Breslin v. Driscoll, [1956] S.C.R. 64 (1955)

Supreme Court of Canada

Breslin v. Driscoll, [1956] S.C.R. 64

Date: 1955-11-15

J. Edward Breslin and Sam Breslin, Carrying on Business Under the Firm Name and Style of Breslin Industries, (Defendants) Appellants;

and

Samuel Joseph Driscoll (Plaintiff) Respondent.

1955: June 21, 22; 1955: November 15.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence-Invitee-Dangerous Premises property of Third Party-Liability of Invitor knowing of danger and failing to warn of hidden peril-Breach of City By-law.

The respondent with another truck driver was instructed by a fuel company to deliver two truck loads of coal to the appellants' premises. On arrival they were told to put the coal through a window in the east wall of the appellants' building by one of the appellants' employees who for the purpose removed a wooden covering from the window. The east wall was separated from the street curb by a sixteen foot concrete strip, and a station wagon was parked near the window. After it was moved by the appellants' employees, the respondent's companion moved his truck close to the window. The appellants knew, but the respondent did not, that the truck was then over a part of the cellar which extended under the strip and that the latter formed part of the city sidewalk. The respondent was between the truck and the wall when the concrete collapsed causing the loaded truck to tilt and pin him against the wall. In an action in damages for injuries sustained.

Held (Locke J. dissenting): That the appellants were liable.

Per Kerwin C.J., Estey and Cartwright JJ.: The appellants invited the respondent to use a part of the highway adjoining their premises in the course of carrying out a mercantile transaction in which both they and the respondent were interested, without warning him that such use was attended by a hidden peril of which they knew and of which he was ignorant. The appellants' contention that the injuries were caused by the joint negligence of the two truck drivers in driving an overloaded truck on the sidewalk in contravention of a city by-law did not amount to negligence contributing to the accident. It was at most a causa sine qu...

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