apart from The Employers Liability Act, then it must appear that the master knew of the defect, and that the deceased was ignorant of it, and the pleadings must so allege. Griffiths v. London and St. Katharine Docks Co. ([19]); Black v. Ontario Wheel Co. ([20]). Here these conditions have not been met. If the claim be under The Employers Liability Act (56 Vict. c. 39, Man.) it must be shewn that the employer knew of the defect, or was negligent in not discovering it. Nothing of the kind is pretended here.

It was the duty of the deceased, who had been employed for that specific purpose, to discover any defects in the works to put them right. He was the expert in charge of the plant There was no one higher in authority on whom any duty devolved. The owners had not only instructed the deceased to remedy defects should he find any, but they had also supplied him with ample means of doing so, and there is no evidence of knowledge by any of the defendants of any defects or of want of care on their part in discovering any defect. The deceased knew the state of the works and voluntarily accepted the risks and defendants are not liable. Thomas v. Quartermaine ([21]); Yarmouth v. France ([22]); Smith v. Baker ([23]).

The evidence does not show that death resulted from any defect in the appliances, and if any such defect caused the death it must have arisen eo instanti.

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Critical investigation by electrical experts failed to disclose any defect discoverable before the accident. There is no evidence inconsistent with deceased having been killed entirely independent of and without any defect in the works. None of the witnesses would attribute the death to any particular defect.

The deceased lost his life through his own negligence which was the proximate cause of his death. The pump pit was necessarily wet. Damp places are specially dangerous when dealing with light currents. It was unnecessary to touch the lamp. It was always kept burning. It was necessarily in a dangerous place. Others thought it dangerous to handle. A lantern had been provided for use in the pump pit. With high pressure currents a break may take place at any moment. The better connection you make with the ground the greater the strain on the system and the more liable to break. A careful electrician should always assume a possibility of breakage in insulation and yet deceased with knowledge of these facts unnecessarily handled the lamp in a dangerous place, thus throwing extra weight on the insulation, and death resulted. Davey v. London and South Western Railway Co. (1); Martin v. Connah’s Quay Atkali Co. (2); Ruegg 171; Brunell v. Canadian Pacific Railway Co. (3).

All the experts examined agree that there was no defect visible or apparent which could have caused the accident and there can be no liability for latent defects. Ruegg, 37, 38; Stokes v. Eastern Counties Railway Co. (4); Readhead v. Midland Railway Co. (5) Richardson v. Great Eastern Railway Co. (6).

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The defendants were within their rights, operating an enterprise for public utility and had engaged a competent manager and discharged every duty incumbent upon them not only towards him but towards the public. Deceased was warned that the works were out of order, he visited and inspected the premises, engaged as manager and undertook to put them in proper order. After three months experience he acted most imprudently and his misfortune resulted from his own fault.

We refer generally to Canadian Pacific Railway Co. v. Roy ([24]); Messenger v. Bridgetown ([25]); Fawcett v. Canadian Pacific Railway Co. ([26]); Dominion Cartridge Co. v. Cairns ([27]); Headford v. McClary Mfg. Co. ([28]); Roberts v. Hawkins ([29]); Demers v. Montreal Steam Laundry Co. ([30]); Tooke v. Bergeron ([31]).

The American cases cited by appellant are not in point as Lord Campbell’s Act has not been enacted in the State of New York.

The judgment of the court was delivered by:

NESBITT J.—The plaintiffs are the father, mother and three sisters of one W. B. Davidson, deceased, and the defendants are the proprietors of the electric light plant at the Town of Selkirk. The deceased took charge of the plant under arrangements to run same and with instructions to see what was required and put the plant in proper running order.

The evidence is clear that any requests for supplies were complied with, but unfortunately on the 11th September, 1900, the engineer in charge informed the deceased that something was wrong with the air pump at the works and the deceased went into the pump

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pit and apparently took hold of the nozzle of a small electric lamp suspended in the pit and, while grasping the nozzle, received an electric shock which killed him.

Several theories as to the cause of the overcharge of electricity were advanced and the jury found a general verdict for the plaintiffs fixing the damages at $1,500. The trial judge entered judgment for this amount and the full court held that the judgment could not stand on the ground that no sufficient evidence of damage under the Act in Manitoba, similar to Lord Campbelľs Act, had been offered. In my opinion it is not necessary to deal with this question.

I think the case may be disposed of on the short ground that no evidence was adduced of any breach of duty owing by the defendants to the deceased. The charge and control of the plant was with the deceased, and any of the defects complained of were the very matters which the deceased undertook to remedy if discovered, and the failure to discover such defects must be attributed to him. There was no evidence of negligence in the defendants, having in mind the duties of the deceased.

I think the appeal should be dismissed.

Appeal dismissed with costs.

Solicitors for the appellants: Robinson & Hull

Solicitors for the respondents: Tupper, Pippen & Tupper.