c VOL. XIII.] EXCHEQUER COURT REPORTS. 479 IN THE MATTER OF the Petition of Right of ELIZABETH JOHNSON SUPPLIANT; 1911 March 15. AND HIS MAJESTY THE KING RESPONDENT. Public Work—Injury to the person—Fatal accident .to workman—Negligence— Evidence--Statement of witness before the Coroner's Inquest—Inadmissi• bilitp.• On the trial of a petition of ri ght for damag es a gainst the Crown, arising out of an accident on a public work, whereby the suppliant's husband was killed, the plaintiff sought to read and put in evidence the statement of a deceased witness who had been sworn and gave evidence before the coroner at the inq uest into the death of the suppliant's husband some five years before the trial of the petition. At this inq uest the Dominion Government was not represented by counsel, or otherwise, and had no opportunity of cross-examinin g the witness whose statement was so tendered. Held, that in the absence of an opportunity on the part of the Dominion Government to cross-examine the witness before the coroner, his evidence was inadmissible. Sills v. Brown (9 C. & P. 601) considered and not followed. The evidence on the whole case showing that the accident was solely due to the ne gligence of the deceased in attempting to climb upon a swing-brid ge while it was in motion, the petition was dismissed. PETITION OF RIGHT for damages arising out of an accident to a workman on the Welland Canal. The facts of the case are stated in the reasons for judgment. March 7th, 1911. The case now came on for hearing at Welland. F. Morison, for the suppliant, applied for leave to read and put in evidence the statement of a witness, now deceased, who had given evidence before the coroner at the inquest into the death of the deceased. The Crown was not represented at the inquest. He relied
380 EXCHEQUER COURT REPORTS. [VOL. XIII. 1911 on Sills v. Brown (1). He also cited Boys on Coroners JoUNSON (2) ; the Canada Evidence Act, section 10; section 20 of THE KING. The Exchequer Court Act; Filion v. The Queen (3) ; Argument Ryder v. The King (4); Williams v. Birmingham of Counsel. -- Battery (5); Smith v. Baker (6). T. D. Cowper for the respondent contended that the evidence before the coroner tendered on behalf of the suppliant was inadmissible. The case of Sills y. Brown has been criticized by Taylor in his work on Evidence and other text writers of authority, and has not been followed by recent cases. He cites Taylor on Evidence (7) ; Phipson on Evidence (8) ; Russell on Crimes (9). In the case Reg. v. Rigg (10), Smith, J. refused to admit evidence before the coroner when the prisoner was not present. (Cites Roscoe's Nisi Prius Evidence (11). The facts in evidence disclose that the sole cause of the accident was the carelessness of the suppliant's husband in attempting to climb upon the swing-bridge while it was in motion, and the petition ought to be dismissed. CASSELS, J. now, (March 15th, 1911) delivered 41. judgment. The petition of right is filed on behalf of the widow of Aaron Johnson, in his lifetime a carpenter on the Welland Canal. On the 30th April, 1906, the said Aaron Johnson while working at the Allanburg Bridge, met with an injury which resulted in his death on the 8th May, 1906. On the 9th of May, 1906, J. W. Schooley, coroner for the County of Welland, summoned a jury with a view to enquiring as to the death of Aaron Johnson. (1)9C.&P.601. (6) [1891] A. C. 325. (2) 4th ed., p. 290. (7) 9th ed. vol. 1, p. 340. (3) 4 Ex. C. R., 134. ' (8) 3rd ed. pp. 400, 401. (4) 36 S. C. R., 473. (9) 7th ed. vol. 3, p. 2245. (5) [1899] 2 Q. B., 338. (10) 4 F. & F. 1085. (11) 18th ed., p. 201.
• VOL. XIII.] EXCHEQUER COURT REPORTS. - - 381 . At the trial before me at Welland, application was 1311 made on behalf of the suppliant for leave to read the JOHNSON v. evidence of one Edward Smith, who was sworn and THE KING. gave evidence before the coroner. I reserved judg- R easons for ment in order to consider .the question of the admissi- Judgme nt. bility of this evidence. Counsel for the suppliant and respondent have since the trial filed with me written arguments in favor of and against the granting of the application. I am of opinion that the evidence is not admissible. It is alleged that Edward Smith died within a few days previous to the trial. This fact is not disputed. The proceedings at the trial were conducted by both counsel in a liberal manner, and it may possibly be that outside of the legal question strict proof has not been furnished on behalf of the suppliant to enable her to have the evidence received, if admissible. If hereafter it is desired to appeal from my judgment, and any objection is taken on this head, I give liberty to the suppliant to file affidavits, if so advised, in order to put her in a correct position. I hardly • think, however, this will be necessary. Counsel for the suppliant relies upon the case of Sills v. Brown, a case decided in 1840. It is reported in 9 C. & P., at page 601. In the report of the case it is stated that the witness had been examined before the coroner on the enquiry concerning the death of the plaintiff's son, and since his examination had gone abroad. It was proposed on the part of the defendant to read his deposition taken on oath before the coroner. This was •objected to on the part of the plaintiff. Coleridge, J. was of opinion that under the circumstances the deposition ought to be admitted, and being properly proved it was read in evidence. This case has not been approved of. In Regina v. Rigg, (1), which was a case of manslaughter, it appearing (1) 4 F. & F. 1085.
382 EXCHEQUER COURT REPORTS. [VOL. XIII. 1911 that a witness was too ill to be examined on the trial :JOHNSON . of the prisoner, it was proposed by the prosecution to v THE KLNO. put in evidence the deposition of the witness taken Seasons for before the coroner. Smith, J., refused to admit it Judgment. on the ground that it was taken in the absence of the prisoner. Reference may he made to Phipson on Evidence, (1) ; Taylor on Evidence, (2) ; Odgers on Evidence (3) ; and Boys on Coroners, (4) . The Crown as represented by the Dominion had no opportunity of cross-examining this witness Smith. I think the suppliant entirely fails in the proof of her case. It is quite clear from the evidence that the unfortunate man Aaron Johnson, the deceased, moved towards the bridge in a northerly direction, and was getting up while the bridge was in motion, his foot slipped and thereby the accident happened. If he had waited as he should have done until the bridge came to a stop, the accident would not have occurred. The witnesses John C. Johnson, William Scott and Frederic Edgar gave their evidence in a manner which satisfied me that they were speaking the truth. They are all respectable men so far as I could judge. The only evidence against their statements is that of one Edward Doherty. His statement is that instead of the accident occurring within three or four feet of the northerly side, that it occurred three or four feet towards the south side. Doherty at the time of the accident was between 14 and 15 years of age. The accident occurred five years previously to his giving his testimony. The witnesses on the part of the Crown had reason to locate the place of the accident, as on the deceased crying (1) 4th ed., 1907, p. 449. (3) Canadian ed. byRussell, p. 334. (2) 10th ed., 1906, vol. 1, pp. 371.-72. (4) 4th ed. p. 291.
VOL. XIII.] EXCHEQUER COURT REPORTS. 383 out they went to his aid and helped him to the bank. 1911 Doherty's evidence is not very. positive. He is asked JOHNSON asked by Mr. Morison, counsel for the suppliant, this TILE KING. question :— Reasons for eYnagment, "Q. Now you have heard the evidence of Mr. John- son who says this man was injured about two or three feet from the north side of the abutment? What do you say as to that? A. Well, it was on the south side I think." Doherty is, I think, mistaken. The petition must be dismissed—and if the Crown asks for it, with costs. Judgment accordingly. Solicitors for suppliant: Staunton, O'Heir & Morison. Solicitors for respondent: Harcourt & Cowper. 25
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.