George Mathews Co. v. Bouchard, (1898) 28 SCR 580

Supreme Court of Canada

George Matthews Company v. Bouchard, (1898) 28 SCR 580

Date: 1898-06-14

THE GEORGE MATTHEWS COMPANY (DEFENDANT)

Appellant;

And

ABEL BOUCHARD (PLAINTIFF)

Respondent.

1898: May 16; 1898: June 14

PRESENT :—Sir Henry Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE.)

Negligence—Master and Servant—Employer's liability—Concurrent findings of fact—Contributory negligence.

In an action by an employee to recover damages for injuries sustained there was some evidence of neglect on the part of the employers which, in the opinion of both courts below, might have been the cause of the accident through which the injuries were sustained, and both courts found that the accident was due to the fault of the defendants either in neglecting to cover a dangerous part, of a revolving shaft temporarily with boards or to disconnect the shaft or stop the whole machinery while the plaintiff was required to work over or near the shaft.

Held, Taschereau J. dissenting, that although the evidence on which the courts below based their findings of fact might appear weak, and there might be room for the inference that the primary cause of the injuries might have been the plaintiff's own imprudence, the Supreme Court of Canada would not on appeal, reverse such concurrent findings of fact.

Appeal from the judgment of the Court of Queen's Bench for Lower Canada (appeal side) affirming the judgment of the Super Court, District of Ottawa, which maintained the plaintiff's action with costs.

In order to make certain repairs that had become necessary in their factory, the company had erected a temporary scaffolding on which there was a platform fourteen feet square at the height of about eleven feet from the floor, the edge of the platform at one end being close to the main shaft which, at this point, was

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fitted with a collar to keep it from slipping. The collar was fixed to the shaft with a set-screw the head of which protruded, and the condition of the whole arrangements thus made for the workmen’s convenience was well known to the plaintiff who had assisted in erecting the scaffold and platform. While at work on the platform the plaintiff was ordered to place a piece of timber in position near the shaft which was then in motion and while doing so his foot was caught and crushed by the set-screw in such a manner as to make the amputation of a part of the foot necessary and render him lame for life. The plaintiff brought his action for $4,000 and the defendant, amongst other defences, pleaded that the injuries were caused by the plaintiff's own fault and carelessness, and that they could not have occurred had he used ordinary prudence in avoiding the danger of which he was well aware. The evidence was taken at enqutéte and the written depositions filed of record, but the witnesses were not heard in presence of the trial judge who rendered a verdict for the plaintiff for $1,323 with costs and this decision was affirmed by the Court of Queen's Bench, on appeal, Mr. Justice Bossé dissenting. In rendering his judgment in the trial court Mr. Justice Gill considered " that the defendant was at fault in not either covering the shaft temporarily with boards, or by not disconnecting the shaft so as to stop it, or by not altogether stopping the whole machinery whilst plaintiff and the other men were required to work over or near the said shaft."

Chase Casgrain Q. C. and R. G. Code for the appellant. The plaintiff had been employed by the company for some time, as a general handy man, which he had represented himself to be, but he was careless and imprudent in his work upon the scaffolding at the time of the accident. It was a temporary structure eleven

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feet above the floor, the shaft was visible to anybody working on the scaffolding, the plaintiff himself had changed the collar to the outside of the box the day before the accident, placed the set-screw in the position where it caught his foot, and the injuries were due solely to plaintiff's own fault. There is no proof of any careless or negligent act on the part of the company and employers are not insurers of either the lives or safety of their employees. See Mercier v. Morin ([1]); Walsh v. Whiteley ([2]); Sarault v. Viau ([3]); The Montreal Rolling Mills Co. v. Corcoran ([4]); The Globe Woollen Mills Company v. Poitras ([5]); Roberts v. Dorion ([6]); Currie v. Couture ([7]); Tooke v. Bergeron ([8]); Sourdat, "Responsibilité," no. 912; 34 Dalloz Rep. vo." Ouvrier," nos. 103, 104,108 and note 1 at foot of page 2106. It was impossible to stop the shaft revolving as it was used not only to drive all the machinery in the building but also to produce air currents necessary to prevent the loss of the hog products under treatment in the factory; an inconvenience and possible loss which could only be avoided by keeping the share constantly in motion. See Smith v. Baker & Sons ([9]); Poll v. Hewitt ([10]).

Gordon and Talbot for the respondent. It is not the practice of this court to disturb findings of fact, and it should not be done in such a case as this where the findings are concurrent in the courses below; Gingras v. Desilets ([11]); Levi v. Reed ([12]); Coseette v. Dunetal ([13]).

Even if there had been imprudence on the part of the respondent, the applicants would not thereby be

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relieved from their responsibility for the accident which they might have prevented by covering the shaft and set-screw as required by the Factories Act. See also 20 Laurent, no. 488.

TASCHEREAU J. (dissenting.) — The respondent's action is based on the ground that while employed as a workman in appellant's establishment, he, on July 31st 1896, was ordered to mount a scaffolding and put in place a piece of timber near a shaft which was then in motion, and that, while so doing, through appellant's negligence in not having the shaft properly covered, the respondent's foot was caught in the machinery and the little toe of his left foot torn off necessitating amputating of a part of the foot, and rendering him lame for life. The damages are set at $4,000.

The appellant pleaded a general denial, and an exception in which it was alleged that the respondent had been employed by the company for some time as a general handy man; that he was generally careless and imprudent in performing his duties; that the scaffolding on which he was working at the time of the accident was a temporary structure some eleven feet from the floor; that the shaft was visible to anybody working on the scaffolding, and that if respondent was injured it was due solely to his own imprudence, negligence and fault.

It appears by the evidence that the accident occurred under the following circumstances:

Certain repairs having to be made in the appellant's slaughter house and pork packing establishment, at Hull, P.Q., it became necessary for that purpose to erect a temporary scaffolding eleven feet from the floor and about seven feet from the roof. That was done by the respondent himself, with one Moore and one St. Denis.

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Touching one end of the scaffolding, which was fourteen feet square, was the main-shaft, and on the main-shaft, a collar to keep it from sliding; the collar was fixed to the shaft by a set-screw the head of which protruded. While working with Moore on the scaffolding and lifting a piece of timber, the respondent pushed his foot too near the end of the shaft so that it was caught by the set-screw and badly crushed.

The witnesses were not heard in the presence of the judge who rendered the judgment of the Superior Court condemning appellants to pay respondent $1,323, which judgment was confirmed by the Court of Appeal, Mr. Justice Bossé dissenting.

I am of opinion that there is error in these judgments and that the appeal should be allowed. There is no evidence whatever that the negligence of the company, assuming negligence to be proved, caused the accident in question, and an affirmance of the condemnation against it would unquestionably be at variance with our own jurisprudence. Tooke v. Bergeron ([14]); Burland  v. Lee ([15]); Canada Paint Company v. Trainor ([16]). The trial judge does not find that the accident was caused by the company's negligence, He simply finds two facts, 1st, the accident 2ndly the negligent act of the company, without connecting the one with the other in any way whatever. It seems to be taken for granted in the courts below that because there was an accident and because there was an act of negligence, it follows that the plaintiff has proved his case. Now that is not the law. He had further to prove clearly that the accident was due to the negligent act charged, and he has not done it. The evidence might be consistent with his theory but it is equally consistent, to say the least with the theory that the accident was due to his own carelessness

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and it is a rule that where the evidence is as consistent with one state of facts as with another it proves neither. The negligence of the appellant did not justify respondents carelessness and imprudence, and the evidence is all one way, to use the expression of one of the witnesses that " there was no reason for a man meeting with an accident except through his own carelessness’s The accident it is true would not have happened if this shaft at that spot had been covered, but it is as clear that it would not have happened if respondent had used ordinary care and prudence. In Tooke v. Bergeron ([17]), if the machinery there in question had been protected by a board the accident would not have happened; yet, the action was dismissed because the victim's own act was the direct cause of the accident. That is a precisely similar case. Contributory negligence by the defendant is unknown in law as a ground to support a claim of this nature, where the accident would not have happened but for the claimant's own want of ordinary prudence. Volenti non fit injuria is the rule under the civil law as it is under the English law. For instance, in France where by the collision of two wagons during the night one of the two drivers has been hurt he can not on the ground that the other did not leave him half of the roadway, according to the regulations, recover damages against him, if he himself did not carry the proper lights on his waggon ([18]). And, in Louisiana it is now well settled that if the party injured might have avoided the accident by a reasonable amount of prudence, he cannot recover damages. Mercier v. New Orleans and Carrollton Railroad Company ([19]); Schwartz v. Crescent City Railroad Company ([20]); Woods v Jones el al ([21]).

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Here, there was no danger whatever on the platform in question for a man of ordinary prudence. It was large, well built and well lighted and respondent better than any one else, knew of the common sense care required from any one working upon it, as he himself had placed the set-screw where it was when the accident happened.

We ruled in Tooke v. Bergeron ([22]) that where an employee sustains injuries in a factory through coming in contact with machinery, the employer, though he may be in default from not covering that machinery as required by the statute, is not liable in damages, unless it is shown that the accident by which the injuries were caused was directly due to his neglect. I feel bound by that ruling to hold here that appellant is not liable because not only it does not appear that the accident in question was directly due to their neglect, but it, on the contrary clearly appears that but for respondent's want of prudence and ordinary care, the accident would not have happened.

The judgment of the majority of the court was delivered by:

GIROUARD J.—The principles governing actions like the present one are very well known; they have been laid down by this court in several cases and more particularly in The Montreal Rolling Mills Company v. Corcoran ([23]); and Tooke v. Bergeron (1). The rule of law is therefore well established that no employer is responsible for his fault towards an employee, unless the latter proves that it is the immediate, necessary and direct cause of the injury he sustains. That rule is embodied in article 1053 of the Civil Code of Quebec; it is one of almost universal law among civilized nations, as well under the civil law as under the common law of England, a proposition which the

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authorities quoted in The Montreal Rolling Mills Company v. Corcoran ([24]) fully establish. It has, however, been recently assailed with great vigour by eminent jurists, and among others Labbé, Prosper Staer, Gibon, Hubert-Valleroux and Béchaux, as being unjust and unfair to the workingman who often finds it difficult and sometimes impossible to give a true account of the accident; but in no less than ten or twelve decisions, which have reached us since The Montreal Rolling Mills Company v. Corcoran (1) was decided the old rule has been reaffirmed most emphatically by the highest courts of France; Cass. 12 Dec. 1893 Pand. Fr. '94, 1,507; Cass. 6th Fev. 1894; ibid. '94, 1.519; Cass. 5 Avril, 1894, ibid. '95, 1,90; Orléns, 17 fev 1894, Douai, 21 fev 1894, ibid. '94, 2140 ;Paris 4 Avril et 27 juillet, 1894, ibid. '95, 2,209 ;Cass. 7 aout, 1895, ibid. '95, 1,485; Cass. 15 juillet, 1896, et 13 janv. 1897, ibid. '97, 1,513. These two last arréts have been accepted as having settled the French jurisprudence, and no hope of a remedy is entertained except by applying to the legislature. The whole situation is carefully summarized in the interesting annotations of Mr. Fernand Chesnay to the reports of the arréts ([25]). The learned jurist concludes at page 517:

Il est constant que le patron ne peut être déclare responaable de I' accident dont a été victime son ouvrier si celui-ci n'établit pas de la façon la plus certaine, en premier lieu, que son patron a commis une faute, une négligence, une imprudence une contravention aux lois et réglements. et, en second lieu que c'est bien cette faute qui a occasionné I'accident, qu'il existe réellement entre la faute et I'accident un rapport de cause à effet. Si ce dernier élément de Ia responsibilité du patron fait défaut, ou s'il existe un doute sur le point de savoir si I'accident doit être attribué a la faute du patron aucune indemnité n'est due à l'ouvrier. C'est ce qu'à décide avec raison la Cour de Cassation dans les arrêts du 15 juillet, 1896, et du 13 janvier, 1897, que nous annotons.

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Finally with regard to the " contravention aux lois et reglements " or the police regulations, it must be noticed, that the French laws, like the Factories Acts and other similar statutes in force in England, Scotland Ontario and other British colonies are Very different from the Quebec Act; they do not contain any such enactment as section thirty-seven or article 3053 of the Quebec Revised Statutes, which declares in express terms that its provisions are not intended to modify " in any manner " the civil responsibility of the employer towards his employee.

Now, has the plaintiff proved that the defendant has been guilty of negligence which was certainly the cause of the accident? The evidence adduced by him is weak; it is urged by the appellant, and not without reason, that his own imprudence was the primary cause of it; and if we are called upon to reverse a decision rendered in favour of the appellant, we should probably decline to do so; but we are far from being satisfied that the judgment appealed from is clearly wrong; there is some evidence of neglect on the part of the employer, which two courts have considered as having caused the injury sustained, and in such a case the jurisprudence of this court is well settled that we would not disturb the finding of these two courts. The Superior Court and the Court of Appeal, almost unanimously, have found that the accident was due to the fault of the defendant

In not either covering the shaft temporarily with boards, or by not disconnecting it so as to stop it, or by not stopping altogether the whole machinery whilst plaintiff and the other men were required to work over and near the said shaft.

Witness Blondin says that in some of the mills in Hull (where the accident happened), and he mentions those of Mr. Eddy, the shafts are generally covered, and he adds:

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Quand ils ne ne sont pas couverts, lea machines sont arretées quand une personne passe dans une place dangereuse.

The position of the respondent was undoubtedly dangerous, but it is to be regretted that, with regard to the practice prevailing among mill-owners in Hull, the evidence is not more full and conclusive, although easily obtainable. The dangerous position of the shaft was, in the opinion of the official inspector, Guyon, the cause of the accident, and although it is only the evidence of an expert, it is entitled to a great deal of weight, especially as there is in fact no clear evidence of the direct and immediate cause of the accident.

There is also some evidence that the year previous, in 1895, Mr. Guyon had called the attention of the defendant to the unprotected and defective condition of the shaft, although this can only be inferred from his testimony his letter written at the time to the appellant and intended to be filed of record as exhibit "Y" to complete it, not being in the printed case before us, but it is proved that his recommendations, whatever they were, were only carried out in part, a fact he ascertained on a subsequent visit, made after the accident, in 1896.

Manufacturers should realize that it is in their interest to comply with the precautionary measures adapted by their neighbours in similar establishments or suggested by the recognized authority, although their default may only subject them to the penalties or imprisonment; in doing so, however, they may rest assured that they will save often troublesome and expensive litigation, sometimes irreparable injury and in some cases, unfortunately too frequent, valuable lives

Upon the whole and all the circumstances of the case being duly weighed, we think, but not without

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some hesitation, that the judgment of the two courses below should be confirmed, and the appeal is dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellant: Arthur McConnell.

Solicitor for the respondent: A. X. Talbot.