1884

CITY OF HALIFAX

บ.

middle of the street. At most of the storms last winter there was
more or less drift. In February the streets became worse. A heavy
drifting storm early in January. Snow fell more or less in drifts.
It did not drift much in Lockman street, which is narrow, but it
became very bad with deep pitches in consequence of the snow being WALKER.
thrown off the sidewalks. Granville and Hollis streets were also
very bad and pitchy. One pitch measured was four feet deep.
These pitches wreck the carriages and strain the horses, and break
the harness, traces, whipple bars, etc. The vehicles were almost
shaken to pieces when we quit running them. Had to repair them
to keep them running. This was caused by the pitching.

Lockman street roadway became so narrow that passing vehicles col-
lided with and tore each other. Operated the sleigh 'buses
till 16th March. The proceeds of the 'buses fell off very
much. The proceeds of February 1882, $307.85. February 1881,
584,70. There was one more 'bus running in 1882, and sometimes
two. The receipts for the month of March, 1881, were $640.50. The
proceeds of March, 1882, up to 11th of the month, was $71.55. When
work was knocked off, in March, 1882, the pitches were still deep,
and it became impossible to draw the 'buses in consequence of the
depth and width of these pitches. Some 'buses would stick in
the holes and the passengers had to get out, to enable men to get
the 'bus out of the hole. The streets began to get very bad after
the 20th January. Gave notice to the Board of Works, to W. John-
son in charge of that office, of the condition of the streets. Asked
him where the chairman was. He said the chairman was away.
Went outside and met Alderman Graham, acting chairman of the
Board. Johnson, the clerk, said he was acting chairman. This
was 21st January. It was before the 25th. Told Graham
that the snow was getting very deep and pitchy, and that 'buses
could not pass on Lockman street. Asked if he could not put
on some men and level the snow between the sidewalks so as to
keep the whole street level. He refused this request. Told him
would lose money heavily every day; that the street was going
to get worse, and that the city would be held responsible for what-
ever loss sustained. He replied that it was the best thing plaintiff
could do. Resumed the work with wheels about the 10th of April.
Was obliged on the 22nd of February to take the 'buses partially off
the road. The pitches were so bad. No amount of skill in driving
would have prevented these accidents. Instructed F. W. Tremaine,
as attorney, and told him to write to the city. Have a license
as 'bus driver from the city. This is the license (put in and read
by J. McD. 1). Paid for it $25.00 to clerk of license. This is
the time-table handed to the city and fixes the streets on which
'buses run.
(J. McD. 2, put in and read). The worst damages
occurred on Lockman street and Hollis street. Counted over one
hundred bad pitches. These are public streets in the city of Hali-
fax, and have known them to be used as such for 25 years. Have

1884

CITY OF HALIFAX

v.

WALKER.

known the city make repairs on these streets. These streets could have been made safe for travel by cutting down the pitches and filling in the holes. Plaintiff levelled two or three of the pitches and thereby made the road at these places smooth and level.

Cross-examined. The principal cause of damage was the depth of the snow, and the pitches and the snow not being level. About half the streets on the whole route were comparatively smooth and passable. Every team that went over these streets, at the times referred to, was subject to the same inconvenience and trouble now complained of. The pitches get heavy with increase of traffic if not kept level, and the evil is increased by pitching the snow off the sidewalks on to the road bed.

John McDonald, sworn. Overseer of streets under the Board of Works. The city, to my knowledge, for twenty years has expended money in repair of Hollis street and Lockman street; also the other streets.

Cross-examined.—I worked on these streets for the city last winter, in January and February. Cut snow banks and levelled them. We continued this as long as there was any snow on the ground, and it was dangerous to the public. Cutting down snow and filling up pitches made road passable and better, but teams coming along dug them out again, and we had to keep the men at it all the time. Somewhere about $1,000.00 was spent in this way last winter on the streets named. I don't remember the particular dates of the work done. Probably a hundred dollars of this amount was spent on Lower Water street, and some portions of that amount spent elsewhere over the city.

Edward O'Brien, sworn.-I am a driver in plaintiff's employ. Have been with him about five years or better. About the middle of January the roads through which I drove were pretty bad, deep snow, heavy pitches, and people pitching snow off the side-walks on to the middle of the street. A hundred or more pitches. Lockman street very bad, also Hollis street from Salter to Morris. For a couple of weeks the roads remained in this condition without repairs. The bad roads lasted till the end of March. I drove constantly during the period I have mentioned. Have got stuck, broke pole and harness. We had many breakages during the latter part of January and early part of February. I destroyed three sleighs last winter; forward bobs broken; broke three poles; drove as slowly and carefully as possible and could not get along. The broken harness was repaired this spring. One or two pitches on Lockman street about three or four feet deep. The roads would be better for a couple of days after pitches levelled. The worst time was from latter part of January till about middle of February. I don't think any repairs were made till February. We carried fewer passengers when the roads were bad. The ladies said they were sick with the pitches. We had to stop to pass a big team in consequence of the

narrowness of the way on Lockman street. The 'buses and horses were injured by getting into these pitches.

I was expressing and

Jonathan Adams.-I am an expressman. cabbing last winter on all the streets of Halifax. No work was done by the city to repair the roads for a month after the drifts. It was after January before they began to level at all. If the drifts had been levelled off after the storm there would have been no pitches at all. They pile the snow off the sidewalk, and, it not being levelled off, bumpers are formed.

The following was stated by the Chief Justice to have been his charge to the jury:

I explained to the jury the nature of the action and the duty imposed upon the defendant corporation to keep the streets and highways of the city in repair and their liability for injuries resulting from the defects in these streets, I instructed them that the state of the particular streets, referred to in the evidence, and as described in that evidence, constituted if proved to their satisfaction, defects of a character similar to that of ditch or cutting in the street caused by water after a heavy rain or freshet, and that, in point of law, the city would be equally liable for defects, obstructions or injury caused by snow allowed to accumulate in excessive quantities and causing the pitches described in the evidence, as for defects, obstructions or injuries caused by rain or other agent. I told them that the defendant would be liable only for injuries caused by a defective obstruction of which they had actual notice, or which had existed long enough or notably enough for notice to be reasonably inferred, and I directed them, if they found that the pitches and obstructions described in the evidence, as caused by the non-removal of accumulated snow from the streets, did exist as testified by the plaintiff's witnesses, that the defendant knew, or reasonably ought to have known, that these defects and obstructions existed and were dangerous to the public passing and repassing along these streets in pursuit of their ordinary business and traffic, and that the plaintiff's horses, carriages and harness were injured and damnified in consequence and by reason of these defects and obstructions in the streets, their verdict should be for the plaintiff.

Gormully, for the appellant. The learned judge's charge is based on the theory that the appellants are liable to be sued by an individual who suffers special damage arising from the non-feasance of the appellants in not keeping the highways within their limits reasonably clear of snow.

At common law, however, parishes and municipal agencies were not liable to actions at the suit of individuals, for

1884

CITY OF HALIFAX

v.

WALKER.

1885

CITY OF HALIFAX

v.

WALKER.

damages arising from the neglect of a public duty imposed upon them by law for the benefit of the public, and from the performance of which such municipal agencies received no profit or advantage. At common law, for want of repair of a bridge or a highway, the remedy and the only remedy against the municipal body was by presentment or indictment. Their liability for non-removal of snow, it is submitted, is not greater than for want of repair. Angell on Highways, sec. 286; Brooke, Abr. Rit. sur le Cas., pl. 93; Russell v. Men of Devon (a); McKinnon v. Penson (b); Gibson v. Mayor of Preston (c).

This has been the universal rule of decision in the New England States, and all the cases on the subject, both in England and America, will be found collected in a judgment of the Supreme Court of Massachusetts, delivered by Gray, C.J., in 1877. Hill v. City of Boston (d).

In order to render the municipal body liable to an action for non-feasance of its duty-causing damage to an individual-the statute which imposes the duty must also give such a remedy. This has been done in Ontario and in a number of the states of the Union.

The measure of the liability of the city of Halifax will, it is submitted, be found in the following statutes of the Province of Nova Scotia. 27 Vict. ch. 84 (city charter, 1864); 35 Vict. ch. 34 (1872).

On the true construction of these statutes the appellants are not liable to an action for non-feasance of their duty, though they may be liable to an indictment.

The case of Borough of Bathurst v. MacPherson (dd), on which the court below relied, is plainly distinguishable. In that case the municipality were held liable not for mere non-feasance, but for mis-feasance in creating a nuisance on the highway.

The duty, if any, of repairing and keeping passable the

(a) 2 T.R. 667.

(b) 9 Ex. 609.

(c) L.R. 5 Q.B. 218.

(d) 122 Mass. 344.

(dd) 4 App. Cas. 256.

streets is imposed on the Board of Commissioners created by the 35 Vict. ch. 34, and that on this ground the city is not liable. Assuming the city to be liable, in an action for breach of the duty to keep its streets reasonably safe, convenient and free from obstructions, the question whether they have been guilty of such breach is a question of fact which ought to have been submitted to the jury by the learned Chief Justice.

The verdict is against law, as it gives damages for loss of profits arising from the respondent being prevented from running his 'buses regularly on a certain line of highways. This is not such special damage as the respondent can recover for. Farrelly v. City of Cincinnati(e); Griffin v. Sanbornton (g); Brailey v. Inhabitants of Southborough (h). It is against law also, as it gives the respondent damages for injuries sustained in consequence of voluntarily using the streets after he admits that he knew that they were dangerous for travel.

The verdict being general, it must be inferred that the jury gave a verdict in favour of the respondent on all the counts of the declaration and awarded some damages on each count. If the verdict does not include profits it is so excessive as to be against law.

The appellants contend that, inasmuch as the 'buses were not marked as required by the city ordinances and statutes in that behalf, the respondent was illegally plying his 'buses for hire on these highways, and on this ground is not entitled to recover. The appellants also contend that, the notice of action was not properly given under sec. 276 of the Acts of 1864.

Henry, Q.C., for the respondent. That the state of the streets was one of non-repair is abundantly established by the evidence. That the admitted condition constitutes nonrepair in law, the following authorities are cited:-Reg. v.

1885

CITY OF HALIFAX

บ.

WALKER.