Supreme Court of Canada
Canadian
National Railways v. Lancia, [1949] S.C.R. 177
Date:
1949-01-07
Canadian National Railways (Defendant) Applicant;
and
Joseph Lancia es qual (Plaintiff) Respondent.
1948: November 15, 16; 1949: January 7.
Present: Rinfret C.J. and Kerwin, Taschereau, Kellock and
Locke JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE,
PROVINCE OF QUEBEC.
Railways—Negligence—Jury trial—Evidence—Trespasser boy
Jell off moving freight car—Finding of jury that railway employee's shouting was
a fault contributing—Liability of railway company—Province of judge and
jury—Judgment after verdict—Arts. 475, 491, 60S C.C.P.—Art. 1053 C.C.—Railway
Act, R.S.C. 1927, c. 170, s. 443.
Respondent's minor son, age 9, boarded a freight car at the
corner of Murray and Wellington Street, in Montreal, which car formed part of a
then stationary freight train. The train then started to move and while it was
in motion, the boy still holding on, one of appellant's employee, from the
caboose of the train, shouted to him to get off. The boy, jumped off, fell and
was injured. It is undisputed that the boy was a trespasser. The jury found
that the boy, immediately prior to the accident, was riding on the ladder of
one of the cars and that the appellant's employee, one Tremblay, was
in the cupola of the caboose when he shouted at the boy the last time. The
verdict of the jury was that the accident was due to the fault, negligence and
imprudence of both the boy because he had no 'business on the train and the
appellant's employee for shouting. The jury assessed the contribution of each
at fifty per cent. Appellant moved the Court to set aside the jury's verdict on
the ground that the fault against the appellant, as determined by the jury, was
not a fault in law in the circumstances of the case. The trial judge refused
the motion as did the majority of the Court of King's Bench.
[Page 178]
Held: The Court should have declared that, in the
circumstances, the shouting, as found by the jury, did not amount to a fault in
law and should have dismissed the action. C.P.R. v. Anderson [1936]
S.C.R. 200; Grand Trunk Ry. v. Burnett [1911] A.C. 361; Addie v.
Dumbreck [1929] A.C. 358; Latham v. Johnston (1913) 1 K.B.
398 and Metropolitan Ry. Co. v. Jackson (1877) 3 A.C. 193
referred to.
APPEAL from the judgment of the Court of King's Bench,
appeal side, province of Quebec , confirming (McDougall J.A. dissenting)
the decision of the trial judge, Tyndale J., refusing to reject the verdict of
the jury that appellant was at fault and awarding damages to respondent.
The material facts of the case and the questions at issue
are stated in the above head-note and in the judgments now reported.
Lionel Coté K.C. for the appellant.
Louis Fitch K.C. for the respondent.
The Chief Justice:—On
the 5th of March, 1943, between eight and nine a.m., the respondent's minor son
Angelo boarded a freight car at the corner of Murray and Wellington Streets, in
Montreal, which car formed part of a then stationery freight train which
started to move.
Whilst the boy was holding on to the then moving freight car
and waiting for the train to come to a stop, one of the appellant's employees
stepped out of the caboose of the train and, seeing young Lancia, shouted to
him to get off. Young Lancia states that he became frightened, jumped off the
moving train and a freight car passed over one of his legs. The employee in
question then got back into the caboose and stopped the train.
It is established, beyond any possible question of doubt,
(as found by the learned trial judge) that Angelo Lancia (the boy) was at all
relevant times a trespasser on the property of the appellants.
The matter came before a jury and the latter found in its
verdict that the respondent's minor son, just before he fell under the train,
was riding on the ladder of one of the cars and that the appellant's employee,
one Tremblay, was in the cupola of the caboose when he shouted at the boy the
[Page 179]
last time. Another finding of the jury was that at the date
of the accident the boy was capable of discerning right from wrong.
The jury was put the questions which are usually put in
similar trials in the Province of Quebec. They found that the accident was not
due solely to the fault, negligence and imprudence of the appellant or its
employees, nor solely to the fault, negligence and imprudence of the
respondent's minor son, adding to their answer in that respect a rider reading
as follows:—
The affirmative answer is based on the fact that the boy got
on the train, got off and on again and persisted in doing so despite the
trainman's shoutings.
The verdict was that the accident was due to the fault,
negligence and imprudence of both the respondent's minor son and the
appellant's employee, or its employees, and stated that the respective fault,
negligence and imprudence consisted in:
Tremblay for shouting and the boy had no business on the
train.
They assessed the damages as a result of the accident in the
total amount of $17,800, but, as they arrived at the conclusion that there was
common fault, they fixed the proportion in which the respondent's minor son and
the appellant, or its employees, contributed to the accident at fifty per cent
each, as a result of which the amount allowed the respondent, who was sueing in
his quality as tutor of his son, was the sum of $8,900.
After the verdict the appellant moved the Court to set aside
the jury's verdict and dismiss the respondent's action on the ground that the
fault against the appellant, as determined by the jury, was not a fault in law
in the circumstances of the case that it did not constitute a fault, since what
the appellant's employee, Tremblay, did was the only reasonable thing he could
do in the circumstances and showed sound judgment on his part; that it was
absolutely clear from all the evidence that no jury would be justified in
finding any verdict other than one in favour of the appellant; that, at all
events, the facts as found by the jury required a judgment in favour of the
appellant, as the fault attributed to the latter at the most would constitute
an error in judgment only, for which the appellant could not be held liable;
that it was within the province or
[Page 180]
jurisdiction of the presiding judge to decide whether or not
the fault or negligence found by the jury constituted a fault in law; that the
jury's finding in that respect clearly indicated misunderstanding by the jury
of the presiding judge's directions as to the duty or obligation of the
appellant towards the respondent's minor son, a trespasser, or refusal on the
part of the jury to follow the directions of the presiding judge as to such
duty or obligation, and that the verdict was contrary to law and also to the
evidence and ought to be set aside.
In his judgment the learned trial judge stated that he would
have had no hesitation in answering the questions put to the jury as to whether
just before he fell under the train the boy was running beside the train with
his hand grasping a rung of the ladder or some other part of one of the cars;
which answers, in the opinion of the learned judge, would have been in
accordance with the weight the evidence and would obviously have required a
decision in favour of the appellant, because it would then have been impossible
to find any fault against Tremblay, the employee. The learned judge stated that
it was only with "very considerable hesitation" that he accepted the
answers of the jury.
With respect to the appellant's motion contending that, even
accepting the majority answers to the four specific questions of fact, the
fault found against Tremblay by the majority of the jury was not a fault in
law, here again the learned judge stated that, acting as a judge alone, he
would unhesitatingly have decided in favour of the appellant. He added:—
In view of the admitted fact that Angelo Lancia was a trespasser,
it seems clear that Tremblay committed no breach of the obligation or duty owed
to him.
However, the learned judge concluded that as nine out of
twelve presumably reasonable men considered that Tremblay's shouting at the boy
constituted a fault, he "very reluctantly" refused to reject the
verdict.
Likewise, when judgment was rendered in the Court of King's
Bench (Appeal Side) , where the verdict and judgment of the
trial Court was affirmed (E. McDougall, J.A. dissenting), St. Jacques J.A. in
his reasons refers particularly to the statement of the trial judge that he
[Page 181]
very reluctantly refused to reject the finding of the jury
to the effect that "Tremblay's shouting at the boy constituted a
fault". St. Jacques J.A. added that since the jury found that such a fact
was a fault and applying what he construed to be the meaning of a certain
passage of the judgment of Mr. Justice Duff, as he then was, in the case of Napierville
Junction Rly. Co. v. Dubois , he concluded his reasons by saying:—
Comme la Cour Supérieure, je me crois lié par
le verdict ainsi motivé et, conséquemment, je rejetterais l'appel avec dépens.
Marchand, J.A. considered the answers of the jury as being
pure questions of fact without any implication of law. After stating that he
could not say that the verdict is clearly against the weight of evidence
(C.C.P., Sec. 498, s.s. 4), he was of the opinion apparently that such a
consideration concluded the duty of the judge, in view of Article 501 which
states: "A verdict is not considered against 'the weight of evidence
unless it is one which the jury, viewing the whole of the evidence, could not
reasonably find." However, the learned judge said that he could not make
up his mind to come to that conclusion. He stated that he did not know how he
himself would have dealt with the facts, but that, at all events, he would not
have considered a contrary finding of fact altogether unreasonable. He referred
to what Sir Lyman Duff, C.J.C., said in the case of Canadian Pacific Railway
v. Anderson , with regard to the duty of the owner
towards a trespasser, that the owner should not intentionally injure the
trespasser, not do a wilful act in disregard of humanity towards him and not
act "with reckless disregard of his presence".
Then the learned judge pointed out that, with respect, he
could not subscribe to the opinion of the trial judge that if a verdict of a
jury finds fault which is not a fault in law, he (the trial judge) is bound to
accept the verdict for the simple reason that it is the jury's finding. The
learned judge very properly says that it seems impossible to accept such a
principle, a principle that if the verdict of a jury finds a so-called fault
which does not constitute a fault or a delict in law, nevertheless the
trial judge must accede to the verdict and give judgment accordingly. In the
view of Marchand J.A. that would be unjust, contrary
to law, and it would be the duty of the presiding judge to
refuse to admit and to sanction such a verdict. There is no doubt, he added,
that the young boy was a trespasser and that he placed himself in the dangerous
position in which he found himself, that he had exposed himself to the danger
of a fall which might have been provoked by an abrupt movement of the car, or
by the gradual ebbing of his strength. But, in the view of the learned judge,
Tremblay's warning was an order to the boy to let go of the car and to jump to
the ground—an order which, according to the learned judge, was evidently and
obviously dangerous, with the result that the boy, seized with fright, loosened
his grip on the rung of the ladder and fell a victim to the danger that would
necessarily result, and this should have been obvious to all and to Tremblay in particular. The learned judge stated that this was
an imprudence towards the child which had a direct effect on the accident which
took place subsequently. Accordingly, Marchand J.A.
concluded that the appellant company had failed to demonstrate that the verdict
of the jury was unreasonable or contrary to law and on that ground he dismissed
the appeal.
In his dissenting judgment McDougall J.A. expresses this
view:—
If, in law, such finding does not constitute fault within
the purview of the law (C.C. 1053), the very basis upon which the action rests
is demolished. It would be idle to speculate as to the effect of such finding.
Without negligence, in. a case of this nature, there can be no liability. As to
the respective functions of the Judge and Jury in such circumstances, I can do
no better than cite the clear and direct remarks of St. Jacques J. in the case
of Bouillon v. Poiré :—
Pour conclure que quelqu'un est en faute, il
faut d'abord savoir ce qu'il a fait, ou ce qu'il a omis de faire.
C'est là le rôle du jury. Il doit constater
après avoir entendu la preuve, si les faits allégués ont été prouvés. Il ne
devrait pas aller plus loin. Quand il a fait cette constatation, le rôle du
juge commence alors. C'est à lui qu'il appartient de décider si les faits
constatés par le jury ont été imputés comme faute au défendeur et si, en droit,
ces faits comportent en réalité une faute.
To reiterate the statement of St. Jacques J.A., just quoted,
it is for the judge to decide whether the facts found by the jury ought to be
imputed as a fault to the appellant and if, in law, those facts, as found,
really constitute a fault.
[Page 183]
McDougall J.A. continued that it is, he considered, beyond
question that upon the judge, not upon the jury, rests the responsibility of
declaring whether or not the facts as found by the jury constitute a fault in
law. He added that in dealing with mixed questions of fact and law, notwithstanding
the jury's answer, the judge retains his decisive authority to pronounce upon
the law. It is clear, he says, that in the present case the learned presiding
judge did not consider that such facts constituted negligence because he (the
trial judge) said it was with "very considerable hesitation" that he
accepted the answers of the jury. Nevertheless, the learned trial judge gave
effect to these answers, which amounted to saying that "Tremblay's
shouting" constituted a fault for which the appellant company and its
employees should be held responsible.
Now, the finding of the jury did not mean anything more than
that Tremblay shouted. It was for the learned presiding judge to decide
whether, in the circumstances of the case, that fact constituted a fault in
law.
I agree with McDougall J.A. when he says:—
What is not a fault in law can scarcely become such by the
mere erroneous or ill-considered finding of the jury to that effect. They go
beyond their sphere of action and usurp the functions of the judge when they
assume to trench the question of law by declaring an actionable fault an act
which is not such.
McDougall J.A. goes on to say:—
With the greatest deference I cannot find that the shout of
the brakeman, in the circumstances, constitutes actionable fault. His acts do
not constitute a breach of the principle of law stated by the learned trial
judge in his charge to the jury when indicating the duty owed by the appellant's
employee to the victim of the accident … Tremblay was exercising his best
judgment in a difficult situation, not of his choosing, but cast upon him by
the actions of the victim of the accident, and the very most that can be said
is that in the imminence of the danger he apprehended, Tremblay may have
committed an error of judgment in the course which he pursued.
In my opinion he did what any reasonable person placed in
the same circumstances would have done. To have done nothing would have exposed
him to even greater criticism.
From a slightly different angle, I find it difficult to say
that the shout of the brakeman was the direct and foreseeable cause of the
accident (again a question of law). The element of a sure and certain relation
between cause and effect is distinctly doubtful. The act of the brakeman may
possibly be an "incuria", but not an "incuria dans
locum injuriae". (See Davey v. L. & S. W. Ry. Co.
)
[Page 184]
McDougall J.A. then referred to the opinion expressed by the
Chief Justice of the Province in Collard v. Farrar ,
which seems very much in point in the present case, and also to the judgment of
this Court in Grand Trunk Railway v. Labrèche .
Gagné J.A., agreeing with the majority of the Court appealed
from, recited the answer of the jury to the effect that the fault, negligence
and imprudence of the appellant's employee, Tremblay, "for shouting",
was the only fault found against Tremblay and that this shouting consisted of
the word "Get off, get off". On that point he added that the verdict
of the jury must be accepted, because there was certain evidence to support it,
even though it was weak. Tremblay did shout, he said,
since he admitted it himself, but Tremblay did so because
he thought that that was the best means of protecting the boy. Shouting alone
cannot constitute a fault, the learned judge stated, but he believed that it
must be interpreted broadly when taking into account all the other
circumstances and more particularly the allegations of the declaration that one
must conclude that this answer of the jury blames Tremblay for
having shouted to the boy to get away, or to climb down from the train (it was
evident to the jury that the boy was on the train) at a time when the train was
moving and that Tremblay was aware of the danger that
might result. In the opinion of Gagné J.A. that is the
fault which the verdict attributes to Tremblay.
The learned trial judge very clearly stated what the
doctrine was with respect to the obligations of an owner towards a trespasser.
After such direction, the jury found the employee of the appellant company
guilty of a fault. It is argued that the jury did not limit itself to the
question of passing upon the facts alone, but that it has passed upon the law
as well and that, therefore, this Court must intervene. In the opinion of Gagné J.A. that is the question to be decided in this case and
he remarked that to him it did not appear to have been a simple question,
because the answer of the jury raises a mixed question of fact and law. He very
properly said that it was for the jury to determine the facts which gave rise
to the accident; but he went on to say that in that regard the presiding judge,
[Page 185]
as well as the Court of King's Bench (Appeal Side),
cannot intervene unless the answers are manifestly and clearly against the
"weight of evidence. On the other hand, the jury should not be called upon
to decide a question of law.
Gagné J.A. continued by saying that the jury must
necessarily declare whether there was fault or not; that that is how the jury
characterizes the facts which it finds to have been proven. The learned judge
asked himself if that were within the province of the jury and answered by
saying: "I believe it, in view of the Canadian, as well as the English,
jurisprudence." Basing his decision on that alleged jurisprudence and on
what he describes as the "doctrine", he states that he finds himself
bound (whatever might be his opinion as to the responsibility of the respondent
with regard to the accident) to decide that the Court cannot intervene, the
jury having determined the facts upon the evidence, evidence which the Court
may consider insufficient but which, nevertheless, is on record, and also
having passed upon the question of responsibility after having been correctly
directed on the law governing the parties.
In the opinion of MacKinnon J. (ad hoc) there
was manifest inaccuracy in the evidence which led to the jury's answers as to
whether the boy ran along the train or was standing on the ladder of the car
until he slipped and fell from the train. He pointed out that he could not
possibly have got on the third car from the caboose, which was a considerable
distance east of where the boy said he got on the train. He added:—
It is clear from the judgment that the learned judge was
greatly embarrassed in having to arrive at the decision he did and that can be
readily understood. I am entirely in agreement with him when he says that he
would have no hesitation in answering question 2-A in the affirmative and
question 2-B in the negative, as being in accordance with the weight of the
evidence. However, there is sufficient evidence to make it impossible to say
that the verdict was one that, taking the evidence as a whole, the jury could
not reasonably find.
The learned judge continued:—
The learned judge also had difficulty in dealing with the
finding of the majority of the jury that Tremblay had committed a fault in
shouting. Although it seemed clear to him that Tremblay had
committed no breach of any obligation or duty owed by him to a trespasser, he
was of the opinion that as his charge to the jury was as clear as he could
[Page 186]
make it, and as nine out of twelve jurors considered
Tremblay's shouting constituted a fault, me was reluctantly obliged to accept
this finding. I find myself in the same position …
It is evident that the jury must have considered that
Tremblay when he shouted acted either with the intention of injuring Angelo or
did a wilful act with disregard of humanity towards him or acted with reckless
disregard of his presence.
The jury was instructed that if they found that what
Tremblay did was an error of judgment, then there was no fault. Accordingly the
finding of fault on the part of Tremblay means that the
jury considered that there was no question of any error in judgment. My opinion
that there was an error in judgment cannot be substituted for the opinion of
the jury. I consider that Tremblay was faced with a
situation in which he had to act quickly and what he did should be considered
an error of judgment. Angelo was on a moving train picking up speed and had got
on with the intention of getting off at or near Bridge Street. His position was
rapidly getting more dangerous as the train proceeded. Shouting to the boy to
hang on might have frightened him more than telling him to get off. Tremblay says the only means of stopping the train was by the
emergency air-brake in the caboose, which would probably have jolted Angelo off
the train had he applied it.
MacKinnon J. concludes:—
I am reluctantly forced to accept the verdict of the jury as
confirmed by the judgment a quo and to dismiss the appeal, with
costs.
The law of Quebec on this point is (C.C.P., article 475):
The jury finds the facts, but must be guided by the
directions of the judge as regards the law.
It is quite clear from this Article of the Code that the
Quebec law is exactly the same as under the common law, that is to say, that
the jury's province is exclusively limited to the finding of facts and that the
law is exclusively the province of the presiding judge. It may be, as suggested
by Mr. Justice Rivard, formerly of the Court of King's Bench (Appeal Side), at
p. 75 of his book entitled "Manuel de la Cour d'Appel",
that the wording of the questions in the present case (it has invariably
been the same in all jury trials in the Province of Quebec) is the source of
difficulties which can be avoided by limiting the questions put to the jury to
the facts purely and simply. However, no criticism can be made of the questions
as they were put in the present case, since they followed the invariable
practice in the Province.
It is clear, however, as the learned judges both in the
Superior Court and in the Court of King's Bench (Appeal Side) have
said, that when the jury was asked to decide the fault that caused the accident
that was putting.
[Page 187]
a question of mixed law and fact. Notwithstanding the form
of the question, it cannot detract from the principle laid down in Article 475
of the Code of Civil Procedure, nor from the well-established principle that
the jury's verdict must be limited to the finding of facts and that the law is
exclusively the domain of the courts.
With respect, it was, therefore, the duty of the presiding
judge and of the learned judges forming the majority in the Court of King's
Bench (Appeal Side) to accept the verdict of the jury in
the present case as a finding of fact that Tremblay had shouted and perhaps
also that such shouting was one of the causes of the accident, the other cause
being, as found by the jury, that "the boy had no business on the
train". The result of the jury finding was that the boy was a trespasser
and, in its opinion, the shouting at the boy was a contributory cause of the
accident.
It remained, however, for the Courts to decide whether, in the
circumstances, the mere shouting, as found by the jury, amounted to a fault in
law, or, in the language of the Civil Code (Article 1053) amounted to a fault
or "offence" within the four corners of that section of the law.
It can be seen, from the review I have made of all the
judgments of the learned judges both in the Superior Court and in the Court of
King's Bench (Appeal Side) (1), that not only was the shouting of Tremblay not
an offence or fault in the circumstances, but, moreover, it was not a contributory
cause of the accident of which the boy, Lancia, was a victim.
To arrive at that conclusion it is only necessary to proceed
as did MacKinnon, J. (although he did not press his analysis of the facts to
its normal result) and to follow the reasoning of the dissenting judge,
McDougall J.A.
One can only ask what Tremblay could have done in the
situation of imminent danger in which the boy had placed himself—a situation,
for the making of which, the boy was exclusively responsible.
At the hearing before this Court, Counsel for the respondent
was asked several times what he could suggest that Tremblay might have done
instead of shouting. He could not claim that it would have been better to have
[Page 188]
stopped the train immediately, because Tremblay himself
explained that would have created a greater danger as a freight train of some
forty cars suddenly coming to a stop would have jolted more sharply and caused
the fall of the ' boy from the car. On the other hand, if he had done nothing,
there is every likelihood that the jury would have found that his remaining
inactive was truly negligence, for which he himself and his company should be
held liable.
Now, of these three alternatives—stopping the train
suddenly, doing nothing, or shouting to the boy to get off— one may properly
ask which was the correct decision to arrive at, quite apart from the fact that
Tremblay had to act on the spur of the moment and without the slightest
hesitation, because the predicament of the boy was becoming increasingly dangerous
as the train gathered momentum. In my opinion what Tremblay did
was not even an error of judgment. I verily think that he chose the best way of
protecting the boy and coming to his rescue, that what he did could never be
apprehended as a fault or an offence; and that the course he took to try and
protect the boy was, in the circumstances, the best means at his disposal. It
really comes to this—that the sole fault committed by any one in this accident
was caused by the boy's own reckless act in getting on the freight car and
remaining there while the car was moving. Such being the case, it is impossible
to say that the finding of the jury (shouting) could ever be declared a fault
under the law of Quebec. As it was not a fault, it was the duty undoubtedly of
the judges to so declare it, and, therefore, to dismiss the action on the
verdict rendered. That is what should have been done by the trial judge
(C.C.P., article 491), or by the Court of King's Bench (Appeal Side) (C.C.P.,
article 508). Canadian Pacific Rly. v. Anderson is
conclusive on the point of trespass in this Court.
For the reasons stated I think that the appeal should be
allowed and the action of the respondent dismissed, with costs throughout.
Kerwin J.:—There
was no evidence upon which the jury could reasonably find that the shouting of
Tremblay,
[Page 189]
said by them to be the latter's fault, was negligence
contributing to the accident. The appeal should be allowed and the action
dismissed, all with costs if demanded.
Taschereau J.:—I
agree that the appeal should be allowed with costs throughout and the action
dismissed with costs.
Kellock J.:—This
is an appeal from a judgment of the Court of King's Bench (Appeal Side) ,
for the Province of Quebec, affirming a judgment at the trial in favour of the
respondent. The action was brought to recover damages in respect of personal
injuries sustained by the minor son of the respondent when injured by being run
over by one of the appellant's trains. The boy, who was nine and one-half years
old, had climbed on to the side of a car and the injuries were sustained when
he attempted to get off the moving train in circumstances1 to be
mentioned.
In his declaration the respondent alleged that his son
boarded the freight car while the train was stationary; that the train suddenly
started; that while it was in motion an employee of the appellant shouted to
the boy from the steps of the caboose to get off; and that when the boy did not
do so the employee pretended to pick up something from the side of the rail to
throw at him, whereupon the boy became frightened and in attempting to jump
fell under the moving train.
The evidence for the respondent was to the effect that the
boy was on the ladder on the side of the car firmly grasping the rungs and did
not get off at any time until the appellant's employee shouted and made the
gesture referred to in the declaration from the latter's position on the steps
of the van. The evidence of the appellant's employee, Tremblay, however,
is that he was not on the steps of the caboose at any time but in the cupola on
the top; that he saw two boys on the train, one on the front of the second car
from the caboose and one on the rear of the third car, and that there were
several other boys on the ground further away; that he called to the two boys
to get off and that they did so. He says that the respondent's son, when first
seen by him, was holding on to one of the cars and running beside it and that
when he shouted the boy
[Page 190]
released his hold and let a couple of the cars pass but then
grabbed another and ran about fifty feet. When Tremblay shouted
again he says the boy fell under the car. At this time the train was proceeding
at about seven or eight miles an hour. Tremblay immediately
applied the brakes and brought the train to a stop in about 200 feet. On being
asked why he had not put on the brakes and stopped the train before the boy
fell he said that in his opinion it would have caused a jerk which might have
thrown the boy from the train and that in doing what he did he had acted in
accordance with his best judgment under the circumstances.
In answer to specific questions the jury found that the boy,
just before he fell, was not running beside the train with one hand grasping
the ladder or some other part of the car but was riding on the ladder itself.
They also found that Tremblay was not standing on the
steps of the caboose when he shouted but was in the cupola. They also found
that the accident was due to the joint negligence of the boy and Tremblay,
this negligence consisting on the part of "Tremblay for
shouting" and on the part of the boy in that he "had no business on
the train." All other allegations of negligence were therefore negatived.
The jury found the boy and Tremblay guilty of fault in
equal degrees.
The learned trial judge refused a motion by the appellant to
dismiss the action on the answers of the jury, being of opinion that although
the boy was a trespasser, as was admitted, and although it seemed clear to him
that Tremblay had committed no breach of duty, nevertheless he could not
interfere with the verdict.
In the Court of Appeal , MacKinnon J. took the
same view. He pointed out that the jury had been instructed that if they found
that what Tremblay did was an error of judgment, there was
no fault and that, accordingly, the finding of fault on the part of Tremblay excluded such error. The learned judge was of opinion
that his own view that Tremblay's action amounted merely to error of judgment
could not be substituted for the opinion of the jury.
As he expresses so clearly and concisely the situation which
Tremblay faced at the time, I quote from the notes of the learned judge:
I consider that Tremblay was faced with a situation in which
he had to act quickly and what he did should be considered an error of
judgment.
[Page 191]
Angelo was on a moving train picking up speed and had got on
with, the intention of getting off at or near Bridge Street. His position was
rapidly getting more dangerous as the train proceeded. Shouting to the boy to
bang on might have frightened him more than telling him to get off. Tremblay says the only means of stopping the train was by the
emergency air-brake in the caboose which would probably have jolted Angelo off
the train had he applied it.
McDougall J. dissented from the majority. Accepting the
findings of fact made by the jury, he was of opinion that the answer of the
jury with respect to Tremblay did not constitute fault in
law within the meaning of Article 1053 of the Civil Code and that the act of Tremblay in shouting, while it may have been causa sine qua non, was not causa causans.
With respect to the duty owing to the infant trespasser, the
learned trial judge charged the jury in accordance with the law laid down in Anderson
v. C.P.R. . In that case however, the presence of
the trespasser upon the train was not known to the railway company. It was
known however, in Canadian Northern Railway Co. v. Diplock ,
but in that case, as in Anderson's case, both of which followed the decision of
the Privy Council in Grand Trunk Railway v. Barnett ,
it was held that it is not sufficient to enable one who is a trespasser to
recover, merely to show negligence on the part of the servants of the railway.
In the case where the presence of the trespasser is known to the servants of
the railway, the respondent contends that these authorities are not applicable
in the Province of Quebec. The judgment of Lord Wright at least, in Glasgow v.
Muir , indicates that with respect to
positive acts of an occupier of premises, the duty owed to a trespasser may not
differ from that owed to other classes of persons who are known to be thereon.
In the case at bar I am content to deal with the case on the basis, although
without deciding the point, that the duty owed to the minor in the case at bar
was of this higher nature. But, in my opinion, the answer made by the jury with
respect to Tremblay does not amount to a finding of fault
in law. It is of course clear that while it is for the jury to find the facts
it is the function of the court to determine whether or not there is any
evidence to support the findings and also to decide whether any particular
answer is in law a finding of fault
[Page 192]
or negligence; Verdun v. Yeoman ;
McKay v. Grand Trunk Railway ; Bouillon v.
Poire , per St.-Jacques J.
In the case at bar it is plain that the act of negligence
pleaded as against the appellant was not established in evidence. The jury have
negatived anything of a threatening nature in the gesture made by Tremblay or that he was in the position the respondent alleged
he was. The situation confronting Tremblay is as I have
said, clearly expressed by MacKinnon J. and I think there was no element of
negligence in the choice which he made. Upon the facts as found by the jury,
any finding that Tremblay fell short of the conduct
of a reasonably careful man must be regarded as perverse. That situation had
been created by the wrongful act of the boy and forced upon him the necessity
of making a choice. As to stopping the train, he did not do so because he
thought the shock might throw the boy off. Had he done nothing, the train was
gathering speed and the boy might well have been placed in a more dangerous
situation later if he were allowed to remain. He did not know that the boy
himself intended to jump off at Bridge Street, a comparatively short distance
further on. There is no allegation and no finding that the speed of the train
at the time the boy attempted to get off was such that Tremblay should
not have ordered him off at that time. Tremblay says the
speed was from seven to eight miles an hour and the respondent himself in his
factum describes this speed as slow. Tremblay had observed
the other boys jump off very shortly before. While the act of leaving any
moving train no doubt involves some danger, I do not think that Tremblay's act
in ordering the boy off amounts to any breach of duty toward him in the
circumstances. It could not be more than an error of judgment, even if it could
be said to be an error, and it was not open to the jury, in my opinion, to
bring it to the level of fault.
I would therefore allow the appeal and dismiss the action
with costs here and below if demanded.
Locke J.:—In
the plaintiff's declaration it is alleged that the infant plaintiff boarded a
freight car of the defendant company which was part of a train then stationary
at the
[Page 193]
corner of Murray and Wellington Streets in Montreal, that
the train suddenly started to move and that while it was in motion an employee
of the defendant company stepped out of the caboose of the train and "on
seeing the said boy imprudently shouted to him to get off." There were
further allegations that when the boy did not get off the train an employee of
the defendant threatened violence to him and pretended to pick up something from
the side of the rail to throw at him, whereupon the boy being frightened had
jumped and fallen under the wheels of the moving train. Various other charges
of negligence were made but all of these, including the allegation that an
employee of the defendant had frightened the boy by threatening him with
violence or pretending to pick up a missile, were negatived by the answer made
by the jury that the negligence attributable to the defendant was that of its
employee Tremblay "for shouting"; Andreas v.
Canadian Pacific Railway Co. .
The undisputed fact is that the infant plaintiff was a
trespasser upon the property of the defendant. Upon conflicting evidence the
jury found that immediately prior to the accident he was riding on the ladder
at the side of one of the freight cars of the moving train, and not running
beside the train with his hand grasping a rung of the ladder as stated by Tremblay, an air brakeman employed by the defendant and who was
riding at the time in the cupola of the caboose at the rear of the train. The
boy admittedly got on to the train without permission, with the intention of
riding on it a short distance to the west to the vicinity where he lived and,
when observed by Tremblay, the train was travelling some
seven or eight miles an hour and it must be taken that he jumped from the
ladder at the side of the freight car after the brakeman had shouted to him to
"get out of there."
The defendant company was operating the train in question
upon its right-of-way in the exercise of its statutory powers. Of necessity,
the operation of freight and other trains involves danger to those who trespass
upon the right-of-way in the path of these trains, or who attempt to ride upon
the freight cars without permission. For damages caused by the operation of
such trains in pursuance of its
[Page 194]
powers the defendant is not, in the absence of negligence,
liable. Here the infant plaintiff, in defiance of the provisions of sec. 443 of
the Railway Act, cap. 170, R.S.C. 1927, trespassed upon the freight car
in question and the contention to be made on his behalf must be put upon the
ground that while he had of his own motion unlawfully-placed himself in a
position of danger, the defendant or its servants had failed in some duty owed
to him to protect him from the consequences of his own rash act. In the
situation in which Tremblay was placed when he saw the boy
he might perhaps have shouted to him to hang on tightly to the ladder or
conceivably have brought the train to a halt by using the emergency air brake
or have followed the course which he did pursue in shouting to the boy to get
off the train. There was risk to the boy in continuing to ride on the ladder at
the side of the car, since the train was picking up speed. There was danger if
the air brakes were applied suddenly since, as stated by Tremblay,
the jolting stop might shake the boy off the ladder. There was also
obviously some risk to the boy if he jumped from the train though, in view of
the slow speed at which it was travelling, this would appear to be slight. In
these circumstances Tremblay ordered the boy to get off
the train and it is this act which the jury found to be negligent and to have
contributed to the accident.
In Grand Trunk Railway Company v. Barnett
where the plaintiff was a trespasser on the railway company's property and on a
train which to his knowledge was not at the time in use as a passenger train
and on which he had taken up a precarious position on the platform and steps of
the carriage, Lord Robson said that the railway company were undoubtedly under
a duty not wilfully to injure him, nor were they entitled, unnecessarily and
knowingly, to increase the normal risk by deliberately placing unexpected
dangers in his way, and that though he was a trespasser a question might arise
as to whether or not the injury was due to some wilful act of the owner of the
land involving something worse than the absence of reasonable care. It was this
statement of the law which was adopted by Duff, C.J. in Canadian Pacific
Railway Company v. Anderson , and while it does not
appear that in either of these
[Page 195]
cases the presence of the trespasser was known to the
employees of the railway company, the manner in which the principle is stated
makes it quite clear that its application is not limited to such cases. In Addie's
case Viscount Dunedin quoted with approval
what was said by Hamilton, L.J. in Latham v. Johnson ,
that "the owner of the property is under a duty not to injure the
trespasser wilfully; 'not to do a wilful act in reckless disregard of ordinary
humanity toward him'; but otherwise a man trespasses at his own risk," and
said further that as to trespassers there is no duty, save only that of not
inflicting malicious injury. As to the decision in Excelsior Wire Rope v.
Callan , I agree with what was said by
Humphreys, J. in Walder v. the Mayor, Alderman, etc. of Hammersmith
,
that that case was decided on the fact that it did not matter whether the child
who had been injured was a trespasser or not, since there was such carelessness
amounting to recklessness on the part of the owners of the property, the
persons responsible for the land, as would have given a good cause of action
even to a trespasser. Applying the law as thus stated to the present case the
judgment cannot, in my opinion, be supported. The plaintiffs had pleaded
various acts of negligence, including the alleged act of Tremblay
in frightening the boy by a threatening gesture as if he was going to
throw a stone so that, as matters stood at the conclusion of the plaintiff's
case, I think the learned trial judge would not have considered withdrawing the
case from the jury. If, however, the plaintiff's case as proven had been as
found by the jury, that the only act complained of was that Tremblay
shouted at the boy to get off, a motion for non-suit should have
succeeded on the ground that no facts had been established in evidence from
which negligence might be reasonably inferred. (Metropolitan Railway Company
v. Jackson ).
In the judgment of the learned trial judge on the motion
made by the defendant after the jury's verdict the following passage appears:—
The next important point in Defendant's Motion is the
contention that, even accepting the majority answers to the four specific
questions
[Page 196]
of fact, the fault found against Tremblay by the majority of
the Jury is not a fault in law. Here again the undersigned, acting as a Judge
alone, would unhesitatingly have decided in favour of Defendant. In view of the
admitted fact that Angelo Lancia was a trespasser, it seems clear that Tremblay committed no breach of the obligation or duty owed to
him.
I take from this that he considered that negligence could
not be inferred from the mere fact that Tremblay had shouted to the boy to get
off the train under the circumstances then existing. The position of the
plaintiff cannot possibly be improved by the fact that, rejecting the evidence
as to the threat by Tremblay that he would throw the stone
and the various other charges of negligence, the jury found that shouting alone
was actionable. If Tremblay, instead of shouting to the
boy to get off the slowly moving train, had told him to remain where he was and
the boy had thereafter fallen, or had he stopped the train with the emergency
air brake and the jolt had thrown the boy under the wheels, it could scarcely
be contended that there was a right of action for the resulting injuries. It
seems to me that the present claim is equally without foundation. It was the
boy who was in danger through his own actions and if Tremblay erred
in the course he took for the boy's protection (and I think he did not), there
is no actionable negligence in the circumstances of this case. The reckless
driver of an automobile who, by his negligence, places the driver of another
vehicle in a position of danger cannot complain if in the situation thus
created the other person makes an error in judgment and a collision results. A
trespasser cannot, in my opinion, create a situation of danger to himself and
complain of an error of judgment in the steps taken to extricate him. There was
here no evidence upon which to find that there had been any wilful act in
disregard of humanity towards the boy, nor any act done with reckless disregard
of his presence, nor any wilful act involving something more than the absence
of reasonable care nor, in the language of Viscount Dunedin in Addie's case
,
any "malicious injury."
In my opinion, the finding made that the act of Tremblay in
shouting under the circumstances of this case amounted
[Page 197]
to fault or negligence cannot be supported. The appeal
should be allowed and the action dismissed. If costs are asked they should
follow the event.
Appeal allowed and action dismissed with costs.
Solicitors for the appellant: Coté & Perrault.
Solicitor for the respondent: Allan A. Grossman.
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