recklessness, a motorman increases speed, in the hope of avoiding an acci-
dent, the railway company is not liable for injuries occasioned thereby to
a passenger of the jitney. [See Annotation in 1 D.L.R. 783.]
Moore v. B.C. Elec. Ry. Co., 35 D.L.R. 771.
DRIVER OF MOTOR CAR NEGLIGENCE OF STREET CAR CONDUCTOR PROXIMATE
CAUSE.
The negligence of the plaintiff in misjudging the speed of an oncoming
street car will not prevent him from recovering damages for injuries caused
by his car being hit by such street car, where the real proximate and deci-
sive cause of the injury was that the motorman was running the car at such
an excessive rate of speed that he could not stop the car within a reason-
STREET RAILWAYS. 700
able distance and avoid the result of the plaintiff's negligence which Bight
hare been anticipated.
Parsons T. Toronto Ry. Co., 48 DX.R. CT8.
COLLISION WITH PEBSON CROSSING STREET SIGNALS PROXIMATE CAUSE.
.Sitkoff T. Toronto Ry. COL, 29 D.L.R. 498.
XBGUGEXCE ESCAPE OF ELECTRIC CUBBEXT JUBISDICTION OF COMMISSION
APPEALS FROM CoNSTrnmoNALiTT APPOINTIVE POWERS.
Winnipeg Eke. Ry. Co. r. Winnipeg; Re Public Utilities Act. 30 D.I*R.
159.
ACCIDENT AT tiRfc*J CBOSSLNG EXCESSIVE SPEED OF CAB FAIUTBE TO
SOUND GONG COLLISION WITH AUTOMOBILE.
That the driver of an automobile, when about to cross a street railway
track at a street intersection where his view was obstructed by a fence at
the edge of the sidewalk, erected about a building in course of construction,
could have seen an approaching car had he looked a. second sooner, does not
establish contributory negligent Miffieient to defeat a recovery for a col-
lision with the car. which was running, in violation of a municipal regula-
tion, at a high rate of speed without its gong being sounded. [Toronto Ry.
Co. v. King, [1908] A.C. 26<. applied: Toronto Ry. Co. v. GosnelL 24 Can.
S.C.R. 582; and Grand Trunk Ry. Co. T. Griffiths. 4-5 Can. S.CJL 380.
specially referred to.]
Simington v. Moose Jaw Street Ry. Co.. 15 D.L.R. 94.
PERSON CROSSING TRACK RELIANCE ox BULES PROPER SPEED AXD OPERA-
TION SCOPE OF ".STOP. LOOK AND LISTEN" DOCTRINE.
Where the plaintiff, about to cross a street railway track, sees the ear
moving at .such a distance away that he thinks it safe to venture across the
short distance he has to go. he has the right to assume such, safety and that
the ear is being operated properly and not at an excessive rate of speed.
Where a person on foot is about to cross a street railway track having
taken the precaution to look once and having reasonably formed the opJRJUB
that it is safe to cross the track because an approaching car is at such a
distance that, if operated in a usual and proper manner, the pedestrian can
safely cross: the trial Judge is in error, if be states the law as imposing a
duty to look again, or continue looking and keeping the car in sight, as a
condition precedent to any right of recovery. [Myers v. Toronto Ry. Co., 10
D.L.R. T54. reversed.]
Myers T. Toronto Ry. Co.. 18 DJLR. 335.
iNJUBT TO PERSON ALIGHTING FROM CAB OUTWABD SWING OF RKAR STEPS
PROXIMATE CAUSE OF ENJURT DUTY or COMPAXT TO PASSENGER.
The obligation of the defendant company to the plaintiff, as its passenger.
did not end until she reached a place from which she might have safely
passed from the point of debarkation to the place where she had to go to
transfer to another line. The obligation of the company was greater
towards a passenger who had not completed his journey, but in order to
do that had to transfer to another line than it would be to a passenger who
had completed his journey: but. even as to such a passenger, the company
was bound to provide a stopping place at which the passenger could pro-
ceed to the sidewalk without having to pass through such a pool of water a-
existed at the usual place for crossing or subjecting him to the danger,
before be bad reached the sidewalk, assuming that he had not nnnecessarilv
delayed in crossing, of being struck by a car when it was swinging around
a curve such as existed at the stopping place. The plaintiff was still a
710 STREET RAILWAYS.
passenger when she was struck by the rear end of the steps of the car as it
swung outwardly in rounding the curve; the company owed her a higher
duty than if she had been merely a traveler upon the highway; the serv-
ants of the company were guilty of negligence in starting the car without
first making sure that the passengers who had left it were not still bo-
tween it and the wagon ; and that negligence was the proximate cause of
the plaintiff's injury. Judgment of Middleton, J., 44 O.L.R. 232, 46 D.L.K.
722, affirmed.
Barr v. Toronto Ry. Co. and Toronto, 46 O.L.R. 64.
COLLISION UPON HIGHWAY OF AUTOMOBILE AND KI.ECTRIC STRKET CAR AC-
TION BROUGHT BY DRIVER ADDITION OF OWNER AS CO-PLAINTIFF
JUDGE'S CHARGE FINDINGS OF JURY OPERATION OF "BACKING" STREET
CAR CONTROL FROM FRONT QUESTION FOR ONTARIO RAILWAY AND
MUNICIPAL BOARD NEGLIGENCE OF CONDUCTOR "MISJUDGING COURSE
OF AUTOMOBILE" FAILURE OF DRIVER OF AUTOMOBILE TO GIVE SIGNAL
WHEN TURNING.
O'Dell v. Toronto Ry. Co., 44 O.L.R. 350.
INJURY TO PASSENGER FALL CAUSED BY BREAKING OF STRAP PRIM A FACIE
NEGLIGENCE RES IPSA LOQUITUR ABSENCE OF EVIDENCE OF INSPECTION
FINDING OF JURY NONDIRECTION NEW TRIAL HUSBAND JOINED AS
CO-PLAINTIFF.
The fact that the strap by which the plaintiff was supporting herself,
standing in the car, broke when called on to bear the strain, cast upon the
company the burden of shewing that the breaking was not due to any negli-
gence on its part. The case was one for the application of the rule res
ipsa loquitur. [McPhee v. Toronto and Bulmer (1915), 9 O.W.N. 150;
Sangster v. T. Eaton Co., 25 O.R. 78, 21 A.R. (Ont.) 625; T. Eaton Co. v.
Sangster, 24 Can. S.C.R. 708, and Toronto Ry. Co. v. Fleming (1913). 4?
Can. S.C.R. 612, -followed.] The company adduced evidence for the purpose
of rebutting the prima facie presumption which arose from the breaking of
the strap, but made no attempt to shew that the strap had been inspected or
les*ed, or that any system of inspection or testing was in use, nor to shew
how long the strap which broke had been in use. The jury should have
been instructed that the burden of rebutting the presumption of negligence
which arose from the breaking of the strap was upon the company, and
that unless that burden had been satisfied the plaintiffs were entitled to
succeed; and, the jury not having been so instructed, and their findings
as to negligence being unsatisfactory, the ends of justice would be best
served by setting aside the judgment and directing a new trial. [Judg-
ment of 'Meredith, C.J.C.P. 44 O.L.R. 568, reversed.]
Brawley v. Toronto Ry. Co., 46 O.L.R. 31.
RES IPSA LOQUITUR JERKS AND JOLTS.
A jerk or jolt of a street car while receiving passengers, resulting in a
passenger being thrown off and injured while attempting to board the car,
is prima facie proof, without more, that the accident was caused by the neg-
ligence of the railway company, to which the principle of res ipsa liquitur
applies. [See Imperial Tobacco Co. v. Hart (N.S.) 36 D.L.R, 63.]
Johnson v. Halifax Elec. Tramway Co., 36 D.L.R. 56.
DUTIES AS TO SPEED AND SIGNALS AGREEMENT WITH MUNICIPALITY AS TO
RIGHT OF PEDESTRIAN TO ASSUME COMPLIANCE.
When by an agreement between a municipal corporation and a company
operating street cars, it is provided that the company will not run its
STREET RAILWAYS. 711
ears at a greater rate of speed than tea Biles an boor within city limits,
without the permission of the corporation, and that a gong shall be sounded
within fifty fleet of each crossing. A person crossing the road where the
street ears are operated has the right to assume that the drivers of the ears
will comply with these regulations. [Simington T. Moose Jaw Street By.
Co, 5 W.W.B. 759, followed.]
Brown T. Moose Jaw Eke. Co^ 1 W.WJL 693.
DTTT WHEX AwmoAcmxc A CVDSSIXG.
It is quite a frequent and expected practice for the public to cross a street
behind a car stopped at a corner of a street. This crossing being dangerous
on account of a ear which mar be coming in the opposite direction, it ought
to be the object of special precaution on the part of the employees of the
company. And a car passing another ear at rest, discharging passengers,
ought to go at such a speed as to enable it to be stopped almost instantly.
And a motorman. at a moment when, by the presence of another ear at rest,
is unable to see persons approaching from the other side of the street,
ought to keep his attention absolutely rivetted so as to be able to avoid any
danger which might arise.
Burton T. Montreal Tramways Co.. 51 Que. SLC. 74.
COUUSIOX WITH ACTOMOBUJE - C<HCCCXT XBGUGEVCZ.
In an action for damages for negligence in the operation of a street ear
colliding with plaintiff's automobile, where it is found that the plaintiff was
himself negligent and his negligence was concurrent with the negligence of
the defendant which, e-g.. excessive speed, was both primary and ultimate.
the plaintiff cannot recover. [Bice T. Toronto By. COL, 20 O-L.R. 446. fol-
lowed.]
United Motor Co. T. Begina. 10 SJ-.R. 373, 3 W.W.R. 509.
G. Doty towards Passenger*; Injuries to.
DESTIXATH>X OF CA SIGX-BOABDS IXMCATESG Dcrr or pASSEXcnt TO
IXQCDBE.
There is no obligation on the part of a railway company to carry a pas-
senger through to his destination in any one particular car. The only con-
tract on the part of the company is to carry passengers in accordance with
the usual modes and methods of running its trains; and it is the pi men
ger's duty to protect himself by * "' inquirv as to the destination of
the ear he enters.
O'Connor T. Halifax Elec. Tramway Co., 38 X.SLB. 212.
[Affirmed 37 Can. S.CJJ. 523.]
Acraexr BT ALIGHTTVC FKOM CAB CBOSSCSG TKACK.
Plaintiff in returning home at two o'clock in the morning on a west
bound car on the north track of defendants' street railway alighted from
the ear and proceeded to cross the north and sooth tracks on the street
in front of an approaching east bound car on the sooth track then about
100 feet away. There was evidence that the approaching ear was going
at the rate of 8 to 10 miles an hour, and that there was a bright electric
light near by that the plaintiff, if careful, could have seen the car. The
motorman did not apply the brakes or sound the gong before the plaintiff
was struck: Held, that a nonsuit was properly directed.
Gallinger T. Toronto By., 8 O.LJL 698.
[Beferred to in Preston T. Toronto By. Co, 13 OJLB. 369.]
712 STREET RAILWAYS.
INJURY TO PASSENGER AFTER ALIGHTING FROM CAB CONTRIBUTORY.
The plaintiff was a passenger on a crowded car of the defendants going
westward. Being near the front end of the car when it stopped at the
street where he wished to alight, he made his way past a number of peo-
ple in the passage and in the front vestibule to the steps at that end, on
which another man was standing, and stepped oil' the car in the direction
of the parallel track of the railway. Almost instantaneously upon alight-
ing, he was struck by another car of the defendants proceeding eastwards
on the other track, knocked down and very seriously injured. The dis-
tances between the sides of two cars, when passing one another on the
two tracks, was 44 inches, and the height of the lowest step of the car
from the ground was 15i inches. There was no rule of the company pro-
hibiting passengers from alighting at the front entrance of cars, but a
rule of the company required motormen, when approaching another car on
that avenue, to slacken speed and ring the gong continuously until tb<*
car. had been passed. It was the custom of the company to permit passen-
gers to alight at the front entrance. The trial Judge found as facts that
the motorman on the eastbound car did not sensibly slacken his speed or
ring his gong as he approached the other car. The plaintiff was not
aware of the approaching car until it struck him: Held (1), that the
motorman on the car by which the plaintiff was struck was guilty of neg-
ligence, rendering the defendants liable in damages for the injury done to
plaintiff. (2) The plaintiff had not been guilty of such contributory neg-
ligence as to prevent his recovery of damages, as he had a right to ex-
pect that, as far as the acts of the defendants' servants were concerned
he might alight in safety and would have a reasonable time after alight-
ing to look about so as to guard himself against injury from other cars
of the defendants, but was not given that time. [Oldright v. G.T. Ry. Co.
(1895), 22 A.R. (Ont.) 286, and Chicago, M. & St. P. Ry. Co. v. Lowell
(1894), 151 U.S.R, 209, followed.] (3) There is no binding authority for
the proposition that, from the moment a passenger's foot touches the
ground, a street railway's liability for injuries to him by their other car
ceases.
Bell v. Winnipeg Elec. Street Ry. Co., 15 Man. L.R. 338.
[Affirmed 37 Can. S.C.R. 515. 'Referred to in Savers v. B.C. Elec. Ry.
Co., 12 B.C.R. 111.]
PROTECTION OF PASSENGERS ALIGHTING.
The conductor of a street car who, after stopping the car to permit a
passenger to alight, gives the signal to start again before satisfying him-
self that the passenger has safely departed is guilty of negligence and his
employers are liable for any injury that results therefrom.
Dupuis v. Montreal Street .Ry. Co., 16 Que. K.B. 286.
COLLISION INJURY TO PASSENGER READING PAPER.
A street railway company is liable for the consequences of a collision
caused by its curves being too sharp for the length of the cars. Passen-
gers using the cars are not obliged to be on the lookout for accidents and
the fact that a person injured was absorbed in reading a newspaper when
the accident occurred was not evidence of contributory negligence.
Jago v. Montreal Street Ry. Co., 35 Que. S.C. 109 (Ct. Rev.).
DANGEROUS CONDITION OF CAR STEPS DURING STORM DUTY OF PASSENGER
TO EXERCISE MORE THAN ORDINARY CAUTION.
The steps of an electric car owned and operated by the defendant com-
pany, were in a slippery condition in consequence of exposure, while in
STREET RAILWAYS. 713
we. to imam- followed by laia, sfaett aad cold. The i iMian aai.l that
the car lad hem tharaagUy deaacd ia the mnanamg. 3irfore heiBg seat <Mrt_
aad that it woaJd aot haw beta practicable to operate it im smA weather
as that which prevailed at the tne aad to sead it hade ramstmmtSy to the
ifcara to haw the *aww aad in rtmand-. Held, that
aad kaua. the car at lach a fiaw won* bond t
.rdinary caatiaB, aad that it maid art he raas0Bahle to hold the MB-
paaj acroaataUr for iajaiirt- sastaiaed hj ptaiatiff. a pBaaeager MB ox> of
their car*. who. ia gettiag off the ear, slipped aad ML
MeCoTBMck r_ Sydaey 4 Glace Bay By. Co, 37 XJ&R.
to tag disarraagiBg the sdwdale tnae of
ran, thev wne aos ravaia* oa tiaw. That which the plaiatiaT was nfiag
oa a bridge. There was art at i ear iaiBMJiateiy ahead whkh.
voBhl take phuatif to her dcfltJairiaa before that ia vhkh
The eaadactor a^rd or told her aad aaother pa.ntapr to
to that ear. aad ia -foim~ SOL *hc was ia jared by aDia^; OB the
ia the darkae^: HehL that, ia the ahemw of 'eridowe to the
it BBHt he assaawd that the <oad<tor had aathorirr to *w hi*
ia the oFemmstamet* to formard the pasBeagers to their destiaa-
The mmstiam of the scope of the oadat*or$ aathorily hana* btum
twice bnm^fat to the aotire of the Jadfe daria* the triaL yrt he did aot
diredt the jmtj am that poiat, aad the cast kavimg beea allowed to go to
thoa widmt'directiaBu aad ao objectioB takm to the charge oa that a<-
<BBiL Held, that this broaght the case withia Scott T. Fcraie <1*M . 11
R.C.R. 91. aad therefore the effect of what was doae was that the b&ae*
were accepted OB both &ddes as the oahr iiitaej. OB which the
SchaeJl v. British Cofaoabia Eke. Er. Cu 15 R.C.R. 37*. 14 WUL 5ML
I3KJTBT 1O PASSEXOEB COUJSKHT OF CJLKS MIOa3tX\ ABAXBOCTSC COX-
TBOLLEB - COXBCCIOK 4CTEXC AS
The pbiatiA*. a phj ih-iaa eagagcd aad paid tar a special eJeetrit car of
the d*4t*daatis to coawr Mat froai a place at a d^taace froat his INNBM-
after the ngidar cars had ceased i aaaia^ at a^ht. While he was trar-
efiag ia the car o faraiihed. aaother eketrie car of the defeBdaats raa
to h. aad the piaiatiff was iajared. It appeared that the awtonaaa of
the car which was at faalt had ibiBdnaed the coatroDer to the coadacior,
aad was hiatself act lag aa coadartor. which was agaiaot the defeadaan^'
tales aad aa&atkoriimi by theaL The ptuatiff~s anaBgoaeBt for the spe-
cial car was aiiir with the toadartoi of the ear by which he w*at ovt
to the dktaat place, aad he paid the BMoxy for the car to the coadaetor.
aad ioaad the car aaitiag for hiai whea he was iiailj to letaia. Ia aa
for daauges for the pbuatdB^s iajaries. the defeadaats raued the
that the coadactor who chartered the car to the phuatif wa*
aot shewB to haw had aathorny to do so: Held. that, by proria* bi
coatract with the toadartor aad that he paid for the car aad wa* ivcrnwi
ia it aad carried, the pbuatiff atade oat a piiaai facie case of aathority:
ad, ia the a^encr of aay eiideace to the coatrary, it Bnet be a^maaed
that the car ma* dahr let: aad. ia aay eivav. the pbuatif was, at the
time of the mfficMB, iavfaOy trawliBg OB oae of the defeadaats 7 r*
operated by th>ai oa their liae of railway, aad had paid for the prnrOeg*
of s tnwfiagc. At the trial, the jary food that the Butonaaa ia linn
lag places with the coadactoi acted ia breach of his duty; aad to the
j-8 . -Was there ae^ligtatfe. aad, if so. what <iid it
714 STKEET RAILWAYS.
answered: "The failure of the servants of the company in performing their
duties": Held, that the motorman's negligence in leaving the controller
was the effective cause of the injury, and that the defendants were liable
for the result of that negligence. [Engelhart v. Farrant, [1897] 1 Q.B.
240, followed.] Held, also, that the findings of the jury sufficiently estab-
lished the negligence and the breach of duty on the part of the motorman,
and also that his action, in conjunction with that of the conductor, caused
the accident. The very fact of the collision was evidence of negligence
causing the accident. Per Perdue, J.A. : From another standpoint, the
defendants' contract was, that their servants should use care and diligence
so that no accident should happen; and, in order to make the defendant
liable, it was enough to shew that the negligence which caused the plain-
tiff's injury was that of the defendants' servants. Per Richards, J.A. :
The exclusion from the evidence at the trial of the defendants' printed
rules for the guidance of motormen, whether proper or not, did the de-
fendants no wrong; the only object of putting in the rules would be to
prove that the motorman was forbidden to delegate or abandon to others
the performance of his duties; and that fact was otherwise well proved.
Hill v. Winnipeg Elec. Ry. Co., 21 Man. L.R. 442.
DUTY TO ASSIST PASSENGERS SCOPE OF CONDUCTOR'S AUTHORITY.
Plaintiff came to a platform station of the defendants and signalled an
approaching car to stop. The car slowed down but did not stop, and as it
was passing the conductor seized plaintiff's hand and while attempting to
help her on board signalled to car to go on again which it did and she
was injured. The jury found that the plaintiff was injured by the con-
ductor seizing her hand and trying to pull her on the car, and that he
acted negligently: Held, that it was the duty of the conductor to assist
people in getting on and off the car and that it might be within the line
of his duty to assist those apparently about to get on a car while it was
slowing up; that the scope of a conductor's authority is one of evidence;
that there was evidence to go to the jury and that the effect of it was
for them to consider and that it should have been left to them to pass upon
the circumstances of the case as to the scope of the conductor's authority.
Judgment of Street, J., at the trial, reversed.
Dawdy v. Hamilton, Grimsby & Beamsville Elec. Ry. Co., 2 Can. Ry.
Cas. 196, .5 O.L.R. 92.
NEGLIGENCE FRIGHT NERVOUS SHOCK.
Fright or a nervous shock from which a physical injury results, may
lie a ground for an action en responsabilite against the person through
whose fault it happened. [Victorian Railway Commissioners v. Coultas,
13 App. Cas. 222, discussed.]
Montreal Street Ry. Co. v. Walker, 4 Can. Ry. Cas. 227, 13 Que. K.B.
324.
INJURY TO PASSENGER ALIGHTING FROM CAR CROSSING UEHIND CAR DUTY
TO SOUND GONC REGULATIONS OF CROSSING.
The plaintiff was a passenger on a car of the defendants, and stepped
from it while it was in motion, as it reached a street crossing; the motor-
irian had been signalled to stop, but failed ,to do so. The plaintiff alighted
safely, but found himself in front of a horse and cab swiftly driven
towards him. In order to avoid a collision with the horse, and also in
order to cross to the west side of the street, the plaintiff turned behind
the car he had just left and passed on towards the other track; as he
STREET RAILWAYS. 715
readied it. he became aware of a car coming towards him at a rapid rate,
and to avoid being ran don he flan* himself on the fender, thus string
his life, bat he was seriously injured. In an action to recover damage*
for his injuries he was a witness at the trial, and said that it was im-
possible to get oat of the war of the car: he did not hear the gong sound,
although if it had been rung he would hare heard it- By one of the
regulations forming part of the agreement between the city corporation
and the defendants, validated by 57 Viet. c. 76 (O.i. under which the
defendants operated their cars on the city's highways, it was provided
that each car was. to be supplied with a gong, to be sounded by the driver
when the car approached to within -50 feet of each crossing. This was
not brought to the attention of the Judge at the trial. The plaintiff.
however, was aware that it was the usual practice to sound the gong at
crossings, and he expected it to be done when a car was approaching a
crossing: Held. that, even if the regulation had not the force, of a statu-
tory requirement the proof of failure to comply with a precaution which
the defendants had reoognutd as important for the safety of persons
using the crossing on streets occupied by the railway, was evidence for
the jury of negligence in the conduct of the car: and the question whether
the gong was sounded was for the jury. Semble, per Moss, CLJ.O-. that
the term ^crossing" in the agreement, is intended to indicate any place on
or along the streets occupied by the railway where there is a walk laid
for the purpose of enabling foot passengers to cross from one side of the
street to another, and where the cars would stop to take up or let down
passengers: and is not confined to the crossing of an intersecting street.
The Court declined to interfere with the discretion of the Court below in
withholding costs from the plaintiff, in setting aside a nonsuit and grant-
ing a new trial. Order of a Divisional Court, affirmed.
\VaIlingford v. Ottawa Eke. By. Co., 6 Can. Ry. Cas. 454, 14 O.L.R.
- .
ACCIDENT LEAXMG OVE TO EXFECTOKATE STKCCK BT POST.
The plaintiff, as a passenger, was, about midnight, standing on the
back platform of one of the defendants" cars, smoking a cigar and lean-
ing upon the railway gate or grating at the side, over which he leaned,
from time to time, a distance from five to seven inches, and expectorated.
Apparently while doing so. he was struck by something and received the
injuries complained of. The plaintiff alleged, in his statement of claim,
that he was struck by a post belonging to the defendants and used by
them for their trolley wire, but gave no evidence as to this. As a matter
of fact, there were trolley poles along the line of the defendant railway
on the side where the plaintiff was struck, but there was no evidence
given by the plaintiff of their position, and the evidence for the defendants
placed them about two feet from the overhang of the car: Held (re-
versing the judgment of the Divisional Court. 10 O.W.R. 33 1, that the
plaintiff's action should be dismissed, as there was no evidence of what
caused the injury; Meredith, JJL, dissenting. Per Riddel 1. J. (in the
Divisional Court i : While it is impossible to lay down any specific rule
for the guidance of railways or street railways generally, a railway oper-
ating in a country in which tobacco chewing or gum chewing is not un-
common must expect its patrons, or some of them, to be tobacco and gum