pany acquired its franchise and laid its tracks on such highway it was *
mere "mud road" lying beyond but in dose proximity to the limits of a
large and rapidly growing city; since the word 'tracks" as used in s. 3
must be given its widest meaning so as to include not only the rails thereof
but also that part of the highway occupied by the railway itself. The pow-
er of the Ontario Railway and Municipal Board, under s. 3 of 10 Edw. VII.
(Oat. i c. S3, to require a street railway not constructed under an order of
such Board, to pave between its rails and outside thereof, is not affected by
c. 54 of 1 Geo. V. (Ont.), which is applicable only to such railways as may
have been constructed under an order of such Board. On requiring a street
railway company to pave between and outside of its rails the Ontario Rail-
way and Municipal Board should prescribe the materials to be used, and not
leave it to the determination of the engineer of the Board in the event that
the city and the railway company cannot agree in respect thereto.
Re Toronto and Toronto A Suburban Ry. Co.. 16 Can. Ry. Cas. 65. 29
O-L.R. 105, 13 DJLR. 674.
DA\GEROCS PLACING OF POLE WAST OF LIGHTS COLLISION LIABILITY
XBGUGESCE.
A street railway company is not liable for injuries resulting from a col-
lision of an automobile driven at night with a wire pole erected between
the tracks, where the placing of the pole was done in pursuance of a
municipal by-law and under the supervision of the city engineer, and there
being mo municipal regulation as to lighting the pole. [Weir T. Hamilton
Street Ry. COL, 32 OJJR. 578, 22 D.T.R 155, reversed.]
Hamilton Street Rv. Co. T. Weir, 19 Can. Ry. Cas. 233. 51 Can. S.CJL
506: 25 DXJL 46.
OFCXATIDX BT 3nr\icirALiTT GOOTED BAIL XBGLIGESCE X
The use of a grooved rail at street intersections by a municipal corpora-
tion authorized by statute to build and operate a street railway, is not neg-
ligence, such a rail being in common use and necessary for its purpose.
Ntithu, in the use of such a rail, can the corporation be deemed to main-
tain a public nuisance, for the legislature, in authorizing the conetrue-
QUL Ry. I* Dig. 43.
074 STREET RAILWAYS.
tion and operation of the railway, must be taken to have authorized the use
of such rails as were necessary for its reasonable operation.
Regina Cartage Co. v. Regina, 29 D.L.R. 420.
TRACKS ALTERATION OF GRADE MUNICIPAL REGULATION SPECIFICATION.
Where the pattern of rails laid by a street railway company is ap-
proved by the municipal authorities, a removal of the tracks by the mu-
nicipality for the purpose of altering the grade of the street does not give
it authority to order the company to replace them with rails of a differ-
ent pattern, but it may require the company to keep its tracks level with
the altered grade on a sufficient foundation although it cannot require the
use of any particular foundation.
St. John Ry Co. v. St. John, 24 D.L.R. 596.
AGREEMENT WITH CITY CONSTRUCTION CLAIM OF CORPORATION TO RECOV-
ER MONEYS EXPENDED IN REMOVING SNOW AND ICE FROM RAILED STREETS
LIABILITY OF STREET RAILWAY COMPANY JURISDICTION OF COURT
EXCLUSIVE JURISDICTION OF ONTARIO RAILWAY AND MUNICIPAL
BOARD.
The Court has jurisdiction to entertain an action to recover a sum which
the city was compelled to expend in removing snow and ice from certain
streets in consequence of a breach of contract and negligence on the part of
the company. The Ontario Railway and Municipal Board has not exclusive
jurisdiction, under s. 22 of the Ontario Railway and Municipal Board Act,
R.S.O. 1914, c. 186. The city is not compelled to make an application to
the Board, under s. 21, for redress in respect of something that the
company ought to have done and failed to do. S. 5 of "An Act respecting
certain matters pertaining to the City of Toronto," 63 Viet. c. 102 (Ont. )
is not repealed by the Ontario Railway and Municipal Board Act.
Toronto v. Toronto Ry. Co., 42 O.L.R. 603.
AGREEMENT WITH CITY CORPORATION NEGLECT OF RAILWAY TO REMOVE
SNOW AND ICE.
Under ss. 21, 22 of the Ontario Railway Municipal Board Act, R.S.O.
1914, c. 186, the defendant company is liable for expense incurred by the
plaintiff in removing snow and ice from the streets of the city, which it
was the duty of the defendant company to remove. The refusal of tlie
plaintiff's engineer to instruct the defendant company as to where such snow
should be deposited does not release it from its liability for nonreinoval.
Toronto v. Toronto Ry. Co., 46 D.L.R. 435, 24 Can. Ry. Cas. 255, 44 O.L.R.
308.
C. Fares; Car Service.
EXTENSION OF RAILWAY TIME TABLES OPEN CARS HEATING NIGHT
CARS.
Under the agreement between the plaintiffs and defendants, which is set
out in 55 Viet. c. 99 (Ont.), the right to determine what new lines should
be established and laid down is vested in the city, and applies as well to the
streets within the city as it existed at the time of the making of the agree-
ment, as to the streets in the territory from time to time brought within it ;
and for the company's failure to establish and lay down such new lines, the
city is not limited merely to the right provided for in the agreement of
granting such privilege to others. The right, under such agreement to set-
tle the time tables and to fix the routes of the cars, to determine when open
cars should be taken off in the autumn or resumed in the spring, and as to
STREET RAILWAYS 675
when and bow ears should be heated. is for the dtj engineer,. subject to
the approval of the city counciL The citr bare BO power to compel the
company to continue to rm after midnight any car which, having started
before midnight, cannot in due course finish its route by that time. On a
iprriil ease stated in an action only such questions vffl be answered as
must necessarily arise m the action. The Court, therefore, in view of 63
Vk*. e. 102, ss. 1 and A (O.K being made applicable to the city declined to
answer a question raised in a special ease as to the right of the city to
have specifically peifmmcd those provisions of the agreement herein
found in its favour: and an expression of opinion previously given against
granting each specific performance. following Kingston v. Kingston ESec.
Ry. Co. (1898K 5 A.R. (Out-* 46. was withdrawn.
'Toronto r. Toronto By. Co_ 4 Can. By. Cas. 139, 9 O.LR. 333.
[Varied in 10 O.LIL 637. 5 Can. Ry. Cas. 39: reversed in 37 Can. S-CJL
430; 3 Can. Ry. Cas. 30: varied. [1907] JLC. 313; approved in Toronto v.
Toronto Ry. COL. [1910] JLC. 31: followed in Toronto v. Toronto Ry. COL,
11 O.LJL 103; Montreal Street Ry. Co. T. Recorder's Court. 37 Cum. &CJL
317; Toronto v. Toronto Ry. t_x. 1 O.U.R. 334: referred to in Can. North.
Ry. Co. T. Robinson. 43 Can. S.C.R. 410: relied on in Toronto Ry. Co. T. Tor-
onto, 19 OJLR. 396; Robinson T. Can. Northern Ry. COL, 19 Man. L.R. 316.]
TIME TABLES ROCTES OPE*
Upon an appeal by the defendants and a cross-appeal by the plaintiffs the
judgment of Anglnu J_ reported 9 OJ-R. 333. 4 Can. Ry. Cas. 139. as to
the construction in certain respects of the agreement bet* ecu the City of
Toronto and the Toronto Ry. Co. was affirmed except as to the running of
night cars, the Court of Appeal being of opinion, reversing the judgment
below on this point, that a car which starts on its route before midnight
must finish its route even if it has to run after midnight to do so.
Toronto T. Toronto Ry. COL. 3 Can. Ry. Cas. 39. 10 O.LJL 637.
[Reversed in 37 Cnm. 8LCJL 430. 3 Can. Ry. Cas. 30.]
USE or HKHWATS CAB sexncc: TTME TABLE*.
Except where otherwise ^peciaUy provided in the agreement between the
Toronto Ry. Co. and the City of Toronto set forth in the schedule to c. 99
of the statutes of Ontario. 55 YietL. in 1S9. the right of the city to de-
termine, decide upon and direct the establishment of new lines of tracks an!
tramway service in the manner therein prerrild. applies only within the
territorial limits of the city as consTitutcd a; the date of the contract.
Judgment appealed from f 10 OJLR. 637, 5 Can. Ry. Cas. 39>, reversed,
Gironard, J_ dissenting. The city, and not the company, is the proper
authority to determine, decide upon and direct the establishment of new
lines, and the service, timetables and routes thereon. Judgment appealed
from fliimnl Sedgewiek. J n dissenting. As between the contracting par-
ties, the company, and not the city, is the proper authority to determine, de-
cide upon and direct the time at which the use of open cars shall be dis-
continued in the Autumn and resumed in the Spring, and when the ear*
nbmilii be provided with heating apparatus and heated. Judgment appealed
from reveiied. Gironard. J_ dissenting. Upon the failure of the company
to comply with requisitions for extensions as provided in the agreement, h
has no right of action against the city for grants of the privilege to others:
the right of making such grants accrues ipso facto, to the city, but is not
the only rtmtdj which the city t~ entitled to invoke. Judgment appealed
from ilii mi il. Sedgewiek. J_ dissenting. Cars starting out before midnight
as day-cars may be required by the city to complete their routes, ah bough
676 STREET RAILWAYS.
it may be necessary for them to run after midnight or transfer their pas-
sengers to a car which would carry them to their destinations without pay-
ment of extra fares, but at midnight their character would be changed to
night-cars and all passengers entering them after that hour could be obliged
to pay night-fares, Sedgewick, J., dissenting.
Toronto Ry. Co. v. Toronto, 5 Can. Ry. Cas. 250, 37 Can. S.C.R. 430.
OPERATION OP CABS FENDER "FKONT" OF MOTOR CAB PENALTY.
By 1 Edw. VII. c. 25, s. 1 (Ont.) it is provided that a street railway com-
pany, when operating any portion of their line by means of electricity,
shall use "in the front of each motor car a fender": Held, that what is
meant by the "front" of the car is that end of it which when the car is in
motion is the furthest forward, that is to say, furthest forward, in the
sense that it would first meet a person or an object moving in the oppo-
site direction; and the defendants operating a car for a distance of twelve
hundred feet with the fender at the back instead of the front, as so de-
fined, were liable to the penalty prescribed by the statute. Judgment
of the County Court of York, affirmed.
Toronto v. Toronto Ry. Co., 5 Can. 15y. Cas. 234, 10 O.L.R. 730.
NEWLY ANNEXED TERRITORY STOPPING PLACES RIGHT TO FIX DETERMINA-
TION OF ENGINEER.
By s. 14 of the agreement entered into between the plaintiffs and defend-
ants, set out in 55 Viet. c. 99 (Ont.), the defendants are required to estab-
lish and lay down new lines and to extend the tracks and street car service
on such streets as may be from time to time recommended by the city en-
gineer and approved by the city council within such period as may be fixed
by by-law to be passed by a vote of two-thirds of all the members of the
council ; and all such extensions and new lines shall be regulated by the
same terms and conditions as relate to the existing system, etc. A recom-
mendation was made by the city engineer to the city council that a double
line of tracks should be laid down and the car service extended on the con-
tinuation of one of the streets in the city, and a by-law was passed duly
approving thereof and fixing the date for such service, of which the defend-
ants were duly notified. The continuation of said street was in territory
brought into the city subsequently to the entering into of the agreement:
Held, that the agreement applied as well to streets brouglit within the city
subsequently to the entering into of the said agreement as to those then
within its limits. [Toronto v. Toronto Ry. Co. (1904), 5 O.W.R. 130, af-
firmed by Privy Council, 42 C.L.J. 237; Toronto v. Toronto Ry. Co. (1904).
9 O.L.R. 333, 10 O.L.R. 057, followed.] Held, also, that it was not
essential that the city should pass a by-law as required by s. 10
of 2 Edw. c. 27 (O.) which provides that prior to the passing a
by-law authorizing any electric railway company to lay out or con-
struct its railway on, upon or along any public highway, road, street,
or lane, notice must be given similar to that required by s. 032
of the Municipal Act, for that section only applies to those electric
railways which come within R.S.O. 1897, c. 209, and had no applica-
tion to the defendants. The by-law for the laying out and construction of
the extension was passed on the 10th April. 1905, while the statute for the
annexation of the territory in question was not passed until the 25th of
May, 1905; but the Lieutenant-Governor's proclamation annexing the terri-
tory was issued on the 3rd March to take effect on the 10th March. 1905,
to which no objection was ever taken. Held, that the by-law was valid.
By sec. 5 of 03 Viet. c. 102 (Ont.) it is provided that if the railway com puny
neglect or fail to perform any of their obligations under the Act and the
STREET RAILWAYS; 677
agreement, and an action is brought to compel performance the Court be-
fore whom the action is tried shall, notwithstanding any rule of law or prac-
tice to the contrary, enquire into the alleged breach, and in ease a breach is
found to have been committed, shall make an order specifying what things
shall be done by the defendants as a substantial compliance with the Act
and agreement;* which shall be enforeible in the same manner, etc., as a
mandamus. Held, that an order could be made specifying what was neces-
sary to be done to constitute a substantial compliance with the agreement.
; Kingston r. Kingston Cataraqui St. Ry. Co. (1393}, 25 AJL (Ont-f 462.
specially referred to.] Held. also, that the corporation could enforce the
laying out of such extension notwithstanding the option given by a. 17 of
the agreement to grant to another person or company the right of laying
.town lines on streets, after failure of the defendants, though duly notified,
to do so. Held. also, that the engineer for the time being and not the en-
gineer who held office when the agreement was entered into is the one re-
ferred to therein, and that he does not act in a judicial capacity but as the
executive officer of the corporation", to whom he must make his recommenda-
tion, which the council may approve or reject as they see fit. By s. 26 of
the agreement it is provided that the speed and service necessary on any
main line, part of same or branch is to be determined by the city engineer
and approved of by the council: and by s. 39 it is provided that the cars
shall only be stopped clear of cross streets, and midway between streets,
where the distance exceeds 600 feet. Held, that the regulation of the places
at which cars are to stop to take on and let off passengers is part of the
>errice within s. 26, and. therefore, subject to the limitations of s. 39, the
defendants might be required to stop wherever the city engineer and city
council might agree in requiring them to do so. The engineer reported to
the council recommending that the cars should be required to stop at cer-
tain specified points, and his report was adopted by resolution of the coun-
cil. Held, that this was a determination and not mm.lv a
of the engineer, for it must be assumed that before making his
da t ion he had determined the matter so far as he could : and that it was not
essential that the adoption of such recommendation should be by by-law.
Toronto T. Toronto Ry. Co., 5 Can. Ry. Cas. 278, 11 O.L.R." 103.
[Affirmed in 12 OJJR. 534, 6 Can. Ry. Cas. 381 -. followed in Black T. Win-
nipeg Efcc. Ry. Co., 17 Man. LR. 84,* 6 W.LJL 238.]
XEWLT AXXEXED TERRITORY STOPPING PUCES RIGHT TO nx DETEMXXA-
nox or EXGESEER,
S. 14 of the agreement entered into between the plaintiffs and defend-
ants, set out in 55 Viet. c. 99 f Ont.) whereby the defendants are required to
establish and lay down new lines and to extend the tracks and street car
service on such streets as may be. from time to time, recommended by the
city engineer and approved by the city council, does not apply to territory
which was not within the limits of the city at the date of the agreement :
but has subsequently been annexed to and become part thereof. [Toronto
Ry. Co. T. Toronto. 37 Can. S.C.R. 430 I reversing the judgment of the Court
of Appeal, 10 OXJL 657 1 , followed.] By s. 26 of the agreement the ~spe*>l
and service" necessary on each main line, part of same, or branch, is to be
determined by the city engineer and approved by the city council: and by
s. 39 the cars shall only be stopped clear of cross streets and midway
between streets, where the distance exceeds six hundred feet: Held, sub-
jeet to the limitation of section 39. that the regulating of the places at
which cars shall be stopped came within condition 26 relating to the speed
and service, and was therefore to be determined by the city engineer and
approved of by the council. The engineer made a report to the council
678 STREET RAILWAYS.
recommending that cars should be required to stop at certain specified
points, which was adopted by resolution of the council. Held, that the
engineer did not occupy a judicial or quasi-judicial position between the
parties to the agreement, and was not bound to consult with the defendants
before determining what service should be supplied, and that such report,
though somewhat informally expressed, was a sufficient determination on
the part of the engineer, and that the adoption by resolution was sufficient,
it not being essential that such adoption should be by by-law. Held, also,
that the plaintiffs were entitled to an order restraining the defendants from
running the cars upon their railway, except in accordance with the
determination of the engineer as to the stopping places.
Toronto v. Toronto Ry. Co., 6 Can. Ry. Cas. 381, 12 O.L.R. 534.
EQUIPMENT OF CARS.
A street railway company is obliged to use the best known appliances to
conduct its business with safety to the public, and the use of the ratchet
brake instead of the more modern electric air brake is of itself a fault.
Edmunds v. Montreal Street Ry., 8 D.L.R. 772, 15 Can. Ry. Cas. 19.
CONTRACT WITH MUNICIPALITY BY-LAW INTRA VIBES "WORKMEN'S
TICKETS" "SCHOOL CHILDREN'S TICKETS."
Upon the proper construction of the defendants' Act of incorporation, 36
Viet. c. 100 (Ont.) the amending Act, 56 Viet. c. 90 (Ont.), and the con-
tract and by-law contained in the schedule to the latter Act, the defend-
ants were bound to sell the tickets called "workmen's tickets" upon their
cars to the public, and to receive them in payment of fares at the hours men-
tioned in the by-law, not from working men only, but from the public gen-
erally; and that the provision of the by-law in that behalf was not ultra
vires of the plaintiff's. 2. The aforementioned contract was modified, in
accordance with a subsequent by-law of the plaintiff's, by requiring the de-
fendants, in addition to the other limited tickets, to "give to any child be-
tween 5 and 14 years of age, when going to school, a ticket to go and return
on the date of issue, for five cents." Held, that there was nothing in this
amendment to prevent children, when going to school, from paying their
fares by using workmen's tickets, within the prescril>ed hours. 3. The
plaintiffs could maintain an action for mandamus or mandatory injunction
to compel the defendants to continue to sell workmen's tickets, without add-
ing the Attorney-General as a party representing the public. 4. The defend-
ants, having refused to sell certain classes of tickets upon their cars, or to
accept them from persons from whom they were bound to accept them in
payment of fares, were restrained from running cars upon which these
tickets were not kept for sale, and this restraint was coupled with a dec-
laration that they were bound to sell them on all their cars to all persons
desiring to buy them, and to receive them for all persons in payment of
fares during the hours mentioned in the by-laws. [Kingston v. Kingston,
etc., Elec. Ry. Co. (1897-8), 28 O.R. 399, 25 A.R. (Ont.) 462, distin-
guished.]
Hamilton v. Hamilton Street Ry. Co., 4 Can. Ry. Cas. 153, 8 O.L.R. 642.
[Affirmed in 10 O.L.R. 594, 5 Can. Ry. Cas. 223, 39 Can. S.C.R. 673; fol-
lowed in Re Sandwich East and Windsor & Tecumseh Elec. Ry. Co., 8
Can. Ry. Cas. 125, 16 O.L.R. 641.]
CONTRACT WITH MUNICIPALITY "WORKMEN'S TICKETS."
Held, affirming the judgment of Street, J., 8 O.L.R. 642, 4 Can. Ry. Cas.
153, that the agreement of which the enforcement was sought in this action
STREET RAILWAYS. 679
was intra vires; that by the terms of the agreement the defendants were
bound to sefl on their cars tickets known as "workmen's tickets" or -limited
tickets," ami to receive them from all persons tendering them as fares dor-
ing certain specified hoars of tbe day; that the plaintiffs could maintain
the action without the aid of the Attorney-General; and that performance
of the contract could be enforced by the Court by injunction. [Kingston
v. Kingston, etc.. Bee. By. Co. (1898), 25 JLR. 462. distinguished.]
Hamilton T. Hamilton Street By. Co. {No. 2), 5 Can. By. Gas. 223. 10
OJLB. 5M.
BT-LAW OF MTXICIFAIITT PASSEXCEK FAKES SCHOOL CHILDREN REDTCED
Under a municipal by-law governing a street railway, it was provided
that the ordinary cash fare should be 5 cents, children under five years of
age, not occupying a seat and accompanied by its parent, to be carried
free; and for every child under twelve years of age, except as aforesaid,
the fare should not exceed 3 cents. Tickets were to be issued and sold
at the following rates: Ordinary tickets, six for 25 cents, each ticket
to he taken for an ordinary 5 cent cash fare; children's and school
children's tickets, ten for 25 cents, each ticket to be taken for a 3-eent
fare, as above provided; mill ing, men's special tickets, eight for 25 tents,
to be taken for a 5-cent fare: Held, reversing the order of the On-
tario Bailway and Municipal Board, that tbe children entitled to school
children's tickets were those under the age of twelve years, and not thane
under twenty-one, even though the hitter were actually attending scbooL
Be Sandwich East and Windsor t Tecumseh Bee. By. Co., 8 Can. By.
Cas. 125, 16 OX.B. 641.
FAKES APPROVAL OF TAKIFF BT PAKE COMMISSIONERS.
The Ontario Bailway and Municipal Board, upon an application by the
Board of Trade above-named, made an order compelling the International
By. Co.. owning and operating an electric railway along the bank of the
Niagara Biver from Qneenston to Chippawa, and incorporated by 55 Viet. c.
96 (Ont-i to comply with s. 171 of the Ontario Bailway Act, 1906, by ac-
centing a five cent cash fare for conveying passengers for any distance not
exceeding three miles, etc.: Held, reversing the order of the Board, that the
company came within subs. 5. of s. 171. providing that "this section shall
not apply to a company whose tariff for passenger fares is subject to the ap-
proval of any commissioners in whom are vested any park or lands owned
by the Crown for the use of the public of the Province of Ontario;" and, s.
171 being thus excluded, that the Board has no power, on an application
such as was made in this case, to direct what fares the company nhwM
charge. Tbe effect of the incorporation into the company's Act of s. 31 of
the Bailway Act of Ontario, BJ&.O. 1887, c. 170. was not to abrogate clause
32 of the agreement with the Commissioners for the Queen Victoria Niagara
Fall Park, set out as sen. B to the company's Act. They should be read
together in such a way as to give effect to both: and reading them as sub-
jecting the company's tariff to tbe approval of both the commissioners and
the Lieut. Governor in Council (or the Board substituted therefor) was not
inconsistent with the intention of tbe parties.
Be Niagara Falls Board of Trade and International By. Cot, 10 Can.
By. Cas. 63, 20 O.KB 197.
PASSENGER FAKES AGREEMENT AS TO SPECIAL KATES UXJTST DISCRIMI-
NATION.
A company operating, subject to Dominion authority, a tramway
through several riiifililii adjacent to the city of Montreal, and hav-
G80 STREET RAILWAYS.
ing connections and traffic arrangements with a provincial tramway in
that city, entered into an agreement under statutory authority with one
of the municipalities whereby, in consideration of special privileges con-
ceded in regard to the use of streets, etc., lower rates of passenger fares
were granted to persons using the tramway therein, for transportation to
and from the city, than to denizens of the adjoining municipality with