Wade v. Canadian National Railway, (1977) 17 N.R. 378 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 30, 1977
• Jurisdiction: Canada (Federal)
• Citations: (1977), 17 N.R. 378 (SCC);[1978] 1 SCR 1064;3 CCLT 173;22 NSR (2d) 540;17 NR 378;1977 CanLII 194 (SCC);80 DLR (3d) 214;31 APR 540

Wade v. CNR (1977), 17 N.R. 378 (SCC)

MLB headnote and full text

Wade v. Canadian National Railway

Indexed As: Wade v. Canadian National Railway

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

September 30, 1977.

Summary:

This case arose out of a claim for damages for personal injuries arising out of the operation of a train. The plaintiff, an 8 year old boy, attempted to jump onto a slow moving freight train operated by the defendant railway. The boy fell under the wheels of the train and lost a leg below the knee. The boy just prior to the accident was playing with a friend on piles of sand which were on the railway right of way and located about 50 feet from the train tracks. The boy had previously played in the area and had never been warned away. A jury in Nova Scotia found the defendant railway 100% at fault and assessed the boy's damages at $150,000.

On appeal to the Nova Scotia Court of Appeal the appeal was allowed and the jury verdict was set aside - see 14 N.S.R.(2d) 541. The Nova Scotia Court of Appeal held that the jury verdict was perverse. The Nova Scotia Court of Appeal held that the boy was capable of contributory negligence. The Nova Scotia Court of Appeal affirmed the negligence of the railway in failing to take reasonable steps to warn or guard children against a slow moving freight train. The Nova Scotia Court of Appeal held the boy 50% at fault and the railway 50% at fault. In addition, the Nova Scotia Court of Appeal reduced the damage award in favour of the boy from $150,000 to $75,000.

On appeal to the Supreme Court of Canada the jury verdict and the judgment of the Nova Scotia Court of Appeal were set aside. The Supreme Court of Canada dismissed the action against the railway. The Supreme Court of Canada stated that no reasonable occupier could have forseen that a boy, playing on a pile of sand 50 feet from the railway track, would leave the pile of sand and attempt to jump onto a slow moving passing train - see paragraph 14.

Laskin, C.J.C., Spence and Dickson, JJ., dissenting, in the Supreme Court of Canada, would have set aside the judgment of the Nova Scotia Court of Appeal and would have restored the jury verdict in toto. Laskin, C.J.C., stated that there was evidence upon which the jury could find that the railway was negligent. Laskin, C.J.C., stated that the railway was precluded from arguing on appeal that it owed no duty to the boy where at trial there was a case made to go to the jury - see paragraph 33. Laskin, C.J.C., stated that on an appeal from damages fixed by a jury that the damages should not be disturbed unless they are "wholly out of all proportion" - see paragraph 44.

Railways - Topic 5378

Operation - Duty of railway to persons on railway land - Rights of way - An 8 year old boy and a friend played in a pile of sand on a railway right of way and upon seeing a slow moving freight train the boy attempted to jump onto the train and was injured - The pile of sand was 50 feet from the railway track - The boy had previously played in the area and had never been warned away - The Supreme Court of Canada dismissed the boy's action for damages against the railway - The Supreme Court of Canada stated that no reasonable occupier could have forseen that a boy, playing on a pile of sand 50 feet from the railway track, would leave the pile of sand and attempt to jump onto a slow moving passing train - See paragraph 14.

Railways - Topic 5378

Operation - Duty of a railway company to persons on railway land - Rights of way - Railway Act, s. 214 - The Supreme Court of Canada stated that the statutory duty to fence does not extend to erecting a fence at each public crossing so as to stop all persons from walking along the right of way - See paragraph 8.

Railways - Topic 5378

Operation - Duty of railway company to persons on railway land - Rights of way - The Supreme Court of Canada stated that the duty of care of a railway respecting its rights of way between level crossings is not as high as its duty at level crossings proper - See paragraph 12.

Damage Awards - Topic 131

Leg injuries - Amputation of leg below the knee - Eight year old boy - The Supreme Court of Canada approved an award by the Nova Scotia Court of Appeal of $75,000 general damages for personal injuries including $25,000 for prostheses - See paragraphs 1, 2 and 21.

Torts - Topic 6612

Defences - Contributory negligence of children - An 8 year old boy attempted to jump onto a slow moving freight train - The boy fell under the wheels of the train and lost a leg below the knee - The Supreme Court of Canada approved a finding of the Nova Scotia Court of Appeal that the boy was capable of contributory negligence and should have known that it was dangerous to try to jump onto a moving freight train - See paragraphs 1, 2 and 21.

Practice - Topic 5112

Juries and jury trials - Functions and powers of a jury - Area of competence, verdicts - The Supreme Court of Canada stated that on an appeal that respect for jury verdicts "does not go beyond the area of their competence, namely, the determination of facts" - See paragraph 5.

Cases Noticed:

Mitchell v. Canadian National Railway Company, 1 N.R. 344; 6 N.S.R.(2d) 440; [1975] 1 S.C.R. 592, folld. [paras. 8, 34].

Jenkins v. Great Western Railway, [1912] 1 K.B. 525, folld. [para. 10].

Paskivski v. Canadian Pacific Limited, 5 N.R. 1; [1976] 1 S.C.R. 687, folld. [para. 12], refd to. [para. 45].

Amos v. New Brunswick Electric Power Commission, 13 N.B.R.(2d) 307; 13 A.P.R. 307; [1977] 1 S.C.R. 500, folld. [para. 13].

Ouellet v. Cloutier, [1947] S.C.R. 521, folld. [para. 13].

University Hospital Board v. Lépine; Monckton v. Lépine, [1966] S.C.R. 561, folld. [para. 13].

British Railways Board v. Herrington, [1972] A.C. 877, dist. [para. 17].

Veinot v. Kerr-Addison Mines Limited, 3 N.R. 94; [1975] 2 S.C.R. 311, refd to. [para. 17].

Acadia Coal Company, Limited v. MacNeil, [1927] S.C.R. 497, dist. [para. 18].

Pinkas v. Canadian Pacific Railway Company, [1928] 1 W.W.R. 321, folld. [para. 18].

Brisson et al. v. Canadian Pacific Railway Company et al., 69 W.W.R. 176, folld. [para. 19].

McEllistrum v. Etches, [1956] S.C.R. 787, folld. [para. 37].

Nance v. British Columbia Electric Ry., [1951] A.C. 601, refd to. [para. 43].

Sparks and Fairfax v. Thompson, 1 N.R. 387; [1975] 1 S.C.R. 618, refd to. [para. 43].

Statutes Noticed:

Railway Act, R.S.C. 1970, c. R-2, sect. 214 [para. 8].

Authors and Works Noticed:

Fleming, Law of Torts, 4th ed., (1971), page 232 [paras. 38, 40]; 376 [para. 34].

American Law Institute Restatement of Torts, lst ed., vol. 2, s. 283, 283(a) [para. 41].

Counsel:

Harry E. Wrathall, Q.C., for appellant;

John J. Robinette, Q.C., T. Winton Toward and K. Koenigsberg, for respondent.

This appeal was heard by LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., at Ottawa, Ontario on June 1, 1977.

The judgment of the Supreme Court of Canada was delivered on September 30, 1977 and the following opinions were filed:

de GRANDPRE, J. - see paragraphs 1 to 21.

LASKIN, C.J.C., dissenting - see paragraphs 22 to 46.

MARTLAND, JUDSON, RITCHIE, PIGEON and BEETZ, JJ. concurred with de GRANDPRE, J.

SPENCE and DICKSON, JJ. concurred with LASKIN, C.J.C.