prosecution unless the negligent performance amounts to a breach of a
statutory duty imposed on the master or unless he had after actual or
implied notice of the mistakes of the persons so entrusted failed to
correct the same. [Ainslie v. MeDougall, 42 Can. S.C.R. 420. applied:
Fakkema v. Brooks. 44 Can. S.C.R. 412, distinguished; Wilson v. Merry.
L.R. 1 Hi. Sc. 326. referred to.]
Hall v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 163, 20 DX.R. 666.
Dunr TO IXSPEOT IXEVTTABLE ACCIDENT" LATEST DEFECTS.
A car attached to a fast freight train arrived at a station on the
railway, in Saskatchewan, during a cold night in the winter; it was
equipped with an approved coupling device, as required by s. 264
(e) of the Railway Act, 1906. and. on the arrival of the train, it had
inspected according to the usual practice and no defect was then
found. When the train was being moved for the purpose of cutting out
the car, the uncoupling mechanism failed to work and, in consequence,
the plaintiff, an employee, sustained injuries. Subsequently the coupler
was taken apart and it was then discovered that the locking-block was
jammed with ice (not visible from the exterior) which had formed inside
the chamber and prevented its release by the uncoupling device used to
disconnect the car before the train was moved. In an action for dam-
ages, instituted in the Province of Manitoba, the jury found that the
company had been negligent "through lack of proper inspection," and
judgment was entered on their verdict. An appeal from the judg-
ment of the Court of Appeal for Manitoba setting aside the verdict
and entering judgment for the defendants was dismissed on the ground
that the obligation resting upon the company, both under the statute
and at common law, was discharged by the customary inspection of the
car which had been made according to what was shewn to be good
railway practice, and there was no further duty imposed in regard to
unusual conditions not perceivable by the ordinary methods of inspection.
[Phalen v. Grand Trunk Pacific Ry. Co., 23 Man. L.R. 435. 16 Can. Ry.
Cas. 152, affirmed.]
Phelan v. Grand Trunk Pacific Ry. Co., 18 Can. Ry. Cas. 233, 51 Can.
S.C.R. 113, 23 D.L.R. 00.
[See Stone v. Can. Pac. Ry. Co., 15 Can. Ry. Cas. 408, 14 Can. Ry.
Cas. 61; Can. Pac. Ry. Co. v. Frechette, 18 Can. Ry. Cas. 251; di^tin-
guished in Nelson v. Can. Pac. Ry. Co., 39 D.L.R. 760, 24 Can. Ry. Cas.
BOARD ORDER NOT APPLICABLE SWITCH STAND LOCATION NEGLIGENCE
GOOD RAILWAY PRACTICE.
The fact that an order of the Board does not govern the location of
switch stands of a certain height, constructed according to good rail-
way practice, does not justify a railway company placing such a stand
so close to passing cars that it is dangerous' to brakemen.
Nelson v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 308. 55 Can. S.C.R. 626, 39
SHUNTING CARS ACTIONABLE NEGLIGENCE PRECAUTIONARY DUTIES "DE-
FECTIVE SYSTEM," WHEN NEGATIVED \YoRKMEX'S COMPENSATION
Kreuszynicki v. Can. Pac. Ry. Co., 16 D.L.R. 879.
DUTY OF EMPLOYER OBVIOUS DANGERS.
An employer is not entitled to expose his servants unnecessarily to
obvious dangers, which they can escape only by constant vigilance or
unfailing alertness. A member of a railway company's switching crew
was knocked from a ladder on a side of a car by a switch stand and
injured by a following car. The jury found the railway company
negligent in placing the switch stand too near the rails, and found
that there was no contributory negligence. On appeal it was held
(Lament, J., dissenting) that there was no evidence showing, or from
which the inference could fairly be drawn, that the position of the
switch stand was contrary to any order of the Board, or was not accord-
ing to good railway practice, and furthermore, that the accident was
due to plaintiffs own negligence.
Nelson v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 308, 55 Can. S.C.R. 626,
39 D.L.R. 760.
AJTUANCES REASONABLY FIT FOK THE WORK DEFECT FINDING OF JCRT
A railway company is not obliged to have the best appliances for the
purpose of discharging freight if the appliances used are reasonably
fit for the purpose. If the jury give no finding from which it can
be inferred what the defect was which led to the accident, a new trial
will be ordered.
Wamboldt v. Halifax South Western Ry. Co.. 40 DJLR. 517.
D. Signals and Warnings.
INJURY TO SWITCHMAN FATLUBE TO WARN.
At the trial before a jury of an action by a switchman to recover
damages against a railway company for injuries alleged to have been
caused to him while engaged in the execution of his duty under the
orders of his foreman through negligence in the operation of a train
by other servants of the company and because there was not sufficient
room between the different tracks in the railway yard to enable the
plaintiff to carry on his work safely, the defences of contributory neg-
ligence and volenti non fit injnria are properly for the jury. and. when
there was some evidence that the bell had not been rung or the whistle
sounded on the train which struck the plaintiff, and to shew that the
'"layout" of the yard was defective, a verdict entered for the defendants
by the direction of the trial Judge should be set aside and a new trial
granted. [Toronto Ry. Co. v. King.  AX. 260; and Higley v.
Winnipeg (1910). 20 Man. LJL 22. followed.]
Wood v. Can. Pac. Ry. Co.. 20 Man. L^R. 92; affirmed in C.P-R- T. Wood.
45 Can. S.C.R. 7, 47 Can. S.C.R- 403.
NEGLIGENCE CACSIXC DEATH TEAT* MOVING BACKWARDS ABSENCE OF
LIGHTS TO WARN.
A conductor in defendants' employ, while engaged in the performance
of the duty for which he was engaged at the Windsor Station of the
C. P. R. in Montreal, was killed by a train which was being moved
backwards in the station yard. There was no light on the rear end of
the last car of the train, nor was there any person stationed there to
give warning of the movement of the train: Held, that by omitting
to have a light on the rear end of the train the railway company failed
in its duty, and this constituted prima facie evidence of negligence.
Can. Pae. Ry. Co. v. Boisseau. 2 Can. Ry. Cas. 335, 32 Can. S.C.R.
[Applied Jess v. Quebec A Levis Ferry Co.. 25 Qne. S.C. 241; distin-
qnished in Can. Pac. Ry. Co. T. Dionne. 18 Qne. K.B. 3S9: followed in
Lamond v. Grand Trunk Ry. Co., 16 O.T.R 35. 7 Can. Ry. Cas. 401.]
FATLrRE TO GIVE SIGNALS DEATH OF TRACK FOREMAN NEGLIGENCE OF
CBEW OF ENGINE.
The plaintiff's husband, while in the actual discharge of his duty as
section foreman on the defendants' railway examining the track, was
struck by a yard engine running backwards. No lookout was on the
tail board or rear of the engine and no signal of any kind was given
to warn the deceased of the approach of the engine: Held, that there
was ample evidence to support the findings of the jury that the deceased
cane to his death in consequence of the negligence of the engine crew
in neither blowing the whistle, ringing the bell nor keeping a proper
lookout, and that the deceased could not, by the exereiae of rrKahlff
care under the circumstances, have avoided the accident, and that the
appeal from the verdict in favour of the plaintiff should be dismissed.
Although the deceased, if lie had looked round, would have seen the ap-
proaching engine and stepped out of the way, yet he was engaged at
the time in the discharge of a duty of an absorbing character which
would naturally take his whole attention and, under the circumstance*,
a jury might properly infer that there was no absence of reasonable
care on the part of the deceased. Moreover, even if the deceased had
been guilty of negligence, the defendants would still be liable if the
engine crew could, by the exercise of reasonable care, have avoided
the accident. [Coyle v. Great Northern Ry. Co. (1887), L.R. 20 Ir.
409; The Bernina * (1887 ) , 12 P.D. 89; Kelly v. Union Ry. & T. Co.
(1888), 8 S.W.R. 20; Canada Southern Ry. Co. v. Jackson (1890), 17
Can. S.C.R. 316; London & Western Trusts Co. v. Lake Erie & Detroit
River Ry. Co. (1906), 12 O.L.R. 28, 7 O.W.R. 751, 5 Can. Ry. Cas. 364,
followed.] The omission of a common-law duty is actionable negligence
equally with the omission of a statutory duty, and the common law re-
quires the defendants' serva'nts, when running through the yard, to take
the obvious precaution of watching for workmen lawfully on the track
and giving them timely warning. [Canada Atlantic Ry. Co. v. Henderson
(1899), 29 Can. S.C.R. 632.] : Held, also, that the jury would have
been justified if they had drawn inferences unfavourable to the defence
from the fact that neither the engineer nor the fireman who were in
charge of the engine was called to give evidence for the defence: [Green
v. Toronto Ry. Co. (1895), 26 O.R. 326.] The accident occurred within
twenty feet of a public highway crossing, but, Quaere, whether s. 224
of the Railway Act, 1903, requiring that the whistle should be sounded
when approaching a highway crossing and that the bell should be con-
tinuously rung until the highway is crossed, can be invoked on behalf
of any persons except those using the highway crossing.
Wallman v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 229, 16 Man. L.R. 82.
[Distinguished in Tsbister v. Dominion Fish Co., 19 Man. L.R. 443;
doubted in Lamond v. Grand Trunk Ry. Co., 16 O.L.R. 365.]
SIGNALS AND WARNINGS BREACH OF STATUTORY DUTY COMMON EM-
PLOYMENT LIABILITY ACT FATAL INJURIES ACT.
S. 251 of the Railway Act of Nova Scotia provides that when a train
is moving reversely in a city, town or village the company shall station
a person on the last car to warn persons standing on or crossing the
track, of its approach and provides a penalty for violation of such
provision: Held, that this enactment is for the protection of servants
of the company standing on or crossing the track as well as of other
persons. M. was killed by a train, consisting of an engine and coal car,
which was moving reversely in North Sydney. No person was stationed
on the last car to give warning of its approach and as the bell was
encrusted with snow and ice it could not be heard. Evidence was
given that on a train of the kind the conductor was supposed to act as
brakesman and would have to be on the rear of the coal car to work
the brakes but when the car struck M., who was engaged at the time
in keeping the track clear of snow, the conductor was in the cab of the
engine: Held, Idington, J., dissenting, that an absolute duty was cast
on the company by the statute to station a person on the last car to
warn workmen, as well as other persons, on the track which, under the
facts proved, they had neglected to discharge. The defence under the
doctrine of common employment was, therefore, not open to them.
[Groves v. Wimborae,  2 Q.R. 402. followed] : Held, per Iding-
ton. J., that the evidence shewed the only failure of the company to
comply with the statutory provision to have been through the acts
and omissions of the fellow servants of deceased; that the company,
therefore, could not be held liable for the consequences under the Fatal
Injuries Act: that it is. therefore, unnecessary to determine the appli-
cability of the said section of the Railway Act. as the fellow servants
were guilty of common-law negligence which rendered the company
liable but only by virtue of and within the limits of the Employers*
Liability Act, ~41 1UUL 514, reversed.
McMullin v. Xova Scotia Steel Coal Co. 7 Can. By. Cas. 198, 39
Can. S.C.R. 593.
[Followed in Pettit T. Can. Xorth. By. Co., 14 Can. By. Cas. 293, 7
DJLB. 645: applied in Campbell T. Xova Scotia Steel Jt Coal Co^ 22
ACCIDENT TO EMPLOYEE WATCHMAN AT CROSSING BACKING TRAIN.
A watchman of the defendant company at a certain crossing in a city
was killed by two cars being "kicked oS" in the usual way from a train
which was backing in an easterly direction for that purpose. A brake-
man with a lamp was on top of the western-most of the two cars, but
was not keeping a lookout, and gave no warning that the cars were
moving. There was no light on the crossing, nor wa* any one stationed
on the cars "kicked off."' to warn people, and the engine bell war-
ringing: Held, that the defendants were guilty of negligence and were
liable for his death, not having complied with s. 276 of the Railway Act.
1906, by stationing a. person on the front car to warn people. Although
the deceased was an employee of the defendants and it was his duty
to protect persons crossing the track from the ears, he had a right to
rely, so far as his own safety was concerned, on nothing being done to
expose him to unnecessary danger, and on the above section being com-
plied with. [Can. Pac. By. Co. v. Boissean (1902). 32 Can. S.CJL 424.
Lamond r. Grand Trunk By. Co.. 7 Can. By. Cas. 401. 16 O.LB. 365.
[Followed in Pettit v. Can. Xorth. By. Co.. 14 Can. By. Cas. 293. 7
INJTRT TO CAR CLEANER WALKING ON TRACK TRAIN AHEAD or TIME
EXCESSIVE SPEED F ALLURE TO RING BELL.
A car cleaner employed by the defendants was injured through beine
struck by a locomotive engine while walking upon the track upon which
the engine was moving. The jury at the trial found that the injured
party was not guilty of any negligence which caused or contributed to
the accident, but that the negligence which caused the accident was im-
proper light of yards during time of alterations and the train being a
little ahead of time running at an excessive rate of speed. The jury
did not answer the question as to failure to ring the bell: Held, that
the accident was not due to actionable negligence on the defendants'
part and the action must be dismissed. Moss, C.J.O.: When a jury
exonerate an injured party from the charge of contributory negligence
upon the evidence which but for the finding would appear to shew very
convincingly that he was the author of his own injuries, the Court
should ascertain whether there is evidence upon which the jury might
reasonably find negligence on the part of the defendants which actually
caused the injury or whether the findings of the jury make a case of
actionable negligence against the defendants. Charges of alleged negli-
gence expressly put to the jury upon which the jury did not make a
finding must be taken to have been negatived. Meredith, J.A. : There
was no duty owed by the defendants to the plaintiff regarding the
time of arrival of any of its trains. There is no rule of law limiting
the rate of speed of railway trains in the interests of railway workmen.
Paquette v. Grand Trunk' Ry. Co., 13 Can. Ry. Cas. 68, 19 O.W.R. 305.
[Andreas v. Can. Pac. Ry. Co., 37 Can. S.C.R. 1, 5 Can. Ry. Cas. 450,
SECTIONMAN KILLED ox TRACK ABSENCE OF HEADLIGHT IN YOG CON-
Early on a foggy morning in September, the plaintiff's husband, a
sectionman employed by the defendants, was working on the north
track of the defendants' double-tracked line, when he was struck by an
engine coming from the west upon the north track, and killed. He must
have heard the engine approaching, but supposed that it was on the
south track, which was the usual one for east-bound trains. In an ac-
tion by his widow to recover damages for his death, the jury, in an-
swer to questions submitted, found that the defendants had been negli-
gent in: (1) "neglecting to switch back train on to right line at Lyn;"
(2) not carrying a headlight. The jury also found that there had been
no contributory negligence; and they assessed the plaintiff's damages
at a sum for which the trial Judge pronounced judgment in her favour,
with costs: Held, on appeal, that there was -no proper evidence to sup-
port the first finding of negligence; but (Meredith. J.A.. dissenting)
that, as there was uncontradicted evidence that the engine had no head-
liglit, as the defendants' rules provided that a train running when ob-
scured by fog must display a headlight, as the jury might well infer
that, if it had been displayed, it probably would have prevented the
accident, as the point was, though not specially mentioned in the plead-
ings, submitted to the jury by the trial Judge, without objection, and
was, in the circumstances, one proper for their consideration, and as
there was evidence upon which the jury might well negative contributory
negligence, judgment was properly given for the plaintiff. Per Meredith,
J.A. : The jury may act upon proper presumptions of fact, but may
not draw upon their imaginations, nor supply facts which ought to be
proved under oath. The analogy of judicial notice obtains to some ex-
tent, but is limited to a few matters of elemental experience; and it
is not in the category of elemental experience that in a dense fog in
the daylight the headlight of an engine would have conveyed to the
deceased the fact that the train was running on the east-bound track,
in time to save him from his assurance that it was on the other track.
There was not a particle of evidence that the negligence of the defend-
ants in running the train without a headlight was the cause of the acci-
dent; and there should be a new trial.
Oraham v. Grand Trunk Ry. Co., 13 Can. Ry. Cas. 232, 25 O.L.R.
SWING BRIDGE ON BAILWAY SEMAPHORE AND BRIDGE LIGHTS.
The exception to a rule of a railway company that its trains are en-
tirely under the control of the conductors and that their orders must
be obeyed except when they are in conflict with the rules and regula-
tions or plainly involve any risk or hazard to life or property, in either
of which cases all participating will be held alike accountable, does not
apply where an engine driver passed a semaphore which was against his
train proceeding and stopped at a water tank until he had filled his
engine when he signaled to the conductor that he was ready to go ahead
and the conductor signaled to him to go ahead and he ran on to an
open bridge which was near the tank and the engine ran off into the
water and the engineer was drowned and where the jury found that the
engineer acted reasonably and with proper precaution when he saw that
the lights of the bridge indicated that all was right to go across and
that he went ahead upon being signalled by the conductor to do so.
Where a locomotive driver passed a semaphore which was against hi-
train proceeding and stopped at a water tank until he had filled hi-
engine, when he signalled the conductor, who. by a rule of the com-
pany had entire control of the train, that he was ready to go ahead
and he ran on to a swing bridge which was then being opened to let a
tug pass and the engine ran off into the water and the engineer was
drowned, his death was due to the negligence of the conductor and not
to his own. his act of negligence in parsing the semaphore having ex-
pended itself when the train stopped at the water tank. Smith v.
Grand Trunk Ry. Co.. 3 O.W_X_ 279. reversed.
Smith r. Grand Trunk Ry. Co. (Ont.j. 14 Can. Ry. Cas. 49, 2 DJJEL
[ Reversed in 14 Can. Ry. Cas. 300. 8 D.L.R. 171.]
RAFLWAT swixc BRIDGE XEGUGEXCE,
Where a locomotive driver ignored and passed a- semaphore which
was against his train proceeding and stopped at a water tank until he
had filled his engine, when he signalled the conductor, who. by a rule
of the company, had entire control of the train, that he was ready to
go ahead, and the conductor signalled him to go ahead, and he. still
ignoring the semaphore, ran on to a swing bridge which was then being
opened to let a tug pass and the engine ran off into the water and the
engineer was drowned, his death was due to his own negligence. The
exception to a rule of a railway company that its trains are entirely
under the control of the conductors and that their orders must he
obeyed except when they are in conflict with the rules and regulations or
plainly involve any risk or hazard to life or property, in either of
which cases all participating will be held alike accountable, is appli-
cable where an engine driver passed a semaphore which was against
his train proceeding and stopped at a water tank until he had filled his
engine, when he signalled to the conductor that he was ready to go
ahead and the conductor signalled to him to go ahead and he ran on to
an open bridge which was near the tank and the engine ran off into the
water and the engineer was drowned, although the jury found that the
engineer acted reasonably and with proper precaution when he saw that
the lights on the bridge indicated that all was right to go across and
that he went ahead upon being signalled by the conductor to do so. [Smith
T. Grand Trunk Ry. Co.. 3 O.W.X. 379. restored: Smith v. Grand Trunk
Ry. Co., 14 Can. Ry. Cas. 49. 2 D.L.R. 251. reversed.]
'Smith v. Grand Trunk RT. Co. (Xo. 2), 14 Can. Ry. Cas. 300, 8 DJJL
RAU.WAT FIBEMAX NEGLIGENCE OF ENGIXEER ABSENCE OF SIGNALS
A railway company i not liable at common law for the death of the
fireman of a locomotive that was propelling a snow plough, as the result
of a collision with another train, due to the negligence of the engineer
in charge of the engine in continuing to run it without attemping to
learn the cause of the failure of the signalman on the plough to give
crossing and station signals, where no negligence on the part of the
signalman was shewn, as the engineer whose negligence caused the acci-
dent was the deceased's fellow servant.
Jones v. Can. Pac. Ry. Co. (Ont.), 14 Can. Ey. Cas. 76, 5 D.L.R. 332,
[Reversed in 16 Can. Ry. Cas. 305, 13 D.L.R. 900.]
DRUNKENNESS OF SIGNALMAN CAUSING DERAILMENT INTERLOCKING PLANT.
The Board granted the application of the C. P. R. Co. to cross the
tracks of the C. X. R. Co. upon the terms that the applicant should at
its own expense, insert a diamond in the track, provide, maintain and
operate an interlocking plant including the cost of keeping a signal-
man in charge of the crossing. The signalman was appointed by the
C. X. R. to the satisfaction of both companies. While a C. P. R. train
was approaching the crossing the signalman, being intoxicated, derailed
the train, killing the fireman. The C. P. R. Co. was held liable in dam-
ages for the death of its servant, the fireman, because it was alone
responsible for the negligence of the signalman, who, at the time of the
accident, while adjusting the points and giving the signals for its train,
was to be regarded as a person in its employment. The whole circum-
stances of the employment must be looked at and the real effect of the
actual relation existing must not be lost sight of in deference to a
formula about hiring and paying. [Hansford v. Grand Trunk Ry. Co.
(1909), 13 O.W.R. 1184, at p. 1187, specially referred to.]
Pattison v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 401, 24 O.L.R. 482.
[Reversed in 26 O.L.R. 410, 14 Can. Ry. Cas. 405].
DUTY TO WARN WORKMEN AT TRAMWAY CROSSING APPROACHING CARS
The work of laying planks at a tramway crossing may properly be
found to have been done under a "defective system" when the foreman,
whose duty it was to watch and warn the men of approaching cars pass-
ing at high speed at about fifteen-minutes intervals, was also required to
do manual work along with the men in his charge, thus distracting his
attention from the watching which was necessary for their protection.
Ellis v. British Columbia Elec. Ry. Co., 20 D.L.R. 82.
LIABILITY OF MASTER "RESPONDEAT SUPERIOR" XEGLIGENCE OF SIGNAL-
The application of the rule respondeat superior to each particular case
depends upon facts and is a question of fact. [McCartan v. Belfast Har-
bour Commissioners,  2 Ir. R. 143, 44 Irish L.T. 223, referred to.]
Where a railway company applies to the Board under s. 227 of the Railway
Act, 1906, for leave to cross the line of another railway company, and the
Board, by its order giving leave to cross, directs that an interlocking plant
shall be established at the crossing at the expense of the applicant com-
pany, and that the other company, whenever it desires to make use of the
crossing shall be entitled upon notice to the applicant company, to place a
signalman in charge thereof, whose wages are paid by the company ap-
pointing him and reimbursed to it by the applicant company, the signalman
so appointed is the servant of the company appointing him, and that com-
pany, and not the applicant company, is liable to a servant of the applicant
company who is injured by the negligence of the signalman in passing a