City of Verdun v. Yeoman, [1925] SCR 177

Supreme Court of Canada

City of Verdun v. Yeoman, [1925] S.C.R. 177

Date: 1925-02-03

La Cite De Verdun (Defendant) Appellant;

and

S. E. Yeoman (Plaintiff) Respondent.

1924: November 25, 26; 1925: February 3.

Present: Anglin C.J.C. and Idington, Duff, Mignault, Newcombe and Rinfret JJ.

ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Negligence—Municipal law—Pumping station—Electric wires—Children playing on roof—Accident—Liability—Need of notice or fence.

The respondent in his quality as tutor to his minor son aged about eight years sued the appellant city for $20,000 damages for injuries sustained by his son. The city is situated on the river side, near Montreal; and in order to prevent flooding, a dyke with a roadway on the top was constructed and is maintained by the city. A

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pumping house not abutting upon any street or highway was erected behind a part of the dyke in order to prevent sewage from backing up in times of heavy rain. This pumping station was worked by electric power conveyed through the delivery system of the city. At a corner of the pump house was a small building known as the valve house having a flat roof somewhat lower than the top of the dyke and situated at a distance of about three feet six inches from it. Children were in the habit of playing about the dyke and in the vicinity of the pump house; and it was possible for them, descending the dyke in disregard of a by-law of the appellant posted at different places, to mount the roof of the valve house, jump on the sloping roof of the pump house and climb on hands and knees to its top, whence they would slide down. The evidence shows that the children engaged in this sport only when the pump house was not occupied and when policemen were not in sight. It was not proved that the city appellant knew, by its officials or otherwise, that children were in the habit of going upon the roof of either house, although it would appear that children were using the roof in the manner described upon favourable occasions. The respondent's son, on the day of the accident, had climbed to the top of the pump house roof and was sitting on the ridge awaiting his turn to slide, when he lost his balance, rolled down the slope opposite the side facing the valve house and the dyke and was arrested in his fall by one of the groups of electric wires at the eaves of the pumping station, whence he was rescued by a neighbour after sustaining the injuries in respect of which the action is brought. The jury found that the accident was "due to the common fault" of appellant and respondent; and that the fault of the appellant consisted "in not having danger notices about the neighbourhood of the pumping station and some fences to prevent boys getting on the roof." Judgment by the trial judge for $10,000 was affirmed by the Court of King's Bench.

Held, that the case presented no evidence for the jury; that the boy was a trespasser upon the roof and that trespassers have no right to complain of the condition of the premises as they find them; that the electric wires which were the immediate cause of the boy's injury, although an incident of the case, were not an element in the cause of action, because they did not tempt or attract the boy, were not in the nature of a trap, and had nothing whatever to do with bringing the boy upon them, and that the case was therefore distinguishable from the Turntable Cases which have been considered both in Quebec and in England and the United States.

Held also that the law does not impose a duty upon proprietors to fence their buildings to exclude mischievous boys any more than it does with respect to natural objects such as growing trees which are no better known nor more familiar.

Per Idington J. dissenting. The evidence adduced before the jury was such that the trial judge could not properly withdraw the case from the jury and therefore their verdict should stand.

APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec, affirming the judgment of the trial judge with a jury and maintaining the respondent's action for $10,000 damages.

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The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.

Laurendeau K.C. and F. Fauteux for the appellant.

Lafleur K.C. and Claxton for the respondent.

The judgment of the majority of the court (Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.) was delivered by

Newcombe J.—The plaintiff (respondent) in his quality as tutor to his minor son, Walter Sydney Yeoman, recovered judgment against the defendant (appellant) in the Superior Court for $10,000 damages for injuries sustained by his son who fell from the roof of the city pumping station at Verdun upon electric wires which were used for the working of the pumps and was thereby badly burned and disabled. Upon appeal the Court of King's Bench confirmed the judgment, and the city now appeals to this court. The proof is not contradictory and there is no substantial dispute about the facts of the case. The accident occurred on 3rd July, 1922, when the respondent's son Walter, who sustained the injuries, was of the age of about 8½ years. The city of Verdun is situated on the river side where the land is flat and low lying; and, in order to prevent flooding in times of heavy rain or freshet, a dyke was constructed and is maintained by the city along the north bank of the river. The dyke is of considerable dimensions, having a roadway on the top which is used as a promenade, and is broad enough also for the passage of motor vehicles and carriages. The north side of the dyke is a grassy slope, and at intervals steps are set into this for purposes of access to the promenade, and there is a city by-law, notices of which are posted along the slopes of the dyke at different places and near the pump house, whereby

it is forbidden for any person to cross the embankment known as the dyke or levee at points other than where steps have been provided.

These notices are for the protection of the dyke and of the grass growing on the slopes. A sewer discharges opposite to the pump house. The pumping station stands behind the dyke and is worked by electric power conveyed through the delivery system of the city. Ordinarily the water in the river is low enough for the sewer to discharge by gravity, and this condition prevails at the usual rainfall,

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but in times of heavy rain it is necessary to work the pumps in order to prevent the sewage from backing up and causing an overflow. Mr. Wishart, the secretary-treasurer of the city, testifies that

the pumping station is never finally shut up. It is visited continually by the men in the winter time, from the month of December to the month of April we keep four men day and night in the pumping station, and in the summer time the men only go down there when we have a heavy rainfall.

The pump house does not abut upon any street or highway; it is reached by a foot path from Pacific Avenue, one of the city streets. The electric wires are introduced into the building on the north side at the eaves in groups of three, horizontally, and at a height above the ground of 14 feet. The pump house is rectangular but not square, the sides facing the north and south being the longer. The roof, which is of galvanized iron unpainted, is described as a hip-roof, having four slopes and is thus constructed somewhat like a pyramid; but, owing to the fact that two of the opposite sides are longer than the other two, the four sides do not meet at a point, and there is a ridge of some length at the apex of the roof running east and west. The perpendicular height from the peak to the eaves is 15 feet 6 inches, and the direct slope of the roof is described as of about 45 degrees. At the southeast corner of the pump house between it and the dyke is a small building known as the valve house. This building has a flat roof which is somewhat lower than the top of the dyke, and is distant from the north slope of the dyke at the nearest point about three feet six inches. Children were in the habit of playing about the dyke and in the vicinity of the pump house, and it was possible for them, in disregard of the by-law, descending the dyke, to mount the flat roof of the valve house. They were seen there on several occasions by city policemen who warned them and sent them away. It appears, however, that some of the larger and more adventurous of the boys who were accustomed to play about the place, had discovered that they could by running along on top of the valve house towards the pumping station, from which it was separated only by a narrow passage, jump onto the sloping roof of the pump house, and run up this roof for a distance on foot until their speed was overcome by the ascent, and then, by grasping the projection formed

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by the intersection of the south and east planes of the roof, clamber on hands and knees to the top, whence they would slide down, and, by the assistance of a guy-wire which was fastened to the top of the pump house, swing themselves back at the end of the slide on to the flat roof of the valve house. The boys engaged in this sport only when the pump house was not occupied, and when policemen were not in sight. Several policemen who patrolled the neighbourhood, and an employee of the city who had been engaged in the working and repair of the pumping station for twenty years, were called; they testify that they had never seen or heard of any boys being upon the roof of the pump house, although two of the policemen had seen children on the valve house and had sent them away. No report had been made to the secretary-treasurer of the city, and he had no knowledge that boys had been upon the roof of either house; he describes with emphasis his astonishment that an accident could have happened there. There is thus no evidence that the city authorities knew that boys were sliding, or had at any time been on the roof of the pump house, or of any danger connected with it, or of any complaint or accident which might have brought home to them the fact of the sliding, or the existence of any danger. It would appear, nevertheless, that during the season of 1922, and for the two previous seasons, boys had used the roof of the pump house in the manner described upon favourable occasions. The respondent's son, Walter, whose parents had moved into the locality only in the spring of 1922, was one of the boys who engaged in the sliding, and on the day of the accident he had climbed to the top of the pump house roof, and was sitting on the ridge with a companion awaiting his turn to slide, when unfortunately he lost his balance, rolled down the slope on the north side, and was arrested in his fall by one of the groups of electric wires at the eaves of the station, whence he was rescued by a neighbour after sustaining the injuries in respect of which the action is brought. The trial took place on 15th and 16th February, 1923; the boy was examined as a witness and gave his testimony very intelligently; he had been two years at school; he was nine years old on 8th December, 1922; he says that he had played on the pump house station roof pretty often; he describes

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how, after school, the boys used to climb there; he says that there was never anybody about to chase them away; he says that he never told his father or mother about his sliding, because he was afraid he would be punished for it, and he gives the following evidence:—

By the court:

Q. Did you know what you were doing was wrong?—A. Yes—well no, I didn't think there was any danger.

By defendant's counsel:

Q. We don't ask you that, Walter. We ask you if you thought it was wrong to slide on that roof?—A. No, I asked the other boys when I first went there if the man allowed them to slide on the roof, and they said they did not know, but they always slid on the roof.

Q. Why would your mother give you a hiding for doing that? You were afraid though that you would get a hiding if you told your mother you would go there?—A. Because some days I would come with my stocking rubbed and she would say where did I get my stocking rubbed and I would tell her I was down at the boats.

Q. But you had been on the roof?—A. Yes, I bad rubbed them sometimes.

Q. Did you ever hear your mother say that children had been sliding there, and that she had turned them off?—A. No, I never heard her say that.

By a juror: Could I inquire if it is known that boys slid down this roof in winter time?

The court: You might ask him.

By a juror:

Q. Walter, do you know of any of your friends that ever slid down over that same roof in the winter time?—A. No.

By defendant's counsel:

Q. That is because the men are working in winter?—A. The men are working in winter.

Q. And the boys don't slide when they know there are men inside?—A. No, they don't slide.

By a juror:

Q. I am not sure whether you quite understand me. I want to know if your friends are aware of them sliding down there in the winter time?—A. Well, all the boys that ever slid down there with me around there, they said they did not slide in the winter time, because the men were working in there.

Q. And would not allow them?—A. Would not allow them.

Several of the boy's companions with whom he had been in the habit of sliding were called; the ages of the boys who testified were respectively at the time of the trial, 9, 12, 13 and 15 years, the respondent's son being the youngest of these. James Mills, 7 years of age, was called to prove the sliding; he had been at the place in company with the other boys, but he did not slide. They concur in the statement that they were never chased away from the building,

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but that they did not slide when the men were working there. One boy says he did not know whether the men were inside or not; that he never saw a policeman about there, and that he did not know it was forbidden to slide. It was admitted that a number of the other boys would, if called, have given substantially the same testimony as the boys who had testified.

The case was tried with a jury and the learned trial judge submitted questions upon which the jury found in effect that the accident was not

due solely to the fault, carelessness or negligence of the defendant and its employees;

that the accident was not

due solely to the fault, carelessness or negligence of the child or of his father;

that the accident was

due to the common fault, carelessness or negligence both of the defendant and its employees on the one hand, and of the father or his minor son on the other;

that the fault, carelessness or negligence of the defendant and its employees consisted

in not having danger notices about the neighbourhood of the pumping station, and some fences to prevent boys getting on to the roof;

they found moreover that the father was not guilty of any negligence; and, in answer to the question

in what the fault, carelessness or negligence of the child consisted

the jury answered

he had no business to have been on the roof at all, and must have known it was wrong, as he did not want his parents to know he had been there.

The jury assessed the damages at $20,000, deducting $10,000 by reason of the boy's fault, and the learned judge denied a motion on the part of the city for dismissal of the action notwithstanding the verdict, and entered judgment for the respondent for $10,000 damages as found.

The findings of the jury were returned in the light of the observations made by the learned trial judge during his charge, and it may be well to reproduce the material passages. Upon the suggestion that the boy was at fault in going on the roof, he said:

Now you will have to decide, first of all, whether that boy was in fault or not in sliding down that roof. It was not his roof. He evidently knew there was something wrong about it, like all these boys, because you will have noticed that the occasions they took for sliding on that roof were when there were no policemen about. They evidently were of all ages, and most of them at all events would know that that action was not a correct action.

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As to the lack of notices or fencing:

Now, there is no doubt whatever that the defendant put no kind of a notice to anybody not to go upon those premises, that there was no notice like "private Property," "No trespassing here." There was no fence between the dyke and the top of that shed. There was nothing to prevent anybody who was inclined to get on to the roof from doing so. At the back of the roof were electric wires, high voltage electric wires. Except for somebody doing what has happened in this particular instance they apparently would have been as safe as anything could be, because they were fourteen feet above the ground. There was no possible chance of anybody touching them, and in the position in which they were in seems to me they were quite secure. But you will have to make up your minds—I don't see for myself that the presence of those electric wires were any danger in themselves, because it is perfectly clear that if a person grasps two of those wires at the same time that he runs a very good chance of being instantly killed.

With regard to the obligations of the city the jury were told that:

The city should have known that this roof was being used as a playground. There is no doubt about it, and the boys say they did use it as a playground. No single witness has been brought here connected in any way with the city who ever saw that roof used as a playground. The nearest approach is the statement of two constables. The last one examined in rebuttal, and another one examined in defence, who say that they had seen children on the little valve house and that they had ordered them away, and one of them never reported that to his superior officer. Of course, if he did not report it the city council could not very well take any steps, so that something could be done to alter things. The secretary-treasurer, who in all municipalities probably knows a good deal more about the affairs of the council, always ton the job, the secretary-treasurer told us that he had not the faintest suspicion that that roof was being used as a playground, as a slide by these children, until after the accident. We do know that a serious accident happened, and it is for you to say whether the city should have been able to foresee that such an accident could be possible, by children getting on the roof, and if they did foresee that such an accident was possible if they should not have taken some steps to make it impossible for children to get on to that roof. What strikes me in connection with that roof is not only the danger of the electric wires, which seems one of the smallest dangers to me, but it would be the danger to children idling from the roof down some fourteen feet below. This boy might just as well have broken his neck instead of having burned his arm off if he had slid off that roof. Well now, seeing the position that that roof was in, in regard to that dyke, seeing the comparatively easy access there was to it, seeing the fact that the children used to frequent that dyke, it is for you gentlemen to say whether or not the city was negligent in not fencing that house off in some way.

There was no possible danger that could take place, to my mind, with those electric wires in any other way provided access to that roof was rendered impossible from the dyke side. If some fence had been used, had been put up there, which children could not scale, and possibly barb wire in some way or other, because it would take a good deal to keep characters of the stamp of these boys from getting on the roof, if there was any possibility to do it it would take a great deal of ingenuity, to plan a barricade that would keep them out, I should fancy: but there, it is for

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you gentlemen to decide whether such a barricade of some kind or another should have been put up.

Finally upon the suggestion of counsel that the judge should instruct the jury to consider the capacity of the boy to discern between right and wrong, and as to whether he was capable of fault, the judge, having stated his impression that this was a pretty bright lad, told the jury that if they thought he was old enough to know what he was doing to be wrong, if he was old enough and intelligent enough to be conscious of the danger of going on the roof, then they would be in a position to find that it was careless and imprudent on his part, and that there was fault in going on the roof.

The evidence points only to the conclusion that the boys were trespassers upon the building. Although the learned trial judge said in his charge that the city should have known that the sliding was going on, it is noteworthy that when the building was occupied the boys did not slide; when the policemen were in sight the roof was deserted; the building was on the water side and the only witnesses who testify to seeing the boys on the roof, except the boys themselves, are five residents of Pacific Avenue, a street which terminates on the flats in the immediate vicinity of the pump house. One of these was the mother of the injured boy. There is no suggestion of a report by any of these to the city authorities; it was known that the city did not allow children to play on the flat roof of the valve house, that when they had been seen there by the police they had been sent away. Constable McCaskill testifies that he had seen children on the roof of the valve house two or three times and he adds:

Of course when you are in uniform, when the youngsters see us around there they will certainly get off and get away home. I had occasion to bring one down to his mother and I warned her about the danger the child was in in falling off the roof perhaps.

Trespassers have no right to complain of the condition of the premises as they find them. The law is stated by Sourdat, 6th ed. vol. I, 661, as follows:

Nul ne doit s'introduire sur l'héritage d'autrui sans son consentement. En le faisant, on s'expose à toutes les conséquences des accidents qu'on peut y rencontrer. Ainsi je pénètre dans une propriété close, même sans intention malveillante, peut-être seulement pour éviter un circuit de la route qui m'obligeait à tourner autour des murs, tandis que je puis traverser en ligne droite. Le propriétaire chasse ou s'exerce au tir. Un

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coup de feu, parti de l'épaisseur du bois, m'atteint et me blesse. La faute est tout entière de mon côté. On ne pouvait point soupçonner ma présence en cet endroit.

La jurisprudence autorise même l'emploi de moyens de défense, tels que chiens de garde, pièges, appareils explosibles, pour protéger les habitations et leurs dépendances contre les incursions des animaux, ou des personnes qui tenteraient de s'y introduire indûment.

Upon appeal the Court of King's Bench considered that there was evidence for the jury, and that the findings and judgment at the trial ought not to be disturbed, but Dorion J. dissented upon the ground that the city did not know and was not bound to know of the use which the boys were making of the roof, and that it could not have been reasonably anticipated that an accident of the kind might occur; he maintains that the jury have attributed fault to the city where there was none.

One cannot approach the consideration of this case without realizing the aptitude and truth of an observation of Lord Justice Farwell in Latham v. R. Johnson & Nephew, Ltd.[1], a case which proceeded upon the assumption that the infant plaintiff was a licensee, where he said:—

It is imposable to hold the defendants liable unless we are prepared to say that they are bound to employ a groundkeeper to look after the safety of their licensees, and the result of such a finding would be disastrous, for it would drive all landowners to discontinue the kindly treatment so largely extended to children and others all over the country. We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment; sentiment is a dangerous will-of-the-wisp to take as a guide in the search for legal principles.

The case is perfectly distinguishable from the class of cases of which the Turntable Cases, which have been considered both in Quebec, in England and in the United States, are types, where proprietors have been held responsible for injuries caused to young children incapable of negligence, who were permitted to be upon the premises, by machines placed within their reach and capable of being operated by them in a manner to cause them injury, and in which it has been held that a duty rests upon the proprietor to protect the child against artificial contrivances which embody a peril unknown to him and unexpected. Canadian Pacific Ry. Co. v. Coley[2] ; Cooke v. Midland Great Western Railway of Ireland[3] ; Railroad Co. v.

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Stout[4]; also United Zinc & Chemical Co. v. Britt[5]; New York, New Haven & Hartford Rd. Co. v. Fruchter[6]. We are concerned here not with a vehicle, nor with any sort of machine with which it is in itself dangerous for children to meddle, but with an ordinary and usual object in a city, a building with a pitched roof, the use and purpose of which is well known to every school boy, and with the misuse of it for a dangerous sport by school boys who it is impossible to suppose had not a perfect realization of what they were doing and of the dangers incident to their sport.

The case should be cleared of the confusion which is imported by reason of the electric wires ; these enter the building at the eaves on the north side, fourteen feet from the ground, where they could not be reached without the use of a ladder, or by the extraordinary method by which this unfortunate boy came there, climbing the roof on the opposite side and descending upon them; the wires were not and are not alleged to have been in anywise an object of attraction or curiosity; they possessed no lure; they did not tempt or fascinate; they had none of the properties belonging to a trap, and they had nothing whatever to do with bringing the boy upon them; as said by Dorion J., this came about in consequence

d'un accident résultant d'un autre accident,

and such an occurrence, the possibility of which is demonstrated by the event, was a contingency too remote to be reasonably anticipated, Horsburgh v. Sheach[7]. The boy Yeoman immediately before his fall was sitting on the ridge of the roof to which he had climbed in company with another boy who sat beside him. If at the same time the latter had also lost his balance and, escaping the wires, had fallen to the ground and sustained injuries by his fall, I can see no reason to suppose that he would not have every right of recovery which Yeoman has; or if the respondent's son had fallen to the ground and broken his arms without touching the wires, is it possible that he would be any the less entitled to compensation? I should think not. These wires are an incident of the case, not an essential; they contribute

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perhaps to the damages, but they are not an element in the cause of action. The boys were able by the exercise of considerable agility and some ingenuity to climb the roof of the pump house, and thence to slide off on to the flat roof of the valve house by means of the guy-wire, which, in a manner that is not clearly explained by the evidence, was used to direct the course of the sliding and the off take from the sloping roof to the flat underlying one. These were uses for which it is needless to say the roof was not designed or intended and nobody knew this better than the boys themselves. Indeed it would appear that the case was of the class which was excluded by Lord Atkinson in Corporation of the City of Glasgow v. Taylor[8], which is cited to elucidate, where he said:—

There is in my view, no resemblance between this case and those cases where mischievous boys sustain injury by interfering with or misusing natural objects, such as trees in public parks up which they may be tempted to climb, or water, ornamental or other, into which they may accidentally fall or be tempted deliberately to enter. The appearance of such objects as these is well known and unmistakable. There is nothing deceptive or misleading about them. They cannot well be mistaken for things other than, or different from, what they really are.

In the same case, p. 60, Lord Shaw of Dunfermline says in his speech:

In grounds open to the public as of right, the duty resting upon the proprietors, or statutory guardians like a municipality, of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious.

It is maintained that evidence is presented here for the consideration of the jury and that effect should be given to their finding. It is true that the question whether or not the defendant was negligent is for the jury, but behind that is the question of law for the court as to whether the negligence alleged constitutes a ground of legal liability. The allegation of fault in the plaintiff's declaration is as follows:—

Defendant is in fault and responsible for the damages suffered by the said Walter Sydney Yeoman because it did not take precautions to prevent the said Walter Sydney Yeoman and other children from playing on the roof and in the neighbourhood of the pump house which was dangerous, and to protect people, and particularly the said Walter Sydney Yeoman, from the danger of being injured by coming into contact with the electric wires running into the pump house.

The faults found against the defendant are the absence of danger signals about the neighbourhood of the pumping

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station, and of fencing to prevent boys getting on to the roof. The Lord Chancellor (Cairns) had occasion to consider in the well known case of Metropolitan Railway Co. v. Jackson[9], the distinction between the functions of the court and of the jury, and, having explained the respective duties which fall to be discharged by the judge and by the jurors, he concludes with the statement that:

It is indeed impossible to lay down any rule except that which at the outset I referred to, namely, that from any given state of facts the judge must say whether negligence can be legitimately inferred, and the jury whether it ought to be inferred.

The rule is the same in the province of Quebec; it is provided by Article 469 of the Code of Civil Procedure that

whenever the judge is of opinion that the plaintiff has given no evidence upon which a jury could find a verdict he may dismiss the action.

If therefore the learned trial judge had adopted my view of the case he would have found no evidence from which negligence on the part of the defendant could have been properly inferred, and he would have dismissed the action; and, if the judge should have done this, the plaintiff's case is not established or improved by the verdict, for it does not rest upon a legal foundation. Canadian Pacific Railway v. Frechette[10].

Moreover, as to the faults found against the city, they are not faults. The danger of falling off the roof, to which the boy voluntarily exposed himself, and from which he suffered, was one which was apparent, and which is common to all buildings. As to the wires, there was no risk from them that could be seen, or reasonably foreseen. There was no place from which the boy could legitimately view the wires except from the ground, and there he was in no danger from them. I do not interpret the jury's finding as meaning that the notices should have suggested that there were electric wires on the north side of the building which would increase or aggravate the danger to people falling from the top of the roof, when of course nothing was further from the thought of the proprietor, nor less within the region of anticipation or conjecture, than that any climbing of the roof should be permitted or take place. As to the fencing, it is, as the learned judge told the jury, a difficult project to build a fence high enough and tight

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enough to exclude mischievous boys of the capacity and ingenuity manifested by the evidence in the case, and in my judgment the law does not impose that duty upon proprietors any more as to their buildings than as to natural objects, which are no better known nor more familiar; the case of negligence would have been the same if in the place of the pump house a tree had been growing where the building was, and the boy, indulging his desire to climb, had fallen from the branches and injured himself. The alleged liability is founded upon article 1053 of the Civil Code which declares that

every person capable of discerning right from wrong is responsible for the damage caused by his fault to another whether by positive act, imprudence, neglect or want of still.

Liability in cases of this sort is founded upon fault, but no precedent has been cited, and I have not been able to find one, either in the jurisprudence of the province or in the decisions in England or in the United States, where fault or liability has been judicially found upon facts such as those presented in this unfortunate case.

The appeal should be allowed and the action should be dismissed with costs throughout.

Idington J. (dissenting).—The respondent in his quality as tutor brought this action for damages suffered by his minor son resulting from an accident which took place on the 3rd of July, 1922, at the Verdun pumping station whereby the boy lost one arm and the use of the other.

The case was tried by Mr. Justice Lane, with the assistance of a special jury who brought in a verdict of $20,000, founded on their answers to questions submitted to said jury, presumably with the assent of the respective counsel for either side.

By reason of the jury finding that the boy was guilty of contributory negligence and that the verdict should be reduced to half said amount, the judgment is only for $10,000.

The judge and jury, by consent of counsel, visited the scene of the accident and thus had exceptional means of appreciating correctly the evidence adduced on either side.

The learned trial judge's charge to the jury was eminently fair and no exception has been taken thereto.

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The questions submitted brought out all that could have been reasonably desired in such a case, and were so fully explained in the charge of the learned judge to the jury that there can, I submit, be no mistake in their answers as covering the whole ground involved.

The counsel for appellant made a motion, after the jury retired, for a judgment non obstante veridicto and, from what transpired in regard thereto, it is quite clear that the learned trial judge, who was in a better position than we are to appreciate the correctness of the jury's findings and the proper result flowing therefrom, fully approved of the verdict and entered judgment according therewith.

The defendant appealed therefrom to the Court of King's Bench and, after hearing said appeal and fully considering same, the learned Chief Justice Lafontaine, Mr. Justice Guérin and Mr. Justice Howard, each wrote at length their respective reasons for dismissing said appeal and Mr. Justice Tellier concurred with Mr. Justice Howard's views.

To my mind they covered between them the entire ground most effectively; and I so entirely agree with their reasoning (save that of the learned Chief Justice in some remarks of minor importance as to the responsibility of the boy's mother, with which I cannot agree in view of the jury's entire exoneration of the respondent), that I can see no useful purpose to be served by repeating their reasons here.

Mr. Justice Dorion briefly dissented.

I may observe in parting with this case that there assuredly was such substantial evidence for the consideration of the jury that, in my humble opinion, no one would be justified in withdrawing this case from their consideration.

And, lest it be suggested that the rule in that regard differs in Quebec from that applied here and in England, I submit the following quotation from the judgment of the Judicial Committee of the Privy Council in the case of McArthur v. Dominion Cartridge Company[11]:—

In Quebec, when an unsuccessful party after verdict moves for judgment or a new trial, the function of the court under the Code of Civil Procedure is the same as the function of a court of appeal in this country

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in similar circumstances. It is not the province of the court to retry the question. The court is not a court of review for that purpose. The verdict must stand if it is one which the jury, as reasonable men, having regard to the evidence before them might have found, even though a different result might have been more satisfactory in the opinion of the trial judge and of the court of appeal.

For the foregoing reasons I would dismiss this appeal with costs.

Appeal allowed with costs.

Solicitors for the appellant: Fauteux & Fauteux.

Solicitors for the respondent: Claxton & Claxton.