Fleming v Toronto Railway

Fleming v. Toronto Railway Company

1911 CarswellOnt 702, 20 O.W.R. 827
Ontario Court of Appeal — Hon. Mr. Justice Maclaren, Hon. Mr. Justice Meredith | December 30, 1911

Background

On August 10, 1910, Fleming was a passenger on a Toronto Railway Company streetcar when an electric explosion occurred in the car's controller, injuring him. The explosion was unusually violent — it stunned the motorman and caused panic among passengers. Fleming sued the railway company for $1,200 in damages, alleging negligence in failing to properly inspect the controller or maintain it in proper working order.

At trial, the railway company tried to defend itself by presenting inspection records showing the car had been properly maintained. They called Barton, a foreman who supervised inspections at one of their barns, to testify about these records. However, the trial judge excluded this crucial evidence, ruling that Barton couldn't use the written inspection reports to refresh his memory unless he had an independent recollection of the specific inspection.

Issues

1. Did the trial judge improperly exclude material evidence about the railway company's inspection records?
2. Whether the evidence supported the jury's findings of negligence against the railway company

The Evidence Exclusion Rule

The Court of Appeal found that the trial judge applied too narrow a rule about refreshing memory from documents. The trial judge had ruled that a witness could only use written records to refresh memory if they already had some independent recollection of the events. But the Appeal Court said this was wrong — citing legal authorities showing that a witness can refer to contemporaneous records they made or verified, even without independent memory.

Justice Maclaren explained that if Barton could identify his signature on inspection reports and swear that he never signed false reports, that would be "very good evidence" — even if he couldn't independently remember the specific August 7, 1910 inspection. The court referenced cases where witnesses successfully used their own written records: barristers referring to case notes they'd forgotten, agents using memoranda of lease terms they couldn't recall, and journalists citing articles about facts they no longer remembered.

Key Takeaway

Witnesses can use their own contemporaneous written records to testify about events they can no longer independently remember, as long as they can verify they made or checked those records when the facts were fresh.

This case shows how evidence rules can dramatically affect trial outcomes — the railway company lost at trial partly because they couldn't present their best defense evidence, leading to a new trial being ordered.