that the compensation paid comprised "all damages of every nature whatso-
ever." After the suppliant acquired the farm, flooding occurred, and the
suppliant claimed that it was due to the construction of a new drain by
the railway authorities. The evidence showed that the flooding was occa-
sioned by the failure of the suppliant to open and complete his boundary
ditches. Held, that the injury, even if it arose from anything done by
the railway authorities, was covered by the compensation paid to the sup-
pliant's autenr (i.e. former owner >. and that no claim for damages would
lie unless another expropriation had been made or some new work per-
formed, causing damages of a character not falling within the scope of
those arising from the first expropriation. [Jackson v. The Queen, 1 Can.
Ex. 144, referred to.]
Moisan v. The King. 16 Can. Ex. 431.
C. Negligence; In General.
LIABILITY OF CBOWX FOB XEGLJGEXCE.
The Crown, in its operation of the Intercolonial Railway, is not a com-
mon carrier, and. apart from its statutory duties, is not subject to the
duties imposed by the common law upon common carriers. [The Queen
v. McLeod, 8 Can. S.C.R. 1: The Queen v. McFarland, 7 Can. S.CJS. 216,
Williams v. Government Railways Management Board. 11 E.LJR. 10.
DAMAGE TO FARM FROM OVEBFLOW OF WATEB BOCXDABY DITCHES MATX-
Under 43 Viet. c. 8. confirming the agreement of sale by the Grand
Trunk Ry. Co. to the Crown of the purchase of the Riviere du Loup branch
of their railway, the Crown cannot be held liable for damages caused from
the accumulation of surface water to land crossed by the railway since
1879 unless it is caused by acts or omissions of the Crown's servants, and
as the damages in the present case appear, by the evidence relied on. to
have been caused through the nonmaintenance of the boundary ditches of
claimant's farm, which the Crown is under no obligation to repair or keep
438 GQYEBNMENT RAILWAYS.
open, the appellant's claim for damages must be dismissed. 2 Can. Ex.
Morin v. The Queen, 20 Can. S.C.R. 515.
DEATH ARISING FBOM NEGLIGENCE DEFECTIVE ENGINE DANGEROUS CROSS-
ING UNDUE SPEED "TRAIN OF CARS."
The husband of the suppliant was killed by being struck by the tender
of an engine while he was on a level crossing over the Intercolonial Ry.
tracks in the city of Halifax. The evidence shewed that the crossing was
a, dangerous one, and that no special provision had been made for the pro-
tection of the public. Immediately before the deceased attempted to cross
the tracks, a train of cars had been backed, or shunted, over this crossing
in a direction opposite to that from which the engine and tender by which
he was killed was coming. The engine used in shunting this train was
leaking steam. The atmosphere was at the time heavy, and the steam
and smoke from the engine did not lift quickly but remained for some
time near the ground. The result was that the shunting engine left a
cloud of steam and smoke that was carried over towards the track on
which the engine and tender were running, and obscured them from the
view of anyone who approached the crossing from the direction in which
the deceased approached it. The train that was being shunted and the
cMigine and tender by which the accident was caused passed each other a
little to the south of the crossing. The train and shunting engine being
clear of the crossing the deceased attempted to cross, and when he had
reached the track on which the engine and tender were being backed, the
latter emerged from the cloud of steam and smoke and were upon him
before he had time to get out of the way. At the time of the accident the
engine and tender were being backed at the rate of six miles an hour:
Held, that the accident was attributable to the negligence of officers and
servants of the Crown employed on the railway both in using a defective
engine, as above described, and in maintaining too high a rate of speed
under the circumstances. (2) An engine and tender do not constitute a
"train of cars" within the meaning of s. 29 of the Government Railways
Act, R.S.C. 3886, c. 38 (now R.S.C. 1906, c. 3(5 s. 35). [Hollinger v. Can.
Pac. Ry. Co., 21 O.R. 705, not followed.] (3) Where the Minister of Rail-
ways, or the Crown's officer under him whose duty it is to decide as to the
matter, comes, in his discretion, to the conclusion not to employ a watch-
man or to set up gates at any level crossing over the Intercolonial Ry., it is
not for the Court to say that the minister or the officer was guilty of neg-
ligence because the facts shew that the crossing in question was a very dan-
Harris v. The King, 9 Can. Ex. 206.
INJURY TO THE PERSON CROSSING RECKLESS CONDUCT OF DRIVER OF VE-
When the point where the accident in question occurred was not a
"thickly peopled portion of a ... village," within the meaning of
s. 34 of R.S.C., 1906, c. 36, the officials in charge of the engine and train
were not guilty of negligence in running at a rate of speed greater than
oix miles an hour. [Andreas v. Can. Pac. Ry. Co., 37 ,Can. S.C.R. 1, 5 Can.
Ry. Cas. 440, 450, applied.] (2) Under the law of Quel>ec where the
direct and immediate cause of an injury is the reckless conduct of the
person injured the doctrine of faute commune does not apply, and he can-
not recover anything against the other party. (3) Where a person of full
age is injured in crossing a railway track by the reckless conduct of the
driver of a vehicle in which he is being carried, as between the person in-
GOVERNMENT RAILWAYS. 439
jured and the railway authorities, the former is identified with the driver
in respect of such recklessness and most bear the responsibility for the
accident. [Milk v. Armstrong (The Berninai, L.B. 13 A.C. 1, referred to
Parent v. The King, 13 Can. Ex. 93.
[Followed in Minor r. Grand Trunk By. Co, 22 Can. Ry. Gas. 194, 35
ACCIDEXT TO THE PEBSOX - XEGUGEXCE OF CBOWX T S SEBYAXTS - ACTIOX BY
PABEXT OF DECEASED PECTXIABT BEXEFTT.
In the case of death resulting from negligence, and an action taken by
the party entitled to bring the same under ILS.X-S. c. 178. s. 5. the dam-
ages should be calculated in reference to a reasonable expectation of pecuni-
ary benefit, as of right or otherwise, from the continuance of the life.
Such party is not to be compensated for any pain or suffering arising from
the loss of the deceased, or for expenses of medical treatment of the de-
ceased, or for his burial expenses, or for family mourning. [Oaborne v.
Gillett, L.R. 8 Ex. 88. distinguished.]
McDonald T. The King, 2 Can. By. Cas. 1, 7 Can. Ex. 216.
LIABILITY FOB XEGLJGEXCE EXCHEQCEB ACT.
To render the Crown liable upon a petition of right for acts of negli-
gence of servants of the Crown in the operation of a Government railway
within the provisions of the Exchequer Court Act. R.S.C. 1906, c. 140. s.
20 (f) (amendment of 1910 -. such negligent acts must be the proximate,
determining and decisive cause of the injury.
Cbarlton T. The King. 8 D.L.B. 911, 14 Can. Ex. 41.
LEYEI. CBOSSIXC PBOJECTIXG T BACKS.
The condition of a crossing whereby tracks are allowed to project
above a highway level in violation of the Government Railways Act ( R-S.C.
1906. c. 36. s. 16 ) is negligence which will render the Crown liable for an
accident caused by round sticks placed between the rails by an unknown
person to assist vehicles across the tracks.
Belanger T. The King, 20 Can. Ry. Cas. 343. 54 Can. S.C.B. 265. 34
XESLIGEXCE CACSESG DEATH OPEBATIOX OF BAH. WAT.
Negligence of a servant in the unloading of coal for the Intercolonial
Railway from a ship moored to a pier is "in. on or about* 7 the operation
of the railway, within the Exchequer Court Act (R.S.C. 1906. c. 140.
s. 20 (f ) ) as amended by 9 & 10 Edw. YIL. e. 19. for which the Crown is
Begin T. The King, 33 D.L.R. 203, 16 Can. Ex. 349.
PTBUC WOBK Coiiisiox STAU.ED
The collision of a train with an automobile stalled on a level cro*>ine
of the Intercolonial Railway, occasioned by the delay of the engine driver
to apply his brakes the moment he became aware of the presence of th<-
motor upon the track, is an accident "on a public work" and caused
by the "negligence of an officer or 'servant of the Crown while acting with-
in the scope of his duties or employment upon, in or about the construc-
tion, maintenance or operation of the Intercolonial Railway," withia tie
meaning of s. 20 of the Exchequer Conn Act.
Dunnett v. The King, 41 D.L.R. 405.
440 GOVERNMENT RAILWAYS.
CROSSING GOVERNMENT RAILWAYS ACT GROSS NEGLIGENCE.
Where the Minister, or the Crown's officer, in the exercise of his discre-
tion decides not to make a viaduct or put gates across a highway, it is
not for the Court to say that the Crown was guilty of negligence, even
where the facts shew the crossing to be a very dangerous one; and where
the crossing was not in "a thickly peopled portion of any city, town or
village" within the meaning of the Government Railways Act (R.S.C.
1906, c. 36 ), there was no negligence in running a train at a greater
speed than six miles per hour, if the proper signals were given by
the trainmen. [Harris v. The King, 9 Can. Ex. 206, followed.]
Lucas v. The King, 18 Can. Ex. 281.
FAUTE COMMUNE QUEBEC LAW EMPLOYER FAILING TO COMPLY WITH ACT.
The doctrine of faute commune does not obtain under the law of Quebec
where the claimant contributes to the proximate or determining cause of
Brillant v. The King, 15 Can. Ex. 42.
PUBLIC WORK HIGHWAY EXCHEQUER COURT ACT.
An action in tort does not lie against the Crown, except under special
statutory authority, and where a suppliant, while measuring lumber on the
King's highway was injured by a passing train of the Transcontinental
Ry. he must bring the facts of his case within par. (c) of s. 20 of the
Exchequer Court Act, R.S.C. 1906, c. 140. As the accident happened on
the highway and not on a public work, as required by the Act, his action
Theriault v. The King, 16 Can. Ex. 253, 38 D.L.R. 705.
CROWN'S SERVANT "UPON, IN OR AROUT RAILWAY" DEATH MEASURE OF
Par. (f) of s. 20 of the Exchequer Court Act, R.S.C. 1906, c. 14iO, as
amended by 9-10 Edw. VII. c. 19, does not require, in order to recover
against the Crown, that the death or injury occur on a public work, but it
is sufficient that the injury complained of be caused by the neglignce of
the Crown's servant acting within the scope of his duties "upon, in or
about the construction, maintenance or operation of the I.C.R. or the
P.E.I. Ry." The Crown is liable for an accident in the- course of unloading
coal for the I.C.R. from a steamer moored at a wharf, belonging to the
Crown and used as part of the I.C.R. such accident being occasioned by
the negligence of an officer or servant of the Crown. In an action to recov-
er for death by negligent act the plaintiffs are entitled to such damages as
will compensate them for the pecuniary loss sustained thereby, together
with the pecuniary benefits reasonably expectant from the continuation of
life, taking into account the age of the deceased, his state of health, his
expectation in life, his earnings and ,his future prospects. Insurance
money received or about to be received by plaintiffs should also be taken
into consideration when making the assessment.
Jacob v. The King, 16 Can. Ex. 349, 33 D.L.R. 203.
CROWN'S SERVANTS INJURY TO BRAKEMAN.
A brakeman on the I.C.R. has no recourse against the Crown for injuries
sustained in the course of his employment, in the absence of proof of any
negligence on behalf of any officer or servant of the Crown giving rise
to the accident.
McNeil v. The King, 16 Can, Ex. 355.
GOVERNMENT RAILWAYS. 441
D. Fences and Cattle Guards.
(1) Where the Crown is not required by the adjoining proprietors to
its line of railway, there is no duty, in favour of a trespasser, cast
upon the Crown bj the provisions of ss. 22, 23 of the Government Bail-
wars Art to fence as aforesaid. (2j The suppliant, while working on a
property adjoining the L.CJL within the city of Levis. was injured while
innocently trespassing on the right-of-way, there being no fence erected,
or other mean s taken, by the Crown to mark the boundary between the ad-
joining property and the railway. It was not alleged that the adjoining
u had requested the Crown to fence: Held, that the suppliant had
Hie no case of negligence against the Crown under subs, (e) of s. 20 of
BJGUL, e. 140.
Viger T. The King. 10 Can. Ry. Cas. 301, 11 Can. Ex. 328.
FlXE OCCASIONED BT CTVDESS FBOM EXC^XE GoTEKOCEXT RAILWAYS ACT.
The suppliant's property was destroyed by fire caused by cinders car-
ried in smoke emitted by an engine on the I.C.R. There was no negli-
gence proved against the employees of the Dominion Government in charge
of the train, and it was established that the engine in question was of a
most approved type, and was equipped with all modern and efficient ap-
pliances for the prevention of the escape of sparks, etc.: Held, that the
ease fell within the provisions of subs. 2 of s. ol of the Government Rail-
ways Act. as amended by 9-10 Edw. VII. c. 24, and that the damages most
be limited to the sum of $5.000, to be divided amongst the suppliant and
others who had suffered loss by the fire.
Duclos T. The King, 10 FT.R~. 138 (Exch. Court).
FlE FKOH EXGEfE X EGLIGEXCE.
By 7 4 8 Edw. VII. c. 31. s. 2. the Government of Canada is liable for
damage to property caused by a fire started by a locomotive working on a
Government railway, whether its officers or servants are or are not negli-
gent and by a proviso the amount of damages, is limited if modern and
efficient appliances have been used and the officers or servants -nave not
otherwise been guilty of any negligence. 9 : Held. Daries. J-. dissenting,
that the expression "have not otherwise been guilty of any negligence"*
means negligence in any respect and not merely in the use of a locomotive
equipped with modern and efficient appliances. Sparks from a locomotive
set fire to the roof of a Government building near the railway track and the
fire was carried to and destroyed private property. The roof of this build-
nig had on several previous occasions caught fire in a similar way and the
Government officials, though notified on many of such occasions., had only
patched it up without repairing it properly: Held, reversing the judg-
ment of the Exchequer Court (12 Can. Ex. 389 , that the Government
officials were guilty of negligence in having a building with a roof in such
condition so near to the track, and the owner of the property destroyed
was entilted to recover the total amount of his loss. 12 Can. Ex. 3S9, re-
Leger v. The King. 43 Can. S.CJL 164.
FOB XBGIJGEXCE LEASED BO AD.
The Crown ts liable under s. 20 ici of the Exchequer Court Act (R.S.C.
1906. c. 140. as amended in 1910. c. 191. for an injury resulting from the
negligent setting out of fires by section men on a railway track leased by
the Crown and operated as part of the Intercolonial railway system,
Xew Brunswick Ry. Co. v. The King, 37 D iJL 366.
442 GOVERNMENT RAILWAYS.
F. Injuries to Employees.
NEGLIGENCE OP SECTION FOREMAN.
Suppliant's husband, while engaged in coupling cars as a brakesman on
the I.C.R. caught his heel between the rail and the guard rail and bi-ing
unable to get clear was run over by the cars and killed. It was shewn ti
be the duty of the section foreman to see that the space between the rail
and guard rail was properly filled or packed, and that he had been guilty of
negligence in respect of such duty: Held, that the Crown was liable for
Desrosiers v. The King, 11 Can. Ex. 128.
[Affirmed in 41 Can. C'.S.R. 71.]
INJURY TO EMPLOYEES LIABILITY OF THE CROWN COMMON EMPLOYMENT.
Under subs, (c) of s. 16 of the Exchequer Court Act, 50 & 51 Viet. c.
16, an action in tort will lie against the Crown, represented by the Govern-
ment of Canada. Under C.C. ( Que. ) in case of death by negligence of
servants of the Crown, an action for damages may be maintained by the
widow of the deceased on belialf of herself and her children. The action
of the widow is not barred by her acceptance of the amount of a policy of
insurance on the life of deceased from the I.C.R. Employees' Relief and
Insurance Assn., under the constitution, rules and regulations of which the
Crown is declared to be released from liability to make compensation for
injuries to or death of any member of the Association. [Miller v. Grand
Trunk Ry. Co.,  A.C. 187, followed.] The doctrine of common em-
ployment does not prevail in the Province of Quebec. The right of action
for compensation for injury or death by negligence of Government em-
ployees does not abate on demise of the Crown. [Viscount Canterbury v.
The Queen, 12 L..T. Ch. 281, referred to: 11 Can. Ex. 128, affirmed.]
The King v. Desrosiers, 41 Can. S.C.R. 71.
RUNNING RIGHTS AND POWERS OVER ANOTHER RAILWAY.
The suppliant's husband was mortally injured while employed as a loco-
motive fireman on an I.C.R. train, running between Levis and Chaudiere,
at a point on the Grand Trunk Ry. enclosed between two sections of the
I.C.R. over which the Government of Canada had acquired running Tights
and powers in perpetuity and free of charge under 43 Viet. c. 8. Over this
section of railway the Government operated its trains and locomotives
as on a part of the I.C.R. system: Held, that the place where the acci-
dent happened might properly be taken as an extension of the I.C.R. and
therefore was to be regarded as a public work within the meaning of d.
20 (c) of R.S.C. 1906, c. 140.
Lefrancois v. The King, 11 Can. Ex. 252.
NEGLIGENCE OF FELLOW SERVANT OPERATION OF RAILWAY DEFECTIVE
SWITCH PUBLIC WORK.
In consequence of a broken switch, at a siding on the I.C.R. (a public
work of Canada), failing to work properly although the moving of the
crank by the pointsman had the effect of changing the signal so as to indi-
cate that the line was properly set for an approaching train, an accident
occurred by which the locomotive engine was wrecked and the engine driver
killed. In an action to recover damages from the Crown, under Art. 1050
C.C. (Que.): Held, affirming the judgment appealed from (Armstrong v.
The King, 11 Can. Ex. 119), that there was such negligence on the part
of the officers and servants of the Crown as rendered it liable in an action
in tort; that the Exchequer Court Act, 50 & 51 Viet. c. 10. s. 16 (c), im-
posed liability upon the Crown, in such a case, and gave jurisdiction to the
GOVERNMENT RAILWAYS. 443
Exchequer Court to entertain the el aim for damage*; and that the defence
that deceased, bavins obtained satisfaction or ""df^f" within the mean-
ing of Art. 1056 C.C. (Qoe. i, by reason of the annual contribution made
bj the Railway Department towards the I.C-R. Employees' Relief & In-
surance Assn.. of which deceased was a member, was not an answer to
the action. [Miller T. Grand Trunk Ry. Co..  A.C. 187, followed.)
The King T. Armstrong, 40 Can. S.C.R. 229.
[Followed in The King v. Desrosiers, 41 Can. S.C.R. 71.]
TO EJCPLOTEE - L0KD CAMPBELL'S ACT - EXONERATION FO* TJAWfl.TTY
In s. 50 of the Government Railways Act. R.S.C.. 1886, e. 38, providing
that "Her Majesty shall not be relieved from liability by any notice, con-
dition or declaration in the event of any damage arising from any neg-
ligence, omission or default of any officer, employee or servant of the
Minister."' the words, "notice, condition or declaration,"'" do not include
a contract or agreement by which an employee has renounced his right
to claim damages from the Crown for injury from negligence of his fel-
low servants. [Grand Trunk Ry. Co. v. VogeL 11 Can. S.C.R. 612, dis
approved.] An employee on the Intercolonial Ry. became a member o:
the I.C.R- Relief and Assurance Assn.. to the funds of which the Govern-
ment contributed annually $6.000. In consequence of such contribution
a rule of the Association provided that the members renounced all claims
against the Crown arising from injury or death in the course of their
employment. The employee having been killed in discharge of his dnty
by negligence of a fellow servant: Held, reversing the judgment of the
Exchequer Court. 6 Can. Ex. 276, that the rule of the Association was an
answer to an action by his widow under Art. 10-56 C.C. (Qne.i to recover
compensation for his death. The doctrine of common employment does
not prevail in the Province of Quebec. [The Queen T. Filion. 24 Can.
S.C.R. 482. followed.]
The Queen v. Grenier. 2 Can. Ry. Ca*. 409. 30 Can. S.CJL 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 By. Co./ 34 Can. S.C.R. 45 r 3 Can. Ry. Cas. 147.]
OPEN SWITCH Are RKAKES CJOSTWEITOBT NEGLIGENCE PRESCRIPTION
I -\TEVl PIION-
An injury to a brakeman on a train of the I.C.R.. resulting from the neg-
ligence of the employees of the railway in leaving a switch open without
warning, is actionable against the Crown under s. 20 of the Exchequer
Court .Act. The suppliant having himself been guilty of contributory
negligence in failing to have on the air brakes, as required by the rules.
the doctrine of faute commune was applied ami the damases assessed ac-
cordingly. 2. The doctrine of fellow servant is not in force, in the
Province of Quebec. 3. The prescription for the filing of a petition of right
ia interrupted by the deposit of the petition with the Secretary of State.
Dionne v. The King, IS Can. Ex. 88.
NEGLIGENCE YARD Isxuxr TO TBACKMAX SHI MING APPLIANCES SIG-
The Crown is not responsible for the death of a trackman run over by
an engine carefully backing into a yard of the I.CJL, not occasioned by
the negligence of any officer or servant of the Crown in or about the
operation of the railway, within the meaning of s. 20 (f) of the Ex-
chequer Court Act. but brought about by the negligence of the deceased
in having failed to keep an especially good lookout for train signals as
444 GOVERNMENT RAILWAYS.
required by the rules. S. 35 of the Government Railways Act, requiring
the stationing of a person in the rear of a train moving reversely, and
the rules governing the running of trains, do not apply to shunting engine*
in a railway yard. The fact that the engine attending to the shunting had
no sloping tender and no footboard and railing was immaterial under the
Cantin v. The King, 18 Can. Ex. 95.
NEGLIGENCE EMPLOYEES' RELIEF FUND TEMPORARY EMPLOYEE CONTRACT
OF SERVICE ESTOPPEL.
An agreement by a temporary employee of the I.C.R., as a condition to
his employment, to become a member of the Temporary Employees' Re-
lief and Insurance Assn. and to accept the benefits provided by its rules
and regulations in lieu of all claim for personal injury, is perfectly valid
and is a bar to his action against the Crown for injuries sustained in the
course of employment. By accepting the benefits he is estopped from
setting up any claim inconsistent with those rules and regulations. [Mil-
ler v. Grand Trunk Ry. Co.,  A.C. 187, and Saindon v. The King, 15
Can. Ex. 305, distinguished; Conrod v. The King, 49 Can. S.C.R. 577,
Gingras v. The King, 18 Can. Ex. 248, 44 D.L.R. 740.
ACCIDENT TO WORKMAN REPAIRING CARS FAILURE TO OBSERVE RULES
Samson v. The King, 15 Can. Ex. 75.
REGULATIONS OPERATION OF TRAINS NEGLIGENT SIGNALING FAULT OF
FELLOW SERVANT COMMON FAULT BOARDING MOVING TRAIN DIS-
OBEDIENCE OF EMPLOYEE VOLUNTARY EXPOSURE TO DANGER.
By a regulation of the I.C.R., no person is allowed to get aboard cars
while trains are in motion. Without ascertaining that all his train crew
were aboard, the conductor signalled the engineman to start his train from
a station, where it had stopped to discharge freight. One of the crew, who
had been assisting in unloading, then attempted to board the moving train
and, in doing so, he was injured: Held, that the injury sustained by the
employee was the direct and immediate consequence of his infraction of the
regulation which he was, by law, obliged to obey and not the result of the
fault of the conductor; that by disobedience to the regulation, the employee
had voluntarily exposed himself to danger from the moving train; that the
negligence of the conductor in giving the signal to start the train was not
an act for which the Government of Canada could be held responsible and