rebates and refunds of tolls which have been charged.
Dominion Concrete Co. v. Can. Pac. By. Co.. 6 Can. By. Cas. 514.
[Followed in Laidlaw Lumber Co. v. Grand Trunk By. Co., 8 Can. Ry.
TOLLS FOB CARRIAGE OF GOODS - BT-LAW FTIX RATES - REASOX ABLEXES5.
An action by plaintiff as liquidator of the Canada Coal t By. Co.. to
recover an amount claimed from the defendant campany for car rental.
etc. Defendant pleaded by way of offset, a claim for repayment of over-
charges for the carriage of coal made by the company in liquidation. The
evidence shewed that the Joggins By. Co., predecessors in title of the
Canada Co., passed a by-law which was approved by the Governor-in-
council fixing the rate per ton for the carriage of coal over their line.
and that the Canada Co. subsequently passed a by-law increasing the rate,
and that the defendant company were charged tolls as fixed by the latter
by-law, although it had never received a sanction of the Governor-in-coun-
cil and they claimed to be entitled to recover the difference between the
two amounts: Held, that the by-law passed by the Joggins Co. relating
to the tolls to be taken by that company, was not a regulation affecting
the road and running with the property, and was not binding upon their
successors in title. Held. also, that the Canada Co. was not liable to
refund moneys paid to them for the carriage of goods simply because they
had failed to secure the approval of the Governor-in-couneil to the by-law
fixing the rates. Held, nevertheless, that the trial Judge should have al-
lowed an amendment applied for on the trial, intended to rai*e the ques-
tion of the reasonableness of the rates taken, and that the appeal must be
allowed and a new trial ordered on this ground.
Rodger T. Minodie Coal Co., 8 Can. By. Cas. 424, 32 X.S-B. 210.
Can. By. L. Dig. 53,
834 TOLLS AND TARIFFS.
SEIZURE FOB UNPAID TOLLS TERMINATION OF CARRIKR'S LIEN DEMAND
By s. 345 of the Railway Act, 1906, a railway company may, instead
of proceeding by action for the recovery of tolls upon goods carried, "seize
the goods for or in respect whereof such tolls are payable, and may de-
tain the same until payment thereof," etc: Held, that a railway company
are not, by this enactment, given a lien on property carried, to such an ex-
tent and of so general and wide an application as to allow them to re-
take goods which have been delivered, and as to which the ordinary carrier's
lien has terminated; the section does nothing more than confirm and estab-
lish the carrier's lien; there is the right to seize and detain, but the right
must be exercised and enforced before there is an absolute and uncon-
ditional delivery of the goods to the consignee. Semble. that in this case
there was not a sufficient demand for the tolls due to the defendants, on
account of which they seized goods which they had previously delivered to
the consignee, the demand being for a gross sum, including a sum for tolls.
Held, also, that the defendants, having converted the goods, were liable
for damages; and the measure was the value of the goods.
Clisdell v. Kingston & Pembroke Ry. Co., 9 Can. Ry. Cas. 73, 1 O.L.R.
CONTRACT CARRIER BY WATER COMPULSORY PAYMENT.
An agreement was completed in Canada with an American steamship
company to carry oats from a port in Ontario to one in the United States,
"at the rate of 2 cents per bushel," and the master of the vessel, as agent
of the steamship company, accepted the cargo as measured by weight on
the Canadian standard of 34 pounds to the bushel, and so indicated on the
bills of lading signed by him at the port, which stated "rate of freight as
per agreement": Held, (Mag.ee, J., dissenting), that the Canadian stand-
ard and not the American standard of 32 pounds to the bushel was to be
applied to the contract. Where, on delivery by vessel of cargo, freight
in excess of the amount due was paid as demanded, without protest
Held, that nevertheless such payment was not voluntary, since, if it had
not been made, expenses for storage, with possibly demurrage and loss
by reason of nondelivery to purchasers, would have been incurred ; and
the excess paid was recoverable by action. A contract by telegram is
made at the place where the telegram of acceptance is sent from.
Melady v. Jenkins Steamship Co., 9 Can. Ry. Cas. 78, 18 O.L.R. 231.
WRONG-BILLING EXCESSIVE TOLLS REFUND.
On an application to recover damages for the company's alleged neg-
ligence in way-billing a skiff to the wrong address, and charging excess
tolls for sending it in a roundabout course to its proper destination, it
being in dispute who was responsible for the erroneous way-billing:
Held, that the Board had no jurisdiction to entertain the complaint; the
complainant must be left to her rights in the Courts. Held, that the
Board could only investigate the error in computing the express tolls of
the company, but as the company offers to refund the excess the Board
should not interfere.
Rogers v. Canadian Express Co., 9 Can. Ry. Cas. 480.
REFUND MISTAKE PUBLISHED TARIFFS UNJUST DISCRIMINATION.
Application for a refund for an overcharge on a carload shipment of
evaporated milk, alleged to be due to a mistake of the respondent's agent.
The applicants, under the impression that there was a special commodity
TOLLS AND TARIFFS. S35
tariff of 95 eats per hundred pounds OB a minimum basis of 30,000 pounds
per carload, paid the freight a* estimated by the respondent's agent on
that basis. Subsequently the applicants received a debit note for $91.67
from their consignees in Vancouver making with what they had already
paid. 380 according to the published special commodity tariff of 95 cents
per hundred pounds on a minimum basis of 40JOOO pounds per car:
Held,. (1 that the application for a refund must be refused, the applicants
having made the initial error of assuming that the minimum carload
weight was 30.000 pounds, which they could have avoided by examining
the published tariffs. (2) That if the shipment had moved at the lower
toll it would have been an unlawful variation from the published tariff.
(3) That the granting of a refund would also be unlawful and migiit
constitute unjust discrimination in favour of the applicants as against
other shippers paying upon the basis of the published tariffs.
Canadian Condensing Co. v. Can. Pae. Ry. COL, 12 Can. Ry. Cas. L
OTEBCHABGE - MISTAKE -
Application for a refund of an overcharge on the transportation by
water of a shipment of carbide from Vancouver to Alberoi, B.C_ and for
a reimbursement of expense in obtaining redress: Held 111. that the
Board had jurisdietkw under s. 7 of the Act, over the charges for trans-
portation by water when such transport is under the control of a railway
company. 2> That the Board could only declare the overcharge illegal,
having no jurisdiction to order a refund in a case of mistake. (3- That
the Board has not set a precedent by ordering reimbursement of expense
in obtaining redress, but that means should be adopted by railway com-
panies to rectify plain and palpable errors leading to overcharges and
that if this is not done it may be necessary for the Board to compel rail-
way companies to reimburse those incurring expense in Jn*r eases.
Cnrrie v. Can. Pac. Ry. COL, 13 Can. Ry. Cas. 31.
FBQGHT TOLLS REBATE AGBECMEXT BY-LAWS TO FTX TOLLS AITWVED BT
The rebate agreement upon freight charges between a railway company
and a forwarder, made in the absence of a by-law or of a resolution of
the shareholders of the company at a general meeting and approved by
the LJeutenant-Govemor-in-council. violates the prohibition embodied in
art. 6607 et seq. RJS-Q. 1909. is consequently noil and void and leaves the
forwarder without redress.
Kennedy v. Quebec Lake St. John Ry. Co_ 14 Can. Rv. Cas. 153. 39
One. S.C. 3*4.
I Reversed in fl Qne. K.B. 35. 14 Can. Ry. Cas. 161; affirmed in the
result, Quebec Lake St. John Ry. Co. v. Kennedy. 17 Can. Ry. Cas. 91,
15 DJLJK. 400.]
PnorrxciAL. R-iirwAvs FKEM.HT TOU-> REBATE AGBEEIIEXT Powot or
An agreement between a provincial railway company and a shipper
whereby a rebate M allowed upon freight tolls is not a violation of Art.
5172, R-S.Q. 188$. (Art. 66U7 <* *eq. RJS.Q. 1909*. unless it entails an un-
due preference or advantage. Hence, if entered into for special reason*
e.g.. the obligation of the forwarder to ship all his products over such
railway, to himself pay the cost of loading and unloading, etc.. the agree-
ment is presumed to be lawful, until it is shewn to conceal an injustice.
(2) The directors of the company, without bring specially authorized there-
836 TOLLS AND TARIFFS.
to by the shareholders, have the power and capacity to enter into the
Kennedy v. Quebec & Lake St. John Ry. Co., 14 Can. Ry. Cas. 161, 21
Que. K.B. 85.
[Affirmed in the result, Quebec & Lake St. John Ry. Co., 17 Can. Ry.
Cas. 291, 15 D.L.R. 400.]
PROVINCIAL RAILWAYS FREIGHT TOLLS REBATE AGREEMENT ANTI-REBATE
An agreement between a provincial railway company in Quebec and a
shipper, whereby a rebate is allowed upon freight tolls, is not necessarily
a violation of the Anti-Rebate Act, Que. 1900 (art. 6607 et seq., R.S.Q.
1909), although it stipulates that tbe shipper is to give the railway all his
shipments, where the rebate is granted in respect of other valuable consid-
erations moving from the shipper, such as the assumption of the task of
loading and unloading; and a railway company which has received tolls
paid to it on the faith of such an agreement made prior to the passing
of the Anti-Rebate Act cannot set up the statute in answer to the shipper's
action for recovery of rebates where the rebates are not shewn to consti-
tute an unjust discrimination, particularly where the tolls paid had not
been authorized by any provincial order-in-council. [Kennedy v. Quebec &
Lake St. John Ry. Co., 14 Can. Ry. Cas. 161, 21 Que. K.B. 85, affirmed in
Quebec & Lake St. John Ry. Co. v. Kennedy, 17 Can. Ry. Cas. 291, 48
Can. S.C.R. 520, 15 D.L.R. 400.
RAILWAY DIRECTORS REBATE AGREEMENTS WITH SHIPPERS.
The directors of a provincial railway in Quebec, without being specially
authorized thereto by the shareholders, have the power to enter into an
agreement with a shipper to grant him rebates upon freight charges in
return for valuable consideration rendered on his part, where no unjust
discrimination results therefrom. [Kennedy v. Quebec & Lake St. John
Ry. Co., 14 Can. Ry. Cas. 161, 21 Que. K.B. 85, affirmed in the result.]
Quebec & Lake St. John Ry. Co. v. Kennedy, 17 Can. Ry. Cas. 291, 48
Can. S.C.R. 520, 15 D.L.R. 400.
REFUND JURISDICTION CANCELLED TARIFF.
The Board has no power to authorize a refund from a toll properly
quoted under a tariff duly filed. However, under s. 338 of the Railway
Act, a joint tariff cannot be cancelled without a new one being filed in
substitution thereof, and a railway who charged a tcdl under a cancelled
joint tariff, was authorized to make a refund of the difference between
such toll and that chargeable under the substituted tariff.
Quebec Central Ry. Co. v. Dominion Lime Co., 19 Can. Ry. Cas. 281.
CARRIAGE OF TRAFFIC BEFORE OPENING OF RAILWAY REFUND.
The carriage of traffic (other than for construction purposes) before
the railway has been authorized to be opened therefor, under s. 261 of the
Railway Act, 1906, is illegal, and no legal toll or tariff applies to such
traffic. Refunds apply where the railway company, performing a legal
service, charges a greater toll than allowed by appropriate tariff on file
TRALS' SERVICE. &37
with the Baud. [Baker, Reynolds * Go. T. Cm. Pae. Bj. COL, 10 Can. By.
CMS. 151, followed.]
Randall et aL T. Can. Pae. By. Co.. 17 Can. By. Cas. 292.
[Followed in Be Edmonton, Dnnvegan ft B.C. By. Co.. 19 Can. By. <"as.
39-5: Ogihrie Flour Milk Co. T. Can. Pae. By. CoL, 25 Can. By. Cast, 4O
See Bails and Boadbed.
See Sunday Traffic; Interchange of Traffic.
Traffic agreement*, see Carriers of Goods-
Opening road for traffic, see Railway Board.
PEZIOD DUTY TO TKAXSFQTT GEXEBAJXT.
A railway company cannot lawfully carry passengers orer a road that
has not been opened for traffic by an order of the Board under 9. 261 of
the Railway Act. 1906. except labourers employed in the construction
Be Grand Trunk Pacific Br. Co.. 3 D.L.R. 819.
P>4niiliim of train, see Signals and Warnings.
See Can; Street Railways.
FiBBi 1 1 I SERVICE COCTBACT WITH GoTEBN M CVT BKEACH WATTE*.
By an agreement the plaintiffs were to lease their line of railway to the
defendants upon the condition, inter alia, that the defendants would run
a passenger train each way each day between stations A and B. The
lease was not executed, but the defendants went into possession of and
operated the line. The plaintiffs alleged in their bill that at the time of
the agreement, as was known to the defendants, they were under contract
with the Government of New Brunswick to run a passenger train each way
each day between A and B. but the contract was not set out in fulL In
1897 a. lease was executed by the plaintiffs and defendants by which it was
provided that the defendants would run a passenger train one way each
day between A and B. ~and if and whenever it may be necessary to do so
in order to exonerate the [plaintiffs] from its liability to the Government
of New Brunswick then the [defendants] will run at least one train carry-
ing passengers each way each day." On July 31. 1899. the Attorney-Gen-
eral of New Brunswick gave notice to the plaintiffs that their "'M'llH
with respect to running a passen-^r train each way each day between A
and B must be enforced, but no further proceedings with respect to the
matter were taken by the Government, though the defendants continued to
run a passenger train but one way each day. It did not appear whether
the notice of the Attorney-General might not have been given at the plain-
tiff's instance. On a motion for an interlocutory mandatory injunction in
this suit which was brought to compel the defendants to run a passenger
train each way each day between A and B.: Held, that no case was
838 TRACT SERVICE.
out for relief by mandatory injunction, which will only be granted where
necessary for the prevention of serious damage, and that the quest ion
raised was merely one of pecuniary damages between the plaintiffs and
defendants, for which the defendants were well able to account to the
plaintiffs, and which by the lease of 18!)7 the plaintiffs had agreed to
accept in event of their liability, if any, to the Government, and that it
did not appear that such liability had arisen.
Tobique Valley Ry. Co. v. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 282, 2
N.B. Eq. 195.
SECOND-CLASS PASSENGER ACCOMMODATION SMOKING CAB.
A railway passenger holding a second-class ticket is entitled to reason-
able accommodation of the kind usually furnished to passengers of that
class and cannot be compelled to travel in a smoking c.ar. Judgment of
Brit ton, J., afllrmed, Osier, and Garrow, JJ.A., dissenting as to the con-
clusions of fact.
Jones v. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 418, 9 O.L.R. 723.
WANT OF AIR BRAKES PASSENGER TRAIN.
There is no common-law liability for negligence on the part of a carrier
by reason of a train not being furnished with air brakes as required by the
Railway Act, 1903, s. 211, where the train is not a passenger train, and
the accident not occurring through the want of brakes, but by reason of
the engine driver's failure to see and act on the conductor's signal.
Muma v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 444, 14 O.L.R. 147.
Where passengers are impliedly invited by a railway company to make
use of a platform as a means of access to the railway cars, it is the duty
of the railway company to have the platform in a reasonably safe condi-
tion at all points, or parts where such passengers are entitled to be or
stand ; consequently where the plaintiff sustained injuries by attempting
to board a passenger car of the defendant railway company by falling over
the unprotected end of the platform, the night being dark and the plat-
form bady lighted, without any carelessness or contributory negligence
on her part: Held, by Stuart, J., that the company were liable for negli-
gence in not having the platform in a reasonably safe condition; and sem-
ble, that it made no difference whether the platform were well lighted or
not. Circumstances to be considered in estimating damages for personal
injuries, etc., discussed. Per Curiam: While an act or a circumstance
under ordinary conditions may not constitute negligence, under other cir-
cumstances or in other conditions it may amount to negligence, or in other
words that there may be negligence in the combination: Held, therefore,
that the combination of circumstances in this case, namely, a long night
train drawn up at a short platform inadequately lighted, so that passen-
gers attempting to board the train were not free from danger of accident,
constituted actionable negligence on the part of the railway company.
Judgment of Stuart, J., affirmed.
Swan v. Can. Northern Ry. Co., 9 Can. Ry. Cas. 251, 1 Alta. L.R. 427.
RAILWAY IN cot RSK OK CONSTRUCTION.
Upon an application for an order to compel the railway company to in-
stitute and operate an adequate daily first-class passenger service on its
line between Winnipeg and Edmonton during the period of construction:
Held (1), that under s. 261 of the Railway Act, 1906, the Board has no
jurisdiction to open a railway for the carriage of traffic or other than for
tie purposes of construction, until application has been made- therefor by
the railway company. (2j That since the Gorernment by the provisions
of the special Art incorporating the Grand Trunk Pacific Ry. Co. (445
Cdw. \TL c. 98), has power to fix by order-in-eonneQ the date of the com-
pletion of the railway, it nay be that the Board cannot open the railway
until such order is issued, the special Act overriding the Railway Act under
s. 5 of the latter Act.
Central Saskatchewan Boards of Trade T. Grand Trunk Pacific Ry. Co_
10 Can. Ry. Cas. 135.
[Referred to in Hih T . Toronto, Hamilton t Buffalo Ry. Co.. IT
Can. Ry. Gas. 353.]
TLUE TABLES RBGILAK STATIONS IMMEDIATE HAXDU^G OF MAKKXT PCOD-
Complaint by the New Westminster and Surrey Boards of Trade that
the respondent railway company started its morning train at 8 A. x. in-
stead of 7 A. M_ as formerly, and did not stop at all regular and nag sta-
tions and other stopping places on the Guichon Branch or transfer cars
containing market produce from its main line to the market place imme-
diately upon the arrival of its train at New Westminster. The u ipnrnl
ent made the changes complained of so that its trains should arrive at
Xew Westminster and Vancouver on schedule time. The applicants eon-
tended that farmers living on the Port Guichon Branch by these changes
were either compelled to stop daily shipments of milk and other farm
produce to the Xew Westminster market or, if able to do so, their ship-
ments arrived too late: Held (11. that upon the evidence and the report
of the Chief Operating Officer the respondent should be required to start
its trains from Port Guichon at 7 a. m_ stopping as formerly at all reg-
ular and flag stations and other stopping places between Port Guichon
and Cloverdale. I i That its yard engine should be used to transfer cars
containing market produce to the market immediately on the arrival of
respondent's train at Xew Y\ estminster.
Xew Westminster and Surrey Board of Trade v. Great Northern Rj. Co..
11 Can. Ry. Ca*. 34.
DCTT TO OPEN TESTTTBrLE DOOKS AT STATIONS.
It is the duty of a railway company operating a vestibuled passenger
train to open the vestibule door of the day coach at which passengers
may expect to alight at their points of destination, or to direct the passen-
gers as to the mode of exit, so that they may get off the train while it is
^imir^-g at the station. Where a railway company negligently omitted to
open the vestibule door of a day coach on arrival at a passenger's destina-
tion and the passenger, in his t-fforts to get off the train, went to the next
roach to find an open vestibule from which to alight, and the train was.
by that time, pulling away from the station at a speed of three or four
mm an hour, there was nothing in the rate at which the train was pro-
ceeding to make h manifestly dangerous for the plaintiff to attempt to
get off, and such course on his part was not contributory negligence.
"Keith T. Ottawa t Xew York Ry. Co^ 5 O.UR. 116, 2 Can." By. Can, 6.
applied.] Where a railway company negligently closes a passenger's na-
tural means of getting off a train, without notice to him. such company is
guilty of negligence in starting the train before the passenger has suf-
ficient time to get off by the means he adopts, provided such means be
reasonable. Where the negligence of a railway company, operating a
passenger train, forced a passenger into an emergency as to getting off
the train at his destination, the fact that the means or method of exit
840 TRAIN SERVICE.
which he, in such emergency, adopts, is not the wisest possible under the
circumstances, does not necessarily imply contributory negligence on his
McDougall v. Grand Trunk Ry. Co. (Ont.), 14 Can. Ry. Cas. 316, 8
PASSENGER AND FKEIGHT EARNINGS.
In answer to complaints that a railway company during a period of
depression has decreased and impaired the passenger service upon one of
its local lines forming part of its system, the company submitted figures
showing a deficit as a result of the operations of its system as a whole
within the province. It appeared, however, that the earnings of the local
line in question shewed a decrease in the passenger traffic but there had
been an increase in its freight earnings, resulting in net increase, the
Board held that the local line should not be blamed for the deficit on the
system generally (due to the operation of lines which could hardly be
said to have passed beyond the construction stage) that the former pas-
senger service should be restored, and it so ordered.
Re Trenton, Maynooth & Bancroft Line, 19 Can. Ry. Cas. 268.
OBLIGATION TO BUN TRAIN UNREMUNERATIVE EARNINGS BY-LAW BONUS.
Where the total freight and passenger earnings on a section of railway
are unremunerative, the Board will not order the former train service to
be restored, but where, under a by-law of the municipality, in consideration
of a bonus of $5,000, the railway company's predecessor in title undertook
to run a train from Sydenham to Harrowsniith in the forenoon and one
back in the afternoon every week day, and if the company should at any-
time hereafter "fail to ... run said train, they can only do so upon
repaying said bonus of $5,000 to said municipality," it was held that this
obligation was not met by running a train leaving Sydenham at 1.59 a.m.
and arriving at Harrowsmith at 2.09 a.m., and that the bonus must h"
repaid unless the morning service was restored.
Loughboro v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 276.
UNREMUNERATIVE SERVICE VOLUME or TRAFFIC.
Ordinary local trains should stop at stations where there is a sufficient
volume of traffic to call for additional train service, as the operating con-
ditions and control of operations are entirely different and distinct from
through express trains. It is no answer to such a claim that the existing
service is unremunerative.
La Salle v. Can. Pac. and New York Central Ry. Cos., 20 Can. Ry. Cas
[Followed in Oakville v. Grand Trunk and Can. Pac. Ry. Cos., 22 Can.
Ry. Cas. 433.]
Where the gross earnings per passenger train mile on a passenger train
between Lachute and Montreal are not only much below the average return
of the whole system, but are also below the average costs of the system,
the Board would not be justified in directing that an additional passenger
train should be put into service between the same points.
Massiah v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 358.
[Followed in Crushed Stone etc. v. Grand Trunk Ry. Co., 23 Can. Ry.
TRAOT SERVICE. S41
TIMETABLE CHAXGE Pcnuc COXTEXXEXCE.
Public convenience docs not demand Ike restoration of a farmer time-
table, where the railway company has justified the change in it by shewing
that the early mail arrives at the point in question, as usual, early in the