one year, to recover damages for the death of her husband through the
company's negligence, was settled by the company paying $4,800. On ap-
plication to a Judge the amount was apportioned by giving the widow
$1.200 and each of the children $900. the widow also to be paid for the
children's maintenance, $200 a year for three years, the fact of the widow
baring already received $1,000 for insurance on the husband's life, being
taken in consideration in apportioning her share.
Burkholder v. Grand Trunk By. Co., 2 Can. By. Cas. 5, 5 OX.B. 428.
SEBVICES or CHILD IXTEXTIOX or HELPESC PAKXT.
Damages to the amount of $2,100 were recovered by the plaintiff HUUQg
as the father and administrator of his deceased son, 22 years of age, who
was killed through defendants' negligence. The son's occupation was
principally that of a labourer, the highest rate of wages received by him
being for a few days at the rate of $35 a month. His mother was dead
and his father had married again. He lived with a widowed sister, but
was on good terms with his father and stepmother, whom he visited once
or twice a month, on such occasions giving his father from $2 to $4, and
once $5. His habits were good and he was of a generous disposition. Evi-
dence was received of his intention of helping his father to build a house,
of assisting him in paying off a mortgage of $650 on his property, as well
as a debt of $400, which he owed another son, and for which the father
had given his promissory notes: Held, that the evidence of such ex-
pressed intention was properly admitted, not necessarily as shewing a
promise to make the payments, but of his being well disposed to his
father; the amount awarded the plaintiff for damages however was clearly
excessive, and a new trial was ordered unless the parties agreed to a re-
duction of the damages to $500.
Stephens v. Toronto By- Co., 5 Can. By. Cas. 102, 11 O.L.B. 19.
[Referred to in Moffit v. Can. Pac. By." Co.. 2 Alta. L.B. 486, 489.]
XECLJGEXCE DEATH OF CHTLD BEASOXABLE EXPECTATIOX OF PECTXIAMT
BENEFIT.
The plaintiff, a married woman, who had to depend on her own exertion?
for her support and maintenance and that of her daughter, her husband
contributing nothing, had striven to give her daughter a good education.
The daughter was a little over seventeen years of age. and was just finish-
ing her course at a collegiate institute, which would have qualified her
for a first-class teacher's certificate, and expected to be earning in the
course of a year from $300 to $500. She was a strong active girl and
worked in a mill during the holidays, earning from $6 to $7 a week, which
she gave to her mother, for whose maintenance and support she had
often expressed the intention of providing. The daughter having been
killed through the defendants" negligence, a finding in favor of the mother
for $3,000 was upheld.
Benwick v. Gait, Preston, etc.. By. Co.. 5 Can. By. Cas. 108, 11 O.L.B.
158.
[Reversed in 12 O.LJL 35, 5 Can. By. Cas. 376; referred to in McKeown
v. Toronto By. Co., 19 O.L.B. 361.]
Loss OF CHILD SEASONABLE EXPECTATIOX OF PECCXIABY BE?SEFTT.
Damages assessed by a jury at $3,000 for the loss of a daughter seven-
teen years old by reason of the negligence of the defendants, were held to
be excessive, and a new trial was directed unless both parties would agree
Can. By. L. Dig. 14.
210 DAMAGES.
to have the damages fixed at $1,500. Order of a Divisional Court, 11
O.L.R. 158, 5 Can. Ry. Cas. 108, reversed.
Renwick v. Gait, Preston & Hespeler Street Ry. Co., 5 Can. Ry. (as.
376, 12 O.L.R. 35.
SERVICE OF CHILD PECUNIARY LOSS OWNERSHIP IN COMMON BETWEKN
PARENT AND CHILD SURVIVORSHIP.
In an action by a father to recover damages for the death of his son
caused by the negligent operation of a train, no pecuniary loss is proven
where it is shewn that the services rendered by the deceased to his father
were in pursuance of an agreement that they were both to be partners of
the farm where the work was being done but that the son was to have
the farm on the father's death, and that he was also to get what he need-
ed out of the common fund.
Moir v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 380, 10 O.W.R. 414.
EXCESSIVE DAMAGES DEATH OF WIFE AND MOTHER.
In an action under the Fatal Accidents Act, R.S.O. 1897, c. 166, to re-
cover damages for the deatli of a married woman, 62 years of age, the
jury awarded $3,325, apportioning $325 to the executors of her husband
who survived her, $800 to a daughter 36 years of age, $700 to a son 27
years of age, and $1,500 to a son 21 years of age: Held, that damages
recoverable being entirely pecuniary, the above (except as to the exec-
utors), considering the ages and circumstances of the children, and the
age and financial ability of the mother, were grossly excessive, and the
case must go to a new assessment.
Ronson v. Can. Pac. Ry. Co., 9 Can. Ry. Cas., 361, 18 O.L.R. 337.
DEATH OF CHILD PECUNIARY LOSS OF PARENT REASONABLE EXPECTATION
OF BENEFIT.
A verdict of a jury for $300 damages for the death of the plaintiff's
child, aged four years, in an action under the Fatal Accidents Act, was
upheld by a Divisional Court and by the Court of Appeal (Moss, C.J.O.,
and Maclaren, J.A., dissenting), where it appeared that the child was
healthy, intelligent, and with as good a prospect of prolonged life as any
infant of that age could be said to have. The question is for the jury,
upon the evidence; pecuniary benefit or advantage need not have been
actually derived by the parent previous to the death; the probability of
the continuance of life and the reasonable expectation that in that event
pecuniary benefit or advantage would have been derived are proper sub-
jects for consideration. [Pym v. Great Northern Ry. Co. (1862), 2 B. &
S. 759, and Blackley v. Toronto Ry. Co., 27 A.R. (Out.) 44n., applied
and followed.] The trial Judge's direction to the jury upon the questions
of damages and the findings of the jury upon the question of negligence
were also considered and upheld by the Divisional Court.
McKeown v. Toronto Ry. Co., 9 Can. Ry. Cas. 449, 19 O.L.R. 361.
[Referred to in Moffit v. Can. Pac. Ry. Co., 2 Alta. L.R. 489.]
PECUNIARY LOSS OF PARENTS REASONABLE EXPECTATION OF BENEFIT.
A lad of twenty, a brakesman employed by the defendants, was killed
in a collision upon the railway, by reason of the negligence of the defend-
ants' servants, and this action was brought under the Fatal Accidents Act, '
R.S.O. 1897, c. 166, Y>y the administrators of his estate, to recover dam-
ages for his death, for the benefit of his parents, who lived in England.
The claim was made and the assessment of the damages was based upon
the principle of the Workmen's Compensation for Injuries Act. The jury
DAMAGES. 211
found that the estimated earnings of a person in the sane grade as the
deceased, in the like employment, in this Province, for the three years
allowed by the statute, would be 31.SOQ. and they assessed the damages
at that sum apportioning them between the father and mother. The evi-
dence shewed that the deceased was unmarried; had been about four years
in Canada, and about a month in the service of the defendants. He had
corresponded with his mother, but had sent his parents no money. He had
received a good and rather expensive education, at his fathers expense,
and the father swore to an understanding between the son and the par-
ents that the son would, in con>ideration of the large sum so expended,
assist the parents in their old age: Held, that the plaintiff's right of
recovery was limited in amount to the pecuniary loss which it could be
fairly and reasonably found that the parents had suffered by the son's
death: and, upon the evidence and in all the circumstances, taking into
account the uncertainties and contingencies, there was such a reasonable
and well-founded expectation of pecuniary benefit as could be estimated in
money so as to become the subject of damages: but. having regard to all
these matters, the award of damages was excessive and extravagant, and
therefore unreasonable; and there should be a new assessment of damages,
IBM the parties could agree upon some amount. It is the plain duty
of the Court to see that an award of damages, in an action of this kind,
which appears to have been arrived at upon considerations not warranted
by the evidence, shall not stand. Principles upon which damages to be
assessed pointed out.
London 4 Western Trusts Co. v. Grand Trunk By. Co., 12 Can, Ry. Cas.
133, 22 O-L-R- 262.
DEATH PATS AXD SCFFEMXG RECOVERY BT DECEDEVT'S FAMILY.
In an action by the widow and administratrix of the tWp^sed for dam-
ages under the Manitoba Act. for compensation to famili*^ of persons
killed by accident (RJS.M. 1902, c. 31), the measure should be for the
widow's pecuniary loss sustained because of the death, in a sum that will
give her the physical comfort which she had at the time of her husband's
death out of his labor and earnings to be continued during the expectancy
of life, subject to the accidents of health and employment ; but not cover-
ing the physical and mental suffering of the deceased nor the mental suf-
ferings of the plaintiff for the loss of her husband. $5.000 is an excessive
recovery by a surviving wife under the Manitoba Act (RJ?Ji. e. 31) for
accidental death of her husband, and the recovery should be reduced to
33.000. where he was 65 years old and earned only 45 monthly, and she
was 57 years old. though he was apparently a strong, healthy man.
[Blake v! Midland. IS Q.B. 93; C.P.R. Co. v.* Robinson. 14 Can." S.C.R.
105; Rowley v. London. L.R. 8 Ex. 221. and Lamonde v. G.TJL Co.. 16
O-LR. 365, referred to; Pettit v. Can. Northern Ry. Co. (Xo. 1), 7 DJ-R.
645. varied.]
Pettit v. Can. Northern Ry. Co. (No. 2i, 11 D.L.R. 316. 15 Can. Ry. Cas.
272, 23 Man. L.R. 213.
DEDCCTIOX or MOXET PAID BEFOKE DEATH.
In an action brought by the widow and children of a decedent under the
Families Compensation Act. R.S.B.C. c. $2. for damages for injuries su<-
tained through the alleged negligence of the defendants resulting in the
death of the decedent, where it appears that prior to the death of the
deceased the hitter received a sum of money for the injuries sustained and
executed a release of the cause of action to the defendants, it is not
necessary for the plaintiffs to return the sum of money received by the
212 DAMAGES.
deceased, or to offer to return it, as a condition precedent to their right
to have the release set aside on the ground that it was obtained from the
deceased by fraud, but such money is to be taken into consideration on
the assessment of damages and the amount treated as a payment on ac-
count. [Trawford v. British Columbia Elec. Ry. Co., 8 D.L.R. 1026, re-
versed; Lee v. Lancashire, L.R. 6 Ch. 527, distinguished.]
Trawford v. British Columbia Elec. Ry. Co., 15 Can. Ry. Cas. 39, 9
D.L.R. 817.
MOTHER AND WIDOW APPORTIONMENT OF DAMAGES.
On an application by a widow of a deceased for apportionment, under
ss. 4, 9 of the Fatal Accidents Act, 1 Geo. V. (Ont.) c. 33, between her
and the mother of the deceased of a sum of money paid over as damages
for the death of the deceased, the apportionment should be made in pro-
portion to the damages sustained by each of them and the analogy of the
Statute of Distributions does not apply. The basis of apportionment on
an application by a widow of a deceased person, under ss. 4, 9 of the
Fatal Accidents Act, 1 Geo. V, (Ont.) c. 33, for apportionment between
her and the mother of the deceased of a sum of money paid over as dam-
ages for the death of the deceased, is not affected by the fact that the
widow was separated from her husband, inasmuch as he still continued to
be liable for her support, and the amount the husband contributed to his
mother's support is immaterial, the only question being, on such an ap-
plication, what the wife and mother would relatively have had a right to
expect if the deceased had continued to live. [Sanderson v. Sanderson
(1877), 36 L.T.X.S. 847, disapproved: Bulmer v. Bulmer, 25 Ch. D. 409,
and Burkholder v. Grand Trunk Ry. Co., 5 O.L.R. 428^ followed.]
Scarlett v. Can. Pac. Ry. Co. (Ont.), 9 D.L.R. 780, 15 Can. Ry. Cas.
184.
APPORTIONMENT OF DAMAGF.S BENEFICIARIES.
In apportioning money recovered under the Fatal Accidents Act, 1 Geo.
V. (Ont.) c. 33, and under the Ontario Workmen's Compensation for In-
juries enactments, the true guide must be the actual pecuniary loss of
each of the claimants, and the statute as to distribution of decedents'
estates furnishes no satisfactory guide. Money recovered under the Fatal
Accidents Act, 1 Geo. V. (Ont.) c. 33, or the Ontario Workmen's Com-
pensation for Injuries enactments, may properly be apportioned by the
Court in one of two ways: (1) By finding the amount of pecuniary dam-
ages which each of the claimants has really sustained, and if the whole
lie more or less than the fixed sums, awarding to each his proper propor-
tion; or (2) by finding the proportion which the right of each bears to
the others, and dividing the amount available accordingly. Infant step-
children of the deceased who were dependent upon him for support have
a right to share in the distribution of the proceeds of money collected
under the Ontario Workmen's Compensation for Injuries enactments or the
Fatal Accidents Act, 1 Geo. V. (Ont.) c. 33, as damages for his death
through the negligence of another, though in the apportionment of the
fund they would not be entitled to as large a sum as would be children of
deceased's own.
Brown v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 350, 11 D.L.R. 97, 28
O.L.R. 354.
E. Workmen's Compensation Act.
INJURY AFFECTING CLAIMANT'S EARNING POWER.
In estimating compensation under the Workmen's Compensation Act, for
DAMAGEa 213
the loss of a thumb, consideration must be given to the fact that while
the claimant is not thereby entirely prevented from carrying OB his occu-
pation, his chances of employment in competition with others are lessened,
aad his e*rmmg power consequently reduced.
Boylance T. Can. Pae. Ry. Co., 14 B.CJL 20.
DEATH OF WORKMEN Acnox BY WIDOW DEDCCTIOX or
MOTETS.
IB an action under the Workmen's Compensation for Injuries Act, by
the widow and administratrix: of a man who was killed while in the
employment of the defendants, to recover damages as compensation for
his death, the evidence shewed that the damages, based upon an estimate
of the wages for three years of a person in the same grade as the deceased.
would amount to at least $2.200. Counsel for the plaintiff, however, in
addressing the jury told them that they should deduct from the amount
they found OB that basis a sum of $1.000 which the plaintiff had received
for insurance on the'life of the deceased. The jury announced a verdiet
of $1,200, not saying that they had found 2.200 and deducted $1.000; but
the trial Judge asked, them if that was what they meant, and they said
it was: Held, having regard to s. 7 of the Workmen's Compensation for
Injuries Act, RS.O. 1897, c. 160, that the $1.000 ought not to have been
deducted; and that, upon the findings of the jury, judgment should be
entered for $2.200. [Beckett v. Grand Trunk Ry. Co. (1835), 8 OJL 601,
13 AJR. (Oat.) 174, 16 Can. S.CJJ. 713. and Grand Trunk Ry. Co. T. Jen-
nings (1888), 13 App. Cas. SOO. specially referred to.]
Dawson T. Niagara t St. Catharines Ry. Co.. 12 Can. Ry. Cas. 107, 22
(XLJL 69.
[Varied in 12 Can. Ry. Cas. 411, 23 OXJR. 670.]
DEATH OF WORKHAX ACTCAL PECUXIAT LOSS PROCEEDS OP ACCIDENT nc-
SCfcAXCE POUCT.
The plaintiff sued, as administratrix of the estate of her deceased hns-
' band, to recover damages for his death, alleged to have been caused, while
he was a workman in the defendants 1 employment, by their negligence. At
the trial the jury found negligence of the defendants and absence of con-
tributory negligence on the part of the plaintiff; they assessed the dam-
ages at $1.200. The trial Judge, on questioning the jury, found that they
had estimated the damages, under the Workmen's Compensation for In-
juries Act, at 2.200, and had deducted $1,000 which the plaintiff had re-
ceived from the proceeds of an accident insurance policy upon the life of
her husband; and he directed judgment to be entered for the plaintiff for
4B00: Held, that the action rested for its basis upon the Fatal Acci-
dents Act, R^.O. 1897, c. 166 (now 1 Geo. V. c. 33), and upon it alone.
although the amount recoverable was necessarily limited by the provisions
of the Workmen's Compensation for Injuries Act. Under the Fatal Acci-
dents Act, the only recovery possible is in respect of proved pecuniary
loss; and it is the exclusive province of the jury, upon the evidence and
under proper instructions by the Judge, to fix the amount of such loss.
limited in such a case as this by the maximum amount recoverable under
the first part of s. 7 of the Workmen's Compensation for Injuries Act, but
unaffected by the latter part of that section, which has no application in
a case where the plaintiff's actual pecuniary loss is to be ascertained. The
jury should be told that it is their duty to take into account sueh items
as the insurance money in question, but there is no east-iron rule which
compels them to deduct the whole amount. They are to consider all the
circumstances, that included, and to return such a verdict as the whole
214 DAMAGES.
evidence warrants. Semble, that there is no distinction in this regard
between moneys received under a life insurance policy and moneys re-
ceived under an accident insurance policy. [Grand Trunk Ry. Co. v. Jen-
nings (1888), 13 App. Cas. 800, followed. Hicks v. Newport, etc., Ry.
Co. (1857), 4 B. & S. 403 (n.), remarked upon]: Held, also, that the
findings of the jury were based upon reasonably sufficient evidence, and
should not be disturbed. Judgment of Clute, J., 22 O.L.R. 69, 12 Can.
Ry. Cas. 107, varied by directing a new assessment of damages, if the
defendants desired it.
Dawson v. Niagara, St. Catharines & Toronto Ry. Co., 12 Can. Ry. Cas.
411, 23 O.L.R. 670.
WAGE-EARNIXG CAPACITY HIGHER WAGE NEW EMPLOYMENT.
A reduction in wage-earning capacity is to be established according to
the ordinary rules, and the employer cannot, by offering a higher wage
or a new employment at the old figures, prevent the workman from ob-
taining compensation under the Quebec Workmen's* Compensation Act.
[Grand Trunk Ry. Co. v. McDonnell, 5 D.L.R. 65, 18 Rev. de Jur. 369, fol-
lowed.]
McDonnell v. Can. Pac. Ry. Co.. 7 D.L.R. 138, 22 Que. K.B. 207.
MEDICAL SERVICES NURSES Loss OF TIME EXPENSES OF CUBE.
Damages to the amount of $1,750 are not excessive in an action under
the Employers' Liability Act (B.C.) where the plaintiff, a stevedore, was
struck between the shoulders by the fall of a "sling board" and traumatic
neurasthenia resulted, the medical treatment of which is particularly ex-
pensive. [Toronto Ry. Co. v. Toms, 44 Can. S.C.R. 268, referred to.]
Snell v. Victoria & Vancouver Stevedoring Co., 8 D.L.R. 32.
DEATH OF EMPLOYEE WORKMEN'S COMPENSATION ACT (SASK. ) ASSESS-
MENT.
In estimating the compensation recoverable under s. 15 of the Work-
men's Compensation Act, Sask. Stat. 1910-1911, c. 9, of such sum as is
found to be equivalent to the estimated earnings during the three years
preceding the injury in like employment, a shewing of $182 for one and
three-quarter months is not of itself, under the principle of the Act, suffi-
cient to base a finding in excess of $1,800 for the three years. [Uhlen-
burgh v. Prince Albert Lumber Co., 9 D.L.R. 639, followed.]
Kennedy v. Grand Trunk Pacific Ry. Co., 16 Can. Ry. Cas. 46, 15 D.L.R.
172.
F. Injury to Property.
TRESPASS SPECIAL DAMAGE MEASURE OF.
The rental value of land is not to be adopted as the measure of dam-
ages for a trespass thereon if special damage is alleged and proved and
the trespasser will be liable for loss shewn to have been suffered by the
owner by reason of his being deprived of an actually intended and natural
and probable use of his land. [France v. Gaudet, L.R. 6 Q.B. 199, fol-
lowed.]
Marson v. Grand Trunk Pac. Ry. Co. (Alta.), 14 Can. Ry. Cas. 26,
1 D.L.R. 850.
[Followed in Lavallee v. Can. Northern Ry. Co., 4 D.L.R. 376.]
FORCIBLE POSSESSION OF LAND ANTICIPATED USE.
The extension by the owner of land of an existing pig corral is not such
a peculiar and unusual use of the land as will relieve a trespasser from
the duty of anticipating the probability of it, and being charged in dam-
DAMAGEa 215
ages for the interference with the oner's intended exercise of hi? right
ia that respect.
Hanoi T. Grand Trunk Pae. By. Co. (Aha. . 14 Cam. Ry. Cas. 26, 1
D.LR. S50.
[Followed in LavaUee T. Can. Northern Ry. Co_ 4 D.LJL
Loss or PBOFTT Excursiox FBOM
Where expiations and other trespasses by a railway oMnpanr prevent -
ed the landowner from extending his pig corral o as to keep the increase
of the pigs and the corral thereby became crowded aad unhealthy. result-
ing im the death of some of the pigs aad the depreciation of others in value.
the owner will he United to such damage as would hare resulted had he
reduced the amber of his pigs to what he had theretofore safely kept.
aad he cannot recover as special damage more thaa the difleience ia the
selling value. at the time of the trespass of the pigs he should hare re-
moved aad arid for hick of accoaunodatkiB to keep then aad their value at
the time whem they would hare bee* the mass fit to sell less the sariaz ia
feed aad labour by reason of the reduced amber.
Uarson T. Grand Trunk Pae. Ry. Co. (Aha. . 14 Can. By. Cas. 36, 1
D.LR. S50.
[Fallowed in Laralke T. Can. Northern Ry. Cou 4 DJLR. 37C.]
BEM>TAI. or sm TSACK
The measure of damages for the wrongful remoral by a railway com-
pany of a pnr track adjacent to a coal and lumber yard, fnm whiea track.
at a small expense, coal and lumber could be unloaded from cars directly
iato such yard, is the additional cost of handling and fcanling of snch
commodities from the freight yards of the company to the coal and lumber
yard.
Robinson T. Can. North. Ry. Co. tttui-*. 14 Can. Ry. Cas. 2*1. 3 D.LR.
716.
[See 6 Can. Ry. Cas. 101. 37 Can. S.CJL 541. 11 Can. Ry. Cas. 2S9. 19
Man. L.R. 3QO. 11 Can. Ry. Cas. 304, 43 Can. S.C.R. 5*7. 13 Can. Ry.
Cas. 412. [191*1 A.C. 739.J
OB IJDS&. DAMJ.CE. OK LVJTET.
ruder s. 250 of the Railway Act. 1906. tbe Baud has jurisdiction to
author iie the laying of a gas main under the tracks of a railway com-
pany. by a public utility company, an adjacent landowner, and to fix the
amount off damages payable for the privilege, imposing as terms and con-
ditions precedent, that the applicant must undertake full responsibility
for maintaining the gas main and indemnify the respondent from any loss.
damage or injury to its property, employees, or the traveling public.
Montreal Light. Heat 4 Power Co. T. Grand Trunk Ry. Co^ 17 Can. Ry.
Cas. 330.
LJLTD A*rrrorG ox BATLWAT COMPETSATHES.
The annei' of land adjacent to or abutting upon the street orer which
a railway subject to the Railway Act. 1906, is to be constructed may be
awarded compensation by the Board under the statute 1 A 2 Geo. Y. cl 22.
a. 6, for consequent injury to such land, although damages of that char-
acter cannot be awarded in an arbitration under the Railway Act. [Grand
Trunk Pacific Ry. Co. T. Fort William. Fort William Land t Investment
COL. et al_ [1912] A.C. 224. 13 Can. Ry. Cas. 187. referred to.]
Can. Northern Ontario Ry. Co. T. Holditch. 19 Can. Ry. Gas. 112, 50 Gu.
2*5, 20 D.L-R. Kl.
216 DAMAGES.
RAILWAY ON HIGHWAY LANDS INJURIOUSLY AFFECTED RELEASE.
The Board has no jurisdiction to grant damages for lands injuriously
affected by the construction of a railway on a highway where the appli-
cant has signed an agreement releasing the railway company from such
claims. Such a release must stand until set aside by a Court of competent
jurisdiction.
Remy v. Lake Erie & Northern Ry. Co., 20 Can. Ry. Cas. 207.
KLECTRIC RAILWAY ON HIGHWAY LANDS INJURIOUSLY AFFECTED.
Damages have never yet been allowed by the Board to an adjoining land-
owner for the construction of an electric railway along a highway. The
Board dismissed the claim of the applicant for damages under s. 235, of
the Railway Act, 1906, alleging that his lands had been injuriously affect-
ed by the construction of an electric railway on the highway made two
years after the work was finished.
Griffin v. Toronto Eastern Ry. Co., 20 Can. Ry. Cas. 210.
GRADE CROSSINGS ELIMINATION CLOSING HIGHWAY JURISDICTION.