233. coupled with subs*, (hi and (i) of & 30 of the Railway Act, 1906. has
jurisdiction to order the demolition of the works so constructed. [Roch-
ester r. Grand Trunk Pacific Ry. Co., 13 Can. Ry. Cas. 421, affirmed.]
Grand Trunk Pacific Ry. Co. V. Rochester, 15 Can. Ry. Cas. 306, 48 Can.
S.C.R- 238.
SURFACE WATER DEFLECTING AND DIVERTINC INJURT TO ADJOINING LANDS.
A defendant railway company is liable for damage caused to the plain-
tiff, an adjoining owner, by deflecting and diverting the course of the sur-
face water so as to make it flow over the plaintiff's land, and for bringing
water on the defendant's own lands and then discharging it on to the
plaintiff's land, to his injury; and the statutory powers, in furtherance of
the objects for which the defendant company was incorporated, do not. by
implication or otherwise, empower it so to carry on its operations as to
cause damage to adjoining owners by deflecting or diverting such surface
waters to the injury of adjoining lands. [Rylands v. Fletcher. L.R. 3 H.L.
330, applied.]
Xiles v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 73, 9 D.LR. 379.
WATER AND WATEE BIGHTS DAMS.
Statutory powers of expropriation in the incorporating statute of a
power company are to be strictly construed so as not, by mere general
words authorizing expropriation for the damming of a river, to deprive the
public of rights theretofore existing unless a clear legislative intention to
abrogate public rights is disclosed in the statute. (Per Ritchie, J.)
Miller T. Halifax Power Co. (X.S.), 13 DJ^R. 844.
NATURAL WATERCOURSE DEFECTIYE CULVERT OBSTRUCTION or now.
The construction of a culvert by a power company in a negligent man-
ner, whereby it interferes with the flow of a natural watercourse, giving
rise to the flooding of the abutting lands, will render the company liable
for damages occasioned thereby. [L'Esperance v. Great Western Ry. Co.,
14 U.C.Q.B. 173, distinguished.]
MeCrimmon v. British Columbia Elec. Ry. Co., 19 Can. Ry. Cas. 329, 24
D.LJL 368.
XONTIDAL STREAM OBSTRUCTION OF NAVIGATION RAILWAT BRIDGE.
The Fraser River in its upper waters, although nontidal, la a
V Can. Ry. L. Dig. 54.
850 WEEDS.
and public highway, which the public has the right to freely use the water-
courses thereof for the purpose of navigation, an obstruction of which by
the erection of a bridge by a railway company will render the latter liable
in damages.
^ort George Lumber Co. v. Grand Trunk Pacific Ry. Co., 24 D.L.R. 527.
WEEDS.
As causing fires on railway, see Fires.
WEEDS CAUSING INJURY TO EMPLOYEE WORKING ON TRACK.
For a railway company to permit grass and weeds to grow on a side
track is not such negligence as will make it liable to compensate an em-
ployee who is injured in consequence of such growth while on the side
track in the course of his employment. 6 B.C.R. 561, affirmed.
Wood v. Can. Pac. Ry. Co., 30 Can. S.C.R. 110.
[Applied in Hill v. Granby Consol. Mines, 12 B.C.R. 125; Jamieson v.
Harris, 35 Can. S.C.R. 639; referred to in Canada Woollen Mills v. Trap-
lin, 35 Can. S.C.R. 448; Center Star v. Rossland Miners' Union, 11 B.C.R.
205; Warmington v. Palmer, 8 B.C.R. 349.]
LIABILITY OF RAILWAYS TO REMOVE COMBUSTIBLE MATERIAL FROM RIGHT-OF-
WAY.
It is the duty of a railway, under c. 91 of R.S.N.S. 1900, to clear from
off the sides of its roadway, where it passes through woods, all combustible
material, such as grass, ferns, bushes, or other material, by careful burning
at a safe time, or otherwise, whenever they become combustible.
Schwartz v. Halifax & S.W. Ry. Co., 14 Can. Ry. Cas. 85, 4 D.L.R. 691.
[Affirmed in 11 D.L.R. 790, 47 Can. S.C.R. 590.]
WHARVES AND FERRIES.
WHARF INSUFFICIENTLY LIGHTED No GATE OR CHAIN FERRY.
Grand Trunk Ry. Co. v. Boulanger, 1886. See Can. S.C.R. Dig. 1893, p.
733.
FERRYMAN LIABILITY AS COMMON CARRIER.
To render a person liable as a common carrier he must exercise the busi-
ness of carrying as a public employment, and must undertake to carry
goods for all persons indiscriminately, and hold himself out, either ex-
pressly or by course of conduct, as ready to engage in the transportation of
goods for hire as a business, not merely as a casual occupation. There-
fore, the owner of a boat propelled by oars and rowed for hire across a
river from time to time, by employees usually occupied in other ways, does
not fall within the definition of a common carrier.
Roussel v. Aumais, 18 Que. S.C. 474.
NEGLIGENT MANAGEMENT OF FERRY INJURY TO PASSENGER.
Where a ferry was under the control and management of a municipal
corporation and accepted, in payment of the fare of a traveler M, a coupon
attached to his railway ticket, the corporation was held liable for injuries
to M. caused by the negligence of the officers of the boat where, finding
the mooring chain down on approaching the wharf, and thinking it safe to
land, M. fell through the space between the wharf and the boat, which was
WIRES AXD POLES. UH
at then moored. M. mas held not guilty of contributory ntgligUMJU 25
X.B.R. 318. affirmed.
Mayor, Bfe, of St. John v. McDonald. 14 Can. S.C.R. 1.
[Observed in Collins T. St. John. 38 X.B.R. 92: referred to in Shaw T.
Winnipeg, 19 Man. L.R. 243.]
WTRELZSS TELEGRAPHY.
See Telegraphs.
AMD POLES.
A. Injmies by Wires am
See Street Railways.
Powers of companies to erect poles on highways, see Corporate Powers;
Street Rail wars.
Practice of Board as to Senior and Junior Bole. 22 Can. Ry. Gas, 1SS.
Wires crossed by railway*. 22 Can. Ry. Cas. 188.
1> T tif of wires and poles. 24 DJLR. 669.
A. Injuries by Wires and Poles.
ACCIDENT ESCXTDSG FEOM COXTACT or ELECTBIC wms.
A street railway company is not guilty of negligence in failing to take
steps to prevent telephone wires crossing above its trolley wire from com-
ing in contact, if broken, with the trolley wire, unless it be at some place
known to be especially dangerous. Per PUDOC, C-J. Such failure by a
street railway company is evidence of negligence to go to the jury. The
escape of electricity from wires suspended over streets through any other
wires that may come in contact with them must be prevented so far as it
can be done by the exercise of reasonable care and diligence, and the defend-
ants should have put up guards such as were shewn to be in use very gen-
erally in the United States and England to prevent such accidents. Per
Mathers, J. The Court being equally divided the appeal from the County
Court jury's verdict in favour of the plaintiff was dismissed.
' v. Winnipeg Elec. Street Ry. Co.. 16 Man. L.R. 16.
POWE OOJCTAXT - RAILWAT LAXDS - PlTBLJC HIGHWAYS
A power company applied under s. 194 of the Railway Act. 1903. to
place wires for the transmission of electric power of high voltage across
the lands of a railway company: Held, that the power company "Vrnfi
indemnify the railway company from all loss or injury arising from the
placing of irurh wires across its right-of-way or the transmission of dee-
trie power thereon, except where the loss was directly attributable to the
negligence of the railway company, ite agents or employees. Upon it sub-
equently appearing, however, that the transmission lines were constructed
along highways under provincial authority in respect of which highways
the railway company had merely the right of crossing. Held, that the
power company stands in the position of a telephone company, as in Na-
tional Teh-phone Co. v. Baker ( 1893 ' . 2 Ch. 196. and the tramway company
leferied to in Eastern t South African Telegraph Co. v. Capetown Tram-
way Cos. [1902], A.C. 38L Held. also, that the power company should be
required to be responsible only for injuries arising from the negligence of
852 WIRES AND POLES.
itself or its servants or agents, and in respect thereof the railway company
needs no protection by an order of the Board.
C'an. Pac. and Can Northern Ry. Cos. v. Kaministiquia Power Co., 6
(an. Ry. Cas. 160.
ELECTRIC RAILWAY POWER LINE PROTECTION*.
A company incorporated by provincial statute to construct an electric
railway through the town of Essex built its line on a street under the
authority of a municipal by-law which provided that its poles and wires
should not interfere with any then existing poles or wires of any other
person or company. The railway works were, by Dominion Act, declared
to be for the general advantage of Canada. The company's wires and poles
when constructed interfered with existing telegraph, telephone and electric
light poles and wires (the latter belonging to one N. erected under an
agreement with the town ) and created danger by the escape of electrical
current therefrom: Held, that if the railway and power line were con-
structed before the passing of the Dominion Act no order was necessary
to authorize their subsequent maintenance and use, but if not, then leave
was required under ss. 235, 2:57. Qusene, if part only of the work was
done before the Act and part afterward. Assuming that the work was
lawfully done before the passing of the Dominion Act the Board has power
under s. 238 to require the company to execute such works or take such
measures as appeared to the Board best adapted to remove or diminish the
danger. An agreement having been made with the approval of the Board
for the use by N. of the company's poles for carrying his wires, order ac-
cordingly, the company being ordered to pay the costs of the proceedings.
Naylor v. Windsor, Essex & Lake Shore Rapid Ry. Co., 8 Can. Ry. Cas.
14.
CONSTRUCTION OF TELEPHONE LINES INJURY TO TREES RIGHTS OF PRIVATE
PROPERTY OWNERS.
That the ownership of lands adjoining a highway extends ad medium
fiium vise is a presumption of law only which may be rebutted, but the
presumption will arise though the lands are described in a conveyance as
bounded by or on the highway. Gwynne, J., contra. In construing an
Act of Parliament, the title may be referred to in order to ascertain the
intention of the Legislature. The Act of the Nova Scotia Legislature, 50
Viet. c. 23, vesting the title to highways and the lands over which the same
pass in the Crown for a public highway, does not apply to the city of Hali-
fax. The charter of the Nova Scotia Telephone Co. authorizing the con-
struction and working of lines of telephone along the sides of, and across
and under, any public highway or street of the city of Halifax, provided
that in working such lines the company should not cut down nor mutilate
any trees: Held, Taschereau and Gwynne, JJ., dissenting, that the owner
of private property in the city could maintain an action for damages against
the company for injuring ornamental shade trees on the street in front of
his property while constructing or working the telephone line, there being
nothing in the evidence to rebut the presumption of ownership ad medium,
or to shew that the street had been laid out under a statute of the province
or dedicated to the public before the passing of any expropriation Act. 23
N.S.R. 500, reversed.
O'Connor v. Nova Scotia Telephone Co., 22 Can. S.C.R. 276.
[Referred to in Washington v. G.T. Ry. Co., 28 Can. S.C.R. 188.]
TELEPHONE POLE INJURY TO PERSON RIDING ON HIGHWAY.
A person driving on a public highway who sustains injury to his person
WIRES AND POLES. 853
and property by the carriage coming in contact with a telephone pole law-
fully placed there, cannot maintain an action for damages if it clearly ap-
pears that his horses were running away, and that their violent, uncon-
trollable speed was the proximate cause of the accident. In an action
against the city corporation for damages in such a case the latter was
ordered to pay the costs of the telephone company brought in as a third
party, it being shewn that the company placed the pole where it was law-
fully, and by authority of the corporation.
Bell Telephone Co. v. Chatham, 31 Can. S.C.R. 61.
[Referred to in Ereritt v. Raleigh, 21 O.L.R. 91; Holden r. Yarmouth,
5 O-LB. 579.]
EXCAVATION ox PCBUC STVEET IXSCTFICIEXT LJGHT AXB nonmox.
The defendant company made an excavation across a sidewalk on a public
street, in the city of Halifax, for the purpose of laying cables underground.
The excavation was protected after working hours by a number of barrels
with plank laid across the tops from one to another. Plaintiff, while
passing along the sidewalk, after dark, in the absence of the watchman,
fell into a portion of the excavation, from which the barricade had been
removed after it had been placed in position, and was severely injured.
The evidence given at the trial shewed that the barrier erected was of a
frail and insufficient character, and that the place was insufficiently lighted,
and that if it had not been for the want of care on the part of defendant
in these particular?, the accident would not have happened: Held, that
plaintiff was entitled to a verdict, and that defendant's appeal must be
dismissed with costs.
Cox v. Nova Scotia Telephone Co. T 35 N.S.R. 148.
IXJCY BT ELECTRICITY CONTACT OF TELEPHONE WIRE WTTH POWER WItE.
A telephone company empowered to erect its poles and wires on a street
upon which the poles and wires of an electric power line are already strung
is under a duty to string the telephone wires at a safe distance from the
power wires, and where a telephone lineman is killed by the telephone
wires with which he was working becoming charged by contact with an
electric wire which had sagged low by the settlement or bending of the
electric company's poles not resulting from any negligence on the part of
the electric company, the proximate cause of the injury is the negligence
of the telephone company and not of the electric company, although the
hitter had taken no precautions to guy win-< or otherwise to obviate the
effect of such sagging. [Englehart v. Farrant. [1897] 1 Q.B. 340: Mc-
Dowell v. Great Western Ry. Co.. [1902] 1 K.B. 618: Dominion Natural
Gas Co. v. Collins, [1909] A.C. 640, and Lothian v. Richards, 12 C.L.R.
165, referred to.]
Roberts v. Bell Telephone, etc, Co., 10 DJLR. 45!. 25 O.WJL 428.
HIGHWAY Low WIRES OBSTRCCTIOX NCISAXCE.
Rural telephone wires so placed that a person driving on to the highway
with a load of hay has to stoop when passing under them, constitute an
obstruction in the highway and amount to a nuisance: where the position
of the wires is the proximate cause of an accident the owner or trustee
of the system is liable for damages under the Fatal Accidents Act; the
fact that the line was erected and continued under statutory authority is
no bar to the action.
Magi 11 v. Moore, 41 D-LJL 78.
854 WIRES AND POLES.
INJURY BY WIRES IN STREETS.
The effect of conferring statutory authority upon an electric power com-
pany to erect poles and power wires on a highway is that, apart from neg-
ligence, the company is obsolved from the rule that any one who, for his
own purposes, collects or keeps anything likely to do mischief if it escapes,
is prima facie answerable for all the damages which are the natural con-
sequence of its escape. [Fletcher v. Rylands, L.R. 1 Ex. 265, and Rylands
v. Fletcher, L.R. 3 H.L. 330, considered; National Telephone Co. v. Baker,
[1893] 2 Ch. 186, and Eastern & South African Telegraph Co. v. Capetown
Tramways Co., [1902] A.C. 381, referred to.]
Roberts v. Bell Telephone Co. and Western Counties Elec. Co., 10 D.L.R.
459, 24 O.W.R. 428.
B. Erection; Crossings.
TELEPHONE WIRES CROSSING ELECTRIC RAILWAY PROTECTIVE WORKS JUNIOR
AND SENIOR COMPANY.
The Board has no jurisdiction under ss. 237, 238 of the Railway Act,
1906, to order the junior company at a crossing, where the wires of a
telephone company are carried over an electric railway, to bear the cost of
certain changes in the construction of the lines of the senior company and
of certain protective appliances rendered necessary by reason of the con-
struction and operation of the railway of the junior company, where such
alterations were made by the senior company without having previously
obtained an order from the Board for the making of the same.
Bell Telephone Co. v. Windsor, Essex & Lake Shore Rapid Ry. Co., 8 Can.
Ry. Cas. 20.
\VlRES BENEATH TRACKS QUESTION OF LAW LEAVE TO APPEAL.
On an application for leave to appeal to the Supreme Court from an
order of the Board permitting the Montreal Light, Heat & Power Co. to
erect, place and maintain its wires beneath the tracks of the Montreal
Terminal Ry. Co.: Held, that, as only a question of jurisdiction and not
of law was involved, the application must be refused.
Montreal Terminal Ry. Co. v. Montreal Light, Heat & Power Co., 10
Can. Ry. Cas. 133.
TELEPHONE WIRES LEAVE TO CROSS PROTECTIVE MEASURES.
Application by the Bell Telephone Co. under s. 246 of the Railway Act,
1906, and s. 5 of 7-8 Edw. VII. c. 61, for an order restraining the Nipissing
Power Co. from crossing the wires of the applicant between Powassan and
North Bay along the highway, known as the Nipissing road, with their
high tension wires, until permission of the Board shall have been ob-
tained: Held (1), that the order should be granted; the provision for
protective measures being in the public interest. (2) That under s. 24(5
of the Railway Act, power companies are required to obtain leave from the
Board, before crossing railways with their wires, in order that the wires
may be properly guarded. (3) That under the broad provisions of s. 5,
of the amending Act, 7-8 Edw. VII. c. 61, it is reasonable that the provi-
sions of s. 246 should apply to a telephone system, as well as to a railway
line. (4) When a provincial company desires to cross with its line, the
line of a Federal company, subject to the jurisdiction of the Board, it must
obtain leave from the Board before it will be allowed to do so.
Bell Telephone Co. v. Nipissing Power Co., 9 Can. Ry. Cas. 473.
WIRES AXD POLES.
wins LSSTAJULAHOX ex SCWAT GKAK SET A&ATIO* AT KAIL-
WAT
Where a grade separation has ben ordered and a city Uieet is lowered
ia the public interest, so as to go under the railway lime by subway. a
telephone company having overhead wires tm the street is not entitled to
receive compensation from tke railway or the municipality for the expense
of moving mmd rekocatiag the telephone line.
Bell Telephone Co. T. Can. Pat. By. Co_ Grud Troak By. Co. and To-
roato (Brock Arrant Subway Ca** . 14 Can. By. Cas. 14. 5 D.LJL *9-7-
ELECTMC UGBT AS TGLETHOXE wnes ISSTAJLJLATIOX rs
Where grade separatioB has been ordered aad city streets are love-red.
ia the pnhlie iaterest, go as to go vadcr the railway Ines by subways, pub-
lic otiliry compaairs. haTiag telephone and electric light overhead wins
on the streets should bear the entire expense of pottiag these wires under
^rouad except their long distance telephone wires which nvay be carried
overhead. [Bell Telephone Co. T. Grand Tmat. Canadian Pacific By. Cos.
and Toronto (Brock Avenue Subway Case| t 14 Can. By. Ca& 14. 5 BJLK.
eT, ibOowed.]
Toronto Electric, etc. T. Can. Pac. By. Co. et aL (North Toronto Grade
Reparation Ca$e, 15 Can. By. Cas. 309.
EixcnucTTT TESTS AXD
An electric power company stringing its wires by tatutorr authority
upon the public streets at a tiase when no other wires were there, is under
no duty to inspect the wires periodically for the purpose of seeing that no
other wires had subsequently been placed in too close proxinuty to their
own wires and so avoiding injuries which Bight result to persons hand-
ling the dead wires of another company should the bitter become charged
by dose contact with the power wires.
Robert* T. Bell Telephone, etc. Co&, 10 DJLJL 439. 24 O.WJL 42SL
or KCTUIXC ar FKE LACS or SAFETY K.IU.IU&.
Negligence i nnV ii ul to render an electric company liable for the de-
struction of a building from fire originating from an electric current of
abnormally high voltage being carried upon wires leading into the build-
ing, may properly be inferred from the fact that several hours before the
are the compaay's high voltage wires became croaBtd with low potential
service wires on the same poles, which trouble had been corrected prior
to the fire: where it also appeared that the use of a simple safety dtlfca.
by the electric compaay on the pole nearest the building would have pre-
vented the abnormally high current entering it. and that the electrical
installation for the service of the burned building was not defective.
UcElmoa v. British Columbia Eke. By. COL, 12 D.LJL
SEXIO A3 jiT5To Co2ssT*rcnoK HIGHWAY CBOSSEXGS BIGHT-OF-WAT.
Where the wires of a telephone company 1 1 imniaj: the line of a railway
cumpaay, which i* changing its system of operation from steam to elec-
tricity. require to be raised, the railway being senior in constrDiHtioB. the
telephone company mast bear the cost of raisiag its wires where the fee
of the property crossed is ia the railway compaay. but at highways where
the only right of the railway company is to cross with its tracks, the tel-
compaay is senior with its construction to the railway compaay s
wires and the bitter mast bear the cost of raising the tieJ-
856 WIHES A]S T D POLES.
ephone wires. [Hamilton Street Ry. Co. v. Grand Trunk Ry. Co. (Kc'iiil-
worth Avenue Crossing Case), 17 Can. Ry. Cas. 393, followed.]
London Railway Commission v. Bell Telephone Co., 18 Can. Ry. Cas. 4.V>.
EASEMENT OVERHEAD AND UNDERGROUND WIRES AND PIPES.
The practice of the Board has been to allow the right-of-way of railway
companies to be crossed by the construction overhead or underground of
lines of wires or water-pipes and other pipes without compensation, the
Board's order merely creates an easement which can be cancelled or varied
as occasion may require from time to time.
Maritime Telegraph & Telephone Co. v. Dominion Atlantic Ry. Co., and
Baird v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 213.
JURISDICTION POWER WIRES CROSSED BY HIGHWAY.
Under s. 247 of the Railway Act, 1906, the Board has no jurisdiction to
authorize a highway to be constructed under the wires of a power company.
Coleman v. Toronto & Niagara Power Co., 20 Can. Ry. Cas. 258.
ERECTION OF POLES ON STREET COMPLIANCE WITH ACT OF INCORPORATION
"ALONG THE SIDE" OF THE HIGWAY.
Where a pole was erected as required by the Act of incorporation of the
company under the direction and supervision of the proper municipal
authorities, and did not interfere with the public right of traveling on or
using the street, its erection between the drain or gutter and the centre
line of the street is a compliance with the statutory requirment that the
pole must be erected ''along the side" of the highway.
Mclsaac v. Maritime Telegraph & Telephone Co., 50 N.S.R. 331.
WIRES ALONG HIGHWAYS UNDERGROUND PUBLIC UTILITY COMPANY JU-
RISDICTION.
Under s. 247 (g) of the Railway Act, 1906, the Board only has jurisdic-
tion to direct 'that wires be placed underground and to abrogate the right
of a public utility company to carry its wires along highways on poles.
The Board cannot order that poles and wires be moved from one street to
another or that wires be placed in cables or upon a designated line of poles.
Such a company, however, has at all times the right to remove its pole line
from a street and an order from the Board to place its wires underground
does not prevent it from exercising such right.
Chatham v. G.N.W. Telegraph and Bell Telephone Cos., 21 Can. Ry.
Cas. 183.
TELEGRAPH WIRES UNDERGROUND CONSTRUCTION URBAN DEVELOPMENT.
Where urban development has reached such a stage that the city wires
and poles are being placed underground, the Board will order telegraph
companies to adopt underground construction for their wires at their own
expense, or where the work is done by the municipality, and ducts may be
rented from it, then upon such terms or rental as may be agreed upon be-
tween the parties.
Montreal v. Can. Pac. and G.N.W. Telegraph Cos., 24 Can. Ry. Cas. 226.
WITNESS.
See Pleading and Practice.
EXAMINATION LEADING QUESTIONS.
In examining one's own witness, leading questions must not be put to
the witness on material points, but are proper on points that arc merely
WITNESS. 857
introductory and form no part of the substance of the, inquiry. The rule
against leading one's own witness will be relaxed where nnnleading ques-
tions fail to bring the mind of the witness to the precise point on which his
evidence is desired, and where it may fairly be supposed that this failure
arises from a temporary inability of the witness to remember. (Dictum
per Beck, J. )
Maves v. Grand Trunk Pacific Ry. Co., 1(5 Can. Ry. Cas. 9, 14 D.L.R. 70.