Citizens' Light & Power Co. v. Lepître et ux, (1898) 29 SCR 1

Supreme Court of Canada

The Citizens Light and Power Co v. Lepitre, (1898) 29 SCR 1

Date: 1898-10-06

FROM

DOMINION AND PROVINCIAL COURTS

AND FROM

THE SUPREME COURT OF THE NORTH-WEST TERRITORIES.

THE CITIZENS' LIGHT AND POWER COMPANY (DEFENDANT)

Appellant;

And

NORBERT LEPITRE et ux (PLAINTIFFS)

Respondent.

1898: Oct 5; 1898: Oct 6

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

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

Negligence—Master and servant—Employers' liability—Use of dangerous material—insulation of electric wires—Cause of death—Findings of fact—Arts. 1053, 1054 G. C.

Persons dealing with dangerous material are obliged to take the utmost care to prevent injuries being caused through their use by adopting all known devices to that end and where there is evidence that there was a precaution which might have been taken by a company making use of electrical currents to prevent live wires causing accidents, and that this precaution was not adopted the company must be held responsible for damages.

APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (Appeal Side), affirming the

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judgment of the Superior Court, District of Montreal, which maintained the plaintiffs' action with costs.

The plaintiffs brought the action for damages for the death of their minor son alleged to have been caused through the negligence of the defendant.

     The deceased was employed as a lineman by the company and at the time of the accident was at his work passing a dead wire along the ceiling of the cellar of the power house, in close proximity with a large number of wires which were charged with a strong electric current. There was some evidence to shew a possibility of imperfect insulation of these live wires, as the ends of the tie-wires, by which they were attached to porcelain insulating knobs, were left bare instead of being covered, as they might have been, with insulating tapes. Expert witnesses declared that it was not usual to cover the ends of tie-wires in this manner, but that if such precautions had been taken the possibility of accidents occurring through contact with live wires would have been decreased. The deceased was not seen to come in contact with the live wires, but was found dead on the floor where he had been working, with a wound upon his arm as from a burn and one of his shoes burnt and broken in the sole. The trial judge found that the injury might reason ably be attributed to an electric shock caused by imperfect insulation of the tie-wires and gave a verdict for the plaintiffs on the ground that there was a presumption of fault against the company which had not been rebutted by evidence and it had not been shewn that the accident was due to any imprudence or fault on the part of the deceased.

The company now appeals from the judgment of the Court of Queen's Bench, on appeal, affirming the judgment in the trial court.

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J. B. Allan for the appellant. The application of art 1054 C. C. made in this case at the trial is not correct. It is not shewn affirmatively that deceased came to his death through any definite cause imputable to the want of skill, care or precaution of the company or of those for whom they are responsible. Art. 1054 C. C. is not intended to extend the theory of damages in case of negligence but only to restrict it.

This case is subject to the application of the principles laid down by The Montreal Rolling Mills Co. v. Corcoran ([1]); The Canada Paint Co. v. Trainor ([2]); The Dominion Cartridge Co. v. Cairns ([3])

The mere presumption that deceased died by an electric shock occasioned in a mysterious manner whilst in the company's employment, is not sufficient to condemn them without positive evidence of fault on their part. The circumstances here are just as consistent with negligence on the part of the deceased as on the part of the company. There is evidence to shew deceased had been warned as to possible danger and had considerable experience and knew what precautions to take while working in proximity to live wires. There is no proof that any tie-wires had cut through the insulation and become charged, nor that the deceased came in contact with their bare ends. On the contrary it is shewn that if he had retained his proper position at his work deceased should not have been at any time touching the tie-wires.

Belcourt (Desmarais with him), for the respondents. There were evidently at least four acts of omission proved against the company, any of which would involve responsibility for negligence ;—

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1st. It was imprudent to allow electric currents to pass through the wires in close proximity to where deceased was obliged to work and especially when the work could have been done at another time when the currents were off;

2ndly. The cellar floor was of earth which had been allowed to become saturated with water and dangerous when electric dynamos and currents were in close proximity;

3rdly. Metal pipes were allowed to remain uncovered and scattered about the cellar floor; and

4thly. The tie-wires while covered with insulation were left bare at the ends although it was possible to have covered these ends with insulating tapes and thus prevented the possibility of accidents through contact with them.

If not a case of res ipsa loquitur, this is at least an instance where there has been neglect to take obvious precautions to insure the safety of persons employed by the company to work among their dangerous cur rents and materials. The cases cited by the appellant are easily distinguishable from the present which involves more the principles laid down in The George Matthews Co. v. Bouchard ([4]) in the judgment of His Lordship Mr. Justice Girouard at page 589. There is also in this case the inevitable conclusion that the deceased suffered death on account of the negligent omission of the company to take reasonable and obvions precautions for insuring the safety of their servants while engaged in a dangerous employment.

THE CHIEF JUSTICE (Oral).—I am of opinion that this appeal should be dismissed with costs. There was evidence before the trial judge which he was called upon to appreciate and on which he appears to have

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based his findings. It would be contrary to principle and authority to interfere in such a case.

It has been shewn by the evidence of the company's superintendent that there was a precaution which might have been taken by the company to prevent live wires causing accidents but that this precaution was not adopted. This is therefore a case for the application of the principle now well established that persons dealing with dangerous things should be obliged to take the utmost care to prevent injuries being caused through their use by adopting all known devices to that end. This the appellant has omitted to do.

GWYNNE J.—I am of opinion that the appeal should be dismissed as the findings in the trial court were supported by evidence and should not be disturbed.

Sedgewick and King JJ concurred.

GIROUARD J.—I follow the decision in the case of The George Matthews Co. v. Bouchard ([5]), and there was some evidence that the tie-wires might have been protected upon which the trial court judge based his verdict. I am of opinion that the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant; Campbell, Meredith, Allan & Hague.

Solicitors for the respondents: Desmarais & Cordeau.