company could therefore maintain an action for recovery of the freight
from the consignee. (3) That the plaintiff completed its contract
106 CAKKIERS OF GOODS.
arid became entitled to recover its charges when the car containing the
goods was placed for unloading with the knowledge and consent of the
consignee.
Can. Pac. Ry. Co. v. Forest City Paving & Construction Co., 10 Can Rv.
Cas. 295, 2 Sask. L.R. 413.
WRONGFUL SALE OF GOODS FOB UNPAID CHARGES.
A carrier sued for conversion of goods by the consignor in respect of an
alleged neglect of duty on the part of the auctioneer employed by the car-
rier to sell the goods for unpaid charges, and for alleged failure to account
for all of the goods sold, may properly bring in the auctioneer as a third
party and claim indemnity and relief over against him under Ont. Rule
209 (C.R. 1897). [Swale v. Can. Pac. Ry. Co., 1 D.L.R. 501, 3 O.W.N
001, reversed.]
Swale v. Can. Pac. Ry. Co. (No. 2), 2 D.L.R. 84, 25 O.L.R. 492.
WRONGFUL SALE OF GOODS.
An auctioneer to whom goods in bulk are entrusted by a carrier to sell
for unpaid charges against them impliedly contracts with the warehouse-
men employing him, that he will exercise reasonable care in selling the
goods. [Gagne" v. Rainy River Lumber Co., 20 O.L.R. 433, specially re-
ferred to.l
Swale v. Can. Pac. Ry. Co. (No. 2), 2 D.L.R. 84, 25 O.L.R. 492.
SALE OF GOODS TO PAY CHARGES FAILURE TO DELIVER SURPLUS GOODS-
NEGLIGENCE OF AUCTIONEER BlLL OF LADING LIMITING AMOUNT OF
RECOVERY.
Swale v. Can. Pac. Ry. Co., 10 D.L.R. 815, 24 O.W.R. 224.
"SWITCHING CHARGES."
Grand Trunk Ry. Co. v. Laidlaw Lumber Co., 2 O.W.N. 548, 18 O.W.R.
340.
CONTRACT FOR CARRIAGE ACTION FOR DAMAGES FOR BREACH BY FAILURE TO
DELIVER IN TIME LlEN FOR FREIGHT EVIDENCE.
Ludwig v. Beede, 8 W.L.R. 973 (Y.T.).
UNCLAIMED FREIGHT SALE FOR CHARGES.
Where a consignee fails to pay the charges and takes over the goods at
the destination, the railway company has a right to detain them and to
soil them for unpaid charges under the statutory authority conferred by
the Railway Act, 1906, ss. 345, 340, and the goods remain "at owner's
risk" while in the custody of the railway; bvit the railway company is not
excused thereby from responsibility for the default of an auctioneer to
whom the goods were handed over to sell for unpaid charges to account
for the surplus of the goods not required for that purpose and the rail-
way company will be liable for such negligence of its agent, the auctioneer,
as would make a bailee liable for damages or would constitute conversion.
[Dixon v. Richelieu Navigation Co., 15 A.R. (Ont.) 047, followed.]
Swale v. Can. Pac. Ry. Co., 10 Can. Ry. Cas. 303, 29 O.L.R. G34, 15
D.L.R. 810.
STATUTORY BIGHT TO SEIX UNCLAIMED FREIGHT FOB CHARGES EMPLOY-
MENT OF AUCTIONEER AGENCY.
The Railway Act, 1900, does not require the employment of a licensed
auctioneer to carry on the sale of unclaimed freight for unpaid tolls; the
statutory right conferred on the railway company to sell by auction goods
CARRIERS OF GOODS. 107
OB which the charges hare not been paid is one necessary to the carrying
OB of a railway business and such right cannot be qualified by any limi-
tations imposed by provincial authority. [Grand Trunk By. Co. v. Attor-
ney-General of Canada [1907] A.C. 65J 7 Can. Ry. Cas. 472, followed.]
Swale v. Can. Pae. By. Co. 16 Can. By. Casl 363. 29 OJ^SL 634, 15
D.L.B. 816.
MISTAKE i>- EXPENSE BILL FREIGHT CHARGES UNPAID BIGHT OF CARRIER
TO RECOVER.
Where the consignee of goods is not the purchaser or otherwise the own-
er of them and owing to the carriers mistake in the making out of the
expense bill is led to suppose on the delivery of the goods to him that the
freight charges have been paid, such charges cannot be recovered from him
by the carrier. [Domett v. Beekford. 3 Barn. & AdoL 524. 39 BJL 559.
2~X. 4 il. 374, 3 LJ.K.B. 10. followed.]
Can. Pae. By. Co. v. Watts. 19 Can. By. Cas. 338, 8 Alta. LJK. 174,
20 DJLR. 607."
CONSIGNEE'S DELAY rs CNLOADLNG NOTICE TO SHTPPCS.
When a railway company has delivered to a consignee goods which it
undertook to carry, it is not bound to notify the shipper of delay caused
by the consignee in unloading, and of the costs incurred by the consignee
ia consequence. If the shipper subsequently pays such costs, to the dis-
charge of the consignee, he has no action in repetition (Le money paid
under a mistake > against the railway company.
Baine T. G.T.B. Co^ 54 Que. S.C. 474.
I'd! BIB IP*** OF PASSENGERS.
A. Injuries to Passengers.
B. Doty of Protection; Trespassers.
C. Ejection from Train.
Injury to passenger by reason of defective bridge, see Bridges.
Injuries occasioned by reason of defective station grounds, see Stations.
Ejection of passenger for violating conditions of ticket, see Tickets and
Fares.
Injuries to employees, see Employees.
Loss of baggage, see Baggage.
See Government Bailways; Train Service.
Duties and liabilities of carriers of passengers. 1 Can. By. Cas. 262.
Carriers duty to protect passengers. 2 Can. By. Cas. 96.
Carriers of passengers and duties toward passengers alighting from
cars. 2 Can. By. Cas. 37.
Liability of carrier for injuries to passengers riding on platform. 4
Can. By. Cas. 258.
Duty of carriers to provide accommodation for passengers. 4 Can. By.
Cas. 427.
Transportation of immigrants. 4 Can By. Cas. 416.
Liability of carrier for injuries inflicted by fellow passenger. 4 Can.
Ry. Cas. 448.
Liability of carrier for injuries to passenger or licensee. 2 Can. By.
Cas. 64. 4 Can. By. Cas. 200. 4 Can. By. Cas. 491.
Licensees and trespassers. 12 Can. By. Cas. 245.
108 CARRIERS OF PASSENGERS.
Evidence of negligence in carrying passengers. 9 Can. Ry. Cas. 269.
Review of cases on negligence. 3 Can. Ry. C'as. 316.
The Crown as a common carrier, 35 D.L.R. 285.
Liability of carrier of passengers as a common carrier, 23 Can. Ry.
Cas. 305.
A. Injuries to Passengers.
See also Limitation of Liability (B) ; Street Railways (G) ; Negligence
(A.)
DERAILMENT OF TRAIN.
Where the breaking of a rail is shewn to be due to the severity of the
climate and the suddenly great variation of the degrees of temperature,
and not to any want of care or skill upon the part of the railway company
in the selection, testing, laying and use of such rail, the company is not
liable in damages to a passenger injured by the derailment of a train
through the breaking of such rail. Fournier, J., dissenting, on the ground
that as the accident was caused by a latent defect in the rail in use, the
company was responsible. Mont. L.R. 2 S.C. 171, Monti L.R. 3 Q.B. 324,
reversed.
Can. Pac. Ry. Co. v. Chalifoux, 22 Can. S.C.R. 721, 24 C.L.J. 501.
[Applied in Guinea v. Campbell. 22 Que. S.C. 201 ; referred to in Quebec &
Lake St. John Ry. Co. v. Duquet, 14 Que. K.B. 484; Quebec Central Ry.
Co. v. Lortie, 22 Can. S.C.R. 343.]
NEGLIGENCE IN ALIGHTING TBAIN LONGER THAN PLATFORM.
L. was the holder of a ticket and a passenger on the company's train
from Levis to Ste. Marie Beuce. When the train arrived at Ste. Marie
station, the car upon which L. had been traveling was some distance
from the station platform, the train being longer than the platform,
and L., fearing that the car would not be brought up to the station, the
time for stopping having nearly elapsed, got out at the end of the car,
and, the distance to the ground from the steps being about two feet and
a half, in so doing he fell and broke his leg, which had to be amputated.
The action was for $5,000 damages, alleging negligence and want of proper
accommodation. The defence was contributory negligence. Upon the evi-
dence the Superior Court, whoj.e judgment was affirmed by the Court of
Queen's Bench, gave judgment in favour of L. for the whole amount. On
appeal to the Supreme Court of Canada: Held, reversing the judgments
of the Courts below, that in the exercise of ordinary care, L. could have
safely gained the platform by passing through the car forward, and that
the accident was wholly attributable to his own default in alighting a*
he did, and therefore he could not recover; Fournier, J., dissenting.
Quebec Central Ry. Co. v. Lortie, 22 Can. S.C.R. 336.
[Referred to in Guay v. Can. North. Ry. Co., 15 Man. L.R. 279.]
PASSENGER ALIGHTING FROM TRAIN WIIF.RE NO PLATFORM.
If there is a platform at a railway station, the railway company is
bound to bring the passenger car of a train stopping there up to the plat-
form to permit passengers to step down on it in alighting, or to provide
some other safe means for passengers to alight. The plaintiff was a pas-
senger on one of defendants' trains. On stopping at the station where she
wished to get off, the train was left so that the car in which the plaintiff
was, stood entirely behind the station platform. The conductor having
offered plaintiff his hand to assist her in alighting, she took it and jumpe<*
CARRIERS OF PASSENGERS. 109
to the ground, three feet below. The ground at that point sloped slightly
downwards from the track and was slippery with snow or ice. The plain-
tiff received serious injury in consequence of the jump. She was two
months advanced in pregnancy, was very unwell for the next six days and
then had a miscarriage, from which she suffered great weakness for a con-
siderable time. Plaintiff did not know at the time she jumped that there
was a platform at the station : Held. ( 1 1 The defendants were liable in
damages for the injury suffered by plaintiff, as the conductor had been
guilty of negligence. (2 * The plaintiff was not bound to disclose her preg-
nancy to the conductor, so that he might know that special care was neces-
sary in aiding her to alight.
Guay T. Can. Northern By. Co.. 15 Man. LJR. 275.
COLIISIOX XEGUGEVCE OF OOXDUCTOR.
While the plaintiff was being conveyed as a passenger on a car of the
defendants, he was injured in consequence of the car being run into from
behind by another car on the same track. The motonnan and conductor
of the other ear had, contrary to the express rules of the company, ex-
changed places, and the conductor in operating the car. either through
negligence or incompetence, allowed the collision to take place: Held.
that the negligence of the motonnan in abandoning his post to the conductor
was the effective cause of the accident, and that the defendants were liable
in damages for the injury to the plaintiff, although the conductor, whose
act was the immediate cause of the accident, was not acting within the
scope of his employment at the time. [Englehart v. Far rant, [1897] 1
Q.B. 240, followed -/Gwilliam v. Twist. [1895] 2 Q.B. 84: Beard T. London,
[1900] 2 Q.B. 530: Harris v. Fiat (19071, 23 TX.R. 504. distinguished]:
Held, that, in order to make the defendants as carriers of passengers
by the railway liable to the plaintiff, it was enough to shew that the negli-
gence or omission which caused the accident was that of the defendants'
servants then in actual charge of the car. [Wright v. Midland By. Co.
(1873), LJL 8 Ex. 137; Thomas v. Bhymney By. Co. (1871), LJL 6 Q.B.
266. and Taylor Manchester, etc. By. Vo.. "[1895] 1 Q.B. 134. followed:
Vance T. G.TJ*. By. Co. (1910*. 17 O.WJL 1000, distinguished.]
Hill v. Winnipeg' Elec. By. Co., 21 Man. LJL 442.
XBGOGEXCE ix MAXXS* or KTSXTXC TKAIXS OKDGFARY rxcroexr rs RAIL-
WAT TiAVEtntG.
Plaintiff was a passenger by a night train on the defendant company V
railway between Montreal and Toronto. After retiring to the berth assigned
to her an upper one she endeavoured to make some change in the man-
ner in which the berth was made up. She next tried to reach the other end
of the berth from the inside, but. just as she leaned to the inside of the
car, there was a violent lurch and jerk which threw her into the middle of
the passage way. on her back, inflicting severe injuries. On the trial of
the action brought by plaintiff to recover damages for the injuries sus-
tained by her, the learned trial Judge withdrew the case from the jury
for the reasons (1) that there was no evidence of negligence on the pan
of the defendant, and (2* that the plaintiff's evidence was consistent with
the view that her own efforts to better her condition, in her fear arising
from the motion of the car, resulted in the accident: Held, there bein^
doubt as to the proper inference to be deduced from the facts in proof, there
being two reasonable but different views that might be taken, that the case
was improperly withdrawn from the jury, and plaintiff was entitled to an
order for a new trial with costs: Held, that, apart from the question of
plaintiff's negligence in attempting to turn in her berth, or the occasion for
110 CARRIERS OF PASSENGERS.
making such a change, there was evidence for the jury of negligence on
the part of defendant. Semble, that a train should not be managed in
such a way, whether by excessive speed in going around curves or other-
wise, that a passenger should be thrown from the berth by the swaying and
lurching of the car, this being not at all an ordinary incident in railway
traveling.
Smith v. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 231, 34 N.S.R. 22.
[Reversed in 31 Can. S.C.R. 367, 1 Can. Ry. Cas 255; followed in Loug-
heed v. Hamilton, 1 Alta. L.R 37, 7 W.L.R. 204; referred to in Jackson v.
Can. Pac. Ry. Co., 1 S.L.R. 88.]
NEGLIGENCE PASSENGKR IN SLEEPING BERTH.
S., an elderly lady, was traveling on a train of the C.P.R. Co. from
Montreal to Toronto. While in a sleeping berth at night, believing that
she was riding with her back to the engine, she tried to turn around in
her berth, and the car going around a curve at the time she was thrown out
on to the floor and injured her back. On the trial of an action against
the company for damages it was not shewn that the speed. of the train was
excessive or that there was any defect in the roadbed at the place where
the accident occurred to which it could be attributed: Held, reversing
the judgment of the Supreme Court of Nova Scotia ( 1 Can. Ry. Cas. 231 ) ,
that the accident could not be attributed to any negligence of the servants
of the company which would make it liable in damages to S. therefor.
Can. Pa*. Ry. Co. v. Smith, 1 Can. Ry. Cas. 255, 31 Can. S.C.R. 367.
FALLING FROM PLATFORM OF VESTIBULE CAB MOVING TRAIN.
Railway companies are not insurers of their passengers. Where a passen-
ger while passing through a vestibule from one car to another on a moving
train fell from the platform through a door partially opened by some un-
known means and was killed: Held, that there was no evidence from
which the jury might reasonably have inferred negligence on the part of
the defendants, causing the accident, and the defendants were entitled to
a nonsuit.
Campbell v. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 258.
[Inapplicable in Bell v. Winnipeg Elec. Street Ry. Co., 15 Man. L.R.
344.]
NEGLIGENCE IN STOPPING TRAIN OPPORTUNITY TO ALIGHT.
A railway company which has undertaken to carry a passenger to a sta-
tion on its line must stop its train at that station long enough to give the
passenger a reasonable opportunity of getting off. If the train stops and
the passenger, after making reasonable efforts to do so, is unable to get off
before it starts again, and jumps off and is injured, the company is liable
in damages; provided, however, that when the passenger jumps off the
train is not moving at such a rate of speed as to make the danger of
jumping obvious to a person of reasonable intelligence.
Keith v. Ottawa & New York Ry. Co., 2 Can. Ry. Cas. 23, 3 O.L.R. 265.
[Affirmed in 5 O.L.R. 116, 2 Can. Ry. Cas. 26.]
ALIGHTING FROM TRAIN WHILE IN MOTION NEGLIGENCE CONTRIBUTORY
NEGLIGENCE.
The fact of a passenger getting off a train while it is in motion is not
necessarily negligence. In every case it is a question to be decided by the
jury whether the passenger acted as a reasonable man would do under the
circumstances. Where a train, scheduled to stop at a named station,
did not on arriving there stop a sufficient length of time to enable the pas-
CARRIERS OF PASSENGERS. Ill
sengers to get off, and a passenger in attempting to do so, after the train
had started again, fell and was injured,, and it was found by the jury on
the evidence that he acted as a reasonable man would do under the cir-
cumstances, the Court declined to interfere with the finding.
Keith v. Ottawa i New York Ry. Co.. 2 Can. Ry. Ca>. 26. 5 O-LJK- 116.
[Referred to in Simpson v. Toronto & York Radial Ry. Co.. 16 OJL.R.
31; applied in McDougall v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 316,
8 DJ^R, 271.]
DEFECTIVE DOOR APPLIANCES IXJTRT TO CHILD PASSENGER.
The plaintiff, a boy four years of age, with his parents, was being car-
ried as a passenger on a steamboat of the defendants. The child and his
mother were in a house on the boat's deck, leading from which out on to the
deck were doors fitted with appliances intended to keep them fastened
back, when they should happen to be flung wide open. While the plaintiff
was in the act of passing through one of the doorways to get out on
the deck to his father, the door swunr to and jammed his fingers, so that
the tips of some of them had to be amputated. The plaintiff's father and
elder brother swore that the fastening of the door was out of order, and
would not hold it back. There was evidence to shew that the doors of the
house were frequently being opened and shut by passengers and others,
and that a very few minutes before the accident a passenger had gone
through the doorway in question, leaving the door on the swing. It was
also proved that the fastenings had been put on the door in order to hold
them open in warm weather for the purpose of ventilation. In an action
on the ease for negligence brought on the part of the plaintiff by hi>
father as his next friend against the company to recover damages for the
injury above mentioned: Held, that there was no duty cast upon the de-
fendant company to provide the doors with the appliances mentioned or
to maintain them in good working order; and. even if they were, the
evidence went to shew that the proximate cause of the accident was the
act of the passenger in leaving the door on the swing, for which the com-
pany could not be held liable.
Cormier v. Dominion Atlantic Ry. Co., 3 Can. Ry. Cas. 304. 36 N.B.R.
10.
CROWDED TRACTS STAXDIXG ox PLATFORM COXTRTBTTORT XEGLJGEXCE.
The plaintiff when traveling by a train of the defendants was forced
by overcrowding to resort to the platform outside one of the cars, and
for better protection sat down on the second step, and while so sitting was
thrust out by a swerve of the train, which made the people standing on
the platform press up against him suddenly. This caused him to lose
his balance, and one of his legs protruding, was struck by some fixture on
the track, and he sustained injuries: Held, that the defendants were lia-
ble. [Metropolitan Ry. Co. v. Jackson (1877), 3 App. Cas. 193, specially
referred to.]
Burriss v. Pere Marquette Ry. Co.. 4 Can. Ry. Cas. 251, 9 OXJL 259.
LATEST DEFECT ix WHKKJL OF CAR DERAILMENT.
The plaintiff brought this action for injury sustained by her owing
to the breaking of a flange in the hind wheel of a car of the defendants,
on which she was a passenger, on the occasion of an excursion, causing
partial derailment and her violent ejection. The flange broke because of an
inherent defect in the shape of an airhole at the time of the manufacture
of the wheel. The defendants did not shew what tests had been applied by
the manufacturers of the wheel, or what could be done to detect the flaw;
112 CARRIERS OF PASSENGERS.
neither did they shew that they themselves made any proper examination
of the wheel before using it: Held, that the defendants had failed ade-
quately to discharge their duty of examining thoroughly and skilfully the
equipment furnished for the excursion and were liable. Judgment of
Clute, J., affirmed.
Gaiser v. Niagara St. Catharines & Toronto Ry. Co., 9 Can. Ry. Cas.
266, 19 O.L.R. 31.
AliSENCE OF FACILITY FOR ALIGHTING CONTRIBUTORY NEGLIGENCE.
Plaintiff was a passenger lawfully on a passenger train of a railway
company. On arriving at her destination the train stopped, the name of
the place was announced, and the plaintiff, finding the door of the car
open, went out and stepped off, expecting to step on the platform, but
there being no platform she fell four feet and was injured. It was late
at night, very dark, and no lights were provided and the plaintiff was un-
familiar with the surroundings: Held, that under the Railway Act it was
the duty of the company to provide proper facilities for passengers alight-
ing from their trains. (2) That the announcement of the station, the
stoppage of the train, and the open door, constituted an invitation to the
plaintiff to alight, and an intimation that she might alight safely, and no
warning being given the company was guilty of negligence if the passen-
ger, without contributory negligence, did not alight safely. (3) That
under the circumstances the defendant was entitled to alight, and there
was no contributory negligence in not satisfying herself that there was a
platform to alight upon.
Wray v. Can. Northern Ry. Co., 10 Can. Ry. Cas. 196, 3 Sask. L.R. 42.
PASSENGER CROSSING TRACKS AT STATION.
The plaintiff sued the Wabash and Grand Trunk railway companies to
recover damages for injury caused to her by a train of the Wabash com-
pany, at the Belle River railway station. The railway was owned by the
Grand Trunk company, the Wabash company having running rights over it.
The plaintiff was a passenger on a Grand Trunk train, and alighted at the
Belle River station for the purpose of going to the village. There were
two tracks, running east and west, and the plaintiff was on the platform
on the north side of the two tracks, which she had to cross in a southerly
direction to reach the village. At the easterly end of the station platform
was a sidewalk and pathway for foot passengers, but this pathway where
it crossed the railway right-of-way was not a public highway, but the pri-
vate property of the Grand Trunk company. The Grand Trunk train by
which the plaintiff had arrived was on the southerly track, and the plain-
tiff was standing just clear of the north track, waiting for that train to
proceed easterly before she attempted to cross. As the last car reached
the crossing, she stepped upon the north track, in front of a Wabash train
approaching from the east, and sustained the injuries complained of.
There was nothing to obstruct the view from the platform to the ap-
proaching Wabash train, and warning of its approach had been given by
whistling. The jury found negligence on the part of both companies the
Grand Trunk, because "they should have taken more care of the passen-
gers on account of the train being late:" and the Wabash, because they
"did not take proper precautions knowing that the Grand Trunk train
was late": Held, that the action was properly dismissed by the trial
Judge, whether as upon a nonsuit because there was no evidence of negli-
gence on the part of the defendants, or either of them, or upon the findings
of the jury, in effect negativing negligence other than as found by them,
and they having found no act of negligence which caused the injury. Judg-
ment of Middleton, J., affirmed. Per Riddell, J. That it was properly
CARRIERS OF PASSENGERS. 113
ruled at the trial that the station-master'* statement after the accident
was not admissible aa evidence against the defendant*: [Wilson T. Bots-
ford^Jenks COL (1903), 1 O.W.R. 101] : Held. also, per curiam, that a new
trial should not be ordered. Per Muloek. CJ.: That there was no
reason to suppose that npon a new trial the evidence would be different:
and no exception could be taken to the charge, the Judge hating instructed
the jury that, if they found negligence causing the accident., they must
go further and find the particular act of negligence which caused the
accident. Per Riddel]. J.: That it would be improper to send the case
bark for a new trial on the supposition that another jury might find
some specific act of negligence which the former jury could not. [Oooledge
T. Toronto Ry. Co. (1907), 10 Q.W.R. 739.] Sembhv per RiddelL J.: That.
even if negligence had been proved gi*t: the defendants, the plaintiff
took! not recover, for everything proved was consistent with the plaintiff's
own negligence, and there was nothing to contraindicate itL
Antaya v. Wabash Ry. Cot, 12 Can. Ry. Cas. 4US. 24 OJLJL 88.