Supreme Court of Canada
Ottawa Electric Ry. Co. v. Létang, [1924] S.C.R. 470
Date: 1924-05-28
The Ottawa Electric Railway Company (Defendant) Appellant;
and
Noe Letang (Plaintiff) Respondent.
1924: June 18; 1924: May 27, 28.
Present: Idington, Duff, Anglin, Mignault and Malouin JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Negligence—Injury—Obvious danger—Knowledge of injured person— Liability.
The respondent brought an action against the appellant company to recover damages suffered by his wife in passing over a stairway leading to the appellant's station. It was proved by the respondent that the stairway was, at the time of the accident and had been for a considerable time before, covered with ice and snow to such an extent that it was extremely dangerous for any person to use it. The respondent's wife had used these steps twice daily on six days of the week during that period and it was shown that there was a safer route of approach.
Held, Idington J. dissenting, that the danger being so obvious that, if actual knowledge of it should not be inferred, notice of its existence must be imputed to the injured person, and there was no duty owing to her in respect of it by the appellant company, and therefore no actionable breach of duty. Indermaur v. Dames (Q.R. 2 C.P. 311) discussed.
Judgment of the Court of King's Bench, (Q.R. 36 K.B. 512) reversed, Idington J. dissenting.
APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec affirming the judgment
[Page 471]
of the trial judge, Joseph Demers J., and maintaining the respondent's action in damages.
The material facts of the case and the questions at issue are fully stated in the above head-note and in the judgments now reported.
Foran K.C. and Ritchie K.C. for the appellant.
Foran K.C. and Ritchie K.C. for the appellant.
Foran K.C. and Ritchie K.C. for the appellant. The stairway is not upon the property of the appellant.
The evidence clearly established that, at the time of the accident, the stairway was in such an obviously dangerous condition that no one could have used it without being fully aware of the risk of so doing.
From the evidence it is clear that the respondent's wife, from her almost daily use of the stairway, must have been fully cognizant of its dangerous condition; and it was incumbent upon her to use reasonable care for her own safety while upon the property. Dobson v. Horsley; Lucy v. Bawden; Brackley v. Midland Ry. Co.; Fairman v. The Perpetual Investment Building Society; Southcote v. Stanley; 19 English Ruling Cases, 60.
Sinclair K.C. and Lemieux K.C. for the respondent. The case turns entirely and exclusively on questions of facts; and the evidence shows that the accident happened on appellant's property and that the latter is liable for the damages resulting therefrom.
Idington J. (dissenting).—This appeal arises out of an action brought by the respondent to recover damages suffered by his wife in passing over a cement stairway, leading up to the appellant's station at Rockliffe, to take its car running into Ottawa, which was in such a condition at the top steps that she slipped and fell and suffered thereby very serious injuries, for which the learned trial judge entered judgment in his favour with damages assessed at $4,607.65, with interest and costs.
From that judgment the appellant appealed to the Court of King's Bench (appeal side) at Montreal, and that appeal was dismissed with costs.
[Page 472]
The respondent and his wife lived in Gatineau Point, in Quebec, and, having been domiciled and married there, he was, by the law of Quebec applicable to the circumstances, the party entitled to bring this action.
Nevertheless it is the law of Ontario, in which the accident happened, that must be rested upon to maintain the action.
Mrs. Létang served as a charwoman in Ottawa almost daily, and her nearest way to her work was to cross from Gatineau Point to Rockliffe Park, and then ascend the hill on top of which the appellant's railway ran, and alongside of its track was situated the station at which she was accustomed to take the car to Ottawa.
The road ascending said hill is rather zig zag in its course, and has, I think it is said, no less than four stairways of which that now in question is the top one adjacent to the station.
Mrs. Létang, on the occasion now in question, when she reached that top stair, was carrying no parcel and kept her left hand in touch with a railing on that side, so that it seemed to her, thus protected, and, as it happened, wearing a new pair of rubbers, that she could safely ascend that stairway, as she had done so many times, but, as already stated, when she reached the top step she slipped and fell.
There were, the learned trial judge finds, some seven hundred persons, or more, passing daily either up or down same road or stairway. I cannot, under such circumstances, attach any blame to the respondent's wife or see how she was not entitled to assume that the respective owners would do their duty.
The appellant denies any ownership or other right of control over said stairway and counsel for it before us seemed to rest chiefly on that objection. If well founded there could be no such action as this maintained.
I cannot accede to such contention, for the evidence, as I read it and as the learned trial judge finds, clearly demonstrates that at least a number of the steps, nearest the top and on which the accident took place, were on part of the land owned by appellant and had been acquired for the purposes of its railway.
The said stairway seems never to have been cleared off, much less sprinkled with ashes or the like in winter, as
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would be the reasonable duty of appellant as owner. And it seeing the travellers' use thereof I cannot understand how such a situation was tolerated.
I would gather from a mass of irrelevant evidence, which was allowed, that the stairs lower down were even worse looked after than the one in question, but the appellant was not the owner thereof, and hence that evidence has tended to produce an impression unfavourable to the respondent's case, as giving ground for suspecting that Mrs. Létang was a reckless person who passed over a road she never should have entered upon.
I cannot accept that theory or its foundation as having anything to do with this case.
Let us confine our attention to the one stairway, and only the top part of that, in the last analysis, for evidently there was nothing to warn one not to ascend it.
Indeed the appellant was in duty bound to have it fenced off at the true line, and not allow passengers to run into such a trap.
The freezing and thawing, at the end of February when this accident happened, produced a rather treacherous condition, such as Mrs. Létang describes, and the trial judge finds, and which would not have existed if the appellant as owner had discharged its duty, as required by the law as laid down in the leading case of Indermaur v. Dames, and other cases cited by respondent's counsel.
Of these Norman v. Great Western Ry. Co., is useful as shewing, in the numerous authorities cited, where to find the law and many limitations thereof. Cox v. Coulson for the like reasons.
London, Tilbury & Southend Railway v. Paterson, presents an illustration akin to that presented herein. Whenever the principle in question has to be applied a fair measure of common sense has to be used for so many misleading words such as "trap" have had their day as if the entire limitations of the operation of the principle invoked, though used only in a metaphorical sense.
It is quite clear to me that, if we eliminate some cases wherein undue subtlety has been used, and the possibly
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exaggerated stories of the conditions existent elsewhere on the roadway or pathway leading up from the ferry, as above set forth, there is a clear case made by respondent.
I therefore, am of the opinion that this appeal should be dismissed with costs.
Duff J.—The steps were obviously impracticable in the sense that they could not be used without risk of serious injury. There was another approach open apparently free from danger. In these circumstances, the principle of Indermaur v. Dames is not applicable.
Anglin J.—No objection was taken in the pleadings and none would appear to have been made at the trial to the plaintiffs status to maintain this action to recover damages for physical injuries sustained by his wife. I am not disposed to entertain such an objection when first taken in appeal.
There is some evidence afforded by the plan attached to the deed by which the defendant company acquired their property in Rockliffe from the late Anne Keefer that the portion of the steps on which Madame Létang slipped and fell was its property. The learned trial judge regarded that evidence as sufficient to warrant the finding of that fact in the plaintiff's favour. That finding has been affirmed by the Court of King's Bench. Meagre as the proof in support of it undoubtedly is, I am not prepared to say that these courts were both clearly wrong—the one in making the other in affirming it.
The plaintiff abundantly proved that when his wife was injured the stairway in question was covered with ice and snow to such an extent that it was extremely dangerous for any person to attempt to use it. Indeed he proved more. Presumably in order to fix the defendant with notice of that state of affairs he established that it had existed for a considerable time before the accident. But Madame Létang tells us that she had used these steps twice daily on six days of the week during that period. While she has not admitted her knowledge of the dangerous condition of the steps, neither has she denied such knowledge. The inference that she had it is almost irresistible. The danger was so obvious, according to the evidence of the plaintiff's witnesses,
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that notice of it to any person taking reasonable care for his own safety in using the stairway is beyond question. Anybody ascending it for the first time would almost certainly have perceived, a person who had made daily use of it for many weeks must have been fully aware of, the danger. Another reasonably convenient mode of access was available and known to Madame Létang.
Under these circumstances what duty did the appellant company owe to Madame Létang? There was not a little discussion at bar as to whether she should be regarded as a mere licensee or as an "invitee" on the company's premises. I am by no means satisfied that, having regard to their manifestly neglected and dangerous state, the railway company can be treated as having invited intending passengers to approach its embarking platform by means of the steps Madame Létang, used. I shall, however, assume her to have been entitled to the full benefit of the position of an "invitee." What were her rights? What duty did the defendant owe her?
Although the action was brought in Quebec, it is of course clear—indeed it is common ground—that these questions must be answered according to the law of Ontario where the accident happened. That law was settled nearly sixty years ago in the leading case of Indermaur v. Dames. The following passage in the judgment of Willes J., speaking for the Court of Common Pleas, has become classic:
The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know.
As said by Lord Atkinson, referring to the principle of Indermaur v. Dames, in Cavalier v. Pope:
One of the essential facts necessary to bring a case within that principle is that the injured person must not have had knowledge or notice of the existence of the danger through which he has suffered. If he knows of the danger and runs the risk he has no cause of action.
[Page 476]
The duty of the "invitor" to the "invitee" is either to have the premises free from any concealed danger in the nature of a trap, or, if such a danger exists and he knows or should have known of it, to give clear and sufficient warning of it. Where the danger is obvious, as the evidence shows it to have been in the case at bar, it does not call for a warning and an essential condition of liability is lacking. As put by Atkin L.J. in Lucy v. Bowden:
In such case the true maxim seems to be scienti non fit injuria.
A person unnecessarily incurring an obvious danger can scarcely be said to be
using reasonable care on his own part for his own safety.
He might well be regarded as falling within the maxim volenti non fit injuria or as guilty of contributory negligence. Had either of those findings been made in the present case it would have been so abundantly justified that it could not be disturbed. But the true ground on which liability of the appellant must be negatived appears to be that, the danger being so obvious that, if actual knowledge of it should not be inferred, notice of its existence must be imputed to the injured person, there was no duty owing to her in respect of it by the appellant company, and therefore no actionable breach of duty.
The law bearing on this aspect of the case was fully discussed and the authorities reviewed by the House of Lords in the recent case of Fairman v. Perpetual Investment Building Society. A case very closely in point is Brackley v. Midland Railway. Indeed, upon the alternative ground on which the English Court of Appeal rested its judgment Brackley's Case (3) is indistinguishable in principle from the case at bar. If, as Lord Atkinson indicates in Cavalier v. Pope, the patent and obvious nature of the danger and continued familiarity with the surroundings by the injured person requiring an inference of his knowledged of its existence be fatal to the plaintiff equally with actual proof of such knowledge, the two decisions are indistinguishable in principle.
The appeal, in my opinion, should be allowed and the action dismissed, with costs throughout—if the appellant insists upon having them.
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Mignault J.—On the evidence, I would not disturb the finding of the learned trial judge, concurred in by the Court of King's Bench, that the stairway where the respondent's wife fell and was injured was on the appellant's property.
Although this action was taken in the province of Quebec, where the appellant has property, the accident happened in the province of Ontario, and the question whether the respondent had established a case of liability under the Ontario law was, before the courts below, a question to be determined on proof of that law. This court, however, takes judicial notice of the laws prevailing in all the provinces; John Morrow Screw and Nut Co. v. Hanken; Logan v. Lee; so it will not be necessary to refer to the expert evidence as to the Ontario law adduced at the trial.
Whether or not the respondent's wife, when she fell, on the 18th of February, 1921, at about 8.30 a.m., while climbing the stairway, was an invitee or a mere licensee on the appellant's property, she was undoubtedly obliged to exercise reasonable care when passing over it, the more so as during that winter she had been daily crossing this property to reach the appellant's trolley cars and must be held to have been well acquainted with the condition of the stairs. She describes this condition as follows:
Q. Pouvez-vous me dire comment cette glace était disposée sur des marches de l'escalier; quelle sorte de glace est-ce que c'était; était-ce plat ou rond?
3. C'était de la belle glace; ensuite il y avait comme des monceaux de glace; c'était tout comme raboteux; de la glace bien épaisse. La glace était ronde; les marches étaient arrondies par la glace.
The respondent's witnesses state that during all that winter the stairway was in a terrible condition, that on account of the slope of the hill water flowed over it and froze, that it was constantly covered with ice, that each step was "un bourrelet de glace," a mound of ice.
This condition was of course perfectly visible and must have been known by the respondent's wife who passed over the property at least twice a day, for she lived at Gatineau Point and worked in Ottawa.
The plan filed as well as the testimony shew that at that place there is a road called the "ferry road" leading from the landing on the Ottawa river to the top of the hill. The respondent's wife knew of this road, for she says:
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Ils (les gens qui venaient de la Pointe Gatineau et qui allaient à Ottawa pour prendre le tramway) ont toujours passé par les escaliers; tout le monde passait là; les chevaux passaient dans le chemin.
There was therefore no necessity to take the stairway in its dangerous condition to reach the trolley cars. The road furnished an alternative mode of ascent.
I think the respondent's wife must be held to have had full notice of the risk she assumed in using the stairway instead of the road as a means of reaching the street cars. There was here nothing of the nature of a trap but a very obvious danger which her familiarity with the place possibly led her to disregard, but which was not the less self evident. The accident happened in full daylight. Under the authorities, which are fully referred to in the judgment of my brother Anglin, the plaintiff cannot succeed.
I would allow the appeal and dismiss the action. The appellant is entitled to costs throughout if it cares to exact them from the respondent.
Malouin J.—Je partage la manière de voir du juge Anglin dans cette cause; et, pour les raisons qu'il donne, j'infirmerais le jugement dont est appel et je renverrais l'action de la demanderesse avec dépens.
Si cette cause avait été décidée en vertu de la loi de la province de Québec, j'aurais été d'opinion contraire, parce que je crois qu'il y a eu faute commune; mais, comme c'est la loi de l'Ontario que s'applique et que c'est la demanderesse elle-même qui s'est chargée d'en faire la preuve, il m'est impossible de maintenir son action.
Appeal allowed with costs.
Solicitor for the appellant: T. P. Foran.
Solicitor for the respondent: Auguste Lemieux.
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