DCTT ID CLOSE TESTTBTLE HOOK FrvDtSG AS TO XB&LJGEVOE.
Upon a question of fact, as to whether the rear -vestibule and trap
doors of a day car of a railway train, on which ear the plaintiff was riding,
were closed while the train was standing at a certain station; where the
jury balances the probabilities (at on the testimony of the defendant
company's conductor and brakemaa for the negative and (b) on that of
the plaintiff and a disinterested witness for the affirmative, and finds
on that point for the plaintiff. such finding is within the jury's province
and will not be disturbed.
McDongaU T. Grand Trunk Rv. Co. (OntL>. 14 Can. Ry. Cas. 316, 8
DJJB. 271.
HOTELKEETOI COXVETJLSCE OF CTEST mOM OTATIOX - HE OF
Barker v. Pollock. 4 W.L.R. 327 (Terr.).
JV"Eye v. Toronto Ry. Co.. 3 O.W.X. 3S. 2O O.WJL 5.
COAnuBHUCT XEKiUGEXCE CA lEAVTXG TKACK - PAS*EXGEK JTMFESG
ntOM CAB.
Siea T. Halifax 4 S.W. Ry. Co_ 3 EJL.R. 431 (XJS-1.
XEGUGESCE OF KIUKI BAH.WAT ALLOWING TIME TO AUGHT I
*h circumstances of the case are such that positive and direct
evidence of specific negligence cannot be given, as where a street ear had
stopped to permit a passenger to alight, and the latter, while in the art
of alighting, is rendered unconscious so as not to be able to remember
what happened after getting to the car step, and where it is proved that
when the car had proceeded only a short distance ahead without knowl-
edge of the accident by any one on it. the passenger was found injured
and unconscious by the track, and where there was no evidence to indi-
cate any intervening cause, the jury may infer in the absence of any evi-
dence for the defence, that the car had been negligently started before the
pnmrngri had alighted, and that such negligence caused the fall and con-
sequent injuries. [Schwartz v. Winnipeg Elec. Ry. Co.. 9 D.L.R. 7ft*. 23
Man. I_R. 60. affirmed: McJkrthur v. Dominion Cartridge Co.. [1SW53 A.C.
72. and Grand Trunk Ry. Co. v. Hainer. 36 Can. S.CJJ. ISO. followed.]!
Winnipeg Elec. Ry. Co. v. Schwartz. 17 Can. Ry. Cas. 1. 49 Can. SCR.
80, 16 D.L.R. 681.
Can. Ry. L Dig. .
114 CARRIERS OF PASSENGERS.
EVIDENCE PRESUMPTION OF NEGLIGENCE DERAILMENT WHO ABE PASSEN-
C.KRS PERSON OBTAINING BEDUCED FABE WBONGFULLY.
Tlie presumption of negligence arising from an injury to a passenger
as the result of the derailment of a car at a switch over which many pas-
senger trains passed daily, is not displaced by the railway company shew-
ing that the accident was caused by the working out of an insecurely
fastened bolt from a switch rod, if the defective condition should have been
discovered by ordinary care. The fact that a person who was injured by
the derailment of a passenger car, obtained his ticket at a reduced rate by
presenting a commercial traveler's card after he had ceased to be en-
titled to use it, does not make him a trespasser on the train so as to
relieve the carrier from liability.
Ashbee v. Can. Northern Ry. Co., 18 Can. Ry. C as. 87, 14 D.L.E. 701,
6 Sask. L.R. 135.
DERAILMENT OF CAB EFFECT OF, IN NEGLIGENCE CASES How WAIVED.
Although proof of derailment of a railway car and its resultant injury
generally establishes a prima facie case of negligence against the defendant
company in a personal injury action, yet the plaintiff who goes further
and undertakes without success to shew specifically the cause of such de-
railment thereby waives the prima facie case upon which he might other-
wise have relied.
Curry v. Sandwich, Windsor & Amherstburg Ry. Co., 18 D.L.R. 685.
PASSENGEB STEPPING OFF MOVING TRAIN INVITATION TO ALIGHT NEGLI-
GENCE.
The conductor of a vestibuled car, in the service of the defendant com-
pany, on a dark night, after announcing the station, said to a passenger,
"This is your station ; this is where, you get off," and opened the door of
the car, and going into the vestibule, opened the trap or outside door, and
the passenger followed down the steps, unwarned by the conductor, and
stepped off the train while it was in motion, and was fatally injured.
The court was equally divided as to whether or not the defendant company
was guilty of negligence.
MayneV. Grand Trunk Ry. Co., 22 Can. Ry. Cas. 199, 39 O.L.R. 1, 34
D.L.R. 644.
[Reversed in 22 Can. Ry. Cas. 21 8.]
PASSENGER STEPPING OFF TRAIN INVITATION TO ALIGHT NEGLIGENCE.
A conductor of a passenger train, who after telling a passenger that the
next stop is his station, "where you get off," opened the door guarding the
steps of the car, and allowed the passenger to go down the steps from which
the passenger stepped off, while the train was still going at a high rate
of speed, was not guilty of negligence: the conductor was entitled to assume
that the passenger would act with ordinary prudence and discretion.
[Mayne v. Grand Trunk Ry. Co., 22 Can. Ry. Cas. 199, 39 O.L.R. 1, 34
D.L.R. 644, reversed.]
Grand Trunk Ry. Co. v. Mayne, 22 Can. Ry. Cas. 218, 56 Can. S.C.R,
95, 39 D.L.R. 691.
[Approved in Can. Pac. Ry. Co. v. Hay, 46 D.L.R. 87, 24 Can. Ry. Cas.
359, 58 Can. S.C.R. 283.]
STREET RAILWAYS INVITATION TO ALIGHT WHILE CAB MOVING NEGLI-
GENCE.
The opening of the door of a street car by the conductor at a regular
stopping place is prima facie an invitation to alight: and if the car is
moving slowly so that a reasonably careful passenger thinks the car has
CARRIERS OF PASSENGEKS. 115
stopped., it is negligence on tine part of the company. [Uayne T. Grand
Trunk Ry. Co_ 39 O.L.R. 1. 34 D.L.R. 644 (reversed in ->6 Can. S.C.R.
95. 3 D.~LJR. (691. 2 Cn- Ry. Cas. 199. 218 1, inferred to.]
Gazpy T. Toronto Ry. Co.. 22 Can. Ry. Cas- 233. 4O O.L.R. 449. 38 D.LJK.
tn.
STREET RAILWAY IX-JTRT TO PER*<X ATTEMPTING TO ESTER MOTHCC CAR
-lXTTTATT03~ SmDEX INCREASE OF SPEED XEGIJGEXCE COSTRIBC-
TORT XEGUGCXCE EviTIEXrE FINDINGS OF JTRT.
The plaintiff, a workingman. elderly but active, was crossing- from the
north side of a street to the south with the intention of becoming a passen-
ger upon an east bound car of the defendants, which had readied a. stop-
ping place and was standing still, and which he could not enter except by
the rear door on the south side. The car began to more when he was
about halfway across the street, but the motor-man motioned him to go
in front of the car, and stopped it: the plaintiff passed in front of the car
and proceeded to the rear end of it: J-fre he reached that end, the car
had (without any signal from the conductor begun to move slowly: the
plaintiff attempted to step on: but. as he did so. the car gave "a. sudden
jolt forward." he failed to get on the step of the platform, fell, and was
injured. At the trial of an action for damages for his injuries, there was
no conflict of testimony: and the jury found: (1 > That the plaintiff wa*
invited by the motor-man to get on the car when it was in motion; (2) that
the danger of getting on the car when in motion was not so obvious that
a reasonable man would not have accepted the invitation: (31 that the
plaintiff's injuries were caused by the negligence of the defendants:
(4| in "not seeing the passenger safely on the ear;" <5.j no contributory
negligence. The Court affirmed a judgment for the plaintiff, the findings
of the jury being considered such as reasonable men might make upon the
evidence. Per Meredith. C -J.C.P.: The conclusion that reasonable men
could find that the car was stopped to take up the plaintiff being reached,
the finding must be for the plaintiff on the question of the defendants'
negligence: because it was negligent to put the car in motion again until
the motor-man was signalled by the conductor to do so. Proof of the fact
that a person attempts to board or alight from a street car in motion is
not necessarily proof of rontributory negligence. The question is, whether,
in all the circumstances of the case, the attempt shews a want of that
c-are which is ordinarily taken in the like circumstances. It must always*
be a question of circumstances, and generally a question for the jury. A
standing car is not necessarily an invitation to enter, if an invitation be
needed: neither is a slowly moving car a revocation of an invitation if
there were any so long as the door is open and no attempt is made to
prevent boarding or alighting. The word "invitation" is inappropriate
and aften misused. The defendants are <earriers for hire, obliged to carry,
not those they invite, but every one willing to pay the fare. Per Lennox.
J-: There was evidence upon which the jury could reasonably reach
their conclusions, and the judgment tased on their findings could not prop-
erly be disturbed. Per Rose. J.: If any invitation was to be found, it
was to be found from all the acts sworn to the stopping, the motion mad?
ly the motonnan. and the starting slowly forward: and the jury might
treat these acts as constituting an invitation to enter the car when it was
in motion. It was said that, whatever might be thought about the plain-
tiff trying to enter a slowly moving car. he ought to have desisted as soon
as he found the speed increased. But. on the evidence, the plaintiff wa*
confronted with a sudden emergency, and it was open to the jury to find
that his perseverance in his attempt to enter the car was the result of
116 CARRIERS OF PASSENGERS.
an error of judgment, in that emergency, which ought not to be called
negligent.
Hill v. Toronto Ry. Co., 22 Can. Ry. Cas. 240, 40 O.L.R. 393.
REQUEST TO BRAKEMAN TO STOP TRAIN AGREEMENT TO SLOW UP DIREC-
TIONS TO PASSENGER TO JUMP.
A request by a passenger to a brakeman to allow him to get off the train
at a certain station, casts upon the brakeman the obligation of seeing that
the proper steps are taken to have the train stopped, and upon the company
the obligation of stopping it; if the brakeman acting within the apparent
scope of his employment refuses to stop the train but slows it down, and
allows the passenger to jump from it. telling him when to jump, the
company is guilty of negligence and liable for resulting injuries, unless the
train was traveling at such a speed that no reasonable mail would jump
from it even under the direction of a train official.
Hay v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 275, 11 Sask. L.R. 127, 40
D.L.R. 292.
[Reversed in 46 D.L.R. 87, 24 Can. Ry. Cas. 350, 58 Can. S.C.R. 283.]
DERAILMENT OF CARS CAR DEFECTIVE NEGLIGENCE PROOF.
The plaintiff was injured by the derailing of a passenger coach in which
he was riding as a passenger on defendants' railway ; the cause of the de-
railment was the breaking of an equalizing bar. The Court held that the
maxim res ipsa loquitur applied and that by proving that the car in which
he was riding ran off the track the plaintiff made a prima facie case of
negligence and that the duty then devolved upon the defendant to shew
that the accident was not due to any f-ault or carelessness on its part.
As carriers of passengers the defendants' undertaking was to exercise a
high degree of care, and to carry safely as far as reasonable care and fore-
thought could attain that end. The verdict of the jury that the negligence
of the defendant consisted "in not having proper inspection or testing of
equalizing bars, since it has been known of their breaking," was justified
on the evidence.
Pyne v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 281, 43 D.L.R. 625.
[Affirmed in 48 D.L.R. 243.]
REFUSAL TO STOP TRAIN FOR PASSENGER TO ALIGHT AGREEMENT TO SLOW
UP PASSENGER JUMPING UNDER DIRECTION OF BRAKKMAN.
A traveler on a railway train who, wishing to alight at a station where
the train does not stop and which is not the destination to which he
has bought his ticket, assents to a suggestion of the brakeman that the
train should be slowed down in order that he may jump from the moving
train, takes all the risk of alighting, although he acts under the direction
of sucli brakeman as to when it is safe to do so. [Hay v. Can. Pac. Ry. Co.,
40 D.L.R. 292, 23 Can. Ry. Cas. 275, reversed; Grand Trunk Ry. Co. v.
Mayne (1917), 39 D.L.R. *691, 22 Can. Ry. Cas. 218, approved.]
Can. Pac. Ry. Co. v. Hay, 46 D.L.R. 87, 24 Can. Ry. Cas. 359, 58 Can.
S.C.R. 283.
B. Duty of Protection; Trespassers.
DETACHMENT OF CAR DUTY OF NOTICE.
Beyond the obligations, arising from the contracts for transport, to
protect the persons and preserve the property of passengers, a liability
attaches to common carriers for any loss occasioned by the negligence
of their officials. And it is negligence for employees of a railway com-
CARRIERS OF PASSENGERS. ill
pany, who detach one car from a train in the course of transit to give
notice of such action in that car alone and fail to do so in the others
to one of which a passenger interested mav hare temporarilv betaken him-
fl
Gnat Northern Ry. Co. v. Tainar, IS Que. K.B. 72.
ASSACLT OX PASSEXGE DCIY Of
If a passenger on a railway train is in danger of in jury from a fellow
passenger. and the conductor knows, or has an opportunity to know, of
such danger, it is the doty of the hitter to take precautions to prevent it,
and if he fails or neglect* to do so the company is liable in case the
threatened injury is inflicted. [Pounder T. North- Eastern By. Co., [1892J
1 Q.B. 385. dissented from.] Judgment of the Court of Appeal, 5 O. KB.
334, affirmed.
Can. Par. Ry. Co. T. Blain. 34 Can. S.CJL 74.
[Leave to appeal from this judgment was afterwards refused by the
Privy Counefl. [1904] A.C. 453.]
ASSAO.T BY FELLOW PASSEVGE* DCTIES OF OOSDCCTOK.
(1) Xot only in the exercise of his genera] authority but with ref-
erence to the rales of the defendants, a conductor has the right to pre-
serve order on a train, and, if necessary, to eject therefrom persons who
are in a state of intoxication, or disorderly, or who are infringing the
reasonable rules of the railway company, and it is his duty to exercise
that right in order to ensure the comfort and safety of passengers under
his charge. (2 A railway company, through the conductor, is charged
with the duty of preserving order on a train, and is liable for injuries
naiaimJ by a passenger in consequence of violence inflicted by a feDow
passenger, provided the railway company has bad notice through its
employees of the danger of violence, and has failed to reasonably dis-
charge its duty.
Blain v. Can. Pac. By. COL, 2 Can. By. Cas. (99.
[Affirmed in 5 O.LJR- 334, 2 Can. 'By. Cas. 85; varied in 3 Can. Ry.
Cas. 143. 34 Can. S.CJL 74; distinguished in Galbraith v. Can. Pac. By.
Co^ 17 Can. By. Cas. 43, 17 DX.B. (85.]
ASSAULTS ox FA&SESCEBS DCTTES or cosmrcrot
The plaintiff, a ticket holder and passenger on one of the defendants'
trains, was. without any provocation, assaulted several times by a drunken
man. The conductor did not see the assaults, but was told of them, and
of the assailant's threats to continue them, and yet refused to restrain
the latter or to put him off the train; Held, that the defendants' duty
to the plaintiff as a passenger was to carry him to his destination, and
use reasonable care and diligence in providing for his comfort and safety
while so conveying him: and that it was for the jury to decide whether
the conductor had acted reasonably and diligently, and judgment upon a
verdict of the jury in the plaintiff's favor wa> affirmed: Held. also, that
evidence was rightly rejected of improper relations if-tweei the plaintiff
and the wife of his assailant, alleged as provocation for the assaults.
[Pounder v. Xorth-Eastern By. Co., [1S92] 1 Q.B. 335. discassed.]
Blain v. Can. Pac. By. Co^, 2 Can. Ry. Cas. 35, 5 CLL^R. 334.
[Varied in 34 Can. S.C.R. 74, 3 Can." By. Cas. 143.]
DAXGES OF ASSACL.T rrox DCTT OF EAO-WAT TO ITWTBCT.
If a railway company through its officers know that an assault upon
a passenger is probable it is the former'* duty to take reasonable precau-
tions to prevent it. and if it fails to do so it is liable for its neglect to
118 CAlilUERS OF PASSEXGERS.
do so. [Pounder v. North-Eastern Ry. Co., [1892] 1 Q.B. 385, doubted.]
At the trial damages were claimed and allowed for a second and third
attack upon the plaintiff, and this judgment was aflirmed by the Court
of Appeal for Ontario, but held also that there was no evidence that
Cither the plaintiff or defendants had any reason to anticipate the second
attack, and a new trial was granted unless plaintiff would accept a reduc-
tion of damages from $.'{.500 to $1.000. Judgments of Falconbridge, C.J.,
at the trial (2 Can. Ry. Cas. 65)), and of the Court of Appeal for Ontario
(2 Can. Ry. Cas. 85), varied.
Can. Pac. Ry. Co. v. Blain, 3 Can. Ry. Cas. 143, 34 Can. S.C.R. 74.
[Second appeal dismissed in 4 Can. Ry. Cas. 429, 36 Can. S.C.R. 159;
leave to appeal refused by Privy Council, [1904] A.C. 453.]
ASSAULT BY FELLOW PASSI.NGER.
B., a passenger on a railway train, was thrice assaulted by a fellow
passenger during the passage. The conductor was informed of the first
assault immediately after it occurred and also of the second, but took no
steps to protect B. In an action against the railway company, B. recov-
ered, damages assessed generally for the injuries complained of. The ver-
dict was maintained by the Court of Appeal but the Supreme Court of
Canada ordered a new trial unless B. would consent to his damages being
reduced (34 Can. S.C.R. 74, 3 Can. Ry. Cas. 143). In the reasons for the
last-mentioned judgment, it was held that damages could be recovered for
the third assault only, but the judgment as entered by the registrar stated
the Court ordered the reversal of the judgment appealed from and a new
trial unless the plaintiff accepted the reduced amount of damages. Such
amount having been refused, a new trial was held on which B. again ob-
tained a verdict, the damages being apportioned between the second and
third assaults. On appeal to the Supreme Court of Canada from the
judgment of a Divisional Court maintaining this verdict: Held, Tasche-
reau, C.J., and Davies, J., dissenting, that as the decree was in accord-
ance with the judgment pronounced by the Court when its decision was
given, and as it left the whole case open on the second trial, the jury
were free to give damages for the second assault and their verdict should
not be disturbed: Held, per Taschereau, C.J., that the decree of the Court
should have been framed with reference to the opinion giving the reasons
for the judgment and, if necessary, could be amended so as to read as
the Court intended.
Can. Pac. Ry. Co. v. Blain, 4 Can. Ry. Cas. 429, 36 Can. S.C.R. 159.
INSULTING LANGUAGE AND CONDUCT BY SERVANTS TO PASSENGERS LIABIL-
ITY.
Common carriers are liable, for insulting language and conduct of their
servants to their passengers, in damages measured by circumstances, such
as the sex and social standing of the party aggrieved, and the nature and
gravity of the offence. Hence, when a railway conductor, in a controversy
with a lady passenger, as to the fares of her children, says he does not
bolieve her, and persists in speaking to her, though told to desist, and,
when she moves away, follows her with the annoyance, the company will
be condemned to pay her $100, the full amount of her action.
Tudor v. Quebec & Lake St. John Ry. Co., 13 Can. Ry. Cas. 387, 41
Que.. S.C. 19.
TRAVELING ON LOCOMOTIVE PASSKNGER MERE LICENSEE DUTY OF CARRIER.
The relation of common carrier and passenger does not exist when a
person travels on the locomotive of a coal train without the permission
CARRIERS OF PASSENGERS. 119
of some officer who has authority to jrive such permission, and if injured.
och m person has no right of action unless injured through the dolus as
distinguished from the colpa of the carrier. X. had a contract with de-
fendant company to repair a bridge, and while riding on the locomotive
of the company" * coal train on his waj to the work, he was killed by
reason of the train falling through m bridge. The engineer in charge of
the train (there being no conductors had no authority to take passengers,
and had instructions not to allow people to travel on the engine without
permission from some competent authority, but the company's officers and
servants and other peraons authorized by the manager and master me-
chanic reed to ride on the coal train. A few days before the accident
X. and the defendants? manager had gone down to the bridge on the en-
gine of a coal train and returned the same way the same day. In an
action by X/s representative to recover damages from the company for
his death, the jury held that the company had undertaken to carry X.
as a passenger: Held, on appeal, netting aside judgment in plaintiff's
favour, that there was no evidence to support such a finding and that
X. was a "mere licensee.' 7 Per Hunter. C_J.: The power which a Judge
has to take a case away from the jury should be exercised only when it
is dear that plaintiff could not hold a verdict in his favour; if the matter
is reasonably open to doubt the Judge should let the case go to the jury,
and then decide, if necessary, whether there is any evidence on which the
verdict can be supported.
Xightingale r. Union Colliery Cou, 2 Can. Ry. Cas. 47. 9 B.CJL 453.
[Affirmed in 4 Can. Ry Cas. 197. 35 Can. S.C.R. 65: commented on in
Baraett v. Grand Trunk Ry. Co.. 30 O.LJL 390: discussed in Ryckman
v. Hamilton. Grimsby, etc.. Ry. Co, 10 O-LuR. 419: followed in RayfieJd
v. B.C. Elee. COL. 15 B.CJL 366.]
DEFECTIVE BUDGE GKATTITOCS PASSEXCBJCS LIABIIJTY OF CACSIXX.
In the absence of evidence of gross, negligence, a carrier is not liable
for injuries sustained by a gratuitous passenger. [Moffatt v. Bateman.
L.R. 3 C-P. 115. followed. Harris v. Perry * Co.. [19u3j 2 K-B. 19.
distinguished.] Although a railway company may have failed to properly
maintain a bridge under their control so as to ensure the safety of
|ierson> 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 |2 Can. Ry. Cas. 47*. affirmed.
Nightingale v. Union Colliery Col, 4 Can. Ry. Cas. 197, 35 Can. S.CJL
65.
[Commented on in Barnett v. Grand Trunk Ry. Co.. 20 OJLJL 390:
discussed in Ryckman v. Hamilton. Grimsby. etc.. Ry. Co.. 10 O.LJL
419; followed in Rayfield v. B.C. Elee. Co., 15 B.C.R. 366.]
CotXlSroS GATCTTOCS PASSEVGE* FEE PASS TjAMIJTT.
The plaintiff brought an action for damages for injuries received in
an accident while traveling on an unconditional free pass upon the
defendants' railway. The only evidence of negligence was that there
was a head-on collision between two cars on the defendants" line managed
by the defendants' servants: Held, that this being prima facie evidence
of negligence, and even of gross negligence, if such were necessary, as
to which quaere the plaintiff was entitled to recover.
Ryckman v. Hamilton. Grimsby A Beamsville Elee. Ry. Co.. 4 Can.
Ry. Cas. 457. 10 OJLR. 419.
'[Adopted in Savers T. B.C. Elec. Ry- CXK, 12 B.CLR. 109; referred to in
120 CARRIERS OF PASSENGERS.
British Columbia Elec. Ry. Co. v. Crompton, 43 Can. S.C.R. 7, 14 B.C.R.
226; Lumsdem v. Temiskaming & North. Ry. Co., 15 O.L.R. 469, 7
Can. Ry. Cas. 156; North. Counties Ins. Trust v. Can. Pac. Ry. Co., 13
B.C.R. 131; Robinson v. Can. Northern Ry. Co., 19 Man. L.R. 315.]
COLLISION INJURY TO PERSON ON TRAIN LICENSEE OR TRESPASSER.
In a collision between a van or car of the defendants and a backing
train of the Pere Marquette Ry. Co, the plaintiff, who was standing on
the platform of one of the Pere Marquette coaches, the foremost one in
the train as it moved reversely, and who was on the coach not as a
paying passenger, but getting a gratuitous "lift" for a short distance,
was injured. The collision was caused by the negligence of the defend-
ants: Held, that the plaintiff was a licensee, and, not being wrongfully
where he was, was entitled to recover damages against the defendants.
[Harris v. Perry & Co., [1903] 2 K.B. 219> and Sievert v. Brookfield,
35 Can. S.C.R. 494, followed.] And semble, per Boyd, C., that, in the
circumstances, the defendants would not be exempt from liability, though
the plaintiff was nothing else than a mere trespasser. At the trial the
jury found, in answer to questions, that the plaintiff was not upon
the train or platform by permission of the Pere Marquette Ry. Co. The
jury were not asked to find whether he was there with the permission
of the trainmen in charge of the train: Held, that it was open to the
jury to find,, and they should have found, upon the direct evidence as to