when there is no proof that the victim had a full knowledge of said under-
standing. Under these conditions, there is no reason to quash the verdict
which declares that there was fault and which determines the amount of
the damages caused.
Lachance v. Can. Pac. By. Co., 10 Can. By. Cas. 16. 25 Que. S.C. 494.
{Affirmed in 42 Can. S.C.R. 205, 10 Can. 'By. Cas. 22.]
or OBDEKS WALKING ox srorse ACCVMITLATIOX or KNOW
AXD ICE BAH.WAT FBOG xor PACKED COTPLISG LETER pmxTivt-
The plaintiff's husband, a brakeman. in the employ of the defendants.
was accidentally killed white walking on a siding by being run over by one
of the ears of the defendants. The negligence charged was that (li the
plaintiff was compelled to walk upon the siding, no way being left on either
side on account of lumber being piled too close: (2 - the siding had become
defective, unsafe and insufficient by reason of the accumulation of snow and
ice: (3 > the railway frog was not packed and the coupling lever was defec-
tive: Held, (1) that the proximate cause of the accident was the falling
of the deceased on the siding and being run over by a moving ear. (2 =
That the unsafe and almost impassable condition of the said siding and
the defective construction or condition of the coupling, if it was defective.
owing to the negligence of the defendants, were not the proximate cause
of the accident. (3) That the deceased took the risk of accident by dis-
obedience to the orders of the defendants, and no action for negligence
would lie.
Pettigrew v. Grand Trunk By. COL. 13 Can. By. Cas. 118.
JXJCKT TO SERVANT OT COVTtACTO* ABSENCE OT SCTEEVISIOX.
Bock filling in a bay for the protection of a railway embankment i not
284: EMPLOYEES.
work of such a dangerous character as to impose upon the railway com-
pany any duty to safeguard the servants of independent contractors exe-
cuting the work under the general supervision of the railway company's
engineer as to the actual construction of the "fill," where the injury took
place from the fall of rock in quarrying the material upon the railway
lands with the company's permission, but the latter had under the con-
tract no control over the manner in which the material should be taken
out nor as to where or how the contractors should procure the material,
and, in fact, exercised no supervision over the quarrying. [Dallantonia
v. McCormick, 8 D.L.R. 757, 14 D.L.R. 613, 29 O.L.R. 319, 16 Can. Ry.
Cas. 173, and Penny v. Wimbledon, [1899] 2 Q.B. 72, distinguished; Hole
v. Sittingbourne, 6 H. & N. 488, applied.]
Romaniuk v. Grand Trunk Pacific Ry. Co., 18 Can. Ry. Cas. 170, 20
D.L.R. 301.
K. Limitation of Liability.
INJURY TO EMPLOYEE TRAVELING ON PASS LIMITATION OF LIABILITY.
Deceased was employed in the defendants' workshops, and traveled to
and from his work on a pass. The condition on the back -of the pass, ex-
empting the company from liability for damages to person or property of
holder of pass, was not signed by the workman. Deceased was a man
skilled in his particular trade, and refused to work for the company un-
less given transportation. The jury found as a fact that deceased was
traveling on a pass, but that there was not sufficient evidence to shew
that he was made acquainted with the conditions thereon, and gave a
verdict for $9,000, which, on motion for judgment, was sustained by the
trial Judge: Held, per Macdonald, C.J.A., and Galliher, J.A. : That,
the finding as to want of knowledge of the condition on the pass should
not be interfered with. Per Irving, J.A. : That the finding was against
the weight of evidence. Deceased, while traveling on his employers' car,
was injured, and subsequently died from his injuries, in a collision be-
tween a car which broke away or became detached from the motor which
was pulling it, and ran back down grade, crashing into the car occupied
by deceased. Defendants, in their pleadings, admitted that the accident
occurred through the negligence of fellow servants in the employment of
defendant company, but there was no other evidence of negligence:
Held, on appeal, that it was for the plaintiff to shew that the accident was
due to some specific act of negligence for which the defendants were re-
sponsible. Appeal allowed, and verdict set aside.
Farmer v. British Columbia Elec. Ry. Co., 16 B.C.R. 423.
LORD CAMPBELL'S ACT EXONERATION OF LIABILITY.
Art. 1056 C.C. (Que. ) embodies the previous right of action under an
Act of Prov. of Canada re-enacting Lord Campbell's Act. [Robinson v.
Can. Pac. Ry. Co., [1892] A.C. 481, distinguished.] A workman may so
contract with his employer as to exonerate the latter from liability for
negligence, and such renunciation would be an answer to an action under
Lord Campbell's Act. [Griffiths v. Earl Dudley, 9 Q.B.D. 357, followed.]
The Queen v. Grenier, 2 Can. Ry. Cas. 409, 30 Can. S.C.R. 42.
[Commented on in Armstrong v. The King, 11 Can. Ex. 126; Miller v.
Grand Trunk Ry. Co., 21 Que. S.C. 361, 371; followed in Miller v. Grand
Trunk Ry. Co., "21 Que. S.C. 350, 353.
INSURANCE OF EMPLOYEES STIPULATION FOR IMMUNITY IN CASE OF ACCI-
DENTS INSURANCE EFFECTED BY EMPLOYER.
An employer may stipulate with his employee that, in consideration of
by tie latter to aa insurance aad provident society formed
te aamct workmen ud their families in case of injury or death by acci-
dent he will act he liable ia consequence of aa accideat suffered by the
imphiiii aad caused by the fault of bis ewmployw. (The Queen r. Gren-
ier, 90 Can. &.C-R. 42. "followed.] In this ease the insurance aad provident
society was legally constituted.
Ferguson v. Grand Trunk Ry. Co_ 2 Caa. By. Cas. 420. 20 Que. S.C. 54.
[Referred to ia Mflkr r. Grand Trunk By. Co, 21 Que. S.C. 339. 2
Caa. By. Cas. 449. 34 Caa. S.C.R. TIL]
EXEMnrSC QmoTEt, FBOV UAJMUTT POK XEEUGC^CE RlCHT
OF ACTK OF WiaoV SOT AffKlTUBL
A nJhray eoaipaay eaaaot stipolate iaiainaity froai daau^RS caased
by aggtert aad failure cat its part to eoaipiy with a duty ivpoeed oa it by
fatw for the safety of pas*eagers aad raqiloyeess. e^_ eavipawat of the
cars with dfciui brakes, rarh ilipliti>ai bria^ void aaiti i s. 213 of the
Railway Art, 1888 (By Pagaaeio aad Cnraa, JJ.) : The aetioa of the
widow nder Art. 105*. C.C. (Qae.)) act a lepnaeatatrc oae, tat iade-
peadeat of that of the iajared persoa: aad. therefore, even if aa agreeaMt
al^aililiai, iaiaiaaity fnaa responsibility for daauges caased by aesrli-
-eaie were Talid as regards the iajored persoa, it voald aot biad his
widow or other persoa* baring rights oader the article above watioawd.
IGDer r. Gnad Tmak By. COL, 2 Caa. By. Cas. 449. 21 Qae. S.C. 346.
[ACrawd ia 12 Qae. KJB. 1. Caa. By* Cas. 490; reversed ia 34 Can.
S.C-B. 45: 3 Caa. By. Cas. 147: reiastaited ia [1906] A.C. 1*7. 15 Qoe.
KJR. 118; coaiDBWBted oa ia AratstroBg r. The Kiag. 11 Caa. Ex. 12C:
Stuart T. Baak of lloatreal, 41 Caa. S-CJL 43; followed ia B. T. ATIB-
^troag. 40 Caa. S.C.B. 24& 5 ELLJB. 1^2: B. T. Dtsraiers. 41 Caa. S.C.K.
71. 6 EJLB. 119: referred to ia Fergusoa T. Graad Tmak By. Co. 20
Qae. S.C. 75. 2 Caa. By. Cas. 420; Moatreal Street By. Co. T. Brialofeky.
19 Qae. ELB. 338.]
EXEMPTI3CC E3TPIJOTEB FBOM BBSTOXSIBILITT FOB AtriPtiAI
LIC roucT BK.HT OF ACTIOX OF WIDOW Acnox SOT EEnxsKSTATTTE
OXK -IXWCMSTTf OK SATtSTACTIOS."
A railway coaipaar eauot. BBder a coatract bttcen its employer aad
aa iasaraacr aad provident soriety. in coasideratioB of aa aaaoal swb-
rriftioa to sarh society, be exempted froai re-pons-ibility for danuges
aaaed by nested and faihrre oa its part to comply with a duty imposed
on it by law for the safety of passengers and empk>ye5. e__ equipment
of the ears with efficient brakes, saw* stipulation being without effect
nader & 243 of the Baihray Act, 189R. The right of the widow aad other
relatrres under Art. 1066,. C.C. (Qne.1. is not a repre&entathne one, tat is
independent of that of the iajared person : and, therefore, even if an agree-
ment stipulating immuaiti from ne^poBsibility for damages caused by
fante lourde were valid as regards the injured person, it would be without
effect as regards his widow or other persons baring rights under Art. 1O5&.
An ijjii mi al exempting a party from responsibility for damages caused
by his gross negligence, or fante lourde. is null and roid. as beiag contrary
to public order. The words, -indemnity or satisfaction,"* in Art. 1036.
imply compensation by the person responsible for the damage suffeied,
and not a payment made under a contract with an insurance society .
Grand Trunk By. Co. r. Miller,. 2 Caa. By. Cas. 490, 12 Qoe. &LB. 1.
[Serened in 34* Can. S-C-B. 45, 3 Can. By. Cas. 141.]
286 EMPLOYEES.
DEFECTS IN MACHINERY CONTRACT INDEMNIFYING EMPLOYER INDEMNITY
AND SATISFACTION.
The "sander" and sand valves of a railway locomotive, which may be
used in connection with the brakes in stopping a train, do not constitute
part of the "apparatus and arrangements" for applying the brakes to the
wheels required by s. 243 of the Railway Act, 1888. Failure to remedy
defects in the sand valves, upon notice thereof given at the repair shops
in conformity with the company's rules, is merely the negligence of an
employee and not negligence attributable to the company itself; therefore,
the company may validly contract with its employees so as to exonerate
itself from liability for such negligence and such a contract is a good an-
swer to an action under Art. 1056 C.C. (Que. ). Girouard, J., dissented on
the ground that the negligence found by the jury was negligence of both
the company and its employees. [The Queen v. Grenier, 30 Can. S.C.R.
42. 2 Can. Ry. Cas. 409, followed.]
Grand Trunk Ry. Co. v. Miller, 3 Can. Ry. Cas. 147, 34 Can. S.C.R. 45.
L. Independent Contractor.
INDEPENDENT CONTRACTOR TORTIOUS ACT OF LIABILITY OF RAILWAY COM-
PANY.
A company building a railway is not liable for injury to property caused
by the wrongful act of their contractor in Iwrrowing earth for embank-
ments from a place, and in a manner, not authorized by the contract.
Kerr v. Atlantic & N.W. Ry. Co., 25 Can. S.C.R. 197.
[Applied in Croysdill v. Anglo-American Telegraph Co., 10 Que. P.R. 37 ;
Lavoi v. Beaudoin, 14 Que. S.C. 254; Montreal v. Montreal Brewing Co.,
18 Que. K.B. 406; Prefontaine v. Grenier, 27 Que. S.C. 349; referred to in
Beauchemin v. Cadieux, 22 Que. S.C. 487 ; Bureau v. Gale, 36 Que. S.C. 88.]
INDEPENDENT CONTRACTOR LIABILITY OF EMPLOYER INJURIES TO ADJOIN-
ING OWNER.
Where contractors for the blasting operations incidental to the prepara-
tion of a railway right-of-way caused large quantities of the dislodged
rock to be deposited on the land of an adjoining owner, the company own-
ing the right-of-way may be held liable for the damage to the land, if,
in letting the. contract in which the blasting operations were included,
no care was exercised by it to provide against the resultant damage to the
adjoining property which damage was such as should reasonably have
been anticipated; it is, in such case, the duty of the property owner upon
whose property the endangering work is being carried on to see that rea-
sonable skill and care is exercised by the contractor to prevent injury to
the adjoining property and the owner of the latter is not restricted to a
claim against the contractor. [Black v. Christchurch Finance Co., [1894]
A.C. 48; Hughes v. Percival, 8 A.C. 443; Dalton v. Angus, 6 A.C. 740, and
Bower v. Peate, 1 Q.B.D. 321, considered.]
Hounsome v. Vancouver Power Co. (B.C.), 9 D.L.R. 823, 15 Can. Ry.
Cas. 69.
ROAD LABOURER STRUCK BY TRUCK CONTRIBUTORY NEGLIGENCE LICENSEE.
An action to recover damages for negligence whereby the appellant was
permanently injured. The appellant was a labourer in the employ of the
contractors for grading a portion of a new line of railway then being con-
structed by the respondents. The appellant alighted from a "Ledgerwood"
on a flat car, used in such construction, on to the platform of Bala Sta-
tion, and while attempting to get ou board tbe car, while in motion, came
EMPLOYEES. 287
in contact with a truck standing on the platform and was injured. The
acts of negligence complained of were (li the presence of the truck: (2)
inviting the appellant to board and starting too soon: 3< appliances for
hoarding the train imperfect and out of repair. The respondents contend-
ed that there was no negligence on their part, but that the appellant was
guilty of contributory negligence- in attempting to board the train when
in motion, having alighted and remained on the platform out of mere idle
curiosity until the train began to move: Held. 1 1 affirming the judg-
ments of the trial Judge and the Court of Appeal for Ontario, that the
true position of the appellant was at the best that of a mere licensee.
(2) That the respondent owed no duty to the appellant who knew of the
risk and deliberately accepted it. C3 That there was no evidence to shew-
how long the track had been left on the platform or who put it there nor
was there in any respect, negligence in this regard for which the company
was liable.
Perdue r. Can. Pac. Ry. Co^ 12 Can. Ry. Cas. 216.
TO EMPLOYEE OF CONTRACTOR WITH RAILWAY - COCPtTSC CABS.
A railway company is liable for injury to a fencing contractor's employee
while at work in a car. caused by a negligently violent coupling of ears
hv the company's employees. An employee of an independent contractor
engaged by a railway company to fence its right-of-way does not assume
the risk of being injured while at work in a car. through a negligently
violent coupling of cars by employees of the railway company. A contract
to fence a railway company's right-of-way, in which the contractor fur-
ther agreed to indemnify the railway company against claims for injury
to persons or property "occasioned in carrying on the work." entitles the
company to indemnity against a claim of an employee of the contractor
for injury received while at work in a car caused by a negligently violent
coupling of cars made by the railway company's employees-
Walker v. Can. Northern Ry. Co., et aL, 11 D.LJL 363. IS B.CJL 63.
[This finding does not seem to be in accord with the principles of in-
terpretation laid down in Beal. Cardinal Rules of Interpretation. 2nd ed_
121.]
I* SECT RE EI-ECTB1C POLK - INJVBT TO SERVANT OF INDEPENDENT CONTRACTOR.
The owner of a line of poles, some of which were insecure, who employed
an independent contractor to string wires on them, is liable for an injury
sustained by one of the latters servants by the falling of an insecure pole
OB which he was working, notwithstanding the contractor was paid to
strengthen all of the insecure poles: since it was the defendant's duty to
see that its poles were safely secured before permitting the plaintiff to
work upon them. [Marney v. Scott. [1899] 1 Q.B. 986; Yaliquette v.
Fraser, 39 Can. S.CJL 1. and Canada Woollen Mills v. Traplin. 35 Can.
S.C.R. 424, specially referred to.]
Velasky T. Western Canada Power Co. I B.C.*. 12 DJ-R. 774.
M. Injuries by Employees.
ASSAULT BY WATCH MAS ox TRESPASSING CHILDREN SCOPE OF EMPLOY-
MENT.
A watchman was employed by the defendants to lower bars or gates
across the highway at each side of a crossing on the approach of trains.
and to raise them as soon as the trains had passed, the gates being low-
ered and raised by means of a lever which was some distance from them.
While a train was passing and the* gates down, the plaintiff, a lad of six-
teen, and two other lads, climbed or leaned upon one of the gates, and
288 EMPLOYEES.
the watchman was prevented by their weight from raising the gates after
the train had passed. In order to get them off he threw a cinder towards
them, which struck the plaintiff in the eye, destroying the sight: Held,
that, this act having been done not of mere malice or ill-will or to punish
the plaintiff, but for the purpose of warning him to get off the gate, and
so of enabling the watchman to perform the duty required of him, the
defendants, his employers, were responsible in damages.
Hammond v. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 232, 9 O.L.R. 64.
MALICIOUS ASSAL T LT BY FOREMAN SCOPE OF EMPLOYMENT LIABILITY or
MASTEB.
An employer is not responsible for the consequences of an assault com-
mitted by a foreman upon a labourer under him arising out of malice or
ill-temper.
Roth v. Can. Pac. Ry. Co., 4 Can. Ry. Cas. 238.
NUISANCE COURSE OF EMPLOYMENT PILING TIES ON HIGHWAY.
A number of worn 'out railway ties were taken from the line of railway
during ordinary working hours by section men employed by- the defendant
company and were piled on a highway at a railway crossing, the foreman
of the section men intending to take them to his house for firewood. It
was the custom of the section men to get rid of the worn out ties either
by burning them beside the track or by taking them home for firewood.
The plaintiff's horse while being driven along the highway shied at the
ties and the plaintiff was injured: Held, that there was evidence to
support the jury's finding that the ties had been placed upon the highway
in the course of the employment of the section men, and that the defend-
ants were therefore prima facie responsible, but that there being no finding
that the ties were a nuisance in the sense of being calculated to frighten
horses generally, this being an essential element of liability, a new trial
was necessary. Judgment of a Divisional Court reversed.
Forsythe v. Can. Pac. Ry. Co., 4 Can. Ry. Cas. 404, 10 O.L.R. 73.
N. Sufficiency of Jury Findings.
INJUBY TO EMPLOYEE COUPLING CABS FINDING OF JURY.
W. was an employee of the G.T.R. Co., whose duty it was to couple cars
in the Toronto yard of the company. In performing this duty on one occa-
sion, under specific directions from the conductor of an engine attached
to one of the cars being coupled, his hand was crushed owing to the engine
backing down and bringing the cars together before the coupling was made.
On the trial of an action for damages resulting from such injury the con-
ductor denied having given directions for the coupling, and it was con-
tended that W. improperly put his hand between the draw bars to lift out
the coupling pin. It was also contended that the conductor had no au-
thority to give directions as to the mode of doing the work. The jury
found against both contentions and W. obtained a verdict, which was
affirmed by the Divisional Court and Court of Appeal: Held, per Four-
nier, Taschereau and Sedgewick, J.J., that though the findings of the jury
were not satisfactory upon the evidence a second Court of Appeal could
not interfere with them: Held, per King, J., that the finding that spe-
cific directions were given must be accepted as conclusive; that the mode
in which the coupling was done was not an improper one, as W. had a
right to rely on the engine not being moved until the coupling was made,
and could properly perform the work in the most expeditious way, which
it was shewn he did; that the conductor was empowered to give directions
as to the mode of doing the work, if as was stated at the trial, he be-
EMPLOYEES. 2S9
fieved that using sock a mode could save time; and that W. was injured
by conforming to an order to go to a dangerous place, the pet son giving
the order bong gnflry of negligence. [20 AJL (Out.) 528. affirming 23
O.R. 436, affirmed.]
Grand Trunk Ry. Co. v. Weegar, 23 Can. S.C.R. 422.
TO COX0TCTOB COXSTMTCTIOX TCAIX MlSDWECTIOX.
In an action for personal injuries to the conductor of a construction
train resulting from a wing of a gravel-spreading machine operated by air
pressure, coming down upon him, caused by the engineer in charge of the
machine unintentionally starting it by striking his his knee against the
handle of a valve used to set it in motion while attempting to get closer
to the air gauge, a statement by a witness that the engineer must hare
been climbing up the machine, together with the evidence that the valve
was from two and a half to three feet abore the slot where the engineer
was T*^"g, would justify a suggestion in the trial Judge's charge that
the engineer might have touched the valve with his knee while climbing
up the machine to get a nearer view of the gauge.
Tobin v. Can. Pac. Ry. Co_ 2 D.LR. 173, 20 WJLJL 676, 5 Sask. LR,
3SL
XEGLIGEXCE OF FOBOCAX COSTBIBCTOKT XBGLJGE^CE OF SBSTAXT.
The plaintiff was injured while in the service of the defendants, and
brought this action for damages for his injury, alleging mgligiaui. In
answer to questions, the jury found that MeX. was a person in the serv-
ice of the defendants to whose orders the plaintiff was, at the time of the
injury, bound to conform; that McX. gave the plaintiff orders (specifying
the orders) ; that the plaintiff conformed to those orders; that injury
resulted to the plaintiff from so conforming; that negligence on the part
of X. caused the injury (specifying the negligence* ; and that the plain-
tiff, by the exercise of -reasonable care, might have avoided the accident.
The jury were not asked in what respect the plaintiff omitted to take rea-
sonable care: Held, that it was not necessary to ask that question, there
being evidence upon which the jury might find that the plaintiff was guilty
of negligence or contributory negligence; and that, upon that finding,
supported by the evidence, the action should he dismissed. [London Street
Ry. Co. v. Brown, 31 Can. S.C.R. 642, followed.]
'Shondra v. Winnipeg Elee. Ry. Co., 19 WJ_R_ 13 (Man.).
[Reversed in 19 W.L.R. 578.]
XBGLJGEXCE OF FOKEMAX COXTBIBCTMST XBGUGESCE.
The judgment of Robaon, J_, 19 WJJK. 13, upon the findings of a jury,
dismissing the action, was set aside, and a new trial directed, upon the
ground tkat the fidig of the jury as to contributory negligence was
v. Winnipeg Eke, Ry. Co_ 19 W.L.R. 578 (Man.).
VEUHCT AGAINST EAH.WAT FOK XBGUGEXTLY CAUSISG DEATH ABSEXCK OF
EVTDEXCE TO fetproEi fcvf's rrxir\G-
A verdict of a jury in favour of the plaintiff in an action against a
railway company for negligently causing the death of the fireman of a
locomotive that was propelling a snowplough. cannot be sustained where
there was no evidence tending to support the jury's finding that his death
was due to the negligence of the railway company in operating the plough
under a defective system by placing it in charge of a servant who had not
Can. Ry. L Dig. 19.
290 ESTOPPEL.
passed the necessary eye and ear test, or to shew that the accident was
due to a defect in the hearing or vision of such person.
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 RAILWAY QUESTIONS FOR JURY.
Where the jury omitted to answer a direct question submitted to them
on the trial of a railway employee's action against the railway for dam-
ages for negligence causing personal injury as to whether there was negli-
gence on the part of the plaintiff or of the defendant company or of both,
their negative answer to another question as to whether the car was rea-
sonably safe for the employees, which latter question was not directly
pointed at the alleged defects leading to the injury, is not alone a finding
of negligence and is insufficient to support a verdict for plaintiff.
Stone v. Can. Pac. Ry. Co. (Ont.), 14 Can. Ry. Cas. 61, 4 D.L.R. 789.
[Reversed in 15 Can. Ry. Cas. 408, 13 D.L.R. 93.]
BASIS OF ACTION ABSENCE OF NEGLIGENCE ON PART OF DEFENDANT.
A verdict for the plaintiff for injuries received while in the employ
of a railway company cannot be sustained where neither the evidence nor
the answers of the jury to questions submitted them disclose, on the part
of the defendant, negligence that contributed to the plaintiff's injury.
Stone v. Can. Pac. Ry. Co. (Ont.), 14 Can. Ry. Cas. 61, 4 DX.R. 789.
[Reversed in 15 Can. Ry. Cas. 408. 13 D.L.R. 93.]
EMPLOYER'S LIABILITY.
See Employees.
EQUIPMENT.
See Cars.
ESTOPPEL.
See Street Railways (A.).
RECEIPT DELIVERED TO LOCAL AGENT OF RAILWAY COMPANY BEFORE PAYMENT
OF FREIGHT.
The local agent of the railway company received the personal cheque of
the defendants' agent in settlement of freight charges due by the defend-
ants and thereupon receipted the freight bills. By means of these receipt-
ed bills the defendants' agent was enabled to obtain the amount of the
freight charges from his employers and absconded, leaving no funds to
meet his cheque, which was dishonoured. In an action for the recovery
of the amount of the freight charges: Held, reversing the judgment ap-