Kauffman v. T.T.C
 O.R. 197-206
ONTARIO [COURT OF APPEAL]
AYLESWORTH, GIBSON AND MORDEN, JJ.A.
5th MARCH 1959.
Negligence — Alleged act of negligence — Necessity of causal connection — Failure to test — Irrelevancy
Before a person can be held liable for negligence it must be shown that the alleged acts of negligence have a causal connection with the resulting injury. Where therefore a jury found as an act of negligence the installation of an escalator having a radically new design of hand rail without sufficient testing the essential features of the hand rail, the finding was not and could not be interpreted as a finding of negligence as failure to test the hand rail — which was not supported by the evidence in any event — was not a causa causans of the accident.
Negligence — Failure to take precaution — Test of duty to take precaution.
In considering whether a person had taken proper precautions to prevent accident the test is not whether, if a suggested precaution had been taken, the accident would not have happened, but whether he was under a duty to take that precaution. In deciding that question, if there is proof that a precaution is usually observed by others, a reasonable and prudent man will observe that precaution in like circumstances. Failing such proof the test is whether the precaution is one which a reasonable and prudent man would think so obvious that it was folly to omit it. So where a jury made a finding of negligence based on lack of supervision and it was shown that in similar operations elsewhere supervision was not provided, the finding is perverse and must be set aside on appeal, especially where the evidence failed to show that the provision of supervision would have prevented the accident.
THIS was an appeal by the defendant from the judgment of McLennan, J., entered on the findings of a jury in favour of the plaintiff.
The plaintiff was using an escalator at the St. Clair station of the defendant’s subway. She was going up and ahead of her was a man who was preceded by two youths who were scuffling and fell back against the man. He in turn fell back against the plaintiff and she was seriously injured in the fall in the fall with the others on top of her. The jury found the defendant negligent (1) in installing an escalator with a moving hand rail of the particular type used without testing its friction qualities and (2) in failing to supply supervision.
Hon. R.L. Kellock, Q.C., and D.J. Wright, for the defendant, appellant: The plaintiff’s allegations and the jury’s first finding were not of negligence in non-repair but in the purchase of the hand rails. The evidence shows that there was a careful investigation made by the defendant and the decision was made on the basis that the type chosen was safer than the older type. There was no evidence to support the jury’s suggestion that no tests were made, there are no scientific tests applicable, other than those of sight and feel. The installation of the escalator according to the relevant statute, is strong evidence of its fitness: Hudson’s Bay Co. v. Wyrzykowski,  S.C.R. 278, at p. 282, Readhead v. M.R. (1869), L.R. 4 Q.B. 379, at p. 381, Elliott v. T.T.C.
(1926), 59 O.L.R. 609, at pp. 615-6-7, Alexander v. City & S. London R. Co. (1928), 44 T.L.R. 450, Gebbie v. Saskatoon,  4 D.L.R. 543, at p. 550, Lucy v. Bawden,  2 K.B. 318, Spracklin v. T. Eaton Co. (1954), 11 W.W.R.N.S. 333. The trial Judge failed to direct the attention of the jury to the application of the law of standard of care to the facts in this case, and without this guidance the jury misapplied the standard to the tests made by the appellant: Fralick v. G.T.R. (1910), 43 S.C.R. 494, per Duff, J., at pp. 519-20, Macdonald v. T.T.C.,  O.W.N. 610. The jury’s findings were not directed to allegations in plaintiff’s claim and the first finding is perverse. The jury’s second finding that the defendant failed to supply supervision would mean that the defendant is almost in the position of an insurer which it is not. This finding is vague as it does not indicate what act of negligence is the basis for the finding. The jury avoided facing the questions put to it by the trial Judge: Andreas v. C.P.R. (1905), 37 S.C.R. 1, at p. 10, Antaya v. Wabash R. (1911), 24 O.L.R. 88, at p. 93, Newberry v. Bristol Tramway (1913), 107 L.T.R. 801, St. Amour v. O.T.C.,  O.W.N. 367.
E.L. Haines, Q.C., for the plaintiff: At the trial the competency of the defendant’s engineers was in issue. There is ample evidence to support the jury’s first finding. The duty of a carrier is heavier than that of an invitor: Thompson v. Cremin,  2 All E.R. 1185, Larsen v. Prince Albert & N. Bus Lines Ltd.,  3 D.L.R. 756, Mysted v. Wings Ltd.,  3 D.L.R. 336, Barkway v. S. Wales T. Co.,  1 All E.R. 392, at p. 403-4, Law Reform Committee Third Report (1954), p. 24, para. 56. Elliott v. T.T.C., supra, distinguished as in the present case the hazard was known and this case must be read with DeCourcey v. London St. R.,  O.R. 226, at p. 234. That the design of the hand rail was a causa causans is to be inferred from the evidence as it is instinctive for anyone falling to put out his hand to save himself and this hand rail was inadequate. If there had been an attendant, assistance to the plaintiff would not have been delayed and her injuries would have been mitigated.
Kellock, Q.C., in reply.
J.H.C. Cur. adv. vult.
MORDEN, J.A., delivering the judgment of the Court:– (After stating the facts) The duty owed by a carrier to its passengers is a high one. Speaking of this duty Montague Smith, J., said in Readhead v. M.R., (1869), L.R. 4 Q.B. 379, at p. 393:–
‘Due care’, however, undoubtedly means, having reference to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order.
This principle has been adopted and applied in many cases. I refer to Pyne v. C.P.R.,  3 W.W.R. 125, at p. 126, Day v. T.T.C.,  S.C.R. 433, at p. 441, Ludditt v. Ginger Coote Airways,  A.C. 233, at p. 240, Barkway v. S. Wales T. Co. Ltd.,  1 All E.R. 392, at pp. 403-4. Nevertheless a carrier is not an insurer of its passenger’s safety and it is not obliged by law to conduct its operations in such a manner that nobody by any possibility be hurt: Alexander v. City & S. London R. (1928), 44 T.L.R. 450.
The particulars pleaded of the defendant’s negligence in so far as they are material for the consideration and disposition of this appeal are as follows:–
4(a) It failed to provide an attendant who could stop the escalator, or in the alternative if an attendant was provided he failed to stop the escalator when he knew or ought to have known the plaintiff had fallen.
(b) In designing the escalator it failed to take into consideration the danger inherent in its use, namely, that it would be subject to large crowds attempting to ride it at the same time and what might be expected to happen if someone above lost his balance and fell against those below.
(c) It failed to design a hand rail adequate for the purpose, especially in the event passengers were jostled by those above.
(d) It failed to provide adequate supervision of its passengers to prevent them jostling each other while on the escalator.
(f) It failed to erect signs showing the location of the emergency buttons so that those in the vicinity of the escalator could stop it readily.
The jury found the defendant negligent specifically as follows:–
1.The defendant, in acquiring an escalator of radical departure in hand rail design, did not sufficiently test or cause to be tested by a qualified expert the co-efficient of friction and contour of the Peelle motor stair hand rail.
2. The defendant failed to supply supervision.
I will consider these findings separately.
The plaintiff’s case was that the defendant failed in its duty to the plaintiff in selecting and installing the Peelle escalator in its St. Clair Station rather than an escalator of other manufacturers which were available to the defendant. The Peelle escalator’s moving hand rail is round, corrugated and metal clad and had been designed and developed about the year 1949; the other type of hand rail is oval in shape and made of black rubber — a design in general use for a great many years. In spite of some evidence to the contrary there was ample evidence for the jury to find (and I must say that I consider the conclusion self-evident) that a human hand, bare or gloved, would obtain with the exertion of the same pressure, a more secure grip upon the oval rubber rail than it would on the circular metal rail. Although the expression co-efficient of friction was used frequently by counsel and witnesses throughout the trial and, not surprisingly was adopted by the jury, no relative figures showing the difference were given in evidence. It is sufficient, however, in my opinion, to say that the rubber rail had adhesive greater than the metal one and it follows that a person in danger of failing could secure a firmer hand grip on the rubber rail than on the other.
Evidence was given on behalf of the defendant to the effect that the hand will not disengage as freely from the rubber rail as from the metal one at the point where the rail enters the newel post and that in the Peelle escalator, in contrast with the others then available, the movement of the rail was synchronized with the movement of the steps. It is clear from the evidence that the defendant in selecting the Peelle escalator with its particular hand rail, which is in use in other places, was not indulging in a rash experiment.
The jury found that the defendant did not sufficiently test or cause to be tested the co-efficient of friction and contour of the Peelle rail. It might be inferred from the jury’s finding that if the defendant had made the suggested tests it would have rejected the Peelle escalator in favour of the other type. However the evidence does not support any such inference. Mr. Paterson, the defendant’s chief engineer in charge of the subway, made it clear that in his opinion the oval rubber hand rail should not have been selected just because it had greater adhesive qualities, as the following extract from his cross-examination shows:–
Q. Do you agree with me it is a matter of considerable importance they have a hand rail with a good co-efficient of friction?
A. If I agreed with that I would say I should have specified a rubber hand rail instead of the hand rail we have designed.
Q. So you will not agree with me?
In my view, the facts of tests made or which might or should have been made by the defendant were completely irrelevant to the issue of the defendant’s liability. The plaintiff attacked the hand rail in its design and not the failure of the defendant to test it. A jury’s answers should not be subjected to meticulous criticism, but should be given the fullest possible effect and should be upheld if it is possible so to do upon any reasonable construction of them in the light of the pleadings and proceedings at the trial: B.C. Electric R. Co. v. Dunphy (1919), 59 S.C.R. 263, at p. 271, Graham v. Regent Motors Ltd., O.W.N. 276. Bearing in mind the pleadings, the evidence at the trial and the charge to the jury, I am prepared for the purpose of this appeal to construe this finding of the jury as equivalent to a finding that if the defendant had tested the Peelle hand rail for comparative co-efficient of friction, it would or should have rejected it and that its negligence consisted of selecting, installing and maintaining an escalator with an inadequate hand rail.
The theory advanced by the plaintiff’s counsel to quote his own words was that in the operation of an escalator, particularly in a public transit system where large crowds are to be expected, if a person near the top falls backward (for whatever reason) against the person behind him, each person will fall against the other knocking him down in much the same fashion as a row of dominoes.
But there was a total absence of evidence that the man immediately ahead of the plaintiff or the two reckless and irresponsible youths ahead of him were grasping or attempted to grasp the handrail before or in the course of the scuffle and consequent falling. Nor was there any evidence that in the circumstances the plaintiff would not have fallen if her hands had been grasping a rubber oval hand rail. In my opinion, there was no evidence to justify a finding that the type of hand rail in use at the St. Clair station was a contributing cause of the plaintiff’s unfortunate and serious accident. It is a fundamental principle that the causal relation between the alleged negligence and the injury must be made out by the evidence and not left to the conjecture of the jury: Davis v.
L. & B. R. (1861), 2 F. & F. 588 and Simpson v. Belleville (1917), 40 O.L.R. 406, at p. 414. The first finding of negligence in view of the evidence in this case does not justify a verdict against the defendant.
The second ground of negligence found by the jury was that the defendant failed to supply supervision. Counsel for the appellant made a vigorous attack upon this finding. He submitted that if it meant the defendant should have provided attendants whose duty it would be to prevent passengers jostling (as pleaded in para. 4(d), then it was not a good finding in law. The respondent’s counsel submitted that the jury meant the failure of the defendant to have an attendant immediately beside the escalator whose duty it would have been to stop the escalator at the time the riders fell: para. 4(a). There was evidence that the plaintiff suffered the greater part of her injuries after her fall and as she was being carried up the escalator lying under the bodies of two or three persons.
For the purposes of this appeal, I am prepared to construe liberally this finding of the jury and accept the interpretation the respondent’s counsel places on it.
The learned trial Judge told the jury that if there is reasonable ground for apprehending danger from any external cause, such as acts of third persons, the defendant is bound to guard against them according to the best practical means at its disposal, and in discussing the allegation that the defendant failed to provide an attendant, instructed the jury to ask themselves, would an attendant have been an effective measure? Taking a broad interpretation of the finding, it then becomes evident that the jury were of the opinion that if an attendant had been present, the plaintiff would not have sustained the injuries she did. Again with respect to this answer I hold the view that the jury did not direct their minds to the real issue on this branch of the case, viz. — was the defendant under a duty to the plaintiff and the travelling public to have attendants at this escalator and in fact at all their escalators? It must first be determined whether there was a duty to provide an attendant and if there was, then — would the presence of an attendant have prevented this accident?
Whether or not there is sufficient proof of a defendant’s duty to take precautions is often a nice question. The principle to be followed in seeking the answer is stated by Lord Dunedin in Morton v. Dixon,  S.C. 807, at p. 809, as follows:– Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either — to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or — to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.
After quoting these words, Lord Normand said in Paris v. Stepney,  A.C. 367, at p. 382:–
The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.
The same view was expressed in the Privy Council in Vancouver Gen. Hosp. v. McDaniel,  4 D.L.R. 593, at p. 597 where Lord Alness said:–
A defendant charged with negligence can clear his feet if he shows that he has acted in accord with general and approved practice.
See also Whiteford v. Hunt,  W.N. 553.
In such a case as this it may easily be found that the accident would not have occurred if a particular precaution had been taken by the defendant, but before liability can attach it must be found that the defendant was under a duty to have taken that precaution. In Crafter v. Metro. R. Co. (1866), L.R. 1 C.P. 300, the plaintiff fell on a staircase leading from the station to the street. The steps were edged with brass which with use had become worn and slippery. One of the plaintiffs witnesses suggested that the brass nosings were improper and that lead would have been better because less slippery and that there should have been a hand rail. The jury’s verdict for the plaintiff was set aside on the ground that there was no evidence of negligence to go to the jury. Montague Smith, J., said at pp. 304-5:–
The line must be drawn in these cases between suggestions of possible precautions and evidence of actual negligence such as ought reasonably and properly to be left to a jury. It is difficult in some cases to determine where the line is to be drawn; but here I have no hesitation in saying that there was no evidence of negligence which my Lord could properly leave to the jury. There was nothing unusual in the construction of the staircase. The use of brass for protecting the edges of the stairs, and the absence of a hand rail, which alone were relied on by the plaintiff, are by no means unusual in staircases of a similar description where the traffic is great. They were obvious to every one using the stairs, and were well known to the plaintiff himself.
The plaintiff has no right to complain of the absence of accommodation of an unusual kind. The mere fact of the plaintiff having fallen and hurt himself is not sufficient to charge the company with negligence … . Every case of this kind must be decided upon its own particular facts and its surrounding circumstances; and the Court is in an especial manner bound to see that the evidence submitted to the jury an order to establish negligence is sufficient and proper to go to them.
The uncontradicted evidence was that in operations similar to the Toronto subway, in Philadelphia, Boston, Chicago and Cleveland there are no attendants at the escalators. The same is true of New York except at two particular locations part of the time. On behalf of the plaintiff evidence was given of the practice in large stores in Toronto where sales clerks serving in the vicinity of the escalators are instructed in the method of stopping them in an emergency. The defendant followed the usual practice of other carriers in like circumstances. There was no evidence that the posting of attendants at every operating escalator was such an obvious precaution that it was foolhardy for the defendant to omit to do it. The duty of a carrier does not extend to the elimination of all possible risks to travellers in the crowded and busy conditions of every day life in a large city. In my opinion, it was not open to the jury upon the evidence in this case to find that the defendant was under a duty to provide attendants. It is beyond the province of a jury to find as negligence the failure to take new precautions greater than those commonly in use in similar circumstances in the absence of evidence that it would be unreasonable and imprudent to omit them. It is open to a jury, indeed it is their function, to determine the particular standard of care in situations where the judgment of reasonable men might differ: Prosser, Torts, 2nd ed., pp. 191-4. Counsel for respondent cited Hudson’s Bay Co. v. Wyrzykowski,  S.C.R. 278, as authority for the proposition that the existence of the duty to take precautions is a question for the jury. I do not so regard that decision. There an infant aged 4 years was injured while riding on a escalator in the defendant’s store. The jury found for the defendant. The Manitoba Court of Appeal ordered a new trial and this order was affirmed by the Supreme Court. It was decided by both appellate Courts that a certain report of a government inspector was wrongly admitted in evidence. In addition to this, it was held that the trial Judge in his charge to the jury did not sufficiently differentiate the defendant’s duty to a small child from its duty to an adult. Davis, J., at p. 287, said:– Did the defendants act reasonably in permitting the child to use this apparatus in the absence of some such safeguard for the child’s protection? That is a real problem that should have been put squarely before the jury.
One of the safeguards previously mentioned by the learned Judge was the presence of an attendant. There is no statement of the evidence at the trial on this point. The evidence at the new trial on this point might have shown in the circumstances there existing that this precaution was a very obvious one for the defendant to take. I cannot regard the reasons of Davis, J., concurred in by Duff, C.J.C., as establishing as a matter of law that when the issue of proper precautions is raised, a trial Judge and appellate Courts are bound in every circumstance by the finding of the jury on this issue. The Hudson’s Bay case, does not support the broad proposition advanced by the respondent’s counsel on this appeal; the Supreme Court were not required to and did not decide the validity of it.
In my view the jury in making the second finding have made one which is not supported by the evidence and one as to the defendant’s duty to the plaintiff which is not binding on this Court and which we can and should review. For the reasons I have given, it cannot stand.
The appeal must be allowed and the action dismissed, both with costs, if demanded.
Solicitor for the appellant: J.W.H. Day, Toronto.
Solicitors for the respondent: Haines, Thomson, Rogers, Howie & Freeman, Toronto.