Lord Wright-

In this case the respondent who was plaintiff in the action was awarded by a jury the sum of $11,15825 as damages for personal injuries sustained by him by reason of the negligence of the appellants who were owners of the motor omnibus which caused the injuries. The judgment for these damages was upheld by a majority of the Court of appeal for Manitoba and that judgment was affirmed by the Supreme Court of Canada. The appellants by this appeal are raising questions on the construction of certain sections of the Act in force at all material times, the Manitoba Motor Vehicles Act. The material section is S. 62 which is in the following terms :

“When any loss, damage or injury is caused to any person by a motor vehicle the onus of proof that such loss, damage or injury did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle, and that the same had not been operated at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of the highway or place where the accident happened or so as to endanger or be likely to endanger the life or limb of any person or the safety of any property shall be upon the owner or driver of the motor vehicle."

Reference was also made to S.15 which reads as follows :

“Every motor vehicle shall be equipped with adequate brakes sufficient to control such motor vehicle at all times and with a wind shield wiper and also with suitable bell, gong, horn, or other device which shall be sounded whenever it shall be reasonably necessary to notify pedestrians or others of the approach of any such vehicle."

That section however is a penal clause involving penalties for its breach under S. 52 of the Act, and is not material in a case of civil liability such as the present : it may accordingly be disregarded for the present purpose. The facts of the case are very simple: On 22nd April 1928, at about 9 p. m. in Winnipeg, the respondent was sitting in the rear seat of an open touring car which was held up for the moment at a street-crossing by the traffic signals. While thus stationary the car was heavily run into from behind by the appellant's motor omnibus. The respondent sustained serious cerebral injuries as the result of the violent jerk, which developed into paralysis agitans involving it may be total and permanent disablement.

It appeared that the brakes of the omnibus had failed to act, so that notwithstanding the efforts of the driver, the omnibus crashed into the back of the car in which the respondent was seated. The failure of the brakes was according to some of the appellants' evidence due to the loss or breaking of a small pin in one end of the brake evener or equaliser thereby interrupting the operation of the braking system, both in regard to the pedal or service brake and to the hand or emergency brake since both depended on the same evener. But the evidence led on this point by the appellants may be thought to have failed in accuracy and completeness. The pin itself was not preserved or produced and the evidence of the mechanic who repaired the omnibus later is difficult to reconcile with that of the appellants' superintendent of the bus and brake equipment. The omnibus itself was the only one of that type owned by the appellants who operated in all 49 omnibuses and had been bought second hand some few years before the appellants had no other omnibuses equipped with similar braking apparatus evidence as to inspection of the omnibus was given by the appellants; the practice was stated to be to give the machinery what was called a light inspection after every 750 miles of running and a complete overhaul after every 5,000 miles but the omnibus in question had nevertheless run 1,000 miles since the last light inspection about two months before: the pin was said to be one about which, as it did not wear and had no lost motion, the inspectors would not bother except just to see that it was all right and had got a cotter pin