Ernest Salt (Plaintiff) Appellant;
and
Town of Cardston, (Defendant) Respondent
1920: May 4, 5;
1920: June 21.
Present:—Sir Louis Davies, C.J., and Idington, Duff, Anglin,
Brodeur and Mignault JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF
ALBERTA.
Municipal
corporation—Negligence—Highways—Non-repair—Municipal electric light
system—Construction—"The Municipal Ordinance, (N.W.T.), Cons. Ord., (1905)
c. 70, s. 87—Alta. S. (1907), c. 37, s. 20.
[Page 612]
The appellant was injured by his horse running into an
unguarded guy wire supporting an electric light pole erected by the
municipality respondent within the road allowance.
Held, Brodeur J. dissenting, that the accident was not
a case of nonrepair within section 87 of "The Municipal Ordinance,"
but was a case of failure to construct a public work "so as not to
endanger the public health or safety" within section 20 of chapter 37 of
the Alberta statutes of 1907, and therefore, the appellant's claim was not
barred by the limitation of six months provided by section 87. Judgment of the
Appellate Division (15 Alta. L.R. 31) reversed, Brodeur J. dissenting.
APPEAL from the judgment of the Appellate Division of the
Supreme Court of Alberta
reversing the judgment of the trial judge Stuart J.,
which maintained the appellant's action.
[Page 613]
The appellant was driving cattle over the bridge at Cardston
crossing, Lee Creek, which bridge occupies a portion of the road allowance, and
some of the cattle having left the approach to the bridge and taken the roadway
leading to the creek, the appellant rode his horse down the embankment. The
horse ran into a guy wire, unprotected by any guard, supporting an electric light
pole erected by the respondent as a part of its electric lighting system. The
respondent's incorporating ordinance comprised the provisions of "The
Municipal Ordinance," of which section 87 provides that the municipality
shall keep in repair "all sidewalks, crossings, sewers, culverts and
approaches, grades and other works made or done by its council" and on
default, the municipality is liable but the action must be brought within six
months after the damages have occurred. The appellant took his action after
that delay, but he based his claim on the ground that the electric light system
had been constructed under the authority of chapter 37 of the Alberta statutes
of 1907, section 20 of which provides that "the town shall construct all
public works and all apparatus or appurtenances * * * wheresoever situated, so
as not to endanger the public health or safety."
Eng. Lafleur K.C. and C.F. Jamieson for the
appellant.
A. H. Clarke K.C. for the respondent.
THE CHIEF JUSTICE.—While, in my opinion, the damages assessed
in this case are somewhat larger than I should have awarded and especially so
in allowing the expenses of the wife and daughter in
[Page 614]
their trip to California with the
appellant, I do not think that on this ground alone I should allow an appeal. I
am of the opinion that, on the main question, the decision of the court
appealed from was wrong and that the failure of the respondent to construct the
work in question in a proper manner, which was the cause of the accident, did
not come within section 87 of the statute invoked and that the limitation
therein for bringing an action was, therefore, not applicable.
I concur, therefore, in allowing the appeal with costs and
restoring the judgment of the trial judge.
IDINGTON J.—The learned trial judge found respondent
municipal corporation liable for damages sustained by appellant by reason of
the guy wire placed upon the road allowance to support a pole carrying wire for
the use of an electric system of lighting.
The Appellate Division of the Supreme Court of Alberta reversed
his judgment solely upon the ground that the cause of action was barred by
section 87 of "The Municipal Ordinance" Act, which reads as follows:
Sec. 87. Every municipality shall keep in repair all
sidewalks, crossings, sewers, culverts and approaches, grades, and other works
made or done by its council, and on default so to keep in repair shall be
responsible for all damages sustained by any person by reason of such default,
but the action must be brought within six months after the damages have been
sustained.
He applied, in my opinion correctly, to the construction of this
section the ejusdem generis rule, relative to the interpretation and
construction of statutes.
The express language of the statute in question seems clearly to relate
only to the liabilities incidental to the works relative to the maintenance of
the high-
[Page 615]
way and clearly does not extend to any of
the other manifold businesses which such corporations are in these latter days
empowered to carry on, besides the exercise of ordinary municipal jurisdiction
over highways.
What the respondent did in its capacity of a corporate company,
as it were, to carry on the business of electric lighting, had no necessary
relation to its maintenance of the highway in a proper state of repair, or to
the specified works of
sidewalks, crossings, sewers,
culverts and approaches or grades.
These specified undertakings have each as a rule a necessarily
close relation with the maintenance of the highway.
The carrying on of any system of electric lighting has no such
necessary relation with the obstruction of any part of the highway and should
not, I respectfully submit, be tolerated further than absolutely necessary.
When the municipal corporation sees fit to exercise the power conferred
upon it to carry on an electric lighting system, it enters upon a business
enterprise which has no implied right to obstruct the road allowance any more
than another corporation duly authorized to carry on same.
And I much doubt if section 8 in the 1907 enactment which is
relied upon to justify the erection complained of, can, upon a close
examination of its express terms, carry any one acting thereon further than
absolutely necessary for the execution of such a work as contemplated therein.
Moreover it is left on the evidence very doubtful if the
structure in question was not erected before this enactment.
[Page 616]
Be all that as it may, section 20 of same statute provides as
follows:
Section 20. The town shall construct all public works and
apparatus and appurtenances thereunto belonging or appertaining or therewith
connected and wheresoever situated so as not to endanger the public health or
safety.
It is upon this that the appellant's action rests and not upon
any neglect of duty relative to the maintenance of the highway.
And that an action will lie for breach of obligations thus
imposed I have no manner of doubt.
We are not referred to any sanction in the way of penalty imposed
for the non-observance of such obligations nor can I find any such, or any
other reason, why it must not be presumed to be one of those enactments which,
in such circumstances, are presumed to carry in or with them a right of action
to those suffering from a breach of the observation of the obligations imposed.
There is no express limitation in "The Municipal
Ordinances" applicable determining the time within which the action can be
brought.
The only statutory limitation therefor is the general one
applicable to the like torts.
As to the damages I do not think we should interfere though
possibly they are more than I would have assessed and in regard thereto the
Appellate Division below might have been entitled to do so.
I think the appeal should be allowed with costs here and in the
court below and the judgment of the learned trial judge be restored.
DUFF J.—I think the learned judge of the court below
failed to appreciate the exact significance of section 20 of the Act of 1917.
It imposes, I think,
[Page 617]
a substantive obligation upon the
municipality and its office is not restricted to limiting the protection which
the town would derive from the statutes affecting it in respect of the
construction of public works. The scope of the obligation I shall speak of
presently.
Mr. Clark's argument based on section 87 fails, I think, for this
reason, that although the subject matters of the two sections may in some
slight degree overlap, I think it is quite clear that the conclusion of the
trial judge that what is complained of here was done in the course of
construction is a conclusion which is unassailable.
As to the scope of the obligation imposed by section 20, I think
the effect of the section is that where public works are constructed in such a
manner as to endanger, in fact, the public health and safety, the town is prima
facie responsible for any injuries arising from this circumstance; but in
accordance with the long series of decisions relating to provisions expressed
in similarly unqualified language, the town may escape liability in such cases
by shewing that it has done everything possible for the protection of the
public health or safety in view of all reasonably likely contingencies. I think
the appeal should be allowed and the judgment of Mr. Justice Stuart restored.
ANGLIN J.—Not without some misgivings I have reached the
conclusion that the failure to place a guard on the guy wire, which was the
cause of the plaintiff being injured, was not a case of non-repair within s. 87
of "The Municipal Ordinance" (c. 70 of Con. Ord. N.W.T., 1905), but
was a case of failure to construct a public work "so as not to endanger
the public health or safety" within s. 20 of c. 37 of the Alberta statutes
of 1907, and, as such, gave rise to a cause of
[Page 618]
action when injury resulted therefrom
quite distinct from the default to keep in repair dealt with in s. 87 of the
Consolidated Ordinance. With Mr. Justice Stuart I also incline to think that
the electric light line in question was not one of the "other works made
or done by (the) council," with which s. 87 deals.
No case of contributory negligence was established. The learned
trial judge so found and it would not be possible on the evidence to reverse
his finding.
I am also of opinion that there should be no reduction in the sum
of $10,000 awarded by Mr. Justice Stuart as damages. He tells us that he
thought that this sum was not excessive but that "it probably errs on the
other side." The allowance of $2,500 in respect of travelling expenses,
etc., is no doubt in great part very questionable for the reasons stated by Mr.
Justice McCarthy. But I am not prepared to say that the whole sum awarded is
too large.
I would allow the appeal and restore the judgment of the learned
trial judge.
BRODEUR J. (dissenting): We are asked to decide
whether or not the defendant municipal corporation was negligent in erecting
the guy wire which caused the accident.
The law provided (sect. 20, ch. 37 of 1907) that the town in
constructing all public works and all appurtenances thereto should make them
"so as not to endanger the public safety."
Nobody disputes the power of the municipality to erect the pole
which was necessary for its lighting system, and it was necessary also that a
guy wire should be erected in order to strengthen the poles. If the pole had
been erected in the travelling part of
[Page 619]
the roadway, I could very well realize
how dangerous the guy wire, as built, would have been. But the pole and guy
wire in question were erected on a part of the roadway which was not used by
the public.
I will not say that the plaintiff could not go down the
embankment in order to get his cattle back on the travelling road, but in doing
so he was bound to exercise the greatest care because he knew that he was not
riding on the highway which was kept for travellers, and the municipal
corporation, in erecting the pole and the guy wire at the place where they were
installed, could not be considered as negligent in constructing them as they
have done, because it was not to be expected that the public would go there.
As to the question of limitation. Section 87 of "The
Municipal Ordinance" imposes the duty upon the municipal corporation to
keep in repair all works erected by a municipality, and provided so that in
default, the municipality should be responsible for all damages sustained by
any person by reason of such default, but in such case the action must be
brought within six months after the damages have been sustained.
The electric system which has been adopted by the municipality
is, to my mind, one of the works contemplated by "The Municipal Ordinance,"
since it is especially provided in section 95 of the same Act that the
municipality is authorized to pass by-laws for the erection of such works. If
the guy wire in question was not properly kept, the municipality has failed in
its obligation to keep the highway or the works in proper repairs. Howse v.
Township of Southwold,
[Page 620]
In such a case any action instituted by reason of its default
must be instituted within six months after the damages have been sustained. The
present action was instituted long after the period mentioned in the statute.
For these two reasons, it seems to me that the appeal should be
dismissed with costs.
MIGNAULT J.—In my opinion the liability of the respondent
for the injuries suffered by the appellant rests on section 20 of chapter 37 of
the Alberta Statutes for 1907, being an amendment of the charter of the town of
Cardston, which says that
the town shall construct all public
works and all apparatus or appurtenances thereunto belonging or appertaining or
therewith connected, and wheresoever situated, so as not to endanger the public
health or safety.
I do not think that this is a case where section 87 of The
Municipal Ordinance of Alberta, with its limitation of six months for right of
recovery, applies. The respondent, as a part of its electric lighting system,
had erected poles within the road allowance and one of these poles was
supported by a guy wire unprotected by any guard. The appellant was driving
cattle over the bridge at Cardston crossing Lee Creek, which bridge occupies a
portion of the road allowance, and some of the cattle having left the approach
to the bridge and taken the roadway leading to the creek, the appellant rode
his horse down the embankment and started after the steers. It was then almost
dusk and the appellant's horse ran astride the guy wire which without any guard
was practically invisible at that hour, and the appellant was thrown to the
ground and very seriously injured. Under these circumstances I do not think the
accident was caused by a want of repair of the highway, but by reason of a
defect of construction of the electric light system, so that the
[Page 621]
limitation of six months provided by
section 87 of the ordinance does not apply to the appellant's action which was
taken after six months.
The question was discussed at bar whether, assuming that section
87 did not apply, the appellant could, in the absence of proof of negligence,
succeed against the respondent which, in constructing its electric light line,
had exercised a power granted it by statute.
Such a defence is often made, and I may perhaps refer to the
recent decision of the Judicial Committee in Quebec Railway, Light, Heat and
Power Co. v. Vandry,
where their Lordships state on what grounds immunity from liability by reason of
the exercise of a statutory power may be claimed:
The application of enactments of this kind is familiar and
well settled. Such powers are not in themselves charters to commit torts and to
damage third parties at large, but that which is necessarily incidental to the
exercise of the statutory authority is held to have been authorized by
implication and therefore is not the foundation of a cause of action in favour
of strangers, since otherwise the application of the general law would defeat
the purpose of the enactment. The Legislature, which could have excepted the
application of the general law in express terms, must be deemed to have done so
in such cases.
The case made by the respondent does not come within the rule so
stated. The damage here was caused by reason of the fact that the respondent
improperly exercised its statutory authority, in other words, because, in
supporting by a guy wire the pole erected by it on a part of the highway, the
respondent neglected to protect the guy wire by a guard which would have
rendered it easily visible. If the statute be relied on as a defence the
respondent does not come within its terms, for it did not construct the line so
as not to endanger the public safety. The learned trial judge stated that he
had no doubt that had a board guard been placed on the wire, the accident would
not
[Page 622]
have occurred. The evidence shows that it
is customary to place guards over guy wires in places where the public may come
in contact with them. Such an accident and the causes that brought it about
could, I think, have easily been foreseen. I therefore think that the
respondent is liable for the appellant's damages.
In the appellate division Mr. Justice McCarthy, who held that the
respondent was liable, would have reduced the amount of damages granted by the
learned trial judge for necessary expenses of the appellant. It is now well
settled that where the jury, or the judge acting as a jury, has not taken into
consideration matters which should not have been considered, 'the verdict ought
not to be set aside or a new trial directed simply because the amount of
damages may seem excessive to an appellate court. Canadian Pacific Ry. Co. v.
Jackson.
Here the learned trial judge undoubtedly could consider the expenses to which
the appellant was put by reason of this accident. Even if he granted him some
expenses which I would be inclined to think were not reasonably connected with
the accident, still I feel that I should not interfere with his decision and
substitute my estimate of the necessity of the expenses for the one which he
formed at the trial.
I would therefore allow the appeal with costs here and in the
appellate division and restore the judgment of the trial court.
Appeal allowed with costs.
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