Supreme Court of Canada
The City of Saint John v. Campbell (1896) 26 SCR 1
Date: 1896-02-18
DETERMINED BY THE SUPREME COURT OF CANADA ON APPEAL FROM DOMINION AND PROVINCIAL COURTS AND FROM THE SUPREME COURT OF THE NORTH-WEST TERRITORIES.
The City of Saint John (Defendent)
Appellant
And
Jane Campbell (Plaintiff)
Respondent
1895: Oct. 31; 1896: Feb. 18.
Present:—Sir Henry Strong C. J., and Taschereau, Gwynne, King and Girouard JJ.
CASES
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
Municipal corporation—Repair of streets—Liability for non-feasance.
In the absence of a statute imposing liability for negligence or nonfeasance a municipal corporation is not liable in damages for injury caused to a citizen by reason of a sidewalk having been raised to a higher level than a private way, or having been allowed to get out of repair. Municipality of Pictou v. Geldert ([1893] A. C. 524; and The Town of Sydney v. Bourke ([1895] A. C. 433) followed.
Appeal from a decision of the Supreme Court of New Brunswick, setting aside a nonsuit granted at the trial and ordering a new trial.
The plaintiff, Jane Campbell, brought the action in this case for compensation for injuries incurred by
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falling on one of the public streets of the city of St. John, N.B., her fall being caused, as she alleged, by the defective state of the street, either from the asphalted sidewalk having been constructed at a higher level than that of the private way adjoining, or from the said sidewalk having been negligently allowed to be out of repair.
The evidence established that years ago King Street in Carleton was asphalted, and that at what is known as the “Tema House,” the line of the street was extended over private property some eighteen inches or two feet, making the street at that point to that extent wider than it should have been; that at the place where the accident happened—the “Tema House”—the street when asphalted was made some ten. inches higher than the ground adjoining, and was given a gradual slope extending towards and over private property, in the direction of the “Tema House” entrance. The street with this extra width and asphalted slope was used by the public and the people going to and returning from the “Tema House” for many years.
The ordinary wear and tear, or the rain falling from the roof of the “Tema House” caused a break in the asphalt at this point some six or nine inches deep. This break had existed for some two years or more, and had gradually deepened and extended towards the line of the street. The plaintiff on the 24th of August, at about half-past nine in the evening, coming from the “Tema House” to the street over this private property, struck her foot against this break and fell on to the public street, causing the injury complained of.
At the trial before Mr. Justice Landry the plaintiff was nonsuited, the learned judge being of opinion that the city was not liable for not repairing the street, nor for injuries caused by the elevation of the sidewalk.
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On motion before the full court the nonsuit was set aside and a new trial granted. The city then appealed to this court.
Pugsley Q.C. and Baxter for the appellants. There is no statutory obligation on the city to keep the streets in repair and they are not liable because of negligence or non-feasance. Municipality of Pictow v. Geldert; Municipal Council of Sydney v. Bourke.
Raising the level of the sidewalk was not misfeasance. Mayor of St. John v. Pattison.
Currey Q.C. for the respondent. The neglect to repair in this case was misfeasance. Borough of Bathurst v. Macpherson; Municipal Council of Sydney v. Bourke (2).
The judgment of the court was delivered by:
THE CHIEF JUSTICE.—All the learned judges before whom this cause came in the Supreme Court of New Brunswick agreed that there was no proof of misfeasance on the part of the appellant. The case therefore altogether depends on the liability of the appellant for the non-repair of the street. The accident, according to the evidence, was caused either by the difference of level between King Street and an adjoining private way, or it was caused by a subsidence of the footway which had been allowed to get out of repair. The sidewalk of King Street had been asphalted by the corporation and so raised to a higher level than the private way. If the accident was caused by this difference of level there would be clearly no misfeasance. If, on the other hand, it was occasioned by the asphalt having been allowed to get out of repair, that would be mere negligence or non-feasance for which, according to the
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decisions of the Privy Council, no action will lie by a person injured in consequence of such neglect. The decision in Bathurst v. Macpherson, as explained by Lord Hobhouse in giving judgment in Pictou v. Geldert, proceeded altogether upon acts of misfeasance for which the corporation was undoubtedly liable. The defendants there had dug holes in the highway which, if left open, constituted public nuisances. They covered these holes but not sufficiently, and the filling having given way the holes were left open, by which the accident was occasioned. Nothing of this kind can be said of the acts of the appellant here in respect of the asphalted footway. Granting that the corporation had laid down this asphalt way and was bound as a public duty to repair it, the accident, if it did occur on the public way, was, at most, occasioned by the mere neglect of the corporation to keep it in repair. Then, assuming that the city was bound as a duty towards the public to repair, a point on which I express no opinion as none is called for in the present case, the respondent clearly has no right of action. The cases of Pictou v. Geldert (2), and Sydney v. Bourke, are in this aspect of the case conclusive authorities against the respondent’s right to recover, and the nonsuit directed by Mr. Justice Landry was entirely right.
The appeal must therefore be allowed with costs.
Appeal allowed with costs.
Solicitor for the appellants: I. Allen Jack.
Solicitor for the respondent: H. A. McKeown.
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