Supreme Court of Canada
Creveling v. Canadian Bridge Co., (1915) 51 S.C.R. 216
Date: 1915-03-15
Peter Creveling (Plaintiff) Appellant;
and
The Canadian Bridge Company (Defendants) Respondents.
1915: February 2; 1915: March 15.
Present: Sir Charles Fitzpatrick C.J. and. Davies, Idington, Duff, Anglin and Brodeur JJ.
On Appeal from the Court of Appeal for British Columbia.
Negligence—Defective system—Injury to employee—Evidence—Verdict—Practice—Exception to judge's charge—New points on appeal—New trial.
During bridge construction a travelling crane was operated on elevated tracks under a system which did not provide of signals on every occasion when it was set in motion and it was not provided with guards for the protection of workmen employed upon the elevated stagings. A signal was given, on starting the crane, at some distance from the workmen; shortly afterwards it came to a momentary stop and moved on again towards the workmen without any further signal and plaintiff was injured. In his action for damages, the plaintiff charged want of proper system and guards. The Court of Appeal set aside a judgment in favour of plaintiff, upon a general verdict by the jury, and ordered a new trial for the purpose of assessing damages under the British Columbia "Employers' Liability Act," on the ground that it had been admitted that there was a system in existence which, if properly carried out, would have been sufficient for the protection of the workmen.
Held, that, on a proper appreciation of the evidence, having regard to the course of the trial, the directions of the trial judge had presented the issues fully to the jury, and, there being evidence to support it, their verdict ought not to have been disturbed. Davies and Anglin JJ. dissented.
Per Duff and Brodeur JJ.—Where exception to the directions of the judge has not been taken at the trial or in the first court of appeal, it is, in the absence of special circumstances, too late to urge such objections upon a subsequent appeal to a higher court. White v. Victoria Lumber and Manufacturing Co. ((1910) A.C. 606) followed.
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APPEAL from the judgment of the Court of Appeal for British Columbia by which the judgment entered at the trial, on a general verdict by the jury in favour of the plaintiff, was set aside and a new trial ordered.
The circumstances of the case are stated in the head-note and the issues raised on the present appeal are set out in the judgments now reported.
S. S. Taylor K.C. for the appellant.
W. N. Tilley for the respondents.
THE CHIEF JUSTICE.—It appears to me quite obvious, after reading the pleadings and evidence, that both parties to this litigation assumed at the outset that the accident to the plaintiff was mainly attributable to the absence of a guard on the traveller and that little, if any, fault was chargeable to the system under which that traveller was operated. There is no suggestion in plaintiff's evidence on discovery or in his examination in chief at the trial that his injury was caused as the result of a failure on the part of those in charge of the traveller to give the proper signals to notify the workmen of its approach. His whole evidence is directed to prove that the construction of the traveller was defective in that there was no guard on the wheels. He says that when he was coming up from under the platform of the bridge he saw the traveller stop at a short distance, two or three feet, from the the place where he put his hand on the rail to steady himself, and he does not suggest, as he would naturally have done had the thought been present to his mind, that the traveller then moved forward and crushed his hand without giving him warning. His only griev-
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ance is that there was nothing in front of the wheels to attract his attention by physical contact with his hand to the danger to which he was exposed. It is only after the engineer, who controlled in part the working of the traveller, had testified to the practice of omitting signals after the momentary stop and the subsequent setting in motion of the traveller without sounding a whistle, and the divided control over the movements of the traveller which moved forward as much under the direction of the man under the lower platform at the spool as of the engineer above came out in the evidence that it occurred, if at all, to counsel to suggest this ground of negligence or defect in the system under which the traveller was operated. I am much impressed by what the judge said in his charge, in the extract quoted by Mr. Justice Anglin, and no attempt was then made to correct him. But, on the whole record, it appears that there was no proper system of signals such as it was the duty of the employers to provide for the due protection of their employees, and, in the alternative, if there was a proper system originally adopted it was negligently departed from to the knowledge of those in charge of the work. It is apparent on the whole evidence, as the case stood when it went to the jury, that the system of signals was, by reason of the divided control of the traveller, imperfect. All the engineer can say is that his engine did not stop at the time when the plaintiff says it was at a standstill, but under the system under which the traveller was operated the engine may have been revolving and the wheels of the traveller at a standstill if the clutch was off the rope or if the rope was not tight on the drum.
It is, therefore, apparent that there may have been
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and probably was a misunderstanding between the man at the engine and the man on the platform below, who co-operated in the control of the movements of the traveller, and to this the accident may be attributable. There also seems to have been a complete misunderstanding as to the system adopted for the proper warning of employees of approaching danger. The engineer, over and over again, affirms that the system did not require a signal to be given for what he calls "momentary stops," whereas all the workmen examined agree that each time the traveller started after having been at rest they expected to receive a signal and this undoubtedly seems to be a very reasonable view to take if the system was really intended to be effective.
How, indeed, could a workman, in the circumstances in which the plaintiff was placed, seeing the traveller at a standstill, decide whether it was stopped for a moment or for a lengthened period of time? If to this we add the divided control over the movements of the traveller, the conclusion that the system was defective would appear to be irresistible.
It is now argued, however, that this ground of liability was not properly put to the jury. I certainly am of opinion that it was put in issue by the pleadings. In plaintiff's statement of particulars it is alleged that his personal injuries were sustained by reason of the negligence of the defendants in respect to paragraph F 1. It is quite true, as forcibly urged by my brother Anglin, that the judge's charge was not as full or as complete on this ground of liability as it should have been. After full consideration I adopt the view of Mr. Justice Duff as to the duty of counsel and the powers of this court in such a case as we have now
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under consideration. We have the whole record before us. The issues may not have been very logically put to the court, the evidence may not have been skillfully marshalled, and the jury may not have been very clearly or fully directed, but, if on the pleading and evidence we are satisfied that substantial justice has been done, that both parties have had their day in court, it is not only our right but our duty to say so and avoid further costly litigation and no less ruinous delay. The old Latin maxim still has its place in our system, "interest reipublicce ut sit finis litium."
I would allow the appeal with costs.
DAVIES J. (dissenting).—I would allow this appeal but would direct a new trial alike on the common law claim and the statutory claim under "Employers' Liability Act" with costs to abide the event.
IDINGTON J.—The appellant's hand was crushed by a machine, called a traveller, used in bridge building whilst he was necessarily holding on to the rail over which the traveller ran.
He tells what he was doing. Before putting his hand on the rail for support he says:—
Q. Were you giving any directions to the workmen?
A. I turned around and saw the traveller was standing still, and I told the bucker up to straighten the needle beam.
*****
Q. And how long were you up in that position before your hand was cut?
A. I should judge about three seconds, probably a little more than that, five or six seconds; long enough to look down and tell him to go ahead and straighten it.
Q. Before you put your hand on the rail did you see where the traveller was?
A. Yes, sir.
Q. Where was it?
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A. Standing right back of me, about two feet from me, standing still.
Q. Standing still?
A. Standing still.
Q. What was it doing — what was the traveller doing?
A. It was standing still.
*****
Q. Was there any signal given with respect to the—immediately before the car moved on your hand?
A. When I stepped on the chord I could see the traveller standing there; there was no whistle blown when I got up there.
Q. How long before that had there been any signal?
A. How long before that?
A. Yes?
A. I could not say.
Q. Then up to the time of your being injured, and whilst you were on the bridge you know of no signal?
A. No signal; no whistle blown.
Q. No whistle blown. Had a whistle blown what would you have done?
A. Got back on the staging.
Another witness corroborates this as follows:—
Q. What attracted your attention when Creveling was injured?
A. I heard him holler, and then I came up to see what had happened.
Q. Was he injured?
A. He was injured.
Q. Before he was injured, right at the time he was injured, and before within a reasonable length of time, was there any signal given by the engineer?
A. No.
Q. Have you any doubt about it at all?
A. No.
The man operating the engine alleges he gave two blasts when the traveller started from a point a hundred feet or more to the rear of where appellant and his mate were working, but does not pretend to have given any later.
We have no proof of any rules laid down by the respondent for the protection in this regard of the men who were engaged in the dangerous work in question. All, including appellant, who speak on the sub-
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ject, say the men depended on the warning of the whistle at the starting of the traveller in motion. If that had been rightly observed appellant admits its protection would have sufficed for him though he and others say besides that a guard projecting ahead of the traveller is in common use in many places. No such guard was used by respondent. No statutory provision relative thereto seems to exist except what indirectly bearing thereon exists in the "Employers' Liability Act."
The man in charge of the engine indicates that the only system he had observed was to give a blast or two blasts when he started the engine to propel the traveller on its way, and that if through any cause the traveller had to be stopped, neither he nor any one else had any duty imposed by the respondent to take steps to give further warning when starting up again to proceed further forward.
I cannot think that was such an adequate system as would discharge the respondent from its common law liability. A trap seems to have been set instead of an effectively protective system.
There seems to have been an absence of such protective measures as indicated to be necessary by the principle applied in Smith v. Baker & Sons, and many other cases since.
Three charges of neglect of that kind were set out in the statement of claim, and a good deal more attention was paid at the trial to the want of a guard than to that involved in the said system or want of system, but that does not, when all were plainly before the court, help respondent, yet its counsel urges for that reason the verdict should not stand.
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A plaintiff is entitled to hold the judgment awarded him as result of a general verdict when there is evidence upon which the jury could properly find such verdict; and that even though the learned trial judge had overlooked the evidence and its possible application in law and the counsel had been warring about something else, possibly having only a remote relation to the common sense view of the case; always provided, however, that the judge has not misdirected the jury.
The evidence quoted above was such and I see no misdirection.
If there had been a proper guard then the question might have arisen if that should not be held sufficient in itself.
I think the appeal should be allowed with costs.
DUFF J.—In his statement of claim the plaintiff charges negligence as follows:—
3. The said personal injuries, which the plaintiff sustained as aforesaid, were caused by reason of the negligence of the defendant, particulars of which are as follows:—
(a) In not having any system, or in the alternative any proper and sufficient system of signals to carry on the work of construction in safety to the plaintiff.
(d) In not having guards or other protection on or in front of the wheels of the said traveller.
The jury found a general verdict in favour of the plaintiff on his claim for damages in respect of the respondents' alleged liability at common law. The Court of Appeal set aside this verdict and ordered a new trial for the purpose of assessing damages under the "Employers' Liability Act." This judgment of the Court of Appeal was based on the view taken by all the members of the court that the plaintiff had ad-
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mitted the existence of a "system" of signals which, if properly carried out, would afford sufficient protection.
With respect, I think the Court of Appeal misapprehended the effect of the evidence. There was evidence no doubt given on behalf of the plaintiff and the plaintiff himself stated in his own testimony in so many words, that there was a "system" of signals which, if carried out, would have been satisfactory. But it is quite obvious that all the witnesses while using the word "system" were speaking of the practice of signalling as they had observed it. From this practice, as they saw it, they naturally enough inferred that it was the duty of the engineer to see that a signal was given by a blast of his whistle whenever (the travelling derrick having stopped) it was about to be set in motion again. But the engineer himself was called as a witness. He was the only witness who was competent to give evidence at first hand of anything which could properly be described as a "system" in any relevant sense, that is to say, of a practice which under his instructions, express or implied, it was obligatory upon him to observe in the execution of the duties of his service. He explicitly denies that there was any such obligatory practice requiring him to give any signal after what he described as "a momentary stop." And he gives evidence which is intended to convey the impression, and may very well have convinced the jury that (owing to the manner of construction of the travelling derrick and the fact that the control of the locomotive apparatus was not in the hands of the engineer himself, but in the hands of others who were not within his view while working
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the apparatus) it was quite possible for the derrick to be brought to a stand still and set in motion very shortly afterwards without any signal being given; and that in the circumstances it was not practicable to provide, and the "system" such as there was, did not in fact provide for the giving of a signal in such cases.
This evidence appears to have been overlooked in the court below; and having regard to it, it seems impossible to sustain the judgment setting aside the verdict on the ground on which that judgment was placed by the learned judges who took part in it. Mr. Tilley now argues, however, that the negligence charged in paragraph 3 (d), namely, the absence of a guard, is a charge which cannot be sustained on the evidence. And he contends that as the charge put forward in paragraph 3 (d) was the only charge the plaintiff attempted to establish in his own case in chief and the only ground of negligence submitted to the jury, the action must be dismissed, unless it should be thought just that as an indulgence to the plaintiff there should be a new trial for the purpose of enabling the plaintiff to establish a case reposing on the ground of negligence charged in paragraph 3 (a) —absence of a sufficient system of signals. I think this ingenious analysis quite fails to do justice to the significance of the evidence in its bearing upon the case advanced by the appellant at the trial. The plaintiff offered evidence to shew that the dangers arising from the operation of such machines were commonly avoided by mechanical protection consisting of a guard which (sweeping the rails upon which the derrick moves) automatically gives warning (by physical contact with his person) to any workman exposed to the peril
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of such mishaps as that from which the appellant suffered. It was not denied by the plaintiff's witnesses, as I have already indicated, that the giving of signals by blasts after all stops, would, if faithfully observed, be a practice affording sufficient protection; but it was contended that the faithful carrying out of any such practice could not be, in the circumstances, implicitly relied upon and that it ought to be supplemented by the mechanical warning suggested. That was the case put forward by the plaintiff, and it may be that it ought to fail if it rested solely upon the testimony offered on his behalf in his case in chief. But the answers of the engineer to which I have referred, brought out in cross-examination on behalf of the plaintiff, affords evidence to the benefit of which the plaintiff is as much entitled as of the evidence given by his own witnesses called by himself. Those answers afford ample grounds, as I have already pointed out, for a finding by the jury that the so-called "system" or the practice in operation was, for the reasons I have above mentioned, as the plaintiff contended it must be, quite valueless as a protection in such circumstances as those which led to the mishap from which the plaintiff suffered. It was, therefore, open to the jury to find that the failure to provide some such additional safeguard as the mechanical provision suggested constituted in the circumstances a default in performance of the obligation of the defendant company to take reasonable measures for the protection of its employees in a situation which in the absence of such precautions constantly exposed them to the risk of injury; the evidence of the respondents' foreman indeed is quite sufficient to support a finding
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that a mechanical guard effective for the purpose suggested could be provided without difficulty.
I see no reason whatever to suppose that this issue was not placed before the jury. The evidence upon which the respondents rely and which prevailed with the Court of Appeal as shewing the existence of a satisfactory and sufficient system of warning was brought out by the respondents' counsel in cross-examination of the plaintiff himself deliberately and beyond all doubt with the object of presenting an answer to the complaint of insufficient provision for warning. We are asked by the respondents' counsel now to assume that, as bearing upon the issue whether or not sufficient provision was afforded for warning the workmen of the movement of the crane, counsel for the respondents at the trial failed to bring before the jury this evidence obtained from the plaintiff and his witnesses for that very purpose and to ask the jury to consider whether or not the complaint made by the plaintiff of insufficient means of warning was answered by it.
It is incredible that any such course was in fact pursued. It is incredible indeed, in view of the evidence given on the cross-examination by the engineer, that the question of the adequacy of the alleged "system" should not have been put before the jury as one of the elements governing the determination of the question upon which the learned trial judge specifically asked them to pass, namely, whether in the circumstances the failure to provide a mechanical "guard" constituted in contemplation of law a neglect of the respondents' duty to the appellant. Since there was, as I have said, evidence sufficient to sustain the
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finding of the jury on the issue just mentioned upon which they admittedly did pass, it is unnecessary to say more upon the points argued by counsel in support of the judgment in the court below.
It is suggested, however, from the Bench, that the proper judgment here was not to restore the judgment of the learned trial judge but to direct a new trial. For several reasons, I think such a judgment by this court would be unjust. But it should be sufficient to observe that the suggestion is not based upon any alleged misdirection or want of direction, calculated to mislead the jury, of which any complaint whatever has been made by the defendant company at any stage of the proceedings. Indeed, it is manifest that at no stage of the proceedings has the defendant company suggested the propriety of a new trial. From the beginning the verdict has been attacked by it on the ground, and only on the ground, that the finding on the issue submitted specifically by the learned trial judge is not reasonably supported by the evidence. That contention rejected, the whole attack on the verdict — the question of damages and the question of volens apart — entirely fails.
That being the case even if the learned trial judge's charge were open to serious objection, and I think it is not, it is now too late for the defendant company to ask for a new trial in this court.
In White v. Victoria Lumber and Manufacturing Co., at page 612, Lord Shaw of Dunfermline, in delivering the judgment of the Privy Council, said:—
For in their judgment it is not open to a party who has not used the opportunity at. the trial, nor, either in writing or in argument, used the opportunity in the Court of Appeal, to state for the first
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time at their Lordships' Bar an objection to the verdict of a jury on the ground of misdirection. It is, of course, possible that some highly exceptional case might arise, but in general it may be laid down that neither party to proceedings before the Privy Council should be permitted to start fresh points of objection which have been open to him and have been neglected at opportune and convenient stages of the litigation in the Colonial Courts. It is not in accordance with justice to the parties that, after an appeal has been made to the Privy Council, they should for the first time learn what the true nature of the case to be made against them is.
I think this states the rule by which this court has been and ought to be guided.
As to the defence of volens it appears to me that it would be a hopeless contention that the jury were bound to find in face of the engineer's evidence that the plaintiff fully understood the danger to which he was exposed by reason of the defects admittedly unknown to the plaintiff in the alleged system of signals. As to damages I do not think any sufficient case has been made out for interfering with the verdict of the jury.
ANGLIN J. (dissenting).—In my opinion there was evidence on which a jury might (I do not say it should) have found the defendants liable at common law either because the system of warning signals provided by them was defective or because, though as perfect as it could reasonably be made, it left the workmen so unnecessarily exposed to danger that it was negligence in the defendants as employers not to have equipped the "traveller" with some guard or mechanical contrivance to give warning, which was said to be practicable and in common use. Although there were some admissions made by the plaintiff that if the system of signals had been properly carried out by the engineer it would have afforded adequate protection,
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the evidence of the engineer himself scarcely pointed to that conclusion. But as the case was left to the jury there was no issue submitted to them as to the sufficiency or insufficiency of the signalling system. The whole direction as to the common law liability of the defendants is contained in this single paragraph of the charge:—
I will deal with common law first. When a plaintiff comes in court in an action of this kind the onus is on him, in the first place, to prove the negligence of his employer; that means that he must put his finger on something and say to you that the employer failed to live up to the standard which the law imposed upon him, which standard is that the employer must not subject his men to unnecessary risk, or, in other words, that he must give his men a safe place to work under all the circumstances of the occupation that he is employed in. You, gentlemen of the jury, are to use your common sense in determining whether in this particular accident this man was given a safe place to work, and whether subjected to unnecessary risks, remembering it is the duty of the employer not to subject his employees to such risk, or, to put it the other way, he must give his employee a safe place to work; and you will remember also, that the plaintiff must bring before you affirmative evidence that convinces you that the probabilities are, at any rate, on his side that he was not given a safe place to work, or he was subjected to unnecessary risk. This case has been put to you very clearly; more clearly I may say than cases of this nature often are. Here the plaintiff fixed on one thing to found his common law action upon. He says that the machine should have been guarded and he says that in consequence of its not being guarded he was not given a safe place to work under all the circumstances. As I say, it is for you to say whether that is so, or not; if that is so, and if you find affirmatively that he has proven that, then he has made out a case affirmatively and at common law the employer is liable unless he can meet that case with some defence.
Under this direction the jury may have found the defendants liable for not having provided a mechanical warning device, although their signalling system was perfect in itself and adequate as a means of warning, if carried out, and the defendants very fairly argue that it is a reasonable inference that that was
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in fact their finding. It is true the plaintiff now contends that the evidence shews that the signalling system was defective in not providing for momentary stops and that it was inadequate because the engineer, who was charged with the duty of signalling, had not complete or immediate control of the movements of the traveller and his particulars of negligence covered these points. But the plaintiff allowed the jury to be instructed that "he fixed on one thing to found his common law action upon," namely, the absence of a guard. In effect the jury were told that there was no case before them of a defective or inadequate signalling system as a ground of action, either because the evidence did not make it, or because the plaintiff did not base his claim upon it. Were they not also, in effect, told that the question as to the necessity for a guard or mechanical warning device did not depend on these considerations?
They were not told that the duty of the employer did not require him to provide every conceivable protection for the workmen or to take every precaution that could be suggested, but was limited to furnishing such safeguards as were reasonably sufficient to ensure them against injury. They were not instructed that if the system of signals provided was adequate for that purpose the defendants could not properly be found negligent for having failed to do something more. It is true that they were told that it was for them to say whether it was negligent on the part of the defendants not to have guarded the machine "under all the circumstances." But these circumstances included the engineer's failure to give signals, and the jury were not told that if this failure was due merely to the personal fault of the engineer and not
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to a defect in the system of signalling as prescribed by the defendants, that was something which they should not take into account in considering the necessity for a mechanical guarding device or whether the defendants were negligent in not having supplied it. They were not told that the defendants were not answerable at common law if, but for the personal fault of the engineer, the plaintiff would have received sufficient warning.
On the whole I think the charge was inadequate and that the verdict at common law cannot be sustained because of non-direction upon points on which the jury should have been instructed.
I have not overlooked such well-known cases as Nevill v. Fine Art and General Ins. Co., and White v. Victoria Lumber and Manufacturing Co., where the necessity of taking with precision and in detail at the trial and in the first Court of Appeal objections to a verdict on grounds of misdirection or non-direction is insisted upon. But I think this is one of those exceptional cases, referred to by Lord Shaw of Dunfermline in the last cited case, in which the omission to take the objection should not prevent the court ordering a new trial. Upon the general verdict rendered, it is, in view of the defective and inadequate charge, quite impossible to know whether the jury based their conclusion on considerations which would justify a finding of liability at common law. For this both parties are to blame — the plaintiff quite as much as the defendants — though the defendants are, of course, alone responsible for the failure to make specific objections to the charge a ground of appeal to the Court of Appeal of British Columbia.
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This case affords a striking illustration of the mistake of allowing juries by returning a general verdict to evade answering direct questions put to them in order to make their findings of fact certain and definite. Where, as in this case, the charge is meagre and there are several issues presented a general verdict is far from satisfactory and must often result in uncertainty as to the ground on which the jury has proceeded.
BRODEUR J.—I concur with Mr. Justice Duff.
Appeal allowed with costs.
Solicitors for the appellant: Taylor, Harvey, Grant, Stockton & Smith.
Solicitors for the respondents: Martin, Craig, Parkes & Anderson.
[1897] A.C. 68, at p. 76.
[1910] A.C. 606, at p. 612.
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