Supreme Court of Canada
Canadian Coloured Cotton Mills Co. v. Kervin, (1899) 29 S.C.R. 478
Date: 1899-05-30
The Canadian Coloured Cotton Mills Co. (Defendant) Appellant;
and
Margaret Kervin and Others (Plaintiffs) Respondents.
1899: March 21, 22; 1899: May 30.
Present: Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Dangerous machinery—Statutory duty—Cause of Accident.
K., a workman in a cotton mill, was killed by being caught in a revolving shaft and dashed against a beam. No one saw the accident, and it could not be ascertained how it occurred. In an action by his widow and infant children against the company the negligence charged was want of a fence or guard around the machinery, which caused the death of K., contrary to the provisions of the Workmen’s Compensation Act.
Held, Gwynne J. dissenting, that whether the omission of such statutable duty could or could not form the basis of an action at common law, the plaintiffs could not recover in the absence of evidence that the negligence charged was the cause of the accident.
APPEAL from a decision of the Court of Appeal for Ontario affirming by an equal division of opinion the judgment of the Chancery Division of the High Court of Justice in favour of the plaintiffs.
James Kervin was killed in November, 1894, in one of the mills of the defendant company, in the town of Cornwall, being at the time in the employment of the company and charged with the duty of oiling all the machinery and attending to the water wheels, &c. The action was brought by the widow and children who claimed damages both in common law and under the Workmen’s Compensation Act.
[Page 479]
No one saw how the accident happened. Shortly after, however, his body was found lying face downward across one of the timbers referred to, about seven feet north of the journal or shaft of the northern pulley. The head was towards the west, the chest was on the timber. The deceased had been seen about ten or fifteen minutes before standing about thirty or thirty-five feet to the west of that place, with his oil can in his hand. On a post mortem examination, it was found that there was a bruise over the left temple; a cut on top and one on the back of the head; a fracture on the upper part of the sternum which was driven in upon the chest, evidently by some external violence; also fracture of four ribs on left side; there was also a compound fracture of both bones of the right leg, just above the ankle. In the opinion of the surgeon who performed the post mortem, death was caused by the body coming violently in contact with the beam on which it was found. The wounds in the head, he was of opinion, were caused by the head coming in contact with the brick work of the trench, where he himself and two others found some hair, and a part of the skin of the scalp, which, in his opinion, belonged to the deceased. The wound of the leg was probably caused, he said, by being caught in the large belt, before referred to.
It also appeared in evidence that there were two loose planks laid across the trench, over which the deceased and other servants in the defendant’s employment had on two or three occasions crossed, in order to get from one side of the trench to the other, and that these planks were only three feet one or two inches below the upper belt, and that there was great danger in doing this, as a man would have to stoop down in order to pass clear under the belt; and further, that deceased had been told some weeks before
[Page 480]
his death by an overseer in the mill, that he should not pass over in that way—that it was dangerous to do so—and the planks were then removed, but appeared to be there at the time of the accident. But it was not in evidence that he had ever passed over in that way since the overseer had told him not to do so.
A nonsuit was asked for and refused. The case having gone to the jury a verdict was found for the plaintiffs with $3,500 damages. The jury found that the company was neglectful in not having a fence or other guard at the place where the accident happened.
The verdict was affirmed by a majority of the Divisional Court, and by an equal division of opinion in the Court of Appeal. The defendants then appealed to this court.
Osler Q.C. and Pringle for the appellant. The plaintiffs are not entitled to a verdict at common law as the case cannot be distinguished from Wakelin v. London & South Western Railway Co., and cases following it in this court. Montreal Rolling Mills Co. v. Corcoran; George Matthews Co. v. Bouchard. See also Dominion Cartridge Co. v. Cairns; Tooke v. Bergeron; Finlay v. Miscampbell.
Nor can plaintiffs recover under the Workmen’s Compensation Act. Failure to comply with the provisions of that Act does not give rise to a cause of action, but merely subjects the owners of the factory to penalties. Wilson v. Merry at page 341; Finlay v. Miscampbell10; Montreal Rolling Mills Co. v. Corcoran. Moreover no notice was given within twelve weeks from the death of deceased as the Act
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requires, and there is no reasonable excuse for want of such notice. Moyle v. Jenkins. And see also Rudd v. Bell; Miller v. Reid.
Aylesworth Q.C. and Cline for the respondents. Wakelin v. London & South Western Railway Co. is discussed in Beven on Negligence, and the principle governing this class of cases pointed out. The present case is easily to be distinguished from Wakelin’s Case16.
As to the statutory duty to guard the revolving wheel, see Thomas v. Quartermaine, and as to notice Stone v. Hyde; Cox v. Hamilton Sewer Pipe Co. These cases decide that notice of intention to sue is sufficient.
Under the evidence plaintiffs could not have been nonsuited. See Fenna v. Clare Co.; Moore v. Ransome’s Dock Committee.
TASCHEREAU J.—I am of opinion that the appeal should be allowed and the action dismissed.
GWYNNE J.—I am of opinion that the appeal should be dismissed upon the grounds stated in the judgment of Osler J. in the Court of Appeal to which I desire to add nothing.
SEDGEWICK J.—I am of opinion that this appeal should be allowed and the action dismissed for the reasons stated by the learned Chief Justice of the Court of Appeal.
KING J.—I concur in the judgment allowing the appeal.
[Page 482]
GIROUARD J.—This is one of those unfortunate cases where a poor workman accidentally met his death while working in the factory of the appellants. As in Corcoran v. The Montreal Rolling Mills Co. there is no witness to tell how the accident happened. The deceased was alone, and, as in the case of Corcoran, we are left to hypotheses, theories and conjectures, but as we laid down in that case, both under the civil law and the common law of England, it is not upon mere suppositions that the legal responsibility of the master towards his employees or their heirs can rest. Upon the authority of Wakelin v. London & South Western Railway Co., we decided that all cases of this kind involve the determination of two essential facts; 1st, negligence on the part of the master, and 2nd, that that negligence was the cause of the injury to the employee. Without satisfactory evidence of both these facts, there is no case to go to the jury.
The jury found against the company upon both facts, the negligence consisting in the want of fence or guard round the machinery which caused the death of deceased, contrary to the provisions of the Workmen’s Compensation Act of Ontario.
The trial judge refused a non-suit. In the Divisional Court, Boyd C. and Robertson J. were of the same opinion, Meredith J. dissenting. In appeal the court was equally divided, Burton C.J. and Maclennan J. for the appellants, Osler and Falconbridge JJ. contra.
Without deciding that the omission of a statutable duty can create a civil liability on the part of the owner and be the basis of an action at common law, we have no hesitation in agreeing with the learned Chief Justice of Ontario that there is no evidence whatever that the negligence imputed to the appellant was the cause of the accident, and that conse-
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quently the action, whether considered at common law or under the Workmen’s Compensation Act, must be dismissed.
The appeal is allowed with costs in all the courts.
Appeal allowed with costs.
Solicitors for the appellant: Leitch & Pringle.
Solicitors for the respondents: Maclennan, Liddell & Cline.
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