Stowe;
v.
The Grand Trunk Pacific Railway Co.
1918: October 11, 21.
Present:—Sir Charles Fitzpatrick C.J. and Davies, Idington,
Anglin and Brodeur J.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF
ALBERTA.
Railways—Animals killed by train—Negligence of
owner—Evidence—Hearsay—Admissibility.
[Page 665]
APPEAL from the judgment of the Supreme Court of Alberta,
Appellate Division,
reversing the judgment of Scott J. at the trial and dismissing the appellant's
(plaintiff's) action.
The appellant, living in the same house with his parents and
brothers, was the owner of several horses which were accustomed to run and were
looked after in conjunction with the animals of his father and brothers within
the boundaries of his own and his father's and brothers' land, there being
openings between the sections. Four animals of the appellant got upon the right
of way of the respondent company and were killed by a passenger train. The
appellant knew nothing of the accident except from what was told him by his
brother. In his evidence, the appellant stated that his brother told him that
he had "left the gate open." The trial judge held that this statement
was merely hearsay and not admissible; and it being the only account of the
accident, the court held the respondent liable. The Appellate Division, held
that this testimony should be regarded as an admission or declaration by the
appellant himself and therefore entirely proper evidence; and it reversed the
judgment of the trial judge and dismissed the action.
On the appeal by the plaintiff to the Supreme Court of Canada,
the court, after hearing counsel for
[Page 666]
both parties, reserved judgment, and,
at a subsequent date, dismissed the appeal with costs, Idington J. dissenting.
Appeal dismissed with costs.
C. H. Grant for the appellant.
D. L. McCarthy K.C. and N. D. Maclean for the
respondent.
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