Vandry et al. v. Quebec Railway, Light, Heat and Power Co.

Vandry et al. v. Quebec Railway, Light, Heat and Power Co.
Collection
Supreme Court Judgments
Date
1916-03-03
Report
(1916) 53 SCR 72
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Quebec
Subjects
Public utilities
Decision Content
Supreme Court of Canada
Vandry et al. v. Quebec Railway, Light, Heat and Power Co., (1916) 53 S.C.R. 72
Date: 1916-03-03
Georges A. Vandry; The Guardian Assurance Company; The Liverpool and London and Globe Insurance Company; The Phoenix Assurance Company of London, and The Queen Insurance Company of America (Plaintiffs) Appellants;
and
The Quebec Railway, Light, Heat and Power Company (Defendants) Respondents.
1915: November 24-26; 1916: March 3.
Present: Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Electric transmission—Statutory authority—Special Act—Negligence—Character of installations—System of operation—Grounding transformers — Defective fittings — Vis major — Responsibility without fault—Art. 1054 C. C.
After heavy rains, in cold weather, had coated trees and electric wires with icicles, a violent wind tore a branch from a tree, growing on private grounds, and blew it a distance of 33 feet on to a highway where it fell across the defendants' electric transmission wire, causing a high-tension current to escape to secondary house-supply wires, used only for low-tension currents, and resulting in the destruction of the buildings by fire. The high-tension current, 2,200 volts, was stepped down from the primary wire to about 110 volts on the secondary wires by means of a transformer which was not grounded, owing to doubts then existing as to doing so being safe practice. The secondary wires were used by the defendants to supply electric light to consumers, the owners of the buildings destroyed, but these buildings were not fitted with "modern" installations for electric lighting nor with cut-offs to intercept high-tension currents.—V's action was to recover damages for the destruction of his building, alleged to have been occasioned by the defendants' defective system. The insurance companies, being subrogated in the rights of owners of buildings insured by them, brought actions to recover the amounts of the policies which had been paid.
Held, per Idington, Anglin and Brodeur JJ. (Davies and Duff JJ. contra.) Under the provisions of article 1054 of the Civil Code, the defendants were liable for the damages claimed as they had failed to establish that they were unable, in the circumstances, to prevent the escape of the high-tension electric current, a dangerous thing under their care, which had been the cause of the injuries, or that the injuries thus caused had resulted from the fault of the owners of the buildings themselves. The defence of vis major was not open as the circumstances in which the injuries occurred could have been foreseen and provided against by the installation of a safer system for transmission of electricity.
Judgment appealed from (Q. R. 24 K. B. 214), reversed, Davies and Duff JJ. dissenting.
Per Anglin and Brodeur JJ.—As the special Acts under which the defendants carried on their operations provide that the company shall be "responsible for all damages which its agents, servants, or workmen cause to individuals or property in carrying out or maintaining any of its said works "(58 & 59 Vict. (D.) ch. 59, sec. 13), and that the company "shall be responsible for all damages which it may cause in carrying out its works" (44 & 45 Vict. (Que.) ch. 71, sec. 2), they are liable for damages resulting from the operation of their constructed works, without regard to any consideration of fault or negligence on their part.
Per Davies and Duff JJ., dissenting.—Under article 1054 of the Civil Code, the onus lies upon the plaintiff to prove that the injury complained of resulted from the fault of the thing which the defendant had under his care; in the absence of such proof there is no liability on the part of the defendant. In the circumstances of the case the defendants are entitled to succeed on the ground that the damages were the result of vis major. Canadian Pacific Railway Co. v. Roy ((1902) A. C. 220); Dumphy v. Montreal Light, Heat and Power Co. ((1907) A. C. 454); McArthur v. Dominion Cartridge Co. ((1905) A. C. 72); Shawinigan Carbide Co. v. Doucet (Can. S. C. R. 281; Q. R. 18 K. B. 271); and Canadian Pacific Railway Co. v. Dionne (14 Rev. de Jur. 474), referred to.
APPEALS from the judgments of the Court of King's Bench, appeal side[1] reversing the judgments of Dorion J, in the Superior Court, District of Quebec, and dismissing the actions with costs.
The circumstances in which the actions were instituted are stated in the head-note and the questions in issue on the present appeals are discussed in the judgments now reported.
L. A. Taschereau K.C. and Cannon K.C. for the appellants.
G. G. Stuart K.C. for the respondents.
Davies J. (dissenting).— Notwithstanding the enormous mass of testimony which appears to have been given in these cases and the great number of points raised by the plaintiffs on which it is contended that the defendants should be held liable, it seems to me that the real substantial questions are reduced to very few.—First, whether there was evidence of negligence on the part of the defendant company in not grounding their transformer secondary wires, or other negligence which was an effective cause of the damages complained of, and next whether the company is liable for these damages irrespective of proof of negligence under the statute 58 & 59 Vict., ch. 13, under which they were carrying on their operations and under articles 1053 and 1054 of the Civil Code of Quebec.
The case of the plaintiff Vandry and the four other appeals, by insurance companies which are suing as having been subrogated to the rights of the parties whose houses they had insured, depend upon the same facts and are the result of fires which took place on the 19th and 20th of December, 1912, which the appellants contend, as I think rightly, were caused by an electric current supplied by the respondents for the lighting of the burnt buildings. As to the contention that, without proof of fault or negligence, absolute liability of the company is established under article 1054 C.C. upon its being proved that the damage sued for was caused by a "thing which it had under its care" or because, as contended, the company failed to prove that it was unable to prevent the act which caused the damage, I am in full accord with the judgment of the court of appeal which, as I understand it, is that fault or negligence causing or contributing to the accident on the part of the defendant company not having been proved, they are not liable for damages.
The question, to my mind, resolves itself into this:—Whether the respondent company can be held responsible for damages resulting from the exercise of its statutory powers where no negligence on its part is proved.
In the case of Canadian Pacific Railway Co. v. Roy[2], it was held by the Judicial Committee of the Privy Council that:
A railway company authorized by statute to carry on its railway undertaking in the place and by the means adopted is not responsible in damages for injury not caused by negligence, but by the ordinary and normal use of its railway; or, in other words, by the proper execution of the power conferred by the statute.
The previous state of the common law imposing liability cannot render, inoperative the positive enactment of a statute. Neither the Civil Code of Lower Canada, art. 356, nor the Dominion "Railway Act," ss. 92, 288, on their true construction, contemplates the liability of a railway company acting within its statutory powers:—
So held, where the respondent had suffered damage caused by sparks escaping from one of the appellant's locomotive engines while employed in the ordinary use of its railway.
Later, in the case of Dumphy v. Montreal Light, Heat and Power Co.[3], the Judicial Committee held that the respondents, being authorized by Quebec Act, 1 Edw. VII. ch. 66, sec. 10, in the alternative, to place their wires either overhead or underground, were not guilty of negligence In adopting one alternative rather than the other, or in neglecting to insulate or guard the wires in the absence of evidence that such precaution would have been effectual to avert the accident.
Each of these decisions was based on the ground that proof of negligence or fault causing the injuries complained of was essential to entitle a person injured to recover damages caused by the exercise by a company of its statutory powers.
The current of decisions in this court has, I think, been uniform to the same effect and no decision that I am aware of can be found to the contrary, supporting the proposition now contended for under article 1054 of the Civil Code.
There must be" evidence proving the existence of fault on the part of the defendant, or, at any rate, since the decision of the Privy Council in the case McArthur v. Dominion Cartridge Company[4], from which the tribunal may reasonably and fairly infer both the existence of the fault and its connection with the injury complained of.
Then, as to the contention that sub-section (e) of section 13 of the Dominion Act incorporating the company and under which it was operating declared the company should be
responsible for all damages which its agents, servants or workmen caused to individuals or property in carrying out or maintaining any of its said works,
I would apply the language used by The Lord Chancellor in delivering the judgment of the Privy Council in the case of Canadian Pacific Railway Co. v. Roy[5] at page 231. Section 288 (of the "Railway Act" of 1888) is more plausibly argued to have maintained the liability of the company, notwithstanding the statutory permission to use the railway; but if one looks at * * * the great variety of provisions which give ample materials for the operation of that section, it would be straining the words unduly to give it a construction which would make it repugnant, and authorize in one part of the statute what is made an actionable wrong in another. It would reduce the legislation to an absurdity, and their Lordships are of opinion that it cannot be so construed.
But whatever may be the meaning of the language of this clause (e) it cannot, in my opinion, be construed so as to embrace or cover such an accident as we have proved in this case, one caused by force majeure and without negligence on the part of the respondent company.
The substantial, if not the only ground on which the plaintiffs could hope to establish negligence on the part of the company was the non-grounding of the transformer secondary wires.
The company, in erecting its poles along the roadside and supplying electricity to light the houses whose owners or occupants desired to have it, was admittedly doing so in the exercise of a statutory power authorizing it to carry electricity on wires attached to poles on any public road in the vicinity of Quebec.
In the operation which it was so carrying on, it was doing that which the statute authorized.
The trial judge distinctly found that, with the above exception of this non-grounding, none of the complaints made against the condition of the line were well founded.
The company's contention was, and it seems to me to be proved, that its wires were strung along poles placed on the St. Foy Road, on the highway, and were in good order and condition, that on the night on which appellant's house was destroyed a large branch of a tree growing on the property of Victor Chateauvert one of the parties insured and whose rights became subrogated to the Queen Insurance Company, one of the plaintiffs, was, as the result of a great wind and sleet storm, blown off the tree and carried out to the highway upon the respondents' wires bringing the primary wire, with its high-tension current, into contact with the secondary. The tree was approximately 90 feet high and the branch which broke was at a measured distance of 63 feet from the ground. It was a branch growing upwards in a westerly direction and at the time it broke was covered with a thick coating of ice and driven by a wind which attained a speed of 38 miles an hour. The respondent defendants further contended that if the wiring of the house had been properly done and efficiently maintained, instead of being as it was most defective, no injury probably would have resulted even if the high-tension current had been introduced into the house.
It was also proved that the defendants (respondents), were in no way responsible for the house wiring. That was a matter entirely within the duty of the plaintiffs (appellants).
The primary wires, three in number, were strung from pole to pole upon cross-bars, and the secondary wires, two in number, were strung some distance beneath them on other cross-bars.
The tree on Chateauvert's property from which the branch broke off was in a field at a distance of 22 feet 6 inches from the road-fence and a few feet further from the centre of the pole line. To reach the primary wires it was contended the branch must have been carried a distance of 33 feet 6 inches and this could only be done by an extremely violent wind and by the broken branch sliding along the lower branches of the tree, all of which were heavily coated with ice. The tree and the branch were shewn to have been sound, without any visible weakness and defect, and the branch, some 9 feet in length, was one of the exhibits in the case produced before this court.
The majority of the court of appeal was of the opinion that nothing was shewn to have existed which should have caused any one to anticipate the occurrence of such an accident as happened, that it was one for which respondent defendants were in no way responsible and that, in view of the proved defective condition of the interior wiring of the burnt buildings for which the respondents were not responsible, the grounding of the transformer would instead of being a protection have been rather an added danger.
After hearing the argument at bar and reading the evidence of the different experts and engineers on the point of this grounding and the correspondence between the defendants' manager, and Mr. Bennett, in December, 1911, on the same question, I have reached the same conclusion as the court of appeal, namely, that while electrical expert opinion is strongly in favour of the grounding of the transformer secondary wires as a protection and safeguard against accidents happening from the possible contact of the primary wire with the secondary wires in cases where the inside wiring of the houses is good, such grounding would not be a safeguard or protection with respect to houses the inside wiring of which was as bad and defective as it was shewn to have been in this case.
Being of the opinion, therefore, that the respondents, in the exercise of their statutory powers, were not responsible in damages for injuries not caused by negligence on their part; that no such negligence was or could be found on the facts of this case; that the accident which happened and brought the primary and secondary wires into contact and carried the high-tension current of the former into the houses was caused by the branch of a tree being blown off and carried, by force of a high wind in a sleet storm, some distance out to the highway and on to the wires and was an accident which they could not have anticipated and for which they should not be held responsible, and against which no precaution has been suggested which they could or ought to have taken; and that the injuries caused to the plaintiff might have been avoided if the inside wiring of his house had not been bad and defective, a condition for which he alone is responsible, I would dismiss this and the other appeals with costs.
Idington J.—Notwithstanding the voluminous material of law and fact presented for consideration herein, and over two days of argument spent in enlightening us as to the bearing thereof, I think that to be decided in the case is within a very narrow compass, when we accept as proven that which every fair-minded person seems to have assumed, and eliminate that which is either irrelevant or immaterial.
Yet, as will presently appear, from my point of view there are some things relevant to what has to be decided which one should have desired to know more about than is presented in evidence or has been dealt with in argument.
Passing meantime these considerations it seems abundantly clear that the property in question was destroyed by the force of an electric current of 2,200 volts passing into the premises in question which no one could ever have imagined had been prepared to receive and resist the ill effects of more than a current of one hundred and eight to one hundred and fifty volts of electric current.
It is equally clear that this was produced by reason of a large branch of a tree breaking and being blown by the wind upon the wire of respondent. The danger of such a thing happening was so well recognized by those engaged in the business that experts, including respondent's witness Mr. Herdt, hereinafter quoted on other points, tell us without hesitation or contradiction that those so engaged out of necessity for safety seek to have the trees near to their wires removed or so trimmed as to avert or ameliorate such damages.
Everything, therefore, urged in law or in fact as an impediment to the application of such means of safety rendered it the more incumbent upon the respondent to secure, by other means, the protection of life and property where it carried on its operations.
The freezing of rain falling upon the trees at certain seasons in Canada and consequent destruction of their branches by force of wind operating upon them when so laden is too frequent an occurrence to escape the attention of any intelligent person.
The possibility of the branches being in such circumstances carried from tall trees a much greater distance than anything involved herein should be so obvious to any Canadian, keeping his eyes open, that it is hardly necessary to dilate upon that incidental feature appearing in this case and becoming a subject of grave argument.
In short, the case is reduced to the consideration of a few facts and the law bearing thereon.
The respondent is engaged in the business of lighting by means of electricity. It produces electric current for distribution. In order to divide the current generated therefor it uses transformers whereby the main electric force is reduced to such fractions thereof as may be conducted with safety into houses or other places to be lighted by means of lamps it supplies for the purpose. These fractional currents, if I may so speak, are conducted by one wire, or set of wires, whilst the main or primary current is carried upon another wire. Both wires are carried overhead by means of same set of poles and cross-arms and should be so far apart as to avoid the dangers of induction of current from one to the other.
It is alleged and, I incline to think, supported by some evidence that the respondent's primary and secondary wires were strung too close together. In my view of the case I have not found it necessary to reach a definite opinion upon that disputed fact. I therefore eliminate it from what is necessary to be considered.
The naked facts are that the branch of a tree (which might, under the circumstances I have adverted to, be so expected to fall and, hence, had to be guarded against) falling upon these wires, caused in the absence of the use of a grounding at the transformer, the current of 2,200 volts to be carried in the primary wire to pass into the secondary wire md thereby to the houses only prepared or supposed to be only prepared to resist, or rather receive with safety, a current of one hundred and eight volts.
The result in each house in question herein was a fire and destruction of property.
The appellant Vandry was indemnified for part of his loss by the insurance companies which, in turn, were subrogated for him in respect of so much thereof as so paid, and they sue by virtue of such subrogations.
Other companies claim in subrogation of the other sufferers. Nothing turns upon the question of subrogation beyond one or two points of procedure and costs to be referred to hereafter.
The learned trial judge held the respondent liable mainly, if not entirely, upon the ground that there was a means well known to the respondent which it ought to have adopted, but did not adopt, to provide for just such probable contingencies as happened, and, for the reasons I already have given, were likely to happen.
That means was the grounding at the transformer of the secondary wire whereby the augmented current therein caused by the accident would have been conducted to earth instead of into the houses in question.
The means, of insuring safety by grounding secondary wires at the transformer is thus referred to by Mr. Herdt, one of the respondent's scientific expert witnesses, as follows:—
Q. You also add that this practice has been carried into effect very generally by most large operating companies?
A. Yes, sir.
Q. That was to your personal knowledge?
A. Yes, to my personal knowledge.
Q. For how many years prior to this letter, had this practice been carried into effect by the large operating companies, as stated by you in your letter?
A. Some of the large operating companies have started grounding transformer secondaries early in 1900, 1902 or 1903, but it has taken them years to carry that out.
Q. But the grounding of transformers was being put into effect by large operating companies ten years prior to your letter?
A. Ten years; hardly ten years.
Q. That is what you have said. You have said twelve years even?
A. It was started.
Q. It was started in or about 1900?
A. In 1902 or 1903.
Q. So, for ten years that had been going on?
A. For ten years that had been going on.
The results are testified to by same witness as follows:— A. Do I personally know of any case where the inside wiring is good and the transformer grounded?
Q. Yes?
A. No, I do not know of any case.
Q. So in all the cases that you are aware of, or that come to your knowledge, when the transformer was grounded and the inside wiring being good, no fire started?
A. No. If I know of any case?
Q. Yes?
A. No, I do not.
The only answer made thereto which seems worth a moment's consideration is that in the case of a defectively wired house there would be a possibility of increasing thereby the danger to life and property therein.
It was further alleged that the houses in question were of the defectively wired class. But how is that an answer? Had the respondent any right to venture to supply light to such a house? Where in its charter or in law can it find justification for doing so? The means for determining whether or not a house is of that character is referred to by Mr. Herdt, its own witness, as follows:
Q. I am very sorry to say that all that happened. Now I understand that there are some special instruments to test the wiring in a private dwelling?
A. Yes.
A. Are they expensive instruments?
Counsel for defendant objects to this question.
A. No.
Q. These tests may be easily made by the electrical company?
Q. Very easily.
Q. Easily made?
A. Easily made.
Q. And it is a perfectly safe test?
A. Perfectly safe test.
Q. If the wiring will hold that test, then the transformer can be grounded without any trouble?
A. Well, the different companies may have different methods of testing, different requirements of testing; but generally speaking, the insulation resistance test is not a difficult one to make.
Q. So as an electrical engineer, you know of not only one method of testing, but of several good methods of testing? A. Yes.
Q. And if the wiring will pass that test, why, you can recommend the grounding of the transformer?
A. Yes, sir.
Q. As a safety device for life and fire?
A. Yes, sir."
And Mr. Wilson, another of its witnesses, says
Q. It is quite easy for the electrical company to test the wiring of the houses as you do in Montreal?
A. Yes, they can test to find out if there is ground, easy enough.
Q. And your practice in Montreal is to refuse current to any house that will not stand the test?
A. Well, we have to cut them off.
Q. So that good wiring won't suffer for the bad?
A. We exact now a certificate from the Fire Underwriters to connect the thing.
And this condition of things had prevailed in Montreal, he tells us, since 1909, about four years before this accident.
Surely the distance between Montreal and Quebec is not so great as to have prevented the intelligence of what was known at the former place to have reached the understanding of those in the latter place conducting a business wherein it became their bounden duty in law to recognize the advancement of scientific knowledge and the results of experience in order that they might exercise due care and have some regard to the protection of the lives and property of others.
Mr. Wilson tells us that previous to 1905 they had been so unfortunate as to have had two or three people killed by primaries and secondaries coming into contact.
Suppose there had been someone killed instead of only a fire occasioned by the neglect of duty on the part of the respondent's management, and the manager had been placed on trial for manslaughter and the evidence herein, and especially of his perversity, spread out in his correspondence with Mr. Bennett appealing to him for a change of methods and practice, had been adduced, I am puzzled to know what answer he could have made to such a charge. Yet substantially the question here involved and that in the case I put are the same. The only difference is that one depends on the interpretation to be put upon two articles of the Code designed to secure a remedy for those suffering from the neglect of others and in the Criminal Code is expressed in sections 247 and 262 combined in slightly different language.
I can understand the case of a man in the situation of Vandry having contracted himself out of any recourse against the respondent. That, however, is not pretended here. All we can infer from what appears is that there must have been a contractual relation between the respondent and someone to light, by means of electricity, the premises in question in each case.
It was the duty of respondent to have seen to it when applied to for such a service that it could perform the service with something like reasonable safety for life and property.
Was this appellant Vandry or his tenant the Hunt Club the applicant for the service herein? So far as the printed case goes I am unable to discover. He had bought the property from the club in February, 1912, and agreed to lease it to the club. He had apparently been a member of the club when, in 1909, the work was done of installing electrical appliances therein, and I gather had been on a committee having to do with letting that contract.
If the relations between the parties had been more accurately and definitely put in evidence it would have been more satisfactory.
In many cases of negligence the legal relationship between the parties concerned must be examined with care. The nature and quality of the act or omission called negligence can only in many such cases be determined as result of such examination.
The relation between a company like the respondent and a tenant can hardly as of course and of necessity explain away all the rights of the owner seeking relief against negligent conduct of the company towards him such as in evidence herein.
If the tenant and company were both found to have entered, without his permission, into any enterprise endangering the premises, that would not of itself answer the claim of the owner.
As this phase of the matter was not presented in argument and the evidence is far from clear, the only use I wish to make of it is by way of illustration of how little there is, when one comes to consider the respondent's pretentions in the answer it makes, relative to the failure to protect by grounding the wire.
In such a case as I put, and as possibly in fact exists herein, there could be found no excuse for attempting to supply electric current without testing to see if the fixtures were sufficient to ensure safety when protected by means of grounding. If so found it could and should protect by grounding. Otherwise it should, out of regard to the lives and property of others, refuse to turn its dangerous machine's destructive forces upon the property.
It seems, from the evidence, clearly established that when this course is pursued there is practically no danger of fire or loss to any one; save in the possible loss to the company of the possible profits derivable from an undesirable customer. It should never be forgotten that in such case the safety of adjacent properties either not using electric lights, or using them with the very best electrical fixtures available, are all jeopardized by following any other course.
I think the duty was the same in the case of any one applying as owner for lighting to be done, unless the owner contracted to assume the risk.
The owner's ignorance is generally as great, when he contracts for such service, as if he had never been consulted, as in the case I put of a tenant doing so behind his back as it were. But even in such a case what right has the respondent or any like company to endanger adjacent properties of others? The franchise given by its charter never was intended to permit such a course of conduct.
Again in the case of any one being applied to, who is supposed to possess skill in his business, to undertake anything for someone relying upon his skill, he is not generally supposed to presume that the man he is to serve knows as much as he. If he neglects to inform him of the risks he runs he is negligent of his duty in the premises.
How much more must that be implied in the case of one who has to answer for his conduct under article 1054 of the Civil Code?
Again, it has been well pointed out by Mr. Justice Carroll (if he is right in assuming the rules appearing in the case apply to respondent's contract), one of the rules it requires to be observed is:—
The consumer is not permitted to make additions or alteration in his installation without receiving the written consent of the company.
This seems to pre-suppose an inspection and a contract in relation to the existing features as the basis of acting.
Assuming, for argument's sake, the answer made which I have been considering to present something arguable, I am far from accepting the view presented by counsel for respondent relative to the facts as bearing out his argument.
The report of Morissette looks as if many things had to be rectified, but that was a year before the fire and what happened meantime I cannot assume to have been complete neglect of the report and its requirements and I cannot find it satisfactorily explained in a way to support the contention.
Nor does the evidence seem to bear out the suggestion of its construction being old, as it seems to have been done over in 1909 under a contract intended to satisfy the underwriter.
In my view, however, this does not matter for it certainly, even if all that is claimed by respondent, would not prove that the best wiring would have prevented a fire with a current of 2,200 volts which it seems to be admitted entered the house as result of the accident.
I, however, do not find the respondent excused thereby. I think it might well be found guilty of negligence under article 1053 C.C. But, at all events, under article 1054 C.C. it clearly was negligent and has not upon the evidence been excused in any way.
I see no difficulty in the pleading which is comprehensive enough to cover either case the evidence fits.
I think article 1054 C.C. fits the pleading and the proof. And both pleading and facts adduced in proof thereof peculiarly fit the case for which article 1054 was framed.
I am not disposed to fritter away the effect which should be given and I think was intended to be given respectively to the admirable and comprehensive articles 1053 and 1054 C.C. for the respective situations to which each is applicable.
The respondent failed in its obvious duty under the then well known results of experience and the advancement of scientific knowledge, to take proper precautions.
It had no right in law to attempt to shift, as it did, long before this accident now in question, the responsibility devolving upon it under the law in such circumstance or await the result of a public prosecution by way of indictment for continuing a public nuisance.
It should have refused to undertake anything so easily discoverable as likely to endanger the property of others and constitute an indictable nuisance and must be assumed to have run the risk of negligently so proceeding.
To appeal to force majeure as a defence under such circumstances seems an idle confusion of thought.
The judgment in the case of The Canadian Pacific Railway Company v. Roy[6], relied on by respondent, at foot of page 230 and top of page 231, disposes, in the following sentence, of all that rests therein:—
The permission, of course, does not authorize the thing to be don/?/ negligently or even unnecessarily to cause damage to others.
This was, if ever there was, an unnecessarily causing of damage.
The appeal should be allowed with costs here and in the court of appeal and the judgment of the trial judge be restored.
The question of procedure invoked by the respondent is one with which we never interfere unless something more than costs is involved and that is all that seems to me in that regard involved herein.
Duff J. (dissenting).—I have throughout used the word "appellants" as if the actions had been brought on behalf of the owners of the property and that it was the owners who are now appealing to this court.
The first question to be decided turns upon the effect of certain statutory provisions upon which the appellants rely. The principal Act of the respondent company is ch. 59, of 58 & 59 Vict. (1895), in which the undertaking of the company (then known as the Quebec Montmorency and Charlevoix Railway Company) was declared to be a work for the general advantage of Canada and by which it was further declared that that Act and the "Railway Act" of Canada should apply to the company and its undertaking instead of certain statutes of Quebec. The statute of 1895 was amended by chap. 85 of 62 & 63 Vict. (1899), and by this statute the name of the company was changed to the name which it now bears. By the Act of 1895 the company was authorized to "construct, work and maintain" a railway in, among other places, the streets of Quebec and telegraph and telephone lines; and extensive compulsory powers were granted for these purposes. By section 2 of the Act of 1899 the company was authorized to:—
(A) " manufacture, furnish, use and sell or lease in the city and district of Quebec, light, heat and motive power, generated from electricity, and construct, acquire, work and carry on any lines of wires, tubes or other apparatus for conducting electricity either by land or water;
(B) " acquire lands, water powers and watercourses, and erect, use and manage works, machinery and plant for the generation, transmission and distribution of electrical power and energy;
(C) " build power houses and stations for the development of electrical force and energy, and acquire the factories or stations of other like companies, or lease their works, equipments, appurtenances and power;
(D) "acquire any exclusive rights in letters patent, franchises or patent rights for the purposes of the works and undertakings hereby authorized, and again dispose of such rights."
For the first time apparently, the appellants raised the point in this court that section 13(e) of the Act of 1895 has the effect of imposing upon the respondent company an absolute responsibility for harm arising from the working of the company's undertaking. I quote section 13 in full:
Section 13:—With the consent of the municipal council or other authority having jurisdiction over the roads and streets of any city, town, municipality or district, the company may, by its servants, agents or workmen enter upon any public road, highway, street, bridge, watercourse, navigable or non-navigable water or other such places in any city, incorporated town, village, county, municipality, district, or other place, for the purpose of constructing, erecting, equipping, working and maintaining its lines of telegraph and telephone and lines for the conveyance of electric power upon, along, across, over and under the same; and may erect, equip and maintain such and so many poles or other works and devices as the company deems necessary for making, completing and supporting, using, working and maintaining the system of communication by telegraph and telephone and for supplying power; and may stretch wires and other electrical contrivances, thereon; and, as often as the company, its agents, officers or workmen think proper, may break up and open any part whatsoever of the said public roads, highways, streets, bridges, watercourses, navigable and non-navigable waters and other like places subject, however, to the following provisions, that is to say:
(a) The company shall not, in the construction or operation of its lines, interfere with the public right of travelling on or using such public roads, highways, streets, bridges or watercourses, and other like places, and shall Dot do any unnecessary damage, nor in any way obstruct the entrance to any door or gateway or free access to any building erected in the vicinity;
(b) The company shall not affix any telegraph or telephone wires less than 22 feet above the surface of the street or road, nor erect, without the consent of the municipal council having jurisdiction over the roads or streets of the municipality, more than one line of poles along any street or road;
(c) In all municipalities the poles shall be as nearly as possible straight and perpendicular, and shall, in cities, be painted, if so required by any by-law of the council;
(d) Whenever, in case of fire, it becomes necessary for its extinction or for the preservation of property, that the poles or wires should be cut, the cutting under such circumstances of the poles or any of the wires of the company, under the direction of the chief engineer or other officer in charge of the fire brigade, shall not entitle the company to demand or to claim compensation for any damage thereby incurred;
(e) The company shall be responsible for all damage which its agents, servants or workmen cause to individuals or property in carrying out or maintaining any of its said works; (f) The company shall not cut down or mutilate any shade, fruit or ornamental tree;
(g) In all municipalities the opening up of streets for the erection of poles, or for carrying the wires underground, shall be subject to the supervision of such engineer or other person as the council appoints for that purpose, and shall be done in such manner as the council directs: the council may also direct and designate the places where the poles are to be erected in such municipality; and the surface of the streets shall in all cases be restored as far as possible to its former condition by and at the expense of the company.
(h) No Act of Parliament requiring the company in case efficient means are devised for carrying telegraph or telephone wires under ground, to adopt such means, and abrogating the right given by this section to continue carrying lines on poles through cities, towns or incorporated villages, shall be deemed an infringement of the privileges granted by this Act, and the company shall not be entitled to damages