McCormack v. T. Eaton Co., [1963] S.C.R. 180 (1963)

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McCormack v. T. Eaton Co., [1963] S.C.R. 180 (1963)

Supreme Court of Canada

McCormack v. T. Eaton Co., [1963] S.C.R. 180

Date: 1963-01-22

Emily Jane McCormack (Plaintiff) Appellant;

and

T. Eaton Company Limited (Defendant) Respondent.

1962: December 3; 1963: January 22.

Present: Kerwin C.J. and Taschereau, Cartwright, Fauteux and Judson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Trial-Injuries received in fall on escalator-Action for damages-Questions submitted to jury-Supplementary charges, questions and suggestions-Jurymen confused-New trial directed.

The plaintiff, while shopping in the defendant's department store, stepped on an old-fashioned type of escalator. The heel of her shoe stuck in the tread and while trying to extract it as the escalator was descending, she twisted her body to get her foot from the shoe. She finally succeeded in pulling her foot free but immediately fell backwards to the bottom of the escalator and was injured.

An action was brought and during the trial seven questions as agreed upon were submitted to the jury. The first question, answered in the affirmative, was: "Were the injuries to the plaintiff caused by an unusual danger on the defendant's escalator of which the defendant knew or ought to have known?" In the second question the jury was asked, if the answer to question 1 was "yes", to state fully in what such danger consisted. The answer, based on an exhibit of a sample cleat, stated that it was possible for the cleats to work loose. The trial judge, having asked the jury to retire, said to counsel that the answer to the questions seemed to be inconclusive. The jury was recalled and instructed to return to the jury-room and "if you can, say what the danger was". If they could not, they were to change the answer to the first question to "no", which in the event was done. Subsequently, the jury was reinstructed several times with regard to question 3: "Did the defendant take reasonable care by notice or otherwise to prevent such injury?" It was finally agreed that an answer was not required.

The judgment of the tri...

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