Under an agreement with the Provincial Government of Saskatchewan,
a railway bridge was erected by the respondent company over the North
Saskatchewan river, with a twelve foot roadway on each side clear of
the railway track, and separated from it by a fence admitted to be safe
and satisfactory for the purpose. There was no provision in the agree-
ment for protection to vehicular traffic from trains passing over the
bridge. The Board refused an application by an adjoining municipality
for an order, that the respondent should provide gates and watchmen
at both ends of the bridge to warn the public against approaching trains,
holding that the necessity for such protection was incidental to the use
of the bridge as a highway.
Buckland v. Can. Northern Ry. Co., 23 Can. Ry. Cas. 13.
FALSEWORK CLEARANCES NEGLIGENCE AGREEMENT.
An agreement between two railway companies for the construction of
falsework to carry the line of railway of one company over the tracks
of the other company without the standard clearances, may properly
contain a clause indemnifying the company whose line is crossed from all
loss, damage or expense of any nature occasioned to it, including loss,
damage and expense that has been occasioned, or contributed to, by the
negligence of its servants or agents or otherwise howsoever.
Can. Pac. Ry. Co. v. Can. Northern Ry. Co. (Falsework Case), 24 Can.
Ry. Cas. 5.
B. Injuries on Bridges.
NOTICE TO ENGINE DRIVERS TO STOP BEFORE APPROACHING BRIDGE "RES
IPSA LOQUITUR."
Can. Pac. Ry. Co. v. Lawson (1885), Cass. Can. S.C.R. Dig. 1893, p. 729.
BRIDGE ACCIDENT NERVOUS SHOCK RESULTING FROM FRIGHT.
A railway company is liable in an action at the suit of one injured in an
accident while a passenger in the company's train for damages and pecuni-
BRIDGES. 71
ary loss consequent upon a fright resulting in a shock to the nervous
system causing physical injury if the fright was the result of the accident,
and was reasonable and natural.
Kirkpatrick v. Can. Pae. Ry. Co.. 35 N.BJL 598.
DEFECTIVE BRIDGE INTOXICATED PASSEXGE&.
The deceased was a passenger on the defendants' railway. At a certain
point there was a defective bridge over which it was dangerous to run a
train. At this bridge passengers were taken from one train and were
obliged to walk across a part of the bridge and board another train at the
opposite side. The deceased was intoxicated and asleep when the train
arrived at the bridge. His companion shook him and told him it was
time to transfer. The deceased paid no heed. As the passengers left the
car the conductor noticed the deceased, and that he was drunk and asleep,
but made no effort to wake him or to transfer him to 'the other train.
Shortly after this, and while the train still stood on the bridge, one of
the railway employees heard a splash in the water in the river. Some days
afterwards the body of the deceased was found some twelve miles below the
bridge. The face bore marks of a severe bruise, which was. according to the
evidence of the coroner and undertaker, sustained before death. Harvey.
J., at trial nonsuited the plaintiff: Held, on appeal (Stuart. J., dissent-
ing), affirming the judgment of the trial Judge, that there was no evidence
to go to the jury that the death of the deceased was caused by any negli-
gence of the defendant- company. [McArthur v. Dominion Cartridge Co..
[1905] A.C. 72, and Hainer v. G.T.R. Co., 36 Can. S.CJL 180, distin-
guished.]
Beck T. Can. Northern Ry. Co., 2 Alta. KR. 549.
BRIDGE OVER HIGHWAY HEIGHT OF IXJCBY TO PERSON.
The plaintiff was driving a load of hay on a public highway within
the limits of a village, sitting on top of his load. A railway, at a point
within the village, was carried over the highway by an iron bridge, and
the plaintiff, while driving along the highway under the bridge, was
struck on the head by the girders and knocked off the load and injured.
The bridge, when constructed, was built at a height greater than that re-
quired by the a. 18-3 of the Railway Act, 1888, but the municipality and
their predecessors, owners of the road, subsequently so raised its level as to
leave less than the statutory space between the road and the bridge :-
Held, that the section must be construed as compelling the railway com-
pany to construct their bridges, in the first place, so as to leave the re-
quired space below them to the highway, and to maintain them at, at least,
that height from the original surface of the highway, and not as obliging
them to conform from time to time to new conditions created by the persons
having control of the highway. [Gray v. Danbury (1887), 54 Conn. o<4,
specially referred to.]
Carso"n v. Weston et aL, 1 Can. Ry. Cas. 487, 1 O.L.R. 15.
INJURY TO TXFAXT PLAYKG THEREOX NOTICE TO PUBLIC THAT BRIDGE SOT
TO BE USED.
While the defendants were repairing a highway bridge, having the
trance barricaded and a "No thoroughfare" notice, a boy, after working
hours but while it was still light, went upon the bridge and, stepping upon
a loose plank, fell upon the railway track benea^ andwas killed. T
jurv, having found no negligence on the part of the boy^ and t the
company were negligent in not having a watchman, .SBeased the pla
72 KLUDGES.
damages at $800: Held, upon appeal, that the defendants were not liable.
[Ricketts v. Markdale, 31 O.K. 610, doubted.]
Farrell v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 249, 2 O.W.R. 85.
[Referred to in Burtch v. Can. Pac. Ry. Co., 13 O.L.R. 032.]
OVERHEAD BRIDGE TRAIN OF FOREIGN COMPANY STATUTORY HEIGHT OF CAR.
When a car of a foreign railway company forms part of a train of a
Canadian railway company, it is "used" by the latter company within
the meaning of s. 192 of the Railway Act, 1888, so as to make that com-
pany liable in damages for the death of a brakeman caused by the car
being so high as not to leave the prescribed headway between it and an
overhead bridge. Judgment of Meredith, C.J., affirmed.
Atcheson v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 490, 1 O.L.R. 168.
[Referred to in Deyo v. Kingston & Pembroke Ry. Co., 8 O.L.R. 588;
Stephens v. Toronto Ry. Co., 11 O.L.R. 19.]
STATUTORY HEIGHT OVERHEAD BRIDGE CONTRIBUTORY NEGLIGENCE.
Upon the proper construction of s. 192 of the Railway Act, 1888, a
railway company, whether the owners or not of a bridge under which their
freight cars pass, are prohibited from using higher freight cars than
such as admit of an open and clear headway of seven feet between the
top of such cars and the bottom of the lower beams of any bridge which is
over the railway. [McLauchlin v. Grand Trunk Ry. Co., 12 O.R. 418, and
Gibson v. Midland Ry. Co., 2 O.R. 658, distinguished.] Contributory negli-
gence may be a defence to an action founded on a breach of statutory duty.
A brakeman, standing on the top of a freight car, part of a moving train,
was killed by coming in contact with an overhead bridge: Held, that as
the evidence shewed he was on top of the car contrary to the rules of the
company, of which he was aware, the accident was caused by his own
negligence, and the defendants were not liable, although there was not a
clear headway space as required by the above section.
Deyo v. Kingston & Pembroke Ry. Co., 4 Can. Ry. Cas. 42, 8 O.L.R.
588.
[Distinguished in Muma v. Can. Pac, Ry. Co., 14 O.L.R. 147, 6 Can.
Ry. Cas. 444; referred to in Street v. Can. Pac. Ry. Co., 18 Man. L.R.
342; followed in Ruddick v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 484.]
DEFECTIVE BRIDGE GRATUITOUS PASSENGERS LIABILITY OF CARRIER.
In the absence of evidence of gross negligence, a carrier is not liable
for injuries sustained by a gratuitous passenger. [Moffat v. Bateman (L.
R. 3 C.P. 115) followed. Harris v. Perry, [1903] 2 K.B. 219, distin-
guished.] Although a railway company may have failed to properly
maintain a bridge under their control so as to ensure the safety of persons
traveling upon their trains, the mere fact of such omission of duty does
not constitute evidence of the gross negligence necessary to maintain an
action in damages for the death of a gratuitous passenger. Judgment
appealed from (9 B.C.R. 453,) affirmed.
Nightingale v. Union Colliery Co., 4 Can. Ry. Cas. 197, 35 Can. S.C.R.
65.
[Commented on in Barnett v. Grand Trunk Ry. Co., 20 O.L.R. 390;
discussed in Ryckman v. Hamilton, Grimsby, etc., Ry. Co., 10 O.L.R.
419; followed in Rayfield v. B.C. Elec. Co., 15 B.C.R. 366.]
NEGLIGENCE RAILWAY AND TRAFFIC BRIDGE RAILWAY PART NOT FLOORED
TRESPASSER FALLING THROUGH.
The owner of a railway and traffic bridge, one portion of which is used
CARRIAGE OF LIVE STOCK. 73
foe railway traffic only and is not floored, the other portion being fenced
off from the railway portion and used for the passage of persons and
vehicles only and for the use of which a small charge is made r is not liable
im damages for the death of a person who, in a state of intoxication, and
in order to avoid payment of the charge, attempts to cross on the railway
portion of the bridge, falls through and is killed. Such person being a
trespasser, the doctrine of implied invitation does not apply. [Stevens v
Jeacocke (1848 1, 11 Q.B. 731, 116 E.R, 647; Gonis v. Scott (1874.. LR.
9 Ex. 125; Walker v. Midland R. Co. (1836 , 2 Times LJR. 45O. followed.]
Walsh T. International Bridge t Terminal Co^ 45 DJ^R. 701.
BUS LINE.
Access to station, see Stations.
CABS.
Bight of access to stations, see Stations.
CARRIAGE OF LIVE STOCK.
Injuries to animals running at large, see Fences and Cattle-Guards
Conditions limiting liability for the loss or damage to cattle in transit,
aee Limitation of Liability.
Notice of loss, or of claims, see Claims,
Carriage of animals creating nuisance, see Xuisanee.
Annotation.
Liability of common carrier for loss of or damage to animals it under-
takes to carry, 3 Can. Ry. Cas. 189.
LOSS OK IXJVKT TO LIVE STOCK - COXPITIOX OF BILL OF LADING.
Plaintiffs having carried on business for over twenty-five years, and
having shipped live stock frequently, ~honld have known of the conditions
mentioned in the company defendant's bill of lading, and plaintiffs hav-
ing; failed to prove any fault or negligence on the part of the company
defendant, the latter must be declared relieved of any responsibility for
the loss of live stock in transit, under the terms of the bill of lading duly
signed by plaintiffs.
Hatte'et aL v. Grand Trunk Ry. Co., 18 Rev. de Jur. 320.
LIABILITY FOB IXJCRT.
The carrier who accepts an animal for transportation takes it under his
eare and is in the position of a person using it- He is. therefore, liable
under the provisions of Art. 10-%5 C.C. Qne. for damage which the animal
causes.
Leonard T. Can. Pac. Ry. Co.. 35 Qne. S.C. 382.
TRANSPORTATION OF LIVE ANIMALS RESPONSIBILITY FOB LOSS
OF.
Where a traveler put his horses upon a ferry boat of the above descrip-
tion with side-rails only 15 inches high, saw the risk to which his animals
were exposed, and kept them under his own charge during the crossing.
he is not entitled to recover from the owner of the ferry boat the value
of a horse which became frightened, jumped overboard and was drowned
74 CARRIAGE OF LIVE STOCK.
where the accident occurred through no fault of omission or commission
on the part of the carrier or his employees, but from the restless dispo-
sition of the horse and the inability of the owner to keep him quiet.
Roussel v. Aumais, 18 Que. S.C. 474.
LIABILITY FOB LOSS of DOG.
The defendants are, by the Railway Act, 1888, common carriers of ani-
mals of all kinds; and in this case were held liable for the loss of a dog
which was received by them for carriage by their railway and was not
delivered to the plaintiff in accordance with the contract made with him.
Distinction between the English and Canadian Railway Acts pointed out.
Judgment of the County Court of Wentworth affirmed.
McCormack v. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 185, 6 O.L.R
577.
LIMITATION OF LIABILITY.
The plaintiff delivered to the defendants, at Stony Point, eighty six
hogs, and on the following day he put on board the same car, at Thames-
ville, on the way, twenty more hogs, to be carried to Guelph. He got,
at Stony Point, a drover's pass to pass him in charge of his stock. The
agent there said that he allowed the plaintiff to label the car "Thames-
ville," on condition that the plaintiff would see the label changed, and
that if it had been labelled "Guelph" it would not have stopped at Thames-
ville at all. The plaintiff went as far as Thamesville with the hogs, and
from thence went on by express. By some error the car went round by
Hamilton; a delay of several days occurred, by which the hogs were injured,
and several died; and when the car reached Guelph nine were missing
altogether. The jury found that they were lost after leaving Thames-
ville, but how they could not say. Upon the shipping bill, as well as
upon the plaintiff's pass, was endorsed a condition that upon a free pass
being given, defendants would not be responsible for any negligence, de-
fault, or misconduct, gross, culpable, or otherwise, on the part of defend-
ants or their servants, or of any other person causing or tending to cause
the death, injury or detention of the goods: Held, that the condition pro-
tected the defendants, for it stifficiently appeared that the loss must have
happened from some cause within it; and, Quaere, whether it was not a
reasonable condition, the pass being given to enable the plaintiff to ac-
company and take care of the stock: Held, also, that the plaintiff was
to blame for not having the proper label put on at Thamesville, and for
not remaining himself or sending someone with the hogs.
Farr v. Great Western Ry. Co., 35 U.C.Q.B. 534.
LIMITATION OF LIABILITY.
To a declaration against defendants, setting out a special contract en-
tered into with plaintiff to carry certain cattle, whereby plaintiff under-
took "all risk of loss, injury, damage, and other contingencies in loading,
unloading, transportation, conveyance, and otherwise, no matter how
caused," and alleging the consequent duty on defendants' part to furnish
suitable and safe carriages, and the breach of such duty, whereby some
of the cattle were killed aand others injured, defendants pleaded this spe-
cial contract, and that while said cattle were being so conveyed a door
of one of the cars became open, and some of the cattle fell out and were
injured: Held, on demurrer, a good plea and that defendants were not
liable.
Hood v. Grand Trunk Ry. Co., 20 U.C.C.P. 361.
CARRIAGE OF LIVE STOCK. 75
N OF LIABIIJTY INABILITY TO BEAD OK UNDERSTAND CONDITIONS.
Plaintiff sent some cattle from Beachville by defendants' railway, sign-
ing a paper which declared that he undertook all risk of loss, injury or
damage, in conveyance and otherwise, whether arising from the negligence,
default, or misconduct, criminal or otherwise, on the part of defendants
and their servant*. He was told by the stationmaster that he would have
to sign these conditions, which he did without taking time to read them.
To an action for negligence in the carriage of the cattle, by which five
of them were killed, defendants pleaded these conditions, which the jury
found that the plaintiff had signed: Held, that he was bound by them,
though he might not have read or understood the paper. [Simons v.
Great Western Ry. Co.. 2 C.B.X.S. 620. distinguished, as being founded am
the fraud practised on the plaintiff to induce him to sign.]
[O'Roarke v. Great Western Ry. Co., 23 U.C.Q.B. 427.]
SPECIAL CONTRACT INJTRY TO PERSONS ix CHARGE TRAVELING FREE.
The third parties shipped two carloads of horses over the defendants'
line, and placed G. and R. in charge. G. was killed and II. injured while
on the defendants' train, through the negligence of the defendants, and in
actions brought by the administrator of the estate of G. and by R. against
the defendants, judgments were recovered against the defendants for dam-
ages for the negligence. The defendants sought indemnity against the
third parties, the owners and shippers of the horses. Special contracts for
shipment of live stock were signed by the defendants* agent and by the
third parties, the form of contract being that authorized by the Board
under the Railway Act. The rate of freight charged was that authorized
under Canadian classification Xo. 14. dated the loth December. 190$. and
approved by the Board, in cases where the stock is shipped under the
terms and conditions of the special contract, which classification contains
certain general rules governing the transportation of live stock, including
this, that the owner or his agent must accompany each carload, and
owners or agents in charge of carloads will be carried free on the same
train with their live stock, upon their signing the special contract ap-
proved by the Board. G. and R. were carried free, but neither signed
the special contract, nor was any pass issued and delivered to either of
them embodving its terms, and neither of them knew the contents of the
special contract. Upon the lace of each contract wa* written. "Pass man
in charge,*" Among the conditions of the contract were, that the liability
of the defendants should be restricted to #100 for the lo>s of any one horse,
and that in case of the defendants granting to the shipper or any nominee
or nominees of the shipper a pass or privilege less than full fare to ride
on the train in which the property is being carried, for the purpose of
caring for the same while in transit, and at the owner's risk. then. a<
to every person so traveling, the defendants are to be entirely free from
liability in respect of his death, injury, or damage, and whether it be
caused by the negligence of the defendants or their servants or employees,
or otherwise howsoever. On the back of the contract, and as part of the
document approved by the Board, provision was made for each person
entitled to free passage to sign his name, followed by a note that agents
must require such persons to write their own names on the lines above.
The defendants' agent neglected to observe this direction: Held, that the
third parties owed no duty to the defendants to inform G. and R. of the
terms of the special contract. (2 Looking at the express terms of the
written contract, including the rule set forth in classification 14. intended
for the guidance of both parties, and having regard to all the circumstances
76 CARRIERS OF GOODS.
under which the contract was entered into, there was no implied agreement
on the part of the third parties to indemnify the defendants, in order to
give the transaction such efficacy as both parties must have intended
it to have. There would have been no claim against which to be indemnified
if the defendants' agent had performed his duty, and it would be contrary
to principle to imply an agreement by the third parties to protect the de-
fendants from the consequences of their own carelessness.
Goldstein and Robinson v. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 14], 21
O.L.R. 575.
[Affirmed in 32 Can. Ry. Cas. 485, 23 O.L.R. 536.]
INJURY TO PERSONS IN CHARGE TRAVELING ox PASS CLAIM FOR INDEM-
NITY.
Held, affirming the judgment of Teetzel, J. (21 O.L.R. 575, 12 Can. Ry.
Cas. 141, above), that the third parties were not bound to indemnify the
defendants in respect of the sums paid to the plaintiffs. Per Garrow,
J.A.: The general rule as to the right of indemnity is, that the claim,
unless expressly contracted for must be based upon a previous request of
some kind, either express or implied, to do the act in respect of which
the indemnity is claimed; and, there being no express covenant or con-
tract of indemnity, it was impossible, in the circumstances, to imply one;
to do so would not be in furtherance of an existing contract, but to make
an entirely new and different one. [Birmingham & District Land Co. v.
London & North Western Ry. Co. (188(5), 34 Ch. D. 261, 274, Sheffield v.
Barclay, [1905] A.C. 392, 397, and Dugdale v. Levering (1875), L.R. 10
C.P. 196, specially referred to.] Semble, per Garrow, J.A., that the failure
to obtain the signatures of G. and R. was not material they could not
repudiate the contract which conferred the right which they were exer-
cising. [Hall v. North Eastern Ry. Co. (1875), L.R. 10 Q.B. 437.] Per
Meredith, J.A. : No sort of obligation, indemnity, insurance, or otherwise,
on the part of the third parties, had been proved.
Goldstein v. Can. Pac. Ry. Co.; Robinson v. Can. Pac. Ry. Co., 12 Can.
Ry. 485, 23 O.L.R. 536.
LIABILITY OF RAILWAY TO CARETAKER OF STOCK.
One traveling upon a railway in charge of live stock at a reduced fare,
which is paid by the shipper of the live stock, is not bound by a special
contract between the shipper and the railway company relieving the com-
pany from liability in case of his deatli or injury, of which he had no
knowledge, to which he was not a party, and from which he derived no
benefit, where the railway company failed to do what was necessary to
bring the special conditions of the contract to the attention of the traveler.
[Robinson v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 444, 8 D.L.R. 3002,
reversed; Robinson v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 441, re-
stored.]
Robinson v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 264, 12 D.L.R. 696,
47 Can. S.C.R. 622.
[Reversed in 19 Can. Ry. Cas. 37.]
CARRIERS OF GOODS.
A. Carriage of Freight.
B. Express and Transfer Companies.
C. Charges.
Carriage of traffic before opening of railway, see Tolls and Tariffs (Re-
fund).
CARRIERS OF GOODS. 77
See Baggage; Cars; Claims; Carriage of Live Stock: Freight agents:
Government Railways; Limitation of Actions; Limitation of Liability.
Tolls and Tariffs.
Annotations.
Liability of railway company for goods which it undertakes to oarrv
1 Can. Ry. Cas. 226.
Connecting lines as affected by conditions in bill of lading limiting
liability, 2 Can. Ry. Cas. 117.
Liability of carrier for loss of goods when conditions with reference to
insurance of goods not complied with by shipper. 2 Can. Ry. Cas. 134.
Duties and liabilities of carriers of goods, see Carriers of Goods. 2 Can.
Ry. Cas. 172.
The Crown as a common carrier. 35 D.L.R. 285.
Routing of freight. 19 Can. Ry. Cas. 363.
Liability of carriers for value of shipment. 23 Can. Ry. Cas. 335.
A. Carriage of Freight.
INTERPRETATION or AGREEMENT CONTROLLABLE FREIGHT.
By an agreement providing that the defendants should ship by the lines
of the plaintiffs their controllable freight for points reached by the lines
of the plaintiffs and their connections to the amount of $35.000 per annum,
if the controllable freight amounted to that: if not. then all of it. The
defendants contended that the plaintiffs should supply them with cars for
the carriage of the freight according to the custom or practice alleged
to be usual in the case of a local line bringing freight to a trunk line
consigned to a point on the trunk line or reached by its connections:
Held, restoring the judgment of Boyd. C.. at the trial and reversing the
Court of Appeal. Maclennan. J.A.. dissenting. (1) That "controllable
freight" means business, that is goods, which the shipper has not himself
directed to be carried by a particular line or route to its destination. (2i
That the alleged practice to supply cars was not to be imported into the
special contract between the plaintiffs and defendants. (3i That the con-
tract was plain, certain and unambiguous "both on its face and when
applied to the subject of it for fulfilment and execution, and its meaning
was not rendered uncertain by anything extrinsic: and the evidence that
the plaintiffs* officers for a time acted upon the defendants' understanding
of the contract would not affect the legal construction of it. (4 That
the plaintiffs were entitled to a reference to ascertain the amount received
for any "controllable freight"' shipped by the defendants contrary to th-
terms of the agreement.
Michigan Central Ry. Co. v. Lake Erie A Detroit River Ry. Co., 6
Can. Ry. Cas. 83.
AGREEMENT TO FURNISH CARGOES IMPOSSIBILITY OF PERFORMANCE FOR-
TUITOUS EVENT DESTRUCTION OF BRIDGE.
A railway company undertaking to furnish full cargoes for ships, sup-
plying the quantity that may be wanting in any case, is discharged from
such obligation by any fortuitous event, as when a bridge on its line i<
burned down by a forest fire, so that the railway company is absolutely
prevented from delivering the cargoes it had undertaken to furnish.
Furneas, Withy i Co. v. Great Northern Ry. Co., 10 Can. Ry. Cas. 440.