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Les diagrammes suivants illustrent la m^thode. rata aiure, J ax 1 \ .imM^f IWU^ ^8t ij:^!^ -IIT THE Supreme Court OF British Columbia On Appeal to the Full Court. in«;TAVKE;N JOHN P. BACKUS, 'laintift". AND THE CANADIAN PACIFIC RAILWAY COMPANY, > Defendants. \ CASE ON APPEAL. THEODORK DAVIE, Apjent for W. NORMAN BOLE, Solicitor for Pldintifi". ROBKRT EDWIN JACKSON, Solicitor for Dcfendunts. VICTORIA, B. C. 'thk colonist" hteam printiko hou.se, 1888. »^-!'r-" I IB % IIT THE Supreme Court of British Columbia On Appeal to the Full Court. HK/I NVKKN JOHN P. BACK ITS. AND THK C^ANADIAN PACIFIC RAILWAY COMPANY Plaintifl Dt'tVnilduts. CASE ON APPEAL. THEODORE DAVIE, Apfent for VV. NORMAN BOLE, Solicitor for Pla ntiH" ROBERT EDWIN JACKSON, Solicitor for Duf I'mhint VICTORIA, B. C. "THK colonist" STEAM l-HINTIKO HOUSE, 1888. INDEX Slicii't StHteiiieiit iif (.'iisc ;i Pi.KAi>iN«,s : — StHtcinent of ClHim 15 StHteintjiit of Defence (").(; Demurrer o Order for L«ive to Ufply aiul Di'iimr i\ Heiisoiia for Over-ruliiij^ Deimirrer (i-H <)filer Ovor-riiliiij/ Demurrer jj Notice of Ajtpeiil to Full ("oun ', , . <) Defemlants Cross N'otii'o of .\|i|(i'al <) 199454 Ii] ttie ^upifeme Gourt of British Golumbia. On Appeal to the Full Court. MKTWKKN JOHN \'. IJACKUS, AND THE CANADIAN PACIFIC; RAILWAY COMFAXV, Plairititt; Dot'eiKljmts. 10 js^f:e':eij^Xj boois: STATEMENT (>K CASE. This is ail Appeal to tin- Full Court from tlio order of the HonoraMe Mr. Ju.stico ('rea.se, dated the Hth. day of Jauuary, A. D. IHHH, over-ruling the Plaiutitt's Demurrer to the 4tli. para<,'raph of the Defenilants' Statement of Defence. The Writ of Sumiiion.s in this action was issued on the 22ml. day of April, 1.SN7. The Plaiiitirt" delivered his Statement of Claim on the 2!)th. day of July. 1887. The Statement of Defence! was delivered on the l.ith. day of October, 1887. On the 24th. day of October, 1887, the Honoralile Mr. Justice Ocase made an order allowing the Plaintitl'to reply and demur to paragraph 4 of the Statement of Defence. On the same day the Plaintiff replied and demurred to the said paragraph accordingly. 20 The Demurrer was argued before the HonorableMr. Justice Crease on the 1st. .lay of November, 1887. On the !)th. day of January, 1888, the Honorable Mr. Justice Crease delivered Judg- ment over-ruling the Demurrer, and the Order now appealed against was entered on the same day. On the (Jth. day of Feltruary, 1888, the Plaintifl" served Notice of Appeal tothisCoutt, : and on the .same day the Defendants' served a Cro.ss Notice of x\ppeal. ki F L E .A. 3D I ]sr a- s ^ u STATliMKNT OK CLAIM. Writ issued 22ii tho said Kailwav fi'oni a i-i-rtain point . th< said main I'Mine to the City of .\<\v Wvstniinstfr in the said Province, and v ••• running trains fo; the purpose of such construction from the said main lino on to the said liruncli and bacii. ;{. The J. lint at whicli tin- said la'amdi line ilivi-r-vl from the said main line was known as th.- junction of the New Westminster iirancii: and al tlie saiil jioint a switdi was constiueted fvjr the purpose of turninjj; tlie trains passing over the roud from tlie main line to the laaneli or from the liram-h to the main line as occasion mi^ht recpiire. 4. It was the duty of the Defendants' in onler to protect tlieir servants and workmen opcratin'gf the .said traiiis to keep a properly constructed switch at the .said points of junction at ail times .securely locked, and to keep Dw niovahle mils of the said switch propi;rly sT>iked, and to '• o proper sii^nials attached to or provided for u.se in connection vvitli the -Osaid switch. '). On the 1 2th July, ISMO, and for some time previously, the PlaintiH" was en^ra^'ed in the employ of the Defemhuits' as pilot on a certain engine attached to one of the Defendants' trains ruiniing over the .said Railway from the main to the liranch li ne. _ (i. It was the duty of tlie Plaitititf to accompany the engineer upon the .said engine as Hudi pilot, and in pursuance of his .said ^«i« 5 was not securely locked in such position that an enj,'ino cuuM not pass over the same with safety, the said eriifine, in passing over tlu- said swith was thrown from tlie rails, and after rininini,^ ahout .'{0 yards on tin' ground was ditched and tin-ned nearly over. y. By reason of the premises the Plaintitf was violently thrown from the said engine and severe!}^ scahled ami lilinded and otherwise injured, and was permanently disaliled ami rendered unfit for the pursuit of his ordinary avocations, and sutt'ereil, and still suffers great pain of hody and mind; and Plaintitf incurred great expense for surgical and medical attendance, and was otherwise greatly injured. And the Plaintitf claims 820,000. 10 The Plaintilf proposes that this action should he tried at Victoria. Delivered the '2i)th. day of July, A. 1). I.S«7. By THKODOllK DAVIE, Corner of Bastion and Langley Streets, Victoria, Agent for W. NOllMAN BOLE, Columbia Street, New Westminster, Solicitor for Plaintifl". STATEMENT OF DEFENCE. 1. The Defendant does not ailmit paragraphs 4, ."), G, 7, >S and !l of the Plaintitl's 20 Statement of Claim. 2. The Defendants' are not guilty of negligence as alleged. 8. The negligence if any there was as charged in the 7th. paragraph of the Statement of Claim and by reason of which the alleged injuries were sustained was the negligence of a fellow .servant or fellow servants of the Plaintifli's in the employ of i\w Defendants and therefore the Defendants' submit that they are not liable in respect of such injuries. 4. At all events the Defendants' say that the injuries of the Plaintitf (if any) were sustained by him by reason of the Defendants' Railway and were .sustained more than (i nionths before the commencement of this action and under the Consolidated Railway Act, 1879, C. S. C, c. 100, sec. 27, the Plaintitf was precluded from bringing an action against W the Defendants in respect of his .said injuries. 5. The Defendants say that Plaintiff was at the time of the alleged accident working on the said engine as fireman and not as pilot as alleged. (i. The Defendants saj' that the switch in question herein was properly constructed. 7. The Plaintiff was guilty of contributory negligence. ■¥ Di-liveretl tliis lotli. duv of Octoher, A. D. I-S87, I'V To W. N. BOLE, Esq., Q. C, Solicitui' t'oi- Pliiintiff. ROBERT EDWIN JACKSON, Of Bastion Street, Victoria, Solicitor for Defemiants'. ORDER FOR LEAVE TO REPLY AND DEMUR. Upon the application of the Plaintirt" ami "P"" leadiiiu; the plea(lini,'.s in this action, upon hearintr Mr. Bodwell, of- Counsel for the Phiintiff, and Mr. ?Iohncken, of Counsel for the Defendants, I J)o Okdkh that the Plaintiti" have leave to reply and deuuir in this action 10 the followinjf reply and dtMuurrer to paragraph 4 of the Statement of Defence, namely : A denmrrer that the limitation pleaded by the Defendant does not apply to an action such as this present one; and a reply that the damage sustained hy the Plaintifi' wa s a contin uing , " sec. 27, the Pluintifi' was preeiudeil from tii'inLfinjf an aetion apiinst tlie Defendants' in " respeot of the said injuries." Tlu' section alioxe icferriMl to reads as follows: "All "actions or suits for indennnty foi- any damage or injury sustained Vj y reason of the Railway sliall he connnenced within six months after the damage is sustained, or, if a " it)ntn>uation of dama>re, within six months next after the doiny:, or committing of sucli 10 "damage ceases, ami not afterwards; and the Defendants may plead the general issue, and "give this act and the special act and the special mattei- in evidence at any trial to he had "thereupon, and may prove that the .same was done in jmrsuance of, and hy the authority " of this act and the special act." As the wording of this last clau.se might l)e construed to limit the application of the .seetion to cases where the injury was caused hy something which was to lu' done in iiursuance of and hv the authority of this act, and there are different kinds of damage some of which, particularly those of a personal nature, e. g., a broken leg, or body crushed which could not well he saiil to have heen " in pursuance of ami "iider the authority of the act" leave was given to I'laintitt" to dennir, which was accordingly done in the following form : "The I'luiiititl' dennirs to the matter alleged in •20 " paragraph 4 of the Statement of Defence on the ground that the said section of the said " Statute oidy applies to actions for damages occasioned hy the Railway Company in the "exercise of the powers given them for enahlii.,, them to construct and manage thi'ir " Railway, and does not aj)ply to actions similai' to the present one, and on othei' grounds 'sufficient in law to sustain this deunirrer." All that I have said of cour.se pre-supposes, as the fact appears to be, that the present action was not I nought within six months after the accident which caused the injury. The demurrer wjis .iigued to-day by Mr. Drake, Q. C, on behalf of the Defendants', and l)y Mr. E. liodweil on behalf of the Plaintiff. Upon examination I have not been able to find any Kiiglish ca. e-. which bear on this point, although there are numerous Canadian cases which treat i .• suliject, and on which :}0 decisions have been rendered by .several eminent Judires in Oiitaiio, but none of these are appai-ently exactly in point. The reason is that the iuiglisli Statutes on the subject of limitation of actions in cases of Railway injuries are worded differently from tho.se of ("anada, and when imported into Canada, as Lord CampbeH's Act, called in Ontario the " Accidents' Act," giving personal representatives the powei- to sue for damages and death caused by negligence. They have been