1921 As Whitehouse, J. puts it in Conway v. Lewiston, 38 AtlanJudgment. tic R. at p. 112: FULLERTON, Her injury was not the ordinary or probable result of stopping at that particular point, but was due to an unexpected event, which could not have been anticipated. The negligence imputed to the conductor was not the real or proximate cause of the injury. It simply presented an opportunity for the operation of the true cause, the movement of a rolling stone upon which the plaintiff unfortunately stepped. It only afforded the occasion for a purely accidental occurrence causing damage without legal fault on the part of anyone. In Foley v. Brunswick Traction Co., 50 Atlantic R. 340, the plaintiff met with a similar accident. The jury was instructed that the plaintiff could recover if the place selected by the defendant for her to leave its car was not a safe place for that purpose. On appeal from a verdict in favour of the plaintiff, Garrison, J. said, at p. 340: The gravamen of the plaintiff's action was the failure of defendant to use reasonable care for her safety as a passenger; hence the correct instruction should have been that the defendant was liable for the plaintiff's injuries if it failed to take reasonable precautions to see that the place provided by it for her discharge was a safe one for the purpose Whatever be the form of words employed, the idea expressed should be that the guilt of the defendant is to be measured by the degree of care it has put forth for the plaintiff's safety, and not by the degree of success attendant upon its efforts. * * * * * * Owing to the nature of the casuality, and the indeterminate size, character, and location of the object that caused it, the point of the case was whether such an object as that which caused the plaintiff's fall would, in the exercise of reasonable care by the defendant, have been discovered, and if discovered, have been removed. The learned trial Judge says in his judgment: The stone causing the injury is not a large one; its colour is not such as to attract attention, it is much the colour of the ground and if lying in the grass it would require more than ordinary watchfulness to detect it. I fail to see where there has been any negligence on the part of the motorman. I entirely agree with the view thus expressed by the learned trial Judge and would therefore dismiss the appeal with costs. DENNISTOUN, J.A.-This is an appeal from the judgment of the Court of King's Bench ([1920] 2 W.W.R. 600) dismissing the plaintiff's action for damages. With respect I 1921 desire to express my concurrence with the reasons for judgment of Mr. Justice Macdonald who tried the case, and limit Judgment. my remarks to that phase of the case which concerns the neg- DENNISTOUN, ligence of the motorman. The plaintiff was a passenger upon a street car of the defendant company in the city of Winnipeg. As carriers of passengers it was the duty of the company to carry safely using reasonable care for that purpose, and it was their further duty both under the common law applicable to such carriers, and as an implied term of the contract with the passenger, to provide a reasonably safe place at which to alight. The defendants do not own or control the portions of the highway upon which they discharge passengers. The title to the highway is in the Crown and the right of possession is, as a general rule, in the city, but at the point where the plaintiff alighted on the occasion in question it was in the parks board, a statutory corporation having charge of boulevards. Obviously the defendants must discharge their passengers upon the highway, and by acquiescence, amounting to license, they had been accustomed to overrun the intersection of the cross-street by a few feet and permit their passengers to alight upon the boulevard which runs down the centre of Broadway with a travelled road for vehicles on each side and the tracks of the railway company in the centre. There is no suggestion in the evidence that the point at which the plaintiff was impliedly invited to alight was in any way unsuited to the purpose. It was a level bit of ground, bare for the most part, and partly grassed at the point of exit from the car. It may have been an inch or two lower than the cement crossing, but that in no way altered its character as a reasonably safe place to alight. When a street railway company does not own or control the landing places which it must use, it can do no more than avoid known or obvious danger and unless there was something at the point in question which was obviously likely to injure a passenger when alighting, and the company knew it, or ought T.A. 1921 Judgment. DENNISTOUN. J.A. to have known it, or ought to have seen it and avoided it, and was negligent in not doing so, then, in my opinion, the plaintiff's action fails. On the occasion in question, about four p.m. on April 30, 1917, the plaintiff when alighting from a car on Broadway stepped upon a rounded stone described as about the "size of two fists," her ankle turned and she was seriously injured. It was at an hour of the day and a time of year when there was plenty of light. The plaintiff did not see the stone before stepping upon it, but the learned trial Judge imputes no negligence to her for not observing it. This has, however, some bearing upon the visibility of the stone at the time. It is a dark earthen coloured stone apparently stained with oil or something of the kind, and unquestionably inconspicuous in certain positions. What its position was when trodden upon no one knows—whether it was partly buried in the earth, or hidden in the grass, or lying in the open cannot be determined. It rolled away when the plaintiff stepped upon it and was discovered some time after the accident lying a few feet away, being easily found when searched for. Upon the argument of this appeal the negligence without which liability cannot be imposed upon the defendants was narrowed down to the duty of the motorman to have observed the stone when his car was approaching the stopping place, and to have halted his car so as to enable passengers to alight clear of it. Or, it was urged, the motorman ought to have observed the stone through the reflecting mirror after the car had stopped and to have taken precaution to prevent a passenger from coming into contact with it. There is no evidence that the stone was at the landing place for any space of time before the accident occurred, and therefore no evidence of negligence in permitting it to be there at that time. It may have been thrown or deposited upon the right-of-way or the boulevard but a moment before. The plaintiff was in the habit of alighting at this point daily and while stones of a similar character are spoken of as having been found at other points after the accident, there is no evidence of any being seen at any time at the landing place at 1921 the corner of Broadway and Edmonton streets. It is admitted that the conductor of a street car has no opportunity of de- Judgment. tecting objects lying beside the right-of-way, and that the only DENNISTOUN, person who could have seen and appreciated the danger was the motorman. That official has important duties to perform in controlling the speed of his car, in starting and stopping it, in avoiding traffic at cross-streets and obstacles on the right-of-way. He must act with despatch. He must run to a time schedule and it is his duty to observe and avoid obvious dangers at landing places. Street cars of the defendant company are of different types. Some, like the car in question, discharge passengers at the rear end only, others have exit doors at both front and rear ends, while others, known as open cars, discharge passengers along the whole length of the car. The evidence does not, in my opinion, justify a finding that a motorman who halts a car at a recognized and usual stopping place or anywhere else, is bound to use such keenness of vision, and such accuracy of control, that no single passenger shall run the risk of stepping upon a casual object of the appearance and dimension of the stone which has been filed as an exhibit in this case. Moreover the motorman did not see the stone. He says he was on the lookout and that there was no stone that he could see. How can it be said that it was actionable negligence that he failed to see it? If he had observed the stone and deliberately or carelessly disregarded it the plaintiff's case would have been stronger. In the absence of any evidence or reasonable inference that he ought to have seen it, and without any information as to where it was lying or how it was concealed it is impossible to say that he was at fault in not detecting its presence as his car approached the halting place. Mr. Wilson urged strongly that the motorman should have seen the stone through his mirror after the car had stopped, and that he admitted he did not look for anything of the kind. Assuming that he had seen the stone, it does not appear that he could have done anything to prevent the plaintiff from stepping upon it. He could not restart his car without signal from JA. DENNISTOUN, 1921 the conductor and the exigencies of the service and the necesJudgment. sity for despatch in traffic of this kind in a large city make it impossible to guard against every possibility of accident by giving individual warnings to passengers who are alighting in broad daylight in the full possession of mental and physical faculties. Moreover it is necessary to assume that the motorman would have seen the stone and appreciated the danger had he looked, and there is no evidence upon which such an assumption can be based. The learned trial Judge finds as a fact that there was no negligence on the part of the motorman. He was sitting without a jury and exercising its functions and, in my humble judgment, he has drawn the correct inferences from the evidence and his finding should be concurred in. I have perused carefully the numerous authorities quoted by counsel and refer particularly to Nellis on Street Railways, secs. 308, 309; Maverick v. Eighth Ave. Ry., 36 N.Y. 378; Foley v. Brunswick Traction Co., 50 Atlantic R. 340; Bell v. Winnipeg Elec. St. Ry., 15 Man. R. 345; 10 Corpus Juris 913-915; Blakeley v. Montreal Tramways, 20 D.L.R. 643; Fraser v. Pictou County Elec. Co., 28 D.L.R. 251; Williams v. Toronto & York Ry., 45 O.L.R. 387, 16 O.W.N. 197, 48 D.L.R. 346; Mobile Light v. Walsh, 40 South. 559. I would dismiss the appeal and express the hope that the respondents will not ask for costs. Appeal dismissed. |