train of the applicant company over the crossing. Judgment of Boyd,
C., Pattison v. C.P.R., 24 O.L.R. 482, 14 Can. Ry. Cas. 401, reversed, Gar-
row, J.A., dissenting.
Pattison v. Can. Pac. Ry. Co., ]4 Can. Ry. Cas. 405, 26 O.L.R. 410.
EMPLOYEES. i
UJTUCEX sn> PHTSICIAX ENGAGED TO ATTESD EMPLOYEES LIABILITY or KAIL-
WAT COMPACT.
Where it it established that a physician engaged by an employer. upon
salary provided by means of deduction from the wages of the employee*.
for the purpose of affording medical care and attendance to the employees.
was not a licensed medical practitioner, the employer i* liable for damages
sustained through the fault of the physician, unless he produces evidence
to chew that the engagement was made through error and without fault
attributable to him.
North Shore Power 4 Navigation Co. T. Wallis, 20 Qne. K.B. 5ML
r; Free PUB.
EMPLOYEES or OTHEB COMPAST DITTY or BCASOXABLE CAKE TO.
A lumber company had railway sidings laid in their yard for
ience in chipping lumber over the line of railway., with which the switches
connected., and followed the practice of pointing out to the railway com-
pany the loaded cars to be removed, the railway company thereupon send-
ing their locomotive and crew to the respective sidings in the lumber yard
and bringing away the cars to he despatched from their depot as directed
by the bills of lading: Held, that in the absence of any special agree-
ment to such effect, the railway company's servants, while so engaged,
were not the employees of the lumber company, and that the railway com-
pany remain liable for the conduct of the persons in charge of the loco-
motive used in the moving of the cars; and that where the lumber com-
pany's employees remained in a car lawfully pursuing their occupation
there, the persons in charge of the locomotive owed them the duty of using
reasonable skill and care in moving the car with them in it. so as to avoid
aU risk and injury to them. 22 A.R. (Ont-f 292. affirming 25 O.K. 209.
Atlantic Ry. Co. v. Hnrdman. 25 Can. S.C.R. 2O5.
[Referred to in Tobin v. New Glasgow Iron. Coal 4 Ry. Co.. 29 N-S.E.
EMPIOTEE TKATELXSG ox PASS Fnxow SEWAXT Cosoiox EMPUOTMEXT.
Deceased, an employee of defendant company, was killed in a collision
beineea the car of the defendant company on which he was traveling to
his work, and a freight car which had been allowed to get loose and run
down grade alone. There was no proof of how this car got away. Some
evidence was given of a pass from the company having been found on de-
ceased, but not to shew that this pa> had been issued to him over that
portion of the line, nor was the pass produced: Held, that the onus was
on the defendant company to shew that deceased was traveling on a pass
and that it was not shewn that he was beuuf carried in such circumstances
as to make him a fellow servant with those operating the line. Per Irving.
J.A.: That the case had not been tried out, because the trial Judge, after
instructing the jury that defendant company would not be liable if it wa?
found that deceased was traveling on a pass by reason of the negligence
of a fellow servant, asked the jury to find whether the accident was due
to a defective system without explaining to them what constituted a de-
fective system.
Wilkinson v. British Columbia Eke. Ry. COL, 13 Can. Ry. Cas. 378. 16
B.C.R, 113.
[Affirmed in 45 Can. S.C.R. 263, 13 Can. Ry. Cas. 382.]
270 EMPLOYEES.
DETECTIVE SYSTEM GRATUITOUS PASSENGEB FREE PASS FELLOW SERV-
ANT.
The plaintiff's husband was an employee engaged as a mechanic in the
company's workshops and was traveling thither to his work on one of
the company's passenger cars, as a passenger, without payment of fare.
A freight car became detached from a train, some distance ahead of the
passenger car and proceeding in the same direction, it ran backwards down
a grade, collided with the passenger car and the plaintiff's husband was
killed. The manner in which the freight car became detached was not
shewn. On the body of the deceased there was found a permit or ''pass,"
which was not produced, and there was no evidence to shew any condi-
tions in it, nor over what portion of the company's lines nor for what
purposes it was to be honoured. On the close of the plaintiff's case, the
defendants adduced no evidence whatever, and the jury found that the
company was at fault, owing to a defective system of operation of their
trains, and assessed damages, at common law, for which judgment was en-
tered for the plaintiff: Held, that there was a presumption that deceased
was lawfully on the passenger car, and, in the exercise of their business
as common carriers of passengers, the company were, therefore, obliged to
use a high degree of care in order to avoid injury being caused to him
through negligence: that there was nothing in the evidence to shew that
deceased occupied the position of a fellow servant with the employees on-
gaged in the operation of the trains which were in collision; and that, in
the absence of evidence shewing any agreement, express or implied, or
some relationship between the company and deceased which would exclude
or limit liability, the plaintiff was entitled to recover damages at common
law.
Judgment appealed from, B.C.R. 113, 13 Can. Ry. Cas. 378, affirmed.
[Nightingale v. Union Colliery Co., 35 Can. S.C.R. 65, distinguished.]
British Columbia Elec. Ry. Co. v. Wilkinson, 13 Can. Cr. Cas. 382, 45
Can. S.C.R. 263.
LIABILITY BRAKEMAN OF ANOTHER RAILWAY TRACING CARS.
A brakeman who was employed by a railway company other than the
defendant, cannot recover for injuries sustained by being struck by a
train where, without the knowledge or leave of the defendant, he was in
its yard looking for cars that might be delivered to his master in due
course, so as to, for his own convenience, expedite their disposal, when
received, since no breach of any duty owed him by the defendant was the
cause of his injury.
Cunningham v. Michigan Central Ry. Co. (Ont.), 14 Can. Ry. Cas. 96,
4 D.L.R. 221.
EMPLOYEE OF ANOTHER RAILWAY IN DEFENDANT'S YARD DUTY TO TRES-
PASSER SPEED OF TRAIN IN RAILWAY YARD.
A brakeman of a railway company other than the defendant cannot
recover for injuries sustained while, for purposes of his own, he was in
the defendants' yard, by being struck by a train that gave all statutory
warnings of its approach, where the plaintiff stated immediately
after the accident that he saw the train coming but supposed that it
was on a track different from that near which he was standing and \vhere
no peculiar circumstances are shewn to require a lessening of speed in
the yard below that permitted by statute.
Cunningham v. Michigan Central Ry. Co. (Ont.), 14 Can. Ry. Cas. 96,
4 D.L.R. 221.
EMPLOYEES. 271
ACQCTESCEXCE OF KAIL VAT COMPAXT.
Permission of a railway company to m brakeman of another company
to eater its yards to look for cars thai might be delivered his master in
due course, so as to, lor his ova convenience, facilitate their disposal
when recerred, cannot be inferred from the testimony of the plaintiff
that he had done so for several months in the nighttime, or from the
testimony of a servant of the defendant that he had -seen them come
oat, different times, 9 since it was not sufficient to shew knowledge on the
part of tine defendant of the plaintiff's conduct, much less to establish
acquiescence therein sufficient to amount to leave or right to do so.
Cunningham T. Michigan Central By. Co. (Out,}, 14 Can. By. Cas. 96.
4 D J^B. 221.
ion of Bisk; Vc
NECLIGESCT RISK v.rsTAxY ECCWED -YotKsrn sox mr
On the trial of an action for damages in consequence of an employee
of a lumber company being; killed in a loaded ear which was being shunted.
the jury had found that "the deceased voluntarily accepted the rinks
of shunting." and that the death of the dceased was caused by defendant's
negligence in shunting, in giring the car too strong a push: Held, that
the verdict meant only that deceased had voluntarily incurred the risks
attending; the shunting of the cars in a careful and skilful manner, and
that the maxim "volenti non fit injuria~ had no application. [Smith v.
Baker. [1891] JLC. 325. applied.] 22 AJK_ (Ont) 292. affirming 25 OJL
209, affirmed.
Canada Atlantic By. Co. T. Hurdman. 25 Can. S-CJK. 203.
[Bef erred to in Tobin T. New Glasgow Iron, etc.. By. Co.. 2 X-S-B.
7*.]
DAXGEXOCS WO*KS Ororxjurr PBECACTIOXS KXOWUTCE OF ISK Cox-
TSXBCTOBT XBtLJGEXCE VoLrXTATT KXFOSTKE TO DAXGEB.
An employer carrying- on hazardous works is obliged to take all reason-
able precautions, commensurate with the danger of the employment, for
tine protection of employees, and. where this duty has been neglected, the
employer is responsible in damages for injuries sustained by an employee
as the direct result of such omission. [Lepitre T. Citizens Light & Power
COL, 29 Can. S.C-R. 1. referred to by Xesbitt, J.] In such a ease it is
not sufficient defence to shew that such a person injured had. knowledge
of tike risks of his employment but there must be such knowledge shewn
as. under the circumstances, leaves no doubt that the risk was voluntarily
incurred and this must be found as a fact. Judgment of the King's Bench.
Montreal, affirmed.
Montreal Park 4 Island By. Co. T. McDougaO. 36 Can. S.C JL L
[Followed in Grenier T. Wilson. 32 Qne. S.C. 201.]
DAXCXBOCS WOBK COXMOX FATCT.
Where an employee of a railway company was killed while engaged in
a dangerous operation permitted by the conductor, both the company
and employee were held to be negligent.
Great Xorthern By. Co. T. Cyr, IS Qne. K-B. 410.
ORXATHEC OF COAL KTXE XBGUGEXCE or EKPIJOTEE.
Under the fci&tem of operating the defendant company's coal mine.
coal was brought to the surface by means of box cars and at intervals
what was termed a "rake of ears' 7 was sent down to bring up men. In
272 EMPLOYEES.
the latter case the rules of the company required the man in charge of
the brake to give four raps upon the rope connecting the cars with the
hoisting engine at the surface as a signal that men were on board, when
the cars were raised at a much slower rate of speed than that employed
in raising coal. The man in charge of the brake, in violation of the rules,
gave only one rap upon the rope (the signal used where coal was being
raised) and the cars being brought up at a great speed ran off the track,
resulting in the death of one man and serious injury to another. In an
action under the Employers' Liability Act, R.S. 1900, c. 179: Held,
affirming the judgment of the trial Judge, (1) That the case was within
s. 3, subs, (e) of the Act, relating to the negligence of persons in the
service of the employer and having "charge or control of any points, sig-
nal, upon a railway, etc." (2) That there was no such contributory neg-
ligence on the part of plaintiff in remaining upon the cars (there having
been an opportunity of getting off at a stopping place) as would dis-
entitle him to recover. (3) That the principle volenti non fit injuria
could not be invoked on behalf of the defendant company.
Bell v. Inverness Ry. & Coal Co., 42 N.S.R. 265.
KNOWLEDGE OF DEFECTS OR DANGER BY SERVANT STATUTORY DUTY IMPOSED
ON MASTER.
Where a statutory duty is cast upon a master in any particular work,
the fact that a servant continues in that work with knowledge of its
dangerous character and appreciation of the risk thereof, does not render
the maxim "volenti non fit injuria" applicable so as to absolve the master
from liability, unless it is shewn that the servant undertook the em-
ployment not only with knowledge of the risk involved, but also of the
master's statutory duty in respect thereto. (Per 'Galliher, J.A.)
Clark v. Can. Pac. Ry. Co. (B.C.), 14 Can. Ry. Cas. 51, 2 D.L.R. 331.
VOLENS A QUESTION FOR JURY FUNCTION OF COURT OF APPEAL ON REVIEW
ORDER OF BOARD FAILURE TO PUBLISH IN GAZETTE.
In the absence of express consent or agreement to take the risk with-
out precautions, the question of volens is peculiarly one for the jury,
and the Court of Appeal should only interfere where the evidence is of
such a character that only one view can reasonably be taken of the
effect of the evidence (Galliher, J.A. dissenting). [McPhee v. Esquimalt
and Nanaimo Ry. Co., 49 Can. S.C.R. 43, followed.] Per Irving, J. A.:
The omission to publish in the Gazette an order of the Board cannot in-
validate it, but merely necessitates proper proof of the order before the
Court can act on it.
McPhee v. Esquimalt & Xanaimo Ry. Co., 22 B.C.R. 67.
INJURIES TO SWITCHMAN DEFECTIVE ENGINE UNAUTHORIZED USE CON-
TRIBUTORY NEGMGENCE PROXIMATE CAUSE.
There can be no recovery either at common law or under the statute
where the real basic cause of an accident and the resultant injuries to a
switchman is the unauthorized taking and using of an untested and defec-
tive engine by the switching crew whom he voluntarily assisted in the
taking and using of the engine with knowledge of its defective condi-
tion.
Hile v. Grand Trunk Pacific Ry. Co., 24 D.L.R. 9.
ALIGHTING WHILE TRAIN MOVING.
A workman engaged in taking wires up and down telegraph poles, and
for that purpose traveling in a work train with a crew from place to
EMPLOYEES. 273
place, n mat. justified in alighting from one ear and attempting to get
on yw"4fcrr while the train is in notion, and between stations; and such
conduct is not a ^risk arising oat of and incident to the nature of the
employment" wthin the Meaning of s. 6 of the Workmen's Compensation
Act, Sask. Stai. 1910-11. e. 9. so as to render the employer liable for
injuries to the employee resulting therefrom, the employers liability in
such ease being limited to the ordinary risks of travel. [Plumb v.
Cobden Flour Mills Co., [1914] A.C. 62; 'Barnes v. Nunnery Colliery Co..
[1912] AX. 44, followed: Herbert v. Fox, &4 LJ.ELB. 670;" Jibb v. Chad
wick, &4 LJ.K.B. 1241: Parker v. Black Rock, 84 LJ.K.B. 1373: Price
v. Tredegar. 30 TX.R. 583. referred to.]
Bechtel v. Can. Pac. By. Co_ 26 D.LJL 339, 9 SJ-R. 3. 33 WJLJL 426.
TKKFOKAKT SCSFEXSIOX or WOKK VOLETS DAXGEBOCS LOC ALTTT.
A temporary suspension of work does not always deprive the workman
of his recourse under the Workmen's Competition Act (Qne.) if he is
the victim of an accident during such suspension: but if the workman,
notwithstanding the employer's orders to the contrary, withdraws from
the hitter's superintendence, leaves his work and traverses, in his own
interest, a dangerous place, situated where the work is carried on, he
loses his recourse against his employer.
Lavery v. Grand Trunk By.. 26 Qne. K-B. 281.
H. Negligence of Fellow Servant.
NEGLECT or FELLOW WOKKMAX COXTKMBCTOBY XBGUGEXCK DEFECTIVE
Deceased while engaged in discharging the duties of section foreman
for the defendant company in their railway yard was run over by a train
and killed. There was a high wind blowing at the time accompanied by
considerable snow, and deceased was occupied in keeping the points of a
switch dear of snow. This required constant attention and under the
conditions prevailing at the time prevented him from observing the ap-
proach of the train. The train was being moved in a reverse direction
and the accident was shewn to have been wholly due to the neglect of
the proper persons, employed in connection with the running of the train,
to ring the bell or blow the whistle or to stand on the forward end of
the car for the purpose of giving the necessary warning. Plaintiffs, the
widow and children of the deceased, sued for damages under the common
law as aided by Lord Campbell's Act: Held, that deceased was not
guilty of contributory negligence, but that as all the negligent omissions
were those of fellow workmen and there was no proof of a system on the
part of the defendant company of running their trains without these
precautions being taken, defendant was not liable.
McMullin v. Nova Scotia Steel Coal Co~ 41 N.S.R. 514.
UNSKILLED WORK MAX DttECTED TO PEKFOKM WORK WHICH ECQCTRES SKILL
TO AVOID AOCTOEXT.
Although an employer is not liable as a general rule, for the result of
accidents which happen to employees from dangers essentially inherent
in the work which is being performed, he. nevertheless, becomes liable
when reasonable precautions have not been taken by hint to reduce the
danger to the lowest point or remove it altogether. And so. when
work which is not specially unsafe for a skilled workman, such as the
driving of spikes on a railway, is entrusted to an unskilled person, the
employer is responsible for an accident to the workman resulting from
Can. By. L. Dig. 18.
274 EMPLOYEES.
his inexperience, reasonable precautions to avoid it not having been
adopted.
Sparano v. Can. Pac. Ry. Co., 22 Que. S.C. 292 (Archibald. J.).
INJURY TO EMPLOYEE ROLLING TIMBERS FELLOW SERVANT FELLOW SKKY-
ANTS AND THEIR NEGLIGENCE.
Where an employee, while engaged with fellow workmen in rolling up
timbers on flat cars, which timbers were similar to telegraph poles, being
larger at one end than the other, and the only inference to IM? drawn
from the evidence as to the cause of the accident is one of three alterna-
tives: (1) The small end was rushed up too fast; or (2) the fellow em-
ployees of the plaintiff let go the big end when they should and could
have held it; or (3) there were not sufficient men on the job to hold the
timber up, a judgment by the trial Court in favour of the defendant will
be reversed on appeal and judgment entered for the plaintiff for his
damages sustained. [Rostrom v. C.N.R., 3 D.L..R. 302, 21 W.L.R. 225,
distinguished.]
Torangue v. Can. Pac. Ry. Co., 8 D.L.R. 211.
NEGLIGENCE OF TRACKMASTER FELLOW SERVANT COMMON EMPLOYMENT.
Negligence of a trackmaster of a railway company causing an injury
to a man employed as one of a crew engaged in removing gravel from
a ballasting train working on a section of the road under the control
of the trackmaster is the negligence of a fellow servant engaged in a
common employment, and the company is not liable in an action for dam-
age resulting therefrom.
Day v. Can. Pac. Ry. Co., 3 Can. Ry. Gas. 307, 36 N.B.R. 323.
COLLISION DEATH OF RAILWAY FIREMAN ox SNOWPLOI:GH UNQUALIFIED
SIGNALMAN.
A railway company cannot be held liable for the death of a fireman
on a snow-plough train as a result of a collision, merely because it em-
ployed an unqualified signalman on the snowplough, where it did not
appear that an accident was the result of his disqualification.
Jones v. Can. Pac. Ry. Co. (Ont.), 14 Can. Ry. Cas. 76, 5 D.L.R. 332.
[Reversed in 16 Can.' Ry. Cas. 305, 13 D.L.R." 900.]
NEGLIGENCE OF FELLOW SERVANT.
Where a yard foreman, engaged with his assistant upon their duties
in the yard, was struck and injured by an engine which was being used
for shunting purposes, a finding by the jury that the accident was caused
by reason of the negligence of the assistant and that the latter had the
charge or control of the engine, within the meaning of subs. 5 of s. 3 of the
Workmen's Compensation for Injuries Act, is supported by reasonable
evidence where it appears that the engine was being run by an engineer
who was subject to the orders of the assistant, who failed to carry out the
orders he received from the yard foreman.
Martin v. Grand Trunk Ry. Co., 8 D.L.R. 590, 27 O.L.R. 165, 15 Can. Ry.
Cas. 1.
STATUTORY DUTY RAILWAY EMPLOYEES PASSING TEST COMMON EMPLOY-
MENT.
Where a railway company in breach of the duty imposed by Order
No. 12225 of the Board, permits an employee to engage in the operation
of trains without the specified examination and test, the company is, by
virtue of s. 427 of the Railway Act, 1906, liable in damages to any per-
EMPLOYEES. 275
son injured as * result of such. breach of duty. [Jones v. Can. Pae. Rj.
COL, 14 Can. Rj. Cas. 7*. 5 D.LR. 332, 3 O.W.X. 1404. reversed: see abo
Workmen's Compensation for Injuries Act. RJS.O. 1897, c. 10. RJSLO.
1914, e. 14S, awl Fatal Accident* Act, 1 Gen. V. (Out- c. 33.
RJ?LO. 1897, e. ICC. RJ&O. 1914. e. 151-1 The defence of
ploymeut is not available to the ma^er in a case in which injury has
been caused to a servant by the uegligum of a fellow servant selected
by the Master in breach of a statutory duty to employ in the particular
aritke only persona who have pasted a qualifying test, if the injury
be the natural consequence of the lack of capability which the test should
have disclosed. [Jones r. Can. Pat. Ry. Co_ 14 Can. Ry. Cas. 76. a D.LJL
333. 3 O-W.X. 1404, revered: Grove* v. Wimbone, [l$9ti] 2 Q.B. 4*e.
applied.] The flagrant failure of a section foreman improperly entrusted
with the ihngi of a railway snow-plough train in violation of statutory
refutations requiring' that ouhr employee?- should be placed in chai^te
who had paired the prescribed examination to observe the signals or to
*ignal to the engine driver in rear nay. in the absence of evidence to the
contrary, be presumed to have resulted front his want of skflL knowledge
or experience, or to some physical incapacity or defect, which the statutory
examination or test would have revealed: and the railway company is
properly held liable in damages for the death of his assistant on the
snowplongh in a collision rtc*nltiug from the section foreman's *fjf*rt
in which he also wa* killed: the company's action in setting an unquali-
fied man to do swh work was either the sole effective cause of the accident
or a cause materially contributing to it. and the case therefore could not
have been property withdrawn from the jury- -Jone* v. Can. Pa*. Ry. COL,
14 Can. Ry. Gas. 76. 5 D.L.R. 332, 3 O.W.X. 14O4. reversed.
Jones v. Can. Pae. Ry. COL, 16 Can. Ry. Cas. 305. 13 DJLJR. 909. 30
O.LJL 331.
SEKVAVT-t - WATCH MAX AT LEVEL CBOSSHCG - TkiEf CREW - COM-
MON-LAW KCMEDT.
A person employed by a railway company as a watchman at the cross-
ing of it* railway with a street railway at level is a fellow servant
with the crew of a train passing over the crossing: and. if he K killed
in consequence of the negligence of the train crew, his widow cannot re-
cover damages at cmmuioa law against the railway company. [Waller v.
South Eastern Ry. Co_ i H. i C. IK*?: Morgan v/Yale of Xeath Ry. COL.
LJL 1 Q.B. 149." and Loveil v. HowriL 1 C.P.D. 1*1. followed.] SL 76
of the Railway Act. 19A6. is for the protection of employees of the rail-
way company as well as of the public, and the widow and aduuntstratrix
of a watchman employed by the company at a level crossing of the rail-
way with a street railway, who is killed on an accident caused by a breast
of that section by the running of a freight train backwards over the
crossing without any person on the end car to give proper warning of
its approach, resulting in a collision with a street car crossing the tra- v~_
may recover damages against the company under that section. {[JJ*-
Mullin v. XJS. Steel t Coal COL, 7 tan. Ry/Cas. 198. 39 Can. &.C-R. 593.
and Lamond v. G.TJL COL, 7 Can. Ry. las. 401. 16 O.LR. 365. followed. 1
Even if it w*re shewn that a street railway company, as weD as a railway
company, might also be liable for the consequences of an accident which
resulted in the death of one of the railway's employee.*, because of the
negligence of the motorman. an employee of the street railway companr.
that would not prevent the recovery of full damages from the railvay
276 EMPLOYEES.
company. ["The Bernina," 13 A.C. 1, and Burrows v. March Gas & Coke
Co., L.R. 5 Ex. 67, followed.]
Pettit v. Can. Northern Ry. Co. (Man.), 14 Can. Ry. Cas. 293, 7 D.L.R.
645.
[Varied in 11 D.L.R. 316, 23 Man. L.R. 213 by reducing the damages.]
PERSONAL INJURIES COMMON LAW DANGEROUS SYSTEM.
The personal injuries received by the plaintiff, a front end brakesman,
while in the performance of his duty standing on the gangway between the
locomotive and tender, looking for signals on the approach of a station, and
observing if there were any hot boxes in the trucks of the cars, by being
knocked from the train in stepping backward, by a poker in the hands of
the fireman, and run over by the train were not due to the negligence of the
defendants at common law, or the use of an alleged dangerous system by
them.
Mclntyre v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 160. See 6 O.W.N.
618.
I. Duty of Care; Contributory Negligence:
ACCIDENT TO WORKMEN ON TRACK CONTRIBUTORY NEGLIGENCE.
The plaintiff, a workman in the employ of the company, was injured by a
car striking him while working on the track. In an action for damages the
company defended on the ground that he had not been reasonably careful in