240 EMPLOYEES.

NEGLIGENCE OP FELLOW SERVANT DEFECT IN MACHINERY DEFECTIVE
SYSTEM OF INSPECTION WORKMEN'S COMPENSATION ACT.

In an action brought against a railway company to recover damages
because of the death of a fireman who was scalded by steam which escaped
in consequence of the giving way of a water pipe in an engine, evidence
was given on behalf of the plaintiff that the type of engine in question
was of dangerous construction and especially liable to accidents of the
kind, but it was shewn on cross-examination of the plaintiff's witnesses
that the use of engines of this type was well established and that they had
many points in their favour: Held, that the principle adopted in actions
of negligence against professional men should be applied, namely, that
negligence cannot be found where the opinion evidence is in conflict
and reputable skilled men have approved of the method called in question.
At common law a master is bound to provide proper appliances for the
carrying on of his work, and to take reasonable care that appliances which
if out of order will cause danger to his servants are in such a condition
that the servant may use them without incurring unnecessary danger.
These duties he may discharge either personally or. by employing a
competent person in his stead, and the purpose of subs. 1 of s. 3 of the
Workmen's Compensation for Injuries Act, R.S.O. 1897, c. 160, as modified
by s. 6, subs. 1, is to take from the master his common-law immunity
for the neglect of such a person. Where therefore an accident occurred
as the result of the giving way of a water pipe in an engine which had
not long before been in the defendants' repair shop for the purpose of
having the water pipes repaired, it was held that the inference might be
drawn that there had been negligence on the part of the workman en-
trusted with the duty of making the repairs and either absence of in-
spection or negligent inspection, and that if an inference of either kind
were drawn the defendants would be liable. A nonsuit granted by
Meredith, J., was therefore set aside and a new trial ordered.

Schwoob v. Michigan Central Ry. Co., 4 Can. Ry. Cas. 242, 9 O.L.R.
86.

[Affirmed in 10 O.L.R. 647, 5 Can. Ry. Cas. 58.]

DEFECT IN MACHINERY DEFECTIVE SYSTEM OF INSPECTION WORKMEN'S
COMPENSATION.

On the trial of this action which was against a railway company to
recover damages for the death of the deceased through scalding by the
escape of steam occasioned by the giving away of a water tube in a
locomotive engine on which he was working the jury, in answer to
questions submitted to them, which, with the answers to them, are set
out in the report, found that the death was caused by a defect in the
condition of the locomotive, ''through the defendants not supplying proper
inspection," the defect itself not being specified, but from a discussion
which the trial Judge had with the jury when tiiey brought in their
answers, and from the answers to further questions submitted to them,
such defect it appeared consisted in the fact that the end of the tube
in question had not been sufficiently "belled" by one J., who had put the
tube in the boiler: Held, that there was no evidence to support liability
at common law, but that the evidence and findings of the jury suffi-
ciently established what the defect was, and that J. was a person en-
trusted with the work, so that there was liability under the Workmen's
Compensation Act, in respect of which the deceased's widow and ad-



EMPLOYEES. 241

Mill iliii could maintain the action, and was entitled to recover the
damages assessed by the jury under the above Act.

Sehwoob v. Michigan Central Ry. Co., 6 Can. By. Cas. 2S7, 13 OXJL
548.

[Referred to in Hanley T. Michigan Central Ry. Co., 13 O.LJL 560,
6 Can. Ry. Cas. 240.]

WOMJIEX'S COMPEX&AHOX ACT LICENSEE STATCTOT DCTT DQKL-TIVK



S. 9 of the Workmen's Compensation for Injuries Act. which require*
notice of the injury to be given, provides that the notice must be given
within twelve weeks after the occurrence of the accident causing the
injury and that in the ease of death the want of notice shall not
bar the action which the Act gives, if the Judge is of opinion that
there was -reasonable excuse" for the want of notice -.Held, that
jgpaiiiu of the law is not a "reasonable excuse:" and in this
case the plaintiff, the brother of the deceased person who was in-
jured. might have given the notice before he was- appointed administrator.
and his solicitor's mistaken idea to the contrary did not excuse the want
of the notice: and the action therefore failed. Judgment of a Divisional
Court reversed. The deceased was employed by the defendants as a
workman on the tracks in a railway yard, and, when crossing the tracks
with other workmen on his way home from work, was struck by an en-
gine and killed. The negligence alleged was that the engineer in charge
of another engine in the yard let off a large quantity of steam, which
prevented the deceased from seeing or hearing the engine which struck
him. The jury found that the defendants were guilty of negligence by
blowing off steam or hot water at such a critical moment with such a
large number of employees between the tracks : that the deceased came
to his death by reason of the negligence of a person in charge of an en-
gine of the defendants, such negligence consisting in blowing off steam or
hot water, and that a proper lookout was not kept in a proper place
on both engines when backing: and that there was no contributory
negligence. On these findings the trial Judge entered judgment for the
plaintiff: Held, .by the Divisional Court, that the position of the de-
ceased, in view of clause 5 of s. 3 of the Workmen's Compensation for
Injuries Act. was. in the absence of any finding to the contrary, that
of a mere licensee: that he could not claim the benefit of s. 276 of the
Railway Act, 1906, because the engine was not passing over or along a
highway at rail level: but that the deceased might have had cause to
complain of a defective system, within the meaning of clause 1 of s.
3 from the facts developed in the evidence, although not specifically
mentioned in the pleadings: and a new trial was ordered, with leave to
amend. The Court of Appeal, reversing the judgment upon the other
ground, did not as a Court express an opinion upon these points. But.
semble, per Osier, J.A.. referring to Willetts T. Watt A Co.. [1892] 2
QJJ. 92, that the discretion of the Court below in allowing the plaintiff
to make a new case, after the time had elapsed within which a new ac-
tion could be brought, should not. on that ground, be interfered with.
Semble. per Garrow. J.A.. that the true position of the deceased at the
time of the accident was not that of a mere licensee but of a person
upon the defendants* premises by their invitation, and one to whom
the defendants owed a duty to take reasonable care that he should not
be injured. And semble, per Meredith. J.A.. that there wa> no proof of
any negligence on the part of the defendants; and the granting of a
Can. Ry. L. Dig. 16



242 EMPLOYEES.

new trial in order to enable the plaintiff to set up an entirely now case
was contrary to proper practice.

Giovinazzo v. Can. Pac. Ey. Co., 9 Can. Ry. Cas. 423, 19 O.L.R. 325.

INJURY TO SERVANT FALL OF COAL FROM LOCOMOTIVE TENDER WORK-
MEN'S COMPENSATION RES IPSA LOQUITUR RELEASE.

The plaintiff was in the employment of the defendants, and, while at
work upon a railway track, was struck by a lump of coal which fell
from the tender of a passing locomotive, and injured. It appeared from
the evidence, in an action for damages for the injury sustained, that
the coal was unnecessarily piled in the tender above the sides in such
quantity and manner that the rapid motion of the train shook down
the lump, which, falling upon the corner, Hew off with dangerous force
and struck the plaintiff: Held, that the unexplained fall of the coal,
in the circumstances stated, was in itself evidence from which an in-
ference might well be drawn that those in charge or control of the loco-
motive (Workmen's Compensation for Injuries Act, R.S.O. 1897, c. 160,
s. 3, subs. 5) were negligent in their mode of using it by piling or per-
mitting coal to be piled upon the tender so high and without protection
that chunks of it could be hurled by the necessary motion of the train
with such force as to break a man's leg 15 or 20 feet away; and a
verdict for the plaintiff for $1,500 under the .Workmen's Compensation
for Injuries Act, was upheld. Doctrine of res ipsa loquitur explained
and applied. The defendants set up as a bar to the action a release
signed by the plaintiff, after action, in consideration of $300 paid to
him by the defendants. The plaintiff was without independent advice,
and stated that he believed from what was said that what he was re-
leasing, and all he intended to release, was a claim to wages during his
compulsory idleness, all parties, including the doctor, being under the
impression that at the end of the period for which he was being paid he
would be well and back at work: Held, that, as the plaintiff's statement
was believed by the trial Judge, a finding against the validity of the
release should not be disturbed. Judgment of Clute, J., affirmed.

O'Brien v. Michigan Central Ry. Co., 9 Can. Ry. Cas. 442, 19 O.L.R.
345.

[Applied in Lawrence v. Kelly, 19 Man. L.R. 372; referred to in Rostrom
v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 168.]

COLLISION DEFECTIVE SYSTEM, WORKMEN'S COMPENSATION ACT.

The Railway Act prescribes that rules and regulations for travelling on
and the use or working of a railway must be approved by the Governor-
General-in-Council and that, until so approved, such rules and regula-
tions shall have no force or effect, when approved they are binding on all
persons. Rule 2 of the rules of the Grand Trunk Ry. Co. provides that
"In addition to these rules, the time-tables will contain special instruc-
tions, as the same may be found necessary. Special instructions, not
in conflict with these rules, which may be given by proper authority,
Avhether upon the time-tables or otherwise, shall be fully observed while
in force." Trains running out of Brantford, are under control of the train
despatcher at London. The railway time-table for many years contained
the following footnote: "Tilsonburg Branch. Yard engines at Brant-
ford are allowed to push freight trains up the Mount Vernon grade and
return to Brantford B. & T. station without special orders from the
train despatcher. Yard foreman in charge of yard engine will be held
responsible for protecting the return of the yard engine, and for knowing
such engine has returned before allowing a train or engine to follow.



EMPLOYEES. 243

A. J. Nixon, Assistant Superintendent." 51 This regulation or instruction
bad not then been submitted for the approval of the Govern or-General -
in-Conncil. By Rule 224 "all messages or orders respecting the move-
ment of trains . . . must be in writing": Held, Davies and Duff,
J.J.. dissenting, that assuming the footnote on the time-table to be a
"special instruction" under Rule 2. it is inconsistent with the train-des-
patching system in force at Brantford and if. as the evidence indicates,
it purports to authorize the sending out of engines under verbal orders
to push freight trains up the grade it is also inconsistent with Rule 224.
Such instruction has. therefore, no legal operation: Held, per Girouard
and Anglin, JJ.. that it was not a "special instruction" bat a regulation,
and not having been sanctioned by order-in-conncil operation under it
was illegal. By the Railway Act a "train*' includes any engine or lo-
comotive. Rule 198 provides that it "includes an engine in service with
or without cars equipped with signals": Held, per Girouard. Idington
and Anglin, JJ., Duff, J., contra, that an engine returning to the yard
after pushing a train up the grade, is a "train" subject to the provisions
of Rule 224. and to the rules of the train despatching system. The ac-
cident in this case occurred through the yard foreman failing to protect
the engine on its return to the yard: Held, Davies and Duff, JJ.. dis-
senting, that the company operated the yard engines under an illegal
system and were liable to common-law damages and that subs. 2 of .
427 of the Railway Act. 1906. applied: Held, per Duff, J., that since,
s regards the danger of collision with trains stopping at Brantford for
orders, the system of operating the yard engines through the telegraphic
despatchers would clearly have afforded greater protection than that in
use. and since there was admittedly no impediment in the way of adopt-
ing the former system, there was evidence for the jury of want of care
in not adopting the safer system: and the fact that the existing system
had been in operation for 25 years was evidence from which the jury
might infer that the general governing body of the company was aware
of it. And further, following Smith v. Baker. [1891] A.C. 325, and
Ainslie Mining & Ry. Co. v. McDougall. 42 Can. S.C.R. 420, that, in these
circumstances, the company was responsible for the defects in the system.
Fralick v. Grand Trunk" Ry. Co., 10 Can. Ry. Cas. 373, 43 Can. S.C.R.
494.

WORKMEN'S COMPETSATIOX ACT XEGLIGEXCE OF FELLOW SERVANT PEK-
sox ix posmox OF SUPERIXTEXDEXCE VOLUXTART Assmpnox OF
RISK.

The plaintiff and T. were both employed ly the defendants. The plaintiff
was assisting T. in repairing a car standing on a track in the
defendants* yard, when the yard engine propelled other cars against
the car under repair, and injured the plaintiff, who brought this
action to recover damages for his injuries, under the Workmen's
Compensation for Injuries Act. alleging negligence on the part of
T.. a person in a position of superintendence, to whose orders the
plaintiff was bound to conform and did conform, in not placing a flag or
flags in a position to give warning that work was going on upon the track.
At the trial, the jury, in answer to questions, found: (1) That the
plaintiff's injuries were caused by negligence of the defendants; (2i th:it
the negligence was the neglect of T. in not placing the flag for protection :
13) that the injuries were caused by the negligence of a person in a po-i-
tion of superintendence over the plaintiff and to whose orders he was
bound to conform: (4) that T. was that person, and his negligence con-
sisted in not placing the flag; (5) that the plaintiff's injuries were not



244 EMPLOYEES.

caused by his own want of care; "it was no part of his duty to place these
flags;" and they assessed the damages at $1,980: Held (Meredith, J.A.,
dissenting), that, notwithstanding that the jury had not found that T. was
exercising superintendence at the time of the injury, and had not found
that the plaintiff did conform to T.'s orders, yet, having regard to the evi-
dence and the Judge's charge, the findings were sufficient, under the
Workmen's Compensation for Injuries Act, to support a judgment for
the plaintiff. [Marley v . Osborn (1894), 10 Times L.R. 388, specially
referred to.] After counsel had addressed the jury, and when the Judge
was about to begin his charge, a discussion arose about the frame of two
of the questions proposed to be submitted to the jury, in the course of
which the defendants' counsel suggested another question, "Did the plain-
tiff voluntarily perform the acts which caused his accident, knowing of
the dangers which he ran ?" This defence was not set up in the pleadings
nor previously at the trial; and no application was made for leave to
amend or to reopen the case or postpone the trial. The Judge declined to
submit the question, saying that he did not think it fair to introduce it
at that stage: Held, Meredith, J.A., dissenting, a proper exercise of dis-
cretion. Judgment of Falconbridge, C.J.K.B., affirmed.

Brulott v. Grand Trunk Pacific Ry. Co., 13 Can. Ry. Cas. 76, 24 O.L.R.
154.

[Affirmed in 13 Can. Ry, Cas. 95, 46 Can. S.C.R. 629.]

WORKMEN'S COMPENSATION FOB INJURIES ACT NEGLIGENCE or FELLOW

SERVANT VOLEN S .

Held by the Supreme Court of Canada, affirming 13 Can. Ry. Cas. 76,
24 O.L.R. 154, that the jury having found that the defendants were negli-
gent and the plaintiff free from contributory negligence necessarily pre-
cluded a finding that the plaintiff was volens: Held, Idington, J., that s.
."06 of the Railway Act, 1906, was not applicable to the facts of this case
and volens should have been specially pleaded. Davies, J., dissenting,
thought there should b a new trial.

Grand Trunk Pacific Ry. Co. v. Brulott, 13 Can. Ry. Cas. 95, 46 Can.
S.C.R. 629.

WORKMEN'S COMPENSATION VOLENS CONTRIBUTORY NEGLIGENCE.

Where one employed by another as a car repairer was ordered by another
employee to assist him in repairing a car standing upon a track in the
yard when other cars were propelled against it and injured him. the mas-
ter, in the absence of a plea of volens or evidence that the negligence of
the servant contributed to the injury, is liable in an action under the
Workmen's Compensation Act (Out.) for the injuries thus sustained.

Grand Trunk Ry. Co. v. Brulott, 46 Can. S.C.R. 629, 13 Can. Ry. Cas.
95, affirming Brulott v. G.T.R. Co., 24 O.L.R. 154, 13 Can. Ry. Cas/ 76.

INJURY TO EMPLOYEE NEGLIGENCE OF FELLOW EMPLOYEE SUPERINTEND-
ENCE LIABILITY OF EMPLOYER AT COMMON LAW WORKMEN'S COMPEN-
SATION.

The plaintiff's claim was for injuries sustained by the explosion of some
dynamite while he was thawing it for use in blasting out hard pan in a
gravel pit under the superintendence of one Campbell, a roadmaster in
defendant's employ. In answer to questions, the jury at the trial found
that the plaintiff was ignorant of the material he was using, that Campbell
had not given him proper instructions, that the injury had been caused
by the negligence of the defendant company, that such negligence con-
sisted in not employing a competent person to superintend the work and



EMPLOYEES. 245

in not furnishing proper appliances and storage for explosives, and that
the defendant company had not used reasonable and proper care and
caution in the selection of the person to superintend the work: Held.
Howell, C.J.M.. dissenting, that the evidence at most shewed that, on the
occasion in question, Campbell might have been negligent in his super-
intendence of the work, that there was no proof of his incompetence
otherwise or that the defendant had been negligent in appointing him. or
in furnishing proper 'appliances, the onus of proving which was on the
plaintiff, and. therefore, the plaintiff could not recover at common law.
bat was entitled under the Workmen's Compensation for Injuries Act,
R.S.M. 1902, c. ITS, s. 3, to the amount alternatively fixed by the jury
under s. 6 of that Act. [Smith v. Howard (1870), 22 L.T.X.S. 130; Young
v. Hoffman, [1907] 2 K.B. 650; and Cribb T. Kynoch, [1907] 2 K.B. 548,
followed.] Per Howell, C-JJiL: There was evidence to submit to the jury
on all the questions answered by them and the verdict for damages at com-
mon law should not be disturbed: Held, also, by all the Judges that the
damages had not been "sustained by reason of the construction or opera-
tion of the railway," and, therefore, the plaintiff was not barred by s.
306 of the Railway Act, 1906. from bringing his action after the lapse of
one year.

Anderson v. Can. Northern Rv. Co., 13 Can. Ry. Cas. 321. 21 Man. L.R.
121.

[Reversed as to common-law liability, otherwise affirmed in 45 Can.
S.CJR. 355, 13 Can. Ry. Cas. 339.]

DAXGEBOUS WOBK DANGEROUS MATERIALS RISK OF EMPLOYMENT

WAKXIXGS AXD ESSTBTTTIOXS EMPLOYEE'S iiABU-rrY.
Where instructions and warning are necessary to enable employees, in
circumstances involving danger, to appreciate and protect themselves
against the perils incident to the work in which they are engaged, it is
the duty of the employer to take reasonable care to see that such instruc-
tions and warnings are given. The employer may delegate that duty to
competent persons, but, where compensation is sought for injuries sus-
tained by an employee owing to neglect to give such instructions and
warning, the onus rests upon the employer to shew that the duty was
delegated to a person qualified to discharge it or that other adequate
provision was made to ensure protection against unnecessary risk to the
employees. The failure of the employer to take reasonable care in the
appointment of a properly qualified superintendent, to whom the duty
of selecting persons to be employed is entrusted, amounts to negligence in-
volving liability for damages sustained in consequence of the acts of in-
competent servants. [Young v. Hoffman Manufacturing Co. (1907), 2
K.B. 646, applied: judgment appealed from (21 Man. L.K. 121, 13 Can.
Ry. Cas. 321), affirmed.] In this case, as the risk incident to the em-
ployment of an incompetent foreman was not one of those which are as-
sumed by an employee, the plaintiff was entitled to recover damages at
common law. Judgment appealed from (21 Man. L.R. 121, 13 Can. Ry.
Cas. 321) reversed. The limitation of one year, in respect of actions to
recover compensation for injuries sustained **~by reason of the construc-
tion or operation*' of railways, provided by s. 306 of the Railway Act. 1906.
relates only to injuries sustained in the actual construction or operation
of a railway; it does not apply to cases where injuries have been sustained
by employees engaged in works undertaken by a railway company for pro-
curing or preparing materials which may be necessary for the construction
of their railway. [Can. Northern Ry. Co. v. Robinson ([1911] A.C. 739),



246 EMPLOYEES.

applied]; judgment appealed from, 21 Man. L.R. 121, 13 Can. Ry. Gas. 321,
affirmed.

Can. Northern Ry. Co. v. Anderson, 13 Can. Ry. Cas. 339, 45 Can. S.C.R.
355.

ENGINEER RUNNING A SNOW PLOUGH PROCEEDING IN ABSENCE OF CROSSING
OR STATION SIGNALS WORKMEN'S COMPENSATION ACT.

A case for compensation under the Workmen's Compensation Act, R.S.O.
1897, c. 160, but not a case at common law, is shewn where an engineer in
charge of a locomotive propelling a snow plough ran it for some time
without ascertaining why crossing or station signals were not being given
by the signalman on the plough, and a collision with another train re-
sulted, in which the fireman of such locomotive was killed.

Jones v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 76, 5 D.L.R. 332.

[Reversed in 16 Can/Ry. Cas. 205, 13*D.L.R. 900.]

WORKMEN'S COMPENSATION INJURY TO FOREMAN OF BAILWAY YARD
FELLOW SERVANT.

Subs. 5 of s. 3 of the Workmen's Compensation for Injuries Act, R.S.O.
1807, c. 160, should receive a liberal construction in the interests of the
workman. An employer may be responsible for the negligence of an
employee resulting in injury to another employee, although the one
injured is in authority over the other. The plaintiff was fore-
man of a railway yard of the defendants, and M. was his assist-
ant and subject to his orders. In carrying out the plaintiff's or-
ders, M. gave a wrong direction to the driver of the yard engine, by
reason of which the plaintiff was struck by the engine and injured. The
engine driver testified that he took his instructions from M. : Held, Len-
nox, J., dissenting, that there was reasonable evidence that M. was, on
the occasion in question, a person in charge or control of the engine, with-
in the meaning of subs. 5 ; and, upon the findings of the jury, in an action
to recover damages for the plaintifFs injury, the defendants were respon-
sible for the negligence of M. Judgment of Mulock, C.J.Ex.D., affirmed.

Martin v. Grand Trunk Ry. Co., 27 O.L.R. 165, 15 Can. Ry. Cas. 1.

WORKMEN'S COMPENSATION NEGLIGENCE OF FELLOW SERVANT.

A master is liable, under subs. 5 of s. 3 of the Workmen's Compensa-
tion for Injuries Act, R.S.O. 1897, c. 160, making the employer liable
where the injury is caused "by reason of the negligence of any person
in the service of the employer who has the charge or control of any
points, signal, locomotive, eiigine, machine or train upon any railway,
tramway or street railway," where a yard foreman is injured by being
struck by an engine engaged in shunting operations a.nd under the con-
trol of his assistant by reason of the negligence of the assistant in failing
to carry out an order of the foreman.

Martin v. Grand Trunk Ry. Co., 8 D.L.R. 590, 27 O.L.R. 165, 15 Can.
Ry. Cas. 1.

WORKMEN'S COMPENSATION ACT STRICT OR LIBERAL CONSTRUCTION.

Subs. 5 of s. 3 of the Workmen's Compensation for Injuries Act, R.S.O.
1897, c. 160, making the employer liable where the injury is caused "by