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A DIGEST 
 CANADIAN CASES 
 
 ■■LA3IKG TO 
 
 RAILWAY, TELEGRAPH, TELEPHONE 
 AND EXPRESS COMPANIES 
 
 Bcine a Disest of "Canadian BaOway Cases," Y<^ 
 1 to 24, toeeClier with deoskms of- the Federal and 
 Pnmncial Courts of Canada, the Judicial Committee 
 of the Prtvy CoancQ on appeal therefrmn, the Board 
 of Railwav C<MBmiaBioners for Canada, and Piorineial 
 Railway Boards, op to the aid of the year 19191 
 
 CROSS REFERENCED AND ANNOTATED 
 
 A. H. O'BRIEN 
 
 Barrister-at^Law 
 
 Late Law Clerk of the House of Commons of Canada; 
 Author of "(yBriai's CMiveyancer." 
 
 TORONTO: 
 
 CANADA LAW BOOK COMPANY, LIMITED 
 
 &4 BAY STREET 
 
 1920 
 

 Copyright, Canada, 1920, by R. R. CBOMARTr, Toeonto. 
 
EXPLANATIONS. 
 
 •TRoard" and 'TUilway Board" — The Board of Raflway 
 C<Hnmissioners for Canada, estabUshed 1903. 
 
 "Railway Committee" — ^The Railway Committee of the 
 Privy Cooncil of Canada, which was superseded, in 1903, 
 by the Board of Railway Commissioners for Canada. 
 
 **Privy Council" — Judicial Committee of the Privy Coun- 
 cfl (Imperial) sitting in London, England. — the final Court 
 of Appeal in Canadian cases. 
 
 '*B.NJL Act"— British North America Act, 1867 (Im- 
 perial). 
 
 "I.C.R." — Intercolonial Railway of Canada (Dominion 
 (Jovemment Railway System). 
 
 '*C.A. Dig." — Canadian Annual Digest of the year which 
 
 f(^OWS. 
 
 "(D) " — Statute of Dominion of Canada. 
 "The Railway Act" — The Railway Act of Canada of the 
 year which follows. 
 
 RAILWAY ACTTS. 
 
 The following are the (General Railway Acts of Canada, 
 in chronological order, up to March 1st, 1920: — 
 
 1851 (14-15 Vict.), c 51, "The Railway Oauses Consoli- 
 dation Act." 
 
 1859 (CJonsolidated Statutes of Canada), c 66, "The 
 Railway Act" 
 
 1868 (31 Vict), c 68, "The Railway Act" 
 1879 (42 Vict), c 9, "The Consolidated Railway Act, 
 1879." 
 
 1886 (Revised Statutes of Canada), c 109, **The Rail- 
 way Act" 
 
 1888 (51 Vict), c 29, **The Railway Act" 
 1903 (3 Edw. Vn.), c. 58, "The Railway Act" 
 1906 (R. S. C), c 37, "The Railway Act" 
 1919 (9-10 (5€o. v.), c 68. "The Railway Act" 
 
 iii 
 
 f 
 
 416320 
 
CASES DIGESTED. 
 
 AU-Aai.] OBioML AaA-Att.] GoIvhm. 
 
 JUhdM T. GPJL Col 513 JLirims r. CJP-R. Co. .. 17i 
 
 Aknw r. C^.B. Co. 386 173. 13*S, *5S. 5J7 
 
 AtUm Tani^ Co. t. Ton*- Aadiws v. R.C. Elrr. Rt. Col C»S- 
 
 to SdbvteB Rt. Co. 332 Mgw t. School Trestecs «i 
 
 Adolpb Lnhcr Cql t. 'Gmt Cal^arr S3 
 
 XortiMn Rt. Col .. T»7 Aatara t. Wahn^ Rr. Co. ... 113 
 
 Aknn t Sopcr t. N<-r Yort: Jkrai^hav r. B.C. Efet. Rr. Col r±f 
 
 Trvt Co. - C3» Am«tnia|r ▼- CiBada Atiaatie 
 
 Aiwlir Mmii^ 4 Rv. Col t. Rt. Co. 23SL 23». ^i$ 
 
 MrDo«^;>U ■ »t - T. C.X-R- Col SC, Sttt 
 
 ASktrta. RaOwar AtL, Re ... 1»4 AnKtrviiQi Cana^ Col t. G. 
 
 AlMiia Traia Scrrire Case . . S43 tjB. Co. i6t 
 
 ASbetta. Uaitrd FanHn t. C Axms ti vm f - ^ aW Janes Bar Rt. 
 
 P.R- C*. 731 Co_ Rt .'.3lk 374 
 
 AOm T. C-P.R. Co. 33* J^rmstroaf t. MrGilriMw «#C 
 
 Alho T. Grfat Xortkra Rr. Artkor t. Ccatral Oatario Rt. 
 
 Co. .". »2 Co. r. 4*1 
 
 Alfred T. G-TJ».R. Col 14. 15 Asrfcer t. O.TJL Co. »» 
 
 ^ T. G.T-P.R. Col 1C2 Ascott t. C«Mptoa «1» 
 
 A^DBM Ceatral 4 Haibaat Bar Askbcip t. C3:.K. Co. 114 
 
 Rt. Co. t. a.T.R. Co. AsUaad Avcav Oossi^ Ca«r 4«» 
 
 7^. 790 Inwi i ' — ' a t .Apprak^ Tanwto 
 
 Ccatral Rt. Col t. TV Rt. Co_ Re 34 
 
 Kia^ . . .' 1*7 JUsiaihoia t. CA'.R- Co. . . Jts*. 
 
 Aksaader t. CJF,K. Col 514 473, 5» 
 
 ABaa T. G.TJS. Co. i47 JltAwoa t. G.TJ6- Oil Ti 
 
 ADca T. C-P.R. Ca. 5(25. 336 Atikokaa Iroa Co. t. CPJL 
 
 • T. Grawi TaUrr Rt. Co. Co. - S15 
 
 1*8. **7 Atkia T. C-P.R. Co. 4*4 
 
 " T. Gfrm We$tcn Rr. Cdl S» Attd»s«» t. G-TJL Co 53* 
 
 AJmomtf Kaitti^ Co. ' Caar, Atkiasoa t. Vaaraorer. TV- 
 Re 744 «oria 4 Easteni Rr. 
 
 AlMoate Kaittia^ Co. t. C. P. Co. .'. S15 
 
 R. Co. etc. (JklwMte Atlaatie 4 Lake 8aperiar Rr. 
 
 Kahtn^ Co. Caw... 744 Co, Re T. 4*? 
 
 ^■■IgiMitioa A gnimim ts, Re '^ t. De Galiadn 51 
 
 3, SS9 Atiaatic 4 North-Wesl. Rt. 
 
 Awncaa Coal 4 Oike Co. t. Co. t. Jodak " . »S 
 
 Hkkisaa Ceatnl Rr. AMtoner Gcaexal for Alberta 
 
 Co. . -^- 59S, 81« ^- ^«««»'y GflWfiaJ 
 
 Aam* T. QKkee Rr, li^ 4 , *• *^*^ \vV . - '^ 
 
 Pff^^f Co^* ffgg Attmer Geaeial tor Britisk 
 
 Aaekor Eftpratar 4 Waieko<Bfe- 
 
 CotaariOa t. C.P.R. Co. 
 
 iB& «te. Cos. t. CJ\-.R. ^**- ^'*' ^^ ^*' 
 
 and C J» JL Cos. 813 
 
 Taaroarer. Vletoria, 
 
 n^n ^-«--> - Eastera, ete., Co. 1+.*. 
 
 neu lelrpfeoae Auoraer Gnwral for Caaada 
 
 . ^*^^^^-A - **^ "'■- fStaadanI Ttwst Oa. 
 
 AadnwB t. C>kJL Go. .. *45. ^ Srmr York «37 
 
 4«». 5©1 -> r. Qwber 4 Suwaar Rt!. 
 
 " T. Tonato, Hawhoa 4 Co. .T *...'. 1 
 
 BoCkId Rt. Co. Attoncr Gcwral for IbJaitofta 
 
 (FarM Cro«<iap " t. Wiaaip^ Elec. Rt. 
 
 Que) 374 Co. 04, <$3 
 
VI 
 
 CASES DIGESTED. 
 
 Att-Bea.] Column. 
 
 Attorney General for Ontario 
 V. Hamilton Street 
 Ry. Co 151 
 
 Atwood V. Kettle River Valley 
 
 Ry. Co 362 
 
 Auger V. Can. Northern Que- 
 bec R v. Co 46 
 
 " V, G.T.R. and C.P.R. Cos. 
 
 597, 753, 803 
 
 Average Demurrage Case 220 
 
 Aylmer Condensed Milk Co. v. 
 
 American Express Co. 774 
 
 Baker Revnolds & Co. v. C.P.R. 
 
 Co 746 
 
 Bacon v. G.T.R. Co 401 
 
 Baggage Car Traffic Rules, Re 45 
 Bale des Chaleurs Ry., Re ... . 487 
 
 Bain v. C.P.R. Co 419 
 
 Baird v. C.P.R. Co 85G 
 
 Barnhill v. Hampton & Saint 
 
 Martins Ry. Co 51 
 
 Balfour v. Toronto Rv. Co. 
 
 562, 701 
 Balgonie Protestant Public 
 
 School District v. C.P. 
 
 R. Co 37 
 
 Ball V. Svdney & Louisberg Ry. 
 
 Co 385 
 
 " v. Wabash Ry. Co 572 
 
 Banbuiy v. Regina ■ . 707 
 
 Bank of Montreal v. Kirkpat- 
 
 rick 635 
 
 Bank Street Subway Case . . . 476 
 Banff Livery & Busmen v. C.P. 
 
 R. Co 649, 650 
 
 Bannatyne v. Suburban Rapid 
 
 " Transit Co 341 
 
 Banque — see Bank. 
 
 Bardgett v. C.P.R. Co 408 
 
 Baril v. G.T.R. Co 358 
 
 Barker v. Pollock 113 
 
 Barnett v. G.T.R. Co 120, 121 
 
 Barr v. Toronto Ry. Co. and 
 
 Toronto 710 
 
 Barrett v. C.P.R. Co 349, 845 
 
 Bartlett v. Winnipeg Elec. Ry. 
 
 Co. and C.N.R. Co. ... 534 
 
 Basanta v. C.P.R. Co 237 
 
 Bate and Ottawa, Re 628 
 
 Bate v. C.P.R. Co 523, 531 
 
 Battle Creek Toasted Corn 
 
 Flake Co. v. Canadian 
 
 Freight Assn 806 
 
 Bay of Quinte Ry. Co. v. 
 
 Kingston & Pembroke 
 
 Ry. Co 584 
 
 Bayly v. Bell Telephone Co. . . 829 
 Beal V. Michigan Central Ry. 
 
 Co 12, 421 
 
 Beaton v. Mabou & Gulf Ry. 
 
 Co. 321 
 
 Bea-Bil.] Column. 
 
 Beaudet v. North Shore Ry. 
 
 Co 297 
 
 Bechtel v. C.P.R. Co 273 
 
 Beck v. C.N.R. Co 71 
 
 Becker v. C.P.R. Co 402 
 
 Begin v. The King 439 
 
 Belanger v. llie King 439 
 
 Bell v. Inverness Coal & Ry. 
 
 Co 238, 272 
 
 " V. Cape Breton Elec. Co. 671 
 
 " V. G.T.Px. Co 174, 186 
 
 " V. Winnipeg Elec. Street 
 
 Ry. Co 712 
 
 Bell Telephone Co. v. Chatham 853 
 " V. C.P.R. Co., G.T.R. Co. 
 and Toronto ( Brock 
 Avenue Subway Case) 855 
 " V. Falkirk Telephone Co. 730 
 
 " V. London 732 
 
 " V. Nipissing Power Co. . . 854 
 " V. Ottawa and Carleton . . 731 
 
 " V. Windsor 731 
 
 " V. Windsor, Essex & Lake 
 
 Shore Rapid Ry. Co. 854 
 
 " V. Zarbatany 732 
 
 Belleville Interchange Tracks, 
 
 Re 492 
 
 Bennett v. G.T.R. Co 546 
 
 Bennetto v. C.P.R. Co 321 
 
 Benning v. Atlantic & N.W. 
 
 Ry. Co 315 
 
 Berliner Gramophone Co. v. 
 Canadian Freiglit 
 
 Assn 750 
 
 Berlinquet v. The Queen 430 
 
 Berlin & Waterloo Street Rv. 
 
 Co. V. Berlin .' . 682 
 
 Bertram v. Hamilton & Dundas 
 
 Street Ry. Co 56 
 
 Bessette v. C.P.R. Co 601. 
 
 Beverly Coal Mine and Hum- 
 herstone Coal Cos. v. 
 
 G.T.P.R. Co 62 
 
 Bickerdike v. Can. Northern 
 Montreal Tunnel & 
 
 Terminal Co 217 
 
 Bickford v. Canada Southern 
 
 Ry. Co 158 
 
 " V. Chatham 618 
 
 " v. Grand .1 unction Ry. Co. 46 
 Bickerdike v. ^lontreal Park & 
 
 Island Ry. Co 22 
 
 Biddeson v. C.N.R. Co 391 
 
 Bienfait Commercial Co. v. C. 
 
 P.R. Co 62 
 
 Biggs V. G.T.R. Co 15 
 
 Bigaouette v. North Shore Ry. 
 
 Co 336 
 
 Billings and Can. Northern On- 
 tario Ry. Co., Re 328, 329 
 Billings V. Gloucester, Ee.... 629 
 
CASES DIGESTED. 
 
 vu 
 
 Ki-Bka.] ColBHa. 
 
 BQlngtoa t. HjuBfltaa Stredt 
 
 Et. Gjl 7« 
 
 Birek Arame EAemiom Cmst 3S8 
 KM T. C-P-R, Co. . . 1»5, 458. 500 
 
 BladL T. Ck%U7 707 
 
 - T. Caaadua Express Co. 103 
 ■^ T. Wmaipc^ EW. Rt. Co. 683 
 
 Nackwood t. CX.R- Co. " 364 
 
 Bfairkwoodss, ete. r. C^\R. Co. 59 
 
 Bbun T. C.PJ8. Cou 117 
 
 Bhik T- G.T.R. Co. »*S 
 
 BbkelT T. Moatrml TninwaTS 
 
 CoL '.. 722 
 
 Biaagfts Co. v. Canadiaa 
 
 Fmgkt A«i»a 74S 
 
 Bliad Rira- Board of Tiade v. 
 
 G. T. «*e_ Cos. S0« 
 
 Block T. Can. Northera Pacifiir 
 
 Kt. Co. 410 
 
 BfaK T. Bed llomitaiB Bt. Ca, 
 
 417, 418 
 
 lajHk T- McKillop 733 
 
 Boards ot Trade of Gah. ett. 
 
 f. Grand Tmnk. Can. 
 
 Plae., ete_ Rt. Cos., 
 
 490. 584 
 Boards oi Trade oi Uoatreal 
 
 aad T<H-jato t. Canadiaa 
 
 Afsa 59S. 810 
 
 Boards of Trade of Westera 
 
 Citie> and Caaadiaa 
 
 llaaniidtiirerr As»i. 
 
 T. CsEadian Frciviit 
 
 Assa. 810 
 
 Bofiard T. Kia^ 33 
 
 Bolaad T. G.T JL Co. «0 
 
 BoUur T. C-P JL Co. 373, 496 
 
 Bole Grain Co. r. C.P.R. Co. . . 100 
 Boadj T. Saadvielk. Windsor k 
 
 AmkastboTf Rj. Co. 724 
 Bonners' Fott Lnmbn* Co. v. 
 
 Great Northeni Rt. Col . . 795 
 
 Boob t. CX-R. Co. ..'. 141 
 
 Booth t. C J*JL Col 518 
 
 Boocliard t. Quebec Rt. Li«:bt 
 
 4 Power Col SOU 
 
 BonHoa t. Peterborougli 630 
 
 Bona^^ T. CJ>.R. Co. 402 
 
 BoatoB T. CJ»-R- Co. 156 
 
 Bovie T. Buffalo. Brantford t 
 
 Goderkii Rt. Co. 81 
 
 Borlbr t. Haliiax k South 
 
 Western Rt. Co. 810 
 
 Bores t. Dmaiaioa Expre^ Co. * aO 
 Bradeabnr;^ ▼. Ottawa Eler. 
 
 Rt. Co. 303 
 
 Bnach Lues C^ JL, Re 55 
 
 KandoB Shi^iers t. CJP. and 
 
 G.T.PJL Co*. 492 
 
 Braat t. CPJL Co. 216 
 
 Bnat milug Cos. Gise, Re.. 744 
 
 Bn-BtL] CohuuL 
 
 Braat Millii^ Gol t. G.TJL 
 Co. flfoaat IGDh^ 
 
 Cos. Caael 744 
 
 Bnatford t. G.T.R. Co. . . 470. 
 
 4.^. 481 
 *■ T. Graad ValleT Ry. Co. 
 
 660. 661 
 Braatfoid Golf k Couatrr Club 
 aad Lake Erie k 
 Xorthem Rt. Col. Re 335 
 ftaatford. Waterloo k Lake 
 Erie Kr. Co. t. Huff- 
 man 159 
 
 Braaiptoa ConaratatioB Ca^e 
 
 821. S±2 
 BramptoB t. G.T. and CJ*. 
 R. Co& (Braaiptoa 
 Intcrdanp Caseii .. 814 
 Bramptda laterchaa^ Case . . 814 
 Bramptoa HiUiBg; Col t. CP. 
 
 R. Co. 816 
 
 BravIeT T. Toronto Rt. Col .. 710 
 
 Brazeau t. C J»-R. . . .* 125 
 
 Brenner t. Toronto Rt. Co. 
 
 562.690. 691 
 Brewer t. Lake Erie k Dt^roit 
 
 RiTer Rt. Co. -»5« 
 
 Bridgeborr t. G.T. and Mi<h- 
 ij*an Central Rt. Coa. 
 
 68. 473 
 
 Brill T. G.T-R- Co. 79. 94 
 
 Brillant t. The Kinp 440 
 
 British American Oil Co. t. C. 
 
 PJL Co. 796 
 
 ^ T. G.T.R- Co. 790 
 
 British Canadian Caaners t. G. 
 
 TJL Co. 771 
 
 British Colombia and Alberta 
 Moniripalities t. G.T. 
 
 PJL Co. 590, 770, 771 
 
 Biiti«h ColuadUa Central 
 Fa imn 'y' Institates t. 
 
 C-P-R- Col 752 
 
 British Cofaunbia Elec Rt. Co. 
 
 T. CrumptoB 505 
 
 ~ ▼. Gentile 543 
 
 " T. Loach 539 
 
 •* T. Stewart 653. 660 
 
 " T. Turner 5CI3. 543 
 
 " T. VancooTer. etc. . . . 147. 
 
 460, 595, 596 
 
 « T. Wilkinson 270 
 
 British Columbia Xew^ Gol t. 
 
 Ex]»v»s Traffic Assa. 807 
 British Columbia Pacific Coast 
 Cities -. C.P.IL Co. 
 (TancouTer Interior 
 
 Rates Casei) 758 
 
 British Columlria Railwaj Act 
 and Can. Xorthcra Pa- 
 cific Rt. Co., Re 313 
 
Vlll 
 
 CASES DIGESTED. 
 
 Bri-Byr.] Column. 
 
 British Columbia Sugar Refin- 
 ing Co. V. C.P.R. Co. 
 
 772, 805 
 
 Brochu V. The King 447 
 
 Brock V. Toronto & Nipissing 
 
 Ry. Co 624 
 
 Brock Avenue Subway Case . . 85.") 
 
 Brockville v. Slierwood 030 
 
 Brook V. C.P.R. Co 407 
 
 Brotherhood of Locomotive En- 
 gineers, Re 253, 587 
 
 Brown v. C.P.R. and C.N.R. 
 
 Cos 128 
 
 Brulott V. G.T.P.R. Co 244 
 
 Brown v, G.T.R. Co 212, 248 
 
 " V. Ix)ndon Street Ry. Co. 561 
 " V. Moose Jaw Elec. Co. . . 711 
 " V. Quebec & Lake St. John 
 
 Ry. Co 825 
 
 Brown Milling & Elevator Co. 
 
 V. C.P.R. Co 322 
 
 Brunelle v. G.T.R. Co 504 
 
 Brussels v. McKillop Telephone 
 
 System 733 
 
 Buckland v. C.X.R. Co 70 
 
 Bugg V. C.N.R. Co 408 
 
 Burkholder v. G.T.R. Co 20!) 
 
 Burlington Beach Commission 
 V. Hamilton Radial 
 
 Elec. Ry. Co 844, 777 
 
 Burlington Beach Case, Re 5!)8, 842 
 Burnaby v. British Columbia 
 
 Elec. Ry. Co. ... 486, 060 
 
 Burns v. Toronto Ry. Co 223 
 
 Burnt District Case, Toronto, 
 
 No, 25 318, 320 
 
 Burman v. Ottawa Elec. Ry. 
 
 Co 717 
 
 Burrard Inlet Tunnel & Bridge 
 
 Co., Re 576, 594, 641 
 
 Burriss v. Pere Marquette Rv. 
 
 Co ;. Ill 
 
 Burrows v. G.T.R. Co, . . 502, 
 
 533, 559, 567 
 Burt V. Dominion Iron & Steel 
 
 Co 480 
 
 " V. Sydney 218 
 
 Burteh v. C.P.R. Co 181 
 
 Burton v. London Street Ry, 
 
 Co .'. 156 
 
 '* V. Montreal Tramways Co. 711 
 
 Bush V. C.P.R. Co ". 369 
 
 " V. Grand Trunk and Camp- 
 bellford, Lake Ontario 
 & Western Ry. Cos. 
 (Bush Road Crossing 
 
 Case) 468 
 
 Bush Road Crossing Case 468 
 
 Buskey v, C.P.R. Co 513 
 
 Byron Telephone Co. v. Bell 
 
 Telephone Co 729 
 
 Cad-Can.] Column. 
 
 Cadieux v. Montreal Street Ry. 
 
 Co ; . 723 
 
 Cairns v. C.N.R. Co 419 
 
 Caldwell v. C.P.R. Co 46» 
 
 Calgary y. C.N.R. Co 454 
 
 Calgary & Edmonton Ry. Co. 
 
 V. MacKinnon . . . 307, 308 
 
 " V. The King 613, 737 
 
 " V. Saskatchewan Land & 
 
 Homestead Co 367 
 
 Calgary Interswitching Case . . 490 
 
 Callan V. C.N.R. Co. 44 
 
 Campbell v. C.N.R. Co. .. 192, 460 
 
 '• V. C.P.R. Co 110, 419 
 
 " V. Nova Scotia Steel & 
 
 Coal Co. .• 187 
 
 CampbcUford. Lake Ontario & 
 Western R. Co. v. 
 
 Camden 454 
 
 " V. Canadian Northern On- 
 tario Ry. Co 232, 610 
 
 Campbellford, Lake Ontario & 
 
 Western Ry. Co., Re 359 
 Canada Atlantic Ry, Co. v. 
 Cambridge, Re . . 623, 
 
 627, 630 
 
 " y. Henderson 455 
 
 " v. Hurdman 269, 271 
 
 " y. Moxley 412 
 
 " v. Ottawa . . 341, 451, 617, 623 
 Canada Central Ry. Co. v. 
 
 Brown, Re 624 
 
 '• y, Murray 157 
 
 " v. Regina 628 
 
 Canada Cheese Box Co. v. Can- 
 adian Freight Assn. . . 7.")4 
 Canada & Gulf Terminal Ry. 
 
 Co. V. Fleet .' . 490 
 
 Canada Southern Ry. Co. v. 
 
 Clouse 370 
 
 " V. Erwin 370 
 
 " v. Jackson 236 
 
 " V. Norvell 7, 299 
 
 Canada Southern Ry. Co. v. 
 
 Phelps 412 
 
 Canned Goods Tolls Case 810 
 
 Canadian Car Demurrage 
 
 Rules Case 220 
 
 Canadian China Clay Co. v. 
 G.T., C.P. and C.N.R. 
 
 Cos 779, 809 
 
 Canadian Condensing Co. v. C. 
 
 P.R. Co 835 
 
 Canadian and Dominion Ex- 
 press Cos. V. Commer- 
 cial Acetylene Co. . . . 585 
 Canadian Fraternal Assn. v. 
 Canadian Passenger 
 
 -Assn 823 
 
 Canadian Freight Assn. v. Cad- 
 well Sand & Gravel 
 Co 772 
 
CASES DIGESTED. 
 
 IX 
 
 Cam-Cam.^ 
 
 CuMdiu Fnig^i Asn. aid 1m- 
 dvitrial Corpocatiauv 
 Re 7e 
 
 r«MiiiaB Frr^t Assl t. Itoa- 
 
 trtml Bouil «f Trade 803 
 
 Caaadwa Fn^^t JksoL t. Wia- 
 ■ipc^ Board of Trade 
 aad Caaadiaa Maan- 
 facturere' A^jSL 130 
 
 Caaadiaa Gavsrmmealt Railways 
 T. itaJ^rmn fCealr's 
 aad Jinld'« Cort Cross- 
 ii^ Ca:$e )i 47± 
 
 CaaadiaB Haadle \Ug. Oa. t. 
 lliftigaa Ceatnl Rr. 
 Col - r. Sl« 
 
 Caaadiaa LaMlmia'g Aaem. t. 
 G.TXLF. awl Cka. 
 Xorthcn Rjr. Go& .. 7<fi2 
 
 GuudiaB ^"~— *— Assa. 
 T. G.T. aad C-PJL 
 Cos. (K^port Tolls oa 
 La^bo-i! mi 
 
 Caaadiaa TtiiilwiaM.a'* Assa. 
 aad Moatzcal Board of 
 Trade t. G.TA Co... S0» 
 
 Ckaadiaa HaaafBctarers Aa^ 
 T. Caaadiaa Fre^t 
 Asia. 1±9. 7m 
 
 Caaadiaa llaaalbctarers Assa. 
 T. Caaadiaa Frei^t 
 4i— flatosvltciuap 
 Batea Casei S13 
 
 Caaadiaa Nortkera Expraa Ca. 
 
 T. Ra$tW«a 41 
 
 Caaadiaa XottiMra Oataria Ry. 
 
 Co. T. C.PJL Co. 491 
 
 « T. G-T. aad C.PJL Co*^ 
 
 (Maakoka Ratc» Ca$e)i «S1 
 
 - T. Holditcli 150, 215 
 
 ' T. lleAaahhr 533 
 
 •▼. Xortfc Bmj »*4 
 
 - T. SMitik 1« 
 
 Caaadiaa Xorthera Pteifie Rf. 
 
 Co. T. AraHtro^. ... 43 
 Caaadiaa XortWra Ftatifie Ry. 
 
 Co. aad B]^B|^HalL Re 390 
 Gaaadiaa Nwtkcra Paofie Rr. 
 
 Co. T. DvMBiaioa 
 
 Glazed Ceaeat Pipe 
 
 Co. 1±, 23. 309 
 
 Guadiaa XortJbeni PSarifie Rt. 
 
 Col aad Fiac^ Re . . r 313 
 Caaadiaa Xortken Pacific Rr. 
 
 Co. t. Kdovaa -tS 
 
 " T. Xev WestKiwtcr . . 41. 633 
 
 - T. TeraoB 42. 43 
 
 Caaada Hortkcta QariMr Br. 
 
 Co. V. Aiyate ail Lam- 
 
 ber Co. It53 
 
 ■ T. Desamrais 23» 
 
 " r. JohasUai 3K 
 
 " r. Moatrcal 4»4 
 
 Caa-Caa.] Coiwaa. 
 
 Caaadiaa Xorthea Oaalba Rr. 
 
 Co. T. Xaad .'. 310 
 
 ^ T. Pafna 3«3 
 
 fkaadiaa Xortkera Rt. Col t. 
 
 Aadenoa ...!.. S4«. 501 
 •^ T. Billings .. 2*. * \ 331. 43i» 
 Caaadiaa Xorihera Rt. io. aad 
 
 Blackvood. Re 3» 
 
 Caaadiaa Xovtbcn Bt. Co. t. 
 
 Bladtaood» et aL »3 59 
 Caaadiaa XortWra Rt. Col aad 
 Board dF * Raihra.T 
 CoauaisnDaers ( Fear- 
 
 iajr Cweli 3*5. 5S)S 
 
 Caaadiaa Xortkera Rt. Co. t. 
 
 C-P-R. Col ..'. 67 
 
 ' T. C-P.R. Cta. (Kafcwr 
 
 CrtkssiBg Gksel SOS 
 
 "^ T. Diploc^ 12S 
 
 ^ T. G.T.R. aad CJ».R- Co*. 
 fBaraaa of EspknuTe^ 
 
 Case»i 59* 
 
 " T. G.TJ8. aad C-P-R. Cos. 
 
 f Mtt^oka Rates Case* 923 
 
 » T. G.T.R. Co. ... 647 
 
 - T. G.T-R. Col (Xortk BaT 
 
 Caseji '. SKDl 
 
 " T. Greea 367 
 
 ~ T. Ketdbesoa 25 
 
 " T. Xaolt 300 
 
 ^ T. On^nee Srlaiol District 
 
 33. 36 
 
 • T. OitsekT 367 
 
 ' ■* T. PsKaicaoj 504 
 
 " T. RobiaMMi . . 57. 58L 305, 
 
 3i», 500 
 
 ■ T. TaTlor 5»7 
 
 " T. Toockette i Forticr . . 36:i 
 
 " T. Wiaaipc^ 43 
 
 Caaadiaa Xcnkera Street 
 
 Crossn^s 395 
 
 Caaadiaa Xorthera Triejrapli 
 
 Co. T. Rostken 41 
 
 Caaadiaa XortWra Wesdtera 
 Rt. Col t. C.P.R. Col 
 
 346. 347. 495 
 " T. Mooce, 25. 27. 311. 3li 333 
 Caaadiaa Oil Co. r. G.T. aad 
 
 C.PJL Cos^ 797 
 
 ~ T. Graad Traak Caa. Par. 
 aad Caa. Xortkera Rt. 
 
 Cos. .'. 76S; 
 
 CWf il'y Pacific Rt. and Ca- 
 aadiaa X<Hrtkeva Rt. 
 Co$v T. Kawaistiqniia 
 
 Power Co. »52 
 
 ' T. R^^naa Board of Trade 
 
 (Retina Toll Case » .. 1$ 
 " T. Re^^iaa B«Mird of Trade 
 
 (R^iaa Toll Ca^» .. 7«» 
 
 - T. -Allaa $S 
 
 - V. Ball 3F1 
 
 • aad Batter. Be 301 
 
CASES DIGESTED. 
 
 Can-Can.] Column. 
 
 Canadian Pacific Ry. and Cana- 
 dian Ry. Cos. V. Blain 
 
 117, 118 
 
 " V. Boisseau 263 
 
 " V. Brown 12(i 
 
 " V. Brown Milling & Ele- 
 vator Co 321 
 
 Canadian Pacific Ry. Co. and 
 
 Byrne, Re 351 
 
 Canadian Pacific Ry. Co. v. Cal- 
 
 gai-y 40, 475 
 
 " V. Canadian Bank of Com- 
 merce 98 
 
 " V. C.N.R. Co 486 
 
 " V. C.N.R, Co. (Falsework 
 
 Case) 70 
 
 " V. Canadian Oil Cos 778 
 
 " V. Carrnthers 396 
 
 " V. Chalifoux 108 
 
 " V. Chatham 228 
 
 " V. Cheeseman 544 
 
 " V. Cobban Mfg. Co 8 
 
 " V. Coley 532, 540 
 
 " V. Coquittan Landowners. 323 
 
 " V. Dionne 532 
 
 '■ V. Eggleston 399 
 
 " V. Fleming 10, 176 
 
 " V. Forest City Paving & 
 
 Construction Co 106 
 
 " V. Frechette 539 
 
 " V. Gordon 321 
 
 " V. G.T.P.R. Co. (Subsidy 
 
 Land Case) 614 
 
 " V. C.T.R. Co 375, 583 
 
 Canadian Pacific Ry. Co. and 
 G.T.R. Co., Re (Len- 
 noxville Crossing 
 
 Case) 608 
 
 Canadian Pacific Ry. Co. v. 
 G.T.R. Co. (London In- 
 terswitching Case) . . 790 
 " V. G.T.R. Co. (Myrtle 
 
 Bridge Case) 70 
 
 " V. Guthrie 372 
 
 " V. Hansen 11 
 
 " V. Hassen 562 
 
 " V. Hav 116 
 
 " V. Hii'irich 193, 533 
 
 " V. Jackson 202 
 
 " V. James Bay Rv. Co. . . 54 
 
 " V. Kerr " " 16, 423 
 
 " V. The King . . 10, 65, 153, 612 
 
 " V. Laehance 206 
 
 " V. Lawson 70 
 
 Canadian Pacific Ry. Co. and 
 Macleod Public School 
 
 District, Re 37, 40 
 
 Canadian Pacific Ry. Co. v. 
 
 Major \ ] 63 
 
 " V. McKeand 259 
 
 " V. Montreal Corn Ex- 
 change Assn 817 
 
 Can-Can.] Column. 
 
 " V. Montreal and Montreal 
 Tramways Co. (Notre 
 Dame Street Bridge 
 
 Case) 471 
 
 Canadian Pacific Ry. Co. v. 
 
 Murphy . . .\ 228, 583 
 
 " V. Nelson & Fort Sheppard 
 
 Ry. Co 12S 
 
 " V. North Dumfries . . 339, 452 
 " V. Notre Dame de Bonse- 
 
 cours 143, 151 
 
 " V. Oakville and G.T.R. Co. 
 
 843, 844 
 
 " V. Oligny 363 
 
 " V. Ontario Department of 
 
 Public Works 653 
 
 " V. Parent . . 142, 522, 523, 544 
 
 " V. Quebec 31 
 
 " V. Quinn 204 
 
 " V. Rol)inson 205, 235, 554 
 
 " V. Rov 201, 416 
 
 " v. Ste. Th^r^se 19, 361 
 
 " V. Saskatoon and Moose 
 
 Jaw Boards of Trade 491 
 
 " V. Silzer 739 
 
 " v. Smith 110, 324 
 
 " and Spanish River Pulp & 
 Paper Mills v. Algoma 
 
 Eastern Ry. Co 818 
 
 " v. Toronto 17, 465 
 
 Canadian Pacific Ry. Co. and 
 
 Toronto, Re 36 
 
 " V. Toronto and G.T.R. Co. 
 ( Toronto Viaduct 
 
 Case) 18, 07, 589 
 
 " V. Vancouver Ice & Cold 
 
 Storage Co 62 
 
 " V. Vancouver Westminster 
 
 & Yukon Ry. Co. 568, 604 
 
 " V. Verdun 35 
 
 " V. Walker 536 
 
 Canadian Pacific Ry. Co. and 
 
 Walkerton, Re 200 
 
 Canadian Pacific B.y. Co. v. 
 
 Waller 369 
 
 " V. Watts 107 
 
 " V. Western Union Tel. Co. 727 
 
 " V. Winnipeg 32, 619 
 
 " V. Winnipeg Elec. Ry. Co. 610 
 Canadian Pacific Rv. Co. and 
 
 York, Re . ." 579 
 
 Canadian Piano & Organ Manu- 
 facturers' Assn. v. Ca- 
 nadian Freight Assn. 129 
 Canadian Press v. Great North- 
 western, etc., Tele- 
 graph Cos 827 
 
 Canadian Portland Cement Co. 
 v. Grand Trunk & Bay 
 of Quinte Ry. Cos. . . 761 
 Canadian Railway Accident Ins. 
 
 Co. y. McNevin 11 
 
CASES DIGESTED. 
 
 XI 
 
 CaB-Cka.] Cofauim. 
 
 CkMdinn Enbber Manoiac- 
 tores T. Canadian 
 
 Frei^t Absb. 755 
 
 Cantin t. Hie Kin^ 444 
 
 Cuiytm City Lumber Co. t. C. 
 
 P JL Co 62 
 
 Car Demiamge Rules (Cana- 
 dian Car Demurrage 
 
 Rules Casel Re 221 
 
 Cardston Board of Trade t. Al- 
 berta Rr. & Irriga- 
 tion Co.' 823 
 
 Garev v. G.T-K. Co. 373 
 
 Carletoo r. Ottawa. 466, 585 
 
 ■" T. Regina 664. 696 
 
 Carlisle t. G.T^ Co. 45 
 
 Carr t. CJ»JL Co. . . aw, 549. 
 
 362, 501. 528 
 
 Carrier t. St. Henri 527 
 
 Carruthers t. C.P.R. Co 396 
 
 •* T. Toronto A York Radial 
 
 Ry. Co 532 
 
 Carry t. Toronto Belt Line Rv. 
 
 Co. '. 227 
 
 Carson v. Weston 71 
 
 Cartage Tolls, Re 751, 818 
 
 Carter v. MonUval t Sorel Rt. 
 
 Co. .'. 636 
 
 Cartier Stop-orer Case 814 
 
 Carty t. British Columbia Elee. 
 
 Rt. Co 204 
 
 Cater v. G.T.R. Co 237 
 
 Caranagfa and Atlantic Rr. Co., 
 
 Re ' 319 
 
 Cedar Dale Crossing: Case 463 
 
 Cedar Lumber Products Case 741 
 Central Rv. Co. Agreements. Re 601 
 Omtzal Ontario Ry. Co. v. 
 
 Blaekstock 636 
 
 Cmtral Ontario Ry. Co. t. 
 Trusts 4 Guarantee 
 
 Co 636 
 
 OeBtral Saskatchewan Boards 
 of Trade v. G.T.P.R. 
 
 Co 586, 839 
 
 Central Vermont Ry. Co. v. 
 
 Bain 535 
 
 " T. Franchere 198 
 
 " T. St. .Johns 28 
 
 Cesales and Auld's Cotc Cross- 
 ing Case 472 
 
 Chambers and C.PJL Co., Be 300 
 
 Chambers t. C-P.R- Co 595 
 
 C ha anber of Commeare Federa- 
 tion T. South Eastern 
 
 By. Co 593 
 
 Champagne t. G.TJL Co. 188. 189 
 Chan Dy Chea t. Alberta Ry. t 
 
 Irrigation Co. 44 
 
 Charlton t. The King 439 
 
 ChMM.] Cohunn. 
 
 ChMJbemngaaj t Northern Ry. 
 
 Co. T. Lanrier '.. 305 
 
 ~ T. Trenholme 317 
 
 Chatham t. C.P.^ Cto. 784 
 
 " T. G-X.W. Telegraph and 
 
 Bell Telephone Cos... 856 
 Chatham. Wallaceburg i. Lake 
 Erie Rt. Co. t. C J»JL 
 
 Co. . . .* 458 
 
 Chanditee Machine k Foundry 
 Co. T. Canada Atlantic 
 
 Ry. Co. 231 
 
 Cheeseman t. CJP.R- Co 544 
 
 Chew and CPJl. Co., Re 482 
 
 Chisholm v. Halifax Tram Co. 686 
 Christie v. London Elee. Co. 
 
 261. 280 
 City Transfer Co. r. C.X JL Co. 650 
 Claiir T. Temiscouata Rt. Co. 347 
 
 Clare r. C.X-R. Co. . . .'. 388 
 
 ClareT r. Ottawa Electric Rt. 
 
 Co .'. 706 
 
 Clark T. C-P.R. Co. 26«>, 272, 592 
 ~ T. Winnipeg and Winnip^ 
 
 Elee. Rt. Co .S48 
 
 Clarke t. C.X.rI Co. 478 
 
 " T. HolUday 101 
 
 - T. London' Street Ry. Co... 202 
 Clarke and Toronto GreT k 
 
 Bruce Ry. Co„ Re '. . . 322 
 Clarkson t. Campbellford. Lake 
 Ontario k Western Ry. 
 
 Co .' . 25 
 
 Clayton t. CJC JL Co. 403 
 
 Clement t. Wentworth 629 
 
 Clereland t. G.TJL Co. 234 
 
 Clisdell T. Kingsttm k Pem- 
 broke Ry. Co. 105. 834 
 
 CloTer Bar Coal Co. r. Humber- 
 st<»e, G.TJ»JL etc., 
 
 Cos. 59. 590 
 
 Coal Transportation Facilities. 
 
 Re 99, 133, 134 
 
 Cobalt T. Temiskaming Tele- 
 
 pbcHie Co 165 
 
 Cockerline and Guelirfi k Gode- 
 rich Rt. Co., Re.. 3 IS. 
 
 374. 583 
 Coen T. Xew Westminster 
 
 Southern Rt. Co. ..391 
 
 Cole T. CX JL Co. 842 
 
 Coleman t. Toronto k Xiagara 
 
 Power Co 856 
 
 Collier t. Michigan Central Rt. 
 
 Co .'.846 
 
 Collin T. G.T.K. Co 5-16 
 
 Collins T. Can. Xorthwn Que- 
 bec Ry. Co 9 
 
 Columbia Bitulithic t. British 
 Columbia Elee. Rt. Co. 
 
 ' 707, 708 
 
Xll 
 
 CASES DIGESTED. 
 
 Col-Cro.] Column. 
 
 Columbia & Western Ry. Co. 
 
 and the Railway Acts, 
 
 Re 144 
 
 Como V. Can. Northern Alberta 
 
 Ry. Co. and Can. 
 
 Northern Ry. Co. ... 349 
 
 Conductor A. B., Re 168 
 
 Congreave v. C.P.R. Co 650 
 
 Con ley v, C.P.R. Co 85 
 
 Connolly v. Bale des Chaleurs 
 
 R. Co 552 
 
 Conrad Mines v. White Pass & 
 
 Yukon Ry. Co 764 
 
 Consolidated Elec. Co. v. At- 
 lantic Trust Co 7 
 
 " V. Pratt 7 
 
 Consumer's Cordage Co. v. 
 
 Grand Trunk and Can. 
 
 Pac. Ry. Co 771 
 
 Continental Oil Co. v. C.P.U. 
 
 Co. 290 
 
 Continental, Prairie & Winni- 
 peg Oil Cos. V. C.P., 
 
 etc., Ry. Cos 590, 798 
 
 Conwav V. Canadian Transfer 
 
 Co 523 
 
 Cook V. Canadian Colieries . . 536 
 
 *' V. G.T.R. Co 538 
 
 " V. North Vancouver 338 
 
 Coombs V. The Queen 734 
 
 Cooper V. London Street Ry. Co. 698 
 Cooperage Stock Rates Case 804 
 Copp Foundry Industrial Spur 
 
 Case, Fort William v. 
 
 Copp 609 
 
 Corby v. G.T.R. Co 91 
 
 Cormier v. Dominion Atlantic 
 
 Rv. Co Ill 
 
 Cornwallis' v. C.P.R. Co 29 
 
 Cornwall v. Ottawa & New 
 
 York Rv. Co 40, 41 
 
 Cortese v. C.P.R'. Co 392 
 
 Cote V. G.T.R. Co 82 
 
 Cottrell V. C.P.R. Co 815 
 
 Coutlee V. G.T.R. Co 281 
 
 Courtney v. Esquimalt & Nan- 
 
 aimo Hv. Co 468 
 
 Cousins V. C.N.R. Co 368 
 
 " V. Moore 234 
 
 Cowichan Ratepayers Assn. v. 
 
 C.P.R. Co 809 
 
 Co.x & Co. V, C.P.R. Co 768 
 
 Cox V. Nova Scotia Telephone 
 
 Co 853 
 
 Crawford v. Great Western Rv. 
 
 Co '.. 84 
 
 Crawford v. Tilden 152, 529 
 
 Critchley v. C.N.R. Co 175 
 
 Crompton v. British Columbia 
 
 Elec. Ry. Co 505 
 
 Crosaby v. Yarmouth Street Ry. 
 
 Co ".. 687 
 
 Cro-Dem.] Column. 
 
 Crows Nest Pass Coal Co. v. 
 
 C.P.R 759 
 
 Crushed Stone, etc. v. G.T.R. 
 
 Co 789 
 
 Culver V. Lester 102 
 
 Cumberland Board of Trade v. 
 Esquimalt & Nanaimo 
 Ry. Co 491 
 
 Cuneo Fruit & Importing Co. v. 
 
 G.T.R. Co 646 
 
 Cunningham v. Michigan Cen- 
 tral Ry. Co 270, 271 
 
 Currie v. C.P.R. Co 835 
 
 *' V. Saint John Ry. Co, ... 569 
 
 Curry v. Sandwich, Windsor & 
 Amherstburg Ry. Co. 
 
 114, 705 
 
 Cut Glassware Importers v. Ca- 
 nadian Freight Assn. 748 
 
 Cut Glass Classification Case, 
 
 Re 755 
 
 Cutknife Stations, Re 645 
 
 Dagenais v. C.N.R. Co. ..311, 
 
 366, 367, 493, 503 
 Daigie v. Temiscouata Ry. Co. 402 
 Dallontania v. McCormick, 248, 250 
 
 Daniel v. C.P.R. Co 387 
 
 Danyleski v. C.P.R. Co 504 
 
 Darniey v. C.P.R. Co 234 
 
 Dart V. Toronto Rv. Co. , . 15, 537 
 
 Davidson v. G.T.ll. Co 395 
 
 Davie v. Nova Scotia Tram- 
 ways & Power Co. . . 708 
 Davies and James Bay Ry. Co., 
 Re ..23, 306, 325, 326, 
 
 327, 328, 329, 366 
 
 Davis V. G.T.R. Co 567 
 
 Davy V. Niagara, St. Catharines 
 & Toronto Ry. Co. 
 
 793, 794 
 Dawdy v. Hamilton, Grimsby 
 & Beamsville Elec. Ry. 
 
 Co 714 
 
 Dawson Board of Trade v. 
 White Pass & Yukon 
 
 Ry. Co 792, 793 
 
 Day V. C.P.R. Co 274 
 
 " V. Klondike Mines Ry. Co. 
 
 348, 485 
 Daylight Saving Act, 1918, Re 602 
 Daynes v. B.C. Elec. Rv. Co. . . 
 
 563, 566, 703 
 Dawson v. Niagara & St. Cath- 
 arines Rv. Co. . . 213, 214 
 
 De Galindez v. The King 613 
 
 Delahantv v. ilichigan I'entral 
 
 Rv. Co J 24, 125 
 
 Delap V. C.P.R. Co '>'>> 
 
 Delta V. Vancouver, etc.. l*y. & 
 
 Nav. Co "34:t, 58.". 
 
 Demers v. Tlie Kiny 437 
 
CASES DIGESTED. 
 
 xui 
 
 Dcs-Dm.] Cohuu. 
 
 OMhofaB T. Qwifk ft Goderidi 
 
 Ry. Co. SS 
 
 DcusoB ATcnne Ciossing Case -163 
 
 DouusoB V. C.PJL Co 368 
 
 Dtppartunt of Agricnltixre for 
 Canada. t. G.TJL Co. 
 (Farnham Draina^ 
 
 Case I 25ft 
 
 Depev Stnwf Crossing Ca^ . . 470 
 Uerry r. B.C. Eke. By. Co. . . 69* 
 DiB»neiiI«s V. Qocbec 4 Sag- 
 
 nenav Bt. Co 310 
 
 Dtanickes t. BeU 'Tel^hane Co. 931 
 
 Dnrooers t. Tke Kii^ 442 
 
 Die Toamancoart v. G.T.B. Co. 82 
 
 Derlia T. G.T.R. Co. 83 
 
 !)•• VrWs T. C.P.B. Co. 124 
 
 D'Eye T. Toronto Br. Cou 113 
 
 Dc-To T. Kiagston k PleBl»xA:e 
 
 Bt. Co. 72, 537 
 
 Diekie v. G.TJL Co. 376 
 
 LHgnam t. Bell Telephone Co. 729 
 
 Dfau T. Brunet 367 
 
 DkNtne t. The King 443 
 
 Diplod: T. C.X-1L Co. 123 
 
 DL\on T. C.P.R Co. 398 
 
 Doble T. ax JL Co. 407 
 
 Uodier t. Quebee Central Br. 
 
 Co. .*. 410 
 
 Dolsen t. CPJL Co. 398 
 
 DMBinion Caascrs r. Canadian 
 Freight As^n. (Canned 
 Goods Tolls Case* .. SIO 
 Dominion Concrete Cb. r. CP.B. 
 
 Ok 833 
 
 Draninion Constmction Co. r. 
 
 Good 159 
 
 Doaunion Express Co. r. Bran- 
 don 36. 40 
 
 " T. Vnnghan 3, 4 
 
 " T. Niagara 36 
 
 " T. Krigbaam 4 
 
 " r. Botenberg 524 
 
 Dootinion Iron k Steel Co. r. 
 
 Burt 548 
 
 Doninioa )lil]a-s Assn. r. Ca- 
 nadian Freight Ai^isn. 783 
 * r. Canadian Freight Assn. 
 (Iklilling - in - Transit 
 
 Case * 773 
 
 " r. G.T.B. and aPJL Cos. 
 
 787. 807 
 Doninion Sugar Co. r. Ca- 
 nadian Freight Asai. 
 
 592. 750. 808 
 - r. G.TJL, aPJL, e* aL Br. 
 
 Coe. :. 809 
 
 Dominion Transportataon Co. 
 T. Algoma Central 4 
 Hodaon Bar Br. Co. 96 
 Don YaD^ ShontiBg* Case 600 
 
 Do*-Edin.] Colomn. 
 
 Doolittle r. G.T.B. and C.P.B. 
 
 Cos. (Stone Quarrr 
 
 Bat«« Case n '. 744 
 
 Dorchester Ele^. Co. r. fior .. 338 
 
 Dorin r. C.P.IL Co. '. . . . 276 
 
 Dorion r. G.T-R. Co. 46 
 
 Douglas r. G.T.IL Co. 397 
 
 Dorle r. CJ<-B. Co. 193 
 
 Daehesnean r. CA".R. Co. 516 
 
 Dnclos r. The King 441 
 
 DndsveD r. Quebec Central Br. 
 
 Co. *. 39 
 
 Dunham r. Cape Breton Elec. 
 
 Co. 708 
 
 Dunn r. Dominioa Atlantic "Br. 
 
 Co. ;. 126 
 
 Dnnnett r. The King 439 
 
 Dnpnts r. Mtmtreal Street Br. 
 
 Co. r. 712 
 
 Duquette r. C.P.B- Co. 220 
 
 Dnrie r. CJ».B. Co. 410 
 
 "* r. Toronto Br. Co. .. 5.59. 705 
 
 Dnthie r. G.T.P.. Co. -iSl, 811 
 
 DnUon T. C-X.B. Co. 201, 
 
 423. 424, 553. 560, 734 
 
 Drainrilk r. C-P.R. Co. 511 
 
 Dreger r. C_XJL Co 395 
 
 Droiet T. C-P Jt. Co. 380 
 
 Druid Landowners r. G.T.P. Br. 
 
 Co. '. 645 
 
 Drurr r. CP.B. Co. 46 
 
 Dwref r. Port Arthur 619, 683 
 
 Drnes r. B.C. Elec. Br. Co. . . 720 
 
 Earlr r. CX.B. Co. 408 
 
 East Greenfield Park r. Mmt- 
 renl 4 Southern Coun- 
 ties Br. Co. 842 
 
 East Kootenar Lumber Co. r. 
 
 CJ»JL Col 513 
 
 Eastern Tirfls, Be 785 
 
 Eastern Townships Lumber Co. 
 
 r. Temi»<«uata Br. Co. 774 
 
 Eastern Trust Co. v. MacKen- 
 
 zie. Mann 4 Co. 638 
 
 Ebr r. G.T.P.1L Co 644 
 
 Eekhardt r. G.T.B- Co. (Burnt 
 District Case (2» Xo. 
 .595 » 320 
 
 Edmonton Board of Trade v. C. 
 XJL Co. (Legal SU- 
 tioo Ca-se* 648 
 
 Edmonton Board of Trade r. C. 
 
 P.B. and CX.B. Cos. 766 
 
 Edmonton and Calgarr 4 Ed- 
 monton Br. Co.. Re . . 358 
 
 Edmonton r. Cilgarr 4 Edmon- 
 ton Br. Co. 358 
 
 Edmonton and' CP.B. Co., Be 36 
 
 Edmonton Clorer Bar Sand Co. 
 
 T. G.T.P.B. Co. 777 
 
XIV 
 
 CASES DIGESTED. 
 
 Edm-Fal,] Column. 
 
 Edmonton, Dimvegan & B.C. 
 
 Ity. Co., Re, 329, 559, 597 
 
 Edmonton, Dun vegan & British 
 Columbia Ry. Co., Re 
 (Mountain Scale Tolls 
 Case) 753 
 
 Edmonton v. Edmonton Yukon 
 
 & Pacific Rv. Co. ... 479 
 
 Edmonton v. G.T.P. ily. Co. . . 459 
 
 Edmonton v. C.T.I', and C.N. 
 R. Cos. ( Syndicate 
 Avenue Crossing Case) 471 
 
 Edmonton Street Rv. Co. v. G. 
 
 T.P.R. Co. " «05, GIO 
 
 Edmunds v. .Montreal Street 
 
 l{y. Co 678 
 
 Edwards v. Edmonton 732 
 
 Eggleston v. C.P.R. Co 223 
 
 Eisenhauer v. Halifax & South 
 
 Western Ry. Co 183 
 
 Elder, Dempster Steamship Co. 
 v. G.T.R. and C.P.R. 
 Cos 795 
 
 Eldon V. Toronto & Nipissing 
 
 Ry. Co 627 
 
 Elliott V. Winnipeg Elec. Ky. 
 
 Co 548, 549 
 
 Ellis V. B.C. Elec. Ry. Co. .. 268 
 
 Empire Flour Mills v. Michigan 
 
 Central Ry. Co 774 
 
 Empire Refining Co. v. Pere 
 
 Marquette Ry. Co. .. 127 
 
 Empire Sash & Door Co. v. Mc- 
 
 Greevy 136 
 
 Erb V. Great Western Ry. Co. . . 2 
 
 Erie & Ontario Ry. Co. v. Ni- 
 agara St. Catharines & 
 Toronto Ry. Co 610 
 
 Ernesttown Rural Telephone Co. 
 
 V. Bell Telephone Co. 832 
 
 Errico v. British Columbia Elec. 
 
 Ry. Co 573 
 
 Esquimault &, Nanairao Ry. Co. 
 
 V. Fiddick 738 
 
 Essex Terminal Ry. Co. v. 
 Grand Trunk, Michi- 
 gan Central et al. Ry. 
 
 Cos 754 
 
 •* T. Sandwicli 481 
 
 " V. Windsor, Essex & T>ake 
 Shore Rapid Ry. Co. 
 
 464, 465 
 
 Export Tolls on Luml)er .... 805 
 
 Express TralVu' .Vssn. v. Ca- 
 nadian ilanufacturers 
 Assn 769 
 
 Fairbanks v. Barlow 53 
 
 " V. Montreal Street Ry. Co. 708 
 Falsework Case, C.P.R. Co. v. 
 
 C.N.R. Co 70 
 
 Far-For.] Column. 
 
 Farm Crossing Case 374 
 
 Farmer v. British Columbia 
 
 Elec. Ry. Co 2S4 
 
 Farmers' Dairy & Produce Co. 
 
 V. C.P.R. Co. 751 
 
 Farnham Drainage Case 230 
 
 Farquharson v. British Colum- 
 bia Elec. Ry. Co. ... 202 
 
 " V. C.P.R. Co 414 
 
 " V. C.P.R. Co 422 
 
 Farr v. Great Western Ry. Co. 74 
 
 Farrell v. Fitch 614 
 
 " V. G.T.R. Co 72 
 
 Fawcett v. C.P.R. Co 237, 423 
 
 Feigleman v. Montreal Street 
 
 Ry. Co. 224, 653 
 
 Fencing Case 385 
 
 Fencing Case, C.N.R. Co. and 
 Board of Railway Com- 
 missioners 586 
 
 Fencing at Savona B.C., Re . . 386 
 
 Fensom v. C.P.R. Co 400 
 
 Fergus v. G.T.R. Co 491 
 
 Ferguson v. G.T.R. Co. ...11, 
 
 285, 49.> 
 Fernie-Fort Steele Brewing Co. 
 
 V. C.P.R. Co 96 
 
 Ferris v. C.N.R. Co 511 
 
 Fewings v. G.T.R. Co 188 
 
 Fielding v. Hamilton & Dundas 
 
 Street Ry. Co. ...... 680 
 
 Filiatrault v. C.P.R. Co. . . 205, 652 
 
 Findlay v. C.P.R. Co 498 
 
 Fisher v. C.P.R. Co 101 
 
 Fitzgerald v. G.T.R. Co 88 
 
 " V. Great W'estern Ry. Co. 84 
 Flag Station Case, Winnipeg 
 Jobbers, etc. v. C.P.R. 
 
 Co 643 
 
 Fleming v. C.P.R. Co 410 
 
 " V. Toronto Ry. Co 719 
 
 Flewelling v. G.T.R. Co 397 
 
 Follick V. Wabash P.R. Co. ... 565 
 
 Fontaine v. The King 381 
 
 Fonthill Gravel Co. v. Grand 
 Trunk and Niagara, 
 St. Catharines & To- 
 ronto Rv. Cos 775 
 
 Ford V. Metropolitan Ry. Co. 090 
 Forget V. Lachine, etc., Ry. Co. 336 
 Fort George Lumber Co. v. G.T. 
 
 P.R. Co 850 
 
 Forsythe v. C.P.R. Co 288 
 
 Forward v. C.P.R. Co 60 
 
 " V. C.P.R. Co. (Forward 
 
 Townsite Case) 645 
 
 Forward Townsite Case 645 
 
 Fort William v. Copp (Copp 
 Foundry Indu.strial 
 
 Spur Case) OO:* 
 
 Fort William Board of Trade v. 
 
 C.P.R. Co 780, 818 
 
CASES DIGESTED. 
 
 Fes-Gid.] Cbfaun. 
 
 Foster T. CJE»^ Co. 399 
 
 Fnlkk V. G.TJL Co. 243, 256 
 
 Frukel t. G.TJL Co. 11- *5 
 
 Fnser t. C.XJL Co. 410 
 
 - ▼. CJ»JL Co. 140. 223, 447, 4*4 
 
 - ▼. G.T.R. Co. 90 
 
 « T. Imperial Bank 140, 1« 
 
 " T. Pere Marqnetle Rt. Co. 420 
 " T. Pirtou ConntT 0eic^ Co. 
 
 564, 721 
 Frederictoo Board of Trade r. 
 
 CJ».R. Co. S24 
 
 Frvdette t. G.T JL Co. 422 
 
 Front of Esrott t. G.TJL Col 
 
 (68. 472 
 
 Frait Powers' Case. Re 743 
 
 FtdkrtoB Lmntier i Shingle Co. 
 
 T. C-PJL Co. 777, SOO 
 
 FoTBess. Withy 4 Co. v. Great 
 Xortbem Ry. Co. 77, 
 
 78, o5S 
 
 Gmgaam t. The King 444 
 
 Gaiser t. Niagara. St. Cath- 
 arines 4 Toronto Ry. 
 
 Co. 112 
 
 Galltfaith Coal Co. t. C.P.R. . . 763 
 
 - T. CJP.R- Co. 123 
 
 Gallaghcx- r. T«m»to Ry. Co. . . 366 
 GalliBger t. Toronto Ry. Co. . . 711 
 Garcan t. Montreal Street Ry. 
 
 Col -'. 547 
 
 Gameaa v. Qnciicc t Lake St. 
 
 .J<du Ry. Co. 606 
 
 Garside t. G.TJL Co. 195 
 
 Gaodrean t. Canada Jktlantic 
 
 Rt. Co. 529 
 
 Gavthier t. CX.R. Co. .. 311. 
 
 366. 367. 493, 502. 503 
 Garin ▼. Kettle Valley Ry-Jt-o. 
 
 16, o<2, 573 
 
 Gaxey t. Toronto Ry. Co. 115 
 
 Geall T. DmniniMi Creosoting 
 
 Co. - 5S6 
 
 Geiger r. G.TJL Co. 205 
 
 General Intcrsritehing Order. 
 
 Re 817 
 
 General Order Xo. 65, Re 599 
 
 General Traffie Service Col t. 
 
 C-P.R. Co. 902 
 
 Gentile t. British Columbia 
 
 Elee. R Co. . ." 506 
 
 G«it]es T. C J»JL Co. 135 
 
 Gerard t. Quebec i. Lake St. 
 
 John Ry. Co. 4.56 
 
 Germain v. Can. Northern Qoe- 
 
 bee Rt. Co. 316 
 
 Getty * Scott v. C.P.R. Co. . . . SO 
 
 Gihb T. TTie Kij^ 436 
 
 Gibson and Bruce, Re e2."» 
 
 Giddings ▼. C.NJL Co. 227 
 
 Gn-Gra.] 
 
 Gillies &OS. and G.T.R. Co. t. 
 
 C.P.R- Col 491 
 
 Gillis SupplT Co. T. Chicago, 
 Milwaukee k Pi^et 
 Sound Ry- Co. 42C 
 
 Gingnu t. The King 444 
 
 GioTinazzo v. C.P.R. Co. 242 
 
 Girard v. Ha-Ha-Baie Rt. Co. 
 
 295, 313 
 
 Gironard v. C .P.IL Co. 194 
 
 " T. G.T J»JL Co. .. 22, 361 486 
 
 GloDcester t. Canada At^ntie 
 
 R- Co. 456 
 
 GfMtak Toll Case 751 
 
 G<rid Seal t. Dominion Erpress 
 
 Co. 104 
 
 Goldstein t. C.P.R. Co. ... 76. 520 
 
 Gonvea t. CN.R. Co. S« 
 
 Good^hild T. Saadwid^ Wind- 
 sor k JkmheraUnD^ 
 Ry. Co. 697 
 
 Gooderham t. Tm^wto Ry. Col 565 
 
 Goodrin t. 31ichigan Central 
 
 Rt. Co 542 
 
 '"T.Ottawa 32 
 
 Goose Lake District Grain. Re 133 
 
 Gordon t. C J^.R. Co. 204, 278 
 
 " t. Great Western Ry. Co. 93 
 
 Gorton- Pew Fisheries Co. t. 
 North STdner Marine 
 Ry. Co. -....* 511 
 
 Gowland v. Hamilton, GriiKsbT 
 t Benmsrille Elec Rv. 
 Col 461. 706 
 
 Graham Co. v. Canadian 
 
 Fre^ht Assn. . . . 755. 784 
 
 Graham t. G.T.R- Co. 266 
 
 Grain Grower B.C. Agency t. 
 
 C.N.IL 819 
 
 Grain Inspection Case 817 
 
 Grand Forks t Kettle RiTcr 
 Ry. Cos- T. VancouTcr. 
 Victoria k Eastern Rt. 
 Co. 354, 4S4 
 
 Grand Jnncti<m and Midland 
 Railways t. Peterbor- 
 ough 620 
 
 Grand -I unction Ry. Col t. 
 
 Peterborough 615 
 
 Grand Lodge of Knights of 
 IVthias T. Great 
 Northern Rt. Co- . . S20 
 
 Grand Trunk Parilie Bonds. Re 613 
 
 Grand Trunk Pacific Branch 
 
 Lines- Re 592 
 
 Grand Trunk Pacific Branch 
 Lines C o- and I^w. Re 
 Railway Act 334 
 
 Grand Trunk Pacific Rt. t"o_ 
 
 Re .J94. 770, .<vJ7 
 
 Oracd Trunk Pacific Rr. Co. t. 
 
 Brulott ." 244 
 
XVI 
 
 CASES DIGESTED. 
 
 Gra-Gra.] Column. 
 
 Grand Trunk Pacific lly. Co. 
 
 V. Calgary 41 
 
 " V. C.P.R. (Calgary Inter- 
 switching Case) 490 
 
 " V. C.P.R. Co. (Nokomis 
 
 Crossing Case) 609 
 
 Grand Trunk Pacific Ry. Co. 
 and Fitrt Saskatche- 
 wan Trial, Re 474 
 
 " V. Fort William ;Jir), 344 
 
 " V. The King 6i;! 
 
 Grand Trunk Pacific Ry. Co. 
 and Mnrsaii, Re .lOl. 
 
 359, 494 
 Grand Trunk F'acific Ry. Co. v. 
 
 New Hazelton 647 
 
 " V. Oppertliauser 5 
 
 " V. Pickering 250 
 
 ♦< V. Purcell ■ 64!) 
 
 " V. Rochester 849 
 
 " V. Vincent 740 
 
 Grand Trunk and Canadian 
 Pacific Ry. Cos. v. 
 Canadian and British 
 
 American Oil Co 708 
 
 Grand Trunk and Canadian Pa- 
 cific Ry. Cos. V. To- 
 ronto (Toronto Via- 
 duct case) 66 
 
 Grand Trunk I'acific Rv. Co. v. 
 
 Alfred .' 162 
 
 " V. Edmonton (Twenty- 
 
 First Street Crossing 
 
 Case) 453 
 
 Grand Trunk and Quebec, Mon- 
 treal & Southern Ry. 
 
 Cos., Re 600 
 
 Grand Trunk Ry. Co. and An- 
 derson. Re 366, 651 
 
 Grand Trunk Ry. Co. and Ash, 
 
 Re 366 
 
 " V. Attorney -General for 
 
 Canada 146 
 
 Grand Trunk Rv. Co. v. Rain 535 
 
 " V. P.anu'tt ' 121 
 
 " V. Reaver 124 
 
 " V. Beckett 170, 179, 20S 
 
 " v.Birkett 2S2 
 
 " V. Binilanger 850 
 
 " V. Bready 172 
 
 " V. British American Oil 
 
 Co 781 
 
 " V. Brulott 244 
 
 " V. C.P.R. Co 737 
 
 " V. C.P.R. Co. and London 
 (Ix)ndon Interswitch- 
 
 ing Case ) 56. 789 
 
 •• V. C.P.R. Co. (Myrtle 
 
 Bridge Case) . . .' 69 
 
 Gra-Gra.] Column. 
 
 Grand Trunk Ry. Co. v. Cedar 
 Dale (Cedar Dale 
 Crossing Case) 463, 583 
 " V. Christie, Henderson & 
 
 Co 814 
 
 " V. Cobourg ('»:! 
 
 " V. Coupal 299 
 
 " V. Daoui^t 171, 178 
 
 " V. Department of Agricul- 
 ture for Ontario . . 17, 
 
 586. 643 
 
 Grand Trunk and Esplanade 
 
 in City of Toronto 
 
 (Burnt Dist. Case, 
 
 Toronto, No. 25), Re 318 
 
 Grand Trunk Ry. Co. v. Fec- 
 
 teau 532 
 
 " V. Fitzgerald 231, 507 
 
 " V. Frankel 8t» 
 
 " V. Griffith 185 
 
 " V. Guelph ,344 
 
 " V. Hainer 173. 385, 457 
 
 " V. llalton 618 
 
 " V. Hamilton (Depew Street 
 
 Crossing Case) 470 
 
 " V. Hamilton «&: Toronto 
 
 Sewer Pipe Co 61 
 
 " V. Hepworth Silica Pressed 
 
 Brick Co Ul 
 
 " V. Huard 531 
 
 " V. Hughes 172 
 
 " V. James 45, 389 
 
 " V. Jennings 208 
 
 Grand Trunk Ry. Co. and 
 
 Kingston, Re 581 
 
 Grand Tnuik Ry. Co. v. Kitch-. 
 ener & \V'aterloo Strert 
 
 Ry. Co. 471 
 
 " V. I^idlaw Lumber Co. . . 106 
 
 " V. Langlois 337 
 
 *' V. Lindsay, Bobcaygeon & 
 
 Pontypool Ry. Co. . . . 345 
 
 " V. Maclean 141 
 
 Grand Trunk Ry. Co. (Manu- 
 facturers' Coal Rates 
 
 Case), Re 743 
 
 Grand Trunk Ry. Co. v. McAl- 
 
 pine 186 
 
 " V. McKav 383 
 
 " V. McMillan 137, 509 
 
 " V. McSween 170, 185 
 
 " V. Marleau 142, 235 
 
 " V. Mayne 1 14 
 
 " V. Miller . . 254, 281. 285, 286 
 Grand Trunk Ry. Co. and Mon- 
 treal T*. McDonald 534 
 
 Grand Trunk Ry. Co. v. Morton 516 
 
 " V. Parent 532 
 
 " V. Perrault 17, 374, 582 
 
 " V. Port Perry 43 
 
CASES DIGESTED. 
 
 xru 
 
 Gnmd Trmak Bj. Gol, Re mad 
 
 BaOvmy AdL Be 380 
 
 Gnad Twmak 1^. Co. r. Bam- 
 
 Tflie 413. «5 
 
 - ▼. BohertsoB 830, 832 
 
 -T. Boinm 322, 307 
 
 " X. Brnwhipj 175 
 
 C^vnd Tmk B?-. Col and Str. 
 Hcari and Stei Coae- 
 
 goade. Be 293 
 
 Graad Tnnk Bt. Co. v. Saraia 
 Scnct By. Co. . . 217, 
 
 3<M, €11 
 
 « T. iSUald 177 
 
 " T. Sobs 190 
 
 " T- IkeiTKB 150, 371 
 
 " T. Tnraato 15*. 431 
 
 Gkaad Tnmk Bv. Col t. Tn- 
 
 ■ayae 170 
 
 " ▼- Uaitod Couaties Br. Co. 
 fSt. HTaHathe Crass- 
 ii^ Case* (608 
 
 ■ T. Talliear 373. «:3« 
 
 - T. Vcgel 516 
 
 * T. Wadiiagtai 577 
 
 •* T. We^ar ±80 
 
 * T. WBsaa 177 
 
 Gnad VaDrr V.v. Col. Be 14» 
 
 Gnat T. C J^JL Col 414 
 
 Gnv^ T. G.T.E. Col 365 
 
 Grar v. G.T.P. Braa«k Liaes 
 
 Co. 325 
 
 ■• T. Waiia^ Bt. Col. .. 5«. 572 
 Great Eastcra By! Co. v. Lanbe 49 
 Cheater Wiaaipr^ Water Dts- 
 
 trirt Case 534 
 
 Gnat Xortkcra Br. Oil. Be .. 488 
 " T. C.X.B. Col* 790 
 
 ■ T. Cyr 271 
 
 * T. Faraesa, WhJky t Co. 78 
 Great Xorthcro Br. 'Co. Sid- 
 
 iiiSs, Be .: e 
 
 ■ T. Taiaar ''^~ 
 
 ■ ▼. Tureot 257 
 
 G^cat Xortkae^ern Trlegrapli 
 
 Co. T. DomiaioB Fuh 
 
 t Fniit Co. 727 
 
 " X. Fmtier 29 
 
 (^«ai West. Byers Miae Coal 
 
 Cosw T. Graad Tmak 
 
 PaniSe By. Co. 75« 
 
 Gnat Westcra By.* Co. x. Bixma 109 
 Gnat Westcn ' Br. Co. aad 
 
 Xortk Giyaga, Be ... €22 
 Gnat West Sop^ Co. x. G.T. 
 
 PJL Co. '. 503. *47 
 
 Gnca T. BritiA CoIoBbia Eler. 
 
 Bt. Co. 705 
 
 ■ T. CJCJEL Co. . . 329. 330. 
 
 335. 3M. 493. 494 
 
 &e-HaaL] 
 
 Gnoifidd Ooadait Go. t. Hetk- 
 
 eri^toa . .. 39 
 
 Gnea t. G.TJR. Col 2*» 
 
 Greealav t. C.X.B. Co. -106 
 
 Gner x. CJPJL Co. 503. 504 
 
 Greig ▼- G.T.B. Co. 25= 
 
 GrKh T. Toraato Eastcra Br. 
 
 Co. '.. 21« 
 
 Griffitk T. G.TJL Co. 1»4. 1S5 
 
 Grn^br Bearh Aaiasemeat Co. 
 ' X. Graad Traak 4 
 
 UaaultoB Bt. Gik& ... 407 
 GaaT T. CJi.B. Co. .'. 109 
 
 - 't. The Qoeea 434 
 
 GBci|A t (;oderk« Br. Co. aad 
 
 G.T.B- Col, Be ZK 
 
 Goelph 4 Goderk^ By. Co. t. 
 
 Goeli^ Badial Bt. Co. 007 
 Gae^t Ftsli Co. t. Doauakia Ex- 
 
 pn:ss Co. 77S 
 
 Gailbaalt t. McGnerT 150 
 
 Goaa T. CJ».B. Co. .*. 847 
 
 Gntkrie t. CJP.B. Co. 371 
 
 Hagenriile Craved Stoae Co. 
 
 T. UkUgaa Ceatxal 
 
 Bt. Co. 78£ 
 
 Ha Ha Bst Bt. Co. t. Larourhe 339 
 
 Ha^h T. tomato Bt. Co. 718 
 
 Haiaes x. G-TJL CoC 126 
 
 Haldiiaaad t. BeU Telephoae 
 
 Co. «S 
 
 ^ T. HaBihoa 4 North West- 
 
 «Ta Bt. CoL (S22 
 
 Halifas; Board of Trade t. Gu- 
 
 adiaa Express Gol 749 
 
 - T. «;.T.R. Co. IS 
 
 " T. G.T.B. Co. (Halifax 
 
 Bates Cft9e> 595 
 
 Halifax 4 Cape Ketoa Coal 4 
 
 By. Col t. Gn^m^ ... Wl 
 Halifax Citr Bt. Co. t." The 
 
 Qoeca .' 45S 
 
 Halifax Eler. Traaiaay Co. t. 
 
 In«Ii« ' 700 
 
 Halifax aad Halifax Board <rf 
 
 Trade x. G.T.B. Co. . . 767 
 Halifax aad Soath-Westen Bt. 
 
 Co. T. Srhmartc .*. 422 
 
 Halifax Strert By. Col t. Joyce 723 
 
 Halifax Bale» Case '. . . 595 
 
 Hall t. C.P.B. Co. 261 
 
 - T. G.T.B. Col 80 
 
 - T. MeFaddca 445 
 
 HallidaT t. C.PJL Co. 233 
 
 Ham T.'C-X.B. Co. 207 
 
 llamel t. G.T.B. Co. 4.1 
 
 Hamilton Bridjse Ca*e 474 
 
 Haaultoa t. C.P. aad Toroato. 
 
 Ilainihoa 4 Boflalo 
 Rt. Co>$. (Hamikoa 
 Bridge Case) 474 
 
XVlll 
 
 .CASES DIGESTED. 
 
 Ham-Har.] Column. 
 
 Hamilton, Grimsby & Beams- 
 ville Ry. Co. v. Attor- 
 ney-General for On- 
 tario 155 
 
 Hamilton v. G.T.R. Co 89 
 
 " V. G.'J'.K. Co. (Burling- 
 ton r.each Case), 598, 842 
 " V. G.T.K. Co. (Re Shunt- 
 ing on Ferguson Ave., 
 
 Hamilton ) 323, 593 
 
 " V. Hamilton Electric and 
 Toronto. Hamilton & 
 Buffalo Ry. Cos. 
 (Birch Avenue Exten- 
 sion C^ase ) 359 
 
 " V. Hamilton Radial Elec. 
 
 Ry. Co 470 
 
 " V. Hamilton Street Ry. 
 
 Co. ... f)57, 658, 678, 679 
 
 Hamilton Joint Section (Oak- 
 
 ville Case) 843 
 
 Hamilton v. The King 446 
 
 Hamilton & Nortiiwestern Rv. 
 
 Co. and Haltou, Re .' . 624 
 
 Hamilton Radial Elec. Co. v. 
 
 Hamilton 787 
 
 Hamilton, S.A. Co. and C.P.R. 
 
 Co., Re 63 
 
 Hamilton Street Ry. Co. v. 
 
 G.T.R. Co 475 
 
 " V. Moran 276 
 
 Hamilton v. Toronto, Hamil- 
 ton & Buffalo Ry. Co. 
 (Hunter Street Case) 
 
 221, 595, 596 
 
 Hamilton Street Ry. Co. v. 
 
 Weir 673 
 
 Hammon v. G.T.R. Co 288 
 
 Hampson v. Chauteauguay & 
 
 Northern Rv. Co. ... 483 
 
 Haney v. C.N.R. Co.' .... 311, 312 
 " v. Winnipeg & Northern 
 
 Ry. Co 351 
 
 Hanley v. Toronto, Hamilton & 
 
 Buffalo Ry. Co 348 
 
 Hanlv v. Michigan Central Ry. 
 
 Co 181 
 
 Hanna v. C.P.R. Co 182 
 
 Hannah and Caniphellford, 
 Lake Ontario & \A'ept- 
 ern Ry. Co., Re 330 
 
 Hannah v. G.T.R. Clo 756 
 
 Hansen v. C.P.R. Co 652 
 
 Harrigan v. Klondike Mines 
 
 Ry. Co 304 
 
 Harris v. C.P.R. Co 841 
 
 " v. Great Northern P^v. Co. 381 
 
 " v. G.T.R. Co 239 
 
 " V. The King 438 
 
 " V. London Street Ry. Co. 688 
 
 Harnovis v. Calgary 697 
 
 Hart V. The King ." 436 
 
 Har-HoL] Column. 
 
 Hartin v. C.N.R. Co. (Twin 
 
 Elm Flag Stop Case) 648 
 Haskill and (J.T.R. Co., Re .. 302 
 
 Hatte y. G.T.K. Co 73 
 
 Hay y. C.P.R. Co 116 
 
 Hay and Still Mfg. Cos. y. G.T. 
 
 and C.P.R. Cos. . . 133, 753 
 
 Hayward v. C.N.R. Co 137 
 
 Hazelton B.C. Townsite Case 644 
 
 Hearn v. Nelson 424 
 
 Heller v. G.T.R. Co 521 
 
 Helm v. Port Hope 628 
 
 Helson y. Morrisey, Fernie & 
 
 Michel Ry. Co. . . 1,5, 641 
 Henderson v. Inverness Ry. Co. 567 
 " v. Inverness Ry. & Coal 
 
 Co 98 
 
 Hepworth Silica Pressed Brick 
 
 Co. v. G.T.R. Co 60 
 
 Herdman v. Maritime Coal 
 
 Ry. & Power Co 536 
 
 Hereford Ry. Co. y. The Queen 612 
 
 Herman v. "C.P.R. Co 535 
 
 Herron v. Toronto Ry. Co. 
 
 540, 570, 571, 702 
 Hesse v. Saint .John Ry. Co. 
 
 569, 571 
 
 Higgins v. C.P.R. Co. . , 397 
 
 Highways & Railway Cross- 
 
 " ings, Re * 460 
 
 High River v. C.P.R. Co 453 
 
 Hile v. G.T.P.R. Co 272, 565 
 
 Hill V. Toronto Ry. Co 11(5 
 
 " V. Winnipeg Elec. Ry. Co. 714 
 " v. \\'innipeg Elec. Ry. Co. 109 
 Hillhouse, Hume & Booth y. 
 
 C.P.R. Co 380 
 
 Hilyard v. The King 740 
 
 Hinman v. Winnipeg Elec. 
 
 Street Ry. Co 85 1" 
 
 Hinrich v. C.P.R.* Co. ... 192, 537 
 Hinsley v. London Street Ry. 
 
 Co 692 
 
 Hobbs y. Esquimault & Nan- 
 
 aimo Ry. Co 739 
 
 Hockin v. Hafifa.x & Cape 
 
 Breton Ry. & Coal Co. 296 
 
 Hockley v. G.T.R. Co 200. 567 
 
 Hodge's Claim, Minister of 
 
 Railways & Canals v. 
 
 Quebec Southern Ry. 
 
 Co 638 
 
 Hodaon v. Toronto, Hamilton 
 
 & Buffalo Ry. Co. . . , 239 
 Hoggan V. Ksquimalt & Nan- 
 
 ainu> Hy. Co. . . . 735, 736 
 
 Holden v. G.T.U Co 281, 574 
 
 " y. Ynrmouth 456 
 
 Holditch v. Can. Northern On- 
 tario Ry. Co 331 
 
 Holmested v. C.N.R. Co. and 
 
 Annable 350 
 
CASES DIGESTED. 
 
 XIX 
 
 Hal-lBd.] Column. 
 
 Holnested t. Moose Jaw and 
 
 CJJf JL Co 217, 218 
 
 Honess v. British Cohnnbui 
 
 Eke. Rt. Co 707 
 
 Hood T. G-T.R. Co. 74 
 
 Hopkin T. Hamilton Elee. 
 Light t Cataract 
 
 Power Co. 353, 546 
 
 Home T. Canadian Fraght 
 
 Assn. 754 
 
 Hornstein t. CX.R. Co 217 
 
 H<H^seman v. G.T JL Co 95 
 
 HM-seshoe Qoarrr Co. and St. 
 Mary's k Western On- 
 tario Rt. Co., Re 308 
 
 Honnsome t. VancouTer Power 
 
 Col 28ii, 379 
 
 Howell Co. T. G.TJL. CJJL 
 
 and C.X Jl. Cos. 777 
 
 Howse T. Southwold 732 
 
 HodoD T. The King 432 
 
 Hndsoa Bar Mining Co. r. 
 Great Xorthem Rj. 
 
 Co. 773 
 
 Hnmberstone v. G.T.R. Co. ..229 
 
 Hunt T. G.T J» JL Co. 393 
 
 Unnter Street Case 221, 595 
 
 Hunting-Merritt Lumber Co. t. 
 CJ*. and British Co- 
 lumbia rilec. Rv. Cos. 
 
 132. 782 
 Hnot T. Qnel.ec Rv. L. t P. 
 
 Co ' 395 
 
 Hm^ T. C.P.R. Co 407 
 
 Hjde et aL r. Canadian 
 
 Fright Asai. 778 
 
 Hydro Electric Power Commis- 
 &ion r. London i. Port 
 Stanley Rt. Co 140 
 
 Tcing Refrigerator Cars Case. 
 
 Re 754 
 
 Imperial Munitions Board t. 
 
 C.P.R- Co. 757 
 
 Imperial Oil Co. t. Canadian 
 
 Freight Assn 801 
 
 Imperial Rice Milling Co. t. 
 
 C.P.R. Co. 594, 808 
 
 Imperial Steel k Wire Co. r. 
 
 G.T.R- Co 128 
 
 ** T. G.T.R. and CJ».R. Cos. 757 
 
 Imperial Supply Co. t. G.T.R. 
 
 Co. . . .' 551 
 
 Increase in Rate Case 786 
 
 Increaae in Passenger and 
 Freight Tolls, Re (In- 
 crease in Rate Casei 786 
 
 Independent Telephone Co. t. 
 Bell Telephone Co. 
 
 831, 832 
 
 lac-Jac] Coh 
 
 Inglia T. Halifax Elec Tram. 
 
 Co. 700 
 
 International Bridge k Term- 
 inal Co. T. C-XJL Co. 599 
 
 International Coal Co. t. Cape 
 
 Breton 31 
 
 International Paper Co. r. G.T. 
 etc, Rt. Cos. (Pulp- 
 wood Case » 799 
 
 Interswiiching Rates Case . . . 812 
 
 Interswitching Service. Re 
 
 64. 49.1. 819 
 
 luTemess v. Mclsaac. 30.3. 355. 621 
 
 Irish k Maulson t. Bell Tele^ 
 
 phone Co 731 
 
 Iron Mountain, etc. t. Great 
 
 Northern Rv. Co. ... 131 
 
 Isbester v. The Queen 428 
 
 Jackson v. C.P.R. Co. ... 201. 252 
 
 - T. G.TJL Co 416 
 
 Jacob T. The King 440 
 
 ~ T. Toronto Rt. Co. 71s 
 
 Jacobs Asbestos Co. t. Quebec 
 
 Central Rt. Co 9S 
 
 Jago t. Montreal Street Rt. Co. 712 
 James Co. t. Dominion Express 
 
 Co. 103. 137. 524 
 
 James t. G.T Ji. Co 389 
 
 James Bay Ry. Co. v. Arm- 
 
 str<Mig 21 
 
 "• T. G.T.R. Co. 17, 582 
 
 James BaT Rv. Co. and Wor- 
 rell. *ie 351. 360 
 
 Jaroshinsky v. G.T.R. Co. 187 
 
 Jarvis v. Lon<'.,>n Street Ry. Co. 721 
 Jenckes Machine Co. v. C.N.R. 
 
 Co 91. 515 
 
 Jmkins v. Elgin 62-1, 630 
 
 Jette V. G.T.R. Co 237 
 
 Johnson v. Can. Northern Que- 
 lle Ry. Co. 257 
 
 " v. Halifax Elec. Tram- 
 
 waT Co 710 
 
 Johnson A Carey t. C.N.R. Co. 529 
 Joint Freight and Passenger 
 
 Tariffs, Re 763 
 
 Joint Tools and Concurrence. 
 
 Re Sai 
 
 Jolicoeur v. G.T.R. Co 171 
 
 Joliette Telephone Co. v. Bell 
 
 Telephone Co. 832 
 
 Jones V. Atlantic k North-West 
 
 Rv. Co 484 
 
 " V. C J.R. Co. . . 246. 260. 
 
 268, 275, 290, 571 
 " T. G.T.R. Co. . - 650, 651, 838 
 
 " T. The Queen 428 
 
 '^ v. Toronto k York Radial 
 
 Ry. Co 694. 695 
 
 Jordan Co-Operative Go. t. 
 
 Canadian Express Co. . . . 133 
 
XX 
 
 CASES DIGESTED. 
 
 Jun-Koc] Column. 
 
 Junction Cut Case, South On- 
 tario Pacific Ry. Co. 
 V. G.T.R. Co 347 
 
 Kaiser Crossing Case 608 
 
 Kammerer v. C.P.R. Co. . . 61, 13.3 
 
 Kearney v. Oakes 431 
 
 " V. The Queen 432 
 
 Keith V. Ottawa & New York 
 
 Rv. Co Ill 
 
 Kellett V. C.P.R. Co 419 
 
 Kelly V. G.T.P.R. Co. (Hazelton 
 
 B.C. Townsite Case) 644 
 
 " V. G.T.R. Co 648 
 
 Kelowna Board of Trade v. C. 
 P.R. Go. .. 772, 773, 
 
 779, 781 
 Kemp Mfg. & Metal et al. Cos. 
 
 V. C.P.R. Co 74(i 
 
 Kennedy v. G.T.P.R. Co. . . 214, 
 
 249, 252 
 " V. Quebec & Lake St. John 
 
 Ry. Co 835, 836 
 
 Kennermann v. C.X.R. Co 421 
 
 Kenny v. C.P.R. Co 122 
 
 Kerley v. London & Lake Erie, 
 
 etc., Co. 148, 149, 153, 725 
 Kerr v. Atlantic & N. \V. Rv. 
 
 Co 286, 498 
 
 " V. C.P.R. Co 422, 761 
 
 Ketcheson and Can. North. 
 Ont. Ry. Co., Re . . 23, 
 
 310, 324, 493 
 Kilgour V. London Street Rv. 
 
 Co .'. 506 
 
 King V. Blais 436 
 
 King, The v. Armstrong 443 
 
 " v. Birchdale 437 
 
 " V. C.P.R. Co 5, 39, 197 
 
 " V. Desrosiers 442 
 
 " V. Fontaine 333 
 
 " V. Jones 435 
 
 " V. Mcintosh 166 
 
 " v. Moncton Land Co. ... 323 
 " V. Quebec Improvement Co. 333 
 
 " V. Rogers 320 
 
 " V. Royal Trust Co 435 
 
 " V. Sharp; J]x parte Lewin 32 
 " v. Sharp; Ex parte Turn- 
 bull 32 
 
 " V. Stairs 320 
 
 " V. Trudel 335 
 
 King Lumber Co. v. C.P.R. Co. 
 
 422, 566 
 Kingston & Pembroke Ry. Co. v. 
 
 Murphy 352 
 
 Kirkpatrick v. C.P.R. Co 69 
 
 " V. Cornwall Elec. Street 
 
 Ry. Co 635 
 
 Kitsilano Arbitration, Re ... . 26 
 Koch V. G.T.P. Branch Lines 
 
 Co 409 
 
 Koo-Lam.] Column. 
 
 Kootenay Rate Case 759 
 
 Krenzenbeck v. C.N.R. Co. ... 387 
 Kreuszynicki v. C.P.R. Co. .. 262 
 Kuula V. Moose Mountain .... 419 
 Kuusisto V. Port Arthur 
 
 505, 545, 706 
 Kyle V. Buffalo & Lake Huron 
 
 Ry. Co 93 
 
 Kylemore Crossing Case 469 
 
 Lachance v. C.P.R. Co 283 
 
 Lachine v. G.T.P. Co 70, 460, 470 
 
 Lachine, Jacques Cartier, etc., 
 
 Ry. Co. V. Kelly . . 27, 313 
 Lacliine, Jacques Cartier, and 
 Maisonneuve Ry. Co. 
 
 V. Mitcheson 334 
 
 Lachine, .Jacques Cartier, etc., 
 Ry. Co. V. Montreal 
 
 Gas Co 295 
 
 " V. Montreal Tramways 
 
 and Montreal Park & 
 
 Island Ry. Cos 601 
 
 Lachine, .Jacques Cartier & 
 Maissoneuve Ry. Co. 
 
 V. Reid 363 
 
 " V. Theberge 312 
 
 Lafoniainc v. G.T.R. Co 517 
 
 Lafontaine Park, Re 21 
 
 Lagala v. C.P.R. Co 382 
 
 Laidlaw and Campbellford, 
 Lake Ontario & West- 
 ern Rv. Co., Re . . 312, 
 
 31.3, 333 
 T^idlaw v. Crow's Nest South- 
 ern Ry. Co 12, 420 
 
 Laidlaw Lumber Co. v. G.T.R. 
 
 Co 812 
 
 Lake Erie & Detroit River Ry. 
 
 Co. v. Barclay 193 
 
 Lake Erie & Northern Ry. Co. 
 V. Brantford Golf & 
 
 Country Club 26 
 
 " V. Brantford Street Ry. 
 
 Co 611 
 
 " V. Muir 26 
 
 Lake Erie & Detroit River Ry. 
 
 Co. V. Sales 82, 510 
 
 Lake Erie & Northern Ry. Co. 
 
 V. Schooley 331 
 
 Lake Superior Paper Co. v. 
 Algoma Central & 
 Hudson Bay Rv. Co. 
 
 782, 783, 802 
 Lalande v. Can. Northern On- 
 tario Ry. Co 381 
 
 Lamarre v. G.T.R. Co 20 
 
 Lamond v. G.T.R. Co 265 
 
 Lamont v. C.P.R. Co 559 
 
 " V. Canadian Transfer Co. 
 
 104, 523 
 
CASES DIGESTED. 
 
 XXI 
 
 .] Odamn. 
 
 Lmaumt^mt v. CIimiImii 
 
 Freight AasB. 74S 
 
 LaagdoD and .Aithnr JnnctioD 
 
 Ry. Co, Re 631 
 
 Lugiais ▼. G.T.R. Co 228 
 
 LugliNS T. Qutbec Jk Lake St. 
 
 John Rt. Co. 126 
 
 Lapointe t. C^atcaugoaT 4 
 
 Xor. Rt. Co. ....' 362 
 
 La Poiate r. G.t JL Co. 87 
 
 Laporte v. Can. Xbrthem Que- 
 bec Rt. Co. 397 
 
 Lm Salle T. CJ». and Xev Yoik 
 
 Ceotral Rt. Co& SM 
 
 Lasmka t. G.T.P.R. Co. 249 
 
 Latoor t. G.T.R. Co. 351 
 
 Laurie t. C.X.R. Co. 515 
 
 Lanllce T. CA'.R. Co. . . . 198. 199 
 
 Laray t. G.T.R. Co. 273 
 
 Leaker t. G.T.R. Co. 554 
 
 L«afliT T. C-P.R. Co. 498 
 
 LebaV. G.T-R. Co. 389 
 
 Ledoux T. Canadian Frriobt 
 
 Asfa. 766 
 
 Lee T. Crow's Nest Pass Coal 
 
 Co. 11 
 
 Lees ▼. Toronto k Xiagara Por- 
 
 car Co 360 
 
 Lefebrre t. Lacbine. Jaeq[oe$ 
 
 Cartier, etc, Rj. Co. 27 
 
 " T. Qoebee '. 341 
 
 Lrirancois v. The King 442 
 
 Legal SUtion Case 64S 
 
 L^er T. The King 441 
 
 Lcganlt T. HoBtreal Tern Cot- 
 
 ta Co. 3S7. 205 
 
 Li^ahart t. CAML Co. 777 
 
 Latdi t. Pere Marqaette Ry. 
 
 Co. 238 
 
 Lemioix t. Bell Telephone Co. 833 
 
 *• T. LangeTin 449 
 
 * T. lIontTcal Street Rt. Co. 556 
 
 LeoMMi t. G.T.R. Co. 101 
 
 Leuox T. G.T.R. and C.P.R. 
 
 Cos. 276 
 
 LeaBoxrille t. Conptoa 619 
 
 LenMiXTille Crossing Case 608 
 
 Lteurd T. C,P.R. Co 73 
 
 L^lie T. Pere Marquette Ry. 
 
 Co. 378 
 
 Lessard t. C J» JL Co. 94 
 
 Lethhridge Beard of Trade t. 
 
 CJ».R. Co. (Alberta 
 
 Train ScrTi«e Ca^ii 843 
 
 LetUwidge t. CJ>.R. Co. 459 
 
 Lewia, Ex parte; The King t. 
 
 Sharp 32 
 
 Leris Connty Ry. Co. t. Fon- 
 taine 49 
 
 Leris t. The Qneoi 433 
 
 Le«is T. G«ieral Manager of 
 
 GoTenunent RaQvaTS 448 
 
 Lev-Lam.] Oriinna. 
 
 Lewis T. G.T.PJR. Co. 142, 
 
 247, 250, 251 
 
 Limpool T. LiTerpool R. Go. 456 
 
 Lhrerpool t Milton R. Co. t. 
 
 LiTvrpool 451 
 
 Liringstcae r. Toronto Ry. Co. 700 
 
 Liintte t. Temiscooata Ry. Co. 396 
 
 Loada t. British Columbia Elec^ 
 
 trie Ry. Co. 538 
 
 Lockshin t. CiI:.R. Co. . . 101, 515 
 
 Longue Point Spur Case. Mont- 
 real T. C-P.R. Co. ..599 
 
 Long T. Toronto Ry. Co. 539 
 
 London Board of Trade Express 
 
 Traffic Jkssa., Re 7S1 
 
 London t. G.T.R. "Co. 533 
 
 ^ T. G.T.R. Co. (Ashland 
 
 ATenne Ckxkssing Case) 469 
 
 Loodon, Huron 4; Brace Ry. Co. 
 and East Wavanosh, 
 Re 627 
 
 London Interswitching Case . . 
 
 55, 789, 790 
 
 London t Lake Erie Ry. Co. t. 
 Michigan C<9tral and 
 London 4 Port Stanler 
 Ry. Cos. ". 490 
 
 London k Lake Erie Transpor- 
 tation Cou, Re 645 
 
 London t. London Street Rt. 
 
 Co ". 196 
 
 London k Port StanleT Rt. Co., 
 
 Re *....* &26 
 
 London Railway CommisaioB, 
 
 Re 663 
 
 Loodon RailwiT CommissiaB ▼. 
 
 BeU tele|AoBe Co. .. 856 
 
 London Street Ry. Co. t. Brown 560 
 "* T. London ' 65S 
 
 Lcmdon k Western Tmsts Co. 
 
 T. G.TJL Co 211 
 
 '" T. Lake Erie k Detrmt 
 
 RiT«T Ry. Co. 278 
 
 " T. Pere Marquette Ry. .. 277 
 
 Long T. Toronto Ry. Co. 705 
 
 Lord's DaT A^f-t and' C.PJL Co., 
 
 Re 725 
 
 Lord's Dbt Adt and G.TJL Cou 
 
 Re 725 
 
 Lott T. STdney k Glace Bay Ry. 
 
 Co. * '...'.. 704 
 
 Looghboro t. C.X.R. Co. 840 
 
 Loui^ T. C.P.R. Co. 496 
 
 Lower Argyle Station, Re ... 647 
 
 Lueas t. The King 440 
 
 ~ T. Toronto 724 
 
 Ludwig T. Beede 106 
 
 Lumsden t. Temi$kaming k 
 Xorthem Ontario Rail- 
 way Commis&i<m .... 499 
 
xxu 
 
 CASES DIGESTED. 
 
 Lus-Mar.] Coluuiu. 
 
 Lusty V. Pere Marquette Ry. 
 
 Co 380 
 
 Luther v. Wood 624 
 
 Lyons Fuel & Supply Co. 
 V. Algonia Central &, 
 Hudson Bay Ry. Co. 788 
 
 MacDonald v. Walker & Luck- 
 now Ry. Co 136 
 
 Macdonell v. British Columbia 
 
 Elec. Ey. Co 663 
 
 Mace and Ottawa v. Bell Tele- 
 phone Co 833 
 
 Macintosh v. Cape Breton Ry. 45 
 
 Mackenzie v. C.P.R. Co 511 
 
 MacKenzie v. B.C. Electric Rv. 
 
 Co .'. 1!)2 
 
 MacLaughlin v. Lake Erie antl 
 
 Detroit River Ry. Co. 557 
 
 Mader v. Halifax Elec. Tram- 
 way Co 562, 072 
 
 Miidill V. G.T.E. Co 552 
 
 Magill V. Moore 853 
 
 Mahon v. G.T.R. Co 468 
 
 llaitland v. McKcnzie and To- 
 ronto Ry. Co 505 
 
 Maisonneuve v. C.X.R. Co. . . . 471 
 
 Makarsky v. C.P.R. Co 257 
 
 ilalkin & Sons v. Grand Trunk 
 Ry. Co. (Tan Bark 
 Rates Case) 762 
 
 Mallory v. Winnipeg Joint Ter- 
 minals 533. 534 
 
 Malone v. The King 497 
 
 Mancell v. Michigan Central 
 
 Rv. Co 132 
 
 Manitoba v. C.P.R. Co. (Tele- 
 phone Connection and 
 Communication Case) 731 
 
 Manitoba Dairymen's Assn. 
 V. Dominion & Can. 
 North. Express Cos. 750 
 
 Manufacturer's Coal Rates Case, 
 
 Re 743 
 
 Marchand Sand Co. v. C.P.IJ. 
 
 Co 131 
 
 Margach v. Mackenzie, Mann & 
 
 Co 424 
 
 Maritime Coal & Rv. Co. and 
 
 Elderkin, Re 317 
 
 Maritime Telegraph & Tele- 
 phone Co. v. Dominion 
 Atlantic Ry. Co 856 
 
 Marleau v. G.T.R. Co 141. 235 
 
 Marsan v. G.T.P.R. Co 12, 
 
 357, 485 
 
 Marson v. G.T.P.R. Co. ...214, 
 
 215, 323, 845 
 
 Martin v. G.T.R. Co 247, 274 
 
 " V. Maine Central Ry. Co. 
 
 316, 372 
 
 Mar-McE.] Column. 
 
 Martin et al. and Imperial Rice 
 Milling Co. v. Cana- 
 ■ dian Freight Assn. . . 811 
 
 Mason v. G.T.R. Co 88 
 
 Mason & Risch Piano Co. v. 
 
 C.P.R. Co 514 
 
 Massawippi Valley Ry. Co. v. 
 
 Reed 737 
 
 Massena Springs v. G.T.R. Co. 841 
 Massett v. G.T.P. Steamship 
 
 Co 600 
 
 Massiah v. C.P.R. Co 824, 840 
 
 Mathias v. C.P., C.N. and G.T. 
 
 P.R. Cos 781 
 
 Matthews v. Canadian Express 
 
 Co : 85 
 
 Mattice v. Montreal Street Ry. 
 
 Co 545, 688 
 
 Mavos v. G.T.P.R. Co 40(5, 857 
 
 Mayne v. G.T.R. Co 114 
 
 Mayor, etc. of St. John v. Mc- 
 Donald 851 
 
 McAllister and Toronto Subur- 
 ban Ry. Co., Re 332 
 
 McAlpine and Lake Erie & De- 
 troit River Ry. Co., Re 302 
 
 McCarron v. Mcrti reevy 1 58 
 
 McCarthv v. Tillsonburg, Lake 
 
 Erie Ac Pacific Rv. Co. 361 
 
 McCormack v. G.T.R. Co."^ 74 
 
 '■ V. Sydney <k Glace Bay Ry. 
 
 Co 713 
 
 " V. Toronto Rv. Co 140 
 
 McCready v. G.T.R. Co 94 
 
 McCrca v. Saint John 671 
 
 McC'rimmon v. British Colum- 
 bia Elec. Rv. Co 
 
 487, 503, 849 
 
 McCrosson v. G.T.R. Co 80 
 
 McDaniel v. C.P.R. Co. 402 
 
 McDiarmid v. G.T. and C.P.R. 
 
 Cos 220 
 
 McDonald v. British Columbia 
 
 Elec. Ry. Co 254 
 
 " V. C.P.R. Co 98 
 
 " V. Great Western Ry. Co. 54 
 
 " V. The King 208, 439 
 
 " V. Riordan 144, 160 
 
 " V. Vancouver, Victoria & 
 Eastern Rv., etc., Co. 
 
 294, 528 
 McDonnell v. C.P.R. Co. .. 214, 247 
 McDougall V. G.T.U. Co. . . 113. 
 
 121. 652, 840 
 McDonnell v. Inverness Rv. & 
 
 Coal Co ■ 398 
 
 McDougall and Sword v. C.P.R. 
 
 Co 355 
 
 McEachen v. G.T.R. Co. . . 27!». 53!) 
 McElmon v. British Coluniliiu 
 
 Elec. liv. Co 855 
 
 McEntee v. G.T.l'.K. Co 260 
 
CASES DIGESTED. 
 
 SXlll 
 
 McE-MeL] Colamn. 
 
 JJcEvoy V, G.T^ Co. 46, 524 
 
 McFamui t. Montreal Pu-k & 
 
 Island Rt. Co. 541 
 
 McGill r. Montreal Tramwars 
 
 Co. ■- 721 
 
 MeGorem r. Montreal Stieet 
 
 Rt. Co 720 
 
 McCiiraw vl Toronto Rt. Co. . . 716 
 M(<;r^or r. E:^)aimalt t Xa- 
 
 naimo Rt. Co. .. 151. 738 
 
 McHugh T. G.T.R- Co. 541 
 
 Mclntyre t. G.T.R. Co. 276 
 
 Mrlsaac t. InTemess 3ii5 
 
 •* T. InTem«^s Rt. k Coal Co. 303 
 ** T. Maritime Telegraph k 
 
 Telephone Co. 856 
 
 McKaT T. G.T.R. Co 194, 383 
 
 • T.' Wabash R.R. Co 182 
 
 McKellar t. C.P.R. Co 389 
 
 McKenzie t. CJ*-R. and C.XJL 
 
 Cos. iW 
 
 ■ T. C J».R. Co. 83 
 
 " T. Mcmtreal k City of Ot- 
 tawa Rt. Co 5^i 
 
 « T. G.T.R. Co. 376 
 
 McKeown t. Toronto Rt. Co. 210 
 
 MrLeod t. C.X.R. Co. .'. 398 
 
 McMahmi t. Canadian Freight 
 
 Assn 95 
 
 McMillan t. G.T.R. Co 508 
 
 McMorrin t. C.P.R. Co 512 
 
 McMullin T. XoTa Scotia Steel 
 
 4 ( ual Co. 265. 273 
 
 McNeil T. The King 440 
 
 McPhee t. Esquimalt k. Xa- 
 
 naimo Rt. Co 272 
 
 .McPher^on t. C.P.R. Co. 60 
 
 )b«gher T. C.P.R. Co 602 
 
 Medico-Chimrgiial Society of 
 MfHitreal t. Bell Tele- 
 phone Co 830 
 
 Medicine Hat Streets Que ... 480 
 Medicine Hat t. CPJL Co. 
 (Medicine Hat Streets 
 
 Casei 479. 480 
 
 Medler & Amot and Toronto. 
 
 Re 343 
 
 Mehner t. Winnip^ Elec Rt. 
 
 Q> .*. 533 
 
 MeladT t. Jenkins Steamship 
 
 Co. 834 
 
 Merc«r t. CJ'.R. Co. 138, 519 
 
 Merchants' Despatch Trans- 
 portation Co. T. Hately 508 
 Merritttm Crossing Case. Xi- 
 agara, St. Catharines 
 k Toronto By. Co. t. 
 
 G.T JL Co. 607 
 
 MerTin Board of Trade t. C.X. 
 
 R. Co 593 
 
 Metropolitan Rt. Co. and C.P. 
 
 R. Co.,* Re 495, 580 
 
 MSc-MoB.] Column. 
 
 Michigan Central By. Co. t. 
 I^ke Erie k Detroit 
 
 RiTer Rt. Co. 77 
 
 " T. Wealleans' 164 
 
 Michigan Sugar Co. t. Cliat- 
 ham Wallacebnrg k 
 Lake Erie Ry. Co. . . 765 
 Midland Lumber Shippers t. 
 
 G.TJL Co 783 
 
 Midland Rt. Co. v. G.T.P.R. 
 
 Co. 196 
 
 Midland Rt. Co. t. G.T.P. 
 R. 'Co. (St. Bonifac^• 
 
 Crossing Caae • 611 
 
 *^ T. Young 3.5" 
 
 Mignault t. C;.T.R. Co 369 
 
 Milk Shippers t. Grand Trunk 
 Can. Pae., etc., Rt. 
 
 Cos. .'. 752 
 
 Miller t. G.T.K. Co. 285. 568 
 
 ~ T. Halifax Power Co 
 
 487, 849 
 Milligan t. Toronto Ry. Co. .. 693 
 Milling-in-Transit Case. Re . . 
 
 756- 773 
 
 Milsted. Re 337 
 
 Minister of Railways and Ca- 
 nals T. Quebec South- 
 ern Rv. Co. (Hodge's 
 
 Claim '• 6.37. 638 
 
 Minister of Public Wwks of Al- 
 berta T. C.P.R. Co. .. 39 
 
 Minor t. G.T.R- Co 175 
 
 Mitchell T. G.T.R. Co. .. 186, 538 
 
 " T. Hamilton 670 
 
 " T. Sandwich Windsor k 
 
 Amherst burg Rt. Co. 661 
 Misener t. Wabash Ry. Co. . . 190 
 Mission District Board of Trade 
 
 t. CJ».R. Co. .. 68. 473 
 Mission City Board of Trade 
 
 T. C.P.R. Co 462 
 
 Moffatt T. G.T.R. Co. 90 
 
 Moisan v. The King 437 
 
 Moir V. C.P.R. Co. 191. 210 
 
 Mont Laurier t. C.P.R. Co. .. 4«>^ 
 Montreal t. Bell Telephone Co. 83«t 
 
 •* T. C.P.R- Co 469 
 
 " T. C.P.R. Co. (Longue 
 
 Point Spur Case • . . 599 
 " T- C.P. Ry. and G.X.W. 
 
 Telegraph Cos. 856 
 
 " V. Cushing 20 
 
 " T. G.TJL Co. (St. Henri 
 
 Crossing Case i 470 
 
 " T. Montreal Street Ry. Co. 
 36. 147, 148. -590. 657. 6.>9. 669 
 Montreal Hay Shippers' As<u. 
 T. Canadian Freight 
 Assn. 749 
 
XXIV 
 
 CASES DIGESTED. 
 
 Mon-Mon.] Column. 
 
 Montreal Board of Trade v. 
 Canadian Freight Assn. 
 
 751, 771 
 " V. C.P.R. Co. (St. John 
 
 Demurrage Case) . . . 220 
 Montreal Board v. C.P.R. Co. 133 
 Montreal Board of Trade and 
 Fullerton Lumber Co. 
 V. C.P. and G.T.R. 
 Cos. ( Cartier Stop-over 
 
 Case) 814 
 
 Montreal Board of Trade v. 
 Can. I'ac. Ottawa & 
 New York and Inter- 
 colonial Ky. Cos 800 
 
 " V. Grand Trunk and C.P. 
 
 R. Cos 747, 771 
 
 Montreal Light, Heat & Power 
 
 Co. V. G.T.R. Co. .. 215 
 Montreal & Ottawa Ry. Co. v. 
 
 Ottawa 341, 342, 452 
 
 Montreal Park & Island Ry. Co. 
 
 V. Bickerdike 22 
 
 " V. Chateaiiguav & North- 
 ern Ry. Co 1()4, 485 
 
 " V. Montreiil (580, 826 
 
 " V. McDougall 271 
 
 " V. Saint Louis 483 
 
 Montreal Produce Merchants' 
 Assn. V. Grand Trunk 
 
 and C.P.R. Cos 746 
 
 Montreal Terminal Ry. Co. v. 
 
 Montreal 669 
 
 " V. Montreal Light, Heat & 
 
 Power Co 18, 854 
 
 Montreal Tramways Co. v. Mc- 
 Neill 722 
 
 " V. Lachine, Jacques Cartier 
 
 & Maisonneuve Ry. Co. 599 
 Montreal & Southern Counties 
 Ry. Co. V. Greenfield 
 
 Park 788 
 
 " and Woodrow, Re . . . 305, 496 
 Montreal Street Ry. Co. v. Bas- 
 
 tien 687 
 
 " V. Boudrean 546 
 
 " V. Conant 561, 697 
 
 " V. Chevandier 722 
 
 " V. Deslongchamps 688 
 
 " V. Gareau 547 
 
 " V. Girard 200 
 
 " V. Feigleman 224 
 
 Montreal Trannvays Co. v. 
 
 Lefebvre .'. 708 
 
 Montreal Street Ry. Co. v. Mar- 
 ins " 720 
 
 " V. Montreal 31, 147, 590 
 
 " V. Montreal Construction 
 
 Co .50 
 
 *• ▼. Montreal Terminal Ry. 
 
 Co ! . 582 
 
 ** T. Patenaude 545 
 
 Mon-Nas.] Column. 
 
 Montreal Street Ry. Co. v. 
 Montreal Terminal Ry. 
 
 Co 685 
 
 " V. Montreal Terminal Ry. 
 Co. and Board of Rail- 
 way Commissioners .. 17 
 
 " V. Recorder's Court 063 
 
 " V. Ritchie 482 
 
 " V. Walker 714 
 
 Monrufet v. B.C. Elec. Ry. Co. 698 
 Montreuil v. Quebec Ry. Light 
 
 & Power Co 724 
 
 Moodie v. C.P.R. Co 453 
 
 Moore v. B.C. Elec. Ry. Co. . . 708 
 Morgan v. Beique and Minister 
 
 of Raiiwavji 638 
 
 Morin v. Ottawa Elec. Ry. Co. 203 
 
 " V. The Queen 438 
 
 Morrison v. Dominion Iron & 
 
 Steel Co 187 
 
 " V. G.T.R. Co 223, 224 
 
 " V. Pere Marquette Ry. Co. 
 
 645, 646 
 Morley v. Klondike Mines Ry. 
 
 Co 304 
 
 Morse v. C.P.R. Co 462 
 
 " V. Levis County Ry. Co. 669 
 Morton v. British Columbia 
 
 Elec. Ry. Co 689 
 
 " V. G.T.R. Co 542 
 
 Mount Royal .Milling & Mfg. 
 
 Co. V. Grand Trunk 
 
 and Can. Pac. Ry. Cos. 764 
 
 Mountain Lumber !Manufactur- 
 
 er's Assn. (Golden Toll 
 
 Case) 751 
 
 Mountain Scale Tolls Case, Re 753 
 
 Meyer v. G.T.R. Co 172 
 
 Muir and Lake Erie & Northern 
 
 Ry. Co., Re 25, 331 
 
 Mulvenna v. C.P.R. Co 553 
 
 Muma V. C.P.R. Co 282, 838 
 
 Munitions &. Machinery v. Que- 
 bec, Montreal & South- 
 ern Ry. Co. (Shell 
 
 Forgings Case) 787 
 
 Murray v. C.P.R. Co 400, 403 
 
 Muskoka Rates Case 821, 823 
 
 Myers v. Toronto Ry. Co 
 
 572, 698, 709 
 Myerscough and I^ke Erie & 
 
 Northern R. Co., Re 310 
 
 Myles V. G.T.R. Co 806 
 
 Myrtle Bridge Case, G.T.R. Co. 
 
 V. C.P.R. Co 69 
 
 Nanaimo Board of Trade v. C. 
 
 P.R. Co 782, 788 
 
 Nash & Williams and Edmon- 
 ton, Dunvegan & Brit- 
 ish Columbia Ry. Co., 
 Re 26 
 
CASES DIGESTED. 
 
 XXV 
 
 Hat-Ka.] Cblanm. 
 
 Xathanson t. G.T.R. Co. 100 
 
 Natknal Trust Co. t. Bnuit- 
 
 fcwd Street Rv. Co. . . »4 
 
 Xational Tra«t Col ai^ C.P.R. 
 
 Co., lie 311 
 
 Xajlor V. Windsor. Essex Jt 
 Lake ^«hore Rapid Rr. 
 Co. ' . «52 
 
 Xeil T. AnMiieaa Express Co. 
 
 103, 524 
 
 Xeil^oD T. QneWe Brid^ Co. 20 
 
 Xelles T. Hes^ltine 14 
 
 ~ r. Windiior. E$«ex k Lake 
 iSmn Rapid Rt. Co. 
 
 528, 641 
 
 Xekon T. C.PJL Co. . . 261. 262. Sti 
 
 Xew T. Toronto. Hamilton k. 
 
 Buffalo Rt. Co. 376 
 
 Xew Bmnswidt Rr. Co. t. Tbe 
 
 Kin^ ...*. 441 
 
 " ▼. RolMnsDB 411 
 
 ■ T. Taowart 176 
 
 Xew BruBswiH; Vegetable 
 Grower? t. C.P. and 
 Teniisrouata Rr. Cos. 755 
 
 Xew«ll T. C-P.R- Co. . .'. . 3S5, 540 
 
 Xew Hinai: Fruit Cou t. Do- 
 minion Jktlantie Rr. 
 Co. r. 63 
 
 Xewman t. Bell Telephone Co. 
 
 831. 832 
 ' T. Edniont<». Dnnve^n i 
 BX'. Ry. Co. (Winni- 
 pefT-Edmonton Mail Or- 
 der Case» 802 
 
 " T. G.T.R. Co 139 
 
 Xew We$tmin>'ter Board of . 
 Trade r. Great Xorth- 
 OTi Rt. Co. S43 
 
 Xew Westminster and Snrrer 
 Board of Trade t. 
 Great Xortbem Rt. 
 Col '.. 839 
 
 Xew York t Ottawa Rt. Co. t. 
 
 Cornwall 42. 43 
 
 Xia^ara, St. Catharines t To- 
 ronto Rt. (o. t. Ca- 
 nadian Retail Coal 
 
 Jkssn. 801 
 
 " T. DaTj 794 
 
 " T. G.T.R. Col (Merritton 
 
 Crosan^ Case it 607 
 
 " T. G.TJL Co. (Stamford 
 
 Junction CaaeH 489 
 
 Niagara. St. Catharines t, To- 
 ronto Rt. Co. (ThoroM 
 Street Crtt!>»ings I , Re 
 
 56, 452 
 
 Xiagara Falls Board of Trade 
 and Intematjottal Rt. 
 Co, Re 679. 825 
 
 ■k-Oak.] Columu. 
 
 XirhoUs Cb^nifal Co. r. The 
 
 Kinjr 447 
 
 Xieolais r. Dominion Express 
 
 Co. 218 
 
 Xightii^ale t. Union CoUicrr 
 
 Co. 72. 117 
 
 Xiles T. G.T.R. Co. 502, 849 
 
 XoUe T. Campbellford. Lake 
 
 Ontario 4 Westen Rt. 
 
 Co :. 26 
 
 Xok«mi» Crossing Case. G.TJ*. 
 
 R. Co. T. C.P.R. Co. . . 669 
 Xolan T. Montreal Tramwars 
 
 Co. "..723 
 
 Xorraand t. Hall Elee. Rt. Co. 703 
 Xormandin t. Xatianal Ex- 
 press Co. 511 
 
 Xorth BaT Case 801 
 
 Xorth BaT Landowners t. Can. 
 
 Xorthera Ontario Rt. 
 
 Co. .'. 219 
 
 Xorth Crpress t. C.P.R. Co. . . 34 
 Xorth Lanea«ter Excha^ie t. 
 
 Bdl Telephone Co. . . 599 
 Xorth Qoecas Board of Trade 
 
 T. Halifax t South 
 
 Western Rt. Co. 843 
 
 Xorth Shore Rt. Co. t. MeWfl- 
 
 lie . .'. 413. 498 
 
 XcHlh Shore Power & XaTiga- 
 
 tion Co. T. Wallis .. 269 
 Xorth Shore Rt. Co. t. Tmdel 735 
 ~ T. I'rsnlise Ladies of Qne- 
 
 bee 300 
 
 Xorth Simeoe Rt. Co. and To- 
 ronto. In Re 629 
 
 Xorth Toronto Grade Separa- 
 tion 855 
 
 XMlh Toronto Telephmie Tolls 
 
 Case 830. 831 
 
 X. W. Transportation Co. t. 
 
 MeKenzie 3 
 
 Xorthem Coanties Investment 
 
 Trust T. C.P.R. Co. . . 500 
 Xorthem Pae. Express Co. t. 
 
 3Iartin 136, 554 
 
 Xorthem Paeifio Ry. Co. t. Ful- 
 
 lerton 98 
 
 " t. Grant 3, 7S 
 
 X'omszuk t. C.P.R. Co. 141 
 
 Xorwieh t. Attorney-General 627 
 Xotre Dame des Anges r. Bell 
 
 Telephone Co. 831 
 
 Xotre Dame Street Bridge Case 471 
 Xora Scotia Central Ry. Co. t. 
 
 Halifax Banking Co. 4S 
 Xntana t. C^".R. Co. 386 
 
 Oakdale Grain Growers A»a. 
 
 T. G.T.PJL Co. 647 
 
XXVI 
 
 CASES DIGESTED. 
 
 Oak-O'Ro] Column. 
 
 Oak\ ille V. G.T. and C.P.R. Cos. 
 (Ilamillon Joint Sw- 
 tion, Oakville Case) 843 
 
 Oatman v. G.T.R. Co. ... 229, 378 
 '■ V, Michigan Central Hv. 
 
 Co .' . 415 
 
 O'Brien v. Allen 155 
 
 O'Brien Bros. v. C.P.R. Co. .. 381 
 
 O'Brien v. Michigan Central Ry. 
 
 Co 242 
 
 " V. The Queen 428 
 
 O'Callaghan v. Great Northern 
 
 Ry. Co 539 
 
 O'Connor v. Halifax Elec. Tram- 
 way Co 711 
 
 " V. Nova Scotia Telephone 
 
 Co 852 
 
 O'Doll V. Toronto Ry. Co 710 
 
 Ogilvie Flour Mills Co. v. C. 
 
 P.R. Co 97 
 
 Ogle V. B.C. Klec. Ry. Co. ... 099 
 
 O'Hearn v. Port Arthur 701 
 
 Okanagan Valley Growers v. Ca- 
 nadian Freight Assn. 134 
 
 Oliver & Bay of Quinte Ry. Co., 
 
 Re 364 
 
 Oliver-Serim Lumber Co. v. C. 
 P.R. and Esquinialt & 
 Nanaimo Ry. Cos. 157, 800 
 
 O'Neill V. Great Western Hv. 
 
 Co .\ 81 
 
 Ontario Car & Foundry Co. v. 
 
 Farwell 47 
 
 Ontario Fruit Growers Assn., 
 etc., Cos. V. Canadian 
 Freight Assn. (Icing 
 Refrigerator Cars 
 Case) 754 
 
 Ontario Fruit Grower's Assn. 
 V. C.P.R. Co. (Fruit 
 Growers' Case ) 743 
 
 Ontario-Hughes-Owens v. Ot- 
 tawa Elec. Ry. Co. . . 540 
 
 Ontario Lands & Oil Co. v. 
 Canada Southern Ry. 
 Co 372 
 
 Ontario & Manitoba Flour 
 
 Mills v. C.P.R. Co. . . 779 
 
 Ontario & Minnesota Power Co. 
 
 and Fort Frances, Re 604 
 
 Ontario Paper Co. v. G.T.R. Co. 788 
 
 Ontario & Quebec Ry. Co. v. 
 
 Marchcterre 8 
 
 " V. Philbrick 7, 296 
 
 " V. Valliferes 307 
 
 Ontario & Western Co-operative 
 Fruit Co. v. Hamilton, 
 G. & B. Ry. Co 224 
 
 O'Roarke v. Great Western Ry. 
 
 Co. 75 
 
 Ort-Pem.] Column. 
 
 Orth V. Hamilton, Grimsby & 
 Beamsville Elec. Rv. 
 Co .* . 534 
 
 Osborne v. Preston & Berlin Ry. 
 
 Co 54 
 
 Ostrander v. C.P.R., C.N.N, and 
 
 G.T.P.R. Cos 132 
 
 Ottawa V. Canada Atlantic Ry. 
 Co. and Ottawa Elec. 
 Ry. Co. (Bank St. 
 
 Subway Case) 476 
 
 " v. G.T.R. Co 459 
 
 " v. Montreal, Ottawa & 
 
 Western Ry. Co 617 
 
 " v. Ottawa Electric Ry. Co. 656 
 
 Ottawa, Arnprior. & Parry 
 Sound Ry. Co. v. At- 
 lantic and North-West 
 Ry. Co 484, 580 
 
 Ottawa Elec. Ry. Co. v. Ottawa 
 and Canada Atlantic 
 Ry. Co 477, 582 
 
 Ottawa Forwarding Co. v. Ward 100 
 
 Ottawa & New York Ry. Co. v. 
 
 Cornwall, Re .' 40 
 
 Ouellet v. Manager of Grovern- 
 
 ment Railways 101 
 
 Ovlor et al. v. Dominion At- 
 lantic Ry. Co 782 
 
 Ovler V. Dominion Ry. Co. . . . 843 
 
 Ozias V. C.P.R. Co 646 
 
 Pacific Great Eastern Ry. Co. v. 
 
 Larsen 336 
 
 Pacific Great Eastern Ry. Co. 
 
 and Larsen, Re 334 
 
 Paint V. The Queen 315 
 
 Palmer v. ^lidiigan Central Ry. 
 
 Co 373 
 
 Palmiero v. G.T.R. Co 248 
 
 Palo V. C.N.R. Co 40(5 
 
 Paquette v. G.T.R. Co 260 
 
 Paqnet v. New York Trust Co. 234 
 
 Parkdale v. West 315 
 
 Parent v. The King 439 
 
 Parker v. ^Montreal City Passen- 
 ger Rv. Co 6, 686 
 
 Parks V. C.N.R. Co 399, 405 
 
 Parsons v. Toronto Ry. Co. . . 709 
 Pas, The v. G.N.W. telegraph 
 
 Co 828 
 
 Passenger Tolls, Re 82.5 
 
 Patriarche v. G.T.R. Co. . . 147, 489 
 
 Pattison v. C.P.R. Co 268 
 
 Pea Millers Case, Re 743 
 
 Pea Miller's Assn. v. Cana- 
 dian Railway Cos. 
 
 (Pea Miller's Case) 743 
 
 Peart v. G.T.R. Co ISO 
 
 Peck and Peterborough, Re . . 031 
 
 Pedlar v. C.N.R. Co 1 78 
 
 " V. C.P.R. Co 182 
 
 Pempeit v. C.N.R. Co 387 
 
CASES DIGESTED. 
 
 XSTU 
 
 FlEMle's u< Gtlcdoa "Dde^oM 
 
 C^ T. GJT. aiid CP.B. 
 
 -Obr. 729 
 
 IVi9ie°s Tdephow Col t. BcO 
 
 aad Guadima Tele- 
 
 phowCoi. -. 730 
 
 TtHmt V. CJP^ Co. 3^ SS7 
 
 Fete Ifarqpette By. Co. t. 
 
 Cioorh llM 
 
 "^ T. IkloeUpT Mf^ Co. Z5i 
 
 Femoh t. G.T-R. Co. 374 
 
 ]>^Aa T. C-P-R. Col 1±3 
 
 PMateroo^ r. G.TJL Col .. (&i 
 
 F e ttle* T. G.TJL Co. iS3 
 
 FMth T. C^.R. Co. . . ill. ±7<. «» 
 
 Fluur T. C.X-R- Co. *»1 
 
 Fhalra r. G-T.F.R. Co. ±80 
 
 FWiu T. G-T-F JL Col i«2 
 
 Pheuaat Poiat F^rmtn \. C. 
 
 P.R. Co. 39 
 
 IkOip T. Guadiaa Xortk-W<s<- 
 
 en Rt. Co. M7 
 
 FUDips T. G.fjL Co. »3T 
 
 Pic^eri^ t. G.T.PJL Col 573 
 
 PirtOB Baud of Trade t. Caa. 
 
 Xorthen Oatario Rt. 
 
 Co. .". Ml 
 
 Picxve T. G-T.B. Co. Mi 
 
 Kenvrflle t. fkH Tdepboae Co. 44 
 
 KloB T. G-T.R. Co. 777 
 
 Pioa T. Xortk Shwe Br. Co. . . *t8 
 Piti T. Atlaatic Qodier & 
 
 Wesboa Rt. Co. ±»3 
 
 PlaiB T. C-P-R. Co.* 9M 
 
 Platli r. Graad Fork$ 4 Kettle 
 
 RiTer YaileT Br. Col 395 
 
 Fleeter t. G.T.R. Co! 37* 
 
 Pluikctt 4 Savage r. CP.B. Col 756 
 FljrBoatk Corda|e Cos. Ca:s«. Be 768 
 Fniadroa t. tti m la ExfMress 
 
 Col . . 102 
 
 Foiaaaa t. Shertnoke Street 
 
 Bt. Co. «Sa» 
 
 Poatiae t.'CJ»JS. Co. 453 
 
 - T. Botsie 618 
 
 Poatiae Pacifie JaartioB. cte^ 
 
 Bt. Ca6. T. CoManiaitT 
 
 Geaonl Hospital, etc. 3(12 
 Fort Artlrar t. C-P. aad C-X.B. 
 
 Cos. 481 
 
 Fort Artlinr. eir. t. Bdl Tde- 
 
 plMwe Col aad C.P.B. 
 
 Co. iTeleptnaw Ca.s«» 7f8 
 Port Aitknr Elee. Street Bt. 
 
 Cou Be '. 685 
 
 Port Jxtliar aad Fort Williaai 
 
 Boards ai Trade t. C 
 
 PJL Col 780 
 
 Fort Hope Telephoae Co. t. Bell 
 
 TeleplMBe Co. 730 
 
 Potato Shippers, v. C.PJR. Co. 134 
 FotTia T. CJ».B. Col 3S4, 540 
 
 Pie-<^ML] Cofanui. 
 
 Preauer Cool Oou t. Caaadiaa 
 
 Frei^ltAssB. (SwiuA- 
 
 ia^ ToAs Gtseii S1^ 
 
 PrestoB T. Tomato Bt. Col . . . 70± 
 Prestoa 4 Berihi Street By. Gol 
 
 T. G.TJL Co. 605 
 
 Pria« Aibst^ T. G-X.B. Col . . 
 
 IS, 39. 294. 556 
 " tCaaadiaa Xortken Stre«4 
 
 Crossiagi^ Priare JJ- 
 
 bertl 595 
 
 Priaw Bvpert Location G.T. 
 
 P-B. Co, Be 357. 59rt 
 
 FroBse t. C-X.B. Col 409 
 
 Proriaeial Stoae 4 S^ipplr Co. 
 
 T. CJP.B. Co. ..." 7Si7 
 
 PaUie Utilitie-:^ Act, Be 7«ei 
 
 Palpaood Casi? 7SW 
 
 Poreell T. G.TJ»JL Ool (6^s 
 
 Pjrae t. C-P.B. Col 116, 536 
 
 Qr Ai^eOe Loa« Lake 4 Sas- 
 katithewaa Bt.. «tr.. 
 Co. T. C-P.B. Col 346. 467 
 
 Qoa^t T. G.T J».B. Co. 4«« 
 
 Qnelsctf Brid^ Co. t. BaT 33S 
 
 goebee Ccatral Bt. Co. t. Dd- 
 
 ■iaioB Liaie Co. S3ii> 
 
 * T. IVUeria SS9 
 
 ~ T. L4)>rti«- 1<[«S 
 
 Qoefaee Ivprovvaeat Co. t. 
 QnelH^c^ Bridge 4 Rt. 
 
 Col 30i». 3M 
 
 •^ T. Qneber Bridge 4 Bj. Co. 304 
 Qoebec^ 4 Lake St. Joha Br. Col 
 
 T. Giraid ". 171 
 
 ' T. JnliM 258. 577 
 
 ■ T. Keaaedr 836 
 
 ~ T. LnaaT 257 
 
 Qa<e1)cc MoBtmarearr 4 Ckarle- 
 TXHX Bt. Co. t. Gib- 
 
 sooe 353 
 
 = T. Matkiev 20. 2S« 
 
 Qael)««-. MtMtreal 4 Sootbcra 
 
 Bt. Co., Be 6ts; 
 
 ■ T. LaadrT 20. 317 
 
 " T. Tfce Kiag 614 
 
 QuAee t. Qnebec Ccatral Rt. 
 
 Co. 47 
 
 Quebec- Rt_ Light 4 Power Co. 
 
 T. Fortia 27S 
 
 " T. Ijaglaii^ 6W3 
 
 " T. Qurter 664 
 
 Qo^ber Street Rt. Co. t. Qoe- 
 
 her 6*! 
 
 Qoeliee WarAooae Co. t. Ljfxi*. 61 «; 
 Qoeen^oa Heiglit$ Bri«^ JL»- 
 
 seisisawat. Be 2S 
 
 Queea The t. Beanlieo i^' 
 
 - T. Charland 4.": • 
 
 ** T. Greaier 2*4. 443 
 
 " T. Header^oa 432 
 
>vXVUl 
 
 CASES DIGESTED. 
 
 Que-Ric] Column. 
 
 Queen, The, v. McGreevy . .431, 432 
 
 " V. McLeod 44G 
 
 " V. Murphy 433 
 
 " V. Paradis 434 
 
 " V. Smith 42S. 429 
 
 " V. St. John Water Com- 
 missioners 433 
 
 Quinn v. C.P.K. Co 392 
 
 Railway Act Amendment, He 145 
 Railway Act, Re, G.T.P. Brancli 
 
 Lines Co. and Law, Re 334 
 
 " and G.T.R. Co., Re 580 
 
 Raine v. G.T.R. Co 107 
 
 Rainville v. G.T.R. Co. . . 414, 415 
 Ram V. Boston & Maine Ry. Co. 515 
 Ramsay v. Toronto l{y. Co. . . 
 
 227, 5G3, 704 
 
 Randall v. C.N.R. Co 97 
 
 " V. C.P.R. Co 837 
 
 Ray V, C.N.R. Co 380 
 
 Raylield v. British Columbia 
 
 Elec. Ky. Co 5U0, 703 
 
 Reardon and St. John & Que- 
 bec Ry. Co., Re 568 
 
 Red Mountain Ry. Co. v. Blue 418 
 " V. Columbia & Western Rv. 
 
 Co .*. 813 
 
 Regina Board of Trade v. Can. 
 Pac. and Can. North- 
 ern Ry. Cos. (Regina 
 
 Toll Case) 766 
 
 " V. C.P.R. Co 810 
 
 Regina v. C.P.R. Co 358, 478 
 
 Regina Cortage Co. v. Regina 674 
 
 Regina Toll Case 18 
 
 Regina v. Union Colliery Co, 167 
 Reid and Canada Atlantic Ry. 
 
 Co., Re 457, 581 
 
 Remy v. Lake Erie & Northern 
 
 Ry. Co 216 
 
 Removal of Agents from Agen- 
 cy Stations, Re 648 
 
 Renaud v. C.P.R. Co 404 
 
 Renfrew Machinery Co. v. Ca- 
 nadian Freight Assn. 100 
 Rennie v. Northern Ry. Co. . . 87 
 Renwick v. Gait, Preston, etc., 
 
 Ry. Co 209, 210, 542 
 
 Rex V. Alberta Railway & Irri- 
 gation Co. . . 69, 229, 474 
 
 " V, C.N.R, Co 168 
 
 " V. C.P.R. Co. . . 93, 152, 
 
 167, 548 
 " V, G.T.R. & C.P.R. Cos. . . 168 
 
 " V. G.T.R. Co 461 
 
 " V. Hays 168 
 
 " V. McPhee 317 
 
 " V. Toronto Ry. Co. . . 166, 548 
 
 Rice V, Toronto Rv. Co. . 696 
 
 Richard v. C.P.R. Co 541 
 
 Ric-Roy.] Column. 
 
 Richards & Bennett v. G.T.R. 
 
 Co 379 
 
 Richelieu & Ontario Navigation 
 
 Co. V. Dorman 202 
 
 Richelieu Ry. v. Menard 20 
 
 Ricketts v. Sydney & Glace 
 
 Bay l(y. Co 688 
 
 Rideau Lumber Co. et al. v. G. 
 
 T.R. and C.P.R. Cos. 745 
 
 Riddell v. G.T.R. Co 378 
 
 Riley v. Dominion Express Co. 
 
 774, 775 
 Ringwood v. Kerr Bros. & G. 
 
 T.P.R. Co 252 
 
 Rise V. C.P.R. Co 518 
 
 Ritchie v. Blackstoek 630 
 
 '' v. Central Ontario Ry, Co. 633 
 Riverside LumU-'r Co. v. C.P.R. 
 
 Co 752, 778 
 
 Roberts v. Bell Telephone, etc., 
 
 Co 853, 854, 855 
 
 " v. C.P.R. Co 779 
 
 Robertson v. Chatham, Wallace- 
 burg & Lake Erie Ry. 
 
 Co 355 
 
 Robertson v. C.P.R. Co 799 
 
 Robertson and Colborne, Re . . 733 
 Robertson v. G.T.R. Co. . . 517, 
 
 810, 820 
 Robertson and G.T.R, Co., Re 527 
 Robinson v. C.N.R. Co. . . 57, 
 
 58, 215, 220, 324, 500, 588 
 
 " v. C.P.R. Co 76 
 
 " V. G.T.R. Co. . . 76, 521, 
 
 522 592 
 " V. Toronto Ry. Co. ... .". .' 724 
 Robson V. Buffalo & Lake Huron 
 
 Ry. Co 94 
 
 Rocheleau v. G.T.R. Co 399 
 
 Rochester v. G.T.P.R. Co. 232, 849 
 Rodger v. Miniulie Coal Co. . . 833 
 Rogers v. Canadian Express Co. 
 
 585, 834 
 Rogers Lumber Co. v. C.P.R. Co. 98 
 
 Rogers v. G.T.P.R. Co 405 
 
 " v. Great Western Rv. Co. 95 
 Rolland v. G.T.R. Co. . .'. . 23, 308 
 Romaniuk v. G.T.P.R. Co. ... 284 
 
 Ronson v. C.P.R. Co 210 
 
 Rosaire v. G.T.R. Co 230 
 
 Ross V. C.P.R. Co 338 
 
 Ross and Hamilton, Grimsby & 
 
 Beamsville Uy. Co.,' Re 154 
 
 Rostrom v. C.N.R. Co. 251 
 
 Roth V. C.P.R. Co 288 
 
 Roussel V. Aumais 74, 850 
 
 Rowan v. Toronto Ry. Co. . . . 561 
 Rowe V. Quebec Central Ry. Co. 394 
 Royal Trust Co. v. Atlantic & 
 
 Lake Superior Ry. Co. 
 
 60, 488 
 
CASES DIGESTED. xxix 
 
 ■vy-Sn.! Cotun. Sai-ScaL] CblaBs. 
 
 fii^ Irart Co. T. Bue 4es Sain lAvreMc 4 OfcUva Rr. 
 
 Ottlran Rt. C4IL 488 Co. t. Lett .'. 207 
 
 KoT T. Caaa^tiaB ' FMaeager Soiafc LawroMe Palp 4 LaBbrr 
 
 Asm. - aei C«rpa. t. CP.R. Co. 773 
 
 Boree Av«. Groea^ (Toroato), Saiat 3farr » Crga ^uj Co. t. 
 
 Be 4«* G.T.R- Co. il± 
 
 Rorluce t. C.P.R. Col 213 Saiat Pierre v. G.TJK. Co. 4«« 
 
 fioVie T. C^-K- Co. 17» Saiat TlKMas t. Cndit Vallrr 
 
 Iteddkk T. C-P.E. Cot 283 Ry. Col *. fi32 
 
 Rad^ T. Tomato Eastota Rj. ' t. G.TJS. Col 4*3 
 
 Col 2« - T. llick^aa Ccatxal Rv. 
 
 Rani Telephaar Cotw t. BeU Co. .*. 4«$ 
 
 Tricpkow Col 9S9 SaKoa t. IW Ki^ 444 
 
 Ratkvca Woolka 11^ Co. t. Sahrr r. Dowaioa Creosotia^ 
 
 &cat Westcra Rt. Co. 19 Col ,i3« 
 
 Ratiaad Railroad Coa^paar t. Saadcr» v. EdaMatoa^ Dam- 
 
 B^cfBe aad Miaister of 6" *■ Britid CoIbm- 
 
 RaihraTs «3l> kia Rr. Co. 3C2. 3«3. *S9 
 
 Rattaa aad Drnfas aad CXJL Saadviek. Wiadsor 4 Aadirr^- 
 
 Co, Re 319 buf* Rr. Co. lad 
 
 Ratter Statioa Ca^ <M Wiad^or.' Re 3$ 
 
 Batter Statioa Patraa» t. C.P. Saadviek East aad Wiadfor 4 
 
 B. Col (Batter Statioa Teens^^k Eler. Br. Co. €79 
 
 Case « M4 Saraia \. Pnv Marquene- Rr. 
 
 Braa t. Ike Kii^ 4M Co. .'.461 
 
 ^nrksaa t. Haauhoa Griadb^r Sasfcalrkevaa Board ot Ui^k- 
 
 4 BeaaKrille EBer. Bt. war Co— iagioaera. t. 
 
 CoL 11», 4M C JS.B. Col 453 
 
 Rvdcr ▼. SL Joka Bt. Co. . . 699 Saskatckeaaa Brkl^ 4 Iroa 
 
 Co. T. Saah Ste. llarie 
 
 Si^ T. Ekore Liae Br. Co. . . . £32 Rr. Co 7a3 
 
 Saiadoa t. Teauscnaata Bt. Saskatekewaa Laad 4 Hone- 
 Co. 371. 379 st«ad Co. r. Ca^arr 4 
 
 • T. IVe Kiag 432 EdiBooUai Br. Ox 
 
 Saiat Aaae ^ Bdlerae 4 Sea- 24. 339. 340 
 
 aerille t. G.T. aad C. Sa»fcat«rke-vaa Local Isprgav- 
 
 P.B. Co. 47f ■«! Distriet t. CP.B. 
 
 Saiat Boaiface Cro^aa^ Caie. Col CS. 473 
 
 Midlaad Bt. Ca. t. Sa^saa r. C.X.B. Co. (KTle- 
 
 G.TJ*JL Col Ml aore (roK^iag: Caset 4«» 
 
 Saiat C«sair« t. MeFaiiaae . . «7 Sara-e t. CJ»-R. Co. 222 
 
 Saiat Darid's Saad Col t. G.T. Saror aad C.X.B- Col, Be 479 
 
 B. aaa llicklgaa Cca- Savler t. Ckster 31« 
 
 tral Bt. Caa. 799 Seaalia t. CJ».B. Co. 10i» 
 
 Sail* Hcari Tarda Owsia^ Scarlett t. C.PJL Co. 212 
 
 Caise 470 ~ «^- Great Westcra Br. Co. «» 
 
 Saiat HTMiatke Croni^ Case. Sekril r. Bcf:iu 251 
 
 G.TJL Co. T. Uaited Sckelieabei^ r. CJ»JR. Co. 3»» 
 
 Cooties Bt. Co. COS Sckaell t. i:riti«k Colaaibia 
 
 Saiat Joka t. CJ»JL Col 402 Ekr. Rj. («. 713 
 
 Saiat Joka Uemmra^ Ca$e . . ^0 Sckooier aad Lake Erie Xortk- 
 
 Saiat Joka 4 Qaefaee Bt. Co. t. * era Bt. Co. Be 33:^ 
 
 Aadn^^OB ..." 313 Sekmartz r. Balifax 4 S.W. 
 
 '' ▼. BaU 24 Bt. Co. 421. S30 
 
 " T. C.B.B. Co. .. sax COS. COS Sckvart2 t. Wiaaip^ Elee. Rr. 
 
 " t. Frascr 24^ 388 Col 205. 704. 72m 
 
 " T. HikfaanI Co. 614 SciiToob t. 31iekijsaa Ceatral 
 
 Saiat Joka Rt. Co. t. St. Joka 674 R.r- Col 240. 241 
 
 Saiat Laakcrt t. Moatnal 4 ScobeO t. Kla^stoa 4 Peadtroke 
 
 Soatkcra Ciaaliia Rt. Rt. Co. I! Cedar Loa- 
 
 Ca. r. 578 ber Prcdaets Cue) . . 741 
 
XXX 
 
 CASES DIGESTED. 
 
 Sco-Sim.] Column. 
 
 Scott V. C.P.R. Co 25"), 250 
 
 " V, Great Western Ry. Co. 84 
 
 " V. Toronto Ry. Co. .' 70" 
 
 Seaman, Kent Co. v. C.P.R. Co. S(»7 
 
 Section Men. Re 588 
 
 Security Traffic Bureau v. 
 
 Canadian Assn. . . 132, 810 
 
 " V. C.X.R. Co 802 
 
 Sedgewick v. T!ie King 440 
 
 Seigle V. C.P.R. Co. . 404 
 
 Selkirk v. Windsor, Ksscx & 
 
 Lake Shore Rapid Ry. 
 
 Co 575, 570 
 
 Senosac v. Central Vermont 
 
 Ry. Co 413 
 
 Servis Railroad Tie Plate Co. v. 
 
 Hamilton Steel & Iron 
 
 Co 550 
 
 Settlers' Effects, Re 753 
 
 Sexton V. G.T.R. Co 403 
 
 Seymour v. Winnipeg Elec. Ry. 
 
 Co 089 
 
 Sliannon v. Montreal Park & 
 
 Island Rv. Co 7, 299 
 
 Shapter v. G.T.R.' Co 225 
 
 Sharpe v. C.P.R. Co 544 
 
 Shaw V. C.P.R. Co 8 
 
 Shea V. Halifax & S.W. Ry. Co. 113 
 Sheahen v. Toronto Ry. Co. . . 204 
 
 Shell Forgings Case 787 
 
 Sheppard v. C.P.R. Co 138 
 
 Shingsbv v. Toronto Ry. Co. . . 696 
 Shingle"^ Agency v. C.P., C.N. 
 
 and Great Northern R. 
 
 Cos 598 
 
 Shippers, etc. v. C.N.R. etc., 
 
 Cos 798 
 
 Shippers by Express v. Can. 
 
 Northern Express Co. 
 
 and Central Ontario 
 
 Ry. Co 592 
 
 Shondra v. Winnipeg Elec. Rv. 
 
 Co 289, 500 
 
 Shore Line Rv., Re 145 
 
 Short V. C.P.R. Co 257 
 
 Shulak V. C.X.R. Co 277 
 
 Sliunting on Ferguson Ave.. 
 
 Hamilton. Re 323, 593 
 
 Shragge v. Winnipeg 03, 316 
 
 Sidney Board of Trade v. Great 
 
 Northern Ry. Co 789 
 
 Simcoe Fruits and Ontario 
 
 Fruit Growers' Assn. 
 
 v. G.T.R. and C.P.R. 
 
 Cos 593, 815 
 
 Simington v. ]Moose .Jaw 709 
 
 Similkameen Farmers Institute 
 
 V. C.P.R. and Great 
 
 Nortliern Ry. Cos. ... 803 
 
 Simmerson v. G.T.R. Co 248 
 
 Simpson v. Toronto & York 
 
 Radial Ry. Co 710 
 
 Sim-Ste.] Column. 
 
 Sims v. G.T.R. Co 189 
 
 Sinclair v. Windsor, Essex & 
 I^ake Shore Rapid Ry. 
 
 Co 803 
 
 Sisters of t harity of Rocking- 
 ham V. The King .... 436 
 
 Sitkoff V. Toronto Ry. Co 709 
 
 Smart-Woods v C.P.R. Co. ... 90 
 Smith V. Canadian Express Co. 102 
 
 '• V. C.P.R. Co 110 
 
 " V. G.T.R. Co 261, 267 
 
 " V. Niagara & St. Cath- 
 arines Rv. Co 180 
 
 " v. Regina . ." 540, 707 
 
 " V. Saint John City Ry. Co. 7 
 Smith Falls and C.P.R. Co., Re 479 
 
 Smyth V. C.P.R. Co 339 
 
 Snell V, Victoria & Vancouver 
 
 Stevedoring Co 214 
 
 Sorel V. (Quebec S(nithern Ry. 
 
 Co 620 
 
 South Alberta Wool Growers' 
 
 Assn. V. C.P.R. Co. . . 134 
 Southern Alberta Hay Growers 
 V. C.P.R. CV (Timothy 
 
 Seed Case ) 599 
 
 South Hazelton, Re 045 
 
 South Ontario Pacific Rj'. Co. v. 
 G.T.R. Co. (Junction 
 
 Cut Case) 347 
 
 Soulsby V, Toronto 195 
 
 Spadafora v. Grifiin 163 
 
 Spaner v. Central Canada Ex- 
 press Co 101 
 
 Spanish River Pulp & Paper 
 
 Mills v. C.P.R. Co. . . 752 
 
 Sparano v. C.P.R. Co 274 
 
 Spedding v. G.T.R. Co 91 
 
 Spencer v. C.P.R. Co 524 
 
 Sporle v. G.T.P.R. Co 395, 407 
 
 Spruce Vale Scliool District 
 
 and C.P.R. Co., Re . . . 36 
 
 Staats v. C.P.R. Co 553, 563 
 
 Stamford .Junction Ca^e 489 
 
 Standard Crushed Stone Co. v. 
 
 G.T.R. Co 61 
 
 Standard Railway Fences, Re 387 
 Stanton v. Canada Atlantic Rv. 
 
 Co ; . . 9 
 
 Stapley v. C.P.R. Co 22(i, 227 
 
 Starratt v. Dominion Atlantic 
 
 Ry. Co. 134. 560, 565, 572 
 Steel Co. of Canada v. Toronto, 
 Hamilton & Buffalo 
 
 Rv. Co 817 
 
 Steelton and C.P.R. Co.. Re . . 38 
 
 Stevens v. C.P.R. Co 13, 170 
 
 Stevenson v. G.T.R. Co 257 
 
 Stephens v. Toronto Rv. Co. . . 209 
 
 Stewart v. C.P.R. Co. * 747 
 
 " V. Napierville Junction Rv. 
 
 Co 589, 644 
 
CASES DIGESTED. 
 
 XXXI 
 
 Ste-T^.j Cohuu. 
 
 Sterae Seas r. Caaadiaa 
 
 Frn^t Jkasa. 7^ 
 
 8itiles ▼. C^.R. Co. 3T« 
 
 Stittt ▼. CJiJL Gol M, 3M, 406. 5S3 
 
 Storfcer t. GP JK. Ool 22J 
 
 Stocktoa T. DowaioB Expnas 
 
 Col 5»1, 7«$ 
 
 Stocktoa A Halnsoa t. CPJB. 
 
 G«. T60 
 
 StoluiF Mtg. Co. T. CJ*JL and 
 Wcstcni Cwuda Pow- 
 er Co*. WO 
 
 Stme T. CP-R. Co. . . im. ISl, 
 
 ±$». i7S». *» 
 
 Stow Qnarrr £atc><^ Ca<«- 744 
 
 StoKT Powt T. Bdl TrlvplioBe 
 
 Co. - 597 
 
 Stratford A Haroa Rt. Co. and 
 
 Ptetk. Ke eSB 
 
 Stntkdmir t. CJC.R. Co. 45» 
 
 Stxcct T. CP.R. Co. 258 
 
 Saheidr Ijwd Ca^ C14 
 
 Kwrm* Jc Malting Co. 
 
 T. C.P.R- Co. 780 
 
 T. G.T.R. Co. 5» 
 
 SrtWrfaiBd T. C^ JL Co. . . I». 
 
 ±3X oOl 
 
 " T. G.T.R. CoL 510 
 
 SothnrlftMl-Iues Co. v. P^n 
 HarqiHtle. Mki^paB 
 C«atta] Rt. Ccs^ fCb- 
 opertsc- S^ock Rates 
 
 Casrk' -.- 804 
 
 Swudud T. O.TJL Co. -.15. 
 
 SiralF T. CP.R. Co. . . 96. 106. 107 
 8«u T. C.X.R. Col 558, S3S 
 
 Svitdkias: ^^^ (~*^ *1* 
 
 SjFdraluuB Glass Co. Ciue 904 
 
 Sffccs T. BnN&Tille t Ottawa 
 
 Kt. Cou 625 
 
 SyiH g t oa' Ave. Crasna^ Casr 461 
 SfsoB T. G^wlph Jfc Godoick 
 
 Rt. Co. 557 
 
 Sjadieate ATorae CnKisiag Case 471 
 
 Talib T. G.T.R. Col 384. *40 
 
 Tait T. C-PJR. Col 419 
 
 '' T. British Cohnnlitia Eler. 
 
 Rt. Co. 706 
 
 Taa Bark 'Rates Cafe. R*- 7C2 
 
 Taa^vaT t. Great X<wlh«nt«tera 
 
 ' Telepcrapii Col 727 
 
 " T. G.T.R.CO. 172 
 
 TaTigtodc: r. G.T.R. Co. 467 
 
 Tiqrlor T. B-C. Eier. Rt. Co. 
 
 199. 307 
 
 * ▼. Caaadiaa Frei^t Ai^i^a. 747 
 
 • T. G-TJL CoL 78. 554, 7M 
 
 TaTlor aad Canadiaa Flour 
 
 iOll* Co. T. CJPJL. 
 cftc, Ry. Cob. 817 
 
 Xay-Tat] 
 TaTlor aad Caaadiaa North- 
 era Rt. Co, Be 309 
 
 Tiri^n^ Toilk. Be 8S7. $i38 
 
 Triephoar Ca^. Be 72» 
 
 Telephaae Coaaretiaa aad Coai- 
 
 ■mairotina Caae. R<- 731 
 T<au'§««iaata Kj. Co. t. Clair 
 
 ±2. 34* 
 
 ~ T. HaiFnIoaild 1 
 
 T<au?kanua« Teiqiihnae Gol t. 
 
 Colxalt TK 
 
 Terre-U t. Port Hood Rkhaftoed 
 
 Rt. 4 Coal Col 51 
 
 ThaaKsriUe t. G.T.R. Co. 4«I 
 
 Thrtcr^ T. Tlie Ki^ 44» 
 
 Tketiaait t. The Ki^ 440 
 
 TUaaTille t. CkaadiaB Ex^vss 
 
 Co im 
 
 Thikanlt x. The Kii^ 44^ 
 
 Thrift T. New WestauoKter 
 Soothera Ic Great 
 Northera Rj. Co. 586, 043 
 
 Thmaas t. CP.R. Co. 369 
 
 -T.Walter 660 
 
 ThoaqiMM t. G.T.R. Co. <S2 
 
 ThonM T. G.T. et aL R. Cosw . . 5$3 
 ~ T. Graad Tmak aad Niag- 
 ara. St. Cathariaes 4 
 
 - Toraato Rj. Cosw 49± 
 
 Thorold S^trvet Cn»$i»iBg ... X. 452 
 
 TUbarT t. G.TJL Co. 229' 
 
 Tiaiiai'iaiiB t. St. Joha 3» 
 
 Tuaes Pahiwhiag Co. t. C.PJL. 
 
 G.N.W. aad Westera 
 
 Uaioa Tek^raph Cos. 726 
 
 TiaothT Seed Ca«e. Soothera 
 
 J^IWrta HaT Growers 
 
 T. CP.R- Co. 599 
 
 Tiake»^ t. BtU Telephooe Col 7» 
 TiasleT t. Tomato Rt. Co. 692. 693 
 Tomato t. Bell Telephoae Co. 
 |Xort?i Toraato Tel«e- 
 
 idioae Case-)! SSO. ^I 
 
 « T. C-N-R. Co. fDoa VaDej 
 
 Shnatiag Case » 60^ 
 
 " T. ( .P.R. Col 146. 465. 476 
 
 - T. CP.R. Col {SjviagiUiia 
 
 ATeaoe Caaei 461 
 
 •- T. G.T.R. Co. 146 
 
 -* T. G.T.R. Co. aad CPJL 
 Co. (York Street 
 
 Bri^Caae) 63> 
 
 ' T. MetropolitaB Rj. Co. 
 
 345. 49(4 
 " T. (>itario 4 Qneliee By. 
 
 Co. 62.^ 
 
 " T. Tomato Eler. Li^t Co. 11 
 ~ T. Toroato Br. Co. . . 9. 31, 
 39. 153. '497- 655. 670. 
 674. 675. 676, 677, 67SL 
 
 6»v3 
 
XXXll 
 
 CA8ES DIGESTED. 
 
 Tor-Tor.] Column. 
 
 Toronto v. Toronto & York 
 
 Radial Ry. Co 603 
 
 Toronto Board of Trade 
 V. Canadian Freight 
 
 Assn 751 
 
 ** V. Canadian Freight Assn. 
 (Grain Inspection 
 
 Case) 817 
 
 Toronto and Brampton v. G.T. 
 etc., Ry. Cos. (Bramp- 
 ton Commutation Rate 
 Cas(s No. 2) .... S21, 822 
 Toronto and Citizens Committee 
 V. Express Trallic 
 
 Assn 770 
 
 Toronto Elec. l.igliu Co. Assess- 
 ment, Ke 34 
 
 Toronto Electric, etc. v. C.P.R. 
 Co. (North Toronto 
 (jrade Separation 
 
 Case) 855 
 
 Tiironto General Trusts Corp. 
 V. Central Ontario llv. 
 Co. . . 52, 53, 500, 036, 039 
 Toronto, Hamilton & Buffalo 
 
 Ry. Co. V. Hanley . . . 375 
 
 " V, Simpson Brick Co 377 
 
 Toronto & Niagara Power Cp. 
 
 V. North Toronto, 149, 105 
 Toronto Rv. Co. v. Balfour . . . 502 
 
 " V. Bond 253 
 
 " V. Fleming 720 
 
 " V. Gosnell 099 
 
 " V. Grinstad 722 
 
 " V. The King .. 10, 150, 
 
 549, 570, 692 
 
 " V. Mulvauev 087 
 
 " V. Paget . ." 723 
 
 " V. The Queen 190 
 
 " V. Snell 237 
 
 " V. Toms 207 
 
 " V. Toronto . . 293. 494, 050. 
 
 (iOl, 069, 070 
 Toronto Ry. Co. v. Toronto and 
 
 C.P.R. Co. 150, 475 
 
 Toronto Rv. Co. and Toronto, 
 
 Re 003. 080 
 
 Toronto Suburban Ry. Co. v. 
 
 Everson 330 
 
 " V. Toronto 002 
 
 Toronto Terminals Ry. Co. v. 
 Toronto and Toronto 
 Harbour Commission- 
 ers 472 
 
 Toronto and Toronto Ry. Co., 
 
 Re 291, 490 
 
 Toronto and Toronto & Subur- 
 ban Ry. Co., Re . . 005, 073 
 Toronto and Toronto & York 
 
 Radial Ry. Co., Re 19, 332 
 
 Tor-Val.] Column. 
 
 Toronto Viaduct Case . . 18, 65, 
 
 66, 589 
 
 Toronto & York Radial Ry. Co. 
 
 V. Toronto 662 
 
 Toronto & York Radial Ry. Co. 
 
 and Toronto, Re 663 
 
 Tobin V. C.P.R. Co. . . 204, 278, 289 
 
 Tobique Vallev Rv. Co. v. C.P. 
 
 R. Co. ..' 838 
 
 Todd V. Meaford 350 
 
 Toll V. C.P.R. Co. .. 198, 555, 563 
 
 Tolmie v. Michigan Central Ry. 
 
 Co 1.39 
 
 Toms V. Toronto Ry. Co 206 
 
 Torangue v. C.P.R. Co 274 
 
 Tower Oiled Clothing Cos. 
 
 Case, Re 742 
 
 Traill v. Niagara, St. Cath- 
 arines and Toronto Rj'. 
 Co 504 
 
 Trawford v. British Columbia 
 Elec. Ry. Co. ,. 212, 
 
 542, 556 
 
 Trenholm. Ex parte 167 
 
 Trenton, Maynooth & Bancroft 
 
 Line, Re 840 
 
 Trites v. C.P.R. Co 598 
 
 Trusts & Guarantee Co. v. 
 
 Grand Valley Ry. Co. 54 
 
 Tudor V. Quebec «t I^ke St. 
 
 John Ry. Co 118 
 
 Turgcon v. The King 444 
 
 Turnbull. Ex parte; The King 
 
 V. Sharp 32 
 
 Twenty-First Street Crossing 
 
 Case 455 
 
 Twin City Coal Co. et al. v. 
 Can. Pac, Can. North- 
 ern and Grand Trunk 
 Pacific Rv. Cos 756 
 
 Twin City Transfer Co. v. C.P. 
 
 R. Co 646, 649 
 
 Twin Elm Flag Stop Case, Mar- 
 tin V. C.N.R. Co 648 
 
 Two Creek Grain Growers' 
 
 Assn. V. C.P.R. Co. . . 780 
 
 Underbill v. C.N.R. Co 597 
 
 Union Colliery v. The Queen . . ]67 
 United Factories v. G.T.R. Co, 742 
 United ^lotor Co. v. Regina... 711 
 United States Growers v. Can- 
 adian Freight Assn. 
 (Milling- in - Transit 
 
 Case) 750 
 
 Urquhart v. C.P.R. Co 426 
 
 Usher v. Town of North To- 
 ronto 301 
 
 Vallee v. G.T.R. Co. 
 
 179 
 
CASES DIGESTED. 
 
 XXXUl 
 
 Val-Wad.] Colmnii. 
 
 VaUi#re> v. Ontario k Quebe*:- 
 
 Ry. 0>. 25 
 
 Vaineoaver t BritUh Colambui 
 
 Hec. Rj. Co. 681 
 
 ■^ T. C J»JL Co. . . . 337, 472, 482 
 
 VaacouTer t. Great Northern 
 and British Columbia 
 Elec- Rt. Cos. 468 
 
 VaiMoaTer Interior Rates Case, 
 
 Re 75S 
 
 VaneooTvr Poira- Co. v. Houn- 
 
 some 218 
 
 VaJi«MiTer-PriiK» Rupert Meat 
 Co. T. Great Xorthem 
 Ry. Co 130 
 
 VaBconrer t. Vancouver, Vic- 
 toria i Eastern Rv. 
 
 etc, 0». 309. 596, 
 
 600. 617 
 
 VaneouTer, Victoria t Eastern 
 Rt. etc. Co. \. McDon- 
 ald 29a, 528 
 
 - T. Delta 343 
 
 Vancouver. Victoria t East- 
 em Rt.. etc., Co. and 
 Mil*t«L Re 360 
 
 VaneouTcr. Westminster k Yu- 
 kon Rt. Co. t. Sam 
 Kee .." 21 
 
 Van Home and Winnipeg & 
 Xorthem Rt. Co., Re 
 
 24. 16o 
 
 VeiDenx t. Atlantic t Lake Sn- 
 
 peritH- Rt. Co. 53, 143 
 
 Velaskr t. Western Canada 
 
 Power Co. 287 
 
 Vernon Fruit Co. t. C.P.R. Co. »4 
 
 Vczina t. The Queen 4^ 
 
 Viekers t. Shuniah 631 
 
 Yietmia and AttomcT-General 
 for British Columbia 
 T. Equipment & Xanai- 
 mo Rt. Co. 601 
 
 Victoria t. British Columbia 
 
 Elec- Rt. Co. «56 
 
 Victoria Dominion Theatre Co. 
 T. Dominion Express 
 Co. 104 
 
 Victoria t. Esqfuimalt k Xanai- 
 
 mo Rt. Co. 459 
 
 Viger T. The King 3SS. 441 
 
 VHIeneuTe t. C.P.R. Co. 188 
 
 Virden t. CJ'JL Co. 481 
 
 Wabash Rt. Co. t. McKay 183 
 
 ■^ t. Misener. etc 190 
 
 Waddington t. K««|uimalt A 
 
 Xanaimo Rt. Co. .... 73.5 
 ' T. Toronto k Tiwk Radial 
 
 Ry. Co 685 
 
 Waddington and Toronto k 
 York Radial Rt. Co.. 
 Re .' 659 
 
 Was-Wes.] Gofaunn. 
 
 Washington t. G.T.R. Cou MS 
 
 Wait* V. G.T.P.R- Co. 386, 408 
 
 WaJd ▼. Winnipeg Elec. ^. Col C93 
 
 Walker t. C.X.R. C<». 287 
 
 " T. CJ».B.Co. 535 
 
 " T. Tmronto k Xiagara Pow- 
 er Co. 354 
 
 '^ T. Wabash Ry. Co. 283 
 
 Walkerville v. G.T. and Pere 
 
 Marquette Ry. Co& . . 462 
 
 Wallace t. C J».R. Co." Ml 
 
 •* T. G.T-R- Co 406 
 
 " T. Great Western Ry. Co. C2S 
 Wallatreburg Cot Glass Works 
 T. Canadian Freight 
 Asism. (Cut Glass Clas- 
 sification Case; 755 
 
 Wallaceburg Sugar Co. t. Can- 
 adian Car Sonnee Bu- 
 reau (ATonge Demur- 
 rage Case I 220 
 
 Walividge t. Fanrell 47 
 
 Wallingford t. Ottawa Elec. 
 
 Rt. Co. 715 
 
 Wallnian t. C.P.R. Co 264 
 
 Walsh t. International Bridge 
 
 4 Terminal Cou 73 
 
 Walpole T. G.T.R- Co. 466 
 
 Walters t. CP.R. Co. 85. 49S 
 
 Wamboldt t. Halifax 4 South 
 
 Western Ry. Co. 26.1 
 
 Warrington et aL t. Canadian 
 
 Freight A$sn. 780 
 
 Waterloo t. Berlin 603. 68« 
 
 Waterloo ▼. O.T.R. Co, 602 
 
 Watson T. C.P.R. Co. 752 
 
 WaT T. St. Thomas 35 
 
 WeaTcr t. C.X.R. Co. 170 
 
 Weddell T. Ritchie 53. 63.1 
 
 Weg«»na«it t. G.TJL Co. 
 ( Brampton Commuta- 
 tion Rate Ca$« I 821 
 
 Weir T. Hamilton Street Ry. 
 
 Co. * . 706 
 
 Welland t. Canadian Freight 
 Assn. f Plymouth Cord- 
 age Cos. tassel 768 
 
 Wentworth t. Hamilton Radial 
 
 Elec. Rt. Co 662 
 
 Wentzell r. Xew Brunswick. 
 
 etc.. Ry. Co. 252 
 
 West T. Cwbett 422. 5i>» 
 
 -" T. Parkdale 314 
 
 Western Associated Press t. 
 C.PJL and Gn>at 
 Xorthwestera Tele- 
 graph Cos. S26 
 
 W*«tem Counties Ry. Co. t. 
 Windsor k Annapolis 
 
 Rt. Co. fi 
 
 Westem Freight Rates Case, Re 776 
 
XXX IV 
 
 OASES DIGESTED. 
 
 Wes-Win.] Column. 
 
 Western Ontario Municiitu lilies 
 V. G.T., Michigan Cen- 
 tral and Pere Mar- 
 quette Ky. Cos 778 
 
 Western Retail Lumbermen's 
 Assn. V. C.P.K. et al. 
 Cos 781 
 
 Western Tolls, Ke (Western 
 
 Freight Kates Case) 770 
 
 Western Trust Co. v. Ilcgina . . 280 
 
 West Uwillimtmry v. Hamilton 
 & North Western Ry. 
 
 Co '.. (525 
 
 " V. Simc'oe 630 
 
 Westhaver v. Halifax & S.W. 
 
 Ry. Co 423 
 
 Westholme Lumber Co. v. G.T. 
 
 P. Ry. Co 505 
 
 Weston V. Can. Pac. and Grand 
 Trimk R. Cos. (iJeni- 
 son Ave. Crossing 
 Case ) 463 
 
 W^est Toronto and Toronto Ry. 
 
 Co., Re 668 
 
 West Virginia Pulp & Paper 
 
 Co. V. C.P.R. Co 803 
 
 Wheatley v. The King 447 
 
 White V. Beique and Minister 
 
 of Railways 638 
 
 " V. C.N.R. Co 238 
 
 " V. Victoria Lumlier and 
 
 Mfg. Co 279 
 
 Whitby V. G.T.R. Co 621, 846 
 
 Whitcomb v. St. John & Que- 
 bec Ry. Co 382 
 
 Whitford v. Nova Scotia Tram- 
 ways, etc 721 
 
 Wicher v. C.P.R. Co 348 
 
 Wile V. Bruce Klines Ry. Co. 633 
 
 Wilkes V. Saskatoon 707 
 
 Wilkinson v. British Columbia 
 
 Elec. Ry. Co 260 
 
 " V, Canadian Express Co. 526 
 " V. G.T.R. Co 405 
 
 Williams v. British Columbia 
 
 Elec. Ry. Co 718 
 
 " V. Govcrnnitnt Railways 
 Management Board 
 
 437, 448 
 
 Williams and G.T.R. Co., Re . . 300 
 
 Williams v. G.T.R. Co 17 
 
 " V. Toronto & Vork Radial 
 
 Ry. Co 722 
 
 Wilson Bros. v. Can. Northern 
 
 Ontario Ry. Co 379 
 
 Wilson V. Canadian Develop- 
 ment Co 10.7 
 
 Wimbles v. G.T.R. Co 380 
 
 Windatt and Georgian Bay & 
 
 Seaboard Co., Re .... 367 
 
 Win-Woo.] Column 
 
 Windsor & Annapolis Ry. Co. 
 V. The Queen and 
 Western Counties Ry. 
 
 Co 430 
 
 Windsor v. Bell Telephone Co. 731 
 
 •• V. C.P.R. Co 474 
 
 Windsor, Essex «i Lake Shore 
 Rapid Ry. Co. v. Mich- 
 igan Central Rv. Co. 605 
 
 " V. Nelles ! 13 
 
 Wing Tor. Re 121 
 
 Winnipeg' V. C.P.R. Co. .. 480, 597 
 '• V. C.P.R. Co. (Greater 
 Winnipeg Water Dis- 
 trict Case) 534 
 
 Winnipeg-Edmonton Mail Order 
 
 Case 802 
 
 Winnipeg Elec. Ry. Co. v. C.P. 
 
 it. Co 610 
 
 " V. Hill 702 
 
 " V. Schwartz 113 
 
 " V. Shondra 249 
 
 " V. Wald 570 
 
 " V, \Mnnipeg .. . 5, 0, 38, 
 
 659, ()68, 683 
 Winnipeg .loblx-rs, etc. v. C.P. 
 R. Co. (Flag Station 
 
 Case I 643 
 
 Winnipeg .7ol)l)ers' Assn. v. 
 C.P.R. Co. (Kootenay 
 
 Rate Case) 759 
 
 «' V. C.P.. C.N. and G.T.P.R. 
 Cos. (Winnipeg Rate 
 
 Case ) 759 
 
 Winnipeg N()rth- Eastern Rv. 
 
 Co., Re .' . 357 
 
 Winnipeg Oil Co. v. C.N.R. Co. 414 
 Winnipeg v. Winnipeg Elec. 
 
 Ry. Co 227, 667 
 
 Winterburn v. Edmonton, Yu- 
 kon & Pac. Rv. Co. 
 
 393, 532, 556 
 Winter v. British Columbia 
 
 Elec. Ry. Co 689 
 
 Wolfeville Fruit Co. v. Domin- 
 ion Atlantic Ry. Co. 63 
 Wolfeville Milling Co. v. Do- 
 minion Atlantic Ry. 
 
 Co ." . 60 
 
 Wolsely Tool & Motor Car Co. 
 
 V. Jackson 101 
 
 Wood V. C.P.R. Co. . . 236, 263, 
 
 841, 850 
 " V. Grand Valley Ry. Co. 
 
 156, 157, 198, 201 
 Woodburn Milling Co. v. G.T.R. 
 
 Co 394 
 
 Woodstock V. Gieat Northwest- 
 ern Telegraph Co 727 
 
CASES DIGESTED. 
 
 XXXV 
 
 Woo-WyL] Column. Wyn-Ziif.] Coliunn. 
 
 Woodstodc T. Woodstock i. Wvnnes t. Montreal Park k Is- 
 
 Lake Erie Rv. Co. ... 622 ' land By. Co. 301 
 
 Worsley v. C.X.R. CoT 567 
 
 ^™y 7- C ;i-?-/^. ;^ Yale Uol*l Co. v. Vancouver, 
 
 Wnght T. G.T.K. Co. .-■-.-•- 18* vjctona * Eastern Ry! 
 
 V. Michigan Central Ry. ^-^ 254 404 
 
 i>.^**' V> ■ ' ;i" vV " ' X ' A~^ Yeates v. G.T.R. Co .' 39U 
 
 " T. Pictou County Elec Co. b<2 x- _i- v:».^.^ »>: i„» t-.^ <- 
 
 ^1- ^ n i~> ;»n^ lork btreet Brnlge Case 6a 
 
 ** T. Toronto Rv. Co 203 " 
 
 Wylie Milling Co.* v. CJJL Co. 770 
 
 ** V. C.P. and Kingston 4 Zimmerman v. C.P.R. Co. 94 
 
 Pembroke Ry. Cos. ... 749 Znfelt v. CJ>.R. Co. . . 13, 184, 200 
 
DIGEST 
 
 ACCIDEMT KEPOSTS. 
 See Di a et wei j . 
 
 ACCOMMOOATIOK. 
 See Ctni^rs of Passengers, 
 
 ACCOUITTING. 
 Acnas TOB — OjfTS — PA«ncriJuts. 
 
 In an aetitm ea reddition de compte by a eoanpanv against its presi- 
 dent it is for the defendant ■who alleges that the board of dire^ors of 
 the plaintiff is not complete to prove it. Tbe plaintiff, which demands 
 that in defanlt of rendering an aceonnt the defendant be oondonned to 
 par a certain amount irhich it has beoi informed he has receiivd mder 
 certain ecHitracts, is not bound to state at what date and from what per- 
 sons such snm was received. 
 
 Toniscoaata Rj. Co. r. llacdonald, 3 Que. P.B. 462. 
 
 ACQUISITION OF BAILWAT. 
 
 ACQtTSinOX BT GOTERXltEST — ^^CBSIDIES" "ACTTAI. COST" — ISTIOUST 
 
 ASD CHAKGES OX BOXDS ^VAtUK OF CXDEirrAKING. 
 
 The Court was required to fix the value of certain railways to be ac- 
 quired by the Crown under the provisions of 6 i 7 Geo. V. c. 22. By 
 s. 2 of such statute it was provided that the consideration to be paid for 
 eadi of the said railways should be the value as determined by the Ex- 
 chequer Court of Canada, "said value to be the actual coist of the said rail- 
 ways, less subsidies and Ies« depreciation, but not to exceed ^.S49.000, 
 exclusive of outstanding bonded indebtedness, which is to be assumed by 
 the Government, but not to exceed in all $2^500,000." Held, that the 
 word ^subsidies" in the above section did not relate only to those granted 
 by the Dominion Government but extended to any subsidies granted by the 
 provincial Government to the railways in question. The Court in finding 
 the '^actual cosf'' ought not to proceed as if the matter were an account- 
 ing between the directors of the railways and the shareholders. Tlie 
 duty of the Court was to ascertain the value of the railways as between 
 Tendor and purchaser, and that value must be taken to be the actual 
 cost of the railways less sobsidies and less depreciation. Interest aa bonds 
 issued by the company and moneys paid on the dotation of bonds during 
 the period of constriKtion of the railways could not be included in Actual 
 eost~ as the term was used in the statute. 
 
 Attorney General of Canada v. Quebec i. Saguenay By. Co., 23 Can. Ry. 
 Gab 310. 41 D.L.R. 576. 17 Can. Ex. 3«J6. 
 Can. Rt. L. Dig.— L 
 
2 '"'^^. '^'•' '•"•''"'_, AGENTS., 
 
 ••\ ; /'' f /' ,' '• , -' ')l , ^i /'■'■. ACTION. 
 
 Injuries resulting from operation of street railways, see Street Rail- 
 ways. 
 
 See Negligence; Notice of Action; Pleading and Practice. 
 
 Annotation. 
 Right of action in Quebec when barred in Ontario. 19 Can. Ry. Cas. 44. 
 
 ADVERTISING. 
 Advertising contract with street railway, see Contracts. 
 
 AGENTS. 
 
 Shipping note — Fbaitdulent receipt of agent — Liability of company. 
 
 C, freight agent of respondents at Chatham, and a partner in the firm 
 of B. & Co., caused printed receipts or shipping notes in the form com- 
 monly used by the railway comi)any to be signed by his name as the com- 
 pany's agent, in favour of B. & Co.. for flour which had never in fact 
 been delivered to the railway company. The receipts acknowledged that 
 the company had received from B. & Co. the flour addressed to the appel- 
 lants, and were attached to drafts drawn by B. & Co., and accepted by 
 appellants. C. received the proceeds of the drafts and absconded. In an 
 action to recover the amount of the drafts: — Held, Fournier and Henry, 
 JJ., dissenting, that the act of C. in issuing a false and fraudulent receipt 
 for goods never delivered to the company, was not an act done within the 
 scope of his authority as the company's agent, and the company was there- 
 fore not liable. [3 A.R. (Ont.) 446, 42 Q.B. 90, alhrmed.] 
 
 Erb. V. Great Western Ry. Co., 5 Can. S.C.R. 179. 
 
 [Discussed in Ward v. Montreal Cold Storage Co., 26 (}ue. S.C. .320; 
 distinguished in Moore v. Ontario Investment Assn., 16 O.K. 269 ; Ward 
 V. Montreal Cold Storage Co., 26 Que. S.C. 341; Randall et al. v. Can. 
 Northern Ry. Co., 19 Can. Ry. Cas. 343, 21 D.L.R. 457; followed in Do- 
 minion Express Co. v. Krigbaum, 18 O.L.R. 533; referred to in Monteith 
 v. Merchants' Despatch Co., 1 O.R. 47.] 
 
 Freight agents — Authority to advise of shipments. 
 
 E., in British Columbia, being about to purchase goods from G., in 
 Ontario, signed, on request of the freight agent of the Northern Pacific 
 Ry. Co. in British Columbia, a letter to G. asking him to ship goods via 
 Grand Trunk Ry. and Chicago & N. W. Ry. Co., care Northern Pacific 
 Ry. at St. Paul. This letter was forwarded to the freight agent of the 
 Northern Pacific Ry. Co. at Toronto, who sent it to G. and wrote to him, 
 "I enclose you card of advice, and if you will kindly fill it up when you 
 make the shipment send it to me, I will trace and hurry them through 
 and advise you of delivery to consignee." G. shipped the goods as sug- 
 gested in this letter deliverable to his own order in British Columbia: — 
 Held, affirming the decisions of the Courts below, 21 A.R. (Ont.) 322, 22 
 O.R. 645, that on arrival of the goods at St. Paul the Northern Pacific 
 Ry. Co. was bound to accept delivery of them for carriage to British 
 Columbia and to expedite such carriage; that they were in the care 
 of said company from St. Paul to British Columbia; that the freight 
 agent at Toronto had authority so to bind the company; and that tlie 
 company was liable to G. for the value of the goods which were delivered 
 
AGEXTS. 3 
 
 to £. at BHtiaii CohnBlMm witkout *n order fram G. aad not paid fa-. 
 [21 JLS. (Ont.) 3*i. affirvn* 2± OJL 645, affimcd.] 
 
 XOTthern Pacific Rr. Co. t. Grant. 24 Can. S.C.B. 546. 
 
 [Befenvd to in Borle t. Victoria Y.T. Co., 9 B.C.R. 322.] 
 
 TSUfS <V mX Of LADI3(G ^ACTHOnTT or ACEST. 
 
 A shipping agent cannot bind hi« principal br receipt of a bill of lad- 
 ing after the ressel containing the goods shipped has sailed, and the 
 Un ot lading so receired is not a record of the terms on vhich the goods 
 are dupped. Where a Clipper accepts what purports to be a bill of lad- 
 ing, midkr cbrcmnstances vhich vonid lead him to infer that it forms a 
 record of the contract of shipment, he cannot nsnalhr. in the absence of 
 irand, cnr mistake, escape from its binding operation merehr vpoa the 
 ground that he did not read it. but that conclusion does not follow where 
 the document is given out of the usual course of business, and seeks t<a 
 raiy terms of a prior mutual assent. Taschereau, J., dissented on the 
 facts. 
 
 X.W. Transportaii<m Co. t. McKenzie. 25 Can. S.C.R. 3S. 
 
 [Approved bi Bidcnell t. Grand Trunk Rt. Co., 26 A.IL (Ont.;i 431: 
 referred to in Conmee r. Securities Holding Co., 3S Can. S.C.R. 619: 
 Meladf T. Jenkins Steamship Co.. 18 OXlR. 251; St. Harjrs Creamerr t. 
 G.TJl. Co.. 5 OX.R- 742: WUson t. CJ). Co., 9 B.CJL 107.] 
 
 &&!£ OF MOXET OKDEBS REPSES-EXTATIOX OF ACTHOam. 
 
 A father and son were ostensible pautners: the father held out the son 
 as doiB^ insurance business with him as a principal, under the name of 
 M. k, Scm: the son, bv signature and conduct, represented to the plaintiffs 
 that he was authorized to use the father's name, and obtained an agency 
 xrom the plaintiffs for the issue and sale ot money orders in the name of 
 M. & Son, the plaintiffs beliering that the father and son were partners. 
 PuUici^ as to the firm of M. 4 Stm was given br advertisement, letter- 
 heads, oflke sign: — ^Held. that, to fix the father with the consequences of 
 his son's acts in the name of the firm, it was not esisential that die father 
 should have himself made any representation to the plaintiffs; it was 
 enough that the father had held out his son as his partner under such 
 firramstances of publicity as to satisfy a jury that the plaintiffs knew 
 of it and believed the son to be a partner of the father; and upon the evi- 
 dence the father was liable to the plaintiffs for mooer orders issued by 
 the son. 
 
 Dominion Express Co. r. Manghan.* 20 OXlR. 310. 
 
 [Reversed in 21 OXJL 510. the next following case.] 
 
 Sate or moxet ocoess — Estoppel — Bj^mksextwoti of AtTncwrtT — Pm- 
 
 LIC KEIXTE. 
 
 On an appeal to the Court of Appeal in the above case (20 OX.R. 310*. 
 it was held, upon the evidence, that there was no actual partnership bf- 
 tween the defendant J. M. and hi^^ son. the defendant H. M., carried on in 
 the firm name of J. M. t Son : and that there was no holding out by J. ]!. 
 of his son H. M. as a member of the partnership; Meredith. JJL. dissenti^. 
 Per Moss, C.J.O., that the facts showed it to be not a case of J M. hokUi^ 
 out his aam to the plaintiffs as a partner, but of his son assuming to Indd 
 himself out to the plaintiffs as in partnership with his father. If the fathfr 
 iv to be made liable, it is because what was done was done under ctr- 
 camstanees which bound him as well as his son; and there was no proof 
 of any express authority, or of any acts from which authority might rea- 
 sonably be inferred, to the eon to represent his father as in partnership 
 with him. Per Hiddleton, J., that the plaintiffs mitst fail, because, aaeum- 
 
4 AGE^^TS. 
 
 ing in their favour tliat there was a holding out, no evidence was given 
 to show that at the time credit was given the plaintiffs knew of the cir- 
 cumstances now relied on as constituting a "holding out," or tliat they 
 gave credit upon the faith of any public repute which would satisfy a 
 jury '"that the plaintiffs knew of it and believed liim to be a partner." 
 [Dickinson v. Valpy (1829), 10 B. & C. 128, 140: Ford v. Wlntmarsh 
 (1840), Hurl. & Walm. 53,] And, again, the plaintiffs failed because 
 the holding out was of a partnership as "general insurance agents," while 
 the liability sought to be imposed was as '"agents for the sale of signed 
 money orders" issued by the plaintiffs, and such an agency was beyond 
 the scope of the business held out. Per Meredith, J. A., that, upon the 
 undisputed facts, there was authority from the father to the son to use 
 the father's name and to pledge his credit; and, assuming that that au- 
 thority extended only to tlie business of insurance agents, the transaction 
 in question was sufficiently connected with that business to come within 
 the autliority. Judgment of Divisional Court reversed. 
 Dominion Express Co. v. jMaughan, 21 O.L.R. 510. 
 
 Agency fob sale of sioney okuers — ^Theft and FOBGiaiY by servant of 
 AGENT — Payment — Liabtlity of agent. 
 
 The defendant, on appointment as agent for the sale of the signed money 
 orders of an express company, agreed in writing to be responsible for the 
 "due issue and sale thereof" and "to account for each money order and 
 the proceeds thereof." An employee of the defendant stole a book of money 
 orders, forged the defendant's counter-signature (which was required), 
 and issued orders which the plaintiffs, being unaware of the forgeries, 
 paid, and now brought this action for the amoimt: — Held, tliat the defend- 
 ant was not liable, inasmuch as the money orders in question had not 
 been issued or sold by him, and that he had duly accounted for them by 
 showing that, without negligence on his part, they had been stolen from 
 him. and he wa.s therefore unable to return them. Semble, also, that, 
 even if the orders had in fact been countersigned by the defendant, they 
 would not have been binding on the company, inasmuch as to issue them, 
 when the money they represented had not been received by him. would be 
 an act oiitside the scope of his authority as agent, and for this reason the 
 plaintiffs could not recover. Held, further, that, even if there was a breach 
 of the defendant's contract, the plaintiffs suffered no damage by it, as 
 they incurred no liability to the payee or transferee of the money orders, 
 inasmuch as neither of the latter would be entitled to sue upon them, 
 there being no privity of contract between them and the plaintiffs. 
 
 Dominion Express Co. v. Krigbaum, 18 O.L.R. 533. 
 
 Customs agent — Scope of authority. 
 
 AMiere a railway company furnished its customs agent with the neces- 
 sary documents, including accepted cheques, for the payment of duties nec- 
 essary to enter goods through the customs house, and the agent, by a 
 system of frauds, was able to pas,** a large quantity of goods free of duty, 
 receiving back from the customs officers, on tlie assumption that all imposts 
 had been fully paid, the difference between the face of the cheques and the 
 duty actually paid, which the agent converted to his own use, the company 
 is estopped in an action by the Crown for the duties unpaid on goods so 
 passed and not entered for duty from claiming that in accepting the money 
 returned, he was not acting within the scope of his employment. rFr.y v. 
 Smellie, [1912] 3 K.B. 282; Whitechurch v. Cavanagh. [1902] A,C, 117- 
 130; Low V. Bouverie. [1891] 3 Ch. 82: Lloyd v. Grace. [1912] A.C. 716, 
 bpecially referred to; British Mutual Banking Co. v. Charnwood Forest 
 
AMALGAMATION. 5 
 
 R. Co.. 18 Q3J>. 714: Roboi r. Great Fingall Consotidated, [19<)6] A.C. 
 439, dUtingnished.] TTie King v. Can. Pae. Kt. Co., 11 DJ*^ 6S1 14 
 Can. Ex. 150. 
 
 Patmext to agent's wife — Effect. 
 
 Parmcnt of freight charges to the wife of the loeal agent befwe his 
 dismissal by the railwar company, die having been permitted frequently 
 to act about the office in the agent's capacity, constitutes payment to the 
 <o"P"'J'. notwithstanding a notice on the bill that all cheques should be 
 made payable to the railway eompacr. 
 
 Grand Trunk Pacific Ry. Co. t. Opperthauaer, 26 D.L.R. 209. 
 
 AIR BRAHirS. 
 Equipment of passenger trains with air brakes. $ee Carriers of Piiw iif.! i 
 
 AU6HTIN6 FROM CAB& 
 See Carriers of Passengers; Str«:vi Railways. 
 
 AMAIXSAMATION. 
 Effect of amatgamation as to parties to action. «e Pleading and Practice. 
 
 am%li;%matioy agreemexts — domixiox axd p»ovixcial sailwats — 
 Special Acts. 
 
 Application under s. 361 of the Railway Act. 1906, for a recommendation 
 hy the Board to the Goremor-in-Council for the sanction of amalgaraatioB 
 agreements between Dominion and provincial railway cMnpanies. The 
 Montreal Park k Island and Montreal Terminal Ry. Cos. were incorporated 
 by the Parliament of Canada and the Montreal Street Ry. Co. by a statute 
 of the Province of Quebec. Agreements were made between the tliree com- 
 panies apparently pursuant to the authority given in two special Acts of 
 the Dominion incorporating the first two railway companies for the sale of 
 these railways with their facilities and assets to the provincial railway: — 
 Held (It. that under s^. 361, 362 (which must be read together*, the Boani 
 has no jurisdiction to deal with the amalgamations of railway companies 
 incorporated under Dominion and provincial statutes. (2>, That the proper 
 mode of procedure would be to apply as provided by the special Acts for 
 sanction of the agreements to the (^vemor-in -Council. 
 
 Re Amalgamation AgreemeDts, 13 Can. Ry. Cas.. 150. 
 
 Effect ox caAKiES fowexs. 
 
 A restriction in the charter of a street railway company that prevented it 
 frcm importing electricity from without the city limits, is not binding upou 
 a rumpany formed by the amalgamation of such street railway companv 
 with other companies, none of which were so restricted. 
 
 Winnipeg Elec. Ry. Co. v. Winnip^. 4 Di.R. 116, [1912] A.C. 355. 
 
 Effect ox chastex powtxs — St«eet Railways. 
 
 Aiter an electric street railway has. to the knowledge of a city and it< 
 officers, and with their active co-operation, erected Ijeyond the city limit<- 
 at a cost of millions of dollars, a plant for the generation of electricity, 
 located its snlqmwer houses and erected poles and wires in the city, and 
 after the city has received about ^lOO.tMMi in taxes fron the company, and 
 has ad<^ted by-laws and resolutions requiring a companj that the street 
 
6 APPEALS. 
 
 railway had absorbed by amalgamation, to lay double tracks on certain 
 streets, and to establish a schedule for operating its cars, the city caimot 
 deprive the street railway company of the right to introduce into the city 
 electricity generated beyond the city limits, on the ground that its cliarter 
 forbade such importation of electricity, or that permits were void which 
 the city had granted for tbc erection of poles. [Winnipeg v. Winnipeg 
 Elec. Ry. Co., 20 Mann. L.\\. 337, reversed.] 
 
 Winnipeg Elec. Ky. Co. v. Winnipeg, 4 D.L.R. 116, [1912] A.C. 355. 
 
 ANIMALS. 
 
 See Fences and Cattle Guards. 
 
 Carriage of Live Stock; Street Railways (I). 
 
 APPEALS. 
 
 A. In General. 
 
 B. From Orders of Railway Board. ■ 
 
 C. From Expropriation Awards. 
 
 See Assessment and Taxation. 
 
 Annotations. 
 
 Appeal from award. 6 Can. Ry. Cas. 199. 
 Appeal from order refusing leave. 4 Can. Ry. Cas. 306. 
 Jurisdiction in appeals from awards. 21 Can. Ry. Cas. 38. 
 Power of Appellate Court to remit award to arbitrators. 21 Can. Ry. 
 Cas. 413. 
 
 A. In General. 
 
 Case — Amendment of. 
 
 Where it appeared that certain papers which a .Judge of the Court be- 
 low had directed should form part of the case had been incorrectly printed, 
 especially the factum of the respondent in said Court, which had been 
 translated and in which interpolations had been made, the registrar was 
 directed to remit the case to the Com-t below to be corrected. 
 
 Parker v. Montreal City Pass. Ry. Co., Cass. Can. S.C.R. Dig. 1893, p. 
 674. 
 
 Motion to strike appeal off list — Notice. 
 
 A motion to strike an appeal oflf the list of appeals inscribed for hearing 
 must be on notice. 
 
 Parker v. Montreal City Passenger Ry. Co., Cass. Can. S.C.R. Dig. 1893, 
 p. 686. 
 
 Factum — Leave to deposit. 
 
 When appeal inscribed for hearing ex parte is called, counsel for respond- 
 ents asks leave to be heard and to be allowed to deposit factum. Counsel 
 for appellant consents. Granted. 
 
 Parker v. Montreal Citv Passenger Ry. Co., Cass. Can. S.C. Dig. 1893, 
 p. 683. 
 
 Factum — Point not raised by. 
 
 A point is raised at the hearing not in factum, and counsel for respond- 
 ent therefore objects that he is not prepared to argue it. The Court ad- 
 journs hearing for a week. 
 
 Western Counties Ry. Co. v. Windsor & Annapolis Ry. Co., Cass. Can. 
 S.C.R. Dig. 1893, p. 683. 
 
APPEAUS. 7 
 
 Case — "Estesocsg inrE ro« PBtsTrsc axd fiuxg. 
 
 Under s. 79 of the S. A E. C. Act and Rules 42 4 TO S-C^ a Judge in 
 Chambers of tlie Sopreme Court has pover to extend tbe time for printing 
 and filing case. 
 
 Canada Sontbem Ry. Co. t. Xorvell (1S80|. Cass- Can. S.C. Dig. 1S93, p. 
 «73. 
 
 Review or cosrs — Monox to kEopcx. 
 
 In this ease, the Sapreme Conrt had refused by their judgment to give 
 a writ of ]»t>hibition to prevent the taxation of resp«>ndent'«' e«i>t> by the 
 county Judge, sodi taxation having been made before the judgment of the 
 Supreme Court was given; but the Court stated that the respondent va» 
 not eatitled to c«<ts. Counsd for appellants moved to reopm ai^nment 
 of tint part of the appeal as to the right to the prohibition, and for a 
 reconsideration thereof, on tbe ground that the amount taxed to reqiood- 
 ent has been paid into the County Court, and that the county .Tinise mi^t 
 make an order direeting tbe money so paid into hi:> Court to be paid out to 
 respoBdent onle^ prohibited: — ^Held. that the application which was really 
 for a rdiearinv of the appeal, which had been duly considered and adju- 
 dicated upon by the Court, could not be caitertained: that the Conrt could 
 not asaaMwmf that the County Court Judge would act iHegaUy. and in defi- 
 ance of the judgment of the Court, to the effect that the respondent was not 
 entitled to costs; but that if the County Court Judge should propotse ^o to 
 act. the appellants would have their remedy against him. and might apply 
 to one of the superior Courts for a writ of prohibition. Counsd for ap- 
 pellants not called upon. Motion refused with $^i cot«ts. 
 
 Ontario & Quebec Ry. Co. v. Philbrick (1SS6), Cass. Can. ^a Dig. 
 1S93, p. 6S7. 
 
 Review of costs. 
 
 It is only when some fundam<i>ntal principle of justice has been ignored, 
 or s<Mne other gro>s error ap5?ear> tlrat the Supmne Court will interfere 
 with the discretion of pr»*«n<-ial Courts in awarding or withholdins costs^ 
 
 Smith V. Saint -John Citv Ry. Co.; Consolidated Elee. Co. v. Atlantic 
 Trust Co.; Consolidated Etec Co. t. Pratt, 28 Can. S-CJL 603. 
 
 MaTTEXS of PBOHIBmOX. 
 
 S. 2 of e. 2.5 of .>4 k 55 Vict.. »iviny the Supreme Conrt of Canada 
 jvrisdietioD to hear appeals in matters of prohibition, applies to aich ap- 
 peals from the Province of Quebee as well as to all other parts of Canada. 
 
 Shannon v. M<nitreal Park Jk Island Ry. Co.. 28 Can. S.C.K. 374. 
 
 (Overruled in Desormeaux v. Ste. Therfee de Blainville. 43 Can. S.C-R- 
 S2-. considered in Wynnes v. Montreal P. k I. Ry. Co.. 9 Que. Q-B. 49S.1 
 
 Fl-XAUTT or JCDCMEAT — ATVCJLL FKOM OSDEE FO* XEW I«IAI_ 
 
 In an action brought to recover damages for the loss of certain gla^ de- 
 livered to defendanU for carriage, the Judge left to the jury the question 
 of B^ligence only, reserving any other questions to be decided subsequently 
 bf himself. On the question sulmitted the jury disagreed. Defendant 
 then moved the Divisional Court for judgment, but pending such motion 
 the plaintiffs applied for and obtained an order of the Court amending the 
 stateawat of claim, and charging other grounds of negligence. The defend- 
 ants submitted to such order and pleaded to such amesdments, and new 
 and matoial issues were thereby raised for determination. Tbe action as 
 so amcndrd was entered for trial, but was not tried before the Divisional 
 Govit fraMBMcd jndgnent on the motion di^aniitfiBg plaintiff's action. 
 
8 APPEALS. 
 
 On appeal to the Court of Appeal, the judgment of the Divisional Court 
 was reversed and a new trial ordered. On appeal to the Supreme Court: — 
 Held, that the judgment of the Court of Appeal ordering a new trial in this 
 case was not a final judgment nor did it come within any of the provisions 
 of the Supreme Court Act authorizing an appeal from judgments not final. 
 Can. Pac. Ry. Co. v. Cobban Mfg. Co., 22 Can. S.C.R. 132. 
 
 JUDGME>'T, iNTERr.OCUTORY OB FINAL. 
 
 The plaintiff sued for .$5,000 as damages alleged to have been caused by 
 the defendants. Tiie Superior Court dismissed the action, and the Court of 
 Review reversed that judgment and sent the case back to the Superior 
 Court to ascertain the damages. The defendants appealed from this judg- 
 ment to the Court of Queen's Bench, but that Court, on motion of plaintiff, 
 before any other proceeding on the appeal, quashed the writ of appeal on 
 the ground tliat it had been issued de piano and not with the permission 
 of the Court as required by Art. 1116, C.C.P., the Court being of opinion 
 that the judgment was not a final but an interlocutory judgment within 
 that article: — Held (1), a judgment of the Court of Queen's Bench for 
 Lower Canada (appeal side) quashing a writ of appeal on the ground that 
 such writ had been issued contrary to the provisions of Art. 1116, C.C.P., 
 is not "a final judgment" within the meaning of s. 28 of the Supreme and 
 Exchequer Courts Act. [Shaw v, St. Louis, 8 Can. S.C.R. 387, distin- 
 guished.] (2) The Supreme Court has no jurisdiction under s. 29 of the 
 Supreme and Exchequer Courts Act, to hear an appeal by the defendant 
 where the amount in controversy has not been established by the judgment 
 appealed from. [But see S. & E. C. Act. 1891, 54 & 55 Vict, c. 25, s. 3.] 
 
 Ontario & Quebec Ry. Co. v. Marcheterre, 17 Can. S.C.R. 141. 
 
 Finality of judgment. 
 
 A judgment allowing demurrer to plaintiff's replication to one of several 
 pleas, which does not operate to put an end to the whole or any part of the 
 action or defence is not a final judgment from which an appeal will lie. 
 
 Shaw V. Can. Pac. Ry. Co., 16 Can. S.C.R. 703. 
 
 Finality of juDGJfENT — Quashing interim injunction. 
 
 In this case, on the 1st September, 1883, Torrance, J., of the Superior 
 Court (Quebec), ordered the issue of a writ of injunction, returnable on 
 the 30th day of October, then next, enjoining the respondents and certain 
 other persons named from issuing or dealing with certain bonds until 
 otherwise ordered by the said Court or a Judge thereof. About the 13th 
 November, the Canada Atlantic Ry. Co. presented a motion to quash the 
 injunction. On the 13th December, Mathieu, J., of the Superior Court, 
 declared that the writ of injunction had been issued without reason (sans 
 cause) and he suspended it until the final adjudication of th« action on 
 the merits. Both the appellants and respondtMits appealed from this judg- 
 ment to the Court of Queen's Bench which Court on the 21st of January, 
 1885, rendered judgment quashing the injunction absolutely. On the 9th of 
 February following, the appellants gave notice of their intention to appeal 
 to the Supreme Court of Canada, and on the 10th February presented a 
 petition to Monk. J., one of the Judges of the Court of Queen's Bench, for 
 the allowance of the appeal. On the 20th of February, Monk, J., rendered 
 judgment, refusing to allow the appeal on the ground that the judgment 
 quashing the writ of injunction was not a final judgment, and, "notwith- 
 standing the offer and sufficiency of the security." On the 27th of Fel)rniiry, 
 the appellants, by their attorneys, served notice of tiieir intention to move 
 before a Judge of the Supreme Court to be allowed to give proper security 
 
APPEAI^. 9 
 
 to ike Mtiisfartina «f Oat Court, or of a Judge tJbervof, for the pro^eratiou 
 of tfteir appeal to that Court, noCvithstaading the refui*! of the Court be- 
 lov to accept said security, and notvithstandjii^ the lap^^ of tbirtr dars 
 from the raadering id the judgment from whk-h they de&ircd to appeal, 
 aad fartka- to obtain an extens^ion of time for settling the caae in appeaL 
 TU» motioB eame before Henry, J^ in Cliambers. on the 3th Maxeh, vho en- 
 larged it into Court, and it vas on the same day argued at length before the 
 Court: — ^Held, that the judgment of the Court of <jueen'$ Bmeh « appeal 
 sidei, gnashing the interim injuncti<». va> not a final judgiaent from 
 which an appeal T<Nild lie. Motion refused. 
 
 Stanton \. Canada Atlantic By. Co. (18&5jl, H CJLJ. Sm. 
 
 FiXAt jmcMEST — RruE xisi. 
 
 The judgment making abeolnte a rule nisi against a witn^ts who faik to 
 appear at the trial of an artioa after summons, is a final judgment froia 
 which there is a right of review or appeaL The witness serred with the 
 rule nisi is not obliged to appear in person, but may show cause by attor- 
 ney. The witn«» may appeal from judgment making the rule ale<dute 
 without being obliged to ^^lead also from the judgment ordering the rule 
 to issue and the delay for hrii^ing the aj^iea] runs from the latest judg- 
 ■Mnt only. 
 
 C<dlins T. Can. Xmthein Quebec By. Col, 11 Que. P.B. 133 <Ct. Rer.t. 
 
 APrKXL FSDM ASSESSHEXT — YlSAS. JtUCMEVr. 
 
 By 5± Met. e. 37. s. 2, amending the Supreme and Exdieqner Courts 
 Act, an appeal lies in certain cases to the Supreme Court of Canada from 
 Courts ~of last resort created under provincial legislation to adjodieaie 
 eonemiin^ the a^essment of property for provincial or municipal pur- 
 poses, in cases where the person or persons presiding over such Court is or 
 are appointed by provincial or municipal authority." By the Ontario At-t."' 
 3a Vict, c 4$, as amended by 58 Vict. c. 47, an appeal lies from rulings 
 of Municipal Courts of Revisi<m in matters of ass<s.sm«it to the County 
 Court Ju<^es of the County Court District where the property has been 
 assessed. On an appeal from a decision of the County Court Judges under 
 the Ontario statutes: — Held. Kii^. J., dissenting, that if the County Court 
 Jnd^ constituted a ""Court of last reawt" within the meaning of 52 Vict, 
 c. 37, s. 2. the persons presiding over such Court were not appointed »«y 
 'provincial or municipal authority, and the appeal was nrtt authorized hr 
 the said Act. Held, per Gwynne. J., that as no binding effect is given to 
 the dceisioa of the County Court Judges, under the Ontario Acts cited, the 
 Court appealed from was not a "Court of last resort" within the meanin- 
 of 52 Vict- c. 37, s. 2. Qoapre. — Is the decision of the County Court Judges 
 a ~final judgmenr" within the meaning of -i2 Vict. c. 37, s. 27 
 Toronto v. Toronto By. Co., 27 Can. S.C.R. 64«1. 
 [Leave to appeal to Privy Council refused.] 
 
 Right to affeai. — Uisposal of qwsnoys or fact bt Coctt — Cox>ext of 
 
 PABTHS. 
 
 In an action against a railway company for damages for an injury 
 caused by an engine of the ctmipany. the counsel for both parties agreed at 
 the trial as follows: -That the jury be disdiarged without giving a v«-- 
 diet, the whole tase to be referred to the Court, which shall have power to 
 draw inferences of fact, and if they shall he of opinion, upon the law and 
 the facts, that the plaintiff is entitled to recover, they shall assess the 
 damages, and that judgmart be witered as the verdict of the jury. If the 
 Court should be of opinion that the plaintiff is not entitled to recover, a 
 
10 APPEALS. 
 
 nonsuit shall be entered." Tlie jury were then discharged, and the Court 
 in banc, in pursuance of such agreement, subsequently considered the 
 case, and assessed the damages at $300, considering plaintiff entitled tc> 
 recover. The company sought to appeal from such decision. By the prac- 
 tice of the Supreme Court of New Brunswick all questions of fact are to 
 be tried by a jury, and the Court can only deal with such questions by con- 
 sent of parties: — Held, Gwynne and Patterson, JJ., dissenting, that as the 
 Court took upon itself the decision of the questions of fact, in this case 
 without any legal or other authority therefor, than the consent and agree- 
 ment of the parties, it acted as quasi-arbitrators, and the decision appealed 
 from was that of a private tribunal constituted by the parties, which could 
 not be reviewed in appeal or otherwise, as judgments pronounced in the 
 regular course of the ordinary procedure of the Court may be reviewed and 
 appealed from: — Held, also, that if the merits of the case were properly 
 before the Court, the judgment appealed from should be affirmed: — Held, 
 per Gwynne and Patterson, JJ., that the case was appealable, and, on the 
 merits, it appearing from the evidence that the servants of the company 
 Iiad done everything required by the statute to give notice of the approach 
 of the train, the appeal should be allowed and a judgment of nonsuit en- 
 tered. 31 N.B.R. 318, affirmed. 
 
 Can. Pac. Ry. Co. v. Fleming (1893), 22 Can. S.C.R. 33. 
 
 [Applied in Quebec & Lake St. John Ry. Co. v. Girard, 15 Que. K.B. 56; 
 followed in Champaigne v. Grand Trunk Ry. Co., 9 O.L.R. 589; referred to 
 in Voigt V. Groves, 12 B.C.R. 180.] 
 
 Finality of judgment — Dispute of title under lease — Ruling of mas- 
 ter. 
 
 Where a master, on a reference under the Vendor and Purchaser Act to 
 settle the title under a written agreement for a lease, ruled that evidence 
 might be given to shew what covenants the lease should contain, an ap])eal 
 does not lie to the Supreme Court from the judgment affirming sucli ruling, 
 it not being a final judgment and the case not coming within tlie provisions 
 of s. 24 (e) of the Supreme and Exchequer Courts Act relating to pro- 
 ceedings in equity, Gwynne, J., dissenting. 
 
 Can. Pac. Ry. Co. v. Toronto, 30 Can. S.C.R. 337. 
 
 Dismissal OF appeal. 
 
 Where the jurisdiction of the Supreme Court of Canada to entertain an 
 appeal was in doubt, but it was considered that the appeal should be dis- 
 missed on the merits, the Court heard and decided the appeal accordingly. 
 
 Can. Pac. Ry. Co. v. The King, 38 Can. S.C.R. 137. 
 
 Right to appeal — Jurisdictional amount. 
 
 The plaintiff claimed $1,500 damages for delay in delivery of iron. Tlie 
 defendants, besides denying the charge of nondelivery in due time, coun- 
 terclaimcd for $1,223 demurrage. At the trial judgment was given for 
 jdaintiff for $1,000 and the counterclaim was dismissed. Upon appeal to 
 the Court of Appeal, the judgment was varied by limiting the damages to 
 the fall in the price of iron during a considerably shorter time than that 
 fixed in the Court below, the amount to be ascertained on a reference. 
 Upon a motion by the defendants to allow a bond given by them as secur- 
 ity upon an appeal by them to the Supreme Court of Canada, the plaintiff's 
 counsel stated that the plaintiff's claim on the reference would be less than 
 $1,000, and contended that no appeal lay: — Held, however, that as the 
 j)laintiff claimed $1,500 and was not limited by the judgment of the Court 
 of Appeal to any particular sum, the matter in controversy on the appeal 
 
APPEAI^. 11 
 
 excvrded the sum of .?li)00, so that the appeal lay:— Held, also, that upon 
 the couBterelaim the sum of SI *23 wa* involred. and that an appeal lay 
 in r«speet thereof. The Court of Appeal deeisued lo grant, ex cautela. leave 
 to appeal to the Supreme Court of Canada, the case not being one in whieh 
 leave, if it were necessary, ought to lie granted. 
 
 Frankel v. Grand Trunk Ry. Co.. 3 Oi.IL TCS (CJL). 
 
 To SlTREilB Cor«T OF CaXADA — AMOrXT OF COVneOVJlKST. 
 
 A judgment for $1,000 damages with interest from a date before aetioa 
 brought is appealable imder 60-61 Viet. (Can. » e. 34. s. 1 (e». 
 
 Canadian Railway Aet-ident Insurance Co. t. MeXevift, 32 Can. S.C.R. 
 194. 
 
 Pkitt CorxciLi — Mattes ix costkoveksy nsctnuxc §4.000. 
 
 On a moticn by the plaintiffs for the allowance of the security on aa ap- 
 peal from the Court of Appeal to the Prity Council, in an aetlon hroo^t 
 by the (.orporation of a city against two electric light companies to have 
 it declared that they had forfeited their rights under certain agrceanents 
 with the city. lUHier which they held their franchises, on the groond that 
 they had amalgamated contrary to the terms of such agreemeats. which 
 actiiMi had been dismissed: — Held t Meredith. J.A.. dissenting i. that the 
 whole matter in controversy at the trial (being the destruction, not the 
 acquisition of the defendants* franchi:^' was whether the companies hal 
 forfeited their right by amalgamation, and this clearly did not come within 
 the last branch of s. 1 of R.S.O. 18!17. c. 4S. and that there was nothing 
 before the Court to shew that such matter was of value to the plaintiffs of 
 m(»e than i^.O<N>. or of any sEim or value capable of being ascertained or 
 defined. Per Meredith. J.A. : — ^The matter in controversy much exceeded 
 $ijOOO. and if controverted leave should be given to the appellants to 
 prove their value. 
 
 Toronto v. Torvnto Oec. Light Co.. 11 Oi-R. 310 (CA.). 
 
 WwuKMirs's CoMPKSSATiox AcT. B.C. — Akbitkak*. 
 
 No appeal lies from the decision of an arbitrator appointed by a Supreme 
 Court -Judge under clause 2 of the second schedule to the Workmen's Com- 
 pensation Act, 1902. Lee v. Crows Xest Pass Coal Co.. 11 B.CJ?. 323. 
 
 COCXr OF REVIEW — JCIUSDICTIOX OF — REVIEW OF MERITS OF CASE RESEXVH*. 
 
 The Court of Review has aljsolute and unrestricted power to decide the 
 merits of a cause reserved for its consideratiMi. without regard to the 
 Addict of the jurv (Art. 496 C.C.P.). 
 
 Ferguson v. Grand Trunk Ry. Cou, 2 Can. Ry. Gas. 420, 20 Que. & C. 
 54. 
 
 [Referred to in MUler v. Grand Trunk Ry. Co., 21 Que. S.C. 350. 2 
 Can. Ry. Cas. 449. 34 Can. S.CJL 70.] 
 
 MisDrREJcnox — Cc«KEmox after specific objectiox — Practice. 
 
 Where, on a specific objection to his chaige. the trial Judge recalled the 
 jury and directed them as requested, the contention that the directions 
 thus given were erroneous should not be entertained on an appeal. 
 
 Can. Pac. R. Co. v. Hansen. 7 Can. Ry. Ca.s. 441. 40 Can. S.C.R. 194. 
 
 Right to — Additional relief — Ixjcttctios — Choice or REMiajres. 
 
 Quaere per Sttiart. J.: — ^Whether or not a disisatisfied litigant who has 
 the right to appeal must appeal and is not at liberty to bring the »me 
 matter before the Cotirt in a different wav, but: — Held, that ^lere the r^t 
 
12 APPExVLS. 
 
 of appeal was doubtful and the plaintiff had given notice of appeal, and 
 at the same time brought an action for injunction, in which action the 
 validity of the order appealed from would have to be inquired into, the 
 matter was properly before the Court: — Held, also, that the Court will not 
 be bound by agreements of counsel in a stated case as to tlie effect upon 
 the rights of parties to the action by determination of certain questions 
 submitted in certain specified ways. 
 
 Marsan v. Grand Trunk Pacific Ry. Co., 9 Can. l?y. Cas. 341, Alta. 
 L.R. 43. • 
 
 [Followed in Girouard v. Grand Trunk Ry. Co., 9 Can. Ry. Cas. 354, 
 2 Alta. L.R. 54; considered in Sanders v. Edmonton Dunvcgan & B. C. 
 Ry. Co. 16 Can. Ry. Cas. 142.] 
 
 ^NTatters appealable — Qx:e.stion xot raised in lower Court — Estoppel. 
 
 \\'here a matter relied upon to support the action was not urged at the 
 trial nor asserted on an appeal to the Provincial Court it is too late to 
 put it forward for the first time on an appeal to the Supreme Court of 
 Canada. 
 
 Laidlaw &■ Laurie v. Crow's Xest Southern Ry. Co., 10 Can. Ry. Cas. 32, 
 42 Can. S.C.R. 355. 
 
 [Judgment appealed from, 14 B.C.R. 169, 10 Can. Ry. Cas. 27, affirmed, 
 Idington, J., dissenting.] 
 
 Review of findings of fact. 
 
 Upon an appeal from the findings of a Judge who has tried a case with- 
 out a jury, the Court appealed to does not and cannot abdicate its right 
 and its duty to consider the evidence. And if it apjiear from the reasons 
 given by the trial Judge that he has misapprehended tlio effect of the evi- 
 dence of failed to consider a material part of it, and the evidence which 
 has been believed by him, when fairly read and considered as a whole, 
 leads the Appellate Court to a clear conclusion that the findings of the 
 trial Judge are erroneous, it becomes the plain duty of the Court to re- 
 verse the findings. 
 
 Real V. Micliigan Central Ry. Co., 10 Can. Ry. Cas. 37, 19 O.L.R. 502. 
 
 [Approved in Gordon v. Goodwin, 20 OX.R. 327; Ryan v. Mcintosh, 
 20 O.L.R. 31.] 
 
 Review of facts on appeal. 
 
 Under the British Columbia Railway Act, R.S.B.C. 1911, c. 194, s. 68, 
 upon an appeal from the award of arbitrators fixing damages under eminent 
 domain proceedings, the Court will not supersede the arbitrators but will 
 review the award as it would review the judgment of a subordinate Court 
 in a case of original jurisdiction, considering the award on its merits, both 
 as to tlie facts and the law. [Atlantic and Xorth-West Ry. Co. v. Wood, 
 [1895], A.C. 257, 64 L.J.P.C. 116, followed, under which "a similar ques- 
 tion under subs. 2 of s. 161 of the Railway Act, 1888, being s. 168 of 3 
 Edw. VII. (D) e. 58. was decided.] 
 
 Canadian Northern Pacific Rv. Co. v. Dominion Glazed Cement Pipe Co., 
 7 D.L.R. 174, 22 W.L.R. 335, 14'Can. Ry. Cas. 265. 
 
 Review of facts — Verdict. 
 
 On appeal to the appellate division of the Ontario Supreme Court from 
 the judgment of a trial Court, based upon the findings of a jury in favour 
 of the plaintiff, who was the sole witness for himself, though the Appel- 
 late Court may doubt the plaintiff's story or disbelieve him, they have no 
 right to substitute their own opinion of the facts for that of the jury. 
 
APPEALi>. 13 
 
 bat if there is some evidence to support the finding of the jury, it cannot 
 be disturbed. (Per Garrow. J.A. » 
 
 Stevens v. Can. P*e. Rt. Co^ 10 DXJL 88, 15 Can. Rt. Ca-«. 28. 
 
 MOTIOX TO AFFIEM jrUSDICTIOX — FINALITY OF jmCMEXT. 
 
 A preliminarr motion to affirm the jurisdiction on an appeal to the 
 Sapnpme Court of Canada will be dismissed and the parties left to their 
 rights on the hearing, if the facts shewn on the preliminary motion are 
 insufficient to enable the Court to finally determine whether the judgment 
 or order appealed from was final and so subject to appeal or was inter- 
 locutory only and, therefore, not subject to appeaL (Clarke v. Gkmdall. 
 44 Can. 8.C.R. 2S4; CYown Life v. Skinner. 44 Can. S.C.R. 616. and Mc- 
 Donald T. Belcher. [1!K»4] A-C. 429, specially referred to.] 
 
 Windsor. Essex A Lake Shore Rapid Ry. Co. t. Xelles. 1 D.L.R. SnO. 
 
 (Referred to in 2 Di.R. 732: Vanboskirk t. McDermott, 5 D.L.R. 6, 
 46 X.S.B. 98.] 
 
 LxurrATHix or mne or afpeal. 
 
 The limitation of sixty days f<H" appealing to the Supreme Court of 
 Canada trader s. 69 of the Supreme Court Act. R.S.C. 1906. c. 139. may. 
 nnder s. 71 of that Act, be extendifd by the Court appealed from, but not 
 by the Supreme Court of Canada. {Windsor. Essex 4 L.S. Rapid Ry. Co. 
 T. Xelles (1912 ». 1 D.L.R. 1-56. affirmed on this point.] 
 
 Windsor. Essex 4 Iske Shore Rapid Ry. Co. v. Xelles. 1 D.L.R. 909. 
 
 (Referred to in 2 DJLR. 732: Vanl>uskirk v McDermott. 5 Di.R- 5. 46 
 X.S.R. 98.] 
 
 XonCE OF AFfRAL. 
 
 An appeal from the judgment of the provincial Court of la^ resort af- 
 firming the judgment given at the trial of the action disposing of the rights 
 of the parties and directing a reference to determine the amount of dam- 
 ages, is not an appeal frcHn "a judgment upon a motion to enter a verdict 
 or nonsuit upon a point reserved at the triaP within the terms of s. 70 of 
 tlie Supreme Court Act, R.S.C. 1906. c. 139. so as to require a notice of 
 appeal within twenty days after the decision of the Court of Appeal of the 
 province. 
 
 Windsor. Essex & I-ake Shore Rapid Ry. Co. v. Nelles. 1 D.L.R. 156. 
 
 rBriened to in 1 D.I^R. 309, 2 D.L.R.' 732: Vanbuskirk v. MoDermott. 
 5 D.LuR. 5. 46 XJ?.R. 98.] 
 
 Right to appeai. — ^Ftxauit of jtdgmext. 
 
 Where the judgment sought to be appealed from is that of the highest 
 provincial Court of final resort upon an appeal from a judgment whiHi 
 varied the report of a Referee or Master upon an appeal from his report 
 in a reference which had been directed at the trial to asisess the damages 
 in the action, such judgment of the highest provincial Court is not a final 
 judgment appealable to the Supreme Court of Canada, but an appeal lies 
 from the judgment on further directitms afterwards given upon the varied 
 report. [CUrke v. Goodall a911 ). 44 Can. S.C.R. 284. followed.] 
 
 Windsor. Essex and Lake Shore Rapid Ry. Co. v. Xelles. 1 D.L.R. 156. 
 
 [Referred to in 1 D.L.R. 309. 2 D-L.R. 732: Vanbnskirk t. McDermott. 
 5 D.L.R. 5, 46 X.S.R. 98.] 
 
 EXIEXSIOX OF TIME FOB APPE.*Li:XG. 
 
 Where a judgment of the Court of Appeal has given to the plaintiff in 
 an action for specific performance of an agreement to deliver stock and 
 bonds his dioice between specific performance and a reference as to dam- 
 
14 APPEALS. 
 
 ages, and the defendant has not appoak'd from such judgment to the Su- 
 preme Court of Canada, being under the impression that no appeal would 
 lie, and the plaintiff has elected to take a reference, and appeals have 
 been taken from the Roferee's report, the Court of Appeal should not, at 
 the instance of the defendant, extend the time for appealing to the Supreme 
 Court of Canada from its original judgment. 
 
 Nelles V. Hesseltine; \^■indsor, Essex & L.S. Rapid Ry. Co. v. Nelles (Ho. 
 4), 6 D.L.R. 541, 27 O.L.R. 97. 
 
 Finality of judgment. 
 
 A judgment of a provincial Court of last resort varying the judgment 
 given on the trial of an action for damages for alleged breach of contract, 
 and aflirming the plaintiff's right of recovery with certain limitations as to 
 damages as to which a reference was directed, is not a "final judgment" 
 from which an appeal lies to the Supreme Court of Canada, within the 
 statutory definition of that term contained in s. 2 of the Supreme Court 
 Act, R.S.C. 190(5, c. 139, as a judgment order or decision "whereby the ac- 
 tion is finally determined and concluded." [Clarke v. Goodall, 44 Can. 
 S.C.R. 284, and Crown Life Insurance Co. v. Skinner, 44 Can. S.C.R. 616, 
 specially referred to.] 
 
 Nelles V. Hesseltine; Windsor, Essex & L.S. Rapid Ry. Co. v. Nelles 
 (No. 2), 2 D.L.R. 732, 3 O.W.N. 862. 
 
 [Referred to in Vanbuskirk v. McDermott, 5 D.L.R. 5, 46 N.S.R. 98.] 
 
 Leavk to appeal — Finality of judgment. 
 
 S. 71 of the Supreme Court Act, R.S.C. 1906, c. 139, providing that the 
 Court proposed to be appealed from, or any Judge thereof, may, under 
 special circumstances, allow an appeal although the same is not brought 
 within the time prescribed by the Act, applies only to judgments other- 
 wise appealable, and does not confer power to grant leave to appeal from 
 a judgment which is interlocutory only or which is not a "final judgment" 
 within the definition of that statute. [Vaughan v. Richardson, 17 Can. 
 S.C.R. 703, and News Printing Co. v. Macrae, 26 Can. S.C.R. 691, specially 
 referred to.] 
 
 Nelles V. Hesseltine; Windsor, Essex & L.S. Rapid Ry. Co. v. Nelles, 
 2 D.L.R. 732, 3 O.W.N. 862. 
 
 [Referred to in Vanbuskirk v. McDermott, 5 D.L.R. 5, 46 N.S.R. 98.] 
 Notice of appeal — Sufficiency of. 
 
 A notice of appeal is insufficient wlierc the grounds stated therein 
 are: (1) That the judgment appealed from is against the law, evidence, 
 and the weight of evidence; (2) that the trial Judge erroneously admitted 
 and excluded evidence; and (3) that the judgment was erroneous "upon 
 sucli other grounds as may appear in the pleadings and proceedings, such 
 alleged groiuuls being too indefinite." (Per Beck, J.) 
 
 Alfred v. Grand Trunk Pacific Ry. Co., 5 D.L.R. 154, 20 W.L.R. 111. 
 
 [Affirmed in 5 D.L.R. 471; referred to in Alfred v. G.T.P. (No. 2), 6 
 D.L.R. 147.] 
 
 Amendments on appeal. 
 
 A question not going to the merits of a case and not raised by the 
 notice of appeal, cannot be brought to the attention of the Court by a 
 supplementary or "explanatory" notice of appeal. (Per Beck, J.) 
 
 Alfred v. Grand Trunk Pacific Ry. Co., 5 D.L.R. ir)4, 20 W.L.R. 111. 
 
 [Affirmed in 5 D.L.R. 471; referred to in Alfred v. G.T.P. (No. 2), 6 
 D.L.R. 147.] 
 
APPEALS. lo 
 
 Sua cr rauui^uTses ficsvvug aiteai^ 
 
 Where the phuntiffs in an action hare soeeeeded at the trial and in the 
 provincial Appellate Court, and the defendants hare elected to appeal to 
 the Supreme Court of Canada, in which abo they hare been unsncces^fol, 
 and. vhile the Supreme Court still had jurisdiction over the ca^. a Jod^ 
 of that Court has refused a ^taj of pro(«edincr> pending an appeal to the 
 PriTj CoonciL and it appears that there has not been any miscarriage of 
 justice through accident, mistake or otha-«-i«e. but that erenr question in 
 dispute has beea fully c(»sidered. and that the case inrolves merely a ques- 
 ti<» of fact and nothing of public importance, and that the Priry Council 
 is likely to refuse leave to appeaL a Judge of the provincial Court of first 
 iastaace should not grant a stay of proceedings pending an appeal to the 
 Prhry ConnciL [Alfred v. Grand Trunk Pacific Ry. Co.. 5 D.L.K. 154. and 
 Grand Trunk Pacific Rv. Co. v. Alfred, o D.L^ 471, speciallr referred 
 to-] 
 
 Alfred v. Grand Trunk Pacific Ry. Co., 6 D.L.R. 147, 22 WXlR C5. 
 
 IxscMPnox r\ Uiw — Review of facts. 
 
 By an inscriptioD in law. defendant cannot raise questions of facts, nor 
 deny the facts alleged, but the same must be presumed to be true. In the 
 present case the evidence alone of the divers circumstances and facts alleged 
 m plaintiff's declaration will ^lew whether the responsibility and com- 
 pensation for the accident in question in this cause, are to be determined 
 by the Workmen's Act. Edw. VII. c. 66. or by the common law, and under 
 soeh circumstances the Court will order "^reuve avant faire drmt'' <m 
 def^idant's inscription in law. 
 
 Biggs V. Grand Trunk Ry. Co.. IS Rev. de Jur. 383. 
 
 G«ANTnSC LEAVE TO APPE-VL. 
 
 Leave to appeal to a Ditisi<mal Court from order of Judge in Chambers 
 was granted. 
 
 Swaieland v. Grand Trunk Ry. Co., 2 D.L.R 898, 3 O.W.X. 1083. 
 
 Leave to appeal — Order gravitxg xew twal. 
 
 Wliere s party appeals to a Divisional Court from a judgment after 
 trial with a jury, and contends that he is entitled to judgment upon the 
 findings of the jury, but does not ask for a new trial, and the Divisional 
 Court nevertheless grants a new trial without disposing of the motion for 
 judgment, it is a proper case for granting leave to appeal to the Court of 
 Appeal, but such leave should be upon the terms that the party appealing 
 shall abandon his right to a new trial. 
 
 Dart T. Toronto Ry. Co., 3 D.L-R. 776. 3 O.W.y. 1202. 
 
 PowEX to review vebtts of case. 
 
 Although an appellate Court may think that the preponderance of testi- 
 mony » in favour of the unsuccessful party in an action tried with a jury, 
 it cannot substitute its opinion for that of the jury, or interfere with the 
 jury's conclusions except upon some error or other substantial ground. 
 
 Zufelt T. Can. Pac. Ry. Co., 7 D.L.R. 81. 4 O.W.X. 39. 
 
 IXADVERTESCE OF SOLICITOR FaILITRE TO GIVE 50T1CE OT APPEAL 
 
 Helson v. Morri^y, Femie A Michel R. Co. (Xo. 2), 7 D.LJL 822- 
 
 Review of facts ox xoxsnr. 
 
 On an appeal from a judgment of a County Court (Man.*, ordering a 
 nonsuit, the Manitoba Court of .Appeal may draw its own coodusioiis from 
 
16 APPEALS. 
 
 plaintiff's evidence brought out at the trial, where there are no conflicting 
 statements nor any contradictory evidence. 
 
 Stitt V. Can. Northern Ry. Co., 15 Can. Ey. Cas. 333, 23 Man. L.R. 43, 
 10 D.L.R. 544. 
 
 Costs only involved — Refusal to entektain — Statutory right to costs 
 — Wrong order of Court belom' — Ditty of Court to reverse. 
 
 While the Supreme Court of Canada ordinarily refuses to entertain an 
 appeal which merely involves costs, where a party entitled by statute to re- 
 ceive his costs of certain proceedings from his opponent has been ordered 
 to pay that opponent's costs it is the duty of the Court to reverse such 
 order. [Gavin v. Kettle Valley Ry. Co., 23 Can. Ry. Cas. 379, 43 D.L.R. 
 47, reversed.] 
 
 Gavin v. Kettle Valley Co., 25 Can. Ry. Cas. — , 47 D.L..R. 65. 
 
 Criminal appeal — Privy Council — Nuisance. 
 
 S. 1025 of the Criminal Code, which purports to limit the right of appeal 
 to the Privy Council in criminal matters, does not apply to a prosecution 
 by indictment for a noncriminal offence such as the class of noncriminal 
 nuisances referred to in Criminal Code, s. 223. 
 
 Toronto Ry. Co. v. The King, 23 Can. Ry. Cas. 183, [1917] A.C. 630, 38 
 D.L.R. 537. 
 
 Question not raisitd below — Cause of action. 
 
 A question not raised in the Court appealed from will not be considered 
 by the Supreme Court of Canada when not mentioned in the factum, and 
 when all evidence pertaining to such question had. by consent of the par- 
 ties, been omitted from the appeal book. 
 
 Can. Pac. Ry. Co. v. Kerr, 16 Can. Ry. Cas. 2.-), 49 Can. S.C.R. 33, 14 
 D.L.R. 840. 
 
 Expropriation — Application to appoint ARBrrRATOR — Persona designata 
 — Amount in controversy — Jurisdiction. 
 A railway company served notice of expropriation of land on the owner, 
 offering $25,000 as compensation. It later served a copy of said notice 
 on S.. lessee of said land for a terra of ten years. On application to a 
 Superior Court Judge for appointment of arbitrators S. claimed to be en- 
 titled to a separate notice and an independent hearing to determine his 
 compensation. The Judge so held and dismissed the application and his 
 ruling was affirmed by the Court of King's Bench. The company sought to 
 appeal to the Supreme Court of Canada. The appeal was dismissed. Per 
 Fitzpatrick, C.J., and Idington, J.: — That the Judge was persona designata 
 to hear such applications as the one made by the company, that the case 
 did not therefore originate in a Superior Court and the appeal would not 
 lie. (an Pac. Ry. Co. v. Little Seminary of Ste. Th6r&se, 16 Can. S.C.R. 
 606; St. Hilaire' V. Lambert. 42 Can. S.C.R. 264, followed. Per Davies, 
 Duff, Anglin, and Brodeur, JJ., that as there was nothing in the record 
 to shew that the amount in dispute was $2,000 or over, and no attempt 
 had been made to establish by affidavit that it was, the appeal failed. 
 
 Can. Northern Ontario Rv. Co. v. Smith, 21 Can. Ry. Cas. 98, 60 Can. 
 S.C.R. 476, 22 D.L.R. 265. 
 
 B. From Orders of Bailway Board. 
 Appeal to Privy Council — Application ix) allom' securitt. 
 
 Where the sole question in two actions was as to the validity of an 
 order of the Railway Committee requiring the plaintiffs to build a bridge: 
 
APPEALS. 17 
 
 —Held, refosmg an application to allow the secoritT upon a proposed 
 appeal to tlie Privr CouncU from the deeisimi of the Court of Appeal 
 that an appeal did not lie as of right under ILS.O. 1897, c. 48, s. L 
 Cac Pae. Rt. Co. v. Toronto. 19 O.L.R. 663. 
 
 JCDGE rX CHAMBEXS AlTESL TO FTLL COCKT. 
 
 No appeal lies to the Supreme Court of Canada from an order of a 
 judge of that Court in Chambers granting or r^fu^ing leave to appeal 
 from a decisi<» of the Board under s. 44 (3| of the Railwar Aet. 1903. 
 
 Williams v. Grand Trunk Ry. Co.. 4 Can. Rv. Ca*. 302. 36 Can S ci 
 321. 
 
 [Relied on in Re Ridiard, 38 Can. S.C.R- 398; refemd to in Re Telford, 
 11 B.C.R. 365.] 
 
 JrwsDicnox — Ptbuc imp^^taxce. 
 
 Where the judge entertained doubt a£ to the jurisdiction of the Board 
 to make the order ccMnplained of and the questions raised were of public 
 importance, special leave for an appeal was granted, on terms, under the 
 provisiMis of s. 44 (3) of The Railwar Act, 1903. 
 
 Montreal Street Ry. Co. v. Montreal Terminal Ry. Co. and Board of 
 Baihniy Commissioners for Canada, 4 Can. Rv. CasJ 369, 35 C*n. S.CJL 
 478. 
 
 Obdex imposcvg tekms. 
 
 The Board granted an application of the James Bay Ry. Co. fw leave 
 to carry their line under the track of tiie G.T. Ry. Co.. but, at the request 
 of the latter, imposed the condition that the masonry w<M'k of such under- 
 rmasing should be suffi<-ient to allow of the construction of an additional 
 track on the line of the G.T. Ry. Co. Xo evidence was given that th^ 
 latter company intended to lay an additional track in the near future «- 
 at any time. The -James Bay Co.. by leave of a .Judge, appealed to the 
 Supreme Court of Canada from the part of the order imposing such terms, 
 contending that the same was beyond the jurisdiction of the Board: — 
 Held, that the Board had jurisdiction to impose said terms: — ^Held. per 
 Sedgewid:. Davies and Maclennan. -T-J.. that the question before the Court 
 was rather <H)e of law than of jurisdiction, and should have come up on 
 appeal by leave of the Board or been carried before the Govemor-Gawral- 
 in-«ouncil. 
 
 James Bav Rv. Co. v. Grand Trunk Ry. Co., 5 Can. Ry. Cas. 164, 37 
 Can. S.C.R. 372.' 
 
 .JcMSDicTioxAi. Aiiorrvr — Costs of farm csossixg. 
 
 An applicaticm to have the appeal quashed on the grounds that the coe-t 
 of the estahli^ing the crossing demanded. t<^ether with the damages 
 sought to be recovered by the plaintilf. would amount to le^ than ^000. 
 and that the case did not come within the provisions of the Supreme 
 Court Act permitting appeals from the Province of Quebec, was dismissed. 
 
 Grand Trunk Rv. Co. v. Perrault, 5 Can. Ry. Cas. 2l»;}. 36 Can. S.C.K. 
 671. 
 
 lOOTATIOX OF TIME — JCWSDICTIOX. 
 
 Except in the case mentioned in rule .lO. there is no limitation of the 
 time within which a -Judge of the Supreme Court may grant leave to 
 appeal under a. 56 (2( of tlie Railway Act, 1006. on a question of ih.- 
 juriadiction of the Jktard. 
 
 , Grand Trunk Ry. ("o. v. Department of Agriculture for OnUrio, 10 Can. 
 Ry. Cas. 84. 42 Can. SCR. 557. 
 Can. Ry. L. Dig.— 2. 
 
18 APPEALS. 
 
 Leave to aiteal — Jukisdictioxal grouxds. 
 
 On ail application for leave to appeal to the Supreme Conrt from an 
 order of the IJoard permitting the Montreal Ligiit, Heat & Power Co. to 
 erect, place and maintain its wires beneath the tracks of tiie Montreal 
 Terminal Ry. Co.: — Held, that, as only a question of jurisdiction and not 
 of law was involved, the application must be refused. 
 
 Montreal Terminal Ky. Co. v. Montreal Light, Heat and Power Co., 10 
 Can. Ky. Cas. 133. 
 
 Leave to appeal— Wire.s iseneatu tkacks. 
 
 An order of the Board permitting a power comjjany to maintain its 
 wires beneath the tracks of a railway company involves a question of 
 jurisdiction and not of law, from which leave to appeal to the .Supreme 
 Court will he refused. 
 
 Montreal Terminal Ry. Co. v. Montreal Light & Power Co., 10 Can. Ry. 
 (as. 138. 
 
 Leave to appeal — Jurisdiction of Board. 
 
 Where a question of law is one of jurisdiction, the party who disputes 
 the jurisdiction should apply to a Judge of the Supreme Court for leave 
 to appeal, but the Hoard should not, imder its power to submit questions 
 of law to the Suj)reme Court, submit a question which is really of juris- 
 diction. 
 
 Prince Albert v. Can. Northern Ry. Co., 11 Can. Ry. Clas. 200. 
 
 Leave to appeal — Jukisdictiox of Board. 
 
 A judge of the Supreme Court of Canada will not grant leave to appeal 
 from the decision of the Board on a question of jurisdiction if he has 
 no doubt that such decision was correct. lx?ave refused. 
 
 Halifax Board of Trade v. Grand Trunk Ky. Co., 12 Can. Ry. Cas. 58. 
 
 Orders of Board — Form of submission — Defining questions of law. . 
 
 The Supreme Court of Canada will not entertain an appeal under s. 56 
 (3) of the Railway Act, 1906, unless some specific question is stated, or 
 otherwise defined, in the order granting leave to appeal made by the Board 
 which, in its opinion, is a question of law. 
 
 Can. Pac. and Can. Northern Ry. Cos. v. Regina Board of Trade (Regina 
 Toll Case), 12 Can. Ry. Cas. 369, 44 Can. S.C.R. 328. 
 
 [See 45 Can. S.C.K.' 321, 13 Can. Ry. Cas. 203, affirming 11 Can. Ry. 
 Cas. 380.] 
 
 Orders of Board — Jurisdictional grounds — Crown granting leave. 
 
 An appeal from the order of the J^oard lies to the Supreme Court under 
 B. 56, subs. 2, of the Railway Act, 1906, after the leave prescribed by 
 that section has been obtained, on any (juestion of jurisdiction or law. 
 Under subs. 3 the Supreme Court is to determine by its judgment t^ie 
 questions submitted, and under subs. .■> to certify its opinion to the Board, 
 which is to make an order in accordance therewith, and that order by 
 subs. 9 is declared to be final: — Held, that the provisions of s. 56 are 
 not sufficient to take away the prerogative of the Crown to grant leave 
 to appeal from their judgment, [(jrand Trunk and Can. Pac. Ry. Cos. 
 V. Toronto (Toronto Viaduct Case), 42 Can. S.C.R. 613, 11 Can. Ry. Ca.-;. 
 38, affirmed.] 
 
 Can. Pac. Ry. Co. v. Toronto and Grand Trunk Ry. Co. (Toronto Via^ 
 duct Case), 12 Can. Ry. Cas. 378, [1911] A.C. 461. 
 
APPEALS. 
 
 19 
 
 Omdem or Railway axd Mcxicipai. Boako. 
 
 TT»e right of a municipality to appeal from aa order of the Ontario 
 Railvay and Municipal Board permitting a street railway to devUte iU 
 line, I* not lost or waiied by the failure of the citv to appeal from the 
 na»e ruling of the Board in favour of the railway company as to the 
 right to deviate when the deviat:<Hi plan wa* not approved at that hear- 
 ing, as it may wait until the making of the formal order and appeal 
 therefrom on obtaining the requisite leave. 
 
 Ke Toronto and Toronto i. York Uadial Rv. Co. l-j Can Rt Caa. •»T7 
 12 D.L.K. 331. ±8 O.L.R. ISO. ' ' ' " 
 
 [Affirmed in 17 Can. Ry. Cas. .^46. 15 D.L.R. 270; applied in Re Torontu 
 t York Radial Ry. Co. and Toronto. 26 D.L.R. 244.] 
 
 OvTAKio Railwat Board — Spo ul Act— Xo espbe^s right givks-^Jc- 
 BiSDicnox of Appeu-ate Court to gr.%.\t leave. 
 
 S. 48 (II of the Ontario Railway and Municipal Board Act (R-^?.0. 
 1914, e. 186). which provides that an appeal shall lie from the Board 
 to a Divisional Court upon a question of jurisdiction or upon any question 
 of law. applies to the jurisdiction given to the Board by the Ontario Act. 
 1917, 7 Geo. V. c 92. s. 4, by which power is given to the City of ToroBto 
 to expropriate part of the Toronto k York Radial Ry. and although under 
 the later Act no right of appeal is expressly given to the County of York, 
 the Appellate Court has jurisdiction to grant leave. 
 
 Re Toronto and Toronto k York Radial Ry. Co. et aL, 23 Can. Rv. 
 Cas. 218, 42 O.L.R. 545. 4."J D.UR. 49. 
 
 C. From ExpropiiAticm Awards. 
 
 OsDCB BT Jluge; in Chambers as to monets DEPOsrmi. 
 
 The College of Ste. Tberese having petitioned for an ordo' for payment 
 to them of a sum of ^.000 deposited by the appellants as security for 
 land taken for railway purposes, a Judge of the Superior Court in Cham- 
 bers after formal answer and hearing of the parties granted the order 
 under the Railway Act, R..^.C-. 1886. c. 109, s. S. subs. 31. The railway 
 company appealed against this order to the Court of Queen's Bench for 
 Lower Canada and that Court affirmed the decision of the Judge of the 
 Superior Court: — Held, that the order in question having been made by 
 a Judge sitting in Chambers, and. further, acting under the statute as .i 
 persona designata, the proceedings had not originated in a Superior Court 
 within the meaning of s, 28 of the Supreme and Exchequer Cottfts Act. 
 and the case was therefore not appealable. 
 
 Can. Pac. Ry. Co. v. Ste. Tberese. 16 Can. S.C.R. 606. 
 
 [Affirmed in St. John £: Quebec Ry. Co. v. Bull. 16 Can. Ry. Cas. 2vl. 
 followed in Can. Xorthem Ontario Ry. Co. v. Smith. 21 Can. Ry. Cas. 98.] 
 
 AiiocTCT nc controversy — Costs. 
 
 In a railway expropriation case the respondent in naming his arbitrator 
 declared that he only appointed him to watch over the arbitrator of tb« 
 company, but the company recognized him officially and suhsequ«itly an 
 award of $1,974.25 damages and costs for land expropriated was made 
 under Art. 5164, R.S.Q. The demand for expropriation as formulated in 
 their notice to arbitrate by the api»ellants was for the width of their 
 track, but the award granted damajies for three feet ouL-ide of the fences 
 on each side as being valueless. In an acti<Mi to set aside the award:— 
 
20 APPEALS. 
 
 Held, affirming the jiulgraent of the Courts below, that the appointment 
 of respondent's arbitrator was valid under the statute and bound both 
 parties, and that in awarding damages for three feet of land injuriously 
 affected on each side of the traclc the arbitrators had not exceeded their 
 jurisdiction. Strong and Taschereau, JJ., doubted if the amount in con- 
 troversy was sufficient to give the Court jurisdiction to hear tlie appeal, 
 the amount of the award being under $2,000, and to make up the appeal- 
 able amount eitlier interest accrued after the date of the award and after 
 action brought or the costs taxed on the arbitration proceedings would 
 liave to be added. 
 
 Quebec, Montmorency & Charlevoix Ky. Co. v. Mathieu, 19 Can. S.C.R. 
 426. 
 
 [Distinguished in Dufresne v. Guevrement, 26 Can. S.C.R. 219.] 
 
 Judicial notick of appeai. — Jibisdiction. 
 
 In expropriation proceedings under the Railway Act a single Judge of 
 the Superior Court may take judicial notice of the proceedings on appeal 
 from the award, though such appeal was not by direct action, but by 
 petition, and that even in the absence of rules of special practice to this 
 effect as such rules are not required to confer jurisdiction. Hence it fol- 
 lows that such appeal may be taken without direct action and by means 
 of a petition. The appeal in this case will lie "as in a cause of original 
 jurisdiction" on all questions of law and fact according to the evidence 
 before the arbitrators. The Judge can only alter the award when it i^ 
 clear that it results from a gross error of law, or in appreciation of the 
 facts, on the part of the arbitrators. 
 
 Neilson v. Quebec Bridge Co., 21 Que. S. C. 329. 
 
 [Approved in Lamarre v. Grand Trunk Ry. Co., 11 Que. P.R. 217.] 
 
 Appeal to Court of King's Bet^ch. 
 
 Quaere, does an appeal lie to the Court of King's Bench from a judg- 
 ment of the Superior Court sitting in an appeal from an award of arbi- 
 tration under s. 200 of the Railway Act, 1906? 
 
 Quebec, Montreal & Southern Ry. Co. v. Landry, 19 (^le. K.B. 82. 
 
 Appeal to suPERtoR court. 
 
 For an appeal to the Superior Court from tlie award of arbitrators in 
 expropriation proceedings under the Railway Act a petition alone is stiffi- 
 cipnt; the petition need not be accompanied by a writ. 
 
 Lamarre v. Grand Trunk Ry. Co., 11 Que. P.R. 216. 
 
 Recusation of arbitrator — Expropriation hy a railway company. 
 
 No appeal lies to the Supreme Court of Canada from a judgment of the 
 Court of Queen's Bench, confirming a judgment of the Superior Court, 
 which dismissed a recusation of an arbitrator appointed in an expropria- 
 tion by a railway company. 
 
 Richelieu Ry. v. M6nard, 5 Que. P. 11. 179, Wurtele, J. 
 
 Discontinuance of expropriation prockedings. 
 
 An order allowing or confirming a discontinuance, by the city of Mon- 
 treal, of expropriation proceedings under ss. 429 to 439 of the 63 Vict, 
 c. 58, is not a final judgment of the Superior Court susceptible of appeal 
 to the Court of King's Bench, and. therefore, no appeal lies from it to 
 the Court of Review. Per Archibald, J.: — The city had no right to dis- 
 continue the proceedings, but the order allowing it to do so is not a 
 judgment, it is a purely ministerial act of the Judge, and is not there- 
 
APPEALS. 21 
 
 m 
 
 foK soaeeptable of review. Per Clurbooiwao, J.: — Th/t order, if it is a. 
 jndgBOit, Bust be a final one, and, as s. 439 expresslT takes awaj the 
 ij^t of appeal from a final judgment homologating the report of ibe 
 c awMiia s dc mCTs i'ot expropriation, the right of appeal is impliedlr taken 
 away from this <me- Pw Fortin. J.: — ^The order is a jodgm^t of the 
 Saperi<H- Court, soseeptible of appeal to the Court of King's Bench, and, 
 therefore, aa appeal lies frwm it to the Coort of Keiiew. In this ea*e, 
 tie judgment was founded in law and should be confirmed. The Judge, 
 therefore, concorred in striking out the inscription in review, whiA 
 leaves the judgment undisturbed. 
 
 Be Lafontaine Park; Montreal v. Cubing, 40 Que. S.C. 1. 
 
 -Etkst"'' kead DisraiBmvixT — "Issrx" as distixgctshed raox "Etest' 
 — Costs or axd t!scn»L5TJU. to asbitkation. 
 
 Sam Kee, having obtained an award from arbitrators appointed nader 
 Uie Bailwaj Aet^ 1903, which award, by rea;$on of s^ 162 of the Act, 
 entiyed him to the costs of the arbitratioo. the railway cmnpany ap- 
 pealed to tiie full Court, advancing several distinct grounds of appeal, 
 oa all of which, with the exceptiui oi the rate of interest allowed by 
 the ariHtrators, they failed, the interest being reduced to the statutory 
 rate, froan six per cent to five per cent: — Held (Irving. J„ disscatii^lf, 
 (1) that the winrd 'event," in Sw 100 of the Supreme Court Act, 1901, 
 may be read distributively. ^i* That «. 162 of the Railway Act, 1903, 
 does not apply to costs of appeals to the full Court from award of 
 arbitrators, but that such appeal is an independent proeeeding. and is 
 timcf<ve governed by s. 100 of the Supreme Court Act. 1904. (3> 
 That the success of the appellant company 4m the question of intoest was 
 merely an ~issae" arising on the appeal, and not an "event*^ on whi^ it 
 was taken. 
 
 Vancouver, Westminster k Yukon By. Co. v. Sam Kee, 12 B.CR. 1. 
 
 [Following in Hopper v. Dirasmuir. 12 B.CJL 22.] 
 
 Choick oe nxni. 
 
 By 8, 16S (rf the Bailway Act, 1903. if an award by arbitTat4Mrs on ex- 
 propriatkm of land by a railway company exceeds iS600. any dissatis- 
 fied party may appeal therefrom to a Superior Court, which in Ontario 
 means the High Court or the Coiu^ of Appeal {Interpretation Act, R5.C. 
 1906, c 1, 8. 34. subs. 26 1 : — Held, that if an appeal frwn an award is 
 takea to the High Court, there can be no further appeal to the Supreme 
 Court of Canada, which cannot even give special leave. 
 
 James Bay By. Co. v. Armstrwig. 6 Can. By. Cas. 196, 38 Can. S.CJL 
 511. 
 
 [Affirmed ia [1909] A-C. 624, 10 Can. By. Cas. 1; followed in St. John 
 i Qnriwc By. Co. v. BnlL 16 Can. By. Cas. 284.] 
 AiTEAi. TO Hjch Cocrr — ^No ftbtheb appeal to SvpaEio; Cotnrr. 
 
 According to the true construction of s. KSS of the Bailway Act. 1903, 
 the appeal given thereby to a Superior Court from an award under that 
 Act, lies in the Province of Ontario to either the Court of Appeals or 
 the High Court of Justice therein at the option of an appellant: but 
 in ease of appeal to the High Court, inasmuch as it is the last resort 
 in the province within the meaning of the Supreme and Exchequer 
 Courts Act. B-S.C. 18S6. c. 13o. s. 126. there is no appeal therefrom to 
 the Supreme Cotnt of Canada. 
 
 James Bay By. Co. v. Armstrong. 10 Can. By. Cas. 1. [1909] A.C. 
 624. 
 
 [Belied on in Quebec and Montreal Southern By. Co. v. Landry, 19 
 
22 APPEALS. 
 
 Que. K. B. 89; VallitMes v, Ontario and Quebec Ry. Co., 19 Que. K. B. 
 r)24; followed in Ke iJuvies & James Bay Ry. Co., ]0 Can. Ry. Cas. 
 2:iti, 20 O.L.R. 534; followed in St. John & Quebec Ry. Co. v. Bull, 10 Can. 
 Ry. Cas. 284.] 
 
 J^XI'JRY OF STATUTOKY PERIOD ORnEK GK.\XTING LEAVE. 
 
 The Court refused to entertain a motion to quash the appeal on the 
 ground that it had not been taken within the sixty days limited by tlie 
 statute and that an order by a Judge of the Court appealed from after 
 the expiration of that time was ultra vires, and could not be permitted 
 under s. 42 of the Supreme and Exeliequcr Courts Act, R.S.C. c. 135. 
 
 lemiscouata Ry. Co. v. St. Clair, G Can. Ry. Cas. 367, 38 Can. S.C.R. 
 2.S0. 
 
 liWAI.ID OKUER OK I'OSSKSSIOX At'PKAL FKO.M^- ADDITIONAL RKLIEF, I.\.Jl.NC- 
 
 TION. 
 
 The plaintiff, instead of taking an appeal from an invalid order grant- 
 ing possession to lands taken by a railway company under invalid ex- 
 propriation proceedings, brought an action against the railway com- 
 j)any, claiming injunction and damages: — Held, that the plaintiff could 
 maintain the action, for the reason that, even if an appeal would lie from' 
 tlie order, the plaintiff was entitled to additional relief by way of in- 
 junction and damages, wliich could not be given on appeal. 
 
 Girouard v. Grand Trunk Pac. Rv. Co., 9 Can. Ry. Cas. 354, 2 Alta. 
 L.R. 54. 
 
 Ai'PEAL TO Court of King's Bench. 
 
 Under s. 209 of the Railway Act, 1906, an appeal from an award only 
 lies to a Superior Court. If an appeal has already been heard by the 
 Superior Court, there cannot be a further appeal to the Court of King's 
 Bench. 
 
 Valli&res v. Ontario & Quebec Ry. Co.. 11 Can. Ry. Cas. 18, 11 Que. 
 P.R. 245, 19 Que. K.B. 521. 
 
 [Applied in Bickerdike v. Montreal P. & I. Ry. Co., 11 Que. P.R. 
 260.] 
 
 Decision of aruitkators. 
 
 (1) In a railway expropriation an appeal to the Superior Court 
 from the decision of the arbitrators may be instituted before the award 
 is deposited with the records of said Court. (2) It is not essential 
 that plaintiff should allege aflfirmatively that the appeal is taken within 
 a month after the reception of the notice of the award. 
 
 Bickerdike v. Montreal Park & Island Ry. Co., 11 Que. P.R. 260. 
 
 T 1 M e — Del av.s — P i;t i t lo n . 
 
 ( 1 ) In a railway expropriation every party to the arbitration may 
 apj)eal within one month after receiving a written notice of the making 
 of the award. (2) If such notice has been given on the 9th of December, 
 the appeal may be presented on the lOtli of January next, if the 9th is 
 a Sunday. (3) A petition to appeal from the award of arbitrators in a 
 railway expropriation is not in the nature of an application for certiorari 
 jind does not need to be supported by aHidavit. 
 
 Montreal Park & Island Ry. Co. v. Bickerdike, 11 Que. P.R. 261. 
 
 Review of Award — Inadequacy of compensation. 
 
 No appeal lies in the Province of Quebec to the Court of King's Bench 
 
APPEALS. 23 
 
 froai tfce jn^vimt of tbe Superior Court upon an appeal under *- 20!» of 
 tke RaihraT Art, 1H06. from the award of an arbitrator. 
 
 Rolland v. Grand Trunk Rr. Co.. 14 Can. Rt. Ots. 51. 7 D.L.R. 441. 
 
 RiTjES tM' Dccij-iox — Pboti.vciai- corrRs FOixo«-i:xc DECi.^iox OF Peitt 
 Corscir, 
 
 Under the British Colunahia Railvav Act. upon an appeal from the 
 avard of arbitrators fixing danage^ under eminent domain proreedii^ 
 where the principle applicable to such an appeal has already l««i laid 
 down hy the Privy Council under the Dominion Railway Art, 18S8. whic!i 
 i-i.. •« far as material, identical in language with the British Columbia 
 ]>tatute, that construction will be adc^ted. [Atlantic Jt Xorth-West Rt. 
 Co. T. Wood. [189,3] A-C. 257, 64 LJ.P.C. 116. applied.] 
 
 Can. Sorth. Pac Ry. Co. r. Dominion Glazed Cemmt Co. (R C), 14 
 Can. Ry. Cas. 265, 7 DJ^R. 174. 
 
 Review of facts. 
 
 The Appellate Court, on an appeal from an award in eminent domain pro- 
 ceedings, should come to its own eonelusion iqicm all the eridcsice, payii^ 
 due regard to the award and findings and reviewing them as it vrmiM 
 tbo»e of a snboitdinate Court. On an appeal from an award, the latter 
 will not be set aside merely because the Appellate Court disagrees with 
 the reasoaing of the arbitrators. Imt wiU stand if it can be supported on 
 any ground sufficient in law. .Tames Bay Ry. Co. v. Armstrov^, [1909] 
 A.C. 624. 10 Can. Ry. Cas. 1. referred to.' 
 
 Re Ketcheson and Can. Northern Ontario Ry. Co.. 13 D.L.R. 854. 
 
 {Followed in Green v. Can. Xorthem Ry. Co, 19 Can. Ry. Ca*. 171. 8 
 8«sk. LIL .^.1 
 
 USSATISFACTOBT AWAJD BASED OX ITXCONTRADICTED EVIBKSCK. 
 
 The fact that arbitrators in awarding damage^ for the expropriation 
 of a railway right-of-way through a brick-making plant which entailed 
 additional expense for the carriage of brick-making materials to tlw fac- 
 tory, based their award on uncontradicted eTi«len«' as to an impracticable 
 system of transportation will not justify interference with the award by 
 the Appellate Court if there is evidence to support it, even though the 
 Court is dissatisfied with the award: as the appeal must be dealt with 
 on the evidence produced before the arbitrators and the Court cannot 
 remit to them for the taking of additional testimony an award made 
 luider the Railway Act. [Atlantic i Xorth-West Ry. Co. v. Wood. 
 [1895] A.C. 257. and Re McAlpine and Lake Erie i Detroit River Ry. Co.. 
 3 Can. Rv. Cas. 95. 3 0-L.R. 230. referred to.] 
 
 Re Davies and James Bay Ry. Co.. 16 Can. Ry. Cas. 78. 13 D.LR- 912, 
 28 Oi-R. 544. 
 
 Emixejft homalv — KEMirriNG AWA«D TO A«Bn«ATO»s — FAn.tKE n> rrev- 
 
 IZK lAntr SCM AS EQCTVAIXXT TO VERI»ICT OF jrKT. 
 
 On an appeal from the award of arbitrators in an exproprUtion pto- 
 ceeding the Court has power, under s. 46 of the Expropriation Act. 
 Rj;.M. 1902. c. 61. to refer bade the award for reconsideration and 
 redetermination where it is impossible to deal intelligently with the appeal 
 by rea^Hi of a Itunp sum being awarded, without any indication by the 
 arbitrators, who refused to give their reasons for their award, as to the 
 nature of the items of damages comprising it. An award of a hnnp 
 aim as damages for land expropriated will not he treated on appeal as 
 equivalent to the verdict of a jury, where it is apparent from the evidence 
 
24 APPEALS. 
 
 that some items entering into tlie award should have been eliminated as a 
 matter of law. [Vezina v. The Queen, 17 Can. S.C.R. 1, at 16, followed.] 
 
 Re Van Home and Winnipeg & Northern Ry. Co., 16 Can. Ry. Cas. 72, 
 14 D.L.R. 897. 
 
 Evidence sifficiext to si.stain award. 
 
 Where, in an arbitration proceeding, the appellant's evidence was directed 
 to establishing damages on a wrong basis, and. on appeal, ho does not 
 seek a rehearing on that ground, but insists that sucli evidence was proper, 
 the award will be upheld if there is any evidence to sustain it. (Per 
 Harvey, C.J., and Walsh, J.) 
 
 Saskatchewan Land & Homestead Co. v. Calgary & Edmonton Ry. Co., 
 16 Can. Ry. Cas. 114, 14 D.L.R. 193. 
 
 Jurisdiction — Second appeal after appeal from arbitrators to Judge. 
 
 No further appeal lies to the Court en banc from an order of a judge 
 of the Supreme Court of New Brunswick setting aside an award on an 
 appeal to him under s. 17, subss. (20) aJid (21) of C.S.N.B. 1903, 
 c. 91, which permit an appeal on questions of law or fact to a judge 
 of such Court from an award made by arbitrators in an expropriation pro- 
 ceeding. [Birely v. Toronto, Hamilton & Buffalo Ry. Co., 25 A.R. (Out.) 
 88 Canadian Pacific Ry. Co. v. St. Th6r&se, 16 Can. S.C.R. 606; Ottawa 
 Elec. Co. V. Brennan, 31 Can. S.C.R. 311; and Re Armstrong & James Bay 
 Ry. Co., 12 O.L.R. 137, 5 Can. Ry. Cas. 306; James Bay Ry. Co. v. Arm- 
 strong, 38 Can. S.C.R. 511, 6 Can. Ry. Cas. 196, affirmed 1909, A.C. 624, 10 
 Can. Ry. Cas. 1, followed.] 
 
 St. John & Quebec Ry. Co. v. Bull, 16 Can. Ry. Cas. 284. 
 
 Review of avfard — Reasons not apparent of record. 
 
 The reasons or principles which guided arbitrators in making an award 
 not contained in the award or supplemented therewith, will not be reviewed 
 on appeal. 
 
 St. John & Quebec Ry. Co. v. Eraser, 19 Can. Ry. Cas. 177, 24 D.L.R. 
 339. 
 
 Eminent domain — Present and future vaiate of lands. 
 
 An award of arbitrators increased by the Appellate Division (Ontario), 
 from $9,350 to $15,842, was restored by the Supreme Court, the amount 
 added for filling having been already allowed in the award and the 
 increase in the award for frontage value to a portion of the land taken 
 on Bank Street, a country road outside the city limits being disallowed, 
 where there was free land in abundance in the neighbourhood with no 
 building operations in progress and no evidence of actual demand of land 
 for building purposes. Upon an appeal from an award under s. 209 of the 
 Railway Act, 1906, it is competent for the Courts to decide any question 
 of fact upon the evidence taken before tlie arbitrators as in a case of 
 original jurisdiction, subject to the following rules: (1) An appeal upon 
 a question which is merely one of value should be discouraged. Musson 
 V. Canada Atlantic Ry. Co., 17 L.N. 179, at p. 181, followed. (2) There 
 iniist be such a plain and decided preponderance of evidence against the 
 fiiulings of the arbitrators as to border strongly on the conclusive. (3) The 
 latter rule should be more strictly followed where the arbitrators are 
 experienced in such matters, have local knowledge and the great advantage 
 of a personal view of the premises, and of seeing and hearing the wit- 
 nesses. Lemoine v. Montreal, 23 Can. S.C.R. 390, at p. 392: Kearney v. The 
 Queen, Cam. S.C. Cas. 344, at p. 347, followed. In eminent domain pro- 
 
APPEALS. 
 
 ^.n 
 
 ccedings what is to be ascertained is the xalue to the owner as it existed 
 at the date of the taking, not to the taker, such value nmsists in all 
 the advantages which the land possesses, present or fntnre. but it is the 
 present value alone of such advantages that falls to be determined. 
 Cedars Rapids Co. v. Lacoste. [1914] A.C. 560, at p. 576, followed. 
 
 Can. Xorthem Ry. Co. v. Billings, 19 Can. Ry. Cas. 193. 
 
 [Followed in Lake Erie 4 Xorthem Rv. Co. t. Muir, 21 Can Ry Cas 
 350, 32 DX.R. 252.] 
 
 Vaix^ op laad — Evidence — Esi'sofbiatiox. 
 
 The Court refused to set aside an award of arbitrators having the 
 advantage of local knowledge and personal inspection of the property 
 upon concurrent testimony of a large number of witnesses in favour of 
 the owner and no contradictory evidence was given cm behalf of the 
 appellant railway company: Decision of the Ontario Appellate Divi- 
 sion affirmed. 16 Can. Ry. Cas. 286. Per Anglin. J. (dissenting). — ^An 
 objection was properly taken against the introduction of evidence of more 
 than five expert witnesses (see R.S.C. c. 145. s. 7) and the proper course 
 was to eliminate from the evidence all testimony improperly introduced, 
 and to determine as in a case of original jurisdiction (but see Wood v. 
 Atlantic & X. W. Ry. Co. (1395), A.C. 257) what the award should be 
 on the remaining testimony. 
 
 Can. Xorthem Ry. Co. v.' Ketcheson. 21 Can. Ry. Cas. 104, 32 DXJl. 629. 
 
 Coubt's power to kemit awakd — Ixvauditt of awabd — Impbopeb eti- 
 DEXCE — Experts. 
 
 The provisions of the Arbitration Act (Alta.. 1909, c 6) apply to 
 arbitrations imder the Alberta Railway Act (1907. c. 8), so as to em- 
 power the Court or a Judge, on appeal from an award, to remit it to 
 the arbitrators for reconsideration. The reception by the arbitrators of 
 testimony of a number of expert witnesses greater than that limited by 
 the Evidence Act (Alta.. 1910, 2nd Sess., e. 3) is a ground for setting aside 
 the award. 
 
 Can. Xorthem Western Ry. Co. v. Moore. 21 Can. Ry. Cks. 112, 53 Can. 
 S.C.R. 519, 31 D.L-R. 456. ' 
 
 ReASOXS for award — EXAilTSATIOX OF ARBTTRATORS — ApPOi:«TMEXT BT 
 SPBCIAL EXAMIXER WiTXESS. 
 
 On an appeal from an award of arbitrators imder the Railway Act. 1906. 
 the arbitrators cannot be examined on oath for the purpose of obtaining 
 their reasons for the award for the information of the Court: and an 
 appointment issued by a special examiner without leave of the Court 
 for the examination of one of them as a witness, as on a pending motion, 
 was set aside with costs. 
 
 Clarkson ( Lloyd i v. Campbellford. Lake Ontario & Western Ry. Co., 
 21 Can. Ry. Cas. 330, 35 Oi.R. 345. 
 
 SC(VE OF APPEAU 
 
 It is competent for the Court, apart from the jurisdiction given by 
 the Railway Act, 1906. to act upon its own view of the evidence taken 
 by the arbitrators in expropriation proceedings upon an appeal taken 
 from the award. [Re Macpherson and Toronto. 26 OJl. 558. followed.] 
 
 Re Muir and Lake Erie & Xorthem Ry. Co., 19 Can. Ry. Cas. 107, 20 
 D.L.R. 687. 
 
 [Reversed in 21 Can. Ry. Cas. 350.] 
 
26 APPEALS. 
 
 C'O.NCM'SIVENESS OF AWARD AmOUXT. 
 
 The Appellate Court will not interfere with the award of arbitrators 
 who have had the advantage of viewing tiie property, on a mere matter 
 of valuation, unless it is evident that they have acted on a wrong 
 principle in making the award. [Re Muir and Lake Erie & Northern Ry. 
 Co., 32 O.L.R. 150, 19 Can. Ry. Cas. 107, reversed; Cedars Rapids Co. 
 V. Lacoste, [1914] A.C 509 at p. 576: Can. Northern Ry. Co. v. Billings, 19 
 Can. Ry. Cas. 193 at p. 200 followed.] 
 
 Lake Erie & Northern Ry. Co. v. Muir, 21 Can. Ry. Cas. 350, 32 D.L.R. 
 252. 
 
 L\CREA.SING AMOUNT OF ARIMTKATOUS' AWARD. 
 
 Upon an appeal from the award of arbitrators made under the Railway 
 Act, 1900. the Appellate Court may increase the amount of the award, 
 upon consideration of the evidence given before the arbitrators. 
 
 Lake Erie & Northern Ry. Co. v. Brantford Golf & Country Club, 21 
 Can. Ry. Cas. 360. 32 D.L.R. 219. 
 
 RkVIEW OF AWARD. 
 
 Tlie award of arbitrators under s. 209 of tiie Railway Act, 1906, is 
 similar to the judgment of a trial Judge. An appeal, upon law and fact, 
 is always open. But an appeal Court will not interfere with the decision, 
 unless there is good and special reason for doubting the soundness of the 
 award. 
 
 Ruddy V. Toronto Eastern Ry. Co.. 21 Can. Ry. Cas. 377, 33 D.L.R. 193. 
 
 [Applied in Noble v. Campbellford etc., Ry. Co., 21 Can. Ry. Cas. 380.] 
 
 Award varied — "Good and Special" reasons — Amox^nt. 
 
 An award of arbitrators under the Railway Act, 1906, will not be varied 
 by an Appellate Court vipon a mere question of valuation except for "good 
 and special" reasons, even when the Apj)eUate Court is of opinion that 
 the amount awarded is very excessive or very inadequate. [Ruddy v. 
 Toronto Eastern Ry. Co., 21 Can. Ry. Cas. p. 377 applied.] 
 
 Noble V. Campbellford, Lake Ontario & Western Ry. Co., 21 Can. Ry. Cas. 
 380. 
 
 Powf:r to remit award — Compensation — ^Iixinc richts. 
 
 Where, in an arbitration under the Railway Act, 1906, the arbi- 
 trators refused, for legal reasons to entertain a claim, an Appellate Court 
 on appeal therefrom, has i)ower to remit the case to the arbitrators, to 
 be dealt with by them on the merits; the question of compensation if any 
 to be paid for a mining right under a coal lease is one of fact for the 
 arbitrators. [Can. Northern Western Ry. Co. v. Moore, 21 Can. Ry. Cas. 
 112, 53 Can. S.C.R. 519, 31 D.L.R. 456, followed; Davies v. James Bay 
 Ry. Co., 19 Can. Ry. Cas. 86, [1914] A.C. 1043. 26 D.L.R. 450. considered.] 
 
 Re Nash & Williams and Edmonton. Dunvegan & British Columbia Ry. 
 Co., 21 Can. Ry. Cas. 399, 36 D.L.R. 601. 
 
 Superior court — Meaning of — Interpretation Act. 
 
 According to the Interpretation Act (R.S.C. 1906, c. 1, s. 34 (26)), the 
 Superior Court to which an appeal may be taken in British Columbia 
 against an award of arbitrators under the Railway Act 1906, s. 209. is 
 tlie Supreme Court of British Columbia: tliere is no further appeal from 
 such Court to the Court of Appeal. 
 
 Re Kitsilano Arbitration, 23 Can. Ry. Cas. 324. 41 D.L.R. 170. 
 
APPEALS. 27 
 
 BsrtET or facts — iMmttnjt admission or etidexck. 
 
 Wfc«e tbe u-bitnuors adnitted as e^dotce of ralor. matter^ whi^ii 
 tke Court on app«tl decided were iaadmissible and which may have 
 ■aterially affected the arbitrators' fiDding. the Court hearing an appeal 
 froat the award is not bound under s. 114 of the Railway Act AlU. 1907. 
 e. 8 to deride the question of faet raised by the appeal as in a eas« of 
 «r^;iBnl jorisdietion ; it i* <Mily where there i* nothing but a question 
 ot Smtt, involred that the Court i* Ijound under >. 114 to defide the 
 saae upon the evidence taken before the arbitrators instead of setting 
 aside the award or remitiiner th«r «**•. [Atlantic and N.W.iL Co. v. 
 Wood, [1895] A-C. fS57; Cedar* Rapids Mig. Co. v. Laeoste. 16 D-i-R. Its. 
 83 LJJ>.C. 162. ronsidered.] 
 
 Can- Xmilicra Western Ry. Co. v. Moore, 23 D.L.R- M6. 8 Alta. 379. 
 
 JlTUSDICTIOX TO SET A^^IDE OB KEMIT. 
 
 The Court hearin« an ap^Mf-al frvm an award under s. 114 of the Rail- 
 way Art. Alta.. 1907. r. 8. has jurisdiction on siting aside the award and 
 mnittin^ the ease to the arbitrators to disp(*>4e of the costs of the abortive 
 arbi&atiaB proeeediii»s. (Cedars l^apids Hig. Co. v. Lacoste. 16 D.L.R. 
 IfiS, 83 LJJ>.C. lei. referred to.] 
 
 €«■ N<»then Western Rv. Col v. Moore, ±3 D.LR. 646, 8 Alta. LR. 
 379. 
 
 P»Acnc« — ^ADOixe xew etidc-xck ox appeal 
 
 It not bein^ the practice in the Superior lourt of Quebec on aa appeal 
 frooi an inferior Court to permit further evidence to be given on the ap- 
 peal and no genera] rale having been made to that end. new evidence is 
 not adnussible on an appeal under s. 2*19 to the Superior Court fron the 
 award of arbitrators in an expropriation under the Railway Act, 1906. 
 
 Ladiine. Jacqaes-C*artier. etc.. Ry. Co. v. Kelly. 20 DXJL 587. 
 
 Qcvsnox or law tm fact — Wktitex notice. 
 
 An appeal from the arbitrators* award under s. 209 of the Railway Act. 
 1906. upon any question of law or fart, as distinguished from a motion 
 to set aside an award, is too late if taken more than one month after 
 the other party to the proceedings had served a writ and petition in ap- 
 peal therefrom inuler the Quebec law. although no *~writteB notice' had 
 been given by any of the arbitrators of the ■»*>^'»g of the award. 
 
 La^iM, iacques-Cartier. ett., Ry. Co. v. Kelly, 20 DX.R. 587. 
 
 ArrKAX. TO ScTcxiOK Cor«T (QtrEKor- — Reti<iox — >JcitisoicTios or Corrr 
 OP RsviEir. 
 Lefrinre t. Ladiine. Jacques. Cartier. etc., Ry. Co.. 16 D.I-R. 858. 
 
 APPOBTIOMMENT OF COSTS. 
 
 See Highwaj Crossings; Railway Crossings: Wir<p* and Poles: Farm 
 CrossiBgB. 
 
 ARBITRATION AHD AWARD. 
 
 Arbitration of raUway construction contracts, aee Contracts: Gorem- 
 ment Railways. 
 
 See Appeals; Expropriation. 
 
28 ASSESSMEI^T AND TAXATION. 
 
 ABBEST. 
 
 See False Arrest. 
 
 ASSAULTS ON PASSENGEBS. 
 See Carriers of Passengers, 
 
 ASSESSMENT AND TAXATION. 
 See Customs Duties. 
 
 Annotation. 
 
 Assessment and taxation of railway lands and superstructure, 2 Can. Ry. 
 Cas. 233. 
 
 Railway bridge and baiiavat track. 
 
 ( 1 ) The portion of the railway bridge built over the Richelieu river, and 
 the railway track belonging to appellant's company within the limits of ^ 
 the town of St. Johns, are exempt from taxation imder ss. 326, 327 of 40 
 Vict. c. 29 (Que.), although no return had been made to the council l)y 
 the company of the actual value of their real estate in the mvmicipality. 
 (2) That a warrant to levy the rates upon such property for the years 
 1880-1883, is illegal and void, and that a writ of injunction is a proper 
 remedy to enjoin the corporation to desist from all proceedings to enforce 
 the same. As to whether the clause in the Act of incorporation of the 
 town of St. Johns (Que.), extending the limits of said town to the middle 
 of the Richelieu, a navigable river, is intra vires of the legislature of the 
 Province of Quebec, the Supreme Court of Canada aflirmed the holding of 
 the Court below that it was intra vires. [Judgment of the Court of 
 Queen's Bench for Lower Canada, reversed.] (Fournier and Taschereau, 
 JJ., dissenting.) 
 
 Central Vermont Ry. Co. v. St. Johns, 14 Can. S.C.R. 288. 
 
 [In this case leave to appeal was granted by the Privy Council. After 
 argument the judgment of the Supreme Court was affirmed, 14 App. Cases 
 590. Considered in Re Can. Pac. Ry. Co. and Macleod, 2 Can. Ry. Cas. 
 203, 5 Terr. L.R. 194; distinguished in Dominion Express Co, v. Brandon. 
 19 Man. L.R. 258; referred to in Hurdman v. Thompson, 4 Que. Q.B. 452.] 
 
 Franchise — International bridge. 
 
 • 
 
 In assessing for the purpose of taxation that part of a bridge crossing the 
 Niagara River, lying within a township in Canada, regard cannot be had 
 to its value in proportion to tlie value of the franchise or of the whole 
 bridge, or to the cost of construction, but only to the actual cash price 
 obtainable for the land and materials, situate within tlie township. [Re 
 Bell Telephone Co. Assessment (1895), 25 A.R. 351, and Re London Street 
 Ry. Co. Assessment (1897), 27 A.R. (Ont,) 83, applied,] 
 
 Re Queenston Heights Bridge Assessment, 1 0,L.R. 114. 
 
 [Applied in Re Stratford Waterworks Co., 21 C.L.T. 479; distinguished 
 in International Bridge Co. v. Bridgeburg, 12 O.L.R. 314; followed in 
 Belleville Bridge Co. v. Ameliasburg, 15 O.L.R. 174, 10 O.VV.R. 571.] 
 
 Tax on TRi.EtiRAPii companies — Companies incorporated by Parliament 
 
 — Init-rprovincial lines. 
 
 (1) Tlie Quebec Act. imposing an annual tax of .$2,000 on all telegraph 
 
 companies having a paid-up capital exceeding .$.50,000, and operating lines of 
 
 telegraph for the use of the public withiu the province, and doing Jjusiness 
 
ASSESS3IEXT AXD TAXATIOX. 29 
 
 tlwre, is imtn Tires c* the I^^gi^latnre. (2i The tek^nph eompMnx. ap- 
 pdlsBt, althou^ iwnrptwstod bj Pariianeai and operating iatcfpiraria- 
 dal liMs oi tdegnfrii, ihrnt is to sst, in aU the pivnMcs of Caaada, except 
 Ifoitish ColoBlMa aad Prinee Edvard I$!asd, haTing a paid-op capital ex- 
 cccdiag 930,0011, is liable for this annual tax of $2jOOD, iBasBocJi as it 
 carries «■ linlaiuu ia the Province of Qnebee aad <^erKtes a part of its 
 liaes <rf tAfnfik thnoa tar doaestie deqiati^es, that is to cay, for 
 despatches seat froai one point to aaochcr vithia the province. (3^ The 
 action of the oJlector of rereaae in his caperity as such for the rvcnrerr 
 of the tax is pnesmned to be managed aad dincetcd by the Attomer- 
 Gcaoal, who is dcainos litis thereof, and. coaseqacatly. the interveatioa 
 of the Attorney-General for the purpose of snstaiaii^ the eoastitntion- 
 alitr of the statute is a osdeK aad superflnoas proceeding, in r«;«pert 
 of vhich, under the cirramstances. he cannot be given costs. (4* The 
 Court of Appeal will not take into coitsideratioa objections aore to 
 the form than to the no-its of the ease, whid hare not been taken in 
 the Court of first instance-; 
 
 Great North- West Telegraph Co. t. Fortier. 1* Qne. K.B. 405. 
 
 Laxds of the C-P. Rt. Co. — ^Exsarpnoss fbom taxation. 
 
 Bt the charter oi the CJ>. Ky. Col the lands of the c<iMipany in the Xtfftt- 
 Wesi Territories, until they are either sold or oecupied. are exempt froa 
 Doaiaion, provincial or municipal taxation for twenty year^ after the 
 gnat thereof frma the Crown : — Held, affirming the judgment of the Conrt 
 below, that lands which the company have agreed to sell and as to which 
 the conditions of sale have not been fulfilled aie not lands ~sold~ under 
 this eharter. Held, further, that the exemption attaches to lands allotted 
 to the company before the patent i?^ granted by the Crown. Lands 
 which were in the X.W.T. wh^ allotted to the company did not lose their 
 ewssplion <» becoming, afterwards, a part of the Province of Manitoba. 
 
 Oanvallis v. C*n. Pae. Ry. Co.. 19 (*n. S.CJB. TO*. 
 
 [Gottsidaed in Ruddell v. Georgeson. $• Man. LJL 415: discossed in 
 Wnddefl t. GccwgesMi. 9 Man. L.R. .jC: distingnbhed in Water Commissioa- 
 tn of Wiadsor t. Canada Southern Ry. Co.. 2A A.1L (Ont.* 3S»: referred 
 to in R. T. Victoria Lumber and Mfg. Co.. o B.CJL 902: South X<Mf<dk v. 
 Warren, 8 Man. L.R. 489; lelied on in Balgonie Protestant School v. Can. 
 Pac Rt, Co., 5 Terr. LJR. 131; North Cypress t. Can. Pae. Ry. Co., 35 
 Caa. &aR. 55S.] 
 
 Taxation of kailwat — ^Powbbs of assessors — ^Depastcmi. 
 
 By the asaesanent law of the city of St. John. 53 Vict. e. 27. s. US 
 (N.B.), the agent or manager of any joint stock company or corporatifla 
 established abroad or out of the limits of the province may be rated and 
 asaeased upon the gross aad total income received for such company or 
 corporation, dedncting only therefrom reasonaUe cost of management, ete., 
 and such agent or manager is required to furnish to the assessors each 
 year a statement under oath in a prescribed form showing the gross 
 income and the deductions of the various elass^es allowed, the baiaace to 
 be the Tfwne to be assessed : aad. in case of n^lect to furnish such state- 
 ment, Ute assessors are to fix the amount of such inc«n>e to be assessed 
 accord]^ to their best judgment, and there shall be no appeal from such 
 aaseasBent. The Atlantic division of the C.P.R- runs from Me«antic. in 
 the Province of Qnefaee. through the State of Maine into New Bmni-wick. 
 On entering New Brunswick it nms over a line leased from a N.B. Co. to 
 the western side of the river St. -John, and then over a bridge into the 
 cil^, whore it takes the LCR- road. The guieral superintendent has aa 
 
t]0 ASSESSMENT AND TAXATION. 
 
 of!ioi' in the city, but all moneys received there are sent to the head office 
 in Montreal. The superintendent was furnished with a printed form to be 
 lilled up for the assessors, as required by said Act, which was as follows: 
 "CJross and total income received for company during the fiscal year of 
 , next preceding the first day of April. This amount has not been re- 
 duced or offset by any losses, etc." This latter clause the superintendent 
 struck out and filled in, in the first place, by stating that no income had 
 been received by the company, the remainder of the form, consisting of 
 details of the deductions, was not lilled in. This was given to the as- 
 sessors as the statement called for, and they disregarded it, assessing the 
 company on an income of $140,000, without making any inquiries of the 
 superintendent, as the Act authorized them to do. A I'ule for a certiorari 
 to quash this assessment was ol)tained. but discharged by the Court on the 
 ground that the superintendent had so far departed from the prescribed 
 form that he had in effect failed to furnish a statement as required by the 
 Act, and tlie assessment against him was final: — Held, reversing the de- 
 cision of the Supreme Court of New Brunswick,, Fournier and Taschereau, 
 JJ., dissenting, that the superintendent had a right to modify the form 
 prescribed to enable him to shew the true facts as to the business of the 
 company in St. John, and the assessors had no right to arbitrarily fix 
 an amount assessable against him without taking any steps to inform 
 themselves of the truth or falsity of the statement furnished: — Held, also, 
 that the provision that there should be no appeal from the assessment 
 where no statement is furnished, relates only lo an appeal against over- 
 valuation under C.S.X.B. c. 100, s. 60, and does not abridge the power of 
 the Court to do justice if the assessors assess arbitrarily or upon a wrong 
 principle or no principle at all: — Held, per Gwynne and Patterson, JJ., 
 that the assessment law of St. John does not apply to railway companies, 
 there being no provision made for ascertaining the amount of business done 
 in the city as proportioned to the whole business of the company. Appeal 
 allowed with costs. 
 
 Timmerman v. St. John (1893), 21 Can. S.C.R. 691. 
 
 Tax on kailway — Exemption — Railway incident to mining. 
 
 By R.S.IS'.S. (oth Ser.), c. 53, s. 9, subs. 30, the roadbed, etc., of all 
 railway companies in the Province is exempt from local taxation. By s. 1 
 the first part of the Act from s. 5 to 33 inclusive, applies to every railway 
 constructed and in operation, or thereafter to be constructed under the 
 authority of any Act of the Legislature, and by s. 4, part 2 applies to all 
 railways constructed or to be constructed under the authority of any special 
 Act, and to all companies incorporated for their construction and work- 
 ing. By s. 5. sui)s. 1.), the expression "'the company" in the Act means the 
 company or party authorized by the special Act to construct the rail- 
 way: — Held, reversing the decision of the Sujireme Court of Nova Scotia. 
 Gwynne, J., dissenting, that part one of this Act applies to all railways 
 constructed under provincial statutes and is not exclusive of those men- 
 tioned in part two; that a company incorporated by an Act of the T^egis- 
 lature as a mining company, with jiower "to construct and make such 
 railroads and branch tracks as luiglit be necessary for the transportation 
 of coals from the mines to the place of sliipment, and all other business 
 jiecessary and usually perfornieil on railroads," and with other powers 
 connected with the working of mines "and operation of railways," and 
 empowered by another Act (49 Vict. c. 45, N.S. ) to hold and work the 
 railway for general traffic, and the conveyance of passengers and freight 
 for hire, as well as for all purposes and operations connected with said 
 
ASSESSMENT AND TAXATION. 31 
 
 mSmem m acnwduce with and >abjert to tlw pTOri$k»» m pan $««iind ot 
 e- 51, R.&X-S- (.^tk Sw.k. «ntitl«d -ili Railway*- fe . nilvav eoapaar 
 vitkn tW BMaaii^ of tli« Aet : an.1 that the n-fnvMv m 4» vW c. 145. 
 s. 1, to part two. does Bot prenst said railvav fron eomkmg oader the 
 opomtiaa off the first pan of the Art. 
 
 iBtenatioul Coal Co. t. Cape Breton. ±» Can. S.C.R. 305. 
 
 Mc^snciPAi. AS^ESsMEvr or stbeet k^iltat — Retaib or boaotjit ^Locjo. 
 
 A street railvaj ecapaay in Toronto wa* to be assessed in respect oi 
 Rynns to the roadvav traversed bv the railwar. a* for local inipro<VB»t>. 
 ^i***. ^ tie Monieipal Art. conatitnte a lien upon the {wopeitr aj^^^e^^ed. 
 Iwt not a perfonal liabilitr upon owner> or oeni|Her» after they ha\f 
 reaaed to he such: — HeU. that after the terminatioB of its fianchi^e. the 
 oaifnaj vns not liable for the«e rateis. 
 
 Tonato t. Torato Street Rt. Co.. ±3 Can. &.C-R. 1»S. 
 
 Taxation of hobsc caks. 
 
 Bt a bf 4av ot the city of Montreal a tax of tSL^ wa> imposed upon 
 each TorkiB^ hoise in the city. By s^ 16 of the appeUantV chaner it is 
 stipoiated that each car «npk>yed by the company shall be licenivd aa<l 
 ■ambered. etc f<»- which the company shall pay ~o<cr and abore all other 
 taxes the som of $fO f<H- each two-hor^e ear. and $10 for each inie-hor>e 
 car": — ^Held, affirming the judgment of the Coon below, that the company 
 was liable for the tax of «±^> on eai^ and everr one of it» hwscs. t Qoe. 
 Q. B. 391 affirmed. 
 
 MoBtnal Street Ry. Co. t. Moatreal. ±3 Can. S.CR. ±39. 
 
 Tax ox nrsiXEss txcLnsse bah-wat. 
 
 The statute. ±9 Tict. c. 57 (Can-k. consolidating and amendin* the Art-^ 
 mmd Ordinances incorporatinir the city of Quebec, by snUs^ 4 of >. 21. aa- 
 t h of ia e * the making of by-laws to impti>>e taxes on persons exercia^ certain 
 callings. '~and snerally on all trader, manufactoriesw occnpations. bosiness. 
 arts, professions or means of profit, lirelihood or gain, whether hereinbe- 
 forte ennmented or not. which now or may hereafter be carried on. exerriaed 
 or in operation in the city : and all persons hr whom the same are or may 
 he carried on. exercised or pat in operation therein, eithnr on their own 
 a c e wint or as asents for others: and on the premises wherein or whereon 
 the same are or may be carried on. exercised or pot in operation'': — Held, 
 that the gen«nl words of the statute quoted are sufficiently .wmipre h e ns iTe 
 to aothorine the imposition of a basiness tax upon railway companies: and. 
 farther, that the power thus conferred mi«ht be ralidhr exercised by the 
 paan^ of a by-law to impose the tax in the same general terms as those 
 expreaanl in the statute: — Held, per Strongs. CJT.. that where taxe* hare 
 bein paid to a monicipal corporation rolantarily and with knowledge of the 
 state of the law and the circnmstances ondcr which the tax was imposed. 
 ■o action can lie to recorer the money so paid from the municipality. 
 TJmlgment of the Coon of Queen's Bench. i« Que. Q.B. 24«. affirmed.] 
 
 Can. Piac. Ry. Co. r. Quebec. 30 Can. S.C.R. 73. 
 
 School taxes — Exemftiox ncov JirxiciP-u. bates. 
 
 By-law Xo. 148 of the city of Winnipeg, pasacd in 1*S1.. exempted for 
 enr the C.P.R. Co. from -all municifial tase>. rates and leries an<] assess- 
 ments of evenr nature and kind": — Held, reversing the judgment of the 
 Court of Qnras Bench. 12 Man. L-R. -Wl. 19i>n CJl. Dig. 326. that the cx- 
 ca^ptiaB indodrd school taxes. The by-law also prorided for the issue 
 
32 ASSESSMENT AND TAXATION. 
 
 of debentures to the company, and by an Act of tlie Legislature. 
 46 & 47 Vict. c. 04, it is provided that by-law 148 author izinjt the 
 issue of debentures granting by way of bonus to the C.P.K. Co. the 
 sum of $200,000 in consideration of certain undertakings on the part 
 i)f the said company; and by-law 195 amending by-law No. 148 and ex- 
 tending the time for the completion of the undertaking ... be 
 and the same are hereby declared legal, binding and valid. . . . : — 
 Held, that, notwithstanding the description of the by-law in the Act was 
 confined to the portion relating to the issue of debentures, the whole by-law, 
 including the exemption from taxation, was validated. 12 Man. L.R. 
 581, reversed. 
 
 Can. Pac. Ry. Co. v. Winnipeg, 30 Can. S.C.R. 558. 
 
 [Considered in Balgonie Prot. School v. Can. Pac. Ry. Co., 5 Terr. L.R, 
 132; discussed in Re Toronto School Board & Toronto, 2 O.L.R. 727; 
 distinguished in Pringle v. Stratford, 20 O.L.R. 246; followed in North 
 Cypress v. Can. Pac. Ry. Co., 35 Can. S.C.R. 556; referred to in Toronto 
 School Board v. Toronto, 4 O.L.R. 468.] 
 
 I'LXEMPTIOJfS OF MORTGAGES — RAILWAY BONDS SECURKI) BY MORTGAGE. 
 
 The whole of an estate of a deceased person, liable to be assessed in the 
 city of St. John, may be rated in the names of the resident trustees, 
 under 52 Vict. c. 27, s. 135, though one of the three trustees in whom it 
 is vested is resident abroad. Railway bonds, secured by a mortgage, are 
 not mortgages within the meaning of s. 121, as amended by 63 Vict. c. 
 43, and are not exempt from taxation. 
 
 Tlie King v. Sharp; Ex parte Lewin, 35 N.B.R. 470. 
 
 Income assessment — Dividends on shares in Ottawa Electric Ry. Co. 
 — Agreements between company and city corporation — Exemp- 
 tions. 
 
 By an agreement dated the 28th June, 1893, between the corporation 
 of the city of Ottawa and the two companies which were amalgamated 
 under the name of tlie Ottawa Electric Railway Company, by statutes 
 which confirmed the agreement, it was provided, inter alia, that "the cor- 
 poration shall grant to the said companies exemption from taxation and 
 all other municipal rates ... on the income of the companies earned 
 from the working of the said railway": — Held, that the plaintiff's income 
 from dividends upon shares of the capital stock of the Ottawa Electric 
 Ry. Co. was not, by reason of the agreement in part above recited, nor by 
 reason of an earlier agreement, exempt from municipal taxation: — Held, 
 also, that the Ottawa Electric Ry. Co. is not a company which would, but 
 for the agreements mentioned, be liable to be assessed for income under 
 the provisions of the Assessment Act, 1904 ; and, therefore, s. 5, subs. 
 17, does not apply to exempt dividends or income from the stock. Tiie 
 Assessment Act does not confer upon the sliareholders of a company which 
 is not liable to income assessment, but is liable to business assessment, 
 an exemption from assessment upon their dividends from stock in the 
 company, except as contained in s. 10, subs. 7. 
 
 Goodwin v. Ottawa, 12 O.L.R. 236. 
 
 [Leave to appeal refused, 12 O.L.R. 603.] 
 
 Book debts — Railway bonds — ^Mortgages. 
 
 Book debts are assessable in the city of St. John, imder s. 121 of 52 
 Vict. c. 27, as amended by 63 Vict. c. 43. Railway bonds secured by a 
 mortgage are not exempt under the said Acts. 
 
 The King v. Sharp; Ex parte Turnbull, 35 N.B.R. 477. 
 
ASSESSMENT AXD TAXATIOX. 33 
 
 REVISIOX of VAtCATIOX UOLL — Abt. 746a, ILC. 
 
 The terms of Art. 746a. Municipal Code, so far as regards the reTision 
 of the Talnation roll "in the months of June or July," are direetorr only, 
 and the municipal council charged by law with the duty of revision is not 
 divested of authority to make such revision where the time specified in 
 the article has expired before the duty has been performed. 
 
 Can. Pat By. Co. v. Allan. 19 Que! S.C. 57 tCurran. J,). 
 
 AssESSMEjrr of railway — ''I-IXBS.*' 
 
 The buildings of a railway company are assessable under «, 3 of the Or- 
 dinance respecting the assessment of railways, the word "lands'^ therein 
 being properly interpreted as including the building. The assessment must 
 prima facie be taken as being correct in amount. [Can. Pac. Ry. Co. v. 
 Macleod School District (1901 «. -5 Terr. I_R. 1S7, followed.] 
 
 Can- Northern Ry. Co. v. Omemee School District, 6 Terr. L.R. 281. 
 
 CJJL Laxds — Exemption fsom t.vxatio.x — Sale — Pbopeb ArTHoarrr to 
 
 ASSESS. 
 
 Lands vested in the Canadian Pacific Ry. Co. subject to a provision 
 that the same should, 'nmtil they are sold or occupied, be free from taxa- 
 tion for 20 years." were by the company agreed to be sold and conveyed 
 to the appellants as trustees, who were to sell them, accounting for an 
 interest in the proceeds to the company. At the date of the assessment 
 of the lands, the consideration owin<r by the trustees to the company had 
 been paid: — ^Held. that the lands had ceased to be exempt from taxation. 
 Held. also. Wetmore and McGuire. JJ.. dissenting, that, in view of the 
 Ordinances relating to municipalities and to schools, the lands being situ- 
 ated partly within and partly without the municipality, the school district 
 was authorized to assess and need not make a demand upon the munici- 
 pality to do so. 
 
 Angxis T. School Trustees of Calgary. 1 Terr. KR. 111. 
 
 KXEMPTIOXS FBOM TAXATIOX LAXD St^SIDIES OF THE CaXADIJLX PACIFIC 
 
 Railway — Extessiox of bocxdaries of Manitoba. 
 The land subsidy of the Canadian Pacific Ry. Co. authorized by 44 Vict, 
 r. 1 (D't, is not a grant in praesenti and. consequently, the period of 
 twenty years of exemption from taxation of ^uch lands provided by s. 16 
 of the contract for tbe construction of the Canadian Pacific Ry. begins 
 from the date of the actual issue of letters patent of grant from the Crown, 
 from time to time, after they have been earned, selected, surveyed, allotted 
 and accepted by the Canadian Pacific Ry. Co. The exemption was from 
 taxation ''Ijv the Dominion, or any Province hereafter to be established or 
 any municipal corporation therein": — Held, that when, in 1S81. a portion 
 of the Xorth-West Territories in which this exemption attached was added 
 to ^lanitoba the latter was a Province "thereafter established" and such 
 added territory continued to be subject to the eaid exemption from taxa- 
 tion. The limitations in respect of legislation affecting the territory so 
 added to Manitoba, by virtue of the Dominion Act, 44 Vict. c. 14, upon the 
 terms and conditions assented to by the Manitoban Acts. 44 Vict. (3rd 
 Sess. >. cc. 1, 6. are constitutional limitations of the powers of the Leg- 
 islature of Manitoba in respect of such added territory and embrace the 
 previous legislation of the Parliament of Canada relating to the Canadian 
 Pacific Ry. and the land subsidy in aid of its construction. Taxation of 
 any kind attempted to be laid upon any part of such land subsidy by the 
 Xorth-West Council, the Xorth-West Legislative .\ssembly. or any mu- 
 nicipal or school corporation therein is Dominion taxation within the 
 Can. Rv. L. Dig.— 3. 
 
34 ASSESSMENT AND TAXATION. 
 
 meaning of the sixteenth clause of the Canadian Pacific Ry. contract pro- 
 viding for exemption from taxation. Per Taschereau, C.J. : — The case 
 of the Springdale School District, as the Avhole cause of action arose in 
 the North-VVest Territories, the Court of King's Bench for Manitoba had 
 no jurisdiction to entertain the action or to render the judgment appealed 
 from in that case and sucli want of jurisdiction could not be waived. 
 Appeals by North Cypress and Argyle dismissed; appeal by the C.P.R. 
 allowed; judgment of the King's Bench of Manitoba, 14 Man. L.R. 382, 
 varied accordingly. 
 
 North Cypress v. Can. Pac. Ry. Co., 3.5 Can. S.C.R. 550. 
 
 [Referred to in Toronto v. Grand Trunk Ry. Co., 37 Can. S.C.R. 256.] 
 
 "Rolling stock, plant, and ai'pliaxces" — Construction of statute — 
 Ejusdem generis. 
 
 The Act 2 Edw. VII. c. 31, s. 1, amending s. 18 of the Assessment Act, 
 R.S.O. 1897, c. 224, provides by subs. 3 for the assessment as ''land" of 
 "the rails, ties, poles, wires, gas and other pipes, mains, conduits, sub- 
 structures and superstructures" of companies of the kind referred to in 
 the section, — "upon the streets, roads, highways, lanes and other public 
 places of the municipality," — and by subs. 4, that "save as aforesaid, 
 rolling stock, plant and appliances" of such companies, "shall not be 'land* 
 ■within the meaning of the Assessment Act, and shall not be assessable": 
 — Held, that upon the proper construction, this means that the rolling 
 stock, rolling plant, and rolling appliances of such companies, which is 
 found and used on the streets, etc., shall not by reason merely of the wide 
 words "substructures and superstructures" in subs. 3, be liable to assess- 
 ment as "land" save as mentioned in subs. 3. There is no intention to 
 exempt the companies in question from assessment in respect of such of 
 their plant and appliances, as is otherwise "land" within subs. 9 of s. 2 
 of the Assessment Act, but is not on the street, etc. Held, also, that the 
 lamps, hangers and transformers of an electric light company, though 
 easily transferable from one place to another, were "superstructures" upon 
 the street within the meaning of subs. 3. 
 
 Re Assessment Appeals, Toronto Ry. Co. ct al., 6 O.L.R. 187 (C.A.). 
 
 Valuation of property — Electric companies — Rails, poles and wires 
 — Wards — Franchise; — Going cx)ncern — Integral part of whole. 
 
 The Act 1 E<iw. VII. c. 29, s. 2 (Ont.) has made no difference in the 
 mode of valuing for assessment purposes tlie rails, poles, wires and other 
 plant of electric companies erected or placed upon the highways of munici- 
 palities, which was held to be proper by the decision in Re Bell Telephone 
 Co. Assessment (1898), 25 A.R. (Ont.) 351. 
 
 Re Toronto Elec. Light Co. Assessment, 3 O.L.R. 620 (C.A.). 
 
 [Distinguished in International Bridge Co., 12 O.L.R. 314.] 
 
 ExEAfPTioNs — Railway — By-law of municipality — Commxttation — 
 School rates. 
 A city council in 1897 passed a by-law providing that a certain annual 
 sum should be accepted from a railway company for 15 years "by way 
 of commutation and in lieu of all and every municipal rate or rates and 
 assessment," in respect of certain lands owned by the railway company. 
 This by-law was passed under the authority of a special Act respecting the 
 railway company, 48 Vict. c. 65 (O.), s. 3 of which provided that it should 
 be lawful for the corporation of any mxmicipality through which any line 
 of the railway had been constructed to exempt the company and its prop- 
 erty within such municipality, in whole or in part, from municipal as- 
 
ASSE!<SMKNT ASD TAXATION. .3;> 
 
 sessnwnt or tasLation, or to agree to a certain sum per annum or otliavi<« 
 in gro^s or by war of commutation or c-<Mnposition for pavment of all 
 Bunieipal rates. By a subsequent general enactment, 55 Viet, c. 60, s- 4 
 (O.), it was declared that no municipal by-law thereafter passed for ex- 
 empting any portion of the rateable property of a muniei|MiIity from taxa- 
 tion, in whole or in part, should be held or construed to exempt such prop- 
 erty from school rates. The general Act did not by express words repeal 
 the special Act: — Held, that it did not effect a repeal by necessary impli- 
 caticMi — generalia specialibus non derogant: — Held. also, that there was 
 nothing to shew that the sum which the railway company were to pay wa< 
 not more than the school taxes which they would be liable to pay if tlu-y 
 were not entitled to any exemption. 
 Way V. St. Thomas, h 0-L.R. 23S. 
 
 SpBCUX bate — Boxes to «An.WAT. 
 
 By a by-law passed under the provisions of ss. 3$6. 694. 696 of the Mn< 
 nicipal Act, R.S.O. 1S97, c. 2S3, a township corporation was authorized 
 to raise a sum by issuing debentures, to be met by special rate, to provide 
 a btmns in aid of a railway company, payable upon its compliance with 
 certain ctmditions, no time for compliance being limited. The debentures 
 were duly executed, but remained unissued in the possession and under the 
 control of the municipality: — Held, that until the sale or negotiation of 
 the debentures, there was no debt on the part of the township, and that 
 the special rate was not leviable, though the time fixed for payment of 
 s<Mne of the debentures had passed. -Judgment of Meredith, J.. 32 O.IL 
 135. reversed. 
 
 Bogart V. King. 1 O.L.R. 496 (C.A.). 
 
 Pastt^e laxd — Valcatiox — Arr. 942a, M.C. 
 
 The C.P. Ry. Co. had ao^uired more than 200 arpents of land for rail- 
 way purposes, but. changing its intention, let it as a farm by an annual 
 lease, with the condition that it should only be u««d for pasturage, for 
 whidi it was entirely unsuited. The company had also prepared a plan 
 for dividing the land into lots, and had taken steps to have it adopted 
 by the corporation and the Government, and a cadastre made. It even 
 gave notice of it* sale in lots. For assessment purjx>«es the land had been 
 appraised at its real value, and the company petitioned the corporation 
 to reduce the valuation. This having been refused, the company appealed 
 to the Circuit Court, claiming that the land shmild be valued accordin;; 
 to its value for agricultural purposes only: — Held, that the property 
 should be estimated at its real value, and not according to any value it 
 might possess for agricultural purposes alone. 
 
 Can, Pac- Ry. Co. v. Verdun, 20 Que. S.C. 194 (Cir. Ct.>. 
 
 EXPBESS COMPAXT PbOTISCIAI. TAX MUXICIP-U, BISIXESS TAX. 
 
 S. 3 of tlie Corporations Taxation Act provides that every express com- 
 pany doing an express business shall pay a tax to the province; and s. 
 18 provides that, where a company pay the tax. no similar tax shall be 
 imposed or collected by any municipality in the province: — Held, that 
 a business tax imposed by a city corporation in respect of the premises 
 occupied by an express company in the city, under the Assessment Act. 
 63 & 64 Vict. e. 35, s. 2. was a "similar tax*' to that imposed by the prov- 
 ince, which had been paid by the express company, and was, therefore, il- 
 legal and Toid. The Assessment Act and the Corporations Taxation Act 
 
36 ASISEJSSMEjST AA'D TAXATION. 
 
 having been assented to on the same day, it was intended that s. 18 of the 
 later Act should govern and exclude the tax imposable under the earlier. 
 Dominion Express Co. v. Brandon, 15 W.L.R. 26 (Man.). 
 
 BrsiNESs TAX — Express company. 
 
 i)ominion Express Co. v. Towti of Niagara, 15 O.Ii.R. 78. 
 
 Street railway — Special privileges — Assessment roll — Descbiptiow 
 of property. 
 
 A municipal corporation which, under authority of a special Act, grants 
 to a street railway company, in consideration of the annual payment of 
 a percentage of its profits, the privilege of establishing its right of way, 
 and erecting poles and other necessary constructions on the streets and 
 elsewhere in the municipality, is not thereby deprived of its power to tax 
 such constructions, etc., under the general powers given to it by its charter. 
 A waiver in writing by a ratepayer of the prescription against collecting 
 his taxes is valid and prevents the time from running. 
 
 Montreal v. Montreal Street Ry. Co., 35 Que. S.C. 321 (Ct. Rev.). 
 
 Railway — Assessment on uuildings — "Lands" — Valuation of build- 
 ings. 
 
 Re Can. Northern Ey. Co. and Omemee School District, 4 W.L.R. 547 
 (Terr.). 
 
 Property purchased ijy railway company for right of way, but not 
 usei. as such — Assessment as of lands of private owners. 
 Re Edmonton and Can. Pac. Ry. Co., 6 W.L.R. 786 (Alia.). 
 
 School taxes — Exemption — Canadian Pacific Ry. Co. — Lands in 24- 
 mile belt granted to company. 
 Re Spruce Vale School District, No. 209, and Can. Pac. Pvv. Co., 6 W.L.R. 
 526 (N.W.T.). 
 
 Lease from municipal corporation — Usual covenants — Taxes. 
 Re Can. Pac, Ry. Co. and Toronto, 5 O.L.R. 71 (C.A.). 
 
 luXI'.MPTION from taxation BRANCH LINES — "SUPERSTRUCTURE" — VaLLTR 
 
 OF ROUNDHOrSF:S. FREIGHT SHEDS, AND OTHER BUILDINGS. 
 
 Clause 16 (relating to exemption from taxation) of the agreement be- 
 tween the Canadian Pacific Ry. Co. and the Government of Canada, as 
 embodied in the Act, 44 Vict. (1881), c. 1, provides that "The Canadian 
 Pacific Railway Company, and all stations and station grounds, workshops, 
 buildings, yards, and other property, rolling stock, and appurtenances re- 
 quired and used for the construction and working thereof, and the capital 
 stock of the company, shall be forever free from taxation by the Domin- 
 ion, or by any Province hereafter to be established, or by any municipal 
 corporation therein ; and the lands of the company in the North-West Ter- 
 ritories, until they are either sold or occupied, shall also be free from sucli 
 taxation for 20 years after the grant thereof from the Crown." Clause 14 
 of the same agreement also ]jrovides that ''the company shall have the 
 right, from time to time, to lay out, construct, equip, maintain, and work, 
 branch lines of railway from any point or points along their main line of 
 railway to any j)oint or points within the territory of the Dominion": — 
 Held, that clause 16 of the agreement is not applicable to the Crow's Nest 
 Pass Ry., but is applicable only to the main line of the Canadian Pacific 
 Ry. Co. and to such branches thereof as the company was authorized by 
 clause 14 of the agreement to construct from points on the main line, and 
 
ASSESSMENT A2CD TAXATION. 37 
 
 don no* ecfmd to otlwr distinct lines of railtrar which ike eompuiT maj 
 hmTe broi snhseqamtly antlimixed to eanstmrt. Under tke Ordinance 
 ref^ectins tibe m sm r fm ntnt of Baihnys, Con. Old. 1S98, c 71, & 3, 1^ 
 rrandhonHSB, statian, or office boildin^ijs. section iMoses, cnq>lo7ee*s dvril- 
 IngB, fra^t sheds, and other boiMings of like nature bekn^iap to a rail- 
 v*7 coailHUiT and atnated upon it, are not indnded in the term "^nper- 
 stmctare," Iwit may be assessed wparatehr as pergonal prop«tT nnder 
 the Monicipal Ordinance. Snch buildings «hoiild not be rained as' part of 
 the railway as a going eoneem. and a? baring a ^peeial rahie as imrh. hot 
 merelj at vbat they are vorth separate and distinct fr«m otho- portions of 
 the railway. When only two and a. half stalls of a roandhoaae w«ie sit- 
 within the municipality, and the roundhouse was shewn to be worth 
 a stall, the as<es£ra«it wa> fixed at $±±50. 
 Re Can- Pat Ry. Col and \iacleod. ± Can. Ry. C5a*. 203, 5 Tferr. LR. 19± 
 [Followed in Grand Trunk Paejfic Ry. Co. r. City of Cklgaix. 21 C^n. 
 Ry. Cas. 200, 55 Can. S-CR. 104, 36 D.L.R. -538.] 
 
 Taiat»x bt School Di.*fTWCT — Uxpatkvted vxso set apait — ExEitFnox 
 rmas£ taxation. 
 
 Crown lands which have been set apart for the land grant of the C.PJL 
 Col, and earned by that company as part of its land grant under the sched- 
 ule to 44 Vict. (isSlf, CL 1, -An Act respecting the Canadian Pacific Rail- 
 way." but whici bare nero- been sold or occupied by the company, are ex- 
 empt fron taxation by School Districts in the Territories by rirtne of s. 14 
 of the Schedule. Per Richardson, -J.:— On the grvund that a School Dis- 
 trict is a ~innnicipal corporation." Per Wetmorf. J.:— On the ground 
 that the Territcnial Legi>latire Assembly — and consequently a Territorial 
 Sdhool District — acts mervly by authority del^pated by the Dominion 
 PluiianMnt, and. therefore, that taxation by a Territorial School District 
 is taxation ''Ivy the Dominion." Per Mcliuire. J.: — On the groond that the 
 Territmial School Ordinance exempts from taxation lands hdd hj Her 
 Majesty, and does not autlMwize the taxation ci any interest therein, and 
 that as to the lands in question the company is at best in the position of 
 purchasers who had paid their purchase moBm*. bat had not yet actually 
 reeeired a eonreyance. and, tmtil conveyed, the lands are held by Her 3Ja- 
 jesty. Semble, per Wetmore. J.: — ^Territorial School Districts are not 
 'inunicipal corporations." S«nble, per McGnire. -J.: — ^Taxation by a 
 School .District is not taxation "by tiw Dominion.' which latter means tax- 
 ation direct by the Dominion. A School District is not a Tnimicipal cor- 
 poration." The effect of the Act was not to make ipso facto a grant to the 
 company, imr- to operate as a grant to the eomfiany as eadi 20 miles of rail- 
 way was completed, but to entitle the company as each 20 miles was com- 
 pleted to ask for and receive a grant of the land subsidy applicable thereto. 
 Constmetion of statutes discn<ssed. 
 
 BaJgonie Protestant Public School District v. Can. Pac. Ry. Co.. 2 Can. 
 Ry. Gas. 214, 5 Terr. KR- 123. 
 
 IRefoTvd to in Xorth Cypress v. Can. Pac Ry. Co., 14 Man. LR. 40«, 5 
 Terr. LR. 573.) 
 
 Exemption — ScPEKSTKCCirKES — Bitildings. 
 
 An agreement between a «ty and a railway company which also eoo- 
 dueted an electric lighting plant exempting from certain taxes -the tracks, 
 right of way, wires, roUing stock, and all superstructures and suhstrac- 
 toica and all the properties of the raUway company'' doas mat eaOtJe the 
 
38 ASSESSMENT AXl) TAXATIOX. 
 
 company to an exemption from taxes on its buildings, machinery, poles 
 and wires used in connection with its lighting plant. 
 
 Re Sandwich, Windsor & Amherstburg Ry. Co. and Windsor, 3 D.L.K. 
 43, 3 O.W.N. 575. 
 
 Exemptions — Business taxes. 
 
 Under the Assessment Act. 4 Edw. VIT. (Ont.), 1904, c. 23, s. 226. pro- 
 viding that the Act shall not affect the terms of any agreement made witli 
 a municipality, a railway company is exempt from the ordinary business 
 tax under an agreement with tlie city exempting its property from all 
 taxes other tlian school rates. 
 
 Re Sandwich, \Vindsor & Amherstburg Rv. Co. and Windsor, 3 D.L.R. 
 43, 3 O.W.N. 575. 
 
 Assessment and api-oktionmext of railway propekty. 
 
 The assessment of the real property of a steam railway company does 
 not become fixed for the next following four years, under s. 45 of the On- 
 tario Assessment Act, 1904, upon the mere formal receipt by the clerk of 
 tlie municipality of the company's annual statement of such property, and 
 the transmission to the company of a notice of the anioimt of the assess- 
 ment thereof, such amotmt being the same as the amount of the previous 
 year; the only assessment which remains so fixed is an actual assessment 
 after inspection and valuation. 
 
 Re Steelton and Can. Pac. Ry. Co., 3 D.L.R. 402, 3 O.W.N. 1199. 
 
 Stbeet railway taxes. 
 
 A city by-law relating to the taxation of an electric street railway com- 
 pany, which provided that the company should keep and maintain within 
 the city limits all of its engines, madiinery, power houses and shops, will 
 not prevent the company importing, for the operation of its plant, electric- 
 ity generated at a point beyond the city limits. 
 
 Winnipeg Elec. Ry. Co. v. Winnipeg, 4 D.L.R. IKi, [1912] A.C. 355. 
 
 Exemptions — Railway property. 
 
 The exemption privilege given to railways under s. 14. c. 40, R.S.S. 1909, 
 providing that the railway and the land comprised in the right-of-way, 
 station grounds, yards and terminals, and all buildings, structures and 
 personal property used for the purposes of the operation of a railway shall 
 be free and exempt from taxation, does not apply to arrears of taxes whicli 
 were a charge on the land in question before if was purchased by the rail- 
 way company, nor to assessments for local improvements made on the land. 
 The exemption privilege given by s. 14. c. 40, R.S.S. 1909, to railway com- 
 panies may be claimed by a railway company on land having a maximum 
 area of one mile in k>ngth b}' 500 feet in width, which amount of land they 
 are allowed to expropriate under s. 177 of the Railway Act ]906. for sta- 
 tions, depots, yards and other structures for the accommodation of traffic, 
 even though the land in question is not actually used or immediately 
 needed for railway purposes, and whether the land had been obtained by 
 expropriation proceedings or by voluntary sale or otherwise; and to exempt 
 a further area the railway must shew that the additional land is neces- 
 sary for the purposes set out in s. 177 of the Railway Act. A railway 
 ccwnpany is not entitled, luuler the statute R.S.S. 1909, c. 40, to an exemp- 
 tion from taxation on land in excess of the area they are allowed to ex- 
 propriate under subs, (a) of s. 177 of the Railway Act giving them the 
 right to take for right of way land 100 feet in width, and under subs, (b) 
 giving them the right to take for stations, yards and other structures for 
 
ASSESSMENT ANT) TAXATION. 3d 
 
 ana ow bOf in In^ br 300 feet u Imadtk, 
 iwteln^ tkc vidttk of tke n^kt-of-vaT. ufe^ tk?- Aem tkat tke adfi- 
 tioMl arem is BResmj for tke pnrpoMrs s«t oat u sdbs. |>) ; swii mco- 
 sitjr will W prcsurd if the adfitjoaal ana va> obtaiacd hjr ^■»— if^j^ni ^ 
 tte BoaiC as prmidni ia & 17S of the Act. tat aot otkcrari». 
 
 Priace Albert r. Caa. XortlMn Kr. Co. (S^^^fi. 10 D-L.1L lil. 15 Caa. 
 Kjr- Cajw 87. 
 
 ExEMpmn tAtiL, L.&:n6 -sm»'' — ExranTrox fob 30 teaks awtke. ^ctixf 
 Ci 
 
 Ccrtaia laads ^raatrd to a lailvaT eoBpaaj a«xc cxmpted fnm xax- 
 atka naatil tfcey an citWr sold or ocm^nL -few 20 ;aur«^ ailcr tke giaat 
 ttetcaff fraai tke Cruwra":— Hrfd. (1» Tkat tke wtd '^mMT iankcd a rr 
 pktei sale; »md «2 tkat tke proper waan^ of tke expnsHM '^gnmt fr« 
 tke Cwimm~ vas a eaan?aace br letter? patcat vader tke Gnat SeaL aad. 
 tkcnfore. tkat ia Ite case of laads aot sold or occvpied tke period of exoap- 
 tkai froHi taxatioa raa fraa tke date of tke letters patcat co aieji ig tke 
 laads to tke lailwaT coatpaay. 
 
 The IGaister of PoUic Worts of tke Proriace oi Alberta t. Caa. Fat 
 Et. Col: Tke Ki^ r. Caa. Piae. Ry. Oot (1»11». f* TliMs LJL 2S4 (P.C.j. 
 
 BeTISIOX or AS&CS»1I£XTS. 
 
 Bt ^ Tict. CL 37. s. ±, aMeadii^ tke Sa puj a t aad ExEkc<q[aer Coorts Act, 
 aa appeal lies ia ccrtaia emsem to tke Sopnaae Coart of Caaada froaa 
 roart» ~<rf faMt ni^ort created ^mdtr proriacial lepsiatiaB to adjudicate 
 tke aKcseaeat of prapertr for ]m«iaeial or aaaicipal par- 
 vkae tke peiaoa or persoas pnsidia^ onr lack Coast i$ or 
 an appoiatcd by proiiarial or Bnaieipal aatkority.'^ By tke Oatario Act. 
 M Tict. r. -IS, as iMraiird by 58 Yiet. e. 47, aa appeal lies froai ralia^ 
 of Maaicipal Coorts of nri^ioa ia mMtttrs of amiiijiiiiat to tke Conty 
 Coavt -iuigia of tke Cooaty Court district akie Ae property bas beta 
 ■WW we d. Oa aa appeal froa tke decisiaa of tke Co^rty Coon Jndgc!? aa- 
 der tke Oatario statates: — Hrid. Kia^. J- disscati^, tkat if tke Coaatr 
 Coart Jad^vs coastitated a -Coart of Last Besort^ vitkia the Mraaii^ of 
 a VidL c 31, £. 2. tke persoas piesidi^ onr ra ck coart acre aot ap- 
 kjr proriacial or naaicipal aatkority. aad tke appeal aas aot aa- 
 kjr tke said Act:— HddL per Gayaae. J^ tkat as ao biaii^ effect 
 is gina to tke decisiaB of tke Cooaty Court Jad^es. aader tke Oatario 
 Ada cited, tke Coart appealed fro^ wa» aot a "Court of Last Resotf vitk- 
 ia tke »>— "c <rf 5f Ylct. e. 37. s^ ± Quaere. — Is tke decisiaK of the 
 Cooaty Coart Jad|pcs a "fiaal ja dgaaa t" vitkia tke faaiag of 5± Viet. 
 CL 37, a. 2? 
 
 Toroato x. Toroato By. Co.. 27 Caa. S.C.B. MO. 
 
 [LeaTe to appeal to Priry Conacil reneed.] 
 
 Acnox Foa mtxicipai. ax» schom. taxes — JrEi>oicnox — Dccxjxaiobt 
 Excsraax. 
 
 Ia a $ait ia tlw Saperior Court, daiaiia* aiaaieipal taxes to aa aaKwat 
 cxcccdiBe $100!, acenaifaaied vitk a rilraiial for school taxes, a deeliaatoey 
 
 iT r w aikii^ tke dnaiseal of tkat pcatioa of tke df laii vkieh t> fer 
 
 sAool taxes, aa tke ^rooad tkat tke Clrrait Coart kaa exeh^ive jurisdic- 
 tioa, vfll be aniataiaed. aotvitk<taBdiB^ Art. 170 C.CJ>^ it beia; iapoosi- 
 ble ia sack a ca^ to traa^ut tke vhole record to the Circait Court. 
 
 DadsaeB t. Qnebee Ceatzal By. Col, 19 Qw. S.C. 110 (White. J.). 
 
40 ASSESSMENT Al^D TAXATIOi^. 
 
 Tax sale — Injunction — Appeal to Court of Revision — Estoppel. 
 
 An injunction may be granted to restrain a tax sale. It is not necessary 
 that exemption from taxation should be raised before the Court of Revi- 
 sion, and a party, wrongfully assessed by reason of exemption, is not es- 
 topped by appealing to tlie Court of Revision. 
 
 Can. Pac. Ry. Co. v. Calgary, 1 Terr. L.R. C7. 
 
 Injunction — Levy of illegal tax i?y jiuxicipality. 
 
 A party who brings an action against a municipality for a declaration 
 that he is not liable for a tax imposed upon him, and for an injunction to 
 restrain the attempted levy of such tax, is not entitled to an interim in- 
 junction to restrain such levy, as he has another adequate remedy, namely, 
 to pay the tax under protest and sue to recover it back. 
 
 Dominion Express Co. v. Brandon, 19 Man. L.R. 257, 20 Man. L.R. 304. 
 
 Appeal — General plan of assessment — Land and buildings. 
 
 Under ordinary circumstances it is incumbent upon an appellant who 
 complains that he is assessed too high to shew that the property is not 
 worth the amount for which he is assessed, but where, although this is 
 not shewn, it appears that under the general scheme of assessment, lands of 
 a particular description are assessed generally at a certain fixed sum per 
 acre, and that the appellants' lands of that description, which are of no 
 greater value either by reason of their situation or otherwise, are assessed 
 at a larger amount, the assessment should be reduced to accord with the 
 general scheme of assessment. A school district assessor assessed certain of 
 the appellants' lands at $800, and the dwelling houses thereon at $2,000: — 
 Held, that the assessment should stand, although the more correct course 
 would have been to assess the whole as "land," and place a single value 
 upon both soil and buildings as "land." 
 
 Re Can. Pac. Ry. Co. and Macleod Public School District, 2 Can. Rv. Cas. 
 210, 5 Terr. L.R. 187. 
 
 [Approved in Can. Nor. Ry. Co. v. Oniemee School Dist., 6 Terr. L.R. 282, 
 4 W.L.R. 547.] 
 
 Taxes — Crown grant — Railway bridge across riveb. 
 
 A railway bridge constructed across a river in pursuance of a Crown 
 grant is a "structure on railway land" within the meaning of subs. 3 of b. 
 47 of the Assessment Act, R.S.O. 1914, c. 195, exempting same from assess- 
 ment by the township municipalit3^ The ownership of the Crown in the 
 soil and freehold of the bed of a river and of the islands therein extends 
 usque ad coelum, and a grant by the Crown of the right to construct and 
 maintain a railway bridge across such river carries with it the ownership 
 of so much of the soil as is occupied by the superstructure as well as by 
 the piers. 
 
 Re Ottawa & New York Ry. Co. v. Cornwall, 20 Can. Ry. Cas. 91, 34 
 O.L.R. 55. 
 
 Exemption — Bridge — Crown grant — Ontario Assessment Act. 
 
 An international bridge constructed across the St. Lawrence river at 
 Cornwall, under the authority of the Parliament of Canada, and supported 
 by piers resting on Crown soil, used for the operation of trains is exempt 
 from assessment and taxes under the Ontario Assessment Act, R.S.O. 1914, 
 c. 195,8.47 (3). 
 
 Cornwall v. Ottawa & New York Ry. Co., 20 Can. Ry. Cas. 96, 52 Can. 
 S.C.R. 466. 
 
 [Affirmed in 20 Can. Ry. Cas. 435, [1917 J A.C. 399, 35 D.L.R. 408. 
 
ASSESSMENT AND TAXATION. 41 
 
 Mr:aciPAi. TAXATiox— Railwat bmdge— -TLulwat laads"'— Osta«io As- 
 SESSMEXT Act. 
 
 The voids, "'on railway lands.^ in R.S.O. 1914. r. 195 s. 47 (3) (th« As- 
 Eesanent Aet), exempting certain structures and other property "on rail- 
 way land»~ frran municipal assessment, include all lands in the' lawful use 
 and occupation of a rail war company, exclusively for railway purposes, or 
 incidental thereto, without reference to the title under which ther mav be 
 hekL [Cornwall r. OtUwa t Xew York Rv. Co.. 30 Di.R. 664* 5-» Can 
 S.C.R- 466, affirmed.] * , - . 
 
 Cornwall v. Ottawa & Xew York Rt. Co.. 20 Can. Rv Gas 435 [1917^ 
 A-C. 399, 35 DXJl. 468. ' ' ' ^ 
 
 ASSESSKE.XT or OWXEB OF LAM>— OcCUPAXT — Pt^CUASEB, 
 
 A purchaser of Crown lands entitled to possession thereof, the title re- 
 maining in the Crown until completion of payment, is assessable as the 
 equitable owner and occupant of the land. [Southern Alta. Land Co. v. 
 McLean, 29 DicR. 403. .>3 Can. S.C.R. 151; Smith v. Vermilion Hills. 20 
 Di.R. 114, 49 Can. S.C.R. 563, affirmed in 30 D.T>R. 83, [1916] 2 A.C. 569, 
 followed.] 
 
 Grand Trunk Pacific Ry. Co. v. Calgarr, 21 Can. Rv. Cas. 200, 55 Can. 
 S.C.R. 104, 36 Di.R. 538. 
 
 Assessment of rail ways — 'Sttixstkuctcue." 
 
 The "superstructure" of a railway, within the meaning of an assess- 
 ment statute (Con. Ord. X.W.T. 1S9S, c. 71, s. 3). includes that which con- 
 stitutes the line of railway, such as the ties, rails, bridges, culverts, plat- 
 forms, etc, but not the buildings thereon. [Re C.PJI. and Macleod,. 5 
 Terr. LJl. 192. 2 Can. Ry. Cas. 203, followed.] 
 
 Grand Trunk Pacific Ry. Co. v. Calgarr, 21 Can. Ry. Cas. 200. 55 Can. 
 S.C.R- 104, 36 DX.R. 538. 
 
 EXPKJESS AXB TEXEPHOXE COilPXSJES "FiXAXCIAI. ISSTITmOXS." 
 
 Neither an express nor a telegraph company can be classed as ''a bank, 
 loan company or financial institution" within the meaning of s. 302 (2) of 
 the Towns Act (Sask.i, providing the mode of their assessment for tax- 
 ation. 
 
 Can. Xorthem Express Co. v. Rosthem-. Can. Northern Telegraph Co. t. 
 Rosthem, 23 D.L.R. 64, 8 Sask. LJL 2So, S W.R. llSl, 31 WJ*R. 868. 
 
 EXEMFnox — Railway pbopebties — What ake — Land. 
 
 Lands acquired by a railway company for railway purposes, contingent 
 upon the approval of the plans by the Minister of Railways, are not, until 
 definitely appropriated as part of the railway and taken from other uses. 
 *'pr(^>erties and assets which form part or are used in connection with its 
 railway.^ so as to be exempt from taxation under clause 13 (e), c. 3, B.C. 
 statutes 1910. [See annotation 11 D.L.R. 66.] 
 
 Can. Northern Pacific Ry. Co. v. New Westminster, 36 DIJR. 505, 
 [1917] A.C. 602. 
 
 [Followed in Can. Northern Pacific Ry. Co. v. Kelowna. 44 D.L.R. 315, 3 
 W.W JL 845. 
 
 ExEMFTiox — ^Railway pbopebties — What abe eau-wat laxdk. 
 
 Lands acquired by the plaintiff railway company cannot be said to form 
 part of the railway, nor can they be classed as lands used in connection 
 with the operation of the railway, so as to be exempt from taxation under 
 cUuse 13 (e), e. 3, B.C. statutes 1910, until plans of these lands have 
 
42 ASSESSMENT Al>iB TAXATION". 
 
 lioen filed, or submitted for approval, by the Minister of Railways. [Can. 
 Northern Pacific Ry. Co. v. New Westminster, 36 D.L.R. 505, [1917] A.C. 
 602, followed. See also Canadian Nortliern Pacific Ry. Co. v. Vernon, 44 
 D.UR. 317.] 
 
 Canadian Northern Pacific Ry, Co. v. Kelowna, 44 D.L.R. 315, 3 W.W.K. 
 845. 
 
 Railway property — What is — Exe-mptig.x from taxation — Evidknce as 
 
 TO USE. 
 
 The plaintiff company having led evidence, defining and fixing a right- 
 of-way so as prima facie to bring it within the exemption fixed by (clause 
 13 (e) c. 3, B.C. Statutes 1910) the agreement between the plaintiff' and 
 the Province of British Columbia. It is incumbent upon a corporation 
 seeking to tax a portion of such right-of-way to establish that such por- 
 tion, declared to be exempt, was in use for other than railway purposes. 
 [Canadian Northern Pacific Ry. Co. v. New Westminster (1915), 25 D.L.R. 
 28, 22 B.C.R. 247, (1917) 36 D.L.R. 505, [1917] A.C. 602; Canadian North- 
 ern Pacific Ry. Co. v. Kelowna, 44 D.L.R. 315, referred to.] 
 
 Canadian Northern Pacific Ry. Co. v. Vernon, 44 D,L.R. 317. 
 
 Voluntary payment — Recovering back. 
 
 A taxpayer who voluntarily pays taxes without protest, in the absence 
 of any attempt to collect by distress or threat of distress, cannot recover 
 back the amount so paid. 
 
 New York & Ottawa Ry. Co. v. Cornwall, 16 Can. Ry. Cas. 403, 29 O.L.R. 
 522, 15 D.L.R. 433. 
 
 What taxable — Intfjinational bridge. 
 
 That portion of an international bridge lying within the Province ot 
 Ontario is subject to taxation as real property under s. 2, subs. 7 (d) of 
 c. 23 of the Assessment Act, 4 Edw. VII. "(Ont.), R.S.O. 1914, c. 195, 
 declaring that real j roperty shall include "all buildings, or any part of 
 j'ny building, and all structures." [Belleville & Prince Edward Bridge 
 Co. V. Ameliasburg, 15 O.L.R. 174, and Niagara Falls Suspension Bridge 
 Co. V. Gardner, 29 U.C.R. 194, followed.] 
 
 New York & Ottawa Ry. Co. v. Cornwall, 16 Can. Ry. Cas. 403, 29 O.L.R. 
 522. 15 D.L.R. 433. 
 
 J I'Ri.smcTio.x — ^Municipal matters — Review. 
 
 \Mietlier property is subject to taxation is, under ss. 17 (3) and 51 of 
 the Ontario Railway and Miuiicipal Board Act, 6 Edw. \II. c. 31, 3 & 4 
 (!po. V. c. 37, R.S.O. 1914, c. 186, conferring authority on the Railway and 
 -Miuiicipal Board, a question exclusively within its jurisdiction, which 
 ijiimot be determined by the Courts in the first instance, but only by way 
 of appeal in the manner pointed out by the Act. The Ontario Railway 
 and Municipal Board is clothed by ss. 17 (3) and 51 of tlie Ontario Rail- 
 way and Municipal Board Act, 6 Edw. VII. c. 31, 3 & 4 Geo. V. c. 37, R.S.O. 
 1914, c. 186, with exclusive jurisdiction to determine whetlier or not prop- 
 erty is subject to taxation. Apart from any right to bring an action for 
 money illegally exacted as and for taxes, the Ontario Courts have no juris- 
 diction to grant a declaratory judgment or an injunction to restrain the 
 enforcement of an assessment, since, under c. 31 of the Ontario Railway and 
 Municipal Board Act, 6 Edw. VII., 3 & 4 Geo. V. c. 37, R.S.O. 1914, c. 186, 
 
ASSESSMENT AXD TAXATIOX. 43 
 
 the Bailway and Manieipal Board has exelusire jiiri:$dktioB over ffues- 
 tions pertaining to taxation. 
 
 New York k Ottawa Rr. to. t. CornvaU. 16 Can. Bv. Ca*. 403 29 OX.R- 
 522. 15 DJLK. 433. 
 
 RaILWAT FBOPCXTT O.VTAKIO ASSESSMENT ACT— COXCUTSIVKXKSS FOK 
 
 rOTK TEAKS. 
 
 The prorii^itMis of $. 45 of the A.^^ms^^ment Art. 4 ¥Av. VII. (Ont.1 e. 23. 
 RjS.O. 1914. e. 195. declaring that the amount of an a9<?esj4nent of lailrav 
 propertr nnd^ & 44 of the Art. as finallr made in the corrected roll*, 
 shall ^tand for the followinjr four rear* in respect of property inehided in 
 the as»e»>nient. relates miIj to the amcmnt of the a:s«essmait. and not to its 
 rejrolaritT. or the jurisdictioo to make it. 
 
 New Y<wt k Ottawa Ry. Co. t. Cornwall, 16 Can. Rt. Cas. 403. 29 OX.R. 
 522. 15 DJLR. 433. 
 
 Watib taxks a:sd platfokms. 
 
 Water tank> and phitform^ are part of the saperstmeture of a railwa;^ 
 and, as snch. are not asse^^s^ble apart from the roadwaj. 
 
 Grand Trunk Rt. Co. t. Port Perry. 34 CJLJ. 239. 
 
 [F<JIowed in Re Can. Pae. Rt. Co. "and Maclcod. 2 Cai*- Rr. Ca*. 20T.] 
 
 Ta3latiox — E3CE3tPno3c — ^Plass or KKHT-or-wAT — FnxsG — Sjjcnox bt 
 
 MnOSTKK. 
 
 When the plan and book of reference sanctioned by the Minister do 
 not comply with the Railway Act. if there has been an approval of the 
 location of the railway and the •rrades and cnrres «> >hewn on the plan, 
 it is sofficient for exemption from taxation under the Municipal Act. Suic- 
 tion by the Minister under s. IS of the Act. establishes a prima facie ca^e 
 for definite appropriation and exemption, and the burden is on the munici- 
 pality to displace such exemption, which may be done by showing the 
 lands still remain in use for the purpose for whidi they were previottsly 
 used. When land that is purchased by the company is cleared for certain 
 purposes in connection with the operation of the railway, and is left in that 
 state until soeh time should arrire iar actual coastructi<». it may be 
 looked upon as a 'definite appropriation" as part of the railway and ex- 
 empt froan taxation. [Can. Xorthem Pacific Ry. Co. r. New Westminster. 
 A.C. 602, and Can. Xorthem Pacific Ry. Co. t. Kelowna. 25 B.CJL 514. 
 foUowcd.] 
 
 Can. Xorthem Pacific Ry. Co. t. Temon; Can, Xorthem Pacific Ry. Co. 
 V. Armstrong. 26 B.C.R. 221. 
 
 Exf3ipnox — Rah-wats — Locxt assessjiexts. 
 
 The exemption of railway property from all assessments and taxation of 
 every nature and kind, as provided by s. 18 of the Railway Ta3cati«n Act. 
 1900. c ol, is subject to the limitation of the ammding Act. 1900. c 5S 
 (ILSlM. 1913, e. 193. s. IS*, empowering municipal en^rations to assess 
 the real property of railway ctmpanies for local improvements, the exnap- 
 tion. however, extending to special survey charges made imder the Special 
 Survey Act (RJSJI. 1913, c 1*2). [Can. Xorthem Ry. C*. t. Winnipeg. 
 27 DXJL 369, 28 Man. KB. 292, affirmed.] 
 
 Can. X<Hlhem Ry. Co. t. Winnipeg. 36 D.LJL 222. 
 
 AIirxiciFAi. Taxes — ^Telephoxe i-oies axd imes — IixBCALtrr or. 
 
 13ie municipal tax imposed by a Tillage municipality on the telephoae 
 
44 BAGGAGE. 
 
 poles and wires situate in the streets of the village is illegal and cannot be 
 recovered. 
 
 Pierreville v. Bell Telephone Co., 23 D.L.R. 635. 
 
 ASSIGNMENT OF CLAIMS. 
 
 See Claims. 
 
 Annotation. 
 
 Assignment of Judgments. 6 Can. Ky. Cas. 479. 
 
 AWARD. 
 
 See Appeals; Expropriation. 
 
 BAGGAGE. 
 
 Liability for loss of baggage by transfer company, ^ee Carriers of 
 Goods (B) ; Limitation of Liability. 
 
 Personal baggage — Liability for. 
 
 The plaintiff was one of fifty-four Chinamen traveling over the defend- 
 ants' railway on one ticket purchased on their behalf by an employment 
 agent, who received the price of his passage from each of the Chinamen, 
 out of the wages earned by him after reaching his destination. The plain- 
 tiffs' baggage, consisting of personal effects and bedding, was destroyed 
 by the burning of the baggage car, the cause of the fire being unknown: — 
 Held, that the contract was with each Chinaman, to carry him and his 
 baggage safely, and that the defendants were liable in damages: — Held, 
 also, that the defendants having accepted the bedding as personal baggage 
 were liable for it as such, and senible, that it would have been held, under 
 the circumstances, to be personal baggage, even without such acceptance. 
 
 Chan Dy Chea v. Alberta Ry. & Irrigation Co., 6 Terr. L. R. 175, 1 
 W.L.R. 371 (X.W.T.). 
 
 Loss OF BAGGAGE — HOUSEHOLD EFFECTS. 
 
 (1) Only the passenger or his assignee can sue a railway company on 
 the implied contract with a passenger to carry safely his personal bag- 
 gage arising from his having purcliased a ticket for his conveyance. (2) 
 If the action were foimded in tort and it was shewn that the goods were 
 lost through the defendants' negligence, the owner of the goods, though he 
 was not the passenger, could sue. (3) In the absence of proof of negli- 
 gence, the passenger can only recover for personal baggage lost, and only 
 on clear evidence that such were contained in the missing pieces. (4) In 
 the case of a married woman traveling with infant children to join her 
 husband, the husband's clothing, household effects and the clothing of 
 grown-up daughters cannot be classed as personal baggage. 
 
 Callan v. Can. Northern Ry., 19 Man. L.R. 141. 
 
 Loss OF PASSENGHai'S LUGGAGE — LIABILITY AS WABEHOUSEMEW. 
 
 The defendants' agent checked the plaintiff's luggage in advance and sent 
 it on by an earlier train than that by which she traveled. The luggage 
 arrived at its destination before the i)laintiff arrived, and, four hours after 
 its arrival, was destroyed by fire: — Held, that, even assuming that there 
 was no negligence on the part of the defendants, the interval of four hours 
 was not sufficient to change the status of the defendants from carriers 
 to warehousemen, when they knew that the plaintiff was coming by another 
 
BAGGAGE. 45 
 
 tnia on a. Ia.ter dar; and tbe defendants wre liable for tlie x%hte of tike 
 lug^^pt. [P«ntoa V. Grand Trnnk Kt. Col. 2S U.C-R. 367. distiiqriuslMd : 
 Vinber? t. GTJL, 13 A-R. (Ont.) 93: Pentoa t. G.TJL. 2S U.CE. 376 
 followed.] 
 
 Haaiel t. Grand Trunk Rt. Co.. 2 O.W.X. 1±8«. 
 
 Passexgeb's baogace — Loss. 
 
 Macintosh v. Cape Breton Rt„ 7 E.L..R. 142 (X.S.>. 
 
 lsjr«T TO passe:cges$* baggage ltisg at station — Bailees ro* kevabd — 
 
 WAKEilOrSEMEV. 
 
 Where pa^^en^rs Inr railway cheeked their bagj^a^ on the day on vhich 
 ther purdiased their tickets. b«t (without the knowledge or fault of the 
 railway eompony t did not begin their journey until the following day. and 
 tlwir baggage reached their destination before them, and was injured by 
 aa aeeidaital explosion, while in the baggage room of the railway com- 
 pany, it was: — ^Held, that tiie liability of the company was that of gratui- 
 tous baQee. Le.. for groas negligenee only. DefinitioB of ~gros» negligence." 
 Review of the authorities: — And held, upon the eridenee. that the com- 
 pany were not guilty of gross negligence. Semble, also, that the company, 
 if they wei« to be considered as bailees for reward — ^wardioasemeB — were 
 not liable; they had discharged the onus of proring that the explosion wa$ 
 not due to negligence. 
 
 Carlisle r. Grand Trunk Ry. Co.. 13 Can. Ry. Cas. 518. 25 OX.R. 372. 
 
 IzrCDEXTAI. FOWEXS OF KAILWAT COMPAXT — CaBKIAGE OF BAGGAGE. 
 
 Tbe carriage of baggage to and from its own station^ is a power fairly 
 "incidental" to the statutory powers of a railway company. 
 
 Grand Trunk Ry. Co. t. James, 21 Can. Ry. cis. 429, 10 Alta. LuR. 109, 
 29 D.L.P^ 35± 
 
 TbADC XAVE — CaSBIAGE of baggage BT BAItWAT COMPAXT — ^Infbixgemest 
 
 — Isjxrscnay:. 
 
 A railway company is entitled to the exclusive use of the trade name 
 thrr adopt in carrying on a baggage transfer business, and any infringe- 
 ■kbI thereupon by a third party subsequently attempting to carry on a 
 similar business under a similar trade name will be restrained by injunc- 
 tion. [Grand Trunk Ry. Co. v. James. 22 D.L.R. 915. affirmed.] 
 
 Grand Trunk Ry. Co. t. James, 21 Can. By. Oas. 429. 29 DXJL 352, 10 
 Alta- LJL 109. 
 
 SkIFVS, CAX<«S AXD BOWBOATS LiMITATIO:? OF LIABILTTT WaBEHOCSE- 
 
 MAX. 
 
 Canoes, skiff's and rowboats are not such articles of necessity or personal 
 conrenience as are usually carried by passengers for their personal use 
 so as to be 'Tiaggage." [Macraw v. G.WJL Co„ L^ 6 Q.B. 612. con- 
 sidoed.] The construction of tbe words, "owners risk." used in r. 12 
 (Baggage Rules i is a matter for decision by tbe Courts. The Board has 
 power under s. 340 of the Railway Act, 190«, to sanction the limitation 
 of the carrier's liability to *100 in tbe case of baggage checked free of 
 charge, and the limitation is a reasonable one. Tbe Board is not giren 
 •aj jnriadiction under s. 340 to limit the carriers liability as a ware- 
 hoaseaiaB. [Rule 2, s. (c«, 11 and 26 (c) of the Baggage Ruks alaa 
 «msidef«d. S. 283 of the Railway Act. 1906. etmsidered.] 
 
 Re B^gage Car Traffic Rules, 33 WX.R. 54. 
 
40 BILLS OF LADING. 
 
 Xegligence — Limitation of Liability — Check boom. 
 
 The liability of a common carrier with respect to baggage checked for 
 safe keeping is that of a bailee for hire, and he is liable for a loss thereof 
 through misdelivery notwithstanding a condition on the receipt limit- 
 ing the liability of wJiich the liolder liad no notice. 
 
 McEvoy V. Grand Trunk Ry. Co. (Que.), 35 D.L.R. 301. 
 
 Check room — Rkckipt — Limitation of ijabii.ity. 
 
 The receipt of a railway company to a passenger delivering baggage to 
 its parcels office for safe keeping, on payment of five cents, is not a con- 
 tract of hiring, but a merely voluntary deposit or hiring of services, 
 whicli renders the depositary or lessor liable for the loss of the deposited 
 articles only in case of negligence; the burden of proof of such is on 
 the depositing party. One who obtains the receipt, without informing him- 
 self of the conditions thereon limiting the company's liability, is guilty 
 of negligence; and if such person is accustomed to travel on that railway 
 and often makes use of the parcels office, the court will presume that he 
 liad knowledge of the conditions printed thereon. 
 
 Dorion v. Grand Trunk Ry. Co., 53 Que. S.C. 106. 
 
 BILLS OF LADING. 
 
 Authority of agents to bind company to terms of bill of lading, see 
 Agents. 
 
 See Carriers of Goods; Limitation of Liability; Claims. 
 
 Approval by board — Clause ix yoked not approved by noncompliance, 
 
 A clause in a bill of lading which would be, if lawful, an exception to 
 the general law, is binding only after it has been approved by the Board. 
 Auger V. Can. Northern Quebec Ry. Co., 22 Rev. de Jur. 585. 
 
 Stipulation as to notice op loss — Failure to give. 
 
 A bill of lading, approved by tlie Board, containing a clause releasing the 
 carrier from liability if notice of the loss is not given within four months 
 of a reasonable time for delivery, is binding upon the shipper and will 
 bar his right of recovery for a lost sliipment where the required notice 
 is not in fact given. 
 
 Drury v. Can. Pac. Ry. Co., 48 Que. S.C. 326. 
 
 BOABD of RAILWAY COMMISSIONERS. 
 
 See Railway Board. 
 
 BONDS AND SECURITIES. 
 
 Appointment of receiver upon foreclosiu'e, see Receivers. 
 
 Bonds and debentures respecting construction of railways, see Railway 
 Subsidy. 
 Mortgage by railway co;mpany — Powek of company to mortgage its 
 
 ROAD. 
 
 Bickford v. Grand Junction Ry. Co., 1 Can. S.C.R. 696. 
 
 [Commented on in Canada Life Assn. Co. v. Peel Mfg. Co., 26 Gr. 477; 
 considered in Re Farmers Loan Co., 30 O.R. 337; discussed in King v. 
 Alford, 9 O.R. 043: MeDougall v. Lindsay Paper Mill Co., 10 P.R. (Ont.) 
 247; Winnipeg & Hudson's Bay Ry. Co. v. Mann, 7 Man. L.R. 97; dis- 
 tinguished in Re Rockwood Khc. l)iv. Agr. Soc, 12 Man. L.R. 661, 667; 
 
BOXDS AXD SECURITIE& 47 
 
 followed m Cbarlebois t. G:N:.W. Ccntrml By. Co., 9 Man. LR. 11: r*- 
 fened to im B^gin t. Levis Coantr Kt. Co.. 27 Que. S-C. 1S3; Blac^ler 
 T. Kawy. 16 A-R. (Onus oi±i Clarke t. Vnkm Fire Ins. Col, 16 A.R. 
 (Ont.1 161: Re Dominion Provident Assn.. *5 OJL 619: Farrvll t. Carri- 
 Vhi Gold Minin« Co™ 30 X.S.R. 2»>3: Haley t. Halifax Street Ry. Co_ i* 
 Can- S.C-R- 1*S: Hotton t. Federal Bank. 9 P.R. «Ont-» 56S: Loo* r. 
 Hanoock, 1* JLR. (Ont.> 137; Re Mnnsie. 10 PJL •Ont.i 9S: Rovland 
 T. Bnrvell. li P.R- lOnt-n 607: Toronto (;«nenil Trosts t. Central Ontario 
 Ry. Cou 6 O.L.R. 1; Whiting t. Hovey, 13 A-B. lOnt.) 7; Wilev t. 
 lidyard. 10 P.R. (Ont.) lS±.j 
 
 Rah-wat bosds — Coxninox pkbchbist — Cestificate or exgixeex. 
 
 QueJKC T. QneWv Central Ry. Co.. 10 Can. S.CJL 563. 
 
 [Tlie Prirr Council allowed leave to appeal in this case, but the appeal 
 vas settled before argument.] 
 
 RaH-WAT BOXDS — ^T«rsT ooxtetaxce. 
 
 In virtue of the provisions of a tru^t conveyance, granting a first lien, 
 privil^e and mortgage upon the railway propoly. frandiise and all ad- 
 ditkais theieto of the Soath-Ea^t«^m Ry. Co. and executed nnder the au- 
 thority of 43 & 44 Viet. nQne.ii c. 49. and 44 Jk 45 Vict. iQoe.) e. 43^ 
 the trustees of the bondholders took possession of the raihraT. In ac- 
 tions brought against the trustees after they took po&sessioiL. by the ap- 
 pellants for the purchase price of certain ears and other rolling stoek n^red 
 for tqio^ating the road, and for work dime for. and materials delrvered to. 
 the company after the execution of the deed of trust, but before the 
 trustees to«4c possession of the railway: — Held. (1> aflBrming the judg- 
 nevts of the Court below, that the trustees were not liable. (2) That 
 the appellants lost their privilege of unpaid vendors of the ears and roll- 
 ii^ stock as against the trustees, because such privilege cannot be exer- 
 cised when moveables became immoveable by destination, as was the result 
 witb regard to the cars and rolling stock in this case, and the immovable 
 to which the moveables are attached is in the possession of a third party 
 <wr is hypothecated. Art. ±«)17, C.C. (Que.) (3) But, even considered as 
 moveables, such cars and rollii^ stock became affected and charged by 
 rirtoe of the statute and mortgage made thereunder, as security to the 
 imidholdtfs, with right of priority over all other creditors, including the 
 jHrivil^cd unpaid vendors. Per Gwynne. J„ that the appellants might be 
 entitled to an equitable decree, framed with due regard to the other neces- 
 sary appropriations of the income in accordance with the provisions of 
 the trust indenture, authorizing the payment by the trustees "of all legal 
 #<»i»iwt arisii^ fr«n the operation of the railway, including damages 
 eamed by accidents and all other charges." but surfi a decree could not be 
 made in the present action. Per Strong. J.: Quaere — Whether the principle 
 as to the applicability <rf current earnings to cumfnl e3cpenses. incurred 
 either whilst or before a raflway comes under the control of the court by 
 being placed at the instance of uHHtgagees in the hands of a receiver in 
 pi e le ienee to mortgage creditors whose security has priority of date over 
 the obligation thus incurred for working expaises should be adopted by 
 Courts in this country. Mont. LR. 6 QJB. 77, reversing Mont- LJL 
 3 S.C. 238. affirmed. 
 
 Wallbridse v. FarwdL Ontario Car t Foundry Co. t. Farwell, 18 Can. 
 S.C.R. 1. 
 
 [.Applied in Aheam k S<^»er v. Xew York Trust Co.. 42 Can. S.CJL 
 270: followed in Connolly v. Montreal P. A T. Ry. Co.. 22 Que. S.C. 34»): 
 Lain6 t. Bfland, 2« Cmal S.CJL 429; referred to in Bank of Moatreai v. 
 
48 BOIS^DS AND SECUKITIES. 
 
 Kirkpatrick, 2 O.L.R. 113; applied in Ahearn & Soper v. New York Trust 
 Co., 18 Que. K.B. 83; relied on in Leonard v. Willard, 23 Que. S.C. 489.] 
 
 Mortgage of railway bonds as security for advaxces. 
 
 W., having agreed to advance money to a railway company for comple- 
 tion of its road, an agreement was executed by which, after a recital that 
 W. had so agreed and that a bank had undertaken to discount W.'s notes, 
 indorsed by E. to enable W. to procure the money to bo advanced, the 
 railway company appointed said bank its attorney irrevocable, in case the 
 company sliould fail to repay the advances as agreed, to receive the bonds 
 of tiie company (on which W. held security) from a trust company, with 
 which they were deposited, and sell the same to the best advantage, apply- 
 ing the proceeds as set out in the agreement. The railwaj'^ company did. 
 not repay W. as agreed, and tlie bank obtained the bonds from the trust 
 company, and having threatened to sell the same, tlie company, by its 
 manager, wrote to E. & W. a letter requesting that the sale be not car- 
 ried out, but that the bank should substitute E. & W. as the attorney 
 irrevocable of the company for such sale, under a provision in the afore- 
 said agreement, and if that were done, the company agreed that E. & W. 
 should have the sole and absolute right to sell the bonds for the price and 
 in the manner they should deem best in the interest of all concerned and 
 apply the proceeds in a specified manner, and also agreed to do certain 
 other things to further secure the repayment of the moneys advanced. 
 E. & W, agreed to this, and extended the time for payment of their claims 
 and made further advances, and, as the last-mentioned agreement author- 
 ized, they rehypothecated the bonds to the bank on certain terms. At the 
 expiration of the extended time the railway company again made default 
 in payment, and notice was given them by the bank that tlie bonds would 
 be sold unless the debt was paid on a certain day named; the company 
 then brought an action to have such sale restrained: — Held, affirming 
 the decision of the Supreme Court of Nova Scotia, that the bank and E. & 
 W. were respectively first and second incumbrancers of the bonds, being to 
 all intents and purposes mortgagees, and not trustees of the company in 
 respect thereof, and there was no rule of equity forbidding the bank to 
 sell or E. & W. to purchase under that sale: — Held, further, that if E. & 
 W. should purchase at such sale, they would become absolute holders of 
 the bonds, and not liable to be redeemed by the company: — Held, also, 
 that the dealing by the bank with the bonds was authorized by the Bank- 
 ing Act. 23 N.S.R. 172, affirmed. 
 
 Xova Scotia Central Ry. Co. v. Halifax Banking Co. (1892), 21 Can. 
 S.C.R. 536. 
 
 Opposition A fin de charge — Pi.edge. 
 
 The respondent obtained against the Montreal & Sorel Ry. Co. a judg- 
 ment for the sum of $675 and costs and having caused a writ of vendi- 
 tioni exponas to issue against the railway property of the Montreal & 
 Sorel Ry., the appellants, who were in possession and working the railway, 
 claimed imder a certain agreement in writing to be entitled to retain 
 possession of the railway property pledged to them for the disbursements 
 they had made on it, and filed an opposition a fin de charge for the sum 
 of .$35,000 in the hands of the sheriff. The respondent contested the op- 
 position. The agreement relied on by the appellant company, was entered 
 into between the Montreal & Sorel Ry. and the appellant company, and 
 stated amongst other things that "the Montreal and Sorel Railway Com- 
 pany was burthened with debts and had neither money nor credit to place 
 the road in running order, etc." The amount claimed for disbursements, 
 etc., was over $35,000. The Superior Court, whose judgment was af- 
 firmed by the Court of Queen's Bench for Lower Canada, dismissed the 
 
BONDS AXD SECrEITLES, 49 
 
 fiade^u]^ Ob appMl to tlK ^^n^ Cooit tW n^OBdem 
 to ^puk ike appml vm tke grand tfcat the umomt of the orienal 
 jidgiMBt wu the o^T natter ia eoatcOTersr aad vas iniiiBiiialiiii 
 aMMat to gii» jarisdictioB to the Cooit. The Co«rt vithoat deodi^ the 
 1" ■*"■ •* j««*<«>«" fce«rd 1&e appeal «■ the Merits, aad it «as:— &ld. 
 (1) That a oeh aa aemaeat wtst be deeavd ia lav to have faeea made 
 vith iatnt to defraod aad was void as to the aaterior cnditor? oi the 
 Moaitxcal & Sovd By. Co. (2) That as the a^neaait graatiap the liea or 
 pledge afcetcd nMyvaUe prop»ty aad had aot ben ies»ter«d it wa* 
 TOa ^aiast the aaterior oeditiHs of the MoatRal t Sotrf Ry Co. (Arts. 
 1977, 2015. aOM, C-C. CQoe->] (Si That Art. 419. CC (Qm.| does aot 
 gm ta aje^ee off aa iaunovaUe vho has aot R^istcicd his deed a 
 ngkt of rrtcatioB as i^aiast the pledger's execvtiaa cnditars for the par- 
 ■ert of his d Uaustaaj ts oa the propertr pinned, hat the pledgee's nm- 
 «*f ia hf aa oppositioa t fia de <oB«erra- to he paid out of the proceeds 
 of the jadicial sale. Art. 1972, CC. (Qiae.)». 
 
 Gieat Eastern Er. Co. t. Laaibe, 21 Cta. S-C.E. 431, 
 
 DKat-\ It. BBS — Sbcumtt — Htfothec to rwcsT crafPAxr — HotxBa or cot- 
 
 FOXS EXCXirSIVE KKHT of ACTI03r IX IKtS - lML 
 
 The holder of foap aa M u bonad bjr coaditioBs ia the de b e ataie* to vhiA 
 ther had been attadbed both as to' pajaeat aad the Mode of ncovcriag 
 the saae: he is. Oerrfave, ia Oe suae positaoa as th> ovaer of the de- 
 bcataie bdiofe the eu up oa s were d e ta che d aad, ia the fMeseat case, is, like 
 said oner, sabjert to a roaditioa of a deed Inr vUdi the real estate of 
 the railvaT eonpaax isoi^ the de b ea tiues were hjpothecated as t e miiti 
 for their ps^veat^ aaairiv, that soch trastee AoaM hare the eselanie 
 r^t of eafoni^ parmeat both ot ea^tal aad iatcnst. aad, the L^isfair 
 tore harii^ passed an Act to rati^ the eoatract b i t a c t a the coaipaaiy 
 aud the trastee, aa aetioB taken in the aame of the holder oi eoopaaa, 
 c«ca whca the aaine aexe pavable to bearer, vas not wvQ foonded aad 
 was dinusscd. 
 
 Leris Countr By. Co. t. Fontaine. 13 Que^ K.B. SS3. 
 
 Tbcst dgbd — fiEdSTS^siox — Tbcstee's salakt — PBE^caxmox — Saijist 
 or vsjoBcnm — ParnxEiaE or Bo:\DHouieB. 
 The deposit ai a trnst deed by a railway eoaqaay with the Secretary of 
 State aad aotiee thereof grrca in tbe Canada Gazette, as reqaired liy s. 
 94 of 31 Vict. c. 29. satisfies the reqairemeats of Title XVIII. CC. (Qiml) 
 with respect to registratioB. (2i The holdii^ of a railway bond by oae 
 of several trustees of a railway company as coUatnvI ie c uiitj for the 
 payment of salary to sndi trustees is an interruption of prescription under 
 Art, 2360 CC. (Qae.1 froat the time it was dc^posited with saeh tra<tee. 
 |3> The power of the Farliament of Canada to l^rislate upon the subject 
 of railwaT? ecteiwis to cirfl rights arising out of. or relatii^ to. such 
 railways, (4$ A cestui que trust cannot act as trastee for his own trustee 
 and recoTer reaanaeration for his services as such, lot A director of a 
 cooapaay is aot eatitled to any remuncfatioa for his services, without a 
 resfdatioa of the sharAolders aathorizin? the same. KSn The failure oa 
 the part of a bondholder to depo^ his bonds within a certaia period, ta 
 the haa^ of a named trastee in compliance with the terms of a srheaK 
 of arraa^e^wat, duly confirmed by tbe Court under the provisions of the 
 Kalhray Act. deprives him of any privilege attached to his bonds, and he 
 must be ranked only with the unsecured creditors. (7> Where bonds find 
 their way into tbe haads of a creditor as a mere pledge for his deix. not 
 fao^P houHki in open market, the creditor can oalj recover tbe amount of 
 Gaa. By. K Dig. — L 
 
50 BONDS AND SECURITIES. 
 
 liis debt and not the face value of the bonds. (8) Leave to amend under 
 rule 86 of the practice of the Court becomes null and void if not acted 
 upon within the period fixed for the purpose. (9) Under tlie law of the 
 province of Quebec a hypothec cannot be acquired by the registration of a 
 judgment upon the immoveables of a person notoriously insolvent at the 
 time of such registration, to the prejudice of existing creditors. (10) 
 Under the facts of this case, trustees luidcr a debenture holder's trust deed 
 were held to be entitled to be indemnified in preference to all other cred- 
 itors out of the trust pr6perty, for all costs, damages and expenses in- 
 curred by them in the performance of the trust. [Re Accles Limited 
 (1902), 17 T.L.R. 786, referred to.] (11) The word "approved" written 
 by the debtor upon an account against him, and dated, will not suffice to 
 revive the debt already prescribed under tlie provisions of Art. 2267 C.C. 
 (Que.). 
 Royal Trust Co. v. Atlantic & Lake Superior Ry. Co., 13 Can. Ex. 42. 
 
 Sale of securities — Right-of-way claims — Legal expenses ixcxjebed 
 in' settlement. 
 
 The plaintiffs sold the defendants stock and bonds of the P. & I. Ry. 
 Co., with an agreement in writing which contained a clause stipulating as 
 a condition that the vendees might declare the option of paying a further 
 sum of $.30,000 in addition to the price of sale, in consideration of which 
 the vendors agreed to pay all the debts of tlie P. & I. Ry. Co., except cer- 
 tain specially mentioned claims, some of which were in respect of settle- 
 ment for the right-of-way. The final clause of the agreement was as fol- 
 lows: — "After two years from the date hereof the M. S. Ry. Co., will 
 assume the obligation of settling any right of way claims which the 
 vendors may not previously have Iwen called upon to settle and will con- 
 tribute .$5,000 towards the settlement of any such claims which the vendors 
 may be called upon to settle within the said two years. Any part of 
 the said sum not so expended in said two years or required by the pur- 
 chasers so to be, shall l)e paid over to the vendors at the end of the said 
 period, it l)eing understood that the piu'chasers will not stir up or suggest 
 claims l)eing made." The vendees exercised the option and paid the $30,000 
 to the vendors who reserved their right to anj^ portion of the $5,000 to be 
 contributed towards settlement of the right-of-way claims which might 
 not to be expended during the two years. An unsettled claim for right-of- 
 way, in dispute at the time of the agreement was, subsequently, settled by 
 the vendors within the two years. The question arose as to whether or 
 not this claim, then known to exist, and legal expenses connected there- 
 with was a debt which the vendors were obliged to discharge in consider- 
 ation of the extra $30,000 so paid to them, and whether or not the $5,000 
 was to bo contributed only in respect of right of way claims arising after 
 the date of the agreement: — Held, allirming the judgment appealed from 
 ( 15 Que. K.B. 77 ) , that the agreement must be construed as being con- 
 trolled by the provisions of the last clause thereof; that said last clause 
 was not inconsistent with the previous clauses of the agreement, and 
 that the vendees were bound to contribute to the payment of such claims 
 and legal expenses in respect of the right-of-way to the extent of the 
 $5,000 mentioned in the last clause. 
 
 Montreal Street Ry. Co. v. Montreal Construction Co., 38 Can. S.C.R. 
 422. 
 
 Bonds pledged as cx)llateeal security — Rights of pledger — Bond- 
 
 HOLDEBS. 
 
 The pledgee of the bonds of a railway company, deposited with him as 
 
BONDS AND SECURITIES. 51 
 
 «e«irit.v for tb« payment of advances to xht ranpanj. cannot o^ tliem as 
 if be were a holder for ralne. and is not a bondholder within the BManinr 
 of the Railway Act, 19A3. ss. Ill, 116. He cannot, therefore, came tlm 
 to be rc^8t«red in his name, nor in that <rf parties to vbom be has inms- 
 fored them: nor deal with them as if they were hi*' property. e.p.. bv de- 
 taching coupons therefrom, so as to chan^ their appearance and redoce 
 the extent of their nominal value. 
 
 Atlantic t Lake Superior Ry. Co. v. De Galindez. 14 Qoe. K-B. 161- 
 
 MOKTGAGE— WOBKHSG KXPEXDimtES LlES — PbiOBITIES. 
 
 The Railway Act. 18S8. after providina; that a railway mar secure it* 
 dHicBturvs by a mortgage upon the whole of such propertr. aswts, rests 
 and revenues of the company as are described in the mortsa^e. provides 
 that such rents and revenues shall be subject in the first instance 
 to the payment of the working expenditure of the railway. By the Rail- 
 way Act, 1903. the lien is enlarged to apply to the proper^ and assets 
 of the cMnpany. in addition to its rents and revenues. A mortgage br the 
 defendants, made in 1897. was fore<^lo»ed and the property soM, the* pro- 
 ceeds bein«r paid into Court. In a claim for a lien thereon in jrimity to 
 the ■MMtgagce for working expenditure made after the commeaeement of 
 the Act of 19(«: — Held, that the lien under the Act of 1903 was not re- 
 troactive, and that as the lien under the Act of 18S8 was limited to rent« 
 and revenues, and did not apply to the fund in Court, the daim shoold be 
 disallowed. 
 
 Bamhill r. Hampton k Saint Martins Ry. Co., 3 X3. Eq. 371. 
 
 OosTETA^ccE rs T«rsr fob bo-ndholdiss — I^sraAXCE moxet. 
 
 Defendant company conveyed to a trust company, in trust for boadhold- 
 ers. all rights accrued or tha«after to accrue to the eonpaay: — ^HeM, 
 that the conveyance covered a sum of money paid by an insurance com- 
 pany to their agent, and that the money in the hands of the ageat was 
 ■ot subject to garnishee process at the instance of a judgment creditor 
 of the company. Also that, as against an attaching creditor, the equit- 
 able title of the trust company was perfect without notice, and. thwefore. 
 there was no fund upon which the attachment could operate. Per Drys- 
 dale. J.: The mere circumstance that insurers doing business outside the 
 jurisdiction of the Court send money to their agent within the jurisdiction 
 with instructions to pay it to the defendant company, imposes no liability 
 on the part of the agent to the defendant, in the absence of assent on the 
 part of the agent to pay the money in accxtrdance with the instructions 
 received. The plaintiff in such case is not within the provisions of Ordi- 
 nance 43. rule 1. and has no right to the money in question. 
 
 Terrell t. Port Hood Richmond Ky. i Coal Co., 45 X.S-R- 3«0. 
 
 COIXATEKAI. SECX-MTIES RAILWAY BOM*S Ba^K — ^POWEB OF SALK. 
 
 As collateral security to a promissory note the makers deposited »i»h a 
 bank cntain railway bonds, and, by memorandum of hypothecation. a«- 
 thori/ed the bank, upon default, "from time to time to sell the *aiid 
 securities . . . bv giving 15 days" notice in one daily psper publi*lKMl 
 in the city of Ottawa . . . with power to the hank to buy in and n-^W 
 without being liable fw any loss occasioned thereby."' Default havin^r 
 been made, notice of intention to sell was duly published, and. pursuant 
 to the notiee, the bonds were offered for sale at public auction, after t»o 
 postpmienMBts at the request of the j.ledgors. J>ut no sale was made for 
 want of bidders. The bank afterward- made a private sale of the bond- 
 without any farther advertisement : — Held, that the words "by giving"" in 
 
52 BONDS AND SECURITIES. 
 
 the memorandum were equivalent to "after giving" or "first giving" or 
 "giving," and the condition of publication of the notice having been per- 
 formed, the power to sell arose and might be exercised afterwards withoxit 
 a fresh notice: — Held, also, that there was nothing upon the evidence to 
 shew that the purchasers were not bona fide purchasers for value or 
 tliat they had any reason to suppose that the bank were not authorized 
 to sell ; and under these circumstances the construction of the power of 
 sale should not be strained against the purchasers. 
 
 Toronto General Trusts Corp. v. Central Ontario Ry. Co., 3 Can. Ry. 
 Cas. 344, 7 O.L.R. 660. 
 
 [Reversed in 4 Can. Ry. Cas. 359, 10 O.L.R. 347, which see below.] 
 
 Collateral secubitiks — Railway bonds — Bank — Power of sale. 
 
 As collateral security to a promissory note, the makers deposited with a 
 bank 300 railway bonds, and, by a memorandum of hypothecation, author- 
 ized the bank, upon default, "from time to time to sell the said securities 
 . . . by giving 15 days' notice in one daily paper published in the 
 city of Ottawa . . . with power to the bank to buy in and resell with- 
 out being liable for any loss occasioned thereby": — Held, reversing the 
 judgment of Street, J. "(7 O.L.R. 660, 3 Can. Ry. Cas. 344), Osier, J.A., 
 dissenting, that the power was to sell by auction, and that the bank had 
 no power to sell by private contract. Semble, that, even if there was 
 power to sell by private contract, the sale made to the respondents could 
 not, upon the evidence as to the methods adopted, be supported, they 
 having notice that the bank held the Iwnds as pledgees. 
 
 Toronto General Trusts Corp. v. Central Ontario Ry. Co., 4 Can. Ry. 
 Cas. 359, 10 O.L.R. 347. 
 
 Railway mobtcage bonds — Interest coupoxs — Arrears — Re:al pbopert\- 
 limitation act. 
 
 The restrictions placed upon the right to recover arrears of interest 
 charged upon land imposed by ss. 17, 24 of tlic Real Property Limitation 
 Act, R.S.O. 1897, c. 133, are not applicable to the case of coupons for the 
 payment of interest on railway mortgage bonds, which are secured by 
 mortgage deeds of trust. The coupons are, in effect, documents xmder seal 
 ■^the bond under seal containing a covenant for payment of the coupons — • 
 and they, therefore, partake of the nature of a specialty, and are good , 
 for at least twenty years. 
 
 Toronto General Trusts Corp. v. Central Ontario Ry. Co. et al., 3 X^an. 
 Ry. Cas. 339, 6 O.L.R. 534. 
 
 [Affirmed in 8 O.L.R. 604, 7 Can. Ry. Cas. 70.] 
 
 Interest — Arrears — Foreclosure — Limitation of actions. 
 
 Bonds under seal issued by a railway company contained a covenant to 
 pay half-yearly instalments of interest evidenced by attached coupons, and 
 payment of principal and interest wa?* secured by a mortgage of the under- 
 taking, which also contained a covenant to pay: — Held, in foreclosure pro- 
 ceedings upon this mortgage, that the interest being a specialty debt and 
 the mortgaged undertaking consisting in part of realty and in part of per- 
 sonalty not subject to division, the holders of coupons, whether attached 
 to the bonds or detached therefrom, were entitled to rank for all instal- 
 ments which had fallen due within twenty years, and not merely for those 
 which had fallen due within six years. Judgment of Boyd, C, 6 O.L.R. 
 534, 3 Can. Ry. Cas. 339, affirmed: — Held, also, that even if the case were 
 dealt with upon the footing of the mortgage being one of realty only, there 
 was the right to rank, for there were no subsequent encumbrancers, and 
 
BOXDS AXD SECURITIES. 
 
 bo 
 
 there had been shortly before the claims were filed a valid acknowledgment 
 by the e<MnpanT of liabilitr for all the interest in question. 
 
 Tonmto General Trusts Corp. t. Central OnUrio Ry. Co., 4 Can. Rt 
 Gas. 70, 8 OX.R. 604. 
 
 BOXDHOLDEBS RiGHT TO TOTE — ScOPE OF. 
 
 A provincial Act applicable to the bonds of a railway company provided 
 that, "In the event at any time of the interest upon the bonds remaining 
 unpaid and owing, then at the nest ensuing general annual meeting of 
 the said company all holders of bonds shall have and possess the same 
 ri^^ts and privileges and qualifications for directors and for voting as are 
 attadied to shareholders": — ^Held. that the bondliolders' right to vote might 
 be exercised at any time when interest was in arrear, and was not re- 
 stricted to the one general annual meeting next after the interest fell into 
 arrear: — Held, also. Osier and Maclaren, JJ.A„ dissenting, that eadi 
 bondholder had one vote for every §1<]K) of his bond, the shares being $100 
 shares: — Held, per Osier and Maelaren. JJ_A-, that each bondholder had 
 as many votes as he had bonds and no more. 
 
 Weddell et aL v. Ritchie et al., 4 Can. Ry. Gas. 347, 10 CUR. S. 
 
 RBGrXAKITY OF ISSUE — ^RIGHTS OF BOXDHOLDEBS. 
 
 A railway company and its creditors exercising its rights are estopped 
 from setting up irregularities in the issue of its Iwnds against trustees 
 for bondholders who had no reason to suspect them. 
 
 Veilleux v. Atlantic &. Lake Superior Rv. Co. et al., 12 Can. Ry. Gas. 
 91, 39 Que, S.C. 127. 
 
 Pudge of LocoMonvES — Possessiox — ^Rights «• cxeoitors. 
 
 B., who was the principal owner of the S. E. Ry. Co. was in the habit 
 of mingling the moneys of the company with his own. He bought loco- 
 motives, which were delivered to, and used openly and publicly by, the 
 railway company as their own property for several years. In January 
 and May, 1883, B., by documents sous seing prive, sold, with the c<hi- 
 ditlon to deliver on demand, ten of these locomotive engines to F. et al., 
 the appellants, to guarantee them against an endorsement of his notes for 
 $50,000, but reserved the right, on payment of said notes or any renewals 
 thereof, to have said locomotives redelivered to him. B. having become 
 insolvent, F. et al., by their action directed against B.. the S. E. Ry. Co. 
 and R. et al., trustees of the company, under 43-44 Vict, c 49 (Que.), 
 asked for the delivery of the locomotives, which were at the time in the 
 open possession of the S. E. Ry. Co.. unless the defendants paid the 
 amount of their debt. B. did not plead. The S. E. Ry. Co. and R. et al- 
 as trustees, pleaded a general denial, and during the proceedings O'H. filed 
 an intervention, ailing he was a judgment creditor of B., notoriously 
 insolvent at the time of making tho alleged sale to F. et aL: — Held, 
 aflBrming the judgment of the Court below, that the transaction with B. 
 only amounted to a pledge not accompanied by delivery, and, therefore. 
 F. et al. were not entitled to the possession of the locomotives as against 
 creditors of the company, and that in any case they were not entitled to 
 the propoly as against O'H., a judgment creditor of B., an insolvent. 
 Mont. LlR. 2 Q.B. 332, affirmed. 
 
 Fairbanks v. Barlow, 14 Can. Ry. Cas. 217. 
 
 [FoUowed in Vassal v. Salvas. 5 Que. Q.B. 356.] 
 
 Bonds — Couposs — ^Assigxmext. 
 
 McKenzie t. Montreal & City of Ottawa Ry. Co, 29 U.C.C.P. 333. 
 
54 BRANCH LINES AND SIDINGS. 
 
 ])euvery of bonds axd securitiks. 
 
 Declaration on a bond whereby defendants covenanted to pay R., or the 
 holder, at, &c., £200, on &c., and interest thereon semiannually on the de- 
 livery at the Gore Bank of the warrants therefor to the bond annexed, and 
 that the plaintiffs became the holders, and have always been ready and 
 willing to deliver said warrants at, &c., but £12 for interest is now due: — 
 Held, bad, in not averring an actual delivery of, or an offer to deliver, the 
 warrants at the bank. 
 
 Osborne et al. v. Preston & Berlin Ry. Co., 9 U.C.C.P. 241. 
 
 rRKSEXTMENT OF BONDS FOR PAYMENT. 
 
 McDonald v. Great Western Ry. Co., 21 U.C.Q.B. 223. '' 
 
 MORTGACE — BeNEIICIAL OWNER — LIABILITY ON COVENANTS. 
 
 National Trust Co. v. Brantford Street Ry. Co., 4 D.I^.R. 301, 3 O.W.N. 
 1615. 
 
 [The case involved other questions upon which a new trial was granted, 
 11 D.L.R. 837, 4 O.W.N. 1341.] 
 
 Bondholders — Mortgages — Sale of railavay by receiver — Distribu- 
 tion OF procekds of sale — Conflicting claims — Priorities — Liens 
 of bondholders — claim to liens by holders of detached coupons — 
 Transfer of coupons — Purchase or satisfaction — Preservation 
 OF lien — Exchange of bonds of first issue for second issue — ^Agree- 
 ment for exchanoe procured by misrepresentation — Relief by 
 rescission or reinstatement — Operation of mortgage upon eah.- 
 way afterwards acquired — rental — charge on lands — dischabqe. 
 Trusts & Guarantee Co. v. Grand Valley Ry. Co., 44 O.L.R, 398. 
 
 BONUS. 
 
 See Railway Subsidy. 
 
 BOX CARS. 
 See Cars. 
 
 BBAKEMAN. 
 See Signals and Warnings; Employees. 
 
 BRANCH LINES AND SIDINGS. 
 
 As a work for general benefit of Canada, see Constitutional Law; Ex- 
 propriation. 
 
 Limitation of actions for damages for removal of siding, see Limitation 
 of Actions. 
 
 Jurisdiction of Board to order establishment of sidings, see Railway 
 Board. 
 
 Branch lines — Canadian Pacific Ry. Co.'s charter — Limitation op 
 
 TIME. 
 
 The charter of the Canadian Pacific Ry. Co., 44 Vict. c. 1 (D.), and 
 schedules thereto appended imposes limitations neither as to time nor 
 point of departure in respect of the construction of branch lines; — they 
 may be constructed from any point of the main line of the Canadian Pacific 
 
BRANCH LIXES AXD SIDINGS. or. 
 
 Ky., between Callender Station and the Pacific ^ealxiard. subject merely to 
 the existing reflations as to approval of location, plans, etc.. and without 
 the necesaitT of any further legislation. On a reference concerning an ap- 
 plication to the Board for the approval of deviations from plans of a pro- 
 posed branch line, under s. 43 of the Railway Act. 1903, it is competent for 
 objections as to the expiration of limitation of time to be taken bv the said 
 Board, of its own moti<m, or by any interested party. 
 
 Re Branch Lanes C.P.R.; Can. Pac. Ry. Co. v. James Bav Rv. Co.. 36 Can. 
 S.C.R. 42. 
 
 [£3q)lained in Montreal k Southern Cotuties Et. Co. v. Woodrow, 11 Que. 
 PJL 232.] 
 
 EXTE?SIO:\ OF SIDESG EfTO PKTVATE PBOPEBTT. 
 
 A spur track connected the main line of the C.X.R. with private prop- 
 erty. This spur track or siding was constructed, under an agreement be- 
 tween the railway company and the private owners, by the latter, who 
 were also to pay annual compensation for the use thereof — the railway com- 
 pany having a right to use the siding for shunting. The railway desired to 
 continue the siding so as to reach the property of S., and in order to do 
 so had to cross the land of B. An order was made by the Board giving 
 leave to extend the track across B.'s land and authorizing the expropriation 
 of a strip of B."s land for the purpose: — Held, that the extension of the 
 siding was within the purview of the Railway Act. and that the Board had 
 power to make the order under ss. 221. 222. 223: their order concluded the 
 matter until it was reversed on appeal; and it was not open to a Judge, 
 upon an application by the railway company under s. 217 for a warrant for 
 immediate possession, to consider whether the right was disputable: — 
 Held, however, that the company had not made out a right to the warrant 
 under the terms of s. 217. 
 
 Re Can. Xorthem Ry. Co. and Blackwoods, 15 W.L.R. 4.>4. 
 
 Branch uxe — Coxnxrors route — Ixtekchaxge of traffic. 
 
 The G.T.R. Co. constructed a branch line connecting its line of railway 
 with that of the C.P.R. Co.: both companies having terminal facilities in 
 the city of London and no other connection at or near London, except this 
 liranch*. The G.T.R. Co. refused to interchange traflk- by means of such 
 branch line, claiming that, in the division of rates for traffic interchanged 
 bv this branch by the two companies, a larger portion should be assigned to 
 them than would be a fair remuneration for the service to be rendered in 
 transp(Hting c-ars over this branch and its London terminal lines and load- 
 ing and unloading them:— Held, that the G.T.R. Co. was obliged to furnish 
 for the carriage over its proportion of the continuous line ( formed by this 
 branch with the line of the C.P.R. Co.>, and for the receipt and delivery of 
 such traffic and for the loading and unloading of cars for the purpose, the 
 same facilities as in respect of traffic passing over its own lines only or 
 transferred to or by it at distant points of the C.P.R- system, and that the 
 apportionment of rates should be deemed to be made on this ba»is that the 
 division between the railway companies of the joint rates for traffic thus 
 interchanged should be made upon the principle of giving reasonable com- 
 pensation for the services and facilities furnished by the respective com- 
 panies in respect of the particular traffic thus interchanged, and not by 
 referaice to the magnitude of the business of one company or the other at 
 particular points or the respective advantages which each can offer to the 
 other there, or a comparison of the loss which the one is likely to sustain 
 with the gain likely to accrue to the other from the giving of the facilities 
 whidi the law requires. Upon appeal to the Supreme Court of Canada: — 
 
56 BRANCH LINES AND SIDINGS. 
 
 Held (1), that the Board had authority under the Railway Act, 1903, and 
 particularly under ss. 253, 266, 267, 271, to make the order in question 
 under the circumstances in this case. (2) That ss. 266, 267 of the Railway 
 Act, 1903, are applicable under the circumstances of this case where one and- 
 the same through rate is charged to and from all points within the district 
 lying in and about the city of J>ondon to which the order applies. (3) 
 That the order appealed from does not involve the obtaining by the C.P.R. 
 Co. of the use of the tracks, station or !<tation grounds of tlie G.T.li. Co. at 
 London, for which the G.T.R. Co. should obtain compensation under the 
 Railway Act, 1903, and particularly under s. 137. (4) That the Board was 
 not "bound as a matter of law" to take into consideration, in estimating 
 the remuneration or compensation to be allowed to the G.T.R. Co. in con- 
 sequence of or for what was required of that company by the said order: — • 
 (a) The magnitude of the business of the G.T.R. Co. at London as com- 
 pared with that of the C.P.R. Co. at that point; (b) the comparative ad- 
 vantages which each of the said two companies can offer to the otlicr there; 
 (c) a comparison of the loss which one company is likely to sustain with 
 the gain likely to accrue to the other company from the giving of these 
 facilities which the law requires; (d) the amount which may have been ex- 
 pended by the G.T.R. Co. in the acquisition of its terminal facilities at 
 London or the value of its investments therein, otherwise than as evidence 
 of the fair value of the service to be rendered and of the use of the facilities 
 to be afforded under the said order. 
 
 Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. and London (London Inter- 
 switching case), 6 Can. Ry. Cas. 327. 
 
 [Affirmed in 13 Can. Ry. Cas. 435; followed in Can. Manufacturers' Assn. 
 V. Can. Freight Assn., 7 Can. Ry. Cas. 303; Thorold v. Grand Trunk et 
 al. Ry. Cos., 24 Can. Ry. Cas. 21; Gillies Bros, and Grand Trunk Ry. Co. v. 
 Can. Pac. Ry. Co., 18 Can. Ry. Cas. 44; Re Interswitching Service, 24 Can. 
 Ry. Cas. 324.] 
 
 Operation along highway — Street Railway — Leave of municipality. 
 
 The N. St. C. & T. Ry. Co. applied to the Board for leave to cross certain 
 streets in the town of Thorold by a branch line already authorized by the 
 Board. The municipality contended that the applicants' railway is a street 
 railway or tramway, or operated as such, and tliat, under the Railway Act, 
 1903, s. 184, the leave of the municipality must be obtained by by-law be- 
 fore a street railway or tramway can cross its streets: — Held, upon the evi- 
 dence, that the proposed branch line is not a street railway or tramway, 
 and that s. 184 only applies to operation along highways and not to cross- 
 ings thereof. 
 
 Re Niagara, St. Catharines & Toronto Ry. Co. (Thorold Street Cross- 
 ings), 6 Can. Ry. Cas. 145. 
 
 Provincial railway — Authority of the Board. 
 
 B. & Sons applied to the Board for an order directing the H. & D. Street 
 Ry. Co. (incorporated by the Legislature of Ontario) to construct and 
 maintain a siding from their railway to the premises of the applicants: — 
 Held, that the application must be refused, as the Board had no jurisdic- 
 tion over a provincial railway, and no power to make an order for the 
 construction of a siding by it. 
 
 Bertram v. Hamilton & Dundas Street Ry. Co., 6 Can. Ry. Cas. 158. 
 
 Traffic accommodation — Restoring connections. 
 
 On an application to the Board under the Railway Act, 1903, for a 
 direction that a railway company should replace a siding, where traflBc 
 
BRAXCH LIXES AXD SIDry'GS. 57 
 
 fMilitin kad ben faraierlj ^tnrided for the reqxmdeBts with eamaecUamt 
 vpoB tiieir lasds, and for other appropriate relief for soefa pnrpoees— 
 BEdd. thai, under the oraiutaiiea. the Board had jnrisdictiaB to »^v« a. 
 «vto dhcetiiig the raOwAy eonpaay to restore the spnr-traek facilities 
 fotacrty oijojed by the applicants for the carriage despatch and receipt 
 of freight in carloads over, to and from the line of railwar. 
 
 Can. Xorthem By. Co. t. Sobinson, 6 Can. Rt. Cas. lOL 37 Can. S.C.R. 
 
 [See U Can. Ry. Cas. 289.. 19 Man. LB. 300, 11 Can. Br. C^ 304, 4-7 
 Ou. aCB. 3S7. 13 Can. Ry. CaiL 412, [1911] A.C. 7-39, 14 Can. By. Ca*. 
 281, 5 DX.B. 716, followed in Dominion Transportation Co. t. Algoma 
 Central r. Hiid«<»n Bay By. Co., 17 Can. By. Cas. 422.] 
 
 TbaCK FACIUTIES — DjaL&GES F« KEFCSAI. TO SCTPtT — LnciZATlOX OF Ac- 
 
 nox. 
 
 Aetiaa for damao^^ for taking away spnr-track facilities fwrnerly en- 
 joyed, and refusing to restore same for plaintiffs* use on their linl adjoin- 
 ia^ lOe railway yards. The Board had by order dated 19th Febrnarr, 1906. 
 made under ss. 214. 2.>3 of the Bailway Art. 1903. fo«nd as a fact tiiat the 
 defendants had refused to afford "rveascoiable and proper facilities''' as re- 
 quired by &. 253 and directed the defendants to restore these spor-tnck 
 facilities within foor weeks, which order was affirmed by the Soprcme 
 Goort at Canada, 37 Can. S.CJR- 541:— Held (1), «i action lies fw sndi 
 damages under the eirenmstances, the finding of fart by the Board being 
 eonelo^ve under s. 42 (3) of the Art. and this Coort has jurisdiction to 
 find and assess the damages (21 Plaintiffs were oititled to damages from 
 the date of the breach and not merely frcon the date of the Board^s order. 
 (3) The Board had no junsdietion to deal with the question of damages 
 and, not baring assumed to do so. the plaintiffs were not estopped from 
 bringing this artion by any adjudication of the Board. (At Damages 
 should be allowed during the time taken op by the appeal to the Supreme 
 Court, and Peruvian Guano Co. r. Dreyfu?. [1902] A-C. 166, did not apply, 
 (a) S. 242 of the Art. limiting the time for bringii^ ~aU action or suits 
 for indemnity by reason of the construction, nr operation of the railway,'' 
 does not apply to an artion for a brea^ of a statutory duty in neglectins 
 and refusing to supply reasonable and proper facilities. 
 
 Bobinson v. Can. Northern Bv. Col, 11 Can. By. Gas. 2S9, 19 Man. I_R. 
 300. 
 
 [Affirmed in 43 Can. S.C.B. 3S7, 11 Can. By. Cas. 304.] 
 
 DeXIAI. of TSJiFFIC FJICIUTIES — I:XJrKT BT KEASOA OF OFEKAUDE^ OP MJHO.- 
 WAX — ^LnOTATIOS OF ACTIOl^S. 
 
 Injuries suffered through the refusal by a railway company to furnish 
 reasonable and proper facilities for receiring. forwarding and delivering 
 froght, as required by the Bailway Act, to and from a shipper's warriiouse. 
 by means of a private spur track c»nnertin« with the railway, do not fall 
 within the classes of injuries described as resulting from the coBstructioD 
 or <^wration of the railway, in & 242 of the RaUway Art. 1903. and, con- 
 aeqpieatly, an acti<m to reeorer damages therefor is not barred by the limi- 
 tatiaa pieaeribed by that sertion for the commencement of actions and 
 snitB for indemnity. Judgment appealed from. 19 Man. L.B. 300, 11 Can. 
 'Bj. Gas. 289, affirmed, Gironard and Davies. J^., dissenting. 
 
 Gan Xorthon By. Co. t. Bobinson. 11 Can. By. Cas. 304, 43 Gan. S.C.R. 
 387. 
 
 [Affirmed in [1911] A.C. 739. 13 Can. Ry. Cas. 412: distinguished in 
 Grand Trunk Ry. Co. t. Samia Street Ry. Co., 21 Can. Ry. Cas. 160.] 
 
58 BRAIs^CH LINES AND SIDINGS. 
 
 IJkmoval of a siding — Limitation. 
 
 The appellant company having constructed a spur track or siding into 
 the respondent's yard for the convenience of traffic, in November, 1904, 
 cut it oir. and on February 1!), 1900. the Board, under ss. 214, 253 of the 
 Hallway Act, 1903, directed its restoration, which was carried out on Sep- 
 tember 28, 1906. In an action for damages for breach by the appellants of 
 their statutory obligations between October 31, 1904, and September 28, 
 1906:— Held, that under s. 42 of the Railway Act, 1903, the order of the 
 Board, affirmed as it was by the Supreme Court on appeal, was conclusive 
 as to the question of fact, that the facilities previously enjoyed by the 
 respondents were of a kind to which they were entitled: — Held, also, that 
 the special provisions of the Act as to one year's limitation (see s. 242 sub- 
 stantially re-enacted by s. 306 of the Railway Act, 1906), relate to damages 
 sustained by the construction or operation of the railway and do not ap- 
 ply to the refusal of facilities by means of a siding outside tlie railway as 
 constructed, which is not an act done in the operation of the railway. 
 [Can. Northern Ry. Co. v. Robinson, 43 Can. S.C.R. 387, .11 Can. Ry. Cas. 
 304, affirmed.] 
 
 Can. Northern Ry. Co. v. Robinson, 13 Can. Ry. Cas. 412. [1911] A.C. 
 739. 
 
 [See 14 Can. Ry. Cas. 281, 5 1).L.R. 716; distinguished in Grand Trunk 
 Ry. Co. V. Sarnia Street Ry. Co., 21 Can. Ry. Cas. KiO. 
 
 Measukk of compensation — Removal of spur track by railway. 
 
 The measure of damages for the wrongful removal by a railway com- 
 j'any of a spur track adjacent to a coal and lumber yard from which 
 track, at small expense, coal and lumber could be unloaded from cars di- 
 rectly into such yard, is the additional cost of handling and hauling of sucli 
 commodities from the freight yards of the company to the coal and lumber 
 yard. The award of damages for the wrongful removal by a railway com- 
 pany of a spur track adjoining a coal and lumber yard from which coal 
 and lumber could be unloaded from cars into the yard with little labour, 
 based upon the owner's evidence of the additional cost of hauling coal and 
 lumber from the company's freight yards, is not erroneous, though evidence 
 that a transfer company would handle such commodities at a less sum per 
 day for each team, if it appeared that the coal and lumber owners' teams 
 were better than those of the transfer company and would do more work 
 per day. Demurrage charges upon cars, due to slowness in unloading them 
 Dy reason of a longer haul, may be considered as an element of damages for 
 the wrongful removal by a railway company of a spur track adjacent to 
 a coal and lumber yard, from whidi tracks cars of coal and lumber could be 
 quickly and cheaply unloaded directly into such yard, where, by reason of 
 i^uch removal, such commodities had to l)e hauled by the owner of such 
 yard from a greater distance in a slower manner. 
 
 Robinson v. Can. Northern Ry. Co. (Man.), 14 Can. Ry. Cas. 281, 5 
 D.L.R. 716. 
 
 [See 6 Can. Ry. Cas. 101, 37 Can. S.C.R. 541, 11 Can. Ry. Cas. 289, 19 
 Man. L.R. 300, H Can. Ry. Cas. 304, 43 Can. S.C.R. 387, 13 Can. Ry. Cas. 
 412, [1911] A.C. 739.] 
 
 Industrial spur track — Extension. 
 
 An application to construct a branch line by extending an industrial 
 spur across certain private property of the respondent company. The ap- 
 plicant relied upon a letter from the owners of the property that they were 
 willing to grant the right of way for the spur over tbeir land, and that ar- 
 rangements could be made later. The respondent objected before the Board 
 
BRAXCH LEN'ES AXD SIDmGS. 59 
 
 to the applicatiaB being gnnted :— HeI<L that the Baud had jnrkdictioo to 
 make the order. 
 
 Can. XorthoTi Ry. Co. r. Blackwoods et al., 12 Can. Rt. Ca*. 40. 
 
 (Reversed in 44 Can. S.C.R. 92, 12 Can. Rv. Ca*. +5*: di^insnished in 
 Boiand t. Grand Trunk Ry. Col, 18 Can. Ry. Cas. 60.] 
 
 Peitaxe smxe — Bka3;ch cif mahmat. 
 
 The Board has not the power (except on exi^tipriation or consent of the 
 owner It. to order that a private industrial *pnr track or siding, oonstmrted 
 and operated under an agreement between a railway companj and tbe 
 owner of tbe land upon which it is bid and nsed only in connection with 
 Hw hosiness of such owner, shall l« also used and operated as a branch of 
 the railway with which it is connected. 
 
 Blackwoods. etc. v. Can. Northern Rr. 0>. et aL. 12 Can. Rt. Cas. 4.>. 44 
 Can. S-CJL 92. 
 
 [Distinguishes! in Boiand v. Grand Trunk Ry. Co., 18 Can. Ry. Cas^ 60.] 
 
 PbITATS SnWXC IxDCSTKIAI. SFClt track — ^POWEB to COXST«rCT. 
 
 Xotwithsfcanding provisions in an agreement under which a private in- 
 dustrial spar or siding has been constructed entitling the railway company 
 to anke use of it for the purpo^ of affording shipping facilities for tben»- 
 adves asd persons other than the owners of the land upon which it has been 
 built, the Board except on expropriation and compensation, has not tbe 
 power, on the application luider s. 226 of the Railway Act, 1906. to order 
 the eoBstmction and operation of an extension of such spur or siding as 
 a branch of the railway with which it is connected. [Blackwoods v. Can. 
 Xorthcm Ry. Co., 144 Can. S.C.R. 92, applied. Duff. -J.. dij»^nting.] 
 
 Chncr Bar Coal Co. t. Humberstone. Grand T^unk Pacific Ry. and Clover 
 Bar Sand t Gravel Cos.. 13 Can. Ry. Cas. 162. 45 Can. S.C.R.'^46. 
 
 [IKatingnished in Boiand v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 60.] 
 
 Smiles — Pboxoiitt of stations. 
 
 Hie Board will not order railway companies to put in sidings every 
 three or four miles along their lines. 
 
 nieasant Point Farmers t. Can. Pac. Ry. Co., 14 Can. Ry. Ca& 13, 7 
 D.LuR. 887. 
 
 [Followed in McPherson v. Can. Pac. Ry. Co, 18 Can. Ry. Cas. 57; Kelly 
 T. Grand Trunk Ry. Co., 24 Can. Ry. Cas. 367.] 
 
 JcKiSDicnox — QuEsnos or tttlk — Snr« lixk. 
 
 T» dfeMiiig upon an application to ciMistmct a spur line under section 
 SaS of tihe Railway Act, 1906. the Board is not the proper forum to deter- 
 mine q[aesti<»s of title. The quest ion is for tbe Provincial Courts to de- 
 cide. 
 
 Greenfield Conduit Co. t. Hetheringtwi, 16 Can. Ry. Ca*. 444. 
 
 UXJTST mSCKDUSATiOS ^FAdUTIES — EqCAI. BASIS — SwnCHtNG TOILS — 
 
 Rebates. 
 The object of «. 226, of the Railway Act. 1906. was to compel carriers, 
 instead of leaving it entirely to their discretion, to construct spurs furnish- 
 ing facilities to all traders on an equal basis, not subject to any special or 
 arbitrary switching toD for the use of such spur, and failure to do so is 
 unjust discrimination, but if. after the spur has been constructed, the 
 tr^e moved is not sufficient to warrant its construction, tbe lo*s is on the 
 trader and not on the carrier. The rebate provided by s. 226 i« not limited 
 to the charge made for switching over the spur in question but extends to 
 the tolls charged on cars moved over such spur. Tbe Koard has the right 
 to order rebates either in proportion to the amount of tolls charged upon 
 
60 BRANCH LINES AND SIDINGS. 
 
 such car or by a fixed charge per car. [Grand Trunk Ry. Co. v. ChirstJe, 
 Henderson & Co., 9 Can. Ry. Cas. 502; Pilon v. Grand Trunk Ry. Co., 16 
 Can. Ry. Cas. 433, followed.] 
 
 Hepworth Silica Pressed Brick Co. v. Grand Trunk Ry. Co., 18 Can. Ry. 
 Cas. 9. 
 
 [Affirmed in 19 Can. Ry. Cas. 395.] 
 
 Construction of spurs — Break in main line — DANOEntious — Light 
 
 TRAFFIC. 
 
 The practice of breaking a single track main line for industrial spurs at 
 points wliere trains are operated at high speed is more or less dangerous, 
 and will not be countenanced by the Board, although in the past switches 
 have been put in wliich were not objectionable on account of light traffic 
 and slow movement on the line. [Pheasant Point Farmers v. Can. Pac. 
 Ry. Co., 14 Can. Ry. Cas. 13, followed.] 
 
 McPherson v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 57. 
 
 Jurisdiction — Acquisition of land fob spur — C.L. traffic. 
 
 Where a spur is built by a railway company, under an order of the 
 Board, to handle C.L. traffic, the carrier has fulfilled its obligation when 
 it places a car on the spur for discliarging or receiving of traffic. The 
 Board has no jurisdiction to direct the respondent to acquire land on such 
 spur for the purpose of leasing it to the applicants for a coal shed site. 
 
 Forward v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 434. 
 
 Spurs — Construction — ^Rights-of-way — Ownership — .Turisdiction. 
 
 Spur lines constructed under the provisions of s. 222, of the Railway 
 Act, 1906, do not ipso facto become part of the railway of the company 
 from whose line they are built under the provisions of an agreement provid- 
 ing tliat the railway company furnish the ties, rails and fastenings, which 
 remain their property, and the owner provides the right-of-way. Such a 
 siding cannot be extended to the land of another owner under an order of 
 the Board, but the Board may, in the public interest, authorize the expro- 
 priation of the right-of-way upon which the siding is built and its exten- 
 sion to the lands of an adjoining owner requiring railway accommodation. 
 
 [Blackwoods et al. v. Can. Northern Ry. Co. and Winnipeg, 44 Can. 
 S.C.R. 92, 12 Can. Ry. Cas. 45; Clover Bar Coal Co. v. Humberstone, Grand 
 Trunk Pacific Ry. and Clover Bay Sand & Gravel Cos., 45 Can. S.C.R. 346, 
 13 Can. Ry, Cas. 162, distinguished.] 
 
 Boland v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 60. 
 
 [Followed in Standard Crushed Stone Co. v. Grand Trunk Ry. Co., 18 
 Can. Ry. -Cas. 374.] 
 
 Spurs — Maintenance — Ownership. 
 
 When a spur is constructed so that it becomes part of the railway com- 
 pany's property, the company should repair and maintain it, but where 
 part of the right-of-way of the spur is upon the property of the railway 
 company and part upon the applicant company's property, the railway 
 company, in the absence of an agreement to the contrary, should maintain 
 that part of the spur upon its own right-of-way and renew the rails (be- 
 longing to it) of the extension of the spur into the applicant company's 
 property, but the applicant company should maintain and repair the un- 
 derstructure on its own lands. 
 
 Wolfeville Milling Co. v. Dominion Atlantic Ry. Co., 18 Can. Rj. Cas. 
 367. 
 
BRANCH LIXES AXD SIDINGS. 61 
 
 ann — OwyBJtsHBP — Ocwsrsrcrnox axd oefx^noy: — (ywTccmsHir or ught- 
 
 When tike «Hrder of the Board authorizing the eonstruction and operation 
 of an industrial ^Mir provides that the respoodoit should retain the om- 
 crship of the right-of-var on wfaidi the siding is located, the Board can 
 obIt authorize the applicant to take expropriatioa procecdii^s to enable it 
 to acquire the right-of-war across the lands of the respondent so as to 
 reach by an extension of the spur another indnstrr whiefa it desires to seixr. 
 
 Grand Trunk Rr. Co. t. Hamilton t Toronto Sewer Pipe Co^ 18 Can. 
 Bt. Ca&. 3e9. 
 
 SpCKS OB HL^XCH UXES — Ow:XEBSHIP OF ULXDS BE3QnKE9L 
 
 S. 225 of the Railvav Act, 1906. applies to spurs or brandi lines or- 
 dered under s. 226 as well as to branch lines authorized under s. 222. The 
 lands necessary for a spur constructed under s. 226, are therrfore to be 
 acquired by agreement or e:xpropriation in the same manner as lands for 
 other railway purposes. Consequently where lands so required are owned 
 by the applicant fcx" the spur, and the applicant has not been cnonpensated 
 for then in accordance with the Act, they do not become rested in the 
 railway company by the mere operation of s. 226. subs. 5, upon refund of 
 the cost of the spur by means of rebates. [Boland t. Grand Trunk Ry. 
 Co., 18 Can. Ry. Cas. 60. followed.] 
 
 Standard Crushed Stone Co. r. Grand Tnmk Ry. Co., IS Can. Ry. Cas. 
 374. 
 
 TcMO-s — Cj^bbiage of freight — ^SptTi UNE — Rebate. 
 
 In subs. 3 of s. 226 of the Railway Act, 1906, the words "tolls charged 
 by the company in respect of the carriage of traffic for the applicant orer 
 the spur line^ mean the tolls charged for the transportation, on the railway 
 company's line, of goods carried to or from the applicant's premises and 
 not tolls charged for the movement of freight on the spur alone; eomse- 
 qnently a railway ordered to build a spur line to an industrial plant tm- 
 der s. 226 at the expense of the applicant and to move cars over it without 
 additional toll may be directed by the Board to rrfiate to the applicant a 
 fixed sum per car from the tolls on business done with the applicant and 
 carried over the spur line until the cost of construction shall have been 
 repaid by the railway. [Hepworth Silica Pressed Brick Co. v. Grand 
 Trunk Ry. Co.. IS tan. Ry. Cas. 9, affirmed.] 
 
 Grand Trunk Ry. Co. v.' Hepworth Silica Pressed Brick Co„ 19 Can. Ry. 
 Cas. 365, 51 Can. S.C.R. 81, 21 D.L.R. 4S0. 
 
 Private SrorsG — Facxuttes — Placing Cars. 
 
 A private siding, not on the railway right-of-way. is not part of the 
 imilway, and a carrier cannot be ordered, at the instance of a stranger, to 
 connect it with the railway for the purpose of operating it as part of the 
 railway or to place cars upon it for receipt of traffic. 
 
 Kammerer v. Can. Pac. Ry. Co.. 21 Can. Ry. Cas. 74. 
 
 [FoUowed in Xew Minas Fruit Co. v. Dominion Atlantic Ry. Co„ 24 
 Can. Ry. Cas. 97.] 
 
 SiDIXG OS RifiHT-<W-WAT— EXCLTSITE PRIVILEGES— UNJUST MSCMMTNA- 
 TIOX. 
 
 A railway companv should not enter into an agieem«t for the^ 
 struetion of a private siding upon its right-of way. Such an agreement 
 
62 BRANCH LIKES AND SIDIKGS. 
 
 defeats the purpose of its undertaking and by means of it unjust dis- 
 crimination may be practised. 
 
 Can. Pac. Ry. Co. v. Vancouver Ice & Cold Storage Co., 23 Can. Ry. 
 Cas. 1. 
 
 Sidings on kight-of-way — Jubisdiction — Approval — Adequate accom- 
 modation FOR traffic. 
 
 Subject to the jurisdiction of the Board in respect of adequate and 
 suitable accommodation for traflic, tlie railway company may, after the 
 route map has Iwen approved, locate its tracks upon its own right-of- 
 way without approval from the Board as to the location of these tracks, 
 except where highways are crossed. 
 
 Re Great Northern Ry. Co. Sidings, 23 Can. Ry. Cas. 5. 
 
 SiDixG on Right-of-way — Removal — Industries — C.L, 
 
 When industries have become dependent upon C.L. facilities afTorded 
 by a particular track (other than a team track) located wholly on the 
 railway right-of-way, such track should not be removed or re-located, 
 if the parties do not agree, witlumt leave of the Board. 
 
 [Kammcrer v. Can. Pac. Ry. Co., 21 Can. Ry. Cas. 74; Can. Pac. Ky. 
 Co. v. Vancouver Ice, etc. Co., 23 Can. Ry. Cas. 1, referred to.] 
 Re Great Northern Ry. Co. Sidings, 23 Can. Ry. Cas. 5. 
 
 Industrial spur — Cost of. 
 
 Where an industrial spur is built in the interests of commerce at the 
 expense of the industry to be served, the entire cost both of construction 
 and maintenance should be borne by such industry. 
 
 Bienfait Commercial Co. v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 62. 
 
 Placing cars^ — Private siding — Compkxsation. 
 
 A carrier which, for the convenience of shippers or consignees and 
 at their request, places their cars on a i)rivate siding owned by other 
 parties, is entitled to charge against such shippers or consignees the 
 amount of compensation payable by the carrier to the owners of the 
 siding for such use of it. 
 
 Canyon City Lumber Co. v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 9. 
 
 Jurisdiction — Spurs — Construction — Ownership. 
 
 A spur line constructed under s. 222 of the Railway Act, 1906, doe* 
 not become part of the railway from whose line it is built under an 
 agreement with the owner providing that the railway company furnish 
 the rails, ties and fastenings, which remain their property, and the 
 owner provides the right-of-way, even if no reference is made to sucli 
 agreement in the Board's order autliorizing the construction of the spur, 
 and the Board has no jurisdiction to authorize an adjoining owner to use 
 such spur. 
 
 [Blackwoods, etc. v. Can. Northern Ry. Co. and Winnipeg, 44 Can. 
 S.C.R. 92, 12 Can. Ry. Cas. 4.1; Clover Bar Coal Co. v. Humberstone, 
 Grand Trunk Pacific Ry. et al. Cos.. 45 Can. S.C.R. 346, 13 Can. Ry. 
 Cas. 162; Boland v. Grand Trunk Ry. Co.. 18 Can. Ry. Cas. 60; Kammerer 
 V. Can. Pac. Ry. Co., 21 C«n. Ry. Cas. 74, followed.] 
 
 Beverly Coal Mine and Humberstone Coal Cos. v. Grand Trunk Pacific 
 Ry. Co., 23 Can. Ry. Cas. 64. 
 
 Spurs — ^Location — Constbuction — Facilities — ^Accommodation. 
 
 Where the trackage for siding facilities offered by a railway company 
 
BRAXCH LE\ES AXD SIDDvGS. 6S 
 
 will orfy serve m. particular site but «lo** not give suitable aoronaoda- 
 titm far the vardbonse of tbe applicant, ibe railwaj companj mux be 
 ORdexcd to pcoTJde sidiB^ facilities for the site ^electoi bv the applicant, 
 tot mt BO greater cost than if these facilities were furnished at the site 
 ^v^oecd bv the lailvaj company. 
 
 Woifeville Fruit Go. v. Dominion Atlantic Ry. Co_ 24 Can. Ry. Cas^ IL 
 
 IxmrsTKiAi. SFCB — ^Highway — Bevovau 
 
 Jkn indnstrial siding crossing a highway should only be rt-mov««l by 
 directioB of the Board and not upon notice given by tiie council of thie 
 ■naicspality cootroUing the highway. The terms on which it max 
 ero— the highway were fixed by the Board. 
 
 iSkrmggc v. City of Winnipeg. 24 Can. Ry. Cas. 61. foUowed.] 
 Grand Trunk Ry. Co. v. Colmurg. 25 Can. Ry. Ca». 5S. 
 
 SrcKS — ^RcsiovAi. — Xonct — Appucatios to Boabd. 
 
 A municipality, on giving notice, may require a spur to he lUMO ved. 
 If there aie na^iiOBS why this should not become operative the railway 
 eompany may appH- to the Board to stay the effect of the notice. 
 
 Shiagge T." Winnipeg. 24 Can. Ry. Cas.'6L 
 
 £lUX£S ^LsrSTALXATIOX JcUSDIcnoX — AGMEHMtJir — Faciuties. 
 
 Tht Board has no jurisdicti<» under s. 284 of the Railway Act, 1906, to 
 direct that facilities, such ac sidings, should be installed between stations, 
 and tim fact that such siding has bem installed by agreement between 
 the parties does not extend the powers of the Board. 
 
 [Kammerer v. Can. Pac. Rr. Co.. 21 Can. Ry. Cas. 74. followed.] 
 New Minas Fruit Co. v. Dmninion Atlantic Ry. Co., 24 Can. Ry. Ca& 
 97. 
 
 Ooxsi«rcTi05: or sim roa suimn — Expense oeiBUiixEo bt boabii. 
 
 When an order is made by the Board for the construction of a spur 
 line f<H- the acetmimodation of a shipper, under s. 226 of the Railway 
 Act. 1906. the qne^on as to payment of expenses should be dealt with 
 bj the Boanl — not only the question as to work or practices which may in 
 tke future mean expenditure, but also the disposition of the resultant 
 cost. 
 
 Re S, A. Hamilton Co. and Can. Pac. Ry. Co., 2S WXJL 10*. 
 
 &>i:vs — ^I:a>csxuAi. oc Bcsc«»s — ^Team Tbacks — Gexekal iNTHtswrrcB- 
 
 rXG OBDES. 
 
 General Oi^er Xo. 11 of the Board, dated July 8, 1908 known as the 
 Geneial Interswitching Order, was confim^d in its operations to indus- 
 trial or business spurs, and did not extend to team tracks which foiin 
 part of a railway's terminals. 
 
 Re Interswitching Service, 24 Can. Ry. Cas. 324. 
 
 IsTKBSwncHixG— GKStmAL, Obdebs Xos. 230 axd 25*. 
 
 Ib view of the fact that interswitching from and to private spurs has 
 been freehr accorded in the past by the carriers to one another, those pro- 
 visioBS of General Order Xo. 230. issued pursuant to the judgment of 
 May 15. 191S. which were designed to protect the initial carrier in its 
 enjovment of the line haul, woe amended by General Order Xo. 252, 
 
64 BRIDGES. 
 
 so as to apply to team tracks only, and not to be applicable to shipments 
 interswitched from private spurs. 
 
 [Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. and London (London 
 Interswitching Case), 6 Can. Ry. Cas. 327, followed.] 
 
 Re Interswitching Service, 24 Can. Ry. Cas. 324. 
 
 BRIDGES. 
 
 A. Construction and Maintenance. 
 
 B. Injuries on Bridges. 
 
 See Highway Crossings. 
 
 Bridge as a means of farm crossing, see Farm Crossings. 
 
 Annotations. 
 
 Statutory height of bridges and penalties for violation, 4 Can. Ry. 
 Cas. 53. 
 
 Bridges at Highways, 1 Can. Ry. Cas. 497. 
 
 A. Construction and Maintenance. 
 
 Canal brume — ^Agreement bbttween Cbown and company as to con- 
 struction. 
 
 The suppliants' predecessor in title applied to the Minister of Railways 
 and Canals for leave to construct a railway bridge across the Otonabee 
 River, undertaking at the same time to construct a draw in such bridge 
 in case the Crown should at any time thereafter determine it to be 
 necessary for the purposes of navigation. By order in council, and 
 agreement made in pursuance thereof, between the suppliants' predecessor 
 and the Crown, permission was given to the former to construct a bridge 
 across the river, on their undertaking to construct at their own cost a 
 swing in the bridge, should the Government at any time thereafter con- 
 sider that to be necessary, or in case of the carrying out of the proposed 
 canal for the improvement of the Trent River navigation, and a swing 
 in the said bridge not being necessary, that there should in that case 
 be a new swing bridge over the said canal, the cost of the swing and the 
 necessary pivot therefor to be borne by the said company. The canal 
 having been constructed, it became necessary to have a new swing bridge 
 over the canal on the company's line of railway. This bridge was built, 
 and the suppliant company discharged the obligation to which it suc- 
 ceeded to pay the cost of the pivot pier and of the swing or superstructure 
 of the bridge. Held, that in the absence of any stipulation in the agree- 
 ment between the parties as to which should bear the cost of such main- 
 tenance and operation, the su]vpliants having built the pivot pier and 
 swing as part of their railway and property, should maintain and operate 
 them at their own cost. 
 
 Can. Pac. Ry. Co. v. The King, 10 Can. Ex. 317. 
 
 [Affirmed in 38 Can. S.C.R. 211.] 
 
 Swing bridgj: — Cost of construction — Maintenance. 
 
 The C.P.R. Co. applied for liberty to build a bridge over the Otonabee, 
 a navigable river, imdertaking to construct a draw in it should the 
 Government deem it necessary. An order-in-council was passed providing 
 that "the company . . . shall construct either a swing in the bridge 
 jiow in question . . . the cost to be borne by themselves or else a 
 new swing bridge over the contemplated canal (Trent Valley Canal) 
 in which case the expense incurred over and above the cost of the swing 
 
BRIDGES. 65 
 
 itself and the necessary pivot pier therefor shall be borne bv the Govern- 
 ment.'' A new swing bridge was constructed over the canal'bv agreement 
 with the company:— Held, that the words "the cost of the swing it^lf 
 and the necessary pier"' included, under the circumstances and in the 
 connection in which they were used, the operation and maintenance abo 
 of the swing by the company. 10 Can. Ex. 317, affirmed. 
 Can. Pac Ry. Co. v. The King, 38 Can. S.C.R. 211. 
 
 Highway cbossexg — ^Diverhxg stbeau cxdeb highway — Erbctiox or 
 suBSTrrrTioxAL bkidge — Liability to keep ix repaik. 
 
 A railway companA. desiring to cross a highway at a point where it 
 was carried by a bridge over a small stream, in pursuance of its statu- 
 tory powers, diverted the stream to a point some distance away, and built 
 a new bridge over it where it there intersected the highway .-—Held that, 
 whatever remedy the municipality might have if it had sustained damage 
 by reason of the exercise by the railway company of ita rights the latter 
 was under no liability, in the absence of special agreement, to keep the 
 bridge substituted by it in repair. 
 
 Peterlwrough v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 404. .32 O.R. l.>4. 
 
 [Affirmed in 1 O.L.R. 144, 1 Can. Ry. Cas. 497; discussed in Palmer v. 
 Michigan Central Ry Co.. 6 O.LlR. 90: distinguished in Hanley v. Toronto. 
 Ham. & Buffalo Ry. Co., 11 O.L.R. 91: followed in Palmer 'v. Michigan 
 Central Ry, Co., 2 Can. Ry. Cas. 239, 2 O.W.R. 477.] 
 
 Highway bkidge — Esplaxade Tripaktite Agrs^mext — R.vilwat Com- 
 
 SmTEE JURiSDICnOX OF. 
 
 "Bj the Esplanade Tripartite -Agreement, dated 26th July, 1S92, between 
 the City of Toronto and the two railway companies (G.T.R. and C.P.R.), 
 confirmed by statute 55 &. 56 Vict. c. 48 (D) the C.P.R. agreed to build a 
 highway bridge over the tracks of the railway companies — ^the por- 
 titm of the cost to be borne by each to be settled by arbitration or paid 
 equally by the C.P.R. and the City, in case the G.T.R, was found to be 
 exempt from, or entitled to idemnity against, liability for any portion 
 of the cost. The rights of the G.T.R. as to such exemption or indemnity 
 were^ by the agreement, to be decided by the submission to the Court 
 of a special case between the City and the G.T.R. After the bridge was 
 built, in accordance with plans and specifications approved by the Rail- 
 way Committee and while an action brought by the City against the 
 G.T.R. and C.P.R., in lieu of such special ea*e. was pending, an appli- 
 cation was made by the City to the Railway Committee for an order 
 to authorize and ratify the construction of the bridge, and direct the 
 terms upon which the cost of the work was to be borne: — Held, that the 
 application must be refused, the question involved not being cf a public 
 nature, but the settlement of a dispute of a private nature, whidi the 
 parties by their agreement had left to be settled by the Courts, 
 [Merritton Crossing Case, 3 Can. Ry. Cas. 263, followed.] 
 Toronto v. Grand Trunk Ry. Co. and Can. Pac. Ry. Co. (Vork Street 
 Bridge Case), 4 Can. Ry. Cas. 62. 
 
 Viaduct — ^Highway protectiox — .Access to harboitr. 
 
 Prior to 1888 the G.T.R. Co. operated a portion of its railway upon the 
 "Esplanade," in the city of Toronto, and, in that year, the C.P.R. Co. 
 obtained permission from the Dominion Government to fill in a part of 
 Toronto Harbour lying south of the "Esplanade" and to lay and operate 
 tracks thereon, which it did. Several city streets abutted on the north 
 side of the "Esplanade." and the general public passed along the pro- 
 Can. Ry. L. Dig.—o. 
 
06 BRIDGES. 
 
 longations of these streets, with vehicles and on foot, for the purpose 
 of access to the harbour. In 1892, an agreement was entered into between 
 the city and the two railway companies respecting the removal of the 
 sites of terminal stations, the erection of overhead traflfic bridges and 
 the closing or deviation of some of these streets. This agreement was 
 ratified by statutes of the Dominion and provincial legislatures, the 
 Dominion Act (56 Vict. c. 48), providing that the works mentioned in the 
 agreement should be works for the general advantage of Canada. To 
 remove doubts respecting the right of the C.P.R. Co. to the use of portions 
 of the bed of the harbour on which they had laid their tracks across the 
 prolongations of the streets mentioned, a grant was made to that company 
 by the Dominion Government of tlie "'u.se for railway purposes" on and 
 over the filled-in areas included witliin the lines formed by the pro- 
 duction of the sides of the streets. At a later date the Dominion 
 Government granted the^^e areas to the city in trust to be iided as public 
 higliwaj's, subject to an agreement respecting the railways, known as the 
 '"Old Windmill Line Agreement," and excepting tlierefrom strips of land 
 66 feet in width between the southerly ends of the areas and the harbour 
 reserved as and for "an allowance for a public highway." In June, 
 1909, the Board, on application by the city, made an order directing that 
 the railway companies should elevate their tracks on and adjoining the 
 "Esplanade" and construct a viaduct there: — Held, Girouard and Duff, 
 J.J., dissenting, that the Board had jurisdiction to make such an order; 
 that the street prolongations mentioned were highways within the mean- 
 ing of the Railway Act; that the Act of Parliament validating the agree- 
 ment made in 1892 was not a "special Act" within the meaning of the 
 Railway Act and did not alter the character of the agreement as a private 
 contract affecting only the parties tliereto, and that the C.P.R. Co. 
 having acquired only a limited right or easement in the filled-in land, }iad 
 not such a title thereto as would deprive the public of the right to pass 
 over the same as a means of communication between the streets and the 
 harbour. 
 
 Grand Trunk and Can. Pac. Ry. Cos. v. Toronto (Toronto viaduct case), 
 11 Can. Ry. Cas. 38, 42 Can. S.C.R. 613. 
 
 [Affirmed in [1911] A.C. 461, 12 Can. Ry. Cas. 378; followed in Oak- 
 ville V. Grand Trunk and Canadian Pacific Ry. Cos., 22 Can. Ry. Cas. 
 433.] 
 
 Viaducts — Highway protection. 
 
 The Railway Committee, in the exerci>:e of powers preserved to it under 
 s. 238 of the Dominion Railway Act, 1906, on January 14, 1904, ordered 
 the appellant and respondent railway companies to carry a bridge over 
 their respective lines at Yonge street, in the City of Toronto. The Rail- 
 way Board constituted by the Railway Act, 1903, consolidated in 1906, on 
 June 9, 1909, ordered the said two companies to construct an elevated 
 viaduct several miles in length, for the purpose of carrying four of the 
 tracks of their railways through the said city: — Held, that under the said 
 8. 238, and the amending, Act of 1909 (8-9 Edw. VII. c. 32), as. 237. 
 238, the Railway Committee and the Board had jurisdiction to make these 
 orders, the latter of which virtually superseded the former. The evidence 
 shewed that the lines of rails were laid "upon or along or across a high- 
 way" — highway being defined by s. 2, subs. 11, of the Railway Act, 1906. 
 as including "any public road, street, lane or other public way or com- 
 munication." As regards the respondent company, the lines were laid 
 along an esplanade, which was deemed a public highway under 28 Vict. 
 c. 24. Ab regards the appellant company, they were laid along a route 
 
BRIDGES. 67 
 
 as to which there was actual user by the public, whetho^ by ri^t « leave 
 and Ueeme egress or implied. It was acrardingtr within the words 
 Tmbhc cmnmnnieatioii.*' and exposed to the danger from whidi the 
 public were under s. 238 entitled to be protectied :— Held, fnrthtf, that 
 the Board, where it has jurisdiction, may in its discreiica make any 
 ord«- ol this kind for the protection, safety, and eonresienee of the 
 public, except where it is restricted by a. 3 of the Act oi 1JKN5, which 
 enacts that, where the provisions of the Act of 1906. and of any special 
 Act parsed by tiie Parliament of Canada, relate to the «iame snijeet, tiie 
 latter, so far as necessary, shall override the former. But the Dominion 
 Act, -56 Vict. c. 48, relied on by the appellants, which is a spedal Act 
 within the meaning of s. 2, subs. 28. of the Act of 1906, does not relate 
 to the same subject as the Act of 1906. The former onpowvrs the com- 
 panies affected thereby to construct and use certain specified works; ihie 
 latter empowers the Board to require railway companies to construct 
 su<;^ works as it may deem necessary for the protection and conveni«Ke 
 of the publie. Effect can be givoi to both statutes, and s. 3, consequently, 
 does not in this case restrict in any way the powo- of the Board. [42 
 Can. S.C.R. 613, 11 Can. Ey. Cas. 38, aiBrmed.] 
 
 Can. Pac. Ry. Co. v. Toronto and Grand Trunk Rv. Co. (Twmto Vir- 
 duct Case), [1911] A.C. 461, 12 Can. Ry. Ca>. 37S. 
 
 Chr^lHEAO BKIDGE — ^R-MLWAT CBOSSCXG StXlORITr I^PEXSE OF BEMOVAL 
 
 — Sfc^ IXVE. 
 
 Qa an applicaticm under s. 227 of the Railway .Act. 1906. f<Hr leave to 
 cross the main line of the respondent by an overhead bridge, the ques- 
 tion arose as to who should bear the expense of removing the spur of the 
 respondent and relaying it under the bridge. The location of the ap- 
 plicant was approved before the location of the re^mndtrnt. but the 
 respmdent's spur had been constructed for some time before: — Held (li. 
 that "construction" and not "approval of locati«jn~ gave priority. (2*. 
 That the respondent was senior to the appliv'ant at the crossing and all 
 the expense connected with the removal of the spur should be borne by 
 the applicant. [Can. Xortbem Ry Co. v. Can. Pac Ry. Co., T Can. Ry. 
 Cas- 297, followed.] 
 
 Can. Northern Ry. Co. v. Can. Pac. Ry. Co.. 11 Can. Ry. Cas. 432. 
 
 [Followed in >iidland Ry. Co. v. Grand Trunk Pacific Ry. Co.. 23 Can. 
 Ry. Cas. 80.] 
 
 XtTMBEE AXU SPBED OF TBAIXS ^VeHICTXAR -VXD Pa»E5T«IAX TBJjnC. 
 
 Application few the construction of a highway bridge to W substitntol 
 for a level crossing over the main line of the respondent: — Held fl). that 
 the three main factors to be c^>n?idered as creating the necessity for 
 protection at a highway crossing are. the numlier of trains, and especially 
 the rate of speed at which trains run over the crossing, the amount of 
 vdiicular and pedestrian traffic over the crossing, and the view which 
 those using the highway have of trains approaching :n boih directions. 
 (2) That the rate of speed at which trains run is a matter of greater 
 importance than the number of trains passing over the crossing. (3) 
 That only limited weight should be given to arguments based on the 
 amount of rehicular or pedestrian traffic passing over the crossing. (4? 
 That the rate of speed at which trains pa-s over the crossing is a veiy 
 important factw. (5) That the extent of the view at such crossing is 
 a matter of the greatest consequenoe. (6» That the applies tion should be 
 granted and a higlmj l»idge substituted for the level crossing orer 
 
68 BRIDGES. 
 
 the double track main line of the respondent notwithstanding the fact 
 tliat the traffic on the highway at the point in question is comparatively 
 light. 
 
 Front of Escott v. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 315. 
 
 Cost of overhead bridge — Municipality. 
 
 Ijeave was granted by the Board to a municipality to carry a highway 
 over the right of way and tracks of two railways by means of a bridge 
 where no higliway existed and the development of a village had been 
 retarded for want of a .crossing upon condition that the municipality bear 
 the whole cost of construction. An easement was granted over the right 
 of way, with right of support by piers without payment of compensation 
 to the railway companies. 
 
 Bridgeburg v. Grand Trunk and' Michigan Central Ry. Cos., 14 Can. 
 Ry. Cas. 10, 8 D.L.R. 951. 
 
 [Followed in London v. Grand Trunk Ry. Co., 20 Can. Ry. Cas. 242.] 
 
 Overhead bridge — Railway crossed by highway — Suitable structure 
 
 — MUNICIPALlTi-. 
 
 In dealing with an application by a municipality to direct a railway 
 company to carry a now highway across its tracks by an overhead 
 crossing, the Board's jurisdiction is confined to giving directions as to 
 the structure when railway property is interfered with and upon the 
 municipality passing a by-law providing a proper and suitai)le structure 
 for the purpose an order will go aj)proving of same, and in such case the 
 whole cost of the new highway will be upon the applicant. 
 
 Mission District Board of Trade v. Can. Pac. Ry. Co., 14 Can. Ry. 
 Cas. 331. 
 
 Highway crossed by rah way — Bridgb) — Railway yard — Apportion- 
 ment OF COST. 
 
 Where an application was made by a local improvement district for a 
 bridge carrying the highway over railway tracks, and the limits of an 
 adjoining city were afterwards extended so that the highway became 
 wliolly within the city limits, the Board decided that the district should 
 not bear any portion of the cost of sucii bridge, that the city should con- 
 tribute $r),0()0 of the cost for that portion of the bridge which crosses the 
 through tracks of the railway company, who must bear the whole cost 
 of extending the bridge across their yard, 20 per cent of the cost of 
 the whole bridge to be paid out of the Railway Grade Crossing Fund and 
 the balance by the railway company. 
 
 Saskatchewan Local Improvement District No. 161 v. Can. Pac. Ry. 
 Co., 14 Can. Ry. Cas. 337. 
 
 Highway bridge — Cost of maintenance. 
 
 The usual rule in cases of repairing and maintaining highway bridges, 
 apart from special circumstances, is, that the railway company is re- 
 sponsible for railway structures, and the municipality for structures handed 
 over to it for municipal and highway purposes. 
 
 Assiniboia v. Can. Northern Ry. Co., 14 Can. Ry, Cas. 365. 
 
 Bridges over highways. 
 
 A bridge crossing a river, connecting the separated parts of a public 
 highway is part of the iiighway itself and is also a public place, and is 
 within the operation of s. 248, subs. 2, of the Railway Act, 1906. 
 
 Haldimand v. Bell Telephone Co., 2 D.L.R. 197, 25 O.L.R. 467. 
 
BRIDGES. 69 
 
 Dttt to esect — ^Ibrigatiox works. 
 
 VNTiere an irrigation company had received, under tbe North-West 
 Irrigation Act, 61 Vict, (Can.) c 35 (now R.S.C. lUOti, c. 61 >, a Ueense 
 to take water to use in its business in the Xorth-West Terrilorv, and 
 obtained authority to cross with its works road allowances not yet used 
 as public highways reserved from its lands by the Crown for future u>e 
 as public highways, such company is itself bound, it being the partv 
 for whose convenience and profit the road allowances had been interfered 
 with, to build bridges when the road allowances afterwards become pub- 
 lic highways on both sides of the works constructed across them by the 
 company, even though it had never stipulated that it would maintain 
 the necessary bridge or bridges at the points indicated in &n accompany- 
 ing plan, where their works crossed road allowances or public highways 
 as provided by subs. (b>, s. 11. of the said Irrigation Act (now subs. 
 1 (b) s. 15, R.S.C. 1906, c. 61) which it did in an application required 
 of every applicant for license under the Act to file with the Commis- 
 sioner of Public Works for the North-West Territories, by the aforesaiil 
 subsection for the right to construct any canal, ditch, reservoir, or other 
 works referred to in the memorial, across any road allowance or sur- 
 veyed public highway, which may be affected by such works. [Rex v. 
 Alberta Ry. & Irrigation Co.. 3 Atla. L.R. TO, affirmed on appeal; Alberta 
 Ry. & Irrigation Co. v. The King. 44 Can. S.C.R. 505, reversed on appeal.] 
 
 Rex V. Alberta Railway & Irrigation Co., 7 D.L.R. 513, [1912] A.C. 
 S27. 
 
 OtEIUIEAD BRIDt;E: — COXTBACT TO MATSTATX ChaXGE TS TRAFFIC COSOI- 
 
 TIOXS. 
 
 On it becoming necessary to repair or replace an overhead bridge 
 carrying the tracks of a railway company over the road of another rail- 
 way company, the latter is bound to provide a structure sufficient for 
 the conditions of modern traffic, although the bridge displaced was 
 ample for the needs at the time it was built, where, by awatract, it 
 was required at its own expense to maintain such bridge in a good and 
 safe state, so as not to endanger the property, fixed or moveable, of the 
 other company, and to «a\e it from damage due to the construction or 
 nonmaintenance of the bridge. 
 
 Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. (Myrtle Bridge Case), 15 
 Can. Rt. Cas. 433! 12 D.L.R. 475. 
 
 [Affirmed in Can. Pac. Ry. Co. v. Grand Trunk Ry. Co., 17 Can. Ry. 
 Cas. 300: distinguished in Hamilton v. Can. Pac. and Toronto H. 4 B. 
 Rt. Cos. (Hamilton Bridge Case). 20 Can. Ry. Cas. 159; referred to in 
 Windsor v. Can. Pac. Ry. Co., 21 Can. Ry. Cas. 06.] 
 Railwat grossixcs— Overhead BRiDGi-<— :Maixtknaxce— Fctt^ tkai- 
 
 FIC wSeXIOB AXD JtrSIOR- 
 
 A junior wishing to cross the line of a senior railway company, con- 
 tracted for four crossings, three by overhead bridges and one by a 
 subwav under a bridge of the senior, to be constructed according to 
 plans 'and specifications approved by the chief engineer of the senior, 
 and having agreed that if it faiW to maintain such crossings to his 
 satisfaction, the senior could caus.- the necessary work to be done at the 
 cost of the junior, was obligevl not only to keep the c-rossings m good 
 and sufficient repair in the condition they were in when the contract 
 was made, but could at any time bo ordered by the Board to make 
 them fit for the heavier traffic caused by the increased business oi tbe 
 
TO BRIDGES. 
 
 senior. [Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. (Myrtle Bridge Case), 
 15 Can. Ry. Cas. 433, affirmed.] 
 
 Can. Pac. Ry. Co. v. Grand Trunk Ry, Co. (Myrtle Bridge Case), 17 Can. 
 Ry. Cas. 300, 49 Can. S.C.R. 525. 
 
 Lights — Apportionment of Cost. 
 
 By an order of the Board, the Grand Trunk Ry. Co. was ordered to 
 construct an overhead bridf][e at the crossing of the Upper Laehine Road 
 by its railway at Rockfield, Que., tlie cost of construction and maintenance 
 being divided amongst the various parties interested, including the City of 
 Laehine. After tlie bridge was constructed the city applied to the Board 
 to compel the railway company to erect the necessary poles and wires and 
 to light the bridge by electricity as a part of the work directed to be done 
 under the order. Electric lighting of a highway bridge falls within the 
 yjurview of the municipality, and the parties (other than the municipality) 
 contributing to the cost of maintenance, should contribute only an amount 
 representing the cost of the additional light required beyond that neces- 
 sary for the highway, if the bridge had not been constructed, 
 
 Laehine v. Grand Trunk Ry, Co,, 20 Can. Ry. Cas. 82. 
 
 Tbaffic bridge — Railway and highway — Pbotkction. 
 
 Under an agreement with the Provincial Government of Saskatchewan, 
 a railway bridge was erected by the respondent company over the North 
 Saskatchewan river, with a twelve foot roadway on each side clear of 
 the railway track, and separated from it by a fence admitted to be safe 
 and satisfactory for the purpose. There was no provision in the agree- 
 ment for protection to vehicular traffic from trains passing over the 
 bridge. The Board refused an application by an adjoining municipality 
 for an order, that the respondent sliould provide gates and watchmen 
 at both ends of the bridge to warn the public against approaching trains, 
 holding that the necessity for such protection was incidental to the use 
 of the bridge as a higliway. 
 
 Buckland v. Can. Northern Ry. Co., 23 Can. Ry. Cas. 13. 
 
 Falsework — Clearances — Negligence — Agreement. 
 
 An agreement between two railway companies for the construction of 
 falsework to carry the line of railway of one company over the tracks 
 of the other company witliout tlie standard clearances, may properly 
 contain a clause indemnifying the company Avliose line is crossed from all 
 loss, damage or expense of any nature occasioned to it, including loss, 
 damage and expense that has been occasioned, or contributed to, by the 
 negligence of its servants or agents or otherwise howsoever. 
 
 Can. Pac. Ry. Co. v. Can. Northern Ry. Co. (Falsework Case), 24 Can. 
 Ry. Cas. 5. 
 
 B. Injuries ou Bridges. 
 
 Notice to engine drivers to stop before approaching bridge — "Res 
 IPSA loquitur." 
 Can. Pac. Ry. Co. v. Lawson (1885), Cass. Can. S.C.R. Dig. 1893, p. 729. 
 
 Bridge accident — Nervous shock re8ui.ting from fright. 
 
 A railway company is liable in an action at the suit of one injured in an 
 accident while a passenger in the company's train for damages and pecuni- 
 
BRIDGES. 71 
 
 TV loss omsequent upon a fright resulting in a abode to tlie nerrous 
 ^^em causing phvsical injury if the fright was the result of the accident, 
 and was reasonable and naturaL 
 
 Kirkpatrick v. Can. Pac Ry. Co., 35 N3.R. 598. 
 
 Defective bridge — Ixtoxicated passe:vgeil 
 
 The deceased was a passenger on the defendants' railway. At a certain 
 point there was a defective bridge over which it was dangerous to run a 
 train. At this bridge passengers were taken from one train and were 
 obliged to walk across a part of the bridge and board another train at the 
 (^posite side. The deceased was intoxicated and asleep when the train 
 arrived at the bridge. His companion shook him and told him it was 
 time to transfer. The deceased paid no heed. As the passengers left the 
 car the conductor noticed the deceased, and that he was drunk and asleep, 
 but made no effort to wake him or to transfer him to the other train. 
 Shortly after this, and while the train still stood on the bridge, one of 
 the railway employees heard a splash in the water in the river. Some days 
 afterwards the body of the dec-««sed was found some twelve miles below the 
 bridge. The face bore marks of a severe bruise, which was. according to the 
 evidence of the coroner and undertaker, sustained before death. Harvey. 
 J., at trial nonsuited the plaintiff: — Held, on appeal (Stuart. J., dissent- 
 ing*, affirming the judgment of the trial Judge, that there was no evidence 
 to go to the jury that the death of the deceased was caused by any negli- 
 gence of the defendant company. [McArthur v. IKMuinion Cartridge Co., 
 [1905] A.C. 72, and Hainer v. G.T.R. Co., 36 Can. S.CJI. 180, distin- 
 guished.] 
 
 Beck V. Can. Xorthem Ry. Co., 2 Alta, UL 549. 
 
 Bkidge over hichwat — Height of — ^Ixji:rt to person. 
 
 The plaintiff was driving a load of hay on a public highway within 
 the limits of a village, sitting on top of his load. A railway, at a point 
 within the village, was carried over the highway by an iron bridge, and 
 the plaintiff, while driving along the highway under the bridge^ was 
 struck on the head by the girders and knocked off the load and injured. 
 The bridge, when constructed, was built at a height greater than that re- 
 quired In- the 8. IS-i of the Railway Act, 1888, but the municipality and 
 their predecessors, owners of the road, subsequently so raised its level as to 
 leave less than the statutory space between the road and the bridge:— 
 Held, that the section must be construed as compelling the railway com- 
 pany to construct their bridges, in the first place, so as to leave the re- 
 quired space below them to the highway, and to mainUin them at, at least, 
 that height from the original surface of the highway, and not as obliging 
 them to conform from time to time to new conditions created by the persons 
 having control of the highway. [Gray v. Danbury (1887), 54 Conn. o.4, 
 speciallv referred to.] 
 
 Carscin v. Weston et aL, 1 Can. Ry. Cas. 487, 1 O.L.R. 15. 
 
 ISJTKT TO IXFAXT FLAYKG THEREOX-NoTICE TO PtnHJC THAT BRIDGE XOT 
 TO BE rSED. 
 
 WhUe the defendants were repairing a highway bridge, having the en- 
 trance barricaded and a ^^o thoroughfare' notice, a boy. after working 
 hours but while it was still light, went upon the bridge and, stepping up^ 
 a loose pLuik, feU upon the railway track beneaUi, «d was bUed. The 
 jurv, having found no negligence on the part of the b^ and hat _the 
 company were negligent in not having a watchman, aaaeaaed the plaintiffs 
 
72 BEIDGES. 
 
 damages at $800: — Held, upon appeal, that the defendants were not liable. 
 [Ricketts v. Markdale, 31 O.R. 610, doubted.] 
 
 Farrell v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 249, 2 O.W.R. 85. 
 
 [Referred to in Burteh v. Can. Pac. Ry. Co., 13 O.L.R. 032.] 
 
 Overhead kbidge — Train oe- foreign company — Statutory height of cab. 
 
 When a car of a foreign railway company forms part of a train of a 
 Canadian railway companj', it is "used" by the latter company within 
 the meaning of s. 192 of the Railway Act, 1888, so as to make that com- 
 pany liable in damages for the death of a brakeman caused by the car 
 ])eing so higli as not to leave the prescribed headway Ix-tween it and an 
 overhead bridge. Judgment of Meredith, C.J., affirmed. 
 
 Atcheson v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 490, 1 O.L,R. 168. 
 
 [Referred to in Deyo v. Kingston & Pembroke Ry. Co., 8 O.L.R. 588; 
 Stephens v. Toronto Ry. Co., 11 O.L.R. 19.] 
 
 Statutory height — Overhead bridge — Contributory negligence. 
 
 Upon the proper construction of s. 192 of tlie Railway Act, 1888, a 
 railway company, whether the owners or not of a bridge vmder which their 
 freight cars pass, arc prohibited from using higher freight cars than 
 such as admit of an open and clear headway of seven feet between the 
 top of such cars and the bottom of the lower beams of any bridge which is 
 over the railway. [Mcl^iichlin v. Grand Trunk Ry. Co., 12 O.R. 418, and 
 Gibson v. Midland Ry. Co., 2 O.R. 658, distinguished.] Contributory negli- 
 gence may be a defence to an action founded on a breach of statutory duty. 
 A brakeman, standing on the top of a freight car, part of a moving train, 
 was killed by coming in contact with an overhead bridge: — Held, that aa 
 the evidence shewed he was on top of the car contrary to the rules of the 
 company, of which he was aware, the accident was caused by his own 
 negligence, and the defendants were not liable, although there was not a 
 clear headAvay space as required by the above section. 
 
 Deyo V. Kingston & Pembroke Ry. Co., 4 Can. Ry. Cas. 42, 8 O.L.R. 
 588. 
 
 [Distinguished in Muma v. Can. Pac. Ry. Co., 14 O.L.R. 147, 6 Can. 
 Ry. Cas. 444; referred to in Street v. Can. Pac. Ry. Co., 18 Man. L.R. 
 342; followed in Ruddick v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 484.] 
 
 Defective bridge — Gratuitous passengers — ^Liability of carrier. 
 
 In the absence of evidence of gross negligence, a carrier is not liable 
 for injuries sustained by a gratuitous passenger. [Moffat v. Bateman (L. 
 R. 3 C.P. 115) followed. Harris v. Perry, [1903] 2 K.B. 219, distin- 
 guished.] Altliough a railway company may have failed to properly 
 maintain a bridge under their control so as to ensure the safety of persons 
 traveling upon their trains, the mere fact of such omission of duty does 
 not constitut<> evidence of the gross negligence necessary to maintain an 
 action in damages for the death of a gratuitous passenger. Judgment 
 appealed from (9 B.C.R. 453.) affirmed. 
 
 Nightingale v. Union Colliery Co., 4 Can. Ry. Cas. 197, 35 Can. S.C.R. 
 65. 
 
 [Commented on in Barnett v. Grand Trunk Ry. Co., 20 O.L.R. 390; 
 discussed in Ryckman v. Hamilton, Grimsby, etc., Ry. Co., 10 O.L.R. 
 419; followed in Rayfield v. B.C. Elec Co., 15 B.C.R. 366.] 
 
 Negliqencf> — Railway and traffic bridge — Railway part not floorfj) 
 — Trespasser falling through. 
 The owner of a railway and traffic bridge, one portion of which is used 
 
CARRIAGE OF LIVE STOCK- 73 
 
 for railway traffic only and is not flowed, die other portion being fenced 
 off from the railway portion and used for the passa^ of persons and 
 Tiiadea c«ly and for the use of vhidi a small charge is made^ is not liable 
 ia danages for the death of a person who, in a state of intosication. and 
 in OTder to arod payment of the diarpe, attempts to cross on the railway 
 portion of the bridge^ falls through and is IdUed. Such person being "a 
 trespaaaer, the doctrine <rf implied inritation does not applT. [Steven* v 
 JeacDcke (l»48i, 11 Q.B. 731, 116 E.R. 647; Gorris t. Scott (1S74.. Lr. 
 9 Ex. 125; Walker v. Midland R. Co. a8S6». 2 Times LJL +50. followed.] 
 Walsh T. International Bridge k. Tominal Co., 45 D.L^ 701. 
 
 BUS LINE. 
 A e ce-Sft to statioB, see Stations. 
 
 CABS. 
 R^fat of access to stations, see Stations. 
 
 CABBIAGE OF LIVE STOCK. 
 
 Injuries to animals running at large, see Fences and Cattfe-Onards 
 ConditioBS limiting liability for the loss <»- damage to cattle in transit, 
 see Limitation of Liability. 
 
 Xotiee of loss, or of claims. £«e Claims. 
 
 Carriage of animals creating nuisance, see Xnisaace. 
 
 Annotation. 
 
 Lialnlity of common carrier for loi^> of cr damage to animals it under- 
 takes to carry, 3 Can. Sy. Cks. 1S9. 
 
 Loss OK TSjntY TO LITE STOCK COXDmOX OF BUX OF I-UIIXC. 
 
 Plaintiffs having carried on business for over twenty-fiT« years, and 
 having shipped live stock frequently, should have known of the conditions 
 nnHBtioned in the company defendant's bill of lading, and plaintiffs hav- 
 i^ failed to prove any fault or negligence on the part of the ccmpany 
 defendant, the latter most be declared relieved of any responsibility for 
 the loss of live stock in transit, under the terms of the bill of lading duly 
 s^:ned by plaintiffs. 
 
 Hatte'et aL v. Grand Trunk By. Co., 18 Bev. de Jur. 320. 
 
 LjABrUTT FOB IXJCBT. 
 
 The carrier who accepts an animal for transportation takes it tmder his 
 care and is in the position of a person using it. He is. therefore, liable 
 under the provisions of Art. lO-VS C.C. Que. for damage which the animal 
 causes. 
 
 Ltenard t. Can. Pac. Ry. Co.. 35 Que. S.C. 382. 
 
 FtMUXUAS — TkaXSPOBTATIOX Cff LIVE AXUIALS ReSPOXSIBILITT roa LOSS 
 
 oe. 
 Wha« a traveler put his horses upon a ferry boat of the above descrip- 
 ticn with side-rails only 15 inches high, saw the risk to which his animals 
 were exposed, and kept them under his own charge during the crossing, 
 he is not entitled to recover from the owner of the ferry boat the value 
 of a horse which became frightoied, jumped overboard and was droww?«i 
 
74 CARRIAGE OF LIVE STOCK. 
 
 where the accident occurred througli no fault of omission or commission 
 on the part of the carrier or his employees, but from the restless dispo* 
 sition of the horse and the inability of the owner to keep him quiet. 
 Roussel V. Aumais, 18 Que. S.C. 474. 
 
 Liability foe loss o^ dog. 
 
 The defendants are, by the Railway Act, 1888, common carriers of ani- 
 mals of all kinds; and in this case were held liable for the loss of a dog 
 which was received by them for carriage by their railway and was not 
 delivered to the plaintiff in accordance with the contract made with him. 
 Distinction between the P^nglish and Canadian Railway Acts pointed out. 
 Judgment of the County Court of Went worth affirmed. 
 
 McCormack v. Grand Trunk Ry. Co., 3 Can. Ky. Cas. 185, 6 O.L.R 
 577. 
 
 Limitation of liability. 
 
 The plaintiff delivered to the defendants, at Stony Point, eighty six 
 hogs, and on the following day he put on board the same car, at Thames- 
 ville, on the way, twenty more hogs, to be carried to Guelph. He got, 
 at Stony Point, a drover's pass to pass him in charge of his stock. The 
 agent there said that he allowed the plaintiff to label the car "Thames- 
 ville," on condition that the plaintiff would see the label changed, and 
 that if it had been labelled "Guelph" it would not have stopped at Thames- 
 ville at all. The plaintiff went as far as Tliamesville Avith the hogs, and 
 from thence went on by express. By some error tlie car went round by 
 Hamilton; a delay of several days occurred, by which the hogs were injured, 
 and several died; and when the car readied Guelph nine were missing 
 altogether. Tlie jury found that they wore lost after leaving Thames- 
 ville, but how they could not say. Upon the shipping bill, as well as 
 upon the plaintiff's pass, was endorsed a condition that upon a free pass 
 being given, defendants would not be responsible for any negligence, de- 
 fault, or misconduct, gross, culpable, or otherwise, on the part of defend- 
 ants or their servants, or of any other person causing or tending to cause 
 the death, injury or detention of the goods: — Held, that the condition pro- 
 tected the defendants, for it sufficiently appeared that the loss must have 
 happened from some cause within it; and. Quaere, whether it was not & 
 reasonable condition, the pass being given to enable the plaintiff to ac- 
 com])any and take care of the stock: — ^Held, also, that the plaintiff was 
 to blame for not having the proper label put on at Thamesville, and for 
 not remaining himself or sending someone Avith tlie hogs. 
 Farr v. Great Western Ry. Co., 35 U.C.Q.P>. 534. 
 
 Limitation of liability. 
 
 To a declaration against defendants, setting out a special contract en- 
 tered into with plaintiff to carry certain cattle, whcn^by plaintiff luider- 
 took "all risk of loss, injury, damage, and other contingencies in loading, 
 unloading, transportation, conveyance, and otherwise, no matter how 
 caused," and alleging the consequent duty on defendants' part to furnish 
 suitable and safe carriages, and the breach of such duty, whereby some 
 of tlie cattle were killed aand others injured, defendants pleaded this spe- 
 cial contract, and that while said cattle were being so conveyed a door 
 of one of the cars became open, and some of the cattle fell out and were 
 injured: — Held, on demurrer, a good plea and that defendants were not 
 liable. 
 
 Hood V. Grand Trunk Ry. Co., 20 U.C.CP. 361. 
 
CARRIAGE OF LIVE STOCK. 75 
 
 LnCITATIOX OF liABIIOTT — ^I:XABIUTT TO BEAD OK rXUEESTAXD COJrDITlOXS. 
 
 Plaintiff sent some cattle from Beaehville br defendants* railvaT, sign- 
 ing a paper which declared that he undertook all ri>k of loss, injunr «• 
 damage, in conveyance and otherwise, whether arising from the negligence, 
 defoult, or misconduct, criminal or otherwise, on the part of defendants 
 and their servants. He was told by the stationmaster that he would hare 
 to sign these conditions, which he did without taking time to read them. 
 To an action for negligence in the carriage of the cattle, by which five 
 of them were killed, defendants pleaded these conditions, which the jury 
 found that the plaintiff had signed: — Held, that he was bound by them, 
 though he might not have read or understood the paper. [Simons t. 
 Great Western Kj. Co., 2 C.B.X.S. 620. distinguished, as being founded <» 
 the fraud practised on the plaintiff to induce him to sign.] 
 
 [O'Roarke v. Great Western Ry. Co., 23 U.C.g.B. 427-] 
 
 SpECUO. COXTEACT — IXJtrKT TO FEXSONS IX CHABGE TSATELISG 
 
 The third parties shipped two carloads of horses over the defendants' 
 line, and placed G. and R. in charge. G. was killed and R. injured while 
 on the defendants' train, through the negligence of the defendants, and in 
 actioBS brought by the administrator of the estate of 6. and by R. against 
 the df^endants, judgments were recovered against the defoidants for dam- 
 ages for the negligence. The defendants sought indemnity against the 
 third parties, the owners and shipfiers of the horses. .Special eontracts for 
 shipment of live stock were signed by the defendants' agrat and by the 
 third parties, the form of contract being that authorized by the Board 
 under the Railway Act. The rate of freight charged was that authorized 
 under Canadian classification No. 14, dated the loth December. 1908. and 
 approved by the Board, in cases where the stock is shipped under the 
 terms and conditions of the special contract, which clasisification contains 
 certain general rules governing the transportation of live stock, including 
 this, that the owner or his agent must accompany each carload, and 
 owners or agents in charge of carloads will be carried free on the same 
 train with their live stock, upon their signing the special contract ap- 
 proved by the Board. G. and R. were carried free, but neither signed 
 the special contract, nor was any pass issued and delivered to either of 
 them embodying its terms, and neither of them knew the contents of the 
 special contract. Upon the face of each contract was written. "Pass man 
 in charge." Among the conditions of the contract were, that the liability 
 of the defendants should l«e resmcted to #100 for the loss of any one horse, 
 and that in case of the defendants granting to the shipper or any nominee 
 or nominees of the shipper a pass or privilege less than full fare to ride 
 on the train in which the property is being carried, for the purpose of 
 caring for the same while in transit, and at the owner's risk. then, as 
 to every person so traveling, the defendants are to be entirely free from 
 liabili^ in respect of his death, injury, or damage, and whether it be 
 c-aused by the negligence of the defendants or their servants or employees. 
 or otherwise howsoever. On the back of the contract, and as part of the 
 document approved by the Board, provision was made for each person 
 entitled to frife passage to sign his name, followed by a note that agents 
 must require such persons to write their own names on the lines above. 
 The defendants' agent n^lected to observe this direction: — Held, that the 
 third parties owed no duty to the defendants to inform G. and R. of the 
 terms of the special contract. (2» Looking at the express t^ms of the 
 written c<mtraet^ including the rule set forth in classification 14. intended 
 for the guidance of both parties, and having regard to all the circumstances 
 
76 CAKEIERS OF GOODS. 
 
 under which the contract was entered into, there was no implied agreement 
 on tlie part of tlie third parties to indemnify the defendants, in order to 
 give tlie transaction such efficacy as both parties must have intended 
 it to have. There would have been no claim against which to l)e indemnified 
 if the defendants' agent had performed his duty, and it would be contrary 
 to principle to imply an agreement by the third parties to protect the de- 
 fendants from the consequences of their own carelessness. 
 
 Goldstein and Kobinson v. Can. Pac. Rv. Co., 12 Can. Ry. Cas. 141, 21 
 O.L.R. 575. 
 
 [Affirmed in 12 Can. Ry. Cas. 485, 23 O.L.R. 536.] 
 
 Injury to persons in charge traveling on pass — Cr.Ant for indem- 
 nity. 
 
 Held, affirming the judgment of Teetzel, J. (21 O.L.R. 575, 12 Can. Ry. 
 Cas. 141, above), that the third parties were not bound to indemnify the 
 defendants in respect of the sums paid to the plaintiifs. Per Garrow, 
 J. A.: The general rule as to the right of indemnity is, that the claim, 
 unless expressly contracted for must be based upon a previous request of 
 some kind, citlier express or implied, to do the act in respect of whicli 
 the indemnity is claimed; and, there being no express covenant or con- 
 tract of indemnity, it was impossible, in the circumstances, to imply one; 
 to do so would not be in furtherance of an existing contract, but to make 
 an entirely new and difl'erent one. [Birmingham & District Land Co. v. 
 London &"^>;orth Western Ry. Co. (188(5), 34 Ch. D. 261, 274, Sheffield v. 
 Barclay, [1905] A.C. 392, 397, and Dugdale v. Lovering (1875), L.R. 10 
 C.P. 196, specially referred to.] Semble, per Garrow, J. A., that the failure 
 to obtain the signatures of G. and 1?. was not material — they could not 
 repudiate the contract which conferred the right which tliey were exer- 
 cising. [Hall V. North Eastern Ry. Co. (1875), L.R. 10 Q.B. 437.] Per 
 Meredith, J.A. : No sort of obligation, indemnity, insurance, or otherwise, 
 on the part of the third parties, had been proved. 
 
 Goldstein v. Can. Pac. Ry. Co.; Robinson v. Can. Pac. Ry. Co., 12 Can. 
 Ry. 485, 23 O.L.R. 536. 
 
 Liability of railway to caretaker of stock. 
 
 One traveling upon a railway in diaige of live stock at a reduced fare, 
 which is paid by the shipper of the live stock, is not boimd by a special 
 contract between the shipper and the railway company relieving the com- 
 pany from liability in case of his deatii or injury, of which he had no 
 knowledge, to which he was not a party, and from which he derived no 
 benefit, where the railway company failed to do wliat was necessary to 
 bring the special conditions of the contract to the attention of the traveler. 
 [Robinson v. Grand Trunk Ry. Co.. 14 Can. Ry. Cas. 444, 8 D.L.R. 1002, 
 reversed; Robinson v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 441, re- 
 stored.] 
 
 Robinson v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 264, 12 D.L.R. 696, 
 47 Can. S.C.R. 622. 
 
 [Reversed in 19 Can. Ry. Cas. 37.] 
 
 CARRIERS OF GOODS. 
 
 A. Carriage of Freight. 
 
 B. Express and Transfer Companies. 
 
 C. Charges. 
 
 Carriage of traffic before opening of railway, see Tolls and TarifTs (Re- 
 fund). 
 
CARRIERS OF GOODS. 77 
 
 See Baggage; Cars; Claims; Carriage of Live Stock: Freight agents; 
 Gorenunent Railways; Limitation of Actions; Limitation of Liabilitr; 
 Tolls and Ikrifla. 
 
 AnnotatifHis. 
 
 Liability of railway companv for goods which it undertakes to i-arrj-, 
 1 Can. Ry. Cas. 226. 
 
 Connecting luies as affected bv conditions in bill of lading limiting 
 liability, 2 Can. Ry. Cas. 117. " 
 
 Liability of carrier for loss of goods when conditions with reference to 
 insurance of goods not complied with by shipper. 2 Can. Ry. Cas. 134. 
 
 Duties and liabilities of i-arriers of goods, see Carriers of Goods. 2 Can. 
 Ry. Cas. 172. 
 
 The Crown as a common carrier. 3.5 D.L.R. 285. 
 
 Routing of freight, 19 Can. Rv. Cas. 363. 
 
 Inability of carriers for value of shipment, 23 Can. Ry. Cas. 335. 
 
 A. Caxriage of Freight. 
 
 IXTERPRETATIOX OF AGREEMEXT — C OXTBOLLABLE FKEIGHT. 
 
 By an agreement providing that the defendants should ship by the lines 
 of the plaintiffs their controllable freight for points reached by the lines 
 of the plaintiffs and their connections to the amount of ^35,000 per annum, 
 if the controllable freight amounted to that: if not. then all of it. The 
 defendants contended that the plaintiffs should supply them with cars for 
 the carriage of the freight according to the custom or practice alleged 
 to be usual in the case of a local line bringing freight to a trunk line 
 consigned to a point on the trunk line or reached by its connections: — 
 Held, restoring the judgment of Bo\<l. C. at the trial and reversing the 
 Court of Appeal. Maclennan. J.A.. dissenting. (1) Hiat ""controllable 
 freight** means business, that is goods, which the shipper has not himself 
 directed to be carried by a particular line or route to its destination. (2> 
 That the alleged practice to supply cars was not to be im|)orted into the 
 special wmtract between the plaintiffs and defendants. (3* That the con- 
 tract was plain, certain and unambiguous t)oth on its face and when 
 applied to ^e subject of it for fulfilment and execution, and its meaning 
 was not rendered uncertain by aiivthing extrinsic; and the evidence that 
 the plaintiffs' oflBcers for a time acted upon the defendants' imderstanding 
 of the contract would not affect the legal construction of it. 1 4 i That 
 the plaintiffs were entitled to a reference to ascertain the amount reeeive<I 
 for any "controllable freight" shipped by the defendants contrary to the 
 terms of the agreement. 
 
 ilichigan Central Ry. Co. r. Lake Erie t Detroit River Ry. Co., 6 
 Can. Ry. Cas. 83. 
 
 Agreemext to FrRxr.«;H cabgoes — Impossibilitt of pekjx»kmaxce — Fok- 
 ■mrors evext — DEsTRrcnox of bridge. 
 
 A railway company undertaking to furnish full cargoes for ships, sup- 
 plying the quantity that may be wanting in any case, is dischargeil from 
 such obligation by any fortuitous event, as when a bridge on its line is 
 burned down by a forest fire, so that the railway company is absolutely 
 prevented from delivering the cargoes it had undertaken to furnish. 
 
 Fumeas, Withy ± Co. v. Great Xorthem Ry. Co., 10 Can. Ry. Cas. 440. 
 32 Que. S.C. 12l'. 
 
 [Affirmed in part and varied as to damages in 10 Can. Ry. Cas. 453, 
 42 CaB. S.C.R. 234, 10 Can. Rv. Cas. 479.] 
 
78 CARKIEl^ OF GOODS. 
 
 Cabgoes foe steamers — Contract — Imi'OSSibility of peefobmance — 
 Destexjction of bridge — Vis major. 
 
 A railway company, which agrees to provide full cargoes for steamers 
 and to pay for any unfilled space on such steamers, is not relieved of its 
 obligation by reason of fortuitous event, when a bridge on its line has 
 been destroyed by a fire of unknown origin and tlie railway company is 
 thereby prevented from delivering, over its own line, the cargoes it had 
 undertaken to provide. To free itself from liability the railway company 
 would have to prove that there had been such a fire as w^ould constitute 
 vis major. 
 
 Furness, Withy & Co. v. Great Northern Ry. Co., 10 Can. Ry. Cas. 
 453. 
 
 [Varied as to quantum of damages in 42 Can. S.C.R. 234, 10 Can. Ry. 
 Cas. 479.] 
 
 Traffic agreement — Furnishing carcof^ — Freight bates — Failure to 
 
 FIND FULL cargoes — ViS M.\.T0R. 
 
 Appeal from the judgment of the Court of King's Bench, 10 Can. Ry. 
 Cas. 453, affirming the judgment of the Superior Court, District of Quie- 
 bec (10 Can. Ry. Cas. 440, 32 Que. S.C. 121), which maintained the plain- 
 tiffs' (respondents') action, in part, and increasing the amount awarded 
 by that judgment to $3,992, with interest and costs. 
 
 Great Xortliern Ry. Co. v. Furness, Withy & Co., 10 Can. Ry. Cas. 479, 
 42 Can. S.C.R. 234. 
 
 Carriage over connecting lines — Authority of freight agent. 
 
 E., in British Columbia, being about to purchase goods from G., in On- 
 tario, signed, on request of the freight agent of the Northern Pacific Ry. 
 Co. in Britisli Columbia, a letter to G. asking him to sliip goods via Grand 
 Trunk Ry. and Chicago & N.W., care Northern Pacific Ry. at St. Paul. 
 This letter was forwarded to the freight agent of the Northern Pacific Ry. 
 Co. at Toronto, who sent it to G., and wrote to liim, "I enclose you card 
 of advise and if you will kindly fill it up when you make the shipment 
 send it to me, I will trace and luiiry them through, and advise you of de- 
 livery to consignee." G. shipped the goods as suggested in this letter, de- 
 liverable to his own order in British Columbia : — Held, affirming the 
 decision of the Court of Appeal, that on arrival of the goods at St. Paul 
 the Northern Pacific Ry. Co. was bound to accept delivery of them for 
 carriage to British Columbia and to expedite sucli carriage; that they 
 were in the care of said company from St. Paul to British Columbia; that 
 the freight agent at Toronto had authority so to bind the company; and 
 that the company was liable to G. for the value of the goods which were 
 delivered to 1". at British Columbia without an order from G., and not paid 
 for. 21 A.R. (Ont.) 322, affirming 22 O.K. 045, affirmed. 
 
 Northern Pacific Ry. Co. v. Grant, 24 Can. S.C.R. 546. 
 
 [Referred to in Boyle v. Victoria Y.T. Co., 9 B.C.R. 322.] 
 
 Liability for articles stolen — Failure to count or check. 
 
 The plaintiff sliipped a number of bundles of iron by defendants' railway 
 from Montreal to London, subject to a condition that on its arrival, and 
 on being detached from tlie train, tlie delivery was to be complete and the 
 liability of defendants to terminate. On the arrival of the iron defendants 
 forthwith sent the plaintiff advice notes of its arrival, on which were en- 
 dorsed the above conditions, and from which it would appear that all the 
 iron had arrived: and requested him to send for it without delay, and that 
 it thenceforth remained at his risk. The plaintiff, who was the ticket 
 
CARRIEKS OF GOODS. 79 
 
 deik mt tlie London station during all the time that the iron was there, 
 Eftw the iron and conld hare c«)unted the bundles and hare seen that ther 
 were eorrect. Instead, hoirever, of doing so and taking it awaj, he allowed 
 it to remain in a plaee where, by an arrangement which had existed for 
 some years between him and defendants, it was accustomed to be placed 
 free of charge and for his sole conrenience, and where he was enabled, from 
 time to time, to send for and take such portions as he required: — Held, 
 that under these circumstances defendants were not bound to shew that 
 all the iron shipped had in fact arrived : that therefore no liability would 
 attach upon them for an alleged deficiency; and. at all events, that thia 
 point could not now be raised, as it was not taken at the triaL 
 Taylor t. Grand Trunk Ry. Co., 24 U.C.C.P. 5S2. 
 
 Loss €9 GOM»S AT STATIOS JUS TEBTU — ^RlCHT OF KECOVERT. 
 
 Plaintiff had sold certain goods to M., which were at the time lyii^ at 
 defmdants' railway station, and defendants were fully aware of the sale, 
 but notwithstanding they contracted with plaintiff to carry and deliver 
 them for him as required, and gave him a shipping bill accordingly. In 
 an action by plaintiff against defendants for the nondelivery: — Held, that 
 the defendants could not set up M.'s title to the goods as against the plain- 
 tiff. It further appeared that beyond the fact of M. having notified de- 
 fendants of his claim, and making a demand for the goods, he did nothing 
 to indicate his intenticm of looking to them for damages, but in fact sued 
 plaintiff and recovered the whole amount of his claim from him: — Held, 
 that the case could not Ite brought within the principle o( a bailee setting 
 up the jus tertii against the bailor, as there was here no bona fide defend- 
 ing in right and title of such third person. Held, also, that plaintiff 
 was entitled to recover the whole value of the property converted, and not 
 merely the difference between the price at the time of refusal to deliver 
 and tender of it back again. The tender in question was made in writing 
 by defendants' solicitor, two days before the commission day of the assizes, 
 offering for plaintiffs acceptance the fifty kegs of butter (the gmids in 
 question), sold by him to M.. and for which M. had recovered against him. 
 stating same to be at T. at plaintiff's own risk: — Held, wholly illusory, 
 and not to partake of any of the incidents of a legal tender. 
 
 BriU r. Grand Trunk Ry. Co.. 20 U.C.C.P. 440. 
 
 [See MiUigan v. Grand Trunk Ry. Co., IT U.C.C.P. 115, 3203; Crawford 
 T. Great Western Ry. Co., 18 U.C.C.P. 510, p. 3192.] 
 
 XOXDEUATEBT OF GOODS — XOTICE OF JTECESSrrr FOB PSOVFT DEUTEIT. 
 
 In an action by plaintiffs against defemlants for damages occasioned by 
 tfce ntmddivery of a certain article of machinery contracted to be delivered 
 by them for plaintiffs, it appeared that no notice had been given at the 
 time of the contract to the defendants of the necessity for a prompt de- 
 livery of the machinery, nor of the use it was to be put to: — Held, on 
 the authority of Cory r. Thames Iron Works Co.. L-R. 3 Q-B. 181. affirm- 
 ing Hadley v. Basendale, 9 Ex. 341, that the plaintiffs could only recover 
 the value of the missing article, and were not entitled to the loss of profits 
 arising from this nondelivery, or the wages of certain workmen employed 
 upon the buildinsr in which the machinery- was to be used. 
 
 Rnthven Woollen Mfg. Co. v. Great W^em Ry. Co., 18 U.C.C.P. 316. 
 
 Ikox u i j i tma * bt bx;st is kaii.wat tabd — Fao-uke to check amoitst. 
 
 Defendants received 2000 bundles of hoop iron to be carried to London 
 and delivovd at their station there to the plaintiffs. On its arrival, the 
 plaintiffs having no agent in London and living in Montreal, defendant^ 
 sent to them their advice notes of the arrival, and unloaded the iron in 
 
80 CAEEIERS OF GOODS. 
 
 their yard, where it remained for nearly three weeks and was injured by 
 rust and exposure: — Held, that the defendants as common carriers were 
 not liable. Eighteen bundles were missing, and defendants' officers, not 
 having checked the number taken out of the cars, could only say that if 
 the 2000 bundles arrive<l there it was all placed in the yard, and must 
 have been stolen from tlicre: — Held, that the defendants were liable for 
 the eighteen bundles. 
 
 Hall et al. v. Grand Trunk Ry. Co., 34 U.C.Q.B. 517. 
 
 [See Milligan v. Grand Trunk Ry. Co., 17 U.C.C.P. 115, p. 3203.] 
 
 Stoppage in transitu — ^Notice of. 
 
 Goods which came from ^lontreal in bond, were deposited in the cus- 
 toms wareliouse at the Grand Trunk Ry. Station at Toronto. Tlie con- 
 signees became insolvent, and the consignors gave notice of stoppage in 
 transitu to the railway company, after which the agent of the company 
 gave an order for delivery on payment of charges to anotlier person, who 
 made the entry and received them from the customs: — Held, that such 
 notice was sufficient, though in such cases it is advisable to give notice 
 also to the customs officer; and that an action would lie against the 
 company for such delivery. 
 
 Ascher v. Grand Trunk Ry. Co., 36 Q.B. 609. 
 
 YaBDS and WABE3IOUSES DELAY IN DELIVERY — LIMITATION OF LIABILITY. 
 
 On 3rd of April, 1871, defendants received at ^lontreal a case of hats 
 to be carried to Toronto, consigned to the plaintiffs. Tiie goods arrived 
 in due course at Toronto, and were placetl in defendants' warehouse, but 
 were not delivered to the plaintiffs until the 15th of June following, where- 
 by the sale of the goods was lost, and tlieir value very considerably de- 
 teriorated. It appeared, however, that tlie goods were carried under this 
 special condition : "The company will not be responsible for any goods 
 left until called for or to order, warehoused for tlie convenience of the 
 parties to whom they belong, or by or to whom they are consigned; and 
 that the delivery of the goods will be considered complete, and the respon- 
 sibilities of the company will be considered to terminate, when placed in 
 the company's shed or warehouse." But it also appeared that it was the 
 custom of defendants to deliver to the consignees gootls brought bj' them 
 and warehoused, and to charge for the cartage in the freight: — Held, 
 that the condition would only relieve defendants from liability as common 
 carriers, but not as warehousemen; and that being bound in the latter 
 capacity to deliver the goods, they were liable for the loss sustained by the 
 detention. It appeared also that the address in the shipping bill was not 
 very distinctly written and it was contended that tliis was the cause of 
 the delay; but this was expressly left to the jury, who found for the plain- 
 tiffs, and the Court would not interfere. 
 
 ilcCrosson et al. v. Grand Trunk Ry. Co., 23 U.C.C.P. 107. 
 
 [See Penton v. Grand Trunk Ry. Co., 28 U.C.Q.B. 367: Hall v. Grand 
 Trunk Ry. Co., 34 U.C.Q.B. 517; Mason v. Grand Trunk Rv. Co., 37 
 U.C.Q.B. 163.] 
 
 Yards and warehouses — Delivery to bonded warehouse — Dct.ay — 
 Liability. 
 
 Declaration, that the plaintiff delivered goods to defendants as common 
 carriers, valued at £150, to be safely conveyed from Suspension Bridge to 
 Toronto, within a reasonable time, for hire. Breach, that defendants did 
 not, within such reasonable time, take care of and convey the said goods 
 to Toronto, and never delivered the same. The plaintiff, on the 24th July, 
 
CARRIERS OF GOODS. 81 
 
 1858, receiTed & notice that ~the undermentioned goods consigned to you 
 have uriTed here this dav: we will thank von to send for them as soon 
 as possible, as they remain here at your risk and expense.^ The goods 
 w«« sfH-ing goods, which had arrived from the Bridge on the 5th of A{Mil 
 and 11th of March, and were placed by defendants in a bonded warehoose. 
 being subject to duties. Being unseasonable at the time of receipt of the 
 notice, plaintiff refused to take them: — Held, that the goods being bonded 
 goods, subject to duty, and defendants baring conveyed them within a 
 reasonable time to the warehouse, where they were bound by law to de- 
 liver them, they were not bound to give notice of their arrival there, and 
 their duty as common carriers had ceased. 
 
 O'Xeill'T. Great Western Ry. Co., 7 U.C.CJ. 203. 
 
 Takos jlSD wakehotsbs — Loss or goods bt rax — Liabilitt as wabe- 
 
 HOrSEiCKX. 
 
 Plaintiff delivered to defendants, as comnum carriers, foreign goods in 
 bond at Buffalo, to be carried to Brantford. A receipt was givoi (26th 
 April, 1854) for (amongst other things) a box at Buffalo f<M- way station. 
 The e<mtract alleged was to carry the goods from Buffalo to Brantford, 
 and there to deposit and keep them for the plaintiff, for reward, kc Fre- 
 quently, before defendants' freight station was burnt at Brantford (on the 
 8th or 9th Mayi, and afterwards, the plaintiff applied for the goods, 
 when the answer was '^ot arrived.*' On 9th of May the answer was, 
 **bumt up." It was admitted that the goods arrived on the 5th or 6th 
 of May. and were stored in a bonded warehouse in defendants' control, 
 and were burnt up on the 8th or 9th, and that no notice of arrival was 
 sent to the consignee: — Held, that under the contract as stated in the 
 declaration and proved, defendants' liability as common carriers had 
 ceased, and that of warehousemen commenced: and that whatever their 
 liability was as warehousemen, they were not liable under the contract aa 
 allied, and not bound to give notice. 
 
 Bowie V. Buffalo. Brantford i Goderich Ry. Co., 7 U-C.C.P. 19L 
 
 Loss mr fibe ts wabehocse. 
 
 In an action by S-. a merchant at Merlin. Out., against the Lake Erie 
 & Detroit River Ry. Co.. the statement of claim alleged that S. had pur- 
 chased goods from parties in Toronto and elsewhere to be delivered, sMne to 
 the G.T.R. Co., and the re*t to the C.P.K. and other companies, by the said 
 several companies to be, and the same were, transf«rred to the Lake Erie 
 Co., fw carriage to Merlin, and that on receipt by the Lake Erie Com- 
 pany of the goods it became their duty to carry them >afely to Merlin, and 
 deliver them to S. There was also an allegation of a contract by the 
 Imke Erie for storage of the goods and delivery to S. when requested, and 
 of lack of proper care wherHiy the goods were lost. The goods were de- 
 stroyed by fire while stored in a building owned by the Lake Erie Co. at 
 Merlin:— Held, reversing the decision of the Court of Appeal, that as to 
 the goods delivered to the G.T.R-Co. to be transferred to the Lake Erie Co.. 
 as Jleged. if the cause of action stated was one arising ex delicto it must 
 fail, as the evidence shewed that the goods were received from the G.TJl. 
 Co. for carriage under the terms of a special contract contained in the bill 
 of lading and shipping note given by the G.T.R. Co. to the consignors, 
 and if it was a cause of action founded on contract it must al>o fail as 
 the contract under which the good- were received by the G.T.R. Co., pro- 
 vided among other things, that the company would not be liable for the loss 
 of goods bv fire: that goods stored should be at *oIe ri.*k of the owner*: 
 and that the provisions should apply to and for the benefit of e*^ry car 
 Can. Ry. L. Dig.— 6. 
 
82 CARRIERS OF GOODS. 
 
 rier: — ^Held, further, that as to the goods delivered to the companies 
 other than the G.T.R. Co. to be transferred to the Lake Erie Co., the latter 
 company was liable imder the contract for storage; that the goods were 
 in its possession as warehovisemen. and the bills of lading contained no 
 clause, as did those of the G.T.R. Co., giving subsequent carriers the 
 benefit of their provisions; and that as the two Courts below had held 
 that the loss was caused by the negligence of servants of the Lake Erie 
 Co., such finding should not he interfered with: — Held, also, that as to 
 goods canied on a bill of lading issued by the Lake Erie Co., there 
 was ail express provision therein that owners should incur all risk of loss 
 of goods in charge of the company, as warehousemen; and that such con- 
 dition was a reasonable one as the company only undertakes to warehouse 
 goods of necessity and for convenience of shippers. 17 P.R. (Ont.) 224, 
 reversed. 
 
 Lake Erie & Detroit River Ry. Co. v. Sales et al.. 26 Can. SCR. 663. 
 
 [See Richardson v. Can. Pac. Ry. Co., 19 O.R. 469; referred to in 
 Elmsley v. Harrison, 17 P.R. (Ont.)" 725; Hunter v. Boyd, 6 O.L.R. 639; 
 applied Neil v. American Express Co., 20 Que. S.C. 258; approved Laurie 
 V. Can. North, Ry. Co., 21 O.L.R. 178; distinguished Allen v. Can. Pac. Ry. 
 Co., 19 O.L.R. 510, 21 O.L.R. 416.] 
 
 CONNFXTINO LINES DAMAGE TO GoODS ADMISSION AND PROMISES OF 
 
 SERVANTS. 
 
 The consignee of goods carried by two successive carriers has recourse 
 only against the latter for the damaged condition in which they may be 
 delivered upon establishing his negligence. Proof that 50 cases of oranges, 
 out of 200 were damaged when the shipment was transferred from the 
 first to the second carrier raises a. violent presumption that they were in 
 a damaged condition and relieves the second carrier from liability for 
 damages. (2) A transportation comjjany is not bound by the admis- 
 sions or promises of its employees unless it is shewn that those employees 
 were authorized to make such admissions or promises. 
 
 Cote V. Grand Trunk Ry. Co., 28 Que. S.C. 529. 
 
 Goods in bond — Arrival at destixation — Notice to consignees — Pay- 
 ment OF DUTY — Collector's warrant for delivf,ry — Negligence of 
 customs officeir in mislaying warrant. 
 De Toumancourt v. Grand Trunk Ry. Co., 6 E.L.R. 367 (Que.). 
 
 Goods lost in transit — Shipping directions. 
 
 Plaintiffs shipped a number of cases of goods by the Dominion Atlantic 
 Ry. addressed to M. & Co. at Winnipeg, Man., giving directions, by words 
 written across the face of the shipping bill, to "Ship C.P.R." At St. 
 John, N.B., where the system of the Dominion Atlantic Ry. terminated, the 
 goods were handed over to the defendant company, who issued a new 
 shipping bill acknowledging the receipt of the goods from (name blank) 
 in apparent good order and condition, to be forwarded to the consignee 
 subject to terms and conditions set out on the shipping bill, which was 
 stated to be "delivered by the company and accepted by consignor or his 
 agent," as the basis upon which the receipt for the property mentioned 
 was given. Several of the cases having been lost in transit: — Held, affirm- 
 ing the judgment of the trial Judge, that the directions given by plaintius 
 to the Dominion Atlantic Ry. Co. to "Ship C.P.R." constituted the company 
 to which the goods were first delivered, plaintiffs' agents, to enter into a 
 new contract with defendant company at St. .John, and established a privity 
 of contract between plaintiffs and the defendant company, and that the 
 
CARRIERS OF GOODS. S3 
 
 latter campanv was liable dirKtlv to plaintiffs for the loss ©f tie goods 
 vhile In tkeir enstody. 
 
 McKcuie rt al. r. Can. Pac. By. Cou 43 X.S.K. 45± 
 
 Ldotatiox or ijabiijtt — Deuttxt of <:ooos to cosxbctixg ixscs. 
 
 ]>eclaratloB upon a rontraet Uy defendant^ to -tarry ;!ood5 troai St. 
 liary's to Hamilton within a rea^^onable time, alle^ii^ nonperformance. 
 Plea, that the goods were carried upon certain special conditions, pro- 
 ridhig, in substance^ that goods addressed to point.-: beyond defendants' 
 railwaT would be forwarded by public- carrier^, and defendant^r responsi- 
 Mlitr shoold cease <m notice to such carriers that the goods were readr 
 for AcBi; and that defendants should not he responsible for anj damase 
 or detcaftkw afto* said notice, or beyond their limits, nor for ''claims aris- 
 ing firoB delay or detention of any train, whether in starting, or at any 
 station, or in the coarse of the journey." And the defendants alleged that 
 they had no station at Hamilton, and that th<>y conveyed the goods to their 
 nearest station thereto, and handed them over to the Great Western Br. 
 Co^ whidi cooTeyed them to Hamilton. Replication, that the plaintiff sues 
 not only for the neglect and delay in the plea alleged, but for imreaaaBable 
 delay by defendants at Stw Mary's and for neglect to carry from thence 
 to their statimi nearest to Hamilton. Rej<Hnder. repeating the coaditioa!: 
 set oat in the plea, and allying that defendants only agreed to carry on 
 Aose conditions: — Held, on demurrer, that the rejoinder was bad, for not 
 stating any facts to bring defendants within the conditions; and that the 
 pie* was bad for not averring that defendants conveyed the goods to 
 their nearest station to Hamilton, and gave notice to the Great Western 
 Rv. Cou within a reasonalde time. 
 
 Devlin v. Grand Trunt Ry. Co.. 30 U-CQ-B. 537. 
 
 LsoTATiox <w LiABiLrnr — Destbtctios of goods nr tiaxstt — Coxxtcr- 
 
 ISG IXXF8. 
 
 nalntiff's e(HT>espondents in Chicago delivered there to tiie Michigan 
 Southern Ry. Co. certain inerchandi<e. to be transported to Toronto f«»r 
 plaintiff, that company at the time of delivery giving a reeeipt note to the 
 effect that thev had rei<eivcd from plaintiff's correspondents the merchan- 
 dise in qnestion. consigned to plaintiff at Toronto, to be transported over 
 their Kne of road to their terminus, and delivered to the company whose 
 line might be considered a part of the route, to be carried to the place of 
 destination: the Michigan company not to be liable as common carriers for 
 the goods whilst at any of their stations awaitiiv: delivery to the company 
 which was to forward them: and that no company or carrier formin- 
 part of the line over which the freight was to be carried, should he re- 
 sponsible for demurrage or detention at its terminus, or beyond or on any 
 part of the line, arising from any accnmu!aii«jn or over pressure of busi- 
 ness: and that "the c«npany~ should not h.> liable for the destructkm or 
 damage of the freight from any ranse whilst in the depot of the company, 
 or for any loss or damage from -proTidential" causes, or from fire, whilst in 
 transit m- at the stations. There was an arranaemwit between the Michi- 
 gan company and defendants that the latter >hould carry their trei^ht 
 from the terminus of their line to certain points in Canada, and thi- frei»bt 
 arrived in Detroit, the terminus of the Michiaan company, who telegraphed 
 defendants' agent the day before its destruction by fire, that it was in 
 store, and requested them to forward it. Defendants had such an ac- 
 eumulaticm of freight on hand that it wuld not transport it all over their 
 line, and could not therefore receive plaint irs goods, which were destroy«| 
 by fir« at the Michigan companys station in Dttroit, the day after the 
 
84 CARRIERS OF GOODS. 
 
 defendants were advised of tlieir arrival. In an action against defend- 
 ants for the value of the jroods, charging a refusal on their part to receive 
 them: — ^Held, that the plaintiff could not recover, for that under tlie 
 receipt note given by the Michigan company, they became the carriers; but 
 that they only undertook to carry over their own line, and were plaintiff's 
 {igents to deliver over- his merchandise to defendants to be carried to 
 Toronto; but that the arrangement between them and defendants creatcvl 
 no privity between defendants and plaintiff, so as to enable liim to sue 
 defendants for not carrying it out; and that, even if defendants were 
 lK>iind to receive the mercliandise at Detroit, for carriage to Toronto, 
 the evidence shewed that they were not liable for not receiving, owing to 
 the overcrowded state of their premises, and the pressin-e of freight upon 
 them: — Held, also, that plaintiff could not, in any case, recover more 
 than nominal damages, as the value of the goods would not l)e the damages 
 naturally flowing from a breach of contract to carry, in disregard of de- 
 fendants' common-law obligations to do so; for that the loss by fire arose 
 from the omission to insure, and it would by no means follow that, even if 
 defendants had received the property, it miglit not have been on the express 
 condition of exemption from liability in that event: — Held, also, that the 
 condition that "the company" should not be liable for loss from providential 
 causes, or from fire from any cause whatever, etc., applied to the Michigan 
 company alone, and not to defendants also. 
 
 Crawford v. Great Western Ry. Co., 18 U.C.C.P. 510. 
 
 Limitation of liability — Fruit fkozkn in transit. 
 
 S. 20, subs. 4, of the Eailway Act. 18G8. as amended by .'$4 Vict. c. 43, s. 
 .5 (D), is not, by virtue of s. 7 of the latter Act, made applicable to the 
 Great Western Ry. Co.; and therefore that they were not deprived of the 
 protection afforded by one of their special conditions — which stated that 
 fruit was to be carried only at the risl< of the owners, and that tl\ey 
 would not be liable for injury occasioned by frost — although the jury 
 found that the fruit in question, wliicli was being carried by them, became 
 frozen owing to their negligence. 
 
 Scott et al. V. Great Western Ry. Co., 2.3 U.C.C.P. 182. 
 
 Limitation of liability — Goods of cosibustible natvre. 
 
 Defendants received at Petrolia two carloads of coal oil to be carried to 
 London. The shipping notes state<l, "The G.^\^ Ry. will please receive the 
 undermentioned property, to be sent subject to tlieir tariff, and imder the 
 conditions stated aliove and on the other side." one of which conditions 
 was tbat the defendants would not be liable for the loss or damage to goods 
 of a combustible nature. One of the cars never arrived, and defendants 
 could give no account of it; the other reached I..ondon, and was damaged 
 there, as was supposed, and all the oil in it lost: — Held, tliat defendants 
 were liable, for the condition related only to risk of carriage. 
 
 Fitzgerald et al. v. Great Western Ry.'Co., 39 U.C.Q.B. 525. 
 
 Pkrisiiable articles — Loss through unavoidable delay. 
 
 Defendants, an express company, undertook to forward a quantity of 
 fresh fish for plaintiffs from Port ^lulgrave, in the Province of Nova 
 Scotia, to Xew York, and the evidence shewed that defendants spared no 
 effort to have the fish forwarded with all possible despatch, but on account 
 of the journals of the car upon which they were placed heating, the car 
 was delayed at two points, and when the fish arrived at their destination 
 they were spoiled, and that the accident which caused the delay was one 
 which could not have been avoided: — Held, that the trial Judge erred in 
 
CARPJERS OF GOODS. 85 
 
 —J i-*— j-j i *"*^ J°^ questions twdmd on bekmtf of tlie drfoidaiits, 
 '***y". "T^ *^ fiading of the jarj as to viMn tke defeBduts 
 ^ae^^^ol or failed ia their andertakiag, saeh findiag bein^ aaterial t« 
 thedmaMaoftkecase. Tie jnrv fooad ia anewer to tkp obIt ooestioB «ah- 
 ai^ tkai defeadaat eoBpaar did not delhrw the fi^h withia a nm^m 
 able tiae, loatiag: at all the cireumstanees of the «jse:— Heht that the 
 latter fiadiag was against the weight of eridenee and cookl aot stand, aa4 
 tkat tihoe BDst be a new triaL 
 
 Matl^vs T. Caaadian Express Oju 44 X^R. fftf. 
 
 r— "Obkx"— P^ooccnox or smrnxc anxs. 
 
 ■ae i^aiatiff kaovii^ that the d-feadaats soaietiMes deBvered food^ 
 «ilkMi pradnetMH (rf the shif^ia^ hills where not eon^gned to older.* 
 coMigBed certain goods to the -I.C: Coapanj,'' not jet infcorporatcd, and 
 Urn d rtmd a a ts delivered thea to an indiridiial eariyii^ oo boaaess ia 
 **«* — > ""d «t the ostenaUe odke of the eoapaaT,' withoot prodoetioa 
 «f tte hill: — ^Held^ that the defendaats were not liable for misdeliTcrj. 
 TWre is no law in Ontario requiring carriers to take ap shippii^ bills be- 
 fore the delirerr of goods. 
 
 OoaieT T. Can. Pae. Ry. Co., 32 O.R- 258. 
 
 [Affinacd by a Divisional Court, 1 OJUR. MSl] 
 
 'DatawLCTtafs or enoos bt ptbe — Tixmixatiox of tmAXsrr — Vi'jkmEBOvse.- 
 
 Tke drfeadaat eoapanv between the 30th April and the 4th May received 
 goods at Wiaaipf>gr from the plaiatiffs for carriage. The goods were ad- 
 dfCMed to the plaintiffs, in <ome instances. ^Prince Albert.'^ in others 
 "^Priaee Albert via Qn'AppeUe." ia others, -Priace Albert. Oa'AppeUe," in 
 otkcra, *T)acfc Lake. Qa-Appelle,- in other*, "c/o iJeorge Hanvall. Qn'- 
 A^eDe." Of the places named^ only Qn'Appelle was a station on the 
 •wp a ay 's itae. The goods were destroyed by fire ahoat aooa. on the 
 13tk May. Thcj had arrived at Qif Anteile from day to day between the 
 5tt aad aooa of the Ifth May. and were apparently on the same days pot 
 ia tike eompany-'s freight sheds. The plaintiff^s agent at Qn'Appelle was 
 aware earii day of the arrival of the goods: — Held, following Mayer r. 
 6.TJL, 31 U.C.C J*. ±4$. that the company's dnties as eonaon carrion had 
 trawrd before the fire, and that they were liable, if at all. only as ware- 
 
 Wahcrs T. Can. Pae. Ry. Co.. 1 Terr. KR. SS. 
 
 [Doobtcd in Great Western Supply Co. r. Grand Trunk Pacific Ry. Co., 
 19 Cm. Ry. Cas. 347.] 
 
 'Sassccxrrxscf: bt coxsicsee — I>*ABnjTT as wssEawrscxex. 
 
 A railway company ceases to be liable as a carrier, and the transitvs is 
 at an end when tl» consignees refn^e to accept the ?oods. Upon sneh re- 
 fusal the railway conpany became involuntary bailees of the goods, with 
 the duty to the owners of takiag reasonable care of them and delivering 
 than to tlw ownos when required. An aaendmpnt to the record allowiag 
 the i^aintiffs (who had sued tbe defendants as carriers for noadelimy; 
 to daia against the defendants as warehousonen. ordered. 
 
 Fraakd t. Grand Trunk Ry. Co.. 2 Can. Ry. Cas. 13*. 
 
 [Beiened ia part in 33 Can. S.C.R. 115, 2 Can. Ry. Cas. 155.] 
 
 XOXACCBPTAXCK BT COXSIGXEE — ^LlABnJTT AS WABEHOCSEMKX — ^LlABIUTT 
 FOB GB06S XEGUGEXCE. 
 
 F. Bro&, dealers in scrap iron at TorootOi for some lime prior to and 
 
86 CARRIERS OF GOODS. 
 
 after 1897 had sold iron to a Rolling Mills Co. at Sunnyside in Toronto 
 West. The G.T.R. had no station at Sunnyside, the nearest being at 
 Swansea, a mile further west, but the Rolling Mills Co. had a siding capa- 
 ble of holding three or four ears. In 18!»7 F. Bros, instructed the G.T.R. 
 Co. to deliver all cars addressed to their -order at Swansea or Sunnyside 
 to the Rolling Mills Co., and in October, 1899, they had a contract to sell 
 certain quantities of different kinds of iron to the company and shipped 
 to them at various times up to January 2nd, 1900, five cars, one addressed 
 to the company and the others to themselves at Sunnyside. On January 
 10th the company notified F. Bros, that previous shipment had contained 
 iron not suitable for their liusiness and not of the kind contracted for and 
 refused to accept more luitil a new arrangement was made, and about the 
 middle of January they refused to accept part of the five cars and the 
 remainder before the end of January. On February 4th the cars were 
 placed on a siding to be out of the way and were there frozen in. On 
 February 0th F. Bros, were notified that the cars were there subject to 
 their orders and two days later F., one of the firm, went to Swansea arid 
 met the company's manager. They could not get at the cars where they 
 were and F. arranged with the station agent to have them placed on the 
 company's siding and he would have what the company would accept taken 
 to the mills in teams. The cars could not be moved until the end of April 
 when the price of the iron had fallen, and F. Bros, would not accept 
 Ihem, but after considerable correspondence and negotiation they took them 
 away in the following October and brought an action against the G.T.R. 
 Co. foiuided on the failure to deliver the ears. It appeared that in previous 
 .shipments the cars were usually forwarded to the rolling mills on receipt 
 of an order therefor from the company but sometimes they were sent with- 
 out instructions, and on February 3rd the station agent had written to 
 V. Bros, that the cars were at Swansea and would be sent do^vn to the 
 roiling mills: — Held, affirming the judgment of the Court of Appeal, that 
 the Rolling Mills Co. were consignees of all the cars and that they had 
 the right to reject them at Swansea if not according to contract. Having 
 exercised such right the railway company were not liable as carriers, the 
 transitus having come to an end at Swansea by refusal of the company 
 to receive them. T\\e Court of Appeal, while relieving the railway com- 
 pany from liability as carriers, held them liable as warehousemen and 
 ordered a reference to ascertain the damages on that head. Held, reversing 
 sudi decision. Mills, J., dissenting, that the action was not brought against 
 the railwaj- company as warehousemen, and as they could only be liable 
 as such for gross negligence and the question of negligence had never been 
 raised nor tried, the action must be dismissed in toto, with reservation of 
 the right of F. Bros, to bring a further action should they see fit. 
 
 Grand Trunk Ry. Co. v. Frankel. 2 Can. Ry. Cas. l."),-). 33 Can. S.C.R. 115. 
 
 [Followed in Swale v. Can. Pac. Ry. Co., 10 Can. Ry. Cas. 363.] 
 
 LlMIT.\TION OF LIABILITY LIABILITY BEYOND INITIAL CARRIER'S LINE. 
 
 In 1874, the plaintiff, at Toronto agreed with the defendants to for- 
 ward all his goods for the season of 1874, via the defendants' railway and 
 ]>ake Superior Line of steamers to Dulutli, and thence to Fort Garry, the 
 defen<lants to forward the goods from Toronto to Duluth at 75 cts. per 
 100 lbs., and the rate from Duluth to Fort Garry to l)e $2.90 per 100 lbs., 
 subject to changes of tarift" of the Northern Pacific Ry., and Kitson's line 
 of Red River steamers. The goods in question were shipped by plaintifl" 
 under a shipping note, addressed to himself at Fort Garry, "G.G. Allen, 
 C.O.D.," subject to the following amongst other conditions: That when 
 goods are addressed to consignees beyond the places of the company's sta- 
 
CABRIERS OF GOODS. 87 
 
 tkma, ttef will be forwarded 1m- puUie carriei^ or othervi^. as oppor- 
 tamtjr atty <^er. ic.z hat that the deliverr by the eompuij will be 
 eoBiplete, and their respoiisibility oease when saeh carriers ha^i lecvirwl 
 ■otiee that the rampany is prepared to deliver to them the ^oods for 
 ful^n- coBTeyance: and they will not be respoDsible for any daraa^ or 
 drteatioa, Ae^ aft«r such notice, or beyond their limits. The goods were 
 earned bjr defoidants to CoUingwood, and thence by the Lake Superior 
 steamers to Dnhitli, where they were delivered to the' X J».R. Co. and car- 
 ried by them and K-'s steamers to Fart Garry, and there delivered to G.G. 
 Allen, bat without the pajmoit of the price. The plaintiff then made 
 a daim against defeadaats for sodi delivery without pavnwnt. and » 
 opened his case at tiw trial, but on its appearing that paymat wa> to 
 be made to the express company, and on the plaintiff stating that his claim 
 was for the delivery without his order «• endoraemait of tl^ shipping note, 
 his claim was rested on this ground: — Held, that plaintiff could not re- 
 cover, for that the defendants' eontract was only to carry to Dulnth. and 
 on the delivery there to the N.P.R- Co.. their" liabilitr was at an «id- 
 ScmUe, that even if defendants' eontract extnded to F<nt Garry, there 
 would be no liability, for the evidoice shewed that it was never intended 
 that the goods should not be given ap except on a formal «dn- by the 
 plaintiff or endorsement of the shipping bilL 
 Rennie v. Xorthem Ry. Co.. 27 U-CCP. 153. 
 
 LoirrATTOx <w^ LiABiurr — Leabiutt BEToyD nmxM, uxe — XoncE ok 
 coxDmox. 
 
 The plaintiff signed a paper requesting the defendants to forward certain 
 goods received from faim at Toronto, to Indianapolis, in Indiana, '^subject to 
 their tariff and under the conditions stated on the other side." On the 
 other side, headed ~<leneral notices and conditions of carriage,'' the com- 
 pany ~gave public notice." that in certain events specified they would not 
 be responsible. The tenth paragraph, after stating the course whir-h would 
 be pursued by them with respect to goods addressed to consignees resident 
 beyond the places at which defendants had stations, proceeded. ~and the 
 company herel«y further give notice, that they will not be responsible for 
 any loss, damage, or detention.*' to goods bey<Nid their limits. It was fmind 
 by the jury that all the goods had been delivered by defendants to a rail- 
 way connecting at Detroit with their line and runnii^ to Indianapolis: — 
 Held, that the latto* part of the •entente could not he regarded as a notice 
 as distinguished from a condition: and that, whether a notice or a condi- 
 ti<», it formed part of a speeial contract on which defendants received the 
 goods, and by which they were exempted from liability. The plaintiff wjis 
 at Indianapolis whoi the goods (except the missing box sued fori arrived 
 there, and remained until some time in the month following: — Held, that 
 he was resident there within the condition, and having named himself as 
 file consignee at that place, he was estopped from denying such residence. 
 
 L* Pointe t. Grand Trunk Ry. Co., 26 CCQ-B. 479. 
 
 LntTTATIOX OF tXAEIUTT XOTICE OF O-MMS SltMUDtC GOO»S FEXDIXG 
 
 TlAXSFfX TO C0XXECTE5G IXXES. 
 
 Defendants on the 5tli of October. 1874. received goods at ilontreal for 
 the plaintiff, addressed to the plaintiffs at Peterborough, "hf the Grand 
 Trunk Bj. Co. to Port Hope, thence by the Midland Ry." One of the 
 eonditHma on whidi the defendants received the goods was, that no claim 
 ftw damages to. Ion of, or detention of goods, should be allowed "hpiless 
 ■otiee in writiBg, and the partieulars of the claim for said low, damage, 
 I, are give* to the station freight agent at the pinee of drfiv- 
 
88 CARRIERS OF GOODS. 
 
 ery within thirty-six hours after the goods in respect of which the said 
 claim is made, are delivered." The goods got to Port Hope on tlie 8th ot 
 October, but by some mistake one case was not given by the defendants 
 to the Midland Ry. till the 9th of November, and the plaintiffs were ad- 
 vised of its arrival at Peterborough on the 11th. On the 12th the plain- 
 tiffs wrote to the defendants' agent at Montreal, and to the station agenl 
 of the Midland Ey. at Peterborough, tliat they had lieen advised 
 of its arrival but that they refused to accept it, because the delay had 
 been most unreasonable, they had suffered loss through the detention, 
 and had been compelled to reorder goods; and they required the defend- 
 ants to compensate them for the loss sustained, and tlie value of the pack- 
 age. Held, that these letters were not a compliance with the condition: — 
 Held, also, that the "place of delivery," mentioned in the condition above 
 stated, was Peterborough, the place of delivery to the plaintift's, not Port 
 Hope, where the goods were to be delivered to the Midland Ry.; and that 
 such notice should be given to the station freiglit agent at Peterborough, 
 who would be the person agreed upon to receive it: — Held, also, that 
 such notice was required, though the place of delivery was off the defb.id- 
 ants' line: — Held, also, that the defendants were under no obligation to give 
 notice of the delivery of the goods by them to the Midland Ry. Another 
 condition was, that goods addressed to places beyond the defendants' line, 
 and respecting which no direction to the contrary should have been re- 
 ceived would be forwarded by the defendants as opportunity might offer, by 
 public carriers or otherwise, or might be suffered to remain in the defend- 
 ants' warehouse, at the risk of the owner; but that the delivery by the 
 defendants should be considered complete, and their responsibility cease, 
 when the other carriers shoiild have received notice that the defendants 
 were prepared to deliver the goods to them; and that the defendants would 
 not be responsible for any loss or detention after arrival at their station 
 nearest the place of consignment. The third count alleged that the goods 
 were delivered to the defendants to be carried from Montreal to Peterlror- 
 ough, subject to this condition (setting it out), amongst others, and 
 averred that the defendants did not forward the goods to Peterborough 
 within a reasonable time, but on the contrary detained them at Port Hope 
 in their warehouse: — Held, that defendants were charged as carriers, and 
 were so acting, not as warehousemen. 
 
 Mason et al. v. Grand Trunk Ry. Co., 37 U.C.Q.B. 163. 
 
 LrwiTATION OF LIABIILTT — NOTICE OF CLAIMS — WHARFINGER NOT FREIGHT 
 AGENT. 
 
 One condition required the plaintiffs to give notice in writing of their 
 claim to the defendants' station freight agent within twenty-four hours 
 after the delivery of the goods. It appeared that Halifax, the place to 
 which the goods were sent, was beyond the limits of defendants' railway, 
 and Avhere they had no station, but tliat all freight carried over their rail- 
 way for delivery there, was transmitted to one B., a wharfinger, who re- 
 ceived the same as he did the goods of other persons, making for his own 
 benefit a special charge thereon: — Held, that B. was not a station freight 
 agent within the meaning of the condition. 
 
 Fitzgerald et al. v. Grand Trunk Ey. Co., 28 U.C.C.P. 587. 
 
 [See Fraser et al. v. Grand Trunk Ry. Co., 26 U.C.Q.B. 488; Gordon et 
 al. V. Great Western Ry, Co., 25 U.C.C.P 488; Smith v. Grand Trunk Ry. 
 Co., 35 U.C.Q.B. 547.] 
 
 Limitation of liability — Shipment of glass and china — ^Validity of 
 stipulation. 
 Defendants received certain plate glass to be carried for the plaintiff, 
 
CAKRIERS OF GOODS. 89 
 
 ^^ «g»ed * P*P«". P"tlT written and pturthr printed, rvqaesti^ tlea to 
 rame it nptm tke coBditkms emdoraed, vliidi pronded that tfcey maaU 
 ■at be icspowabfe f«- daBage done to mx dUna, gliM, etc., delirend to 
 them for carria^; and defendants gare a receipt with the saae coaditaoBs 
 upon it: — Heli that such delircxr and aeceptaace formed a special «m- 
 toaet, which was \«Iid at etHnmon law, and exoqttcd defendants from in- 
 jury to the goods, even thoa^ caused bv gross n e g ii g e nce . 
 
 HamHton t. Grand Trunk Rr. Co.. 23 U.C.Q.B. «00. 
 
 [Fallowed in Spettigoe t. Great Western Rt. Co., 15 U.C.C.P. 315. and 
 Bates T. Great Western Et. Co., 24 U.C.Q.B. ->«. Rnarks as to the 
 UBt e mitji and justice of le^latire redT«&s in 5iieh cases. Bates t. Greai 
 Westeni Rt. Co.. 24 U.C.Q.B. 544.] 
 
 IJMTTATTOX op OABaJTT StaI L I OK T KBGCUiTIOX. 
 
 Sofas. 4, & 20. of the Railway Act of 186S, does not extotd to all eases 
 Mi wiick ne^igence is diarged against the railwaj eompanr, bat to 
 cases amtf of neglect craning within the proiisiotts of sabs. 2.' 3. Ther 
 are not pnrmted therefore from stipulating for a limited tiabiUtj in 
 other cases. 
 
 Scarlett t. Great Western Rt. Co., 41 U.C.Q.B. 211. 
 
 Lncrr&Tiox of liabiutt — ^Stattttost kecclatiox or. 
 
 Sabs. 4. of s. 20. of the Railway Att. 186S. gives an aetian against 
 certain railway companies for neglect to carry ;»ood£. etc., bat the Act 
 does not apply to tbe Great Western Ry. Co_ tbe defendants. By s. 5 
 of 34 Vict. c. 43 (D. <. this 5ab?«-tion "L? herebr amended by addins 
 thereto the following words: 'From which aetian the conpany ^all bm 
 be relieTed by any notice, condition, or de<-laratioa. if tbe damage arises 
 from any negligence or cmij^ion of the company or of its servants* ~ : and 
 by s. 7. "The proTisions of this Act" are made applieaUe to every rail- 
 way company: — Held, that the subsection of the earlier Act, as thas 
 amended, did not apply to defendants: but that the effect of the later 
 Act was merely to add the newlr ena<ficd words to the subsection, and 
 "The provisions of this Aet.~ therefore did not include the amendment. 
 To a declaration for breach of contract to carry goods within a time 
 agreed on. or within a reasonable time, from G. to B., defendants pleaded 
 setting up a special condition of the contract, that defendants ''shoold 
 not be liable under any circumstances for loss of market or other claims 
 arising from delay or detention of any train, whether at starting for anv 
 of the stations, or in the coarse of the joumer, nor for damages occa- 
 aoned by delays fnnn storms,'' etc. Replication, that the damages sued 
 for arose from n^digence and omission of the defendants and their serv- 
 ants within the Railway Act of 1$^. s. 20. subs. 4. as amended br 34 
 YicL e. 43, s. 5, (D.) in this, that tbe car in which the goods were placed 
 was ne^igently allowed to remain at a -station miattached to any train. 
 and was negligently attached to a train on a different Iwanch of defend- 
 ants* raflway from that between G. and 6.. and was carried thereon to 
 W., at a distance from B., and allowed to remain there a long time: — 
 Held, on demurrer, replication bad. for it was not a traverse oi the plea, 
 bat the allegation of ne^lisence was dependent upon tbe previons refer- 
 ence to and reliance on the statute. Quaere, whether the replication of 
 negligence alone woold have been an answer to the plea, indepoident of 
 t^ statute. 
 
 Alien T. Great Western Ry. Co.. 33 U.C.Q.B. 4S3. 
 
 I<naTATiox Of LiABUJTT — ^Texmexatiox or UABurrr rrox xoncs to 
 
 CO^StXmSG UXE5. 
 
 The declaration eharsed defendants, in th# first eoost, on a eontraet 
 
90 CAKRIEKS OF GOODS. 
 
 to carry certain wool from Cobourg to Boston within a reasonable time, 
 subject to certain conditions endorsed on a receipt given by defendants — 
 amongst others, that defendants should not be responsible for damages 
 occasioned by delays from storms, accidents, or unavoidable causes — and 
 alleging as a breach the neglect to carry. In the second count the contract 
 was stated to be to carry within a reasona))le time, and so that the wool 
 should be imported into the United States before the 17th of Marcli, when 
 the Reciprocity Treaty would expire. Breach, that defendants did not so 
 carry, by which the plaintills were disabled from importing the wool into 
 the States unless upon payment of duties. As to the first count, it ap- 
 peared by the defendants' receipt, put in by the plaintiffs, that there was 
 an additional condition, that as to goods addressed to consignees resident 
 i)eyond the places where defendants had stations (as these goods were), 
 defendants' responsibility should cease upon their giving notice to the 
 carriers onward, that they were prepared to deliver tlie goods to them for 
 further transport: — Held, a substantial qualification of the contract de- 
 clared on, which therefore was not proved as alleged. As to the seconil 
 count, the same receipt applied, which named no daj' for carriage into 
 the United States, but there was verbal evidence of an agreement to for- 
 ward by the 17th March: — Held, that though tliis term might thus be 
 added to the written contract, it would not dispense witli the condition 
 above mentioned, which shewed a substantial variance from the contract 
 declared on. The plaintiffs, therefore, were held not entitled to recover 
 on either count. 
 
 Fraser v. Grand Trunk By. Co., 26 U.C.Q.B. 488. 
 
 Yards and warehouses — Graix elevator — Liability for grain destroyed 
 
 BY FIRK. 
 
 Defendants undertook to carry for plaintiffs a quantity of oats to T., 
 Mhich they did, delivering tliem at an elevator there belonging to S., who 
 received them to hold for plaintiffs. Of the quantity thus delivered plain- 
 tiffs received part before the elevator was destroyed by fire, as it sub- 
 sequently was. Tliere was a very large amomit of grain besides the plain- 
 tiffs' in the elevator at tlie time of its destruction, most of which settled 
 down in a conical mass on the wharf on which the building stood, the 
 remainder falling into the water. Plaintiffs desired to remove what re- 
 mained of their grain, alleging that they cotild select it from the general 
 mass, from their knowledge of the portion of the building in which it had 
 been stored; but defendants, who were the bailees of the greater part, 
 assumed charge of tlie whole for the benefit of all, and refused to allow 
 plaintiffs to do so, stating that it would he sold for the general benefit, 
 which it accordingly was, wlien the plaintiffs' share of the proceeds was 
 found to amount to only about $28: — Held, that plaintiffs could main- 
 tain trover against defendants in respect of their grain so disposed of 
 by defendants, inasmuch as the latter had no control over it, and ought 
 not to have prevented plaintiffs from removing it if they could find it: — 
 Held, also, that this was a case in which no greater than the actual 
 damages sustained should have been assessed; and, the jury having award- 
 ed excessive damages, the Court ordered a new trial, unless plaintiffs 
 would reduce their verdict to a sum named. 
 
 Moffatt et al. v. Grand Trunk By. Co., 1;) U.C.C.P. 392. 
 
 Loss WHILE IN possession OP INTERMEDIATE CARRIER — ^LAKE AND RAIL 
 
 ROUTES — Through route. 
 An action to recover damages for nondelivery of a carload of tools lost 
 in transit by the wrecking, on Lake Superior, of a steamship of the 
 
CAKRIEES OF GOODS. 91 
 
 KortkoB Xari«atioii Ca. The goods wen ahipiwd from K«lr.l»v, Palk 
 IB a. CuaduD Pati6c Kt. C^/s c»r, and Canadian Xoitlien Ry. Co. to 
 Port Arthur, placed on board the steamship for transportation to Point 
 Edward, then<# via Grand Trunk Rv. for delirerr to the plainiifTs at Si- 
 Catharines :—H#hL reverdng the trial Judg«>. and affiiTJug the Court of 
 JkppeaL that the defendants eontrarted only to deliver the "oods at P.^rx 
 Artkor to the Northern Navigation Co, vUA they did, and were, there- 
 fore, not liable for nondelivery. 
 
 Jend^cs Maehine Co. t. Can. Xonbera Rv. Co., 11 Cmn, Rv Caa. 440 
 14 O.W.R. 307. " ■ 
 
 [Distinguished in Laurie t. Can. Northern Ry. Co.. 21 OJLR. 178.] 
 
 IXJOre to PEUSH.VBUE: COOIkS BT DH^T CoXSiXTIXG LDSE — ^PMrTTT 
 
 FOKEIGX COSTtACT. 
 
 A carload of pineapples purdiased by the plaintiffs ia New York was 
 eon^igncd by the vendors to the plaintiils at Ottawa, on the 22nd June. 
 The goods were delivered to the New York Central R, R. Co.. and the 
 rome specified w»s by the defendants' railway, wbieh connected with the 
 New York Central line. The fruit did not arrive at Ottawa until the 
 35th June, which was a Saturday, and no notice of its arrival was given 
 to the plaintiffs until the morning of the 27th. The fruit was thai badly 
 daanged by heatii^; a substantial portion of the injury took place between 
 SaturdaT afternoon and Monday morning, and some injury during the 
 journey: the delay in the journey took place partly upon the New York 
 Central line, and partly upon the defendants' I'lne: — Held, RiddelL J.. 
 dnlntaBte, that the defendants were liable for the deterioration of the 
 fruit. Judgment of the County Court of the comity of Carleton reversed. 
 Per Boyd. C: The defendants received the fruit either as common carriers 
 or as under a new contract conformable to the terms of the original car- 
 riers' bill of lading, and in eith^' a^qiect were liable for negligence in 
 handling the car or in the lack of dtw diligence in giving notice of its 
 arrivaL The goods were manifestly of a pcrishaUe diaracter. and called 
 for reastmable diligence in giving notice of their arrival: till such notice 
 was given, the defendants were liable as carriers. Per Ikliddleton. J.: 
 The contract made with the initial carrier, applicable to the whole jour- 
 ney, defines the terms upon whi^ the subiaequent carrier undertake^ to 
 carry, and mn^ he deemed to he the c«>n tract between the parties: if it 
 ■men otherwise, the defendants, when they undertook the carriage of the 
 goods, received them as common carriers, and there was no restriction up- 
 on their common-law liability. The liability of the defendants, acvordini: 
 to daose 3 of the United States form of contract, under which the gooil^ 
 «a« shipped, was that of carriers tmtil the expiry of 4$ hours after 
 ■otiee that the goods woe ready for delivery: and. apart from (in?i3r*<^. 
 tte goods being of a perishable nature, it was the defendants' oIhiv i.> e:vr- 
 Botiee ^wnptlv. and their liability a^ carrier-^ continued while tli.tt d:nv 
 remained imdischarged. [Corby v.Grand Trunk Ry. Co., « O.W.R. SI. 49± 
 approved and followed.j 
 
 Corby r. Grand Trunk Bj. Co., 12 Cin. Ry. Cas. 4»4. 23 n.LR. 31*. 
 
 IjAHUTT F«Mt LOSS OT GOODS GoODS UIDKX BV gHIPPf* OX CAB O.V JHOtXC. 
 
 The HabilitT of common carriers under Art. 1674 C.C. Que. begins only 
 from the time of delirery of the goods, and when a shipper, for his own 
 conrenienee, puts than himself on board the ears of a railway companv. 
 on a odb^ near his wardionse. the delivery to the company takes place 
 when it seals the ears, or otherwise takes charge of them, and hands th«- 
 diipper a bill of lading. It incurs no liability for loss from pilfering. ete_ 
 that occurs before that. 
 
 Spedding v. Grand Trunk Ry. Co_ 13 Can. Ry. Cas. 4<, 40 Que S.C 463. 
 
92 CARRIERS OF GOODS. 
 
 Provision in biix of lading for protexttig goods against frost — Con- 
 necting CARRIER. 
 
 Where, under a bill of lading wliich required protection of goods from 
 frost, a carrier has had possession, for an unreasonably long time during 
 very cold weather, of a consignment of figs, which were found to be frozen 
 upon arrival at tlieir destination, a prima facie case of negligence on the 
 part of that carrier is established which casts the onus upon it, in order 
 to escape liability of shewing that the consignment was in a damaged 
 condition when received from the connecting carrier, x 
 
 Albo V. Great Northern Ry. Co. (B.C.), 14 Can. Ry. Gas. 82, 2 D.L.R. 
 290. 
 
 Unreasonable delay in delivering goods by connecting cabrieb. 
 
 Where it appears that the climate at the point of shipment precludes 
 the frosting of a consignment of figs at the time of their delivery to an 
 initial carrier, and that a connecting carrier had possession of them for 
 an unreasonably long time in very cold weather without offering any 
 acceptable explanation for the delay, a strong presumption arises that if 
 they were damaged by frost it was while in the latter's possession. 
 
 Albo V. Great Northern Ry. Co. (B.C.), 14 Can. Ry. Cas. 82, 2 D.L.R. 
 290. 
 
 Consignee refusing to accept delivery. 
 
 A consignee is justified in refusing to accept a consignment of figs, 
 which, through the negligence of the carrier, were frozen in transit. 
 
 Albo V. Great Northern Ry. Co. (B.C.), 14 Can. Ry. Cas. 82, 2 D.L.R. 
 290. 
 
 Damage — Payment of part — Effect. 
 
 The payment by a common carrier of damages for injuries to a portion 
 of a consignment of goods is. not an admission of liability in respect to 
 other portions thereof. (Per Irving. J.A. ) 
 
 [Hennell v. Davies, [1893] 1 Q.B. 367, followed.] 
 
 Albo v. Great Northern Ry. Co. (B.C.), 14 Can. Ry. Cas. 82, 2 D.L.R. 
 290. 
 
 Bill of lading — Assignment of. 
 
 The declaration alleged that the plaintiff by his agents delivered to the 
 defendants 8,000 bushels of his corn, to be carried from Chicago to Strat- 
 ford, &c., and to be delivered to the Bank of Montreal or their assigns; 
 that the bank assigned the corn to the plaintiff, yet that defendants 
 neglected for an unreasonable time to carry and deliver it, whereby the 
 plaintiff lost a market and was afterwards obliged to sell for a less price 
 than he would otherwise have done. It appeared that the corn was 
 shipped by M. & Co., "as agents and forwarders," on account of whom it 
 might concern, to be delivered to the Bank of Montreal or their assigns, 
 and the bill of lading was endorsed by the agent of the bank to the plain- 
 tiff, with whom the defendants treated as the owner, and delivered it to 
 him after some delay caused by a charge made and afterwards remitted 
 by them. It was objected that the consignor or consignee could only sue 
 upon this contract, not the plaintiff; that the bank could not assign to 
 him; and if they could, the right of action would not pass. There was no 
 evidence to shew what interest the bank had in the corn: — Held, there 
 being no plea denying plaintiff's property in the corn, that he was admitted 
 to have been the owner when it was shipped; that the bill of lading did 
 not transfer the property to the bank, in whom no otlier right was shewn; 
 
CARRTF.RS OF GOOD:>, 93 
 
 tihat tiar caionc^at vas tlwrciMe mBe<c«i«uT. aad tkai W ws em- 
 ifOtd to ■■JatiiB the action SeatUe. howfnr^ tint ii ke had fira ar- 
 5purcd las title bjr siKJi f do ra eft. ke aufiht kaw saed deffcsdaats for 
 aar mgUg i MM occvrriap after they had reeagjuzcd hiai as oner. 
 Kyle V. Boffala 4 Lake Hnnw Rr. Co.^ 16 U.CXJP. 7«. 
 
 Box. or t^kMSfi — TmnrcH bate — Purfrr or coxiBjkCE. 
 
 Plaiatifa hoo^t tventr-ioar Inks of eottoa ia Cuaenaaati. throsga 
 their a^«t B., vho delirend it there to the C JH. 4 D. Rt. l o. The ImII 
 of ladii^ ooataiaed a bcadia^ ~aiBtiaet f«- a throo^ laie." Uadtr the 
 -OMial headiag of the C.H. 4 D. Ry. Col. it stated that the toctoa was 
 forwarded hnr B.. awl that the jhipfkia^ asartLS wne: "G. 4 31.— for Gofdoa, 
 MarKar 4 Cou Thorold. Oat- ria Detroit 4 C;AV.Rt,'^ aad ia the anrgia 
 
 vnnv added the anmfe, -ThnM^ at 4«)lt. per lOM Ih^ 4e_ to D. via ." 
 
 The cottoB was ddivised without iaAractioBS €» d<- frndinn r at D_ br the 
 tf»trr 9l m. Dae eoaaectia^ with the CB. 4 D. Ry. Cou aad was Iwaed 
 while ia tiaasit oa deHeadaatar liae to T.: — Udd. that the bill of ladiag 
 shewed a coattact with the CJH. 4 D. Rr. Co. for a throng rate to T_ 
 aad therefore that defeadaats were aot liable to the pfaiiatitfs. Ihe aoa- 
 sait was iliiid- 
 
 Gotdoa et aL V. Great Western Bx. Co., 34 U-CQ^R 224. 
 
 [Bat. see the aext case.] 
 
 Bux or L&M3;« — THaoccH bate — Pbitttt or costkact. 
 
 The plaiatiffs boi^ht tweatr-fonr hale^ of eottoa ia Ciaeiaaati. thra^A 
 lAcir a^cat^ Bw who detivend* it there to tfe CJI. 4 D. Ry. Co. The bill 
 of fa^'lg *™t»lm;«g a headiaf. ~l^c«mtra<t for thnN^ rate." Uadrr the 
 geaeral headi^ of C.H. 4 U. Ry. it ^asM that the eottoa was forwarded 
 by BL, aad that the shipping auirks were -i;. 4 M — ftir Gordoa 4 MacKay 
 4 Cbu, Thondd, Oat. ria Detroit aad G-W-Ry." aad ia the aaai]^ was 
 
 added the wtwds: -Thioo^ at forty cents per 100 Ih&, at p. banreL 
 
 To Setrmt. ria. .~ The coaditioas eaduMwd exeeptcd that laibvad. 
 
 aad the boats aad railroads with which it eoaaected. fma hks$ by fiie. 
 Tk rrideacev however, shewed that the fnn;^t payable aader the bill of 
 ladi^ was aot ia fact a throng freight to ThoroM. but oaly cxteaded to 
 Detroit, there bei^ a spodal coairaet becweea the plaiatiffs aad the 
 drfradaatu as to the freif fat froa Detroit to Thorold, aader which the 
 goo& wese carried, aad which coataiaed ao cseaiptioa froai fire. It 
 appeared ako fioai certaia letter^ writtea W the defoadaats after the los 
 that they did aot coasidcr themselres exeaipt nader the ori^jaal eoatract. 
 The foods hariap bcea destroyed by fire while ia traasit oa the driendaats' 
 liae to Thorold: — Sdd, that the defeadaats were liable to the plaiatitfs 
 for the eoatiaet with the C.H. 4 D. Ry. Cou did aot esctead to theat. bat 
 protected oaly the coaipaaies carryias as far a* Detrftit. 
 
 Goidoa et aL T. Great Westera Ry. Co_ ±5 U-C.i-P. +**•- 
 
 EteUTEXT TO CAKBIEac. 
 
 Ia the afasrace of direct erideare the coateats of a box of miliianr sup- 
 pliers was saflk-ieatly ^mwb ia aa acidoa br the Crowa a«ain«t a railway 
 eoaipaay for its lo». by the tcstiaaouy of the officer ia charge of the «ip- 
 ^cs. that he selected' theaa from the ^eaeral stores and taraed then 
 orer to a petwa of excelleat character, whose duty it was to box aad ship 
 th^ aad that the latter deiirered a hcary box to the railway cvaapaay. 
 which leeeiptod fo- it, aad that such persoa coold aot be produced at 
 the trial, aa his term of caliitaMBt had expired^ aad his wbenaboats was 
 aakaowB. 
 
 Rex T. Cam. Pae. Ry. Co. (Alta-1, 14 Caa. Ry. Oas. *T0. i D.UL 17«. 
 
94 CAKIUEKS OF GOODS. 
 
 SUIPMENT OF I'EBISIIABLE GOODS IS BOX CAB. 
 
 Where butter is shipped in a box ear and the weather is such that a 
 refrigerator oar is necessary to keep it in good condition, and the plain- 
 tiff's agents, the consignees, caused a delay in delivery by failing to pay 
 the freight charges, the defendants are not liable for injury to the butter 
 where an unreasonable time is not occupied in making delivery. 
 
 Lessard v. Can. Pac. Ey. Co. (Alta.), 14 Can. Ry. Cas. 277, 7 D.L.R. «J01. 
 
 Refusal to acxjept shipment. 
 
 Where a shipper entrusted goods to a carrier for delivery to a consignee 
 and the consignee refuses to accept the goods and on being informed there- 
 of by the carrier, the shipper acquiesces in such refusal and instructs the 
 carrier to return the goods imme<liately, the carrier is responsible for the 
 value of such goods if he tleliver them to another party, even if he does 
 so on the consignee's order presented by a third party who holds himself 
 out as the shipper's agent. 
 
 Zimmerman v. Can. Pac. Ey. Co., 8 D.L.R. i)l)0, 15 Can. Ry. Cas. 78, 43 
 Que. S. C. 2!)7. 
 
 COXNECTIXG CARBIERS — ^LIABILITY. 
 
 In the case of a shipment forwarded to its destination by different 
 successive carriers, each one is liable only for his handling of it, and is 
 in no wise the warrantor of the others. Hence, if it arrives in a damaged 
 condition, the consignee or owner lias no action against the last carrier, 
 unless the latter have, himself, by neglect or otherwise, caused the dam- 
 a*''e. 
 
 McCready v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 179, 43 Que. S.C. 
 160. 
 
 Injury to pkbisiiable goods by delay in TitAXsroKXATiox axu want of 
 
 VENTILATION IN CAB. 
 
 Vernon Fruit Co. v. Can. Pac. Ry. Co., 12 W.L.R. 445 (Sask.). 
 
 Damages — Loss of goods by carrier — Texder of lost articles — Nom- 
 inal OR substantial damages. 
 
 Action for the value of 50 kegs of butter delivered by plaintiff to de- 
 fendants to carry from G. to T. Defendants relied upon a tender of the 
 butter to plaintifT, as preventing the recovery of more than nominal dam- 
 ages. The tender was made in writing by defendants' solicitor, two days 
 In^fore the Assizes, offering for plaintiff's acceptance the 50 kegs of butter, 
 wliicli had been sold by plaintiff to M., and for which M. had recovered 
 against the plaintiff, stating same to be at T. at plaintiff's own risk: — 
 Held, wholly illusory, and not to partake of any of the incidents of a 
 legal tender, and that plaintiif was entitled to recover the full value of 
 the property. 
 
 Brill v. Grand Trunk Ry. Co., 20 U.C.C.P. 440. 
 
 Damages — Negligence in carriage of goods — Nominal or substantiai. 
 damages. 
 
 In an action for not carrying goods safely, whereby they were lost, 
 issues in fact were left to a jury, reserving the question of nominal or 
 substantial damages for the opinion of the Court: — Held, that the only 
 question for the Court was, whether the plaintiff should be limited to 
 nominal damages, or recover the actual value of his goods; and that the 
 question of mitigating the damages upon the facts proved, could not be 
 considered. 
 
 Robson V. Buffalo & Lake Huron Ry. Co., 10 U.C.C.P. 279. 
 
CARRIERS OF GOODS. 05 
 
 FkAUD AJSD DECEIT — ^MlSBEPEESESTATION OF KATES. 
 
 Certain b*rs and bundles of iron came by ship from Glasgow to Mon- 
 treal, eonsigned to the plaintiff. His agent gave to defendants' agent an 
 order to get them from the diip, and afterwards receired from the latter 
 a receipt, specifying the number of bars and bundles and the gros-s weight, 
 but with a printed notice at the top of it. that "rates and weight entered 
 io receipt or shipping bills will not be acknowledged.'' All the iron re- 
 eeiTed by defendants for the plaintiff was delivered at Gnelph. but there 
 was a very considerable deficiency in the weight. So far as appeared, the 
 iron had not been weighed either on being taken from the ship, or after- 
 wards: — ^Held, that defendants were not e>topped by their statement of 
 weight in the receipt, and were not liable to the plaintiffs. 
 
 Honeman r. Grand Trunk Bv. Co., 31 Q.B. 533. in appeal from 30 
 D.C.Q.B. 130. 
 
 LntlTATIOX OF tXABnJTT LIABILITY BETOXB rSTTIAI. CASBIEX'S LCHL 
 
 Defendants were charged with negligence and delay in the carriage of 
 certain furs belonging to the plaintiff, from Toronto to 2vew York, in pur- 
 soanoe of tlieir contract. Defendants' railway extended only to the Sus- 
 pension Bridge, and it appeared that the goods were delivered to them, 
 addressed to R„ at New York, and a receipt given, which specified that 
 they were received to be forwarded to such address, subject to their tariff, 
 rules and regulations. In these conditions it was stated that when goods 
 were intended, after being conveyed by their railway, to be forwarded by 
 smne other means to their destination, the company would not l>e respon- 
 sible after they were so delivered. The goods were sent on by defendants 
 to the Bridge, and there delivered to the New York Central Ry. Co.. which 
 placed them in the bonded warehouse of the American customs, until cer- 
 tain documents were procured, witliout which they could not be sent on. 
 The plaintiff was asked by defendants for such papers, but they were not 
 furnished for some time, and the furs were spoiled by the delay: — Held, 
 that defendants were not liable, for there was no contract by them to 
 convey the goods to New York as alleged, but their undertaking was only 
 to carry them over their own line, and deliver them to the company which 
 was to take them on. 
 
 Rogers v. Great Western Ry. Co., 16 U.C.Q.B. 389. 
 
 Stations — ^RBcrxAB axb fi-ag — Tbaffic — Ci. A?fD L.C.L. — CoxsiGxn> to 
 
 OKDEK ReKIUJXG DeM CIUtAGE. 
 
 A railway company is justified in refusing to take shipments of CI* 
 and L-Ci. traffic to flag stations when wmsigned "to order. " Traffic to 
 flag stations consigned "to order*' should be billed to the nearest regular 
 station short of the flag staticm and sent on to destination, after the en- 
 dorsed bill of lading has been produced and surroidered and the freight 
 tolls paid. For unloading into the freight shed and reloading and for re- 
 billing L.CX, traffic from r^ular to flag stations, forwarding to and un 
 loading at the said station, the carrier sliould receive the local toll between 
 the two statitms and for C.L. traflic the through toll should he charge! 
 with an additional toll of ^ per car for rebilling and terminal diarge-. 
 The detention allowance of 48 hours free time is computed from the time 
 of notice of the arrival of the car by the agent to the consignee after which 
 the carrier will be entitied to charge the authorized demurrage toll. [Can 
 adian Manufacturers' Assn. t. Canadian Freight Assn. (Interswitching 
 Rates Case*, 7 Can. Ry. Cas. 302, foUowed.j 
 
 McMahon v. Canadian Freight Assn., IG Can. Ry. Cas. 230. 
 
96 CARRIERS OF GOODS. 
 
 Bill of lading — Connecting cabriers — Inland destination — Jurisdic- 
 tion. 
 
 A bill of lading issued by a steamship company containing the inland 
 destination and the through toll thereto is made a tli rough bill of lading 
 although it does not contain tlie conditions of carriage by rail. By Order 
 No. 7562, dated July 15, 190!), the Board prescribed the form of bill of 
 lading for inland carriage from a Canadian seaport. Section 2 of the Or- 
 der provides that the carrier issuing the bill of lading shall be liable for 
 any loss, damage or injury sustained to the goods carried under such bill of 
 lading, but the delivering carrier is not made liable unless it be so de facto. 
 \\'here a shipment was carried under a through bill of lading issued by a 
 steamship company from India to Boston, Mass., and thence to final des- 
 tination at Winnipeg, where delivery was made by the last connecting car- 
 rier, the Board has no jurisdiction over the steamship company nor over 
 the initial carrier at Boston, and the delivering carrier is not liable for the 
 shortage of goods received by it "short" from its connections. 
 
 Smart- Woods v. Can. Pac. By. Co., 17 Can. Ry. Cas. 340. 
 
 Care of property — ^Unclaimed freight. 
 
 The purpose of a bill of lading is satisfied when the transit is complete 
 except as to any rights of lien or of absolution from claims not promptly 
 made; and where the consignee fails to take over the goods under a condi- 
 tion that the consignee should pay the charges and take tlie goods within 
 twenty-four hours after their arrival, the railway company is in the posi- 
 tion of an involuntary bailee thereof. [Mayer v. G.T.lv.. 31 U.C.C.P. 248, 
 distinguished; Grand Trunk Ry. Co. v. Frankel, 33 Can. S.C.R. 115, 2 Can. 
 Ry. Cas. 155, followed.] 
 
 Swale V. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 363, 29 O.L.R. 634, 15 
 D.L.R. 816. 
 
 [Distinguished in Getty & Scott v. Can. Pac. Ry. Co., 22 Can. Ry. Cas. 
 297, 40 O.L.R. 260.] 
 
 Jurisdiction — Traffic — ^Accommodation and facilities — Competition. 
 
 The Board under ss. 2 (21) , 284, 317 of the Railway Act, 1906, has juris- 
 diction to direct the respondent to maintain its dock at Michipicoten har- 
 bour and provide facilities thereat for receiving, loading, carrying, un- 
 loading and delivering traffic of the applicant in competition with traffic 
 of the respondent. [Can. Northern Ry. Co. v. Robinson, 37 Can. S.C.R. 541, 
 6 Can. Ry. Cas. 101, followed.] 
 
 Dominion Transportation Co. v. Algoma Central & Hudson Bay Ry. Co., 
 17 Can. Ry. Cas. 422. 
 
 Heated cars — Perishable com.modities — Limitation of Damages. 
 
 The carrier should be obliged to accept shipments of perishable com- 
 modities, providing heated cars; subject to the stipulation that the shipper 
 must sign a release waiving all claim for frost damage imless he can 
 prove that the heating appliances were missing; witli a further exception 
 that if the heaters are allowed to go out through the negligence of the 
 carrier, the damages recoverable will be limited to one half the freight 
 tolls charged on tlie shipment in question. 
 
 Fernie-Fort Steele Brewing Co. v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 
 426. 
 
 Notice of arrivai- — Person other than consignee — Practice of com- 
 panies. 
 Where a railway bill of lading is issued with the name and address 
 
CARRIERS OF GOODS. 97 
 
 of a party otber tksn the eonsigsce as a fentm to be aotified on balk graia 
 reafhiag tbe deaiiaatioB, tbe raihraj is ader obligatkia to sod aotin to 
 sadk penoa, aad is wife reUered tbercfrom bj tte practice of tke tomiaal 
 delator w— pMim of forvazding veigbt eertiJieatcs; aad the raihraT is 
 liable for dday ia gtviag notiee doe to tbe ftei^ eoadiKtar's oror in 
 mamimg km the waybill as the partr to be notified, anothCT firm hari^ no 
 iatcTCst ia tke aiatteT. (Golden t. Maanii^. 3 Wils. 429, «»d CoUard t. 
 Simtk Eutcn St. Co., 30 LJ. Ex. 393, foBoved.] 
 
 Axmutnmg t. Can- Xorthern Et. Co., 19 Can. Rv. Cas. 333, 7 Sa«k. 1..B. 
 214, 20 DXuR. «95. 
 
 GooBS MBcwmat. rxmrnrnt axd dcuteked — Bux or iaos^^g. 
 
 It is not c^Kn to a raUvar eompanr vhicb has actually reeeired grain 
 for tnaqiartatiaii to dispute the bill of lading or du]qping bill iasaed oa 
 its regalar fonn aMTvlr on tbe ground that its agent had not, by reason 
 of sane iaside regulations between the company and its serranta, the pow- 
 er to aiga tke bill, where the company receired and carried the grain, col- 
 lected the freight and made delivery pursuant to its terms. [Erb r. G.W. 
 Ey. Co., 5 Can. aCE. 179; Oliver 'v. G.W. Ky. Co.. 28 U.C.C^. 143. dis- 
 tingoiihed.] 
 
 Baadall et aL t. Can. Northern Rv. Co., 19 Can. Bv. Cas. 343, 21 DJ..R. 
 4SI. 
 
 'EararrKU — Bm. or i.adixg — ^Weights ttm qcastities — ^^Mobe ob uess." 
 
 Wbere ttere is nothing in the bill of lading w shipping bill <rf the rail 
 way to limit its responsibility for tbe weights or quantities oitacd ob the 
 bill the railway company i& csto^ied froai denying that approsimatdy the 
 yantitj stated with Ae addition of the wwds ^^more or less" bad been re- 
 CHivd for shipnoit. 
 
 Baadall et aL r. Can. Kinibem By. Col, 19 Can. By. Cas. 343, 21 D J:..B. 
 457. 
 
 Biu. or lAOcte — Loss ut tkaxsit — TmBSintmo:^ <» tdgucexck. 
 
 Where the bill of lading called for "^eleven himdred boshels more or less" 
 •f flax and the evidence proved tbe delivery of ortr 900 bosheU in a ear-load 
 lot, tke oans is upon the railway company to account for the deficiency oa 
 the ear arriving at destinaiioo with only half the quantity stated in the 
 bfll; where no satisfactory explanation of tbe loss is given by the railway, 
 me^gatee auiy be presumed against it. [Ferris t. Can. X<»them By. Co., 
 15 Man. L.B. 144. foUowed.] 
 
 BaadaU et aL t. Can. Xorthem By. Cou, 19 Can. By. Cas. 343, 21 Di.B. 
 457. 
 
 [Followed in Ogilvie Flour Milk Ca t. Can. Pac By. Co.. 47 DJJK. 22«.] 
 
 L06S or GOODS ESTXVS-XTD TO CAKKIEB — Xo EXFLASATIOS — PaBSnCPTIOX OF 
 XEEUGEXCE. 
 
 In tbe absence of evidence that the loss of goods entrusted to a railway 
 company for carriage was not caused by tbe neglig«ice of the railway com- 
 pany, the rule res ipsa loquitur applies and the earner is responsible. 
 [Ferris v. C.N.B.C0. [190o>. 15 Man. L-R. 134. Randall v. C3i-R. Co. 
 (1915», 21 D±JL 4.57. 19 Can. Ry. Cas. -343. 25 Man. L.R. 293: Scanlin v. 
 Can. Pac Bv. Co.. 23 Can. Rv. Cas. 3.16. 44 D.L.R. 352, followed.) 
 
 Ogilvie Hour Mills Co. v. Can. Pac. Ky. Co., 47 DXJL 22t;, 25 tan. Ry. 
 Cas. 
 
 Can. Rv. L. Ois.— 7. 
 
98 CARRIERS OF GOODS. 
 
 Sale of goods — Railway company contbactixg to deliveb — Failure to 
 
 DEXIVEB — NoNPEBFOEMAKCE OF CONTRACTS. 
 
 Northern Pacific Ry. Co. v. FuUerton, 47 D.L.R. 705. 
 
 Initial carrier — Longest haul — Shipping instructions. 
 
 The right of the initial carrier to the "longest haul" is recognized by 
 Canadian decisions, and founded on sound principle; the initial carrier in 
 choosing between two routes, equally advantageous to the shipper as to 
 time, toll, and facilities, may select the route which will give it the 
 longest haul, notwithstanding routing directions of the shipper to the con- 
 trary, and tlie principle will be applied where the railway of the initial car- 
 rier, technically owned by a separate company maintaining a distinct or- 
 ganization, is, in fact, operated under lease as part of a larger system. 
 [Imperial Steel & Wire Co. v. Grand Trunk Ry. Co., 11 Can. Ry. Cas. 395, 
 followed.] 
 
 Jacobs Asbestos Co. v. Quebec Central Ry. Co., 19 Can. Ry. Cas. 357. 
 
 [Followed in Re Coal Transportation Facilities, 22 Can. Ry. Cas. 338. 
 
 Notice of arrival — Lijiitation of liability at station having no 
 
 AGENT. 
 
 Under a bill of lading condition that "goods in carloads destined to a 
 station where there is no authorized agent shall be at the risk of the car- 
 rier until placed on the delivery siding" the carrier is not under obligation 
 to give notice of the arrival of the car as a condition of being relieved ot 
 responsibility for the goods after the car is so placed. 
 
 Rogers Lumber Co. v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 432, 9 Sask. 
 L.R. 188, 27 D.L.R. 414. 
 
 Proof of delivery — Receipt — Onus. 
 
 A receipt for goods by the consignee's agent is not necessarily conclu- 
 sive as to their actual delivery; tlie burden of proof is upon the carrier to 
 shew that the goods were in fact delivered, where it was shown that it was 
 usual for the carrier's agent to take a receijjt for the goods before de- 
 livery and before the carrier's agent had ascertained whether or not the 
 goods had arrived at the place where delivery was to be made. [See 16 
 D.L.R. 420.] 
 
 Henderson v. Inverness Ry. & Coal Co., 21 Can. Ry. Cas. 173, 50 N.S.R. 
 518, 33 D.L.R. 374. 
 
 Liability for warehouse receipts issued and signed by agent — ^Knowl- 
 edge OF company — Release of goods without pebmission of holder 
 — Contribution by owner. 
 
 A railway company maintaining warehouses as a necessary incident to its 
 business is bound by the act of its agent acting within the scope of the 
 authority, which it holds him out to the world to possess, in signing ware- 
 house receipts; it is, therefore, liable for shortages, in consequence of the 
 agent's release of the goods to the shipper, without the permission of a 
 bank to which they were hypothecated as collateral security; the railway 
 company, however, is entitled to contribution from the shipper to the 
 amount recovered by the bank for such shortages. 
 
 Can. Pac. Ry. Co. v. Canadian Bank of Commerce; McDonald v. Can. Pac. 
 Ry. Co., 21 Can. Ry. Cas. 415, 30 D.L.R. 316, 44 N.B.R. 130. 
 
CARiUERS OF GOODS. 99 
 
 Demand Ft» i«uvekt afteb easues Kmrsjo- to accett — Usdebtakixg 
 
 TO PAT TOLLS — ACCEPTAJSCE — WaIVEK -OF PSEPATMEXT OB TEM>EB — 
 
 Sale of ruEKiiiT to pay tolls — Delay ix TKAXsMrmxG request fob 
 
 KETTKX <MF FREIGHT^XbT.LIGESCE DAMAGES CaSKIEBS OB WABE- 
 
 HorsEVEX — Shipping coxtract — Special pboyision as to daiiagis — 
 Val,ce <w^ fbeicht at date of shipmext — Applicatiox to fbeicht 
 
 HELD BT CABBIEBS AS VTABEilOL'SEMEX. 
 
 Certain package* of leather were carried by the defendants for the plain- 
 tiffs to Gait, and on the 2uth ^May. 1915. delivery thereof va^ tendered to 
 .the plaintiffs, who refused delivery: and it was found that thereafter the 
 defendants became warehousemen of the goods, and retained possession oi 
 than as such imtil the 21st January. 1916. when the defendants sold theu 
 for unpaid charges for transportation and >torage. On the ISth Janaary, 
 1916, the plaintiffs requested the chief agent of the defendants at Gait to 
 deliver tlie goods to the plaintiffs, and undertook to pay the charges there- 
 cm; tlie agent, on behalf of the def aidants, accepted the undertaking: and 
 it was found that prepayment or tender of tolls and charges was thereby 
 effeetually vaived. At that date, the goods had been forwarded to Mon- 
 treal to be eold there; and. in consequence of delay in communicating to the 
 proper authority at Montreal the request to return the goods to Gait, the 
 request did not reach the proper hands in Montreal until after the good« 
 had been sold; and this delay was fotmd to have arisen from the negligence 
 of the defendants' clerks. In these circumstances, it was held, that the 
 defendants were liable in damages: and. although on the 21st January, 
 1916, th^ held the goods as warehousemen, they were entitled to the benefit 
 of a ]HX>vision in the shipping contract that 'the amount of any loss or 
 damage for which the carrier is liable shall lie computed on the basis of the 
 value of the goods at the place and time of shipment. . . .~ When the 
 stipulation is one which, by its terms, is to apply to a state of things which 
 may arise after the goods have arrived at their destination, it remains in 
 force notwithstanding that the transit is ended. [Swale v. Can. Pac. Ry. 
 Co. (1913), 29 O.L.K. 634, 16 Can. Ry. Cas. 363. 1-5 D.L.R. 816, dis- 
 tingidshed; 3iayer v. Grand Trunk Ry. Co. (18S0,, 31 U.C.C.P. 248, re- 
 ferred to.] The damages were a«-ordingly computed on the basis of the 
 value of the goods in ^ilay, 191.5. 
 
 Getty 4 Scott v. Can. Pac. Ry. Co.. 22 Can. Ry. Cas. 297. 40 OX-R. 260. 
 
 IXTTLU. Om. OBIGIXATIXG CARRIEB — LOXG HArX ReASOXABLE LiXES — C>wx. 
 
 The initial or originating carrier is entitle«l to as long a haul as reason- 
 able <m its own lines. [Imperial Steel k Wire Co. v. Grand Trunk Ry. Co., 
 11 Can- Ry. Cas. 395: Can. Pac. Ry. Co. v. Xel#on k Fort Sheppard Ry. Co. 
 (memorandum), 11 Can. Ry. Cas. 400: Jacobs Asbestos Co. v. Quebec Cen- 
 tral Ry. C^, 19 Can. Ry. Cas. 357: Plvmouth Devonport, etc., Ry. Co. v. 
 Great Western Ry. Co., 10 Ry. k Ca. Tr. Cas. 68; Riddle v, Pittsburgh k 
 Lake Erie Ry. Co., 1 I.C.C.R." 374. followed.] 
 
 Re Coal Transportation Facilities. 22 Can. Ry. Cas. 338. 
 
 Faciuties — Saxd axd gravel — Special doors. 
 
 Carriers will not be ordered to supply special doors for box ears, used 
 to carry sand or gravel, as in the c-ase of grain shipments, the circumstances 
 and conditions (see s, 317 of the Railway Act, 1906 > of sand and grarel 
 traffic being dissimilar to those of grain traffic. 
 
 McKoizie t. Canadian Pacific and Canadian Northern Ry. Cos., 23 Can. 
 Ry. Cas. 99. 
 
100 CARKIERS OF GOODS. 
 
 DkI.IVERY to CARBIEB — Loss OF PABT OF GOODS — PbESUMPTION OF IfEGM- 
 GENCE. 
 
 Where goods are shewn to liave been delivered to a railway company 
 for carriage, and they are not delivered, at their destination, and no 
 explanation is furnished, negligence may be presunied. \\ here the initial 
 carrier undertakes the entire transportation, the connecting carriers 
 through whose hands the goods pass in the performance of the contract 
 are the agents of the initial carrier, who is liable for their negligence. 
 [Ferris v. C.N.R. Co. (1905), 15 Man. L.R. 134; Henry v. C.P.R. Co. (1884), 
 1 Man. L.R. 210, followed.] 
 
 Scanlin v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 336, 44 D.L.R. 352. 
 
 [Followed in Ogilvie Flour Mills Co. v. Can. Pac. Ry. Co., 25 Can. Ry. 
 Cas., 47 D.L.R. 266. 
 
 Cabs — Loading — "Shippers load and count" — Bill of lading. 
 
 The practice of carriers in endorsing on a bill of lading, the provision 
 "shippers load and count" where cars are loaded by the shipper on pri- 
 vate sidings and not checked by the carrier, is reasonable and lawful. See 
 S8. 284 (7), 340, of the Railway Act, 1906. 
 
 Bole Grain Co. v. Can. Pac.Ry. Co., 24 Can. Ry. Cas. 25. 
 
 Shippers load and count — Shipping bill — Effect of beceipt — Station 
 AGENT — Onus of proof. 
 
 No effect, as regards a shipper, can be given to the placing of "S.L. & 
 C." upon the shipping bill describing the goods shipped, nor to an ex* 
 planation given him by the agent of the carrier that there being no oppor- 
 tunity to count the goods his count would have to be accepted. While a 
 shipping bill is a receipt for goods shipped, it is not conclusive and may 
 be controverted by evidence shewing that the goods were not received, the 
 agent of the carrier has no authority to make a contract of carriage bind- 
 ing on the defendants, save in respect of goods actually received, the receipt 
 given is prima facie evidence, which places the onus upon the defendants 
 of explaining it away. [Leduc v. Ward, 20 Q.B.D. 479; Smith & Co. v. 
 Bedouin Steam Navigation Co. (1896), A.C. 70, applied and followed. J 
 Upon the evidence, weighing the preponderating probability having regard 
 to the onus, it was held that tlie carrier delivered to the plaintiff all the 
 goods it had actually received. 
 
 Nathanson v. Grand Trunk Ry. Co., 23 Can. Ry. Cas. 328, 43 O.L.R. 73. 
 
 [See Bole Grain Co. v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. at p. 31 note.] 
 
 Initial switching cabbies — Line haul — Bills of lading. 
 
 The Board will not order initial switching carriers to issue through bills 
 of lading covering interswitching of traffic over their lines and the lines of 
 carriers who enjoy the line haul; in the absence of arrangement, two bills 
 of lading are necessary, one by the switching carrier and the other by the 
 line haul carrier. 
 
 Renfrew Machinery Co. v. Canadian Freight Assn., 24 Can. Ry. Cas. 31. 
 
 "At owneb's bisk." 
 
 Where the carrying of goods is stipulated in the bill of lading to be "at 
 owner's risk," this does not have the effect of excusing a common carrier 
 from its liability for damages caused by its fault, or the fault of those for 
 whom it is responsible. 
 
 Ottawa Forwarding Co. v. Ward, 23 D.L.R. 645, 47 Que. S.C. 171. 
 
CARRtEES OF GOODS. JOI 
 
 CaxTMAJCT or sstntEST — FnaxG uabilxtt ax» taixe — Loss of rjkXi or 
 
 WIktv ihe coBtract of iTiii|MM ■! fixes the rukut vi tW goods sUpped asd 
 loBits the liahilitT of tlie carrier to that Tsloe. ui case of a 1<k« <rf part of 
 the dufHMMrt, the shipper nar rcwver the ml valoe of the prvprrtr last, 
 ■ot esxcediag the limit ui lialnlilj stipulated in the coatract, and b ■<« 
 limited to a rveormy of snch pvoportioa of the amooat — H ia the coa- 
 tract as the value oi the p t op ei ti de»troT<!d bore to the xMkmt ot all the 
 fHvpCTtj ehinied. (GifaboB t. Partoo |i;«9>i. 4 Burr ±2S«, 96 E.VL 1»: 
 Bkadl^ T. Watcrhoo^e (182SK 3 C. 4 P. 31S: lleCaiKe v. Loadtm & X.WJK. 
 Col (UMh 3 H. 4 C. 343, distiagnishcd.] 
 
 ^Noer Bras. t. Ccutzal Guuda Express Col. 23 Caa. Rj. Ck& 333. 43 
 DJLJL 400. 
 
 [Appeal to Court of Appeal diaai^scd. See 33 Caa. Rr. Cms. 333.] 
 
 AcciirTA3rcE or soons fob cauuace — Necucexcbl 
 
 A laihray eoaipaiiT vlu<^ hr its local stttioa agcat. accepts aad receives 
 goods for carriage is bound to use rca^oaable care for the proteetiaa «f sadi 
 goods. If thejr are caieleselr left oa the statioa idatfona aacannd aver- 
 alght aad thcrebv becoae damaged, the coHpaanr is liable. 
 T. Caa. Pac. Ry. Cou 44 DX.B. 511. 
 
 LuHUTT ram tmukX — CoxsEcnxc ixve — Joist tammft. 
 
 Am iaitial carrier, who coBtractcd to be liaMe to the shiver far loss «a 
 caameetiag raiivajs. naless exprct^lj stipolated otheraiae, has the hurdea 
 off proof of the existence of such stipnlatioa. 
 
 Oodlct T. Haaager of Gorernment BailaaTS, 33 DJLR. «5i. 
 
 TtescrvATiox or uabujtt — ^Ambital or eooos — Beaso^kablb tdoc fob be- 
 umr. 
 
 The liabilitj of carriers by raihraj. qua earrier«, termiaatcs ^oa the 
 axriral <rf the goods carried at their destinatioa aad the expiralioa of a 
 reaaoaaUe time for ddirerT. Where a car ttf potatoes anrires at a statioa 
 at 5 A. X. oa Satnrdar in Tery cold veather the freight should be paid aatf 
 ddrnery taken ca the' same day. [Grand Trunk Ry. Col t. McMillaa. 1« 
 Can. &C.R. 543. folknred.] 
 
 Lockshin t. Can. Northern Ry. Col. 24 Can. Ry. Cas. 3«2. 47 DJ-R. 51*. 
 
 Cakkiage ox pemshabix Goons' — Waoxcrn. DELitTKT — Damases — Ixkss or 
 VAKKET — Rejection cm goods mr rracHASi*. 
 
 v. Grand Trunk Rr. Ok, 32 OJ_R. 37. -5 O.W.X. S13, 7 U-W.X. 7«. 
 
 Taus deljtebt — Otcs or paorrsG — Railwat secextdcg goods fob last 
 itMtnox or T*AXSForrATio5. 
 
 The aau:» of proving a valid delivery of the goods under a hill of lading 
 by which they were consigned to the consignor* or their asMgns is upon the 
 railway company which received the goods for the last portioa of the 
 tranqMrtation from the preceding carrier. 
 
 Wokely Tool t Motor Car Co. v. .J«ie4:^«o. 21 DJ-R. 610. 
 
 B. ExBRSB aad Tnasf er Coiwiri i * 
 
 See abo A; Carriage of Freight, ip. 77 u 
 
 Delat ts dcutext or mebcha-vdisje. 
 
 A carrier vrho has no notice of ^peeial «ase for the d*««»Tj;' *** 
 goods vrithin a given time, is not liable for general damages for deUy. 
 
 Clarke t. Holliday, 39 Que. S.C- 499. 
 
102, ,,. , CAERIEKS OF GOODS. 
 
 Ll^EXSED BXPBESSJtAX CaRUYING GOODS FOK HllSK — LlABIl.ITY FOR LOSS 
 
 BY FIRE. 
 
 The defendant, duly licensed as an expressman by virtue of a city by- 
 law, was engaged to carry for hire a load of furniture to the railway sta- 
 tion in one of his wagons. Before delivery the goods were destroytnl by 
 fire, not caused by the act of God or the King's enemies, and not arising 
 from any inherent quality or defect of tlie goods themselves: — Held, that 
 the defendant was acting as a common carrier, and, as such, not having 
 limited his liability by any condition or contract, was responsible for the 
 loss. [Brind v. Dale,' 2 C. & P. 207, doubted: Farley v. La very, 54 S.W . 
 Reporter 840 (U.S.), concurred in.] 
 
 Culver V. Lester. 37 C.LJ. 421 (McDougall, Co. J.). 
 
 Express compaxiks — Cost of traxsportatiox. 
 
 The appellant agreed with tlie agent of the company, respondent, at a 
 fixed price for the tranRportatit)n of goods from France. The resj>ondent 
 having carried a package to Montreal, to the appellant's address, refused 
 to deliver it unless he paid $11.84 for disbursements and cost of trans- 
 portation, and this without the production of bills of lading and waybills, 
 of which the originals had been sent to New York: — Held, reversing the 
 judgment of Charland, J., that the respondent company could not arbi- 
 trarily, and as a condition of delivery, impose upon the plaintiff the pay- 
 ment of this sum, except upon verification and subsequent rebate for over- 
 charge, if any. and that it was liable to indemnify him for such dam- 
 ages as he may have sulfered on accoimt of the nondelivery of the pack- 
 age. 
 
 Poindron v. American Express Co., 12 Que. K.B. 311. 
 
 Nondelivery- and coxversiox of goods — Termixatiox op transitus — 
 Conditional refusal of consignee to accept. 
 
 Trees consigned by the plaintiffs to one C. at Aylmer, Quebec, were de- 
 livered by a railway company, by mistake, at Aylmer, Ontario. The 
 defendants, pursuant to a message received from the railway company, 
 ("Sliip by express C.'s trees to Aylmer. Quebw," carried the trees as far 
 as Ottawa, and were about to send them on by wagon to Aylmer, Quebec, 
 when C, who was the only person known in the transaction by the de- 
 fendants, appeared at Ottawa, and said to the defendant's agent tliat he 
 would not accept the trees until he saw one F. Tliere were no further 
 communications between the defendants and C. The defendants held the 
 goods and sought out the consignors and notified them of C.'s refusal: — 
 Held, in an action by the consignors for damages for nondelivery and con- 
 version of the trees, that the defendants' contract was not one to deliver 
 the goods to C. at Aylmer and not elsewhere, and his refusal to accept, 
 even if not absolifte, was such as dispensed with any further action on the 
 part of the defendants till they had a message from C. that he was ready 
 and willing to receive; and this never having come, the defendants acted 
 reasonably in holding the goods and notifying the consignors, and were 
 not liable for the loss. The findings of the jury not having supplied 
 material for a final disposition of the case, the Court, acting under Con. 
 Rule 61"), instead of directing a new trial, set aside the findings and gave 
 judgment on the whole case for the defendants, deeming that if the proper 
 questions had been put to the jury they could have been answered only in 
 one way. 
 
 Smith et al. v. Canadian Express Co., 12 O.L.R. 84. 
 
CAKRIERS OF GOODS. 103 
 
 Exmss OOMPAXT— Cosi>nioxs or <uuiac£— Ksovxehs or cossig.xol 
 Tie aascBt nrwwsarr to lonn a mntmrt cannot exi*t on tht part of a 
 party who is in i«noruK« <rf its pnrpow. Hmce. the ncceptMaet bj the 
 Aif^a of the receipt of an expns; mmpanr who carries goods for kin 
 docs Bot coastitnte an afretment on his part to coafora to the eondi- 
 tkMU printed on the hack vfaich are neither read orrr nor explained to 
 hiai, c^cciallT ii he is unable to read or writeL The carrier is liaUe for 
 the lo9B of floods carried up to their Talue at their destinatioa bm not 
 for the profit that the ovner might hare made bv sellii^ then if nothin» 
 took place vhca the eoatract for ca^rria^ vas made to make him aware 
 dmi aoA would be the eonseqaeBee of his fuhue to esecote it. 
 IHMk T. Canadian Express Co^ 36 Qoe^ S.C. 499. 
 
 EXFBBBS OOMPAXI£S CONXECTXSG IXXKS — GOOOB n4V^»cya» DCBtXa TBAS- 
 
 An czfi«B w—p a ny is not re^oasiUe for the damages to goods catnist- 
 ed for canine, vhea the aceideiit happened oa aaother and eoaaecting 
 Une of tnanfo-, and the bill vi ladi^ eoatained a eiaose hr vUch the 
 eo^pa^r aas relieved from anv liability if the lo^ or injury happened at 
 a ^aee b^vmd its lines or ccmtn^ 
 
 Neil T. Jkmerican Express Col, 2 Cmm. Sy. Cas. Ill, 20 Que. S.C 253. 
 
 Pedshabue goods — Dei_&t ts rmASSxissMas — LiABnirr. 
 
 The defendants undertook to fonraid a consignment of fish £ra^ Sel- 
 kiik, Manitoba, to Twonto, Ontario, sobject to ccxtain coaditioas ex- 
 ]»eKcd in the contract: — HeM. that the defendants* engagement implied 
 that a safe and rapid transit vould be famished for the whole distaaee. 
 and that contract was broken wh^ the pexishaUe goods were transferred 
 to s frn^t train at Winnipeg:, by whi^ ddirery was delayed: and this 
 was B^jligeBoe for which the defendants were liable as «nunon carriers 
 
 JaaHS Co. T. Dominion Expre^ Co.. 6 Can. Ry. Cas. 309. 13 OXIL 211. 
 
 [A^woTed in DominioB Express Col t. Rotmbei^. IS Que. KJB. 53.] 
 
 Tkaxsfeb oostPAST — LcKs or bagca^ — Coxbitioxs of «ecopt. 
 
 Defendants carried and delivered baggage to and from railways, steam- 
 boats, etc. The plaintiff, who was a passenger on a steantH'. on his arriTal 
 at the wharf in Toronto handed the steamer check for his trunk to his 
 iather-in-law, R^ to hare the trunk sent up to R-'s house. R. who was 
 an employee in the cu<>tams. han-ied the check to H_ also a eustoms otSker. 
 aad asked him to pass the trunk and hare it sent up to the house. H. 
 gave D.. the defendant's agent, on the wharf, the cheek and twenty-fiw 
 cents which R. had given him. told him to have the tnrak sent up to R-'< 
 house, and walked away. D. then gave the nMney to S., a solicitii^ sgmt 
 of the d^cadants. and'proeeeded to take the steamer cheek off the trunk. 
 H. returned in about fifte«i minutes after he had left the cheek and the 
 mmiey with D., and asked him for a receipt for the trunk. S. then wrote 
 out 1^ receipt and handed it to H_ who looked at but did not read it. 
 aor was his attention called to any terms upon it. He knew, however, 
 that the defendants were in the habit of giving receipts upon taking over 
 baggage fw transfer. About an hour and a half thereafter H. handed 
 the dieck to R_. who passed it on to the plaintiff, who did not read it till 
 about tu days afterwards. The receipt was a document which had leg- 
 ibly pinted on its face a notice by which the defendants agreed to receive 
 aad forward the article for which the receipt was given, subject to a con- 
 dition tfc«t they diould "not be liable for any loss or damage of any 
 trunk ... for over ^aO." The receipt was in m, ftwm geaenlfy used 
 
104 CARRIEKS OF GOODS. 
 
 by the defendants in the course of their business, and no proof was given 
 that their agents, who did the work of receiving and receipting for bag- 
 gage had authority to receive it on any otlier footing. The trunk was 
 lost or stolen; but without negligence on the part of the defendants. The 
 defendants tendered to the plaintifi" $50 as in full discharge of their liabil- 
 ity under their contract, which the plaintiff refused, and brought this 
 action: — Held, that the plaintiff was entitled to recover the full value of 
 the trunk and its contents, inasmuch as the defendants, who as common 
 carriers were liable to their customer for the full value of the property 
 entrusted to their care in the absence of notice, brought home to the 
 customer, that their liability was limited to a certain sum, had failed to 
 discharge the onus which lay upon them to shew that the plaintiff at the 
 time when he made his contract with the defendants had received notice 
 that their liability was limited, or that the stipulation limiting their 
 liability had been at any time accepted by him as a term of his contract. 
 [Harris v. Great Western Ry. Co. (1876), 1 Q.B.D. 515; Henderson v. 
 Stevenson (1875), L.R. 2 H.L. Sc. 470, and other cases bearing on the 
 liability of carriers for loss or damage to luggage discussed.] Per Mere- 
 dith, J.A., that the question whetiier the plaintiff had accepted the condi- 
 tion limiting the defendants' liability was one of fact, and the finding of 
 the trial Judge in favour of the defendants should not be reversed unless 
 plainly shewn to be wrong on the evidence. Judgment of a Divisional 
 Court reversing the judgment of Boyd, C, at the trial, affirmed. 
 
 Lamont v. Canadian Transfer Co., 9 Can. Ry. Cas. 387, 19 O.L.R. 291. 
 
 [Distinguished in Spencer v. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 207.] 
 
 INTOXICATINO LIQUORS — PBOVIXCIAL POWERS AS TO — InTERPROVINCIAL 
 
 TRADE — ^Liability for refusal to carry lawful shipment of liquor. 
 Gold Seal v. Dominion Express Co., 37 D.L.R. 769. 
 Delay ix delivery of goods. 
 
 A carrier in the habit of receiving moving picture films, to be delivered 
 for their exhibition on a certain date, is liable to the shipper for the loss 
 occasioned by a delay in the delivery until after that date. 
 
 Victoria Dominion Theatre Co. v. Dominion Express Co., 35 D.L.R. 728, 
 23 B.C.R. 396. 
 
 C. Charges. 
 
 Wrongful sale of goods for nonpayment of freight. 
 
 Conditions in a shipping receipt relieving the carrier from liability for 
 loss or damage arising out of "the safe keeping and carriage of the goods," 
 even though caused by the negligence, carelessness or want of skill of the 
 carrier's officers, servants or workmen, without the actual fault or privity 
 of the carriers, and restricting claims to the cash value of the goods at 
 the port of shipment, do not apply to cases where the goods have been 
 wrongfully sold or converted by the carrier. A shipping receipt with 
 terms as above was for carriage by the defendants' line and other connect- 
 ing lines of transportation and made the freight payable on delivery of 
 the goods at the point of destination. The defendants had previously 
 made a special contract with plaintiff but delivered the receipt to his 
 agent at the point of the shipment with a variation of the special terms 
 made with him in respect to all shipments to him as consignee during the 
 shipping season of 1800, the variation being shewn by a clause stamped 
 across the receipt, of which the plaintiff had no knowledge. One of the 
 shipments was sold at an intermediate point on the line of transportation 
 on account of nonpayment of freight by one of the companies in control 
 of a connecting line to which the goods had been delivered by the defond- 
 ants: — Held, that the plaintiff's agent at the shipping point had no 
 
CAILEMERS OF GOODa 105 
 
 authority, as eacK, to consait to a variatioD of the special contract, nor 
 oould the carrier do so by inserting the clause in the receipt withoot the 
 cmicarrenee of the plaintiff; that the sale, so made at the intermediate 
 point, amoimted to a wr<Migfal conversion of the goods by the defoidants, 
 and that they were not exempted by the terms of the shipping receipt from 
 liability for their fnB ralne. As the evidoice shewed definitely what dam- 
 ages had been sustained, and there being no good reason for remitting the 
 case back for a new trial, the Supreme Court of Canada, in reversing the 
 judgment appealed fr<Hn (9 B.C. 82), ordered that tbe damages should be 
 reduced to those proved in respect of the goods sold and converted. 
 AroMMir, J., however, was of opinion that the judgment of Craig, J., at tbe 
 trial, including damages for the loss <hi other goods, should be restored. 
 Wilson T. Canadian Development Co^ 33 Can. S.C.B. 432. 
 
 Seizuke fo« xrsFAJD Tou^s — ^Tesmtxatiox of cabktkr's liex — Demand — 
 
 COSVEBSIOX. 
 
 By s. 345 of the BaUway Act, 1906, a railway company may, instead of 
 proceeding by action fcH- the recovery of toUs uptm goods carried, ""seize 
 the goods for or in reelect whereof such tolls are payable, and may detain 
 the same nnril payment thereof," etc: — ^Held. that a railway company are 
 ■ot, by this enactment, given a lien on property carried, to such an extent 
 and of so general and wide an application as to allow them to retake 
 goods which have been delivered, and as to which the ordinary carrier*s 
 lien has terminated; the section does nothing more than confirm and estab- 
 lish the carrier's lim; there is the right to seize and detain, but the right 
 must be exercised and enforced before there is an absolute and uncon- 
 ditional delivery of the goods to the c<msignee. Semble, that in this case 
 there was not a sufficient demand for the tolls due to the defendants, on 
 account of which they seized goods which they had previously delivered. 
 to the consignee, the demand bang for a gross sum. including a sum for 
 tolls: — Held, also, that the defendants, having converted the goods, were 
 liable for damages: and the measure was the value of the goods. 
 
 Clisdell V. Kingston t Pembroke By. Co, 9 Can. By. Gas. 78, 18 OXJl. 
 251. 
 
 Acnox roft freight — ^Bemedies of ooxsigxee — Acceptance ft oox- 
 
 SIGXEE. 
 
 Defendants purchased a quantity of cement for shipment to them at 
 Begina, and it was so shipped by the consignors. The contract of ship- 
 ment provided that delivery should be made in the railway company's 
 shed at destination or when the goods had arrived at the place to be 
 reached on the company's railway. The goods arrived at Begina and were 
 with the consent of the defendant placed for unloading at a point indi- 
 cated by the defendant's manager. The goods were subsequently taken 
 away by another party who had purchased them from defendant and who 
 did not pay the freight, and the defendant refusing to pay the same the 
 plaintiff brought action to recover the charges: — Held, where goods are 
 with the consent or by the authority of the purchaser consigned by the 
 vendors as consignors to be carried by a railway company as common car- 
 riers to be delivered to the purchaso* as consignee, and the name of the 
 consignee is known to the carrier, the ordinary inference is that the con- 
 tract of carriage is between the carrier and consignee, tlM consignor being 
 llie agent of the consignee to make it^ and the contract in this case was 
 therefore between the carrier and the consignee. (2) That the plaintiff 
 company could therefore maintain an action for recovery of the freight 
 charge from the consignee. (3) That the plaintiff completed its contract 
 
106 CARKIERS OF GOODS. 
 
 and became entitled to recover its charges when the car containing the 
 goods was placed for unloading with the knowledge and consent of tlie 
 consignee. 
 
 Can. Pac. Ry. Co. v. Forest City Paving & Construction Co., 10 Can Ry. 
 Cas. 295, 2 Sask. L.R. 413. 
 
 Wrongful sale of goods fob unpaid chakges, 
 
 A carrier sued for conversion of goods by the consignor in respect of an 
 alleged neglect of duty on the part of tlie auctioneer employed by the car- 
 rier to sell the goods for unpaid charges, and for alleged failure to account 
 for all of the goods sold, may properly bring in the auctioneer as a third 
 party and claim indemnity and relief over against him under Ont. Rule 
 209 (C.R. 1897). [Swale v. Can. Pac. Ry. Co., 1 D.L.R. 501, 3 O.W.N 
 601, reversed.] 
 
 Swale v. Can. Pac. Ry. Co. (No. 2), 2 D.L.R. 84, 25 O.L.R. 492. 
 
 \^'rongful sale of goods. 
 
 An auctioneer to whom goods in bulk are entrusted by a carrier to sell 
 for unpaid charges against them impliedly contracts with the warehouse- 
 men employing him, that he will exercise reasonable care in selling the 
 goods. [Gagn6 v. Rainy River Lumber Co., 20 O.L.R. 433, specially re- 
 ferred to.l 
 
 Swale V. Can. Pac. Ry. Co. (No. 2), 2 D.L.R. 84, 25 O.L.R. 492. 
 
 Sale of goods to pay charges — Failure to deliver surplus goods- 
 Negligence OF auctioneer — Bill of lading limiting amount of 
 recovery. 
 Swale V. Can. Pac. Ry. Co., 10 D.L.R. 815, 24 O.W.R. 224. 
 
 "Switching charges." 
 
 Grand Trunk Ry. Co. v. Laidlaw Lumber Co., 2 O.W.N. 548, 18 O.W.R. 
 340. 
 
 Contract for carriage — Action for damages fob breach by failube to 
 
 deliver in time — Lien fob freight — Evidence. 
 Ludwig v. Beede, 8 W.L.R. 973 (Y.T.). 
 
 Unclaimed fbeight — Sale fob charges. 
 
 Where a consignee fails to pay the diarges and takes over the goods at 
 the destination, the railway company has a right to detain them and to 
 sell them for unpaid charges under the statutory authority conferred by 
 the Railway Act, 1906, ss. 345, 346, and the goods remain "at owner's 
 risk" while in the custody of the railway; but the railway company is not 
 excused thereby from responsibility for the default of an auctioneer to 
 whom the goods were handed over to sell for vmpaid charges to account 
 for the surplus of the goods not required for that purpose and the rail- 
 way company will be liable for such negligence of its agent, the auctioneer, 
 as would make a bailee liable for damages or would constitute conversion. 
 [Dixon V. Richelieu Navigation Co., 15 A.R. (Ont.) 647, followed.] 
 
 Swale V. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 363, 29 O.L.R. 634, 15 
 D.L.R. 816. 
 
 Statutory bight to sell unclaimbh) fbeight fob ohabges — Employ- 
 ment OF auctioneeb — ^Agency. 
 The Railway Act, 1906, does not require the employment of a licensed 
 auctioneer to carry on the sale of unclaimed freight for unpaid tolls; the 
 statutory right conferred on the railway company to sell by auction goods 
 
CARRIERS OF GOODS. 107 
 
 oa vliidi tlie chargrs have not b«en paid is one neccssarv to Uw carrring 
 oa <rf a railvar business and sorh ri^t eannot be qualified br anj limi- 
 tations imposed hy provincial authority. [Grand Trunk Ry. Cb. v. Attor- 
 ney-Oneral of Canada [1907] A.C. 6^ 7 Can. Ry. Cas. 472, followed.] 
 
 S»^le V. Can. Pat Ry. Co. 16 Can. Rv. Ca=l 363. 29 Oi.E. 63*. 15 
 DX^R. 816. 
 
 Mistake 1:5 expilvse box, — Fbeight chakces jtstaw — Right of r^Miy 
 
 TO BECOTEX. 
 
 Where the consignee of good« i$ not the purchaser or otherwise the own- 
 er of them and owii^ to the carriers mistake in the making out of the 
 e.xpeB8e bill is led to suppose on the delivery of the goods to him that the 
 freight charges have been paid, such charges cannot be recovered from him 
 bv the carrier. [Domett v. Beckfmrd. 3 Bam. i AdoL 524. 39 ILR. 559. 
 2'N. k 3J. 374, 3 LJ.K.B. 10. followed.] 
 
 Can. Pac. Ry. Co. v. Watts. 19 Can. Ry. Cas. 338, 8 Alta. Li 174, 
 20 DiJL 607. 
 
 C03(SICXE£'S OELAT IS XTSVOAItlSG ^XOTICE TO SHIPPE*. 
 
 WhcB a railway company has delivered to a consignee goods which it 
 OBdertook to carry, it is not bound to notify the shipper oi delay caused 
 by the coasigBee in imloading, and of the costs incurred by the e<Misignee 
 ia conseqneBce. If the shipper subsequently pays such costs, to the dis- 
 dMrge of the consignee, he has no action in repetition (Le., money paid 
 oader a mistake) against the railway company. 
 
 Raise t. G.TJL Co., 54 Que. aC. 474. 
 
 cabbuss of passengers. 
 
 A. Injunes to Paasengen. 
 
 S. Saty of Protectian; Ties^iassexs. 
 
 C. Ejection from Train. 
 
 iBJury to passenger by reas<m of defective bridge, see Bridges. 
 iBJuries occasioned by reasm of defective station grounds, see StaticHis. 
 Ejecti4» of passenger for violatii^ cmiditioBs of ticket, see Tickets and 
 Fares. 
 
 Injuries to employees, see Ejaployees. 
 
 Loss of baggage, see Baggage. 
 
 See Goremment Railways; Train S«Tiea. 
 
 Anmrtitiinif 
 
 Duties and liabilities of carriers of passengers. 1 Can. By. Cas. 262. 
 
 Carriers duty to protect passengers. 2 Can. Ry. Cas. 96. 
 
 Carriers of passengers and duties toward passengers alighting from 
 cars. 2 Can. Ry. Cas. 37. 
 
 liability of carri«- for injuries to passengers riding <m platform. 4 
 Can. Ry. Cas. 258. 
 
 Duty of carriers to proride accommodation for passengers. 4 Can. Br. 
 Cas. 427. 
 
 Transportation of immigrants. 4 Can Ry. Cas. 416. 
 
 Liability of carrier for injuries inflicted by fellow pa^enger. 4 Can. 
 Ry. Cas. 44S. 
 
 Liability of carrier for injuries to passenger or licensee. 2 Can. Bj. 
 Cas. 64. 4 Can. Ry. Ca& 200, 4 Can. Ry. Cas. 491. 
 
 Licensees and trespassers. 12 Can. Ry. Cas. 245. 
 
108 CARRIERS OF PASSENGERS. 
 
 Evidonce of negligence in carrying passengers. 9 Can. Ry. Cas. 269. 
 Review of cases on negligence. 3 Can. Ry. Cas. 316. 
 The Crown as a common carrier, 35 D.L.R. 285. 
 
 Liability of carrier of passengers as a common carrier, 23 Can. Ry. 
 Cas. 305. 
 
 A. Injuries to Passengers. 
 
 See also Limitation of Liability (B) ; Street Railways (G) ; Negligence 
 (A.) 
 
 Dekailment of train. 
 
 Where the breaking of a rail is shewn to be due to the severity of the 
 climate and the suddenly great variation of the degrees of temperature, 
 and not to any want of care or skill upon the part of tlie railway company 
 in the selection, testing, laying and use of sucli rail, the company is not 
 liable in damages to a passenger injured by the derailment of a train 
 through the breaking of such rail. Fournier, J., dissenting, on the ground 
 that as the accident was caused by a latent defect in the rail in use, the 
 company was responsible. Mont. L.R. 2 S.C. 171, Monti L.R. 3 Q.B. 324, 
 reversed. 
 
 Can. Pac. Ry. Co. v. Chalifoux, 22 Can. S.C.R. 721, 24 C.L.J. 501. 
 
 [Applied in (iuinea v. Campbell. 22 Que. S.C. 261 ; referred to in Quebec & 
 Lake St. John Ry. Co. v. Duquet, 14 Que. K.B. 484; Quebec Central Ry. 
 Co. V. Lortie, 22 Can. S.C.R. 343.] 
 
 NEGLIGEXCE IX ALIGHTING TBAIN LONGER THAN PLATFORM. 
 
 L. was the holder of a ticket and a passenger on the company's train 
 from Levis to Ste. Marie Beuce. When the train arrived at Ste. Marie 
 station, the car upon which L. had been traveling was some distance 
 from the station platform, the train being longer than the platform, 
 and L., fearing that the car would not be brought up to the station, the 
 time for stopping having nearly elapsed, got out at the end of the car, 
 and, the distance to the ground from the steps being about two feet and 
 a half, in so doing he fell and broke his leg, which had to be amputated. 
 The action was for .$5,000 damages, alleging negligence and want of proper 
 accommodation. The defence was contributory negligence. Upon the evi- 
 dence the Superior Court, whoj.e judgment was affirmed by the Court of 
 Queen's Bench, gave judgment in favour of L. for the whole amount. On 
 appeal to the Supreme Court of Canada: — Held, reversing the judgments 
 of the Courts below, that in the exercise of ordinary care, L. could have 
 safely gained tlie platform by passing through the car forward, and that 
 the accident was wholly attributable to his own default in alighting as 
 he did, and therefore he could not recover; Fournier, J., dissenting. 
 
 Quebec Central Ry. Co. v. Lortie, 22 Can. S.C.R. 336. 
 
 [Referred to in Quay v. Can. North. Ry. Co., 15 Man. L.R. 279.] 
 
 Passenger alighting from train where \o platform. 
 
 If there is a platform at a railway station, the railway company is 
 bound to bring the passenger car of a train stopping there up to tlie plat- 
 form to permit passtngers to step down on it in alighting, or to provide 
 some other safe means for passengers to alight. The plaintiff was a pas- 
 senger on one of defendants' trains. On stopping at the station where she 
 wished to get off, the train was left so that the car in which the plaintiff 
 was, stood entirely behind the station platform. The conductor having 
 offered plaintiff his hand to assist her in alighting, she took it and jumpe<> 
 
CARRIERS OF PASSENGERS. 109 
 
 to the gTODnd, three feet below. The ground at that point sloped slightlr 
 downwards from the track and was slippery with snow or iee. The plain- 
 tiff receired serious injuiy in emsequenoe of the jump. She was two 
 mcmths advanced in pregnancy, was rerr unwell for the next six days and 
 then had a miscarriage, from which she suffered great weakness for a con- 
 siderable time. Plaintiff did not know at the time she jumped that there 
 was a platform at the station : — ^Held. ( 1 i The defendants were liable in 
 damages for the injury suffered br plaintiff, as the eondnctor had been 
 guilty of negligmce. (2) The plaintiff was not bound to disclose her pr^- 
 nancy to the conductor, so that he might know that special care was neces- 
 sary in aiding her to alight. 
 
 Goay T. Can. Northern Ry. Co., 15 Man. L.R. 275. 
 
 Comsiox — ^Xbgi-igesce of coxDrcroR. 
 
 While the plaintiff was being conveyed as a passenger on a car a€ the 
 defendants, he was injured in consequence of the car being run into from 
 behind by another ear on the same track. The motorman and etwdnetor 
 of the otiier ear had, contrary to the express rules of the company, ex- 
 changed places, and the conductor in operating the car. either through 
 negligence or incompetence. aUowed the collision to take place: — ^Held, 
 that the n^ligenee of the motorman in abandoning his post to the conductor 
 was the effective cause of the accident, and that the defendants were liable 
 in damages for the injury to the plaintiff, although the conductor, whose 
 act was the immediate cause of the accident, was not acting within the 
 scope of his employment at the time. [Englehart v. Farrant, [1S97] 1 
 Q.B. 240, followed ;'Gwilliam v. Twist, [1895] 2 Q.B. M: Beard t. London, 
 [1900] 2 Q3. 530: Harris v. Fiat (1907i, 23 TX.R. 504. uistinguished] : 
 — Held, that, in order to make the defendants as carriers of passengers 
 by the railway liable to the plaintiff, it was enough to shew that the n^li- 
 genee or omission which caused the accident was that of the defradants' 
 servants tliai in actual charge of the car. [Wright v. Midland Ry. Co. 
 (1873), UL 8 Ex. 137; Thomas v. Rhymney Ry. Co. (1871), LuR. 6 Q.B. 
 266. and Taylor Manchester, etc. Ry. 'Co.. [1895] 1 Q.B. 134. followed: 
 Tance t. G.fj>. Ry. Co. (1910». 17 O.W.R. 1000, distinguished.] 
 
 Hill V. Winnipeg' Elec. Ry. Co., 21 Man. L.R. 442. 
 
 Nbgugexce rx maxxhi of htxxixg iXAnra — Obddtakt ixcroEXT rs kjlUt 
 
 WAT T»AVBtnfCG. 
 
 Plaintiff was a passenger by a night train an the defendant company's 
 railway between Montreal and Toronto. After retiring to the berth assigned 
 to hex — an upper <ne — she endeavoured to make some diange in the man- 
 ner in whidi the berth was made up. She next tried to reach the other end 
 of the berth from the inside, but, just as she leaned to the inside of the 
 car, there was a violent lurch and jerk whidi threw her into the middle of 
 the passage way. on her back, inflicting severe injuries. On the trial of 
 the action brought by plaintiff to recover damages for the injuries sus- 
 tained by her, the learned trial Judge withdrew the case from the jury 
 for the reasons (1) that there was no evidence of negligence on the part 
 of the def«idant. and (2* that the plaintiff's evidence was consistent with 
 the view that her own efforts to better her condition, in her fear arising 
 from the motion of the car, resulted in the accident: — ^Held. there bein^ 
 doubt as to the proper inference to be deduced from the facts in proof, there 
 being two reasonable but different views that might be taken, that the case 
 was improperly withdrawn from the jury, and plaintiff was entitled to an 
 order for a new trial with costs: — Held, that, apart from the question of 
 plaintiff's negligence in attempting to turn in her berth, or the occasion for 
 
110 CARRIERS OF PASSENGERS. 
 
 making such a change, there was evidence for tlie jury of negligence on 
 the part of defendant. Senible, that a train should not Ije managed in 
 BUch a way, whether bj' excessive speed in going around curves or other- 
 wise, that a passenger sliould be thrown from the berth bj^ the swaying and 
 lurching of the car, tliis being not at all an ordinary incident in railway 
 traveling. 
 
 Smith V. Can. Pac. Ey. Co., 1 Can. Ry. Cas. 231, 34 N.S.R. 22. 
 
 [Reversed in 31 Can. S.C.R. 367, 1 Can. Ry. Cas 255; followed in Loug- 
 heed v. Hamilton, 1 Alta. L.R 17, 7 W.L.R. 204; referred to in Jackson v. 
 Can. Pac. Ry. Co., 1 S.L.R. 88.] 
 
 KbGLIGENCE — PASSE-NGKR IX SLEEPING BERTH. 
 
 S., an elderly lady, was traveling on a train of the C.P.R. Co. from 
 Montreal to Toronto. While in a sleeping berth at night, believing that 
 she was riding with her back to the engine, she tried to turn around in 
 her berth, and the car going around a curve at the time she was thrown out 
 on to the floor and injured her back. On the trial of an action against 
 the company for damages it was not shewn that the speed. of the train was 
 excessive or that there was any defect in the roadbed at the place where 
 the accident occurred to which it could be attributed: — Held, reversing 
 the judgment of the Supreme Court of Nova Scotia (I Can. Ry. Cas. 231), 
 that the accident could not be attributed to any negligence of the servants 
 of the company which would make it liable in damages to S. therefor. 
 
 Can. Pac. Ry. Co. v. Smith, 1 Can. Ry. Cas. 255, 31 Can. S.C.R. 367. 
 
 Falling from pt.atform of vestibule cab — Moving train. 
 
 Railway companies are not insurers of their passengers. Where a passen- 
 ger while passing through a vestibule from one car to another on a moving 
 train fell from the platform through a door partially opened by some un- 
 known means and was killed: — Held, that there was no evidence from 
 which the jury might reasonably have inferred negligence on the part of 
 the defendants, causing the accident, and the defendants were entitled to 
 a nonsuit. 
 
 Campbell v. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 258. 
 
 [Inapplicable in Bell v. Winnipeg Elec. Street Ry. Co., 15 Man. L.R. 
 344.] 
 
 Negligence in stopping train — Opportunity to alight. 
 
 A railw-ay company which has undertaken to carry a passenger to a sta- 
 tion on its line must stop its train at that station long enough to give the 
 passenger a reasonable opportunity of getting off. If the train stops and 
 the passenger, after making reasonable efforts to do so, is imable to get off 
 before it starts again, and jumps off and is injured, the company is liable 
 in damages; provided, however, that when the passenger jumps off the 
 train is not moving at such a rate of speed as to make the danger of 
 jumping obvious to a person of reasonable intelligence. 
 
 Keith v. Ottawa & New York Ry. Co., 2 Can. Ry. Caa. 23, 3 O.L.R. 265. 
 
 [Affirmed in 5 O.L.R. 116, 2 Can. Ry. Cas. 26.] 
 
 Alighting from train while in motion — Negligence — Contbibutoby 
 negligence. 
 
 The fact of a passenger getting off a train while it is in motion is not 
 necessarily negligence. In every case it is a question to be decided by the 
 jury whether the passenger acted as a reasonable man would do under the 
 circumstances. Where a train, scheduled to stop at a named station, 
 did not on arriving there stop a sufficient length of time to enable the pas- 
 
CAiailElliS OF PASSE >:GEKS. Ill 
 
 sengHV to get oS, and a passenger in attempting to do so, after the train 
 had started again, fell and was injured, and it was found by the jury on 
 the evidence that he acted as a reasonable man would do under the cir- 
 cumstances, the Court declined to interfere with the finding. 
 
 Keith V. Ottawa k New York Ry. Co.. 2 Can. Ry. Ca.-. 26. 5 Oi-R- 116. 
 
 [Referred to in Simpson t. Toronto k York Radial Ry. Co.. 16 OX.R. 
 31; appUed in McDougall t. Grand Trunk Ry. Co, 14 Can. Ry. Cas. 316, 
 8 DX.R. 271.] 
 
 D mix. - n \ E DOOK appixslsces — ^IxJirar to child passexgeb. 
 
 The plaintiff, a boy four years of age, with his parents, was being car- 
 ried as a passoiger on a steamboat of the defendants. The diild and his 
 mother were in a house an the boat's deck. leading from which out on to the 
 deck were doors fitted with appliances intoided to keep them fastened 
 back, when they should happen to be flung wide open. While the plaintiff 
 was in the act of passing through one of the doorways to get out on 
 the deck to his father, the door swim«r to and jammed his fingers, so that 
 the tips of some of them had to be amputated. The plaintiff's father and 
 elder brother swore that the fastening of the door was out of order, and 
 would not hold it back. There was evidence to shew that the doors of the 
 house were frequently being opened and shut by passaigers and others, 
 and that a very few minutes before the accident a passenger had gone 
 through the doorway in question, leaving the door on the swing. It was 
 also proved that the fastenings had been put on the door in order to hold 
 them op«i in warm weather for the purpose of ventilation. In an action 
 on the ease for negligence brought on the part of the plaintiff by his 
 father as his nest friend against the company to recover damages for the 
 injtuy above mentionfd: — Held, that there was no duty cast upon the de- 
 foidant company to provide the doors with the appliances mentioned or 
 to maintain them in goo<i working order: and. even if they were, the 
 evidence went to shew that the proximate cause of the accident wa* the 
 act of the passenger in leaving the door on the swing, for which the com- 
 pany could not be held liable. 
 
 Cormier V. DcHninion Atlantic Rv. Co., 3 Can. Ry. Cas. 304. 36 X.B.R. 
 10. 
 
 CaOWIffiD TKAIXS SXASDrXG ox PtATFOSM COXTMBTTOBT XBGOGEXCE: 
 
 The plaintiff when traveling by a train of the defendants was forced 
 by overcrowding to resort to the platform outside one of the cars, and 
 for better protection sat down on the second step, and while so sitting was 
 thrust out by a swo^e of the train, which made the pe<iple standing on 
 the platform press up against him suddenly. This caused him to lose 
 his Ittlance, and one of his l^s protruding, was struck by some fi3cture on 
 the track, and he sustained injuries: — Held, that the defendants were lia- 
 ble. [Metropolitan Ry. Co. v. Jackson (1877), 3 App. Cas. 193, specially 
 referred to.] 
 
 Burriss v. Pere ^ilarquette Ry. Co.. 4 C«n. Ry. Cas. 251, 9 OX.R- 259. 
 
 Latent defect ix wheel or cak — Derailment. 
 
 The plaintiff brought this action for injury sustained by her owing^ 
 to the breaking of a flange in the hind wheel of a car of the defendants, 
 on which she was a passenger, on the occasion of an excursion, causing 
 partial derailment and her violent ejection. The flange broke because of an 
 inherent defect in the shape of an airhole at the time of the manufacture 
 of the wheel The defendants did not shew what tests had been applied by 
 the manufacturers of the wheel, or what could be done to detect the flaw; 
 
112 OAERIEES OF PASSED' GEKS. 
 
 neither did they shew that they themselves made any proper examination 
 of the wheel before using it: — Held, that the defendants had failed ade- 
 quately to discharge their duty of examining thoroughly and skilfully the 
 e<iuipinent furnished for the excursion and were liable. Judgment of 
 Clute, J., affirmed. 
 
 Gaiser v. Niagara St. Catharines & Toronto Ry. Co., 9 Can. Ry. Gas. 
 266, 19 O.L.R. 31. 
 
 AU.SEXCE OF FACILITY FOR ALIGHTING CONTBIBCTOBY NEGLIGENCE. 
 
 Plaintiff was a passenger lawfully on a passenger train of a railway 
 company. On arriving at lier destination the train stopped, the name of 
 the place was announced, and the plaintiff, finding the door of the car 
 open, went out and stepped off, expecting to step on the platform, but 
 there being no platform she fell four feet and was injured. It was late 
 at night, very dark, and no lights were provided and the plaintiff was un- 
 familiar with the surroundings: — ^Held, that under the Railway Act it was 
 the duty of the company to provide proper facilities for passengers alight- 
 ing from their trains. (2) That the announcement of the station, the 
 stoppage of the train, and the open door, constituted an invitation to the 
 plaintiff to alight, and an intimation that she might alight safely, and no 
 warning being given the company was guilty of negligence if the passen- 
 ger, without contributory negligence, did not alight safely. (3) That 
 under the circumstances the defendant was entitled to alight, and there 
 was no contributory negligence in not satisfying herself that there was a 
 platform to alight upon. 
 
 Wray v. Can. Northern Ry. Co., 10 Can. Ry. Cas. 196, 3 Sask. L.R. 42. 
 
 PaSSENGEE crossing tracks at STATION. 
 
 Tlie plaintiff sued the Wabash and Grand Trunk railway companies to 
 recover damages for injury caused to her by a train of the Wabash com- 
 pany, at the Belle River railway station. The railway was owned by the 
 Grand Trunk company, the Wabash company having running rights over it. 
 The plaintiff was a passenger on a Grand Trunk train, and alighted at the 
 Belle River station for the purpose of going to the village, lliere were 
 two tracks, running east and west, and the plaintiff was on the platform 
 on the north side of the two tracks, which she had to cross in a southerly 
 direction to reach the village. At the easterly end of the station platform 
 was a sidewalk and pathway for foot passengers, but this pathway where 
 it crossed the railway right-of-way was not a public highway, but the pri- 
 vate property of the Grand Trunk company. The Grand Trunk train by 
 which the plaintiff had arrived was on the southerly track, and the plain- 
 tiff was standing just clear of the north track, waiting for that train to 
 proceed easterly before she attempted to cross. As the last car reached 
 the crossing, she stepped upon the north track, in front of a Wabash train 
 approaching from the east, and sustained the injuries complained of. 
 There M'as nothing to obstruct the view from the platform to the ap- 
 proaching Wabash train, and warning of its approach had been given by 
 whistling. The jury found negligence on the part of both companies — the 
 Grand Trunk, because "they should have taken more care of the passen- 
 gers on account of the train being late:" and the Wabash, because they 
 "did not take proper precautions knowing that the Grand Trunk train 
 was late": — Held, that the action was properly dismissed by the trial 
 Judge, whether as upon a nonsuit because there was no evidence of negli- 
 gence on the part of the defendants, or either of them, or upon the findings 
 of the jury, in effect negativing negligence other than as found by tliem, 
 and they having found no act of negligence wliicli caused the injury. Judg- 
 ment of Middleton, J., affirmed. Per Riddell, J. That it was properly 
 
CARRIER8 OF PASSEXGEliS. 113 
 
 mkd at tte trial tlMt the statioD-aastcr « statement after the aceideat 
 «ms aot afdauanUe aa eiidcare agaiast tte defeadaats: [Wilsoa t. Bots- 
 fontJoiks Col (1902), 1 O.W£. 101] :— Held^ ako. per enriam, that a ne«r 
 trial ahould aot be ordered. Per Hahick. CJ.:— That thexe va;$ ao 
 reasoa to snpfwee that apoa a aev trial the evidence vooU be difliexent; 
 aad ao exccptiaa eoaU be taken to the chai^^ the Jod«e hariag iastmtted 
 the jaij that, if ther fonad aest^eaee cassiag the accideat. ther mmA 
 gn further aad fiad the particalar act of acgli^eace which eau^d the 
 aeddoit. Per Biddril, J.: — ^That it would be iaaproper to $eod the ca«e 
 back for a aew trial oa the sappoaitiaa that aaother jorr aiight fiad 
 aoae ^crific act of acsligeBce which the f otii jviy eoald aot. [Gaoled^ 
 T. Torarto Kj. Co. (1907), 10 0.\fJL 739.] ScbUb, per Kidddl, J.:— That, 
 erca if aegligaMe had beea ^vred agaiaiiit the defradaats. the plaiatiff 
 toold aot nworer, for et e riih iag |Hoved was eoausteat with the ^aiatif s 
 owa BCgli^caee, aad th«e was aothia^ to eoatraiadicate it. 
 
 Aatajra v. Wabash Br. Cou 12 Caa. Rt. Ca£. *4». 24 OJjJL 8& 
 
 DVTT TO CIOSE TESmnx BOOB — ^Fr?ri«SG as to TSBOJeESCK. 
 
 Upoa a qoestioB <rf fact, as to whether the rear -retstibule aad trap 
 doMS of a dar car of a railwav traia, oa which car the plaiatiff was ridia^. 
 woe closed w^ile the traia was staadia^ at a certaia statioa; whexv the 
 jnrx faalaaccs the probabilities (at oa the testiaiaaT of the defcadaat 
 coaqiaar's coadnetiM- aad brake— a fin- the a^atire aad (b) oa that of 
 the plaiatiff aad a diaiatcre^tod witaess for the affinaatire, aad finds 
 oa that poiat for the plaiatiff, such finding is withia the jniy's province 
 and will not be dtstnrfaed. 
 
 Mel>oajEUl T. Grand Tnmk Rt. Co. (Ont.)t. 14 Can. Bt. Cas. 31*. 8 
 DiwR. 271- 
 
 HOTBUCESrEB — CoXTETJtXCE OF CCTST FBOV STATIOX ^HlKE OF OMXIBrS. 
 
 Buhn- T. PMlock. 4 W.L.K. 327 II Terr. «. 
 
 Pas«exgex AnKunrxG to boabd cab — Frxmxcs of jtwt — EynmscE — 
 Dahages. 
 P'Ere V. Tmonto Bj. Co.. 3 O.W.X. 3Sv 20 O.WJL 5. 
 
 CoyraiBTToaT s:e)g.u«£xce — Cji« lEAnsG tsack — ^Passexc^ jvu rvs e 
 rwau CAK. 
 
 Shea T. Halifju k S.W. By. Col. 3 E.L.IL 431 (X.S-». 
 
 XECUCXXCC of STKEET KAII.W-AT AtXOWIXC TDIE TO AUCHT — TXTWXESCES. 
 
 Where the eircaaijtanccs of the case are sveh that positive «M direct 
 eridenee of specific ac^ligence cannot be given, as where a street car had 
 t*tiipprd to pennit a paasenger to alight, and the latter, while in the art 
 of al^tiag. is mdered naconscioos so as not to be able to nmonbei^ 
 what happened after gettiag to the car step, aad where it is proved that 
 when the car had proceeded only a short distance ahead without knowl- 
 edge of the acrident by any one on it. the passenger was foond injurvd 
 and nnconacions by the trad^. aad where there was no evidence to indi- 
 cate any intervening cause, the jorv may infer in the absence of anv evi- 
 dence for the defence, that the car had been aegl^ently started before the 
 passei^er had alighted, and that -*och m^igence caiued the fall and f«n- 
 seqnent injnrie$^ [Schwartz v. Winnipeg Elec. By. Co„ 9 D.L.R. TftS. 23 
 Man- I_R. 60. affirmed: McArthnr v. Dominion Cartridge Co.. [1905] A.C. 
 72. and Grand Tmnk Ry. Co. v. Hainer. 36 Can. S.CJJ. ISO. followed." 
 
 Winnipeg Hee. By. Co. v. .Schwartz. 17 0»n. By. Cas. 1, 49 Caa. S.C R. 
 90, 16 D.L.IL 6S1. 
 
 Caa- Ry. L. Dig. — Sl 
 
114 CARRIERS OF PASSEA'UERS. 
 
 EviDKNCE — Presumption of nkgi.iokxce — Dekailmkxt — Who abe passbh?- 
 GKKs — Person obtaining beduckd fare wrongfully. 
 
 The presumption of ne<>li'fence arising from an injury to a passenger 
 as the result of the derailment of a car at a switch over which many pas- 
 senger trains ])asse(l daily, is not displa<'ed by the railway company shew- 
 ing tliat tlie accident was caused by the working out of an insecurely 
 fastened bolt from a switch rod, if tlie defective condition should have been 
 discovered by ordinary care. The fact that a person who was injured by 
 the derailment of a passenger car, obtained his ticket at a reduced rate by 
 presenting a commercial traveler's card after he had ceased to be en- 
 titled to use it, does not make him a trespasser on the train so as to 
 relieve the carrier from liability. 
 
 Ashbee v. Can. Northern Ky. Co., 18 Can. Ky. Cas. 87, 14 D.L.K. 701, 
 6 Sask. L.K. 135. 
 
 Derailment of cab — Effect of, in negligence ( ases — How waived. 
 
 Although proof of derailment of a railway car and its resultant injury 
 generallj' establishes a prima facie case of negligence against the defendant 
 company in a personal injury action, yet the plaintiff who goes further 
 and undertakes without success to shew specifically the cause of such de- 
 railment thereby waives the prima facie case upon which he might other- 
 Avise have relied. 
 
 Curry v. Sandwich, Windsor & Amherstburg Ry. Co., 18 D.L.R. 685. 
 
 Passenger stepping off moving tbain — Invitation to alight — Negli- 
 gences 
 
 The conductor of a vestibuled car, in the service of the defendant com- 
 panj'', on a dark night, after announcing the station, said to a passenger, 
 "Tliis is your station; this is where you get oil'.'" and opened the door of 
 the car, and going into the vestibule, opened tlie trap or outside door, and 
 tlie passenger followed down the steps, unwarned l)y the conductor, and 
 stepped off the train while it was in motion, and was fatally injured. 
 The court was equally divided as to whether or not tlie defendant company 
 was guilty of negligence. 
 
 Mayne v. Grand Trunk Ry. Co.. 22 Can. Ry. Cas. 199, 39 O.L.R. 1, 34 
 D.L.R. 644. 
 
 [Reversed in 22 Can. Ry. Cas. 218.] 
 
 Passenger stepping off train — Invitation to alight — Xegligenck. 
 
 A conductor of a passenger train, who after telling a passenger that the 
 next stop is his station, '"where you get off," oj)ened the door guarding the 
 steps of the car, and allowed the passenger to go down the steps from which 
 the passenger stepped off, while the triiiii was still going at a high rate 
 of speed, was not guilty of negligence: the conductor was entitled to assume 
 that the passenger would act with ordinary prudence and di.seretion. 
 [Mayne v. (irand Trunk Ry. Co., 22 Can. Ry. Cas. 199, 39 O.L.R. 1, 34 
 D.L.R. 644, reversed.] 
 
 Grand Trunk Ry. Co. v. Mavne, 22 Can. Ry. Cas. 218, ^6 Can. S.C.R. 
 95, .19 D.L.R. 691. 
 
 [Approved in Can. Pac. Ry. Co. v. Hay, 46 D.L.R. 87, 24 Can. Ry. Cas. 
 359, 58 Can. S.C.R. 283.] 
 
 Stbeet Railways — Invitation to alight while cab moving — Negli- 
 gence. 
 
 The opening of the door of a street car by the conductor at a regular 
 stopping plaee is prima facie an invitation to alight: and if the car is 
 moving slowly so that a reasonably careful passenger thinks the car has 
 
CARKIERS OF PASSENGERS. 115 
 
 •toiled, it is negligieiice on the part of the company. [Mayne v. Grand 
 Tnmk Ry. Oa.. 39 O.LIL 1. 34 D.L.K. tUA ((reverb in 56 Can. S-C.R. 
 95. 39 D.LuR. C91. ±2 Can. Ry. Cas. IW". 21* l referred to.] 
 
 Gaxej \. Toronto Ry. Co_ ±» Can. Ry. Ca*. ±33. 4rt O.L-R. 449. 3S D-L.R- 
 S37. 
 
 Street «jui.wat — Ix4t:«t to pek^ox attempti:x<. to esttx Monxc cj* — 
 
 ■*IXTrrATI05~ SrOOEX IX«BE-%s»E of speed XegUGENCE COSTEIBC- 
 
 TOKT XBGHGE>"CE ETIWESCE FlN»lXGS OF JVWr. 
 
 The plaintiff, a vorkingman. elderly tmt aetire. vas crossing froin the 
 ■orth side of a street to the south with the intention of becoming a passen- 
 ger npon an east bound car of the defendants, vhieh had readied a st<^ 
 ping place and was standing ^ill. and which he eould not enter except by 
 the rear door on the south side. The car be«an to move when he was 
 about halfway across the street, but the niotomian motioned him to go 
 in front of the car, and stopped it: the plaintiff pa.««ed in front of the car 
 aind proceeded to the rear end of it: >iwf<»re he reached that end, the car 
 had (without any signal from the conductor! b^un to move slowly: the 
 plaintiff attempted to step on: but. as he did so, the car gave '"a. sudden 
 jolt forward." he failed to get on the step of the platform. feU. and was 
 injured. At the trial of an action for damages for his injuries, there was 
 no conflict of te^imony: and the jury found: (In That the plaintiff was 
 invited by the motorman to get on the car when it was in motion: (3) that 
 the danger of getting on the C4r when in motion was not so obrioas that 
 a reasonable man would not have accepted the inTitati<»: (31) that the 
 plaintiff's injuries were tensed by the negligence of the defendants: 
 (4)1 in *^not seeing the passenger safely on the car:'' (.3) no contributory 
 negligence. The Court aiGrme«l a judgmmt for the plaintiff, the findings 
 of the jury lieing considr-red such a.s reasonable men might make upon the 
 evidence. Per Meredith. CvJ.CP.: — ^The conclusion that reasonable mMn 
 could find that the car was stopped to take up the plaintiff being reached, 
 the finding mu<t W for the plaintiff on the question of the defendants' 
 negligmce: because it was negligent to put the car in motion again until 
 the motorman was signalled by the conductor to do so. Proof of the fact 
 that a person attempts to board or alight from a street car in motion is 
 not necessarily proof of ctntributory negligence. The question is, whether, 
 in all the circumstances of the case, the attempt ^lews a want of that 
 care which is ordinarily taken in the like circumstances. It must always 
 be a question of circumstances, and generally a question for the jury. A 
 standing car is not necessarily an invitation to enter, if an invitation be 
 needed: neither is a slowly moving car a revolution of an invitation — if 
 there were any — so long a:^^ the door is open and no attempt is made to 
 prevent boarding or alighting. The word ~invitation~ is inappropriate 
 and aften misused. The defendants are <(^iTiers for hire, obliged to cany, 
 not those they invite, but every one wiHin:r to pay the fare. Per Lennox. 
 -I.: — ^There was evidence upon which the jury could reasonably reach 
 their conclusions, and the judgment ^ased on their findings could not prop- 
 erly be disturbed. Per Rose. -J.: — If any invitation was to be fonnJ. it 
 was to be found from all the acts sworn to — the stopping, the motion made 
 by the motorman. and the starting >lowly forward: and the jury might 
 treat these acts as constituting an invitation to enter the car when it was 
 in motion. It was said that, whatever might W thought about the plain- 
 tiff trying to enter a slowly moving car. he oi^ht to have desisted as soon 
 as he found the speed increased. But. on the evidence, the plaintiff wa* 
 confronted with a sudden emergency, and it was open to the jury to find 
 that bis perseverance in his attempt to enter the car was the result of 
 
116 CARRIERS OF PASSENGERS. 
 
 an error of judgment, in that emergency, which ought not to be called 
 jiogligent. 
 
 Hill V. Toronto Ry. Co., 22 Can. Ry. Cas. 240, 40 O.L.E. 393. 
 
 llKQUEST TO BBAKKMAT^ TO STOP TRAIN — AORKKMEXT TO SLOW UP DIREC- 
 TIONS TO PASSENGER TO JUMP. 
 
 A request by a passenger to a brakeman to allow him to get off the train 
 at a certain station, casts upon tl>e brakeman the obligation of seeing that 
 tlie proper steps are taken to have the train stopped, and upon the company 
 the obligation of stopping it; if the brakeman acting within the apparent 
 scope of his employment refuses to stop the train but slows it down, and 
 allows the passenger to jump from it. telling him when to jump, the 
 company is guilty of negligence and liable for resulting injuries, unless the 
 train was traveling at such a speed that no reasonable man would jump 
 from it even under the direction of a train official. 
 
 Hay V. Can. Pac. Ey. Co., 23 Can. Rv. Cas. 275, U Sask. L.R. 127, 40 
 D.L.R. 292. 
 
 [Reversed in 46 D.L.R. 87. 24 Can. Ry. Cas. 359, 58 Can. S.C.R. 283.] 
 
 Derailment of cabs — Cab deifective — Xbgligence — Proof. 
 
 The plaintiif was injured by the derailing of a passenger coach in which 
 he was riding as a passenger on defendants' railway; t!ie cause of the de- 
 railment was the breaking of an e(|ualizing bar. The Court held that the 
 maxim res ipsa loquitur applied and that by proving that the car in which 
 lie was riding ran off the track the plaintiff made a prima facie case of 
 negligence and tliat the duty then devolved upon the defendant to shew 
 that the accident was not due to any f-ault or carelessness on its part. 
 As carriers of passengers the defendants' undertaking was to exercise a 
 high degree of care, and to carry safely as far as reasonable care and fore- 
 thought could attain tliat end. The verdict of tlie jury that the negligence 
 of the defendant consisted "in not having proper inspection or testing of 
 equalizing bars, since it has been known of their breaking," was justified 
 on the evidence. 
 
 Pyne v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 281, 43 D.L.R. 625. 
 
 [Affirmed in 48 D.L.R. 243.] 
 
 Refusal to stop train for PASsK.vnKR to alight — Aorefment" to slom' 
 UP — Passenger jumping under direction of brakeman. 
 
 A traveler on a railway train who, wishing to alight at a station where 
 the train does not stop and wliich is not the destination to which he 
 has bought his ticket, assents to a suggestion of the brakeman that the 
 train should be slowed down in order that he may jump from the moving 
 train, takes all the risk of alighting, althougli he acts under the direction 
 of such brakeman as to when it is safe to do so. [Hay v. Can. Pac. Ry. Co., 
 40 D.L.R. 292, 23 Can. Ry. Cas. 275, reversed; Grand Trunk Ry. Co. v. 
 Mayne (1917), 39 D.L.R. 691, 22 Can. Ry. Cas. 218, approved.] 
 
 Can. Pac. Ry. Co. v. Hay, 40 D.I..R. 87, 24 Can. Ry, Cas. 359, 58 Can. 
 S.C.R. 283. 
 
 B. Duty of Protection; Trespassers. 
 Detachment of car — Duty of notice. 
 
 Beyond the obligations, arising from the contracts for transport, to 
 protect the persons and preserve the property of passengers, a liability 
 attaches to common carriers for any loss occasioned by the negligence 
 of their officials. And it is negligence for employees of a railway com- 
 
CARRIERS OF PASSENGERS. 117 
 
 puiT. vho detaeh one ear fn»i a train in the course <tf tiansit to civ« 
 notioe tj4 such action in tbat ear alone and fail to do so in tike others 
 to one <rf Thieh a passnger interested auiT have taBporarilr betaken him- 
 
 Great Xortkm Rt. Co. v. Tainar, 18 Que. KJB. 72. 
 
 ASSACUI ox PASSEXGES — ^DCTT OF OOXDCCniK. 
 
 If a pamrn^i on a rulvay tnin is in danger of injmy fnxn a feDov 
 IMMiin^ii, and the eoadndor knovrs, or has an <q»p<nrtiinitr to knov. of 
 such dai^er, it is the dnfy of the btter to take pmaotioBs' to pivn^ it, 
 and if he fails or ne^eets to do so the company is liable in ease the 
 thrcntened injniy is inflicted. [Pottnder v. Xortii-Kaetern Ry. Gol, [1S92J 
 1 Q3. 383, disamted froaa.] Jadgnent oi the Court id Appeml, 3 Q. LuB. 
 334, affinned. 
 
 Can- Pac Rt. Co. t. Blain, 34 C>n. &CJL 14. 
 
 [I-«a^ to afipeal fron this jn dg aae nt was afterwards r^osed by the 
 PriTT Connen, [1904] JLC. 4,33.] 
 
 Assault bt feixow pjlssexoes — Dcties of cosdcciok. 
 
 (1) Xot onhr in the exerdbse of his gtatral anthority but with ref- 
 c w nce to the rales of the defendants, a eoBdoetor has the r^t to jtn- 
 serve order on a train, and, if neecssary, to ejeet therefroaa posons who 
 are in a «tate of intoxication, or difxnderly, or who are in£rittgi]|^ the 
 reasonable rules of the railway eonpany, and it is his duty to exereiee 
 that right in order to oisurp the eoBfort and safety of pa£«en«er$ under 
 his charge. (So A railway ccanpany, tfaroogh the conductor, is chaiged 
 with the duty of pre$<nT-ing order on a tiain, and is liable f(H- injuries 
 rowtained by a passenger in eoaseqiMnee at violenee inflicted by a fdlow 
 f wwmger , provided the railway company has had noticie thro^b its 
 empknnees of the danger ci Titrieaee, and has iailed to reasoaably dis- 
 charge its duty. 
 
 B^in T. Can. Pae. By. Ccu ± Can. Ry. Ck& 69. 
 
 [AJfiraied in .5 OX.iL .334, 2 Can. Ry. Ca& S3; varied in 3 Can. Ry. 
 Cas. 143. 34 Can. SXJL 74: dimngui^hed in Galbiaith t. Can. Pae. Rt. 
 Co.. 17 Can. Ry. Ca*. 43, 17 DJ..R- 65.] 
 
 j%SSACXTS OX PASSEXGHtS — DCTIES OF COXDCCIOn. 
 
 The plaintiff, a ticket bolder and pasaenger on one of the defendants' 
 trains, was. without any proTocation. a^ssaahed sevoal times by a drunken 
 man. The c«Hidnct<H- did not see the assanltB, but was told of them, and 
 of the assailant's threats to continue them, and yet rvfosed to restrain 
 the latter or to put him off tiie train: — Held, that the defendants' duty 
 to the plaintiff as a pas$«9iger was to carry him to hi$ destination, and 
 use reasonaMe care and diligence in pnoviding for his comf<iN-t and safety 
 while so eoBTining him: and that it ^ras for the jury to decide whether 
 the eondactor had acted reasonably and diligently, and judgment upon a 
 Tvrdict of the jury in the plaintifi"^ favor was affirmed: — Held, alio, that 
 eridence was rightly rejected of improper relations Wtweeai the plaintiff 
 and the wife of his assailant, all^wd as provocation for the assaults. 
 [Pounder v. XorthEastem Ry. Co., 1 1^*2 J 1 Q.B. ,S*.i. diseassed.] 
 
 Blain t. Can. Pae. Ry. Co., '2 Can. Rv. Cas. 85, 5 OJ-^ 334. 
 
 [Varied in 34 Can. S.C-R. 74, 3 Can." Ry. Cas. 143.] 
 
 Daxgek or ASSAn-T cpox — ^Dcrr or bati.wat to rmnrrBrr. 
 
 If a railway company through it?^ officers know that an assault upon 
 a passoiger is probable it is the formers duty to take reasonable precau- 
 tions to prevoDt it, and if it fails to do so it is liable for its ncigledt to 
 
118 CAlilUERS OF PASSEK^GERS. 
 
 do so. [Pounder v. North-Eastern Ry. Co., [1892] 1 Q.B. 385, doubted.] 
 At the trial damages were claimed and allowed for a .second and third 
 attack upon the plaintiff, and this judgment was aflirmed by the Coiu-t 
 of Appeal for Ontario, but lield also that there was no evidence that 
 fvither tlie plaintiff or defendants had any reason to anticipate the second 
 uitack, and a new trial was granted unless plaintiff would accept a re/luc- 
 tion of damages from $.'{,r)00 to $1,000. Judgments of Falconbridge, C.J., 
 at the trial (2 Can. I{y. Cas. Oft), and of the Court of Appeal for Ontario 
 (2 Can. Ry. Cas. 85), varied. 
 
 Can. Pac. Ry. Co. v. Blain, 3 Can. Ky. Cas. 143, 34 Can. S.C.R. 74. 
 
 [.Second appeal dismissed in 4 Can. Ry. Cas. 429, 36 Can. S.C.R, 159; 
 leave to appeal refused by Privy Council, [1904] A.C. 453.] 
 
 Assault by fellow passi.ngkr. 
 
 B., a passenger on a railway train, was thrice assaulted by a fellow 
 ])assenger during the passage. The conductor was informed of the first 
 assault immediately after it occurred and also of the second, but took no 
 steps to protect B. In an action against the railway company, B. recov- 
 ered damages assessed generally for the injuries complained of. The ver- 
 dict was maintained by the Court of Ai)j)oal l)ut the Supreme Court of 
 Canada ordered a new trial unless B. would consent to his damages being 
 reduced (34 Can. S.C.R. 74, 3 Can. Ry. Cas. 143). In the reasons for the 
 last-mentioned judgment, it was held that damages could be recovered for 
 the third assault only, but the judgment as entered by the registrar stated 
 the Court ordered the reversal of the judgment appealed from and a new 
 trial unless the plaintiff accepted the reduced amount of damages. Such 
 amount having l)een refused, a new trial was held on which B. again ob- 
 tained a verdict, the damages being apportioned tetween the second and 
 third assaults. On appeal to the Supreme Court of Canada from the 
 judgment of a Divisional Court maintaining this verdict: — Held, Tasche- 
 reau, C.J., and Davies, J., dissenting, that as the decree was in accord- 
 ance with the judgment pronoimced by the Court when its decision was 
 given, and as it left the whole case open on the second trial, the jury 
 were free to give damages for the second assault and their verdict should 
 not be disturbed: — Held, per Taschereau, C.J., that the decree of the Court 
 should have been framed with reference to the opinion giving the reasons 
 for the jiulgment and, if necessary, could be amended so as to read as 
 the Court intended. 
 
 Can. Pac. Ry. Co. v. Blain, 4 Can. Ry. Cas. 429, 36 Can. S.C.R. 159. 
 
 Insulting language and conduct by servants to PAsSB:NaEES — Liabil- 
 ity. 
 
 Common carriers are liable, for insulting language and conduct of their 
 servants to their passengers, in damages measured by circumstances, such 
 as the sex and social standing of the party aggrieved, and the nature and 
 gravity of the offence. Hence, when a railway conductor, in a controversy 
 with a lady passenger, as to the fares of her children, says he does not 
 lielieve her. and persists in speaking to her, though told to desist, and, 
 when she moves away, follows her with the annoyance, the company will 
 be condemned to pay her $100, the full amount of her action. 
 
 Tudor V. Quebec & Lake St. John Ry. Co., 13 Can. Ry. Cas. 387, 41 
 Que. S.C. 19. 
 
 Traveling on locomotive — Passenger here licensee — Duty of carrier. 
 
 The relation of common carrier and passenger does not exist when a 
 
 person travels on the locomotive of a coal train without the permission 
 
CARRIERS OF PASSENGERS. 119 
 
 ot so«*e officer v1m» fca» antkorit j to ^ve saA pcmu^dioB, and if iajnrcd, 
 aarik a fcraoa has bo ri^t of action unless injured thro^^ the &das as 
 distn^wdhed fwam the culpa oi the carrier. X. bad a CQntrmct wtth de- 
 fendant tampmmj to r^air a bridge, and vhile riding on the hKomodre 
 of the eoBipanj's eoal train cb his vav to the work, he vas killed by 
 reasiMi at the traim faSiBS throng a bridge. The o^inea- in charge of 
 tbe train (there htimg no eoadnrtor) had no anthoritr to take pasaei^eis. 
 and had m ati t tiiW M not to alknr pei^le to traTel on the ci^ine withoot 
 perausidan finMt aoaae cooqpetcnt anthmritjr, but tlie company's officers and 
 anrants and oth«- persons antborized hy the aanaf^ and »»»«*t ne- 
 ^anir n^ed to ride on the coal train. A fev dars before the acrident 
 X. and the defendants' ■■■nagcr had gone down to the tvidge on the en- 
 gine of a coal train and retnmed <&e saae way the same dar. In an 
 action bj X/s rcpresentatare to reeoTer damages frcns the cmnpanv for 
 his death, the jarr held that the eoanpanT had undertaken to carnr X. 
 as a paascnger: — Heldr on appeal, setting aside jn dg ii nn t in plaint itSTs 
 favoor. that there va:? no evidence to s upp o it such a findi^. and that 
 X. was a "mere liewisee."' Per Hunter. CJT.: The power which a Judge 
 bas to take a case awar from the jnrj should be exereised only when it 
 is elear that fdaintiff nrnld not hold a verdict in his favour; if the matter 
 is rcasonaMr open to doubt the Judge should let the case go to the jurj. 
 and then deride, if neeesBanr, whether thne is anr evidence on which the 
 verdict can be supported. 
 
 Xightingale v. Union Colliery Co.. 2 Can. Ry. Cas. 47. 9 B.CJL 4-53. 
 
 [Affirmed in 4 Can. Ry. Ca^ 197. 35 Can. S.C.B. 65: c«aimented on in 
 Bamett v. Grand Trunk By. Co.. 20 OXJL 390: disrtt$s«d in Ryckman 
 V. Hamilton. Grimshy, ete..'Ry. Co., 10 OJaJS. 419: followed in Rajfidd 
 V. B.C. Elee- Col. 15 B.CR. '366l] 
 
 Defective rudce — GnATcnors PASsexcms — Liawutt or cacsies. 
 
 In the absence of evidence of grow> negligence, a carrier is not liable 
 for injuries sa?tain<e«t by a sratuitoos pasisen^r. [Jloffatt v. Bateman. 
 KR. 3 C.P. 115. followed. Harris v. Perry jt Co.. [1903] 2 K.B. il9. 
 di»tingni^ied.] Althoi^^h a railway c«Mnpany may have failed to properly 
 twaiirtain a bridge Under their control »o as to ensure the safety ot 
 |ienioB< travelins upon their trains, the mere fact of sueh omission oi 
 duty does not eonstitnte evidence of the gross negligence necessary to 
 maintain an acti<Hi in damages for the death of a sratnitous passcs^r. 
 Judgment appealed fram (2 Can. Ry. Cas. 47 ». affirmed. 
 
 N^tingale r. Union CoUiny Col, 4 Can. Ry. Cas. 197, 33 Can. S.C.R. 
 «5l 
 
 [CkMsmted <m in Bamett t. Grand Trunk Ry. Cou 20 OXJL 390; 
 discnased in BjidLma n v. Hamilton. Grimsby, etc.. Ry. Co.^ 10 O.L.R. 
 419; followed in Rayfield v. B.C. £lee. Co.. 15 B.CJB. :i66.] 
 
 CouJSir»;^ — Giattitocs fasskxcsb — ^F«ee pass — iJA B nj rr. 
 
 The fdaintiff brought an action for damages for injuries received in 
 an aeeidatt while traveling on an unconditional free pa^^ upon the 
 defendants' railway. The only evidenee of negli^ace was that there 
 was a head-on collision between two ears on the defendants' line managed 
 by the defadants' servants: — HekL that this being prima facie evidence 
 of negligence, and evm of gross negligence, if such were necessaiy. as 
 to which quaere — the plaintiff was entitled to recover. 
 
 Rvekman v. Hamilton. Grin^fay & Beamsville Elee. Ry. Col, 4 Cmn. 
 Rv-'C^hB. 457. 10 OJLR. 419. 
 
 '[Adopted in Sayera ▼. B.C- Elee. Ry. Co., 12 B.CJL 109; referred to in 
 
120 CAKKIEKS OF PASSENGERS. 
 
 British Columbia Elec. Ry. Co. v. Crompton, 43 Can. S.C.R. 7, 14 B.C.R. 
 226; Lumsdem v. Temiskaming & North. Ry. Co., 15 O.L.R. 469, 7 
 Can. Ry. Cas. 156; North. Counties Ins. Trust v. Can. Pac. Ry. Co., 13 
 B.C.R. 131; Robinson v. Can. Northern Ry. Co., 19 Man. L.R. 315.] 
 
 Collision — Injury to person on train — Licensee ob trespasser. 
 
 In a collision between a van or car of the defendants and a backing 
 train of the Pere Marquette Ry. Co, the plaintiff, who was standing on 
 the platform of one of the Pere Marquette coaches, the foremost one in 
 the train as it moved reversely, and who was on tlie coach not as a 
 paying passenger, but getting a gratuitous "lift" for a siiort distance, 
 was injured. The collision was caused by the negligence of the defend- 
 ants: — Held, that the plaintiff was a licensee, and, not being wrongfully 
 where he was, was entitled to recover damages against the defendants. 
 [Harris v. Perry & Co., [1903] 2 K.B. 219, and Sievert v. Brookfield, 
 35 Can. S.C.R. 494. followed.] And senible, per Boyd, C, that, in the 
 circumstances, the defendants would not be exempt from liability, though 
 the plaintiff was nothing else than a mere trespasser. At the trial the 
 jury found, in answer to questions, that the plaintiff was not upon 
 the train or platform by permission of the Pere Marquette Ry. Co. The 
 jury were not asked to find whether he was there with the permission 
 of the trainmen in charge of the train: — Held, that it was open to the 
 jury to find,, and they should have found, upon the direct evidence as to 
 that occasion, that the plaintiff was there with the knowledge and con- 
 sent of the man conducting the backing operations, and also, on the un- 
 contradicted evidence, that he and others had been there on many other 
 occasions; and this was sufficient to justify a verdict for the plaintiff. 
 At the trial, the parties consented to the Court determining any point 
 necessary for the determination of the rights of the parties not covered 
 by the questions submitted: — Held, that the judgment for the defendants 
 entered upon the findings of the jury should be set aside, and judgment 
 entered for the plaintiff for the damages assessed by the jury; the 
 necessity for a new trial being obviated by the consent. Judgment of 
 Meredith, C.J.C.P., reversed. 
 
 Barnett v. Grand Trunk Ry. Co., 10 Can. Ry. Cas. 46, 30 O.L.R. 390. 
 
 [Affirmed in 22 O.L.R. 84, 12 Can. Ry. Cas. 192; reversed in [1911] 
 A.C. 361, 12 Can. Ry. Cas. 205.] 
 
 Collision — Injury to person on train — Trespasser. 
 
 Tlie Pere Marquette Ry. Co. under an arrangement with the defend- 
 ants, used the yard and station ground of the defendants at London. A 
 Pere Marquette train came into the defendants' station at London, dis- 
 charged its passengers, and was proceeding backwards to its destination 
 for the night, when the plaintiff jumped on board, intending to ride a 
 short distance towards his home. He stood upon the rear platform of a 
 car, and was in that position when a collision took place between the 
 train he was on and a car of the defendants, upon a "lead" of the de- 
 fendants, on which the train was lawfully proceeding, by reason of the 
 negligence of the defendants, whereby the plaintiff was injured: — ^Held, 
 Meredith, J. A., dissenting, that the plaintiff, whatever his position as 
 regards the Pere Marquette Ry. Co., wliether trespasser, occupant at 
 sufferance, or licensee, was not a trespasser upon the rights of the 
 defendants; for the time being the defendants had no right of occupation 
 or passage upon the place where the collision occurred; and the defendants 
 ■were liable to the plaintiff in damages for the injuries caused by their 
 
CARRIERS OF PAiNSEXGERS. 121 
 
 ■e^l^MCL iJui^ttrnt <rf Dmsknal Coiirt, 20 OJUS. 390. 10 Cmm. Rt. 
 €*£. 4fi, aAvMcd.] 
 
 Banett ▼. Grud Trmk Rjr. Co, 12 Cm. Rt. C^a. ISr*. 22 OX^ M. 
 
 (Rerc-racfd in [1911] A.C. 361, 12 Can. Ry. Cas. 205: a^Ued in Di^odc 
 T. Cm. NcsxlMni Rt. Co, 20 Can. Rt. Casw 356l] 
 
 CotXMSKa — TwESTA&^Em — Bbeach or Bcrr. 
 
 In an actkm against Ite appeHaat nflroad tampmrnj far daonages for 
 pcT^eaaal injuries nsBltn^ from roKmam caused br tke n^ igtnct of tiK 
 appdlaatii^ aermaiB it mfptmred tkat tlw eoDisiai took plaw on the 
 propoty 4rf tke a^dlaats to vUck tihe train canTi^ the plaintiff, vhich 
 bdonged to awithcr coapany, had access by their leave and UeencL It 
 fill Ihii appeared that the plaintiff was n trespaaaer on the appdlants* 
 properly and also on the said train, vhich to his knowledge was not at 
 the tiaK in use as a famBoiga train and in whiiA he had taken np a 
 pncarioDs position on the platfMV and step of a carriage in disobe- 
 dieace of a. far-law of boA companies: — Held, that the appdlants were 
 not liabie, for no lma<rh «rf Jntr had bera sh«wn. 
 
 Grand Tmnk Rt. Col t. Bamett, 12 Can. Rt. CksL 203, [1911] JLC. 
 3«. 
 
 [Applied in Diploek t. Can. Northern Rt. Col. 20 Can. Rt. Ci& 356; 
 followed in Ue Vries t. Can. Pat Rt. Co., 2o'Can. Rt. C^s. 375l'] 
 
 TmB^jksssm — Use or Pcxlmas fob rcKrosK or cemxc off tsaec. 
 
 A pa wieng e r in a dsT eoach who finds the ordinaxy mode of esdit at 
 the rear Testibole dosed at Iu» destination, and who thempon enters 
 the adjoining Pullman car in ^scarefa of an opened Testibole, is not a 
 trespasser as to sorfa Pullman coach so as to disentitle him to damages, 
 for personal injuries ivceiTcd in ali^tii^ therefrom. 
 
 HcDtc^^sall T. Grand Tmnk Rt. Col {Ont.D. 14 Ckn. Rt. Cas. 316, S 
 DJ-R. 271. 
 
 TBAXSrOBTATlOX OF KUKMASTS DlTEXTHnr. 
 
 Where imnusrants of Cliinese («%in anp merely passing throng Canada, 
 under a contract with a railway c«aipany for their transp(»tation to 
 a poEat or dei^^ination bEyond the limits of Canada, the railway company 
 (under the proTi^ons of 63-64 Viet. c. 32. since lepealed by 3 Edw. \ 11. 
 c Si. were jo^ified in detaining them, and in refiBEing them pomissioa to 
 luuain on Canadian tmrritoty, they not haTing complied wifli the piocisions 
 of the Act 63-64 Vict. (C.)i, c. 32, then in force, a^Iicahle to Chinese 
 immigrants entering C»mH^ with intention to remain therein. 
 
 Re Wi^ Toy et aL, 4 Can. Ry. Ca^ 410, 13 Que. K-B. 172. 
 
 OBMAILMESr — ^RaII.WAT MAH. CX-EBK as PA^'i^irXGEB. 
 
 The action for damages for injury caused by negligence of a connnoa 
 carrier of passes^cxs is in tart. A duty is imposed by law upon a 
 common carrier of passeogers to cany them safely and secorehr so that 
 no damage or injury shaR happen to them by the negligence or default 
 oi ihn carrier. A breacli of this duty i$^ one for which an action lies 
 which is founded on the canunon law. and requires not the aid of cca- 
 traet to si^port it. It is now settled by law that eiHporations are liable 
 for n^ligence aiKtho- they d«iTe any ultimate pecuniary benefit at not 
 from the performance of the duty imposed on Idiem. If the passeng<er 
 he carried in performanee of a contract, it is immaterial whether be 
 binMMOf negotiated the contract or paid the fare, or whether any fare were 
 paid, or if paid whether it went into the pocket of the d^endant^ Tbe 
 
122 CAKKIEKS OF PASSENGERS. 
 
 ('. & E. Ry. Co. were the owners of a railway between Calgary and Ed- 
 monton, but owned no rolling stock and employed no staflF for the oper- 
 ation of the road. They entered into an agreement with the C.r.R. Co., 
 tlie defendants, "for the regulation and interchange of traffic and the 
 working ol traffic over the railways of the said companies, and for the 
 division and apportionment of tolls, rates and charges, and generally in 
 relation to the management and working of the railways," of the two 
 companies, whereby the defendants agreed to operate the railway linf 
 on behalf of the C. & E. Co. "with a staff and organization appointed b^' 
 the C.P.R. Co. (the defendants), and to provide a service of such efficiency 
 and speed and operate the property of the C. & E. Co. as agents for 
 and on account of the C. & E. Co., as may be required or directed by that 
 company or its officers." The contract also provided that the defendants 
 should not be required to maintain the road "below a point of efficiency 
 necessary to the safe and proper handling of such train service, as may 
 be required for the proper operation of the railway." All the expenses 
 of operating the road were to be paid in the first instance by the de- 
 fendants but were to be charged against the C. & E. Co. under a special 
 clause in the agreement for the apportionment of the tolls and receipts. 
 The rolling stock used in operating the road l)ore the name of the de- 
 fendants. The officials em.i)loyed in operating it wore caps indicating 
 that they were servants of the defendants. The defendants sold tickets 
 entitling the holder to travel over the C. & E. line, and issued a "Time 
 Bill" giving the time tables of the western division of the defendants in 
 Aviiich the line between Calgary and Edmonton was referred to as the 
 "Edmonton Section," and this time bill was endorsed with the names of 
 the leading officials of the defendants. The plaintiff was a railway mail 
 clerk in tlie employ of the Government of Canada, whose duty it was to 
 liandle and attend to the (iovernment mail matter carried on the C. & E. 
 line between Calgary and Edmonton. This mail matter and the plaintiff 
 were both carried under a contract between the Postmaster-General of 
 Canada and the C. & E. Co., and the C. & E. Co. received from the 
 Government the moneys paid for carryin;,' the mail matter, and no part 
 of such mon<'y was received by the defendants. The plaintiff was injured 
 by the derailment of a train, and brougiit action for damages against the 
 ilefendants: — Held, that plaintiff' being lawfully in the mail car with 
 tiie knowledge and consent of the defendants, and a passenger under the 
 charge and care of tlie defendants, a duty was imj)osed upon the defend- 
 ants to carry him safely; tliat for a breach of this duty an action would 
 lie Independentlj' of any contract, and that the question whether or not 
 the defendant company received a reward for carrying the plaintiff did not 
 affect the rights of the parties: — Held, also, against the contention that 
 the defendants were merely agents for the C. & E. Co., and that the 
 officials and workmen operating the road were the servants, not of the 
 defendants, but of the C. & E. Co.. and that the latter company, if any- 
 one, were responsible; that there was evidence to shew that the officials 
 and workmen were the servants of the defendants and that the defendants 
 were not merely agents but were independent contractors: — Held, also, 
 against the contention that the defendants were agents of the C. & E. 
 Co. in operating the road, and were, therefore, liable only for a misfeas- 
 ance but not for a nonfeasance; that the omission to take proper care in 
 respect to the condition of the bridge, and the track, and the running a 
 train" over the track and bridge while in an unsafe condition, would be a 
 misfeasance and not a nonfeasance, and that, therefore, even if the defend- 
 ants were merely agents of the C. & E. Co. they would still be liable. 
 Kenny v. Can. Pac. Ry. Co., 4 Can. Ry. Cas. 474, r, Terr. L.R. 420. 
 
CARRIEKS OF PASSENGERS. 123 
 
 SaFETT at stations As TO THBOWIXG OST BAGGA^ 
 
 Xe^li^Hwe rajmot be predicated agaia^ a railvar eorapanv merplj 
 OB its faihue to protect an intendiiiv pa^^n^er. standinv on a station 
 platfora on its line, from injury due to th*r uBanthorixed acti<Mi of a 
 passenger, mwoanected with tbe railway company, in throwing off hfc< ha»- 
 fsagr while the train |Hi««£cd throt^h without stopping. [Blain t. CJ*.1L 
 Col. 9 O.UR. 3Si. di^inguished.] 
 
 Galbraith r. Can. Pae. By. Cc 17 Can. Ry. Cas. 43, IT D.LR. 65. 
 
 TKCSr.%Ss<CSS ^DCTT TOWA«DS — ^IXJTMES ^LlABHTTT XBCLIbE^C E. 
 
 Erea to tre^Mssers a railway company owe« a duty not to wilfully in- 
 jure them or — '*^"p" their safety: and where trespa:So>er!' are >tcaltbiiy 
 riding on a ledge 14 inches wide at the bai-k of the tender, and the hreaV- 
 ma*m while in the coarse of his employment and without ascertaining the 
 dMg e r ous poi^ition of the tre»pa^t^r» as a rea^«»Bable man would, forces 
 <me at them from the ledge thereby knocking him against the other and 
 cm^ing the latter to fall beneath the train and seriously injuring him. it 
 is snffinent to warrant a jury's finding of the company's negligence: 
 whether or not the brakeman had knowledge of their position, or whether 
 he acted as a reasonable and prudmt man. are questions of fact for the 
 jnry. [Grand Trank Ry. t. Bamett. [1911] A.C. 361. ±» O.L.R. 84. 12 
 Can. Rt. Cas. 192. 2i>5. applied: Bondy r. Sandwich. Windsor k Amherst- 
 horg Rr. Col. 24 0-L.R. 409. 12 Can. Ry- t:as- -57. considered: Lowrey r. 
 Walkerl [1911] A.C. 10. distinguished. See ako Nolan t. Montreal Tram- 
 way* Col. 26 DX.1L .527.) 
 
 Diplock T. Can. Xorthen Rr. Co.. 30 Caau Rr. Cas. 356, 9 Sask. UB. 31, 
 36 DJ*R- *44. 
 
 [Affirmed in 20 Can. Ry. Casc 36a.] 
 
 PaSSEXCIX KniED RT TSAI^ WHE^ AUCHTr!rc TUfit AXOTHXX TCJUX AT 
 
 STATION IXTITATIOX TO AUGHT COCXTntltAXI) FaIL-CTCE TO SMTSG 
 
 KXOWXEDGE OF FASSEVGEB DCTT OF COy©rCTO« AND TSAIXME? TO 
 
 CAKE FO« SAFETT OF PASSE:(GESS FaTAI. ACCIDEVrS ACT — DAMAGES. 
 
 Pesha T. Can. Ps»e. Ry. Co., 14 O.WJC. 135. 
 
 TkESPASSEB — ^XEXaJGESCE — EncT»x. 
 
 A railway company is BaUe to a treqwaaer fw damages sustained b> 
 hiaa in consequence of the reckless indiffercace of a hmkeman. amountin? 
 to negligence, while ejecting another trespasser from the train. [Diplock 
 T. Ctea. Xorthera Ry. Co., 20 Caa. Ry. Cas. 356. 26 D.L.R. »44. 9 S.L.R- 
 31, affirmed.] 
 
 Can. Northern Ry. Co. r. Diploek. 20 Can. Ry. Cas. 365. 53 Can. S.C.R. 
 376. 30 DJL.R. 240.' 
 
 HiCHWAT — Neeugexce — Coixisiox — Private cwxssixgs — Tbesfassos. 
 
 The fact that a roadway used as a tran.smission line for the conrey- 
 anre ot empIoyeeSw oro' which public trarel has b^en forbidden, is ex- 
 tensirehr tised by the puUic does not necessarily constitute it a public 
 hi«jiway so as to charge a railway company with the statutory duty to 
 give wamii^ at highway crossings^ and in the absence of evidence that 
 the Ioc<Mnotive engineer had seen a vehicle approaching the crossing, the 
 railway eo^^aay cannot be held responsible for the collision of a train 
 with a trtspmseiog rdkide at such crossing. [ Royle v. Ca n a di a n Northern 
 Rj. Co., 14 Man. LR. 275, 3 Can. Ry. Cas. 4; Grand Trunk Ry. 0»- 
 
124 CARRIERS OF PASSENGERS. 
 
 V. Anderson. 28 S.C.R. 541; Grand Trunk Ry, Co. v. Barnett, [1911] 
 A. C. 361, 12 Can. Ry. Cas. 205, followed.] 
 
 De Vries v. Can. Pac. Ry. Co., 20 Can. Ry, Cag. 375, 27 D.L.R. 20, 26 
 Man. L.R. 156. 
 
 C. Ejection from Train. 
 Passenger befisixg to pay fare. 
 
 By g. 248 of the Railway Act, 51 Viet. c. 29 (1888), any passenger on a 
 railway train who refuses to pay his far^e may be put off the train: — Held, 
 reversing the decision of the Court of Appeal, 20 A.R. (Ont.) 476, and of 
 the Queen's Bench Division, 22 O.R. 667, Fournier, J., dissenting, that the 
 contract between the person buying a railway ticket and the company on 
 whose line it is intended to be used, implies that such ticket shall be pro- 
 duced and delivered up to the conductor of the train on which such person 
 travels, and if he is put off a train for refusing or being unable so to pro- 
 duce and deliver it up, the company is not liable to an action for such 
 ejectment. [20 A.R. (Ont.) 476, affirming 22 O.R. 667, reversed.] 
 
 Grand Trunk Ry. Co. v. Beaver, 22 Can. S.C.R. 498. 
 
 [Leave to appeal to Privy Council refused, 23 Canada Gazette, 320. See 
 Quebec Central Ry. Co. v. Lortie, 22 Can. S.C.R. 336; Jones v. Grand 
 Trunk Ry. Co., 18 Can. S.C.R. 696; Oldright v. Grand Trunk Ry. Co., 22 
 A.R. (Ont.) 286, Canadian Pacific Ry. Co. v. Chalifoux, 22 Can. S.C.R. 
 721; Haist v. Grand Trunk Ry. Co., 26 O.R. 19, 22 A.R. (Ont.) 504.] 
 
 [Distinguished in Haines v. Grand Trunk Ry. Co., 16 Can. Ry. Cas. 359, 
 15 D.L.R. 174, 29 O.L.R. 558.] 
 
 Drunken passenger. 
 
 The deceased was a passenger on the defendants' train from Detroit to 
 Buffalo. Between Detroit and Bridgeburg he drank heavily, and when near 
 Bridgeburg began to annoy passengers, and the conductor compelled him 
 to leave the train at that station, which was 700 feet from the end of tlie 
 International Railway Bridge over tlie Niagara River, and the deceased, 
 who was not given into the charge of anybody, being intoxicated, strayed 
 after the train on which his luggage remained, and fell over the bridge 
 and was drowned. It would have been easy to have taken care of deceased 
 and to have prevented him interfering with the passengers. At Bridge- 
 burg the train was only 5 minutes' run from the City of Blaek Rock, and 
 only 20 minutes' run from Buffalo, its destination: — Held, that the de- 
 fendants were liable, inasmuch as the act of the deceased was what it 
 miglit reasonably be expected that a man in his condition would do upon 
 being put off the train when and where he was put off, and that the 
 damages were not too remote. 
 
 Delahanty v. Michigan Central Ry. Co., 3 Can. Ry. Cas. 311, 7 O.L.R. 
 690. 
 
 [Reversed in 4 Can. Ry. Cas. 451, 10 O.L.R. 388.] 
 
 Disorderly passenger — Expulsion from train — Drowning while fol- 
 lowing TRAIN. 
 A passenger traveling from Detroit to Buffalo on defendants' train, who 
 was somewhat excited from liquor, but physically capable of taking care of 
 himself, was guilty of several disorderly acts, amongst others of molesting 
 fellow passengers. He was put off the train at Bridgeburg, a station near 
 the Canadian end of the International Railway Bridge crossing the Niag- 
 ara River, and about a mile distant from his destination. He followed 
 the train on foot and after a scuffle with the bridge fiuard jumped or fell 
 off the bridge into the river and was drowned: — Held, that the defend- 
 
CARRIERS OF PASSENGERS. 125 
 
 ants were justified in puiting him oB the train, and were neither obliged 
 to put him under restraint and carry him to Buffalo, nor to place him in 
 cfaar^ of »ome one at Bri<%eburg. On the evidence it was impo^ible to 
 sar whether deceased fell off the bridge accidentalir or threw hini>«lf off: 
 or that his death was the natural or probable result of his being removed 
 from the train: — Held, also that there was no evidence of any negligence 
 on the part of the defendants to be submitted to a jurv. .Judgment of 
 Britton. J^ 7 O.LJJ. 690, 3 Can. Ry. Cas. 311. reversed. 
 
 Delahanty v. Michigan Central Ky. Co.. 4 Can. Ey. Cas. 451, 10 O.L.R. 
 38S. 
 
 [Followed in Dunn v. Dominion Atlantic Rv. Co., 23 Can. Bv. Cas.. 43 
 D.L.R. 51.] 
 
 Right to pabtictla* seat — Acthomtt of cosDrcroB — Smoklxg cak. 
 
 The plaintiff. B.. entered a smtd^ing car of the defendant company and 
 took a vacant seat, although told by the persons sitting near that it was 
 taken and vacated temporarily. Upon his refusing to vacate the seat after 
 having been, by the conductor, twice required to do so. the conductor re- 
 moved him forcibly without using unnecessary force and placed him in the 
 passageway pointing him to vacant seats: — Held (li. that the plaintiff 
 could not recover damages for an assault or removal from the seat: the 
 conductor having full authority to determine what seat a passenger is to 
 occupy. (2 1 That railway companies are not Imnnd to fumi^^h smokin? 
 cars or any particular description of car beyond what the passenger's 
 ticket calls for. 
 
 Brazeau v. Can. Par. Ry. Co., 8 Can. Ry. Cks. 477. 
 
 Erecnox fsom tkaix — Threats axd force — Tresp-vs-ser. 
 
 The respondent (plaintiff) while leaving a train of the appellants (de- 
 fendants), on which he had been stealing! a ride, met with an accident by 
 falling from the train, resulting in the loss of his arm. The plaintiff said 
 that the conductcM' did not touch him. but used threatening lai^uage in 
 ordering him off the train, while a witness stated that the conductor put 
 the plaintiff off the train by force. The conductor and witnesses called for 
 the defendants save evidence that no physical force was used, and the 
 conductor denied speaking to the plaintiff. The jury found that the de- 
 fendants were to blame because the conductor had no right to put him off 
 the train while moving, and assessed the damages to the plaintiff at ^.000. 
 A new trial was ordered by the Court of Appeal on the following grounds : 
 (1) the damages were excessive; (2» the verdict was against the weight 
 of evidence, and (3> on account of the uncertainty as to the meaning of 
 the answers of the jury. Meredith. J.A.. dissenting. Per Osier. JJk.: — 
 But for the evidence of Egerton the action should have been dismissed. 
 Upon appeal to the Supreme Court of Canada the order for a new trial 
 was affirmed. Fitzpatrick. CJ.. and Davie*. -J., dissenting. Per Anglin. 
 J.: — ^Putting aside the evidence of Egerton. the case involves two questions 
 of fact, which should be submitted to the jury. ( 1 ) Did the plaintiff leave 
 the moving train under ctMnpuIsion of the conductor's order, having rea- 
 sonable ground for believing that if he did not obey, he would be put off 
 by physical force. < 2 1 Having regard to thtf circumstance*, the place at 
 which the order was given and the speed at which the train was moving, 
 was the conduct of the conductor in giving this order proper and reason- 
 able? Per Anglin and Duff, JJ^.: — ^The evidence as to the rate of speed 
 was distinctly conflicting, and was not such that **only one conclusion 
 can be drawn." The power conferred by Rule 817 0-J_^ is discretionary. 
 
120 CAIiKIERS OF PASSENGERS. 
 
 and, wlicre the Court of Appeal has declined to exercise it, a second appel- 
 late tribunal should only interfere in a very extreme case. Per Fitzpatrick, 
 C.J., dissenting: — No appeal lies in this case from the exercise of judicial 
 discretion within s. 45 of the Supreme Court Act and from which there is 
 no appeal. [Toronto Ry. Co. v. McKay, Cout. Cas. 410.] Per Davies, J., 
 dissenting: — The ap])eal should be allowed and the action dismissed. 
 Can Pac. Ey. Co. v. Lloyd Brown, 12 Can. Ry. Cas. 228. 
 
 Refusal to PRonucE hat check. 
 
 A passenger on a railway subject to the Raihvaj' Act, 1906, who has 
 lost the "hat check" given him on the surrender of his ticket by the con- 
 ductor for the latter's own convenience, is not liable to expulsion from the 
 train in default of paying another fare under a railway by-law purporting 
 to authorize the company to put off the train any passenger who refuses 
 to produce and deliver up his "ticket" on demand. [Crand Trunk Ry. 
 Co. v. Beaver, 22 Can. S.C.R. 498, distinguished; Butler v. Manchester, 
 Sheffield & Lincolnshire Ry. Co., 21 (^B.D. 207. followed.] 
 
 Haines v. Grand Trunk Ry. Co., IG Can. Ry. Cas. 359, 29 O.L.R. 558, 15 
 D.L.R. 174. 
 
 Riotous or nisoKnERi.Y conduct of passexgrb — Proper stoppixg place — 
 Wanuehixg on track. 
 
 Riotous or disorderly conduct, or the use of indecent or profane lan- 
 guage in a railway jjassenger coach, works a forfeiture of a passanger's 
 right to be carried as sucli. and he may for such conduct be ejected from 
 the train, iniless he is through dnnikenness or other cause bereft of all 
 intelligence and is put off and left on a track or otlier dangerous place, 
 under sucii circumstances that the conductor ought to have known that 
 putting liim off was equivalent to putting him to death. A railway eom-' 
 pany is not liable for the death of a passenger, who is ejected from the 
 train at a proper stopping place, for drunkenness and riotous conduct, if 
 at the time he is put off tlie train he is capable of taking care of himself, 
 although subsequently he wanders on to the track and several hours later 
 is killed by another train at a place where those in charge of the latter 
 train could not see him in time to prevent the accident. [Delabanty v. 
 Michigan Central Ry. Co., 4 Can. Ry. Cas. 451, 10 O.L.R. 388, followed.] 
 
 Dunn V. Dominion Atlantic Ry. Co., 45 D.L.R. 51, 25 Can. Ry. Cas. 
 
 Right to a s;:at — Pa8sexgp:r carried standing — Expulsion from train. 
 
 The contract between a railway company and a passenger to whom tlie 
 company sells a ticket, gives the passenger the right to a seat in a car. 
 If the company cannot, on account of the nunil)cr of travelers, give him a 
 seat, the traveler can refuse to be carried standing; he can get off the 
 train and exercise his right to recover damages for nonfulfilment of the 
 contract. But if he prefers to stay on the train and be carried standing, 
 he cannot refuse to give up his ticket, or to pay his fare. Such a refusal 
 gives the conductor the right to put him out of the train, as provided by 
 art. 6637, of R.S.Q. 1909. (See also, the Railway Act, 1906, s. 281.) Tliis 
 can only be done at a usual station, and, if it is done elsewhere, the expelled 
 passenger has the right to recover the damages which result. 
 
 Langlois v. Quebec & Lake St. John Ry. Co., 45 Que. S.C. 223. 
 
 CABS. 
 
 Statutory height of cars passing under overhead bridge, see Bridges. 
 See Carriers of Goods (A) ; Street Railways (C). 
 
CARS. 127 
 
 Annotataons. 
 
 Equipment of cars with long lever equipment. 15 Can. Rt. Cas. 428. 
 Automatic appliances used in coupling ears. 18 Can. Ry. Cas. 2o0. 
 
 T.OfK CAB EQtJIPMXyr. 
 
 Upon ac application that the railway company be required to provide 
 adequate and suitable tank car equipment for the transportation of finished 
 product of the applicant from its works at Wallaceburg to points in Can- 
 ada. The railway company had made an agreement with the applicant to 
 supply the equipment when required: — Held, that under the provisions of 
 s. 1 of 8 & 9 Edw. VII. c. 32. the Board has jurisdiction to require and 
 direct the railway company to supply the equipment, from time to tim«.', 
 when ordered by the applicant. 
 
 Empire Refining Co. v. Pere Marquette Ry. Co., 10 Can. Ry. Cas. 1.58. 
 
 Domestic soft coal — Opex axd box cars — ^AcccMtXATiox of sxow and 
 ICE — Delay rx makixg coxxectioxs. 
 Complaint against the system of transporting domestic soft coal in open 
 cars instead of bos cars, and delay in making collections from railway 
 ciHiipanies for shortages. The applicant complained that he suffered loss 
 and damage from pilferage, leakage, snow and ice accumulating on the 
 top of the coal, for which he had to pay as coal at an increased cost, and 
 waste by having to throw the coal into the sheds over the side of the 
 open cars, thu< In-eaking the coal, instead of wheeling it from box cars. 
 The respondents contended that they had used their best endeavours to 
 supply box cars for tlie transportation of coal and had largely succeeded. 
 That if dealers placed larj;e orders for shipment during the spring and 
 summer there would be no difficulty in furnishing box or stock cars, in- 
 stead of these shipments being made in October, wlien every available Imx 
 car was needed for the carriage of bulk grain to the head of the lakes, 
 and in the movement of stock: that other railway companies engaged in 
 carrying coal for domestic use and the respondents for their own employed 
 open cars. That open cars could be much more easily loaded and un- 
 loaded than box cars at mines and sheds equipped with modern devices. 
 That the applicant's contention that he was charged for the accumulation 
 of snow and ice as coal was not correct liecause the freight tools were as- 
 sessed on the weights at the mines from the track scales controlled by the 
 shippers: that no material loss had been noticed owing to the use of open 
 cars for coal shipments: — Held (It. that from the letters submitted by 
 the applicant there was no evidence of the percentage of open cars receive*! 
 by dealers. (2i That certain dealers had always lieen able to get their 
 coal transported in box cars. (3i That it might work greater injustice 
 to the general public requiring the railway companies' equipment, to com- 
 pel railway companies to furnish box cars for coal shipments, than if the 
 Board left the dealers to their remedy under the bills of lading. (4) Thai 
 under the new form of bill of lading the railway companies were liable fi»r 
 the losses of the kind referred to in the complaint and s. 3 expressly placeil 
 upon the railway companies the burden of proving that they were free from 
 negligence, lo) That it had not been shewn that the railway companies 
 had neglected to furnish box cars for this traffic when these were obtainable. 
 <6) Tliat this application had lieen dealt with upon the assumption that this 
 commodity moved more safely in box cars; it had been shewn that the rail- 
 way companies used their utmost endeavours to supply such cars, that open 
 cars were supplied only when box cars are not available, and the railway 
 companies assumed the ri^ arising from coal being lost in transit or in- 
 
128 CARS. 
 
 jured by the elements when carried in open cars. (7) Tliat the Board must 
 decline to make any general order. 
 
 l^rown V. Can. Pac. and Can. Northern Ry. Cos., 11 Can. Ky. Cas. 152. 
 
 Car shortage — Initial or originating railway. 
 
 Complaint against respondents of unjust discrimination for refusing to 
 supply cars for shipment of traffic from Collingwood to NVinnipeg via 
 North Bay although willing to supply foreign cars for this traffic via Chi- 
 cago. It appeared that at the time of the occurrence tliere was a car 
 shortage throughout Ontario, and to protect its Canadian local traffic, and 
 preserve sufficient e(juipment the respondent was compelled to secure from 
 connecting lines foreign empties that might be required for loading on said 
 lines: — Held (1), that the complaint should be dismissed; no vmjust dis- 
 crimination having been shewn. (2) That a manufacturer located on 
 one line of railway is not entitled to as good transportation facilities as 
 if located at a point where there were two or three connecting lines. (3) 
 That in times of car shortage it is the privilege and duty of a railway 
 company to retain its equipment so as to properly take care of traffic 
 on its own lines. (4) That assuming the respondent was endeavouring 
 to take care of the traffic on its own lines, the applicant was not entitled 
 to compel it to furnish its own cars to move the traffic along the route de- 
 sired. (5) That it has been well settled that an initial or originating rail- 
 way company is entitled to as long a haul on its own lines as might be 
 reasonable. [Can. Pac. Ey. Co. v. Nelson & Fort Sheppard Ry. Co., 11 
 Can. Ry. Cas. 400; Plymouth. Devonport & S.W. Junction Ry. Co. v. 
 Great Western Ry. Co., 10 Ry. & C. Tr. Cas. 68, and Riddle v. Pittsburgh 
 & Lake Erie Ry. Co., 1 I.C.C.R. 374, followed.] 
 
 Imperial Sted & Wire Co. v. Grand Trunk Ry. Co., 11 Can. Ry. Cas. 395. 
 
 [Followed in Jacobs Asbestos Co. v, Quebec Central Ry. Co., 19 Can. 
 Ry. Cas. 357; Re Coal Transportation Facilities, 22 Can. Ry. Cas. 338.] 
 
 Duty to furnish cabs — Transportation — Traffic facilities — Joint 
 
 TARIFF. 
 
 Every railway company sliould furnish accommodation and facilities 
 for the receipt and transportation of traffic upon its own line, either by 
 interchanging cars, or transsliipping the goods. 
 
 Can. Pac. Ry. Co. v. Nelson & Fort Sheppard Ry. Co., 11 Can. Ry. 
 Cas. 400. 
 
 [Followed in Imperial Steel, etc., Co. v. Grand Trunk Ry. Co., 11 Can. 
 Ry. Cas. 396; Re Coal Transportation Facilities, 22 Can. Ry. Cas. 338.] 
 
 Box AND FLAT OR OPEN — StaKP.S AND FASTENINGS — WEIGHT ALLOWANCE. 
 
 An application to direct the respondent association to reimburse ship- 
 pers for the expense sustained in equipping flat cars with stakes and fast- 
 enings. By the existing tariff's a weiglit allowance of 500 lbs. is made in 
 favour of the shipper by the respondent association: Held (1), that on 
 tlie evidence it would be impossible to fix an average weight allowance ap- 
 plicable throughout Canada. (2) That under subss. 2. 3 of s. 284, of 
 the Railway Act, 1906, the Board has direction in passing on questions of 
 accommodation luuler which questions of carriage arise. (3) That the 
 Board could consider traffic conditions, peculiar circumstances and wheth- 
 er it was ijhysically possible for the railway company to supply permanent 
 stakes and fastenings. (4) That in shipments in flat or open cars an 
 allowance of 500 lbs. should be made for stakes and fastenings supplied 
 by the shipper and no freight should be ciuirged thereon. [National 
 
CAKS. 129 
 
 Wholesale Lumber Dealers' Assn. t. Atlantie Coast Line By. Co., 14 LC. 
 C.K- 157, at pp. 157-162, referred to.] 
 
 Canadian Manufacturers' Assn. t. Canadian Freight Assn. 12 Can. 
 Rr. GasL 27. 
 
 ScnoraBATos axd box — ^HcATrxG — Caku)ad woght. 
 
 A^^ieatiiNi for a reduction in the minimum CXk veight of musical in- 
 stroBMBts frmn 12,000 to 10.000 lbs., or, in tbe alternative, that the re- 
 spondent be directed to install oil heaters in box ears for shipment of 
 musical instnanente during the winter months. The applicant claimed 
 tliat it is Bceeasaiy to prevent injury; that pianos shipped to the west 
 in the winter montlis shfiold be carried either in a ref rigeratfv car or in 
 a box car with a special heater. Some railway companies had put special 
 heaters into box ears for shipment of pianos to the west during winter 
 Bfoaths, bat this practice had been prfrfulnted. Pianos, a balky com- 
 modity, were shipped standing upright in one tier because of their fragile 
 nature, thus much space was lo»t in the car. Sixteen pianos could be 
 shipped in a box car of more than the mimimnm weight of 12,000 lbs., 
 while in a refrigerator ear only ten pianos could be shipped, weighing 
 less than 10,000 lb«^ The respondent submitted that these heaters were 
 dangerous, the goods ol the shippers and rolling stock had be«i destroyed 
 by fires originating frcHU them, and their use involred additional expense 
 for examination at divisional points: — Held (1), that the Board had no 
 jnriadictian to make an order under s. 317 (3^, par. (e). of the Bailway 
 Act, 1906. (2t That under the circumstances the minimum carload weight 
 of 12,000 lbs. is not unreasonable and the application should be dismissed. 
 
 Canadian Piano & Organ Manufacturer^ Assn. t. Canadian Frei^t 
 Assn., 12 Can. By. Cks. 22. 
 
 Shipping ststem — Take of cass — Absokpitok of MoiSTrKE. 
 
 Application directing the respondents to continue the allowances for 
 Woffcing, dunnage and temporary racks, and that the railway companies' 
 weighnKB should not be allowed to estimate by guesswork the allowances 
 to cover the weight of accumulated iee, snow or refuse which may be in 
 or upon the car. The respondents, who had for many years made certain 
 allowances from track scale weights to rectify any variation in the tare of 
 cars or increased weight tliereof caused by reason of the absorption of 
 moisture and the act:-umulation of snow, ice and refuse, filed new tariffs 
 doing away with the former allowances for blocking, dunnage and tempo- 
 rary racks. The question for consido-ation was whether these regulati<Mis 
 should be modified by the carriers, and whether in the past they had 
 been reasonable or burdensome upon them: — Held (1), that althoqgh the 
 weighing system had been much improved, if some arbitrary allowances 
 could not be agreed upon between the parties for the accumulation of 
 snow, ice and refuse, some other system would have to be devised than that 
 proposed. (2) That before the proposed tariffs were made effective the 
 applicants and respondents should have a further conference and then the 
 Board would dispose of all matters the parties had been unable to adjust. 
 
 Canadian Manufacturers', etc., Assn. v. Canadian Freight Assn., etc., 13 
 Can. Ry. Cas. 3. 
 
 ShIPTIXG system SnTABLE ACCOM MODATIOX — CaKRIAGE OF MEAT. 
 
 Applicaticm directing the respondent to furnish an adequate supply of 
 
 cars suitably equipped for the carriage of fresh meat and packing-house 
 
 products and to disallow the increase in rates. The respondent neglecte>l 
 
 to supply cars with cross pieces in the top so that the shipper might 
 
 Can. Ky, L. Dig.— -9. 
 
130 CAES. 
 
 liang his meat to hooks inserted in them. On the 3rd October, 1910, the 
 respondent issued a tariff effective on 10th October, granting certain 
 commodity rates on the commodities in question. This tariff remained 
 in effect until 1st August, 1911, when a supplement was filed more than 
 doubling the rates and raising the minimum C.L. weight from 17,000 to 
 20,000 lbs. It was said that these charges were made in error and that 
 they should have been upon a mileage basis at 9 cents per 100 lbs.: — 
 Held (1), that suitable accommodation for carrying the traffic under s. 284 
 of the Act included furnishing cross pieces in the top of the ear for the 
 shipper to put his hooks in for his meat. (2) That the tariff of Ist 
 August, 1911, should be cancelled and the tariff of 10th October, 1910, 
 reinstated and should remain in effect for at least one year, and during 
 that time if the respondent can shew that the tariff is not fair or remuner- 
 ative, an opportunity will be given it to increase the rates. (3) That the 
 Board had no jurisdiction to order a refund. 
 
 Vancouver-Prince Rupert ileat Co. v. Great Xorthern Ry. Co., 13 Can. 
 Ry. Cas. 15. 
 
 Cab service rules — Detkxtiox of befrigeratob cabs fob storage pub- 
 poses. 
 
 Application by the Canadian Freight Assn. to revise the charges pro- 
 vided by the car service rules with reference to refrigerator cars. The 
 association proposed to leave the charge, as at present, for the first two 
 days at $1 per car per day after the expiration of the 48 hours free time; 
 but to charge for the next two days $3 per car per day or fraction thereof; 
 and for each succeeding day thereafter $4 per car i)er day or fraction there- 
 of. With the object of obtaining the benefit of the cold or warm storage at 
 the nominal charge of $1 per car per day until the contents of cars were 
 disposed of, consignees have been holding perishable freight loaded in 
 refrigerator cars very frequently from 10 to 15 days, commonly 20 days, 
 and in A-arious cases over a month. The said charge of .$1 was cheaper 
 than that in any other cold storage warehouse in Winnipeg or any other 
 city in the west: — Held (1), that cars were transportation facilities, not a 
 portion of the warehousing premises of the consignee leased from a rail- 
 way at a nominal rental. (2) That such undue detention of cars for stor- 
 age purposes was contrary to the public interest and a hardship where re- 
 frigerator cars were required. ( 3 ) That s. 6 of the bill of lading in use by 
 carriers should be sufficient to enable them to deal w^th the matter. (4) 
 That though it appeared that a grievance existed, the Board should not 
 take any action or make any direction until it was affirmatively shewn 
 that the matter could not be adequately dealt with under the said section. 
 
 Canadian Freight Assn. v. Winnipeg Board of Trade and Canadian 
 Manufacturers' Assn., 13 Can. Ry. Cas. 122. 
 Equipment of fbeight cabs — Fobeign cabs inth3W3Hange». 
 
 Subs. 5 of s. 264 of the Railway Act, 1906, which requires "all box 
 freight cars of [a railway] company" to be equipped with outside ladders 
 on the ends and sides thereof, applies only to cars owned by the defendant 
 company and not to those of a railway company operating in the United 
 States, that were received by the defendant in interchange of traffic under 
 B. 317 of the Act. 
 
 Stone V. Can. Pac. Ry. Co. (Ont.), 14 Can. Ry. Gas. 61, 4 D.L.R. 789. 
 
 [Reversed in 13 D.L.R. 93, 47 Can. S.C.R. 634.] 
 
 Equipment op fobeign fbexoht cabs. 
 
 Notwithstanding that s. 261 ( 1 ) of the Railway Act, 1906. requires every 
 railway company to provide cars with couplers coupling by impact, that 
 
CARS. 131 
 
 cam be uncoupled withoat the necessity of men going between tlie ends of 
 ears, the fact that a car, which in the interchange of traffic, under s. 317 
 of the Act was received from and was owned bv a railway company oper- 
 ating in the United States, had an operating lerer on its coupling device? 
 which was Sorter than those on car$ owned by the defendant, is not a 
 defect so as to render the defendant liable fmr injuries sustained by a 
 brakes^man while attempting to couple it, since cars with short levers were 
 constantly being received and passed in the ordinary course of inspection. 
 
 StOTie V. Can. Pac. By. Co. (Out.), 14 Can. Ry. Cas. 61, 4 DJL.R. 789. 
 
 [Reversed in 13 DjIr. 93, 47 Can. S.C.R. 634.] 
 
 Eqctpuext or fokeigx cabs — Couplees — Short levers. 
 
 For a railway company to haul a box freight ear owned by a foreign 
 company, which was equipped with a coupling lever so short that it could 
 not be operated without going between the ends of the cars, is a violation 
 of 8. 264 (1) of the Railway Act, 1906, requiring all frei^t cars to be 
 equipped with couplers that can be uncoupled without the necessity of 
 men going between the ends of the cars. [Stone v. Can. Pac. Ry. Co., 4 
 DXJL 789, 14 Can. Ry. Cas. 61. 26 OX.R. 121, reversed.] 
 
 Stone V. Can. Pac.Ry. Co., 47 Can. S.CJL 634, 13 DXuR. 93. 
 
 EXBABGO OS CABS OF AXOTHEB R-ULWAT. 
 
 The Board may order discontinued an embargo placed by a railway 
 against receiving, for interswitching delivery, upon private sidings of 
 their line, the loaded cars of another railway from stations on such other 
 railway, if taken merely as a means whereby to recover cars of the rail- 
 way placing such embargo located along the line of the railway from which 
 the shipments originated, where there wore at the points of shipments no 
 cars belonging to the railway seeing to enfm^e such embargo available for 
 the use of the shippers affected thereby. 
 
 Marchand Sand Co. v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 224. 
 
 Box AXB ORE CARS ABSORPTIOX OF MOISTURE. 
 
 Box cars are suitable — in many cases necessary — for ore traffic, and 
 must be supplied where required, since the extra weight in open dump cars 
 u.sed for carrying ore. caused by absorption of moisture in wet weather or 
 winter time^ would make the toll prohibitive. The duty of a railway in 
 furnishing adequate facilities for traffic includes supplying cars for busi- 
 ness originating on its lines in Canada, independently of whether or not 
 box cars are received from the United States waiting to be imloaded anil 
 returned, and it is neither necessary nor desirable to hold any particular 
 ears exclusively for Canadian trafl^. 
 
 Iron Mountain, etc. v. Great Northern Ry. Co., 15 Can. Ry. Cas. 311. 
 
 Static?? agext — ArTHcmrrr — Knowledge of special prRPOSE — Breach 
 OF Coxtract. 
 Where a special horse car was ordered from a railway station agent for 
 the purpose made known to the agent of carrying horses to be exhibited at 
 a winter fair and the agent had previously supplied cars upon similar or- 
 ders. His action in this instance liaving lieen ratified by his superiors, 
 there being no notice to the plaintiff of any limitation of the agent's au- 
 thority, the company is boimd by the agent's action in accepting the order 
 f<»' the car and is liable in damages for failure to supply it. The plaintiff 
 was justified on discovering the lack of efficient action in supplying the car 
 to treat it as a breach of contract sufficient to relieve him from bringing the 
 
132 CARS. 
 
 horses forward for shipment and is entitled to damages for (1) entry fees 
 paid to enter the horses for exhibition, (2) extra labour in fitting horses 
 for exhibition, (3) extra blacksmith ing, (4) extra feed, grain and hay, (5) 
 loss of profits in selling horses after exhibition, (6) extra expenses ot 
 carrying the horses until the following spring (1st May), but not for pros- 
 pective prizes which might have been won at the Fair or for loss of adver- 
 tising through not being shewn thereat. 
 
 Mancell v. Michigan Central Ry. Co., 19 Can. Ky. Cas. 246. 
 
 Facilities — Grain cars — Congestion — Switching. 
 
 It is in the public interest that there should be no congestion of the 
 railway facilities at elevator terminals. Accordingly, an application for 
 switching cars of grain to private elevators at Fort \Villiam after the 
 cars had been placed for unloading at other elevators was refused. Under 
 the provisions of s. 8 of the Bulk Grain Bill of Lading, delivery may be 
 made at any of the elevators at Port Arthur, Fort William or West Fort, 
 without waiting 48 hours after written notice of arrival has been sent or 
 given. 
 
 Ostrander v. Can. Pac, Can. Xortliern and Grand Trunk Pacific Ky. Cos. 
 19 Can. Ry. Cas. 251. 
 
 Obligation to supply cars. 
 
 The obligation of a carrier under s. 317 of the Railway Act, 1906, is to 
 supply cars according to their respective powers. Wliere a carrier is 
 called upon to supply a car which is not carried on its eiiuipment register, 
 it is within its powers to supply a car on its equipment register which is 
 nearest available to the length asked for. When foreign cars of larger sizes 
 than are carried on their equipment register are available, carriers may 
 furnish such cars, but the Board has no jurisdiction to compel carriers to 
 supply a larger car of foreign equipment. 
 
 Hunting-Merritt Lumber Co. v. Can. Pac. and British Columbia Elec. Ry. 
 Cos., 20 Can. Ry. Cas. 181. 
 
 Tolls — Cab service rules — Obligations. 
 
 The obligations of carriers under contracts of carriage cease when notice 
 of the arrival of the car has been given or it has been placed for unloading 
 and the free time allowed imder tlie car service rules has elapsed. The car 
 service tolls are independent of the toll applying on the shipment and the 
 car is liable to the car service tolls in force at the time of its arrival at des- 
 tination. 
 
 Security Traffic Bureau v. Canadian Freight Assn., 20 Can. Ry. Cas. 186. 
 
 Sippi.v — Grain — Congestion — Public interest. 
 
 The Board having satisfied itself that a very large quantity of grain (es- 
 timated at 60 per cent of the j-ear's crop) remaining in the Goose Lake Dis- 
 trict at the end of February, 1916, awaiting transportation, was in danger 
 of deterioration and loss, and that the Canadian Northern Ry. Co. was un- 
 able to move the crop quickly enough to serve the public interest, made an 
 order under 6 & 7 Geo. V. c. 2 s 317 (a) amending the Railway Act: — 
 (a) Requiring the Canadian Northern Ry. Co. to supply at once 1,200 cars 
 and 36 engines to be used solely in that district in carrying grain to the 
 terminal elevator at Saskatoon and to the transfer track of the Grand Trunk 
 Pacific Ry. Co. there, (b) Requiring the Grand Trimk Pacific Co. (which 
 had cars idle) to use all available rolling stock in carrying grain from the 
 Saskatoon elevator to eastern ])oiiits and to supply the Canadian Northern 
 with one empty box car for each car of grain received at the transfer track, 
 (c) Directing the railway companies to fix proportionals of the through 
 
CABS. 133 
 
 late (vUle vas met to be i a cr ma ed) in sock ■■■■ir as to ^e the Ca- 
 nadian Xorthcm a laz^pn* slure thaa it vonld recHre oi a mileage basis as 
 its proptrtam of the thrai^ rate. 
 
 Re Goose Lake District Grain, 21 Can. Br. Cas. 38. 
 
 IjOAixsG cxrjkCxrT — Weicht — Mrvnmi. 
 
 A rcdnrtioa in the ^oieral minimnm wei^t will not be nade because in 
 a particiilar instanee it L$ sli^thr in exees» of the arera^ loading capaeitr 
 of the esr. 
 
 Hay aad Still Mfg. Cos. t. Grand Trunk and Canadian Psdfie R7. Cos., 
 21 CSuL By. Cas. «. 
 
 JxrwjSBKrnas — Pumtixg cabs — FAcn-mES. 
 
 The Board has no jurisdiction to order a carrier to place cars for le- 
 etsft of traffic at points on its raihrar other than the pmnt of starting, 
 pmats of junction vith other raihrars. and established sto^ii^ places. 
 
 'Kmmm»m„ w t. Can. PUc Bt. Co., 21 Can. Rj. Cas. 74. 
 
 D uuMMU X — ^Toufi — Specific suhxc — Texkecals — CX. TkAFFic 
 
 The fc«Mi»g of C Xl traffic until directions are given to place upon a spe- 
 cific sidi^ vooM inrohre great confusion, ddaj and loss, and would be 
 impracticaUe ovrii^ to the large amount of $pace required for suffirirat 
 jardage at important terminal pmnts. A toll of 93 was af^roied for di- 
 TeisMB of cars at large teraunals. 
 
 Monacal Board of Trade r. Can. Pac: Rj. Cou 22 Can. Bj. Gss. 23S. 
 
 Cak siancE — ^Exraass -nAnrao — VstxMxrstRAJTfK. eabxecgs. 
 
 Where after a thorough test of the extra ear service « w dered br th* 
 Board, the earnings on the express tmffie fnmi the points in question arc 
 anrenmncratiTe. beii^ les.^ than the t^wrati^ costs, the Board directed that 
 the serriee be discoatinoed. 
 
 Jordan Co-Op«atiT« Co. et aL t. Canadian Express Co.. 23 Can. Br. Gss. 
 S&. 
 
 TkAxsFosrtATiox FAcnxncs — Oojcpeixjeg ix!cgs — Shoktagc — Eqctpmejst. 
 
 Shippers located oo one line of raihrar are not entitled to as good tratt>- 
 portatioa facilities as if located on taro or more coaipeting lines. In times 
 of car shnrtage it is the dntj of a caiTi«- to retain its equipment so as to 
 serve duppers on its ovn line. [Can. Psc. Rt. Co. t. Nekon 4 Fort ^q»- 
 pard Bt. Co., 11 Can. By. Cas. 400, foUoved.] 
 
 Re Coal Transp<Htation Facilities, 22 Can. Ry. Cas. 33S. 
 
 OudXATXxe ixsiss — ^Lo^G hacls — Pe« diem tolls — Pbompt bcttkx — 
 Jrxcnox Fotvr. 
 The Board laid dovm the folknring rules for the morcment of coal, not 
 onfy to points on the originating line but also to points on otho' lines: (a ) 
 Cars must be supplied for this purpose as veil as for delirery at points on 
 the originating line to the fnfl extent cars are available; (bt vbere tl».- 
 ahf^aMtxag or receiving line enjoys the long haul it must supply the ear«: 
 
 (c) vhere the line that ou^t to supply the cars is unable to do so, then the 
 other line although not ^joying the long haul should supply the cars and 
 be paid by the defanltii^ line a per diem toll of #1.25 instead oi 45 ct:>. 
 from the time the ear leaves until it is returned to the ovning line, but no 
 exista^ fre^t toQ may be increased to cov«- the additional per diem toU: 
 
 (d) it is the dnl^ of the receiving line to return the cars pronqitlj to the 
 onrning line, either at the junction point nhore the ear «as received or, in 
 
134: CARS. 
 
 case return loads can be obtained, to another junction point on the line of 
 the return movement. 
 
 Re Coal Transportation Facilities, 22 Can. Ey. Cas. 338. 
 
 Emkbgency — Coal shortage — Insufficient equipment — Ai.tebation of 
 Cabs. 
 
 To provide for an emergency due to shortage of equipment and scarcity of 
 coal, railway companies without sutlleient equipment were ordered to make 
 forthwith the necessary changes in Hat or live stock cars to enable them to 
 carry coal. 
 
 lie Coal Transportation Facilities, 22 Can. Ry. Cas. 338. 
 
 Spkcial equipment — Potatoes — Operating conditions and efficiency. 
 
 The fitting of cars use<l for shipping potatoes with special equipment, 
 such as air spaces in the sides and bottoms, to prevent damage by freezing, 
 is a matter concerned with operating conditions and efficiency, and the 
 Board is not justified in making an experimental order requiring carriers 
 to so equip cars, there being no assurance that an improvement will be 
 effected. 
 
 Potato Shippers v. Can. Pac. Ry. Co., 24 Can. Ey. Cas. 46. 
 
 Single deck — Minimum — C.L. — Weight. 
 
 The Board declined to approve a reduction in the minimum C.L. weight 
 on sheep from 16,000 lbs. to 12,000 lbs. in single deck cars. 
 
 South Alberta Wool Growers' Assn. v. Can. Pac. Ry. Co., 24 Can. Ry. 
 Cas. 54. 
 
 Lined and racked box cab.s — Refrigerator — Siiortgage — Heaters sup- 
 plied BY SHIPPERS — No REMUNEBATION — FrEE REI'URN. 
 
 Wliere the shortage of refrigerator cars has been relieved by supplying 
 lined and racked box cars, but the carrier has been unable to secure a suf- 
 ficient number of heaters for them, such heaters ought to be supplied as far 
 as possible at the tolls provided by the tariffs, but in cases where heaters 
 are supplied by the shippers, tlie carrier is entitled to no remimeration, 
 and should also return the shippers' heaters from destination to point of 
 origin free of cost. ]3uring the shortage of 1917-18 caused by the Euro- 
 pean War, the Board declined to direct carriers to supply men to see that 
 lieaters in cars were properly looked after, when under tariff shippers' mes- 
 sengers are provided with free transportation for that purpose. 
 
 Okanagan Valley Growers v. Can. Freight Assn., 24 Can. Ry. Cas. 55. 
 
 Contract to furnish cars. 
 
 Where the railway company makes a continuing offer and in effect says 
 "order our cars and we will supply them at a certain rate of freight" a 
 complete contract is established between a railway company and a shipper 
 the moment the shipper gives the order in consequence. 
 
 Starratt v. Dominion Atlantic Ry. Co., 16 D.L.R. 777. 
 
 CARTAGE. 
 See Tolls and Tariffs (E). 
 
 CATTLE. 
 
 See Fences and Cattle Guards; Carriage of Live Stock; Limitation of 
 Liability (B). 
 
CLAIMS. 13^ 
 
 CATTIJE GUABOa. 
 See Fences and Cattle Gnard&. 
 
 CATTI.E PASS. 
 See Farm Croe>auiga. 
 
 CHASTEBS. 
 See Corporate Powers. 
 
 CHTT.DKKW. 
 
 Injuries to children allured to railvar premises, see Xegligaiee; Bridges. 
 Note 2 Can- By. Ca&. 250. 
 
 Injury to child pa.saenger, see Carriers of Ps^amgera. 
 
 CTiATMS. 
 
 A. In OeaeraL 
 
 B. Notiee of Claim. 
 
 C. Asrignnwait of Claims. 
 Claims against the Crown, see Ciovemment Railways. 
 See Limitation of Aeti<Hi3; Limitation of laabilitf. 
 
 Ajmotaticms. 
 Assiffnmeni of judgments. 6 Can. By. Cas. 479. 
 
 Condition requiring notiee of goods being lost. 7 Cu. By. Cas. 378. 
 A. In GenoaL 
 
 ESIOP^ — COXOCCT — UXP-UD RECEIPTED ACCOtTXTS. 
 
 Where a debt or obligation has been contracted through an agent, and 
 the principal is induced by the conduct of the creditor to reasonably be- 
 lieve that the agent has paid the debt or discharged the obligation, and. in 
 consequence of such belief, pays or settles or otherwise deals to his preju- 
 dice with the agent, the creditor is not permitted to deny as between himself 
 and the principal that the debt has been paid or the obligation discharged. 
 A railway engineer who was supplied with money by a railway company to 
 pay for supplies and the board of his men. being credited with the amounts 
 of the receipted accounts as they came in. and who had induced a firm of 
 hotelkeepers who had furnished both to receipt the accounts in advance on 
 the representation that the cMnpany as part of their system required re- 
 ceipts before they would pay the accounts: — Held, that the company were 
 justified in relying on these representations that the accounts were paid, 
 and as they had altered their position — the engineer having left their on- 
 ployment without accounting — on the faith of them, the hotelkeepers were 
 estopped frcHU setting up to the prejudice of the CMupany that the accounts 
 were not in fact paid. 
 
 Gentles v. Can. Pac By. Co., 14 OX.B. 286. 
 
 Gakxisbmext — MojrET due ccemjicnm — BrniHSG ooxt»act. 
 
 MoBCTs earned by a contractor under contracts for the erection of 
 hoildhigs, and payable by instalments as the work progresses on certificates 
 at the engineer employed by the proprietor, should be deemed to be "aeeming 
 dae," mmi, tkeref <««, attachable by a garnishing order at the nut of a ered- 
 
136 CLAIMS. 
 
 itor, (a) in the case of a completed contract, at the date of completion, (b) 
 in the case of a contract abandoned by tlie contractor before completion and 
 snbscqiiently completed by the proprietor, at the date of the abandonment; 
 provided that, in both cases, the engineer has subsequently given his cer- 
 tificates shewing that the amounts were payable to the contractor, and the 
 garnishee has paid the moneys into Court, unless it lias been proved aflirma- 
 tively that the certificate of the engineer was to be a condition precedent to 
 the moneys becoming payable. 
 
 Empire Sash & Door Co. v. McGreevy, 8 D.L.R. 27, 22 ^lan. L.R. 676. 
 
 Railwat construction contract — Set-off — Personal injury of em- 
 ployee. 
 
 Plaintiffs brought action to recover $r),6i).>. balance alleged to be due on 
 a contract to build a railway for defendants. Defendants pleaded that under 
 the agreement it was the duty of plaintiffs to fill the narrow places between 
 the rails at frogs, guard rails and switches with standard wooden blocks, 
 and that, by reason of plaintiffs' failing to do, one Clarke, an employee of 
 the C.P.R. Co. to which the road had been leased by defendants, had his 
 foot caught in a frog and was run over and killed, and the defendants had 
 to pay his legal representatives $5,250. Defendants paid into Court $405 as 
 a balance due plaintiffs on their contract. At trial, Boyd, C, held, that 
 the action should be dismissed with costs, the money in Court to be paid 
 out to plaintiffs unless it was sought to impound it to answer costs. The 
 Court of Appeal reversed that judgment on the ground that there was no 
 liability upon plaintiffs to the C.P.R. Co. for injury done to that com- 
 pany's servant. Judgment entered for amount of plaintiff's claim with 
 costs. 
 
 MacDonald v. Walker & Lucknow Ry. Co., 1 O.W.IST. 967, 16 O.W.R. 
 558. 
 
 Supply of goods for railway construction — Action fob pbice — Pbe- 
 MATUBiTY — Defense of sureties. 
 Allen V. Grand Valley Ry. Co., 12 D.L.R. 855. 
 
 B. Notice of Claim. 
 Clatm for money parcel — Formal notice. 
 
 Where an express company gave a receipt for money to be forwarded 
 with the condition indorsed that the company should not be liable for any 
 claim in respect of the package useless within sixty days of loss or damage 
 a claim should be made by written statement with a copy of the contract 
 annexed: — Held, tliat the consignor was obliged to comply strictly with 
 these terms as a condition precedent to recovery against the express com- 
 pany for failure to deliver the parcel to the consignee. [Richardson v. 
 Canada West Farmers' Ins. Co., IG U.C.C.P. 430, distinguished; 10 Man. 
 L.R. 595, reversed]. 
 
 Northern Pac. Express Co. v. Martin et al., 26 Can. S.C.R. 135. 
 
 Notice of claims — Limitation of time. 
 
 A condition of a contract for carriage of goods by railway provided that 
 no claim for damages to, loss of, or detention of goods should be allowed 
 unless notice in writing, with particulars, was given to the station agent 
 at or nearest to the place of delivery within thirty-six hours after delivery 
 of the goods in respect to which tlie claim was made: — Held, per Strong, 
 J., that a plea setting up noncompliance with this condition having be^u 
 
CLAIMS. 137 
 
 dommd to^ aid the plaintiff not having appealed against a jndgawnt 
 ovcnvling fljw ilfiiiiii, the qnestkn as to the soffidency in law of the 
 d^^tea was res jodieata: — Held, also, per Strong, J^ Gvrnne, J^ eoatra, 
 that part ot the wtugMw t having been lost such notice should hare been 
 given in respeet to the we within thirtr-six hours after the delirory o> 
 the goods which arrired aif^. Quaere. — In the presoit state of the law 
 is a release to, <»- satis&etMm frtun one of seTcral joint tortfeasors, a bar 
 to an action against the others? 15 AJR. (Ont.) 14, 12 O.R. 103, reTersed. 
 Grand Trunk By. Co. v. McMillan, 16 Can. S.C.B. 543. 
 (Leave to appeal refused br Privy Council, Mav 17th, 18^.] 
 [DJacnased in Richardson v. Can. Pac By. Co., 19 O.R. 369; referred to in 
 Bate T. Can. Pac By. Co., 14 O.B. 625: Cobban v. Can. Pac By. Co., 23 AJL 
 (Ont.) 115; Ferris v. Can. Northern By. Co., 15 Man. L.B. 144; Mc- 
 Kenzie v. Can. Pac. By. Co., 43 XJS.B. 460; Bobertsw v. Grand Trunk 
 By. Col, 21 AJt. (Ont.} 204. 24 OJL 75; Tolmie v. Midiigan Central By. Co.. 
 19 OX.B. 26; folloved in Lockshin v. Can. Xorthem By. Co., 24 Ckn. Bv. 
 C^lae. 362, 47 U.LJL 516. 
 
 PKSE^TATiOX IX WBITIAG. 
 
 Where a condition of a contract for carriage ci goods is that a claim for 
 loss or damage should be presented to the defendants in writing ''at thi:> 
 office,'' presentation at the head office of the defendants satisfies this re- 
 qoirenent. Judgment of Clnte, J., affirmed. 
 
 Jaaes Co. ▼. Dominion E2q>ress Co., 6 Can. By. Cas. 309, 13 O.LJL 211. 
 
 [Appravcd in Dominion Ei^press Co. t. Butenberg. IS Quebec K.B. 53.] 
 
 Dajcace to goods — Coxomox KBQUixixe xotice of cxatu. 
 
 A eondition in a shipping bill providing that there should be no claim for 
 damages to goods shipped over a railway unless notice in writing and the 
 particulars of the claim are givoa within thirty-six hours after delivery, if 
 it has been approved by ordo' «- regulation of the Board, under s. 275 oi 
 the Bailway Act, 1903, is binding upon the shipper, even if negligence on 
 the part of the railway company is proved, notwithstanding the language oi 
 subs. 3 of s. 214 of the Act. enacting that "subject to the Act" the company 
 shall not be relieved from an action by any notice, condition or declaration, 
 if the damage arises from any negiig^ce or omission of the company <»^ of 
 its S0Tants. as both sections of the Act must be read together. [Grand 
 Trmk By. Co. v. McMillan (1889), 16 Can. S-OB. 543. and Mason v. 
 Grand Trunk By. Co. (1873), 37 U.CJL 163, foUowed.] 
 
 Haywaid v. Can. Northern By. Co., 6 Can. By. (3as. 411. 16 Man. L.B. 15S. 
 
 [Qoesti<»ed in Sheppard v. Can. Pac By. C:o., 16 OX.B. 259; referred to 
 in Sutherland v. Grand Trunk By. (>>., 1*8 OJ4JL 139; Wilkinson t. Can. 
 Express Co., 14 Can. By. Cas. 267, 7 Di.B. 450.] 
 
 Loss Off- BOXES sHippn) — XECEssrrr ro» xotice or loss. 
 
 One of the conditions of a railway waybill was that there shall be "no 
 claim for damage for loss of or detention of, or injury or damage to, any 
 goods for which the company is accountable, unless and until notioe in 
 writing and the particulars of the claim of said loss, damage, or detention, 
 are given to the station freight agent at or nearest to the place of delivery 
 within thirty-six hours after the goods in respect of which said claim is 
 made, or such portitm of them as are not lost are delivered.'' Two boxes of 
 blankets shipped by the plaintiff were reshipped by the railway to the 
 original place of shipment, and an advice note of their arrival sent to the 
 plaintiff, which stated that there was "<Mie box short": — ^Held, that under 
 the terms of the ctmdition the box eould not be said to be '^lost,'' and notice 
 
138 CLAIMS. 
 
 in writing by the plaintiff to the defendants, within the thirty-six hours of 
 the receipt of the advice note of the loss of the box, was not essential to 
 entitle the plaintiflf to recover its value. 
 
 Sheppard v. Can. Pac. Ey. Co., 7 Can. Ry. Cas. 374, 16 O.L.R. 259. 
 
 [Referred to in Sutherland v. Grand Trunk Ry. Co., 18 O.L.R. 139.] 
 
 Injury to live stock — Notice of — Omission to give. 
 
 By s. 284 (7) of the Railway Act, 1906: "Every person aggrieved by any 
 neglect or refusal of the company to comply with the requirements of this 
 section shall, subject to this Act. have an action therefor against the com- 
 pany, from which action the company shall not be relieved by any notice, 
 condition or declaration, if the damage arises from any negligence or omis- 
 sion of the company or its servants." By a. 340: "No contract, con- 
 dition, by-law, regulation, declaration or notice made or given by the com- 
 pany, impairing, restricting or limiting its liability in respect of the 
 carriage of any traffic, shall, except as hereinafter provided, relieve the com- 
 pany from such liability, unless such class of contract, condition, by-law, 
 regulation, declaration or notice shall have been first authorized or ap- 
 proved by order or regulation of the Board. (2) The Board may, in any 
 case, or by regulation, determine the extent to which the liability of the 
 company may be so impaired." The defendants received from the plaintiff a 
 mare, with other animals, to be carried from a station on their railway in 
 Ontario to a point in British Columbia, under a special contract, approved 
 of by the Board, and which the plaintiff signed. Under this contract the 
 animals were carried at a lower rate than the company were entitled to 
 charge. The contract contained a provision that the defendants should in 
 no case be responsible for any amount exceeding $100 for the loss of any 
 one horse, or a proportionate sum in any one case for injuries to same, 
 and that any loss or damage sliould be computed and paid for on such basis. 
 There was a further provision relieving the company from liability, "unless 
 a written notice, with the full particulars of the loss or damage and of the 
 claim to be made in respect thereof, is delivered to the station agent at the 
 said point of delivery within 24 hours after the said property, or some part 
 of it, has been delivered." During the carriage on the railway, the mare 
 was, through the defendants' negligence, seriously injured. Before the con- 
 signment arrived at its destination the plaintiff, finding that the mare was 
 j)crnianently injured, by the permission of the railway superintendent 
 tliere, removed the mare from the car at an intermediate station and sold 
 her at a loss, the remainder of the shipment being carried on to the place 
 of delivery. No notice of the loss was given there to the company's official 
 within the 24 hours: — Held, that notwithstanding the loss was sustained 
 through the defendants' negligence, the special contract was binding on 
 the plaintiff", so that in no event could he recover more than the proportion- 
 ate part of $100; but that the omission to give the required notice relieved 
 the company from all liability. [Robertson v. Grand Trunk Ry. Co. ( 1895), 
 24 Can. S.C.R. 611, followed; St. Mary's Creamery Co. v. Grand Trunk Ry. 
 Co. (1904), 8 O.L.R. 1, distinguished.] Judgment of the County Court of 
 Grey affirmed. 
 
 Mercer v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 372, 17 O.L.R. 585. 
 
 [Commented on in Newman v. Grand Trunk Ry. Co., 20 O.L.R. 285; dis- 
 tinguished in Tolmie v. Michigan Central Ry. Co., 19 0.1^. K. 26. 9 Can. Hy. 
 Cas. 336; referred to in Sutherland v. Grand Trunk Ry. Co., 18 O.L.R. 
 139; Wilkinson v. Can. Express Co., 14 Can. Ry. Cas. 267, 7 D.L.R. 450.] 
 
CLAIMS. 139 
 
 ClU\ni F«» IX>SS — TCME — ^XjXESSITT of WKITIXG QUAXTITT — ^••'MOKE OB 
 
 LESS.'' 
 
 A bill of lading of the defoidantcs eorering wheat shipped, provided that 
 its ^urraider ^hoald be reqaired before delivery of the wheat, and that 
 claims for loss or damage mn&t be made in writing to the defendants' agent 
 at point of delivery pnMnptly after arrival of the wheat, and if delayed for 
 more than thirty days after such delivery, or after due time for delivery, 
 the defendants should not be liable in any event: — Held, that the failure 
 to make such claim in writing within the time specified did not relieve the 
 defendants frcMn liability resulting fr(Mn breach, not of their contract of 
 aifreightment, but of their contract to deliver the wheat to the holder of 
 the bill of lading and to no one else. Where, therefore, the defendants had 
 delivered the wheat without obtaining surrender of the bill of lading: — 
 Held, that the defendants were liable to the consignor to the value of the 
 niunber of bushels of wheat expressed in the bill of lading to have been re- 
 ceived by them, but not for any more, although more had been actually 
 shipped, and the words "inore or less" in the bill of lading did not, in the 
 ciremnstanees, affect the matter. [Mercer v. Can. Pac By. Co. (1908), 17 
 OXJt 585, 8 Can. Ry. Cas. 372, distinguished.] 
 
 T<rfmie v. Michigan Central Ry. Co., 9 Can. Rj. Cas. 336, 19 OX.R. 
 26. 
 
 CLAHC FOK DETESTIOX — FAlLClffi TO GIVE NOTICE — MlSPWXT — ^"0«" "AKE." 
 
 Although the defendants were foimd guilty of negligence in imreason- 
 ably detaining and failing within a reas<mable time to deliver a carload 
 »f beans shipped by the plaintiff, an acticm to recover damages for that n^- 
 ligence was dismissed liecause the plaintiff had failed to give notice in 
 writing and particulars of his claim for detoition, to the station freight 
 agent at or nearest to the place of delivery, within thirty-six hours after 
 the goods were delivered. The c-ondition printed on the back of the shipping 
 bill requiring such notice was one approved by the Board, and read: 
 'There shall be no claim for . . . detention of any goods . . . un- 
 less notice in writing and the particulars of the claim . . . are given 
 . . . within thirty-six hours after the goods ... or such portions of 
 them as are not lost or delivered*': — Held, that ^or" should be read "'are, ' 
 for whi^ it was obviously a misprint, and the condition so made effective. 
 
 Newman v. Grand Trunk Ry. Co., 10 Can. Ry. Cas. 248. 20 O.LJL 285. 
 
 Claim fo« detextios — FAn.r«E to give xotice — Coximtiox — Mispuxt — 
 "C)«~— •Ake.'' 
 
 In an acti<in for damages for breach of a oonb^ct for the carriage of 
 goods, held, affirming the judgment of Teetzel. J., 20 O.L.R. 285. that the 
 word "are** should be substituted for ^or' in the condition on the back of 
 the shipping bill — in the form approved by the Board and, the contract 
 being thereby rendered intelligible, and the plaintiff, not having complied 
 with the requirements of the condition, that the defendants were relieved 
 from the consequences of the negligence found against them. 
 
 Newman t. Grand Trunk Ry. Co., 10 Can. Ry. Cas. 254, 21 O-UR. 72. 
 
 C. Aagggnment of Claims. 
 Pebsoxal ixjumiES — Assigxmctt of cuuoc roa. — ^Asskxabiutt or. 
 
 The plaintiff brought an action for damages for personal injuries sus- 
 tuBcd by his being run down by a car of the defendants, and for the killing 
 
140 CLEAilA:N^CE. 
 
 of his master's horse which he was riding at the time, and in respect to 
 which he claimed under assignment from his master: — Held, that the ac- 
 tion was properly dismissed as to the latter claim upon the ground that 
 it was not an assignable chose in action. 
 
 McCormack v. Toronto Ry. Co., 6 Can. Ry. Cas. 474, 13 O.L.R. 656. 
 
 [Referred to in Real v. Michigan Central Ry. Co., 19 O.L.R. 502; Moritz 
 V. Can. Wood Specialty Co., 17 O.L.R. 53; McGregor v. Campbell, 19 Man. 
 L.R. 44, 61; Powley v. Mickleborough, 21 O.L.R. 556.] 
 
 SUBCONTRACTOB — INSTALMENTS ACCRUING ON ORIGINAL CONTRACT — As. 
 SIGNABILITY. 
 
 An agreement whereby a contractor for work subcontracts with another 
 to do the same work at the same price as he is to receive and agrees to pay 
 the second contractor in the same instalments as are stipulated for in the 
 original contract with the property owner, does not constitute an assign- 
 ment to the person who performs the work of the moneys to accrue under 
 the original contract made by the property owner, and such transaction is 
 not an equitable assignment of a chose in action. 
 
 Fraser v. C.P.R. Co., 1 D.L.R. 678, 22 Man, L.R. 58. 
 
 [Reversed in Fraser v. Imperial Bank, 10 D.L.R. 232, 47 Can. S.C.R. 313.] 
 
 Assignment of future chose in action. 
 
 An assignment of a future chose in action by way of a construction con- 
 tract for a number of railway stations operates in equity as an agreement 
 binding the conscience of the assignor and so binding the property from 
 the moment Avhen the contract becomes capable of being performed, on the 
 principle that equity considers as done that which ought to be done and 
 that the agreement imports in equity a trust. [Tailby v. Official Receiver, 
 13 A.C. 523; Fraser v. Imperial Bank, sub nom. Fraser v. Can. Pac Ky. 
 Co., 1 D.L.R. 678, 22 Man. L.R. 58, reversed.] 
 
 Fraser v. Imperial Bank, 10 D.L.R. 232, 47 Can. S.C.R. 313. 
 
 CLEARANCE. 
 
 See Bridges. 
 Jurisdiction — Dominion railway. 
 
 The Board has jurisdiction over all clearances on Dominion railways, 
 whether operated by steam or electricity. Under special circumstances 
 a clearance, in the case of poles already erected of 7 feet 3 inches, was 
 approved, upon the company undertaking to keep its employees off the 
 side of the cars on that side of the track on which the poles are erected, 
 the clearance for unerected poles to be 7 feet 6 inches. 
 
 Hydro Electric Power Commission v. London & Port Stanley Ry. Co., 17 
 Can. Ry. Cas. 326. 
 
 COLLISIONS. 
 See Street Railways; Negligence; Crossing Injuries; Employees. 
 
 COMBUSTIBLE MATERIAL. 
 See Weeds; Fires. 
 
 COMPANY. 
 
 See Bonds; Corporate Powers; Shares. 
 
CONFLICT OF LAWS. 141 
 
 COMPENSATION. 
 See DamBgeB; Expropriatifm. 
 
 COMPOSinOK WITH CKEDITOBS. 
 See TTi'Imi of ATrmngeaataL. 
 
 CONDnCTOB& 
 
 Condnetors' duties towards passengers, see Carriers of Pas^en^rs ; Street 
 Bailvaj^. 
 
 Xegligenee of operation of railwrar eaasing death of conductor, see Em- 
 plorees. 
 
 CONIXICT OF LAWS. 
 
 EjCPLOnCEXT COXT«ACTS ^I:SJl'KIZS TO EUPLOTEES. 
 
 The eiril liabilitr. in a matter of delict or quasi delict, is subject to the 
 rule lex lod regit actum. Tberefure. workmen engaged in Quebec to work 
 in Quebec and Ontario, who are injured through the act or fault 4^ their 
 emplorers in Ontario, hare only the remedv given br the laws of that 
 {wovinee. V\~hen the evidence shews that the foreign law does not recc^- 
 Bixe the right to the proceedings taken by the plaintiff, and upon whieh 
 a Terdiet was found in his farour, his action should bo dismissed non 
 obstante veredicto, a new trial being useless. [38 Que. S.C. 394. reversed.] 
 
 Grand Trunk Ry. Co. t. Maclean, -31 Que. K3. 269. 
 
 LoBo Cwpbell's Act — Acriox by fathek asd xothek fo« sox's ikath. 
 
 The fatho- and mother can in their personal names sue a railway com- 
 pany for damages for their son's death occasioned in Manitoba if the 
 defendant emnpany have accepted the jurisdictimi of the Quebec Court and 
 have an office in the Province of Quebec 
 
 Boon T. Can. Xortbem Ry. Co.. 7 Que. PJR. 239. 
 
 Ice loci — Cause m' actios ix axotheb pbovisi^. 
 
 Ih am aetkm for damages caused by an accident in another province the 
 defendaiit who pleads that according to the law of such province he is 
 not liaUe, is not oUiged to set oat in his plea the law relied on bat it 
 suffices that he states the fact. 
 
 Xoruszuk T. Can. Pac. Ry. Co., 9 Que. PJL 274. 
 
 EKFIjOT^ AXa EilPLOTEE — IXJX'KT IX COCTSE OF EMPtOTMKXT. 
 
 Liability for tort is governed by the lex loci actus, and. in an action 
 by an employee against his employer arising out of a personal injury, is 
 not affected by the law of the place where the contract of lease and hire 
 of work was made. Hence when a railway MMnpany running trains in 
 both the provinces of Ontario and Quebec hired one of its servants in 
 Quebec, and he was injured Uiroogfa-the fatilt of the company in Ontario, 
 his claim for c(Hnpensation is governed by the law of the latter province. 
 [Duptmt V. Quebec Steamship Co., II Que! S.C. 188: Lee v. Logan, 31 Que. 
 S.C. 4«9 and 39 Can. S.C.R. 311; Albonze v. Temiskaming Navigation Co., 
 38 Que. S.C. 279, referred to.] 
 
 Marleau t. Grand Trunk Ry. Co.. 12 Can. Ry. Gas. 149, 38 Que. S.C. 
 394. 
 
 [Reversed in part 21 Que. K.B. 269, 14 Can. Rj. Gas. 284.] 
 
142 CONFLICT OF LAWS. 
 
 Liability of master — Injury in course of employment. 
 
 (1) Common-law liability, in cases involving delict or quasi delict, is 
 governed by the lex loci regit actum. Hence workmen liired in Quebec to 
 be employed in Quebec and Ontario, who ai'e injured by the positive act 
 or by the fault of their employers in the latter province, have no remedy 
 except under the provisions of its laws. (2) When the evidence shews 
 that the foreign law does not admit of the remedy relied upon by the 
 plaintiff, and upon wliich a verdict has l)een given in his favour by the 
 jury, he must be nonsuited, non obstante veredicto, a new trial being in- 
 effective. [Marleau v. Grand Trunk Ry. Co., 38 Que. S.C. 394, 12 Can. 
 RJ^ Cas. 149, reversed in part.] 
 
 Grand Trunk Ey. Co. v. Marleau, 14 Can. Ry. Cas. 284, 21 Que. K.B. 
 269. 
 
 Dependants — Person killed in Ontario — Right of Action in Quebec — 
 Action barred in Ontario. 
 
 An action will lie in Quebec by the dependants of a person killed in 
 Ontario, although in Ontario no action would lie unless the deceased 
 would have had a right of action had he survived; however, where he had 
 barred such action by the contract he had signed; in Quebec, the right of 
 action is not subject to such condition, but the wrongful act must be of 
 a class actionable in Ontario. [Parent v. Can. Pac. Ry. Co., 46 Que. S.C. 
 319, affirmed.] 
 
 Can. Pac. Ry. Co. v. Parent, 19 Can. Ry. Cas. 1, 51 Can. S.C.R. 234, 21 
 D.L.R. 681. 
 
 Actions ex delicto — Place of accident in another province. 
 
 A legal obligation ex delicto, where the res gestie giving rise to the obli- 
 gation liave occurred outside the territorial jurisdiction of a province, may 
 be enforced in the Courts of that province, if a like obligation would have 
 arisen, had the accident occurred within that jurisdiction; and a right of 
 action by common law, accruing in Ontario, where the accident occurred, 
 is enforceable in the Province of Manitoba where a similar right of action 
 would have arisen. [Phillips v. Eyre, L.R. 6 Q.B., referred to.] 
 
 Lewis V. Grand Trunk Pacific Rv. Co., 20 Can. Rv. Cas. 318, 52 Can. 
 S.C.R. 227, 26 D.L.R. 687. 
 
 CONNECTING LINES. 
 
 As affecting liability for negligence, see Negligence. 
 
 As affecting limitations of liability, see Limitation of Liability; Tickets 
 and Fares; Claims. 
 
 See Carriers of Goods; Carriage of Live Stock; Tolls and Tariffs. 
 
 See Appeals. 
 
 CONSTITUTIONAL LAW. 
 
 A. Powers of Dominion. 
 
 B. Provincial Powers. 
 
 C. Territorial Powers. 
 
 Annotations. 
 
 Railways as works for general advantage of Canada. 2 Can. Ry. Cas. 265. 
 
 Works for the general advantage of Canada as affected by provincial 
 statute. 3 Can. Ry. Cas. 142. 
 
 Provincial legislation affecting awards, interest, costs, and filing plans 
 under expropriation of railway. 3 Can. Ry. Cas. 120. 
 
COXSTITUTIOXAL LAW. 143 
 
 GoTcnunoit regulatioo of railway eompanies respecting agreements ex- 
 OBptiiig emplorers fnHn liabilitr for Diligence. 5 Can. Rr. Cas. 13. 
 
 Dominion railway company taking lands of provincial railway eonqnny. 
 18 C*n. Rt. Cas. 144. 
 
 Work for general advantage of Canada, and provincial jurisdiction. 19 
 Can- Ry. Cas. 170, 20 Can. Ry. Cas. 12S. 
 
 A. Powers of Donrmlon. 
 Iakislattte fowees or Doin^iox Pam-iajixxt — Pbove?cial laws relat- 
 
 rSG TO PBOFEKTT AXD CTVIL SIGHTS. 
 
 The legislation of the Parliament of Canada on matters exclusively 
 within its I^slative powers is of paramount authority and is not subject 
 to restrictions and formalities imposed by the law relating to property 
 and civil rights in the provinces. 
 
 Yolleux V. Atlantic 4 Lake Superior Ry. Co., 12 Can. Ry. Cas. 91, 39 
 Que. S.C. 127. 
 
 Pbovtsciai. begulatiox of dttches — Railway wmkks. 
 
 By the true construction of the B.X.A. Act, s. 91, subs. 29 and s. 92. 
 sab& 10, the Dominion Parliament has exclusive right to prescribe r^nla- 
 tions for the construction, repair, and alteration of the appellant's rail- 
 way; and the provincial l^slature has no power to regulate the structure 
 of a ditch forming part of its authorized works. But the provisions of 
 the Municipal Code of Quebec, which prescribe the cleaning of the ditch 
 and the removal of an obstruction which has caused inundation on neigh- 
 bouring land, are intra vires of the provincial legislature. 
 
 Can. Pac. Ry. Co. v. Xotre Dame de Bonsecours. (1899] A-C. 367. 
 
 [Applied In' Can. Pac. Ry. Co. t. The King, 39 Can. S.C.R. 479; Grand 
 Trunk Ry. Co. v. Therrien, 30 Can. S.C.R- 492; considered in Atty.-i^enl. 
 r. Can. Pac. Ry. Co., 11 B.C.R. 300. [1906] A.C. 210; distinguished in 
 Madden r. Xelson, etc., Ry. Co., [1899] A.C. 628; followed ia Crawford 
 v. Tilden. 13 O.I-.R. 169 : referred to in Grand Trunk Ry. Co. v. McKay. 34 
 Qua. S.CJl. 92; Grant v. Can. Pat Bj. Co., 36 X.BJL 546: relied on in Re 
 Railway Act, 36 Can. S.CJL 151.] 
 
 Rbgcxatios of Rail WAT ooxsiwrcnox — Costracts — Powess of the Do- 
 Misios Pabliamest. 
 The Consolidated Railway Act, 1879, s. 19, euha. 16, enacts: "So per- 
 son holding any oflk-e, place or employment in or being concerned or inter- 
 ested in any contracts under or with the company, shall be capable of be- 
 ing chosm a director, or of holding the office of director, nor shall any 
 person being a director of the company enter into, or be directly or in- 
 directly, for his own use and benefit, interested in any contract with the 
 compaiiy. not relating to the purchase of land necessary for the railway, 
 or be or become a partner of any c<wtractor with the company.^ It was 
 admitted that the appellant was a director and the president of the 
 Temiscouata Ry. Co_ at the time he entered into certain agreements 
 with the contractors for the construction of the road, which agreements 
 gave him an interest in their contracts: — Held, the provisions of the 
 enactment above cited are constitutional. The Dominion Parliament hav- 
 ing the right to legislate on matters concerning railways, it has also the 
 power to l^slate on all incidents which may be required to carry out 
 the object it had in view, provided such incidents are essentially and 
 strictly connected with the principal object, and are primarily intended 
 to assist in carrying oat such principal object; and the capacity or in- 
 
144 CONSTITUTIONAL LAW. 
 
 capacity of directors is a matter essentially connected with the internal 
 economy of a railway company. 
 
 McDonald v. Riordan, 30 Can. S.C.R. 619, 8 Que. Q.B. 555. 
 
 Foreshore of Vancouver harbour — Occupation of by C.P.R. Co. ter- 
 minals — Powers of Dominion Parliament. 
 
 The public has a right to access to the waters of Vancouver Harbour 
 through certain streets, and the streets, at the time of the construction 
 of the Canadian Pacific Ry.. were public highways extending to low-water 
 mark and the public right of passage over said highways existed at the 
 time of tlie admission of British Columbia into Canada, but these public 
 rights have l»en extinguislied or suspended by reason of the construction 
 of the said railway. The foreshore of Vancouver Harbour is under the 
 jurisdiction of tlie Parliament of Canada, either as having formed part 
 of the harbour at the time of the union of British Columbia with the 
 Dominion, or by reason of the jurisdiction of the Dominion attaching at 
 the union. The Parliament of Canada has power to appropriate provin- 
 cial public lands for the purposes of a railway connecting two or more 
 provinces. Tlie Act respecting the Canadian Pacific Ry., 44 Vict. c. 1, 
 should not be construed in tlie same way as an ordinary Act of incorpora- 
 tion of any ordinary railway, but it should be interpreted in a broad spirit, 
 and bearing in mind the objects sought to be accomplished. Per Hunter, 
 C.J. : — The B.N.A. Act assigns public harbours to the Dominion, not so 
 much qua property or land as qua harbours; the jurisdiction of the Do- 
 minion is latent and attaches to any inlet or harbour so soon as it be- 
 comes a public harbour, and is not confined to such harbours as existed 
 at the time of union. 
 
 Attorney-General for British Columbia v. Can. Pac. Ey. Co., 11 B.C.R. 
 289. 
 
 [Affirmed in [1906] A.C. 204, followed in Lachine, Jacques Cartier, etc., 
 Ry. Co. V. Montreal Tramways, etc., Ry. Cos., 18 Can. Ry. Cas. 133.] 
 
 Power of the Dominion to legislate for certain provincial Crown 
 property — Provincial foreshore — Habbour. 
 
 S. 108 of the B.N.A. Act, empowers the Dominion Parliament to legis- 
 late for any land, including foreshore, whicli is proved to form part of a 
 public harbour. Ss. 91, 92, read together, empower the Dominion to dis- 
 pose of provincial Crown lands and therefore of a provincial foreshore, 
 for the purpose of the respondent railway, which is a transcontinental 
 railway connecting several provinces: — Held, that s. 18 (a) of the respon- 
 dents' incorporating Dominion Act, 44 Vict. c. 1, is not controlled by the 
 Consolidated Railway Act, 1879, and applies to provincial as well as 
 Dominion Crown huids. Power given thereunder to appropriate the fore- 
 shore in question includes a power to obstruct any right of passage pre- 
 viously existing across it. [1 W.L.R. 299, 11 B.C.R. 289, affirmed.] 
 
 Attorney-General for British Columbia v. Can. Pac. Ry. Co., [1906] 
 A.C. 204. ' 
 
 [Followed in Lachine, Jacques-Cartier, etc., Ry. Co. v. Montreal Tram- 
 ways, etc., Ry. Cos., 18 Can. Ry. Cas. 133; distinguished in Grand Trunk 
 Ry. Co. V. Toronto, 42 Can. S.C.R. 628; referred to in Burrard Power 
 Co, v. The King, 43 Can. S.C.R. 55; relied on in Montreal Street Ry. Co. 
 V. Montreal, 43 Can. S.C.R. 240.] 
 
 Works for the general advantage of Canada — Branch lines. 
 
 The Columbia & Western Ry. Co., was incorporated in 1896, by the 
 Provincial Legislature, one of the powers given it being to build branch 
 
COXSTITUTIOXAL LAW. 145 
 
 lines; and <hi ISth June, 1S9S. by an Act of the Dominion Parliament its 
 objerts were declared to be work« for the general advantage of Canada, 
 and thereafter to be subject to the l^slative authoritr of the Dominion 
 Parliament and to the provisions of the Railway Act: — Held, on an ap- 
 plicatiim for a warrant of posse:ssion, that the company's power to ac- 
 quire land for branch lines after 13th June, 1898, must be exercised in 
 accordance with the Dominion Railway Act. 
 
 Re Coliunbia & Western Ry. Co. and the Railway Acts, 2 Can. Ry. Gas. 
 264, 8 B.C.R. 415. 
 
 Cbows Fb-vxchises Rxsuiatiox Act — Domixiox goxpaxies. 
 
 The defendant company was originally incorporated in 1897 by a pro- 
 vincial Act, and in 1898 by a Dominion Act its objects were declared to 
 be works for the general advantage of Canada, and thereafter to be sul>- 
 ject to the legislative authority of the Parliament of Canada and the 
 provisions of the Railway Act: — Held, by Irving. J., setting aside an order 
 allowing the provincial Attorney-General to bring an action at the in- 
 stance of a relator under the Crown Franchises Regulation Act, that the 
 ^aid Act did not apply to the company. 
 
 Attorney -General of British Columbia v. Vanc-ouver, Victoria 4 East- 
 ern Ry. etc., Co., 3 Can. Ry. Cas. 137, 9 B.CJK. 338. 
 
 WOBK rO« THE GEXEKAL ADVANTAGE OF CaSADA DOVIXIOX BBGCXATIOSS. 
 
 A railway incorporated under the laws of a provincial Legislature, whose 
 undertaking is afterwards declared to be a work for the general advauntage 
 of Canada is subject to the exclusive control of the Parliament of Canada 
 and the Railway Act applies. Xo provincial legislation can restore con- 
 trol, legislatively speaking, to the provincial Parliament. 
 
 Re Shore Line Railway, 3 Can. Ry. Cas. 277. 
 
 XeGUGEXCE — AGREEiCEXTS FOR EXEMPTIOX FROM LIABIUTT — POWER OF 
 PaRLIAMEST TO PROHIBIT. 
 
 An Act of the Parliament of Canada providing that no railway company 
 within its jurisdiction shall be relievetl from liability for damages for 
 personal injury to any employee by reason of any notice, condition or 
 declaration issued by the company, or by any insurance or provident asso- 
 ciation of railway employees; or of rules or by-laws of the company or 
 association: or of privity of interest or relation between the company 
 and association or contribution by the company to funds of the associa- 
 tion; or of any benefit, compensation or indemnity to which the employee 
 or his personal representatives may become entitled to or obtain from 
 Both association; or of any express or implied acknowledgment, acquit- 
 tance or release obtained from the association prior to such injury pur- 
 porting to relieve the company from liability, is intra vires of said Parlia- 
 ment. Xesbitt, J., dissenting. 
 
 Re Railway Act Amendment, 1904, 5 Can. Ry. Cas. 1. 36 Can. S.C.R. 
 136. 
 
 [Affirmed in Grand Trunk Ry. Co. v. Atty.-General. [1907] A.C. 65. 7 
 Can. Ry. Cas. 472.] 
 
 PROHIBrnSG COXTRA»-TS AGAIXST UABIUTY FOR XBGUGEXCE — IXJURT TO 
 SERVANTS. 
 
 The Dominion Parliament is competent to enact s. 1 of Dominion Stat- 
 ute, 4 E^w. VII. c. 31. which prohibits "contracting out" on the part of 
 railway companies within the jurisdiction of the Dominion Parliament 
 from the liability to pay damages for personal injury to their servant«>. 
 Can. Ry. L. Dig.— 10. 
 
146 C0i\STITUTI02s^AL LAW. 
 
 That section is intra vires the Dominion as being a law ancillary to 
 through railway legislation, notwithstanding that it affects civil rights 
 wliich, under the li.X.A. Act, s. !)2, subs. 13, are the subject of provincial 
 legislation. 36 Can. S.C.R. 136, f) Can. Ky.Cas. 1. 
 
 Grand Trunk Ry. Co. v. Attorney-General for Canada, 7 Can. Ry. Cas. 
 472, [1907] A.C. 65. 
 
 [Followed in Toronto v. Grand Trunk Ry. Co., 37 Can. S.C.R. 238; re- 
 ferred to in Montreal Street Ry. Co. v. ^Montreal Terminal Ry. Co., 36 Can. 
 S.C.R. 380; relied on in Montreal Street Ry. Co. v. ilontrcal, 43 Can. 
 S.C.R. 242; applied in Toronto v. Can. Pac. Ry. Co., [1908] A.C. .>8; com- 
 mented on in R. v. Hill, 15 O.L.R. 406; foUowed in Crown Grain Co. v. 
 Day Co., [1J)08] A.C, 58; Re Narain Singh, 13 B.C.R. 479; Northern Coun- 
 ties Inv. Trust v. Can. Pac. Ry. Co., 13 B.C.R. 138; relied on in Couture 
 v. Panos, 17 Que. K.B. 562.] 
 
 PROTECriOX OF HIGHWAY CROSSINGS Al'PORTIONMENT OF COSTS PARTIES 
 
 IXTKRESTEI). 
 
 Ss. 187, 188 of the Railway Act, 1888, empowering the Railway Com- 
 mittee to order any crossing over a highway of a railway subject to its 
 jurisdiction to be protected by gates or otherwise, are intra vires of the 
 Parliament of Canada. (Ss. 186, 187 of the Railway Act, 1903, confer 
 similar powers on the Board.) These sections also authorize the com- 
 mittee to apportion the cost of providing and maintaining such protection 
 between the railway company and "any person interested" : —The munici- 
 ])ality in which the highway crossed by the railway is situate is a '"person 
 interested" under said sections. 
 
 Toronto v. Grand Trunk Ry, Co,, 5 Can. Ry. Cas. 138, 37 Can. S.C.R, 
 232. 
 
 [Applied in Ottawa Elec, Ry, Co. v. Ottawa, 37 Can. S.C.R. 360, 5 
 Can. Ry. Cas, 131; commented on in Montreal Street Ry, Co, v. Montreal, 
 43 Can". S.C.R. 219; relied on in Carleton v. Ottawa, 41 Can, S,C,R, 552, 
 557; applied in Can, Pac. Ry. Co. v. Toronto, 7 Can. Ry, Cas. 274; fol- 
 lowed in Tliorold v. Grand Trunk et al. Ry. Cos., 24 Can. Ry. Cas. 21.] 
 
 Protection of highway crossing — Contribution of costs — Municipal- 
 ity AS "person interested." 
 
 Ss. 187, 188 of the Railway Act, 1888, empowering the Railway Com- 
 mittee to order the protection of highway crossings and the apportionment 
 of the costs thereof between railway companies and any "person inter- 
 ested" therein extend also to municipalities, and are intra vires of the 
 Dominion Parliament by force of tlie B.N.A. Act, s. 91, subs. 29, and s. 
 92, subs. 10 (a). 
 
 Toronto v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 282. [1908] A.C. 54. 
 
 [Followed in Re Xarain Singh, 13 B.C.R. 479; Thorold v. Grand Trunk 
 et al, Ry. Cas. 24 Can. Ry. Cas. 21; relied on in Carleton v. Ottawa, 41 
 Can. S.C.R. 552, 557; Montreal Street Ry. Co. v. Montreal, 43 Can. S.C.R. 
 204.] 
 
 Interchange of traffic — Junctions — Power of Government to regu- 
 late. 
 A physical connection was made and used some years before 1st Febru- 
 ary, 1903, between the lines of a Provincial and Dominion railway, but 
 no order was ol)tained authorizing such connection under s. 173, of tlie 
 Railway Act, 1888, or s. 177 of the Railway Act, 1903. although a crossing 
 had been duly authorized by the Railway Committee in 1897. I'pon an 
 application being made under ss. 253, 271 of the Railway Act, 1903, to 
 
COXSTITUTIOXAL LAW. 147 
 
 compel an interchange of traflic between the two railways: — Held, that 
 Parliament has the incidental power to determine the terms upon which 
 a railway, not otherwise subject to its legislative autboritv. may connect 
 with or cross one that is so subject, and the obligations tietween the com- 
 panies concerned. [B.X.A. Act, s. 91 (10) (a) and (ci, and s. 92 (29), ss. 
 306, 307, of the Railway Act, 1888, and s. 7 of the Railway Act, 1903, 
 referred to] : — Held, that such connection being illegal, no order should 
 be made. An application to authorize the connection, under s. 177, Rail- 
 way Act 1903. must first be made. 
 
 Patriarche et al. v. Grand Trunk Ry. Co. et al., 5 Can. Ry. Cas. 200. 
 
 Pbovixcial railway — "THKorcii tbaftic" — Feder-^t. BEGl'XA-nOX. 
 
 The Railway Act, 1906. does not confer power on the Board to make or* 
 ders respecting through traffic over a provincial railway or tramway which 
 connects with or crosses a railway subject to the authority of the Parlia- 
 ment of Canada. Davies and Anglin, JJ., contra. Per Fitzpatrick, C.J., 
 and Girouard and Duff. JJ.: — The provisions of subs, (b) of s. 8 of the 
 act are ultra vires of the Parliament of Canada. 
 
 Montreal Street Ry. Co. v. Montreal, 11 Can. Ry. Cas. 203, 43 Can. 
 S.CJL 197. 
 
 [Affirmed in [1912] A.C. 333, 13 Can. Ry. Cas. 541, 1 D.L.R. 681.] 
 
 Railway Act or Casada.tltka vibes — Pbovixcial railways. 
 
 S. 8, subs. (bi. of the Railway Act. 1906, which subjects any provin- 
 cial railway (although not declared by Parliament to be a work for the 
 general advantage of Canada i to those of its provisions which relate to 
 through traffic, is ultra vires of the Dominion Parliament. An order 
 dated May. 4. 1909. of tlie Board (created by the Railway Act, 1903, and 
 beyond the jurisdiction and control of any province), directed with regard 
 to through traffic over the Federal Park Ry. and the provincial street 
 railway, both within and near the city of Montreal, that the latter riiould 
 "enter into any agreement or agreements tha^t may be necessary to enable'' 
 the former company to carry out its provisions with respect to the rates 
 charged so as to prevent any unjust discrimination between any classes 
 of the customers of the Federal Line: — Held, that the said order so far 
 as it related to the provincial street railway was made without jurisdic- 
 tion. [Montreal Street Ry. Co. v. Montreal, 43 Can. S.CJJ. 197, 11 Can. 
 Ry. Cas. 203, affirmed.] 
 
 Montreal v. Montreal Street Ry. Co., 13 Can. Ry. Cas. .>41, [1912] A.C. 
 333, 1 D.L.R. 681. 
 
 [Referred to in Montreal Tramways, etc. Cos. v. l^chine. Jacques Cartier, 
 etc Ry. Co., 18 Can. Ry. Cas. 122." .30 Can. S.C.R. 84. 
 
 Sepasatiox of csare-s — Cost of — Imposing part ox stust railway coh- 
 
 PAXY. 
 
 The provisions of ss. 8 (a). 39, 237, 238 of the Railway Act, 1906, a-^ 
 amended by 8 Jc 9 Edw. YII. c. 32, permitting the Board to impose on a 
 street railway company a portion of the cost of separating the grade of 
 a street at a railway crossing, is not ultra vires. (Per Idington. Anglin 
 and Davies. JJ. t. [Toronto v. Can. Pac. Ry. Co., [1908] A.C. 54; Can. 
 Pac. Ry. Co. v. Notre Dame de Bonse^-ours, [1899] A.C. 367; Toronto v. 
 Grand Trunk Ry. Co., 37 Can. S.C.R. 232: Carleton v. Ottawa. 41 Can. 
 S.C.R. 552: and" Re Can. Pac. Ry. to. and York. 25 AJR. (Ont.) 65 fol- 
 lowed.] 
 
 British Columbia Elec. Ry. Co. v. Vancouver, etc., 48 Can. S.C.R. OS, 13 
 DX.R. 308, 15 Can. Rv. Cas. 237. 
 
148 COiXSTITUTIONAL LAW. 
 
 [Reversed in 18 Can. Ry. Cas. 287, 19 D.L.R. 91; considered in city of 
 Vancouver v. Vancouver, Victoria & Eastern Ry. Co., 18 Can. Ry. Cas. 
 296, distinguished in Toronto Ry. Co. v. Toronto and Can. Pac. Ry. Co., 
 20 Can. Ry. Cas. 280.] 
 
 Powers of Railway Committee — Ebectiox and maintenance of gates 
 AT crossings. 
 
 The legislation of the Parliament of Canada witli reference to the guard- 
 ing of the crossings of a railway, which under subs. 10 of s. 92 of tlie 
 R.N.A. Act is under the exclusive legislative authority of Parliament, is 
 within the scope of necessary legislation. 
 
 Re Can. Pac. Ry. Co. and York, 1 Can. Ry. Cas. 36, 27 O.R. 559. 
 
 [Reversed in part in 1 Can. Ry. Cas. 47, 25 A.R. (Ont.) 65; adopted 
 Winnipeg v. Toronto General Trusts. 19 Man. L.R. 429; applied Montreal 
 Street Ry. Co. v. Montreal, 43 Can. S.C.R. 251; approved in Re McAlpine 
 & Lake Erie Ry. Co., 37 Can. S.C.R. 240; considered in Atty. -General v. 
 Can. Pac. Ry. Co., 11 B.C.R. 302; referred to in Grant v. Can. Pac. Ry. 
 Co., 36 N.B.R. 532; Grand Trunk Ry. Co. v. Cedar Dale, 7 Can. Ry. Cas. 
 73; Can. Pac. Ry. Co. V. Toronto, 7 Can. Ry. Cas. 274.] 
 
 Works for the ge.xeral advantage of Canada — Provincial street 
 RAILWAY — Rights in, and use of, streets and highways. 
 
 The provisions of subs, (b) of s. 8 of the Railway Act, 1906, purport- 
 ing to subject to the Dominion Railway Act the through traffic upon any 
 railway or street railway authorized by special act of a provincial J..egis- 
 lature which connects with a Dominion railway, although such provin- 
 cial railway or street railway had not been declared by Dominion statute 
 to be a work for the general advantage of Canada, is ultra vires of tlie 
 Parliament of Canada. [Opinion of Fitzpatrick, C.J., Girouard and Duff. 
 JJ., in Montreal Street Ry. Co. v. Montreal, 43 Can. S.C.R. 197, 11 Can. 
 Ry. Cas. 203, affirmed on this point on appeal to the Privy Council.] 
 
 Montreal v. Montreal Street Ry. Co., 1 D.L.R. 681, 13 Can. Ry. Cas. 
 541, [1912] A.C. 333. 
 
 [Referred to in Auger et al. v. Grand Trunk and Can. Pac. Ry. Cos., 19 
 Can. Ry. Cas. 401.] 
 
 Provincial legislation bexjulating work on Sunday — Right of Parlia- 
 ment to pass. 
 
 S. 9 of the Railway Act, 1906, enacting that every railway situated 
 wholly within one province of Canada and declared by Parliament to be 
 either wholly or in part a work for the general advantage of Canada, shall 
 be subject to any Act of the Legislature of the province in which it is 
 situated prohibiting or regulating work on Sunday, is intra vires of the 
 Parliament of Canada. 
 
 Kerley v. London & Lake Erie, etc.. Co.. 14 Can. Ry. Cas. Ill, 6 D.L.R. 
 189. 
 
 [Reversed in 13 D.L.R. 365, 15 Can. Ry. Cas. 337.] 
 
 "(General advantage of Canada" — Exclusive legislative jurisdiction. 
 Where a railway and transportation company is incorporated under an 
 Act of the Parliament of Canada: (a) conferring power to operate l)eyond 
 as well as within a certain province, and (b) declaring its undertaking 
 to l)e a Avork for the general advantage of Canada, its luuiertaking falls 
 Avithin the exchnive legislative authority of tlie Parliament of Canada 
 conferred by subs. 29 of s. 91 of the B.N.A. Act. [Kerley v. London &, 
 
eOXSTITUTIOXAL LAW. 14S> 
 
 ImJae Erit etc, Coi, « DXuS. 1S», ivT«rs«d: Toromo t. Bdl Tdc^oar Col, 
 [IMd] A.C. ^ foUowied.] 
 
 Kerie^r r. Loadon i Labt Eri«v ««cl. Col, Id Cas. Rj. Ca:^ 337. 38 OX.R. 
 COS, 13 DJ^JR. 3&i. 
 
 EXCUTSXTE JLBLSMCnOX ElTKATBM HTOM AL I~:mEXTAEE<CC 
 
 WhcYv powers cxnfenvd In- the PluliaBmt of Canada for aa mder- 
 takii^ rftrmdimg bc7««d as «\d as vitkia the finite of a proriaee aad 
 falliag: vfthia the exehtare jnnsdietiOB of the DaaaiaioB Fu-IiaaHBt, a. 
 dedaratkn thcivirr that sack vadntakii^ m a mtic for the general ad- 
 •wmmtM^ of Caaada is imBe«««i;arr to hriag it vithia the aabit of that 
 exeli^Te jmisdictioB aad is therefore '''■BaieaBi^.'" [Kerley t. T^^m1^n^ 
 t Lake Erie. ete_ Col. « DXJL 1S9. revered: Toronto t. Bell Tdc^une Osu 
 paflS] A.C 52. at p. fiO-l 
 
 Kerkj t. London 4 Lake Erie, cte., Cou 13 Can. Bt. Ca&. 337. 2$ O.L.IL 
 •K, 13 DJJEL. 3£Sl 
 
 ^<]^CXCKAI. AOT-jLXTJUeK OF CaXADa" — COSaTK CTIOX OF STATCTE^ 
 
 S. S of the Donuaion Railvar Act. 1903. as aaMnded W r. 32 of 1904. 
 a. 2. (re-enacted sakstaatialhr in BjSLC. 19f)«, e. 37. & 9»'. sabjecti^ cer- 
 tain TailmaTS to provincial legislation and confirau^ and rBtifrii^ sock 
 l^islatHn (SL 193 <rf Ontario Saihrar Jket. 190fiii, is constmed as coiena^ 
 tke peenliar status 4^ those raihrsTs oand onhr those raihnv^l deelared 
 hgr tke Dondnion Farlianwnt to be "works for tke general advaatage of 
 Canada" and solel;^ by sack Federal declaration witkdrawn from tke ^x>- 
 Tincial jnriadietiaa to vkick otkenrise tker. as pnorincial ondertakingsv 
 wnld kaTe keen snbjert. [Kerler t. London and Lake Erie, etc Co- € 
 DX.R. 189, l e ie rBwL] 
 
 Kerler t. London k Lake Erie, etc- Co.. lj» Caa. Rr. Cas. 337. 2$ OX.S. 
 COS, 13'd.I.R. 3Si. 
 
 STAITTIS — C0XST«rCT105; ^SrECn.AT105r as to LBCrSlATITE ixtest. 
 
 la decidii^ a question of statntoty constmction. a Court at Josticv is 
 not e niil l ed to speenlate as to vkidi of two eonflicti^ policies was in- 
 tended to prevaiL bat amst confine itself to tke constroction of tke laa- 
 gnage (rf tke releraat statutes taken as a wkole. Tke langna^ of tke 
 Railnnj Act, 190S. expnisfies an intention to preserve intact aO pon<ei». 
 conferred bjr prerioos special Acts of incorporation npon companies witiiin 
 ifa aeope, except wkcre otkerwtse specificalhr mentioaedL S. 24^ of tke 
 Art, Aews tkat, wkcre PSarGanHnt intended br tkat Act to interfere witk 
 Hhm pon e aa trf companies other tkan railway companies, it kas done so bjr 
 upwial proriaon. 
 
 Toronto & Xiagara Power Co. r. Xortk Toronto. 14 Cua. Rr. Cas. 392, 
 [1912] A.C. 83i. 9 D.L.R. 43. 
 
 DoMmosr fkaxchise — AcQnsmos — OnsATiox. 
 
 A mnnieipalitT aaar actpdre tke nadertaldnp of a Doaainion railwaT. 
 bat ander s. 299 of tke Raihraj Act. 19(0«^ is witkoot power to operate it 
 ander tke Act except ondcr tke antkoritr of tke Minister of Railways and 
 Canals, witk tke obligation of applying lor an cnablii^ Act at tke next 
 acsnon of Farlia nnnt . 
 
 Re Graad Valley Ry. Cou IS Can. Ry. Cas^ 430. 
 
 CffXST«rcTiox or sftATiTE — Sranmsiox of utxn — Sale or lot* — Setts- 
 
 AXCE. 
 
 Where many of tke lots la a registered sabdiiisMB kare Ucen <«>ld and 
 tke remainder owned br tke sabdivider do not form a conaonted cumpaet 
 
150 CO^s'STlTUTIONAL LAW. 
 
 piece of land, he may be treated as having himself made a severance of 
 the entire block as shewn on the plan so as to disentitle him to damages 
 for injurious affection of lots no part of which are taken for the railway 
 in an arbitration under the Railway Act. in addition to compensation for 
 entire lots taken, where there is no severance of any one lot. [Railway 
 Act, s. 155 considered; Cowper-Essex v. Local Board of Acton, 14 App. Cas. 
 15;i, distinguished.] 
 
 Can. Northern Ontario Ry. Co. v. Holditch, 19 Can. Ry. Cas. 112, 50 
 Can. S.C.R. 265, 20 D.L.R, 557. 
 
 [Affirmed in 20 Can. Ry. Cas. 101.] 
 
 Criminal law and procedure — Indictment for noncriminal offense. 
 
 Tt was competent to the I'arliament of Canada under s. 91 (27) of the 
 J5.N.A. Act, in legislating as to criminal law and jirocedure, to declare 
 iiiat what might previously have constituted a criminal offence should no 
 longer do so altluiugh a j)rocedure in form criminal was kept alive. 
 
 Toronto Ry. Co. v. The King, 23 Can. Ry. Cas. 183. [1917] A.C. 630, 
 38 D.L.R. 537. 
 
 Jurisdiction — \^ouks oudehid by Board — Apportion mknt of cost. 
 
 Ss. 8 (a), 28, 59 of the Railway Act, 1906, empowering the Board to 
 apportion among the persons interested the cost of works and construction 
 which it orders to be done or made are intra vires. [British Columbia Elec. 
 Ry. Co. V. Vancouver, etc., 15 Can. Ry. Cas. 237, 13 D.L.R. 308, dis- 
 tinguished.] 
 
 ioronto Ry. Co. v. Toronto and Can. Pac. Ry. Co., 20 Can. Ry. Cas. 280. 
 
 B. Provincial Powers. 
 
 I'lJOVINCIAL REGULATION DOMINION RAILWAYS. 
 
 The provincial Legislatures in Canada have no jurisdiction to make 
 regulations in respect to crossings or the structural condition of the road- 
 bed of railways subject to the provisions of the Railway Act of Csmada. 
 [Can. Pac. Ry. Co. v. Notre Dame de Bonsecours, [1899] A.C. 367, fol- 
 lowed]. 
 
 Grand Trunk Ry. v. Therrien. 30 Can. S.C.R. 485. 
 
 [Applied in Grand Trimk Ry. Co. v. Perrault, 36 Can. S.C.R. 677; 
 followed in Perrault v. Grand Trunk Ry. Co., 14 Que. K. B. 249.] 
 
 Vancouver Island Settij;rs' Rights Act, 1904 — Powkrs of local Legis- 
 lature — British North America Act, s. 92, subs. 10. 
 
 The British Vancouver Island Settlers' Rights Act, 1904, directed that 
 a grant in fee simple without any reservations as to mines and minerals 
 should be issued to settlers therein defined, and thereunder a grant was 
 niade to the appellant of the lot in suit. By an Act of the same Legisla- 
 ture in 1883, land which included the said lot had been granted with its 
 mines and minerals to the Dominion Government in aid of the construc- 
 tion of the respondents' railway, and in 1887 had been by it granted to 
 the respondents under the provisions of a Dominion Act passed in 1884: — 
 Held, that the Act of 1904 on its true construction legalized the grant 
 thereunder to the ap])ellant, and superseded the respondents' title. Hold, 
 also, that the Act of 1904 was intra vires of the local Legislature. It had 
 the exclusive power of amending or repealing its own Act of 1S83. The 
 Act, moreover, related to land which had V)econie the property of the 
 
COXSTITUTIOXAL LAW. 151 
 
 le^andciits, and affected a work and andertaking purelr local irithin tlie 
 f liig of a. 92, subs. 10^ of the B^.A. Aet. 
 
 MeGrc^r r. E^aunalt i Xanaimo Rv. Co., [1U07] A.C. 462^ rereisiiij: 
 jadgnoit of Briti:«li ColnmlMa Sapreme Court. 1± B.C.R. 257. 
 
 [CoBunented on in Bnrrard Power Co. t. Tbe King. 43 Can. S.C.IL 56: 
 EBqnimaH k X. Rt. Co. t. Fiddieiu 14 B.C.R. 413.] 
 
 SCSTBAT TKAFFIC — OXTAUO Lfi«D*S DaT ACT — MjlTTK« KELATfXG TO GKQI- 
 TSAL LAW AXB SOT TO CIVIL SIGHTS — I^BISLATITE POWtX OF DOMIXIOX 
 PAJtLIAMEXT — BunSH XCHtTH AVEUCA ACT. 
 
 Tlie Ontario Lord's Day Art, EjS.O. 1897, e. 246, is nltra vires of the 
 Ontario Legislamre. a$ the subject thereof comes under the classifieation 
 (tf "criminal law,'* which by the B.X-^ Act is undo* the exclusive legis- 
 lative authoritv of the Parliamoit of Canada. 24 AJL (Ont.! 170 af- 
 firmii^ 27 O.R. 49, reversed. 
 
 Attomey-Oneral (Ont-K v. Hamilton Street Ry., [1905] A.C. 524. 
 
 [Applied in Re Criminal Code, 43 Can. S.C.R. 453: Re Sunday Labour 
 Act, 35 Can. S.C.R. 591; disting:niyied in Tremblay v. Quebec. 3$ Que. 
 S- C. 90; Wilder v. Qoebee, 25 Que. S.C. 148; referred to in Re Fisher 
 and Village of Carman, 15 Han. LJL 477, 16 Man. LJt. 561: followed in 
 Rex. V. Yaldon. 17 OX.R- 179, 12 0.WJ5. 384; referred to in Re C<*en. 
 8 OXlR. 143; Re Ontario Medical Act^ 13 O.I-R. 501: Tremblay v. Que- 
 bec. 37 Que. S.C. 37S; relied on in Re Coal Mines Regulation Art, 10 
 B.C.R. 423.] 
 
 PnovrxciAL KEr.rxAnox of cbosshcgs axd boaiibed. 
 
 The provincial Legislatures in Canada have no jurisdiction to make 
 regulations in respect to crossings or the structural condition of the road- 
 bed of railways subject to the provisions of the Railway Act of Canada. 
 [Can. Pac. Ry. v. Xotre Dame de Bon^eeours. [1897| A.C. 367. followed.] 
 
 Grand Trunk Ry. Co. v. Therrien. 30 Can. S.C.R. 485. 
 
 [Applied in Grand Trunk Ry. Co. r. Perrault, 36 Can. S.C.R. 677. 14 
 Que. K. B. 249.] 
 
 MrsiciPAL coBroRAnox.s — Coxst«1"ctiox or highway acbo(S« kailwat — 
 Railway Commitiee — Ixtra vibes;. 
 In an action to restrain the defendants from acting upon an order of 
 the Railway Committee, made under s. 14 of the Railway Act, 1903. giv- 
 ing them the option to open a new street, by means of a subway, across: 
 the propnly and under the tracks <A a Dominion railway company, but 
 without compensation, and requiring the company to pay a portitm of 
 the cost of construction, and meanwhile allowing a temporary crossing for 
 foot passragers only, and making certain otho* provisions upon the sub- 
 ject: — ^Held, that the provincial Legislature al<Hie had power to confer 
 upon the defendants legal capacity to acquire and make the street in ques- 
 tion. (2) It has conferred such capacity. (3» In virtue of its power 
 over proper^ and civil ri^ts in the province, the provincial Legislature 
 has power to authorize a municipality to acquire and make such a street, 
 and to provide how and upon what terms it may be acquired and made. 
 (41 But that power is subject to the intervention of Federal legislati<» 
 respecting works and undertakings such as the railway in question. (5t 
 The manner and terms of acquiring and nudging such street, and also the 
 preventdtm of the w««kii»g or acquiring of such a street, are proper sub- 
 jects of such supervenii^ legislation. (6» Such legislation may rightly 
 confer upon any person or body the power to determine in what circum- 
 and how and upon what terms, such a street may be acquired and 
 
152 CONSTITUTIONAL LAW. 
 
 made, or to prevent the acquiring and making of it altogether, and there- 
 fore 8. 14 of the Railway Act is not ultra vires. (7) Such legislation, in 
 virtue of its power over such railway corporations, as well as such works 
 and undertakings, may confer power to impose such terms as have in this 
 case been imposed upon the plaintiffs, and to deprive such corporations of 
 any right to compensation for huuls so taken or injuriously affected; and 
 lias conferred such power on tlie Railway Committee, luider s. 14, in sucli 
 a case as this. (8) Such legislation has not conferred upon the Commit- 
 tee power to give the temporary footway in question. (9) Nor any 
 authority to delegate its powers. (10) The work it directs must be con- 
 structed under the supervision of an oflicial appointed for that purpose 
 by the Committee. (11) The railway company may, if they choose, con- 
 struct the works directed, under such supervision, instead of permitting 
 the municipality to do so. 
 
 Grand Trunk Ry. Co. v. Toronto, 1 Can. Ry. Cas. 82. ;J2 O.R. 120. 
 
 [Approved in Re McAlpine & Lake Erie Ry. Co., 3 O.L..R. 230; consid- 
 ered in Atty.-General v. Can. Pac. Ry. Co., li B.C.R. 303.] 
 
 Mechanics' Lien Act — Dominion company. 
 
 The Mechanics' and Wage Earners' Lien Act, R.S.O. 181)7, c. 153, does 
 not apply to a railway company incorporated inider a Dominion Act and 
 declared thereby to be a company incorporated for the general advantage 
 of Canada. 
 
 Crawford v. Tilden, 6 Can. Ry. Cas. 300, 13 O.L.R. 169. 
 
 [Affirmed in 14 O.L.R. 572, 6 Can. Ry. Cas. 437.] 
 
 Pbaikie Fires Obdinanch>-^Confi.ict with Dominion legislation-. 
 
 (1) The provisions of the Prairie Fires Ordinance imposing penalties 
 upon railway companies governed by the Dominion Railway Act for kin- 
 dling fires and letting it run at large in the operation of locomotive steam 
 engines on their railway are valid. [Rex v. Can. Pac. Ry. Co., 1 West. 
 L.R. 89, followed!] (2) Where provincial legislation imposing penalties 
 for failing to observe the precautions to protect does not conflict with 
 Dominion legislation upon the same subject the provincial legislation is 
 not rendered inoperative by such Dominion legislation. (3) Where pro- 
 vincial regulations do not attempt to interfere with the structure of au- 
 thorized works of the railway but merely require the removal of weeds 
 or some alteration in its surface in order to prevent injury to other prop- 
 erty, such legislation is not invalid, provided the management of the 
 company's business as a railway and the railway works themselves are 
 not interfered with. [Madden v. Nelson & Fort Sheppard Ry. Co., [1899] 
 A.C. 626, discussed; Can. Pac. Ry. Co. v. Notre Dame, etc., [1899] A.C. 
 367, followed.] 
 
 Rex V. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 421, 6 West. L.R. 126 (Sask.). 
 
 [Reversed in 39 Can. S.C.R. 476, 7 Can. Ry. Cas. 176.] 
 
 "The Prairie Fires Ordinance" — Works controlled by Parliament — 
 Operation of Dominion railway. 
 In so far as they may relate to matters affecting the operation of a 
 railway under the control of the Parliament of Canada, the provisions of 
 8. 2, subs, (a) and (2), of c. 87, Con. Ord. N.W.T. (1898), as amended 
 by the N.W.T. Ordinances, c. 25 (Ist sess.) and c. 30 (2nd sess.) of 1903, 
 constitute "railway legislation," strictly so-called, and were beyond the 
 competence of the Legislature of the North-West Territories. [Can. Pac. 
 Ry. Co. V. Notre Dame de Bonsecours, [1899] A.C. 367, and Madden v. 
 
CONSTITUTIONAL LAW. 153 
 
 Ndson & F<H^ Sai^pud Ky. Co., [1S99] A.C. 62ti. referred to. The jndg- 
 ■Mnts appealed from, 6 Cui. Rt. Cas. 421, were reversed.] 
 
 Can- Par. Rt. Co. v. The King, 7 Can. Rt. Cas. 176, 39 Can. S.C.R. 476. 
 
 [Applied in Montreal Street Rt. Co. t. Brialofskr, 19 Que. K-B. 338.] 
 
 PKOTISCTAI. KBGCXATIOX <M^ RAILWAT Kin"lX)TMEST. 
 
 The limitation of time prescribed by s. 306 of the Railway Aet, 1906, 
 relates onhr to actions against raUway companies provided for in the 
 act itself, and was not intended to apply to actions the rights of which 
 exist at common law or under proTincial legislation. Dominion railways 
 are subject to proTincial legislation on the relations between nuister and 
 sorant. such as the Workmen's Compensation for Injuries Act, unless the 
 field has been covered by Dominion legislation ancillary to Dominion legis- 
 lation respecting railways under the jurisdiction of Parliament, and subs. 
 4 of & 306 of the Railway Act, qualifies its main clause and excludes its 
 operation where the injury complained of comes within the jurisdiction 
 of, and is specially dealt with by the laws of, the province in which it 
 takes place, provided such laws do not encroach on Dominion powers. 
 [C.PJ{. V. Roy, [1902] A-C. 220, distinguished. Canada Southern v. Jack- 
 «« (1890), 17 Can. S.CR. 325, followed.] 
 
 Sutherland v. Qui. North. Rv. Co.. 13 Can. Rv. Cas. 495, 21 Man. L.R. 
 27. 
 
 CoxsTxucnox or pbotixcxm. exactme:?t — Lbgislatite ixtext — Power 
 
 OF OOrBTS TO QCTSTIOX THE KEASOX ABLEXESS OF THE EXACTinST. 
 
 In considering the constitutionality of any enactment of a proTincial 
 Lc^slature, every intendment will be made to support it. and it is not 
 the business of the courts to pass np<m its wisdom or reasonableness, but 
 simply to say whether it is fairly within the area of the constitutional 
 powers of the Legislature. 
 
 Kerley v. London 4 Lake Erie, etc., Co., 14 Can. Ry. Cas. Ul, 6 D.L.R. 
 189. 
 
 [Reversed in 13 D.L.R. 365. 15 Can. Ry. Cas. 337.] 
 
 EXTBATESKITOBIAI. CXDEKTAKIXGS. 
 
 Upon a question of provincial as distinct from Federal jurisdiction over 
 a railway with a Federal charter conferring powers to operate beyond the 
 limits of a province, the governing principle is the conferring of such 
 powers and not whether they were actually exercised. [Toronto v. Bell 
 Telephone Co., [1905] A.C. 52, referred to.] 
 
 Kerley v. London & Lake Erie, etc, Co., 15 Can. Ry. Cas. 337, 28 OX-R. 
 608, 13 b JJR. 365. 
 
 CosSTBrcnox of Pbotixciae Railway Act. 
 
 Although the language of s. 193 of the Ontario Railway Act, 1906 (now 
 R.S.O. 1914, c. 185 ». b wide enough to embrace all street railways, tram- 
 ways, and electric railways situate within the province, it must be read 
 with 3S. 3, 5, as based upon s. 79 of 4 Edw. VII. c. 10, and by Tirtue there- 
 of applies only to railways subject as such to proTincial jurisdiction. 
 [Kerley t. London & Lake Erie. etc.. Co., 6 D.L.R. 189. rcTersed.] 
 
 Ko-ley T. London 4 Lake Erie, etc, Co., 15 Can. Ry. Cas. 337, 28 OX-R. 
 606, 13*Di.R. 365. 
 
 JrWSDICTIOX OF PaMJAMEIXT AXD LfiGISULTTBE — EXTKATEIUUTOSIAI, TTX- 
 DEBTAKIXGS. 
 
 Where powers are conf^red by the Dominicm Parliamoit for an tmder- 
 
154 CONSTITUTIONAL LAW. 
 
 taking beyond as well as within the limits of a province and consequently 
 falling within the exclusive jurisdiction of the Dominion Parliament, the 
 Legislature of such province has no jurisdiction to impose conditions pre- 
 cedent to the exercise of such powers. [Kerley v. London & Lake Erie, etc., 
 Co., 6 D.L.R. 189, reversed: Toronto v. Bell Telephone Co., [1905] A.C. 
 52, followed.] 
 
 Kerley v. London & I^ke Erie, etc., Co., 15 Can. Ry. Cas. 337, 28 O.L.R. 
 606, 13'd.L.R. 365. 
 
 PBOVINCIAL LEX3ISLATION InTEBFEBEXCE WITH DOMINION RAILWAYS. 
 
 It is not competent to the Legislature of the Province of Alberta to 
 enact legislation authorizitig the construction and operation of railways 
 in such a manner as to interfere with the physical strxicture or operation 
 of railways subject to the jurisdiction of the Fe<leral Parliament. 
 
 Re Alberta Railway Act, 15 Can. Rv. Cas. 213, 12 D.L.R. 150, 48 Can. 
 S.C.R. 9. 
 
 [Affirmed, 19 Can. Ry. Cas. 153.] 
 
 Power of provincial railway to take lands of dominion — Crossing 
 Dominion railway — Legislative authority of province — Alijerta 
 Railway Act — B.N.A. Act. 
 
 S. 7 of c. 15, of the Statutes of Alberta 1912, amending the Alberta 
 Railway Act, s. 82 (1 «S: 2), which provides that a railway company au- 
 thorized by that Act may, subject to the approval, order, or direction of 
 the Lieutenant-Governor, take possession of, use, or occupy the lands be- 
 longing to another railway company by adding subs. (3), which purports 
 to apply its provisions to the lands of every railway company authorized 
 otherwise than under the legislative authority of the province, "in so far 
 as the taking of sucli lands does not unreasonably interfere with the con- 
 struction and operation" of tlie railway whose lands are taken, is ultra 
 vires a provincial Legislature imder the B.N.A. Act, and would not be 
 intra vires if the word "unreasonably" were omitted. Jn a suitable case, 
 having regard to the interests of the public, the Railway Board, acting un- 
 der s. 8 of the Railway Act may grant permission for a provincial railway 
 to cross a Dominion railway, the crossing being regulated in accordance 
 with those interests. [Attorney-(<eneral for Canada v. Attorney-General 
 for Alberta (In re Alberta Railway Act), 48 Can. S.C.R. 9, 15 Can. Ry. 
 Cas. 213, affirmed.] 
 
 Attorney-General for Alberta v. Attorney-General for Canada, 19 Can. 
 Ry. Cas. 153, [1915] A.C. 363, see 22 D.L.R. 502. 
 
 [Followed in. Midland Ry. Co. v. Grand Trunk Pacific Ry. Co.. 23 Can. 
 Ry. Cas. 80.] ' 
 
 JUEISDICTION OP PROVINCIAL RAILWAY BOARD — WoRK FOR GENERAL ADVAN- 
 TAGE OF Canada. 
 
 S. 306 of the Dominion Railway Act, 1888, which declares certain named 
 railways to be ''works for the general advantage of Canada," only applies 
 to the particular railways enumerated in the section and their branch 
 lines, but does not apply to an electric railway that only cros.ses one of 
 the railways named therein ; conse<piently such railway is not subject to 
 the exclusive jurisdiction of the Dominion Parliament, but it remains sub- 
 ject to the authority of the Ijegislature of the Province of Ontario by which 
 it was incorporated, and to the orders of the provincial railway board. 
 
 Re Ross and Hamilton, Grimsby & Beamsville Ry. Co., 19 Can. Ry. Cas. 
 166, 25 D.L.R. 613. 
 
 [Affirmed in 20 Can. Ry. Cas. 123.] 
 
CONTRACTS. 155 
 
 ObSCCKE LA^eCAGE tS ESACrrSG AGKEEMENT. 
 
 A section in an Aet of the Legislature, oiactcd to eonfirm an agreement, 
 whieh repeats some portimi of the a gi tement in clumsv and obscure lan- 
 guage, should be regarded rather as bv war of identification than bj war 
 of conferring actual or independcat rights. [Be Toronto Rj. Co. and 
 Toronto, 26 D-L.R. 581. 54 O-LR. 4o6. 19 Can. Ry. Cas. 52s'. affirmed.] 
 
 Toronto v. Toronto Rt. Co^ 20 Can. Rt. Cas. lio. [191C] 2 JLC. 542, 
 29 DiJL 1. 
 
 DoMtxiox POWE«s — '■Gexeral adv.wtage of Canada." 
 
 The Parliament of Canada has power by subsequent enactment to i»t>p- 
 erly and effectually modify or repeal a declaratiun und«-r >. 92 {in*. 
 3JS.A. Act. whereupon a railway previously declared ~to be for the gen- 
 eral advantage of Canada, or for two or more of the provinces," becooK^ 
 again subject to the jurisdiction of the province in which it is situate. 
 [Re Ro>ss and Hamilton. Grimsby k Beamsville Ry. Co., 25 DJL.R. 61X 
 Z4 OX.R. 599. 19 Can. Ry. Cas. 166. affirmed.] 
 
 Hamilton, Grimsby k Beamsville Ry. Co. v. Attorney-General for On- 
 tario, 20 Can. Rv. Caa. 12-^ [19161 2 A.C. 5S3. 29 D.L^R.* 52L 
 
 C. Te i i itor ial Poweis. 
 
 T gg MrUM AI. ntAXCHISE TO TXAMWAT OVEK DOMIVIOX LANDS. 
 
 The executive government of the Yukon Territory may lawfully author- 
 ize the construction of a toll tramway or waggon road over Dominion 
 lands in the territory, and private persons using such road cannot refuse 
 to pay the tolk exacted under such authority. 
 
 O'Brien v. Allen, 30 Can. S.C.R. S40. 
 
 CONSTRUCTION AND LOCATION. 
 
 Location and plans. cMupensation for lands and injuriesi to. see Ex- 
 propriation. 
 
 Priorities in point of construction as affecting protection ot crossings, 
 see Railway Crossings. Highway Crossings. 
 
 See Daouges (F). 
 
 CONTINUOXTS ROUTE. 
 As affecting rates, see Tolls and Tariffs. 
 
 CONTRACTS. 
 
 A. la GcneraL 
 
 B. Railway Constmcticm Contracts. 
 
 Agreements respecting controllable freight, see Carriers of Goods. 
 See Amalgamation: Employees: Fences and Cattle Guards: Carriers of 
 Goods; Government Railways; Provisional Directors; Telephtmes. 
 
 Annotations. 
 
 Covcnaats of railway companies. 1 Can. Ry. Cas. 2S9. 
 
 Whrthrr mandamus, injunction, specific performance or damages is the 
 proper ronedy for the enforcement of covenants by railway c om panies. 
 Note, 1 Can. Ry. Cas. 294. 
 
 Limitati<Hi of liability in Ii%-e stock contracts, 19 Can. Rt. Cas. 44. 
 
156 CONTRACTS. 
 
 A. In General. 
 Powers of pbesident. 
 
 Where, by an agreement which is in writing but which it would have 
 been competent to the parties to make without any writing, the president 
 of an incorporated company enters into an undertaking expressly upon 
 his own behalf and upon behalf of the company, but signs the agreement 
 in the name of the company only, the written document will be regarded 
 merely as a record of the agreement and not as the agreement itself, and 
 the president will be held personally bound by his undertaking. 
 
 Wood V. Grand Valley Ry. Co., 5 D.h.R. 428, 26 O.L.R. 441. 
 
 [Varied and damages reduced in 16 Can. Ry. Cas. 220, 10 D.L.R. 726, 
 27 O.L.R. 556; affirmed in 16 D.L.R. 361.] 
 
 Signature of company. 
 
 The name of an incorporated company at the foot of an agreement, fol- 
 lowed, as part of the same signature, by the name of its president and 
 the word "president," is the signature of the company and not of the presi- 
 dent personally. 
 
 Wood V. Grand Valley Ry. Co., 5 D.L.R. 428, 26 O.L.R. 441. 
 
 [Varied and damages reduced in 16 Can. Ry. Cas. 220, 10 D.L.R. 726, 
 27 O.L.R. 556.] 
 
 Coal shipment — Train service. 
 
 The plaintiffs, while expressly stipulating against any obligation to 
 deliver, offered to sell to defendants "20 cars of Pittsburg slack, at $1.25 
 at mine," which they would ship all rail, if defendants wished, and if 
 plaintiffs could procure the necessary cars. The defendants telegraphed 
 giving order at the price named, "f.o.b. mine," adding "Route it G.T.R. 
 London." On the same day the plaintiffs wrote accepting the order, and 
 stating that they would ship as soon as railroad equipment could be fur- 
 nished, that an all-rail rate of $2.10 to London had been quoted them, and 
 they would ask the carriers to put same through at once. Subsequently, 
 and before any shipment had been made, it was arranged between plaintiffs 
 and defendants that No. 8 Pittsburg slack could be substituted for Pitts- 
 burg slack, and at the same "delivered price." Invoices sent with the coal 
 shewed the mine price as $1.65, but, notwithstanding, defendants accepted 
 the coal, and made no protest until making their first payment: — Held, 
 that the price of delivery was to be at London at the price of $3.35, and, 
 even if the defendants could claim to have been misled by the corres- 
 pondence, they were estopped by dealing with the coal when the invoices 
 were received from shewing the contrary. 
 
 Burton v. London Street Ry. Co., 7 O.L.R. 717. 
 
 Meal tickets — Contract — Liability of railway. 
 
 Where an employer arranges with a restaurant keeper to supply an 
 indefinite number of midnight meals from time to time to his employees 
 producing the employer's meal tickets, redeemable by the latter at a fixed 
 rate per meal, there is no implied stipulation that the employer shall send 
 all or any of his employees to get their meals exclusively at that restau- 
 rant; and an action for damages does not lie against the employer at the 
 instance of the restaurant keeper for issuing tickets good as well at other 
 restaurants as at that of the plaintiff for tbeir employees' meals. [The 
 Queen v. Demers, [1900] A.C. 103, applied.] 
 
 Bouton v. Can. Pac. Ry. Co., 10 D.L.R. 463, 43 Que. S.C. 495. 
 
CONTRACTS. 157 
 
 CttJfntACT BETWEES &BISTEM. ASB rCBCHASES — JURISDICTION ^TOIXS. 
 
 The Board has no jmisdictMMi to deal with qnestions (rf contract be- 
 fcvcoi ahi^wTs and purchasers, and therefore, the- parties are not bound br 
 aajr Imdiiig of the Board, except with regard to toiU. 
 
 OliTcr-Saim Lumber Co. t. Can. Pac. and Esqnimalt k, Xanaimo Rv. 
 Cos, 17 Can. Rt. Ca*. 32-L 
 
 IJ AB IIT TY of PBESIDC5T OX ACK££1ICXT OS HIS OWX MTHAI-y AXD THAT OF 
 COllPAXT SlCXATl"BE OF COVPAST. 
 
 Where, by an agreement which is in writing, but which it would hare 
 been competent to tbv parties to make without any writing, the president 
 of an incorporated t-ompanr ent«^ into an undertaking expres.^Ir upon his 
 own behalf and upon behalf of the company, but signs the agrtement in 
 the name of the company mily, the written document will be regarded 
 merely as a record of the agreement and not as the agreement itself, and 
 the president will be held personally bound by his undertaking. [Wood 
 r. Grand Vallcr Ry. Co., 16 Can. Ry. Ca&. ±20, 10 DXlR. 726, 27 OiJL 
 •>56. aflBrmed in this respect.] 
 
 Wood T. Grand Valley Ry. Co, 16 D-L.R. 361. 
 
 Recovext or voxer paid — NoxpeBFt«MAXCE or fcomise. 
 
 Mmiey cannot be ordered repaid as uptHi a failure of consideration, 
 where the failure is the nonperformance of a promise, the mnedy in such 
 case is the recovery of damages for the breach of the promise. [Wood r. 
 Grud Valley Ry. Co., 10 DJ..R. 726. 4 O.W.X. 556, rer«-s«d in part; Wood 
 T. Grand Valley Ry. Co.. 5 D.L.R. 42$. 26 OX.R. 441, reinstated in part.] 
 
 Wood T. Giand Valley Ry. Co.. 16 D.L.R. .361. 
 
 B. BaUway Coostmctiasi Contracts. 
 OoxsTwrcnox or fexces — Ancwnox axd katuticatiox of coxtkact — 
 
 POWEB TO BLXD COMPAXT. 
 
 7 A.R. (Ont.l frl6, affirmed. 
 
 Canada Central Ry. Co. r. Murray. 8 Can. S.C.R. 313. 
 
 [Affirmed in 8 App. Cas. 574; applied in SMi<^sae t. Central Vermont 
 Rt. Co., 26 Can. S.CJt. 646: distinguished in Miller t. Coehran Hill Gold 
 Mining Co.. 29 X.SJ:. 314: discussed in Rathbone v. Michael. 20 OiJL 
 503; followed in Trumble t. Hortin, 22 A.R. (Ont. • 51: referred to in 
 Allen r. Ontario k Rainy River Ry. Co., 29 OJL 510: Bemardine r. North 
 Dnfferin, 6 Man. I^R. 101. 19 Can. S.C.R. 611; Lawrence v. Locknow, 13 
 OJL 4.^; McDonald v. Con^idated Gold Lake Co., 40 X.S.R. 367; Still- 
 well V. Rennie. 11 A.R- (Ont.i 724.] 
 
 CKSTinCATE OF EXtilXEXX. 
 
 McC. et al.. appellants, entered into a eootract with MtG„ respondent. 
 the contractor for the construction of the North Shore Ry. between Mont- 
 real and Quebec, to do certain construction on a portion of the road, and 
 by a clause in his contract agreed "to keep open at certain times and 
 hours at his own cost and expense the main line for the passage of traffic 
 or express trains run by McG. without any charge to the latter;' but 
 there was a proviso that ~any time occupied on the road over and above 
 what may be required by the hours hereinbefore mentioned, or any ex- 
 pense caused thereby shall be paid by the contractor McG.. on a certif- 
 icate to that effect signed by the superintendent of the contractor." On 
 an action brought by appelfaints against respondent for damagins caused 
 by the interruptimi of the work on said road by the passing of respondent's 
 trains: — Held, affirming the- judgment fit the court below, that it was the 
 
158 COA^TRACTS. 
 
 duty of the appellants to get the superintendent's certificate within a 
 reasonable time, and not having taken any steps to get it until six years 
 after the superintendent had left the respondent's eniploymeilt, the failure 
 to produce such certificate was sufficient ground for dismissing the appel- 
 lant's action. 14 Rev. Leg. 422, affirmed. 
 -Me( arron v. McGreevy, 13 Can. S.C.R. 378. 
 
 Agreemext to purchase railway — Rolling stock. 
 
 B., the contractor for building the E. & H. Ry., and, practically, the 
 owner thereof, negotiated with the solicitor of the C.S.R. for the sale to 
 the latter of the E. & H. Ry., when built. While the negotiations were 
 pending B. went to California, and the agents who looked after the affairs 
 of tlie E. & H. Ry. in liis absence applied to the manager of the C.S.R. 
 for some rolling stock to assist in its construction. The manager of the 
 C.S.R. was willing to supply the rolling stock on execution of the agree- 
 ment for sale of the road which was communicated to B., who wrote a 
 letter to the manager in which the following passage occurred : "If from 
 any cause our plan of handing over the road to your company should 
 necessarily fail, you may equally depend on being paid full rates for the 
 use of engine and cars and any other assistance or advantage you may 
 have given Mr. Fanjuier (tlie agent)." The negotiations for the purchase 
 of B.'s railway by the C.S.R. having fallen through, an action was brought 
 by the latter company against B. and the E. & H. Ry., for the hire of the 
 rolling stock which was resisted by B. on two grounds, one that the rolling 
 stock was supplied in pursuance of the negotiations for the sale of his 
 road to the plaintiffs, which had fallen through by no fault of B. and the 
 other, that if the plaintiffs had any right of action it was only against 
 the E. Ik. H. Ry. and not against him. By consent of the parties the mat- 
 ter was referred to the arbitration of a County Court Judge, with a pro- 
 vision in the submission that the proceedings should be the same as on 
 a reference by order of the Court, and that there should be a right of 
 appeal from the award as under R.S.O. c. oO, s. 189. The arbitrator gave 
 an award in favour of the plaintiffs; the Queen's Bench Divisional Court 
 held that there was no appeal from the award on the merits, and as it 
 was regular on its face refused to disturb it; the Court of Appeal held 
 that there was an apjjeal on the merits but upheld the award. Tlie de- 
 fendants then appealed to the Supremo Court of Canada: — Held, affirming 
 the judgment of the Court of Appeal that the arbitrator was justified 
 in awarding the amoimt he did to the plaintiffs, and that B. as well as the 
 company was liable therefor. 
 
 Bickford v. Canada Southern Ry, Co. (1888), 14 Can. S.C.R. 743. 
 
 Subcontract — Engineer's certificate. 
 
 A subcontract for the construction of a ]»art of the North Shore Ry. 
 provided inter alia that, "the said work shall, in all particulars, be made 
 to conform to the plans, specifications and directions of the party of the 
 second part, and of his engineer, by whose classifications, measurements 
 and calculations, the quantities and amounts of the several kinds of work 
 performed imder this contract shall be determined, and who shall have 
 full power to reject and condemn all work or materials which, in his opin- 
 ion, do not conform to the spirit of this agreement, and who shall decide 
 every question which may or can arise between the parties relative to the 
 execution thereof, and his decision shall be conclusive and binding upon 
 both parties hereto. The aforesaid party of the second part hereby agrees, 
 and binds himself, that upon the certificates of his engineer, that the 
 work contemplated to be done luider this contract has been fully completed 
 
CONTRACTS. 159 
 
 bf Oe parfy of fht fiist part, he will paj the said putr td the first part 
 ior the pa fui im age of the same in full. f<M- atttnials and worianaashipL 
 It is further agreed, by the paity of the second part, that estimates; skill 
 he MiiV daring the progress of the vork on or aboat the fii^ of eaeh 
 month, and that payments shall be made br scteood party upon the esti- 
 mate and wrtiJS<eate of thia engineer, to the party of the first part, tm or 
 bcfme the fOtb day of each month, for the amount and Taloe of vork 
 done, and materiak famished dnring^ the prevkms month, ten per cent 
 being dedneted and retained by the party of the second part until th«<- final 
 irampletion of the wort embraced in thi$ cvntract. when all sums due the 
 party of the fir»t part shall be fully paid, and this ccntra«-t (on>i<kTv-d 
 cancelled.'' L'pon completion of the contract the engineer made a final 
 estiinate fixing the Taloe of the woik done by the subcontraetfiv at ^19.- 
 1-12.65. and after deducting the money paid to and received by the s-ub- 
 contraetor, and a clerical error appearing on the face of the certificate, 
 a anm ai ;$4J^S7.32 ronaincd doe to the subeontracttH-. Up<m an aetion 
 Inw U ght by the subcontractor to recorer the sum of :S36J312.1±. the Su- 
 perior Coart, who^ judgment was. affirmed by the Court of Queen's Bench. 
 granted the plaintiff the amoont of ^,1:^7.^ with interest and coi<ts. 
 On appeal to the Supreme Court: — ^Held, affirming the judgment of the 
 Court b^ow, that the estimate as given by the engineer wa^s substantially 
 rarh a certificate as the contract contemplated, but if not the plaintiff 
 ■mst fail as a final certificate of the engineo- was a condition p re c e de n t 
 to his ri^t to recorer. . 
 
 Gnillianit t. MeGreery, IS Cmn. S.CJK. 609. 
 
 Roxn — Coxnmoxs. 
 
 H. tendered for the cottstmrtion of a line of railwaT pursuant to an 
 adrotisement fos* tenders, and his offer was conditionally accepted. At 
 the atme time H. esecoted a bond reciting the fact of the tender and con- 
 ditioacd, within four days, to proride two acceptable sureties and deposit 
 5 per cent of the amount of his tender in the Bank ni Montreal, and also 
 to execute all necessary agreements f<M- the cttHn mcnceni ent and completion 
 of the work by specified dates, and the prosecution thereof until completed. 
 These conditions were not performed and the contract was eroitually given 
 to other per«<Mi& In an action against H. on the bot^: — ^Held. affirmii^ 
 the judgment of tiie Court of Appeal for Ontario, that the agreement made 
 by the bond was unilateral: that the railway ctHupany was under no obli- 
 gation to aerqMt the sureties offered or to give H. the contract: that the 
 band and the agreement for the c<mstruction of the work were to be con- 
 teaporaneoos acts, and as no such agreement was entered into H. was 
 not liable on the bond. 18 A.R. (Ont.i 415. affirmed. 
 
 Brantford, Waterloo t Lake Erie By. Co. t. Huffinan, 19 Can. &C.B. 
 336. 
 
 JkPntOVAI. OF EXGtXEeX. 
 
 Where the contract for constmctioa of a railway provided that the 
 wnxk was to be done to the satisfacticm of the chief engineer of a railway 
 eompany. not a party to such contract, who was to be the sole and final 
 arbiter of all disputes between the fxarties. the contractor was not bound 
 by soefa condition when the party named as arbiter proved to be, in fact, 
 the o^iineer of the other party to the contract. 
 
 DominioB Constmrtion Co. v. Good i Co^ 30 Can. S.C.R. 114. 
 
 STATrroaT moHiBmox of osticess jlxd dikectobs. 
 
 Where a contract is prohibited by statute, such contract is void, al- 
 
IGO CONTRACTS. 
 
 tliough the statute itself does not state that it is so, and only imposes a 
 penalty on the offender. Consequently, where the president of a railway 
 company entered into a secret partnership with the contractors for the 
 »:onstruction of the road, no action can be maintained by him against his 
 partners to enforce such contract. 
 
 McDonald v. Riordan, 30 Can. S.C.E. 619, 8 Que. Q.B. 555. 
 
 Bo.Nu — Assessment. 
 
 On the 31st October, 1870, one A. entered into a contract with the Gov- 
 ernment of Nova Scotia for the construction of a railway from New Glas- 
 gow,' N.S., to a point on the Strait of Canso, known as the Eastern Ex- 
 tension Ry. On the 20th of December, in the same year, A. assigned all 
 his right to said contract to the appellants, and on the same daj' an agree- 
 ment was entered into between the appellants and the Canada Improve- 
 ment Co., whereby the latter undertook to build and equip the said East- 
 ern Extension Ry. On 22nd December the respondent agreed with the 
 C.I. Co. to do the necessary work on the said road, for which the company 
 agreed to pay per mile the sum of $4,800 in cash, and $3,750 in first mort- 
 gage bonds of the respondent company. As security for his performance 
 of the agreement, the ros})ondent gave to the C.I. Co. a bond, with two 
 sureties, in the penal sum of $100,000, which bond was afterwards assigned 
 to the Government of Nova Scotia. The respondent proceeded with the 
 work according to the said agreement, but the said bonds were not de- 
 livered as the work progressed, and the said C.I. Co. represented that 
 they could not be issued at that time. The respondent, therefore, suspend- 
 ed the work and took proceedings against the C.I. Co. for breach of the 
 said contract. These proceedings were settled by a payment to the re- 
 spondent of a certain sum in cash and notes, and an agreement was entered 
 into between the appellants of the first part; the C.I. Co. of the second 
 part, and the respondent of the third part, which agreement, after reciting 
 the above facts, provided inter alia, as follows: That the C.I. Co. would 
 deliver to respondent $80,000 of first mortgage bonds of appellant's com- 
 pany as soon as the same could be legally issued, and use every diligence 
 to have them issued, and they should, so far as the parties of the first and 
 second parts could make them, be a lien on the Truro and Pictou Branch 
 Ry., which the Government of the Dominion were to hand over to the 
 appellants, upon the Eastern Extension Ry. and upon the appellant com- 
 pany and its property rights and privileges set forth in s. 32 of its act of 
 incorporation. That such bonds or other conveyances, or lien by which 
 they might be secured, should be free from any clauses restraining a sale 
 of the property to which such lien attaclied, or in any way impairing the 
 remedy of the holders thereof in tlefault of payment. That the whole 
 issue of the first mortgage bonds should not exceed $1,250,000 and should 
 bear interest at 6 per cent, and that no other security should take pre- 
 cedence of tlie bonds to be given to the respondent. But jirovision might 
 be made for giving clear titles of the company's l)onds in the event of 
 their being sold, the proceeds to be secured for the benefit of the bonil- 
 holders. That the appellants covenanted and guaranteed that the bonds 
 would be delivered to respondent as above set out, and that they would, 
 if necessary, endeavour to procure sudi legislation as would remedy any 
 defects now existing in their organization. That the Government of Nova 
 Scotia would use all means within its power to enforce the delivery of such 
 bonds and might refuse government aid to said companies, imtil satisfied 
 that respondent's right to receive the said bonds was protected and assured. 
 That the contract between the C.I. Co. and the respondent should be can- 
 celled, and the bond given by respondent delivered up to him. On or 
 
CONTRACTS. 161 
 
 mboat the first daj ol Fdnrnary, 1879, the appellants ent«ed into an agree- 
 ment witli the Goremmaits of the Dominion and of Xot» Scotia relin- 
 qoishing their ri^ts to the '^icton Branch Bt^" mentioned in said agree- 
 ment, and agreed to the repeal of the act providing for the transfer of the 
 same to the appellants, and that it should be retained by the Dominitm 
 until the Eastern Extension Br. to the Strait of Canso and the steam 
 ferry across the strait should be completed, and then transferred to the 
 appellants on certain conditions. This the respondent claimed to be a 
 breach of the aboTe agreement, and brought an action against the appel- 
 lants and the CJ. Co. the latter, however, not being served with the writ 
 i^ned in the cause. The defendants pleaded, inter alia, that as to S40,- 
 000 of the said bonds the plaintiff had given an order on the CJ. Co. for 
 their delivery to Hon. P. C. Hill, Provincial Secretary of Nova Scotia, 
 which order had been accepted by the company, and was, in effect, an 
 assignment of that portion of the said bonds. The evidence of the plain- 
 tiff was that the order was given on the condition that an order in council 
 should be passed by the Nova Scotia Government protecting the right of 
 the said plaintiff to have the said bonds delivered to him, and the bonds 
 given to the CI. Co. as security for the due performance by the plaintiff 
 of the work cm the Eastern Extension By. delivered up to the plaintiff; 
 and on these conditi(»s being fulfilled the plaintiff was to give to the 
 Government a formal assignm«it of the mortgage bonds to the extent of 
 3^40,000, but that such conditions were never carried out. The plaintiff 
 recovered in the acticm, and the verdict in his favour was affirmed by 
 the Supreme Court of Xova Scotia, whereupon the defendants in the action 
 appealed to the Supreme Court of Canada, and, on the argument of the 
 last -mentioned appeal an agreement was entered into between the parties, 
 to which agreement the Government of Nova Scotia became a party, em- 
 powering the Court to decide the case on the merits irrespective of the 
 pleadings or any tedinical defence raised thereon, and limiting the amount 
 in question to the sum of ^0.000, the balance being satisfied by a judgment 
 recovered by the respondent against the CJ. Co.. in the Province of Que- 
 bec: — ^Held. affirming the judgment of the Supreme Court of Nova Scotia. 
 that the agreement entered into by the appellants with the governments 
 of the Dominion and the Province of Xova Scotia, was a breach of the 
 agreement made betweoi the appellants, the CI. Co., and the respondent, 
 above in part recited: — Held. also, that the order givoi to the H<m. P. C 
 Hill, was givoi on certain conditions which were never carried out, and 
 was not an assignment of the bonds therein menticmed, and therefore the 
 respondent was entitled to recover the said siun of $40,000. with interest 
 from the date of the breadi of the agreement. Appeal dismissed with 
 costs. 
 
 Halifax 4: Cape Breton Coal k By. Co. v. Gr^ory, 16th February, 1885, 
 Cass. Can. S.CR. Dig. 1893, p. 727. 
 
 [An applicati<Hi was made to the Privy Coiuicil for leave to appeal. 
 The application was refused with costs. Their lordships considered that 
 in deciding the case imder the agreement entered into at the hearing of 
 the appeal, the Supreme Court was not acting in its ordinary jurisdiction 
 as a Court of Appeal, but was acting under the special reference made to 
 it tuider this agreement. Further, that even if it were open to them to 
 give leave to appeal, the questions raised were not of sufficient public 
 interest to induce them to depart from the ordinary rule that persons 
 who have gc«e to the Supreme Court of Canada, and have there failed, 
 shall not proceed any further to Her ^Majestj- in Council. — 3rd April, 
 1886. Gr^ory v. Attorney -General of X.S., 11 App. Cas. 229.] 
 Can. By. Ll Dig.— 11. 
 
162 COIs'TRACTS. 
 
 Liability fob supplies. 
 
 Wliere a railway company which was unable at the time to definitely 
 award a contract, by telegram guaranteed to the plaintiff that in the 
 event of a contract for the construction of a portion of its road not being 
 awarded him, the cost, as well as ten per cent advance on all contractor's 
 supplies placed by him on the groinid, upon its becoming apparent that 
 such contract would not be awarded him, a new contract does not arise 
 from a subsequent promise of the company to assume the liability im- 
 posed by such telegram; such promise was, however, an admission that 
 the alternative provision for paying such cost and percentage had come 
 into effect, 
 
 Alfred v. Grand Trunk Pacific Ry. Co., 5 D.L.R. 154, 20 W.L.R. 111. 
 
 [Affirmed on appeal, 5 D.L.R. 471; referred to in Alfred v, G.T.P. (No. 
 2), 6 D.L.R. 147.] 
 
 Liability fob supplies. 
 
 Where a railway company, upon its failure to award the plaintiff a 
 contract for constructing a piece of railway, did not pay him tlie value 
 of construction supplies he had provided, and for which the railway com- 
 pany had agreed upon that contingency to pay for, the plaintiff becomes 
 entitled upon the company's default to the cost of insurance carried on 
 the supplies only after the time when the defendant became liable to pay 
 for such supplies, when such insurance would be justifiable as in protec- 
 tion of the plaintiff's lien as an unpaid seller. (Per Simmons, J.) 
 
 Alfred v. Grand Trunk Pacific Ry. Co., 5 D.L.R. 154, 20 W.L.R. 111. 
 
 [Affirmed on appeal, 5 D.L.R. 471; referred to in Alfred v. G.T.P. (No. 
 2), 6 D.L.R. 147.] 
 
 CONSTEUCTIOX OP BAILBOAD OR SIDETRACK — LIABILITY FOB SUPPLIES. 
 
 Where a railway company was unable to definitely award the plaintiff 
 a contract for construction of so much road as he could, agreed with him, 
 that in order to keep his teams employed during the winter, lie might put 
 in supplies necessary for the construction of so much road as he could 
 complete during the working portion of the following summer, and that 
 the company would guarantee him, in the event of its being unable to 
 award such contract, the cost of such supplies, together with ten per cent 
 advance thereon, the company upon not being able to award the plaintiff 
 such contract, is liable to him for such advance upon a total cost of the 
 supplies, and also for the loss sustained by him on a sale thereof, after 
 due notice to the company. [Alfred v. Grand Trunk Pacific Ry. Co., 5 
 D.L.R. 154, affirmed on appeal.] 
 
 Grand Trunk Pacific Ry. Co. v. Alfred, 5 D.L.R. 471. 
 
 [See Alfred v. Grand Trunk Pac. Ry. Co., 6 D.L.R. 147, 22 W.L.R. 65.] 
 
 SUBCONTBACT — SuBCONTBACTEE'S RIGHTS — ASSIGNABILITY. 
 
 Where a railway contractor turns over to the plaintiff a number of con- 
 tracts for the construction of railway stations under an arrangement 
 which was in effect that the plaintiff should supply all materials for and 
 construct the stations in the place and stead of the original railway con- 
 tractor and that the latter would pay over to the plaintiff the progressive 
 payments as and when they were from month to month received from the 
 company, such a turning over is a valid and enforceable equitable assign- 
 ment placing the assignee in the shoes of the original contractor, even 
 without the railway company's consent as a literal compliance with the 
 original contract, and the plaintiff can collect for his work and materials. 
 [Fraser v. Imperial Bank et al., sub nom. Fraser v. Can. Pac. Ry. Co., 1 
 
CORPORATE POWER& 163 
 
 DX.1L 678, 23 Mjul LJL 58w] Wkere, mdcr an eqnhnUe asMgaint of 
 a. lailv^i^ contract iar the amstmetitm cl a. nnmba- of railiray statkns 
 the plaiiitHr, with the kmnrkdge and pemussioii and eutuuiaymm t of the 
 ddeadaat bank (vhas« customer be isj goes on sopi^ph^ materials for 
 aad c wfciiii cti»g the railway stations, the defendant bank is estopped 
 irant sabaequentfy setting op a prior assi g nment in its own faT-oor for 
 IMare adranees as against the pJaJntJlTs claim for the materials and 
 wmk so cnntribatcd br him in good faith and withoot notice; especially 
 whoT to defeat the plaintiff's claim would be an injustice tantamount to 
 a reproach upon the law. and where the bank failed to notify the plain- 
 tiff of its pri<M- assignment. [Russell t. Watts. 10 AX. 590 : Stronge t. 
 Hnwfces, 4 DeG. ^L t G. ISG^ applied: Eraser v. Imperial Bank, sub nom. 
 Fraser t. Can. Fae. Ry. Co., 1 DXJL 67S. ±2 Man. LIL ^, reversed.] 
 Fraaer t. Impnial Bank, 10 D.L.R. 23^ 47 Can. S.C.R. 313. 
 
 iMMrxmr ci-m:sk — RESPOxsirauTr — Ptbuc obdex — ^Ixstiaxce — ^Tkass- 
 
 A dasse in an a gwem en t betweoi a railway cmnpany and an indiTidnal 
 lor tike baHding of a sidii^ eonneeting with the company's railways, which 
 purparts to exempt the c«Hnpany frmn liability for injury or loss caused 
 by Ua Bt^gligeiaee ot that of its servants in use of said siding, is not void 
 as bong against public ordo-, as far as the fault of the compass em- 
 phiH«a is eoBcemed. Such a contract does not require the anthoriEati-cin 
 and mppnml of the Board under & 340 of the lUilway Act, 1906. 
 
 Can. Xorthem Que. Ry. Co. t. Aigenteuil Lumber Cou, 2S Que. K.B. 40SL 
 
 QcAxmr AXD CLASsmcATiox or wobk — Ftsxl. sstikate of exgtojek— 
 
 EkCXXEOL employed BT ASOTBEM. compact — COMPUAXCE WITH C05- 
 TKACT. 
 
 ^adafwa t. Griffin. 20 B.C.R. 475. 
 
 CX>HTKISUTOBY HEGLIGEMCE. 
 
 See X^^enee; Carriers; Cro an ng Injuries. 
 As affectii^ liability for injuries to employees. se<f Employees. 
 As affecting liabUity for injuries to panacBgers, see Garners ol Pas- 
 ; Street Railways. 
 
 COHVERSIOH. 
 
 OoBvcfaim of goods by carrier after termination of carrier's Ben for 
 chaiges, see Guriers of Goods. 
 
 CORPORATE POWERS. 
 Powezs of'proTLsional directors, see Provisional Directors. 
 
 AiiBOtatiflB. 
 ExpiratiaB of diarter powers of railway company, 4 Can. Ry. Gaa. 97. 
 
 Right to bctld uxe betoxd TERMi:!a:s. 
 
 The Canadian Pacific Ry. Co. has power, under its diarter, to extend its 
 line from Port Moody, in British C<dumbia. to E^Ush Bay. 1 B.CJt 
 (pt. 2) 287, reversed. 
 
 Can. Pac^ Ry. Co. v. Mnjor. U Ckn. S.CJEL 233. 
 
164: CORPORATE POWERS. 
 
 [Adhered to in Can. Pac. Ry. Co. v. Edmonds, 1 B.C.R. (pt. 2) 296; re- 
 ferred to in Atty.-General v. Can. Pac. lly. Co., 11 B.C.R. 314; Vancouver 
 V. Can. Pac. Ry. Co., 2;*) Can. 8.C.R. 21; relied on in Re Brancli Lines CJan. 
 Pac. Ry. Co., 36 Can. S.C.R. 79.] 
 
 Lease of boad fob tebm of yeabs — Tbansfer of cori'orate RifiiiTs. 
 
 The Canada Southern Ry. Co., by its charter and amendments tliereto. 
 has authority to enter into an agreement with any other railway company 
 with respect to the traffic arrangements or tlie use and working of the 
 railway or any part thereof, and by the Railway Act. 1870, it is authorized 
 to enter into traffic arrangements and agreements for the management 
 and working of its railway with any other railway company, in Canada 
 or elsewhere, for a period of twenty -one years: — Held, reversing the de- 
 cision of the Court of Appeal, that authority to enter into an agreement 
 for the "use and working" or "management and working" of its road 
 conferred upon the company a larger right than that of making a forward- 
 ing agreement or of conferring running powers; that the company could 
 lawfully lease a portion of its road to a foreign company and transfer to 
 the latter all its rights and privileges in respect to such portion, and the 
 foreign company in such case would be protected from liability for in- 
 jury to property occurring without negligence in its use of the road so 
 leased, to the same extent as the Canada Southern Ry. Co. is itself pro- 
 tected. Same case, sub nom. Wcalleans v. Canada Southern Ry. Co., 21 
 A.R. (Ont.), 297, reversed. 
 
 Michigan Central Ry. Co. v. Wealleans, 24 Can. S.C.R. 309. 
 
 [Distinguished in Lynch v, Wm. Richards Co., 38 N.B.R. 179.] 
 
 An.STAlNING FROM EXERCISE OF PUBLIC FRANCHISE — PUBI.IC POLICY. 
 
 An agreement by a corporation to abstain from exercising franchises 
 granted for the promotion of tlie convenience of the public is invalid 
 as being contrary to public policy and cannot be enforced by the 
 Courts. Where a company subject to the Railway Act, with powers to 
 construct railways and tramways has allowed its powers as to construction 
 of new lines to lapse by nonuser within the time limited it is not com- 
 petent for it to enter into an agreement with a municipality for the con- 
 struction of a tramway within the municipal limits under the provisions 
 of Art. 479 C.C.P. 
 
 Montreal Park & Island Ry. Co. v. Chateauguay & Northern Ry. Co., 
 4 Can. Ry. Cas. 83, 35 Can. S.C.R. 48. 
 
 Right to erect poles ox street by power company — Special act — 
 Amendment — Constbuction. 
 Where a general clause of another statute is by the incorporating Act 
 made applicable to a corporation, and its undertakings by a reference 
 which does not specify an amendment already made to such general clause, 
 such amendment is to be read as forming part of the company's Act of 
 incorporation and will control the powers granted to the company. [In- 
 terpretation Act. R.S.C. 1906, c. 1, s. 20 (b) construed.] A clause in a 
 general Act making it a condition precedent to the erection of electric 
 liglit poles and wires, in a municipality, that the consent of the municipal 
 council shall be first obtained and that the whole work incident to the 
 erection of the poles shall be under the supervision of an appointee of the 
 council, is not inconsistent with nor superseded by special provisions con- 
 tained in the Act of incorporation of an electric light company conferring 
 upon it the power to erect poles in a street, and to opei'ate the business 
 of the company and making the company responsible for damages caused 
 in carrying on or maintaining their works. Powers conferred by a special 
 
COURTS. 165 
 
 Act of Parliameat iacorpfHatu^ *n eleciiie li^t and power company 
 nrhose powers inclnde the erect i<Mi of poles and the doing of all thin«;s 
 net-es^arr for the transmission of light, heat, and power, provided that the 
 same is done so as not to "incommode*' the public- use of streets are not 
 in conflict with the proiisions of an amended section of a general Act. 
 which is made applicable to the corporation by its Act of incorporation, 
 and which makes it a condition precedent to the erection of poles that the 
 consent of the municipal council shall be first obtained. 
 
 Tormito t Niagara Power Co. t. North Toronto^ 14 Can. By. Cas. 379, 
 25 OX.R. 475, 2 DiJS. 120. 
 
 [Rerosed in [1912] A-C. S.^, 14 Can. Ry. Cas. 392, 5 DXJL 43.] 
 
 SfECIAI. act COXFESKTNG POWEKS OS ELECTKIC UGHT COMPAXT — USEX OT 
 HlfiHWAT — ^EEECnOX OF POLfS i:X STBEET. 
 
 The powers conferred upon the Toronto k Niagara Power Co. by ss. 12. 
 13 of its Act of Incorporation of 19()2. remain intact notwithstanding the 
 provisions of the Railway Act, 1906. and that company is entitled to 
 erect poles for the purpose of stringing power transmission lines alo^ 
 the streets of a municipality without the consent of the municipality. 
 [Toronto & Niagara Power Co. v. North Toronto, 14 Can. Ry. Cas. 379. 
 2 DXJi. 120. reversed on appeaL] 
 
 Toronto t Niagara Power Co. t. North Tonmto, 14 Can. Ry. Gu. 392, 
 [1912] A.C. 8.M, 5 DX-R. 43. 
 
 JlUALGA>IATIOX «P two BAtLWATS EFECT OX COXSTillKXT COMPAXIES AS 
 
 COCPOBATE EXTrriES. 
 
 Upon an agreement for the amalgamatioD of two railway eompanies 
 being sanctioned by Order-in-Couneil mder s. 361 of the Railway Act, 
 1906, the amalgamated company becomes a new corporation with the rights 
 and liabilities of the constituent companies, and the latter cease to exist 
 as corporate entities; and it is not etmipetait for one of the constittient 
 companies thereafter to prosecute an appeal from an award made against 
 it prior to the amalgamation. 
 
 Re Van Home and Winnipeg t Northern Ry. Co., 18 DXlR. 517. 
 
 TEtEPHOXE COMPAXT FkAXCHISE — USE OV STKEETS ^TUCE LDIIT — OXTA- 
 
 Rio MrxicTPAL Act. 
 
 The L^islature of Ontario has not given the municipalities of the prov- 
 ince authority to permit telephone companies to occupy the streets and 
 highways with their poles and wires? for a lone;er period, at one time, than 
 five years. An agreement by a municipality to permit, by irrevocable li- 
 eease, a telephone company to occupy the streets with poles and wires 
 is ultra vires. Judgment of the AppelLne Division (44 OXJS. 366), re- 
 versed; that on the trial (42 OX..R. 3S->>. res^tored. 
 
 Cobalt V. Temiskaming Telephone Co.. 59 Can. S.CJL 62. 
 
 COSTS. 
 
 For the construction of crossings, see Highway Crossings; Railway 
 Crossings; Farm Crossings: Wires and Poles. 
 
 In expropriation proceedings, see Expropriation. 
 See Appeals. 
 
 COT7STS. 
 
 See Jurisdicti<m ; Railway Board; Appeals. 
 
 As to assessment of damages by Court or Jury, see Damsgesi. 
 
166 CEIMES AND OFFEXCES. 
 
 COVENANTS AND CONDITIONS. 
 
 See Contracts. 
 
 Convenants limiting liability, see Limitation of Liability. 
 
 Conditions in bill of lading, see Carriers of Goods. 
 
 Conditions on passenger tickets, see Tickets and Fares. 
 
 Conditions as to notice of claims, see Claims. 
 
 Covenants of railway companies with employees, see Employees. 
 
 Covenants of street railway companies with municipalities, see Street 
 Railways. 
 
 Covenants affecting the carriage of live stock, see Limitation of Lia- 
 bility; Carriage of l^ive Stock. 
 
 Covenants in bonds, see Bonds and Securities. 
 
 Covenants by railway companies respecting bonuses and subsidies, see 
 Railway Subsidy. 
 
 Agreements respecting telephones, see Telephones. 
 
 CREDITORS. 
 
 See Scheme of Arrangement. 
 
 CRIMES AND OFFENCES. 
 
 Constitutionality of provincial statute as to railway fires, see Constitu- 
 tional Law. 
 
 Imposition of penalties on street railways, see Street Railways. 
 
 Annotations. 
 
 Liability of a railway company to indictment, 1 Can. Ry. Cas. 521, 6 
 Can. Ry. Cas. 489. 
 
 Running cabs without propeb pbecautions — Negligence endanqebinq 
 
 LIFE. 
 
 The omission of an electric railway company operating their cars upon a 
 highway to use reasonable precautions so as to avoid endangering the 
 lives of the public using the highway in common with the company, is a 
 breach of legal duty constituting a common nuisance under the Criminal 
 Code, ss. 191, 213, for which an indictment will lie. 
 
 R. V. Toronto Ry. Co., 4 Can. Cr. Cas. 4. 
 
 [Referred to in R. v. Toronto Ry. Co., 10 O.L.ll. 26.] 
 
 Obstructing regiment on march — Street car at street crossing. 
 
 ( 1 ) Where the alleged obstruction of a regiment on parade by an elec- 
 tric car of which the accused was the motorman, appears on the rehearing 
 on appeal to have been accidental, the Court will reverse the summary 
 conviction. (2) l*er Court of Appeal: — A County Judge hearing an ap- 
 peal from a summary conviction has no power to state a case to the Court 
 of Appeal in respect of points of law arising on the appeal before him. 
 
 The King v. Mcintosh, 17 Can. Cr. Cas. 295 (Man.). 
 
 Pbaibie fibes. 
 
 The fact that shortly after the passing of a locomotive a fire is seen 
 near the railway track, where none existed before, is prima facie evidence 
 that the fire originated from sparks from the locomotive. The provisions 
 of the Prairie Fires Ordinance requiring locomotives to be equipped with 
 certain appliances and in casting on a defendant the onus of proof in a 
 criminal charge relating thereto, are binding on a railway company de- 
 
CRIMES AXD OFFENCES, 167 
 
 rniBg its fomrers from the Parlnmeat <rf Caaada, bat opoatiag liaes of 
 raD««T n tke Xorth-lVrst Territories. 
 
 RexV. GaM. Pat Rr. Co., 7 Terr. I_R. 2S6. 
 
 Exrscss coscTAivr — Deutixt of uqcok C.OJ). 
 
 A ttmsigamtemt €ii liquor mas shipped hr Dominion Express: frcnn Aai- 
 iKist to Monrton. C.OJ)., and delinred to tke pnrdha^r at tht latter place 
 br ike agmt of the conapaar npon the parmait of the prire: — Held, tiiat 
 the anient vas not ^iltr «rf an offence against the Canada T<nnpaance 
 Art. Rnle afastrfnte for certiorari to remore conrietion. 
 
 £x parte Trahirfm, 37 CJLJ. 43. 
 
 MAxsL^r«am — GftixTocs naMLT isjtit — IxnicnfzsT or ooBroKATio^r — 
 PvrxvsvotEFT. 
 The defendants vme indicted for n c gl ei il ng to take RasonaUe praeaa- 
 taoBS and to nse reasonable caie in maintaining a bridge forwng part ci 
 their raihraT vhich mas used for hauling coal and carrying pnsoeigenL 
 and that a hmiiiliu engine and several cars then being ran iln^ aud 
 railmar and aems said bridge^ ovi^ to the rotten state of the tim^bers 
 of the bri^e, meie pveeipilatcd into the TaDer ondemeath. therebr catl- 
 ing the death of certain prTn i mB The defendants wm ftrand gvultr and a 
 fine ot S3.000 mas inflicted W Walkem. -T, at the trial:— Held, per Me- 
 CoII, CLJ., and Hartin. J., on amtcal affimung the conTiction, that such 
 an indictment mill lie against a corporation iiniV i & 2*2 of the Criminal 
 Code. Per Drake and Irving. JJ.: Soeh an imUetment mill not lie ag;u^ 
 a cotpotation. S«. 191, lt2. 313, 252, S39, 713 of the Code eowideted. 
 A corporation cannot be indicted fw manBla tighter. Per McCoIL CJ.: 
 The mords 'grievous bodilv injoir" in a. 232 have no technical meaning, 
 and in their natnral sen^e inc-lnde injjiiries resolting in death. Per Drake, 
 J.: The indii,tmi.nt chaiges the compaav mith the death of certain pa*- 
 sons owing to the rnipnny-'s n eglec t of dntr and is a charge of man- 
 ais^gfater. the pnniiihmint of which is a term of impri««MuneBt for life, 
 and becnnse a cnvporatian cannot suffer i^irisonment therefore the 
 p miAmwat laid domn in the Code is not applicable to tmA a bodr. When 
 death t msa m a the trfTence i» no lo^er '^grievoos bodilv injniT,'' bat 
 ealpahle hoMieide. 
 
 Bcgina t. Union CoUietr Cou 1 Can. Br. Ca& 499, 7 B.CJL 247. 
 
 [ASrmed in 31 Can. S.CJL SI. 1 Can.' Rv. Cas. 311, 4 Can. Cr. Ca«^ 
 400; reCnrvd to in R. r. Twonto Rr. Co. kXo. 1», IS Can. Cr. Cas. 42S.] 
 
 llAXSXJiCCBTEX IXDimfKVT .&CAISST nODT COnTOKATE — CU3f. CODE — 
 
 ItSE. 
 
 Under s. 213 of the Criminal Code a corptwation mar be indicted for 
 owtting, mithoot lamfol excuse, to perftwm the datr of avoidi^ dan g e r 
 to human life fn^ anythia^ in its Aaige or nnder its controL The fiiet 
 that the consequence of the omission to perform >ach duty m^t have 
 justified an indictment tor amnslaaghtcr in the case of an individual is 
 not ground fiH- quashing the indictment. As s. 213 provides no punishment 
 for the offence the rnmmon law puDaishment (rf a fine may be imposed on 
 1 corporatioa indicted under it. 1 Can. Ry. Cas. 499. affinaed. 
 
 Union Colliery Co. v. The Queen, 1 Can. Ry. Cas. 51L 31 Can. S.C.R. 8L 
 
 Fauxbe to rssiTE tamff or fakes — Officxx or bail.wat cojctaxt — Or- 
 
 FEXCE or C05IFAXT. 
 
 The defendant, mho mas second vice-president and the gencnl maaago- 
 of a railmaT company, mas convicted hy a police aaagistrate aadcr a. 138 
 of the Criaiiaal Code of an offence against a. 3 of 16 TieL c. 37 (D.) on 
 
168 CEOSSIXG IXJUIUES. 
 
 tlie following findings: That the company had not during the year 1906 
 fixed or issued a tariff of fares or eliarges, payable by each tliird class 
 passenger by any train on said railway for each mile traveled; that the 
 companj' had not during that time permitted a third class passenger to 
 travel by any train on said railway at the fare or charge of one penny 
 currency for each mile traveled; and that the said companj' had not, 
 during that time provided that at least one train having in it third class 
 carriages sliould run each day to ... from . . . , being part of the said 
 railway: — Held, that tlie conviction of tlie defendant for the omission of 
 the company was l>ad: — Held, also, tliat in any event the operation of s. 
 138 of the Criminal Code was in this case exchuled by the existence of a 
 penalty for the offence under s. 294 of the Railway Act, 1903. 
 Rex V. Hays, 6 Can, Ry. Cas. 480, 14 O.L.R. 201. 
 
 Protection ok street crossing — Charge of failure — Joint indict^ient. 
 
 The Railway Committee, upon the application of a city, in order to pro- 
 vide protection at a place where a street was crossed by the tracks of 
 two railways, ordered and directed that the two railways should, within 
 a specified time, properly plank between their said tracks, and also pro- 
 vide gates and watchmen thereat, and should thereafter maintain and 
 protect the said crossing: — Held, that a joint indictment against the two 
 companies for the failure to place gates and a watchman at the crossing, 
 would not lie; and therefore there was no jurisdiction in the Court of 
 General Sessions of the Peace to try such an indictment, and a conviction 
 made at the sessions against the two companies was quashed, [The effect 
 of ss. 165, 221, 247 of the Criminal Code, and ss, 33, 427, 431 of the Rail- 
 way Act, 1906, considered.] 
 
 Rex V. Grand Trunk & Can. Pac. Ry, Cos,, 8 Can, Ry. Cas. 453, 17 
 0,L,R, 601. 
 
 Order of Board — Establishment and maintenance of firbguaed — Con- 
 viction — NONPXJBLICATION OF ORDER IN CANADA GAZETTE. 
 R, V, Can, Northern Ry. Co,, 8 W,L,R. 889 (Sask.). 
 
 Secret commission — Supplying ejipty cabs, • 
 
 The Board should not take action under s. 431 of the Railway Act, 
 1906, against a railway employee for taking a bribe to supply empty cars 
 contrary to ss. 317, 427 unless where it considers there has been a failure 
 on the part of the railway company to administer such discipline as the 
 public safety demands. In such a caSe the proper remedy is for the local 
 Crown Attorney to take criminal proceedings under 8 & 9 Edw. VII. c 
 33, s. 3 (a). 
 
 Re Conductor A.B., 18 Can, Ry. Cas. 54. 
 
 CROSSING INJURIES. 
 
 A. In General, 
 
 B. Speed. 
 
 C. Signals and Warnings. 
 
 D. Duty to Look and Listen. 
 
 E. Flagmen; Gates, 
 
 Injuries by street railways, see Street Railways. 
 Protection of highways, see Highway Crossings. 
 Protection of railway crossings, see Railway Crossings. 
 Regulation of farm crossings, see Farm Crossings. 
 
CROSSING INJURIES. 169 
 
 Begnlation of wire crossings, s«e Wires and Poles. 
 SeieetiTe appnwclies to station causing injury, see Stations. 
 See Xqrligoiee; Hand Cars. 
 
 Signals at highwaj maaaga. 1 Can. Rr. Cas. S47. 
 Contributorr negl^ence at highways^ 1 Can. By. Cas. 350. 
 X^ligence and Contribntory Xegligence, 4 Can. Ry. Cas. *25. 
 Xtegl^enee at crossings, and failure to giTe warnings. 19 Can. Rr. Cas. 
 221. 
 
 A. In OenetaL 
 
 CoLusiox — Aim brakes — Fahxhe to oomplt with statcte. 
 
 The Grand Trunk Ry. crosses the Great Western Ry.. about a mile 
 east of the city of London, on a level crossing. A Grand Trunk train, on 
 whidi plaintiff was on board as a ctMidnctor. before crossing, was brought 
 to a stand. The signalman who was in charge of the crossing, and in 
 the employment of the Great Western Ry. Co.. dropped the semaphore, 
 and thus authorized the Grand Trunk train to proceed, which it did. While 
 crossing the track, appellant's train, which had not been stopped, owing 
 to the accidental bursting of a tube in air brakes, ran into the Grand 
 Trunk train and injured plaintiff. It was shewn that these air brakes 
 were the best known appliances for stopping trains, and that they had 
 beat tested during the day. but that they were not applied at a sufficient 
 distance from the crossing to enable the train to be stopped by the hand 
 brakes, in case of the air brakes giving way. CS.C c. 66, s. 142. R.S.O.. 
 c 165. s. 90. enacts that ^emy railway company shall station an officer 
 at every point an their line crossed on the level by any other railway, 
 and no train shall proceed over such crossing until signal has been made 
 to the conductor thereof, that the way is dear."' S. 143 enacts that "every 
 locomotive ... or train of cars on any railway shall, before crossing 
 the tradf of any other railway, on a level, be stopped for at least the 
 qiace of three minutes": — Held, that the appellants were guilty of negli- 
 gence is not applying the air brakes at a sufficient distance from the 
 crossing to enable the train to be stopped by handbrakes in case of the 
 air brakes giving way. That there was no evidence of contributory negli- 
 gence <m the part of the Grand Trtmk Ry., as they had brought their train 
 to a full stop, and only proceeded to cross appellant's track when au- 
 thorized to do so by the officer in charge of the semaphore, who was a 
 servant of the Great Western Ry, Co., 2 AM. tOnt.) 64, 40 Q.B. 333, af- 
 firmed. 
 
 Great Western Ry. v. Brown. 3 Can. S.CJR. 159. 
 
 [Approved in White v. Gosfidd. 10 A-R. (Ont.) 5.5.5; .Jennings v. Grand 
 Tnmk Ry. Co., 15 A-R. (Ont.) 477; referred to in Gray v. Steel Co. of 
 Canada, 12 X.SJJ. 509.] 
 
 ObSBUCTIOX to highway — CaK LTHSG ox CBOSSnCG FkIGHTEXIXG HORSE. 
 
 Defendants have two lines of railway crossing a street known as Spa- 
 dina crescent in Saskatoon. In obtaining permission to build the second 
 line of railway across this street the Board required the company to raise 
 the street to a certain level. This work had partly been done, but there 
 was a portion left unfinished which left a ditch about three feet deep in 
 one part of the street. The plaintiff was driving along this street and 
 when crossing the defendants* track his horse shied at a caboose lying on 
 the track and projecting into the street, and which had been so lying for 
 more than five minutes. Upon the horse shying the plaintiff^s buggy 
 
170 CROSSING INJURIES. 
 
 went over the side of the ditch before referred to, throwing him out, 
 whereby he was injured and the horse running away was also injured: — 
 Held, that leaving the caboose standing on the street for the time it was 
 shewn to have been constituted an unauthorized user of the highway, and 
 the accident having resulted from such unauthorized user together with 
 the condition of the street by reason of the company's failure to comply 
 with the order of the Board, the company was liable in damages. 
 
 Weaver v. Can. Northern Rv. Co., 13* Can. Ry. Cas. 4G8. 4 Sask. L.R. 
 201. 
 
 Injury to person crossing track. 
 
 The fact that the person injured was walking on the tracks itself and 
 not alongside will not constitute him a trespasser if his walking on the 
 track was incidental to a reasonable attempt on his part to cross tlie rail- 
 way at a crossing regularly used by the public without objection or 
 warning on the part of the railway company. 
 
 Grand Trunk Ry. Co. v. McSween, 2 D.L.R. 874. 
 
 Foot cauoht in space of bail. 
 
 A verdict of a jury for the plaintiff, in an action to recover damages 
 for injury resulting from the alleged negligence of a railroad company in 
 leaving an unnecessarily wide space between the planking and the inside of 
 one of the rails of their track at a highway crossing, whereby the plain- 
 tiff while walking along the highway at night got his foot caught in the 
 space, and being unable to extricate it in time, it was cut off by a loco- 
 motive, should not be disturbed on appeal, where the jury find that the 
 railroad company was negligent in not having the crossing in proper order, 
 and that the plaintiff could not by the exercise of reasonable care have 
 avoided the accident. 
 
 Stevens v. Can. Pac. Ry. Co., 10 D.L.R. 88, 15 Can. Ry. Cas. 28. 
 
 B. Speed. 
 Excessive speed — ^Running teain through town — Contributory negu- 
 
 GENCE. 
 
 In an action against the G.T.R. Co. for causing the death of the plain- 
 tiff's husband by negligence of their servants, it was proved that the acci- 
 dent occurred while the train was passing through the town of Strathroy; 
 that it was going at a rate of over thirty miles an hour; and that no bell 
 was rung or whistle soimded until a few seconds before the accident: — Held, 
 aflirming the judgment of the Court of Appeal, 13 A.R. (Ont. ) 174. that the 
 company was liable in damages. For the defense it was shewn that the 
 deceased was driving slowly across the track with his head down, and 
 that he did not attempt to look out for the train initil shouted to by 
 some persons who saw it approaching when he whipped up his horses 
 and endeavoured to drive across the track and was killed. As against 
 this there was evidence that there was a curve in the road, which would 
 prevent the trains being seen, and also that the buildings at the station 
 M-ould interrupt the view. The jury found tliat there was no contributory 
 negligence: — Held, per Ritchie, C.J., and Fournier and Henry, JJ., that 
 tlie finding of the jury should not be disturbed. Strong, Taschereau and 
 Gwynne, JJ.. contra. [13 A.R. (Ont.) 174, 8 O.R. 001, affirmed.] 
 
 Grand Trunk Ry. Co. v. Beckett (1887), 16 Can. S.C.R. 713. 
 
 [Leave to appeal was refused by the Privy Council, 9 Canada Gazette 
 394. See the Grand Trunk Ry. Co. v. Jennings, 13 App. Cas. 800, in 
 which this case was discussed and approved.] 
 
CROSSING IXJUKIES. 171 
 
 [Approved in Grand Trunk Ey. Co. v. Jennings. 13 App. Cas. 802: 
 followed in Preston \. Toronto Ry. Co.. 13 O.L.R. .369; referred to in 
 Hollinger t. Can. Pae. Rv. Co., 21 O.R. 70.j: Warbov* v. Lachine Rapids 
 Hydranlic and Land Co., 22 Que. S.C. 541; distinguished in Tin>ley t. 
 Toronto Ry. Co.. 17 O.L.R. 74; followed in Cameron t. Royal Paper Mills 
 Co., 31 Que. S.C. 286.] 
 
 RcNxixG ixxx)MonvK sejlh esd foremost — Speed <»■ tkaix at railwat 
 cbossi:ng. 
 
 A railway company that uses a locomotive, rear end foremost, to haul 
 a train, so that the driver cannot see the track immediately ahead, is 
 guilty of negligence and liable to contribute to the lo>>s arising from a 
 carriage being run down at a railway crossing, when the accident might 
 possibly have been averted, had the driver of the locomotive been able to 
 see the carriage approach. There is no statutory obligation to slacken 
 the speed of a railway train at an ordinary railway crossing. 
 
 Grand Trunk Ry. Co. v. Daoust, 14 Que. K.B. 548. 
 
 [Applied in Can. Pac. Ry. Co. v. Toupin. IS Que. K.B. 559.] 
 
 STBEET CBOSSIXGS EsntAOBDISABT raECAUTIOSS. 
 
 A railway company is under no legal obligation to slai^en the speed of 
 its trains through a town, if its track is properly fenced. The failure of 
 a railway company to have a guardian, or gates or some equivalent form 
 of protection at a street crossing, however dangerous irom the lay of the 
 land making it impossible to see approaching trains, is not a fault that 
 will make the company liable for accidents by collision with its passing 
 trains. 
 
 Quebec t Lake St, John Ry. Co. v. Girard. 15 Que. K.B. 48. 
 
 Excessive speed — Thicki.t pbdpi.ed district. 
 
 Railway companies are responsible for accidents caused by their trains 
 in thickly peopled portions of towns traveling at a rate of speed exceeding 
 ten miles per hour. They cannot invoke the exception made when the 
 right-of-way is enclosed if the fences have gaps or openings without pro- 
 tection opposite intersecting streets on one of which the accident occurred. 
 
 Jolicoeur v. Grand Trunk Ry. Co.. 34 Que. S.C. 457. 
 
 Street crossixg — Excessive speed — Isjukt to person drivixg across 
 
 TRACKS. 
 
 In an action against a railway company for negligence, it appeared 
 that a locomotive of the defendants was running at a dangerous rate of 
 speed for the locality, and struck and killed a person who was driving a 
 team and waggon over the track at a street crossing. There was a tool 
 house near the crossing, which to some extent obstructed the view, and 
 there was also another train shunting near by. The jury found that 
 death was cau^^ed Irr the defendants' negligence in failing to reduce the 
 q>eed of their train as provided by the Railway Act, and that the de- 
 ceased had committed no acts of contributory negligence. Xo questions 
 were submitted to the jury as to whether the defendants were guilty of 
 any other acts of n^ligence. It was held, that as the noise of the shunt- 
 ing train might have reasonably engaged the attention of the deceased, 
 and as his view near the crossing was obstructed by the tool bouse, the 
 jury was justified in finding that there was no contributory negligence: 
 but that following G.T.R. t. McKay, 3 Can. Ry. Cas- 52, 34 Can. S.C.R, 
 
172 CROSSING INJURIES. 
 
 81, the verdict in the plaintiflfs favour should be set aside, and (Wet- 
 more, J., dissentin":) a new trial ordered. 
 
 Andreas v. Can. Pao. Ry. Co., 7 Terr. L.R. 327. 
 
 [Followed in Minor v. Grand Trunk Ry, Co., 22 Can. Ry. Cas. 394, 35 
 D.L.R. 106.] 
 
 InJI'BY to I'ICRSON CROSSING TRACK — TbAIN BUNXING BACKWARDS — R.\TE 
 OF SPEED IX CITY — WARNING CONTRIBUTORY NEGI.UiENCE. 
 
 Special cireiunstances may call for other precautions in addition to those 
 proscrilwd by statute, as to ringing the bell or blowing tbe wiiistle as a 
 warning, and what those additional ])recauti(»ns are, is, in each case, a 
 question of fact for the jury. [Lake Erie & Detroit River Ry. Co. v. Bar- 
 clay. .30 Can. S.C.R. 360, followed.] The provision tiiat tbe speed of trains 
 on tlio Toronto Esplanade shall not exceed four miles an hour, 28 Vict, 
 c. 34, 8. 7, has not been superseded by the Railway Act, 1888, s. 2")}), 
 and 55 & 56 Vict. c. 27, s. 8. It is for the jury to consider in the light 
 of all the surrounding circumstances wlietlier the fact that deceased did 
 not look in tbe direction of an approadiing engine, is sucli negligence as 
 disentitles his representatives from recovering in an action against a 
 railway company for negligence. The jury found tliat deceased was guilty 
 of contributory negligence, but that defendants could have avoided the 
 accident by the exercise of reasonable care. Held, that the plaintiff was 
 entitled to judgment. 
 
 Moyer v. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 1, 2 O.W.R. 83. 
 
 [Referred to in Smith v. Niagara, etc., Ry. Co., 9 O.L.R. 158.] 
 
 Street crossing — Collision — ^Rate of speed. 
 
 W^here all the usual signals and warnings were given by the railway 
 company, and the proximate and determining cause of the accident of 
 which tlie plaintiff complained was the imprudence and recklessness of her 
 deceased husband and his brother, the plaintiff is not entitled to recover. 
 It was unnecessary to decide whetlier s. 259 of the Railway Act, 1888, pro- 
 hibiting a rate of speed, through a thickly peopled portion of a city, ex- 
 ceeding six miles an hour applies to highway crossings, because, in the 
 opinion of the Court of Review, the accident would have happened even 
 if the rate of speed had been less than six miles an hour. Judgment of 
 Superior Court reversed. 
 
 Tanguay v. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 13, 20 Que. S.C. 90. 
 
 [Note. — The two Courts differed upon a question of fact. The Judge a 
 quo was of opinion that the accident would not have occurred if the train 
 Iiad been going at a speed less tlian six miles an hour, and that s. 259 
 of the Railway Act, 1888, prohibits a speed exceeding six miles an hour 
 across highway crossings in cities, towns and villages.] 
 
 Excessive speed — Crossing track while engine about starting — 
 PROxnrATE cause. 
 Three persons were near a public road crossing when a freight train 
 passed after which they attempted to pass over tbe track and were struck 
 by a passenger train coming from the direction opposite to that of the 
 freight train and killed. Tbe passenger train was running at the rate 
 of forty-five miles an hour, and it was snowing slightly at the time. On 
 the trial of actions under Lord CampboU's Act against the Railway Com- 
 pany the jury found that tbe death of the parties was due to negligence 
 "in violating the statute by running at an excessive rate of speed" and 
 that deceased were not guilty of contributory negligence. A verdict for 
 the plaintiff in each case was maintained by the Court of Appeal: — Held, 
 
CROSSING INJURIES. 173 
 
 Ihrnt the railway companr was liable: tbat the decca^ied had a right to 
 cross the track and there was no evidence of want of care on their part 
 and the same could not lie presumed; and though there may not have 
 been precise proof that the negligence of the company was tlie direct cause 
 of the accident the jury could reasonably infer it from the facts proved 
 and their finding was justified. [McArthur v. Dominion Cartridge Co.. 
 [1905] A.C. 71, followed: Wakelin v. London &, South Western Ry. Co., 
 12 App. Cas. 41. distinguished] : — ^Held, also, that the fact of deceased 
 starting to cross the track two seconds before being struck by the engine 
 was not proof of want of care: that owing to the snowstorm and the es- 
 caping steam and noise of the freight train they might well have failed 
 to see the headlight or hear the approach of the passenger train if they 
 had looked and listened. 
 
 Grand Trunk Ry. Co. v. Hainer: Grand Tnmk Ry. Co. v. Hughes; 
 Grand Trunk Ry. Co. v. Bready. .5 Can. Ry. Cas. 59. 36* Can. S.C.R. 180. 
 
 [Applied in jolicoeur v. Grand Trunk Ry. Co., 34 Que. S.C. 460; fol- 
 lowed in Winnipeg Elec Co. v. Schwartz, 17 Can. Ry. Cas. 1, 16 D.L.R. 
 681: Minor v. Grand Trunk Ry. Co.. 22 Can. Ry. Cas." 394. 35 D.L.R. 106; 
 distinguished in Beck v. Can. Xor. Ry. Co., 2 Alta. L.R. 558: Tinsley v. 
 Toronto Ry. Co.. 17 O.L.R. 74; referred to in Eisenhauer v. Halifax & S. 
 W. Ry. Co., 42 X.S.R. 434.] 
 
 Excessive speed — ^Fixdixg or jmr — ^Misdibectiox — Sigxals axd wabx- 
 
 IXGS. 
 
 Where in an action against a railway company to recover damages for 
 the death of the plaintiff's husband, the findings of the jury are to the 
 effect that the death of the deceased was caused in consequence of running 
 the defendant's train at an excessive rate of speed, but were not directed 
 to any findings as to whether or not the deceased had been guilty of 
 contributory negligence where there was sufficient evidence of the ringing 
 of the bell, the blowing of the whistle, the shimting of cars, together with 
 other circumstances which might have acquainted the deceased of an ap- 
 proaching train, a verdict in favour of the plaintiff under such facts does 
 not warrant a new trial, but the whole action must be nonsuited. 
 
 Andreas v. Can. Pac. Ry. Co., 5 Can. Ry. Cas. 440. 2 W.L.R. 249- 
 
 [Affirmed in 5 Can. Ry.'Cas. 450, 37 Can. S.C.R. 1.] 
 
 Excessive speed — Sigxals. 
 
 A. brought an action, as administratrii^ of the estate of her husband, 
 against the CJP.R. Co., claiming compensation for his death by n^ligence 
 and alleging in her declaration that the n^ligence consisted in running 
 a train at a greater speed than six miles an hour through a thickly popu- 
 lated district and in failing to give the statutory warning on approaching 
 the crossing where the accident happened. At the trial questions were 
 submitted to the jury who found that the train was running at a speed 
 of 25 miles an hour, that such speed was dangerous for the locality, and 
 that the death of deceased was caused by ne^ect or omission of the com- 
 pany in failing to reduce speed as provided by the Railway Act. A verdict 
 was entered for the plaintiff and on motion t» the Court, en banc, to have 
 it set aside and judgment entered for defendants a new trial was ordered 
 on the ground that questions as to the bell having been rung and the 
 whistle sounded should have been submitted to the jury. The plaintiff 
 appealed to the Supreme Court of Canada to have the verdict at the 
 trial restored, and the defendants, by cross-appeal, asked for judgment: — 
 Held, affirming 2 W.L.R. 249. 5 Can.Ry. Cas. 440. Idington, J., dissenting, 
 that by the above findings the jury must be held to have considered the 
 
174 CKOSSI^'G IXJUKIES. 
 
 other grounds of negligence cliarged, as to which they were properly 
 directed by the Judge, and to have exonerated the defendants from liabil- 
 ity thereon, and the new trial was improperly granted on the ground men- 
 tioned: — Held, also, that though there was no express findings that the 
 place at which the accident happened was a thickly peopled portion of the 
 district, it was necessarily imported in the findings given above; that this 
 fact had to be proved by the plaintiff and there was not evidence to sup- 
 port it; and tiiat as tlie evidence shewed it was not a thickly peopled por- 
 tion, the plaintiff could not recover and the defendants should have judg- 
 ment on their cross-appeal. 
 
 Andreas v. Can. Pac. Ry. Co., 5 Can. Ry. Cas. 450, 37 Can. S.C.R. 1. 
 
 [Followed in McC.raw v. Toronto Ry. Co., 18 O.L.R. 154; referred to in 
 Eisenhauer et al. v. Halifax & S. W. Ry. Co., 42 N.S.R. 438; followed in 
 Paquette v. Grand Trunk Ry. Co., 13 Can. Ry. Cas. 68, 19 O.W.R. 305.] 
 
 Pbevious accident — Rate of speed. 
 
 By reason of the provisions contained in s. 275 of the Railway Act, 
 1906, as to the making of reports and inspection of accident occurring 
 at railway crossings, tliat part of the section added by 8-9 Edw. VII. 
 (Can.) c. 32, prohibiting a speed of more than 10 miles an hour by trains 
 at certain crossings not protected to the satisfaction of the Railway Com- 
 mission where accidents resulting in bodily injury or death had previ- 
 ously occurred, must be held to be limited in the latter respect to accidents 
 of wliich the railway company is fixed with notice by reason of physical 
 impact occasioning the same or by reason of the train employees actually 
 becoming aware of the accident so as to report it; a previous accident 
 by a horse taking fright at a passing train after passing over the crossing 
 will not bring the subs. (4) into operation where it was not observed 
 by the railway employees so as to call upon them to make a report. 
 
 Bell V. Gra^d Trunk Ry. Co., 16 Can. Ry. Cas. 318, 29 O.L.R. 247, 14 
 D.L.R. 279. 
 
 [Reversed in 16 Can. Ry. Cas. 324.] 
 
 Excessive speed — Pijotected crossing. 
 
 An instruction to the jury, in an action for injuries sustained by a 
 collision at a highway crossing, that it was negligence to run a train 
 through a thickly settled part of a town or village at more than 10 miles 
 an hour, is erroneous, unless qualified by stating in effect the exceptions 
 contained in s. 275 of the Railway Act, 1906, permitting a greater rate of 
 speed where the crossing is protected in accordance with an order of the 
 Board or other competent authority. [Grand Trunk Ry. Co. v. McKay, 34 
 Can. S.C.R. 81, 3 Can. Ry. Cas. 52, followed.] 
 
 Bell v. Grand Trunk Ry. Co., 16 Can. Ry. Cas. 318, 29 O.L.R. 247, 14 
 D.L.R. 279. 
 
 [Reversed in 16 Can. Ry. Cas. 324.] 
 
 Burden of proof — Speed limit. 
 
 Where a damage action against a railway company is based upon a 
 level crossing accident due to the running of trains at a rate far exceeding 
 that of ten miles an hour through the thickly peopled portion of a village 
 or town and so primarily in contravention of s. 275 of the Railway Act, 
 1906, as amended by 8-9 Edw. VII. (Can.), c. 32, s. 13, the onus of proof is 
 upon the railway company to shew that it comes within the exceptions 
 contained in the statute by having a special order of the Railway Com- 
 mittee or of the Board governing the mode of protection of the crossing 
 and so exempting the company from the restriction of ten miles an hour 
 
CROSSIXG IXJUR1E& 175 
 
 at the locus in qao, or to ^ow that the companv had permission to exceed 
 that limit by some regulation or order of the Board applicable to the 
 particular locality. [Bell t. Grand Trunk Ry. Co., 14 Di.R. 279, 29 
 OX.R. 247, reversed; Grand Trxmk Ry. Co. v.* McKay. 3 Can. Ry. Cas. 
 52, 34 Can. S-C.R, 81, distingui^ed ; Britannic Merthyr Coal Co. v. David, 
 [1910] A.C. 74. and Watkins ▼. Xaval Colliery Co., [1912] A.C. 693, 
 followed.] 
 
 BeU T. Grand Trunk Ry. Co., 16 Can. Ry. Caa., 324, 48 Can. S.CJL 561, 
 15 D.LJL 874. 
 
 [Followed in Lowland t. Hamilton, Grimsby, etc., Ry. Co., 19 Can. Ry. 
 Cas. 214.] 
 
 Excessive speed — Ultimate xbgligexce. 
 
 The findings of a trial Judge that an injury to a person by a moring 
 train at a highway crossing was caused by operating the train at an 
 exeessire rate of speed, which could have been avoided by a slackening of 
 the speed immediately upon seeing the person, will not be interfered with 
 on appeal; the crossing being in a thickly peopled portion of the city 
 the onus was upon the railway company to shew its compliance with s. 275 
 (3) of the Railway Act, 1906. as amended br 1909, c 31, a. 13. [B.C. 
 Elec. Ry. Co. v. Loach, 20 Can. Ry. Cas. 309, [1916] 1 A. C. 719, 23 DX.R. 
 4, applied.] 
 
 Critehley v. Can. Northern Ry. Co., 21 Cin. Ry. Cas. 277, 34 Ai.R. 245. 
 
 LOCALITT NOT "THICKXT PEOPLED" XeGLIGEXCE. 
 
 The localiU' in which an accident occurred by a collision with a rail- 
 way train not being "thickly peopled." s. 275 of the Railway Act, 1906, 
 does not apply. [Grand Trunk Ry. Co. v. McKay, 34 Can. S.CJL 81. 3 
 Can. Ry. Cas.' 52; Grand Trunk Ry. Co. v. Hain'er, 36 Can. S.C.R. 180, 
 5 Can. Ry. Cas. 59; Andreas v. Can*. Pac. Ry. Co., 37 Can. S.C.R. 1, p. 19, 
 20; 5 Can. Ry. Cas. 450; Zufelt v. Can. Pac.Ry. Co., 23 OX.R. 602, 12 Can. 
 Ry. Cas. 420'; Parent t. The King. 13 Can. Ex. 93, followed.] 
 
 Minor v. Grand Trunk Ry. Co., 22 Can. Ry. Cas. 194. 38 OXJL 646, 
 35 DX.R. 106. 
 
 [Distinguished in Follick v. Wabash Ry. Co., 48 DXJL 526.] 
 
 C. RigTi«.ig A Ti^ Warnings. 
 See also D. (p. 187). 
 
 FAILniE TO SOCTfD WHISTLE; ACCIDEST FBOM HOKSE TAKIXG FRIGHT, 
 
 Consolidated Statutes of Canada, c 63, s. 104, must be construed as 
 enuring to the benefit of all persons who, using the highway which is 
 crossed by a railway on the level, receive damage in their person or their 
 property from the n^lect of the railway company's servants in charge of 
 a train to ring a bell or sound a whistle. a.< they are directed to do by 
 said statute, whether such damage arises from actual collision, or, as in 
 this ease, by a horse being brought over near the crossing and taking 
 fright at the appearance or noise of the train. The jury, in answer to the 
 question, "If the plaintiffs had known that the train was coming would 
 ibej have stopped their horse further from the railway than they did?" 
 said '"Yes"': — Held, though the question was indefinite, the answers to the 
 questions as a whole, viewed in connection with the Judge's charge, and 
 the evidence, warranted the verdict. 8 A.R. (Ont.) 482, affirming 32 
 U.C.C.P. 349, affirmed. 
 
 Grand Trunk Ry. v. Rosenberger, 9 Can. S.C.R. 31L 
 
 [Followed in Grand Trunk Ry. Co. v. Sibhald, 20 Can. S.C.R. 2.59. 10 
 O.R. 164; approved in Hollinger v. Can. Pac. Ry. Co., 21 O.R, 705; Lemay 
 
176 CROSSING INJURIES. 
 
 V. Can. Pac. Ry. Co., 17 A.R. (Ont.) 293; commented on in Roe v. Luck- 
 now, 21 A.R. (Ont.) 1; applied in Sibbald v. Grand Trunk Ry. Co., 18 
 A.R. (Ont.) 184, 20 Can. S.C.R. 259; discussed in Hurd v. Grand Trunk 
 Ry. Co., 15 A.R. (Ont.) 58; Vanwart v. N.B. Ry. Co., 27 N.B.R. 65; dis- 
 tinguished in New Brunswick Ry. Co. v. Vanwart, 17 Can. S.C.R. 41; 
 followed in Henderson v. Can. Atlantic Ry. Co., 25 A.R. (Ont.) 437; re- 
 ferred to in Atkinson v. Grand Trunk Ry. Co., 17 O.R. 220; Nightingale 
 V. Union Colliery Co., 8 B.C.R. 137.] 
 
 Appboaciiixg siding — Notice of appboach. 
 
 At a place which was not a station nor a highway crossing, the N.B. Ry. 
 Co. had a siding for loading hunber delivered from a saw mill and piled 
 upon a platform. The deceased was at the platform with a team for the 
 purpose of taking away some lumber when a train coming out of a cutting 
 frightened the horses, which dragged the deceased to the main track, 
 where he was killed by the train: — Held, that there was no duty upon 
 the company to ring the bell or sound the whistle or to take special pre- 
 cautions in approaching or passing the siding. 27 N.B.R. 59, reversed. 
 
 New Brunswick Ry. Co. v. Vanwart, 17 Can. S.C.R. "35. 
 
 [Discussed in Hollinger v. Can. Pac. Ry. Co., 21 O.R. 705.] 
 
 Failure to give signals when approaching crossing. 
 
 On the trial of an action against a railway company for injuries al- 
 leged to have been caused by negligence of the servants of the company 
 in not giving proper notice of the approach of a train at a crossing, where- 
 by plaintiff was struck by the engine and hurt, the case was withdrawn 
 from the jury by consent of counsel for both parties and referred to the 
 full Court, with power to draw inferences of fact and on the law and 
 facts either to assess damages to the plaintiff or enter a judgment of 
 nonsuit. On appeal from the decision of the full Court assessing dam- 
 ages to plaintiff: — Held, Gwynne and Patterson, JJ., dissenting, that as 
 by the practice in the Supreme Court of New Brunswick all matters of 
 fact must be decided by the jury, and can only be entertained by the Court 
 by consent of parties, the full Court in considering the case pursuant to 
 the agreement at the trial acted as a quasi-arbitrator, and its decision 
 was not open to review on appeal as it would have been if the judgment 
 had been given in the regular course of judicial procedure in the Court: 
 — ^Held, further, that if the merits of the case could be entertained on 
 appeal the judgment appealed from should be affirmed: — Held, per Gwynne 
 and Patterson, JJ., that the case was properly before the Court, and as the 
 evidence shewed that the servants of the company had complied with the 
 statutory requirement as to giving notice of the approach of the train 
 the company was not liable. 31 N.B.R. 318, affirmed. 
 
 Can. Pac' Ry. Co. v. Fleming. 22 Can. S.C.R. 33. 
 
 [Applied in Quebec & Lake St. John Ry. Co. v. Girard, 15 Que. K.B. 
 56: followed in Champagne v. G.T.R. Co., '9 O.L.R. 589, 4 Can. Ry, Gas. 
 207; referred to in Voigt v. Groves, 12 B.C.R. 180.] 
 
 Impairing usefulness of highway; Frightening horses. 
 
 A railway company has no authority to build its road so that part of 
 its roadbed shall be some distance below the level of the highway unless 
 upon the express condition that the highway shall be restored so as not 
 to impair its usefulness, and the company so constructing its road and 
 any other company operating it is liable for injuries resulting from the 
 dangerous condition of the highway to persons lawfully using it. A 
 company which has not complied with the statutory condition of ringing 
 
CKOSSIXG INJURIES. 177 
 
 a bell when approaching a croesing is liable for injuries resulting from a 
 horse's taking fright at the approadi of a train and throwing the occupants 
 of the carriage over the dangerous part of the highway (m to the track 
 though there was no contact between the engine and the carriage. [Grand 
 Trunk Rv. Co. r. Rosenberger, 9 Can. S.C.R. 311, foUowed, 18 JLR. (Ont.) 
 184. 19 6.R. 164, affirmed.] 
 
 G.T.R. Co. T. Sibhald; G.T.R. Co. r. Tremayne, 20 Can. S.C.R 259. 
 
 [Approved in Fairbanks v. Yarmouth. 24 A.R. (Ont.) 273; Hockley v. 
 Grand Trunk Ry. Co., 7 OJ*R. 186: followed in Steves v. South Van- 
 couver, 6 B.C.R. 23: referred to in Fraser v. London Street Ry. Co., 18 
 P.R. (Ont.) 370; McHugh v. Giand Trunk Ry. Co., 2 OX^R. 600:*Sheppard 
 Pub. Co. V. Press Pub. Co.. 10 0J«1L 243; Hendo^on v. Canada Atlantic 
 Ry. Co., 25 AJL (Out.) 437.] 
 
 FaILCYE to give SIGXALS OB WAMSTSGS. 
 
 The respondent W. obtained a verdict from a jury in the Superior Court, 
 District of Iberville, for injuries sustained by being run over by a loco- 
 motive engine of the appellants, while he was crossing their railway 
 track on a public highway. The inoti(m for judgment on the verdict was 
 not made before the Superi<H- Court, District of Iberville, but was drawn 
 up and placed on the record while the case was pending before the Court 
 of Review at Montreal. That Court, on motion, directed a new trial, 
 but the Court of Queen's Bench, on appeal, held that from the evidence 
 in the record it appeared that the accident occurred through the gross 
 negligence of the employees of the appellants in not ringing the bell and 
 soonding the whistle, as they were bound to do, when approaching the 
 crossing, and that the verdict rendered by the jury ought, therefore, to be 
 maintained and the motion for a new trial rejected. [See 2 Dorion's 
 Q.B.R. 131.] On appeal to the Supreme Court of Canada:— Held. Tas- 
 chereau and Gwynne, JJ., dissenting, that the judgment of the Court of 
 Queen's Bench should be affirmed. Per Taschereau and Gwynne, J.J.. dis- 
 senting: — The Superior Court, sitting in review at Montreal, has no juris- 
 diction, either under 34 Vict, c- 4, s. 10, or 35 Vict, c 6, s. 13 (Que.?, to 
 determine a motion for judgment upon the verdict in a case tried in one 
 of the rural judicial distrirt>. and therefore the Court of Queen's Bench 
 had no power to enter judgment for the respondents upon the verdict. 
 (2) The Court of Review, on a motion for new trial in the first instance, 
 having in its discretion granted same, judgment should not have been 
 reversed on appeaL 
 
 Grand Trunk Ry. Co. v. Wilson, Cass. Can. S.C.R. Dig. 1893, p. 722. 
 
 Failuke to bu>w whistle asd kixg bell. 
 
 Action for damages for the killing of plaintiflTs horses at a. highway 
 crossing by an engine of the defendants. The learned trial Judge did not 
 think it necessary to decide, upon the conflicting evidence, whether the 
 whistle had been blown as required by s. 224 of the Railway Act, 1903, 
 but he found that the bell had not been rung and the defendants had. 
 therefore, lieen guilty of negligence. He was, however, inclined to believe 
 that the plaintiff's driver had been guilty of contributory negligence in 
 not looking out for the engine. The action was dismissed on the ground 
 tiiat the plaintiff had not proved that there was no by-law of the city 
 prohibiting the blowing of whistles and ringing of bells because, under 
 that section, if such a by-law was in force, the whistle should not be blown 
 nor the bell rung: — Held, on appeal, that, upon the plaintiff's filing an 
 affidavit proving the nonexistence of such a by-law, there should be a 
 neir trial, as the evidence strongly indicated negligence and there was 
 Can. Ry. L. Dig.— 12. 
 
178 CROSSIXG IN^ JURIES. 
 
 no positive finding of contributory negligence. Quaere, wliether the onus 
 was on the plaintiff to prove the nonexistence of such a by-law. Somblc, 
 tiie trial Judge might properly have allowed such proof to have been made 
 by affidavit. 
 
 Pedlar v. Can. Northern Ry. Co., 18 Man. L.R. 525. 
 
 ACCIDKNT AT I.KVKL CROSSIXG SoUNDING WHISTLE AND RIXGIXG BELL. 
 
 Two of the plaintiff's teams driven by his servants were approaching 
 the level crossing of the highway with defendants' railway. The drivers 
 were on the lookout for trains but saw and heard nothing and proceeded 
 to drive across the track when a train struck and killed one of the teams 
 and damaged tlie waggon and harness. I'he engineer and fireman both 
 swore that the whistle had been sounded as required by s. 274 of the Rail- 
 way Act, 1906, but tliey did not claim that the bell had been rung as that 
 section also required. The two drivers swore that they did not hear the 
 whistle. Tiie defendants also contended that the drivers should have seen 
 the headlight of the engine and therefore were guilty of contributory neg- 
 ligence, but there was some evidence that the headlight might have been 
 obscured at the moment by escaping steam: — Held, that the plaintiflF was 
 entitled to a verdict for the amount of his loss. 
 
 Pedlar v. Can. Northern Ry. Co., 20 Man. L.R. 2G5. 
 
 Footpath crossing — Reversing tr.\in — Precautions. 
 
 There is negligence for which a railway company is responsible when 
 the conductor of a train moving backwards to be coupled to a car left 
 upon a siding crossed by a frequented footjjath did not station somebody 
 at the place to warn peojjle passing. 
 
 Grand Trunk Ry. Co. v. Daoust, 14 Que. K.B. 548, Can. Pac. Ry. Co. v. 
 Brazeau, 19 Que. K.B. 293. 
 
 [Applied in Can. Pac. Ry. Co. v. Toupin, 18 Que. K.B. 559.] 
 
 Signals and warnings — Accident — Life policy — Deduction from dam- 
 ages. 
 Plaintiff's husband was driving in his waggon along the highway in the 
 town of Strathroy where it crossed the defendant's railway. There was 
 evidence to shew that the view of an approaching train was obstructed 
 by the station house, buildings and cars, until a person approaching on 
 the highway had reached within a short distance of the main line. The 
 evidence was contradictory as to the ringing of a bell or the sounding of 
 a whistle, but the jury found that the engineer had failed to do either in 
 approaching the crossing in question. The plaintiff's evidence shewed 
 that the deceased, in approaching the crossing, was driving with his head 
 down, apparently oblivious of his surroundings. For the defence, it was 
 deposed to, that the deceased was driving slowly in approaching the main 
 track with his head down, but when some distance off he perceived the 
 train and struck his horse with a whip, but was hit before he was able to 
 cross the line. The jury found the defendants guilty of negligence and 
 negatived any contributory negligence on the part of the deceased. The 
 deceased had effected a policy of insurance on his life, and, at the trial, 
 the jury were directed to deduct the amount of the policy from the ver- 
 dict. The Divisional Court, Wilson, C.J., dissenting, held that the case 
 Avas one for the jury; that the findings in plaintiff's favour should not be 
 disturbed, and that the policy of insurance had been improperly directed 
 by the learned Judge at the trial to be deducted from the damages. In 
 the Court of Appeal it was held that it could not be said that the verdict 
 of the jury was against the weight of evidence, applying the principles 
 
CROSSING IXJCRIES. 179 
 
 laid dovn in Metroptditui St. Co. r. Wright. 11 App. Ca$. 152. Ha^rty. 
 CJr., and Osltr. J_ w«« of opinkm that the polky of iB^nranee sboald 
 be deducted from the damage^:, vhile Burton and Patterson. JJ., were of 
 the eontrarr opinion: — Held, per Sir W. J. Ritchie. C.J.. Foamier and 
 Heniy, JJ_ that the appeal should be dismissed with costs: — Held, per 
 Strong. Tas<JMfvan and Gwynne. JJ„ dL».>enting; that the decea«ed was 
 guilty of coatributory n^lippnce: — Held, per Sir W. -J. Ritchie, CJ~, and 
 Strong, Foamier and Henry, JJ.. that the pcrficy of insurance should not 
 be deducted fnMn the damages: — Held, per Taschereau. J., that it vas 
 the doty of the decea^«d before attempting to eroes the track to look and 
 see whether a train va^ approaching, and that his failure to do so was the 
 cause of the aceidoit: — Held, the Court being equally divided, that the 
 appeal should be dismissed without costs. 13 JLR. (Ont.), 174, 8 O.B. 
 601, affirmed. 
 
 Grand Trunk Rj. Col t. Beckett (18S7». 1 S-C. Cas. 228, 16 Can. S^C.IL 
 713. 
 
 [Distinguished in Tinsl^ v. Toronto Ry. Co.. 17 OX^ 74; followed in 
 Cameron t. Royal Pkper Mills Co„ 31 Que. S.C. 286; approved in Grand 
 Trunk Ry. Co. r. Joming^, 13 App. Cas. 802: followed in Preston t. T*> 
 ronto Ry. Co_ 13 O.L.R- 369: referred to in Hollinger v. Can. Pac. Ry 
 Co- 21 b.R- 706: Warboys t. Lachine Rapids etc., Co- 22 Que. S.C. 541.] 
 
 HiGHWAT CaOSSIXG ^XbGLECT ip CrVE STATtrrOBT WAKXrXG COXTKUt.TUCT 
 
 XEGUGKSCV. 
 
 P««ans lawfully using a highway are entitled to assume that the statu- 
 tflvx warning will be given by a train eroseii^ the highway, and are noc 
 neressarily guilty of rontributory negligenee because, while driving a res- 
 tive horse, they approach, in the ah»en«:-e of warning, so close to the cross- 
 ing as to be unable to control the horse when the train e r oase s , and are 
 injured, even though by looking or listening they prohnblr wwdd have 
 learned of the approach of the train in tiaae to sfeojp fmr c—wg h away to 
 be in safety. The question of contribotarf ntgi^enee in saA a case is for 
 the jury to determine under all the ciiiumht ances of the case, piorrow 
 T. Can.'Pae. Ry. Co. I18»4), 21 A.R. (Ont.) 149, followed.] Judgment 
 of \Ieredith, CJ~ affirmed. 
 
 Vallee v. Grand Trunk Ry. Co.. 1 Can. Ry. Cas. 338. 1 OX.R. 224. 
 
 [Diseu§sed in Champagne v. G.T.R. Co.. 9 OXJL 589, 4 Can. Ry. Cas. 
 2117: distingnlffhed in Tinsley v. Toronto Ry. Co- 15 OXkR. 438: followed 
 in Uisener v Wahash Ry. Co- 12 O.L.R. 71: followed in Sims r. Grand 
 Trunk Ry. Co., 10 O.LlBL 330. 12 O.L.R. 39: followed in Wright v. Graa<l 
 Trunk Ry. Co- 12 OXJL 114: referred to in .Jiioes v. Tormito, etc- Radial 
 Ry. Co., 20 OX.R. 71: referred to in London k Western Trusts v. Lake 
 &ie. etc., Ry. Co., 12 OXJS. 28.) 
 
 HiGHWAT CnOSSI^G OSILSSIOX TO EIXG BEIX OK SOCXD WHISTIX — COX- 
 
 (1) The word ~highway~ in s. 256 of the Railway Act, 1888, requiring 
 a bell to be rung or a whistle sounded by a railway locomotive engine on 
 approaching a croiSs'ing over a h^hway. means a public highway, which 
 is so as of right. Semble: The question whether there is a public high- 
 way at any point is <me which a County Court is precluded by subs, id* 
 .»ff s. .59 of the County Courts Act. R.S-iL, e. 33, from trying. ' (21 Where 
 a trail or way over a railway track is used by the public by invitation 
 or license of the railway company, a person crossing the track upon th^ 
 -ante is bound to observe reasonable precautions to avoid injury fay trains: 
 and where the evidence shews that he had not done so, he cannot reciTver 
 
180 CROSSING INJURIES. 
 
 from the company for such injuries without proving that they were im- 
 mediately caused by the negligence of the company's servants only. 
 Quaere: Whether the failure of the person in charge of a locomotive to 
 ring a bell or sound a whistle or observe other precautions on approach- 
 ing such a crossing constitutes actionable negligence. [Cotton v. Wood 
 (1860), 8 C.B.N.S. 5(58, and Weir v. C.P.R. (1889), 16 A.R. (Ont.) 100, 
 followed.] 
 
 Royle v. Can. Northern Ry. Co., 3 Can. Ry. Cas. 4, 14 Man. L.R. 275. 
 
 [Followed in De Vries v. Can. Pac. Ry. Co.* 20 Can, Ry. Cas. 375.] 
 
 Dangerous cbossixg — Failure to give warxixg — Coxtkibutoky xeoh- 
 
 GENCE. 
 
 A siding of the defendants' railway, whicli was not used by the defend- 
 ants more than two or three times a week, crossed a narrow arched-in 
 lane or alleyway, held on the evidence to be a liighway, very close to the 
 face of the walls. The plaintiff's servant had driven the plaintiff's horse 
 and waggon across the siding and through the allejway to a warehouse 
 close by, there being no engine or cars on the siding. The waggon was 
 within a short time loaded with boxes, and the plainti-ff's servant then 
 returned through the alleyway, the servant walking beside the waggon in 
 order to steady the load. Just as the horse came out of the alleyway it 
 was struck by a passing engine and severely injured. The whistle of the 
 engine had not been sounded nor the bell rung. The plaintiff's servant 
 did not stop the horse at the mouth of the alleyway or look or listen for 
 trains: — Held, that assuming, but not deciding, that the duty to sound 
 the whistle or ring the bell did not apply in the case of engines using a 
 siding, it was nevertheless incumbent upon the defendants to give some 
 warning before crossing the lane, esi)eeially in view of the very dangerous 
 nature of the crossing, and that, not having done so, they were guilty of 
 negligence and prima facie liable in damages: — Held, also, that luider all 
 the circumstances it could not be said that there was not some evidence 
 to support the finding of the Judge at the trial (the case having been 
 tried without a jury) that the plaintiffs servant had not acted unrea- 
 .sonably, and was therefore not guilty of contributor}' negligence. Judg- 
 ment of the County Court of Lincoln alfirmed. 
 
 Smith v. Niagara & St. Catharines Ry. Co., 4 Can. Ry. Cas. 220, 9 O.L.R. 
 158. 
 
 Neglect of statitouy warxixg — C'ollisiox at chossix'g — Coxtributoby 
 negligence. 
 
 The deceased, who was well acquainted with the locality, while driving 
 along a highway running in the same direction as and crossing a railway 
 was killed at the crossing by a locomotive, running alone, coming from 
 a direction behind him. The trial Judge left it to the jury to saj- wliether 
 there was negligence on the part of tlie defendants, and whether the de- 
 ceased could with ordinary diligence have seen the engine in time to avoid 
 the collision, and whether he was guilty of any want of ordinary care and 
 diligence which contributed to the accident. The jury found that the 
 engine was going unusually fast; that the whistle was sounded at a cross- 
 ing three-fifths of a mile off, but was not continued at the otlier crossings 
 and that the deceased was not guilty of contributory negligence: — Held, 
 affirming 10 A.R. (Ont.) 191, that the case had been properly left to the 
 jury and that the verdict not being against the weight of evidence ought 
 not to be disturbed. 
 
 Peart v. Grand Trunk Ry, Co., 5 Can. Ry. Cas. 347, 10 O.L.R. 753. 
 
CROSSING i:s'ji:iaE& isi 
 
 [Cfandend in Weir r. Ow. Pac. Br. Co^ 16 AJL (Oat.) 100; dis- 
 cussed ia Blake t. Caji. Par. Br. Co. 17 OJL 177; Bvaa t. Caa. Sootk 
 Ry. Co, 10 O.B. 745: foDoved in Miseua v. Wafaad By. Co., 12 OJ-.B. 
 71; TiBsler r. Toronto By. Co., 17 OX..B. 74: Si»» t. GnuKl Tnmk By. 
 CoL. 12 OXuB. 39: refoTed to in Chaapa^K t. G.T.B- Co_ 4 Can. By. Ca*. 
 207, 9 OJ..B. 5S9; Copelaad v. BknkeiB. 9 OJL 19: HoDinger t. Can. Par. 
 By. Co^ 21 O.B. T0»: JoiinstOa t. Grand Tnmk By. Co.. 21 A.B. .Chit.* 
 408; JoMs T. Toronto, ««., By. Co_ 20 OXJC. 71: Pettigrrw t. Tliomas, 12 
 SLR. (Ont.) 577; Wright t. Grand Tnmk By. Cou 12 OXlB. 114.] 
 
 tSJXmr TO PEKSOX at HKHWAT OBOSSUCG — TkaIX ' BULLXD TnOE." 
 
 la an artioa to le c oi e i daanges far tke death of a aian vho «a$ stmck 
 hjr a traia of the defcadaats at a hi^vay erossin«r. the evidence as to 
 whether the statatonr i^^ftrM vcre gtma^ was conflicting, aad, vhile it 
 waa ihi aa that the traia vas about tea ■iantes late, there vas ao evi- 
 diaee as to the cause of the delay, aor vas it shew that the deceased va« 
 ■naled thuihj . The jory fooad ftat the defcadaats vcre gnStj of nc«li- 
 geaee, aUdk consisted ia tte train bei^ 'liduBd tiaw;"^ bat they did 
 ■oi answer a qncstian pot to theai as to whether the bell was rii^ii^: — • 
 Hdd, that ao aetJoaaUle a^Sgeace was Jtheaa or foond, and the action 
 Aoold be dismiaeed; it was aot a case for a new trial. S. 215 of the 
 Bailway .Act, 1903. whidi requires that aD r^nhr tralas ^aD be started 
 aa mimtij as {Hacticable at rc^folar hours, fixed by poblic notice, did aot 
 aid tte plaiatifls. Jnd ejnta t of Bojrd. C, reversed. 
 
 Haaly et aL r. Micfaigaa Central By. Cou 6 Caa. Br. Cas. 240, 13 OXJR. 
 560. 
 
 [Followed in McGraw t. Toronto By. Co., IS OX.B- 154.] 
 
 CfeO£5E!rG 15 TOWX — ^HjlXVCAK — ^Wa«xixg — IsrAjeT — CoAsnxG. 
 
 A child of ten years of age was e«asting down an indiae on a ! >tieet in 
 a town crossed by a railway, and was ma down aad injnred by a hand- 
 car jwoce c d iag- alocg the railway. At the traL the jmy fooad, ia answer 
 to qnestkats, that the defendants were a^^ligmt ia aot giriag so^ warn- 
 iag in a^roadiing the cro aaii ^; that the defcndaats eoold ha«« aToidc<l 
 iajariag the {rfaiatiff by stopping the handcar, and tiiat it was their duty, 
 apart fio^ the prorisioBS of the Bailway Art, to hare giv^ warai^: — 
 Held, that flie jury, in finding that warning donid hare been given, were 
 not aaanaiag to lay down any general rale as to what care or pi ee aiiii on 
 afconld be taken, bnt simply that nader the cirenastanees sobk waiaiag 
 shoaid hare beea givea, aad that the aaswer was n a objectioaabie aad ia 
 no way infringed npm the jurisdictioB of the Board: — Held, also, that 
 even if a hand-car is not a train, a varaia^ is accessary apart from the 
 Bailway Act: — Held, also. that, ahhoa^ there was a mnaieipal by-law 
 ]»ohihitiag coasting, the plaintifl' had not been notified m» requmd by 
 the by-law, and the onn« was on the defendants to prove criminal capacity 
 at camuBOB law, and under the Criminal Code, of aa iafant under foorteen, 
 and the defcndaats wne not entitled to invoke snch by-law for another 
 pni p ue e: — Hdd, lastly, that, although a defendant is not liaUe if the 
 injmy is caused entirely by an infanr's own negligence, the capacity of 
 Umb iafant to be guilty of contributory aegiligenee is a q M > *ii ^) « fmr the 
 junr. and that as the plaintiff was not a trespasser and was where he had 
 a right to be. and had not been notified under the provisions of the by- 
 law, or hi$ capacity for crime ribewn. the whole case was pnqterly sub- 
 mitted to the jury. 
 
 Bnrteh v. Can. Pac. By. Co., 6 Caa. By. Cas. 461, 13 OJJR. 6S2. 
 
182 CEOSSING IJs^JURIES. 
 
 Destruction of horses at cbossixg — Faii.uke to ring bell — Neglect to 
 
 LOOK OUT. 
 
 An accident having occurred upon a highway crossing in the city of 
 \\'innipeg and tliere having been some evidence of neglect on the defend- 
 ants' part, the plaintifl' would have been entitled to recover but for his 
 failure to shew under s. 224 of the Railway Act, 1903, that there was no 
 by-law of the city of ^^"innipeg prohibiting the defendants from sounding 
 the whistle and ringing the bell, the onus being upon the plaintiff to prove 
 the nonexistence of such by-law. 
 
 Pedlar v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 1, 6 West. L.R. 20L 
 
 Signals and warnings — Contributory negligence. 
 
 In an action to recover damages for the death of a man who was struck 
 by a train of the defendants at a highway crossing where the evidence for 
 the plaintiff sliewed at most a total absence of w^arning, but tliere was not 
 at the close of the whole case any evidence upon which the jury, acting rea- 
 sonably, could find that the absi'nce of warnings caused, or in the slight- 
 est degree contributed to the accident, which the undisputed evidence 
 shewed was wholly due to the reckless conduct of the deceased in attempt- 
 ing to cross after he became fully aware of the approaching train: — ■ 
 Held, reversing the judgment at the trial, that the case should not have 
 been submitted to the jury, but tlie action should have been dismissed. In 
 sueli cases, the facts, if in dispute, must be found by the jury, but the 
 Judge must first rule as a matter of law whether there is any evidence 
 from which the inference necessarj' to support the plaintiff's case can 
 reasonably be drawn, if there is no such evidence, the plaintiff's case fails. 
 The statutory signals required to be given by s. 274 of the Railway Act, 
 1!>0G, are intended to warn persons likely to be in danger. If not given 
 there is a presiunption of safety upon which a reasonable person may act, 
 and if, while so acting, lie is injured, tlie company may be liable, but he 
 cannot, because no warning had been given, proceed, to cross in front of 
 an advancing engine which he sees or bears, and then blame the absence 
 of warnings for his injury. 
 
 Hanna v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 392, 11 O.W.R. 1069. 
 
 Collision — ■Disobedience of ordhbs — Signals — Contbibutoby negli- 
 gence — Lord Campbell's Act. 
 
 M.. a locomotive engineer in the employ of the C. P. R. Co., was killed in 
 a collision between trains of the C.P.R. and defendant railway companies. 
 An action was brought by his widow against the Wabash Co. claiming 
 damages under Lord Campbell's Act. M., before attempting to cross, 
 brought his train to a full stop, but not at the stop-board, as required by 
 the rules of the railway company, and proceeded slowly when the signals 
 indicated the crossing was clear, thus complying with the Railway Act, 
 1906, ss. 277, 278. The Wal)ash train, on the other hand, without coming 
 to a full stop, although the signals were against it, attempted, to make 
 tlie crossing at the speed, according to the jury, at "the diamond" of 
 eight or nine miles an hour. Tiie real cause of the accident was the reck- 
 less disregard of the statute by the defendant's employees in charge of the 
 train: — Held, Meredith, .T.A.. dissenting, that on the answers of the jury 
 the defendant company was liable in damages for the accident. 
 
 McKav V. Wabash R. R. Co., 7 Can. Ry. t as. 444. 10 O.W.R, 416. 
 
 [Affirmed in 40 Can. S.C.R. 251, 7 Can. Ry. Cas. 466.] 
 
 Collision — Stop at crossing — Statitouy rile — Contributory negli- 
 gence. 
 A train of the Wabash R.R. Co., and one of the C.P.R. Co. approached 
 
CKOSSLN'G IXJTRIES. 1S3 
 
 a kl{^«aT CToesiB* ai obtase aaglea. The for^wr did not. as teq|«iicd hj 
 s. 378 of 'tte Baihrar Act, 1S06, eo^ to a full stop; tW latter did at a 
 seaMfhfore mtm xl} 900 feet^ fraat tke croaiiii^ aad iccciiiag tW pntpn- s^- 
 ■al piveeeded vitkoat sto^iag »g^>m at a ''stop posT'' sa^ -100 feet 
 ■eaicr ahrit a mle of Ithe eo^paar reqancd traias to stop. Tbe trails 
 coOidrBd aad tk ea^neer of tke C.P JL Co. was killed. la aa attioa br 
 Us vidanr: — Odd, that tke faHare oi tlv tm ^m t ui to stop tbe secoad 
 tiaae was aot coatribBtoKy ^fc^'g*" vUrk pt r rta ted tbe reeamrj of 
 diMigrir for tbe faisi of plaiatiCs bawbaad eaoaed bjr the admitted me^- 
 gemte at de fea d aatB 
 
 XVaba^ Rr. Co. t. McKay, 7 Caa. Rr. Cam. 466. 40 Caa. S.C.R. 251. 
 
 FAIL.rBE TO 6ITB SiGXALS COXIKDCTOKT TBGUeZ3CE — HUSBiS9 A^CD 
 
 WIFE. 
 
 A va^igoB drives bj K, aad uwlaiaiafe also bis wife aad Us sob, vUle 
 a tti w pt iag to paas a da a^uwi iioaniag oa dtfradiats' lailvaj was 
 atzaek by- aa e^iae, resulting ia EL aad Us wife bei^ UUed and tbe son 
 •crioaslr ia jnrcd. IVae was me^Bgmtit em tbe part of tbe coapamr's 
 sercaatts ia iiiliag to gire proper ■y'^H ia appraacUa^ tbe croasiB^, aad 
 ia Twaaiag tbe eagiae at < luiwin. ^paed wUrb woold bare icadcxcd tbe 
 iiiMpaaj liable, bat tbe trial iuigt fio^id eoatribatory a(*t^|eaee oa tbe 
 part of E. pTM-ladii^ tboee «^«i»i^ aader Uai froai reeoreri^. aad this 
 fiadi^ waf sostaiaed br the Coort: — Beld, aererthekss, that sadt ae^i- 
 ggact was Bot a bar to the wife or those dsiwiag nader her, or to tbe 
 MB. ^celndiag tbeai froas rvroreri^ for prrnnaal iajories ia the afaseace 
 of crideare of eoatribatory a^igeaee oa l^dr part. While tkt eoauMM- 
 law felatioB» betveea boshaad aad wife bare beea AMmged by statote so 
 that a married vuaaia L> catitkd to i ce oTei ia her owa right ia «ftacs oi 
 damage^s the roBtribatonr aegii giatc ai tbe basfcaad, whea ia eo^paay 
 with hi> wife, is not chargeable to her ia soch acCioas. 
 
 Ei^eBbaoer t. Halifax t. Sooth Westoa By. Col, 12 Caa. By. Ca& 168, 
 42 XJSJL 426. 
 
 Death or feksox* caassisG tback — lyariciEvr Hn&mjcHT ox ssow- 
 FLoccH — EjLtESJ»rvE $rczj> — "Vnukiai" 
 The plaiatiffs sought daauges. under the Fatal Aceidests Act. for the 
 death of their eUMrea. all^^ed to hare bcea caa»«d by the aegi^eace of 
 the defeadaais. The deceased were dririag acTWM> the defendaar's track at 
 a street cro^ii^ ia a village, whea they w^tc stmck by a saowploogh ia 
 froat of the loco^Mrtirc of a train, and sa^-taiaed iajories which resulted 
 ia their death. The jaiT fooad that the sBow]^oa^ had a headlight, bat 
 it was iafaihrifBl b e raase aot placed ia a soitaUe positioa so as to shew 
 the li^t directly ia froat of the aowploogh; that there was a failure to 
 soaad the wUatie aad to ria^ the bell as reqiured by the statute: that the 
 piaee was thickly pe op led; that Ae speed was 15 miles aa hour, aad 
 was eseewre; that the three caoses of the iajary were, aa iasaSeieat 
 headset <m the aowploa^ faihire to souad the' whistle aad bell, aa-I 
 escesisire ^ecd; aad that there was ao eoatribatory Begl%caee; and they 
 aaeessed the dMmngur at SSjOOO. Jadgmeat was eatovd by the trial Ja4ge. 
 ^OB these fiadiags, ia faroar ai the plaiatiffs. for the le t wieij of $3,000: 
 — Hdd, Aat ^e Terdict was aot satisfaetOTy. aad th«e skoald be a aew 
 triaL Per Mobs, CJ.O.: — There is ao ohiigatioa, statatiay or otheiai ae. 
 upoa ralhraj eompaaies to nmiatain a headlight oa a Baoaphmh , bat 
 there was a headlight npoB this particolar smiapUmgh; aad thera was 
 which a jorjr eoald reasoBibiy fad acgligeaee ■• imr as 
 
184 CROSSING INJURIES. 
 
 the headlight was concerned. The finding with regard to running at an 
 excessive speed through a thickly peopled portion of the village was not 
 complete, for all the necessary facts were not found. And the finding with 
 respect to the statutory signals was not a reasonable one upon the evi- 
 dence. Per Garrow, J.A. : As to the sufficiency of the headliglit, if that 
 was a question proper for the jury at all, which was doubtful, there was 
 no evidence to justify their finding. As to the statutory signals, the onus 
 was upon the plaintiffs to give some evidence from which the jury might 
 reasonably find the fact to be that the signals were not given. JOvidcnce 
 of persons who say that they did not hear the signals must go for nothing 
 if there is reasonable evidence, by equally credible witnesses, that the sig- 
 nals which the others did not hoar were actually given; and that was the 
 situation here. The finding was not merely against the Meight of evidence, 
 but approached, if it did not reach, the perverse. The findings as to ex- 
 cessive speed and a thickly peopled place were immaterial without a find- 
 ing as to fencing. Per Meredith, J.A. : The verdict was not rightly found, 
 because the jury were, in efl"ect, told by the trial Judge, that any ten 
 of them could answer any of the questions, and that it was not necessary 
 that the same ten should agree upon more than one answer: And that was 
 erroneous. On the facts of this case, it was necessary that the same ten 
 jurors should have agreed upon some set of facts entitling the plaintiffs to 
 recover before any verdict or judgment could be given in their favour. 
 Per Moss, C.J.O., and Garrow, J.A., that, upon the proper construction 
 of s. 108 of the Judicature Act, having regard particularly to the language 
 of subs. 2, it is enough if any ten jurors concur in answering each ques- 
 tion. Per Garrow and Maclaren, JJ.A. : — "Village" in s. 275 of the Rail- 
 way Act, 190G, includes what is known as "a police village," that is, an 
 unincorporated village, organised for certain limited purposes under the 
 Municipal Act. 
 
 Zuvelt V. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 420, 23 O.L.R. G02. 
 
 [Followed in Minor v. Grand Trunk Ry. Co., 22 Can. Ry. Cas, 194, 35 
 D.L.R. 106.] 
 
 Signboard at crossing — Absence of — Excessive grade — Statutory 
 
 SIGNALS, 
 
 An action to recover damages for the death of one C. due to negli- 
 gence of the appellant company. The accident happened about seven 
 o'clock in the evening of a winter's day, said to be somewhat dark, while 
 a waggon in which the respondent was simply a passenger was being driven 
 across the tracks of the appellants at the intersection of the highway. 
 Three acts of negligence were found by the jury, to which they attributed 
 the accident: — (1) Absence of warning signboard required by the Rail- 
 way Act at highway crossings. (2) Excessive grade in highway approach- 
 ing crossing. (3) Failure to give statutory signals, and negativing 
 contributory negligence: — Held, aflSrming the judgments of the trial Judge, 
 the Divisional Court and the Court of Appeal for Ontario, in favour of 
 the respondent for damages with costs. Girouard and Idington, JJ., that 
 the absence of the signboard was the cause of the accident. DuflF, J,, 
 that the failure to give the statutory signals caused the accident, Davies 
 and Anglin, JJ., dissenting, that because no one saw the accident the 
 proximate cause thereof was a guess or conjecture, 
 
 Pere Marquette Ry. Co. v. Crouch, 13 Can. Ry. Cas. 247. 
 
 Absence of warning at crossing — Reasonable inferences. 
 
 An action for damages for death of one G., caused by being run down by 
 tlie defendants' train, while deceased was crossing a public highway. The 
 evidence shewed that the train gave no warning either by whistle or bell. 
 
CROSSING IXJURIES. 185 
 
 Another tram was passing upon the other track in the opposite direction at 
 the ^ame time, which gave the necessary signals. No one saw the accident. 
 The jury found that the accident was caused br the violation of the 
 statutory duty to whistle and ring the bell, and negatived contributory 
 negligence. Middleton, J., entered judgment for plaintiff for €2,000 and 
 costs as awarded by the jury. Moss, C.J.O., granted leave to appeal direct 
 to the Court of Appeal. The Court of Appeal dismissed the defendants* 
 appeal with costs. Meredith, J.A., dissenting, being in favour of granting 
 a new trial. 
 
 Griffith V. Grand Trunk Ry, Co., 13 Can. Ry. Cas. 287, 17 O.WJL 509, 19 
 O.WJR. 53. 
 
 [Affirmed in 45 Can. S.C.R. 380; 13 Cm. Ry. Cas. 302.] 
 
 Abse::nce of wakxino at CROSsrxc — Reason able ixfebexces. 
 
 About 5:30 on a Decemlier afternoon, G. left his place of employment 
 to go home. An hour later his body was found some 350 yards east of 
 a crossing of the Grand Trunk Ry., nearly opposite his house. There was 
 no witness of the accident, l)ut it was s^iewn on the trial of an action by 
 his widow and children, that shortly after he was last seen an express 
 train and a passenger train had passed each other a little east of the 
 crossing, and there was evidence shewing that the latter train had not 
 given the statutory signals when approaching the crossing. The jury 
 found that G. was killed by the passenger train, and that his death was 
 due to the negligence of the latter in failing to give such warnings. This 
 finding was upheld by the Court of Appeal: — Held, that the jury were 
 justified in considering the balance of probabilities and drawing the in- 
 ference from the circumstances proved, that the death of G. was caused 
 by such negligence. 
 
 'Grand Trunk Ry. Co. v. Griffith, 13 Can. Rv. Cas. 302, 45 Can. S.C.R. 
 380. 
 
 IXJfRT TO PEB-'SOX CBOSSrXG TRACK. 
 
 A railway company will be liable in damages for injuries suffered by 
 a person, who whilst attempting to cross the tracks to reach an adjoining 
 roadway or whilst walking along the tracks with this end in view is struck 
 by a train moving backwards (or engine backing up) when no one has been 
 placed at the forward end of the train to warn persons at the crossings 
 or along the tracks. 
 
 Grand Trunk Ry. Co. v. McSween, 2 D.L.R. 874. 
 
 ACCIDEXT AT CROSSING SiGXALS ClTY STREETS SHrXTlXG EXCTXE. 
 
 The requirement of s. 274 of the Railway Act, 1906, that a train on 
 approaching a highway crossing shall sound its whistle when at least 
 eighty rods therefrom is not applicable to an engine engaged in shunting 
 cars in a city yard, which at no time was more than one hundred yards 
 distant from a street crossing. It is not necessary that a person about 
 to cross a railway track at a street crossing should have actually heard 
 the warning given by an employee standing on the tender of a backing 
 locomotive, in order to relieve a railway company of the duty imposed 
 on it by s. 276 of the Act. in running trains not headed by an engine 
 moving forward in the ordinary manner over a level crossing, to have a 
 man stationed on the part of the train then foremost, in order to warn 
 persons standing on or about to cross the tracks; since the warning re- 
 quired is only such that, if given in time to avoid danger, it ought to have 
 been apprdended by a person in possession of ordinary faculties, in a 
 reasonably sound, active and alert condition. The duty incumbent on a 
 
186 CROSSING INJURIES. 
 
 person who is about to cross a railway track at a liighway crossing at 
 grade to look for moving trains is not satisfied by merely looking Iwth 
 ways on approaching the tracks; he must look again just before crossing. 
 In order that a railway company may be held responsible in damages for 
 its negligent omission to perform a statutory duty, it must appear that 
 the injury was tiie result of such omission and not of the folly or reckless- 
 ness of the injured person; but the fact that the negligence of the plain- 
 tiff contributed to or formed a material part of the cause of his injury, 
 will not preclude him from recovering damages if the consequences of his 
 contributory negligence could have been avoided by the exercise of ordinary 
 care and caution on the part of tlie defendant. [Dublin, Wicklow & Wex- 
 ford Ry. v. Slattery, 3 A.C. 1155, 1166; and Davey v. London & South 
 Western Ry. Co., 12 Q.B.D. 70, specially referred to.] 
 
 Grand Trunk Ry. Co. v. McAlpine, 16 Can. Ry. Cas. 186, [1913] A.C. 
 838, 13 D.L.R. 6lk 
 
 [Followed in Mackenzie v. British Columbia Elec. Ry. Co., 16 Can. Ry. 
 Cas. 337; Doyle v. Can. Northern Ry. Co., 46 D.L.R. 135, explained in 
 Ramsay v. Toronto Ry. Co., 17 Can. liy. Cas. 6, 17 D.L.R. 220.] 
 
 Signals — Failure to give — Ringing keix — Instkictioxs. 
 
 In an action for injuries sustained at a higiiway crossing by being struck 
 bj' a train an instruction to the jury tliat tiie law requires the whistle of 
 the engine to be sounded more than eighty rods away (which was done 
 near another crossing more than eighty rods distant), and that the evi- 
 dence sliewed that the bell was not rung for the latter crossing, is er- 
 roneous, and entitles the railway company to a new trial, where the 
 failure to ring the Ik?11 was the only negligence on which a verdict for 
 the plaintiff could be sustained, and the jury stated that they "believed 
 that the bell was not ringing continuouslj-," such answer being too ambig- 
 uous to sustain the verdict. 
 
 Bell V. Grand Trunk Ry. Co., 16 Can. Ry. Cas. 318, 29 O.L.R. 247, 14 
 D.L.R. 279. 
 
 [Reversed in 16 Can. Ry. Cas. 324.] 
 
 Signals and warnings— Incompctent brakemax. 
 
 llie statutory duty under s. 276 of the Railway Act, 1906, to warn per- 
 sons crossing or about to cross the track of the approach of a train backing 
 up across the street is one for the nonobservance of which tlie railway 
 company may be liable in damages for an accident resulting from the 
 failure of the brakeman to give sufficient warning with the air whistle 
 at the rear of the train; the placing in charge of the rear end of the train 
 when moving reversely upon level crossings in a town of a brakeman un- 
 acquainted with the conditions existing near the crossing which would 
 interfere with persons seeing tlie approaching train and witiiout knowl- 
 edge of where the crossing was, is in itself negligence for which the com- 
 pany is liable. ■ 
 
 Mitchell V. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 188, 22 D.L.R. 804. 
 
 Operation — Signals and flagmen — Yard tkain. 
 
 S. 251 of the Railway Act, 1906, under which a man must be stationed 
 on the last car to give warning of the train's approach when it is moving 
 reversely in a city, town or village, applies to a work train operating on 
 the surface wholly within the plant of a company subject to the Railway 
 Act, situate in a city, town or village as well as to cases where the streets 
 
CROSSDsG rS^JURIEa 1S7 
 
 of the municipalitj are crossed bj the train moTing backwards. [MeMoI- 
 lin V. X.S. Steel Co., Can. Ry. Cak 198, 39 Can. S.C.B. 593, applied.] 
 
 ( ampbell v. Xova Scotia Steel t Coal Co.. 22 DJ^JL 885, 48 X.SJi. 540 
 
 [Affirmed in 35 DX.B. 800.] 
 
 SiG-VAiS FaILUKE to look SXOWSTOKM. 
 
 Failure to ring the bell and blow the whistle while a train is approach- 
 ing in a snowstorm within 550 feet of a highway, although there is no 
 statutory duty to blow the whistle, may justify a jury's finding of negli- 
 gence in an action for injuries to a vehicular traveler on the highway ; 
 the jury's finding n^ativing contributory negligence, liecause of the plain- 
 tiff's failure to look, cannot be disregarded by the trial Judge, particularly 
 when the vision was obstructed by the snowstorm. 
 
 <;ray r. Wabash Ry. Co., 20 Can. Ry. Cas. 391, 35 OJLR. 510, 28 D.L.R. 
 244. 
 
 Level cbossixg — Coxtributory >"egi.igenxe — FiNDtxGS or ji"bt — Fokm 
 
 OF QUESTIOXS TRIAL SlPPLEMEXTABT FLSDIXGS ABSENCE OF WARX- 
 
 EVG FAILfBE TO RLXG BELL COMPETEXCE OF WITXESSES ^XEGATIV- 
 
 rSG BY at"RY OF ALLEGED FAILrRE TO SOVXU WHISTLE — -EVIDEXCE OF 
 PEBSOX IXJCRED COXTBADICnOX DeXIAI. OF XEW TRIAU 
 
 Jaroshinsky v. Grand Trunk Ry. Co., 31 D.LJI. 531. 
 
 D. Precautions; Duty to Ijook and Listen. 
 
 FaTLURE to stop, LOOK OR LISTEX. 
 
 It is a matter of common sense that a person about to pass over a rail- 
 way crossing upon a level would look to >ee whether or not a train is 
 approaching. The driver of a train approaching the crossing is entitled 
 to rely upon such person using due care and stopping before reaching the 
 track. He is not bound to anticipate negligence on the part of the per- 
 son approaching the track and guard against it beforehand. He is only 
 botmd, where he has notice of the negligence, to take the ordinary means 
 of evading its consequences. Where deceased, driving a carriage, attempt- 
 ed to cross the track of the defendant company without locricing to see 
 whether a train was approaching, or the direction from which the train 
 was coming, the finding of the jury to the effect that deceased should 
 have stopped a short distance from the track and made sure that there 
 was no danger from trains, indicates that the efficient proximate cause 
 of the accident was her not stopping and that such cause was in force 
 at the time of the accident. 
 
 Morrison t. Dominion Iron t Steel Co., 45 X.S.B. 466. 
 
 NbGLIGEXCE — C0XTRIBrT<WT XBGLIGEXCE. 
 
 The plaintiff in attempting to cross the defendants' tracks at a busy 
 level crossing in a city, where there were five tracks, with gates and a 
 watchman, came into contact with a locomotive of the defendants, and was 
 injured. The jury found that the gates were down when the plaintiff 
 attempted to cross, except the arm over the southeast sidewalk; that the 
 defendants were guilty of negligence in not having the arm over the 
 soutiieast sidewalk; that the plaintiff was guilty of n^ligenee because she 
 should have used more precautions to protect herself: that the accident 
 would not have happened but for her n^ligence: that the driver of the 
 engine could not, after he became aware of the plaintiff's danger, by the 
 exercise of reasonable care have prevented the accident; that the driver, 
 if he had exercised reasonable care, ought to have sooner seen the danger 
 to the plaintiff, and he could, by the exercise of reasonable care, have 
 prevented the accident, if he bad acted more iMi>mptly: — Held, that, upon 
 
188 CROSISiXG IXJUKIES. 
 
 these findings, the judgment should have been entered for the defendants. 
 Judgment of Meredith, C.J.C.P., reversed. Per Osier, J.A., that the negli- 
 gence of both parties was concurrent and continuous down to the moment 
 of the accident. The proximate cause of the injury was the negligence 
 as well of the plaintiff as of the defendants. Where that is the case, 
 the plaintiff is not entitled to recover — in pari delicto potior est conditio 
 defendentis. 
 
 Fewings v. Grand Trunk Ry. Co., 1 O.W.N. 1 (C.A.). 
 
 CONTRIBITORY XEGLIGEXCE — TrAIX RUXXIXG BACKWARDS OBSTRUCTION OF 
 
 VIEW — Failure to ixjok axd listen. 
 
 When a railway company, directly or through its employees, has taken 
 all possible and reasonable precautionary measures, it is ipso facto exempt 
 from any responsibility. 
 
 Villeneuve v. Can. Pac. Ry. Co., 2 Can. Ry. Cas. 360, 21 Que. S.C. 422. 
 
 [Referred to in Girard v. Quebec & Lake St. John Ry. Co., 25 Que. 
 S.C. 247.] 
 
 Contributory negligence — Failure to look — Train moving reversely. 
 
 The plaintiff while crossing the tracks of the G.T.R. Co. at Seaforth 
 was injured by a train moving reversely. After having crossed a siding 
 and the main track of the railway in safety the plaintiff while attempting 
 to cross the second siding Avithout looking drove into a train which was 
 crossing the highway: — Held (Boyd, C, MacMahon and Teetzel, JJ. ), 
 reversing the judgment entered upon the verdict of the jury at the trial, 
 that the plaintiff's failure to look was not a matter of contributory negli- 
 gence but was the real cause of the accident and the omission to give him 
 warning, if such was the case, was immaterial. 
 
 Wright V. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 202, 5 O.W.R. 802. 
 
 [Reversed in 12 O.L.R. 114, 5 Can. Ry. Cas. 361.] 
 
 Failure to look — Contributory negligence. 
 
 The plaintiff was injured by being run over at a highway crossing by 
 a train moving reversely, and brought this action to recover damages 
 for his injuries. Tlie jury found that the plaintiff's injury was caused 
 by the defendants' negligence in not using sufficient signals to attract his 
 attention, that the conductor was not oh the rear end of the car, and 
 that the plaintiff could not by the exercise of ordinary care have avoided 
 the injury. Tlie train was coming from the east, and the plaintiff on 
 approaching tlie track looked to the east and did not see it, his view 
 being obstructed, and, his attention being directed to a train standing at 
 the station to the west, did not again look to the east when, just before 
 attempting to cross, he might have seen the train approaching: — Held, 
 that it was not so clearly manifest that the plaintiff was the cause of his 
 own injury that there was nothing to leave to the jury; although the 
 plaintiff might be guilty of some neglect in approaching the track, it was 
 for the jury to say whether the defendants might not still have avoided 
 the accident if they had discharged their statutory duty; the case was 
 properly left to the jury; and their findings were sufficient to support 
 a verdict for the plaintiff. Decision of a Divisional Court reversed. 
 
 Wright v. Grand Trunk Ry. Co., 5 Can. R. Cas. 361, 12 O.L.R. 114. 
 
 [Referred to in Jones v. Toronto, etc., R. Co., 20 O.L.R. 71; Cooper 
 V. London Street Ry. Co., 14 Can. Ry. Cas. 91, 5 D.L.R. 198.] 
 
 Looking out — Whistling and ringing bell. 
 
 Plaintiff was driving a buggy on a road which crossed a railway. There 
 
CROSSIXG INJURIES. 1S9 
 
 iras eridence that the night was Terr dark, the landmarks beino: indis- 
 tinguishaMe; that he was watching to keep on the highway, to avoid 
 other Tehicles, and was going faster than he thought he was. and not 
 knowing he was near it. came on the railway crossing before he expected 
 and was struck by a train, which bad not given the statut<Hy warning by 
 blowing a whistle or ringing a liell. as it approached the croi«»ing. There 
 was also evidence that had he looked he might have seen the headlight 
 of the advancing train, as the country was flat, and only one obstacle, 
 an orchard and s<Mne trees, near the crosi^ing: — Held, that the c-a>e should 
 not have been withdrawn from the jury, and a nonsuit was set aside 
 and a new trial granted. 
 
 Champagne v. Grand Trunk Ry. Co.. 4 Can. Ry. Cas. 207, 9 O.LJL 589. 
 
 [Referred to in London & Western Trusts Co. v. Lake Erie, etc„ Ry. Co., 
 12 OX.R. 28.] 
 
 FaILITKE to IjOOK foe TRAIX COXTBIBTTOBT XEGUGEXCE. 
 
 The plaintiff was injured by being struck by the engine of a train of the 
 defendants while crossing their trade at a level highway crossing. Had 
 he looked, be could have seen the approach of the train, but he did not 
 look. There was some evidence that the usual statutory signals of the 
 approach of the train were not given. The plaintiff sought to recover 
 damages for his injuries.: — Held, not a case which could be withdraii~n 
 from the jury. The defence that the plaintiff should have locked out for 
 the train was one of contributory negligence, and must be left to the jury. 
 [Morrow v. Can. Pac. Ry. Co., '2I A.R. (Ont.) 149, and Vallee t. Grand 
 Trunk Ry. Co., 1 O.L.R. 224. followed.] 
 
 Sims et aL v. Grand Trunk Ry. Co., 5 Can. Ry. Cas. 82. 10 OXJL 330. 
 
 [Affirmed in 12 0-L-R. 39, 5 Can. Ry. Cas. 352: reversed in S Can. Ry. 
 Cms. 61; distinguished in Tinsley v. Toronto Rj. Co., 15 OJLIL 438, 8 
 Can. Rt. Cas. 69.] 
 
 FaILCTE to IX)0K fob TBATX — C0XT«IBl-nWT :rBGXJGEXCK. 
 
 The infant plaintiff was injured by being struck by the engine of a train 
 of the defendants while crossing their track at a level highway crossing. 
 Had he looked, he could have seen the approach of the train, but he did 
 not look. There was some evidence that the usual statutory signals of 
 the approach of the train were not given. The infant plaintiff sought to 
 recover damages for his injuries, and the adult plaintiff, the infant's 
 father, claimed damages for loss and expense incurred by him in conse- 
 quence of the injuries: — Held, affirming the decision of Street. J.. 10 OX-R. 
 330. 5 Can. Ry. Cas. 82. that the case would not have been withdrawn 
 from the jury; but that the findings were opposed to the great weight of 
 evidence, and the damages recovered by the father excessive: and there- 
 fore there should lie a new trial. 
 
 Sims et al. v. Grand Trunk Ry. Co., 5 Can. Ry. Gas. 352, 12 OX.R. 39. 
 
 [Reversed in 8 Can. Ry. Cas. 61.] 
 
 Level ckossl^g — SxATcrtwr signals. 
 
 S. sustained injuries through nmning into the engine of a railway train 
 while he was riding a bicycle over a level highway crossing. On the trial 
 of bis action to recover damages, his witnesses stated that they had not 
 heard the whistle sounded nor the bell of the engine rung, and he ad- 
 mitted that he had not taken any precautions to ascertain whether he 
 eonld cross the track in safety. The evidence for the defense was positive 
 as to the statutory signals being properly given, as well as other warnings 
 of danger: — Held, per Fitqtatrick, C.J., and Duff J., that the question was 
 
190 cRossmG i:njuries. 
 
 not as to the credibility of the witnesses on either side, but whether the 
 cliaracter of tlie evidence for the plaintiffs could, in a reasonable view of 
 the whole evidence adduced, be held to countervail the direct and positive 
 testimony on behalf of the defendants, and, as it could not, the findinps 
 by the jury that the company had been puilty of negligence in failing to 
 give the statutory signals were against the weight of evidence and unrea- 
 sonable. Per Girouard, J., that S. was guilty of contributory negligence 
 in failing to take proper precautions to avoid the accident and the action 
 should be dismissed. [Railroad Co. v. Houston, 9.1 U.S.R. 697, referred 
 to.] The judgment appealed from was reversed and a new trial ordered, 
 Idington and Maelennan, JJ., dissenting. 
 
 Grand Trunk Ry. Co. v. Sims, 8 Can. Ry, Cas. 61. 
 
 [Distinguished in Tinsley v. Toronto Ry. Co., 15 O.L.R. 438, 8 Can. Ry. 
 Cas. 09.] 
 
 FArr.tKE TO ix)OK — Contributory negligence. 
 
 In an action under the Fatal Accidents Act to recover damages for the 
 death of a man who was struck by a liglit engine of the defendants when 
 attempting to cross their track in a waggon with horses, it appeared that 
 the deceased on approaching tlie track looked both ways, but did not 
 look again just before crossing when he could have seen the engine. The 
 jury found that the whistle was not sounded nor the Ijell rung, that such 
 neglect was the proximate cause of the injury, and that the deceased could 
 not by the exercise of ordinary care have avoided the injury: — Held, that 
 the omission to look again was not such a circumstance as would have 
 justifie<l withdrawing the case from the jury; and a judgment for the 
 plaintiffs upon the findings should not be disturbed. Decision of Mere- 
 dith. J., affirmed. 
 
 iMisener et al. v. Wabash Ry. Co., .5 Can. Ry. Cas. 350. 12 O.L.R. 71. 
 
 [Affirmed in 38 Can. S.C.R. 94. (an. Ry. Cas. 70; referred to in Jones 
 V. Toronto, etc., Ry. Co.. 20 O.L.R. 71.] 
 
 Crossing at acute angle — Signals and warnings — Failure to look. 
 
 M. attempted to drive over a railway track which crossed the highway 
 at an acute angle where his back was almost turned to a train coming 
 from one direction. On approaching the track he looked both ways, but 
 did not lo<jk again just before crossing when he could have seen an engine 
 approaching which struck his team and he was killed. Ia an action by 
 his widow and children the jury foiuid that the statutory warnings liad 
 not been given and a verdict was given for the plaintiffs and affirmed by 
 the Court of Appeal: — Held, affirming the judgment of the Court of Ap- 
 peal (12 Ont. L.R. 71), Fitzpatrick, C.J., hesitante, tliat the findings of 
 the jury were not such as could not have been reached by reasonable men 
 and tlie verdict was justified. 
 
 Wabash Ry. Co. v. Misener, etc., Can. Ry. Cas. 70. 38 Can. S.C.R. 94. 
 
 [Referred to in Hansen v. Can. Pac. Ry. Co.. 6 Terr. L.R. 420; Jones 
 V. Toronto, etc.. Ry. Co., 20 O.L.R. 71; see Andreas v. Can. Pac. Ry. Co., 
 5 Can. Ry. Cas. 440, 450, 37 Can. S.C.R. 1, affirming 2 W.L.R. 249; followed 
 in Doyle v. Can. Northern R. Co., 46 D.L.R. 135, 24 Can. Ry. Cas. 319.] 
 
 Foggy weather — Contributory negligence. 
 
 The defendants' railway ran east and west through the plaintiff's farm. 
 The dwelling house was on a hill about 330 feet north of the railway 
 track and standing about twenty feet from the highway leading to and 
 across the railway track. There was nothing to obstruct the view in 
 coming from the plaintiff's house to the crossing for a considerable dis- 
 
CROSSLNG INJURIES. 191 
 
 taace oa ehlier side. Tiw down grade of the highway is very slight for 
 the last forty or fifty feet from the track. The morning train coming 
 from Eloia, west of the plaintifl^s farm, doe to rross the highway three 
 or four luantes before nine a. m^ was eight niinates late on the morning 
 in qnesUoa. The plaintiff before leaving his hoa>e that morning saw 
 that it was ten or fifteen minutes after nine and concluded that the train 
 must have passed without any one noticing it. In two or three minutes he 
 heard a long whistle dmoting a whistle fw a station which he concluded 
 was for Belwood Station, distant three miles to the north-ea>t and there- 
 fore thoo^t the train had passed over the highway at his farm. The 
 whistle he heard, however, was to the south-west as there was no other 
 train oa the line and it pas^sed across the highway a few minutes later. 
 Shortly after this his >on Byron, who intended going to a farm owned by 
 the plaintiff across the railway track asked his father if the train had 
 passed, who replied it must have passed, as it was nearly fifteen minutes 
 past nine when he left the house. Byron then wait into the bourse and left 
 it with his brother -James, a lad of twelve years old. to cross the rail- 
 way tiad:. A few minutes after Byron had left the plaintiff was standing 
 near the bam, beside the house, when he heard the train rush eastward 
 ikroo^ the mist, but he heard no whistle or bell. The morning was 
 foggjr aad the plaintiff stated a person couM not see an object at a greater 
 distaaee than 37 yards. After the accident the plaintiff was notified and 
 at onee went to tbe crossing where he found Byron on the eastern half 
 of the highway about two feet from the north rail of the track. He was 
 tak«i home and died shortly afterwards, remaining perfectly conscious 
 meanwhile. According to the statement of the deceased, made to his 
 father, he was some yards from the track when he heard the noise of tbe 
 train and the steam from the engine as it passed, but was unable to stop 
 and was struck by the step of the last coach. A motion for a nonsuit at 
 the close of the plaintiff's case was refused and the jury brought in a 
 verdict for ^.000 in favotir of the plaintiff, finding the defendants guilty 
 of negligence is not giving the statutory signals, that the injury was 
 caused by the defendants' n<^ligence. and that tbe deceased was not guilty 
 of negligence and could not by the exercise of reasonable care have avoided 
 the accident. The Divisional Court dismissed the defendants' appeal, hold- 
 ing that the case could not have been withdrawn from tbe jury. Mac- 
 Mahon, J., dissenting, held that on tbe admission made by the deceased 
 that he heard the train coming and did not stop or could not stop, there 
 was nothing to be left to the jury and the motion for nonsuit should have 
 prevailed. The Court of Appeal allowed the defendants' appeal and dis- 
 missed the action. Per Osier, .J. A., agreeing with MacAIahon. J.: — ^The 
 deceased according to the evidoice was the author of his own injury, the 
 aceidmt could only be attributed to his negligence, and not to the nt-gli- 
 gence of the defendants in omitting, if they did omit, to sound the liell 
 or whistle. Per Meredith, JJk.: — ^Tbe plaintiff should not have been non- 
 suited liut there was no reasonable evidence upon which the jury could 
 find that there was not contributory n^igence. The evidence shewed 
 that the deceased was to have the farm on the father's death, in the 
 meantime they were to be partners, and the son was to get what he needed 
 out of the common fund, the plaintiff has proved no pecuniary loss and 
 the action must fail on that ground also. 
 
 Moir V. Can. Pac. Ry. Co.. 7 Can. Ry. Cas. 380, 10 O.W.R. 41-1. 
 
 CoXTWBrrffltT XEGLIGEVCE — DtTT TO STOP. LOOK AXD USTKS. 
 
 Although a railway company is negligent in leaving cars standing upon 
 a side track at a public crossing in such a way as to obstruct the public 
 
192 CKOSSIXG INJUKIES. 
 
 view of trains approaching the crossing on the inain track, still a person 
 operating an automobile over the crossing is guilty of such contributory 
 negligence as will bar a recovery against the railwaj- company for injuries 
 sustained by reaso'n of a collision with one of its trains if, when approach- 
 ing the track, knowing that traiusi, yard engines and hand cars were 
 liable to pass at any moment, and finding his view obstructed by the stand- 
 ing ears and realizing the danger, he fails to reduce the speed of the 
 automobile which lie was operating, and fails to exercise care both by 
 looking and listening, 
 
 Campbell v. C.N.R. Co. (Man.), 9 D.L.R. 777, ll Can. Ry. Cas. 31. 
 
 [Reversed in 12 D.L.R. 272, 23 Man. L.R. 385.] 
 
 Obstructing view — Coixisiox with automobile, 
 
 A railway company that permits the end of a string of freight cars to 
 project into a highway for some tirae, in violation of s. 270 of the 
 Railway Act, 1906, so as to obstruct the public view of approaching trains, 
 is liable for a collision between an engine and an automobile driven by 
 the plaintiff who, although he exercised due care, was unable, because of 
 such obstruction, to see the engine in time to avoid the collision. It is not 
 contributory negligence to drive an automobile across a railway track at 
 a speed of eight miles an hour at a public highway crossing, although the 
 plaintiff knew that trains and engines were liable to pass at any time, 
 where, by reason of cars negligently left projecting into the highway, it 
 was impossible for him to discover the approach of an engine, although the 
 statutory signals were given, where the plaintiff and those riding with him 
 looked and listened before going upon the track witliout hearing the engine, 
 which was traveling "light." [Campbell v. Can. Northern Ry. Co., 9 
 D.L.R. 777, 15 Can. Ry, Cas, 31, reversed,] 
 
 Campbell v. Can, Northern Ry, Co, (No. 2), 12 D,L,R, 272, 15 Can, Ry. 
 Cas, 357, 23 Man, L,R. 385. 
 
 Person on track — Contributory XEtiLioENCE — Licensee. 
 
 A railway company is not answerable for the death of a person who, in 
 possession of his faculties of seeing and hearing, walks along a railway 
 track without looking for an approaching train which he could have 
 seen by the exercise of the most ordinary care, A licensee who walks 
 along a railway track assumes all risk of injury from being struck by 
 trains. 
 
 Hinrich v. Can, Pac, Ry, Co., 15 Can, Ry. Cas. 393, 12 D.L.R. 307. 
 
 "Look and listen" doctrine — Crossing the tracks. 
 
 Whether or not a person about to cross a railway track should have 
 looked more than once to see if he could make the crossing in safety 
 is a question of fact to be passt>d upon by the jury in the particular 
 circumstances of each case. [Ke (Jrand Trunk Ry. Co. v. McAlpine, 13 
 D.L.R. 618, 16 Can. Ry. Cas. 180, followed.] 
 
 MacKenzie v. B. C. Electric Ry. Co., 16 Can, Ry. Cas. 337. 35 D.L.R. 530. 
 
 Opeb.\tion — Negligence — Excessive speed — Injury to trespasser. 
 
 A railway company may be liable for injury to a trespasser upon the 
 right-of-way in breach of s. 408 of the Railway Act, R.S.C. 1906, c, 
 37, if their engine driver neglected to apply the emergency brakes at the 
 time he became aware of the danger of accident when he first noticed 
 
CROSSIXG IXJURIES. 193 
 
 deen»d attemptin* to craee flie tnds. [Hnrii^ t. C J>. Rt. Co^ 12 DXJL 
 367. 15 Can. By. Cas. 393, afiimed.] 
 
 Cam. ¥ac. Rr. Co. t. Hmriek, IS Cam. Rr. Cbs. 303, 4S Gu. S.CJK. 557. 
 IS DXJL 47£ 
 
 VlBTBaPTr — SrATCTtMT DCTT ZMFOSED OS BAII.VitT CO. F^HXYE TO CDM- 
 
 M-T vfTH — Dnr or tsateisx affboachtsg tkack. 
 
 Wkere a statntorr dotr is imposed ob a raihrar conpaar to sooad 
 tke vlustle and rin* the bril of the ea^:iae viM« a traia is approadiiB^ 
 a ki|^nv at Wvl rail, a trareler Ins a li^t to expect this to be done. 
 a«d is Bot required to look to see if a traia is af^proadyB^. Tlie onissiaB 
 to carrr out tlie statutory doty imposed amooats to aegii^eiKe aad 
 iiaJtrii ike eompaar liaUe for resaltii^ iajmnr. [Graad Tnmk By. Col t. 
 ItrAlpf, [1913] jIc. S3S. 13 DX^. 618, 16 Can. By. Ca& 1S6; Smith t. 
 So««li Eutern By. Co„ [1S96] 1 Q.B. 178; Waln^ By. Col t. ^Siseaer. 38 
 Caa. S.CJL 9*. at p. 100. 6 Caa. Br. Ca*. 70: Bex r. Broad. [19151 
 JlC. 1110, followed.] 
 
 Dorie t. Can. Xortbern Bv. Cou. 46 DX.B. 135. 24 CkiL By. Ca& 319. 
 
 SHrynxG cak^ — Wast «w wakx^iws A:n> watchmat. 
 
 B_, ia drifia^ towards kis hooM on a aigkt ia Sept«nher. had to errKS a 
 railvaT track betve» aine aad ten o'dodt. on a lerel eroesiag aear a 
 >tatioB. Shortly brfore a train had arriwd from the ve«t arhiek had to 
 he tuiaed for a trip back ia the suae directioB. and also to jAtk vp a 
 car OB a sJdia^. After soaw switchiap the traia was made iq>. 
 joBfc before comia^ to the lerel eroBuag the eaji^iBe and teadcr wete 
 from the ears to proceed to Ae rovadhoiise. B. saw tte CBfiiMe 
 paaa hat apparently failed to pereeive the cars, aad started to ctose^ whca 
 he was strark by the latter aad killed. There was ao warnia^ of the 
 ■ppioath of the tan which strack hiai. Ia aa action by hi« widow imder 
 Xmrd GampheU'« Art the jury fovad that the railway company was fmilty 
 off atg Ugum e^ aad that a man should have been on the croasii^ whea 
 m aiing the switch to warn the poUic. A Todict for the plaiatiff was 
 amtaiaed by the Court oi Appeal: — Hdd, aflSrmiag the jadgmeat of the 
 Gonrt of A|^>eal. G«yime. J., dissenting; it was ptop e ili left to the jary 
 ta determine whether w not. under the epedal eiiuimaia atea, it was 
 mil iiaaij for the company to take greater p i eca uti oaa thaa it did and 
 to he laBch more careful than in ordinary cases where these conditioas 
 did aot exist; aad that the case did not raise the qnestiim of the juiy^s 
 rifiht to determine whether or not a railway eompany could be iiaa 
 pelled to place watchaBcn upon lev«4 highway croesii^is to wara pe rs a aa 
 about to cross the line. 
 
 Lake Erie 4 Detroit Biver By. Col t. Barclay. 30 Caa. S.CLB. 360. 
 
 [Disensised in Champagae r. Grand Trunk By. Co.. 4 Can. By. Ca*. 209. 
 9 OJa^ 589: distinguished in Grand Trunk By. Co. r. lIcKay. 34 Caa. 
 SjCB- 81: f<rflowcd in Burtch t. Caa. Pac. By. Co.. 13 O-LJL 02.] 
 
 Xbgugexce — DA\GEaocs coxniTiox or caossixc. 
 
 l^liere the railway traffic at the musing of a highway was rery great, 
 and there was no gate, guardian, lamp, or other protection, for the public, 
 although the railway eMapany had been notified of the dangeioas eoadi- 
 tioa of the croa^ii^. the compaay was responsible aadrr a. 288 of the Bail- 
 Can. By. Ll Dig.— 13. 
 
194 CROSSIisG INJURIES. 
 
 way Act, 1888, for a collision which caused the death of plaintiflPs son, 
 and which occurred without any fault on his part. 
 
 Girouard v. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 343, 19 Que. S.C. 539. 
 
 Speed — Gates a>'d wATcinrAX — Stati'tory requirements. 
 
 By the Railway Act, 1888, s. 197, as amen '-d by 55 & 56 Vict. c. 27, s. 6, 
 it is provided that "at every public road crossing at rail level of the rail- 
 way, the fence on both sides of the track shall be turned in to the cattle 
 guards, so as to allow of tlie safe passage of trains." By s. 259 of the 
 former Act, as amended by s. 8 of the latter, it is provided that "no loco- 
 motive or railway engine shall pass in or through any thickly peopled por- 
 tion of any city, town or village, at a speed greater than six miles an 
 hour, unless the track is fenced in the manner prescribed by this Act: — 
 Meld, that the words "in the manner prescribed by this Act" do not refer 
 to the turning in of the fence to the cattle guards; and, althougii no other 
 fence is specifically prescribed in the railway legislation, the meaning of 
 8. 259 is, that unless the track, including tlie crossing, is properly fenced 
 or otherwise protected so as to efficiently warn or bar the traveler while 
 a train is crossing or immediately about to cross, the maximum speed 
 at which a train may cross in thickly peopled portions of cities, towns 
 and villages, is six miles an hour. The iilaintiff was struck by a train at 
 a crossing over a main street in an incorporated town, not protected by a 
 gate or watchman. In an action to recover damages for his injuries, 
 the jury found that the train was traveling at the rate of twenty miles 
 an hour, and that tlie injury complained of was caused by this excessive 
 speed, coupled with the absence of proper protection at the crossing, and 
 without negligence on the plaintiff's part; and the Court, though there was 
 strong evidence of contributory negligence, declined to interfere. 
 McKay v. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 42, 5 O.L.R. 313. 
 [Reversed in 34 Can. S.C.R. 81, 3 Can. Ry. Cas. 52.] 
 
 Protection at crossings — Speed of trains. 
 
 The Railway Act, 1888, ss. 197, 259, as amended by 55 & 56 Vict. c. 
 26 (D.), ss. 6, 8, do not require that railway companies shall erect fences 
 and gates at highway crossings in thickly peopled parts of cities, towns, 
 and villages before running their trains across such highways at a 
 greater speed than six miles an hour. The power to determine whether 
 gates should be placed at highway crossings rests with the Railway Com- 
 mittee and not with a jury. [Lake Erie, etc., Ry. Co. v. Barclay, 30 Can. 
 S.C.R. 360, distinguished.] 
 
 McKay v. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 52, 34 Can. S.C.R. 81. 
 
 [Followed in Tabb v. Grand Trunk Ry. Co., 8 O.L.R. 514; Clark v. 
 Can. Pac. Ry. Co., 14 Can. Ry. Cas. 51. 2 D.L.R. 331; adhered to Grand 
 Trunk Ry. Co. v. Hainer, 36 Can. S.C.R. 183; Grand Trunk Ry. Co. v. 
 Perrault, 36 Can. S.C.R. 678; Lake Erie & D.R. Ry. Co. v. Marsh, 35 Can. 
 S.C.R. 198; discussed in Perrault v. Grand Tnmk Ry. Co., 14 Que. K.B. 
 248, 260; distinguished in Burtch v. Can. Pac. Ry. Co', 13 O.L.R. 632; fol- 
 lowed in Carrier v. St. Henri, 30 Que. S.C.R. 47; Grand Trunk Ry. Co. v. 
 Daoust, 14 Que. K.B. 551; Quebec & Lake St. John Ry. Co. v. Girard, 15 
 Que. K.B. 51; referred to in R. v. Grand Trunk Ry. Co., 17 O.L.R. 601; 
 Smith v. Niagara & St. Catharines Ry. Co., 9 O.L.R. 158; Wabash Ry. Co. 
 V. Misener, 6 Can. Ry. Cas. 70, 38 Can. S.C.R. 99; relied on in Girard v. 
 Quebec & Lake St. John Ry. Co., 25 Que. S. C. 248.] 
 
 Public park — Gate and watchman at railway crossing. 
 
 Within a public park maintained and controlled by the defendants, a 
 
CROSSLN'G INJURIES. 195 
 
 innnici|Mi1 corporation, thex erected a gate near a railvar eroeBiag. and 
 kept A watdiinan, to open the gate when tliere ira$ bo danger from passing 
 trains, and to elo$e it when trains were approarhing the crossing. The 
 plaintiff, driring through the park, de^^iring to pa»s through the gate to tbe 
 kighvar bejond tlie railwaj. and finding the gate (^>en. took that a$ an 
 intunatioD that no train was approaching, and att«npted to cro^s the rail- 
 way, when be was struck by a train and injured: — Held, that the defend- 
 ants owed him no duty, and were not liable in damages for his injuries. 
 
 Soulsby T. Toronto. 7 Can. Rv. Cas. 6.5. 15 OX.R. 13. 
 
 [Referred to in Woodbum Milling Co. v. Grand Trunk Rt. Co.. 19 
 O-LJl. 276.] 
 
 Fadlfbe to fksck and pmjtbct — CiossixG ymrt a tbtighwat. 
 
 A crossing built h\ a railway company and designated by a sign as a 
 ''railway crossing^ which tlie public is permitted to use. but the opening 
 of which has not been sanctioned by the Board is not a highway under 
 the Railway Act, 1906. ss. 242, 243. so as to impose a duty on the rail- 
 way company as to construction and maintenance of fences and the pro- 
 tection of highways, and, therefore, cannot be charged with negligence for 
 any omission to fence or for defective approaches, particularly where the 
 crossing had been previously used safely by the same person and others. 
 
 Bird T. Can. Pac. Ry. Co.". 7 Can. Ry.' Ca's^ 195. 6 W.LuR. 393. 
 
 [Reversed in 1 S-lJi. 266. 8 Can. Ry. Cas. 314.] 
 
 CbOSSI:XC XOT ArTHOUZES BT BOARD — Demcatios. 
 
 When a railway company establi^^hes a crossing, not authorixed by the 
 Board, over its railway, at a point other than on a highway and invites 
 the public to use such crossing, it is the duty of the company to take every 
 precantion for the safety of the public using such crossing, and in view 
 of the statutory provisions requiring the company to fence the approaches 
 to a railway crossing over a highway properly authorized, the failure 
 of the company to so fence an authorized crossing constitutes such negli- 
 gence as will render the company liable for injury to any person sustained 
 on such crossing when the proximate cause of such injury is the failure 
 of the company to fence. 7 Can. Ry. Cas. 195. 6 WiJl. 393. reversed. 
 
 Bird V. Can'. Pac. Ry. Co.. 8 Can. Ry. Cas. 314, 1 SJ-R. 266. 
 
 EXTESIXG BETWEEN GATES CoNTSIBrTOKT XEGUCKNCE — FaILTKE AS TO 
 
 WABXrXGS AND FUIGJIES. 
 
 Where the erection of gates at a level highway crossing is not auth- 
 orized or required by an order of the Board, the lowering of the gates is but 
 a warning to persons desiring to cross the trades that it is dangerous to 
 do so. and the entry of a person upon the portion of the highway between 
 the gates, when the gates are down, is not as a matter of law. or per se. 
 negligence, disentitling him to recover damages for injuries sustained by 
 him while upon that portion of the highway, by reason of the n^ligence 
 and breach of duty of the railway company as to signals and warnings. 
 
 Garside v. Grand Trunk Rv. Co.. 18 Canl Rv. Cas. 272. 23 DXJL 463. 
 
 CROSSINGS. 
 See Farm Crossings: Highway Crossings: Railway Crossings; Junctions. 
 
 DOMISIOX a:XD PBOVINCIAL BAILWAT — .JrRISDICTIOS — DOCBLE TBACK CBOSS- 
 
 ixG — Tracks axd cosxbctions — Cost. 
 Tbe Board has jurisdiction under ss. 8, 29, 32, 227 of the Railway Act, 
 
19G CUSTOMS DUTIES. 
 
 1906, to order a single track crossing (provided under an order of the 
 Railway Committee) of a Dominion railway by a Provincial street rail- 
 way, to be changed to a double track crossing, in the public interest. The 
 applicant which made the application for the double track crossing was 
 ordered to furnish the necessary diamonds, and the street railway com- 
 pany to pay interest at 7 per cent upon the expense incurred by the 
 applicant, the street railway company to lay the necessary tracks and con- 
 nections. 
 
 London v. London Street Ry. Co., 19 Can. Ry. Cas. 436. 
 
 [Followed in Midland Ry, Co. v. Grand Trunk Pacific Ry. Co., 23 Can. 
 Ry. Cas. 80.] 
 
 JuBiSDicTioN — Dominion railway crossing provinciai.. 
 
 The Board has jurisdiction to regulate the crossing of a Provincial 
 over a Dominion railway at the point of intersection. [Lake Erie & 
 Northern Ry. Co. v. Brantford Street Ry. Co., 16 Can. Ry. Cas. 244, at p. 
 245; Attorney-General for Alberta v. Attorney-General for Canada, [1915] 
 A.C. 363, 19 Can. Ry. Cas. 153; City of London v. London Street Ry. Co., 
 19 Can. Ry. Cas. 436, followed.] 
 
 Midland Ry. Co. v. Grand Trunk ]':uific Ry. Co., 23 Can. Ry. Cas. 80. 
 
 CROWN RAILWAYS. 
 
 See Government Railways. 
 
 CULVERTS. 
 
 See Drainage. 
 
 Duty to fence, see Farm Crossings. 
 
 CUSTOMS DUTIES. 
 
 EXErMPTION FROSI Dt'TY — StEEL RAILS FOB USE ON STREET RAILWAYS. 
 
 Tlie exemption from duty in 50 & 51 Vict. c. 39, item 173, of "steel rails 
 weighing not less than twenty-five pounds per lineal yard, for use on 
 railway tracks," does not apply to rails to be used for street railways, 
 which are subject to duty as 'Tails for railways and tramways of any 
 form," under item 88. Strong, C.J., and King, J., dissenting. 
 
 Toronto Ry. Co. v. The Queen, 25 Can. S.C.R. 24. 
 
 [Reversed in [1896] A. C. 551.] 
 
 Imported steel rail.s — Street railways. 
 
 Although there may be in various Canadian Acts and for other purposes 
 substantial distinctions between railways or railway tracks and street rail- 
 ways and tramways, yet, for the purpose of separating free and dutiable 
 articles, such distinction is not maintained in Canadian Act, 50 & 51 
 Vict. c. 39. and its tliree predecessors. According to the true construction 
 of that Act (see s. 1, item 88, and s. 2. item 173). the question whether 
 imported steel rails are taxed or free depends solelj- upon their weight, not 
 upon the character of the railway track for which they are intended. 25 
 Can. S.C.R. 24, allirming 4 Can. Ex. 262, reversed. 
 
 Toronto Ry. Co. v. The Queen, [1890] A.C. 551. 
 
 [Approved in Edison Gen. Elec. Co. v. Edmonds, 4 B.C.R. 367; com- 
 mented on in Ross v. The King, 32 Can. S.C.R. 538.] 
 
DA31AGES. 197 
 
 ¥*mxxis-wcn:z stars. 
 
 A f orogB-lHdlt ship boo^t m tke Uuted States asd In^gU to Cauda 
 is UaUe to tke dnty iBposcd br the Caamdiju CttstOMs Tariff Att, 1897, 
 s. -L [33 Cam. S.C.R. 277, affinvd.] 
 
 AlgiMBa Connl Bj. Co. t. Ihe Rii^, [1903] AXL 478u 
 
 ACKST FOB Cr:?IOm$ — COXTEKSIOX or VOTET FCKSISHEB FOB rXTMEXT OF 
 
 BCTiES — Tjamiht OF TacscsrxL. 
 
 Where, without the kBovleid^ of a raihn.T cwpaay aa agoA, appoiated 
 hr it Bwfer ILSSL !:$§«. e. 3±. & 1^7. etc^ for mitiwii pvpoaes, ky a sy»- 
 tcat of frauds ia the aade i pa if t to the Orama of CBsttaaas dati^ «»•- 
 Tcrted to his on ase bobct^ furaished hjr the tamfamj for tte paiaHuit 
 of the rightfal aaoaat of daties. the coapaaj- is a a sw a a hle to the Crowa 
 iqtoa the discoray of the fraad. for dades oa all goods, vhich. bjr rra-noa 
 (oi the agemlts trmmd. were mat dedaivd or catned aad the castas paid 
 thcnna, siaee the a^nUrs acts ia which the finads were eoawtted were 
 aithia the seope of his cHplov-Bcat. Jlb iatnaal rale of a castons hoaae 
 |«ohibitipg the raAier fnm faraishi^ chaape bey o ad fiftr ccata, is aot a 
 liwtatioa of his aath <a iti snfliaeat to lelieie a eoaipaar from liahOity for 
 aapaid daties oa piods eatend fraadalcatly hj- its dafy appnated castaaas 
 ** iat . wheie the eoaapaai- foraifhnd cheqae*' far the cottee t ■aaiaat of 
 daties aad the eaduer ittaiatd to the a«!eat. who eoaT>nrted it to his owa 
 ase, the diffnvare b e tae ita the aaoaat ai the chelae aad the daties aeto- 
 altr paid, siace the a giaf s aathoritr was hntad e aoo g^ to iaclade the 
 reeeipt of saeh aoan^. Ia aa aetioa hjr the Crowa to r«nn«r caatnMS 
 daties oa piods aot ca te ied or dcHaivd, the oaas nests apoa the ih, feadaat 
 to shew- pajawat aad fall maapliaace with the itqaiw eata of the Cas- 
 tMBs Jkct. [Uonrd t. Grace, [1912] A.C. 73»; Bractieabr v. TleHpcraaee 
 Pcnaaacat Baildii^ Societj, [ISK] A.a 173; F17 t. i^idlie, [1912] 3 
 KJL 2»>. spcciaUr re^nrcd to; Erb ▼. G.W.R. C^ S Caa. SjOB. 179; 
 CSty Baak t. HarlMNir Conansiaaen of MoatnaL 1 LlCJT. S8B, 
 sailed.) 
 
 The Kia« t. Caa. Pae. Rj. Cou 11 DXJL C81, 14 Caa. Ex. ISH 
 
 l>AlfAGRR 
 
 Act. 
 
 See Expropriatioa. 
 
 Huaa^es ia lieo of iajoactiai. see lajoactiaa. 
 
 nuages caased hjr operatioa of p^mwrnrnt railwajs. an Gocvnuaeat 
 Bailwaja. 
 
 Latd CaBpbelTs AH. Measure aad apfMrtioasot of daBHisc!& 2 Caa. 
 Et. Cbs. is. 
 
 laadeqiaaeT of daaasesL 3 Caa. Rt. Cas. 2S7. 
 DaaM^es for aemwi shock. 4 Caal Rr. Ca*. 231- 
 naauges for peraoaal iajoriee. ^ Caa. Rjr. Cas. 123. 
 
IDS DAMAGES. 
 
 Damages for deatli and personal injury. 9 Can. Ry. Cas. 247. 
 Compensation for injuries caused by operation of railway. 20 Can. Ry. 
 Cas. 109. 
 
 A. Assessment; Excessiveness. 
 By whom damages asskssf.d — Jiikje ok jiry — Exces.siveness. 
 
 The words "the Court may give such damages," in consolidated ordi- 
 nances, N.W.T. (1808) c. 48, s. ;j means tlie Judge at trial, or the Judge 
 and the jury, as the case may he. Semhle, a verdict of $4,.')00, awarded 
 to a widow for tlie death of her husband caused by the defendants' negli- 
 gence cannot be seriously excepted to. 
 
 Toll V. Can. Pac. Uy. Co., 1 Alta. L.R. 318. 8 Can. Ry. Cas. 294. 
 
 How damages assessed — Court or jury. 
 
 S. 3, c. 48 of the Con. Ord. N.W.T. providing that damages are to be de- 
 termined by the Court, means a "Court" consisting of a Judge and jury, 
 and the jury is the proper part of the Court to fix the amount of damages. 
 
 Andreas v. Can. Pac. Ry. Co.. 5 Can. Ry. Cas. 440, 2 VV.L.R. 24!). 
 
 [Affirmed in 5 Can. Ry. Cas. 450. 37 Can. S.C.R. 1.] 
 
 Remoteness — Dho'rivation of use. 
 
 Damages for breach of contract must be direct and none are recoverable 
 tliat are indirect or remote. Hence, where a carrier for hire loses a piece 
 of machinery, sent through him for repairs, the owner is not entitled to 
 recover from him, as damages, the loss incurred through having been de- 
 prived of the use of it for a season. 
 
 Thiauville v. Canadian Express Co., 33 Que. S.C. 403. 
 
 ►Substantial damages — Difeicuety in assessing. 
 
 Substantial damages may be awarded in spite of the fact that some 
 speculation and uncertainty is necessarily involved in the assessment there- 
 of. [Chaplin v. Hicks, [1911] 2 K.B. 78t!. followed.] 
 
 Wood v. Grand N'alley Ry. Co., 5 D.L.R. 428, 20 OJ..R. 441. 
 
 [Varied, and damages reduced, 16 Can. Ry. Cas. 220, 10 D.L.R. 726.] 
 
 Reference — Powers of clerk. 
 
 The clerk of a Court cannot, upon a reference to liim to ascertain the 
 plaintiff's damages, consider the question of tlie liability of the defendant 
 in the action, since that was settled by tlie order of reference. 
 
 I.avallee v. Can. Northern Ry. Co." (No. 2), 4 D.L.R. 376, 20 W.L.R. 
 547. 
 
 Assessment on refkkenc e. 
 
 If the clerk of a Court, on a reference to ascertain the plaintiff's dam- 
 ages, misconceiving his duty, hears evidence and, determining that the 
 defendant was not liable, refuses to assess damages in the plaintiff's fav- 
 our, the Supreme Court of Alberta may. on an application to vary the 
 clerk's report, .direct him to proceed witli the assessment of damages. 
 
 Lavellee v. Can. Northern Ry. Co. (No. 2), 4 D.L.R, 376, 20 W.L.R. 
 547. 
 
 MlSDIRFX'TIOX AS TO ASSESSMENT EXCESSIVE. 
 
 Where there was a misdirection as to the assessment of damages merely, 
 and it appeared to the Court that the damages assessed by tlie jury were 
 grossly excessive, the Supreme Court made a special order, applying 
 the principle of art. 503 C.C.P. directing that the appeal should 
 
DAMAGES. 199 
 
 be mllowed, and a new trial had to a»«e^ damages, mtleas the plaintiff con- 
 sented that the damages should be reduced to an amount mentioned. 
 
 C entral Vermont Ry. Co. t. Franchere. 35 Can. S.C.R. 68. 
 
 [Referred to in Revwick t. Gait Street Rv. Col, 11 OXJS. 168; Sadlier 
 v. Grand Trunk Rv. Co., 28 Que, S.C. 502.] 
 
 Review <w AMomrr bt Appkixate CorBT. 
 
 Where the damages awarded by the jury at the first trial were held to 
 be excessire and the Court of Appeal had ordered a new trial and the re- 
 sult of the new trial was a verdict for a still larger sum. the Court of 
 Appeal, upon an appeal from the second verdict, may itself fix the amount 
 of damages instead of sending the case back for a third trial before a jury 
 bv virtue of its statutorv powers, [See Annotation to this case.] 
 ' Taylor v. B.C. Elee. Ry'. Co., 1 D-L.R. 384, 19 Wi.R. 851. 
 
 [Affirmed in 8 D.L.R.724.] 
 
 EXCESSITEXESR DiSREGAKDrXG DIKECTIOX Oe COUBT. 
 
 To justify the setting aside of a verdict on the ground of excessive dam- 
 ages, the Appellate Court must find that the damages are so excessive that 
 twelve reascMiable men couM not have given them, or that the jury have 
 disr^arded some direction of the Judge or have considered topics which 
 they ought not to have considered, or have applied a wrong measure of 
 damages. [Praed v. Graham, 24 Q.B.D. 53. and Johnston v. Great West- 
 em Ry.. [1904] 2 K.B. 250. 73 L.JJ^-B. .568. 20 Times L.R. 455. applied.] 
 
 Taylor v. British Columbia Elec. Ry. Co., 1 DJLJt. 384. 19 WX.R. 851. 
 
 [Affirmed in 8 D.L.R. 724.] 
 
 Redcctiox bt Appeix.\te Coubt. 
 
 The rule that the Supreme Court of Canada will not interfere with the 
 judgment of a Provincial Court of Appeal reducing the quantum of dam- 
 ages assessed by the trial Court does not prevent interference in cases 
 where some element of damases for which no compensation is allowed by 
 law may have been given a place in the total of damages reached. [Praed 
 V. Graham. 24 Q.B.D. 53. considered: see also Johnston v. Great Western 
 Ry. Co., [1904] 2 K.B. 2.50. and Dunn v. Prescott Elevator Co., 26 A.R. 
 (Ont.i 389, 30 Can. S.C.R. 6-20.] (Dictum per Idington. J.) 
 
 Taylor t. British Columbia Elec. Ry. Co. (Xo. 2), 8 DJLR. 724. 
 
 Review of qcaxttm bt Appellate Cocbt. 
 
 The Supreme Court of Canada wUI not disturb a judgment of the Court 
 of Appeal of British Columbia on a mere question of quantum of dam- 
 ages, where that Court, by virtue of the power given to it by rule 869 (at 
 of the rules of the Supreme Court of British Columbia, has reduced a 
 verdict of the trial Coiu^ in an action for personal injuries arising out 
 of an accident. [Taylor v. British Columbia Elec. Rv. Co., 1 D.L.R. 384. 
 16 B.C.R. 420. affirmed.] 
 
 Taylor v. British Columbia Elee. Ry. Co. (Xo. 2), 8 D.L.R. 724. 
 
 Vabttxg assessmext ox befebexce. 
 
 The Supreme Court of Alberta cannot entertain an application to vary 
 the finding of a clerk of the Court on a reference to him to ascertain 
 damages, since that can be done only on an appeal from the final judg- 
 ment in the action. [Marson v. G.T.P. Ry. Co.. 17 WXuR. 693, on appeal. 
 1 DXlR. 850, 20 WXJL 161, foUowed.] 
 
 Lavallee v. Can. Northern Rv. Co. (Xo. 2), 4 DJLR. 376, 547, 4 Alta. 
 L.R. 245. 
 
200 DAMAGES. 
 
 Reduction by Appellate Court. 
 
 Where an action has been twice tried with a juiy, and upon the second 
 trial the jury have found in favour of tlie same party, but have reduced 
 the damages, a third trial will not be ordered merely because the tindings 
 of the jury at the second trial are contrary to what the Appellate Court 
 regards as the weight of evidence, if there is some evidence upon which 
 the verdict can be sustained. 
 
 Zufelt V. (an. Pac. Ey. Co., 7 D.L.R. 81, 4 O.W.N. .39. 
 
 Agreement fob compensation — Scope as to costs "inciukntal to the 
 reference." 
 
 Where a railway company agreed with a town corporation to pay the 
 latter any damages accruing by reason of the building of a bridge by the 
 railway com|)any, such damages to be ascertained in a summary manner 
 by a Referee appointed by the Board for the purpose, and subsequently 
 pursuant to this agreement an application was made to the Board and a 
 Referee appointed, in which order of appointment it was provided "that 
 the costs of and incidental to the reference, including those of the Referee 
 shall be in the discretion of the said Referee." the Referee has power to 
 award the costs of the application to the Board, notwithstanding the gen- 
 eral policy of the Board not to award costs of proceedings before it. 
 [Curry v. Can. Pac. Ry. Co., 13 Can. Ry. Cas. .31, criticized; Re Bronson 
 and Canada Atlantic Ry. Co., 13 P.R. (Ont.), 440, applied. See also Re 
 False Creek Flats Arbitration, 8 D.L.R. 922.] 
 
 Re Can. Pac. Ry. Co. and Walkerton, 10 D.L.R. 347, 15 Can. Ry. Cas. 
 85. 
 
 REDtrcTioN — Consent — New trial. 
 
 The Court of Appeal pronounced judgment dismissing the defendants' 
 appeal except upon the question of damages. It was held that the damages 
 assessed by the jury were excessive, and a new trial was ordered imless 
 the plaintiff would consent to a reduction. Tlie certificate of this judg- 
 ment not having issued, the Court reconsidered the matter, and, acting 
 under rule 786, directed a new trial confined to the question of the amount 
 of damages:— Held, following Watt v. Watt, []905] A.C. 115, that the 
 Court has no jurisdiction, without the defendants' consent, to make the 
 new trial dependent upon the consent of the plaintiff to reduce the dam- 
 ages. 
 
 Hockley v. Grand Trunk Ry. Co., 5 Can. Ry. Cas. 122, 10 O.L.R. 363. 
 
 Suspending the payment of damages to infant during minority. 
 
 The Court has the power, by its judgment, to order that a sum assessed 
 by a jury as the amount of damages sustained by the plaintiff, a minor 
 suing through his tutor in an action of tort or ex quasi-delicto, be paid, 
 in part at once, the remainder when he becomes of age, and not at all if he 
 dies before, and that the interest on such remainder be paid to his tutor 
 until he comes of age or dies during minority. 
 
 Montreal Street Ry. Co. v. Girard, 21 Que. K.B. 121. 
 
 Measure of compensation for breach of contracts to complete rail- 
 way. 
 
 The loss of benefits which would ordinarily accrue to merchants in the 
 transaction of their business from the construction of a line of railway 
 connecting with another railway the place where their respective Imsinosses 
 were being carried on, is not too remote to be considered in assessing dam- 
 
DAMAGES. 201 
 
 ages to such mercbants who purdia:sed bonds of the railway under an agree- 
 ment by the railway company to complete and operate the line in respect 
 of the company's failure so to do. [Candy v. Midland Ry. Co., 3S L.T. 
 ±26: Simpson t. London & X. W. Ry. Co., 1 Q.B.D. 274, 277, and Chaplin 
 T. Hid^, [19U] 2 K.B. 786, followed.] 
 
 Wood v. Grand VaUev Rv. Co., 16 t an. Ry. Cas. 220, 27 O.L..R. 556, 10 
 D.L.R. 726. 
 
 [AjSrmed in 16 D.L.R. 361.] 
 
 XOT ESCESSITE PEBSOXAt IXjrRIES CoXTtXCAt rSCAPACTTV VEKMCT OF 
 
 JX7KT — SrmCIESCT AXB CORRECTXESS OMISSIOX TO AXSWfX SOME 
 
 QCESTIOX. 
 
 The Terdict of a jury in an action for the recovery of damages arising 
 oat of a railway accident, which allows the plaintiff faged 45 and earning 
 $2,000 per annum i, besides the cost of his medical treatment. Sl.OOO for 
 past suffering. S1.500 for future suffering and medical attendance, and 
 $18,000 for other damages, is not excessire, when the evidence shews that 
 the injuries he has incurred have diminished his physical capacity one half 
 and he is likely to suffer from morbidness, insomnia, vertigo, etc, for the 
 rest of his life. The omission of the jury to find in what these damages 
 consist, and their nature, tmder some particular question which called 
 for same, is not ground for setting aside the verdict, when all this is suffi- 
 oently shewn in the answers to the other questions. 
 
 Cwa. Pac. Ry. Co. v. Roy, 17 Can. Ry. Cas. 46, 22 Que. K.B. 4.59. 
 
 APPEAI. — Rf3»rCTK)X OF DAMAGES. 
 
 An award of damages greater than the amount claimed in the pleadings 
 will be reduced on appeal. [Dntton v. Can. Xorthem Ry. Co., 23 D.L.R. 
 43. 19 Can. Ry. Cas. 72, affirmed except as to damages.] 
 
 Dutton V. Can. Xorthem Ry. Co, 21 Can. Ry. Cas. 294, 26 Man. R. 493, 
 30 D.L.R. 250. 
 
 ISJT«T TO BAH-WAT EXGEXEEB PeRMAJODTT rSCAPACTTT — PaHC AXD 8UF- 
 
 FE8IXG. 
 
 An award of $27,000 to a railway engineer aged 32. and earning a yearly 
 income of ^.122. for personal injuries incapacitating him for life, such 
 award being based on the pain and suffering and the pecuniary loss for 
 the duration of life, was held by a divided Court to be a fair compensation 
 under the circumstances. [Phillips v. L. & S.WJL Co., 5 Q.B.D. 78. 5 
 C.PJ>. 28<1: .Tohnston v. Great Western Ry. Co., [1904] 2 K.B. 250; Row- 
 ley V. L. 4 X.W. Ry. Co.. L.R. 8 Ex. Ch. 221, applied.] 
 
 'ja^son V. Can. Pac. Ry. Co. 24 D.L.R. 380. 
 
 Verdict — ^Excessive award — Pebsoxai. rxjnuES — Complete beparattox 
 
 Loss OF PBOSPBCnVE EARXIXGS PaIX AXD SrTFESIXG EVIDEXCE 
 
 MORTTART TABIDS PRACTICE ^XEW TRIAL 
 
 Where from the amount of the damages awarded and the circumstances 
 of the case, it does not appear that the jury took into cfmsideratinn mat- 
 ters which they should not have considereil. or applied a wrong measure of 
 damages, the verdict ought not to be set aside or a new trial directed sim- 
 ply because the amount of damages awarded may seem excessive to an 
 Appellate Court. Duff, J., dissented on the ground that a jury appreciat- 
 ing the evidence and making due allowance for the risk of accident apart 
 from n^ligence, in the hazardous pursuit in which the plaintiff was em- 
 ployed, could not have given the verdict in question. — Per Idington and 
 Anglin, JJ. The evidence of a witness testifying in regard to estimates 
 
202 DAMAGES. 
 
 based on mortuary tables in use by companies engaged in the business of 
 annuity insurance is admissible, quantum valeat, notwithstanding that 
 he may not be capable of explaining the basis upon which the tables had 
 been prepared. [Rowley v. London & North ^^■estern Ry. Co., L.R. 8 Ex. 
 221, and Vicksburg & Meridian Ry. Co. v. Putnam, 118 U.S.R. 545, referred 
 to. I Judgment appealed from. 8 W.W.R. 1043, affirmed, Duff, J. dissenting. 
 Can. Pac. Ry. Co. v. Jackson, 52 Can. S.C.R. 281. 
 
 B. Personal Injuries. 
 Bodily disfigurement — Pekmanent impairment of piiysicai, strength. 
 
 When damages from an explosion consist of total inability to work and 
 acute suffering during three months, bodily disfigurement, diminished sense 
 of hearing and permanent impairment of physical strength to a table- 
 waiter on a steamboat, whose earnings are about fifty dollars a month 
 during the season of navigation, a verdict of $6,000 is not so grossly exces- 
 sive that it should be set aside. 
 
 Richelieu & Ontario Navigation Co. v. Dorman, 16 Que. K.B. 375. 
 
 Excessive ob punitive damages — Permanent injury. 
 
 Plaintiff was injured in a collision between two cars of the defendant 
 company, Ihe collision having occurred admittedly through the company's 
 negligence. No evidence was offered by the company at the trial. Plain- 
 tiff's hip was dislocated and permanently injured, rendering him unable 
 to follow certain branches of his trade, that of tinsmith. There was some 
 medical evidence that an operation might improve his condition so as to 
 reduce the disability. He was, at tlie time of the accident, 24 years of 
 age, and earned $4 per day wlien working. His medical and otlier expenses 
 in connection with the accident amounted, roughly, to $500. Added to 
 this should be loss of work on account of the accident. In an action for 
 damages, the jury awarded him $11,500: — Held, on appeal, that the dam- 
 ages were excessive, and there should be a new trial. 
 
 Farquharson v. British Columbia Elec. Ry. Co., 15 B.C.R. 280. 
 
 INIarried woman — Injury to — Damacjes awarded husband. 
 
 The female plaintiff, 62 years of age, wife of the male plaintiff, who was 
 70 years of age, in attempting to alight from one of the defendants' cars, 
 was through the defendants' negligence thrown to the ground and seriously 
 injured. She was in the doctor's hands for several months, and her arm 
 and hand which were injured were not likely to be as useful to her as be- 
 fore the accident. The jury awarded the wife $1,000 and the husband 
 $1.200: — Held, that the amount awarded the wife could not be deemed 
 to be unreasonable; but. as rt^garded the liusband, after due allowance for 
 ibe medical expenses and for nursing, and attendance, and considering the 
 age of the parties, the amount awarded liim was excessive, and a new 
 assessment was ordered, unless an agreement was come to between the 
 parties that the damages should be reduced to $400. 
 
 Clarke v. London Street Ry. Co., 5 Can. Ry. Cas. 381, 12 O.L.R. 279. 
 
 Impairment of prospects of marriage — Remoteness — Excessive dam- 
 ages. 
 
 In an action for negligence, impairment of the prospects of matrimony, 
 in the case of a young woman, by reason of physical injuries, may be taken 
 into consideration by the jury in estimating the damages. In such a case 
 of accident to a young woman of about 21 years of age, living with her 
 father, but earning $6 a week as a stenographer, which accident resulted 
 in the amputation of her left leg at the knee, paresis in a hand and arm 
 
DAMAGES. 203 
 
 of which therp might never be eomplete recovery, injiinr to her Inck. and 
 a Terjr serious shock to her nervous system: — Held, that a verdict of 
 ^o^'iOO damages vas not so excessive as to necesisitate a nev trial. 
 Morin v. Ottawa Elec. Ry. Co., 9 Can. Ry. Cas. 113. 18 OX.R- 209. 
 
 INJIBIES TO UrSlSG ESGCVEXX PeKMAXEXT DISABIUTT MeSTIOXIXG SCM 
 
 TO jr«T. 
 
 The plaintiff, though not originally trained as a mining engineer, had 
 by long experience become an expert examiner of gold mining locations: 
 was 37 years of age. physically strong and bealthy. and of excellent char- 
 acter. He was in receipt of a salary of i6fi(t0 a year from employers in- 
 terested in gold properties, who spoke very highly of his capabilities and 
 pr(t$pects. He was permanently disabled by injury sustained on one of the 
 defendants' ears through their negligence. A jury awarded him §30.000: 
 — Held, on appeal, that tbe amount was not so excessive as to entitle the 
 defendants to a new trial: — Held. also, that by a reference in the charge 
 to the jury to $25.00(^ as a sum which would not appear large to a man 
 earning M.OOO a year, and by a mention of the sum claimed as $50,000. 
 the jury were not. reading the charge as a whole. left under the impression 
 that they were directed as to the amount they were to fix: — Held. also, 
 that counsel for the plaintiff, in opening to the jury, mentioning the sum 
 claimed in the statement of claim, was not so objectionaUe as to be a 
 ground for granting a new triaL Judgment of Anglin. J., affirmed. 
 
 Bradenburg v. Ottawa Elec. Ry. Co.. 9 Can. Ry. Cas. 242, 19 OX..R- 34. 
 
 Loss OF BrsrxEss pboftts. 
 
 The plaintiff, a married woman, was injured while a passenger on cme 
 of the defendants' cars, by reason of the negligence of the defendants* serv- 
 ants, as found by a jury, who assessed her damages at $liHH) for her inju- 
 ries and $600 for loss of business. The separation of the two items was 
 made by the jiuy. and the .Judge entered judgment for $2<500: — ^Held. 
 notwithstanding the form of the judgment, that the Court was enabled 
 by the division made by the jury, to consider the propriety of the allow- 
 ance made for loss of profits. The plaintiff was fifty-six years old. and 
 was in business as a baker. After her injury she sold the business. Some 
 evidence was given as to profits being earned in the business at the time 
 of the injury, but there was nothing to shew a reasonable certainty of fut- 
 ure profits: — Held, that the allowance for loss of profits was not support- 
 able, the alleged damages being remote and conjectural, and the judg- 
 ment should be varied by reducing the amount to $1.94iO: — Held, as to 
 the $1,900. that the amount was not so large as to shew that the jurv- 
 neglected their duty or were actuated by any improper motive or did not 
 appreciate the grounds on which they might act in awarding damages. 
 Judgment of Britton. J., varied. 
 
 Wright T. Toronto Ry. Co.. 10 Can. Ry. Cas. 10. 20 O-LR. 49S- 
 
 KeOCCTIOX of DAltAGES PBI5CIPLE OF ASSE-SSME5T. 
 
 The plaintiff^s damages for personal injury by the negligence of the de- 
 fendants having been assessed by a .Judge at $10,000. the Court of Appeal 
 reduced the amount to $7,000. evidence having been received by the Court 
 to shew that a large sum paid to the plaintiff, and said by her to be part 
 of her earnings, was in fact paid upon another account. Per Meredith. 
 J.A.: — in estimating damages recoverable for personal injury by negligence, 
 tbe jury must not attempt to award the full amount of a perfect compen- 
 sation for the pecuaiary injury, but must take a reasmable view of the 
 
20i DAMAGES. 
 
 case and give what they consider, in all the circumstances, a fair compen- 
 sation; and the same rule applies to a Judge. 
 
 Sheahen v. Toronto Ry. Co., 13 Can. Ry. Cas. 270, 25 O.L.R. 310. 
 
 PERJfAXEXT DISABILITY — MEASUBE OF DAMAGES — REDUCTION — REJIITTITUR. 
 
 In an action for personal injuries in a negligence action against a street 
 railway, where it appeared that the plaintiff, a man aged thirty-one, was 
 permanently incapacitated by the injury from following any continiious 
 occupation, although he might be able to earn something towards his own 
 support, a verdict for $11,500 is not unreasonable and will not. under ordi- 
 nary circumstances, form a ground for ordering a new trial or reducing 
 the verdict on appeal. 
 
 Carty v. British Columbia Elec. Ry. Co., 2 D.L.R. 276, 19 W.L.R. 905. , 
 
 PeKMANEKT DISABILITY — Co>"DUCTOE. 
 
 Twelve thousand dollars is not an excessive v^erdict for damages for 
 personal injuries to one left a permanent cripple and unable to follow his 
 usual occupatifm as conductor of a construction train earning two hundred 
 and fifty dollars a month in summer and as conductor of afreight train in 
 winter earning, at least, one luuidred and twenty dollars a month, whose 
 future earning power would be problematical and such verdict cannot be 
 said to have been founded upon a wrong measure of damage where the 
 income which it would bring in, at current investment rates, would be less 
 than one-half of his previous earnings. [Johnson v. G.W.R. Co., [1904] 
 2 K.B. 250; Bateman v. Middlesex, 25 O.L.R. 137, and Sheahen v. Toronto 
 Rv. Co., 13 Can. Ry. Cas. 270, 25 O.L.R. 310, specially referred to.] 
 
 'Tobin V. Can. Pac. Ry. Co., 2 D.L.R. 173, 5 S.L.R. 381. 
 
 [Followed in Staats v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 38, 17 
 D.L.R. 309.] 
 
 Loss OF HAND BRAKEMAX — ^^IEASURE OF DAMAGES. 
 
 The sum of ten thousand dollars is not excessive damages for personal 
 injuries to a servant twenty-six years old due to a collision between trains 
 causing him to be knocked down by the coal heater of the car he was in 
 and to be so severely burned by the coals that his face was badly disfig- 
 ured and his head was left so tender that he would not be able to stand 
 extreme heat or cold and his right hand was so severely burned as to 
 render it permanently useless, leaving him unable to follow his trade of 
 blacksmith. [Tobin v. Can. Pac. Ry. Co., 2 D.L.R. 173, and Johnston v. 
 Great Western Ry. Co., [1904] 2 K.B. 250, specially referred to.] 
 
 Cordon v. Can." Northern Ry. Co., 2 D.L.R. 183, 5 S.L.R. 169. 
 
 Permanent injuries — Excessivenehs. 
 
 $6,532.25 damages for injuries resulting from negligence, is not exces- 
 sive for a man thirty-four years of age, capal)le of earning $700 a year, 
 where his injuries were found to have resulted in a life-long loss of earn- 
 ing power. 
 
 Can. Pac. Ry. Co. v. Quinn, 11 D.L.R. 600. 
 
 Injuries to infant — Income — Accidents of life. 
 
 In awarding damages for injuries sustained by a child eight and one- 
 half years old by reason of a collision with a street railway car, wliercby 
 the child's right arm had to be amputated below the elbow^, the jury ought 
 not to give the plaintiff such a sum as, if invested. W(mld produce the full 
 amount of income which he might be expected to earn if he had not been 
 injured, but they should take into account the accidents of life and other 
 
DAMAGES. 205 
 
 mIImii, mmd give to the plaiBUff vhat thej exm^iAer. iwder all tlie eir- 
 nunstances. a fair c««ipmsatiim far the lasis. [Roirlev \. Londoa Jt X.W. 
 Rv. Col, UR. S Ejc ±21. and JolnstoB t. Great W. Ry*. Col, [ISNMJ * K-B. 
 sio. referred to.] 
 
 Sdmrtz t. UlBBipr« Ekv. Ry. Col. 1± DXJL 36. ±3 Man. L.B. 4:S3. 
 
 -JoixT v(Ntm'£A;!«oe:* — Divisios of iiAiLicEi» — Nikugei^cce. 
 
 Tlie oUi^tioa of tortfeasors in respect of Be3^:l^eiire is joint und s^-v- 
 era! as betveen tJieiB asd the person injured, bat as between tbem^lve^ 
 the dajBa«e i» apportionable under (Quebec law. so where three faartirs were 
 equally in fault but only one ia> :»ied by the injured person, that one on 
 brii^:i^ in the others: to answer a;?!, defendants in warranty i^ entitled to 
 indemnil^ for two-thirds of the amount, one-third against caeh of the other 
 tortieasorsu. 
 
 L^auh T. 3lontreal Terra Cotta Co^ 30 DXJL 3SS. 
 
 C. Hciffuus oc Mmtal Shock. 
 
 HXMAOBS ST WAT OF SOL^TlUiL. 
 
 lu mn action iar danages fasviiii^t for the death of a person hv the eon- 
 aort aad lelatiaas nnd« Art. 1«^6. C.C. (Que. >i . which is a re-cnactaBcat 
 aad reprodnetiaa of the Cob. Stat. L.C. e. 78, damages hy way of solatium 
 for the ber e ate ment aufl qed cannot be reeorered. Judgment of the Court 
 bdaw iwereed and new trial ordered. Mont. LwR. ± Q3. 2i, rerersed. 
 
 Can. Pae. Ry. Co. r. Robinson. 14 Can. S.CJR. 105. 
 
 [A^Ued inRobinsoB v. Can. Pae. Ry. Col, Mont. L.R. 3 SLC. 337: cote- 
 mented on ia Gu. Fac Ry. Co. r. Lachance. 4£ Can. S.C.R. 308: ftAowed 
 in Bernard t. Grand Trunk Ry. Co.. 11 Que. S.C. 11; Filion v. The Queen. 
 4 Ckn. Ex. 145: Qnebee Ry.. L A: P. Co. t. Poitra&. 14 Que. KJi. 431 : Re 
 Central Bank and Yorke. li O.R. 635: followed in Jeannotte t. Couillard, 
 3 Que. Q.B. 461.] 
 
 Loss or Btnrorr — ^Fcxeeai. exfe^ts^s — ^Xebixmts shock. 
 
 Ihimagcs coold not be claimed for the loss, of the care and aid of a moth- 
 er 76 years old killed by the aeeidoit. <v for the ncrruus shock to one 
 of ike ^aintiffs at hn- death, such damages beii^ proUanntical. indirect 
 and ranote; nor could pfaLintiflr^. after aceqitiBg lAeir mothca^V succes- 
 sion, daim to be teimbnrsed the expmses of the foneral of the victim 
 ud of the monrnii^ as in paying them they only dischar«?Hl the debts 
 inhereat to the soccessian. which is presumed to be more adrantageous 
 than emenna a« they accepted it. 
 
 Rliatranlt r. Caii. Pae. Ry. Co.. 18 Que. S.C «!. 
 
 Xekvoc:^ shock — Imfact. 
 
 The plaintiffs were driring on a bigfaway in an enclosed vehicle which 
 owing^ as was found, to the negligence of the defendants', was struck by 
 a aMning car of the defendants, pushed a short diistaiwe sideways, and 
 struck on the other side by another car moving in the opposite db^ction. 
 The plaintiffs suffned no visible bodily injuries except sUght bruise*, but 
 c(MB|daiBed of mental or nervous shock, and a jury assessed damages ther^.- 
 'or: — Held, that damages of this kind were not recoverable notwithstand- 
 ing the impact and the bodily injuries. [Victorian Railwav? Commission- 
 ers V. Coultas (188S). 13 App. Cas. ±32, and Henderson v. Otnada Atlantic 
 Ry. Ok. (1898). 35 A.R. 437. fcrffewvd.] 
 
 G^er T. Grand Trunk Ry. Co.. 5 « an. Ry. Caa. 85. 10 CUR. 511. 
 
 PMstii^^usfaed in Toms v. Toronto Rt.* Col, 13 Out. Rv. Gas. 136 33 
 OJmM. 304-] 
 
206 DAMAGES. 
 
 EXCESSIVENESS — SOLATlVSt D01.0UIS. 
 
 The Court refused to ordor a new trial or reduction of damages under 
 the provisions of arts. .)02, r)(>3, C.C.P., where it did not ajjpear that, under 
 the circumstances, the amount of damages awarded by the verdict was so 
 grossly excessive as to make it evident that the jury iiad been led into 
 error or were inlluenced by improper motives. Davies, J., dissented in re- 
 spect of that |)art of tlie verdict awarding damages in favour of one of 
 the sons who was almost 21 years of age and earning wages at the time 
 deceased was killed. (Quaere. — In an action under art. 1056 C.C. (Que.), 
 can a jury award damages in solatium doloris? [Robinson v. Can. Pac. 
 Ry. Co., l"lS!)2] A.C. 4S1, referred to.] 
 
 'Can. Pac. My. Co. v. Ladiance, 10 Can. Ry. Cas. 22, 42 I an. S.C.R. 205. 
 
 [Commented on in Montreal Street Ry. Co. v. Brialofsky, 19 Que. K.B. 
 338.] 
 
 COIXISION OK STREET CAK — PHYSICAL SHOCK — llliSLLTTNG NERVOUS CONDI- 
 TION. 
 
 The plaintiir, an elderly man, was a passenger in a street car of the 
 defendants, which was negligently allowed to come into collision with an 
 engine at a railway crossing. By the force of the collision he was violently 
 thrown from his seat over to the back of the next seat in front of him. 
 No bones were broken, and there was no great bruising or other external 
 injury. He got off the car without assistance and walked a short dis- 
 tance, and tlien, as he said, "collapsed," and for the time could go no 
 fu»tlier. Eventually he reached the place where he was employed, but 
 was quite unable to work, and was obliged to go to his home and to bed, 
 where he remained off and on for several weeks under a physician's care. 
 Subsequently, the condition of traumatic neurasthenia developed, as the 
 result, it was said, of the shock of the collision, and the plaintiff, it was 
 asserted, was still suffering from that trouble at the time of the trial. 
 A physician testified that the physical shock suffered excited the subsequent 
 condition, and tliat that condition did not arise purely from an effect 
 created on his mind: — Held, that the case was different from those in 
 which the mental shock, as from fright and the like, was the primary 
 cause to which the resulting physical consequences had to be traced — the 
 shock in this case was not primarily mental at all, but physical; the trial 
 Judge properly refused to direct the jury to assess separately the damages 
 resulting exclusively from mental shock and those resulting from phj'si- 
 cal injury; and a judgment for the plaintiff for .$1,500 damages assessed 
 by the jury should not be disturbed. [Victorian Railways Commissioners 
 V. Coultas" (1888), 13 App. Cas. 222, Henderson v. Canada Atlantic Rv. 
 Co. (1898). 25 A.R. 437, and Geiger v. Grand Trunk Ry. Co. (1905*), 
 10 O.L.R. 511, 5 Can. Ry. Cas. 85, distinguished.] Judgment of Falcon- 
 bridge, C.J.K.B.. affirmed. 
 
 Toms v. Toronto Ry. Co., 12 Can. Ry. Cas. 120, 22 O.L.R. 204. 
 
 [Affirmed in 44 Can. S.C.R. 268, 12 Can. Ry. Cas. 250.] 
 
 Physical inji ries — Mental shock. 
 
 T. was riding in a street car when it collided with a train. He was 
 thrown violently forward on the back of the seat in front of him, but 
 was able to leave the car and walk a short distance towards his place of 
 business when he collapsed and was taken home in a cab. He was laid 
 up for several weeks and never recovered his former state of health. On 
 the trial of an action against the railway company one medical witness 
 gave as his opinion that the physical shock received by T. was the excit- 
 
DAMAGES. 207 
 
 ing cause of his condition, while others ascribed it to a disturbed nerrous 
 sTStem. Negligence on the part of the company was not denied, but 
 the trial Judge was asked to direct the jury to distinguish, in asisessing 
 damages, between the physical and nervous injuries, which he refused to 
 do: — Held, affirming the judgment of the Court of Appeal i22 Ont. L.R. 
 204, 12 Can. Ey. Cas. 126 1, that the trial Judge properly refused to direct 
 the jury as requested; that the injuries to T.V nervous system were as 
 much the direct result of the negligence of the company as those to his phys- 
 ical system, and he could recover compensation for both: and that in any 
 case it was impossible for the jury to sever the damages. [Victorian Rail- 
 way Commissioners v. Coultas. 13 App. Cas. 222. distinguished.] 
 
 Toronto Ry. Co. t. Toms. 12 Can. Ry. Cas. 250, 44 Can. S.CJR. 268. 
 
 MkSTJlL shock EXCESSITEXESS. 
 
 A jury should not be asked to assess separately damages resulting from 
 shock caused by blows and those resulting from bodily injury independ- 
 ently of nervous shock. Remarks per Irving, J.A., as to cases in which 
 the damages were so asH?ssed. In this case a new trial was ordered 
 (Irving J.A., dissenting), on the ground that the damages awarded were 
 excessive. [Victorian Railways Conunissioners v. Coultas (1888), 13 App. 
 Caa. 2^, followed.] 
 
 Taylor v. British Columbia Elec. Ry. Co., 13 Can. By. Cas. 400, 16 
 B.C.R. 109. 
 
 COSSEQCEXTIAL rXJTWES — TraI'MATIC XETIASTHEXIA- 
 
 Where, as a result of a collision between a railway train and a street 
 ear due to n^ligent operation of the train, a passenger on the street 
 ear was thrown into a subway, a verdict for substantial damages may 
 be given against the railway company whose negligence caused the in- 
 jury, although the only substantial injur\- proved was that the plaintilT 
 had in consequence sulTered from traumatic neurasthenia and caused the 
 plaintiff to be subject to insomnia and nerve troubles incapacitating him 
 for his usual occupation, although such result is attributable to the 
 mental shock as well as to the physical. [Victorian Railways Commis- 
 sion V. Coultas (188811. 13 A.C. 222* and Dulieu v. WTiite, [1901] 2 K.B. 
 669, considered: Geiger v. G.T.R. Co.. 10 O.L.R. 511, and Henderson v. 
 Canada Atlantic. 25 OX.B. 437, specially referred to.] 
 
 Ham T. Can. Xorthern Ry. Co.. 1 DX.R. 377. 20 W.L.R. 359. 
 
 fVaried by disallowing claim fof interest. Ham t. Can. Northern Ry. 
 Co. (No. 2)", 7 DX.R. 812.] 
 
 D. I<ord Campbell's Act. 
 Death of wife — ^Damages to husband — ^Loss of hocseholo sebtices — 
 
 CaBE AXD TRAIXIXG <»■ CHtLDREX. 
 
 Although on the death of a wife, caused by n^ligence of a railway 
 company, the husband cannot recover damages of a sentimental character, 
 yet the loss of household services, accustomed to be performed by the 
 wife, which would have to be replaced by hired services, may be a sub- 
 stantial loss for which damages may be recovered, and so also may be the 
 loss to the children of the care and moral training of their mother. In 
 this ca.<e the Privy Council refused leave to appeal: see Canada Gazette, 
 vol. 6. p. 583: 11 A.R. (Ont.) 1. reversing 1 O.R. 545, affirmed. 
 
 St. Lawrence 4 Ottawa Ry. Co. v. Lett. 11 Can. S.C.R. 422. 
 
 [Discussed in Ricketts v. :MarkdaIe, 31 O.R. 610: followed in McKeown 
 V. Toronto Ry. Co., 19 O.LuR. 361: referred to in Beckett v. Grand Trunk 
 Ry. Co., 13 A.R. (Ont.) 174; Hollinger v. Can. Pac. Ry. Co., 21 O.R. 705; 
 
208 DAMAGES. 
 
 Xew Brunswick Ry, Co. v. A^aiiwart, 17 Can. S.C.R. 37; Romboiigli v. 
 Bakh, 27 A.R. (Ont.) 32; relied on in Davidson v. Stuart, 14 Man. L.R. 
 81, 89; adopted in Collins v. St. Jolin, 38 N.B.R. i)0, 91; applied in Canada 
 Atlantic Ry. Co. v. Henderson, 29 Can. S.C.R. 636.] 
 
 Right to deduct life ixsiraxce from damages. 
 
 \^liere the life of the deceased is insured, the amount of the insurance 
 must not be deducted from the damages assessed. 13 A.R. (Ont.) 174, 
 8 O.R. 001, affirmed. 
 
 Grand Trunk Ry. Co. v. Beckett, 16 Can. S.C.R. 713. 
 
 Pecuniary loss — ^Life insurance. ■ 
 
 The right conferred by Lord Campbell's Act, adopted by Consolidated 
 Statutes of Ontario, c. 135, ss. 2, 3, to recover damages in respect of death 
 occasioned by wrongful act, neglect or default is restricted to the actual 
 pecuniary loss sustained by the plaintiff. Wliere the widow of deceased 
 is plaintiff, and her husband had made provision for her by a policy on 
 his owTi life in her favour, the amount of sucli policy is not to be deducted 
 from the amount of damages previously assessed irrespective of such 
 consideration. She is benefited only by the accelerated receipt of the 
 amount of the policy, and that benefit being represented by the interest 
 of the money during the period of acceleration, may be compensated by 
 deducting future premiums from the estimated future earnings of the de- 
 ceased. [Hicks v. Newport, etc., Ry. Co., 4 B. & S. 403, n., approved; 15 
 A.R. (Ont.) 477, affirmed.] 
 
 Grand Trunk Ry. Co. v. Jennings (1888), 13 App. Cas. 800. 
 
 [Adopted in Royal Paper Mills Co. v. Cameron, 39 Can. S.C.R. 369; re- 
 ferred to in Warboys v.Lachine Rapids, etc., Co., 22 Que. S.C. 541; relied 
 on in Davidson v. Stuart, 14 Man. L.R. 81; applied in Allen v. Can. Pac. 
 Ry. Co., 10 O.L.R. 510; followed in London & Western Trusts v. Traders 
 Bank, 16 O.L.R. 382; referred to in Bicknell v. Grand Trunk Ry. Co., 26 
 A.R. (Ont.) 431;. Nightingale v. Union Colliery Co., 8 B.C.R. 136.] 
 
 Effect of insurance. 
 
 Where the widow or heirs of a person killed as the result of an acci- 
 dent sue the person responsible for such death in damages the defendant 
 is entitled to have the amount of damages suffered diminished by what- 
 ever sums the heirs may have received under the terms of accident poli- 
 cies carried by the deceased. ' 
 
 Can. Northern Quebec Ry. Co. v. Johnston, 7 D.L.R. 243, 22 Que. K. B. 
 63. 
 
 Government railway — Negligence of Crown's servants — ^Action by 
 parent of deceased — Pecuniary benefit — Pain and suffering. 
 
 In the case of death resulting from negligence, and an action taken by 
 the party entitled to bring the same under the provisions of R.S.N.S. 1900, 
 c. 178, s. 5, the damages should be calculated in reference to a. reasonable 
 expectation of pecuniary benefit, as of right or otherwise, from the con- 
 tinuance 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 deceased, or for his burial expenses, or for 
 family mourning. [Osborne v. Gillett, L.R. 8 Ex. 88, distinguished.] 
 
 McDonald v. The King, 2 Can. Ry. Cas. 1, 7 Can. Ex. 216. 
 
 Negligence causing death — AppoRTioNiiENT of damages between widow 
 and children. 
 
 An action brought against a railway company by a widow on belialf 
 
DAMAGES. 209 
 
 at keiadf and four infant children, aged respectirelT seren, five, three and 
 one year, to recover damages for the death of her husband through the 
 emnpany's negligence, was settled by the company paying :M,800. On ap- 
 plicati<m to a Judge the amount was apportioned by giving the widow 
 $1,200 and each of the children :$900. the widow also to be paid for the 
 children's maintenance, $200 a year for three years, the fact of the widow 
 having already received $1,000 for insurance on the husband*^ life, being 
 taken in consideration in apportioning her share. 
 
 Burkholder v. Grand Trunk By. Co^ 2 Can. Ey. Cas. 5, 5 OX.1L 428. 
 
 Sestices of chuj) — ^ijrrKxnox ow helpis€ pakkvt. 
 
 Damages to the amount of $2,100 were recovered by the plaintiff suing 
 aa the father and administrator of his deceased stm, 22 years of age, who 
 was killed through defendants' negligence. The son's occupation was 
 principally that of a labourer, the highest rate of wages received by him 
 being for a few days at the rate of $3.1 a month. His mother was dead 
 and his father had married again. He lived with a widowed sister, but 
 was on good terms with his father and stepmother, whom he visited once 
 or twice a month, on such occasions giving his father from $2 to $4, and 
 <mee $5. His habits were good and he was of a generous disposition. Evi- 
 dence was received of his intention of helping his father to baild a house, 
 of assisting him in paying off a mortgage of $6d0 <m his property, as well 
 as a debt of $400. which he owed another son, and for which the father 
 had given his promissory notes: — Held, that the evidence of such ex- 
 pressed intention was properly admitted, not necessarily as shewing a 
 promise to make the payments, but of his being well disposed to his 
 father; the amount awarded the plaintiff for damages however was clearly 
 excessive, and a new trial was ordered unless the parties agreed to a re- 
 duction of the damages to $500. 
 
 Stephens v. Toronto Ry- Co., 5 Can. Ry. Cas. 102, 11 Oi.R. 19. 
 
 [Referred to in 3,Ioffit v. Can. Pac. Ry.'Co.. 2 Alta. L.R. 486. 489.] 
 
 XeCUGEXCE — ^DEATH of child TREASONABLE EXPECTATIOX OF PECCTOABT 
 
 BEXEFIT. 
 
 The plaintiff, a married woman, who had to depend on her own exertions 
 for her support and maintenance and that of her daughter, her husband 
 contributing nothing, had striven to give her daughter a good education. 
 The daughter was a little over seventeen years of age. and was just finish- 
 ing her course at a coll^ate institute, which would have qualified her 
 for a first-class teacher's certificate, and expected to be earning in the 
 coarse of a year from $300 to $500. She was a strong active girl and 
 worked in a mill daring the holidays, earning from $6 to $7 a week, which 
 she gave to her mother, for whose maintenance and support she had 
 often expressed the intention of providing. The daughter having been 
 killed through the defendants' negligence, a finding in favor of the mother 
 for $3,000 was upheld. 
 
 Renwick v. Gait, Preston, etc.. Ry. Co.. 5 Can. Ry. Cas. 108, 11 OX.R. 
 158. 
 
 [Reversed in 12 OXcR. 35, 5 Can. Ry. Cas. 376; referred to in McKeown 
 V. Toronto Ry. Co., 19 OX,Ji. 361.] 
 
 Loss OF CHILD — ^ReASO:\ABLB EXPECT-*TI0X of FECrXIABT BEXEFTT. 
 
 Damages assessed by a jury at $3,000 for the loss of a daughter seven- 
 teen years old by reason of the negligence of the defendants, were held to 
 be excessive, and a new trial was directed unless both parties would agree 
 Can. Ry. L. Dig.— 14. 
 
210 DAMAGES. 
 
 to have the damages fixed at $1,500. Order of a Divisional Court, 11 
 O.L.R. 158, 5 Can. Ry. Cas. 108, reversed. 
 
 Renwick v. Gait, Preston & Hespeler Street Ry. Co., 5 Can. Ry. Cas. 
 376, 12 O.L.R. 35. 
 
 Service of child — Pecuniary loss — Ownekship in common between 
 parent and child survivobship. 
 
 In an action by a father to recover damages for the death of his son 
 caused by the negligent operation of a train, no pecuniary loss is proven 
 where it is shewn that the services rendered by the deceased to liis father 
 were in pursuance of an agreement that they were both to be partners of 
 the farm where the work was being done but that the son was to have 
 the farm on the father's death, and that he was also to get what he need- 
 ed out of the common fund. 
 
 Moir V. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 380, 10 O.W.R. 414. 
 
 Excessive damages — Death of wife and mother. 
 
 In an action under the Fatal Accidents Act, R.S.O. 1897, c. 166, to re- 
 cover damages for the deatli of a married woman, 62 years of age, the 
 jury awarded $3,325, apportioning $325 to the executors of her husband 
 who survived her, $800 to a daughter 36 years of age, $700 to a son 27 
 j'ears of age, and $1,500 to a son 21 years of age: — Held, that damages 
 recoverable being entirely pecuniary, the above (except as to the exec- 
 utors), considering the ages and circumstances of the children, and the 
 age and financial ability of the mother, were grossly excessive, and the 
 case must go to a new assessment. 
 
 Ronson v. Can. Pac. Ry. Co., 9 Can. Ry. Cas., 361, 18 O.L.R. 337. 
 
 Death of child — Pecuniary loss of parent — Reasonable expectation 
 OF benefit. 
 
 A verdict of a jury for $300 damages for the death of the plaintiff's 
 child, aged four years, in an action under the Fatal Accidents Act, was 
 upheld by a Divisional Court and by the Court of Appeal (Moss, C.J.O., 
 and Maclaren, J.A., dissenting), where it appeared that the child was 
 healthy, intelligent, and with as good a prospect of prolonged life as any 
 infant of that age could be said to have. The question is for the jury, 
 upon the evidence; pecuniary benefit or advantage need not have been 
 actually derived by the parent previous to the death; the probability of 
 the continuance of life and the reasonable expectation that in that event 
 pecuniary benefit or advantage would have been derived are proper sub- 
 jects for consideration. [Pym v. Great Northern Ry. Co. (1862), 2 B. & 
 S. 759, and Blackley v. Toronto Ry. Co.. 27 A.R. (Ont.) 44n., applied 
 and followed.] The trial Judge's direction to the jury upon the questions 
 of damages and the findings of the jury upon the question of negligence 
 were also considered and upheld by the Divisional Court. 
 
 McKeown v. Toronto Ry. Co., 9 Can. Ry. Cas. 449, 19 O.L.R. 361. 
 
 [Referred to in Moffit v. Can. Pac. Ry. Co., 2 Alta. L.R. 489.] 
 
 Pecuniary loss of parents — Reasonable expectation of benefit. 
 
 A lad of twenty, a brakesman employed by the defendants, was killed 
 in a collision upon the railway, by reason of the negligence of the defend- 
 ants' servants, and this action was brought under the Fatal Accidents Act, ' 
 R.S.O. 1897, c. 166, Ijy the administrators of his estate, to recover dam- 
 ages for his death, for the benefit of his parents, who lived in England. 
 The claim was made and the assessment of the damages was based upon 
 the principle of the Workmen's Compensation for Injuries Act. The jury 
 
DAMAGES. 211 
 
 foand that the estimated earuB^ of a person in the same grade as the 
 deceased, in the like emplorment, in this Province, for the three years 
 alloved by the i^tarate. would be ^l.SOO. and they assessed the iJimagri 
 at that sam apportionii^ tliem between the father and motho*. The evi- 
 dence £.hewed that the deceased w^s unmarried; had been about four years 
 in Canada, and about a month in the servioe of the defendants. He had 
 eiMTVsponded with hLs mother, but had $ent his paroits no money. He had 
 recured a good and rather expensive education, at his father's exp^ise, 
 and the father swore to an understandii^ between the son and the par- 
 ents that the son wonhL in consideration of the lar^ sum so expended, 
 assist the paraits in their old age: — Held, that the plaintiff's r^ht of 
 recovery was limited in amount to the pecuniary loss which it could be 
 fairly and reasonably found that the parents Imd suffered by the son's 
 death; and, upcm the evidence and in «11 the ciremistaBces, takii^ into 
 account the uncotainties and contingen c ie s , thete was such a reaaanahle 
 and well-foonded expectation of pecuniary ben^t as could be estimated in 
 money so as to becmne the subject of damages: but. having regard to all 
 these matters, the award of damages was excessive and e3CtraTagaBt, aad 
 therefore mxeaeoBable; and there should be a new assessmoit of damages, 
 nriess the parties could agree upon some amount. It is the plain doty 
 at the Court to see that an award of damages, in an action of this kind, 
 which appears to have been arrived at upon ccmsiderations not warranted 
 bv the evidence, shall not stand. Principles upon whidi damages to be 
 assessed pointed out. 
 
 London t Western Trusts Co. v. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 
 133, 2* O J-E- 26±- 
 
 I>EATH — PaTX AXD SCTFEXISC fiECOVEBT BT OBCOmXT'S VAMHT. 
 
 In an action by the widow and administratrix of the deceased for daa»- 
 ages under the Manito>M Act, for compensation to families of poisons 
 killed by accident (ILS.M. 1902, e. 31), the measure should be for the 
 widow^s pecuniary loss sustained because of the death, in a sum that will 
 give her the physical comfort which die had at the time of her norland's 
 death out of his labor and earnings to be continued during the expectancy 
 of life, subject to the accidents of bealtli and employment; but not cover- 
 ii^ the physical and mental suffering of the deceased nor the mental suf- 
 ferings of the plaintiff for the loss of her husband. ^5,000 is an excessive 
 recovery by a surviving wife under the Manitoba Act (iLSJJL c 31) for 
 accidental death of her husband, and the recovery should be reduced to 
 ^.000, where he was 65 years old and earned only $45 montUy, and she 
 was 57 years old. though he was apparentiy a stn^^, healthy man. 
 [Blake v! Midland, IS Q.B. 93: C.P.R. Co. v.* Robinaim, 14 Can.' S.C.R. 
 lOi; Rowley v. London, L.R. 8 Ex. 221. and Lamonde v. G.TJL Co., ]« 
 OJJL 365, referred to; Pettit v. Can. Norihem Ry. Co. (Xo. 1), 7 D.L.R. 
 645, varied.] 
 
 Pettit V. Can. Northern Rv. Co. (Xo. 2». 11 DXJt. 316, 15 Can. Rj. Cas. 
 272, 23 Man. L.R. 213. 
 
 Dedcctiox of hoxet paid befoce dcl&th. 
 
 In an action brought by the widow and diildren of a decede n t under the 
 Families Compensation Act. R.S.B.C. c. ^. for damages for injuries sus- 
 tained through the allied negligence of the defendants resulting in the 
 death of the decedent, where it appears that prior to the death of the 
 deceased the latter received a sum of money for the injuries sustained and 
 executed a release of the cause of action to the defendants, it is not 
 n e cess ary for the plaintiffs to return the sxun of money received by the 
 
212 DAMAGES. 
 
 deceased, or to offer to return it, as a condition precedent to their right 
 to have the release set aside on the ground that it was obtained from tlie 
 deceased by fraud, but sucli money is to be taken into consideration on 
 the assessment of damages and the amount treated as a payment on ac- 
 count. [Trawford v. British Columbia Elec. Ry. Co., 8 D.L.R. 1026, re- 
 versed; Lee V. Lancashire, L.R. 6 Ch. 527, distinguished.] 
 
 Trawford v. Britisli Columbia Elec. Ry. Co., 15 Can. Ry. Cas. 39, 9 
 D.L.R. 817. 
 
 Mother and widow — Appobtionment of damages. 
 
 On an application by a widow of a deceased for apportionment, under 
 ss. 4, 9 of the Fatal Accidents Act, 1 Geo. V. (Ont.) c. 33, between her 
 and the mother of the deceased of a sum of money paid over as damages 
 for the death of the deceased, the apportionment should be made in pro- 
 portion to the damages sustained by each of them and the analogy of the 
 Statute of Distributions does not apply. The basis of apportionment on 
 an application by a widow of a deceased person, under ss. 4, 9 of the 
 Fatal Accidents Act, 1 Geo. V, (Ont.) c. 33, for apportionment between 
 her and the mother of the deceased of a sum of money paid over as dam- 
 ages for the death of the deceased, is not affected by the fact that the 
 widow was separated from her husband, inasmuch as he still continued to 
 he liable for her support, and the amount the liusband contributed to his 
 mother's support is immaterial, the only question being, on such an ap- 
 plication, what the wife and mother would relatively have had a right to 
 expect if the deceased had continued to live. [Sanderson v. Sanderson 
 (1877), 36 L.T.X.S. 847, disapproved: Buhner v. Bulmer, 25 Ch. D. 409, 
 and Burkholder v. Grand Trunk Ry. Co., 5 O.L.R. 428, followed.] 
 
 Scarlett v. Can. Pac. Ry. Co. (Ont.), 9 D.L.R. 780, 15 Can. Ry. Cas. 
 184. 
 
 Appobtioxment of damagf.s — Beneficiaries. 
 
 In apportioning money recovered under the Fatal Accidents Act, 1 Geo. 
 V. (Ont.) c. 33, and under the Ontario Workmen's Compensation for In- 
 juries enactments, the true guide must be the actual pecuniary loss of 
 each of the claimants, and the statute as to distribution of decedents' 
 estates furnishes no satisfactory guide. Money recovered under the Fatal 
 Accidents Act, 1 Geo. V. (Ont.) c. 33, or the Ontario Workmen's Com- 
 pensation for Injuries enactments, may properly be apportioned by the 
 Court in one of two ways: (1) By finding the amount of pecuniary dam- 
 ages which each of the claimants has really sustained, and if the whole 
 l)e more or less than the fixed sums, awarding to each his proper propor- 
 tion; or (2) by finding the proportion which the right of each bears to 
 the others, and dividing the amount available accordingly. Infant step- 
 children of the deceased who were dependent upon him for support have 
 a right to share in the distribution of the proceeds of money collected 
 under the Ontario Workmen's Compensation for Injuries enactments or the 
 Fatal Accidents Act, 1 Geo. V. (Ont.) c. 33, as damages for his death 
 through the negligence of another, though in the apportionment of the 
 fund they would not be entitled to as large a sum as would be children of 
 deceased's own. 
 
 Brown v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 350, 11 D.L.R. 97, 28 
 O.L.R. 354. 
 
 E. Workmen's Compensation Act. 
 
 IlTJUBT affecting CLAIMANT'S EARNING POWER. 
 
 In estimating compensatiou imder the Workmen's Compensation Act, for 
 
DAMAGES. 213 
 
 Ike losB of a tknmh, eonsidcTation taost be girem to the fiwt tliat vhile 
 tike dainant is not therebr entirely prevented from carrying oa kis oecn- 
 patMf, his dances of amfHajmait in competition with others are lessened, 
 aad his earning pover eonaeqpientiT reduced. 
 Boylance t. Can. Pac. Rv. Co., 14 B.CJ8- 20. 
 
 I^:aTH OIF woKCiiEX — ^Actios bt widow — Ita>ccnox or tssr«A5CK 
 
 MO:rETS. 
 
 In an action mder tbe Workm<«D*$ Compensation for Injuries Art, br 
 the widow and administratrix of a man wbo was killed while in tbe 
 ea^hiyai^rt of tbe defendants, to recoTer damages as compensation for 
 his death, the evidence shewed that tbe damages, based upon an estimate 
 of the wages for three jears of a person in the same grade as the deceased, 
 would amount to at least $23X>. Counsel for the plaintiff, howero-, in 
 addressing the jury told them that they should deduct from the amount 
 they found on that basis a sum of $1,000 which the plaintiff had received 
 fnr insuraaee on the* life of the deceased. Tbe jury announced a Terdict 
 <rf (1,200, Bot saying that they had found $±.200 and deducted $1,000; but 
 the trial Judge a^ed them if that was what they meant, and tbey said 
 it was: — ^Held. having regard to s. 7 of the Woiinnen's Compen«ati<m for 
 Injuries Act, R.S.O. 1897, e. 160, that tbe $1,000 ought not to have been 
 deducted; and that, upon the findings of tbe jury, judgment dmnld be 
 entered fm- $2,200. [Beckett r. Grand Trunk Ry. Co. (18S3), 8 OJL 601, 
 13 AJL (Out.) 174, 16 Can. S.CJL 713. and Grand Trunk Ry. Co. v. Joi- 
 nings (1888), 13 App. Cas. 800, specially refored to.] 
 
 Dawson t. Xiagaua t St. Catharines Ry. Co.. 12 Can. By. Cas. 107, 22 
 OXJL 69. 
 
 [Varied in 12 Can- Ry. Cas. 411, 23 OX.R. 670] 
 
 Death of wc«kmax — ^Acttai. rEctrsiAmr toss — Pboceeds op accidest nt- 
 sraA:^cE pmjct. 
 The plaintiff sued, as administratrix of tbe estate of her deceased hus- 
 band, to recover damages for his death, alleged to have been caused, while 
 be was a workman in the defendants' employment, by tbeir negligence. At 
 the trial the jury found n^igence of the defendants and absence of con- 
 tributosy negligence on the part of the plaintiff; they assessed the dam- 
 ages at $1,200. Tbe trial Jud^. on questioning the jury, fotmd that they 
 bad estimated the damages, under the Woclcnea*s Comp«isation fcM- In- 
 juries Act, at $2,200, and had deducted $1,000 which the plaintiff bad re- 
 ceived fnnn the proceeds of an accident insurance policy upon the life of 
 her htsband; and be directed judgment to be entered for the plaintiff for 
 6,200: — Held, that tbe action rested for its basi^ upon tbe Fatal Acci- 
 dents Act, R.S.O. 1897, e. 166 (now 1 Geo. V. c. 33>. and upon it alone. 
 althoii^ tke aaMmnt recoverable was necessarily limited by the provisions 
 «»f the Wrnkmen's Compensation for Injuries Act. Under the Fatal Acci- 
 dents A^ tbe only recovery possible is in respect of proved pecuniary 
 loss; and it is tbe exclusive province of the jury, upon tbe evidence and 
 under proper instructions by the Judge, to fix tbe amount of such loiss. 
 limited in such a case as this by tbe maximum amount recoverable under 
 the first part of s. 7 of the Workmen's Compensation for Injuries Act, but 
 unaffected by the latter part of that section, whidi has no application in 
 a case where the plaintiff's actual pecuniary loss is to be ascertained. Tbe 
 jury should be told that it is their duty to take into aeeount such items 
 as the insurance money in q[uestion. bat there is no cast-irmi rule which 
 eompds them to deduct the whole amount. They are to consider all the 
 carenmstaaees, that included, and to return such a verdict as the whole 
 
214 DAMAGES. 
 
 evidence warrants. Semble, that there is no distinction in this regard 
 between moneys received under a life insurance policy and moneys re- 
 ceived under an accident insurance policy. [Grand Trunk Ry. Co. v. Jen- 
 nings (1888), 13 App. Cas. 800, followed. Hicks v. Newport, etc., Ry. 
 Co. (1857), 4 B. & S. 403 (n.), remarkttl upon] :— Held, also, that the 
 findings of the jury were based upon reasonably sufficient evidence, and 
 should not be di8turl)ed. Judgment of Clute, J., 22 O.L.R. 69, 12 Can. 
 Ry. Cas. 107, varied by directing a new assessment of damages, if the 
 defendants desired it. 
 
 Dawson v. Niagara, St. Catharines & Toronto Ry. Co., 12 Can. Ry. Cas. 
 411, 23 O.L.R. 670. 
 
 WaGE-EARXIXG capacity — HlGHEB WAGE NeW EMPLOYMENT. 
 
 A reduction in wage-earning capacity is to be established according to 
 the ordinary rules, and tlie employer cannot, by offering a higher wage 
 or a new employment at the old figures, prevent tlie workman from ob- 
 taining compensation under the Quebec VVorkmen'^ Compensation Act. 
 [Grand Trunk Ry. Co. v. McDoiinoll, 5 DJ..R. 65, 18 Rev. de Jur. 369, fol- 
 lowed.] 
 
 McDonnell v. Can. I'ac. Ry. Co.. 7 D.L.R. 138, 22 Que. K.B. 207. 
 
 Medical services — Nurses — T^oss of time — Expenses of cube. 
 
 Damages to the amount of .$1,750 are not excessive in an action under 
 the Employers' Liability Act (B.C.) where the plaintiff, a stevedore, was 
 struck between the shoulders by the fall of a "sling board" and traumatic 
 neurasthenia resulted, the medical treatment of wliieh is particularly ex- 
 pensive. [Toronto Ry. Co. v. Toms, 44 Can. S.C.R. 268, referred to.] 
 
 Snell V. Victoria & Vancouver Stevedoring Co., 8 D.L.R. 32. 
 
 Death of employee — Workmen's Compensation Act (Sask. ) — Assess- 
 ment. 
 
 In estimating the compensation recoverable under s. 15 of the Work- 
 men's Compensation Act, Sask. Stat. 1 910-1911, c. 9, of such sum as is 
 found to be equivalent to the estimated earnings during the three years 
 preceding the injury in like employment, a shewing of $182 for one and 
 three-quarter months is not of itself, under the principle of the Act, suffi- 
 cient to base a finding in excess of $1,800 for the three years. [Uhlen- 
 burgh V. Prince Albert Lumber Co., 9 D.L.R. 639, followed.] 
 
 Kennedy v. Grand Trunk Pacific Ry. Co., 16 Can. Ry. Cas. 46, 15 D.L.R. 
 172. 
 
 F. Injury to Property. 
 Trespass — Special damage — Measure of. 
 
 The rental value of land is not to be adopted as the measure of dam- 
 ages for a trespass thereon if special damage is alleged and proved and 
 the trespasser will l)e liable for loss shewn to have been suffered by the 
 owner by reason of his being deprived of an actually intended and natural 
 and probable use of his land. [France v. Gaudet, L.R. 6 Q.B. 199, fol- 
 lowed.] 
 
 Marson v. Grand Trunk Pac. Ry. Co. (Alta.), 14 Can. Ry. Cas. 26, 
 1 D.L.R. 850. 
 
 [Followed in Lavallee v. Can. Northern Ry. Co., 4 D.L.R. 376.] 
 
 Forcible possession of land — Anticipated use. 
 
 The extension by the owner of land of an existing pig corral is not such 
 a peculiar and unusual use of tlie land as will relieve a trespasser from 
 the duty of anticipating the probability of it, and being charged in dam- 
 
DAMAGES. 215 
 
 ases for the imkerimmn with tdbe oners mtrndfcd eM Tg fa g of kis ri^t 
 is tkai rayedL 
 
 Harm t. Grud Tnmk P»e. St. Col (A]ta.i>. 14 Ou. Br. Cu^ ^ 1 
 DXuB. 8i0. 
 
 ITolknrMi is Larallcr r. Ca&. Xortlwn Rt. Cou 4 DJ..B. 37«.] 
 
 Lass of rwoFn — ^Excursiox runt issm. 
 
 Vkhm extaTstioas aad ottkrr trespasses br a nxHraj campaaj prvTvaf- 
 cd the laadovBcr Iium ertriliag kis pip corral so as to keep tke iacrease 
 of tke pi^ aad tke eocral tkexekf bceuae cio> ad ed aad aakeahkr. ie!<«]t- 
 iap ia tke deatk ai aa^« of tke ^gs aad tke depseciatioa oi otkers ia lalae. 
 tke oner ariU ke liauled to mark daaa^ as would kare nsalted kad ke 
 l edf e d tke aaoaker of kis |^s to vkat ke kad tkeretoiose ^df kept, 
 aad ke eaaaot le t mei as speeial dana^ mart tkaa tke diffenaKe ia tike 
 ariiiap value, at tke tiae of tke trespass «rf tke jn^ ke ^oold kave re- 
 ■MMtd aad sidd for lack of aeco— Mxiatina to kcq» tkaa aad tkeir valiie at 
 tke tiaw vkea tker voold kave bcea tke Moot fit to sril less tke saiia^ ia 
 feed aad lakovr bjr reasoa of tke ledfcd anDBiher. 
 
 MarsoB r. Grand TradE FteL Rj. Ok. (iklta-K U Caa. Rr. Cu. ^ 1 
 D J-R. 8»- 
 
 P^oUowed ia lavaDce t. Caa. Xorthen Itr. Cou 4 T>JLIL SIIl] 
 
 llExsTiK — ^WaoxoTX msaaoxAL or sm isack — Stfficiei^ct. 
 
 Tke ^ca;svre of damap* far tke vroagfal mioral br a railaaj eo^- 
 paaj of a «par trark ad|a(eat to a coal aad taiBher Tard. irvrnk wkick tzack. 
 at a aiill expense, coal aad foiriter could ke naloaded froui cars diieetk- 
 iato sork jard. is tke additional co^ of kaadliag aad l»*iili»g of suck 
 naaawilities fnaa tke frn^t rards oi tke compaar to tke coal aad faiBher 
 pud. 
 
 RobiKou X. Caa. Novtk. Rr. Col ilfaa-h 14 Caa. Rt. Ca& ±8:1. 3 D.L.R. 
 
 n«L 
 
 [See < Caa. Rr. Ca*. 101. 37 Caa. S.CR. 541. 11 Caa. Rt. Ca:i. ±S9. W 
 Maa. L.R. 300. 11 Caa. Rt. Ca&. 304, 43 Caa. S.CR. 3S7. 13 Caa. Rj. 
 Casw 41*. £191*] A-C. 739.]' 
 
 JrusMcnos — ^LaaEMsnr fob loss, daiuce. <m ixjcbt. 
 
 I'ader & 230 of tke Railwar Act. 190£. tke Baud ka5 jnrisdictioa to 
 aatkoriie tke lajiag of a fas naia vader tke tracks of a railvaT coaa- 
 paar, br a pnUie ntilitT donpaaT. aa adjaceat laadionrBer. aad to fix tke 
 ■iwial of daanpes pajraUe for tke priTile^, iatposi^ as tcnas aad coa- 
 ditioBS pncedeat. tkat tke applicaat amft nadertake full re^oasibiUrr 
 for Buiataiaii^ tke pas aaia aad iadeamifr tke respoadeat froat aar keak 
 *■—■ f or iajmy to its piup ei tj, c i do y ee A . mr tke txaTidiap public-. 
 
 Moatreal L^t^ Heat 4 Power Col t. Graad Truak Rt. Cou, IT Caa. Rj. 
 Cas. 330. 
 
 La3V AWTTTCSG ox BAirarAT — COMPE5SATIOX. 
 
 Tke oaa e t <rf laad adjaeeat to or abnttii^ upoa tke itieet over wkick 
 a railaay saligeet to tke Railwaj Art. 190t, is to ke eoastrueted bst ke 
 aaankd c o Bi pmM tiaa br tke Board nader tke statute 1 A 2 Geo. Y. e' 22. 
 a. <6. for caa a eyeat iajurx to suck laad. akkon^ daaa^es of tkat ekar- 
 aeter caaoaot be awarded ia aa arbitratioa nader tke Railaaj Act. [Graad 
 Truak Faeifie Rt. Co. t. Fort Williaai. Fort WiDiaa Laad t lamatBeat 
 Col. et aU [1912] A.C. 224^ 13 Caa. Rr. Gu. 1ST. refetred to.] 
 
 Caa. Xortken Ontario Rr. Co. t. HoUitck, 19 Can. 1^. Ou. 112. 50 Gu. 
 S-C.R. 2S5, 20 Di.R. 557.* 
 
216 DAMAGES. 
 
 Railway ox highway — ^Lakds injuriously affected — ^Release. 
 
 The Board has no jurisdiction to grant damages for lands injuriously 
 affected by the construction of a railway on a highway where the appli- 
 cant has signed an agreement releasing the railway company from such 
 claims. Such a release must stand until set aside by a Court of competent 
 jurisdiction. 
 
 Remy v. Lake Erie & Northern Ry. Co., 20 Can. Ry. Cas. 207. 
 
 Klectric railway on highway — Lands injuriously affected. 
 
 Damages have never yet been allowed by the Board to an adjoining land- 
 owner for the construction of an electric railway along a highway. The 
 Board dismissed the claim of the applicant for damages under s. 235, of 
 tlie Railway Act, 1906, alleging that his lands had been injuriously affect- 
 ed by the construction of an electric railway on the highway made two 
 years after the work was finished. 
 
 Griffin v. Toronto Eastern Ry. Co., 20 Can, Ry. Cas. 210. 
 
 Gbade cbossings — ^Elimination — Closing highway — Jurisdiction. 
 
 The Board is empowered by the Railway Act, 1906, s. 238, as amended 
 by 8 & 9 Edw. VII. c. 32, s. 5, to act upon its own motion to facilitate the 
 elimination or diminishing of grade crossings; and for this purpose 
 authority is conferred upon the Board to order that part of a highway be 
 closed or to require the proper municipal authority to close it and the 
 railway company is not required to comply wuth s. 167. [Parkdale v. 
 West (1887), 12 App. Cas. 602, distinguished.] 
 
 Brant v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 268, 36 O.L.R. 619, 30 
 D.L.R. 782. 
 
 [Followed in North Bay Landowners v. Can. Northern Ontario Ry. Co., 
 23 Can. Ry. Cas. 35.] 
 
 Altering grade of highway — Damages — Remedy — Arbitkation. 
 
 For damages to property by altering the grade of a street under a valid 
 order of the Board, to alter a grade crossing, the remedy is by arbitration 
 proceedings under the Railway Act, 1906, not by an action against the 
 railway company acting under the order. 
 
 Brant v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 268, 36 O.L.R. 619, 30 
 D.L.R. 782. 
 
 [Followed in North Bay Landowners & Can. Northern Ontario Ry. Co., 
 23 Can. Ry. Cas. 35.] 
 
 Street Railway Crossing — Diamond — Derailment of Train — ^Limita- 
 tion OF Action. 
 The defendants' railway crossed at grade the plaintiffs' tracks under 
 an order of the Board, which directed that the defendants provide a dia- 
 mond for the crossing at their own expense. Several years later cars of 
 the plaintiffs passing over the diamond became derailed and were injured 
 or destroyed, and an action was brought more than a year after the acci- 
 dent to recover damages for the injury and destruction. The plaintiffs 
 charged that it was the defendants' duty to keep the diamond and all ap- 
 pliances in connection with the crossing in good repair, which they had 
 failed to do and had so caused the derailment and damage. The derail- 
 ment was not shewn to have been the result of want of maintenance or of 
 negligence on the part of the defendants and they were not bound under 
 the order of the Board to maintain and repair the diamond. The action 
 was dismissed because barred by s. 306 of the TJailway Act. [Guelph & 
 Coder ich Ry. Co. v. Guelph Radial Ry. Co., 5 Can. Hy. Cas. 180; Grand 
 
DAMAGES. 217 
 
 Tmnk St. Co. t. Umtcd CooBtws Rf. C<k, 7 Can. St. Cas. 294; Can. 
 Xorthern'Sr. Co. t. BobisMB [19U] A.a 739, 13 Can. St. Ca& 412, 
 distinguished; Edmonton Street Rj. Ool t. Gnnd Txunk Faeifie By. Col, 
 7 DJ^R. SSg, refenvd ta.] 
 
 Gnnd Trunk Sj. Co. t. Snraia Street St. Co., 21 Can. Br. Cas. 160, 37 
 OXJL 477. 
 
 llabiutt to abctteng otxebs fut obsisitcnxe hjchvat wuh kail.wat 
 — Rekedt. 
 
 A railwaT compaoT f<H- whidi a mnnicipal corpmatkM agrees to close 
 a eextain street, and vliiA is anthoriied by the Board to uiMtin et a level 
 ai oeman g thereon. i$ liable in damages to the ovnets of lots oa said street, 
 if, briore the street is dosed br the dty, the eompaay obstmeta the street 
 by constructing a railway across it; sodi damages may be reeoTered in an 
 action, ahhoogfa a claim for nHnpensation is pending, under the Bailway 
 Jkct, 1906, for trespass on the land of the plaintiff actually taken for tiiB 
 parpoees of the railway, or for portions of lots of whidi parts have been 
 so taken. 
 
 Holmested t. Moose Jaw and Can. Xorthem By. Co., 22 Can. By. Ca& 
 169, 9 Sask. L.B. 327. 29 DX.B. 761. 
 
 [Followed in Holmested t. Mooee Jaw and Ouu Northern Ry. Co., 22 
 Can. Ry. Cas. IH, 36 Di.R. 747.] 
 
 TEXDES of AMOCrr OF DAilAGSS F0» COSStWrCTIOX COXDtnOX F g fcC tl ULX T 
 
 — Smoke ASit xoise. 
 
 S. 235 of the RaUway Act, 1906. as amended by 1-2 Geo. V. c 22, s. 6, 
 does not make the payment or tender of the amount of damages the land 
 iroold suffer by the buildii^ of the railway, a condition precedent to the 
 bniMing of such railway. The section does not gire the Court jurisdiction 
 to award damages due to noise, smoke and vibration caused by operation 
 of the railway: any such claim should be made by application to the 
 Board. [Parkdale v. West (1887\, 12 App. Cas. 602. referred to.] 
 
 H<Hiistein v. Can. Xorthem Ry. Co., 23 Can. Ry. Cas. 424, 44 DXJ8. 511. 
 
 LxABmnr roa damages cattskd bt blasttsg. 
 
 A railway company specially authorized bv Dominion Act (2 Geo. V. e. 
 7411, to construct and operate a tunnel is liable in damages under the. Do- 
 minicm Railway Act and the common law of Quebec for injury to property 
 caused by blasting in connection with such eonstructioQ although a neces- 
 sary consequmce thereof. 
 
 Biektfdike t. Can. Xorthem Montreal Tunnel t Terminal Co., 38 D.LJI. 
 425. 
 
 HiSHirATS — Chaxgotg gkade of stsext — Sevwat — Damacks to eaxi>- 
 
 OUTEB. 
 The fact that an order-in-cotmcil authorizing the construction of a sub- 
 way at a railway crossing had directed that ~all land damages^ should be 
 paid by the municipality <hi whose behalf the application had been made, 
 in pursuance of the Xova Scotia Railways Act. R.S.X.S. 1900, c. 99. ss. 
 178, 179, does not confer a right of action in damages for the diange of 
 grade against the municipality upon a landowner whose land fronted 
 upon the opposite side of the street from that on which the subway was 
 built and where there was consequently left to the landowner his original 
 mode of access on his side of the street, although of diminished width. 
 [Compare Parkdale v. West, 12 A.C. 602, 56 L^.P.C. 66, affirming West t. 
 
218 DAMAGES. 
 
 Parkdale, 12 Can. S.C.R. 250; and see East Freemantle v. Annois, [1902] 
 A.C. 213.] 
 
 Burt V. Sydney, 15 D.L.R. 429. 
 
 Independent contractor — Liability of employer — Injuries to ad.toin- 
 ING owner. 
 
 A railway company will be liable for damage to land adjoining its 
 right-of-way occasioned by the negligent operations of its contractors for 
 the construction of the roadbed, if in letting the contract no care was 
 exercised by the railway company to provide that in the blasting opera- 
 tions which were an essential part of the contract the "top-lofting" method 
 which would throw debris upon the lands of the adjoining owner should 
 not be adopted, and the contractors damaged the adjoining property by 
 following that method where anotlier course of operations was open to 
 them under which the injury might have been avoided. [Hounsome v. 
 Vancouver Power Co., 9 D.L.R. 82.3, 18 B.C.R. 81, affirmed; Hardacre v. 
 Idle District, [1896] 1 Q.B. 335, and Robinson v. Beaconsfield, [1911] 2 
 Ch. 188, referred to.] 
 
 Vancouver Power Co. v. Hounsome, 19 D.L.R. 200. 
 
 Release — What included in — Injuring adjoini^jg property. 
 
 A release of all damages which the landowner conveying a strip of land 
 for a railway right-of-way may sustain "by reason of the construction 
 and operation of the railway,' and which does not specifically cover inju- 
 ries due to the company's negligence, will not prevent a recovery for dam- 
 ages occasioned to the adjoining lands of the grantor by blasting opera- 
 tions conducted by tlie construction contractor, in respect of which the 
 railway company in letting the contract was negligent in imposing no 
 precautions for protecting the adjoining land. 
 
 [Hounsome v. Vancouver Power Co., 9 D.L.R. 823, 18 B.C.R. 81, af- 
 firmed.] 
 
 Vancouver Power Co. v. Hounsome, 19 D.L.R. 200. 
 
 ]'"xpropriation — Compensation — Loss of access — Highway crossed by 
 
 RAILWAY. 
 
 The obstruction of natural, proximate and direct approaches to land by 
 the construction of a railway, across existing streets, entitles the owner 
 to compensation for depreciation in the value of the land, as against the 
 railway company, but not against the city agreeing to the location. 
 [Holmested v. C.'n. Ry. Co., 22 Can. Ry. Cas. 169; Holditch v. Can. North- 
 ern Ontario Ry. Co., 27 D.L.R. 14, [li)16] 1 A.C. 536, 20 Can. Ry. Cas. 
 101, followed.] 
 
 Holmested v. Moose Jaw and Can. Northern Ry. Co., 22 Can. Ry. Cas. 
 177, 30 D.L.R. 747. 
 
 Damages — Loss or architect's drawixgs — Measure of damages — ^Value 
 
 OF PLANS. 
 
 Where architectural plans of a building submitted in competition and 
 not accepted were, in the course of transit, destroyed by fire, the proper 
 measure of damages is the value of the plans to the architect for exhi- 
 bition purposes, and not the cost of their reproduction. 
 
 Nicolais v. Dominion Express Co., 20 B.C.R. 8. 
 
 Jurisdiction — Highway closed — By-laws — Landowners, adjacent and 
 abutting. 
 Where streets are crossed by the construction of a railway after an 
 
DEMURRAGE. 219 
 
 aoreement is entered into witla the municipality speeifring the manner in 
 whidi such crossings are to be made, providing that by-laws are to be 
 passed to close portions of certain streets, and for the payment of com- 
 pensation by the railway company, and an order of the Board is obtained 
 granting permission to cross the streets upon the ecmditions of such agree- 
 ment and providing that the railway company be responsible for any com- 
 |(ensati<Mi which property owners affected (i. e., landowners adjacent or 
 abutting on the streets t may be legally entitled to recover under the Ilaii- 
 way Act and the Municipal Act, and such compensation is withheld or 
 refused to be made by the railway company, the Board has jurisdiction to 
 determine it or refer the matter either to a member of the Board under s. 
 13, amended by 7 & 8 Iklw. VII. c. 62 (D. i, s. 4, or to a person appointed 
 by the Board under s. 60 for inquiry and report, and the previous order 
 of the Board granting permission to carry the railway across the streets 
 should be amended accordingly. Subsequently a by-law was passed, clos- 
 ing the portions of such streets and an amending order became unneces- 
 sary. [See 8S. 29 and 235, amended by 1 & 2 Geo. V. c 22, s. 6; Holditch 
 v. Can. Northern Ontario Ry. Co.. [1*916] 1 A.C. .>36. at p. 543. 20 Can. 
 Ry. Gas. 101; Brant v. Can."Pac. Ry. Co., 36 OX-R. 619, 20 Can. Ry. Cas. 
 268, followed. Can. Northern Chitario Ry. Co. v. North Bay, 18 Can. Ry. 
 Cas. 309, reversed.] 
 
 North Bay Landowners v. Can. Northern Ontario Ry. Co., 23 Can. Ry. 
 Cas. 3a. 
 
 D£B£NTUB£S. 
 See Bonds and Securities. 
 
 DECEIT. 
 See Fraud and Deceit. 
 
 DEMUEBAGE. 
 As to charges, see Tolls and Tariffs. 
 
 QCICK Bia.F.%SE OF CABS SmaIX AXD LABGE DKALEKS CSEDIT FOB FBEE 
 
 •miE. 
 The Wallaceburg Sugar Co. applied to the Board for an order directing 
 the railway c-ompanies to establish what is generally known as an Average 
 Demurrage Plan. Under the Canadian Car Service Rules (framed for the 
 quick release of cars rather than the collection of demurrage* of the 
 Canadian Car Service Bureau, to whose rules Canadian and foreign rail- 
 way companies operating in Canada conform. 48 hours free time are al- 
 lowed to dealers for the unloading of cars, for an additional time $1.00 
 per car per day is charged unless on account of the number of ears ten- 
 dered to the dealer being unreasonable or the inclemency of the weather 
 preventing unloading with reasonable despatch, an extension of free time 
 is justified and allowed. By the establishmt-nt of the Average Demurrage 
 Plan the dealer would get credit on future shipments of the free time he 
 had saved under the 48 hours previously and could hold such shipments 
 in cars without any demurrage charge until the time credited to him had 
 expired: — Held (1), that in the public interest the application should be 
 dismissed; 48 hours under ordinary circumstances being sufficient time for 
 unloading cars. (2) That the contract of carriage is, that the car con- 
 taining the goods after reaching the point of destination shall be released 
 
220 DEMURRAGE. 
 
 and unloaded with all reasonable despatch, not to exceed 48 hours in the 
 case under consideration. (3) The penalty of $1.00 per day for extra 
 time makes the dealer prompt in releasing cars and thus increases the 
 supply of them for the shipping public, while the Average Demurrage 
 Plan might make a dealer dilatory in unloading so long as he had free 
 time to his credit. (4) Kach car. under the Car Service Rules being dealt 
 with by itself, insures equal treatment between the smaller and larger 
 dealer, but if the Average Demurrage Plan were in force it would give 
 preference and advantage to the dealer with a large number of cars to un- 
 load and with a large capacity for storage. 
 
 Wallaceburg Sugar Co. v. Canadian Car Service Bureau (Average De- 
 murrage Case), 8 Can. Ey. Cas. 332. 
 
 Free time — Extex'sion — ^Unreasonableness of two-day umit — Weather 
 conditions. 
 
 Tlie applicants applied to the Board to extend the free time for unload- 
 ing charcoal from two to three days: — Held (1), that the applicants have 
 failed to shew that the time limit of two days is not sufficient under ordi- 
 nary circumstances and the onus of establishing the unreasonableness of 
 the two-day limit is upon them. (2) Railway companies now allow addi- 
 tional free time when the weather conditions are unfavourable for unload- 
 ing expeditiously. (3) The application must fail, the time limit of two 
 days being sufficient. 
 
 McDiarmid v. Grand Trunk and Can. Pac. Ry. Cos., 8 Can. Ry. Cas. 337. 
 
 Demurrage charges — Spur track facilities. 
 
 Demurrage charges upon cars, due to slowness in unloading them by 
 reason of a longer haul, may be considered as an element of damages for 
 the wrongful removal by a railway company of a spur track adjacent to a 
 coal and lumber yard, from which tracks cars of coal and lumber could be 
 quickly and cheaply unloaded directly into such yard, where, by reason 
 of such removal, such commodities had to be hauled by the owner of such 
 yard from a greater distance in a slower manner. 
 
 Robinson v. Can. Northern Ry. Co. (Man.), 14 Can. Ry. Cas. 281, 5 
 D.L.R. 716. 
 
 [See 6 Can. Ry. Cas. 101, 37 Can. S.C.R. 541, 11 Can. Ry. Cas. 289, 19 
 Man. L.R. 300, 11 Can. Ry. Cas. 289, 43 Can. S.C.R. 387, 13 Can. Rv. Cas. 
 412, [1912] A. C. 739.] 
 
 Free time — Transshipping graix. 
 
 A period of five days, excluding Sundays and legal holidays, is sufficient 
 time free from demurrage for transshipping grain from cars to vessels 
 at St. John, N.B. 
 
 Montreal Board of Trade v. Can. Pac. Ry. Co. (St. John Demurrage 
 Case), 23 Can. Ry. Cas. 10. 
 
 Notice of arrival — Delivery of notice — Demurrage. 
 
 An advice note mailed to a consignee, but not received by him, is not 
 notice within the meaning of a bill of lading subjecting the goods to de- 
 murrage charges if not removed after "written notice has been sent or 
 given;" the burden of proving that the notice reached the consignee is 
 upon the sender. 
 
 Duquette v. Can. Pac. Ry. Co., 37 D.L.R. 298. 
 
 Demurrage rules — Revised and adopted. 
 
 Canadian Car Demurrage Rules were revised and adopted by the Board. 
 
DEVIATIOX OF LIXE. 221 
 
 Diseussion of average and reciprocal demnrrage was postponed until alter 
 the conclusion of the war. 
 
 Re Car Demurrage Rules (Canadian Car Demurrage Rules Case), 24 
 Can. Rt. Cas. 180. 
 
 DEPABTMENT OF RATLWATS. 
 See Goremment Railwars. 
 
 DTTRATTiMENT. 
 
 See Negligence; Rails and Roadbed; Street Railways; CarrioB of Pas- 
 sengers; Crossing Injuries; Employees. 
 
 DEVIATION OF LINE. 
 
 JCKISDICnOX — CONSTSrCTED UXE — ^LOCATIOS ReQCEST — ^MXTXICIPAI. BY- 
 LAW — Special act. 
 
 The Board has no power under s. 167 of the Railway Act, 1906, to order 
 deviations, changes or alterations in a constructed line of railway, of 
 which the location has been definitely established, except upon the request 
 of the railway company. Anglin, J., contra. [Grand Trunk Rv. Co. v. 
 Department of Agriculture for Ontario (Vinelands Station Case). 42 Can. 
 S.C.R. 5,57. 10 Can. Ry. Cas, 84, distinguished.] Per Fitzpatrick, C.-T.. 
 and Idington, J. — The Dominicm statute. 5S & 59 Vict. c. 66, confirming 
 the municipal by-law by which the location of the portion of the railway 
 in question was definitely established constitutes a special Act within the 
 meaning of the Railway Act, 1006. ss. 2 (28i and 3. [Can. Pac. Ry. Co. 
 V. Toronto (Toronto Viaduct Case). [1911] A.C. 461, 12 Can. Ry! Cas. 
 378, distinguished.] 
 
 Hamilton v. Toronto, Hamilton k Buffalo Ry. Co. (Hunter Street Case), 
 17 Can. Ry. Cas. 370, 50 Can. S.C.R. 128. 
 
 JciasDicnox — ^Located axd coxstbtcted lixes — Special act — Mrxic- 
 
 IPAL BY-LAW. 
 
 Ss. 26 (2> and 2S of the Railway Act, 1906. give the Board jurisdiction 
 under the provisions of s. 167 to order railway companies to deviate 
 their located and constructed lines. If the powers of the Board are not 
 over-ridden by the special Act and municipal by-law. it may. on fair and 
 reasonable terms, disregard any contract, agreement or arrangement by 
 ordering deviations of the located and constructed lines of railwav com- 
 panies, as it may decide that the public interest and safety demands. 
 [Grand Trunk Ry. Co. v. Department of Agriculture for Ontario (Vine- 
 lands Station Case). 42 Can. S.CJl. 557. 10 Can. Ry. Cas. 84: C.P.R. 
 Co. v. Toronto (Toronto Viaduct Casei. [1911] A.C. 461. 12 Can. Ry. Cas. 
 378, followed; Central Saskatchewan Boards of Trade v. Grand Trunk 
 Pacific Ry. Co.. 10 Can. Ry. Cas. 135; British Columbia and Alberta Mu- 
 nicipalities V. Grand Trunk Pacific Rv. Co., 13 Can. Rv. Cas. 463. referred 
 to.] 
 
 Hamilton t. Toronto, Hamilton & Buffalo Ry. Co. (Hunter Street C^ase), 
 17 Can. Rv. Cas. 353. 
 
 DRUNKENNESS. 
 EjeetioB of dmnkoi passenger from train, see Carriers of Passengers. 
 
222 DISCOVERY. 
 
 DIRECTORS. 
 
 See Provisional Directors. 
 
 Prohibition of railway directors to be parties to railway construction 
 contracts, see Contracts; Constitutional Law. 
 
 DISCOVERY. 
 
 Examination — Privileged docume.nts — Reports of officials to com- 
 pany RESPECTING ACCIDENTS. 
 
 (1) Reports made by the employees of a railway company to their supe- 
 rior officers in accordance with its rules concerninor an accident resulting 
 in death, and immediately thereafter, are not privileged from production 
 in an action "against the company for damages arising out of the acci- 
 dent, if they were made in the discharge of the regular duties of such 
 employees and for the purpose of furnishing to their superiors informa- 
 tion as to the accident itself and were not furnislied merely as materials 
 from which the solicitor of the company might make up. a brief, and an 
 officer of the company who has made an afiidavit on production of docu- 
 ments, must, on his examination on such affidavit, answer questions as to 
 whether such reports were made, who received them, and how they came 
 to be made, and generally furnish such information concerning them that 
 the Court may be in a position to decide, on a further motion, whether 
 they are privileged or not. [VVooley v. North London Ry. Co. (1869), 
 L.li. 4 C.P. 602: and Anderson v. Bank of British Columbia (1876), 2 
 Ch. D. 644, followed.] (2) If any of the information sought on such exam- 
 ination, and to which the plaintiff is entitled, is not witliin the knowledge 
 of the depcment, he must ascertain the facts and give the information. 
 [Harris v. Toronto Elec. Light Co. (18!M)), 18 P.R. (Ont.) 285, followed.] 
 (3) That the names of some of tlie defendants' witnesses would be dis- 
 closed, if the questions were answered is not a sufficient reason for refusing 
 to answer. [Marriott v. Chamberlain (ISSG), 17 Q.B.D. at p. 165, and Hum- 
 phries v. Taylor (1888), 39 Ch.D. 693. followed.] (4) Questions as to 
 whether reports had been sent in as to the condition of the locomotive 
 before the accident, and as to repairs thereto, must also be answered. 
 
 Savage v. Can. Pac. Ry. Co., 15 Man. L.R. 401. 
 
 [Relied on in Bain v. Can. Pac. Ry. Co., 15 Man. L.R. 545.] 
 
 Reports of officials of company respecting accidents. 
 
 (1) In an action for damages resulting from a railway accident, when 
 negligence is cliarged. reports of officials of the company as to the acci- 
 dent made before the defendants had any notice of litigation, and in ac- 
 cordance with the rules of the company, are not privileged from produc- 
 tion, although one of the purposes for which they were prepared was for 
 the information of the company's solicitor in view of possible litigation. 
 (2) The fact that the reports sought to be withheld were written on forms 
 all headed, "For the informati(m of the solicitor of the company and his 
 advice thereon," is not sufficient of itself to protect them from produc- 
 tion. (3) When the officer of the defendants who made the afiidavit on 
 production was cross-examined upon it and as a result made a second affi- 
 davit producing a number of documents for which he had claimed priv- 
 ilege in the first, the examination on the first affidavit may be used to 
 contradict the statements in the second, although there was no further ex- 
 amination. (4) An affidavit on production cannot be contradicted by a 
 
DISCOVERY. 22S 
 
 wtime raal afidarit; bat, if tiii^ aar eooiw aa admiseiaa oi it» iaoor- 
 nctaieas caa be ^timrd. tbe afidarit caaaov $.taad. 
 ^va^ T. Gu. Pa<^. Rj. Co, 1€ Maa. LJL 3SL. 
 
 DAMLiCKS FOB ACCaC7T — ^REFOaTS — C.C J. SM. 
 
 A uiai|»aj saed ia daBB^B «■ aKCoaat of aa aendeat aa j he n— p«1lwi 
 to pradacr at Ae trial all icports of lAe aecideat iHide br its cai^inreH 
 ia tbe ovfiaaiy coarse of tbor Iwajf iny or of tbcir da^, bat aot ite re- 
 ports ande at tbe reqjnest or ia^aace of its soliritor. ia aaswr to iaqniries 
 ■nde to Ifte latter, with a \iewr to aad ia eoateiBpIatioB of aati«ipated lit- 
 i^tiaa. 
 
 Stockcr T. Caa. Fw. Br. Co^ 3 Qoe. P.E. 117. 
 
 Onicni am saolvat comfaxt — Sxaimw acxxt — ^mox FoamA^r — 
 
 Chief olexk rs offhx of cesekal. scmcrnmcvT. 
 
 A ttatina a^eat i? aa officer of a raflaaj eoMpaar viftbia tbe awaaia^ 
 
 «f Bale SOI aad liable to be exaaiaed for d ianw e iT. A sectioa fmi'Min is 
 
 aa olieer, aor is tbe dkief elerk ia tbe office of a geaeral saper- 
 
 B feE****"" ^- CLP-K. Co. 5 T«rr. UK. a03w 
 
 E^OXEZa IX CHABGEl 
 
 Tbe Tord -"naaa^-er^ ia Art. ±SS & C P. but be iaterpreted as be- 
 ji^ tbe anaager of tbe work^ aad ia aa aetioa ia dam^es for aa aeeideat 
 tfe Baa wbo wa$ ia cbar«e of tbe vorts vbca tbe ac e i d ea t took fdaee caa 
 be exaaiaed «m discvmy «a bdhaU of Ae rieftiia off tbe aceideat. 
 
 Piti T. Atlaatie, Qacbec 4 Wcsten Rj. Cou 10 Qne^ P.R. IfiS. 
 
 3IJEBICAL EXAVrXATIOX Ml-U B K SrATEXEXT OF BEFEXCE. 
 
 Aa rv«»iaatioa Jtrndrr Coa. Bole 4MSS is aa cxaiaiaatkia for difconrr, 
 aad tbat rale anrt be ap^ied ia tbe saae war as Coa. Rale 442: aad aa 
 oeder for tbe aiedic^l exawaatioa of tbe plaiatifT. ia aa aetioa vbcre tbe 
 HaMfitr i^ dispoted. vill aot be Bade if opposed before Idhe deliTeij of 
 Ow ■ta'teBKBt of dbCnKe. 
 
 BaiBB T. Tomato Rr. Cou 13 OX^ 4IM. 
 
 ElAiCCSATlOX OF OITICEX OF BtJFLAUAXT COMPAXT IXTOBlfATIOX XOT CS 
 
 FEXSOXAI. KXOaXEBGE OF OFFICEB IteMOBAVDCM rBEFAKES BT OTHEB3 
 
 ReTTSAI. to TOCCH FOB ACCVBACT — DCTT Of OFFICXX TO IXTESsTI- 
 
 CATXL 
 
 Tnser r. Caa. Pae. Rj. Cou 4 WXuR. SSS (Maa.). 
 
 Offkxb or covPAjrr — ^ExersE inuteb. 
 
 Aa e^iae driver ia tbe c^plormeat of a railway eaaipaar is aa «ffic«rr 
 Hmnai witbia tbe Meuii^ of Coa. Role 4?9. aad Bar be ex sMJaed for dis- 
 CBVctj oader tbe pronaoas of tbat rale, f Knigbt t. Graad Tmk Rr. Co. 
 (1«M), 13 P.R. (Oat.) 38S. onrraled. Leitcb r. Graad Trvak R^. Co. 
 fl888), 12 PJK. (Oat.) Ml. CTl. (laW)^ 13 PJK. (Oat.) 30: DaT««« t. 
 Loadoa Street I^. Go. I180SJI, 18 PJS. (Oat.* 223; aad Cksaeinaa t. 
 Ottaaa, Araprior 4t Fairy Soaad Itr. Co. (1SS«>. 18 P.R. (Oat.! 261, 
 iiBiiidfrfd aad applied] 
 
 Morrisoa r. &aad Tra^ Rr. Cou 2 Caa. Rt. Gas. 390, 4 OX.R. 43. 
 
 [Reversed ia 3 OT.R 3& 2 Caa. Rr. Caa. 399; coandend ia Eg^estaa 
 T. Caa. ^r. Rj. Col, S Terr. LJL 304; eoasidered ia Goidaaier t. Caa. 
 Xortb. Rr. Co., 15 3ilaa. I-R. a; foUovcd ia Abreas r. TaaaesB' Asa.. € 
 OlLJL 63l] 
 
224 DISCOVERY. 
 
 Officer of compaxy — Exgink driver. 
 
 On application for leave to examine an engine driver for discovery, 
 under Con. Rule 4.39, as an officer of the defendants, in an action under 
 TI.S.O. 1897, c. IGG, the Fatal Accidents Act:— Held, reversing 4 O.L.R. 43. 
 2 Can. R}'. Cas. 390, that, inasmuch as the engine driver never was in 
 charge of the train, never assumed the duties of conductor, and never 
 acted for the defendants in relation to the control of the train, so as to 
 make him responsible to the defendants, except for the management of 
 his engine, he was not an officer of the company examinable under that 
 rule. 
 
 Morrison v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 398, 5 O.L.R. 38. 
 
 Former agent of company. 
 
 Where relevant information for discovery to the opposite party in a 
 damage action is specially within the knowledge of the plaintiff company's 
 former agent and not of their present manager, the Court may direct that 
 the plaintiffs shall either produce the former agent for discovery, or in 
 the alternative, that the plaintiff company's manager attend for further 
 examination for discovery after having applied to the former agent for 
 the information and thereupon disclose the information so obtained. [Bol- 
 ckow V. Fisher, 10 Q.B.D. 161, distinguished.] 
 
 Ontario & Western Co-operative Fruit Co. v. Hamilton, G. & B. Ry. Co., 
 1 D.L.R. 485, 21 O.W.R. 82. 
 
 Accident reports — Employees. 
 
 A company examined on discovery by a plaintiff injured in a railway 
 accident will be compelled to produce and file a report of such accident 
 prepared by the company's employees (e.g., motorman or conductor) at 
 the time of the accident when such report is required from them in the 
 ordinary course of their dvities; such report being a "document" within 
 the meaning of C.C.P. 289. [Southwark v. Quick, 9 Ruling Cases 587, 
 approved.] 
 
 Feigleman v. Montreal Street Ry. Co., 3 D.L.R. 125, 13 Que. P.R. 353. 
 
 [Reversed in 7 D.L.R. 6, 22 Que.^ K.B. 102.] 
 
 Accident reports — Employees. 
 
 A document or statement of facts prepared by the employees of a com- 
 pany (e.g., conductors and motormen) at the request of the company and 
 ostensibly for the use of the solicitors of the company in case of litiga- 
 tion is a privileged communication of which the adverse party cannot 
 compel the production at an examination on discovery, notwithstanding 
 that such report was made at a time when no litigation was contemplated 
 and that it was only communicated to the solicitors of the company ten 
 months after the accident. [Feigleman v. Montreal Street Ry. Co., 3 D.L.R. 
 ]2.'), reversed.] 
 
 Montreal Street Ry. v. Feigleman, 7 D.L.R. 6, 14 Que. P.R. 108, 19 Rev. 
 Leg. 45, 22 Que. K.B. 102. 
 
 Accident reports — Employeb^s. 
 
 A statement of facts prepared by the employees of a company at the re- 
 quest of the company is privileged although it were only a subterfuge 
 on the part of the company to avoid disclosure of the facts of the action 
 when it appears that the persons making the report prepared it imder the 
 impression that it was to be treated as confidential. [Southwark & Vaux- 
 hall Water Co. v. Quick, L.R. 3 Q.B.D. 315; Anderson v. Bank of British 
 Columbia, L.R. 2 Ch.D. 644; Bondy v. Valois, 15 Rev. Leg. 63; Hunter 
 
DISCOVERY. 225 
 
 r. G.T^ 16 PJL (Ont.) 3So, referred to; Collins t. Londoa General 
 OnmilHts C<k, 68 L.T. 831, followed; see aLso SwaifUnd r. G.T.R, 5 DX.B. 
 750.] 
 
 Montreal Street Rj. t. Fdgleninn. 7 DJLB. 6, 14 Que. P.B. 108, 19 Rev. 
 Leg. 45, 22 Que. K3. 102. 
 
 Repobts of ILulwat Coicmissioxek> — ArFiDATTT ox FBOOCCnOX. 
 Slinpter v. Grand Trunk Ry. Co.. 3 DX.R- 877, 3 O.W.X. 1334. 
 
 PBEXXMIXAKT EXAMISATION OmCE« OF COMFAXT. 
 
 It is not ccMnpelent for tlie plaintiff in an action against a railway com- 
 pany for personal injuries to ose the examination for discoTeiy of an 
 tiffieer of the company for tlie purpose of contradicting an affidaTit filed by 
 such <^cer in his examination on a motion to require the production of 
 certain reports to the company as to the happening of the accident which . 
 gare rise to the action made by its officials who had inrestigated the same, 
 which affidafit was to the effect that such reports were made for the 
 information of the company's solicitor and his advice thereon. 
 
 SwaisUnd v. Grand Tnnd: Ry. Co., 5 DX.R. 750, 3 O.W.X. 960. 
 
 [Referred to in Montreal Street Ry. Co. r. Feigleman, 7 DXuR. 6, 22 
 Que. K3. 102.] 
 
 ACCUWEXT BEPOKTS OFFICES OF COMPAJfT. 
 
 In an examination of an officer of a railway company for discoTery in 
 an action against the company for personal injuries where a motion was 
 made by the plaintiff to require the production by such officer of certain 
 reports to the company as to the happening of the accident whi<^ g*^^ 
 rise to the action, made by its officials who inrestigated the same, an affi- 
 davit as to the privilege of the reports filed by the officer being examined, 
 must clearly and specifically state that they were provided solely for the 
 purpose of being used by the company's solicitor in any litigation which 
 might arise out of such aceidoit and in the absence of such clear and 
 specific statement a further and better affidavit will be directed to be filed. 
 
 Swaisland v. Grand Trunk Ry. Co., 5 D-I^R. 7.50, 3 O.W.X. 960. 
 
 [Referred to in Montreal Street Ry. Co. v. Feigieman, 7 DJ.R. 6, 22 
 Que. K.B. 102.] 
 
 Accident bepotts — Offices of compact. 
 
 Where the plaintiff in an action against a railway company for personal 
 injuries moved, in the examination of an officer of the company for dis- 
 coverr, to have produced certain reports to the company as to the hap- 
 p*wiiig of the accident which gave rise to the action made by its officials 
 who investigated the same, there is no right under the practice established 
 in discovery proceedings to cros^-examine upon an affidavit filed by the 
 officer being examined if such reports were made for the information of 
 the company's solicitor and his advice thereon. 
 
 Swaisland v. Grand Trunk Ry. Co., 5 D.LJL 750. 3 O.W.X. 960. 
 
 [Referred to in Montreal Street Ry. Co. r. Feigieman, 7 D.LJL 6.] 
 
 ACCMEXT KEPOBTS — OFFICES OF COMPAXT. 
 
 In an examination of an officer of a railway company for the purpose of 
 discovery in an action against the c<tmpany for pergonal injuries^ a motion 
 to require the company to produce reports of its employees as to the acci- 
 dent which gave rise to the action, is answered by an affidavit made by 
 another officer that such repents stated on their face that they were made 
 only for the information of the company's solicitor and his adrioe thereon. 
 Can Ry. L. Dig.— 15. 
 
226 DISCOVERY. 
 
 and such affidavit is conclusive on the question of privilege as far as the 
 motion proceedings are concerned, unless it can be shewn from the doc- 
 uments produced or from the admissions in the pleadings or by the party 
 himself that the affidavit is either untrue or has been made under a mis- 
 apprehension of the legal position. [Savage v. Can. Pac. Ry. Co., 16 Man. 
 L.R. 376, specially referred to.] 
 
 Swaisland v. Grand Trunk Ry. Co., 5 D.L.R. 750, 3 O.W.N. fl60. 
 
 [Referred to in Montreal Street Ry. Co. v. Feigleman, 7 D.L.R, 6.] 
 
 Accident reports — Officer of company. 
 
 In an examination of an officer of a railway company in an action 
 against the company for personal injuries on a motion to require the pro- 
 duction of certain reports of the company as to tlie liappening of the acci- 
 dent in which the action was based, made by tlie company's officials who in- 
 vestigated the same, an affidavit tiled by the officer being examined as to 
 the privileged character of such reports, must set forth and so clearly 
 identify such reports and give names of the oflicials investigating the acci- 
 dent so that there will be no difficulty in procuring the conviction of the 
 deponent for perjury should it afterwards appear that his affidavit was 
 luitrue. 
 
 Swaisland v. Grand Trunk Ry. Co., 5 D.L.R. 750, 3 O.W.X. 900. 
 
 [Referred to in Montreal Street Ry. Co. v. Feigleman, 7 D.L.R. 6, 22 
 Que. K.B. 102.] 
 
 Accident reports — Officials of company. 
 
 In an action for damages in a railway accident, reports made by officials 
 of defendant railway company relative to the accident admitted by a dis- 
 trict superintendent of the company upon his examination for discovery 
 to be in its custody or power, such reports being made in regular routine 
 as in all such accidents and not for the purpose of the defence of the 
 action at bar nor with reference to any particular action, though per- 
 haps in anticipation of possible future actions, must be produced for in- • 
 spection upon an examination for discovery, under Alberta Rules 207, 212, 
 215, and Eng. O. 31. Rule l!)a (2) of 1893 in force in Alberta. [Cook v. 
 North Metropolitan Tramway Co., 6 Times L.R. 22, followed; R. v. Green- 
 away, 7 Q.B. 126; Phipson on Evidence, 4th ed., p. 413. referred to.] 
 
 Stapley v. Can. Pac. Ry. Co., 6 D.L.R. 97, 22 W.L.R. 1. 
 [Varied in 6 D.L.R. 180, 22 W.L.R. 85.] 
 
 Inspection of Documents — Privilege. 
 
 \\'here, on an application in Alberta for an order for inspection of docu- 
 ments, privilege is claimed for any document, the Judge applied to should 
 not order the inspection of such document without first exercising his pow- 
 er under the Supreme Court Rules to inspect it himself, in order to see 
 whether the claim for privilege is well founded. 
 
 Stapley v. Can. Pac. Ry. Co. (No. 2), 6 D.L.R. 180, 22 W.L.R. 85. 
 
 Inspection of Documents — Privilege. 
 
 The object of the provision in the Alberta Supreme Court Rules, per- 
 mitting the Court to inspect any document, for which privilege is claimed 
 upon an application for an order for inspection, is to get rid of the fet- 
 ters imposed by the old practice, and to give power to determine at once 
 whether the objection sought to be raised is well founded. [Ehrmann v. 
 Ehrmann (No. 2), [1896] 2 Ch. 826, referred to.] 
 
 Stapley v. Can. Pac. Ry. Co. (No. 2), 6 D.L.R. 180, 22 W.L.R. 85. 
 
DISCOVERY. 227 
 
 IXSPBCnoX C» DOCCMEVTS — ^PUTILEGE. 
 
 An affifUrit on production is conclusiTe, and mnst be accepted as true 
 by the opposite party, not only as regards tbe documents that are or have 
 been in the possessicm of the party making prodaeti<». and their rele- 
 Taney, bnt al^o as to the grounds stated in support of any claim for privi- 
 legc from production, subject, however, to the provisions of a rule of 
 Court whereby the Court is authorized to judicially determine the qnes- 
 tioD of privil^^ upon inspection of the document. [Stapley t. C.P.R. 
 (Ko. H, 6 D-L.R- 97, varied on appeaL] 
 
 Stapley v. Can. Pac. Ry. Co. (No. 2», 6 D.L.R. 180. 22 W.L.R. So. 
 
 'l3(TSBaOGATOKIES OB DEFOSITIOXS — EIXA3aN.\TIOX OF FOSEIGX UEFEXDANT 
 
 OX COMMISSION — Cox. RixE 477 — Paymext of coxdcct money to 
 
 BUXG DEFEXDAXT TO OXTAKIO. 
 
 Allen V. Grand Valley Ry. Co., 1 DX.R. 903. 
 Pbodcctiox OB ixspEcnox or doctments — Acnox ox jitdcmext — Tx- 
 
 QCTBY AS TO PBOPEBTY OF JtTJGMEXT DEBTOBS COMPAXT — PSODCCTIOX 
 
 OF MTXl-TE BOOKS AXD ACCOUXTS. 
 
 Carry v. Toronto Belt Line Ry. Co., 1 D.L.R. 9«8, Z O.W.X. 751. 
 
 FCBTHEB AFFIDAVrr OX PfiOOrCTIOX IXSITFICIEXT MATEBIAL IXSPECTIOX 
 
 OP CAB. 
 
 Ramsay v. Toronto Ry. Co., 4 0-W.X. 420. 23 O.W.R. 513. 
 
 Costs of depositioxs — ^Uxxetessaby isamixatiox fob discoveby. 
 
 An application by defendants for a fiat to tax the costs of e3uimining for 
 discovery a person out of the jurisdiction will be refused where it appears 
 that by the examination of that person the defendants obtained no ma- 
 terial discovery that they had not already obtained from other witnesses^ 
 that no part of the e3umination was used at the trial nor did defendants 
 apply for leave to use it. but, instead, they brought in that person as a 
 witaess tm the trial, although the examination may have been sought to 
 disclose and did di»close that the witness in question could give material 
 evidence for the defendants. 
 
 Winnipeg v. Winnipeg Elec. Ry. Co.. 9 DX.R. 399. 
 
 OfFICEB of COKPOBATIOX DCTY TO ASCEBTAIX FACTS PUOB TO EXAMtXA- 
 
 Tiox — JjoooMorrvE foremax. 
 
 An officer of a company attending to be examined for discovery must 
 aeqtiaint himself w-ith the facts that are not within his personal knowledge 
 by enquiring from other officers, servants or agents who have, in their 
 respective capacities^ acquired such knowledge. A locomotive foreman of a 
 railway company is an officer for the purpose of examination. 
 
 Giddings v. Can. Northern Ry. Co.. 12 S.L.R. 381. 
 
 DI8CBIMINATION (UKJUST). 
 See Cars; Tolls and Tariffs. 
 
 DRAINAGE. 
 
 Constitutionality of provincial statute regulating ditches forming part 
 of railwav works, see C<mstitutional Law. 
 
228 DRAINAGE. 
 
 Annotation. 
 
 Railway lands brouj^ht under Drainage Acts, approval of drainage plans 
 and appeals from assessment for drainage. 16 Can. Ry. Cas. 24J). 
 
 Construction of drain — Powkrs of council as to additional neces- 
 sary AVORKS. 
 
 Where a municipal by-law authorized the construction of a drain, bene- 
 fiting lands in an adjoining municipality which was to pass under a rail- 
 way, where it was apparent that a culvert to carry off the water brought 
 down by the drain and prevent the flooding of adjacent lands would be an 
 absolute necessity, the construction of such culvert was a matter within 
 the provisions of s. 573 of the Municipal Act (R.S.O. 1887, c. 184), and a 
 new by-law authorizing it was not necessary. Taschereau, J., dissenting. 
 22 A.R. (Ont.) 330, aflirming 25 O.R. 465, reversed. 
 
 Can. Pac. Ry. Co. v. Township of Cliatliam, 25 Can. S.C.R. 608. 
 
 [Leave to appeal to Privy Council refused. Distinguished in East 
 Gwillimbury v. King, 20 O.L.R. 510.] 
 
 Higher and i.o\vi:r lands — Drainage. 
 
 Lands ot railways under the jurisdiction of the Parliament of Canada 
 are subject, in the Province of Quebec, to Art. 501, C.C. (Que.), and are 
 bound to receive water flowing luiturally from higher lands. A ditch on 
 the line between two higher lands, required by the needs of cultivation, 
 is not an aggravation of the servitude of the flow of the water, although 
 it thus receives the water from the two higher lands and ends on the lower 
 land of the railway company. If the company dams the ditch where it 
 reaches its land, it will be liable in damages and will be ordered to re- 
 move the obstruction and allow the water to come on its land. Th? 
 company made a ditch on each side of its road. For want of sufficient 
 slope the water remained stagnant, making the adjoining lands wet and 
 hindering their cultivation: — ^Held, that the company was liable in dam- 
 ages to the owners of such adjoining lands. The first paragraph of s. 196 
 of the Railway Act, 1903, does not apply to railways actually constructed 
 when it was passed, and only the Railway Committee — not the present 
 Hoard — can order the company owning such a railway to construct works 
 for conducting water which it is bound to receive on its land or to give a 
 greater slope to its ditches. 
 
 Langlais v. Grand Trunk Ry. Co., 26 Que. S.C. 511. 
 
 [Affirmed by Court of King's Bench, 30th May, 1905.] 
 
 PXTRPOSES OF RAILWAY EFFICIENCY DANGERS OF IN.TURY BY WATER. 
 
 When a system of drainage established upon the construction of the 
 railway is subsequently found to be insufficient, improvments may be made 
 therein, and such further drainage works executed as will assist in keeping 
 the railway in efficient condition and relieve it from danger of injury by 
 water. For this purpose the company may avail itself of the power con- 
 tained in the Railway Act, 1903, s. 118 (m), to make drains into or 
 through lands adjoining the railway and the lands of others as far as may 
 l>e reasonably necessary to effect the purpose for which they are con- 
 structed. Naturally such drainage works must be adapted to the forma- 
 tion of the lands requiring to be drained without regard to the ownership 
 of the particular strips or parcels of land through which it is necessary to 
 carry them. In such cases ownership should not be treated as an element 
 in determining whether or not any particular lands are "lands adjoining 
 the railway." 
 
 Can. Pac. Ry. Co. v. aiurphy, 5 Can. Ry. Cas. 477. 
 
DRADCAGE. 229 
 
 FnXIXG <MP CULYOer — CATTtE PASS — SCB 81t ItT LX C DKAIXAGE PIPE. 
 
 in an action against the defendants for damages for filling np a cnlrert 
 used as a cattle pass under the defmdants' embankment and substituting a 
 drainage pipe, the plaintiff claimed the right to have the culvert main- 
 tained at its full size under an agreement made at the time of constnic- 
 ti<», providing that the flow of the waters of a certain drain upon the land-^ 
 to be crossed by the railway should not fee interfered with, that he had 
 acquired an easement by prescription and that under s. 257 of the BaUway 
 Act, 1906. the defendants could not fill in the culvert without leave of the 
 Board: — Held (1), that the defendants had the right to sul^titute any 
 other means of drainage to enable the water to flow through the drain 
 mrationed in the agreement. (2) That no easement by prescriptitm had 
 Ijeen acquired. [Can. Pac. Ry. Co. v. Guthrie. 31 Can. S.C.R. 155, 1 Can. Ry. 
 Cas. 9, followed.] (3) That s. 257 of the Railway Act did not apply. 
 
 Oatmaa t. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 521, 2 O.W.X. 21. 
 
 IBSIGATIOX works DtTT to PBOTECT HIGHWAT CBOSSISGS. 
 
 S. 37 of Xorth-We<t Irrigation Act. 61 Vict. (Can.) c. 35. providing that 
 any person or company constructing an irrigation works should during 
 such construction keep open for safe and convenient travel '*all public 
 highways theretofore publicly traveled as such," when they are crossed by 
 such works, and shall. Iiefoie the water is diverted into, conveyed or stored 
 by any such works, extending into or crossing such highway, construct, 
 to the satisfaction of the Minister of the Interior, a substantial bridge, not 
 less than a certain number of feet in breadth, with proper and sufficient 
 approaches thereto, over such works, and always thereafter maintain every 
 such bridge and approaches thereto, has, of course, no application to roaJ 
 allowances as in its own words it deals onij with ~aU public highways 
 theretofore publicly traveled as such.** 
 
 Rex V. Alberta Ry. & Irrigation O*., 7 DJ*R- 513, [1912] iuC. 827. 
 
 JinusDicnox — Appkoval. 
 
 By s. 251 of the Railway Act, 1906, before drainage works can be con- 
 structed on railway lands, the Board must be satisfied that the proposed 
 works are sufficient and proper for railway operation auid for the safety 
 of the traveling public, and must approve the plans of sudi works. 
 
 Tilbury v. Grand Trunk Ry. Co.. 16 Can. Ry. Cas. 246. 
 
 Jr^iSDicnox — Approval — A.ssessmkst — ^Scrfacb water. 
 
 I'nder s. 250 of the Railway Act. 1906, the only matter open to the 
 Board is to approve of the character of the drainage work on the railway 
 property having regard to its sufficiency for railway operation, and the 
 safety of the traveling public. Ordinarily, the Board does not interfere 
 with an asses.<ment under a by-law passed in accordance with the appro- 
 priate Act, and has no jurisdiction to do so. except where there are special 
 circumstances. In this case, the works fttr carrying the water under thv 
 railway cost #2.191.09, and were executed by the railway company. As the 
 railway had interfered with the culverts, which formerly carried the water, 
 so as to lessen their capacity, and it was estimated that it would cost 
 about $250 each to repair the culverts, the total cost which the munici- 
 pality had to pay for these works was fixed at $1,600. 
 
 Humberstone v.' Grand Trunk Ry. Co., 17 Can. Ry. Cas. 316. 
 
 OOXTETAXCE OF LAXB RELEASE FROM DAMAGES. 
 
 A general clause of release from damages in a conveyance ot lands 
 taken fcv railway purposes does not - relieve the railway company frcnn 
 
230 DRAINAGE. 
 
 the obligation imposed on it by s. 250 (2) (b) of the Railway Act, 1906, to 
 provide means of drainage under the railway for the adjacent lands. 
 
 Denholm v. Guelph & Goderich Ry. Co., 17 Can. Ry. Cas. 318. 
 
 [Distinguished in Department of Agriculture v. Grand Trunk Rv. Co., 
 23 Can. Ry. Cas. 77.] 
 
 Drainage wobks — Constkuctio' — Reasonable exercise of powers — Ad- 
 joining LANDOM'NER. 
 
 Where no negligence has been shewn on the jiart of the railway company 
 in carrying out the construction of drainage works, and the damage, 
 if any, is due solely to reasonable exercise by the company of the powers 
 conferred upon it, the owner of adjoining lands cannot recover compen- 
 sation. Such an injury should have l)een foreseen and compensation 
 claimed for it under the statute at the time the railway was constructed. 
 Vnder the circumstances, tlie cost of lowering a railway culvert after 
 construction to provide better drainage should be borne by the adjoining 
 landowner. [Wallace v. Grand Trunk Ry. Co.. 16 U.C.R. 551; Knapp v. 
 Great Western Ry. Co.. 6 U.C.C.P. 187; Xicol v. Canada Southern Ry. 
 Co., 40 U.C.R. 583; L'Esperance v. Great Western Ry., 14 U.C.R. 173, fol- 
 lowed; Denholm v. Guelph & Goderich Ry. Co., 17 Can. Ry. Cas. 318, dis- 
 tinguished.] 
 
 Department of Agriculture for Canada v. Grand Trunk Ry. Co. (Farn- 
 ham Drainage Case), 23 Can. Ry. Cas. 77. 
 
 Obstruction of draixs axd ditches — Tnijndatiox — Railway Board. 
 
 Although 8. 250 of the Railway Act, 1906, gives exclusive jurisdiction to 
 the Board to compel a company to make drainage works deemed neces- 
 sary, one who suffers damages on account of the negligence of a railway 
 company to carry out drainage works which the law required is not com- 
 pelled to apply to the Board to have the works declared insufficient, before 
 claiming damages in the civil Courts. The compensation for expropriation 
 granted to an owner of land under cultivation for all damages which he 
 might suffer on account of the construction and laying out of a railway 
 only covers damages which result from tlie construction of the railway, 
 under the conditions provided for by the Act. and not those which result 
 from the culpable negligence of the company to maintain ditches and 
 drains sufficient to drain the lands divided by the construction of the 
 way. 
 
 Can. Northern Quebec Ry. Co. v. Desmarais, 27 Que. K.B. 509. 
 
 EASEMENTS. 
 See Right of Way; Farm Crossings. 
 
 Dominant and servient tenements. 
 
 When the ownership of the dominant and servient tenements is united 
 the servitude is extinct by confusion unless the relation of common serv- 
 itude between the two parcels is maintained by the owner through a writ- 
 ten instrument declaring his intention therefor. 
 
 Rosaire v. Grand Trunk Ry. Co., 42 Que. S.C. 517. 
 
 EJECTION FROM TRAINS. 
 
 See Street Railways; Carriers of Passengers. 
 
 Expulsion from car for nonpayment of fare, see Street Railways; Car- 
 riers of Passengers. 
 
EMBAXKMEXTS. 231 
 
 EjectMm for noneompluuice Tith icqairements respeeting tickets, see 
 Ticket* and Fares. 
 
 Expulsion of drunken passenger, see Carriers of Pas^Migers. 
 
 ELECTKICITT. 
 See Telephones; Street Bailways; Wires and Poles. 
 
 ISSJBCTBIC BAILWATS. 
 8ee Street Railways; Train Service. 
 
 EMRAKKMENTS. 
 Embankment causing additional ^rvitude. see ExpropriatioB. 
 
 ISJIET TO PBOPEBTT BT OOSSTmCCTIOS OF EMBAXKMEST. 
 
 F. brought an action on the case against the G.T. Rt. Co. for haTing been 
 deprived of access from his pn^wrtj to the street by the building of an 
 embankment. The defendants claimed that the work was done hv the P. &. 
 C. Lake Rv. Co. who were the parties, if anv. liable to plaintiff: — Held, 
 affirming the judgment of the Court of Appeal for Ontario and of the Divi- 
 i'ional Court, that the evidence established the liability of the defendants. 
 
 Grand Trunk Ry. Co. t. Fitzgerald, 19 Can. S.C-R. '359. 
 
 EmbAXKMKST CArSlXG FIOOD — ObST«UCTU)S to rCGRESS AXD BGKESS 
 
 Tkespas-s — CoxTCftrrxG damage. 
 
 In 1S8S the Canada Atlantic Ry. Co. ran their line through a street, in 
 eonnectimi with which they built an embankment and raised the level of the 
 street. In 189o the plaintiffs became owners of land on said street on 
 which they have since carried on their business. In 1900 they broi^iht an 
 action against the Canada Atlantic Ry. Co. alleging that the nnbankmrat 
 was built and level raised unlawfully and without authority and claiming 
 damages for the flooding of their pronises and obstruction to their ingre>s 
 and egress in consequence of such wf^c: — Held, that the trespass and nui- 
 sance (if any) complained of were committed in 1888, and the then owner 
 of the property might have taken an action in which the damages would 
 have been assessed once for alL His right of acticm being barred by lapse of 
 time when the plaintiff's action was taken the same could not be main- 
 tained. 
 
 Chaudidre Machine & Foundry Co. t. Canada Atlantic Ky. Co.. 3 Can. 
 Ry. Cas. 306. 33 Can. S.C.R. 11.' 
 
 [Followed in Anctil v. Quebec, 33 Can. S.C.R. 349: referred to in Bureau 
 T. Gale. 36 Que. S.C. 88; Clair v. Temiscouata Ry. Co.. 37 X.B.R. 621: dis- 
 tinguished in Westholm Lumber Co. t. Grand Trunk Pacific Ry. Co.. 2-1 
 Can. Ry. Cas.. 41 D.L..R. 42. 
 
 RiPAUAX KIGHTS ACCESS TO HASBOCK — COXSTKICTIOS OF ElfBAXKMENT. 
 
 Application by landowners that in case the respondents' plans were filed 
 for approval, authorizing the respondent to construct a solid embankment 
 across the entrance to Market Cove the rights of the parties located thereon 
 should he protected. The re^Mmdent had already hv the cmistruction of a 
 solid ciBbuikmait cut off all access frcHn the Harbour of Prince Rupert to 
 all points around the Cove or Bay: — ^Held (ll. that these applicants by 
 taking leases of lots abutting on the Cove acquired access to the water and 
 riparian rights. (2) That the statement of the respondoit whoi withdraw- 
 
232 EMBANKMENTS. 
 
 ing the location plans that the embankment was constructed on tlieir own 
 lands was untrue, but even if the respondent had title to the said lands it 
 had no right to construct its railway without approval of the route map by 
 the Minister and the location plans by the Board. (3) That the appli- 
 cants' lands and business had been damaged and injured l)y the wrongful 
 and illegal acts of the respondent. (4) That there was no necessity for the 
 embankment and no reason existing why a means of access inward and out- 
 ward should not have been left. (5) That the respondent must leave an 
 opening in the embankment at least 30 feet wide. 
 
 Rochester v. Grand Trunk Pacific Ry. Co., 13 Can. Ry. Cas. 421. 
 
 [Affirmed in 15 Can. Ry. Cas. 306.] 
 
 Construction' axd opkration — Raii-way crossing — Subway — Contri- 
 bution. 
 
 The C.N.O. Ry. crossed under the line of tlie G.T. Ry. by means of a sub- 
 way. Subsequently the C.L-O. & W. Ry. obtained authority from the 
 Board to cross the C.N.O. Ry., using for that purpose the embankment of 
 the same subway: — Held, that the C.N.O. Ry. was not entitled to receive 
 any contribution from the C.L.O. & W. Ry. towards the expense it had al- 
 ready incurred in making the embankment. 
 
 Campbellford, Lake Ontario & Western Ry. Co. v. Can. Northern Ontario 
 Ry. Co., 14 Can. Ry. Cas. 220. 
 
 EMBARGO. 
 
 See Cars. 
 
 EMINENT DOMAIN. 
 See Expropriation. 
 
 EMPLOYEES. 
 
 A. In General; Wages; Insurance. 
 
 B. Injuries to Employees; Workmen's Compensation. 
 
 C. Safety as to Place and Appliances. 
 
 D. Signals and Warnings. 
 
 E. Health Protection. 
 
 F. Licensee; Trespasser; Free Pass. 
 
 G. Assumption of Risk; Volens. 
 H. Negligence of Fellow- Servant. 
 
 I. Duty of Care; Contributory Negligence. 
 
 J. Rules and Orders. 
 
 K. Limitation of Liability. 
 
 L. Independent Contractor. 
 
 M. Injuries by Employees. 
 
 N. Sufficiency of Jury Findings. 
 
 See Limitation of Actions; Negligence. 
 Measure of damages and compensation, see Damages. 
 Injuries to employees on Government railways, see Government Railwaya. 
 Constitutionality of statute prohibiting agreements exempting employers 
 from liability for negligence, see Constitutional Law. 
 Regulation of safety of employees, see Railway Board. 
 Employees' patents of inventions, see Patents and Inventions. 
 
EMPLOYEES. 233 
 
 Injuries to employees of telegraph or telephone companies, see Tele- 
 graphs; Telephones; Wires and Poles. 
 
 Injury to brakeman by overhead bridge, see Bridges. 
 R^^ation of section men, see Railway Board. 
 
 Annotatinna, 
 
 Master and Servant: Workman's Compensation Act: Xotice of Injury; 
 Waiver of Xotice; Evidence; Res Gestae. 1 Can. Ry. Cas. 448. 
 
 Lord Campbell's Act as arising between master and servant, and the effect 
 of a release by employee. 2 Can. Ry. Cas. 501. 
 
 Injuries growing out of the relationship of Master and Servant. 2 Can. 
 Ry. Cas. 36.5. 
 
 Effect of release by employee exempting nnployer from liability for n^- 
 ligence. 3 Can. Ry. Cas. 173. 
 
 Fellow -servant as affected by Workmen's Compensatioa Act. 4 Can. Ry. 
 Cas. 250. 
 
 Liability of master for tortious acts: of servant in course of employment. 
 4 Can. Ry. Cas. 240, 4 Can. Ry. Caa. 408. 
 
 Government regulation of railway companies respecting agreements ex- 
 empting employers from liability for n^ligence. 5 Can. Ry. Cas. 15. 
 
 Appliances for coupling and connecting cars. IS Can. Ry. Cas. 250. 
 
 A. In General; Wages; Insurance. 
 
 WOBKMEX'S COMPENSATIOK PbOVI:\CIAI. BBGCUITIOX OF RAILWAY EMPLOT- 
 
 MEXT. 
 
 Dominion railways are subject to provincial legislation on the relations 
 between master and servant, such as the Workmen's Compensation for 
 Injuries Act. unless the field had been covered by Dominion legislation an- 
 cillary to Dominion legislation respecting railways under the jurisdiction of 
 Parliament, and subs. 4 of s. 306 of the Railway Act, 1906. qualifies its 
 main clause and excludes its operation where the injury complained of 
 cmnes within the jurisdiction of, and is specially dealt with by the laws of 
 the province in which it takes place, provided such laws do not encroach 
 upon Dominion powers. [CPJL v. Roy, [1902] A.C. 220, distinguished. 
 Canada >>4>uthem v. Jackson, 17 Can. S.C.R. 325, followed.] 
 
 Sutherland v. Can. Northern Rv. Co., 13 Can. Rv. Cas. 495. 21 Man. L.R. 
 27. 
 
 Tkrmexatiox of employment — Lexgth of xotice. 
 
 Where a railway conductor had been employed continuously for twelve 
 years by the same railway company and the practice of the company had 
 been not to dismiss employees of that grade in their service without holding 
 an ofiicial enquiry, it may be assumed, in the absence of any contract to the 
 contrary, that he should have a reasonable notice of the termination of his 
 engagement other thaw for cause, and damages for wrongful dismissal are 
 properly computed on the basis of the conductor being entitled to three 
 months' notice. 
 
 Halliday v. Can. Pac. Ry., 7 D.L.R. 198, 15 Can. Ry. Cas. 275. 
 
 COXTBACT OF EMMjOYMEXT — ^ArTHOBmr OF FOBEMAX. 
 
 A railway crira|>any is not liable to an employee as for breach of an agree- 
 ment by its foreman to allow such employee, as pay for his services and in 
 addition to per diem wages, to cut hay growing on the company's premises, 
 where the wages proper agreed upon were at the maximum rate which the 
 ioreman. who employed him, was authorized to allow, and where there was 
 no shewing that the foronan was authorized to bind the company by the 
 
234 EMPLOYEES. 
 
 agreement respecting tlie hay, though it was his duty to see that the hay 
 was removed. 
 
 Cleveland v. Grand Trunk Ry. Co. (Ont.), 11 D.L.R. 118, 15 Can. Ry. 
 Gas. 165. 
 
 Employment obtained by infant miskepresexting his age — Whether 
 
 THIS constitutes "SERIOUS AND WILFUL MISCONDUCT" — RELEASE 
 SIGNED BY INFANT. 
 
 The making of a false representation by an infant to the effect that he 
 is of full age in order to secure employment is not such "serious and wilful 
 misconduct or serious neglect" as disentitles the applicant to recover under 
 the Workmen's Compensation Act, 1902, it not appearing that the accident 
 in question was "attributable solely" to such misrepresentation. An in- 
 fant having been injured in the course of employment so obtained, signed a 
 release, but subsequently tendered repayment of the consideration for the 
 release: — Held, that this was not a bar to his recovering. 
 
 Darnley v. Can. Pac. Ry. Co., 14 B.C.R. 15. 
 
 ];MPL0YEES ENGAGED IX MAXUAL LABOUR — CONDUCTORS AND MOTORAfEN — 
 LIEN FOR WAGES. 
 
 Motormen and conductors on electric tramways and teamsters who haul 
 the materials, remove the snow, etc., for these tramways are "employees of 
 railways engaged in manual labour" within the meaning of par. 9 of art. 
 2009 C.C. (Que.). These employees have a lien on the tramway and its 
 appurtenances for three full months' wages without regard to the date of 
 seizure or of the sale that may be made of it. 
 
 I'aquet v. New York Trust Co.. 15 Que. K.B. 179, reversing 28 Que. S.C. 
 178. 
 
 [Followed in Rousseau v. Toupin, 32 Que. S.C. 232.] 
 
 Insurance of railway employees — Unreasonable conditions. 
 
 It is a reasonable regulation, and not contrary to good morals and pub- 
 lic order, for an association organized to insure the employees of a desig- 
 nated railway company against injury or death, to provide by by-law that it 
 will pay but one-half of the amount due on the death or injury of a member 
 caused by the default of the railway company, unless any action brought 
 therefor against such railway company shall first be formally dismissed or 
 withdrawn. 
 
 Cousins v. Moore, 6 D.L.R. 35, 42 Que. S.C. 156. 
 
 [Referred to in Cousins v. The Brotherhood, etc., 6 D.L.R. 26, 42 Que. 
 S.C. 110.] 
 
 IXSURA.XCE SOCIETIES — DEMAND OF BENEFITS. 
 
 The exhibition of a certificate of membership in a mutual association 
 organized to insure the cmj)loyees of a railway company against death or in- 
 jury, to the secretary-treasurer of the association, and an oiler by tlie latter 
 to pay the amount due thereon, if, as required by a by-law of the associa- 
 tion, a release was furnished of all claim against the railway company for 
 causing the death of a member, and the giving by that ollicer of a printed 
 receipt to that effect constitute a sufficient demand of payment. 
 
 Cousins V. Moore, 6 D.L.R. 35, 42 Que. S.C. 156. 
 
 [Preferred to in Cousins v. Brotherhood, etc., 6 D.L.R. 26, 42 Que S.C. 
 110.] 
 
 B. Injuries to Employees; Workmen's Compensation. 
 (See also A. on p. 233.) 
 
EMPLOYEES. 235 
 
 lOASaXTT or ILASTEB COSFUCT Of LAWS. 
 
 Liabilitr for tort if goremed bv tlie lex loci acta?, and. in an action bj 
 an emploree against his emplover arising oat of a pergonal injary. is not 
 affected br the law« of the place where the contract of Iea;se and hire of 
 w^ork was made. H«K-e when a railway cmnpanT running trains in both 
 the ProTinces of Ontario and Qaebec hired one of its scrranvs in Qadbec, 
 and he wa$ injared through the faalt of the company in Ontario, his claim 
 for compensatitm is governed by the law of the latter province. [Dapont 
 T. Quebec Steam^ip Co., 11 Que. S.C. 18S: Lee t. Logan. 31 Que. S.C. 469 
 and 39 Que. S.C- 311; Albouze t. Temiskaming Xavigation Co.. 33 Qoe. 
 S.C. 279. referred to.] 
 
 Markau v. Grand Trunk Ry. Co.. 12 Can. Ry. Cas. 149. 38 Que. S.C. 394. 
 
 [Reversed in part 21 Que. KJB. 269, 14 CknL Ry. Cas. 284.] 
 
 COXFLICT €)W t^WS — LlABIUTT <»" MASTXX. 
 
 Common-law liability, in cases involving delict or quasi delict, is gor- 
 emed by the lex loci regit actum. Hence workmen hired in Quebec to be 
 employed in Qaebec and Ontario, who are injured by the positive aet or by 
 the fault of their employers in the latter province, have no remedy accept 
 under the provisions of its laws. When the evidence shews that the for- 
 eign law does not admit of the remedy relwd upon by the plaintiff, and 
 Jtpam which a vodict has be«i given in his favour by the jury, he must 
 be nonsuited, non obstante veredicto, a new trial being infective. [Mar- 
 leau V. Gmnd Trunk Ry. Co., 38 Que. S.C. 394, 12 Can. Ry. Cas. 149, re- 
 versed in part.l 
 
 Grand Trunk Ry. Co. v. Marleau. 14 Can. Ry. Cas. 284, 21 Que. KJB. 269. 
 
 IXJCBY MESfinSG LX DEATH ClAXM OT WmOW P»ESCBimOX. 
 
 The husband of respondent was injared while engaged in his duties as 
 appellants' employee, and the injury resulted in his death about fifteen 
 months afterwards. No indemnity having been claimed during the life- 
 time of the husband, the widow, acting for herself as well as in the ca- 
 pacity of executrix for her minw child, brought an action for compensation 
 within one year after his death: — Held, reversing the judgment of the 
 Superior Court, and the Court of Queen's Bench for Lower Canada (appeal 
 side I (Foamier, J., dissenting i, (1» that the respondent's right of acti<m 
 nnder art. 1056, C.C. (Que.) depends not only uptni the character of the 
 act from which death ensued, but upon the condition of the decedent's claim 
 at the time of his death, and if the claim was in such a shape that he could 
 not th«i have mforced it. had death not ensued, the article of the code does 
 not give a right of action, and creates no liability whatever on the person 
 inflicting the injury. (2i That as it appeared on the record that the plain- 
 tiff had no right of action, the Court would grant the defendant's motion 
 for judgment non obstante veredicto. Art. 433. C.C J*. (3) That at the time 
 of the death of the respcHident's husband all right of action was prescribed 
 under art. 2262. C.C. (<^e.>. and that this prescription is one to which the 
 triltunals are bound to give effect, although not pleaded. Arts. 2267 and 
 2188. C.C. (Que.). p>f.LR. 6 Q.B. 118, IILJI. 5 S.C. 225, iwersed.] 
 
 t an. Pac. Ry. Co. v. Robinson. 19 Can. S.C.R. 292. 
 
 [ Reversed in [1892] A-C. 481; distingnished in The Queen v. Grenier. 30 
 Can. S.C.R. 42; applied in Re Aird.»28 Que. S.C. 238: Grand Trunk Ry. Co. 
 V. Miller. 34 Can. S.C.R. 58: Lavoie v. Beaudoin. 14 Que. S.C. 253; Zim- 
 mer v. Grand Trunk Ry. Co., 19 A.R. (Ont.) 693; considered in De Laval 
 Separator Co. v. Walworth, 13 B.CR. 76; R. v. Unkm Collioy Q>., 7 B.CJ8, 
 251; f<rflowed in Miller v. Grand Trunk Ry. Co.. [1906] A.C. 187; Robillaid 
 T. Wand, 17 Qoe. S.a 474; Walkerton v. Erdman, 23 Can. S.C.IL 362; re- 
 
23G EMPLOYEES. 
 
 ferred to in Canada Newspaper Syndicate v. Gardner, 32 Que. S.C. 454; 
 Can. Pac. Ey. Co. v. Lacliance, 42 Can. S.C.R. 205; Gosselin v. The King, 33 
 Can. S.C.R. 204; Ikezoya v. Can. Pac. Ry. Co., 12 B.C.R. 456; Miller v. 
 Grand Trunk Ry. Co., 21 Que. S.C. 351, 362; Warboys v. Lachine Rapids 
 Hydraulic Land" Co., 22 Que. S.C. 542; applied in Montreal v. .McGee, 30 
 Can. S.C.R. 586; Montreal Street Ry. Co. v. Brialof.sky, U) Que. K.B. 
 338; discussed in Grand Trunk Ry. Co. v. Miller, 12 Que. K.B. 11; 
 followed in Dupuis v. Can. Pac. Ry. Co., 12 Que. S.C. 1!)5; Grenier v 
 Tlie Queen, 6 Can. Ex. 297: Griffith v. Harwood. !) Que. Q.B. 306; Thibault 
 V. Vanier, 11 Que. S.C. 495; referred to in Ordman v. Walkerton, 20 A.R. 
 444; Martial v. The Queen, 3 Can. Ex. 127; British Columbia Elec. Ry. Co. 
 V. Turner, 18 Can. Ry. Cas. 133, 18 D.L.R. 430.] 
 
 Accident to employek — Performance of duty — Contributory negli- 
 
 GENCK. 
 
 J., a switch tender of the C.S. Ry. Co., was obliged, in the ordinary dis- 
 charge of his dut}-, to cross a track in the station yard to get to a switch, 
 and he walked along the ends of the ties, which projected some sixteen 
 inches beyond the rails. While doing so an engine came behind him and 
 knocked him down with his arm under the wheels and it was cut off near 
 the shoulder. On the trial of an action against the company in conse- 
 quence of such injury the jury found that there was negligence in the man- 
 agement of the engine in not ringing the bell and in going faster than the 
 law allowed. They also found that J. could not have avoided the accident 
 by the exercise of reasonable care: — Held, that the Workmen's Compensa- 
 tion for Injuries Act of Ontario, 49 Vict. c. 28, applies to the C.S. Ry. Co., 
 notwithstanding it has been brought under the operation of the Government 
 Railways Act of the Dominion: — Held, also, Gwynne and Patterson, JJ., 
 dissenting, that there was no such negligence on J.'s part as would relieve 
 the company from liability for the injury caused by improper conduct of 
 their servants and the judgment of the Court below sustaining a verdict 
 for the plaintiff was right, therefore, and should be affirmed. 
 
 Canada Southern Ry. Co. v. Jackson, 17 Can. S.C.R. 316. 
 
 [Considered in Wallman v. Can. Pac. Ry. Co., 16 Man. L.R. 92; dis- 
 cussed in Washington v. Grand Trunk Ry. Co., 24 A.R. (Ont.) 183; re- 
 ferred to in Atchoson v. Grand Trunk Ry. Co., 1 O.L.R. 168; Crawford v. 
 Tilden, 13 O.L.R. 169; relied on in Can. Pac, Ry. Co. v. Boisseau, 11 Que. 
 K.B. 415; Can. Pac. Ry. Co. v. The King. .39 Can. S.C.R. 497; McMulliii v. 
 Nova Scotia Steel & Coal Co., 39 Can. S.C.R. 607; Re Railways Act, 30 
 Can. S.C.R. 151.] 
 
 Injury by weeds growing on tracks. 
 
 For a railway company to permit grass and weeds to grow on a side 
 track is not such negligence as will make it liable to compensate an em- 
 ployee wlio is injured in consequence of sucJi growth while on the side 
 track in the course of his employment. 6 B.C.R. 561 affirmed. 
 
 Wood V. Can. Pac. Ry. Co., 30 Can. S.C.R. 110. 
 
 [Applied in Hill v. Granby Consol. :Mines. 12 B.C.R. 125; Jamieson v. 
 Harris. .35 Can. S.C.R. 639: referral to in Canada Woolen Mills v. Trap- 
 lin, 35 Can. S.C.R. 448; Center Star v. Rossland ^liners' Union, 11 B.C.R. 
 205; Warmington v. Palmer, 8 B.C.R. 349.] 
 
 Injury to conductor — Person in cu.vrge — Motorman — Workmen's Com- 
 pensation Act. 
 
 The motorman of an electric car may be a "person who has charge or con. 
 trol" within the meaning of s. 3 of the Workmen's Compensation Act 
 
EMPLOYEES. 237 
 
 (R£.0. [1»7] c ICO), and if he MsUgcatlr alknrs u opm eu- to coae u 
 eoatact vitfc m paawriBg Tckide vhearAf tW r«4idiirtor. vim is slaadin* on 
 tke side ia diarliaiy «rf his dntj, is stirick an! iajored. the eleetric ron- 
 fany i> liaUe in da— ge far sodi injary. Jndmnent of the Court of Ap- 
 peal iSadl T. Tonwto Rjr^ 27 AJB. (On't.) lalf, alErmed. 
 TonMto Rt. Col t. SneU. 31 CajL SLCK. HI. 
 
 Samxjkxt's dctt — Coxtkibctokt xxsugcxcs: — Eutijotexs' Liabiutt Act. 
 
 F^ a. coadoctor aad bfakenum in the onploT of the defmidajits eam- 
 panr, vhile tamii^ the brake vfaeel fell from his train and vas run 
 over and killed. The not vhieh fastens the brake wheel to the brake 
 mast, and which should hare bem on, was not on. and so the wheel t*me 
 off and the aeddcnt revolted. It was the dntr of the deceased to examine 
 the cars of the train and see that thev were in good order before leaving 
 the $tati<Hi which the train was just tearing: — Held, affirming Irring. J., 
 in an action br F.'s pcraonal representatircs, to teeorer damages in 
 re^tect of death, that it wa;^ F.'s own negiert in not seeing that the brake 
 was in a secure conditica, and that thoe wms therefore no cai« for the 
 jorr. S B.CJL 393. affirmed. 
 
 Faweett r. Can. Pae. Rr. Co.. 52 Can. S.CR. 721. 
 
 [Bcferred to in Dero r. Kii^ston t Pembroke Rr. Co.. S O.L..R. 5SS.] 
 
 EMnoTUEXT ACcmcxT L&ws — Bexeftts. 
 
 Whm s. 2 of c. 66. 9 Edw. VIL relating to emplormeiit aecidents. 
 allows to an emploree an incoaie in a case when he receives an injorr 
 during his empfermmt. which injury carries with it a permanent partial 
 incapacity, it is on condition that his professional capacity would decrease, 
 and be la»tin^ in reduction of his ?alary. It is this reduction of salary 
 that ^oold be the basis of fignrino the income to which the employee 
 will hare a right, income which will amount to one-half the reduction in 
 salarj which he suffered through the accident. This essential condition 
 t n^ aiiwl br law will not apply whoi. after the acrident. the plaintiff 
 rolntarilr renewed his emplornkent with the rime salary as he reccired 
 before the accidnit. In such cirmmstances. he will find that s. 2 of the 
 above Art is, by roluntary act of the plaintiff, rendered inapplicable, 
 aad that, in the present state of the l^rtsIatioB, he has no right to any 
 
 Grter t. Grand Trunk Ry. Co.^ 18 Rer. de Jnr. 27. 
 
 WcmKUKs's CourEssxnas Act — Review or .akisaiok's ftxdixg. 
 
 An arbitrator under the Workmen's Compensation A^ 1902. ^^. 2. subs. 
 (3> harii^ jurisdiction to settle any question as to whether the em- 
 ploymoit is one to which the Act applies: — ^Held. Irring. J.A.. dissenting, 
 that the only way to reriew the arbitrator's finding thereon is by a 
 case submitted under s. 4 of the second sehedale. Per Uorrison. J.. 
 tm the BMitiaa to set aside the award of the arbitrator: — ^The work of 
 dearii^ land from the natural growth thereon is not a work of eon- 
 aUu e tk m. altnation or repair meant by the Act to be termed an ei^ineer- 
 ii^ work. 
 
 Baaaata r. Can. Pae. Br. Col. 16 B.C.R. 304. IS W.UR. 353. 
 
 W0BKafE3C*S CDMFEX&ATIOX ^DeATH OF HtAKESXAX RlCHT OT MOTKFL 
 
 A bnkesman who. thoi^ forlnddefi br a superior official, jumps on 
 a train and is killed, is not the victim <Mf an accidoit happening in the 
 oovne of his emplojmeat. 3lM«orer, his fault is i nei r usabie and makes 
 
238 EMPLOYEES. 
 
 the accident one intentionally produced by himself. The mother of a work- 
 man killed by an accident in course of his emploj'ment, who has remarried 
 and lives with her husband cannot claim that the victim had been her 
 sole support, and, therefore, is not entitled to the recourse given by the 
 Act respecting Accidents to Workiucii to the ascendants in such case. 
 Jette V. Grand Trunk Ry. Co., 40 Que. S.C. 204 (Sup. Ct.). 
 
 Death while handling dynamite — Wobk.mkn's compensation — Common 
 employment. 
 
 The death of the deceased was caused by carelessness and ignorance in 
 the handling of dynamite by the deceased and a fellow workman named 
 Anderson employed by the roadmaster of the defendants to look after 
 the work. Anderson and White were not competent persons to be so 
 employed, and the roadmaster was aware that they were not: — Held 
 (1), the plaintiffs could not recover under Lord Campbell's Act, be- 
 cause the roadmaster was a fellow workman with the deceased. (2) 
 The plaintiffs were entitled to recover damages under the Workmen's 
 Compensation for Injuries Act, R.S.M. 1902, c. 178, because, by the jury's 
 findings, the deatli was caused by reason of the negligence of a person in 
 the service of the employer who had superintendence entrusted to him, 
 whilst in the exercise of such superintendence: Paragrapli (b) of s. 3. 
 [Dominion Natural Gas. Co. v. Collins, [1909] A.C. 440, 79 L.J.P.C. 16, 
 followed as to the duty of those who cause others to handle speciall}' 
 dangerous things.] 
 
 White V. Can. Northern Ry., 20 Man. L.R. 57. 
 
 Injury to brakeman — Struck by switchstaxd — Finding of jury. 
 Leitch v. Tcre Marquette Ry. Co., 2 O.W.N. 017, 18 O.W.R. 433. 
 
 Employers' Liability Act — Common employment — Negligence in oper- 
 ating railway in mine — Contributory negligence — Statutory 
 obligation. 
 Bell V. Inverness Coal & Ry. Co., 4 E.L.R. 144, 405 (N.S.). 
 
 Negligence — Accumulation of snow — Workmen's Compensation Act 
 — Notice of injury. 
 
 The knowledge of the defendants of the injury and the cause of it, at 
 the time it occurs, is (in case of death) a reasonable excuse for the want 
 of the notice of injury required by s. 9 of the Workmen's Compensation 
 for Injuries Act, R.S.O. 1897, c. 160, where there is no evidence that they 
 were in any way prejudiced in their defence by the want of it. Where 
 the deceased received the injuries from which he died by being run over 
 by a train of cars, a statement made by him immediately after he was 
 run over, in answer to a question as to how it happened, "I slipped and 
 it hit me," was held admissible in evidence. [Tiiompson v. Trevanion 
 (1693), Skin. 402; Aveson v. Kinnaird (1805), 6 East 188, 193, and 
 Rex V. Foster (1834), 6 C. & P. 325, followed.] Upon that evidence, and 
 evidence of the slippery condition, by reason of snow and ice, of the 
 place where the deceased slipped, a question should have been submitted 
 to the jury whether he slipped bj' reason of such condition and whether 
 such condition was due to the negligence of the defendants. 
 
 Armstrong et al. v. Canada Atlantic Ry. Co.. 1 Can. Ry. Cas. 444, 2 
 O.L.R. 219. 
 
 [Reversed in 2 Can. Ry. Cas. 339, 4 O.L.R, 560.] 
 
EMPLOYEES. 239 
 
 Wwmnr^'s Comfcxsahos Act — Xoncx of isjfVKt — ^EcjiSoxjiBLE Esccse 
 roc WAXT or. 
 
 Wkilc tker Botke of njaxr requred Itj «. 9 of the WorbacA'S Owh 
 pmiMitiw for lajnrics Act,' RJSlU. 1897* €. IW, is for tlw cwplo^vr's 
 pnitoetiaa against stale or ifgHnity riaiaKS, aad to catitle kna. vhile the 
 fmtbt are nnmiu to muiat caqjiuiy, the iajiired workaiaa is the pruaaij 
 abject of the k^islatnv eoaaidetatiaB; aad Mailer siteh aectioa aad ss. 13, 
 1^ aotiefc BUT be dupeaaed with vhoe there k reasoaable caucuse for the 
 vaat of it, the cai^ojvr aot heii^ ptejodiead. What cosstitntes rca^oa- 
 ahle excsse antst de p ea d npoa the arcnaistanas of each partknlar ca^c, 
 aad aach na j be iafen«d ■hue thet« is the aotoriety of the aeadcat, 
 the kaovkdge of the eai^ofcKS of the iajmy vhich resulted ia death, 
 aad its can^e, and of a daiia hari^ beea aade oa theai br the deeeaaed's 
 xcfvocatatiTe. Jodgpaat ai Oe IMviaiaHJ Govrt, 1 Gu. Rj. Gas. 444, 
 levBtsed. 
 
 Jlnutn^g T. Ouada Attaafie K;-. Gm, 2 Caa. Rj. Cms. 339, 4 OJ-B. 
 
 Oasidend ia Lever t. lIcArthnr, 9 B.C.B. 418; distiasaiihed ia BeO 
 Bros. T. Hndsoa's Bay Ib& Col, i S.I*R. 361; foUowed ia (FOoaaor r. 
 HaauItoB, S O-LuR. 391. 3 O.W.S. 918; Saiith t. Hclato^ 13 OXJL 118; 
 refnrvd to ia Gioriaazzo t. Caa. Fac Rj. Col. 19 OXJL 32i; IresiiOB 
 T. Wian^e^. 16 Maa. LJS. 364: OCoanor r. HaBlikai^ 10 O.LJL 423, 
 6 O.W.R. 227; Plonffe \. Caa. Iioa Fnmaee Co_ 10 Oi.R. 37-] 
 
 WOKKMEt'S COMItXSATIOX ^ElOnOTEE SIKIfaiS OF XXSTKA^^CC SOCIEIT 
 
 RsifJt^E. 
 
 Aa aetioB for daaiaiiieB vader Woil aw a'* Coaipensation Aet a^iast a 
 raOvav coaipaBT caaaot be ataiataiaed vfaere it apfteare that the aerraat 
 is a amnber of the lBsaraa«p Society of the tmapnay aad actaally ne- 
 ceired benefits fron it. the rules, of the :»oeiety proridiag that ao aeaiber 
 shall hare aay clain a<r>iB»t the railway eompaay for coaipeBsatioB oa 
 acrooat of imjury or ^ath from aradeat. 
 
 Harris t. Graad Tnmk Ry. Co, 3 Can. Ry. Caa. 172. 3 O.W.R. 211. 
 
 WOKKMEX'S CovreXSATlOX FOB IXJTTBIES ACT — ScTEXOrTEXDCSCE — De- 
 
 nscrs ts wo«ks. tulXt. etc 
 
 While one raihray employee H. ma;s eagaj^ed with aaother railway csa- 
 ^oyee D. ia Iooiscsub* a hand Iwake oa a flat ear. the brake beii^ soddealy 
 relea^d by D_ H. wa;^ tkrowa from the car by the rvrol\ia|r haadle of 
 the brake aad rcceired iajnries fron whieh he died. D. had gcoeval saper- 
 JHiiMhaii orer B., b«it had ^Ircn ao orders to H. as to this partiealar 
 job, aad had rohntarily cone to the as«>istaBc« of H. wbea H. was alone 
 naabie to looecB the brake ia question: — Ueld. that D. was aot acti^ ia 
 the coarse of his soperiateadncv nor was H. aetia|r ia confiar^utT to 
 aay order of D. The use upon a flat car of a "'I^ brake, tthat is, a brake 
 harii^ for a handle a strai^t iroa erossinr at the top of the brakeaaast 
 imifrad of a wheri brake, that is, a brake hariag for a haadle a wheel, 
 is not a defect ia the condition or arraai^tHnents oi the ways, works, 
 WThiany or piaat of a. raflway company. Ia aa action for damages for 
 iajnries the pnesidia^ Jo^ie rirtaally directed the joij to find far tibe 
 ihhadaalii Deapite his direction the jury aasweied all the qneataons 
 snknutted to them ia favvr of the plaintiff. The trial Jodge, hari^ set 
 amde the findings of the jury as perrcr^se and dt^ m i ai ied the action, his 
 jadgBKnt was affirmed by a Dirisional Court. 
 
 Hodaon r. Toronto, Hainilton t Buffalo Ry. Gx, 3 Gan. Ry. Cas. 289. 
 
240 EMPLOYEES. 
 
 XkGI.IOEXCE op FEI.LOW SERVANT DeFECTT IN MACHINERY — DEFECTIVE 
 
 SYSTEM OF INSPECTION — WoRKJIEN'S COMPENSATION ACT, 
 
 In an action brought against a railway company to recover damages 
 because of the death of a fireman who was scalded by steam which escaped 
 in consequence of the giving way of a water pipe in an engine, evidence- 
 was given on behalf of the plaintiff that the type of engine in question 
 was of dangerous construction and especially liable to accidents of the 
 kind, but it was shewn on cross-examination of the plaintiffs witnesses 
 that the use of engines of this type was well established and that they had 
 many points in their favour: — Held, that the principle adopted in actions 
 of negligence against professional men should be applied, namely, that 
 negligence cannot be found where the opinion evidence is in conflict 
 and reputable skilled men have approved of the method called in question. 
 At common law a master is bound to provide proper appliances for the 
 carrying on of his work, and to take reasonable care that ap])liances which 
 if out of order will cause danger to his servants are in such a condition 
 that the servant may use them witliout incurring unnecessary danger. 
 These duties he may discharge either personally or. by employing a 
 competent person in his stead, and the purpose of subs. 1 of s. 3 of the 
 Workmen's Compensation for Injuries Act, R.S.O. 1897, c. 160, as modified 
 by s. 6, subs. 1, is to take from the master his common-law immunity 
 for the neglect of such a person. Where therefore an accident occurred 
 as the result of the giving way of a water pipe in an engine which had 
 Tiot long before been in the defendants' repair shop for the purpose of 
 having the water pipes repaired, it was held that the inference might be 
 drawn that there had been negligence on tlie part of the workman en- 
 trusted with the duty of making the repairs and either absence of in- 
 spection or negligent inspection, and that if an inference of either kind 
 were drawn tlie defendants would be liable. A nonsuit granted by 
 Meredith, J., was therefore set aside and a new trial ordered. 
 
 Schwoob v. jNIicliigan Central Ry. Co., 4 Can. Ry. Cas. 242, 9 O.L.R. 
 86. 
 
 [Affirmed in 10 O.L.R. 647, 5 Can. Ry. Cas. 58.] 
 
 Defect in machinery— Defective system of inspkction — Workmen's 
 compensation. 
 On the trial of this action — which was against a railway company to 
 recover damages for the death of the deceased through scalding by the 
 escape of steam occasioned by the giving away of a water tube in a 
 locomotive engine on which he was working — tlie jury, in answer to 
 questions submitted to them, which, with the answers to them, are set 
 out in the report, found that the death was caused by a defect in the 
 condition of the locomotive, '"tlirough the defendants not supplying proper 
 ■inspection," the defect itself not being specified, but from a discussion 
 which the trial .ludge had witli tli(> jury when they brought in their 
 answers, and from the answers to further questions submitted to them, 
 such defect it api)eared consisted in the fact that the end of the tube 
 in question had not been sufficiently "belled" by one J., who had put the 
 tube in the boiler: — Held, that there was no evidence to support liability 
 at common law, but that the evidence and findings of the jury suffi- 
 ciently established what the defect was, and that J. was a person en- 
 trusted with the work, so that there was liability under the Workmen's 
 Compensation Act, in respect of which the deceased's widow and ad- 
 
EMPLOYEES. 241 
 
 »i»Mi tj «ir it eonld maintain tlie acticn, and was oititlcd to recoTer the 
 damagts xsaesaed by the jury under the above Act. 
 
 Sdiwoob r. Miehjgaa Central Bj. Cos 6 Can. By. Cas. 287, 13 OXJS. 
 548. 
 
 [Beferred to in Hanlej t. Mich^an Coitral By. Co., 13 OX.B. 560, 
 6 Can. By. Cas. 340.] 
 
 WOEKMEX's CoXFEXSXnOX ACT — liCBSSES — STATTTCWT OCTT — DatXTIVK 
 STSTEK. 
 
 S. 9 of the Workmen's Compensation for Injuries Act, which require* 
 notice of the injury to be gnrea, provides that the notice mui^t be given 
 within twelve weeks after the occurrence of the accident causing the 
 injury and that in the ease of death the want of notice shall not 
 bar the aetiim which the Act gives, if the Judge is of opinion that 
 thoe was ^reasonable excuse" for the want of notice t^Held. that 
 ignorance of the law is not a "reasonable excuse:"' and in this 
 case the plaintiff, the brother of the deceased person who was in- 
 jured, might have given the notice before he wa* appointed administrator, 
 and his solicitors mistaken idea to the contrary did not excuse the want 
 of the notice: and the acti<m therefore failed. Jndgmoit of a Divisional 
 Court reversed. The deceased was employed by the defendants as a 
 workman on the tracks in a railway yard, and, when crossing the tracks 
 with other workmen cm his way h<Mne from work, was struck by an en- 
 gine and killed. The negligence alleged was that the engineer in charge 
 of another en^e in the yard let off a large quantity of steam, which 
 prevented the deceased from seeing or hearing the engine which struck 
 him. The jury found that the defendants were guilty of negligence by 
 Mowing off steam or hot water at such a critical moment with such a 
 large number of employees between the tracks : that the deceased came - 
 to his death by reascm of the negligence of a person in charge of an en- 
 gine of the defendants, such negligence consisting in blowing off steam or 
 hot water, and that a proper lookout was not kept in a proper place 
 on both engines when backing: and that there was no contributory 
 negligence. On these findings the trial Judge entered judgment for the 
 plaintiff: — Held, .by the Divisional Court, that the position of tbe de- 
 ceased, in view of clause 5 of s. 3 of the Wcnrkmen's Compensation for 
 Injuries Act. was. in the atjeence of any finding to the contrary, that 
 of a mere licensee: that he could not claim the benefit of s. 276 of the 
 Baihray Act, 1906, because tbe engine was not passing over or along a 
 highway at rail level: but that the deceased might have had cause to 
 complain of a defective system, within the meaning of clause 1 of s. 
 3 from the facts devel<^>ed in the evidence, although not specificalhr 
 mentioned in the pleadings: and a new trial was ordered, with leave to 
 amend. He Court of Appeal, reversing the judgment upon the other 
 ground, did not as a Court e3q>ress an opinion upon these points. But. 
 semble, per Osier, J.A.. referring to Willetts t. Watt Jt Co.. [1892] 2 
 Q3. 92, that the discretion of the Court below in allowing the plaintiff 
 to make a new case, after the time had elapsed within which a new ac- 
 tion could be brought, should not. (xi that ground, be interfered with. 
 Semble. per Garrow, JJi... that the true position of the deceased at the 
 time of the accident was not that of a mere licensee but of a person 
 upon the defendants' premises by their invitati<m, and one to whom 
 the defmdants owed a duty to take reasonable care that he should not 
 be injured. And semble, per Meretlith. J— \.. that there was no proof of 
 any negligence on the part of the defendants; and the granting of a 
 Can. By. L. Dig. — 16 
 
242 EMPLOYEES. 
 
 new trial in order to enable the plaintiff to set up an entirely new case 
 was contrary to proper practice. 
 
 Giovinazzo v. Can. Pac. Ey. Co., 9 Can. Ry. Cas. 423, 19 O.L.R. 325. 
 
 INJURY TO SERVANT — FaXL OF COAL FROM LOCOMOTIVE TENDER — WORK- 
 MEN'S COMPENSATION — Res IPSA LOQUITUR — 1\EI,EASE. 
 
 The phiintiff was in the employment of the dofeiulants, and, while at 
 work upon a railway track, was struck by a lump of coal which fell 
 from the tender of a passing locomotive, and injured. It ajipearcd from 
 the evidence, in an action for damages for the injury sustained, that 
 the coal was unnecessarily piled in the tender above the sides in such 
 quantity and manner that the rapid motion of the train shook down 
 the lump, which, falling upon the corner, Hew off with dangerous force 
 and struck the plaintiff: — Held, that the unexplained fall of the coal, 
 in the circumstances stated, was in itself evidence from which an in- 
 ference might well be drawn that those in charge or control of the loco- 
 motive (Workmen's Compensation for Injuries Act, R.S.O. 1897, c. 160, 
 s. 3, subs. 5) were negligent in their mode of using it by piling or per- 
 mitting coal to be piled upon the tender so high and without protection 
 that chunks of it could be hurled by the necessary motion of the train 
 Avith such force as to break a man's leg 15 or 20 feet away; and a 
 verdict for the plaintiff for $1,500 under the Workmen's Compensation 
 for Injuries Act, was upheld. Doctrine of res ipsa loquitur explained 
 and applied. The defendants set up as a bar to the action a release 
 signed by the plaintiff, after action, in consideration of $300 paid to 
 him by the defendants. The plaintiff was without independent advice, 
 and stated that he believed from what was said that what he was re- 
 leasing, and all he intended to release, was a claim to wages during his 
 compulsory idleness, all parties, including the doctor, being under the 
 impression that at the end of the period for which he was being paid he 
 would be well and back at work: — Held, tiiat, as the plaintiff's statement 
 was believed by the trial Judge, a finding against the validity of the 
 release should not be disturbed. Judgment of Clute, J., affirmed. 
 
 O'Brien v. Michigan Central Ry. Co., 9 Can. Rv. Cas. 442, 19 O.L.R. 
 345. 
 
 [Applied in Lawrence v. Kelly, 19 Man. L.R. 372; referred to in Rostrom 
 v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 168.] 
 
 Collision — Defective system, Workmen's Compensation Act. 
 
 The Railway Act prescribes that rules and regulations for travelling on 
 and the use or working of a railway must l>e approved by the Governor- 
 General-in-Council and that, until so approved, such rules and regula- 
 tions shall have no force or effect, when approved they are binding on all 
 persons. Rule 2 of the rules of the Grand Trunk Ry. Co. provides that 
 "In addition to tliese rules, the time-tables will contain special instruc- 
 tions, as the same may be found necessary. Special instructions, not 
 in conflict with these rules, which may be given by proper authority, 
 whether upon the time-tables or otherwise, shall be fully observed while 
 in force." Trains runninjr out of Brantford, are under control of the train 
 despatcher at Ix)ndon. The railway time-table for many years contained 
 the following footnote: — "Tilsonburg Branch. — Yard engines at Brant- 
 ford are allowed to push freight trains up the Mount Vernon grade and 
 return to Brantford B. & T. station without special orders from the 
 train despatcher. Yard foreman in charge of yard engine will be held 
 responsible for protecting the return of the yard engine, and for knowing 
 such engine has returned before allowing a train or engine to follow. — 
 
EMPLOYEES. 243 
 
 A. J. XixoD, Assistuit Superintendent.^ This regulation or instruction 
 had not then been submitted for the approval of the GoTemor-General- 
 in-Council. By Rule 224 "all messages <wr orders respecting the move- 
 ment of trains . . . must be in Hritingr": — Held, Davies and Duff, 
 JJ„ dissentinv. that assuming the footnote on the time-table to be a 
 "special instruction' under Rule 2. it is inconsistent with the train-des- 
 patching system in force at Brantford and if. as the evidence indicates, 
 it purports to authorize the sending out of engines under verbal orders 
 to push freight trains up the grade it is also inconsistent with Rule 224. 
 Such instructicm has. therefore, no legal operation: — Held, per Girouard 
 and Anglin, JJ.. that it was not a ''special instruction^ but a. regulati<«, 
 and not having been sanctioned by order-in-coimcil operation under it 
 was illegal. By the Railway Act a "train*' includes any oigine or lo- 
 comotive. Rule 198 provides that it "includes an engine in service witit 
 or without cars equipped with signals": — Held, per Girouard. Idington 
 and Anglin, JJ., Duff. J., contra, that an engine returning to the yard 
 after pushing a train up the grade, is a '^train^ subject to the provisions 
 of Rule 224. and to the rules of the train despatching system. The ac- 
 cident in this case occurred through the vard foreman failing to protect 
 the engine on its return to the yard: — Held, Davies and Duff, JJ.. dis- 
 senting, that the company operated the yard engines under an illegal 
 system and were liable to common-law damages and that subs. 2 of «. 
 427 of the Railway Act, 1906, applied: — Held, per Duff, J., that since, 
 as regards the danger of collision with trains stopping at Brantford for 
 orders, the system of operating the yard engines through the telegraphic 
 despatchers would clearly have afforded greater protection than that in 
 use, and since there was admittedly no impediment in the way of adopt- 
 ing the former system, there was evidence for the jury of want of care 
 in not adopting the safer system: and the fact that the existing system 
 had been in operation for 2-5 years was evidence from which the jury 
 might infer that the general governing body of the company was aware 
 of it. And further, following Smith v. Baker. [1891] A.C. 325, and 
 Ainslie Mining t Ry. Co. v. ]^IcDongall. 42 Can. S.C.R. 420. that, in these 
 circumstances, the company was responsible for the defects in the system. 
 Fralick v. Grand Trunk' Rt. Co., 10 Can. Ry. Gas. 373, 43 Can. S-CJl. 
 494. 
 
 Workmen's Compexsatiox Act — Xbgi-igexce of fellow sebtaxt — Pek- 
 sox IX posrriox of supebixtexdexcb — ^'oli-xt-^bt asscmptiox of 
 
 BISK. 
 
 The plaintiff and T. were both employed by the defendants. The plaintiff 
 was assisting T. in repairing a car standing on a track in the 
 defradants' yard, wh«i the yard engine propelled other cars against 
 the car under repair, and injured the plaintiff, who brought this 
 action to rec-over damages for his injuries, under the Workmen's 
 Compensation for Injuries Act. alleging negligence <m the part nf 
 T.. a person in a position of super intendeni-e. to whose orders the 
 plaintiff was bound to conform and did conform, in not placing a flag or 
 flags in a position to give warning that work was going on upon the track. 
 At the triaL the jury, in answer to questions, found: (1) That the 
 plaintiff's injuries were caused by neglitience of the defendants: (2i that 
 the negligence was the neglect of T. in not placing the flag for protectioti : 
 <3k that the injuries were caused by the negligence of a person in a posi- 
 tion of superintendence over the plaintiff and to whose orders he was 
 bound to conform: (4t that T. was that person, and his negligence con- 
 sisted in not placing the flag; (5) that the plaintUTs injuries were not 
 
244 EMPLOYEES. 
 
 caused by his own want of care; "it was no part of his duty to place these 
 flags;" and they assessed the damages at $1,980: — Held (Meredith, J.A., 
 dissenting), that, notwithstanding that the jury had not found that T. was 
 exercising superintendence at the time of the injury, and had not found 
 that the plaintiff did conform to T.'s orders, yet, having regard to the evi- 
 dence and the Judge's charge, the findings were sufficient, under the 
 Workmen's Compensation for Injuries Act, to support a judgment for 
 the plaintiff. [IVIarley v. Osborn (1894), 10 Times L.R. 388, specially 
 referred to.] After counsel had addressed the jury, and when the Judge 
 was about to begin his charge, a discussion arose about the frame of two 
 of the questions proposed to be submitted to the jury, in the course of 
 wliicli the defendants' counsel suggested anotlier question, "Did the plain- 
 tiff voluntarily perform the acts whicli caused his accident, knowing of 
 the dangers wliich he ran?" This defence was not set up in tlie pleadings 
 nor previously at the trial; and no application was made for leave to 
 amend or to reopen the case or postpone the trial. The Judge declined to 
 submit the question, saying that he did not think it fair to introduce it 
 at that stage: — Held, Meredith, J. A., dissenting, a proper exercise of dis- 
 cretion. Judgment of Falconbridge. C.J.K.B.. affirmed. 
 
 Brulott V. Grand Trunk Pacific Ry. Co., 13 Can. Ry. Cas. 76, 24 O.L.R. 
 154. 
 
 [Affirmed in 13 Can. Ry. Cas. 95, 46 Can. S.C.R. 629.] 
 
 Workmen's Compensation for Injuries Act — Xegligence of fellow 
 
 SFatVANT — VOLENS. 
 
 Held by the Supreme Court of Canada, affirming 13 Can. Ry. Cas. 76, 
 24 O.L.R. 154, that tbe jury having fonnd that the defendants were negli- 
 gent and the plaintiff free from contributory negligence necessarily pre- 
 cluded a finding that the plaintiff was volens: — Held, IdiTigton, J., that s. 
 306 of the Railway Act, 1906, was not applicable to the facts of this case 
 and volens should have been specially pleaded. Davies, J., dissenting, 
 thought tliere should b? a new trial. 
 
 Grand Trunk Pacific Ry. Co. v. Brulott, 13 Can. Ry. Cas. 95, 46 Can. 
 S.C.R. 629. 
 
 Workmen's compexs.vtion — Volens — Contributory negligence. 
 
 Where one employed by another as a car repairer was ordered by another 
 employee to assist him in repairing a car standing upon a track in the 
 yard when other cars were propelled against it and injured him. the mas- 
 ter, in the absence of a plea of volens or evidence that the negligence of 
 the servant contributed to the injury, is liable in an action under the 
 ^^■orkmen's Compensation Act (Ont. ) for the injuries thus sustained. 
 
 Grand Trunk Ry. Co. v. Brulott, 46 Can. S.C.R. 629, 13 Can. Ry. Ca.s. 
 95, affirming Brulott v. G.T.R. Co., 24 O.L.R. 154, 13 Can. Ry. Cas." 76. 
 
 Injury to employee — ^N"egligence of fellow employt.e — Superintend- 
 ence — Liability of employer at common law^ — WoRic^rEN's compen- 
 sation. 
 The plaintiff's claim was for injuries sustained by the explosion of some 
 dynamite while he was thawing it for use in blasting out hard pan in a 
 gravel pit under the superintendence of one Campbell, a roadmaster in 
 defendant's employ. In answer to questions, the jury at the trial found 
 that the plaintiff was ignorant of the material he was using, that Campbell 
 had not given him proper instructions, that the injury had been caused 
 by the negligence of the defendant company, that such negligence con- 
 sisted in not employing a competent person to superintend the work and 
 
EMPLOYEES. 245 
 
 in not furnishing proper appliances and storage for explosives, and that 
 the defendant company had not used reasonable and proper care and 
 caution in the selection of the person to superintend the work: — Held. 
 Howell, CJ^JiL. dissenting, that the eridenc-e at most shewed that, on the 
 occasion in question. Campbell might hare been negligent in his super- 
 intendence of the work, that there w&s no proof of his incompetenrv 
 otherwise or that the defendant had been n^Iigent in appointing him. or 
 in famishing proper appliances, the onus of proving which was on the 
 plaintiff, and. therefore, the plaintiff could not recover at common law, 
 bat was entitled under the Workmen's Compensatioa for Injuries Act, 
 R.SJI- 1902, c. 178, 8. 3, to the amount alternatively fixed by the jury 
 under s. 6 of that Act. [Smith v. Howard (1870), 22 Lt.X.S. 130; Young 
 V. Hoffman, [1907] 2 K:B. 650; and Cribb v. Kynoch, [1907] 2 K.B. 54«, 
 followed.] Per Howell, CJ^.M.: There was evidence to submit to the jury 
 on all the questions answered by them and the T«-dict for damages at com- 
 mon law should not be disturbed: — Held, also, hy all the Judges that the 
 damages had not been "sustained by reason of the construction or opera- 
 ti<m of the railway," and, therefore, the plaintiff was not barred by s. 
 306 of the Railway Act, 1906, from bringing his action after the lapse of 
 one year. 
 
 Anderson v. Can. Xorthem Rv. Co., 13 Can. Rv. Cas. 321. 21 Man. LR. 
 121. 
 
 [Reversed as to common-law liabilitv, otherwise affirmed in 45 Can. 
 S.CJL 355, 13 Can. Ry. C»r. 339.] 
 
 DASGEBOUS W0»K — ^DaXGEBOUS MATEKIAIfi ^RlSK (^ EMPIjOYMKST — 
 
 Warxixgs axd rxsTBrcnoxs — EMPijOTar*s uabilitt. 
 Where instructions and warning are necessary to enable employees, in 
 circumstances involving danger, to appreciate and protect themselves 
 against the perils incident to the work in which they are engaoed, it is 
 the duty of the employer to take reasonable care to see that such instruc- 
 tions and warnings are given. The employer may delegate that duty to 
 competent persons, bat, where compensation is sought for injuries sus- 
 tained by an employee owing to n^lect to give such instructions and 
 warning, the onus rests upon the employer to shew that the duty was 
 delegated to a person qualified to discharge it or that other adequate 
 provision was made to assure protection against unnecessary risk to the 
 employees. The failure of the employer to take reasonable care in the 
 appointment of a properly qualified superint^ident, to whom the duty 
 of selecting persons to be employed is entrusted, amounts to n^igence in- 
 volving liability for damages sustained in consequence of the acts of in- 
 competent servants. [Young v. Hoffman ^Manufacturing Co. ( 1907 1 . 2 
 K.B. 646, applied: judgment appealed from (21 Man. L.R. 121, 13 Can. 
 Ry. Cas. 321), affirmed.] In this case, as the risk incident to the em- 
 ployment of an incompetent foreman was not one of those which are as- 
 sumed by an employee, the plaintiff was entitled to recover damages at 
 common law. Judgment appealed from (21 Man. L.R. 121, 13 Can. Ry. 
 Cas. 321) reversed. The limitation of one year, in respect of actions to 
 recover compensation for injuries sustained '"Iw- reason of the construc- 
 tion or operation"' of railways, provided by s. 306 of the Railway Act, 1906, 
 relates onty to injuries sustained in the actual construction or operation 
 of a railway; it does not apply to eii>es where injuries have been sustained 
 by employees engaged in works undertaken by a railway company for pro- 
 curing (H* preparing materials whicii may be necessary for the construction 
 of their railway. [Can. Northern Ry. Co. v. Robinson ([1911] A.C. 739), 
 
246 EMPLOYEES. 
 
 a])plied]; judgment appealed from, 21 Man. L.R. 121, 13 Can. Ry. Cas. 321, 
 affirmed. 
 
 Can. Northern Ry. Co, v. Anderson, 13 Can. R}'. Cas. 339, 4;") Can. S.C.R. 
 355. 
 
 Ekginker running a snow plough — Prockf.ding in absence of crossing 
 
 OR station SIGN.M.S — WORKMEN'S COMPENSATION ACT. 
 
 A case for compensation under the Workmen's Compensation Act, R.S.O. 
 18{»7, c. 160, but not a case at common hiw, is shewn where an engineer in 
 charge of a locomotive propelling a snow plough ran it for some time 
 without ascertaining why crossing or station signals were not being given 
 by the signalman on the plough, and a collision with another train re- 
 sulted, in which the fireman of such locomotive was killed. 
 
 Jones V. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 76, 5 D.L.R. 332. 
 
 [Reversed in 16 Can.^Ry. Cas. 205, ISD.L.R. 900.] 
 
 Workmen's compensation — Injury to foreman of railway yard — 
 Fellow sfjivant. 
 
 Subs. 5 of s. 3 of tlie Workmen's Compensation for Injuries Act, R.S.O. 
 3897, e. 160, should receive a liberal construction in the interests of the 
 workman. An employer may be responsible for the negligence of an 
 employee resulting in injury to another employee, although the one 
 injured is in authority over the other. The plaintiff was fore- 
 man of a railway yard of the defendants, and M. was his assist- 
 ant and subject to his orders. In carrying out the plaintiff's or- 
 ders, M. gave a wrong direction to the driver of the yard engine, by 
 rciisou of which the plaintiff was struck by the engine and injured. The 
 cn:iine driver testified that he took lus instructions from M. : — Held, Len- 
 nox, J., dissenting, that there was reasonable evidence that AI. was, on 
 the occjision in question, a person in charge or control of the engine, with- 
 in tlie meaning of subs. 5; and, upon the findings of the jury, in an action 
 to recover damages for the plaintifFs injury, the defendants were respon- 
 sible for the negligence of M. Judgment of Mulock, C.J.Ex.D., affirmed. 
 
 Martin v. Grand Trunk Ry. Co., 27 O.L.R. 165, 15 Can. Ry. Cas. 1. 
 
 Workmen's compensation — Nfxsligence of fellow servant. 
 
 A master is liable, under subs. 5 of s. 3 of the Workmen's Compensa- 
 tion for Injuries Act, R.S.O. 1897, c. 160, making the employer liable 
 where the injury is caused "by reason of the negligence of any person 
 in the service of the employer who has the charge or control of any 
 j)oints, signal, locomotive, o7igine, machine or train upon any railway, 
 tramway or street railway," where a yard foreman is injured by being 
 struck by an engine engaged in shunting operations and under the con- 
 trol of his assistant by reason of the negligence of tlie assistant in failing 
 to carry out an order of the foreman. 
 
 Martin v. Grand Trunk Ry. Co., 8 D.L.R. 590, 27 O.L.R. 165, 15 Can. 
 Ry. Cas. 1. 
 
 Workmen's Compensation Act — Strict or liberal construction. 
 
 Subs. 5 of s. 3 of the Workmen's Compensation for Injuries Act, R.S.O. 
 1897, c. 160, making the employer liable where the injury is caused "by 
 reason of the negligence of any person in the service of the employer who 
 has the charge or control of any points, signal, locomotive, engine, ma- 
 chine or train upon any railway, tramway or street railway," should 
 receive a liberal construction in the interests of the workman. [Gibbs v. 
 
EMPLOYEES. 247 
 
 Gbmt Wofan Rr. Col, 1± QJJ>. lOS: MeCofd x. CuBairll [ISM] A.C. 3?. 
 itJiuiul ^lJ 
 
 Martm ▼. Graad Tnnk St. Go^ 8 D.LJS. 5M, S7 OX.IL ICS. 15 Cka. 
 Sj. OUL 1. 
 
 IsrjiTiT TO WEiimff^jg — XnajcEXCE or esgixeeb — ^IVockxeix's cdxfexsa- 
 
 Whoe a !■ ■!<■■■ cagaged n ecfKag cars at aiglrt is ia jared fej icaaoa 
 off tte atglipiaic of the cagiaccr ia ckaa;ge of Ae loeaBotlTir ia faifii^ to 
 '■ait for a airv s^nal to start, it karia^ keoa picarTai^Td betwra thie- 
 tmo tkat the brakoaaa aas to gire surk aigaal bjr laatcra, tkr mmMtr 
 is fiabfe aader sobs. 5 of a^ 3 of the Woifcjaeara Coaapms^tiaB for la- 
 jaries ^ct, aiaHug aa caiplaTcr rw i po a ffiiHe Inr reasoa of acglisHKr of 
 aaj persia ia tke scrriee of the oiploTer who has the charge or coatrol of 
 aar potata, sigaaL locuaiotiif. cagiae, awAiae or traia apoa a raDwar, 
 trunajr or street raDaaT." [Martia t. Graad Tnmk Br. Co^ 4 O.WJK. 
 51. allied.] 
 
 JUIaa T. Graad Traak Rr. Cos 8 DJ-R. 697^ 13 Caa. Kr. Cas. 14. 
 
 [A|iplied ia Siaannsaa t. Graad Tmak Rt. Cou 11 DJLR. 104.] 
 
 WomKMES^ CoMPCvsATiox Act — PaociBCXE — AsBnm&Toa. 
 
 After aa avaid of aa arbitrator anmiatcd aader ikt Workawa's Co^ 
 ppKatioa Act. RJS.B.C. 1911. €. 214, has beca rcdaced to writia^ aad 
 poUishcd. he caaaot sabaait q u c stioaa aader s. 4 of the Act, to a Jod^ 
 of the S^aprene Court. 
 
 Levis T. Graad Tnmk Pacific Ry. Col, 15 Ciaa. Rr. Ca& 173, 13 DJa.R. 
 15± 
 
 WOIKXCT^'S COarEXSATIOX. 
 
 Fader the Qoebec Workaea's Co i pe aa atioB Art the «»«im1 parawat 
 to be Bttde for peraiaaeat disabiHtx is oae-half of the ama|9 yearly 
 vage of abich the injnred party is deprircd by reason of sncb iacapacitr. 
 [Graad Tmak Ry. Co. t. McI)oaad], 5 DJLJl 63. IS Rev. de Jar. 369. 
 foUovcd.] 
 
 UeDoaaeD ▼. Caa. Pac. Ry. Col, 7 DlL^R. 13S. 22 Que. KR. 207. 
 
 WOBKMKS'S OOMPCSrSAnOX. 
 
 A workaiaa who is eatitled to a perauweat disability daiia aado- the 
 Qnefaee Workai^''^ Cooape&satioB Act has the «^iiaB of acce^»tiag the an- 
 aaal iaeone specified ia the Qoebee WorkiMa's Coaa pcas ati o a Act or of de- 
 — iii«g that the capitalizatioa thercof (aot encc^i^ tSjOOOx be haaded 
 OTcr to aa ia^nraace coaqiaBy ia order to porcbase aa aaanity there^th. 
 but ao «i— il*r option is available to the oaployer to confers jud«aient 
 for $2^000 or for the aaaaity abicb that sum would parrba;^. as in sati«- 
 factioa of his Uabnlitf. [Graad Tmak Ry. Co. r. McDoanelL 5 DJ..R. 
 C5, foDoaned.] 
 
 UdDoBBeR T. C^a. Pae. Ry. Col, 7 DJ^R. 133. ^ Que. K. B. 207. 
 
 FOK VHAT ACTS OP CDXTKACTOa CSOTOTEX IS fUBIF. 
 
 Uader Ike WrakaMa's C^mpas^tioa far lajarics Act. R.S.O. 1897, e. 
 ICO. s. 4, botb tke iamediate aaployer and ovaer of the ^caiseB on 
 vhick oae is avrkiag as aa iadepeadent coatractor are jointly re^oaai- 
 ble for iajnries to a aemat of the latter, whav it appears that, aUkoq^ 
 the work was beiag done originally by the independent contractor ■liwir„ 
 it later developed that it was impossible to carry oat tte origiaal ^ree- 
 ■Kat and aa arraageBKat was entered iato vhcrdqp^ the work mas doae 
 
248 EMPLOYEES. 
 
 under their joint supervision, and the accident occurred through the neg- 
 ligence of both the independent contractor and the owner. 
 
 Dallontania v. McCorniick and Can. Pac. Ry. Co., 8 D.L.R. 757, 4 
 O.W.N. 547. 
 
 [Affirmed in 29 O.L.R. 319, 16 Can. Ry. Cas. 173, 14 D.L.R. 613; Dis- 
 tinguished in Romanink v. Grand Trunk Pacific Rv. Co., 18 Can. Rv. Cas. 
 170.] 
 
 LlABIIJTY OF MASTER — CoTJBSE OF P:MPI.0YMEXT — SASKATCHEWAN WORK- 
 MEN'S Compensation Act. 
 
 Where a railway employee is injured while removing personal belongings 
 from tlie defendants' car with the permission of the defendant company, 
 the accident is one arising out of and in tlie course of his employment, for 
 which he is entitled to compensation under the provisions of the Saskat- 
 chewan Workmen's Compensation Act, even though an action brought by 
 him at common law for damages had been dismissed on the ground that at 
 the time of the accident he was on business of his own and was a mere 
 licensee, if the accident occurred during the time he was in defendant's 
 employment. [Blovelt v. Sawyer, 89 L.T. 658 and Morris v. Lambeth, 22 
 Times L.R. 22, followed.] 
 
 Gonyea v. Can. Northern Ry. Co., 9 D.L.R. 812, affirmed in 16 Can. Ry. 
 Cas. 33. 
 
 Death — Right of action — Workmen's compensation. 
 
 Under the Ontario Workmen's Compensation for Injuries enactments 
 giving any person entitled in case of death "the same right of compensa- 
 tion as if the workman had not been a workman," the "same right of 
 compensation" means that which is conferred by the Fatal Accidents Act, 
 1 Geo. V. (Ont.) c. 33. 
 
 Brown v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 350, 11 D.L.R. 97, 
 28 O.L.R. 354. 
 
 Workmen's Compensation Act — Accident causing death — Compensa- 
 tion to children. 
 
 Notwithstanding the provision in art. 7323, R.S.Q., 1909, that compen- 
 sation is payable to children "to assist them to provide for themselves 
 until they reach the full age of sixteen years," the child of a workman 
 killed in an accident, whatever his age may be, however near to that of 
 sixteen years, is entitled to recover from the employer a sum equal to 
 four times the average yearly wages of the deceased. 
 
 Palmiero v. Grand Trunk Ry. Co., 15 Can. Ry. Cas. 354, 42 Que. S.C. 
 435. 
 
 Person in charge — Brakeman giving signals. 
 
 A brakeman, standing on the ground and giving signals to the engineer 
 of a locomotive engaged in transferring cars from one track to another, 
 is a person in charge or control of the engine, within the meaning of s. 3, 
 subs. 5, of the Workmen's Compensation for Injuries Act, R.S.O. 1897, 
 c. 160. [Allan v. Grand Trunk Ry. Co., 8 D.L.R. 697; Martin v. Grand 
 Trunk Ry. Co., 8 D.L.R. 590, applied.] 
 
 Simmerson v. Grand Trunk Ry. Co., 11 D.L.R. 104. 
 
 [Affirmed in 12 D.L.R. 847.] 
 
 Master and servant — Workmen's compensation — "Course of employ- 
 ment." 
 A claim for compensation against a railway company, under the pro- 
 
EMPLOYEES. 249 
 
 Tisions o{ the Alberta Workmen's Compensation Act, 1908, by reason of 
 the death of an alleged emplovee, cannot be made unless it appears that 
 the accident in question not only arose oat of the employment, but also 
 happened in the course thereof, as it is impossible to construe disjune- 
 tively the word "and" in the second line of s. 3 of the Act. [See also 
 Re Eddies and Sebool Distorict (Xo. 1) of Winnip*^, 2 DX.R. 696.] Where 
 (me who has left the employ of a railway company is killed while 
 on his way to the o&ce of the company to get his pay on the day following 
 such abandonment of his employment, no compensation for his death can 
 be claimed under the Alberta Workmen's Compensation Act, 190S, since 
 the accident in question did not arise out of or happen in the course of his 
 employment within the meaning of s. 3. 
 
 Lastuka t. Grand Trunk Pacific Rt. Co., 11 Di..R. 375, 16 Can. Ry. 
 Cm. 31. 
 
 IXJTKT TO SEBTAXT — CorPLHTG CABS — XbGUGEXCE. 
 
 A railway company is liable for injury to an employee who was caught 
 in a narrow space between a car which he was moving and a nearby 
 building, while he was climbing the nearest side-ladder to reach the brake 
 to stop the car, though he could have safely used a ladder on the other 
 side of the car, whore, he, being ignorant of the closeness of the building to 
 the track, naturally used the particular ladder, and where the dango* must 
 hare been obvious to the foreman who directed him to more the car, and 
 the foreman negligently failed to warn him of the danger. [Shondra v. 
 Winnipeg Eloc. Ry. Co', 21 Man. L.R. 6->2. affirmed.] 
 
 Winnipeg ElecRy. Co. v. Shondra, 11 D.LJL 392. 
 
 Accident akisixg "orr of" the emplotmext. 
 
 An accident arises "out oP the workmen's employment where such ac- 
 cident is shewn to have been due to and resulted from a risk reasonably 
 incident to the employment; in construing the term "out of and in the 
 course of the employment"' in the Workmen's Compensation Act, Sask. 
 Stat- 1910-1911, c. 9, s. 4, the words "out of" point to the origin or cause 
 of the accident, and the words "in the course of apply to the time, place 
 and circumstances. [Fitzgerald v. Clarke, [1908] 2 k.B. 796, followed.] 
 
 Kennedy v. Grand Trunk Pacific Rt. Co., 16 Can. Ry. Cas. 46, 15 DXuR. 
 172. 
 
 "Oct of xxd ts the covksz of eicplotmext" — Method of oonro work as- 
 
 SIGXED. 
 
 In a railway case, where a brakeman switching cars on the "flying: shunt" 
 process, is killed while performing such duty, the accident may be foiuid 
 to have arisen '^'out of and in the course of the employment,'' although, 
 when such accident occurred, the brakeman was on the ground (contrary 
 to the rules of his employment ) instead of on the engine-tender step while 
 doing such work. [Harding v. Brynddu Colliery Co., [1911] 2 K.B. 747 
 at 750 and 753, followed.] 
 
 Kennedy t. Grand Trunk Pacific Ry. Co., 16 Can. Ry. Cas. 46, 15 D.LJL 
 172. 
 
 Joust ixabiutt of pbopbietob aito ixdepexdext costractob — Jmjvkt to 
 sebvaxt of ooxtractob. 
 A railway company's reservation by contract of complete control over 
 and the right to direct an independent contractor in respect of tunnelling 
 work, renders the former jointly liable with the contractor (notwith- 
 standing the latter's individual liability under the Wc«'kmen's Compensa- 
 
250 EMPLOYEES. 
 
 tion Act, R.S.O. 1897, c. 160) to a servant of the contractor for injuries 
 sustained as the result of being required to work in a place known by 
 botli defendants to be one of danger by reason of the omission of the 
 railway company or the contractors to provide safeguards against the 
 falling of rock upon tlie workmen. 
 
 Dallontania v. McCormick, 16 Can. Ry. Cas. 173, 29 O.L.R. 319, 14 
 D.L.R. 613. 
 
 Switching of cars — Xegligenck — Scope of employment — Employeb'*? 
 liability. 
 
 A train crew of the defendants while performing their duty in the trans- 
 fer yard of another railway company were directed by the yardmaster to 
 remove a special car of freight which was to be transferred to the defend- 
 ants' railway from amongst a numl>er of other cars in the yard. In order 
 to do so it was necessary to shunt several cars placed in front of the car 
 to be transferred and the train crew switclied these cars to certain tracks 
 on which there was then standing a train of the other railway company, 
 lieaded by an engine under which the fireman, plaintiff, was then working. 
 '1 hey undertook to couple the cars which they were switching to the stand- 
 ing train, as a matter of convenience, and, in doing so, struck the rear of 
 the train with such force as to move the engine and cause injuries to the 
 fireman who was working vinder it. Specific questions were not submitted 
 to tlie jury, notwithstanding suggestions made by defendants' counsel 
 after the Judge had charged them, and they returned a general verdict in 
 favour of tlie plaintiff. An appeal from the judgment of the Court of 
 Appeal (Manitoba) affirming the judgment at the trial in favour of the 
 plaintiff was dismissed on the ground that in so proceeding to couple the 
 cars they had switched on to the standing train the defendants' train 
 crew were still acting within the scope of their employment in the de- 
 fendants' business and, as they performed the work in a negligent man- 
 ner, the defendants were liable in damages for the injuries caused to the 
 plaintiff". 
 
 Grand Trunk Pacific Ry. Co. v. Pickering, 18 Can. Ry. Cas. 225, 50 Can. 
 S.C.R. 393. 
 
 Engineer — Defective roadbed — Speed of train — Disoijedience to orders. 
 
 A sinkhole due to the inherent weakness of the subsoil of a roadbed, 
 over which place trains were ordered by the railway company to be run 
 at a slow speed, is not necessarily negligence per se and will not support the 
 findings of a jury, that an accident causing the death of a locomotive 
 engineer was caused by the defective roadbed and not having a watchman 
 for same, where the real cause of the accident arose from the excessive and 
 prohibited speed at which the deceased was running his train. [Lewis v. 
 Grand Trunk Pacific Ry. Co., 19 D.L.R. 600. 24 Man. L.R. 807, affirmed.] 
 
 Lewis V. Grand Trunk Pacific Ry. Co., 20 Can. Ry. Cas. 318, 52 Can. 
 S.C.R. 227, 26 D.L.R. 687. 
 
 Liability fob injuries — Member of wrecking crew — Rail plttngino. 
 Where in emergency work on a railroad, a member of the wrecking 
 crew, while assisting in clearing tlie track after an accident from an 
 unknown cause, is injured by the unexpected and unusual plunge of a 
 twisted rail on its release by cutting the bolts on the fishplate connecting 
 the rail, no negligence is shewn against his employer and the doctrine res 
 ipsa lotjuitur does not apply. [Readhead v. Midland, L.Il. 4 Q.R. 379; 
 
EMPLOYEES. 251 
 
 Ttxgaaam r. CJ.R, 12 O.W.R. 943; O'Brien t. Michigan Centnl Rv. Co^ 
 19 O.L.K. 345, 9 Can. Rv. Cas. 44i specially referred to.] 
 
 Rostrom \. Can. Northern Rj. Co, 16 Can. Ry. Cas. 1G8, 22 Man. L.R. 
 250, 3 DiJL 392. 
 
 ISJtntT TO OOXDUCTMl — POIX KEAK TRACK — IXAWSG CAM, TO ABJTST TBOL- 
 LET. 
 
 In an action by a conductor of a municipal owned s^treet railway for 
 injuries sustained by colliding with a metal standard cio$« to the track 
 while adjusting the trolley pole, the fact of the close proximity of the 
 standard otherwise properly constructed, or that because of the overcrowd- 
 ing of the vestibule he is compelled to leave it when adjusting the trolley 
 pole, or the violation of rules of operation which are not pleaded. doe> 
 not support a jury's finding of negligence against the defendant. 
 
 -Schell V. Regina, 24 D.L.R. 755. 
 
 XbCUGEXCE — BB£ACH of STATTTOBY DCTT ¥aJLXj9E to PBOVE — COXTRIBC- 
 
 TOBT XBGOGESCE BT DGCEASED EMPLOYEE. 
 
 A railway ocmpany is not necessarily liable for personal injuries re- 
 ceived by trainmen because of a derailment at a depression or "sink hole^ 
 on a new piece of road due to an inherent weakness in the ground under- 
 neath the roadbed and not to negligent construction of the road: and it 
 is properly absolved from liability for the death of the engineer of a 
 heavy freight train if the derailment wa> caused by his running the engine 
 at a rate of speed much in excess of that to which his orders limited him, 
 and if the railway i-ompany. in addition to restricting the speed limit, took 
 all reasonable pr<^cautions to ballast with gravel from time to time, the 
 depressions varying from two to four inches occurring at the spotk 
 
 Lewis T. Grand Trunk Pacific Ry. Co., 19 DX.R. 606. 
 
 NeGUGEXCE CACSIXG death — LnCITATIOX TO ISJrKIES WITHIX PBOVIXCE. 
 
 The Employers' Liability Act, R-SAL 1913. c 61 was intended to be con- 
 fined in its operation to injuries occurring in the Province of Manitoba, 
 and is not available in an action against a railway company for negli- 
 gence causing death brought in Manitoba by a Manitoba administratrix in 
 respect of a fatal accident occurring on a part of the railway in Ontario: 
 nor will an action in ^lanitoba be available under the corresponding On- 
 tario statute unless the plaintiff has given the notice of injury which the 
 latter requires. [Simonson v. Can. Xorthem Ry. Co., 17 D.LlR. 516. 24 
 Man. L.R- 267: Johnson v. Can. Northern Ry.* Co.. 19 Man. L.R. 179. 
 followed; Giovinazzo v. C.P.R-, 19 O.L.R. 325* referred to.] 
 
 Lewis V. Grand Trunk Pacific R. Co.. 19 D.L.R. 606. 
 
 ACCXDEST ABISrXG "OCT OF" THE EMPLOYMEXT — ^3iIeTHOD OF DOHCG WORE. 
 
 An accident arises "out oP the workmen's emplovment where such acci- 
 dent is shewn to have been due to and resulted from a risk reasonably in- 
 cident to the employment: in construing the term "out of and in the 
 course of the employment" in the Workmen's Compensation Act. Sask. 
 Stat. 1910-1911, c. 9, s. 4, the words *'out of point to the origin or cause 
 of the accident, and the words "in the course of apply to the time, place 
 and circumstances. [Fitzgerald v. Clark, [1908] 2 K.B. 796. applied.] 
 In a railway case, where a brakeman switching cars on the "flying 
 shunt" process, is killed while performing such duty, the accident may 
 be found to have arisen "out of and in the course of the employment," 
 although, when such accident occurred, the brakeman was oa the ground 
 (contrary to the rules of his employment) instead of on the engine tender 
 step while doing such work. 
 
252 EMPLOYEES. 
 
 Kennedy v. Grand Trunk Pacific Ry. Co., 16 Can. Ry. Cas. 46, 15 D.L.R. 
 172. 
 
 Damages — Compensation — Assessment. 
 
 In estimating the compensation recoverable under s. 15 of the Work- 
 men's Compensation Act, Sask. Stat. ] 910-1911, c. 9, of such sum as is 
 found to be equivalent to tlie estimated earnings during the three ypars 
 preceding the injury in like employment, a shewing of $182 for one 
 and three-quarter months is not of itself, under the principle of the Act, 
 sufficient to base a tinding in excess of $1,800 for the three years. [Uhlen- 
 burgh V. Prince Albert Lumber Co., 9 D.L.R. 639, applied.] 
 
 Kennedy v. G.T.P. Ry. Co., 36 Can. Ry. Cas. 46, 15 D.L.R. 172. 
 
 Workmen's Compensation Act — Employee of contractor with railway 
 COMPANY — Placing of gravel at highway crossing as work "in the 
 
 WAY of the principal's TRADE OR BUSINESS." 
 
 The placing of gravel at a highway crossing is not work in the way of 
 a railway company's business within the meaning of s. 6 of the Work- 
 men's Compensation Act, c. 12, 1908; and, therefore, the railway com- 
 pany is not liable under the Act for injury to an employee of a contractor 
 engaged to do such work, even though the injury arose out of the opera- 
 tion of a train by the railway company. 
 
 Ringwood v. Kerr Bros. & G.T.P. Ry". Co., 7 Alta. L.R. 226. 
 
 Work of brakeman. 
 
 By hiring as a brakeman on a railway an employee docs not undertake to 
 assume the risk of an accident caused by the neglect of the company to 
 take all necessary and legal precautions for the protection of its em- 
 ployees, and the company is liable in damages for an accident caused by 
 such neglect. 
 
 Wentzell v. New Brunswick, etc., Ry. Co., 43 N.B.R. 475. 
 
 Course of employment — Temporary retirement. 
 
 The work of a workman begins as soon as he is at the disposal of his 
 employer, and ends when he, the em])loyee, leaves the place of work and 
 regains his complete liberty of action. An employee may temporarily sus- 
 pend his labour and quit his post to go into other parts of the building 
 connected with the enterprise, witliout losing his right of compensation 
 imder the law in case of accident. A fireman, on a locomotive in a yard, 
 is still at his work, if he leaves it for a moment, without leave from his 
 engineer, to get some drinking water, as it is customarily done at this 
 place. 
 
 Greig v. G.T.R. Co., 51 Que. S.C. 50. 
 
 Employee doing act expressly forbidden. 
 
 A brakeman while engaged in coupling railway cars shoved the draw- 
 bar with his foot and received injuries. The rules of the employer ex- 
 pressly forbade this practice and the workman was aware of it. Held, 
 that the accident did not arise out of the employment and that com- 
 pensation was not recoverable under the Workmen's Compensation Act. 
 
 Jackson v. C.P.R. Co. 12 D.L.R. 435. 
 
 C. Safety as to Place and Appliances. 
 Regulation of safety of employees — Wages of injured employees. 
 Application that railway companies remedy certain complaints dealing 
 
EMPLOYEES. 253 
 
 with (1) mad (€) mgfaHatitw off s^boaoids at the linnts of ■mieiiMli- 
 ties and rards, (2) «ad (11^ lialalithr to aceidearft and expoaan from 
 loMMBOtiTcs mnwiag teader first and luoaiiwlia^ astorm protector oa 
 lofWMiliTe, (3 1 iBstaHatioB of powr hfdlaif aad air beO riagers, 
 (4 1 prondiiq^ aa empmetr as pilot iastcad of eoodnctor, brakenaa or 
 firaaaa, vheve tke icgnlar e^giacer is nafaiiliar witli tlie road, (3* and 
 (9» providiBg anitaJUe quarters at divi^^ioaal and terauaal poiats and awrr 
 aaiple rooiB oa locMMitivvs for ea^aecrs and firenoL, lf7ii ranoTal of 
 cntaia saov ckaaia^ derices fron loraoKAivr^ ittBpectioa CS" of Tooden 
 Inid^ies aad if 101 of loeoaMitiTes Inr a «<aa|ii tf t iaspector after arrival 
 at tenaiaal^L K 12 » pavmeBt of va^es of iajarvd c^plojves duria* leeoTerr : 
 — H^ld, If that tlie request ia (li is too broad 'aad ao «>eBeraI ordn- 
 aboold be ande, aad (6>t tbat ia all indiTidoal iastaacvs where neces^ity 
 exista. the reqoest AmU be graated. i. Tbat ia ii* and CH « the reqne^ts 
 dMMiId be refosed. no eridenee being given that trains vere so operated, 
 except ia <ases of eamgencj. and nothii^ being Laoaa as to the storm pro- 
 tector. 3. That the request ia (34 as to the iastallatioa of pover head- 
 lamps should be refused, and as to air bell ringers granted. 4. That tb«- 
 nqnest in !( 4 m should be refused, as grantii^ it would rescind a previous 
 rule. i. That the Board has no jurisdietaon to deal with the requests ia 
 (di aad (l^n. 6. That the appUcatioa ia «7l should stand for further 
 informatioB. 7. That as to the reqneiit ia (91 the Board should not make 
 anr genetal regulatioa without specific informatioa. 8. That the applica- 
 tion ia (8) had been dealt with br order Xo. 11443 aad that the af^lica- 
 tioB ia (10| should be refused. 
 
 Be Brotherhood of Locomotive Ei^ineers. 11 Caa. Br. Cks. 330. 
 
 Devlin HE atti-ulxces — ^Absexce or BrmExs o?t cabs. 
 
 The plaintitiT was a motormaa in the emplor of the defendaat companv. 
 aad his action was brm^ht uader the WorloneB's Co mp e n sation Act to 
 recover damages for injuries sustained while coupling together a street 
 car and trailer. The main ground of negli g e nce charged was the absence 
 of buffers to protect the emplovees from injury in coupling. The plaiatiff 
 had a verdict at the trial which, on motion for a new trial, was affinned 
 by the Diviaonal Court and by the Court of Appeal for Chitario. The Su- 
 preme Court of Canada held that there was negligence on the part of the 
 eonpany ia not havii^ proper appliances to prevent injury, aad that a 
 aew trial had been properly refused. 22 A.B. (Out.) 7$. affirmed. The 
 appeal was dianissed with co^tSw 
 
 Toronto R. Co. v. Bond. 24 Caa. S.C.R. 71S. 
 
 Death of sdevaxt cacskd bt colusiox — Faitlt or nEiJX»w sebtatt — ^Dk- 
 
 FBCTTVE SYSTEM. 
 
 Deceased, a motormaa. met his death ia a collision between two car^ of 
 the defendant oompouiy. on the 7th of November. 19<k<. bm the writ in the 
 action was not issued until the 2ik1 of August. 1909. the action beii^ 
 brought under Lord CampbelTs Act. Tbe questions at ifi>ne were': (I) 
 Was the accidoit caused by the negUgenre of a fellow servant? On thi? 
 point the facts were that the cars lea«il^]^ Vancouver had a donUe line 
 of track as far as a place called Cedar Cotta^. after which tbere was 
 onhr a sii^le tract. On foggy n^ts there was a watchman at Cedar Cot- 
 tage to adviae conductors and motormea as to the condition of traffic. 
 The men ia charge of the colUdiag cars were killed, so it was not po6>ible 
 to ascertain whether the watchman had advised tbe conductor or motormaa 
 whethn- the line was dear. Tbe jury, on the evidence, found a defective 
 system: — ^Held, that the a^cal from the verdict based on this finding 
 
2.U EMPLOYEES. 
 
 slioiild be dismissed. Martin, J.A., expressing no opinion as to there be- 
 ing no evidence to support such a finding. (2) Lord Campbell's Act gives 
 a limitation of twelve months within which an action for damages caused 
 by the death of a relative may be brought, so that the writ here was is- 
 sued in ample time to comply with that statute. But in the defendant 
 company's Act of incorporation, a limitation of six months is set for 
 bringing actions to recover damages incurred by reason of the tramway 
 or railway or works or operations of the companj'. Per Irving, J.A., fol- 
 lowing Green v. B. C. Elec. Ry, Co. (1906), 12 B.C.R. 199, that the limi- 
 tation in the company's statute was not applicable. Per Martin, J. A.: 
 That the section was applicable and the action was tlicrefore barred. Re- 
 marks per Martin, J.' A., as to the Court of Appeal following or being 
 bound by the decisions of the late Full Court. 
 
 McDonald v. British Columbia Elec. Ry. Co., 18 W.L.R. 284, 16 B.C.R. 
 381). 
 
 Defective apparatus — Notice of defects in machinery — Provident 
 
 SOCIETY — Contract exemptinc; employer. 
 
 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 tlie sand valves, upon notice thereof given at the repair shops 
 in conformity with tlie 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 
 answer to an action imder Art. 1056 C.C, Que. [The Queen v. Grenier, 30 
 Can. S.C.R. 42, followed. Girouard, J., dissenting on the ground that tlie 
 negligence found by the jury was negligence of both the company and its 
 employees. Miller v. G.T.R., 21 Que. S.C. 346, and G.T.R. v. Miller, 12 
 Que. K.B. 1, reversed.] 
 
 Grand Trunk Ry v. Miller, 34 Can. S.C.R. 45, 3 Can. Ry. Cas. 147. 
 
 Dt'TY OF EMPLOYER — PROPER SYSTEM— COMMON EMPLOY JIEXT. 
 
 An employer is under an obligation to provide safe and proper places 
 in which his employees can do their work and cannot relieve himself of 
 such obligation by delegating the dutv to another. It follows that if an 
 emj»loyce is injured through failure of his employer to fulfil such obliga- 
 tion the latter cannot in an action against him for damages, invoke the 
 doctrine of common employment. Judgment of Supreme Court of Nova 
 Scotia, affirmed. 
 
 Ainslie Mining & Ry. Co. v. McDougall, 42 Can. S.C.R. 420. 
 
 [Relied on in Fralick v. Grand Trunk Ry. Co.. 43 Can. S.C.R. 496. fol- 
 lowed in Hall v. Can. Pac. Ry. Co., 18 Can'. Ry. Cas. 163, 20 D.L.R. 606.] 
 
 Injury to brakeman — Defective apparatus. 
 
 The plaintiff, a brakeman on duty in tlie defendants' employ, was in- 
 jured in an attempt to uncouple a mimVier of cars from an engine, the 
 train moving slowly backward. There was evidence that the lever on the 
 engine tender failed to lift the pin: that there was no lever on the end 
 of the car next the tender, and that tlie plaintiff, in order to uncouple, had 
 to reach in between the ends of the cars in an effort to pull out the coup- 
 ling pin. In so doing he either tripped or was knocked down and had an 
 arm cut off by the wheels of the tender: — Held, that, in view of the re- 
 quirement in subs, (c) of s. 264 of the Railway Act, 1906, that all cars 
 
EMPLOYEES. 255 
 
 iihonld be equipped vith apparatus which should prevent the neeessitv of 
 brakemen going in between the ends of the ears to uncouple, the plaintiff 
 had made out a prima faeie ca»e of n<egligenee and the verdict of the jury 
 in his favour should not be interfered with. 
 Scott T. Can. Pae. Ry. Co., 19 Man. L.R. 165. 
 
 ISJVKT TO LABOCBEB ^ATTEMPT TO JVMP OX VOVIX6 TBAIX — COSCEAIBD 
 
 DAXGEX. 
 
 The plaintiff was a labourer in the employment of contractors for the 
 grading of a portion of a railway being constructed by the defendants, and 
 was in charge of a machine which was being carried by the defendants on 
 a flat car forming part of a train used in grading operations. At a sta- 
 tion the plaintiff got down from the car and stood upon the platform, the 
 train standing still. When it started again, be attempted to jump on. the 
 train being in motion, but came in contact with a baggage truck on the 
 platform, and was injured. He was not invited to alight, nor to jump on 
 again: — Held, in an action to recover damages for tlie plaintiff's injuries, 
 that the rule of evidence res ipsa loquitur did not apply; the plaintiff 
 was boimd to give reasonable evidence of the nature and extent of the duty 
 owed to him by the defendants and the facts which constituted the breach 
 of su^ duty; the position of the plaintiff was that of a mere licensee: the 
 duty of the owner of the premises toward him was confined to two things, 
 that he should not be exposed to a trap or other concealed danger, and 
 that the owner should not be guilty of acts of acti%-e negligmce; in other 
 respects the licensee must at his own risk use the premises as he lind* 
 them; and in this case there was no trap — the accident happening in broad 
 daylight — and no active negligence; and a nonsuit was affirmed. 
 
 Perdue v. Can. Pae. By. Co, 1 O.W.X. 665 (C.A.). 
 
 XbGLICEXCE of rHLlJOW SEBVAXT — ^DeFECTITE STSreai COitMOX-LAW LIA- 
 
 BII.ITT. 
 
 The plaintiff^s husband was engine driver on a train of the defendants 
 which, shortly after leaving Brantford station, collided with a pilot 
 engine which had gone out from Brantford yard a short time before: be 
 was killed in the collision. By the defendants' rules, the pilot engine was 
 under the direction of M.. the yard foreman at Brantford. and it was ad- 
 mittedly owing to his neglect that the accident ocurred. The jury found 
 that the system in use on the defendants' railway in respect to the pilot 
 «igine was not a reasonably safe and adequate one. but was defective and 
 exposed their employees to unnecessary danger, and that the pilot engine, 
 when away from the Brantford yard, should have been under the control 
 of the train despatcher at London, and not under that of 31.: that the 
 adoption and use of this defective system was due to the negligence of the 
 defendants' superintendent, G., and their yardmaster. M.. and that the 
 accident would not have happened but for the defect in the system: that 
 the defendants' railway was managed and the rules for its operation made 
 by competent officials, and that the deceased did not voluntarily under- 
 take the risk. The jury assessed the damages at $SS50 at common law. 
 and at $3,300 tuder the Workmen's Compensation Act: — Held, that judg- 
 ment was properly entered for the plaintiff for ^^300, there being evidence 
 to justify a verdict for that amount under the Workmen's Compensation 
 Act; and no evidence to sustain a verdict based on common-law negligence 
 or a defective system. Per Maclaren. J.A.. that, it being admitted that 
 the accident could not have occurred but for the negligence of IL, the jury 
 were not justified, on the evidence, or without evidence in attributing it 
 to a more remote cause. If M. had obeyed the rule, the accident could 
 
256 EMPLOYEES. 
 
 not have happened. The jury were not entitled to speculate and say that 
 it was negligence in the defendants not to have adopted at Brantford the 
 practice of handling the pilot engine in use at London. The verdict as to 
 defective system was directly contrary to the only competent evidence be- 
 fore them on the point, and their findings could not stand. 
 Fralick v. Grand Trunk Ry. Co., 1 O.W.N. 309. 
 
 Death of brakeman — Defective equipmext — ^Lord Cami'hell's Act — 
 Jjoss of prospective benefit from continuance of life. 
 The plaintiff's claim was for damages for the death of his son, an infant, 
 alleged to have been occasioned by the negligence of defendants, on one of 
 whose freight trains he was working as a brakeman at the time of the ac- 
 cident which resulted in his death. The alleged negligence consisted of the 
 absence of air brakes and bell signal cord from the equipment of the train. 
 The statement of claim was demurred to on various grounds and the fol- 
 lowing points were decided: (1) No person can sue under the Workmen's 
 Compensation for Injuries Act, R.S.M. 1902, c. 187, for damages for the 
 death of a deceased relative, who could not sue under c. 31, R.S.M. 1902, 
 and the statement of claim must shew, either that the plaintiff is the ex- 
 ecutor or administrator of the deceased, or that there is no executor or 
 administrator, or, if there be one, that no action has been commenced with- 
 in six months after the death of the deceased by or in the name of the 
 executor or administrator; and it was not sufficient for plaintiff to state 
 simply that he was the father and sole heir at law of the deceased. [Lamp- 
 man V. Gainsborough (1888), 17 O.R. 191, and Mummery v. G.T.R. (1900), 
 1 O.L.R. 622, followed.] (2) It is necessary that the statement of claim 
 should shew that the plaintiff had a reasonable prospect of future pecuni- 
 ary benefit from the continuance of the life of the deceased. [Davidson 
 v. Stuart, 14 Man. L.R. 74, followed.] When the failure to prove a fact 
 will cause the action to fail, that fact is a material one upon which the 
 plaintiff relies, and, under Rule 306 of the King's Bench Act, R.S.M. 1902, 
 c. 40, should be set out in the statement of claim. (3) Under the circum- 
 stances appearing in this case it was not necessarj' that the action should 
 be shewn to be brouglit for the lienefit of all persons entitled to claim 
 damages. (4) Although the Railway Act in force at the time of the ac- 
 cident required only passenger trains to be equipped with bell signal cords 
 and air brakes, it is still a question of evidence whether the absence of 
 those appliances on freight trains is negligence for the purposes of such 
 an action, that is, whether they may be reasonably required or could be 
 reasonably furnished for the protection of the train hands, and the state- 
 ment of claim was not demurrable because it relied on tliat absence as 
 constituting negligence. (.l) Tlie statement of claim should alle.!:?c' tliat 
 the defendants were aware of tiie defects relied on as constituting negli- 
 gence or should iiave known of tliem. (6) It is not necess:iry to allege 
 that the deceased was ignorant of tlie alleged defects. [Smith v. Baker, 
 [1891] A.C. 325, and Williams v. Birmingham, [1899] 2 Q.B. 338, fol- 
 lowed.] (7) The requirements of s. 9 of the Workmen's Compensation for 
 Injuries Act are directory rather than imperative and tlie omission to give 
 the name and description of the person in defendant's service by whose 
 negligence the accident occurred is a matter to be dealt with by an applica- 
 tion for particulars and not by demurrer. (8) The refusal or neglect of 
 defendants to provide medical or surgical attendance for the injured em- 
 ployee gives no cause of action. Tlierefore the allegations in the statement 
 of claim that the deceased came to his death as the result of the injuries 
 received and of the alleged neglect to provide medical or surgical care are 
 demurrable. (9) Plaintiff in such an action has no right to claim for 
 
EMPLOYEES. 257 
 
 fiuen] erpwMirw. (10) Tkat the tine allovcd bfT the sUtvte for the «»- 
 MoeeneBt <d Che aetam kad expired vkcB tlK demturer was argmed was 
 no objeetioM to the aUovanee of aaoeadneats to the statement of claim 
 which did aot seek to ntroduee any new parties or different causes of ac- 
 tim. (11) Under Rule 453 <rf theEJi^s BeaA Act, it is onlj in respect. 
 of aoaw qnestiai of law which is fnndamental or goes to the root of the 
 cause or defenee set-ap that there should be a separate argument befwe 
 the triaL As to all other matters in the pleading which mar be objec- 
 tionable, an application in Chambers under Rule 3:26, to strike them oat 
 is the proper remedr. 
 
 Makarskr r. Can.'Pac. Bv. Co.. 15 Man. LJL 53. 
 
 [Referred to in Gardiner r. Bicklej, 15 Man. L.R. 356.] 
 
 DaXGEBOCS AITUA3CCES. 
 
 An emplover is not obliged to provide the most modem appliances or 
 tools, bat if obsolete, inferior and dangerous tools or appliances are kept 
 in use, it constitutes an element of negligence on his part obliging him 
 to o bs e iie greater vigilance in order to avoid liatHlity for injuries. In 
 tlw pniaen t eaae!, as the vigilance of the company was not such as was 
 ■eeeasaiy with the obsolete couplers they used, they were held liable for 
 iajorica. [Jndgvmit appealed from (25 Que. S.C. S2>, afllrmed. Hall, J., 
 dissenting.] 
 
 Qodiee k. Lake St. John Ry. Co. w. Lemay, 14 Que. K^. 35. 
 
 WaTSB TAXE — ColfPSESSES ADt — ^ApPUASCKS. 
 
 Whoi a water tank is used, from which water is distributed throagh 
 pipes by means of compressed air pressure, and its lid has to be removed 
 fraos time to time for refilling, the failure to provide it with a valve or 
 stopeod^ to relieve the pre^ure. is negligence which nwkes the owner 
 liable for accidents: and the finding of a jury that the death of a winrk- 
 man, employed to remove the lid, against whom it was thrown by an 
 e^losion, was partbr due to such negligence, is proper and will not be 
 disturbed. 
 
 Stevenson v. Grand Trunk Ry. Co., 32 Que. S.C. 423. 
 
 Death or exgixeeb — Ixscfticiexct ok impbcvex haxsuttg or bkakes. 
 
 (1) A railway company is liable for the death of an engine driver in 
 a collisioa shewn to have been caused by the insufficiency of the brakes on 
 the train, or by their not having been properly applied by the other serv- 
 anta. (2) The claim of the widow and children of the deceased, under 
 Art. 156, C.C. (Que.), cannot be affected, nor its amount redueed, by an 
 insurance obtained by the deceased and paid after his death, piiller t. 
 Grand Trunk Ry. Col, 15 Que. K.B. 118. followed.] 
 
 Jcdinson V. Can. Northern Quebec Ry. Co., 39 Que, S.C. 263. 
 
 l3EJi:^T TO SEKVAXT XbCUGESCE — DntCTS IX MACHLXEBT COXTKIBrTOBT 
 
 XBGUGEXCE. 
 
 Short V. Can. Pae. Ry. Co., 3 W.L-R. 326 (Terr.K 
 
 XbGUGEXCE ISJt-KT TO WOEKMAX ^USSKH-TCL USE OF TOOL — UxStTTA- 
 
 BILrTT OP TOOLS SCPPXIED FOB WOSRUAN'S USE — COXTOBnOBY XEGU- 
 GEXCE. 
 
 Great Nwthem Ry. Co. v. Turcot, 4 EXJJ. 361 (Que.). 
 
 DfrBAIT.VKXT — ItaEFECTIVE BOADBXD — ^VlS MAJOB. 
 
 In an action by a widow for the death of her husband, the engine driver 
 Can. Ry. Li. Dig.— 17. 
 
258 EMPLOYEES. 
 
 of a train which was derailed and wrecked, it was: — Held, that in con- 
 structing a roadlied, without sufficient examination, upon treaclierous 
 soil and failing to maintain it in a safe and proper condition, a railway 
 company is prima facie guilty of negligence which casts upon them the 
 onus of shewing that the accident was due to some undiscoverable cause. 
 This onus is not discharged by the evidence adduced from which inferences 
 merely could be drawn and which failed to negative the possibility of the 
 accident having been occasioned by other causes which might have been 
 foreseen and guarded against, and consequently, the company is liable in 
 damages. Judgment appealed from affirmed, following Great Western Ry. 
 Co. V. Braid (1 Moo. P.C. (X.S.) 101). 
 
 Quebec & Lake St. John Ry. Co. v. Julien, etc., 6 Can. Rj'. Cas. 54, 37 
 Can. S.C.R. 632. 
 
 [Referred to in Isbister v. Dominion Fish Co, 19 Man. L.R. 449.] 
 
 Dangerous condition of premises — Accumulation of snow and ice. 
 
 Action against a railway company for alleged negligence. Tlie deceased 
 was killed by being run over while shunting cars. The evidence shewed 
 that the space between two sets of tracks in the defemlants' yard was 
 dangerous by reason of an accumulation of snow and ice thereon, but there 
 was no evidence that the tracks themselves were not in good condition, 
 and it was merely a matter of conjecture whether, at the time of the ac- 
 cident, the deceased was on the tracks or on the space between them: — 
 Held, that under the circumstances the accident was not due to the de- 
 fendants' negligence. Judgment of the Divisional Court, 1 Can. Ry. Cas. 
 444, reversed. 
 
 Armstrong v. Canada Atlantic Ry. Co., 2 Can. Ry. Cas. 339, 4 O.L.R. 
 560. 
 
 [Considered in Lever v. McArthur, 9 B.C.R. 418; distinguished in Bell 
 Bros. V. Hudson's Bay Ins. Co., 2 S.L.R. 361; followed in O'Connor v. 
 Hamilton, 8 O.L.R. 391, 3 O.W.R. 918; Smith v. Mcintosh. 13 O.L.R. 
 118; referred to in Giovinazzo v. Can. Pac. Ry. Co.. 19 O.L.R. 325; Iveson 
 V. Winnipeg, 16 Man. L.R. 364; O'Connor v.' Hamilton, 10 O.L.R. 529, 6 
 O.W^R. 227; Plouffe v. Can. Iron Furnace Co., 10 O.L.R. 37.] 
 
 Negligence — Duty to pack frogs. 
 
 Contributory negligence may be a defence to an action for damages, 
 suffered in consequence of a breach of a statutory duty. [Groves v. Wim- 
 borne, [1898] 2 Q.B. 419, and Beven on Negligence, pp. 633, 634, 643, and 
 the cases there cited, followed.] In an action for damages for injuries suf- 
 fered by the plaintiff, a brakeman, in consequence of putting his foot in 
 a frog which it was alleged had not been properly packed as required by 
 8. 288 of the Railway Act, 1906, the trial Judge charged the jury that if 
 the frog was unpacked, the company would be liable, whether the plaintiff 
 was guilty of contributory negligence or not: — Held, that this was a mis- 
 direction, and that notwithstanding the question of contributory negligence 
 was submitted to the jury and answered in plaintiff's favour, there should 
 be a new trial. [Bray v. Ford, [1896] A.C., at p. 49, and Lucas v. Moore 
 (1878), 3 A.R. (Ont.) at p. 614, followed.] 
 
 Street v. Can. Pac. Ry. Co., 10 Can. Ry. Cas. 212, 18 Man. L.R. 334. 
 
 Brakeman injured whilst uncoupling cars — Defective apparatus. 
 
 The plaintiff, a brakeman on duty in the defendants' employ was injured 
 in an attempt to uncouple a number of cars from an engine, the train being 
 in motion. There was evidence that the lever on the engine tender failed 
 to work properly, that there was no lever on the end of the car next the 
 
EMPLOYEES. 259 
 
 teader, aad Hut fke phial iff, ia order to mmtamplte, had. to nsfck ia he- 
 tweea tlie cads of the cais ia aa effort to paO oat tke eoapUap pia. Ia 
 so dn^ ke citker UiH i wI or va» fciwfcrd dova aad had aa ara cat off 
 bjr the whtti* of tkt teadcr: — Hdd^ tint ia riev of the imuiiitat of 
 par. fe) mi sriba. 1 of s. 2St of the Raitwaj Aft. 1906, that all cars 
 yaiald he cfaipped with appantas which dull i»«T«at the aee^sitT of 
 iMr« i.« MM» ^Diap ia be t w een the cads of the cars to aaeoople, the plaiatiff 
 had ande oat a piiaa iacie <aae of at^jBg eace, aad that the aoasait ea- 
 tovd at tlw trial ihoold he set aside, aad a aew trial granted. Costs of 
 the fmaitr trial aad of the appeal to he ca$ts to the plaintiff ia aa j event 
 of the eaase. The trial Jo^e had Bade aa order that, if a aew trial 
 should be graated bj the Coort of JkppeaL thea ia the event of either of 
 the plffiatif f nitaesses heimj^ oat of the coaatnr, he shoald hare the 
 light to read the crideace saA witaess had girea at the trial oa the ca.'^e 
 cnauifg ap for trial agaia, aad the Coart ordoed this pravisiaa to he em- 
 hodied ia the jn dg— a t. 
 
 Scott T. Caa. Par. Rr. Oou 10 Cta. Rt. Cks. S2, 19 Maa. UL 29l 
 
 DaSCXBOCS WAT — POSITiOX OF FEBfl. FXSM ISTWmESCtL 
 
 Jka actioa to lecorcr daan^K ittr the death of plaintiff's Cc^poadeat'sl 
 son, aa e^plovce of the appdlaat eoBpaajr, beeaiwe of its alleged ac^- 
 geaecL The det e aaed was ea^agcd at the tiaie of the acvideat ia whediia^r 
 eoaatefa ia a whedbarrow froot the mixer aloag aad orer a raBwaj 
 aad platforB. The bodr mas fooad on the grooad below with the head to 
 the aoitheajt aad the feet to the soathwcist. 12 or 15 feet to the aorther>t 
 of the said raawar aad cast of its centre; while the wheeAarrow i$ de- 
 serfted as beiag fooad ~right ia aader the aarrow mawaj r^ht against the 
 w«st abatBeat, ccnMSt and all ia the efflrner.~ There was no eye witne^ 
 of the accident. The jnrr foand that the death was owing to the negji- 
 gmct of tbe coapanj- by aHowia^ laen to ose a ranwaT onlr fO iache;* 
 wide at a hei^t of 29 feet fiwa the groand: that the waj was defeetiTe 
 lor the OTe leasoa aad that the deceased coold aot br the exncise of 
 naiwaabh care, hare avwded tte iajary: — Held il), that the eoavaaj 
 was gnilty of aegU^ence ia hari^ a raawajr wUdk was defeetire becaase 
 of hdaig aaaeeenarihr aanvw. {2| That the deceased fdl fnaa the aar- 
 low aorth raawaj was the onhr fair aad le gitim ate iafcxenee. 
 
 Cka. Fac. Rj. Co. r. MeKcand. 13 Caa. Rj. Ois. 472. 
 
 [See 18 O.WJL 309. 1« O.W.R. «<M.] 
 
 T-IAKfUTY or BAILWAT COMTAXT TO IK&KEafAX STXSVnrE. XEAK TVACK. 
 
 A railwaT coaipaaT which has eoaiplied with aa order of thf Board, aa- 
 der par. (g) of & 30. of the Railwar Act. 19CNS. reqairi^ its water staad 
 ^pes to be placed 7 feet < inches irooi the centre of its tracks, is relieved 
 fiM^ lialnlitT to a brakemaa iw injurie!<c ^usiaiaed while ridi^ on a 
 ladder on the side of a car. bjr coniii^ into cuatact with a standpipe 
 located as leqniied br sath order. [G.TJL t. McKar. 34 Can. &CJK. SI. 
 3 Can. Rr. Cas. 52. f<dlon«d.] 
 
 Clark T. Clan. Pae. Rr. Co., 14 Can. Ry. Ca*. 51, i DXJEL 331. 
 
 [Referred to in Kizer t. Kent Lombo-, 5 D.L.R. 317.] 
 
 i MfaUMLa CAM BQCmCEXT. 
 
 The faet that a box freight ear was aot ctquipped with ladders at the 
 ends as reqiaired br snbs. 5 of &. 264 of the Railwaj Act, 1906. wiD not 
 render a railwaj companr liable for ia juries snstaiaed br a serraat while 
 
260 EMPLOYEES. 
 
 attempting to couple cars, where the absence of such ladder was not the 
 contributing cause of such injury. 
 
 Stone V, Can. Pac. Rj. Co. (Ont.), 14 Can. Ry. Cas. 61, 4 D.L.R. 789. 
 
 [Reversed in 13 D.L.R. 93.] 
 
 Absence of ladder from end of foreign rah^way car— Statutory con- 
 dition. 
 
 A verdict for the defendant should be directed where the evidence shews 
 that the plaintiflF, a brakeman in the former's employ, received an injury 
 as the result of his own carelessness while attempting to couple cars, and 
 not as the result of the absence of a ladder from the end of a car that, 
 in the interchange of traffic, under s. 317 of the Railway Act, 1906, was 
 received by the defendant from and was owned by a railway company 
 operating in the United States, which was not shewn to be under any 
 obligation, statutory or otherwise, to maintain ladders on the ends as well 
 as the sides of its Jjox freight cars. 
 
 Stone v. Can. Pac. Ry. Co. (Ont.), 14 Can. Ry. Cas. 61, 4 D.L.R. 789. 
 
 [Reversed in 13 D.l!r. 93.] 
 
 Operation of snowplougii — Defective system. 
 
 In order to entitle the plaintiff to recover from a railway company for 
 negligently causing the death of a locomotive fireman as tlie result of a 
 defective system of operating a snowplougii, which was being propelled 
 by the locomotive at the time of the accident, by placing a signalman on 
 the plough who had not passed the necessary eye and ear test, and an 
 examination as to train rules, it must appear that such negligence was 
 the proximate cause of his death. 
 
 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.] 
 
 Dl'TY TO INSPECT ^LATENT DEFECTS ICE IN CAR COUPLER. 
 
 The duty of a railway company to inspect cars for defects was dis- 
 charged, so as to absolve it from liability for an injury to a brakeman 
 through the failure of an automatic car coupler of the best known type 
 to work properly by reason of an accumulation of ice inside it, where the 
 car, on its arrival at a station, was given the usual inspection, and no 
 practicable system of inspection would have disclosed the presence of the 
 ice. 
 
 Phalen v. Grand Trunk Pacific Ry. Co., 16 Can. Ry. Cas. 152, 12 D.L.R. 
 347, 23 Man. L.R. 435. 
 
 [Affirmed in 18 Can. Ry. Cas. 233.] 
 
 Railway track — Accumulation of ice — Xegligence. 
 
 It is the duty of the employer to provide safe premises for his servants 
 to work; allowing ice and snow to acciunulate along the side of a railway 
 track so as to be a trap for a workman walking along the track in the 
 ])erformance of his duty is negligence and if the cause of an accident the 
 company is liable. The fact tliat the accident happened on a highway 
 is no defence, the duty being founded not on ownership but on possession. 
 
 :McKntoe v. Grand Trunk I'acilic Ry. Co., 23 Can. Ry. Cas. 269, 11 
 Sask. L.R. 145, 40 D.L.R. 322. 
 
 Negligence — Dangerous train yard — Death — Remedy. 
 
 Insufficient space between tracks in a train yard, where snow and ice 
 had been permitted to accumulate, the yard being inadequately lighted, 
 is negligence which will render a nuister liable for the death of a servant 
 
EMPLOYEES. 261 
 
 who has been nm OT«r hy an engine while at work thereat; the dajnages 
 therefore mar be enforeed hx an action at eonunon law. under Lord 
 Campbell's Art. and need not be restrieted under the Jjuployers Lia- 
 bilitr Act. 
 
 Armstrong: r. Can. Xorthem Rv. Cb., 35 DJLX. 568, 3 W.WJL 219. 
 
 DCTT AS TO SAFtTT — DECATED POLE — IXJCBT TO ITSEMAX LlABUaXT OF 
 
 MASTEB. 
 
 The decared condition of a pole, undiscovered because of the master's 
 negligent inspection, will render the master liable for the death of a 
 lineman caused by his jumping from the pole as it appeared to be 
 about to faU. 
 
 Christie t. London Elee. Co., 23 D.L.B. 476, 33 OXIL 3»5u 
 
 Switch staxd too seak sails — ^Lxjijit to switchmax. 
 
 A railway company is not liable to a switchman for injuries sostained 
 In consequence of their placing a switch stand too near the rails, in the 
 absence of evidence ihat the placing of the switch in that manner was not 
 aerording to proper railway prartice. [Mallory t. Winnipeg Joint Term- 
 inals, 22 D.L..R. 448, 25 Man. L. R. 456, 18 Can. Ry. Cas. 277 (anno- 
 tated!, affirmed in 29 DX.IL 20, 53 Can. S.C.R 323, foUowed.] 
 
 Nelson t. Can. Pac. Ry. Co., 35 DX.R. 318. 
 
 [Reversed in 39 D.L.R. 760.] 
 
 Dakaged cab — DEFErrrvK laddex — XoncE — Statttobt ncir — Bbeach of 
 Rules — Pboximate cause. 
 Smith V. Grand Trunk Ry. Co., 20 DXJL 96L 
 
 PBOPEK STSTCM AXD I1.ACE TO WOKK Scra:AiajC MATXZIALS — CoiaiO!c-i-&w 
 
 LIABIUTT. 
 
 The master's primary duty to the onployee is to provide in the 
 first instance fit and proper places for the workmen to work in. and 
 a fit and proper system and suitable materials under and with which 
 to work, but he is not bound to see that the place is safe from day to 
 day or from hour to hour; so if changes have to be made incidental 
 to the work and to tbe place the employee is called upon to work in. and 
 if these are made under the dirertion of persons competent to carry for- 
 ward the work and under a ^stem and with resources which would enable 
 them to carry it out with due r^ard to the safety of themselves and 
 their fellow servants, the master is not at common law liable for the 
 failure of such persons to exercise due care, skill and diligence in its 
 prosecution unless the n^ligmt performance amounts to a breach of a 
 statutory duty imposed on the master or unless he bad after artnal or 
 implied notice of tbe mistakes of the persons so entrusted failed to 
 correct the same. [Ainslie t. McDougall. 42 Can. S.C.R. 420. applied: 
 Fakkema v. Brooks. 44 Can. S.C.R. 412, distinguished; Wilson v. Merry, 
 L.R. 1 H.L. I Sc. I 326. referred to.] 
 
 Hall V. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 163. 20 D.L.R. 666. 
 
 DtTT TO IXSFBCT — ^^'TXEVITABLE ACCIDEXT" — LaTEXT DEFECTS. 
 
 A car attached to a fast freight train arrived at a stati<» on tbe 
 railway, in Saskatchewan, during a cold night in the winter; it was 
 equipped with an approved coupling device, as required by s. 264 
 (c) of the Railway Act. 1906. and. on the arrival of the train, it had 
 been injected according to the usual practice and no defect was then 
 
262 EMPLOYEES. 
 
 found. \Ylien the train was being moved for the purpose of cutting out 
 the car, the uncoupling mechanism failed to work and, in conse(|uence. 
 the plaintiff, an employee, sustained injuries. Subsequently the coupler 
 was taken apart and it was then discovered that the locking-block was 
 jammed with ice (not visible from the exterior) which had formed inside 
 the chamber and prevented its release by the uncoupling device used to 
 disconnect the car before the train was moved. In an action for dam- 
 ages, instituted in the Province of Manitoba, the jury found that the 
 company had been negligent "through lack of proper inspection," and 
 judgment was entered on their verdict. An appeal from the jiulg- 
 ment of tlie Court of Appeal for Manitoba setting aside the verdict 
 and entering jiulgment for the defendants was dismissed on the ground 
 that the obligation resting upon tlie company, both under the statute 
 and at common law, was discharged l)y the customary inspection of the 
 car which had been made according to what was shewn to be good 
 railway practice, and there was no further duty imposed in regard to 
 imusual conditions not perceivable by the ordinary methods of inspection. 
 fPhalen v. Grand Trunk Pacific Ry. Co., 23 :Man'. L.K. 435. 10 Can. Pvy. 
 Cas. l.'')2, affirmed.] 
 
 Phelan v. Grand Trunk Pacific Ry. Co., 18 Can. Ry. Cas. 233, 51 Can. 
 S.C.R. 113, 23 D.L.R. 90. 
 
 [See Stone v. Can. Pac. Ry. Co., 15 Can. Ry. Cas. 408, 14 Can. Ry. 
 Cas. 61; Can. Pac. Ry. Co. v. Frechette, 18 Can. Ry. Cas. 251; distin- 
 guished in Nelson v. Can. Pac. Ry. Co., 39 D.L.R. 7(50. 24 Can. Ry. Cas. 
 308.] 
 
 Bo.\RD — Order not appocabt.k — Switch stand — Locatiox — Xegligexce 
 — Good railway practice. 
 
 The fact that an order of the Board does not govern the location of 
 switch stands of a certain height, constructed according to good rail- 
 way practice, does not justify a railway company placing such a stand 
 so close to passing cars that it is dangerous to brakcmen. 
 
 Nelson v. Can. Pac. Ry. Co., 24 Can. Rv. Cas. 308. 55 Can. S.C.R. 62G, 39 
 D.L.R. 760. 
 
 Shunting cars — Actionable negi.ic.exck — Pkkcaitioxary duties — "De- 
 fective SYSTEM," when NEGATIVED-^WorKMEX'S COMPENSATION 
 
 Common law. 
 Kreuszynicki v. Can. Pac. Ry. Co., 16 D.L.R. 879. 
 
 Duty of employer — Obvious dangers. 
 
 An employer is not entitled to expose his servants unnecessarily to 
 obvious dangers, which they can escape only by constant vigilance or 
 unfailing alertness. A member of a railway company's switching crew 
 was knocked from a ladder on a side of a car by a switch stand and 
 injured by a following car. The jury found the railway company 
 negligent in placing the switch stand too near the rails, and found 
 that there was no contributory negligence. On appeal it was held 
 (Lamont, J., dissenting) that there was no evidence showing, or from 
 which the inference could fairly be drawn, that the position of the 
 switch stand was contrary to any order of the Board, or was not accord- 
 ing to good railway practice, and furthermore, that the accident was 
 due to plaintifTs own negligence. 
 
 Nelson v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 308, 55 Can. S.C.R. 626, 
 39 D.L.R. 760. 
 
EMPLOYEES. 263 
 
 AmiASCES — Keasoxablt fit fob the wo«k — Defect — ^Fixdixc of jcht 
 — ^Xew t«ial 
 
 A milirsT companr is not obliged to have the best appliances for the 
 purpo^ of discharging freight if the appliances used are reasonably 
 fit lor the par|i<»Hi*. If the jury give no finding from whidi it ean 
 be inferred what the defect was which led to the accident, a new trial 
 will be ordered. 
 
 Wamboldt T. Halifax t South Western Ky. Co.. 40 D.L.R. 517. 
 
 D. Rignaly awH WamillgS> 
 IXJTBT TO SWTTCHMAX — FaTUTBE TO WABX. 
 
 At the trial before a jury of an action by a switchman to recover 
 damages against a railway company for injuries alleged to hare been 
 caused to him while engaged in the execution of his duty under the - 
 orders of his foreman through negligence in the operation of a train 
 by other servants of the company and because tliere was not su£Bcient 
 room between the diflTerent tra^s in the railway yard to enable the 
 plaintiff to carry on his w<»i; safeh*. tbe defences of contributory neg- 
 ligence and volenti noo fit injuria are properly for the jury. and. when 
 there was some evidence that the bell had not been rung or the whistle 
 sounded on the train which stru<^ tbe plaintiff, and to shew that the 
 '^layout*' oi the yard was defective, a verdict entered for the defendants 
 by the direction of the trial Judge should be set aside and a new trial 
 granted. [Toronto Ry. Co. v. King. [1908] A.C. 260; and Higley v. 
 Winnip^ (191CM. 20 ilan. UL 2i followed.] 
 
 Wood V. Can. Pac. Ry. Co.. 20 Man. US. 92; affirmed in C.P.R. t. Wood, 
 45 Can- S.C.R- 7, 47 Can. S.CJEL 403. 
 
 Xecugexce cacsixg ikath — ^Tbatx movtxg B-%cirwAKi»s — Abskxce of 
 
 UGHTS to WAKX. 
 
 A conductor in defendants' employ, whfle engaged in the performance 
 of the duty for which he was engaged at the Windsor Station of the 
 C. P. R. in Montreal, was killed by & train which was being moved 
 backwards in the station yard. There was no light on the rear end of 
 the last car of the train, nor was there any pers<m stationed there to 
 give warning of the movemrat of the train: — Held, that by omitting 
 to have a light on the rear end of the train the railway company failed 
 IB its duty, and this constituted prima facie evidence of negligence. 
 
 Can. Pac. Ry. Co. v. Boisseau. 2 Can. Ry. Cas. 335, 32 Can. S-C.R. 
 424. 
 
 [Applied Jess v. Quebec t Levis Ferry Co.. 25 Que. S.C. 241: distin- 
 ipdslied in Can. Pac. Ry. Co. t. Dionne' 18 Que. K.B. 3S9: followed in 
 L«m<»d V. Grand Trunk Ry. Cto., 16 OX.R. 365, 7 Can. Ry. Cas. 40L] 
 
 Fajutbe to give sicxals — Death of tback fokemax — ^Xbgugexce or 
 
 CBEW or EXGIXE. 
 
 The plaintiff's husband, while in the actual discharge of his duty as 
 section foreman on the defendants' railway examining the track, was 
 struck by a yard engine running backwards. Xo lookout was on tbe 
 tail board or rear of the engine and no signal of any kind was given 
 to warn the deceased of the approach of the engine: — ^Held, that there 
 was ample evidmce to support the findings of the jury that the deceased 
 cuae to his death in eoBsequmce of the n^ligence of the engine crew 
 im Bather Uowii^ the vhlstle, ringing the bell b4»' keeping a proper 
 lookout, and that the deceased could not, by the exercise ol leasflBafafe 
 
264 EMPLOYEES. 
 
 care under the circumstances, have avoided tlie accident, and that the 
 appeal from the verdict in favour of the plaintiff should be dismissed. 
 Altliough the deceased, if he had looked round, would have seen the ap- 
 proaching engine and stepped out of the way, yet he was engaged at 
 the time in the discharge of a duty of an absorbing character which 
 would naturally take his whole attention and, under the circumstances, 
 a jury might properly infer that tliere was no absence of reasonable 
 care on the part of tbe deceased. Moreover, even if the deceased had 
 been guilty of negligence, the defendants would still be liable if the 
 engine crew could, by the exercise of reasonal)le care, have avoided 
 the accident. [Coyle v. Great Xorthern Ry. Co. (1887), L.R. 20 Ir. 
 409; The Bernina (1887 ) , 12 P.D. 89; Kelly v. Union Ry. & T, Co. 
 (1888), 8 S.W.R. 20; Canada Southern Ry. Co. v. Jackson (1890), 17 
 Can. S.C.R. 316; London & Western Trusts Co. v. Lake Erie & Detroit 
 River Ry. Co. (1906), 12 O.L.R. 28, 7 O.W.R. 7.11, 5 Can. Ry. Cas. 364, 
 followed.] The omission of a common-law duty is actionable negligence 
 equally with the omission of a statutory' duty, and the common law re- 
 quires the defendants' servants, when running through the yard, to take 
 the obvious precaution of watching for workmen lawfully on the track 
 and giving them timely warning. [Canada Atlantic Ry. Co. v. Henderson 
 (1899), 29 Can. S.C.R. 632.] :— Held, also, that the jury would have 
 been justified if thej- had drawn inferences unfavourable to the defence 
 from the fact that neither the engineer nor the fireman who were in 
 charge of the engine was called to give evidence for the defence: [Green 
 V. Toronto Ry. Co. (1895), 26 O.R. 326.] Tlie accident occurred within 
 twenty feet of a public highway crossing, but. Quaere, whether s. 224 
 of the Railway Act, 1903, requiring that the whistle should be sounded 
 when approaching a highway crossing and that the bell should be con- 
 tinuously rung until the highway is crossed, can be invoked on behalf 
 of any persons except those using the highway crossing. 
 
 Wallman v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 229, 16 Man. L.R. 82. 
 
 [Distinguished in Tsbister v. Dominion Fish Co., 19 Man. L.R. 443;. 
 doubted in Lamond v. Grand Trunk Ry. Co., 16 O.L.R. 365.] 
 
 Signals and warnings — Breach of statutory duty — Cosimon em- 
 ployment — Liability Act — Fatal Injuries Act. 
 S. 251 of the Railway Act of Nova Scotia provides that when a train 
 is moving reversely in a city, town or village the company shall station 
 a person on the last car to warn persons standing on or crossing the 
 track, of its approach and provides a penalty for violation of such 
 provision: — Held, that this enactment is for the protection of servants 
 of the company standing on or crossing the track as well as of other 
 persons. M. was killed by a train, consisting of an engine and coal car, 
 which was moving reversely in North Sydney. No person was stationed 
 on the last car to give warning of its approacli and as the bell was 
 encrusted with snow and ice it could not be lieard. Evidence was 
 given that on a train of the kind the conductor was supposed to act as 
 brakesman and would have to be on the rear of the coal car to work 
 the brakes but when the car struck M., who was engaged at the time 
 in keeping the track clear of snow, the conductor was in the cab of the 
 engine: — Held, Idington, J., dissenting, tliat an absolute duty was cast 
 on the company by the statute to station a person on the last car to 
 warn workmen, as well as other persons, on the track which, under the 
 facts proved, they had neglected to discharge. The defence under the 
 doctrine of common employment was, therefore, not open to them. 
 
EMPLOYEEa 265 
 
 [GfOTcs V. Wimborne, [ISW] 2 Q^ 402, followed] :— Held, per Iding- 
 ton, J^ tliat the evidcaee diewed the only failure of the eompanv to 
 comply with the txatattury prorision to have been through the acts 
 and omiflSHMis of the fellow serrants of deceased: that the compaoT. 
 therefoiv, could not be held liable for the conseqnences imder the Fatal 
 Injuries Act: that it is. therefore, nnnece^^arr to determine the appli- 
 eabilitT of the said section of the Baitwar Act. as the fellov servants 
 were gufltv of ctnunon-law negligence which rendered the eompanv 
 liable bat only by virtue of and within the limits of the Employers' 
 Liability Act, 41 X^R. 514, reversed. 
 
 McMuIlin V. Xova Scotia Steel t Coal Co. 7 Can. Ey. Cas. 198, 39 
 Can. S.C.R. 593. 
 
 [Followed in Pettit t. Can. North. Ry. Co., 14 Can. Ry. Cas. 293, 7 
 DJLR. 645: applied in Campbell t. XoVa Scotia Steel t Coal Co., 22 
 DX.R- 885.] 
 
 ACCIDEXT TO EJIPIOTEE — WaTCKMAX AT CBOSSrXG BaCKIXG TSAIX. 
 
 A watchman of the defendant company at a certain crossing in a city 
 was killed by two cars being 'lacked olP in the usual way from a train 
 whidi was backing in an easterly direction for that purpose. A brake- 
 man with a lamp was on top of the western-most of the two cars, but 
 was not keeping a lookout, and gave no warning that the cars were 
 moving. There was no light on the crossing, nor was any one stationed 
 am the cars **kicked oB" to warn people, and the engine bell wa> 
 ringi]^: — ^Held, that the defendants were guilty of negligence and were 
 liaMe for his death, not having complied with s. 276 of the Railway Act. 
 1906, by stationing a person on the front car to warn people. Although 
 the deceased was an employee of the defendants and it was his duty 
 to protect persmis crossing the track from the ears, he had a right to 
 rely, so far as his own safety was concerned, on nothing being done to 
 expose him to unnecessary danger, and on the above section being com- 
 plied with. [Can. Pac By. Co. v. Boisscan (1902), 32 Can. aCR. 424. 
 followed.] 
 
 Lamond v. Grand Trunk Ry. Co.. 7 Can. Ry. Cas. 401. 16 OX.R- 365. 
 
 [Followed in Pettit v. Can, Xcwth. Ry. Co.. 14 Can. Ry. Cas. 293, 7 
 DX.R. 645.] 
 
 ixjtbt to cab cl£&xes walktxg ox tback — t«aix aitead of time — 
 Excessive speed — Fauxbe to kixg belx. 
 A car cleaner employed by the defendants was injured through being 
 strn<^ by a locomotive engine while walking upon the track upon which 
 the engine was moving. The jury at the trial found that the injured 
 party was not guilty of any negligence which caused or contributed to 
 the accident, but that the negligence which caused the accident was im- 
 proper light of yards during time of alterations and the train being a 
 little ahead of time runnii^ at an excessive rate of speed. The juri- 
 did not answer the question as to failure to ring the bell: — Held, that 
 the accident was not due to actionable negligence on the defendants' 
 part and the action must be dismissed. Moss. CJ^.O.: — When a jury 
 exonerate an injured party from the diarge of contributory n^ligence 
 upon the evidence which but for the finding would appear to shew very 
 convincingly that he was the author of his own injuries, the Court 
 diould ascertain whether there is evidence upcm which the jury might 
 reasonably find negligence on the part of the defendants which actually 
 eaoaed the injury or whether the findings of the jury make a case of 
 aetimiable n^igenee against the defendants. Charges of alleged negli- 
 
266 EMPLOYEES. 
 
 gence expressly put to the jury upon which the jury did not make a 
 finding must be taken to have been negatived. Meredith, J.A. : — There 
 was no duty owed by the defendants to the plaintiff regarding the 
 time of arrival of any of its trains. There is no rule of law limiting 
 the rate of speed of railway trains in the interests of railway workmen. 
 
 Paquette v. Grand Trunk" Ry. Co., 13 Can. Ry. Cas. 68, 19 O.W.R. 305. 
 
 [Andreas v. Can. Pac. Ry. Co., 37 Can. S.C.R. 1, 5 Can. Ry. Cas. 450, 
 followed.] 
 
 Sectionman killed on track — Absence of headlight in* jog — Con- 
 tributory NEGLIGENCE. 
 
 Early on a foggy morning in September, the plaintiff's Imsliand, a 
 sectionman employed by the defendants, was working on the north 
 track of the defendants' double-tracked line, when he was struck by an 
 engine coming from the west upon the north track, and killed. He must 
 have heard the engine approaching, but supposed that it was on the 
 south track, which was the u^ual one for east-bound trains. In an ac- 
 tion by his widow to recover damages for his death, the jury, in an- 
 swer to questions submitted, found that the defendants had been negli- 
 gent in: (1) "neglecting to switch back train on to right line at Lyn;" 
 (2) not carrying a headlight. The jury also found that there had been 
 no contributory negligence: and they assessed tlie plaintiff's damages 
 at a sum for which the trial Judge pronounced judgnu'nt in her favour, 
 with costs: — Held, on appeal, that there was no profxr evidence to sup- 
 port the first finding of negligence; but (Meredith. J.A., dissentine) 
 that, as there was uncontradicted evidence that the engine had no head- 
 liglit, as the defendants' rules provided tliat a train running when ob- 
 scured by fog must display a headlight, as the jury might well infer 
 that, if it had been displayed, it probably would have prevented the 
 accident, as the point was, though not specially mentioned in the plead- 
 ings, submitted to the jury by the trial Judge, without objection, and 
 was, in the circumstances, one proper for their consideration, and as 
 tliere was evidence upon which the jury might well negative contributory 
 negligence, judgment was properly given for the plaintiff. Per Meredith, 
 J.A. : — The jury may act upon proper presumptions of fact, but may 
 not draw upon their imaginations, nor supply facts which ought to be 
 proved under oatli. The analogy of judicial notice obtains to some ex- 
 tent, but is limited to a few matters of elemental experience; and it 
 is not in the category of elemental experience that in a dense fog in 
 the daylight the headlight of an engine woiild have conveyed to the 
 deceased the fact tliat the train was running on the east-bound track, 
 in time to save him from liis assurance tliat it was on the other track. 
 There was not a particle of evidence tliat the negligence of the defend- 
 ants in running the train without a headlight was the cause of the acci- 
 dent: and there should l)e a new trial. 
 
 nraliam v. Grand Trunk Ry. Co., 13 Can. Ry. Cas. 232, 25 O.L.R. 
 429. 
 
 Swing bridge on railway — Semaphore and BkiDOE lights. 
 
 The exception to a rule of a railway company that its trains are en- 
 tirely imder the control of the conductors and that their orders must 
 be obeyed except when they are in conflict with the rules and regula- 
 tions or plainly involve any risk or hazard to life or property, in either 
 of which cases all participating will be held alike accountable, does not 
 apply where an engine driver passed a semaphore which was against his 
 train proceeding and stopped at a water tank until he had filled his 
 
EMPLOYEES. 267 
 
 engine wlien lie signaled to the conductor that he was readv to go ahead 
 and the conductor signaled to him to go ahead and he ran on to an 
 open bridge which was near the tank and the engine ran off into the 
 water and the engineer was drowned and where the jnrr found that the 
 engineer acted reasonablr and with proper precaution when he saw that 
 the lights of the In-idge indicated that all was right to go across and 
 that he went ahead upon being signalled br the conductor to do so. 
 Where a locomotive driver passed a semaphore which was against hi^ 
 train proceeding and stopped at a water tank until he had filled hi^: 
 engine, when he signalled the conductor, who. by a rule of the com- 
 pany had entire control of the train, that he was ready to go ahead 
 and he ran on to a swing bridge which was then being opened to let a 
 tug pass and the engine ran off into the water and the engineer was 
 drowned, his death was due to the negligence of the conductor and not 
 to his own. his act of negligence in |»a?^ing the semaphore having es- 
 pendi-d itself when the train stopped at the water tank. Smith v. 
 Grand Trunk Ry. Co.. 3 O.U\X. 279. reversed. 
 
 Smith T. Grand Trunk Rr. Co. (Ont.|. 14 Can. Ry. Cks. 49, 2 DJJL 
 251. 
 
 [Reversed in 14 Can. Ry. Cas. 300. S Di.R. 171.] 
 
 Railway swing bridge — Xegucevce. 
 
 Where a locomotive driver ignored and passed a semaphore which 
 was against his train proceeding and stopped at a water tank until he 
 had filled his engine, when he signalled the conductor, who. by a rule 
 of the company, had entire control of the train, that he was ready to 
 go ahead, and the conductor signalled him to go ahead, and he. still 
 ignoring the semaphore, ran on to a swing bridge which was then being 
 opened to lot a tug pass and the engine ran off into the water and the 
 engine** was drowned, his death was due to his own negligence. The 
 excepti<m to a rule of a railway company that its trains are entirely 
 under the control of the ctmductors and that their orders mu.<t l)e 
 obeyed except when they are in conflict with the rules and regulations or 
 plainly involve any risk or hazard to life or property, in either of 
 which cases all participating will be held alike accountable, is appli- 
 cable where an engine driver passed a semaphore which was against 
 his train proceeding and stopped at a water tank until he had filled his 
 engine, when he signalled to the conductor that he was ready to go 
 ahead and the conductor signalled to him to go ahead and be ran on to 
 an open bridge which was near the tank and the engine ran off into the 
 water and the engineer was drowned, although the jury found that the 
 engineer acted reasonably and with proper precaution when he saw that 
 the lights on the Ividge indicated that all was right to go across and 
 that he went ahead upon being signalled by the conductor to do so. [Smith 
 T. Grand Trunk Ry. Co., 3 O.W.X. 379. restored: Smith v. Grand Trunk 
 Ry. Co., 14 Can. Ry. Casw 49. 2 DX-R. 251. reversed.] 
 
 Smith T. Grand Trunk Ry. Co. (Xo. 2}, 14 Can. Rt. Ca& 300, 8 DXJL 
 171. 
 
 Rau-wat FixeacAX — Xbguce^cc of engixeek — Absexce of sigxals — 
 
 CoilMOy LAW. 
 
 A railway company is not liable at common law for the death of the 
 firoBan of a locomotive that was propelling a snow plough, as the result 
 of a collision with another train, due to the negligence of the engineer 
 in charge of the engine in continuing to run it without attemping to 
 learn the cause of the failure of the signalman <mi the plough to give 
 
268 EMPLOYEES. 
 
 crossing and station signals, where no negligence on the part of the 
 signalman was shewn, as the engineer whose negligence caused the acci- 
 dent was the deceased's fellow servant. 
 
 Jones V. Can. Pac. Ry. Co. (Ont.), 14 Can. Ky. Cas. 70, 5 D.L.E. 332, 
 
 [Reversed in 16 Can. Ry. Cas. 305, 13 D.L.R. 900.] 
 
 Drunkenness of signalman causing derailment — Interlocking plant. 
 
 The Board granted the application of the C. P. R. Co. to cross the 
 tracks of the C. X. R. Co. upon the terms that the applicant should at 
 its own expense, insert a diamond in the track, provide, maintain and 
 operate an interlocking plant including the cost of keeping a signal- 
 man in cliarge of the crossing. The signalman was appointed by tiie 
 C. X. R. to the satisfaction of both companies. While a C. P. R. train 
 was approaching tlie crossing the signalman, being intoxicated, derailed 
 the train, killing the fireman. The C. P. R. Co. was held liable in dam- 
 ages for the death of its servant, the fireman, because it was alone 
 responsible for the negligence of the signalman, who, at the time of the 
 accident, while adjusting the points and giving the signals for its train, 
 was to he regarded as a person in its employment. The whole circum- 
 stances of the employment must be looked at and the real effect of the 
 actual relation existing must not be lost sight of in deference to a 
 formula alwut hiring and paying. [Hansford v. Grand Trunk Ry, Co. 
 (1909), 13 O.W.R, 1184, at p. 1187, specially referred to.] 
 
 Pattison v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 401, 24 O.L.R. 482, 
 
 [Reversed in 26 0,L,R, 410, 14 Can, Ry, Cas. 405]. 
 
 Duty to warx — Workmen at tramway crossing — Approaching cars— 
 "Defective system." 
 
 Tlie work of laying planks at a tramway crossing may properly be 
 found to have been done under a "defective system" when the foreman, 
 whose duty it was to Avatch and warn the men of approacliing cars pass- 
 ing at high speed at about fifteen-minutes intervals, was also required to 
 do manual work along with the men in his charge, thus distracting his 
 attention from the watching which was necessary for their protection. 
 
 Ellis v. British Columbia Elec. Ry. Co., 20 D.L.R. 82. 
 
 Liability of master — "Respondeat superior" — Xegligence of signal- 
 man. 
 
 The application of the rule respondeat superior to each particular case 
 depends upon facts and is a question of fact. [MeCartan v. Belfast Har- 
 bour Commissioners, [1911] 2 Jr. R. 143, 44 Irish L.T, 223, referred to.] 
 Wliere a railway company applies to the Board under s. 227 of the Railway 
 Act, 1906, for leave to cross the line of another railway company, and the 
 Board, by its order giving leave to cross, directs that an interlocking plant 
 shall be established at the crossing at the expense of the applicant com- 
 pany, and that the other company, whenever it desires to make use of the 
 crossing shall he entitled upon notice to the applicant company, to place a 
 signalman in charge thereof, whose wages are paid by the company ap- 
 pointing him and reimbursed to it by the applicant company, the signalman 
 so appointed is the servant of the company appointing him, and that com- 
 pany, and not the applicant comj)any. is liable to a servant of the applicant 
 company who is injured by the negligence of the signalman in passing a 
 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., 14 Can. Ry. Cas. 405, 26 O.L.R, 410, 
 
EALPLOYEES. 269 
 
 UXUCCXSED PHTSICIAX ESGAGED TO ACTE3V EXnOTIZS ^LlABUJTT Of KAO^ 
 
 WAT co3trAsr. 
 
 Whoe it is estaUisbed that a pkyajeiaa ea^aged by an emplorer. upon 
 salary provided by bssbs of dednctioB frooi the wa^rs of the enployvvs. 
 for the porpose of affordia^ aMdical care aod attcadaiKV to the employees 
 vas BOt a Ueeaaed ■edifil prarthioBer. the caapkner i$ liable for daauges 
 sortaiaed throo^ the £Milt of the physiciaa, nales^ he prodnces eridoMV 
 to shrv that Ifte ca^ageneat vas made throng error and vitbout fanit 
 attrflmtaUe to hia. 
 
 North Shore Povrr k Xarisation Co. t. Wallis. 20 Que. K.B. 30&. 
 
 Empiotees or othex oourAxr — ^Drxr of keasoxable cake to. 
 
 A famber eoiapaBy had raibray sidings laid in their yard for ccbtcb- 
 ieace ia shipfiag tnmbn' over the line of railway, arith which the switches 
 coaaected, aad foDoaed the practice of pointing oat to the railvar coaa- 
 paaj the loaded cars to be removed, the railway company thereopoa scad- 
 ii^ their locomotiTe aad errw to the respective sidi^is in the lumber yard 
 aad briifiii^ '^"^J ^i^ eaxs to be despatched froa their depot as^ directed 
 by the MOs of ladii^: — ^Hrid. that in the abecnce of any special a^ree- 
 ^M9t to such cflect. the railway rompany's serrant». while <o engaged, 
 wjere not the onployecs of the loinber eunpany. and that the railway com- 
 pany reamin liaUe for the coodnrt of the persmns in charge of the loeo- 
 m o ti re need in the mori^ of the cars: and that where the lumber com- 
 pany's eaqJo jms rcaiained in a car lawfully pursuing their orcnpatioB 
 there, the persons in charp' of the loeomotire owed them the duty of using 
 maoaaUe skill and care in mori^ the car with them in it. so as to aroid 
 an rink and injury to thena. 22 JLR. (Ont.) 293. affiraung 25 O.R. 309. 
 
 Canada Atlantic Ry. Co. t. Hurdman. 2.> Can. S.C.R. Sm. 
 
 rBefoTcd to in T(4>in r. New GLu^w Iron. Coal k Rv. Co., 29 XJS.E. 
 
 KmuntKK TKATEUXG OX PASS — TajMw ssaTATT — Comfox tatrumtcxT. 
 
 Denaaed, an eaiplinree of defendant compaay. was kilkd in a collision 
 httaccB the car ot the defendant company on which he was traveling to 
 hia work, and a freight ear whiA had beea allowed to grt looee and run 
 doivn grade alone. There was no proof oi how this car got away. Some 
 evideace anas givea (rf a pass from the company having been found oa de- 
 «ea«ed, hot aot to shew that this pas.> had beca is-sued to him over that 
 portiaa of the line, nm- was the pass produced: — Held, that the onus was 
 on the defendant compaay to shew that deceased was travelinz on a pasis 
 aad that it was not shewn that he was being carried in such cirramstances 
 as to make him a fellow servant with those operating the line. Per Irvin<r. 
 JJL: — That the case had not been tried out, because the trial Judge, after 
 instraetiai^ the jury that defendant company would not be liable if it was 
 fonad that deceased was traveling on a pass by reason ot the negligmce 
 of a ieOow servant, asked the jury to find whether the accident was due 
 to a defective systoa without explaining to them what eonstitated a de- 
 fective systcaa. 
 
 WiDdnson v. Britiyi Columbia Elee. Ry. Col, 13 Gan. By. Cas. 378. IB 
 B.C.R. 113. 
 
 (Afiraaed in 4a Can. S.C.R. 263, 13 Can. Ry. Cas. 3S2.] 
 
270 EMPLOYEES. 
 
 Defective system — Gratuitous passengeh — Fbke pass — Fellow sebv- 
 
 ANT. 
 
 The plaintiff's husband was an emplojee 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, witliout 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 gi-ade, 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 
 througli negligence: that there was nothing in the evidence to shew that 
 deceased occupied the position of a fellow servant with the employees en- 
 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. 0.5, distinguished.] 
 
 British Columbia Elec. Ry.' Co. v. Wilkinson, 13 Can. Cr. Cas. 382, 45 
 Can. S.C.R. 263. 
 
 LlABILITT BRAKEMAN OF ANOTHER RAILWAY — TRACING CARS. 
 
 A brakeman who was employed by a railway company other than the 
 defendant, cannot recover for injuries sustained bj' 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 
 receive<l, 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, wliere 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 where 
 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 
 
 ACQCKSCSXCE OF KAILTAT CQXPA:n:. 
 
 BsBussKM of m rmihrmT eonpaBr to a Iffakoun of aaotibn- etmupmrnj 
 to cvto- its jaxds to look for eus Amt aig^t be delrmcd kis master m 
 due comae, ao as to^ for Us oara eoBvcaieBee, faeOitate their diqwisal 
 vkea reemcd, eaaaot be iafened froaa the tcstimoaT of tbe piaiatiff 
 tbat be bad doae so for sevcial aoatba ia tbe ai^ttiane, or &ns tbe 
 tewtiawiay of a soraat of tbe defndaat tbat be bad -^seea tkea> cone 
 oat diffei e at thfif," siaee it was wit sofiacat to sbew fcaovledge on tbe 
 fsst of tte defcadaat of tbe ^aiatiFs eoadoet, kbA less to establish 
 amaiiMiaii tbcrria mfficjeat to aaMnat to Icare or ri^t to do so. 
 
 Caaaiagbsw r. Mi<dki»aB Central Kj. Co. (Oat.!, 14 Caa. By. Cas. 96, 
 4 D-L^ ±±L 
 
 of Bi^; V<dfeBS. 
 
 XBEUCaCKE — SiBK IVMX^CTABILT ECCUXKES — ^~YotE5TI XTOT FIT rSXraiA.*" 
 
 Ob tbe trial of aa action for damages in eoB9eq[oeBce of aa empkijee 
 of a hmiber cflnpaar beia^ killed ia a loaded car vbidi vas beia^ boated, 
 tbe jmnr bad fooad tbat "Itbe de ceased vohmtarihr accepted tbe risks 
 of sbvatii^.' and tbat tbe deatb of tbe dceased was eansed \nr defendaafs 
 B^i^cnce ia shnati]^. ia giria* tbe car too strong a posh: — ^Held, that 
 tbe Tndict awaat only that deceai«d bad Tohratarilr iaenrred the risks 
 attendii^ the sbaatiav of the cars in a careful and skilfnl manner, and 
 that the m J TJ m ^'^roieati bob fit iajnria^ bad ao a{>pIicatioB. [:^Bitb t. 
 Baker, [1891] ^C. 32.3, applied.] ±2 AJL (Oat.) 292, aflErming 25 OJL 
 SOS. aSnned. 
 
 Canada Atlaatic Rr. Col t. Hnrdman. 23 Caa. 8.C.R. 206. 
 
 [Befcned to ia Tiobin t. Xew Glasfow Iron, etc Rv. Co.. 2*» X.S-R. 
 
 Daxcebocs wobks — Obdesakt paECAcnoxs — KxowifSGe or sisk — Cox- 
 
 IKUELIUKT ABEXJeCSCE — ^VbLTTXTACT ESrCSVMB. TO DAXCXS. 
 
 Aa as^ogrcr cariTiav ob haxardoos works is oUiged to take all reasiau 
 able preeaataons. comaaeiKvrate with the daager ol the effl|doyBient. for 
 the pratoetaan <rf employees, and. where this dolhr has been aegkctod. the 
 employer is responsible ia daamgesi for ia jnries asstaiaed by aa ciaphnee 
 as tbe direct result of soeh onuanon. [L^itre t. (Stiaens Ujg^t t Power 
 CoL, 29 Caa. S.C.B. 1. referred to by Xe^Utt, J.I la swl a case it is 
 not aofieicnt defence to shew that soeh a person iajored had kaowlcdir 
 of tte rida of has employment bat thue anist be sodi knowled^ shewn 
 aa, oader the eirenaMtaaccs. leaves no doobt that the risk was rotnatarily 
 intaii e d and this mnst be fooad as a fact. Jadgment <tf the Kiajfs Bench, 
 Montzeal, afirmed. 
 
 Montreal Park t Islaad Ry. Col t. McDon^lL 36 Can. S.C.R. 1. 
 
 [Followed ia Grenier v. Wilson, 32 Que. S.C. 207.] 
 
 DAx^gwrs wobk — Oomio^r tauix. 
 
 Where aa o^doyee of a railway company was killed while engaged ia 
 a daagnons c^eratioa permitted by the conductor, both the company 
 aad employee were held to be negligent. 
 
 Great Xortbera Ry. Cou r. CVr, IS Que. K.B- 4ia 
 
 OPCKATHEC of CQAI. 3CDCE — XBE T ICincCE OF laCPLOTEE. 
 
 Under Ae system of operating the defendant compaay's coal mine, 
 coal was bsoi^ht to the surface by meaas of tiox ears aad at iaterrals 
 what vas tcrnMd a *'rake of ears'' was sent down to brii^ np bkb. 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 tlie 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 liim to recover. (3) That the principle volenti non fit injuria 
 could not be invoked on behalf of the defendant company. 
 Bell V. Inverness Ey. & Coal Co., 42 X.S.R. 265. 
 
 Knowledge of defect.s or daxoeb 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 witli 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 sliewn that the servant undertook the em- 
 ployment not onh' 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. Ky. Co. (B.C.), 14 Can. Ry. Cas. 51, 2 D.L.R. 331. 
 
 VoLENS a question FOR JURY FUNCTION OF COURT OF APPEAI. ON REIVIEW 
 
 — 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.: 
 Tlie 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 NEGt.IGKNCE 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 
 
 |rfaee, is mt justified in aUgfatin^ from one car and attempting to get 
 oa aitiHWr while the train is in motioo. and between stations: and suA 
 eoadnet is matt a. '^riak arising oat of and ineideat to the nature of the 
 1 iiihij 1 nl" vtiun ihe aM^inin^ <rf ». 6 of the Workmen's Compensation 
 Att, Suk. Stat. 1910-U, c. 9. so as to reader the emplovca- liaUe for 
 injaries to the cmpknree resulting therefrom, the cm^o^rs liability in 
 sodk case being limited to the ordinary risks of traveL [Plumb r. 
 Cobden Flour Mills Co^ [1914] JLC. 62; Barnes v. Xunneiy CoUiery Co.. 
 [1912] JLC. 44. followed: Herbert v. Fox, «4 LJJL.B. 670; Jibb t. Chad- 
 wiek, W LJ.K-B. 1241; Parker v. BUck Rock, M LJi-R 1373: Price 
 T. Tred^ar. 30 TX.B. 583. referred to.] 
 
 Bechtel r. Can. Pae. By. Co.. 26 DJLJL 339, 9 SX.R. 3. 33 WXcB. 426. 
 
 Temfc«akt srspExsiox or woaK — Volexs — ^DAX^xors locauit. 
 
 A tempMaiy saspeasion of work does not always deprire the workman 
 of his reeoarse nadcr the Workawa's Cuaipeaistina Act. (Que.) if he is 
 the Tietim cf aa accideat durii^ saA sn^easioa: but if the wvMkaiaa, 
 aotwithstaadiag the em^o^cr's orders to the contrary, withdraws from 
 the laAter's saperinte nd eace , leaves his work and trarei^es. in his own 
 iateresty a daageroos place, situated where the work is carried on, he 
 loses his recourse against his employer. 
 
 Larery t. Grsnd Trunk Ry.. 26 Que, K.B. 281. 
 
 H. H^igeaoe of FeDow Serraiit. 
 Xbblect of feujOw yramKHAy — Co^ttsibctokt ^bgugexce — Dcfbctite 
 
 8T8TEK. 
 
 Deceased while engaged in disdmigiag flie 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 
 consideraUe snow, and deceased was oceupied in keeping the points of a 
 switch dear of aiow. This required constant attention and unda* the 
 coaditions prevailing at the time prereated him from observing the ap- 
 proach of the train. The train was being moved in a reverse directioa 
 and the accident was shewn to have been wholly due to the m^lect of 
 the pr opet pcxsoas, employed in eonneetion with the running of the train, 
 to ring the bdl or blow the whistle or to stand on the forward end of 
 the ear for the purpose of giving the necessary warning. Plaintiffs, the 
 widow and children of the deceai^ed. sued for damages under the eommoa 
 law as aided by Lord Campbell's Act: — Held, that deceased was aot 
 guilty of conl^butory n^Iig<e«ee. but that as all the ncgligeat omissioas 
 were those of fellow workmen and there was no proof of a system on the 
 part of the defmdant company of running their trains without these 
 precautions being taken, defendant was not liable. 
 
 McMulUn V. Nova Scotia Steel t Coal Cc 41 XjS-R. 514. 
 
 UXSKHXiSD W<«KMA3r MKECTED TO FEKFOCM WOSK WHICH BEQCIKEB SKUX 
 
 •n> Avon> AccnJEVT. 
 Although an employer is not liable as a general rule, for the result of 
 accideats which happen to employees from dangers essentially inherent 
 la tte wiMrk which is being performed, he. nevertheless, becomes liable 
 whea reasonable precautions have not been taken by him 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 raUway. is entrusted to an unskilled person, the 
 emph^er is resptmsible for an accident to the workman resulting from 
 OuL Ry. I_ Dig.— IS. 
 
274 EMPLOYEES. 
 
 his inexperience, reasonable precautions to avoid it not having been 
 adopted. 
 
 Sparano v. Can. Pac. Ry. Co., 22 Que. S.C. 202 (Archibald, J.), 
 
 Injury to kmvimyicf. rolling timbbrs — Fellow servant — Feli^ow serv- 
 ants AND TIIEIB NEGLIGENCE. 
 
 Whore an employee, while engaged with fellow workmen in rolling up 
 timbers on flat cars, which timliers were similar to telegraph poles, being 
 larger at one end than the other, and the only inference to l>e drawn 
 from the evidence as to the caiise 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 sliould 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 ai)peal 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 — Felix)W 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. Cas. 307. 36 N.B.R. 323. 
 
 Collision — Death of railway fireman ox sxowi'loigh — 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 tho 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 Mhich was being used 
 for shimting 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 leceivetl from the yard foreman. 
 
 Martin v. Grand Trunk Rv" Co., 8 D.L.R. 590, 27 O.L.R. 165, 15 Can. Rv. 
 Cas. 1. ■ . 
 
 Statutory duty — Railway employef,r passing test — Commow 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- 
 
EMPLOYEEa 275 
 
 am. imjoicd as a resoKt of wmdk inaA «f imtj. [J«mms t. Gu. Fk. Rj. 
 Col, 14 Cam. Rj. Cas. 7«, 5 DX^ 332, 3 O.W^S. 1«M. tvnxsed: see aho 
 Wortows's CoapotsatiM for lajmies Act, RJBjO. 1S97, e. IMl RS.O. 
 1914, c I-IC, aiid Fmfal JUcidarfb» Aet, 1 Gcol V. fOirt.]) e. 33, 
 BJSjOl 1»7. cl 16S, BjSjO. 1914^ c 151.] T¥e Aeinex of 
 |iliiiMtBl. is BoC av^ulaUe to tlir ■Hftcr n a case ia vhkk iajarr kas 
 hccH casMd to a svrraat Inr the ■i^iiflUCL «f a ftHam snraat selected 
 hf the ■**!«- ia bnach of a statotonr dhrtjr to caqrfojr ia the parCacBlar 
 juiiiA 4mhr pCTsms who have passed a qaalifri^ t«£t. if the iajarr 
 he the Batairal eaaseqacBee of the lack of eapahility vhith the test shoali 
 haw diseiowd. [Joms v. Caa. Par. Rt. Col. 14 Caa. Rt. Ca&. TS, a D.LR. 
 333. 3 aW.X. 1404, rer«r»ed: Givm t. Wiaiborae, IISW] 2 Q.B. 4«i±. 
 applied.] The fla^raat faOme of a aectiim forr^aa iapropetly eatrBstcd 
 with tW charpt of a railmj i ana phw^,h traia ia Tiolati<» of statatocy 
 icgmlatiaBB rafwria^ that oahr caphnees should be plaeed ia chai*« 
 who had paaeed the pRscribtd csaauaatioB to uhterro the niga^hi or to 
 c%BaI to the nt^iae drirer ia rear mar. ia the aiecace of e r i de iLe to the 
 eoatrarr. be pre»inaed to have rrsolted fnaa hi$ vaat of sidll, kaual gii ig g 
 or csperioMe. or to ««■» phrsiral iaeapacitT or defect, vluck tihe ^tatvtorjr 
 esawaatioB or teA wold hare revwakd; aad the tailaraf cniapaaj is 
 p»ape Tlj held liable ia daa Mg e * for the death of his aadataat oa the 
 ^Kmfiau^ ia a coUifioa n^oltia^ tiw tW seetiaB fiaiMia'ii aegleKt 
 ia vUch he ako «a« killed: the coapoav's aetioB la a H Ltia g am aaqaalt- 
 ied aaa to do sseh Tork vas either the sole efliertiTe caose of the acodeat 
 or a eaaae aateriaOT coatiilMtiaig to it, aad the case therefore coold aot 
 hare bc« piopeih vithdrm fm^ the jarr. Joaes t. Caa. Pae. Rj. Ccu, 
 14 Cam. Rr. Oa*. V«. 5 D.LR. 33*. 3 O.W.X. 1404. levvrsed. 
 
 Jews T. Caa. Fae. Rj. Co, 1« Caa. Rt. Cas. 30S, 13 DXJL *•«, 30 
 OX^ 331. 
 
 Ftexxra- jCEBf-jiTTS — ^irATTHMAX XT lEWi. caossoRB — ^Tk&i3r csEV — Coa- 
 
 A perwoa eiapktred br a railwar # <■■■«■■» - a« m, aatehnaa at the crasp- 
 iag of its nilwaj vith a stieet raiNraj at level is a fieDoa «erraat 
 with the erea- of a traia passiag ov^er the eroan^; aad. if he is killed 
 ia eaaseqaeace of the Be;|El|^!eaee of the traia crev. his vidoar caaaot rv^ 
 conr da— pes at ciobibkmi lav ajraiait the railwar coapaaT. [Waller v. 
 Soath Easteia Rr. Co.. 2 H. i C. IKJtf: Mor^aa r.'Vale of Xeath Sj. Col. 
 LJL 1 Q.B. 149. aad LmreU r. HowelL 1 C.P.D. l«l. followed.] S. ±T« 
 of the Railaar ^et^ 19M. is for the protectioa of caqdovecs of the rail- 
 war cwmpaar a:? ve4I a» of the paMie. and the aidovr aad ad^uaistTatrir 
 of a vatchBaa emplojned hr the eoawpaar at a Icrel nvsaJiB^ ai the rail- 
 aar vith a street raihrar. who is killed ia aa acvideat caused br a brKarThi 
 of that seetioa br the raaaiag of a frei^t traia backwards over the 
 q wmi a g without aar persoa *m the ead car to give proper vaiaiss »f 
 its af^MToack. re$ultiB^ ia a cvdlisiaa with a street car craaaag the traiA^Sw 
 aaar r e coter danafcs a^aiast the doaipaBr nader that scctioa. i\l<- 
 MoUia T. XjS. Steel & Coal Co., T taa. Rr. Cas. 19S. 39 Caa. S-CR. ^2. 
 aad LaaKvad r. G.T.R. Cou. 7 Caa. Rr. la^L 40I. I(fi OJ..R. 3G3. followed.] 
 Erea if it were shewa that a street railway coaipaar. as weD as a railway 
 coBpaaj. mi^t also be liable for the coaseqaeaces of aa aerideat which 
 reaaltcd ia the death of ommf of the railway's cjaploict.* becaise of the 
 a^^eaee of the laotonaaa. aa employee of the street tailaar eontpaar. 
 that would aot {oercat the rtcoT e rt <tf fall dana^es fa ou i the railway 
 
276 EMPLOYEES. 
 
 company. ["The Bernina," 13 A.C. 1, and Burrows v. March Gas & Coke 
 Co., L.K. 5 Ex. 67, followed.] 
 
 Pettit V. Can. Northern Ry, Co. (Man.), 14 Can. By. Cas. 293, 7 D.L.R. 
 645. 
 
 [Varied in 11 D.L.B. 316, 23 Man. L.R. 213 by reducing the damages.] 
 
 Personal ixjubies — 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 gang^vay 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 
 looking out for the cars. Tlie trial Judge held that plaintiff was the cause 
 of his own misfortune and could not hold defendants liable. This judgment 
 was affirmed by the Divisional Court, biit reversed by the Court of Appeal 
 for Ontario, which ordered a new trial. The Supreme Court of Canada 
 affirmed the decision of the Court of Appeal, Gwynne, J., dissenting, but, on 
 counsel for the company stating tliat a new trial was not desired, judg- 
 ment was ordered to be entered for plaintiff" with $500 damages, the 
 amount assessed by the jury at the trial, and the appeal was dismissed with 
 costs. 
 
 Hamilton Street Ry. Co. v. Moran, 24 Can. S.C.R. 717. 
 
 [Distinguished in O'Hearn v. Port Arthur, 4 O.L.R. 209; referred to in 
 Preston v. Toronto Ry. Co., 11 O.L.R. 56. J 
 
 Injury to workman — Common fault. 
 
 When an accident to a workman is due to his own negligence the em- 
 ployer cannot be held equally negligent on account of defects in the working 
 apparatus in the absence of positive proof that such defect contributed to 
 the accident. 
 
 Dorin v. Can. Pac. Ry. Co., 3f Que. S.C. 493 (a. Rev.). 
 
 Injuries to employee — Moving car— Xeoligence of foreman. 
 
 A railway company is not liable to an employee for injuries sustained 
 by him when he, well knowing the dangers of the work and being an old 
 hand, stepped on a track in front of a car moving in his direction, without 
 looking to see whether anything was approaching. In order to succeed, 
 the employee would have to shew want of proper precaution, or something 
 in the conduct of the man in charge of the car which would amount to 
 negligence. [Dominion Iron & Steel Co. v. Oliver, 35 Can. S.C.R. 517, fol- 
 lowed.] 
 
 Lennox v. Grand Trunk and Can. Pac. Ry. Cos., 19 O.W.R. 169, 2 O.W.N. 
 1078. 
 
EMPLOYEES. 277 
 
 IXJUST TO ElCnOTXE — ^EXCCKK SIOtVIXG BACKVABOS EX UAStMAr TABI»— 
 RaIL-WAT TABBL 
 
 Usdei- &. 276 of the Raihnir Act, 1906^ as aoMnded br 9 4 10 Edv. VII. 
 c dO, & 7, it is onlr vhcn a train is passing or about to pass over or along 
 a UglnraT that the raihray coaapaiiT i$ required, in ea£« tiie train is not 
 iMBided hv an f giin* monng forward in the ordinary manner, to station a 
 ■na OK that part of the train, or of the teader if that is in front, vhich is 
 then f oRatoet, to «am persons standing oa or erosang or about to eross 
 tkm tradk, aad & 274 of the Act, rcqairing the ase of the bdD and whistle^ 
 ff^ymVI be interpreted as IiBited in the same war. The plaintiff's husband, 
 an enployee of the d^i^idaat company, vhile {ntxeeding throogh the rail- 
 vay yards on business of his otnL, stepped off the track on vhich he vas 
 valkiBg, to aToid an appoaddag express train, and stepped on to another 
 track, aiwB he ams strock and killed, at a pmnt vhicb was not near any 
 hjgfkway croesn^ by a yard o^iae aKning rem^sehr without any person 
 iililhnnd oa the part of the tender, which was forennkst. There was a path 
 bctnma the two tracks on which the dece as ed m^t have walked safely: — 
 Held, withont a find tug on the eridence as to whethn- or not the bell of the 
 yard o^ine had been rang, that the d^imdants were not liable, as they had 
 not been guilty of any atgi igtacc, and the deceased was guilty of contrib- 
 ntmy negligence in goiBg apoa the otho* track. Semljile. the deceased had 
 ao r^^ to be whete he was at the tiaie of the accident and was therefore 
 a ixeqnaser: [Deaae ▼. Clayton (1817». 7 Taunt. 489. and J<ndin v. 
 &BMp (1847), 8 IL 4 W. 7S3], and no action was maintainable without 
 eridence of intention to injnre. 
 
 Skalak t. Can. Xorthcm Ry. Co.. 20 Han. L.B. 242, 15 WXJL C99. 
 
 IXJTTKT TO TAKDMASTCS — ShTXTISC CASS FaH-CKE TO UOOK. 
 
 Actioa by the administratcMrs of the estate of a railway yardmaster in 
 &e sennkae ai the defendants, to recorer damages for his death cansed by 
 their negligence. Inr being knocked down and killed, while at work in the 
 yard, by two shunted ear> under the ci»tr<ri of the defendant. The jury 
 found a verdict iar plaintiff's. A motian f<H- a nonsuit was made by de- 
 fewdaatB? and was t e iier te d till after verdict: — Held, per Mered ith . J., that 
 -die sMition must be sostaiaed because of the ctmtributory ac^igence <rf the 
 deeensed ia aot lookj^ oat, whea goiis behind some other cars oa the 
 track, to see whether there was danger. 
 
 London k Western Trusts Co. t. Pen Marquette Ry. Co.. 5 Can. Ry. Cas. 
 44, 6 O.W.R. 321. 
 
 [Reversed in London i Western Trusts Co. v. Lake Erie & Detroit Riva- 
 Ry. Col, 12 OJLR 28, 5 Can. Ry. CasL 364. See 5 Can. Rv. Cas. 53, 7 
 O.WJL 5U-] 
 
 bjTKT Ttt TAKOSaA^r SHI'MIXG CAKS — AKSESCB. OF WAMSTSG FaUXVE 
 
 TO LOOK. 
 
 A railway yardanan in the ordinary course of his duty was passing be- 
 hind the most westerly of four ears standing by them^ves on a side line. 
 As he was crossing the track, two cars of the defendants, prc^lled by a 
 flying shunt, came from the east and ran into the standing cars, with the 
 result that he was knocked down, run over, and killed by the ear bdiind 
 whidh he was pasang. There was no evidence that cars were liable to be 
 shnated aegli^eatly <»- unexpectedly, and he did not see or hear the cars, 
 aad ao warning was given to him: — Held, that there was evidence of neg- 
 I^eaee oa the part of the d^cndants to go to the jury, and that the fact 
 that the yardsamster did not look for approachii^ cars befwv going be- 
 hind the staadii^ car was not snflfeient to shew that he was guihhr of such 
 
278 EMPLOYEES. 
 
 negligence as ipso facto to deprive him of the right to recover. Judg- 
 ment of Meredith, J., 6 O.W.R. 321, 5 Can. Ry. Cas. 44, reversed. 
 
 London & Western Trusts Co. v. Lake Erie & Detroit River Rj-. Co., 5 
 Can. Ry. Cas. 364, 12 O.L.R. 28. 
 
 [Followed in Wallman v. Can. Pac. Ry. Co., 10 Man. L.R. 82, 6 Can. Ry. 
 Cas. 229.] 
 
 Duty op employee — Imperfect ixsulatiox of ei.ectbic wires — Duty of 
 inspection. 
 
 An electric line foreman in the company's employ met his death from con- 
 tact with imperfectly insulated live wires while at some work in proximity 
 to them in the powerhouse. The evidence left doubt whether the duties of 
 deceased included the inspection and care of the wires both inside and 
 outside of the powerhouse, or whether his engagement was to perform the 
 duties in question in respect only to the wires outside the powerhouse 
 walls: — Held, that the onus of proof as to the point in dispute was on the 
 defendants, and, such onus not having been satisfied, they were liable in 
 damages. Judgment ai)[)ealed from aflirnu'd, Davies, J., dissenting, on a 
 illflerent view of the evidence in holding that tlie duties of deceased included 
 inspection and care of the interior wiring. 
 
 Quebec Ry., Light & Power Co. v. Fortin, 7 Can. Ry. Cas. 252, 40 Can. 
 S.C.R. 181. 
 
 ix.iuby to conductor by gravel-spreading machine — failure to look — 
 Obstruction of view. 
 
 In an action by the conductor of a construction train for injuries re- 
 sulting from a wing of a gravel-spreading machine operated by air pres- 
 sure, coming down upon him, caused by the engineer in charge of the 
 machine unintentionally starting it by striking his knee against the handle 
 of a valve used to set it in motion while attempting to get closer to the air 
 gauge, which, owing to the darkness, he could not see from where he stood 
 witliout a light, to ascertain if there was sufficient air in the reservoir of 
 the machine to operate the same, a motion for the nonsuit was rightly re- 
 fused, it being for the trial Judge to say whether any facts have been estab- 
 lished in evidence from which negligence may be inferred, and for the jury 
 to say whether or not from these facts negligence ought to be inferred. 
 [Metropolitan Ry. Co. v. Jackson. 3 A.C. 197, followed.] 
 
 Tobin V. Can. Pac. Ry. Co., 2 D.L.R. 173, 20 W.L.R. 676. 
 
 Injury in course of employment — Removing train stalled in snow — 
 Employee w.\rmixg up at time of accident. 
 
 An employee is shewn to ha-ve been injured during and in consequence 
 of his employment with the railway where it ajjpeared that he, with others, 
 was hired by the conductor to dig out a freight train stalled in snow, and 
 was told at the time of the hiring that he would be carried to the place and 
 back and after the train was dug out, the men, at the invitation of the 
 conductor, went into the caboose to warn themselves and to wait to go 
 back, and, while they were there waiting, another train collided with the 
 caboose and caused the injuries complained of. [Holmes v. Great North- 
 ern Ry. Co., [1909] 2 Q.B. 400, approved.] 
 
 Cordon v. Can. Nortliern Ry. Co., 2 D.L.R. 183, 20 W.L.R. 705. 
 
 Injury to employee walking between tracks — Failure to look. 
 
 An employee of a railway company is guilty of contributory negligence, 
 which will bar a recovery of damages by his personal representatives against 
 the railway company for his death in the course of his employment, where 
 
EMPLOYEES. 219 
 
 ijt is t^ewu tlttt ike AtttsMxed was valkii^ l«tvem tvo puaDd tracks u a 
 xaDwaj jard, aad, vitkoat *«''*'*g to asecrtaia if aair oaia «a$ appmac^- 
 ia^ atcfiped apoB a txack da wliidk a frei^t train «a» monria^ and arh«\p 
 tke jatd httper oa oae of the HMnia)^ cax« kad d«ne lu£ vtBO^ to vara tfce 
 4ffifVfi^, aad what H hrriBM^ appareat tkat ao aocice «a;§ beii% paid to the 
 wanuaggjs, iaiMediatelj ^ve tlw stop sigaaL aad caased tke brakes to he 
 ap^ied, although aot ia tiaie to ftmMt the deceased beiag ^tmek. 
 MeEachm x. Giaad Tmak Bt. Gou 2 DJJEL aSS, 3 O.W^. iSL 
 
 LOCOM OnTE ESGDrBSB — DK&TH CACSEB KT jrVPCSG TSOM IBAXX. 
 
 natatUEs sued deieadaat en—paay for dana^es for the death of their 
 aoa, m liiu— idiii *^ fci» *«» ia the defeadaats' caqilor. aho aas killed bjr 
 hariag jaaped ba^ a traia over which he had ket eoatroL The jarr 
 foMd ^Mn dam«^:— Hdd, oa appcaL pa- Hnater, CJ_ tibat the oalj 
 votfict iiMiiiiMj < y« to the jmy vas that the deceased h»t his life }nr 
 his ova a^g^geacCL Fer Ini^, J.: — ^That the daauges vete faaeeamnt. 
 Per llonisaa. J.: — ^Thaft the ««tdict should «taad. Xev trial ord«cd. 
 
 White T. Yietoria Lmaber 4 M%. Gol. U Caa. Bj. Ca&. 473. 14 B.C.IL 
 3fi7. 
 
 [Benned ia [1910] A.C. 60«^ 11 Caa. Br. Cas. 489.] 
 
 Xecugcsce — MisiMKEcnox — CoxmacToaT isBesjexxc^ 
 
 la aa actioa for daaiagey for the death of the af^teUaat's soa vhile act- 
 ii^ a» a^iaeer of the re^oadeat'^ Imabo- traia. the reipaBdiati? verr 
 rhai^ped vith ac^U^ieaee ia reepe<n of the train hariag beea ey iipp ed with 
 defcrtire bnkes aad aa iacoaapeteat brskesaaaa. vhile the deceased vas 
 rhai^ped vith cttBtribatoty ae^l^vace ia jaw|Mag from the traia. The jnr^' 
 lonad for the appellaat^. lot a aev trial vas ordered £r the SupnaN. 
 Court. Oae Jnd^ vas dLssxtiicfied vith the Tcrdiet on the grooad of bu»- 
 directiaB ia nj^rard to coatributov; ac^igeace. aad aaother Jn^e held, 
 cvatrary to both hi» coDeagoes. that the daau^es. verv exc^Sftive: — ^Held. 
 that the order atitst Iw rerersrd. It va$ too late for the respondeats to 
 velv OB mifdireetioB vhich ther had aot excepted to at the trial, or ia the 
 notice of appeal or ia oral ar>«iUDcat before the Svprtaie Court. There 
 mere ao isaffirient {rrooads for a aev trial oa the head of exce<«ive dua- 
 ages. Appeal from a jodgBMat of the Full Court, iettin* a.^ide the jn^- 
 aeat of CleaMst, J. aad orderiag a aev trial. See 14 B.C K. 3£7. 11 Can. 
 By. Cas. 473. 
 
 White T. Victoria LuabCT 4 Mfg. Co., 11 Caa. Bt. Cis. 4S9, [1910] 
 JLC. COS. 
 
 CoSTBWt TO«T XESUeCXCX OT SEBTAST — OOCTUXG CitCS. 
 
 It is coatribnt4Ht7 aegUgeace for a brake«an. while staadiag vith one 
 foot oa a loose step «■ the aide of a box car <»§ iaches feekvw the bottoai 
 therarf, aad with oae haad holdiag a nn^ of a ladder oa the side <rf the car 
 14 iaches ahore the bottoa of the car. to atteiapt to opca the coopUi^ de- 
 Tice bjr wmki^ the lever that operated it. the cad <rf vhich vas about 13 
 or IS iaches froai the side of the ear. 
 
 Stoae T. Caa. Plac. Bj. Co. (Oat.». 14 Can. Br. Cks. 61, 4 DXJK. 789. 
 
 rBcreraed fa 15 Caa. By. Cas. 40SL 13 DJ-.K. 93.] 
 
 OHnxncraBT xeeuce^ccs or rkjikemjuc — Cottltcg cjas. 
 
 It is aot contribntory negiigeace for a brakanaB, vhile standi^ ia a 
 croaehiag poeitiaa oa the side oi a noving freight car vith oae foot oa a 
 knse step f} inches bdov the bottoai of the car, aad htridii^ vifk oae haad 
 to a ra^g of a side ladder 14 inches above the bottaa of the car to at^ 
 
280 EMPLOYEES. 
 
 tempt to open the car coupler, by reaching around the end of the car in 
 order to work the lever operating the coupling apparatus, which was con- 
 siderably shorter than the levers commonly used on other cars. [Stone 
 V. Can. Pac. Ry. Co., 4 D.L.R. 789, 14 Can. Ry. Cas. 61, 26 O.L.R. 121, re- 
 versed.] A railway company is liable for an injury sustained by a brake- 
 man while coupling a car belonging to a foreign company, that had a short- 
 coupler lever which could not be operated without going between the 
 end of the cars; since the hauling of a car so equipped was a violation of s. 
 264 (1) of the Railway Act, 1906, requiring all freight cars to be provided 
 witli couplers that can be uncoupled without the necessity of men going 
 l)etween the ends of the cars. [Stone v. Can. Pac. Ry. Co., 4 D.L.R. 789, 14 
 Can. Ry. Cas. 61, 26 O.L.R. 121, reversed.] For a brakeman, while standing 
 on the side ladder of a freight car, to lean around the end of the car in or- 
 der to open the coupler, the lever of which was too short to be worked from 
 the side of the car, is not a violation of a rule against going between mov- 
 ing cars to adjust couplers. (Per Idington, Anglin, and Brodeur, JJ.) 
 
 Stone v. Can. Pac. Ry. Co., 47 Can. SCR. 634, 13 D.L.R. 93, 15 Can. Ry. 
 Cas. 408. 
 
 Injuby to lineman — Climbing pole — Disregard of practice — Contrib- 
 utory NEGLIGENCE. 
 
 The disregard by a lineman of a practice, not a rule, in not ascending an 
 old pole before it was lashed to the new pole is not in itself contributory 
 negligence to warrant a withdrawal of the case from the jury. [Randall 
 V. Ahearn & Soper, 34 Can. S.C.R. 698, applied.] 
 
 Christie v. London Elec. Co., 23 D.L.R. 476, 33 O.L.R. 395. 
 
 Unprotected frog — Contributory negligence — Uncoupling cars in mo- 
 tion. 
 
 An unprotected frog is not of itself negligence where the deceased met his 
 death in an attempt to uncouple cars while in motion, xmless his duties 
 required him to do so. 
 
 Western Trust Co. v. Regina, 24 D.L.R. 26. 
 
 Defective ladder. 
 
 A workman is not entitled to recover for injuries sustained through the 
 fall of a ladder, caused by the rounding of the edges at its end, when he has 
 failed to report the defects to the proper authorities, so that they might be 
 remedied. Judgment of Alberta Supreme Court affirmed. 
 
 Green v. Grand Trunk Ry. Co., 10 W.W.R. 430. 
 
 J. Bules and Orders. 
 
 Collision of trains — Contributory negligence — Violation of rules 
 governing trains — Starting train on conductor's signal. 
 By rule 232 of the Grand Trunk Ry. Co., "conductors and enginemen will 
 be held responsible for the violation of any of the rules governing their 
 trains, and they must take every precaution for the protection of their 
 trains even if not provided for by the rules." By rule 52, enginemen must 
 obey the conductor's orders as to starting their trains unless such orders 
 involve violation of the rules or endanger the train's safety, and rule 65 
 forbids them to leave the engine except in case of necessity. Another rule 
 provides that a train must not pass from" double to single track until it is 
 ascertained that all trains due which have the right-of-way have arrived or 
 left. M. was cngiiieman on a special rain which was about to pass from a 
 double to a single track, and, when the time for starting arrived, he asked 
 the conductor if it was all right to go, knowing that the regular train 
 
EMPLOYEES. 281 
 
 paand orer ike single track about that tiaie. He receired fran the con- 
 dnrtor tlie wnal aigBal to start mad did so. Aftn- proecedn^ about tvo 
 ■uies bis tnia coHided wifk tte regular train aad be vas is jmed. la an 
 actka against the cnaap— y far daanges in eoaseqpHnee of socfa injarjr: — 
 BtM, aflnaing the jadgimmt of the Coort of A^pcaL that M. was' not 
 obliged, befoR stnrtia^ to riamine the ngiater and ascertain f dv himself if 
 the rcgolar train had passed, that dntj boi^ imposed bj the rules on the 
 eoadaeliar ahne, that he vas boond to obey the eondnetor's order to start 
 Ae train, having no reasoa to qaa^Han its pn^nictr, and be «n&, therefore, 
 not guiltT of contributory ne^igenee in starting a^ be did. 
 
 Grand Trunk Ey. Co. t. Miller, 2 Can. Ry. Casw 350. 3* Can. &C.R. 454. 
 
 WOBKMEX'S CoUreS&XTHKS ACT — SkXAUS — ^IxTEXIjOCKEB OCT OT OKDEK — 
 
 CaxTwascvmr xtecucencc — ^Vhrxoox or oraess to e^tgese ixmEss. 
 
 The defendants w»c ereeting an interlocking apparatus at a point of 
 ttor main line where there was a siding, whereby the switch could be 
 walked and a ^nal Jienu to indicate bow it was set. by h merin g the 
 upper or lower arm of the s^:nal, as the caae might be. The plaintiff's hus- 
 band, an eqierieneed engine drinr in defendants' onploy. bavi^ been in- 
 fosmed befcMre starting with bis train that the apparatus was in worki^ 
 order and that aD trains were to be governed by the rules apfdicaUe in such 
 cases, approaching the spot, saw the signal with both arms down, intimat- 
 ing that the interlocker was out (rf order, but. nerertbelcss, proceeded, and, 
 the switch not being fastened in any way. the train was derailed and be 
 was killed. As a matter of fact the apparatus was not in working order, 
 a switchman of the defendants being at the spot with flag signals to use in 
 caae id necessity, but be failed to warn the deceased. The defendants' 
 rviea governing engine drivers provided that they should stop when in 
 doaiit as to the meaning of a signal, also that a signal imperfectly di^ 
 plajcd must be regarded as a danger signal, and that in ca^ of doubt 
 tihejr were to take the safe course and run no ri^L Employees were also 
 ■prrially instmrted that if an interlocker was out of order trains were to be 
 flagg e d throng The plaintiff Inougfat this action for damages under 
 BJS.O. 1897, c. 166:— Held. that, although there was a pfaun defect in the 
 eoBditian of the way which was the cause of the derailment of the engine, 
 the plaintiff was properly nonsuited, in that her hnriMUid, had he sm tile d, 
 could not have maintained an action, havii^ negligenthr di s ob ey ed his or- 
 as contained in the rules, by proceeding with his train in spite of the 
 of the signals. 
 
 HMdeB T. Grand Trunk Ry. Co.. 2 Can. Ry. Cas. 352. 5 OXJL 301. 
 
 [Referred to in Devo v. Kingston t Pembroke Ry. Co., 8 OT.R. 588.] 
 
 DDOKimcscc OF oiKnff»s — Failcke to sigkal. 
 
 A mie of the company defendant required the display of a bine signal 
 (Uae flag by day and blue light by night* while a car is being repaired 
 «m tte track. Solely in consequence of the failure of the ^aintiff, an em- 
 phijee of the defendant, to comply with this role a train backed down while 
 he was wtwldng at a car on the track, and he was injured: — ^Hdd, aflbaung 
 the jndgmoit of the Supnior Court, Curran. J., that the plaintiff had no 
 daim for eompoisation under the circumstances. 
 
 Coutiee V. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 36, 23 Que. aC £12: 
 
 COXTRIKI IIWl XCeXICEXCE — COXDCCTOS JJntTtSG FSOX TKAIX — ^VHKJiTIDX 
 Oe MTLBS, 
 
 A railway train was approaching a station in London aad the eoadnctor 
 jumped off before it readied it intodii^ to cross a track betweoi his train 
 
282 EMPLOYEES. 
 
 and the station contrary to the rule prohibiting employees to get olT a 
 train in motion. A light engine was at the time coming towards him on the 
 track he wished to cross which struck and killed him. The light engine was 
 moving slowly and shewed a red light at the end nearest the conductor 
 which would indicate that it was either stationary or going away from 
 him. In an action by the conductor's widow she was nonsuited at the trial 
 and a new trial was granted by tiie Court of Appeal: — Held, reversing, the 
 judgment of the Court of A])poal, 3 O.W.K. 81)2, Davies and Killam, JJ., dis- 
 Benting, that as the light engine had been allowed to pass a semaphore l)e- 
 yond the station on the assumption, which was justified, that it would pass 
 before the train came to a stop at the station, and as, if the deceased had 
 not, contrary to rule, left the train while in motion, he could not have come 
 into contact with said engine, the plaintiff was not entitled to recover: — 
 Held, per Davies and Killam, J. I., diissenting, that the act of the deceased in 
 getting off the train when he did was not the proximate cause of the ac- 
 cident and plaintiff was entitled to have the opinion of the jury as to 
 whether or not deceased was misled by the red light. 
 
 Grand Trunk Hy. Co. v. Birkett, 5 Can. Ry. Cas. 54, 35 Can. S.C.R. 296. 
 
 Work train — Rule as to i'Rotkctixg by flagmen — Absknck of contin- 
 uous AIR BRAKES — LIABILITY AT COMMON LAW — WORKMEN'S COMPEN- 
 SATION Act. 
 The deceased, who was in charge of a gang of labourers, employed in re- 
 moving earth from a cutting on the defendants' railway, acting, as he be- 
 lieved, in the company's interests, to prevent the loss to them of the 
 labourers' time, by the work train engaged in the work being kept at a sid- 
 ing, induced the conductor in charge of the train to move it on to the main 
 track, and to proceed to the cutting, by backing the train slowly. By one 
 of the company's rules, the train should not have been moved — unless other 
 suiBcient precautions were taken — until flagmen were placed at stated in- 
 tervals in front and rear of the train. Flagmen were not placed; but the 
 conductor took the precaution of standing himself, as a lookout, on the top 
 of the van, and for a like purpose placed the deceased in the cupola, while 
 it was the duty of the engine driver to keep a strict lookout towards the 
 conductor, so as to observe liis signals and to act upon them. When the 
 train was distant some (iOO yards from another work train approacliing 
 them, also moving slowly, tlie conductor signalled the engine driver to stop, 
 and had he done so, a collision which occurred, whereby the deceased was 
 killed, would have been avoided: — Held, that the company were liable, un- 
 der the Workmen's Compensation for Injuries Act, for the deceased's death 
 through the neglect of the engine driver. [Deyo v. Kingston & Pembroke 
 Ry. Co., 8 O.L.R. 538, distingnislied.] Liability was claimed at common 
 law by reason of the train not l)eing furnished throughout with air brakes, 
 as required by the Railway Act, 1003: — Held, that no such liability ex- 
 isted, for the train was not a jxissenger train, and the accident did not 
 occur through the want of brakes, but by reason of the engine-driver's 
 failure to see and act on the conductor's signal. 
 
 Muma v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 444, 14 O.L.R. 147. 
 
 Collision— Death of engine driver — Disobedience to rules — Negli- 
 gence OF FEXLOW servants. 
 The deceased, an engine driver in the employ of the defendants, whUe 
 driving a train was killed in a rear end collision betwen his locomotive 
 and a train in front caused by his disobedience to rules, either in not 
 seeing tiie danger signal or if he did, in not 8to[)ping his train: — Held, (1) 
 that the engineer was the author of his own misfortune and his widow 
 
EMPLOYEES. 283 
 
 conld not recover danncBS iwnm the def^dants for his deatlu (2| Tbat 
 &e n egHpence of his fellov serruits did sot better the eoaditkn of the 
 cervaBt In faolt. 
 
 enddirk v. Cu. Fae. Rj. Ga^ 8 Cul St. Cas. 4S4. 
 
 COLUSIOS — DiSOBENCXCS <V BCXES. 
 
 Ill SB actica for dmmMgfB for the death of an en^iiie driver of the Graad 
 Trunk Bt. Co„ vho^e trmiii cane into collision vith a train of the defend- 
 ant raihray. it vas contended hr defendants that the aeeident happened 
 throi^^ the negligenee of the deceased in disobeying certain rules of his ent- 
 plojrenL Questioas were put to the jury as to the negliieence of the defead- 
 ants and contribotory negligawe of the deceased: — Held, that tliere most 
 be a nev trial, because the jonr &bould also have been asked vhether the 
 4**t i«g^ d had (4>eyed the mles of his employers applicable to the circam- 
 ■tanen nader vhich he vas placed at the time of the accident, and vhether 
 hoi for that disobedience the accident woold hare happened. It is for the 
 trial Judge to interpret such written rules of railway compaBie& subject to 
 this, that it is for the jury to determine the meanii^ of technical terns 
 used in them on tbe explanatory evidence offered. 
 
 Walker v. Wabash Ry. Co.. 8 Can. Ry. Cas. 487, IS OJ-R. 21. 
 
 XbGUGESCE of fellow SESVAXT VlOLATIOX or BBCn-ATIONS COSIMOX 
 
 KaOTI£DGE. 
 
 A railway company is responsible for an accident caused by reason of 
 the violation by its anployees of regulations made for the protection of all 
 and whi^ causes the death of one of them. It is barred from opposing to 
 an action taken in consequoice thereof that the fact complained of occurred 
 owing to an understanding between the employees concerned, especially 
 when there is no proof that the victim had a full knowledge of said under- 
 standing. Under the>e conditions, th^ie is no reason to quash the vodiet 
 which declares that there was fault and which determines the ■■iwl <rf 
 the damages caused. 
 
 Ladiance v. Can. Pac. Ry. Co^ 10 Can. Ry. Ca*. 16. 25 Que. S.C. 494. 
 
 f Affirmed in 42 Can. S.CJL 205. 10 Can.'Ry. Cas. 22.] 
 
 DlSOBEDIEXCl OF OKDEKS — WaLKIXG OIS SJDTXG ^AccniTXATIOX OF KNOW 
 
 A3n> ICE — Railway feoc xot packed — Cocnx\G levek oarecnre. 
 
 The plaintiff's husband, a brakeman. in the employ of the defendants, 
 vas acodentaUy killed while walking on a siding by being run over by one 
 of tte ears of the defendants. The negligeBce diarged was that ( 1 1 the 
 ^aiatiir was compelled to walk upon the siding, no way being left on either 
 side oa account of lumber being piled too dose: (2i> the siding had become 
 defcctite. unsafe and iuwiBhient hy 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 oiovii^r car. (2' 
 That the unsafe aad almost impassable condition of the said siding and 
 the defective constmetioB w conditioB of the coupling, if it was defective, 
 owing to the negligence of the defendants, were not the proximate cause 
 of the acadeat. (3) That the deceased took the risk of accident by dls- 
 obedienoe to the ordcn ot the defendanu. and no action for negligence 
 would lie. 
 
 Pettigrew v. Grand T^imk Ry. Co.. 13 Can. Ry. Cas. 118. 
 
 I:«JntT TO SDEVAXT OF CDXTCACTOB — ABSE-^CX OF StTEBTISIOX. 
 
 Rock filling in a bay for the protection of a railway ^nbankmcnt is 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. MeCormick, 8 D.L.R. 757, 14 D.L.R. (il3, 29 O.L.R. 319, 16 Can. Ry. 
 Cas. 173, and Penny v. Wimbledon, [1899] 2 Q.B. 72, distinguished; Hoie 
 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 tlie 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 
 ot^curred 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. [Grifiiths 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 ▼. 
 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 f.mployek. 
 An employer may stipulate with his employee that, in consideration of 
 
EMPLOYEES. 285 
 
 bjr the bttcr to am nsanuce sad froridai sorwtr fanwd 
 te aaict wrtaMB aad tkcir iawliK n case of imfmrj or dntli bjr acvi- 
 deal; ke «iD Mi he lidhle ia eouH|MBce of aa anidmfc saicnd Vr thr 
 ii fl ii j i i aad caawd tnr ike faalt of Ub iiwiiihijM. fjke Qwca t. Gna- 
 icr, 3* Caa. S.CJL 42, fBOamd.] Im tUs case l&e iasanace aad prarideat 
 sociecj vms k^aUr coaatitaicd. 
 
 Fof^asoo T. GtaJMi Tra& Rt. Col. 3 Cka. Et. Ck& ^». 3D Qae. SLC. »4. 
 
 [Reienvd to ia llilln- v. Gnad Tnuk Ky. Cou, ±1 Qw^ S.C. 3d0. 2 
 Caa. Rt. Ca*. 44». S4 Caa. SlCE. 7«-I 
 
 SimnL^nox exexftccg ExnoTnt rmm. ixikiutt roa xnsuocccc — &bht 
 
 OF ACTIOS OF VnOV SOT JUTECTHL 
 
 A laihraT coapaajr eaaaot stipolate i aiwaa iu fmat da^a^^fs caasrd 
 W a e g lert aad faflaie oa its part to tnmptf with a datr iapoeed oa it bjr 
 lav for the tmUtj of paiwafcin aad laiphHUiiy e^ cfaipaaeat of tW 
 «an Tith cCeicaft Irakcsy swfc stiyalKtiaai hc^ void wmker a. 3t3 of tW 
 Kaihrar Ael, 1888 (Bf Fagaado aad Canma, JJ.) :— The actioa of the 
 vidov aadrr Jkrt> 185S, CjC. IOmlH is aot a npiMmtatitt «ae, bat iade- 
 fL adta t of that «f the iajand pasaa; aad, t hmtfw e , evem if aa a gmia t 
 ■lipaliiiag iBHaaitr finaa mp— lilalllj far diwapi ca»cd hgr ac^- 
 •eacr were Talid as n^ards the iajand pcrw, it woaU aot hiad his 
 vidoar or other pera—K haiiag: rights mder the article abow aeatioaed. 
 Miller ▼. Gnad Traak Rt. Col, i Caa. Rt. Cas. 4«». 21 Qmt. S.C. SML 
 [A fctJ ia 1± Que. KJL 1. i CasL Rt*. Ca& «0: rrm^cd ia 34 Caa. 
 SJCJL 49; 3 Caa. Rj. Oul 141: instated ia [IMS] A.C. 1$7, 1^ Que. 
 K.B. IIS; coaaeatcd oa ia Jkn^trwa^ t. The Kiag. 11 Caa. Ex. 1±S-. 
 Staart t. Baak ai lioatraL 41 Caa. S.C.R. »43: followrd ia R. t. Am- 
 straap, 40 Caa. S.C.R. 24S, i EJ_R. 183: R. t. De:»ro«icrs. 41 Caa. S.C.R- 
 71, (fi F.T.R 1191: refcmd to ia FeipBoa t. Giaad Tmak Rr. Co^ 30) 
 QwL S-C. 75. ± Caa. Rt. Cks. 430; Moatreal Street Ej. Co. t. Briah^kr. 
 19 QacL KJL SS.] 
 
 CosTSACT Exxaimxc eupiotes nmM ■BsrassaKUTr roa accokst — Ptb- 
 hic TOLurs — Rkht of Acnox or vnov — ^Acnox sot CErsEScxTAnTE' 
 
 OXE — ^~IXSCMXITT OB &aXISFJMmOX.~ 
 
 A railaaT conpojir eaaaot. aader a ccatract bitatca its caphnve aad 
 aa iaaaraacr aad prorideat soeietT. ia cossidcratkiai of aa aaaaal sajh- 
 sctiptiaB to mch sorietr, be exraipted fraat Rspoa^ilHlitT for daaniees 
 caaacd \nr ac g lect aad failare' oa its part to coaiplT with a dntj iatpoecd 
 oa it br lav for the safetr of passcagvrs aad eaqdoncs. e^^ rqaip^MBt 
 of the ears with effirieat brakes,, sach stipalatioa bei^ vithoat effect 
 aader & 343 of the Railvaj Act, 18S8L Tke ri^ (rf tW vidov aad other 
 reiatiTes aader Art. 1Q6CL CC. (Qae.1. Is aot a reprcseatatiTv oMe, bat is 
 iadtpcadtat of that of the iajared perma; aad. thcrribre, mm if aa agine- 
 ■eaft at^alatiag i Mw a a iti frooa respoasilMlitT for daaages caased 1^ 
 faate loarde vcre valid as reganfe the iajand persoa, it voold be vithoat 
 effect as l eg aids his vidov or other pcrsoas hari^ ri^ts aader Art. lOSC 
 Aa agraeaMat eM a qitia g a party froak respoasilHlitT for dana^es caased 
 bjT his gross aegligcj ee, or fiaote loaide. is aall aad void, as heiag caatraxr 
 to priUie ovder. The vm1d^ "l a d fa itT or satisfactioa,^ ia Art. 105S. 
 imfify riiipiaiitk— bj the persoa respoBaibie for the daiaage saffend, 
 aad aoi a pa jta t aade aader a coatract vith aa iasaiaacv socictT. 
 
 Graad Tnmk Rt. Col t. Miller^ 2 Caa. Rr. Cks. 490, 13 Qoe. U. 1. 
 
 [Rervned ia 34* Cul S.C.R. 4a. 3 Caa. Ry. Cas. 147.J 
 
286 EMPLOYEES. 
 
 Dkkkcts in machixery — Contract indemnifying employer — Indemnity 
 and satisfaction. 
 
 'riie "saiider" and sand valves of a railway locomotive, which may be 
 used in connection with the brakes in stopping a train, do not constitute 
 jjart of the "apparatus and arrangements" for applying the brakes to tlie 
 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. [Tiie Queen v. Grenier, 30 Can. S.C.R. 
 42. 2 Can. Ky. Cas. 401), followed.] 
 
 Grand Trunk Ry. Co. v. Miller. 3 Can. Ry. Cas. 147, 34 Can. S.C.R. 45. 
 
 L. Independent Contractor. 
 
 Independent contkactor — ''roKTious 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 Imrrowing earth for embank- 
 ments from a place, and in a manner, not authorized by the contract. 
 
 Kerr v. Atlantic & N.VV. Ry. Co., 25 Can. S.C.R. 197. 
 
 [Applied in Croysdill v. Anglo-American Telegraph Co., 10 Que. P.R. 37; 
 Lavoi v. Boaudoin, 14 Que. S.C. 254; Montreal v. Montreal Brewing Co., 
 18 Que. K.B. 40(5; Prfefontaine 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 eiiployeu — 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 liabh' 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 siiould reasonably liavc 
 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 tlie 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 aliglited 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 the car, while in motion, came 
 
EMPLOYEES. 287 
 
 in contact vitli a track standing on t^ platform and was injured. Tbe 
 art* of m>«Ii<!e«<^ complained of were (1» the presence of the truck: (2» 
 inviting tbe appellant to board and starting too ^<mmi: <3i appliances for 
 boardin«r the train tmperfert and oat of repair. The respondents contend- 
 ed that there was no negligence on their part, bat that the appellant was 
 gniltT of contrihotorr negiigencv^ in attempting to board tbe train when 
 in motion, having al^hted and remained on the platform oat oi mere idle 
 cnrio»itj until the train b^an to move: — Held, fli affirming the judg- 
 ments of the trial Judge and the Court of Appeal for Ontario, that the 
 true po^itioa of the appellant was at the best that of a mere U«;ra?ee. 
 (2t That the respMident owed no dutr to the appellant who knew of the 
 risk and deliberateh- aec^ted it. 1 3 1 That there was no evidence to shew 
 how long the truck had been left on the platform or who put it there nor 
 was there in any respect. nrgligenc«- in this regard for which the companr 
 was liable. 
 
 Perdne t. Can. Pac. By. Co., 12 Can. Ry. Cas. 216. 
 
 Is JtrBT TO EMPLOTEE OF COXTmACTOB WfTH BAItWAT COtTPUXe CASS. 
 
 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 f-trs 
 hr the company's employees. An employee of an independrat contractor 
 engaged fay a railway company to fencv its right-of-way does not assume 
 the risk of being injured while at work in a ear. throi^h a n^igently 
 ▼iolent coupling of cars by employees of the railway company. A contract 
 to fence a railway company's rieht-of-way, in which the contractor far- 
 ther agreed to indemni^ the railway company against claims for injury 
 to persons or property "occasioned in carrying on the work." entitks the 
 ei^pany to indemnity against a claim of an employee of the contractor 
 for injury received while at work in a car catised by a negligently viok^nt 
 coupling of cars made by the railway company's employees^ 
 
 Walker v. Can. Northern Ry. Co., et aL, 11 DX-R. .^. 18 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. ±nd ed., 
 121-1 
 
 IssEcrsE Bsxmac fole — Ixji-«t to se«tast of i^tncPEXDKyr covivactok. 
 
 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 
 smtained by one of the latters liiervants by the falling of an insecure pole 
 on 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. [Mamey v. Seott, [1899] 1 Q3. 986; Valiquette t. 
 Fraser, 39 Can. S.CJL 1. and Canada Woolkn Milk v. Traplin, 3a Can. 
 SlC.R. 424, specially referred to.] 
 
 Velasky t. Western Canada Power Co. «B.C.», 12 Di.R- 774. 
 
 M. Injuxies hy Employees. 
 
 ASSACXT BT WATCHMAN OS TBESPASSIXG 1.H1LDKEN SCOPK OF EVPIjOT- 
 
 MEXT. 
 
 A watchman was employed by the defendants to lower bars or gates 
 aeross the highway at each side of a crossing on the approach of trains. 
 and to rai^e 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. 
 
 tlie watchman was prevented by their weight from raising tlie 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 assault by foreman — Scope of employment — Liability of 
 
 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.I., that thougli 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 
 
 l it- i Bd tkmt vtimg aoA m. moiit could save tine; aad that W. was iajnred 
 l|^ caafaKBO^ to aa orier to go to a daagerou place, tlw pergoa gniog 
 tiie Older hamg guUj <rf ne^ttgemet. [30 AIL (Oat.) 328, alfinuag 23 
 OJL 436, affimed.] 
 
 Gnad Tnmk St. Co. t. Wec^ar, 23 Can. &C^ 4^2. 
 
 Ixjrar to coxvccioa — Cossiarcnox tbjux — 'MxsmmBcrtayr. 
 
 Ib an action for personal iajiuies to tlie condoctor of a coBstmrtion 
 train resoltiBg from a nia^ of a grarrl-^naduig nadune <^wratcd br air 
 prrs^ntv, eamumg down npoa kw, eanaed by the eagneer in <^ai«r oif tlie 
 madiine vnintationalfy starting it bj stiiki^ kia his knee against the 
 handle of a lalTv nsed to aet it in Botian ^kHe at ttnmt ii^ to get closer 
 to the air gauge, a statonent br a vitneas that the engineer niost hare 
 been cWaibing np the machine, together vith tte eridcnee tiwt tte Tahre 
 vaa from, tmo uti a half to three feet abocie the slot where the engineer 
 «as wtnnding, would justify a suggestion in the trial Judge's daige that 
 the c^ineer m^kt have touched the vah-e with his knee nkile eliMliii»g 
 np the »««<*iii> to get a neater view of the »aiige. 
 
 Tolna T. Can. Pac Rj. Co„ 2 DX.R. 173, 20 WX^ 676, 5 Sa±. LR. 
 SSL 
 
 Xbgxkxsce of fobexax — CoxTsiBirroKT xBaJGSxcE or sskvaxt. 
 
 The plaintifr was injured while in die aerriee of tte defendants, aad 
 k i O Hght this action for damages for his injury, alleging mgligeae e. In 
 answer to qoestians. the jury found that McX. was a person in the aerr- 
 ice of the defrndantf to whose orders the ^aintiff was, at the time of the 
 injury, bound to conform: that McX. gave the plaintiff orders (spe cif* ii ^ 
 the ordersi : that the plaintiff eoaformed to those orders: that injury 
 resulted to the plaintiff from so eovforming; that negligence on the part 
 of X. canned the injury (^lecifying Che Begl%eBcei» : and that the i^ain- 
 tiff, fay the exnvise of -reasonalde care, m^ht have aToided the accident. 
 The jay were not asked in what r e sp ec t the plaintiff omitted to take rea- 
 aonaUe care: — Held, that it was not necessary to ask that question, there 
 bei^ evidence upon which the jury might find that the plaintiff was guilty 
 of negligeBce or cootributorT negligence; aad that, upon that finding, 
 •supported by the evidence, the action should he dismissed. {Jjomdom Street 
 By. Col t. Brown, 31 Can. S.C.R. 642, f<rflo«ed.] 
 
 Shoadra r. Wiimipeg Eke. Ry. Co., 19 WXJL 13 (Man.). 
 
 [Reversed in 19 Wi.E- 578.] 
 
 XbOU^SIXCE of FtMKMA2( COXTKIBCTOKT XBGUGEXCE. 
 
 The judgment of Robson, J„ 19 WXJK. 13, upon the findings of a jmr, 
 diamiasing the action, was set aside, and a new trial directed, npoa the 
 giunad that the fiading of the jury as to contributory n e gligunj e was 
 ■t. 
 
 T. Winnipeg Elee. Ry. Co„ 19 WX.R. S78 (Man.). 
 
 TeXDICT AGATJCST KAH-WAT Ft* XBGUGEXTtT CACStSG DEATH ABSE:\CS OT 
 
 EviDcxcK TO scTPonr jinr's rnfrnxc 
 A Terdict 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 
 lo com otive that was ^opelli^ a snowpk»Ujzh. cannot be sustained where 
 there was no evidence tending to support the jury's findi^ that his death 
 was due to the negligence of the railway company in o p era tin g the plough 
 ander a defective systcas 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 
 dne 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 jtry. 
 
 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 bailwat 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- 
 pealed from (8 Alta. L.R. 363), Duff and Brodeur JJ. dissenting, that the 
 delivery of the receipts in advance of payment afforded means of inducing 
 the defendants to pay over the amount represented by them to their agent 
 and, consequently, the plaintiffs were estopped from denying actual receipt 
 of payment of the freight charges. — Per Duff J. dissenting. In the cir- 
 cumstances disclosed by the evidence in the case the principle of estoppel 
 could not be applied. [Gentles v. Can. Pac. Ry. Co., 14 O.L.R. 286, dis- 
 tinguished.] 
 
 Continental Oil Co. v. Can. Pac. Ry. Co., 52 Can. S.C.R. 605. 
 
EXPROPRIATION. 291 
 
 EVIDEHCBL 
 8bb KifiiMtt ti— (BL): ncadij^ aad Pndiee. 
 
 See G vnim mtmt Baihsajs: ■Jarkdictiai. 
 
 EXBCunoor. 
 
 Sec SaJe and Fofrcdosnre 
 
 ExeentioB lien aifectii^ title to tands, sec Title to T.«»<h 
 
 OiBBS or Bcax* mkectixc patmett kt covpaxt to hcxicipai. ookpoka- 
 Tiox or TAXT cr COST or bbidce — Obdcs sluic bcxc or Cocvr — ^Issck 
 n. FA- — ilemos^ to stay exbcttio^ — Jcm mwcu ox or Sttbeme Coctt 
 or Ottawo — -Jr«i<DicTiox <w Boakd — Sale or "^fcbuc mtxrr"' rx- 
 
 ■QB EXECmOX — POVEK OF DOHTXIOX TO AOOTT MACHIXEXT OT FSOVIX- 
 OAL. GOCKTS COTTBOL Or FBOVIXriAL COCSTS OTEX OBDCSS OT BOAKD 
 
 — Fesautt or oBDcx OP BoABD — UxooxurnoxAi. DnrEcnox pok rAT- 
 MKxr — Foui or odes. 
 Be Toronto and Toroato Rjr. Col, -6 OX^ 8S. 43 DXJL ?». 
 
 OHS. 
 
 lCrp—|itinM fiaai taxatifw, sec AtataBmemt aad TaxatkM. 
 See liaitatioa <rf Liability; EBp1c7«e&. 
 
 Bcgdatioa by Board as to the carria|^ of rsfio^rea, see Bailvay 
 Baud. 
 
 Kifwie of cxploffivcs to ehiMrpn, see Xc^i^eaetL 
 
 inrFBigw compahieSl 
 
 See Aasesaamt aad TaxatioB; Carriers of Goods; Oalan (B) ; Tolls 
 aadlkrib. 
 
 Sale of »nfr orders, see Jk^entsu 
 
 Ttm m afimtMikm of liqoor, see- Crimes aad Offaecs; Gurien «f Goods 
 
 SZFBOFBIATIOH. 
 
 A. la GcBCxaL 
 
 B. AititntiaB and Avaid. 
 
 C. Ci^ip Ilw. Measne oC 
 
 D. Water K^kts; FWeakfOKe. 
 S. Gravd aadl TfHhcr. 
 
 F. Hi^wajs; I H i euiU B. 
 
 0. Baitway Lands; 
 BL FiiwiMMj Bights; 
 
 1. amwwfmtmt. 
 
 J. Jjoeaaym; Plans; DevixttaB. 
 
 I.. Coats. 
 
 Appeal fr«ai award of aztutratioB, see Appeals. 
 
292 EXPROPKIATION. 
 
 Expropriation for Crown railways, see Government Railways. 
 
 Lands acquired by contract, see Title to I^nds. 
 
 Injunction in default of compensation for interference with access to 
 bridge by reason of railway crossing liighway, see Injunction. 
 
 Measure of damages for injuries to land, see Damages. 
 
 Jurisdiction of County Court to award damages for trespass to lands 
 involving dispute of title, see Jurisdiction. 
 
 Support of land by minerals, see under (C) above. 
 
 Evidence of value, see under (C) above. 
 
 Interest on awards, see Interest. 
 
 Jurisdiction of Board respecting Provincial railway lands taken by 
 Dominion railway, see Railway Board. 
 
 Annotations. 
 
 Taking of lands for railway purposes and compensation therefor. 1 Can 
 Ry. Cas. 484. 
 
 Provincial legislation affecting awards, interest, costs, and filing plans 
 3 Can. Ry. Cas. 120. 
 
 Expropriation of lands of another railway company. 3 Can. Ry. Cas. 
 180, 13 Can. Ry. Cas. 134. 
 
 Remedy of landowner for taking lands under expropriation. 3 Can. Rv. 
 Cas. 393. 
 
 Lands injuriously affected by the construction and operation of a rail- 
 way. 4 Can. Ry. Cas. 33. 
 
 Notice of expropriation. 5 Can. Ry. Cas. 28. 
 
 Expropriation and compensation, (i Can. Ry. Cas. 131. 
 
 Right of compensation by occupant of land under possessory title. 6 
 Can. Ry. Cas. 180. 
 
 Appeal from award. G Can. Ry. Cas. 190. 
 
 Conduct of arbitrators. 6 Can. Ry. Cas. 194. 
 
 Payment of compensation into Court. 6 Can. Ry. Cas. 202. 
 
 Expropriation of mines, the power to expropriate and compensation. 6 
 Can. Ry. Cas. 217. 
 
 Damage resulting from the exercise of corporate powers, and the right 
 of recovery. 6 Can. Ry. Cas. 365. 
 
 What constitutes an interest in land or lease, and the loss of profit and 
 injury to business, goodwill, liquor license, etc., entitling to right of com- 
 pensation. 6 Can. Ry. Cas. 404. 
 
 Validity of award exceeding powers of arbitrators. 7 Can. Ry. Cas. 343. 
 
 Statutory power of Board to order railway company to acquire lands 
 within a fixed period. 12 Can. Ry. Cas. 91. 
 
 Compensation, and payment of to proper party. 13 Can. Ry. Cas. 411. 
 
 Compensation to abutting landowners upon construction of railway upon 
 highway. 14 Can. Ry. Cas. 199. 
 
 Taking by Dominion railway company of lands of Provincial railway 
 company. 18 Can. Ry. Cas. 144. 
 
 Reasons for award required from arbitrators. 16 Can. Ry. Cas. 77. 
 
 Lands dedicated to public use. 18 Can. Ry. Cas. 442. 
 
 Injuries caused by taking lands. 20 Can. Ry. Cas. 109. 
 
 Arbitrators reasons for award. 21 Can. Ry. Cas. 332. 
 
 Compensation for special adaptability to owners business. 21 Can. 
 Ry. Cas. 349. 
 
 Power of Appellate Court to remit award to arbitrators. 21 Can. Ry. 
 Cas. 413. 
 
 Jurisdiction in appeals from awards. 21 Can. Ry. Cas. 381. 
 
EXPROPRIATION. 293 
 
 Pktoperty caqpmpriated ia eaiacat doaaia proncdii^s^ ■tasaic of eo^ 
 pmaatiaii. 1 DlUR. 508l 
 
 A. b GcBoaL 
 Phkixciai. mmjc laxvs. 
 
 The FirliaawBt of Guuda has power to affrnfiriate provncial pablie 
 laads for die pmrposcs erf a nihrar eouectuigr tvo or more proriaees. 
 
 Attoner-GcBaa] (BlCLl t. C^JK. Co^ U B.CJS. 389. 
 
 [Rrfernd to in At«x.-G«nal x. Rnffner. 12 B.CJC 901, iaikvwed in 
 Ladmev Jaeqfun Gazticr, etc., Br. Co. v. Moatzcal TraMtrnwafng cCc^ fij. 
 Cool, 18 Gu. St. Ca& ISX] 
 
 I.AXB OV;XXB AXU rSE» BT KirSICIPAI. COSrOKJiTIOXS. 
 
 Uado- s. lis. 139 of the Bailwar Act. 1903. lailwaT conpaues an; 
 expcvpriafe the laads of Binleipal corporatioas med br than for ■nuei- 
 pal parpoBts. 
 
 Re Grand Tnmk St. Co. and Ste. Henri and Ste. Cautgondt, 4 Cka. St. 
 Casw 277. 
 
 SnEET KAILWAT — ^ACQCISTTIOX flV UkXB FO^ CAM 9JkMSS. 
 
 The Toronto St. Co^ vhich has ao powers ci expropriatiaa, acquied 
 hf pnrehase froa the owacrs coiaia land in a residential localitT, ob 
 which thcj proposed to erect car haras, hei^ a porchase aathoriaed hf 
 the ajEReawat with the city, as Talidatcd hj 53 Viet. e. 90 (Oat.) aad 
 salnaitted l&e plaas to the eitr for its ai^oraL whereiqiaa a petitim was 
 pRseaAed to the Board irf Control, bjr the readeata of the kxalitT, asfcii^ 
 th? iaterrention oi the eitr a^aiast sack p ropoae d nse of the laad, as 
 well as against the larin^ of tradka on certaia stnet^ as a awaas of ac^ 
 eess to the bams, whi^ was l e fer re d to the eorpontioa's omasd f<M- his 
 e^inion as to the city's powers. The eitr had at that tinw onder eon- 
 sidcration the aapusitiaB of a specified block of land in flie loealitT for 
 pnik patpancB, hot safaaeiiaentfy to the presentatioa of the petitiaa the 
 Faris aad Gaideaa Cnanuttee iiiiiMiaihd the ^propriatioB <rf the cob- 
 ponTs land for soeh parpooe, aad iiaili i their i aati a rti oas a br-Iaw there- 
 for was drafted br the eitT solicitor. Oa the auitter coau^ before the 
 coonril, the lUiiaiaaadBiMai was strack out and the <|aestioa of p i ue uii^ 
 park lands referred hack to the coaiBitter. and oa the following dar, bat 
 after the plaintiffs had coauaeaeed this aetioo. the arthitect was iastmcted 
 by the Board aot to deal wh^ the plans, pcndia^ the resolt of the pro- 
 posed expropriatioB proccedii^^ Tb<t>Te was aothiap to shew that the 
 coarse parsoed hr the city was not actuated by good faith. In a actica 
 daJMing a derlaratory jndgment of the conpany^s ri^t to so use th# 
 laad: — Held, that while thoe was nndoabted power in the Coart to grant 
 drriaratagy jadgneats it was a discretioaary power; and that in thi« 
 case, the exercise <rf the discretiiMi by the trial Jodge. ia refosiap to grant 
 sbA a jodgainit, woald aot under the ciraun^tances be iaterfered with 
 
 Torcato Ry. Co. t. Toronto. 13 OX-R. 53±. 
 
 lyrtanaESCE wtth EXPaontUTiox — Peitati: KicHT-cr-WAT. 
 
 In an action by a railway company, which had the ri^t to expropriate 
 the land in di^Mite. to restrain the defendant from interfoing^ with tht 
 eoarstnietioa by the coiapaay of its railway acToes a certaia road, in whieb 
 aetioB a coaaterrlaini was aade by the defendant for a dedaratioa oi hn 
 li^A to the road as a private way aad for an injnnetiaa lestrainii^ th« 
 et^qtany frtm trespassi^ thereon, the ex parte injonetiaB granted th* 
 eonpany shoold not be diaaalrcd and the injunctiaa awarded the d^ead* 
 
294 EXPKOPRIATIOK 
 
 ant upon the merits in accordance with liis counterclaim should not be 
 made operative until an opportunity is given to the company to take ex- 
 propriation proceedings. [Sandon Water ^^'orks «S: Light Co. v. Bvron 
 N. White Co., Sfi Can. S.C.R. .300, followed.] 
 
 Can. Northern Ry. Co. v. Billings, 5 D.L.R. 455, 3 O.W.X. 1504. 
 
 Additional, lands — Railway yakds. 
 
 Under the provisions of s. 178 of the Railway Act, 1906, giving the 
 Board the right to give a railway company permission to take more land 
 for railway purposes than they are entitled to take under subs, (b) of s. 
 177 of the Act, providing that tliere may be taken for stations, depots, 
 etc., an area one mile in length by 500 feet in breadth including the width 
 of the right-of-way, if such additional land is shewn to be "necessary," 
 the word "necessary" should be given a liberal construction. (Dictum 
 per Brown, J.) 
 
 Prince Albert v. Can. Nortliern Ry. Co. (Sask.), 10 D.L.R. 121, 15 Can, 
 Ry. Cas. 87. 
 
 Compulsory expropriation — Mandajius. 
 
 (1) A written offer to sell, land on certain terms, accompanied by an 
 intimation that, if the purchaser takes possession, the vendor would treat 
 that act as an acceptance of the offer, and the subsequent taking of such 
 possession, without further communication with the vendor, together con- 
 stitute a binding contract of purchase and sale of the land, which is taken 
 out of the Statute of Frauds by that act of taking possession, such act 
 being in itself a part performance of the contract, as well as an essential 
 in the making of it. [Carlill v. Carbolic Smoke Ball Co. (1803), 1 Q.B. 
 256, followed.] (2) If there had been no contract between the parties 
 respecting the land taken by the defendants for their right-of-way, the 
 plaintiff would have been entitled to the alternative relief claimed by 
 way of mandamus to compel the defendants to proceed to have the com- 
 pensation determined under the provisions of the Railway Act. (3) Relief 
 l>y way of mandamus may now, under Rule 870 of the King's Bench Act, 
 be obtained by an action. [Morgan v. Metropolitan Ry. Co. (1868), L.E. 
 4 C.P. 97, followed.] 
 
 Carr v. Can. Northern Ry. Co., 7 Can. Ry. Cas. 258, 17 Man. L.R. 178, 
 
 DtTTY OF COMPANY TO TAKE LANDS. 
 
 A railway company, in its requirement of right-of-way, included, inter 
 alia, land in which the plaintiff had a lease-Iiold interest, bvit the right-of- 
 way was at no time wholly upon the plaintiff's property, the greater por- 
 tion being upon adjoining lands. The company, without proceeding to 
 arbitration, acquired the interest of the plaintiff's lessor, and built its 
 road clear of but adjoining that portion of the indicated right-of-way 
 over the land in which the plaintiff was interested. In an action to com- 
 pel the company to acquire and pay for the right-of-way as indicated, 
 the company contended that it could be compelled to pay for only that 
 portion of the right-of-way whicli it actually took possession of, and 
 Irving, J., at the trial, dismissed that contention and held that the plain- 
 tiff was injuriously affected by the construction and operation of the rail- 
 way: — Held, on appeal (Martin, J.A., dissenting), that the trial Judge 
 was right. 
 
 McDonald v. Vancouver, Victoria & Eastern Ry., etc., COi, 12 Can. Ry. 
 Cas. 67, 15 B.C.R. 315. 
 
 [Reversed in 12 Can. Ry. Cas. 74, 44 Can. S.C.R, 65.] 
 
EXPROPRIATION. 295 
 
 JlCnOS lO COMFIX ■AF B OfM A'CTPX — COMTCSSATIOX. 
 
 The- auroral asd regtstntioB of piaii&, etCL, ai At located area of the 
 i^gktrof-vaj. nadcT tke pronstoas of the Railway Art, 1906, and the sob- 
 A«nBmt coBstmrtkn aad «iperatkMi of a lailvaj aloag audi area, do aot 
 icada- the lailwav tomfmmj lialide to ■afdaiwn* <wderia^ the cxivi^ria- 
 tim of a portioi «tf the laiid^ >hen i^ob the plaaa vUch has sot beea 
 pfafskaltjr occufMed bf tibe penaaaeat var so constraeted and floated. 
 J a d fef t appealed fran, 12 Ota. Rr. Ca&.*67. 1^ B.CJL 315, i^Toraed, the 
 Chief Jostice aad Daries, J^ distjcvtiag. 
 
 Vaacoorer. Yletoria k Eastera Ev_. ete^ Co. r. McDoaald, 12. Gaa. Sj-. 
 Cms. 74, 44 Can. SXJR. 65. 
 
 L&3CD6 FCT TO prWJC rSE — PaOTtXCIAI. STATCTK. 
 
 Laads dedicated to a poUie me nadH* a |»oTiadal statute but be ex- 
 propriated nader the Bailvajr Jkct iar lailvaT purposes. 
 
 Lachiae. Jacques Cardo^. cte^ By. Co. r. Montreal Gas Cou, 18 Caa. Rj. 
 Cms. 43& 
 
 QCEBBC STATCTE — ReTWIACUTEMESS. 
 
 Bt the Qoefaee Act of 1912, 3 Gcol V. e. 42, the aibltratioa ia the aiatter 
 of ei jw ru pi iatioa Ij zaihrav coatpaaies is abolished aad replaced bj aa 
 caqinMe befwe a iodge of the Sopericn- Coort, but this Act has ao re- 
 troactive effect, aad does aot apphr to aa arbitiatioB started before Deccan 
 ber 21, 1912. the date oa vhich the Aci vas brooght iato force. 
 
 Gixatd T. Ha-Ha-Baie Ry. Co_ 47 Que. SlC. 325. 
 
 B^ AihitntiaB asd A.'wd. 
 ArrmAiSE3ix:xT or laxds — Okdeb to set asdc rwocEBXSGS — E^iotfu. 
 
 This vas aa applieatioa to the Supreaie Court of Xova Seotia askia^ 
 it to set as^ide. ia a anaaiarT ataaner. the vIm^ apjvaiseiaeBt of laad 
 daanife» avaided to be paid bj the conatj to the several proprietors of 
 laads ia Pictou couatr, vboise laads had beta expropriated for the liae 
 of raihnT extending fiom Xev Glasvov. ia Pictou conntr. to the strait 
 of Caaso. aad kaowa as the Eastern Estension. Tlii^ appraisement «a5 
 aude oa the aasuaiptiaa that nader the contract with the Xora Scotia 
 G oy en n aeat for the coastmctioa of this liae of nulvay and the statatea 
 relatiag thereto, aad. profiidiag f<M- the expropriation of laads for right til 
 anar. ^c appraisement of danu^es or < laajw mii itioa to the proprietiH^ 
 aad pajneat thereof, the r^it-of-waj was fimiished to the conpaar free, 
 aad the conpeasatiaa for land daanges was to be paid afto- appisiwiat 
 ia the anaacr i»cseribed br the Custos of the rarious conaties thioogh 
 which the liae raa issui^ debentures for the aaMMmts doe to the proprie- 
 tois, which defaeatares were to be redeemed br awans of local taxation. 
 Before the Provincial GorenuMnt of Xora Scotia had entetvd into the con- 
 tract for the construction of the Eastern Extension line, aad while thej 
 were aepitiating theivfor, the Nora Scotia legislature, on the 4th ApriL 
 1S76. passed c 3 <^ theActs of 1S76. to enable the Gorenuaent to enter 
 iato a coatraet for the CMtstmetioB of this line of railway, aad made provi- 
 sion therelnr for the pajiaaat of a subsidj aad grants <rf laad to tbos«- nn- 
 dcrtakiag it, aad fw the expropriation of land for the right-of-war for the 
 line. Oa the same date e. 74 of the Arts of 1S76 was paawd, and. ia or- 
 der to iaeorporate aad give aar contractors whose tender for eaastractiaa 
 dhonld thenafto- be accepted the same corporate powcss aad jmrikges as 
 thi»e aMatioaed in c^ 74, s. 4 of the Acts of 1876 was passed. By s. 36 
 of e. 74, aad abo fay a. 6, e. 3, Acts of 1876, certain ss of e. 70 of the 
 Revised Statutes, third mxum, are iacorporated ia these enactaa^ts aad 
 
296 expiu)Pkiatio:n. 
 
 made applicable to this line of railway, which sections more particularly 
 relate to the mode of acquiring lands for the right-of-waj', stations, etc., 
 the procedure for appraising damages, and the mode of assessing tlie 
 various counties for the payment of the amounts awarded. C. 70 Revised 
 Statutes, third series, comprises in consolidated form all enactments in 
 force in Nova Scotia at that date, relating to provincial railways. For 
 convenience the various railway companies in Nova Scotia, such as the 
 Windsor & Annapolis Ry. Co., the \AX'stern Counties Ry. Co. (see c. 34 
 Acts of 1868, c. 81, Acts of 1870), have, in obtaining their acts of in- 
 corporation, availed themselves of similar clauses from c. 70, Revised 
 Statutes 3rd series, by express enactment, without repeating them in the 
 Act or providing other machinery for the expropriation of lands, and the 
 ascertaining of land damages. When the Revised Statutes, 4th series, was 
 prepared, certain Acts of the province not re-enacted were continued in 
 force, and among them so much of c. 70 of the 3rd series as was therein 
 specified. (See the Act to provide for tlie publication of the Consolidated 
 Statutes, 30th April, 1873, Revised Statutes, 4th series page 2.) Mr. 
 Abbott, having entered into the contract with the Government for the 
 construction of this line, sought, under c. 4 of the Acts of 1876, incor- 
 poration and the benefit of the provisions of c. 74, Acts 1876, and obtained 
 a certificate of incorporation under the name of the Halifax & Cape Breton 
 Ry. & Coal Co. The company was organized under this Act, and the right- 
 of-way having been obtained under the statutes, the damages were ap- 
 praised and the work of construction began and was carried on. In 1877 
 an order was made by the Chief Justice of the Supreme Court of Nova 
 Scotia, on the petition of a number of the property owners whose lands 
 would be affected by the building of the railway, directing the prothono- 
 tary of the county to draw and strike a jui-y, under the provisions of c. 
 70, of the Revised Statutes, third series, to appraise the lands and prop- 
 erty taken for the purpose of the Eastern Extension Ry. In 1878 a rule 
 nisi was taken to set the whole proceedings aside, but a year later it was 
 discharged on motion of the party who had obtained it. A question having 
 been raised as to the validity of the incorporation of the company under c. 
 4, Acts of 1876, by the Local Government, and legislation being about to 
 be passed to remove such doubts, another rule was obtained in 1879, on 
 the ground that the Halifax & Cape Breton Ry. & Coal Co. had no legal 
 existence. After the argument of this rule, and before the judgment, cc. 
 60 and 70 of the Acts of 1879 were passed by the Legislature of Nova 
 Scotia. After hearing the Custos of the county by counsel before a com- 
 mittee of the Legislature, two sections of the Act were added in th inter- 
 est of the county. The Supreme Court of N.S. held that the county of 
 Pictou were estopped by those statutes last mentioned from disputing the 
 appraisement of the lands taken, and by their act in issuing debentures 
 to parties to whom damages had been awarded for the lands appropriated 
 to the railway, some of which had been indorsed to third parties. (See 
 1 Ru9S. & Geldert, 448.) On appeal to the Supreme Court of Canada: — 
 Held, that the judgment of the Court below was not one from which an 
 appeal would lie, there being no finality about the order made by the Chief 
 Justice of the Court below in 1777, which was what this appeal sought to 
 set aside. 
 
 Hockin v. Halifax & Cape Breton Ry. & Coal Co. Cass. Can. S.C.R. Dig. 
 1893, p. 423. 
 
 Aebitbation — Award — Matters considered by arbitrators. 
 
 A railway company, having taken certain lands for the purposes of their 
 railway, made an offer to the own«r iu payment of the same which offer 
 
EXPROPKIATIOX. 297 
 
 warn ■ot aeecfficd and the Matter was l e tai ed to aiWfraiiini ■mmiter ikt 
 GaMofidatcd Baflvar Act, 1879. Oa tlie dar Oat the aiVtrators aet 
 tke tamfmmj csieratcd aa ayitita t fn' a crois!<^i]i|; orer tbe said laad. in 
 addJHwi to tte bmmct pajnea^ and it appeared tliat the arlMtrators took 
 Ae a m t ter of tke uu a a^g iafto eoaBderatioa in aukia^ tlior avard. Tbe 
 aaMnnt of tte award araa leas ttaathe sona offeivd br the ronpaaT. aad 
 haA parties danaed to be eatiUed to the costs of the aiiMtratioB, the 
 emapaay because the award was less thaa their offer, and the owaer be- 
 caaae Ae value of the erosni^ was lachided ia the som awarded which 
 wovld sake it fmter thaa the offer: — ^Held. afiraung the jod gana t of 
 the Goort of AppeaL and tbe jo^^Bcat of the Divisional Court, 5 OJR. 
 S74, Gwynae. J^ dissenting, that uder the ciranastaaces neither party 
 was entitled to costsv [Appeal diaaiiiwed with eost& 5 OJR. 914, afirmed.] 
 Ontario t Qoebec Bt. Co. t. FhUhrick, 12 Can. S.CJR. 28S. 
 
 AwABD — ^Vaumtt of — ^DEScaxpno:c or i^ysn. 
 
 The plaintiffs, joint owners of land in the eiir of Qnebee were awarded 
 SlljSOO under 43-44 Vict, e^ 43, s. 9. for a portioa of $aid land expto- 
 priated for the X^. Kj. Co. and bfoii^ b t aa action agaiast the conpaay 
 based on the award. The coMpaay not baring pleaded, foreelo«urp was 
 granted. The notice of o^opriatioa and the award both described the 
 land expropriated as Xo. 1, oa ftc plaa of the railway eooipany deposited 
 aecotdiag to law, but in anotho- part of the notice it described it as 
 fomung part of a cadastral lot 2345, and in the award as forming part of 
 lots 2344-2345. Judgnwnt was nadcved for the anraont of tbe award. 
 From this judgment tbe raUway iiwapaay af^tealed to the Court of Queen's 
 Bench and that Court reversed the jo^^BMnt of the Superior Court, hold- 
 ing inter alia tbe award bad for nacertaiaty, and that tbe case should be 
 aeat back to tbe Superior Court. On appeal to tbe Supreme Court of 
 Oi—lll, it was: — HehL reversi^ the judgment of the Court of Queen's 
 Beac^ tikat there was no uncertaiaty in the award, as tbe words of tbe 
 award and notice were sufficient of tbeanselves to desrribe tbe property 
 intended to be expropriated and which was valued by arbitrators. 
 
 Beandet et aL v. North. Shore By. Co., 15 Can. S.C.B. 44. 
 
 [The Privy Council refused leave to appeal in this ease, 10 Can. Gaz. 
 463. Followed in Wynnes v. Montreal P. i L By. Co., 9 Que. Q3. 497.] 
 
 AwASD — ^Akbtikatoks — Jt-Mswcnox or — Laxds rsjtiuorsLT aitbctes. 
 
 In a railway expn^riation case the respondent in naming bis arbitrator 
 dedand that he <m]y appointed him to watch over the arbitrator of the 
 emnpaay, but the eompany recognized him officially and subsequently an 
 award of $1,974.25 damages aad costs for bad e x pr opriated was made 
 under Art. 5164, R.S.Q. The *1t wad far expropriation as formulated in 
 their notice to arbitrate bv the appellants was for the width <rf their 
 track, but tbe award granted damages for three feet outside of the fences 
 on each side as being valndeas. In an action to set aside the award: — 
 Held, affimung the judgment of the Courts bekiw, that the appointment 
 of respoadenfs arbitrator was valid under the statute and bound both 
 parties, aad that in awarding damages for three feet of land in jui iw i aly 
 affected on each side of the track the arlntrators had not caeeeded their 
 jurisdiction. Strong and Tsscherean, JJ., doubted if the amount in con- 
 troversy was sufficient to give the Court jurisdiction to bear the appeaL 
 the amount of tbe award being vnder ^000, and to auke up tbe appeal- 
 able aaMHmt, either iatcreat aeeraed after the date of the award and after 
 
298 EXPROPRIATION. 
 
 action brought or the costs taxed on the arbitration proceedings would 
 liave to be added. 
 
 Quebec, Montmorency & Charlevoix Ry. Co. v. Mathieu, 19 Can. S.C.R. 
 42G. 
 
 [Distinguished in Dufresne v. Gu^vrement, 26 Can. S.C.R. 219.] 
 
 Enforcement of award — Aduitioxal interest — Confirmation of title. 
 
 On a petition to the Superior Court, praying that a railway company 
 be ordered to pay into the liands of the Prothonotary of the Superior Court 
 a sum equivalent to six per cent on the amount of an award previously 
 deposited in Court under s. 170 of the Railway Act, 1888, and praying 
 further that the company should be enjoined and ordered to proceed to 
 confirmation of title, with a view to the distribution of the money, the 
 company pleaded that the company had no power to grant such an order, 
 and that the delays in proceeding to confirmation of title had been caused 
 by the petitioner who had unsviccessfully appealed to the higher Courts 
 for an increased amount: — Held, reversing the judgment of the Court 
 below, that by the, terms of s. 172 of the Railway Act it is only by the 
 judgment of confirmation that the question of additional interest can be 
 adjudicated upon: — Held, further, that assuming the Court had juris- 
 diction, until a final determination of the controversy as to the amount 
 to be distributed, the railway company could not be said to be guilty of 
 negligence in not obtaining a judgment in confirmation of title. (Rail- 
 way Act, s. 172.) 
 
 Atlantic & North-West Ry. Co. v. Judah, 23 Can. S.C.R. 231. 
 
 [See Atlantic & N.W. Ry.'Co. v. Judah, 20 Rev. Leg. 527; referred to in 
 Neilson v. Quebec Bridge Co., 21 Que. S.C. 332; followed in Montreal v. 
 Gautier, 26 Que. S.C. 354; Montreal v. Lemoine, 3 Que. Q.B. 199; referred 
 to in Montreal v. Baxter, 15 Que. S.C. 152.] 
 
 Death of arbitrator pending award. 
 
 In relation to the expropriation of lands for railway purposes, ss. 156, 
 157 of the Railway Act, 1888, provide as follows: — "156. A majority of 
 the arbitrators at the first meeting after their appointment or the sole 
 arbitrator, shall fix a day on or before which the award shall be made; 
 and, if the same is not made on or before such day, or some other day 
 to which the time for making it has been prolonged, either by consent of 
 the parties or by resolution of the arbitrators, then the sum offered by 
 tlie company as aforesaid, shall be the compensation to be paid by the 
 company." "157. If the sole arbitrator appointed by the Judge, or any 
 arbitrator appointed by the two arbitrators dies before the award has 
 been made, or is disqualified, or refuses or fails to act within a reasonable 
 lime, then, in the case of the sole arbitrator, the Judge, upon the applica- 
 tion of either party, and upon being satisfied by affidavit or otherwise of 
 sudi death, disqualification, refusal or failure, may appoint another ar- 
 liitrator in the place of such sole- arbitrator; and in the case of any 
 arbitrator appointed by one of parties, the company and party respectively 
 may each appoint an arbitrator in the place of its or his arbitrator so 
 deceased, or not acting; and in the case of the third arbitrator appointed 
 by the two arbitrators, the provisions of s. 151 shall apply; but no recom- 
 mencement or repetition of the previous proceedings shall be required in 
 any case." (S. 151 provides for- the appointment of a third arbitrator 
 either by the two arbitrators or by a Judge.) : — Held, that the provisions 
 of 8. 157 apply to a case where the arbitrator appointed by the proprietor 
 died before the award had been made, and four days prior to the date 
 fixed for making the same; that in such a case the proprietor was entitled 
 
EXPROPRIATION. 299 
 
 to be allowed a reaaoaaUe time for the appointment of anotber arbitrator 
 to fill the TacancT thus eaused, and to hare tbe arbitration proceedin<r» 
 continued altbongb tbe time so fixed bad expired iritbout anr award bar- 
 ing been made, or tbe time for tbe making tbereof having been prokniged. 
 
 Shannon t. Montreal Park ft Island Rt. Co^ iS Can. S.CJl- 374. 
 
 [Orermled in De«ormeanx r. Ste. Tb#r*se de BbJnTille, 43 Can. S.CJL 
 82; ctmsidered in Wynnes v. Montreal P. ft I. Ry. Co., 9 Qoe. Q-B. 498.] 
 
 IXFBOPCS ASSESSMEXT OF DL&.MAGE. 
 
 On an arbitration in a matter of tbe expropriation of land under tbe 
 provisions of the Railway Jket. tbe majority of tbe arbitrator^ appeared 
 to hare made tbeir ctHnputation of tbe amoont of tbe indemnity awarded 
 to tbe owner of tbe land by taking an average of tbe different estimates 
 made on behalf of both parties according to tbe evidence before than: — 
 Held, reversii^ tbe decision of the Court of Queen's Bench, and restoring 
 the judgment of tbe Superior Court (Tascberean* and Girouard. J-J.. dis- 
 isenting). that the award was properly set aside on the appeal to the 
 Superior Court, as the arbitrators appeared to have proceeded upon a 
 wrong principle in tbe estimation of tbe indemnity thereby awarded. 
 
 Grand Trunk Ry. Co. t. Conpal. 2S Can. S.C.R. 531.* 
 
 [Applied in (Ontario ft Quebec Ry. Co. v. Vallitees, 36 Que. S.C. 359; 
 referred to in Fairman v. Montreal. 31 Can. S.C.B. 313.] 
 
 AWABD EqCTTT W BEDEHFTIOX — ^Xo JSiXmX TO THIBD AKBirBATOB. 
 
 Bills filed to enforce awards and to recover moneys to be paid thereunder 
 for lands taken by tbe C.S. Ry. Co. Tbe facts connected with tbe making 
 of the awards and the sub^uent litigation will be found in 41 U.C.Q.B. 
 195, 28 U.C.C.P. 309, 5 A.R. (Ont-» 13. and 9 AJEL (Ont.i 310. Tbe CJS. 
 By. Co. appealed to the Suprane Court of Canada from tbe judgments of 
 the Courts below maintaining the awards. Beffwe tbe Supreme Court, 
 counsel for tbe appellants for tbe first time contended that, in tbe Xorvell 
 taae the award was bad because tbe arbitrators had dealt only with the 
 equity of redemption of tbe landowner, and that in the other eases the 
 awards were bad on tbeir face as beii^ signed by only two of tbe three 
 arbitrators without dewing a notice to tbe third arbitrator: — Held, in 
 tbe Xorvell case, that the C.S. Ry. Co. should be allowed to amend their 
 answer in the cause in tbe Court of Chancery as they might be advised, 
 in order to shew that tbe award was in respect only of the equity of 
 redemption and not the fee simple, and upon such amendment being made, 
 the award should be declared null and void: — Held, in tbe other cases, 
 that the C.S. Ry. Co. should be at liberty to amend tbeir answer in order 
 to shew that the awards were made by two of the arbitrators in tbe ab- 
 aeaee of, and without notice of the meeting of tbe said two arbitrators 
 to, the third arbitrator, with liberty to tbe plaintiffs to file with the 
 registrar of tbe Supreme Court their signification of their desire for new 
 trials, when <^ucb new trials should be granted without costs: in default 
 of such signification in any case tbe award was declared null and void. 
 Appeals allowed, but without costs, the objections having been taken f<M- 
 the first time on appeaL 
 
 Canada Southern Ry. Co. t. Xorvell. See Cass. Can. S.CJL 1>%. 1898, 
 p. 34. 
 
 [Caamented on in Freeman v. OnUrio. etc., Ry. Co., 6 O.R. 413; in- 
 ferred to in Birelj t. Tcmmto, Hamilton ft Buffalo By. Co., 35 AJL (Ont.) 
 
300 EXPROPRIATION. 
 
 XOTAHT PUBLIC AS ABBITBATOB. 
 
 An award was made by a majority of arbitrators, establishing at the 
 amount of $4,474 the indemnity to be paid to the respondents for a piece 
 of land of which they were dispossessed by appellants under 45 Vict. c. 
 23 (Que.), Action was taken for the above sum and costs of arbitration 
 and law costs, amounting altogether to $4,658.20. Judgment was rendered 
 by tlie Superior Court against the appellants for said amount, with in- 
 terest and costs, which judgment was unanimously contirmed by the Court 
 of Queen's Bench. The principal ground for defence was that Mr. C, being 
 the agent of the respondents, was disqualified from acting as their arbi- 
 trator. On appeal to the Supreme Court of Canada: — Held, that the 
 evidence sheVing that ^Ir. C. was not in the continuous employ of respond- 
 ents, but acted for them from time to time only, in his professional ca- 
 pacity as a notary public, and not in any otlier capacity, he has not 
 disqualified from acting ^s arbitrator. Appeal dismissed with costs. 
 
 North Shore Ky. Co. v. Ursuline Ladies of Quebec (1885), Cass. Can. 
 S.C.R. Dig. 1898, p. 36. 
 
 ABBITBATION — ADJOrBXMEXT. 
 
 The consent of tlie parties to an arbitration under the Railway Act, 
 1906, to an adjournment as provided by s. 204 can be given verbally, and 
 the statement of it in the minutes of a subsequent sitting of the arbitrators 
 is valid. 
 
 Can. Northern Ry. Co. v. Nault, 42 Que. S.C. 121, 22 Que. K.B. 221. 
 
 [Affirmed in Can. Northern Ry. Co. v. Xault, 16 Can. Ry. Cas. 198.] 
 
 Appoixtmext of abbitbatobs by Judge. 
 
 A judge, in exercising in the power conferred by s. 196 of the Railway 
 Act, 1906, to appoint arbitrators to assess the compensation to be paid 
 to the owners by a railway company for land compulsorily taken, acts as 
 persona designata, and, after making the appointment, he is functus officio 
 and has no jurisdiction to rescind the order of appointment, even if it is 
 shewn that such order had been made without jurisdiction. [C.P.R. v. 
 Little Seminary of St. Ther&se, 16 Can. S.C.R. 600, followed.] 
 
 Re Chambers and Can. Pac. Ry. Co., 20 Man. L.R. 277, 15 W.L.R. 694. 
 
 Nomination of abbitbatobs — Poweb of abbitbatobs. 
 
 (1) Tlie choice of a third arbitrator, left by agreement to two arbi- 
 trators named by the parties, may be made, although there may have been 
 no disagreement between such two arbitrators, a-s the Act does not require 
 that as a condition precedent. (2) An agreement to dispense with the 
 hearing of witnesses docs not prevent the arbitrators doing so of their 
 own motion should they judge it expedient. (3) In tlie estimation of 
 compensation for expropriation of land, under the Railway Act, 1903, arbi- 
 trators ought not to take into consideration tlie increased value which the 
 construction of the railway gives to the locality generally, but the excess 
 of increased value, if any, received by the lands of which the expropriated 
 property was part, over that given to neighbouring lands. (4) Where 
 arbitrators have been given the power of finally determining the questions 
 under arbitration, they may allow interest upon the amount of the com- 
 pensation awarded from the time of taking possession of the land expro- 
 priated or coiulenin the exjiropriating party to perform works required to 
 reduce the damages to the amount of the compensation awarded against 
 them. 
 
 Quebec Improvement Co. v. Quebec Bridge & Ry. Co., 29 Que. S.C. 328. 
 
 [Reversed in lO Que. K.B. 107, [1908] A.C. 217.] 
 
EXPROPRIATIOX. 301 
 
 .^■msAXSox — PjlTmsst out or Cocttt to laxdowsek. 
 
 Tke poTer to '^sdt aside or disr-hargv'^ mevtioncd in s. 30 of the Ea^li«h 
 Judkatvre Art, 1S73, iMpHcs the power to ~rurT.~ A Jnd^ sittiii» ut 
 Cooit has pover to vajr aa order vhich he ha.'» made in Chambers, ^^ik- 
 bk^ the practice oi the Chancenr DiriaioB of the Hi«fa Court in Kngland 
 as to TaiTu^ orders is the moet coaTeaicBt and should be adopted in 
 Alberta. Where bmkt vas in Courts paid in br a raii«naT eompany under 
 an order enabling the eonpanT to proceed with vtvk which has been en- 
 joined in the action and aftn- the award of arbitratori^ under the expr»- 
 priatioB provisiotts of the Kailwaj Act a Judge in Chamber^ ordered 
 pajnent out <rf part of the money to sati:£fT the award, which last-men- 
 tKHwd <»dcr wms entitled as well as in the action as in the matter of 
 the arUtntion ^ocecdings: — On application to the same Judge sitting 
 in Court: — ^Held, that the Judge was not acting whoUr as a persona 
 designata, as in — ^•"g the order he acted as well in the cause as in the 
 arbitration iwucee dingit and was not, thereffwe, after order made functus 
 ollieio, and had power to Tary the order made. 
 
 Be CSnad Trunk Pacific Bj. Co. and Maraan, 3 Aha. I..B. 63. 
 
 AlUDirBXMETT FOK XWJJBD. 
 
 Arbitrators amminted to fix the compensation to he paid in an expro- 
 pnataoa undo- the Baihrar Act had, at their first meeting, fixed Juljr 
 Ckh, ISSrr^ for giving their sward. On June 29th. 1897, after the enqn«te 
 for the expropriation was dosed, the proceedings were adjourned to Julr 
 8tik without any special enlargement of the time for rendering the award. 
 At the tiaw of the adjoanosent the solicitors for both parties were present 
 and made no objectiim: — ^HekL that the adjonnunrat on June 29th, was a 
 sirffcieat enla rgem ent of the time fixed for the rendering of the award. 
 
 Wynnes r. Montreal Park k Island By. Co.. 9 Que. Q.B. 483, remsing 
 IS Que. S.C. 106 and restoring 14 Que. S.C. 409. 
 
 COMTEXSATiaX FOB LJUfO TAKEX ^ABBTRATIOX — JCVCMXIXT TO EXFOBCE 
 
 Uaho- T. Town <rf North Toronto, 2 O.W.X. Sal, IS O.W.B. 808. 
 AiroEsntEiT or sole ACBmATOc — ^•X)itosite faktt,~ iixaxixg of — En- 
 
 BCXCK BT AFFIDATIT. 
 
 A raHwBy company hari^ sirred on both the owner of the land and 
 the mortgagee the notice and certificate presetifaed by ^. 146. 147 of the 
 Baihray Act, ISSS, the owner refused the sum offered and notified the 
 company erf the name of her arbitrator, but the mortgagee gave no such 
 notice: — Held, that, under & IdO of the Act, the campanr was entitled to 
 apply to hare a sole arbitnt««- appointed, as the nmrtgagee i^bould be 
 treated as an ^opposite party'* within the meaning of that section. After 
 giting notice to the eompany of the name of her arlntrator. the owner sold 
 and conrejed the property to another pcrstm. The land had been bought 
 aider the Benl Propoiy Act, and on the certificate of title issued to the 
 pordhaaer th^ne was cndwsed a sae mora ndum of the deposit in the Land 
 TiUes Office of the ■unister's certificate and the plan and book of refer- 
 caee: — Held, that the purchaser most be denned, under a. 14.3 of the 
 act^ to haxe had notice of the expropriatioD proeeediagB and was bound by 
 thfOB. Eridence in support of an application under s. 150 oi the Act may 
 be Igr afidavit. 
 
 Be Can. Pae^ By. Co. and Batter, 1 Can. By. Cas. 457, 13 Man. hJL 300. 
 
302 EXPEOPRIATION. 
 
 Clerical erhob in award — ^Iotion to refer back. 
 
 Motion for an order referring back to the arbitrators, to enable them to 
 correct a clerical error, an award made under the Dominion Railway 
 Act: — Held, that if the provincial legislation (R.S.O. 1897, c. 62) ap- 
 plied, the motion was needk'ss, the arbitrators having power (s. 9 (c) ) 
 correct the mistake. If tliat legislation were not applicable, there was no 
 power, under the Dominion Railway Act or otherwise, to remit the award, 
 nor to correct the error upon this motion. 
 
 Re McAlpine and Lake Erie & Detroit River Ry. Co., 3 Can. Ry. Gas. 
 95, 3 O.L.R. 230. 
 
 Revlsion of award as to asiouxt — Am'ard of costs by arbitrators. 
 
 (1) On an appeal from an award of arbitrators, under the Railway 
 Act, 1888, s. 161, so far as the appreciation of damages is concerned no 
 new evidence can be adduced, and no objection based upon the admis- 
 sion of illegal evidence, or the exclusion of legal evidence, can be con- 
 sidered, unless the illegalities complained of appear of record. (2) The 
 award cannot be explained or varied by extrinsic evidence .of the inten- 
 tion of the party making it. Error of law or fact on the part of the 
 arbitrators, or excess of jurisdiction, must appear on the face of the 
 award, or from the evidence or documents of record. (3) The Court will 
 not interfere with the discretion of the arbitrators as to the amount of 
 the award, unless it be as a check upon possible fraud, accidental error, 
 or gross incompetence. (4) The award of costs by the arbitrators does 
 not invalidate the award, where it simply follows the rule established by 
 the Railway Act itself, for in such case the party has no grievance. (5) 
 The award of a block sum is valid, the law not requiring the arbitrators 
 to distinguish between the amount awarded for value of land taken, and 
 that awarded for damages to other lands. 
 
 Pontiac Pacific Junction and Ottawa, etc., Ry. Cos. v. Community Gen- 
 eral Hospital, etc., 3 Can. Ry. Cas. 99, 20 Que. S.C. 567. 
 
 [Approved in Ontario & Que. Ry. Co. v. Valli^res, 36 Que. S.C. 354.] 
 
 XoTiCE — Compexsatiox — Arbitration. 
 
 A railway company, having given notice of requiring certain land for 
 their railway, and having taken possession of it, cannot abandon their 
 notice and give a new notice for the same land. [Can. Pac. Ry. Co. v. 
 Little Seminary of Ste. Th6r&se, 10 Can. S.C.R. 606, applied.] Where the 
 company named in their new notice a larger sum of compensation money 
 than in their original one, and a dill'erent arbitrator: — Held, upon a 
 motion by tlie landowner to compel company to proceed with the arbi- 
 tration, that, although the new notice was ineffective, and the arbitration 
 could proceed only under the original notice, the appointment of the new 
 arbitrator should be confirmed (the landowner not objecting), and the 
 company should be allowed to increase their offer, but not so as to prej- 
 udice the owner as to anything that might have occurred before the new 
 notice, and the offer of the increased sum might be taken into considera- 
 tion upon the question of costs. 
 
 Re Haskill et al. and Grand Trunk Ry. Co., 3 Can. Ry. Cas. 389, 7 
 O.L.R. 429. 
 
 Authority of arbitrator — Failure to give notice — Trespass. 
 
 By c. 104 of the statutes of 1902, the recompense to the owner of land 
 taken for railway purposes, and for the value of earth, stones, gravel, etc., 
 removed, was required to be fixed by three arbitrators, one chosen by the 
 company, another by the owner or proprietor, and, wliere these were unable 
 
EXPROPRIATION. 303 
 
 to agree as to the aaaoant of their avard. a third, to be appoiated br the 
 twa axhitratois first Bnaiaated. The mmpaDv's en^ineo- vxote to M„ vbo 
 kid prerkNislT acted for the eoapaaj. reqnestia^ him to axvertain vhether 
 plaiatiffs had anraaicied their title to the gravel pit at Loch Ben in sodi 
 a vaj that the arhftrators could get to work and. if so. to let tihcat kaov 
 that he (M.I was prepared to act, "and adked then to appoint tlKir ■■» 
 ao that TOO two. if joa eaamt agree to the TalnatioD. aar sdect a. third.™ 
 He added. ~1 vill scad aa a g r cta a^rit of arfoitration vhich each one caa 
 ■■hii I ilii to. or. if they haw one alreadr drafted, too can forward it here 
 for approTaL" No a g r ee— e a t was sent bv the engineer, and none vas 
 forwarded for approral br M., bat. acting on the letter received, IL, in 
 eoaapauiT vith plaintiff's noounee, met and invent ^ted the damages, and, 
 with C, who was appoiated third arbitrator, signed an award for the 
 amaaat of which action was hrooght: — ^Held, Bnssell, J., disseatia^ on 
 this ]MHBft: — Aat the letter written by the eompany'a cngineo-, ia the 
 aheeBee «t anything in the statute as to how the arintration was to be 
 eoadncted, or the steps to be taken previoos to inquiry, was as effectiTc 
 aa amy agncawnt. exen if soA were necessary, and the company were 
 boond by it: — ^HeM. also, that defendant?, harii^ failed to proMed in the 
 regular way. by giving notice to the propietors of the pnrpoees far which 
 they entered, and for which they coold oalj eat e r after notice, were tre«- 
 paaaeis aad liable a> soch. 
 
 Mdaaac cC aL v. InverneaB Ry. k Coal Cou < Can. By. Cas. 112, 38 X.S.B. 
 «L 
 
 [KeverMd in 37 Caa. S^CJL 134. 6 Can. Ry. Gft& 121.] 
 
 ArTHoanr ro« sraMis^siox to ABBrrsATfo^s — Tkc^ass. 
 
 By statute, in Nova Scotia, if land is taken for railway purposes tte 
 eoBipensatioa therefor, and for earth, gravel, etc removed, shall be fixed 
 fay arbitrators, one chosen by each party and the third, if reqaired. by 
 tboie two. A railwmy company intcndiag^ to expn^riate. their ei^inecr 
 wrote to 31., who had acted for the company in other cases, inetractin^ 
 him to ascertain whether the ovncrB had arranged their title so that the 
 arbiration coold fg o ce ed and, if so, to ask them to namdnate their mam, 
 who. with M.. could appoint a third if they coold not agree. The «jigLmr 
 added, ^1 wiU send an agreement of arbitration which eadi one can sub- 
 scribe to, or, if they have one already drafted, yoa can forward it heie 
 for a^rovaL'* Xo snch agreement was sent by, or forwarded to, the engi- 
 neer, bat the three arbitratcns were appointed and made an award on 
 which the owners of Ae land faroi^t an acti<»: — Held. »»■*>■ *i »g the 
 judgment appealed fn«. 38 XJSJL 80, 6 Can. By. Cas. 112, that aa the 
 company had not taken the preliminary steps required by the atatato 
 arhi^ therefore, did not govern the arbitration proceedings, the award 
 was void for want of a proper sulnnission. The compaaj e nte ted upon 
 land and cut down trees and removed gravel therrfrom vittoat girii^ the 
 owawrs the notice required by stotute of their inteatiaa to take their 
 I>roperty. The owners fay their action above mentioned, daisMd damages 
 for trespass as wdl as the aoMHrnt of the award: — Hdd, *^»* aa the act 
 of the eompaay was not authoriaed by statute the owners could aae for 
 trespaas and as. at the trial, the action on this daim was di^usaed on 
 the ground that such actioa was prohibited there should be a new triaL 
 
 Invcneaa Ry. 4 Coal Co. t. Mrfsaar, 6 Can. Rt. Gu. 121, 37 Ckn. S C.R 
 134. 
 
304 EXPllOPRIATION. 
 
 Misconduct of abbttratobs — Gross u>^dervaluatiox of mixixo claim 
 
 — Interested motives. 
 
 The Court -will not interfere to set aside an award unless corruption, 
 partiality, misconduct or irregularity is distinctly proved against the 
 arbitrators, and mere suspicion is not sufficient; or unless the sum awarded 
 is so grossly and scandalously inadequate as to shock one's sense of jus- 
 tice. The plaintiff having made an application under subs. 3 of s. 168 
 of the Railway Act, 1!)03, to set aside tlie award of the majority of the 
 arbitrators on the ground that it was vuijust. improper, unreasonable and 
 grossly and scandalously inadequate and against the weiglit of evidence, 
 also, that no reasons were given for the amount of the award: — Held, (1) 
 that there was no evidence which would warrant a linding of corruption, 
 partiality or irregularity on the part of the majority of the arbitrators 
 or that the amount of the award was grossly and scandalously inadequate. 
 (2) Under s. 164 arbitrators are not bound to give reasons for their con- 
 clusions though it would be better to do so. 
 
 Morley v. Klondike Mines Ry. Co., 6 Can. Ry. Cas. 183, 5 West. L.R. 
 109. 
 
 [Followed in Harrigan v. Klondike Mines Ry. Co.. 6 Can. Ry. Cas. 193, 
 5 W.L.R. 137. 
 
 Misconduct of abbitbatobs — Gross undervaluation of mining claim — 
 Interested motives. 
 
 Application by plaintiffs, similar to that in ]Morley v. Klondike Mines 
 Ry. Co.. 5 W.L.R. 100, 6 Can. Ry. Cas. 183. to set aside the award of a 
 majority of the arbitrators, on the ground that tlie award is unjust, im- 
 proper, unreasonable, and grossly and scandalously inadequate, and that 
 tlie same Avas made without regard to the evidence, and on the ground that 
 the majority of arbitrators acted unfairly, improperly and not as fair or 
 just arbitrators between the parties on such arbitration, or in making 
 such award: — Held, following case supra, that where there is no evidence 
 of corruption or to sufficiently sustain the reasons set out in the appli- 
 cation, the award must stand. 
 
 Harrigan v. Klondike Mines Ry. Co., 6 Can. Ry. Cas. 193, 5 West. L.R. 
 137. 
 
 Tebms of submission EXCEEDBH). 
 
 Where arbitrators were appointed under deeds of submission to value 
 three expropriated lots of ground and the indemnity for damages, it being 
 declared that they should act as mediators (amiables compositeurs) but 
 should he bound to conform to the provisions of s. 161 of the Railway Act, 
 1903. and tlie award in lieu of valuing the third lot in money ordered 
 that the expropriators should return it in part and construct a road on 
 their own adjoining land, to be maintained by them in perpetuity for the 
 benefit of the parties expropriated: — Held, affirming 16 Que. K.B. 107, that 
 arbitrators who are also appointed mediators cannot disregard their in- 
 structions, and that the error vitiated tlie whole award. 
 
 Quebec Improvement Co. v. Quebec Bridge & Ry. Co., 7 Can. Ry. Cas. 
 336, [1908] A.C. 217. 
 
 Compulsory taking of land — Appeal from award of arbitrators. 
 
 (1) Upon an appeal, under s. 209 of the Railway Act, 1906, from an 
 award of arbitrators determining the compensation to be paid to an owner 
 for the compulsory taking of his lands by a railway company, the Court 
 will not assume the function of the arbitrators and make an independent 
 award, but will rather treat the matter as it would an appeal from the 
 
EXPROPRIATION. 305 
 
 deoaon or rerdict <tf a. Judge, juid the award will not be disturbed, unless 
 the arlntrators maniiestlr erred in some principle in arriving at their 
 eooelnsioB. (2) Interest on the amount awarded should not be added bj 
 the arbitrators, especiallr in a case where the claimant remains in fo»- 
 aession of the property until after the date of the award. (3.1 It is proper 
 that the claimant should be allowed the actual value of the property to 
 him. and not merely the market value as <m a sale, {-i) The arbitrators 
 are not bound to allow ten per cent, extra <m the amount of the compen- 
 sation for the compulsory taking, although that is frequently done, and 
 the Court will not interfere with their refusal to allow such percentage. 
 
 Can. Northern Ry. v. Robinson, 8 Can. Ry. Cas. *26, 17 Man. Li.R- 396. 
 
 [Approved in Re Clarke and Toronto, Grey k Bruce Ry. Co.. 18 OX.R 
 628, 9 Can. Ry. Ca& 290; commented on in Re Davies and James Bay Ry. 
 Co., 20 OXJL 534.] 
 
 Ratification of awaso. 
 
 A petition f<»' the ratification of an arbitrati<m award, upon an expro> 
 priati<Hi of land by a railway ctnnpany for the building of its line, is 
 presented in the interest of the railway company solely, the company shall 
 pay the costs of appearance upon the petition, with the costs of the ex- 
 prporiated owners attorneys im the petition, but not the costs on a reply 
 to the petition. The costs incurred in the distribution of the moneys 
 deposited in Court by the company petitioner shall be taken out of the 
 said moneys as in the ordinary course of law. 
 
 Chateauguay & Northern Ry. Co. v. Lanrier, 9 Can. Ry. Cas. 51, 9 Que. 
 P.R. 245. 
 
 IXTERTEVriOX INTERESTED PABTT — JCKISDICTIOX OF SCFEXIOB CotHT. 
 
 A party, claiming the ownership of land expropriated by a railway com- 
 pany, may intervene in the expropriation proceedings; but such interven- 
 tion will not affect the validity of any proceedings had till then against 
 the registered prt^rietor. The Superior Court is the tribunal which has 
 jurisdiction to allow such intervention. 
 
 Re Montreal t Southern Counties Ry. Co. and Woodrow, 10 Can. Ry. 
 Gaau 496, 11 Que. P.R. 230. 
 
 CoittKXSATION — ^VaLCE OF LAN© TAKEX DaVAGF TO RESIDrE — AmOFXTS 
 
 XOT SEPAKATED IX AWASD — IXTEETEREXCE WITH WOKKXNG OF FAKM. 
 
 Arbitrators having awarded to the claimant $30,607 as compensatitMi for 
 about 4| acres of his stock and dairy farm of 465 acres, expropriated by 
 the ecmtestants for their rigfatK>f-way, under the Railway Act, and for 
 damage to the residue of his land, the amount awarded was redneed <m 
 appeal to $20,000. The arbitrators not having stated the principles by 
 which they were guided in coming to their conclusions, and not having 
 separated the amount allowed for the land actually taken and the amount 
 awarded as damages for lands injuriously affected, the course taken by the 
 Court on the appeal \ras that commended by the Privy Council in James 
 Bay Ry. Co. v. Armstrong, [1909] A.C. 624' 10 Can. Ry. Cas. 1. viz.. to 
 go through all the evidence, and, having doe regard to the findings of the 
 arbitrators, so far as they could be ascertained, to examine into the justice 
 of the award. The award was that of two of the three arbitrators; the 
 nonassenting arbitrator stated his views and also his understanding of 
 the grounds on which his colleagues based their award: — ^Held. that the 
 Court could not pay regard to this statement as setting forth the grounds 
 upon which the award was based. The part of the farm taken for the 
 railway was in the valley of the Don river, which traversed a part of the 
 Can. Ry. L. Dig.— 20. 
 
30G EXPKOPRIATION. 
 
 farm. The farm buildings were for the most part in the valToy, but the 
 arable part of the farm was largely in the uplands, and access from the 
 buildings to the uplands was gained by means of a loop shaped roadway, 
 commencing at a gate entrance to the farmyard on the east side of the 
 west or north branch of the Don, and going in a southerly direction 
 towards tli«> Don ^lills road, there turning westerly and crossing the stream 
 by means of a bridge, and then proceeding in a northwesterly direction to 
 a gate at the foot of the roadway leading uj) a very steep Iiill and ascend- 
 ing by means of it to the uplands. The gates were kept closed or open 
 as occasion needed for the purpose of controlling the wandering of the 
 stock, and regulating the hauling of loads to and from the uplands. The 
 roadbed embankment of the railway intersected both of the roadways at 
 a height of G or 7 feet above their grade. The main complaint of the 
 claimant was, that passing to and fro between the buildings and the up- 
 lands with horses, cattle, vehicles, and farm implements, involved crossing 
 the railway twice, and opening and closing four gates, together with the 
 delay and risk attendant thereon: — Held, upon the evidence, that the diflB- 
 culty could be overcome by tlu? construction of a new roadway with a 
 bridge, at an expense of $3,000. which was an ample allowance in respect 
 of this cause of complaint; and, while it might be true, as .stated by the 
 arbitrators, that it was not within their power to compel either the claim- 
 ant or the contestants to construct the roadway and bridge, yet they were 
 not justified in making an allowance for that particular damage greater 
 than a sum sufBcient to enable it to be obviated for all time. The measure 
 of the damage to which the claimant was entitled was the value of the 
 land taken and the depreciation occasioned to the remainder by the con- 
 struction and user of the railway upon the part taken; and justice to the 
 contestants required that the award should shew on it* face what amount 
 was allowed in respect of each of these items. The principle on which 
 the inquiry as to the compensation when some land is taken and some 
 injuriously affected should be proceeded with is to ascertain the value to 
 the claimant of his property before the taking, and its value after the 
 part lias been taken, having regard to all the directions of s. 198 of the 
 Kailway Act, and deduct the one sum from the other. [James v. Ontario 
 & Quebec Ry. Co., 12 O.R. 624, 15 A.R. (Ont.) 1, followed.] The contestants 
 took possession of the land on the 13th October, 1905, and the arbitrators 
 awarded interest from that day: — Held, that s. 153 (2) of the Act .3 
 Edw. VII. c. 58, (s. 192 (2) of the Railway Act, 1906) was enacted for 
 the purpose of fixing the time as of which the value and damage are to 
 be ascertained; the question of interest is not dealt with in terms, and 
 there is nothing in the words to interfere with the operation of the general 
 law, which, as between vendor and purchaser, fixes the time at which 
 interest commences as that at which the purchaser takes or may safely 
 take possession. \Mien some land is taken, and other land is injuriously 
 affected, the amounts awarded in respect of both are to be treated as 
 purchase money. [Re Macpherson and Toronto, 26 O.R. 558, approved.] 
 Whether or not it was correct for the arbitrators to award the interest 
 was not material; no substantial wrong had been done by stating it in 
 the award. 
 
 Ro Davies and James Bay Ry. Co., 10 Can. Ry. Cas. 225, 20 O.L.R. 534. 
 
 [Followed in Re Ketcheson and Can. Northern Ontario Ry. Co., 16 Can. 
 Ry. Cas. 286.] 
 
 Compensation — Damages — Indemnity — Proprietors bordering on pub- 
 lic CANALS — Nullity of award. 
 (1) The appeal to the Superior Court from the decision of arbitrators 
 
EXPROPRIATION^. 307 
 
 m BattcTK of cs|KVfrimtiaa for a rul«av gives ado- s. HSO of the Rail- 
 vaj Agt. 190C. aad tke actioB to amnl tlK award ander the lav of the 
 Proriace of QadMr iceogaiapd aader £alii& 4 of the mf sertioa. aiiF srpa- 
 rate rnB«lie» vhidk eBaaot be joiaed ia oae aad the saaK' dnaaad. f S) A 
 dtferaMe betavoi the award a» c^^tablid^ied bjr the drcd exmrtod br the 
 arbitiatoffs befote a aotazx aad the award a;? rMorded oa the auaates af 
 the fiaal sessiaa a€ the arbitiator^^ is aa im|g:alariti-. bat does aot Be(»;r- 
 sarihr catafl aalli^. {31 The anllitT of oae part ci the award omify tm- 
 tails the aallitT of the niniadi i if the award is iadhrisifale or if oae of 
 the paxties amg e i* ptejodiee. Caase«|oeatlr the award which adjadirates 
 aipiM the cHKfa of the arbitrstiaa aotwithstaMdi^ that the law itself de- 
 tendaeB mpam wham they Aall falL is aaO for sodi part oidr, bat aaj 
 ha valid for the reft. (4il Wbea the iadnmitr is far anvial diKtveot 
 abjiita , that is to laj, laad expropriated, boildiaga, iiiiiiaiiaiiiii rcaolt- 
 img from the espropriatiaa. etr_ it is aot aeeBBBaxT that the award shoaid 
 specify the aMooat awarded oader each headiag^ It any fix a hoqp ana 
 far Oe whole. (31 The pn^anMtor expropriated ia aafy eaiitled ta thaw 
 d s M i gtA which are the dirrct aad exctwjve resolt of the i nwiipiiilMBi 
 The arbitrators caaaot take iato aMOoat other i iua o i T eai e atea wddA ha 
 anj saSer ia cdhbob with the re«t of the pablie, sach as flnee eaased 
 hgr aoiae. aaoket. aad the |;mter diScalty of aeresBL (<| A paup ei tt 
 acparatcd fruiB a caaal bv a h^way is aot a pioputt borderii^ (riv«r- 
 alai apoa the caaaL ([7 1 Pro p rirtors whow laads froat apoa prfilhi 
 caaak bat who are aot owaers of the baaks aor the water hare ao r^fta 
 ia the caaal either of owaenhip or ia serritade « e a .iwiat |. <(8| Wher^ 
 ia fixia^ the iadeauuty arbitrators hare takes iato eoasideiatioa proof of 
 loss or ia aua re a iesce of a aatare for which the law allows ao iadaaait^. 
 the award is aalL For the porpose of redaeiap the award, ptaof caaaot 
 be admitted to shew what proportaaa of the award has faeea atcardt d 
 apoa ilk^ lEiooads. {9} The Saperior Coart ia dnidiap aa appml 
 aiost decide apoa the iadcanutx accordi^ to the proof aade heiore the 
 arbitxators. 
 
 Oatario 1: Qnebee Rr. Co. t. YaDiiieA. U Caa. Br. Ca& 1. » Qae. &a 
 M9. 
 
 EvioExcx BtsaEEAaDcn — Scmxc aside awjub. 
 
 Jkriatxators appoiated aadcr the Bailwar Act. 1906. to detenaiae the 
 Taloe of laad$ expn^triated hr the railwar aost base their award oa the 
 eridcace girea aad. while antboriafd aader «w 201 of the Act to view the 
 laad expropriatedL they maj aot di'>x««ard the erideace aad sobstitnte 
 their owa ofMaioa of the ralne tor the evidence of the witaeaaes. the proper 
 porpose of the view bein« to enable the arbitrators to better aaderstaad the 
 erideace jsirea. The award of arbitrators j4ated: '^We hare been thrown 
 Terr cna:ndcTablT apoa oar owa jadgmeat in arriria|r at this decision. 
 Reaaoaiag frooi oar own judgment and a view of the actaal facts sab- 
 mittcd ia erideace. we are conrinred that the «am of 4SJMD0 is a fair aad 
 jast- valoatioa of the laad under di>pate**: — Held, that the award ^oaM 
 be aet aside aad the ralne fixed bj the Coart on the erideace given par- 
 saaat to the aothoritj rontained in & :f09 of the Act. 
 
 Re CaliEarr t Edamton Bv. Co. and Mackiaaaa, U Gu. Ry. Gae. 27, 2 
 Alta. LR. 4*8. 
 
 (Reversed ia 43 Caa. &C.B. 379. 11 Caa. Ry. Css. 32.] 
 
 Vjkunrrr or awjlbb. 
 
 Ia expropriatioB proc«ediiq;s, under ^e Railway Act, the arbitrators ia 
 ■nkiaig their award stated that they had aot ioond the c^erc evidence 
 
308 EXPROPRIATION 
 
 a valuable factor in assisting them in their conclusions and that, after 
 A-iewing the property in question, they liad reached their conclusions by 
 "reasoning from their own judgment and a few actual facts submitted in 
 evidence." On api)eal from the judgment of the Supreme Court of Alberta 
 setting aside the award and increasing tlie damages: — Held, that it did 
 not appear from the language used that the arbitrators had proceeded 
 without proper consideration of the evidence adduced or upon what was 
 not properly evidence and, therefore, the award should not have been in- 
 terfered with. 11 Can. Ry. Cas. 27, reversed. 
 
 Calgary & Edmonton Ry. Co. v. MacKinnon, 11 Can. Ry. Cas. 32, 43 
 Can. S.C.R. 379. 
 
 Enforcement of award — Omissiox to name day. 
 
 The Ontario Arbitration Act, Edw. VIT. c. 35, s. 14, applies to awards 
 under the Dominion Railway Act so as to confer jurisdiction upon the 
 High Court to entertain siunmary applications to enforce such awards. 
 The Dominion Act provides for appeals, but does not provide machinery 
 for the enforcement of awards; the Provincial Act applies to all awards 
 where the particular act does not provide machinery for enforcement. 
 The omission of arbitrators to name a day before which the award is to 
 be made (s. 204 of the Dominion Railway Act) does not invalidate the 
 award; naming a day is not a condition precedent to jurisdiction; the 
 ascertaining of the sum offered as that to be paid results from failure to 
 award within a time fixed, and not from failure to fix a time; the statu- 
 tory provision is one in favour of the railway company, and is waived by 
 proceeding with the arbitration. 
 
 Re Horseshoe Quarry Co. and St. Mary's & Western Ontario Ry. Co., 12 
 Can. Ry. Cas. 155, 22 "o.L.R. 429. 
 
 Revibiav of award — Inadequacy of compensation. 
 
 An application to the Superior Court in tlie Province of Quebec \inder 
 8. 209 of the Railway Act, 1906. to set aside an award of arbitrators, 
 made in expropriation proceedings imder that act, on the ground of the 
 inadequacy of the comi^ensation awarded, which application is instituted 
 by a petition praying that a writ of appeal may be issued in the nature 
 and form of an appeal from a decision of an inferior Court, and that the 
 Court may decide upon the amount of compensation and may render the 
 award which tlie arbitrators should have rendered, is an appeal to the 
 Superior Court from the award, and not an action in that Court to set 
 the award aside, and, therefore, no further appeal lies to the Court of 
 King's Bench from the decision of the Superior Court upon such an appli- 
 cation. 
 
 Rolland v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 21, 7 D.L.R. 441. 
 
 Conclusiveness of award — Setting aside for failure to carry out 
 undertaking. 
 An award made by arbitrators appointed under s., 190 of the Railway 
 Act, 1906, to ascertain the compensation that should be paid for injuries 
 to land not actually taken or used by the railway, tlie owners claiming 
 that the land was injuriously affected because the railway was built be- 
 tween the land and the sea, thereby cutting off their riglits of access to 
 the sea, will be set aside because of the failure of the arbitrators to keep 
 a promise made by them to the owners of the land when the suggestion 
 was offered on the arbitration proceedings that the question of the appli- 
 cability of 8. 198 of the Act to such a case should be referred to the Court, 
 
EXPROPRIATION. 309 
 
 lAiA praaiae wms that tkey, tlw ariMtratoss, Atmld kai« it appear on tlw 
 fmtB d the award vfcettcr or aot soeh scctioa ap^ied. 
 
 Be VaacoinvT, VictMia 4 Easten Rr. Col, 14 Cka. Bj. Ca& 101, 3 
 TiXJL 722. 
 
 [JndgBcat in 1 W.W.K. 8M affinnFd br divided Court.] 
 
 Aw.u»— SooTE or AFrciJ-&TE jmsMcnox. 
 
 Under the Bntiah Cohmbia RaOvav Act. RJS.B.C. 1911, c l»ft, & tS. 
 i^oB aa appeal firaaa the avard of axbitzators fixing daaagcs vnder cai- 
 ■eat ihiMtia proceedings, the Court will not anp e ta c J e the atlnlta tora haft 
 win lei i ew the award as it wtmld leiien the j ndginui t oi m. stdiordinate 
 Court in a case of original jmiadietion, coaaderii^ the award on it« 
 MMito , both as to the facts and ikt law. Under the said s. 68, ^poa an 
 ^pcal bam the award of azl«tratats fixing daauges nnder raift do- 
 nain ptmeed iigs where emfflieting Tiewa as to the ^faaatoiB of daaugcs 
 w«re ai^arent, bat Oe estinnte aade in the award cannot be said to be 
 nwfwiabif or nianiff irtlj inewrect^ tte findings of the artntrators will 
 not in that res p ec t be di atmb e d , tte arbitrators having seen and heard 
 the nitniiiii and viewed the land in qnestikn. [Atlantic 4 Xortbwcst Sy. 
 Cou ▼. Wood, liMS] A.C. ^7. 64 L.JJ*.C. 116. ftrflowed. nnder which a 
 ■Indlar ^fwatian ondo- sole. 2 <rf s. 161 of the Downion Railwaj Act, 
 1888, be^ a. 168 ^ 3 Edw. TIL (D) c 58. was deoded.] 
 
 CTinadian Xmtbeni Pacific Br. Col v. Domiaicm Glued Cenest Pipe Gol 
 (RC), 14 Can- Rv. Cas. 265. 7 DJ-R. 174. 
 
 ApporvTMEvr or AUcrntATOKS — ^Vjo-Ue ae r t onxi t at the TniK. 
 
 The exception of arbitratiawi then 'prndiBg" from the aHendment aade 
 lij 8 ft 9 Edw. Vn. CD.) e. 32, to the RaUwav Act. 1906, as to the tine 
 in relation to wbiA the vahw of propertr e3cpropHriated is to be fixed where 
 title is not acquired by the raOway wttbin a year fraai the date oi depoait- 
 i^ the plans, does not apply so as to exclude the application of the a i ne nd - 
 ing act, unless the arbitratars had tahen aStt before the statute took 
 cfiect after having been sworn in under s. 197; so where prior to the 
 ifding statute (1909). an order had been made appointing arbitratars. 
 bat one of them declined the appointment and a new arbitrator was not 
 apptHnted until after the pagying of the amending act. the 'arbitratian'' 
 was not '"'pending'' when the latter act was passed. [Robinson v. C.K.R. 
 Co, 17 Man. L.R. 5S3, referred to.] 
 
 Re Taylor and Can. Xorthem Ry. Co. (Han.), li Can. Ry. Cas. 51, 9 
 DX^ 695. 
 
 LaXD COXISACT — COSSEQCXTTIAI. DlAMACE. 
 
 An a g re eme nt alleged to import the renunciation of a r%ht is inter- 
 preted strictly; and where a landowner permits his land to be taken for 
 the coBstruction of a raQway. and reserve? bis ri^t of action for po^siUe 
 damages resultii^ from the obstruction or closing of a roadway leadii^ 
 from hia farm to the St. Lawrence River, he is not estopped therefrom 
 bf a stipulataoa in the agreement of sale to the effect that the price of the 
 land aidd on the sasK day to the company "shall include all daauges 
 caused by the running of the laflway over tbe land sold.™ An alleged agree- 
 m ^ t, for arlHtratioa of damages arisii^ from the construction, main- 
 tenance and opnatioB of a raflway over the plaintiffs^ lands, which speri- 
 fiea that ''the damages shaU be fixed by appraisers to be named fay the 
 parties." bat neither apecifies the names of the arbitrators, nor the sub- 
 ject-matter of the dispute, nor fixes the time within whiA the arbitration 
 award shall be r f wd e red, is not a cmnprooaise. but is aaerely a pvaaise to 
 
310 EXPROPRIATION 
 
 compromise, and does not estop a person suffering damages from a right 
 of action for the recovery of such damages, [McKay v. Mackedie, 11 Que. 
 S. C. 513, followed.] 
 
 Desmeules v. Quebec & Saguenay Ry. Co., 15 Can. Ry. Cas. 94, 43 Que. 
 S. C. 150. 
 
 CoMPEXSATiox — Review of award — Consequential damage. 
 
 An award under the Railway Act will not he set aside by reason of the 
 fact that after a view of the lands in qiu'stion the arbitrators have not 
 put in writing a statement sufliciently full to enable a judgment to be 
 formed of the weight which should be attached to their finding. [Arbi- 
 tration Act, 9 Edw. VII. (Ont.) c. 35, s. 17 (3),] hut will be referred back 
 for a supplementary certificate. (2) When a railway intersects a piece 
 of land the company must pay not only compensation for the land act- 
 ually taken, but also damages for injuries to the remainder of the parcel 
 sustained by reason of the compulsory severance. (3) The date of the 
 deposit of a plan, proliic and book of reference is the date with reference 
 to which compensation or (hmiages for land taken by a railway company 
 under the Railway Act, IJtO.!. arc to be ascertained, and subsequent deal- 
 ings with the land by the owner cannot affect the amount of compensation 
 or damages to be awarded. 
 
 Re ilyerscough and I^ike Erie »Si: Northern Ry. Co. (Out.), 11 D.L.R. 
 458, 15 Can. Ry. Cas. 168. 
 
 [Followed in Re Billings and Can. Northern Ontario Ry. Co., 16 Can. Ry. 
 Cas. 375, 15 D.L.R. 918.] 
 
 Valves of lands — Similar settlements — ^Relevancy. 
 
 Evidence of settlements made by the railway with other persons for 
 parts of other farms taken for the right-of-way is not relevant in expro- 
 priation proceedings under the Railway Act, 1906. The fact that one party 
 to the issue presented on an arbitration is allowed to give evidence of a 
 class which is not relevant, does not entitle the opposing party to answer 
 with the same kind of irrelevant testimony; and the opposing party, al- 
 though siiccessful in the issue is properly refused costs of his irrelevant 
 evidence. [R. v. Cargill, [1913] 2 K. B. 271, applied.] 
 
 Re Ketcheson and Can. Northern Ontario Ry. Co., 13 D.L.R. 854, 16 
 Can. Ry. Cas. 286, 29 O.L.R. 339. 
 
 [Followed in Green v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 171, 8 
 8.L.R. 53.] 
 
 Award — Extension of time — Agreement to extend. 
 
 A formal extension in writing during the limitation period, of the time 
 for the arbitrators to make their award upon an arbitration in expropria- 
 tion proceedings under the Railway Act, 1906, is not a sine qufi non to 
 their jurisdiction; there may be circumstances which debar either party 
 from setting up the lack of a formal extension, such as an arrangement 
 made for the postponement of the proceedings for the convenience of coun- 
 sel, which Avas equivalent to a consent to the making of a formal extension 
 by the arbitrators either before or after the time fixed at the first meeting 
 pursuant to s. 204 of the Railway Act, 1900. [Can. Northern v. Naud, 42 
 Que. S.C. 121, and 22 Que. K.B. 221, afhrmed; see MacMurchy & Deni- 
 son's Railway Law, 2nd ed., 260. and Montreal Park, etc., Ry. Co. v. 
 Wynness, 16 Que. S.C. 105.] 
 
 Can, Northern Quebec Ry. Co. v. Naud, 16 Can. Ry. Cas. 198, 48 Can. 
 S.C.R. 242, 14 D.L,R. 307. 
 
EXPROPRIATION^. 311 
 
 EVIDKSCE — RlXEVAXCT — ^VaMTK OF UlM> IX TldXTTT — UXDITIDED IXTEXEST 
 IX FBOFEBTT EXFKOFBIATED. 
 
 To establish the rahie of land expropriated, evidence is admissible shew- 
 ing recent sales of land of similar character and use in the neighborhood 
 of that taken. [Doe dem. Barrett t. Kemp, 2 Bing. X.C. 302; Dendy r. 
 Simpson, 18 C3. 831, and Re Ketcheson and Can. Northern Ontario Rt. 
 Co_, 13 bi.R. 854. 16 Can. Ry. Cas. 2S6; Dodge v. The Bang, 3S Can. 
 S.CJL 149, and The King t. Condon, 12 Can. Ex. 275, followed.] Eri- 
 dence of the sale of an undivided half of prc^rty expropriated is admis- 
 sible on the question of damages in CM^er to establish market value, but 
 it is to be ecn^idered along with other eircnmstances estaUishing value. 
 [Dodge V. The King, 38 Can. S.C.R. 149, followed.] 
 
 Re National Trust Co. and Can. Pac. Ry. Co., 16 Can. Ry. Cas. 291, 
 15 D.LR. 320, 29 OJLR. 462. 
 
 DtworrivK awasd — Afpeai. — ^Power or Cockt. 
 
 On an appeal from an award in expropriation proceedings under the 
 Railway Act, the Court may send the case back to the same arbitrators 
 to make a new award where the first one is defective in that it does not 
 definitely and clearly disclose what the award is based upon and how the 
 sum awarded is arrived at, where it seems probable that some wrong 
 principle has been applied by the arbitrators. 
 
 Can. Pac Ry. Co. v. Ball,' 19 Can. Ry. Cas. 99, 20 DJ-R. 903. 
 
 SePAKATE claim fob OCCXTATIOX FKIOB TO AWARD. 
 
 An award in expropriation proceedings under the Railway Act, fixing 
 the compensation for land taken iar the railway and the damages to the 
 remainder of the land, does not include the damages to which the owner 
 is entitled for the company's wrongful use and occupation of the lands 
 prior to the expropriation. [Gauthier v. Can. Xorthem Ry. Co.. 14 D-L.R- 
 490, 16 Can. Ry. Cas. 354. and Dagenais r. Can. Xorthem Ry. Co.. 14 
 DJLR. 494, 16 Can. Ry. Cas. 353, affirmed.] 
 
 Gauthier v. Can. Xorthem Ry. Co. and Dagenais v. Can. Xorthem Ry. 
 Co., 19 Can. Ry. Cas. 144, 17 b.LJS. 19-3. 
 
 EviDESCE — Aniassioxs — ^ArviDAvrr — ^Valite of laxd. 
 
 An affidavit by an owner of land whose property has been expropriated, 
 made by him prior to the expropriation, when he was actiiig in the capac- 
 ity of an administrator, dionld not be received in evidaice against him as 
 an admission of its value at the time of expropriation. [Can. Xorthem- 
 Westem Ry. Co. t. Morare, 23 Di-R. t>46, 8 Aha. L.R. 379, affirmed.] 
 
 Can. Xorthem-Westera Ry. Co. v. Moore. 21 Can. Ry. Cas. 112, 53 Can. 
 S.CJL 519. 31 Di.R. 456. 
 
 Amalgamatiox of compaxies — ^Teximes o*^ coxteyaxce. 
 
 An amalgamation under the Dmninion Railway Act 190ti. ss. 361-3, wiU 
 not affect arbitration proceedings already liegun under a provincial stat- 
 ute, and the award may be enforced against the amalgamated company: 
 a tender of a conveyance of the expropriated land is not a statutory pre- 
 requisite to the validity of the award. 
 
 Haney v. Can. Northern Ry. Co., 21 Can. Ry. Cas. 388, 36 DX.R. 674. 
 
 Whkx award oomflete — Pbomtxcatiox — Arbitrators rcxcrrs officio 
 
 SSinXG ASIDE. 
 
 An award under the Railway Act <m the expropriation of land for rail- 
 way purposes is not eonelnsive merely <m the signing of an award by a 
 
312 EXPROPRIATION 
 
 majority of the arbitrators; in order to be binding it must be published 
 or promulgated within the period provided for making the award, as al- 
 though signed within such period, it is subject to modification until pub- 
 lished; upon the expiration of such period the arbitrators are functi oflicio 
 and the award must be set aside, if the parties were not notilied of its 
 making, until after the expiry of the time limited for that purpose. 
 [Hampson v. Dupuis, 8 D.L.R. 500, applied.] 
 
 Lachine, Jacqiies Cartier & Maisonneuve Ey. Co. v. Theberge et al., 21 
 Can. Ry. Cas. 385, 20 D.L.R. 703. 
 
 Provincial kailway — Expropriation under provincial act — Amalga- 
 sfation with dominiox company award preserved. 
 
 The award of arbitrators appointed under the Manitoba Expropriation 
 Act (R.S.M. 1913, c. 61) to fix the compensation for lands crossed by a 
 provincial railway company is not rendered void by the amalgamation of 
 such company with a Dominion company, aft«r the appointment of the 
 arbitrators but before the award has been made, the arbitration proceed- 
 ings having been continued after the amalgamation without objection on 
 the part of either company. Ss. 362 and 363 of the Dominion Railway 
 Act, 1906, continue and preserve the award against the amalgamated com- 
 pany, [Fargey v. Grand Junction Ry. Co., 4 O.R. 232, followed; Van 
 Home V. Winnipeg & Northern Ry. Co., 18 D.L.R. 517, referred to.] 
 
 Haney v. Can. Northern Ry. Co., 23 Can. Ry, Cas. 232, 42 D.L.R. 41. 
 
 Validity of award — Improper valuation as to dates. 
 
 An award in expropriation proceedings under the Railway Act, Alta., 
 1907, c, 8, is not invalidated because the arbitrators proceeded to fix the 
 value as of the date of the arbitration instead of the date a few months 
 earlier in the same year, when the appointment of the third arbitrator 
 was made by a Judge's order, if the case developed no distinction as to 
 value between those dates and both parties at the opening of the arbitra- 
 tion had acquiesced in the arbitrators' suggestion that the present value 
 should be the basis of compensation. 
 
 Can. Northern-Western Ry, Co, v, Moore, 23 D.L.R. 646, 8 Alta. L.R. 
 379, 
 
 Arbitration, what constitutes — "Valuation" distinct from "arbi- 
 tration." 
 
 It is indicative that a valuation and not an arbitration was Intended 
 by the written submission to three persons that they are therein termed 
 "valuers," and that the submitting parties oflfered no evidence. 
 
 Re Laidlow and Campbellford, Lake Ontario & Western Ry, Co,, 19 
 D,L.R, 481, 
 
 Award — Conclusiveness — Review — Mistake. 
 
 To justify the setting aside of an award by a single arbitrator on the 
 ground of mistake not appearing on the face of the award or in papers 
 incorporated therewith, the arbitrator's admission of the mistake is neces- 
 sary; so where there were three arbitrators, two of whom published an 
 award, both must concur in certifying the mistake not apparent upon the 
 award which the Court is to rectify and no relief can be granted where 
 one of them denies that there is any mistake although the other asserts 
 there was and desires the assistance of the Court, [McRae v. Lemay, 18 
 
EXPKOPRIATIOX. 313 
 
 Can. S.CJL 280; Dfam t. Blake, IaXL 10 CP. 388; Flynn t. BobertscMi, 
 L.R. 4 CJ». 324, referred to.] 
 
 Re Laidlov aad Campbellford, Lake Ontario t Western Bj. Co., 19 
 DX.R. 48L 
 
 Award — Coxcxusttexess — Aitkal. 
 
 An award in arbitration proceedings under the Railway Act, ILSJB.C. 
 1911, is final amd conclnsiTe exeept for Uie statntorv rigbt of appeal (s. 
 68) ; it cannot be altered except by the Court on the hearing of t^ appeal, 
 and the power of remitting and setting aside an award upon motion is 
 exdnded. [Van Home t. Winnipeg Rt. Co., 14 DJJEt. 897, and Ontario 4 
 Qndiec Ry. Co. v. Valli^res, 11 Can. Ry. Cas. 1, cited.] 
 
 Re British Columbia Railway Act and Can. Nort^iem Pacific Ry. Co., 
 20 DXJL 633. 
 
 COXCLCSITEXESS OF ADJCDICATIOX — ^MeMOBASDUM FOKMAI. AWARD — PreP- 
 
 ABATIOX OF — ADJOURXED MEETING CHAXGtXG ADJTn>ICATIOX. 
 
 On a majivity of the arbitrators signing a memorandum of their ad- 
 judication under the Railway Act, 1906. and adjourning the arbitrators' 
 meeting pending the preparation of a formal award as an authentic no- 
 tarial document, it is too late for one of the majority to hare the adjudi- 
 cation varied at the adjourned meeting if notice of such adjudication has 
 been given to the parties; a notarial document passed on the later date 
 with a lesser sum awarded than that first decided upon and notified to the 
 parties, will be set aside. 
 
 Lachine, Jacques Cartier, etc., I^. Co. v. Kelly, 20 DX.R. 587. 
 
 Remitttsg award — JrRisDicnox xr^fwat B.C. Railwat Act. 
 
 There is no jurisdiction to remit an award in an arbitration held under 
 the British Columbia Railway Act. 
 
 Re Can. Xorthem Pacific Ry. Co. and Finch, 20 B.CJL 87. 
 
 Right of Jcuge to APPOiyr — Notice to owner. 
 
 A Judge of the County Court alone has jurisdiction to appoint a sole 
 arbitrator to determine the value of lands taken or required tmder the 
 provisions of the Xew Brunswick Railway Act, exeept when he is personal- 
 ly interested in tiie lands, in which case a Judge of the Supreme Court 
 has such jurisdiction. Where an owner of land omits to name an arbi- 
 trator in expropriation proceedings after notice is served on him as re- 
 quired by the New Brunswick Railway Act, a sole arbitrator cannot be 
 appointed by any Judge until notice of the intended application for such 
 appointment has first been given to the land owner. 
 
 St. John t Quebec Ry. Co. v. Anderson, 43 X.B.R. 31. 
 
 Quebec — Sfeciai. sTATtrroRT procedi:ye. 
 
 In railway expropriations the parties have a right to refuse to take 
 proceedings luder the special statutes passed for this purpose and to agree 
 to an ordinary, voluntary and conventional arbitration, these acts not 
 being of public order. 
 
 Girard t. Ha-Ha-Baie Ry. Co., 47 Que. S.C. 325. 
 
 C. Compensatitm, Measure of. 
 
 IXJTRT TO PROPERTT BY COXSTBCCTIOX OF SCBWAT — LlABIUPr OF MlTmCI- 
 PAUTT. 
 
 A special statute in Ontario, 46 Tict. c. 45, authra-ized the municipali- 
 ties of the city of Toronto and the village of Parkdale, jointly or sepa- 
 
314 EXPROPRIATION. 
 
 rutely, and the railway companies whose lines of railway ran into Toronto, 
 to agree together for the construction of railway subways; provision was 
 made in the Act for tlie issue of debentures to provide for the cost of the 
 work, and the by-law for the issue of such debentures was not required 
 to be submitted to the ratepayers; there was also provision for compensa- 
 tion to the owners of property injuriously affected by such work, such 
 compensation to be determined by arbitration under the Municijjal Act 
 if not mutually agreed upon. The municipalities not being able to agree, 
 Parkdale and the railway companies entered into an ajireenient to liave 
 a subway constructed at their joint expense, but under the direction of 
 the municipality and its engineer, and on the application of Parkdale and 
 the railway companies t« the Kailway Committee purporting to l)e made 
 luider 46 Vict. c. 24 (D.), an order of the Railway Committee was ob- 
 tained authorizing the work to be done according to the terms of such 
 agreement. The municipality of Parkdale then contracted with one G. 
 for the construction of the subway, and a by-law providing for the raising 
 of Parkdale's share of the cost of construction was submitted to, and 
 approved of, bj' the ratepayers of that municipality. In an action by the 
 owner of property injured by the work: — Held, per Ritcliie, C.J., Fonrnier 
 and Henry, JJ., that the work was not done by the municipality under the 
 s])ecial Act, nor merely as agent of the railway companies, and the munic- 
 i])ality was, therefore, liable as a wrongdoer. Per (Jwyniie, J.: — Ihat the 
 work should be considered as having been done under the special Act, and 
 the plaintiffs were entitled to compensaticm thereunder. IVr Tasdiereau, 
 .r.: — -That the work was done by the municipality as agent of the railway 
 companies, and it was, therefore, not liable. 12 A.R. (Ont.) 393, reversing 
 8 O.K. 59, 7 O.R. 270. reversed. 
 
 West V. Parkdale, 12 Can. S.C.R. 250. 
 
 [Affirmed, 12 App. Cas. 602; discussed in Ayers v. Windsor, 14 O.R. 
 682; referred to in Grand Trunk Ry. Co. v. llaniilton Radial, 29 O.R. 
 143; Mason v. Soutli Norfolk Ry. Co.', 19 O.R. 1:52; Piatt v. Grand Trunk 
 Ry. Co., 11 O.R. 246; applied in Chaudiere Machine & Foundry Co. v. 
 Canada Atl. Ry. Co., 33 Can. S.C.R. 14, 2 Can. Pvv. Cas. 306; Saunby v. 
 London Water Commissioners. [1906] A.C. 110; Water Commissioners of 
 London v. Saunby. 34 Can. S.C.R. 664; approved in Arthur v. Grand 
 Trunk Ry. Co., 22 A.R. (Ont.) 89; considered in ]\Iarsiin v. Grand Trunk 
 Pac. Ry. Co., 2 Alta. L.R. 51; distinguished in Can. Pac. Ry. Co. v. Grand 
 Trunk Ry. Co., 12 O.L.R. 320; followed in Rannatyne v. Suburban Rapid 
 Transit Co., 15 .Man. L.R. 19; Hanley v. Toronto, Hamilton & Buffalo Ry. 
 Co., 11 O.L.R. 91; llendrie v. Toronto, Hamilton, etc., Ry. Co., 26 O.R. 
 667; Smith v. Public Parks Board, 15 Man. L.R. 258; referred to in Bas- 
 kerville v. Ottawa, 20 A.R. (Ont.) 108; Birely and Toronto, etc., Ry. Co., 
 Re, 28 O.R. 468: Clair v. Temiscouata Ry. Co., 37 N.B.R. 613; McArthur 
 v. Northern & Pacific Junction Ry. Co., 17 A.R. (Ont.) 86; Nelson & F.S. 
 Co. v. Jerry, 5 B.C.R. 405; Winnipeg v. Toronto General Trusts, 19 Man. 
 L.R. 427; relied on in Sandon Waterworks & J^ight Co. v. Byron N. White 
 Co., 35 Can. S.C.R. 321.] 
 
 Alteration of route. 
 
 An order of the Railway Committee imder s. 4 of the Railway Act, 
 1886, does not of itself, and apart from the provisions of law thereby 
 made applicable to the case of land required for the proper carrying out 
 of the requirements of the Railway Committee, authorize or empower the 
 railway company on whom the order is made to take any person's land or 
 to interfere with any person's right. Such provisions of law include all 
 the provisions contained in the Consolidated Railway Act, 1879, under the 
 
EXPROPRIATION 315 
 
 headings of 'Tlans and Surveys'' and "Xands and their Tmlnation'' whieh 
 are applicable to the ca>e: the taking of land and the interference with 
 rights oTer land being placed on the same footing in that Act. Where a 
 railway company, acting under an order of the Railway Committee, did 
 not deposit a plan or book of reference relating to the alterations required 
 by such order it was not entitled to commence operations. Under the 
 Act of 1879 the payment of cumpen^ation by the railway company is a 
 cnndition precedent to its rights of interfering with the po^sieii^ion of land 
 or tlie rights of indiridual^. [Jones r. Stanstead Ry. Co., LJl. 4 P.C. 98; 
 dL>tinguished 12 Can. S.C.R. 250, reversing 12 A.R. (Ont.) 393. restoring 
 S t).lJ. 59, 7 OJl. 270. affirmed.] 
 
 L Followed in Burt v. Dom Iron t. Steel Co., 19 Can. Ry. Cas. 187. 25 
 DXJi. 252; distinguished in Brant t. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 
 26S.] 
 
 Parkdale t. West (1887), 12 App. Cas. 602. 
 
 AWAKD 1 X ADEQUATE COMPEXSATIOX. 
 
 In a case of an award in expropriation proceedings under the Railway 
 Act, 1886, c. 109, it was held by the Superior Court for L.C". and the 
 Conri of Queen's Bench for L.C. that the arbitrators had acted in good 
 faith and fairness in considering the value of the property before the 
 railway passed through it, and its ^-alue after the railway had been ctm- 
 structed, and that the sum awarded was not so grossly and scandalously 
 inadequate as to shock one's sense of justice. On appeal to the Supreme 
 Court of Canada: — Held, that the judgment should not be intarfered with. 
 [6 (Que.) Q-B- 3S5. MJLJL 5 (Que.i S.C. 136, affirmed.] 
 
 Benning v. Atlantic k N.W. Ry. Co., 20 Can. S.C.R. 177. 
 
 SCFTICIEXCT or AWARD. 
 
 Appeal and cross-appeal from the judgm«it of the Exchequer Court <m 
 a claim arising out of an expropriation of land at Port Hawkesbory, X.S.. 
 for the purposes of the Cape Breton Ry. The amount awarded to the 
 claimant was $9,223.50, and the Exchequer Court judgment, which is re- 
 ported at length in 2 Can. £s. 149, was unanimously affirmed by the 
 Supreme Court. 
 
 Paint T. The Queen (1S91), 18 Can. S.CJK. 718. 
 
 [Applied in The Queen v. Clarke, 5 Can. Ex. 65; commented on in The 
 Qoeen v. Barry, 2 Can. Ex. 352: followed in Re Gilbert and St. John Hort- 
 icultural Assn., 1 X.B. Eq. 448: The Queen v. Harwood, 6 Can. Ex. 423; 
 referred to in Tlie King v. Harris. 7 Can. Eje. 280; Letoumeux v. The 
 Queen, 7 Can. Ex. 8; Xeilson v. Quebec Bridge Co., 21 Que. S.C. 334; 
 The Queen v. 3iurray, 5 Can. Ex. 72.] 
 
 Damage bt reason of ooxsTRrcriox. 
 
 Under s. 159 of the Railway Act. 1906, the Board ordered that the loca- 
 tion of the appellants' line of railway along certain streets in the city of 
 Fort William be approved in accordance with an agreement between the 
 appellants and the municipal corporation, but subject to the condition 
 that the appellants shall ''make full compensation to all perstms interested 
 for all damage sustained by reason thereof:" — ^Held, that the order must 
 be rescinded. Under s. 237 (3) the power to award damages was in re- 
 spect of construction, and s. 47 did not <m its true construction extend 
 that power to meet the case of location; and as the condition failed there 
 was no approval. 
 
 Grand Trunk Pacific Ey. Co. t. Fort William et aL, [1912J A.C. 224. 
 
316 EXPKOPRIATIOK 
 
 Land injtbiouslt affected. 
 
 Where the statute under which a claim was made for damages to land, 
 caused by tlie construction of certain works and the closing up of certain 
 streets, provided that any advantage which the real estate might derive 
 from tlie conteniphited works sliould he deducted from the sum estimated 
 for damage done to the land in arriving at the compensation to be paid, 
 and it was found that the detriment to tlie claimant's property caused by 
 the closing of the streets was more than offset by the advantage accruing 
 to it from the construction of the works; it was held, that the claimant 
 could not recover anything in respect to such detriment: — Held, also, 
 that, even if the detriment to the claimant's land should alone be consid- 
 ered, he is not entitled to compensation by reason only that he is, by the 
 construction of a public work, deprived of a mo'de of reaching an adjoin- 
 ing district from his land and is obliged to use a substituted route which 
 is less convenient, if the consequent depreciation in the value of his prop- 
 erty is general to the inhabitants of the particular locality affected, though 
 his property may be depreciated more than that of any of the others. 
 The claimant in such a case would have no right of action at common 
 law, and therefore his land was not injuriously affected within the mean- 
 ing of the statutes, the test in siich cases being, would the complainant 
 have a right of action if the work had been done without statutory author- 
 ity. 
 
 Re Shragge and Winnipeg, 20 Man. L.R. 1. 
 
 Fabm crossing — Compensation in lieu of. 
 
 When the value of a piece of land enclosed by a line of railway is so 
 small as to be disproportionate to the cost of a farm crossing, and is of 
 ho utility to the farm from which it is so sepai^ated, tlie Court has the 
 power and the discretion to grant to the proprietor a pecuniary compen- 
 sation in lieu of a crossing. 
 
 Martin v. Maine Central Ry. Co., 19 Que. S.C. 561. 
 
 Claim fob compensation — Amendment — Misconduct of pabtt. 
 
 In an action claiming compensation for land taken for railway pur- 
 poses, defendant appealed from that part of the order of the trial Judge 
 which required him to pay costs of the action and trial to plaintiff except 
 costs of the order to amend. It appeared that defendant was at no time 
 liable in the action, either before or after the amendment, but was en- 
 titled to have the action dismissed, and, in the ordinary course, with 
 costs: — Held, that the trial Judge, under these circumstances, while he 
 could deprive defendant of costs, for reasons of misconduct set forth in 
 his order, could not make defendant pay costs to plaintiff. 
 
 Sawler v. iMunicipality of Chester, 41 N.S.R. 168. 
 
 Injuby to adjoining property. 
 
 Independently of the right to indemnity to be determined by arbitration 
 for the value of his land, an owner whose land is taken for construction 
 of a railway has a right of action for damages against the company for 
 injury to his works situated outside the line of the 100 feet the law per- 
 mits the latter to expropriate. 
 
 Germain v. Can. Northern Quebec Ry. Co., 36 Que. S.C. 10. 
 
 B. Arbitration and Award. 
 Enhanced value of residue of land. 
 
 If, by reason of benefit, however questionable and uncertain it may be, 
 the value of land (part of which had lieen exprojjriated for construction 
 of a railway) has been enhanced on the market, the arbitrators may take 
 
EXPKOPKIATIOX. 317 
 
 Ejom-wax w.fu i au» — Gbocsbs or coxrws&Mxaam — Amitkmm. wmaat AWMtm. 
 
 (1) Wfcea ike axWtratois ia csptopriatioa jKneeetmga^ mmitr tht Eafl- 
 ««T .^rf, 19QS, hmwm allwRd mm «< tke puties i» fttui* incgvlartT is 
 tke fndtaictMB «i U* erUon, if the attker pulhr thwi^t iihjiilin^ aOer- 
 vatr^ pats ia Us iiiiiMi, he i ■■■ill set vp At im^iBlaritT as a giwad 
 •f appeal favH Oe avarl. It cimcs viAia the das of tnhakal ohJM>- 
 tioBs which ave provided ^Eaint ia Sw 305 aff the JUt. i^t The avaid 
 is Tafidtjr ande W the aihitiat«¥ at a HMtiag «f which the aihitzatnr. 
 ■uaed hf the eipapiijiiajg party, has had dae aatiri, aad it aeed aot he 
 jmtd ^aa sach partr. fSi A faxtjr aha ipptali fraaa aa aaaid is 
 utappcd faaaa ■tt«Ai^ it, 4m the gniaad tint it was aot scmtd. «4n 
 Ihe ■iaiiiiiiiw af indeiaaft er i dea ct hjr the aiWtnton, if aot jh caa to 
 han affected the ■■naal af the award, is aa fcuwail af appeal thenefw. 
 fi| Ihe Cont, adjadicatiqe «■ u afpol ^'cr sl 319 af the Jcc is 
 haaad tag* thra^gh all the evi^Me aad esaauae iato the jwttiee of the 
 awaid, p aji n fe dae r^tri Urn ihe fiadiap cf the axhitntawa, whace cnaela- 
 aiaa. hawenr, is aot hiadi^g, evtm thn^gh they he aat ihi aa to have 
 encd m pri a c iple ar to have ahaoed their aathovity. (<» la fina^ ea^ 
 pfamtiM, repaid ihaald he had to the praspeetive capahilitic^ of the 
 piaputj, ax»ag fra^ Us character aad atastiaa. {Tn Whca the evi- 
 deace is d itiiiat aa aa < h aw a t of daaa;^ f e.^ Ae sevoaace of the pcwp- 
 tatj iato twa hhirl i hjr the iailwai->i. which the axhitiatars were i aihhil 
 to appfi-iiaic hjr iaipulMM, their fiaiiiiap ia that R^^avA will aot he 
 d i a ia i hed ia appeaL fSI Ihe heaefit denrahle from the railwar that 
 CBB he aet aff afpiiut tte dswtge earned hy the e^peuptia tiaa. anast he 
 swh as B "hi J wad the iaocased iralae, i laaaiiia to aH leads ia the lo- 
 cality.* If the ptopiitj he a auD site, with a water power availahle, it 
 caaant. he migui that its aaly 'valae i? ^T«a it ty tte lailway. i ii ■ i m a h 
 as the owiMT of a riral nil site ia the locality^ aot toached 'hr the rail- 
 way; wwald pecsaanhly derive the saiap ULacJt fxv^ it. 
 
 Qaehee, Maatnal t Soitthera By. Cm. r. Laatry, 19 Qae. KBL 8S. 
 
 AwiLxa or aiif t<c»w; — Retiew bt cesthkaki — Caaoa rs tmKsanm—Aij- 
 MxmxsfX or tjoxk or mracnmcEsrxs yukmE ar cmtrjjrr. 
 
 Be Maritime Coal ft Ry. Col aad Eldertda, 2 KJLB^ iU (SJS.). 
 Yaixv or iu&59 TAEEx — Bailwat caosa^^CL 
 
 Bex T. IfeFhee^ i ELI..B. 4¥». 
 
 Smiffix na r obuni — Btslscss uki^csl 
 
 Upoa appfiratiaa aaihi s. 139 of the BaOway Art. 1903. to ae^KBC 
 laads far statioa paipawA the Board aaay wfa l rr aot Mmiy the tiafie 
 to the <tatina aa the railway of the apidieaats iaaediataiy or 
 diifTiare,, hat al«o fatare trafie oa the railway aad fke fataie 
 of tihe pahlir. Ia deali^ with the fai iiliii of rnaipraii 
 tiaa, Ae Board aay refaiie the applicaats to do aay act whatmr. ia- 
 daiiag the pajMeal af awacy. ia additiaa to the iiiMpiaialiiia otdiaarihr 
 alhmd aader tbt ^bataie, liat aay swh «Ajati«— l coapcaaatiaa shoaU 
 he allawed ealy aader ^evy pecaliar circaaBtaaces. Wheve aai e hua se 
 pta p utf had hcea destroyed he- fiie. aad aa appiicatiaa was sade to 
 expnpriate Oe Ivad aader s. 139:— HeU, per KiDai^ Chief Caanaiaioa- 
 o-: — Ihat ea^pcaiatiaa yhoald aot he paid to the owaers far hanaese 
 tiha fite aad datiag pi i w«edi a gT takea faefoic the 
 
318 EXPROPRIATION. 
 
 Board for leave to exijropriate, but interest from the date of the orgi- 
 nal application for such leave was allowed. Per Bernier, Deputy Chief 
 Commissioner (dissenting) : — The principles upon wliich compensation 
 should be allowed are fixed by the Railway Act and the Board has no 
 power to order payment of compensation for any other damage than that 
 wliich the statute allows in tlie ordinary case of expropriating lands under 
 the Railway Act, Per Mills, Commissioner (dissenting) : — That compensa- 
 tion can be allowed under s. 139, for business losses sustained while an 
 application for leave to expropriate is pending, and that this was a proper 
 case for allowing damages for sucli losses. 
 
 Re Grand Trunk Ry. Co. and Esplande in City of Toronto (Burnt 
 District Case, Toronto, No. 25), 4 Can. Ry. Cas. 290. 
 
 SeVKRAXCE of FAHM — ACCKSS OF CATTLE TO SPRINGS. 
 
 The railway company took for the purposes of their railway 3.09 acres 
 of a grain and dairy farm of about 195 acres. The railway crossed the 
 farm, severing from the front part of it alwut 24 acres, including a field 
 of 18 acres which contained springs affording a supply of water for the 
 cattle and horses on the farm. I'pon an arbitration to ascertain the com- 
 pensation to be paid for the land taken and the damages sustained by 
 reason of the exercise of the railway company's power of expropriation, 
 the owner of the farm claimed damages inter alia for the loss or serious 
 impairment of the convenient use for the purpose of the farm of the 
 springs in the field mentioned. The company contended that the loss 
 would be minimized by the construction of a farm crossing across the 
 railway, and offered to appear before the Board and consent to an ordei 
 directing tliat such a crossing be constructed and maintained by them: — • 
 Ifeld, applying Vczina v. The Queen (1889), 17 Can. S.C.R. 1, that the 
 owner of the farm bad no statutory right under s. 198 of the Railway 
 Act, 1903, to have a farm crossing suHicient to provide a satisfactory 
 means of access for his cattle to and from the springs, and therefore, that 
 he might be deprived thereof at any time at tlie will of the government, 
 he was entitled to damages in respect of this chiini. Construction of 
 subss. 1 and 2 of that section of tlie Railway Act: — Held, upon the evi- 
 dence, that the sum of $1,170 awarded by the majority of the arbitrators 
 was not adequate compensation for the land taken and the injury done, 
 and the amount was increased upon appeal to $2,250. Remarks upon the 
 large costs and expenses incurred in arbitrations under the Railway Act 
 and the harshness of the rule which throws them upon the landowner 
 if the amount awarded is less than that offered by the company. 
 
 Re Armstrong and James Bay Ry. Co., 5 Can. Ry. Cas. 306, 12 O.L.R. 
 137. 
 
 Farm crossing — Right to underckossing. 
 
 Where the railway was carried across a farm upon a high embankment, 
 and any crossing over it would l>e inconvenient, the owner was held en- 
 titled to an undercrossing, -in addition to payment of the purchase money 
 for the land taken and damages. [Reist v!^ G.T.R. Co., 6 U.C.C.P. 421, 
 approved; Armstrong v. James Bay Ry. Co., 5 Can. Ry. Cas. 306, 12 O.L.R. 
 137, not followed.] 
 
 Re Cockerline and Guelph & Goderieh Ry. Co., 5 Can. Ry. Cas. 313. 
 
 [See Lalande v. Can. Northern Ontario Ry. Co., 21 Can. Ry. Cas. 194; 
 followed in Atkinson v. Vancouver, Victoria & Eastern Ry. Co., 24 Can. 
 Ry. Cas. 378. 
 
EXPROPRIATIOX. 319 
 
 TALrATIOX KT AKBnmATOKS lMP«OVEME3rrS. 
 
 A railwav company in 1900 ratered upon lands and made ralnable im- 
 provements., intending to take and use the lands for the purpose of tbeir 
 niilvay. In 1905 ther obtained antboritr to take the lands, and filed 
 their plan under the Kailvay Act on the 23rd March. 1905. Arbitrators. 
 in avrarding compensation to be paid by the company for the lands, allowed 
 to the claimants a sum for the improvements actually made by the com- 
 pany: — Held, that the company did not stand in the same position as an 
 ordinary trespasser goii^ upon lands; they had a statutory right to ar- 
 (fulre a title, and entered after negotiation with the true owners, and with 
 the permission of one who claimed to be. but turned out not to be, the 
 true owner; although the improvements were fixtures, dedication to the 
 land owners was not to be presumed, but the contrary: and the amount 
 of the award should be reduced far the sum allowed for the improvements. 
 S. 153 of the Railway Act, 1903. which provides that the date of the de- 
 pant of the plan shall be the date with reference to which the compensa- 
 tioB or damages shall be ascertained does not mean that all the company's 
 JMprw I ■! nts made before depositing the plan go to the land owner; the 
 laads dealt with in this section are the lands as the c<«ipany obtained 
 thcB, in the condition they were at the time they entered, valued as of 
 the date of filing the plan: the claimants' right to compensation accrued 
 at the date the lands were taken, and stood "in the stead of the lands'* 
 by virtue of s. 173: and so the improvements were not put upon the 
 lands of the claimants at alL 
 
 Re Ruttan and Drofus and Caa. Xortbem Ry. Co., 5 Caa. Ry. Cas. 339. 
 12 Oi-R. 187. 
 
 Bauistes as akbitkatob — Hotel rmorexTr — Goodwill — Ljcesse. 
 
 Tbore is bo objection to an arbitrator who is a barrister and probably 
 alao a solicitor making an affidavit shewing how the amount found by the 
 arlHtrators was made up for use on an appeal from an award under the 
 Railway Act. 1A03: and it is therefore properly receivable on such appeal, 
 as is also the evidence of an arbitrator given on his examination as a 
 witness on a pending motion. Where the land taken consisted of an hotel 
 property, an allowance was properly made for the loss sustained by the 
 owner for the disturbance of his business and anticipated profits by rea- 
 son of the e3cpropriation, notwithstanding by the foicing 4^ of the rail- 
 way property therefrom, which the company had the right to do. the 
 hotel property might have been rendered valueless as such, but which 
 right the company bad never attempted to ex'^rcise and presumably never 
 would have exercised. The value of the license of an hotel is also a proper 
 sobjeet of allowance, though merely a personal ri^ht, and the renewal 
 thereof, though reasonably probable, is not absolutely certain. Intnest 
 on the amount of compensation awarded is properly allowable from the 
 date of the taking of the land, which in this case was the filing of the 
 plan shewing the land expropriated, and the order of the Board author- 
 izing the taking. 
 
 Re Cavanagh and Atlantic Ry. Co.. 6 Can. Ry. Cas. 395. 14 OX-R. 523. 
 
 [Disapproved in Re Can. North. Ry. Co. and Robinstm, 17 Man. L.R. 
 415; Re Clarke and Toronto. Grey k Bruce Ry. Co_ 18 Oi.R. 628, 9 Can. 
 Ry. Cas- 290; referred to in Can. Pac. Ry. Co. t. Brown Millii^ Co., 18 
 O.L.R. 85-] 
 
 Licensed hotel — Liqcok uckxse. 
 
 The Crown expropriated for the purposes of a public work certain prem- 
 ises which the owner used as a hotel licensed to sell liquors. The license 
 
820 EXPROPRIATION. 
 
 was an annual one, Lut, as the license laws then stood, it could be renewed 
 ill favour of the then owner, or in case of his death, of his widow; but 
 no license could be granted to any other person for such premises. If 
 the owner sold the property it was shewn that the use to which he put it 
 could not be continued: — Held, that while this particular use of the prop- 
 erty added nothing to its market or selling value, it enhanced its value 
 to the owner at the time of the expropriation and that such was an ele- 
 ment to be considered in determining the amount of compensation to be 
 paid to him for the premises taken. 
 
 The King v. Rogers, 6 Can. Ry. Cas. 409, 11 Can. Ex. 128. 
 
 [Adopted in Re Can. North. Ry, Co. and Robinson, 17 Man. L.R. 406.] 
 
 Damages for business — Depreciation of value of machixeby. 
 
 Where the whole property is taken and there is no severance the owner 
 is entitled to compensation for the land and property taken, and for such 
 damages as may properly be included in the value of such land and 
 property. He is not entitled to damages because such taking injuriously 
 affeots a business which he carried on at some other place. Defendants, in 
 expropriation proceedings, at the time their premises were taken had them 
 fitted up as a boiler and machine shop. The machinery was treated as per- 
 sonal property by the defendants, and sold for less than it was worth 
 to them when used for such purposes: — Held, that they were entitled to 
 compensation for the depreciation in value of the machinery by reason of 
 the taking of the premises where it had been used. 
 
 The King v. Stairs, 6 Can. Ry. Cas. 410. 
 
 Additionai> lands — Stations — Terms and conditions. 
 
 The Board, on February 23rd, 1905, made an order authorizing the 
 Grand Trunk Ry. Co. to take certain lands in the city of Toronto for a 
 railway passenger station, etc., upon certain terms and conditions (Burnt 
 District Case, 4 Can. Ry. Cas. 290). One of the terms and conditions (No. 
 7), was that the applicant should pay to the owner, if thereto required 
 by notice in writing given to it before the appointment of arbitrators, 
 compensation with interest at 5 per cent per annum from May 4th, 1904. 
 Arbitrators were appointed on January 23rd, 1906. On February 4th, 
 1907, Eckardt applied to the Board for an order to vary clause 7, so as 
 to dispense with or extend the time for giving the said notice or allowing 
 it to be given nunc pro tunc or for such further and other order as to 
 tlie Board might seem proper: — ^Held, that the application should be dis- 
 missed; the railway company had acqviired a vested right to obtain the 
 land upon the statutory terms and the matter had passed out of the 
 hands of the Board. 
 
 Eckardt v. Grand Trunk Ry. Co. (Burnt District Case (2) No. 595), 
 7 Can. Ry. Cas. 90. 
 
 Damage to remaining land. 
 
 A railway company under its compulsory powers of expropriation ac- 
 quired from the owner a certain portion of liis land for the purposes of 
 their undertaking. A majority of arbitrators by their award allowed 
 compensation for depreciation to the remainder of his land resulting from 
 the operation of the railway elsewhere than on the land so taken: — Held, 
 upon appeal (1), tliat the award must be set aside and the question 
 referred back to the arbitrators for further consideration and award. (2) 
 That the plaintiff is entitled to compensation for the depreciation of the 
 value of his other lands, in so far as such depreciation is due to the antici- 
 pated legal use of works to be constructed upon the lands which have 
 
EXPROPRIATIOX. 321 
 
 kecB takes bam Vm — itr the RaHvar Act. (3) Hat tibe aElHtntor» 
 mr take iato ii—iiaiiBlMW tke Cut that the laads sovght adjoin th« 
 raflvay pRwies aad are coaTeBieat for estcBsion of thnr yard. 
 
 Caa.' Fkr. Br. Co. t. Gordoa. S Can. ^. Ca^. aS. 
 
 [FoUovcd IB Be BiDii^s awl Caa. X«rtben Oaitario By. Cou, 16 Caa. 
 Ity. Cba. 375, 15 D±JL 91&] 
 
 JUXETtASCE OF AMOTST OFFCMED KT CDMTA^T. 
 
 Uader a. 159 <rf the Bailvar Act. 1903, if the ovmt of laad aoc^t to 
 he caqpmpriated liy the railvaj rompaiiT doe$ boc accept the offor of the 
 imihniT caaapaar arithin ten darsy the coaqMUij aiaT at once |ROceed to 
 hare the ainoiuit of the emnpeBiatioB paynUe det^rauiied In* arbitzatiaai ; 
 idit the oarnn' bhit accept the offer at amy tiaae afto- the expiration of 
 ten dars if in the meantiaie the coBBpiay has taken no farthts- p ro ceed ii^y. 
 and sack offer and acceptance nill constitme a binding: contract b c taeen 
 the paxties npon vhich the oner out proceed in an action to l e co ie i the 
 
 T. Can. FuL Br. Co, 8 Can. Br. Cae. 223, IS llan. L.B. 13. 
 
 PArmcsT iSTO Corar — Cosrs. 
 
 In an action b rough t bjr plaintiff Hailing daaages for lands taken for 
 nihniT pnrpoaeay part vi ptuntiff's dai^ had been the aabjeet id arbitxa- 
 tioa and aaard. bat it a^enred that part of the viHk of coastmction pre- 
 ceded the filing of the espropnatian fdans: — ^Held, that plaintiff was en- 
 titled to re cotei for all daanges vhidk eoald hare been h filial I >lji ex- 
 elnded finoHi the coaadoatioa of the arbHrators. and that plaintiff's dai^ 
 eoald not be d u-id to baxe been satisfied fajr an avard for injnries vhirh 
 aaald not have f i>i i d a legitiasate snbject for the con&ideratiaa of the 
 arbitmtorsw Tb ft nflant paid into Coort a som (^ ^ aaeT ahiiA the trial 
 Jad^ held insaSncat, bat nhich the Coort, onder the endcaee, thot^t 
 ejmatei*e , if not the < iliii liwt oi am* dsMsge of vhich there va;$ rea- 
 aanable evid^Me: — Held, in r ejq ieet to this portion of the jn^mieBt ap- 
 pealed fniM, that defendant's a^ienl mast be alloved with costs. 
 
 Beaton t. Haboo k Golf Br. Cos » Can. Br. Cas. 25L 41 X^JL 4f9. 
 
 JtKSEWAmtx 1XX5E — Texa5^ct at wnx — ^"Tiasoxs cktebestbbl** 
 
 T«ami ii. andn- a rraewable lease, or their a«gneeB, arhere the kjga t a 
 haiv an option to renew or to par for improTenwnts. who remain in po«- 
 ■ laioa after cxpiratioB of the temi, bat to whom no renewal lease is 
 giaatcd, althoqgh doaanded, are ia ocenpatioa as teaants at will Bwrehr. 
 aad are aot ^ p e i so aa interested^ in the land within tte ■»*»»i'»g of s. 155 
 of the Bailwaj Act. 1906. and are the r e foi e not entitled to MM|wnwiliiwi 
 for expropriation of anj part of the lands deauaed. JndgMcnt of its«i4»n^ 
 J. r everae d- 
 
 Can. Pae. Bj. Co. r. foovn Milli^ t Eferator Cou * Can. Br. Cms, 56, 
 18 OX.B. 85. 
 
 [A Jua a ul in 10 Can. Br. Cas. 74. 42 Can. S.C.B. 600.] 
 
 PESSOXS IAHJUJSI BD — LESSOB ikXn t£$SEE. 
 
 The corenant for renewal of a lease for a tmn of T«ar» i« indiiisible and 
 if the le!««ee assigns a part <rf the demi-sed pmnises neither he nor his 
 enforce the covenant for renewal as to his portion. The 
 It of part of the leasehold pmaises indnded aa ■'iii^nnnHi of 
 the right to reneval of the leaae for socb part and the lessor execoted a 
 c wa e at thereto: — Held, tbat he did aot therebr agree that his corenant 
 for renewal woold be exercised in respect to a part onhr of the demised 
 Can. By. L. D^.— 21. 
 
322 EXPROPEIATIOX. 
 
 premises. In the case mentioned the lessee who has severod his term can- 
 not, when the land demised is expropriated by a railway company, obtain 
 compensation on the basis of his right to a renewal of his lease. [Can. 
 Pac. Ry. Co. v. Brown -Milling & Elevator Co., 18 O.L.R. 85, 9 Can. Ry. 
 Cas. 56, affirmed.] 
 
 Brown Milling & Elevator Co. v. Can. Pac. Ry. Co., 10 Can-. Ry. Cas. 
 74, 42 Can. S.C.R. GOO. 
 
 Wabbants of possession — Payment into Coirt. 
 
 The power conferred on arbitrators appointed under the Railway Act, 
 1906, to award compensation for lands taken by a railway company is 
 limited to determining the amount of sucli compensation merely; and, 
 therefore, they exceeded their jurisdiction in awarding interest on the 
 amounts allowed as compensation from the date with reference to wliich 
 the same were ascertained, namely the date of the filing of the plan, etc. 
 [Re Can. Northern Ry. Co. and Robinson (1908), 17 Man. L.R. 396, 8 Can. 
 Ry. Cas. 226, approved of; Re Cavanagh and Canada Atlantic Ry. Co. 
 (1907), 14 O.L.R. 523, 6 Can. Ry. Cas. 395, dissented from.] Cases de- 
 cided under the arbitration sections of the ^Municipal Act distinguished. 
 Prior to the making of the awards, possession of the lands Avas taken by 
 the railway company under warrants of possession issued by a Judge, 
 payment into Court being then made by the company of sums deemed suffi- 
 cient to satisfy the compensation to be awarded: — Held, that the owners 
 were entitled to have paid to them, out of the moneys in Court, not only 
 the amounts of the compensation awarded, but also interest thereon, not 
 limited to such interest as, according to the practice of the Court, is 
 payable on moneys in Court, but at the legal rate of interest, namely, five 
 per cent, payable from the date of the warrants of possession until the 
 date of the payment out. [Re Lea and Ontario & Quebec Ry. Co. (1885), 
 21 C.L.J. 154; Re Taylor and Ontario & Quebec Ry. Co. (1896), 11 i'.K. 
 371, and Re Philbric'k and Ontario & Quebec Ry. Co. (18SG), 11 P.R. 
 (Ont. ) 373, referrcnl to and discussed.] 
 
 Re Clarke and Toronto Grey & Bruce Rv. Co., 9 Can. Rv. Cas. 290, 18 
 O.L.R. 628. 
 
 [Referred to in Re Ketcheson and Can. Northern Ontario Ry. Co., 16 
 Can. Ry. Cas. 286.] 
 
 Additional lands — Date of acquisition. 
 
 Application, under s. 178 of the Railway Act, 1906, to take additional 
 lands about two miles in length by some 2.5 or 2.700 feet in width for 
 railway terminals, shops, storage yards and other railway purposes: — 
 Held (1), that the right of eminent domain is given to railway com- 
 panies not for their own benefit but in the public interest and to enable 
 rea8onaI)]e facilities to be given to the public. (2) That upon a strict 
 compliance with the provisions of s. 178 the company has the right to 
 acquire tlie lands covered by its application unless it is established that 
 the application is not bona fide and that the company does not require the 
 lands for public purposes or that it is acquiring them for some ulterior 
 purpose. (3) That this application should be granted subject to the fol- 
 lowing conditions: — (a) That the applicant (if required within ten days 
 after making the award) must purchase from the landowners, portions 
 of whose lands are authorized to be taken, the remainder of their lands, at 
 the same rate as may be fixed by the award for the portions taken, but 
 should the amount awarded for the portions taken include compensation 
 for damages to the remaining lands, then such amount shall be deducted 
 from the purchase price of the remainder of said lands, (b) The opera- 
 tion of the order should be stayed as to the lands covered by options until 
 
EXPROPRIATIOX. 323 
 
 ikt pMtii^ liti^tkn is tnviaatcd, whea, if expit^riatioa takes pU««. 
 tke tamfemsKtiam to he awarded ^all be ba«ed opoa fbe valae of saeh 
 l««iP« at tlie tiaie Xke applkaat actaalK acipiires title tlwieto parsoaat 
 to 8 4 9 Edv. VTI. r. 32. & 3. (rl The applicaat shall pnrride the Pitt 
 Ri««r LBBbrr Co. vith suitable raOvaT fncilitie? for the mill proposed to 
 he oeetcd oa it$ lands adjoiaii^ those aatboriaed to be takea aad if the 
 extra expense of the nem- railvar faeilitirs o>i«r the eo><t of the |H«seat 
 railvaj facilities is not taken into eonndeiatioa in the conpensation 
 awarded for the prntian taken, the qfocstioa of sock a d diti ona l expense 
 shall be referred for further considoatiaa. 
 
 Ckn. Par. Rt. Co. t. Coqnitlam Landonners, 13 Can. Rj. Cas. 25. j 
 
 [See Burnt Distrirt Case Torwnio, 4 Can. Rr. Cas. 290.] 
 
 RiGvr TO coMPEXSATiox — AsTicirxTtxt FSOFiT OX A cnop — Abaxdojoievt 
 or raocccDEXGs. 
 
 The owner of land cannot mover as ^peeial dasage tesoltii^ fraaa the 
 ■miu. of a notice of expropriatkHL br a lailvay eoapanj, vhich vas 
 ■hamtofd the anticipated profit on a crop vhich the ovno- desisted fraa 
 raiing becanse of the notice baring been served. 
 
 Hanam \. Grand Tmnk Fac By. Co. (Aha), 14 Can. Bj. Gas. 2S, 1 
 DX^SaO. 
 
 [FoUoned in Laxalee et aL r. C.X JL. 4 DX.R. 376.] 
 
 DaJUfiEB — Vaute of EXPMWVIATES l&xvs. 
 
 The Taloe of lands expropr iated for a public work is to be detennined 
 prima facie npou the basis of the market price, bat the paro^pectiTe capa- 
 bilities of the {wopntT hare to be taken into aecoont in aseertainii^ the 
 market price, and an a^iiticnal allowanee made for compolaaKy ex^opri- 
 atioL [Brown r. The Kin«. 12 Can. Ex. 463. and Dod^ t. The Ki^, 38 
 Can. S.CJL 149. speciallT referred to.] 
 
 The King v. MonctonLand Co.. 14 Can. Br. CasL 36, 1 D.L.B. 279. 
 
 liliaM H SEXTTrUDE — AsnTIXC UWMiKS ISCMEASB OF TBAFFIC. 
 
 Where a railway established a freigiht shed and freight dhonting rard 
 which materiallv increased the trafic npon that part of the raitway mn- 
 ning ilong a cilhr street and injononsly aSected the rahie of the yup e itj 
 fnmtii^ on the street to an extent not t t mit m pi at ed when the grant was 
 made many yrar^ prerioosly by the mmicipal eorpor a tion of permisnim 
 to carry the railway line along $iich street^ the Board will order eoaiH 
 prmsaiion to he paid fay the railway to such of the landowners w-ithin the 
 taiitutj injurioosly afleeted as were the owners of their property prior 
 to such chaise of emditions. 
 
 Hamilton t. Grand Trank By. Co. I Be Shunting on Fergmon Avenne. 
 Hamnton), 14 Can. By. Ca& 19«, S DJ-R. 60. 
 
 AammasAL sEanrrDC. 
 
 Pnrchasa« of |x-opfrty upon a street upon which a railway is operated 
 who boi^ht sultseqnently to the estaUidment of a railway yard and the 
 incidental damage to the ^opeities on that street by reason of the 
 ahuntibag of car$ thereon. haTii^ purchased with notice of the new cnn- 
 dit i— , are not entitled to compensation in damages as are the landown«s 
 who had acqfuired title pitpvioas to the eetahlishment of the railway yard. 
 
 Hamilton t. Grand Tmnk By. Co. K Be Shnnti^ oa Fognson At^uc, 
 Hamilton), 14 Can. By. Cas. 19^ 5 DX^ 60. 
 
324 EXPROPRIATION. 
 
 Removal of spur track. 
 
 The award of damages for the wrongful removal by a railway com- 
 pany of a spur track adjoining a coal and lumber yard from wiiich coal 
 and lumber could be unloaded from cars into the yard witli little labour, 
 based upon the owner's evidence of the additional cost of hauling coal and 
 lumber from the company's freight yards, is not erroneous, though evidence 
 that a transfer com])any would handle such commodities at a less sum 
 per day for each team, if it appeared that the coal and lumber owners' 
 teams were better than those of the transfer company and would do more 
 work per day. 
 
 Robinson v. Can. North. Ry. Co. (Man.), 14 Can. Ry. Cas. 281, 5 D.L.R. 
 716. 
 
 [See 6 Can. Ry. Cas. 101; 37 Can. S.C.R. 541; 11 Can. Ry. Cas. 289; 19 
 Man. L.R. 300; 11 Can. Ry. Cas. 304; 43 Can. S.C.R. 387; 13 Can. Ry. Cas. 
 412, [1911] A.C. 739.] 
 
 Public improvemems — Spur or switch. 
 
 The Board will usually follow the principle that a railway company 
 desiring to take land of a private individual should be given the right, pro- 
 vided the individual can he properly compensated for his land and for 
 damages to adjoining land, but it is a ground for refusing to give the 
 railway company that privilege that the proposed railway line is a cut- 
 off for freight only which if permitted would run through a valuable 
 suburban subdivision for the development of which the land proprietor 
 had dedicated large sections for the construction of driveways and parks, 
 which might be expected to benefit both the suburban locality and the 
 adjoining city and so be considered as in the nature of a puhlic under- 
 taking. 
 
 Can. Pac. Ry. Co. v. Smith, 5 D.L.R. 391. 
 
 IXCOXVl'lMEXCE AND ADDITIONAL COST OF CULTIVATING FARM CROSSED BY 
 
 RAILWAY — Interest. 
 
 In awarding damages against the railway in eminent domain proceedings 
 in respect of a railway right-of-way across a farm, the inconvenience of 
 transferring machinery and farm implements, and the like, from one part of 
 the farm to another and the inconvenience in farming and cultivating the 
 land, occasioned by the construction of the railroad, are not separate 
 items to be capitalized on an ascertainment of a prospective annual loss 
 to the owner whose farm is divided, but are to be considered only as 
 factors in fixing the depreciation of the market value of the remaining 
 parts of the farm. 
 
 Re Ketcheson and Can. North. Ont, Ry. Co. (Ont.), 16 Can. Ry. Cas. 
 286, 13 D.L.R. 854, 29 O.L.R. 339. 
 
 Damages — Depreciation — Railway right-of-way across farm. 
 
 The loss of time and inconvenience of transporting the crop from the 
 part of the farm separated from the buildings by the construction of the 
 railway on a compulsory taking of a strip of land for the right-of-way, 
 is proper to be considered in estimating tlie damages only in so far as it 
 effects a depreciation of the market value of the land not taken. [Idaho 
 & W. Ry. Co. V. Coey, 131 Pac. Rep. 810, approved.] 
 
 Re Ketcheson and Can. North. Ont. Ry. Co. (Ont,), 16 Can. Ry. Cas. 
 286, 13 D.L.R. 854, 29 O.L.R. 339. 
 
 Underlying minerals. 
 
 The value of minerals underlying the usual 100-foot strip of land ex- 
 propriated for a railway right-of-way cannot be included in an award of 
 
EXPROPRIATION. 3ii5 
 
 damages, as the railway company does not become rested with any right 
 to such minerals by virtue of the expropriation: the landowner's right 
 thereto is merely 5usp«ided until such future time as the Board shall, 
 on the latter's application, under s& 170, 171 of the Railway Act, 1906, 
 require the company to compensate the landowner for the value of the 
 minerals if nocesssarv* for the safe support of the railway; or to submit 
 to such order as the Board may make relative to the working of the 
 minerals by the landowner. A railway company does not acquire any 
 right to minerals underlying land expropriated for a right-of-way; since 
 the respective rights of the company and the landowner to the minerals 
 are to be fixed and determined under ss. 170. 171, on future application 
 to the Board, which may require the company to purchase the minerals, 
 if necessary for the safe support of the railway, or to sulmiit to such 
 (N^er as the Board may make relative to the working of the minerals 
 by the landowner. Notwithstanding that ss. 170, 171, relating to the rights 
 of a landowner and a railway company in minerals underlying land expro- 
 priated for railway purpos«^ are silent as to the right of the landowner 
 to compmsation for the vaue of such minerals, ss. 2, 26. 28. 48. 59. 178, 
 179 of the Act shew that the Board, in making an order under ss. 170, 
 171 relating to such underlying minerals, may require the railway com- 
 pany to make compensation therefor if the Biinerals are necessary for the 
 safe support of the railway. The value of minerals underlying land ex- 
 propriated for a railway right-of-way cannot be allowed as an injurious 
 affection of the land resulting from the exercise of the power of eminent 
 domain conferred by the act, since the act gives the right to expropriate 
 the surface of the land without taking the underlying minerals. 
 [Rex T. Pease, 4 B. and Ad. 30; Hammersmith, etc., Ry. Co. v. Brand, 
 L.R. 4 H.L. 171; London t North Western Ry. Co. v. Evans. [1893] 1 
 Ch. 16; Smith t. Great Western Ry. Co., 3 App. Cas. 165; Ruabon Brick 
 & Terra Cotta Co. v. Great Western Ry. Co.. [1893] 1 Ch. 460, referred 
 to; Grand Trunk Pacific Ry. Co. ▼. Fort William et aL, [1912] A.C. 224, 
 13 Can. Ry. Cas. 187, considered.] 
 
 Re Davies and -Tames Bay Ry. Co., 13 DiJL 912, 28 O.L.R. 544. 
 
 [Followed in Woodstock v.' G. X. W. Tel^japh Co., 19 Can. Ry. Cas. 427.] 
 
 Taktso laxd of eesick plaxt — ^Sepa«atios fbom socbce of sctplt — Cost 
 OF cttossrsG. 
 
 \Miere the expropriation of a railway right-of-way through land owned 
 by a brick manufacturing company separates its factory from the source 
 of its supply of brick-making material, all of which, however, was not 
 needed for immediate use, the benefits conferred on the land by the con- 
 struction of the railway and which may be off-set against the damages 
 sustained by the landowner, must be based on the present worth of a 
 sum payable not when the railway is built, but at such future time when 
 the materials will be needed in the landowners business. On the expro- 
 priation of a railway right-of-way through a brick-making plant so as 
 to separate the factory from its supply of brick-making materials, the cost 
 of grading a necessary crossing over the railway may be awarded as dam- 
 ages, notwithstanding that the construction of such crossing depends on 
 the subsequent consent of the Board. 
 
 Re Davies and James Bay Ry. Co.. 13 D.L.R. 912, 28 OX.K 544. 
 
 RiGHT-OF-WAT THBOCGH FASM — DaUACES. 
 
 Gray v. Grand Trunk Pac Branch lanes Co. (Sask.), 11 DX.R. 861. 
 
326 EXPROPRIATION. 
 
 Damages — Coxdemxatiox or depreciation ix valie by eminent domain 
 — Taking laxd vx)r railway pi'rposes — Underlying minerals. 
 
 The value of minerals underlying the usual 100-foot strip of land expro- 
 priated for a railway riglit-of-way cannot be included in an award of 
 damages, as the railway company does not become vested with any right 
 to such minerals by virtue of tlie expropriation; tlie landowner's right 
 thereto is merely suspended until such future time as the Board sliall, on 
 the latter's application, under ss. 170, 171 of the Railway Act. 1906, 
 require the company to compensate the landowner for tlie value of the 
 minerals if necessary for the siife support of the railway; or to submit to 
 such order as the Board may make relative to the working of the minerals 
 by the landowner. 
 
 Re Davies and James Bay Ry. Co.. 10 Can. Ry. Cas. 78. 28 O.L.R. 544, 
 13 D.L.R. 912. 
 
 Eminent domain — Taking land for railway purposes — Underlying 
 minerals. 
 
 A railway company does not acquire any right to minerals underlying 
 land expropriated for a right-of-way; since the respective rights of the 
 company and the landowner to the minerals are to be fixed and determined 
 under ss. 170, 171 of the Railway Act, 1906, on future application to the 
 Board, who may require tlie company to purchase the minerals, if neces- 
 sary for the safe support of the railway, or to submit to such order as the 
 Board may make relative to the working of the minerals by the landowner. 
 
 Re Davies and James Bay Ry. Co., 16 Can. Ry. Cas. 78, 28 O.L.R. 544, 
 1.3 D.L.R. 912. 
 
 Eminent domain — Necessity of making compensation — Taking land 
 for railway pi rposes — Underlying minerals. 
 
 Notwithstanding that ss. 170, 171 of the Railway Act, 1906, relating to 
 the rights of a landowner and a railway company in minerals underlying 
 land expropriated for railway purposes are silent as to the riglit of the 
 landowner to compensation for the value of such minerals, ss. 2, 26, 28, 
 48. r»9, 178, 179 of the Act shew that the Board, in making an order 
 luider ss. 170, 171 of the Act relating to such underlying minerals, may 
 require the railway company to make compensation tlierefor if the min- 
 erals are necessary for the safe support of the railway. 
 
 Re Davies and James Bay Ry. Co.. 16 Can. Ry. Cas. 78, 28 O.L.R. 544, 
 13 D.L.R. 912. 
 
 [Rex V. Pease. 4 B. & Ad. 30; Hammersmith, etc., R. Co. v. Brand, L.R. 
 4 ll.L. 171; London & North Western Ky. Co. v. Evans, [1893] 1 Ch. 16; 
 Smith V. Great Western R. Co., 3 App. Cas. 165; Ruabon Brick & Terra 
 Cotta Co. V. Great Western Ry. Co., [1893] 1 Ch. 460, referred to; Grand 
 Trunk Pacific Ry. Co. v. Fort William Land & Investment Co., [1912] 
 A.C. 224, considered.] 
 
 Condemnation or depreciation by eminent domain — Taking land for 
 railway purposes — Underlying minerals. 
 
 The value of minerals underlying land expropriated for a railway right- 
 of-way cannot be allowed as an injurious affection of the land resulting 
 from the exercise of the power of eminent domain conferred by the Rail- 
 way Act, 1906, since the Act gives the right to expropriate the surface 
 of the land without taking the underlying- minerals. 
 
 Re Davies and James Bay Ry. Co., 16 Can. Ry. Cas. 78, 28 O.L.R. 644, 
 13 D.L.R. 912. 
 
EXPROPRIATIOX. 327 
 
 COXDEirXATIOX OS MTKECiATIOX r\ TALCE BT EMIXEVT OOMAIX — SPBCIAt 
 BKVKITrS Vaute KK FTTTBE rSES. 
 
 Where the ex]Ht>priatioo of a raihrsT rigfat-of-war throng land owned 
 by a lHi<^ manafaetarii^ rompanr separates its factorr from the soorve 
 of Its supply of briek-making material, all of which, however, was not 
 needed for immediate use, the benefits conferred on the land by the eoa- 
 stmction of the railway and which may be off-^et against the damages sus- 
 tained by the landowner, mast be based on the present worth of a som 
 payable not when the railway is built, fant at such future time when 
 the materials will be needed in the landowner's business. 
 
 Re Davies and James Bay Ry. Co., 16 Can. Ry. Ca&. 78^ 28 OX.R. »44, 
 13 Di.R. 912. 
 
 DaIKAGES CoMIKllJEAnON OB DEP«ECIATIOA IX TAtTE BT EMnCEXT DOMATX 
 
 — Taking ulxd txm kallwat pi^eposes — ^1"xi«klttsg mixebals ix 
 
 SLOPE srppiwrixG bight-of-wat. 
 In expropriating land for a railway right-of-way an element of damage 
 to be taken into consideration in making an award is the value of min- 
 erals underlying the land supptHling the slopes of the right-of-way. Imt 
 outside of and beyond the -lO-yard strip under whidi the landowner is pro- 
 hibited by s. 171 of the Railway J^ct, 1906. from working the minerals 
 without an order from the Board. [Lxmdon i. North Western R. Co. t. 
 Evans. [1893] 1 Ch. 16. and London & North Western Ry. Co. v. Howlej 
 Park Coal k Cannel Co., [1911] 2 Ch. 97, at 130, affirmed in [1913] A.C. 
 11, specially referred to.] 
 
 Re Davies and James Bay Ry. Co.. 16 Can. Ry. Gas. 78. 38 O.LJL 544, 
 13 D.LJl. 912. 
 
 Damages — ^EiirsE^sr domain — Valte fo« speciai. rsE — Futtbe expax- 
 siox. 
 
 The measure of damages for the eiEpropriation for railway purposes 
 of a portion of land owned by a manufacturing concern, whidi. al- 
 though not in present use. is the 'natural outlet for the future expan- 
 sion of the business, is not the probable future profits that might be 
 realised from the utilization of the land taken, considered apart from 
 its nmjunction with the remainder of the land owned by the cMnpany. 
 but is such proportion of the profits arising from the whole of the land, 
 occupied by the entire plant, including that expropriated, as the amount 
 of the land taken bears to all of the land occupied by the cmnpany's plant. 
 
 Re Davies and James Bav Rv. Co.. 16 Can. Rv. Cas. 78, 28 OJLJL 544, 
 13 DiJL 912. 
 
 Damages — Emixent domaix — Valie of land taken — Laxb xot rx pbes- 
 
 EXT rSE. FTTTBE EXPANSION. 
 
 Where laml owned by a manufacturing company, but not required for 
 present use. is expropriated for railway purposes, damages f<Mr the taking 
 are to be based on the present worth or the future value of the land to 
 the owner at such time as be may require it for use in his business. 
 
 Re Davies and James Bay Ry.'Co., 16 Can. Ry. Cas. 78, 28 OJLJL 544, 
 13 D.LJL 912- 
 
 Damagcs — Eminent domain — Conseqtentiai. ixxtbies — Setebanct fbom 
 
 MixEBAi. STPPI.T — Additional cost of tbansp<wtation. 
 
 Where the expropriation of a railway right-of-way through land owned 
 
 by a Inirik-making company severed its factory from a source of future 
 
 supply of brick-making material, an element of damage to be considered 
 
328 expr()priatio:n^. 
 
 in awarding damages is tlie additional cost of transporting material as the 
 result of the building of the railway; altliough, if the material will not be 
 required for many years, only the present value of the cost of transporting 
 at the time when required for use, should be awarded. 
 
 Re Davies and James Bay Ry. Co., IQ Can. Ry. Cas. 78, 28 O.L.R. 544, 
 13 D.L.R. 912. ^ 
 
 [Varied in 19 Can. Ry, Cas. 86.] 
 
 PrIXCIPI,E of compensation — ^^IaRKET VAM'E. 
 
 The principle upon which compensation and damages should be awarded 
 upon an ex])ropriation of land is the market value, including the potential 
 value of tlic land tai<en, at the time of the filing of the plans, without 
 taking into consideration the values and elements of compensation incident 
 to the property at the time of the award. 
 
 St. John & Quebec Ry. Co. v, Fraser, 19 Can, Ry. Cas. 177, 24 D.L.R. 
 339. 
 
 Evidence as to value of property. 
 
 The price paid for lands contiguous to the land concerned in expropria- 
 tion proceedings by a railway company, although sudi price includes dam- 
 ages caused by the operation of the railway alongside the property, is 
 properly regarded in proof of the value of the expropriated property as 
 is also the price mentioned in an option to purchase tlie same. [Dodge v. 
 The King, 38 Can. S.C.R. 149, followed.] 
 
 Re Billings and Can. Northern Ontario Ry. Co., 16 Can. Ry. Cas. 376, 
 29 O.L.R. 608, 15 D.L.R. 918. 
 
 Condemnation proceedings — ^Adaptability. 
 
 In ascertaining the quantum of damages in expropriation proceedings, 
 consideration must be given to the possible profitable uses the land might 
 be put to or is available for as well as what it has been customarily 
 used for, as affecting its present market value, [Ford v. Metropolitan, 
 etc,, Ry, Co., 17 Q,B,D. 12, followed.] 
 
 Re Billings and Can. Northern Ontario Ry. Co., 16 Can. Ry. Cas. 375, 
 29 O.L,R. 608, 15 D.L,R. 918. 
 
 Obstri'cting access to street. 
 
 Where a strip of land not a part of, but adjoining, a public highway 
 and used in conjunction therewith is expropriated by a railway company, 
 the landowner who has used the strip in conjunction with the highway as 
 a means of access to his land is deprived of a valuable right for which he 
 must be compen8at«d, even though his user depends partly on the consent 
 of a third party, apparently willing to grant it on terms dealing with 
 future developments, [Holt v. Gas Light & Coke Co., L.R. 7 Q.B. 728; 
 O'Neil v. Harper, 13 DJ^.R. 649, 28 O.L.R. 635; Re Myerscough and T^ke 
 Erie & Northern Ry. Co., 11 D.L.R. 458, 15 Can. Ry. Cas. 168, followed.] 
 
 Re Billings and Can. Northern Ontario Ry, Co,, 16 Can, Ry. Cas, 375, 
 29 O.L.R. 608, 15 D.L.R. 918. 
 
 [Reversed in 21 Can. Ry. Cas. 310.] 
 
 Construction and operation of second railway. 
 
 Tlie owner of property over wliich one railway has obtained a right- 
 of-way is entitled to other and different damages from a second company 
 
EXPROPRIATION. 329 
 
 ezpn^riatiag land mkamgude the first, tlie property lutring alreadr adjusted 
 itadtf to the first nvaaoa. 
 
 Re BflKi^ and Can. Xorthem Ontario Rj. Co., 16 Can. Rt. Cjls. 375, 
 29 OXJL 608, 15 DXJL 918. 
 
 XOISK, SMOKE A^H) THIKATIOX COXDEMSATIOX ntOCEEMNCS. 
 
 Where part of a proprietor's land is taken from him and the future 
 use of the part so ^iken may damage the remainder, such damage may 
 be an injurious affecting of the proprietor's otho- lands; so a railway 
 expropriating a narrow strip of land for trains to cross over is liable 
 for the injurious affecting of the land adjoining by reason of smoke, 
 noise and vibration occasi<med by trains parsing over such strip. [Cowper 
 Essex V. Local Board for Acton. 14 A.C. 153 at 161; Horton v. Colwyn 
 Bay, etc., [1908] 1 KB. 327: Rex v. Mountford. [1906] 2 K. B. 814; 
 Can. Pac. Ry. Co. v. Gordon. S Can. Ry. Cas. 53, followed.] 
 
 Be Billings and Can. Xorthem Ontario Ry. Co., 16 Can. Ry. Cas. 375, 
 29 Oi-R. 608, 15 DJ*R. 918. 
 
 Setakate titles am» orrats to tseat. 
 
 Where titles are distinct, each separate owner is entitled as of right to 
 have a separate offer of comprasation made to him by the railway company 
 expropriating the land for railway purposes. 
 
 Re Edmonton. Dtmvegan 4 British Columbia Ry. Co.. 16 Can. Ry. Cas. 
 396, 15 D.L.R. 938. 
 
 31IXE«-WjS SirBJACEST AXB ADJACEST — RlGHT OF SUITOBT. 
 
 The effect of the Railway Act, 1906. with regard to the expropriation of 
 land by a railway company differs from that of the Railway Clauses Con- 
 solidation Act, 1845, in that under the former Act the company acquiring 
 the surface has a right of support from minerals subjacent and adjacent to 
 the line. 
 
 Davies v. James Bay Ry. Co., 19 Can. Ry. Cas. 86, [1914] A. a 1043. 
 
 MrxE owxE« — Restwctio:c op kights — ^Miaerals — Fcttke cse — Compex- 
 
 SATIOX. 
 
 Under the Railway Act. 1906. the owner of minerals is oititled to com- 
 pensation for loss arising from the restriction uf his rights, without wait- 
 ing until he wishes to work the minerals: this compensatitHi is to be ascer- 
 taiaed as at the date of the deposit of plans, and once for alL [Davies T. 
 James Bay Ry. Co.. 28 OX.R. 544, 16 Can. Ry. Cas. 78, varied.] 
 
 Davies v. jimes Bay Ry. Co., 19 Can. Ry. Cas. 86, [1914] A. C. 1043. 
 
 TALrATiox — ^P«ese:st valcx of ijlm> takex. 
 
 On the expropriation of land for railway purposes the valiw to be paid 
 is the value to the owner as it existed at the date of the taking and not 
 the value to the taker: such value is the present value alone of the advan- 
 tages which the land possesses whether present or future. [Cedars Rapids 
 V. Lacoste. 16 D.L.R. 16S. [1914] A.C. 569; R. t. Tmdel, 19 DJLR. 270, 
 49 Can. S.C.R. 511. followed.] 
 
 Green v. Can. Xorthem Rj. Co., 19 Can. Ry. Cas. 139, 22 D.L.R- 15. 
 
 Plax of sr^Dtvisios — Sctesaxce. 
 
 A severance of subdivisi<Mi property, by a railway expropriation, which 
 does not injuriously affect the land as a whole is not an element of com- 
 
330 EXPKOPRIATIOK 
 
 pensation. [Holditch v. Can. North. Ont. Ry. Co., 27 D.L.E.' 14, [1916] 
 1 A.C. 536, 20 Can. Ry. Cas. 101, followed.] 
 
 Re Can. Northern Pac. Ry. Co. and Byng-Hall, 21 Can. Ry. Cas. 324, 23 
 B.C. 38, 35 D.L.R. 773. 
 
 Pbinciples governing compensation — Review by Appellate Court. 
 
 1. Upon an appeal from an award of arbitrators determining the compen- 
 sation to be paid to the owner of land compulsorily taken for railway pur- 
 poses, and for land injuriously affected by the construction of a railway, 
 under the Railway Act, 1906, Held, that the principles upon which com- 
 pensation is to be awarded are: — (a) The value to be paid for land is the 
 value to the owner as it existed at the date of the taking, not the value 
 to the taker. (b) The value to the owner consists in all advantages 
 which the land possesses, present or future, but it is the present value 
 alone of such advantages that falls to be determined. Cedars Rapids v. 
 Lacoste, [1914] A.C.' 569, 576; King v. Trudel, 49 Can. S.C.R. 501, 511, 
 followed. 2. The land in question closely adjoined the city of Moose Jaw 
 and there was a likelihood of its being subdivided. Held, that in determin- 
 ing the value of the property evidence should be directed to its value, hav- 
 ing in view the possibility of its being subdivided, and not to the fact that 
 lands surrounding and in the neighbourhood of the land in question had 
 been subdivided and sold at certain prices. 3. It is the duty of the Court 
 on such an appeal to consider all the evidence that has come before the 
 arbitrators, and if there is evidence that would justify the arbitrators in 
 reaching their conclusion, that conclusion should be sustained, if possible, 
 but the Court is entitled and bound to come to its own conclusion upon all 
 the evidence, and is also entitled to disregard the reasoning of the arbi- 
 trators if it does not agree with it, or to adopt it if it so desires, or to 
 support the award on any ground sufficient in law, whether or no't that 
 ground is relied on by the arbitrators; provided that the Court pays due 
 regard to the award and findings of the arbitrators and reviews them as it 
 would that of a subordinate Court. [Re Ketcheson and Can. Northern 
 Ontario Ry. Co., 29 O.L.R. 339, at p. 347, 16 Can. Ry. Cas. 286, followed.] 
 
 Green v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 171, 8 Sask. L.R. 53. 
 
 Estimation of value of land — ^Reconveyance of part taken. 
 
 Though an owner cannot bo compelled to take back land after it has 
 been found unsuitable for the purpose for which it was taken by a rail- 
 way company, the fact, that by accepting a reconveyance, the value of 
 tlie remaining land would be materially increased, should bo taken into 
 consideration when awarding compensation tlicrefor. 
 
 Re Hannah and Campbellford, Lake Ontario & Western Ry. Co., 21 
 Can. Ry. Cas. 326, 34 O.L.R. t>15, 25 D.L.R. 234. 
 
 Lands in.turioi'sly affected — Severance — .Jlrisdktiox — Noise — Smoke 
 — Vibration. 
 Upon the compulsory taking of lands under the Railway Act, 1906, the 
 owner is not entitled to compensation for severance from other lands 
 owned by him unless the lands taken are so connected with, or related to, 
 the lands left that he is prejudiced in his ability to use or dispose of the 
 latter. Compensation for injury likely to arise from the access to lands 
 being rendered more difficult by reason of the railway being carried along 
 or across streets rests with the Board upon making an order that the rail- 
 way shall be so carried. Further, an owner is not entitled to compensa- 
 tion for injurious affection by noise, smoke and vibration to lands separate 
 and disjoined from those taken. The language of s. 155 of the Railway 
 
EXPEOPRIATIOX. 331 
 
 Act, 1906, is fomided on t]iat of tbe proviso to & 16 of tbe Kaflway 
 Clanses ConsoIidatMii Act, lS4a. and the En^li^h decisioiis witli r^ard 
 to the effect of the latter sectioD apply to the iormer. [Can. Xorthem 
 Rt. Co. t. Holditch, 50 Can. S-CJL 265/ 19 Can. Rt. Cas. 112. affirmed.] 
 
 Holditch T. Can. Xorthem Ontario Ey. Co., 20 Can. Ry. Cas. 101, [1916] 
 1 A.C. 536. 27 DJ-R. 14. 
 
 [FoUowed in Re Can. Northern Pacific Ry. Co. and Byng-Hall. 21 Can. 
 Ry. Cas. 321, 35 Di.R- 773: North Bay Landowners t. Can. Northern On- 
 tario Ry. Co^ 23 Can. Ry. Cas. 35. 
 
 OOMPENSATIOX ^ACCESiS DEVISEES COTEXAXTS. 
 
 Tenants in cmunoa. devisees of a strip of land, intended by the testator 
 to be dedicated and used as a public road, and vho have refused to follow 
 out the testator's wishes, and have held the land for the purpose of ob- 
 taining damages for expropriation thereof, have no such interest as will 
 entitle them to damages under s. 155 of the Railway Act. 1906. although 
 the land has been used as a means of better ingress and egress to and 
 from land owned by one ot the parties. [English Railways Clauses Con- 
 soIidati<Hi Act, s. 16, Railway Art. 1906. & 155: Ricket t. Metropolitan 
 Ry. Co., LJS. 2 B.U 175-176: Hammersmith Ry. Co. v. Brand. L.R. 4 
 HX. 171 ; Cowper Essex v. Acton. 14 App. Cas. at 153 ; Stubbing v. Metro- 
 politan Board of Works, L.R. 6 Q.B. 37, referred to; Can. Northern Ry. Co. 
 4 BiUings. 15 D.L.R- 918, 29 O.L.R, 608. 16 t an. Ry. Cas. 375, reversed.] 
 
 Can. N<Mthem Ry. Co. v. Billings, 21 Can. Ry. Cas. 310, 32 D.L.R- 35. 
 
 Spbcxajl talcx — ^Abaptabiutt fob busisess. 
 
 In expropriating lands their special suitability for the carrying on of 
 the owner's business and the savings and additicmal profits which the 
 owner will derive from so carrying it on, are proper elements in assesising 
 the compensation; but the owner is not entitled to have the capitalixed 
 value of these savings and profits added to the market value of the lands; 
 what a prudent man in the owner's position would pay for them is the 
 proper measure of value. 
 
 Lake Erie k Northern Ry. Co. v. Schooley. 21 Can. Ry. Cas. 334, 34 
 OX.R. 328, 25 DXJL 537, 30 D.L.R. 289, 53 Can. S.C.R. 416. 
 
 Access to kiveb — ^Accxuixg autaxtages. 
 
 The advantage accruing to a large residential property capable of use- 
 ful subdivision from its frontage along a river is to be consideredi in fix- 
 ing the compensation for injurious affection of the remaining lands on a 
 strip of the property being taken for a railway right-of-way which cut 
 off access to the river. [R. v. Buffalo & Lake Huron Ry. Co., 23 U.CJL 
 208: North Shore Ry. Co. v. Pion. 14 App. Cas. 612. referred to.] 
 
 Re Muir and Lake Erie 4 Northnn Ry. Co, 19 Can. Ry. Gas. 107, 20 
 Di-R. 687. 
 
 MlXEKAUS QtABBT OF BOCK. 
 
 The words "or other mineral<~ used in s. 133 of the Ontario Railway 
 Act <R.S.O. 1914, c. 185 • do not include the ordinary rock of the dis- 
 trict; where a quarry of such rock has a special value, such value should 
 be included by arbitrators in fixing the amount of compensation for land 
 expropriated. [Impoial Acts, also Great Western Ry. Co. t. Carpalla, etc. 
 Clay Co, [1910] A.a 83; North British Ey. Co. T. Budhill Coal Co„ 
 
332 EXPROPRIATION. 
 
 [1910] A.C. 116, Caledonian Ry. Co. v. Glenboig, [1911] A.C. 290; Syming- 
 ton V. Caledonian Ry. Co., [1912] A.C. 87, considered.] 
 
 Ee McAllister and Toronto Suburban Ry. Co., 22 Can. Ry. Cas. 272, 
 40 O.L.R. 252, 39 D.L.R. 207. 
 
 Permission to entee iand — Oral, agreement — Statutes of frauds — 
 Co.Mi'ANY — Authority of president, 
 
 A railway company, without expropriating, ran its lino through the 
 yards of a tanning company and did work improving the yards and other 
 work beyond the ordinary scope of a railway project. Four years later 
 the tanning company applied to a judge for the appointment of arbitra- 
 tors under the Railway Act to determine the compensation for the right- 
 of-way which the railway company, opposing the application, claimed to 
 be entitled to without payment under an oral agreement with the pres- 
 ident of the tanning company since deceased. The judge ordered the trial 
 of an issue, with the railway company as plaintiff, to determine the rights 
 of the parties, and on appeal from the judgment of the Appellate Divi- 
 sion, artirming the judgment at the trial in favor of the plaintifl's, the 
 Court found that the evidence established that such an agreement was 
 entered into and was binding on the tanning company, that said company 
 was owned and conti'olled by a commercial firm of which the president 
 was the head, and the partnership articles and evidence at the trial showed 
 that he had authority to bind th(» company; and that the Statute of 
 Frauds could not be relied on to defeat the action, as it was not brouf,ht 
 to charge the defendants on a contract for the sale of land or of an in- 
 terest in land. If applicable it was taken out of the statute by part per- 
 formance. Idington and Dutf, J.T., dissenting. 
 
 Acton Tanning Co. v. Toronto Suburban Ry. Co., 22 Can. Ry. Cas. 279, 
 56 Can. S.C.R. 196, 40 D.L.E. 421. 
 
 Statutory rights — Abandonment of property. 
 
 The rights of the County of York to damages for expropriation by the 
 City of Toronto of the Toronto & York Radial Ry. Co. and all its real and 
 personal property within the city are statutory under the Act of 1897, 
 and are not affected by the fact that by a by-law the county lias aban- 
 doned certain roads over which the line is operated to minor municipal- 
 ities of the county. 
 
 Re Toronto and Toronto & Y'ork Radial Ry. Co. et al., 23 Can. Ry. Cas. 
 218, 42 O.L.R. 545, 43 D.L.R. 49. 
 
 Subway — Construction — Removal of direct approach to property — 
 Compensation — Loss of business. 
 
 Where a claimant's land is injuriously aflfected by the removal of the 
 direct approach to the premises, by the construction of a subway by a 
 railway company in a street in front of the land, such claimant is entitled 
 to full compensation for all damage arising therefrom although no land is 
 taken. The arbitrator, under s. 155 of the Railway Act, 1906, should 
 ascertain the entire compensation to which the claimant is entitled and 
 in doing so should consider evidence of loss of business and make such 
 allowance therefor as forming part of the compensation to be allowed as 
 he may think just under the circumstances. [Review of authorities; see 
 also annotation on Damages upon Expropriation, 1 D.L.R. 508.] 
 
 Re Birely and Toronto, Hamilton & Buffalo Ry. Co., 28 O.R. 468, af- 
 firmed 25 A.R. (Ont.) 88. followed. 
 
 Albin V. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 398, 47 D.L.R. 587. 
 
EXPROPRIATION. 333 
 
 Dakaces — Vajlce. — ^Esmunox or — ^Time. 
 
 TW iatntion of tlie Bailvaj AdU JJta^ 190T, c 8, is to fix the Use 
 v-«av«ueat date as tlutt u refercace to vkidi the valoe of ^i^ny rxpro- 
 priated ikaD be detcrwaed; if tlwrr is an a g r wm it of sale the date oi 
 tkat agrwawat is takes or if then is a Jnd^'a <»dn- appoiatiag aa arbi- 
 tiator, the date of that order is taken, but if ao sorh ordrr is required br 
 leasoB of the parcirs agreeing on the third arbitrator, the rahw is fixrd 
 as of the date of the ferriee of the notice to treat ium1<t sl 101. 
 
 Can. Northern Western Bt. Co. \. Moore. 23 DXiJL M<&. 8 Aha. UR 
 379. 
 
 Ornnox evidcxce — ^STATnx«T iiiutatiox as io stTMaea — ^ArrurABiuTT 
 
 TO ESFVOPmiATIOX JiWJUmc>. 
 
 S. 10 of the ETidnee Aet. AJta.. limithip to three the nnmber of vit- 
 aesscs OB each side to be called to ^ive opinian erideaee applies to an arbi- 
 tzatiiM aadrr the RaUnaT Art, Alta., 190T, e. 8, to fix eompenfation for 
 laad eoaqmlsorihr taken. 
 
 Can. Xorthern Western Bj. Co. v. Moure, 23 DX^R. MS, 8 Alta. L.R. 
 379. 
 
 Otxss's ught to coMTCxsAnox — AvorxT trxneK ^alcatiox" as ms- 
 TECCT raoM "AsanKaxiox.^ 
 
 The ''aBMHint <rf eoapcaaatifa paraUe nadcr the Bailwar AdT (19061. 
 ■Hij r^er as wdl to Moaey pajvble nader a ralnatioa as to monej parabk 
 ■adcr an artutrmtiaL, both sMthods beii^ rero^ized hj the art. (Pn 
 Hodginsy J_^# 
 
 Be Laidlan- and CampbeOford. Lake Ontario k Western Bt. Col, 19 
 DXuR. 481. 
 
 TaIXV — ^ACSKrCXTTKAI. FTKrOSES DEVEtOPMEXT. 
 
 Lands in the rieinitr of what promises to become a rallnay jonctioB 
 hav« a h^^r Tatne than that of land for agricultural purposes, and arc 
 to be Tallied as land <rf the indostrial or building class, in estimating the 
 aaoaat of eo^peasatiaB for their expropriation by the Crown. 
 
 The Kii^ T. Quebee ImproTcnent Co., IS Can. Ex. 35. 
 
 SaOOSSIt EXFBOnUATIOX — El-KMEVTS OF DA:)UiGE — BEXETrTS DTK TO ESFSO- 
 
 noATiox — Qi:jlxtcm or pamaces. 
 
 Whne br a seeond exprofniation a railwaj takes a strip of laad for a 
 raOwar jard on each side of the rigfat-of-waj fir^ taka, the extra iaeoa- 
 Tcaicace and delay doe to kmger cmssing auid to the more exteasiTe nse 
 id the pmpotf as a Tard, are elemnit< of the dasMges to be allowed. The 
 heaefits accmii^ to the remaining part of the property by the expropri- 
 atjoa and the ose to be made of the land taken, will be taken into coasid- 
 cratian in fi3dng the quantum of danages doe aa owner. 
 
 The King t. Fontaine. 19 Can. £s. 188L 
 
 TjMMMf — COMPCXSATION. 
 
 The lessee in a case of ex]nopriation by a laflway conpany of land 
 occupied by him Is entitled to a compensatkm. 
 
 Can. Xortbem Ontario By. Co. t. McAnnlty, 23 Que. ELB. 472. 
 
 Talte or LAXD — Sfboal taixe. 
 
 The lav of Canada, in matter of ex]Hopriation as regards the princi- 
 ples aqpoa whidi compeasation for the laad taken is to be awarded is the 
 saaw as the law of England- The indeanuty to be paid frar land is the 
 
334 EXPROPRIATION. 
 
 value to the owner as it existed at the date of taking, not the value to 
 the taker. The value to the owner consists of all advantages which the 
 land possesses, present or future, but it is the present value along of such 
 advantages that falls to be determined. When there is a special value 
 over the bare value of the ground consisting in a prospective value on ac- 
 count of certain undertaking, the value is not a proportional part of the 
 assessed value of the whole undertaking, but is merely the price enhanced 
 above the bare value of the ground, \vl\ich possible intending inidertakers 
 would give. That price must be tested by the imaginary market which 
 wouhl have ruled had tlie land been exposed for sale before any undertak- 
 ers had secured the powers or acquired the other subjects, which made 
 the undertakings, as a whole, a realized possibility. 
 
 Lachine, Jacques Cartier & Maisonneuve Ry. Co. v. Mitcheson, 47 Que. 
 S.C. 3. 
 
 Stated case — Method of fixing compensation — Fobeshore bights — • 
 — Separate interests to be ascertained by arbitrators. 
 
 Is ascertaining the compensation to be made to a landowner where fore- 
 shore rights are in question for land expropriated for a railway under a 
 37 of the British Columbia Railway Act, any increased value which the 
 arbitrators may find is given to the remainder of the lands and foreshore 
 in which the parties are interested beyond the increased values common 
 to all lands in the locality, shall be set off against both the amount which 
 may be awarded as the value of the foreshore taken and also any sum 
 which may be awarded as damages for the taking and severance as dis- 
 tinguished from the value of the lands taken. The arbitrators, in making 
 their award on a property in which more than one person is interested, 
 shall set out the amount to which each party is entitled. 
 
 Re Pacific Great Eastern Ry. Co. and Larsen, 22 B.C.R. 4. 
 
 Set-off — Use and occupation. 
 
 On an application for payment out of Court of moneys paid in by a 
 railway company for lands taken by it, held that the applicant was entitled 
 to the sura unpaid of the amount awarded by the arbitrators with interest 
 at 5 per cent. [Green v. C.N.R., 33 D.L.R. 609, followed]; and that the 
 company was not entitled on such application to a set-off for the value of 
 the use and occupation of the land by the applicant. 
 
 Re Grand Trunk Pacific Rranclv Lines Co. and Law, Re Railway Act 
 (Alta.), [1917] 2 W.W.R. 1011. 
 
 Taking part of golf course — Compensation — ^X'^alue of land — Cost of 
 acquiring additional land — Award — Allowance fob beconstbuc- 
 tion of course. 
 A railway company having taken 8 out of 76 acres belonging to a clul> 
 and laid out as a golf course, and having by the construction of the rail- 
 way severed 7 acres from the rest, it was held, that the club was not 
 bovuid to put up with such a course as could be laid out on the 67 acres 
 left, nor to play over the railway lands; and the cost of acquiring other 
 premises (15 acres), suitable and convenient, was a fair test of the dam- 
 age suffered. [The Queen v. Burrow, Metropolitan Ry. Co. v. Burrow 
 (1884), London Times 24th January and 22nd November, 1884, Boyle 
 and Waghorn on Compensation, p. 1052, and Hudson on Compensation, p. 
 1521, and City of Edinburgh v. North British Ry. Co., Princes' Street 
 Gardens Arbitration (1892), Hudson, p. 1530, applied.] Where the most 
 advantageous use has been made of property by its owner, it is that value 
 that the taker must pay, and the taker cannot reduce that value by limit- 
 
EXPROPRIATIOX. 335 
 
 mg Ifte daaage to vkat lies u « f Ji a t rfy Bear tkc paxt tafcra, if the ornm- 
 er irfiijt thnM^ kis vlifrie f/muf t nl} hr its ham^ le d t itd to «■ arc* too 
 latrieted to he Bwd lo the mmrn'miramtagt as thai vUck Ite vkok 
 jJhiJ ed. The inw|wiiitia» shoald iodade aa allowaoce for tht as^^mxd- 
 tioB of adJitiooal aocage, far :»ner piyna^ etc, takm aad r to de r td «ie- 
 Ino, fior iccawstrarti^ aod prondia^ tees aad giceos. aod for iammgt 
 to lAe dobhNnr firaa swalw, ■«■««, aad vftntiaau 
 
 Rt Brantiovd Golf Jk CooatiT Ctab and Lake Erie k Xortken Rj. Co, 
 32 O-LR. 141, 7 O.W^. 197. 
 
 LikXO ncjTBiocsu avvklisbl 
 
 Where oae partd off laod is eqrafriated for raiHnj i w ufwiMJ aad 
 aonthw partd irf laod of the ammt wo is iajnriooaljr alected br tihe 
 eanjia^ oat of sadi porpoaes the aaoaots awarded ia arhitntiaa pro- 
 ceedia^ ia respect to hoih sabjects are to he tr e ated as parchase aaarjr. 
 [Be HacPhersua aad Tomato, i£ O.B. aSS. aad Be IlltTies aad Jases 
 BteT By. Col. iO OJLIL £U, foUoaed.] 
 
 Greea t. Caa. Xorthcra By. Co, 8 SJLB. 3m. 9 W.W.B. 991. 
 
 ""SnaciAM. Tjaxrvr of ix^v fob btsixe^ cjjouiv ox — Bcsixess wKstxwm- 
 AXCB — ^^Stbcxu. jujATTAaaJTr" — ELEarayrs or damacx. 
 Be Schooky aad Lake Erie k Xorthna Br. Co^ 3i OXB. 33S. 
 
 Yalte at aaxe (V taeisc 
 
 la e-ipr op r iatioa for raiHraj paipMBea. imJh the BailaaT Jkct, 190S, 
 tibe la a i iaaa er-'a c c Mp e aia tica is to be fixed aeeordi^ to the ralae at the 
 date off cspropriatiaa, takia^ iato actooat the fotare poteatialities of the 
 pruf ie itj oahr as tfaer affe«t the fKCscat aurket valiKL [Cedars B*pM« t. 
 lacnstel 16 bx.B. 1)S>. :»< Tnes L.B. 293, aad Be Lacas aad CWstofield. 
 [1909] 1 KBL 1(6, iblk.vcid.jl 
 
 The Kia^ t. Tiadel ct aL. 19 DJLB. 270. 
 
 DaIE POa TAJLUATIOX OT LAXI»S ^DBKKCr OT FLAX ^XonnCC — BttAKfir TO 
 
 lAJCam XOT TAEEX — Scr-OFF EXCKSSITE CmCFEXSATIOX ArtVJkM- 
 
 Where the cxpn^riatioa off laad is prvaued bjr the provisiaas at the 
 Oatario Bathraj Adt off 19M the date for valaatioB » that of the aotice 
 rcqpdrcdbT& <» (Iji. The effect is the saiae aader the Act of 1913 if the 
 laad has aot beca acquired bjr the railaaT aiw|wj vftikia oae year Iiuw 
 the date of fili^ the plaa. etc The eoaipeBaatiaa for the laad expropri- 
 ated ^boold aoi be di»iaiAed by aa aHoaaare for beaefit by reaaoa off l&e 
 taiHray to the laa^ aot takea, the (tatario Bailvay iUfts ■■! ia^, ao pro- 
 Tiaaa thenf or. (hi a ppea l ia a aatter of expropriatiaa the aaaid Aoald 
 be treated as lAe jadgfat of a sabordiaate eoart sabjeet to rdbeariag^ 
 The aaaioat awarded shoald aot be iatcrfervd with aakas the appeal 
 Gonrt is satisfied that it is dearly wm^ that it does aot icpraeat the 
 opiaioB of the arbitrators, or that their Insts off Tslaatioa was 
 Where the laad eiprofriated is aa iaiportaat aad nsefal part 
 off tme holdiag: aad is so eoaaeetcd with the renaiader that the owaer is 
 haaipered m the aae or disposal tAeseof by the aeveraaee he is eatitled 
 to coapeasatioa for the coa se y i eatial iajarr to the part aot takca: |Hold- 
 itdi T. Gaa. X<»then By. Col, 30 Cu. &cIb. aCS, [1916] 1 A.C. S36, dis- 
 tii^piiifcfd]. To estinate the ciaapeaiatioa for laads c iLptupiia ted the ar- 
 bitrators are jjostified ia baaiag it oa a sabdiriaiaa vt tte proper tji if its 
 ataatioa aad the erideaee lespefti ag it shew that the anae is proWfale: — 
 Held, per Fltipatriek, CJ. aad AagUa, J, that to pmc the valae <rf the 
 laads expropriated eridoMe of sales betwcea the date of flfaig the plaas 
 
336 EXPROPRIATION. 
 
 and that of the notice to the owner is admissible and also of sales subse- 
 (juent to the latter date if it is proved that no material change has taken 
 place in the interval. Brodeur J., dissenting, held that the damages 
 should be reduced; that the arbitrators should have considered only the 
 market value of the lands established by evidence of recent sales in the 
 vicinity. 
 
 Toronto Suburban Ry. Co. v. Everson, 54 Can. S.C.R. 395. 
 
 When compensation awarded — Deposit of plan — Notice. 
 
 The word "title" employed in s. 192 (2) of the Railway Act, 1906, aa 
 amended by 8-9 Edw. VII. 1909, c. 32, is equivalent to the word "right" 
 and "effectively acquire a title under the terms of said statutes, to the 
 lands which a company requires for its works" means acquiring a right 
 which prevents the proprietor from disposing of his property. If an expro- 
 priating company has, within the year of the deposit of the plans and 
 book of reference, served on the interested parties the notice mentioned 
 in pars, (a) and (b) of s. 19.3, of the Railway Act, 1906, the arbitrators 
 must determine the compensation with reference to the date of such de- 
 posit, even if their award is made only after the expiry of the year from 
 such deposit. 
 
 Forget V. Lachine, etc., Ry. Co., 24 Que. K.B. 174. 
 
 Landlord and tenant. 
 
 Where land expropriated by a railway company is subject to a lease 
 separate amounts should be awarded to both landlord and tenant. [John- 
 son V. Ontario, Simcoe & Huron Ry. Co., 11 U.C.Q.B. 246, referred to,] 
 Quaere as to whether a tenant has a right to have his compensation ascer- 
 tained by a separate award by a different board of arbitrators. It is con- 
 trary to sound construction to permit the use of a term not altogether apt 
 to defeat the intention of the Legislature, which must not be assumed to 
 have foreseen every result that may accrue from the use of a particular 
 word. [Regina Trustees v. Gratton Trustees, 7 W.W.R. 1248, referred 
 to.] 
 
 Pacific Great Eastern Ry. Co. v. Larsen, 8 W.W.R. 1. 
 
 D. Water Bights; Foreshore. 
 Award — ^Validity of — ^Riparian rights. 
 
 In an award for land expropriated for railway purposes where there is 
 an adequate and sufficient description, with convenient certainty of the 
 land intended to be valued and of the land actually valued, such award 
 caiuiot afterwards be set aside on the ground that there is a variation 
 between the description of the land in the notice of expropriation and in 
 the award. A riparian proprietor on a navigable river is entitled to dam- 
 ages against a railway company for any obstruction to his rights of accfes 
 et sortie, and such obstruction without parliamentary authority is an 
 actionable wrong: [Pion v. North Shore Ry. Co., 14 App. Cas. 612, fol- 
 lowed.] Taschereau, J., was of opinion that the award in this case in- 
 cluded compensation for the beach lying in front of plaintiflF's property, 
 which belongs to the Crown, and, for that reason, should be set aside. 
 
 Bigaouette v. North Shore Ry. Co., 17 Can. S.C.R. 363. 
 
 [Referred to in Bannatyne v. Suburban Rapid Transit Co., 15 Man. L.R. 
 19.] 
 
 Power to expropriate fores iiore — Jus Publicum. 
 
 By 44 Vict. c. 1, s. 18, the C.P.R. Co., "have the right to take, use and 
 hold the beach and land below high-water mark, in any stream, lake, navi- 
 gable water, gulf or sea in so far as the same shall be vested in the Crown, 
 
EXPKOPRIATIOX. 337 
 
 aai akall loi be refaired I7 tibe Omm, to sock exxcat as akall be tc- 
 qnired bj tte t«— f^"j- for its railwaj aad otiMr votks as shall be cxbilHtcd 
 far a snp or plas tbcreof deposited ia the olfice of tbe HJaJshr ot BaB- 
 wajs.^ Bt 50 4 51 Vict. e. 5C, a. 3, the bMation of the coHpam's liw of 
 railvar beCveea Pwt lloodr aad the chx c< Westmiaster, iartodiag tte 
 foreehware of Bunard lalet at the loot oi Gore AveBoe. Vaaeoarcr eifr, 
 was ratified aad eaafirBed. The Act of iaei»poratioB of the dtr oi Taa- 
 rovTcr, ^ Vict, cl 82^ s. 213 (B.C.) vests !■ O^ dty aO alieets, hi^nv^ 
 eCr^ asd ia 1S93 the dtj begaa tke eoastnHtioa of works exteadiag frosi 
 the foot of GfNT Aveane, with the avovcd object to croiB the railroad track 
 at a lerel, and obtain aeeeis to the hsrboar at deep vster. Oa aa applica- 
 tioa b^ the railvaT wpaar fn- as iajnaetkai to reatraia the otr cor- 
 poeatiaB froM praeeedia(g vt^ their anwk of eoMtraetiim aad erossiap the 
 railvsT: — Held, afiisuac^ j«d|j,— al of the Court bdov that as the fwv- 
 shore f<Ha» part of the had lefaired hr the raitwsy eaapaar. as iilnaa 
 oa the plaa de p oa ited ia the odke of ^e Ifiairtw of Bailvajs. the jas 
 pabUenai to get access to aad ftoB the aster at the foot of Gore Anaae 
 is sabosdiaate to the ri^ts ^rea to the lailasj wapaay bf the statate 
 (44 Yld. e. L Sw 18a jt, oa tte said forcsbore, aad theiefote the iajuBctiaa 
 ass pgoye rl y ^raated. 2 B.CJK. 306, affixaied. 
 
 TsacouTcr t. Caa. Pat Br. Col, 23 Can. S-CR. L 
 
 [Coasidered ia AttT.-Gcaeral r. Caa. Pae. Br. Co., 11 RC.R. 299; fol- 
 kmed ia Can. PSe. By. Col t. FSifce, 6 B.C.B. 15; referred to ia Caa. Pae. 
 By. Col t. MeBrraa, 5 B-OB. 198.] 
 
 StS&I^CAGE BIGHTS CoVPCXSATIOX ^XBaESSJkST ACXICXTTTSAI. VOKKS. 
 
 The ovner of the lower lands is boond, under Art. 501 C.C. (Qae.> 
 to receiTe the water l a ought froat the hi^er laads apea his p io p c rt T br 
 a line ditch construrtcd faj the owaer *d the h^^o* laads for then- eahi- 
 ratiaa, sack aecesaarx wvalcs not *"ni»p vithin the exc^tioa ia t&at 
 article as to artificial eoastractiaas. The eoaipeaaatiaa paid to the oaan- 
 of land for aa expropriatiaa in coaaertioa with the coastractiaa oi a mil- 
 war does not Inrtnde daauges cansed br the peaai^ bad^ of w aters . 
 
 Graad Trunk By. Co. r. Langlols. 14 Que. KB. 173. 
 
 [Ai^lied in Lapoirte r. Tellier, 32 Que. S.C. 531.] 
 
 OasTsrcmx or wateb sctplt folxowhcg tsrwormiATWfKf — Coicpcxsatiox 
 
 FOB LOSS OF WATIX. 
 
 Ia an arbitratkm to determiae the amount to be paid to the owner of 
 l^nd expn^Mtiated by a railway compatny. the arbttrstors found for the 
 owner as eoaipeBsation for the bad, 46.ft50. aund f<»- Ices oi water supply 
 6«ai a ^pria^ obstrocted in co^scqiaFnce of sneh expropriatioa. two of the 
 arbitrators awarded the saat of S13>0. The third arlMtrator retomed a 
 *"^»"g a^inst aay compeasatkMi for deprivation of the water ia the ab- 
 aeaee of a water record: — ^Held, that the owner was ^titled. Where tbe 
 three arbitrators a»Tecd oa the amount of compensation for land taken, 
 aad the third returned a separate findin« dissentii^. oa the coa^tmrtioa 
 oi a statute, from giria^ coa t p eas ation for depriratioa of a water supply, 
 aad aa a^eal was takea: — Held, on objection raised to the am>eal as 
 being baaed oa an insuflfeieat assoant in dilute, nado' s. 209 of the Rail- 
 way Act of B.C. that there was oaly one award given, and the appeal was 
 properly bto«i^t. The owner of land on which th«e is a spris^ or stream 
 has rights therein to the exdnsion of all other posoas not holding leeords 
 aader the Water Clauses Coasolidation Act, 1897. 
 
 Be Mikted, 13 B.CJL 364. 
 CaM. By. L Dig.— 22. 
 
338 EXPEOPRIATION. 
 
 Embankment preventing access to water — Compensation. 
 
 Certain lands in the District of Rainy River vested in Her Majesty for 
 the use of the Province of Ontario, being taken by Her Majesty for tlie 
 use of the Dominion under 31 Vict. c. 12, and 37 Vict. c. 13 and 14 (D.), 
 for the defendants' railway, and the lands adjoining the railway lands 
 having been alienated by the province, the claim to compensation therefor 
 and for all damages which could l)e reasonably foreseen as likely to be 
 suffered by the province from the exercise by the Dominion of its powers 
 with regard to the said lands, became vested in the province. Part of the 
 lands so taken were covered by the waters of a bay on the Lake of the 
 Woods, across wliich the railway was first built on trestle work with rip- 
 rap foundations, protected by a cribwork of stone: — Held, that the sub- 
 sequent construction of a solid embankment replacing the trestle work 
 was a proper exercise by tlie defendants, as successors to the right of the 
 Dominion, of its powers and siu'h as might be reasonably foreseen, and 
 that, therefore, the plaintiffs, wlio l)ecame owners of the adjoining lands 
 after their severance by the railway and its first construction, were not 
 entitled to maintain an action for damages on account of the construction 
 of the eml)ankment and the consequent deprivation of access to the waters 
 of the Lake of tlie Woods. Per McMahon, J.: Such claim, even if valid, 
 is barred by the limitation clause of the Railway Act, 1888, and in any 
 event the proper remedy is by arbitration under the compensation clauses 
 of the Railway Act. 
 
 Ross V. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 461. 
 
 Riparian rights — Compensation — W^iien common-law remedt not 
 superseded. 
 Dorchester Elec. Co. v. Roy (Que.), 12 D.L.R. 767. 
 
 E. Gravel and Timber. 
 
 P0\VER TO ENTER LANDS AND TAKE M.\TERIAL FOR REPAIR OF HIGHWAYS. 
 
 Tlie onus is on a district municipal council entering on land and taking 
 any timber, stones, gravel or other material for repair of roads, etc., to 
 sliew what is intended to be taken, and the extent of the operations to be 
 carried on. 
 
 Cook V. North Vancouver, 16 B.C.R. 129. 
 
 TBAMWAY for TRANSPORTATION OF MATERIALS — RiGHT OF PASSAGE — ADDI- 
 TIONAL SERVITUDE. 
 
 The place where materials are found, referred to in s. 114 of the Rail- 
 way Act, 1888, means the spot where tlie stone, gravel, earth, sand or 
 water required for the construction or maintenance of railways are nat- 
 urally situated and not any other place to whicli they may have been 
 subsequently transported. Per Taschereau and Girouard, JJ.: — The pro- 
 visions of s. 114 confer upon railway companies a servitude consisting 
 merely in the right of passage and do not confer any right to expropriate 
 lands required for laying the tracks of a tramway for the transportation 
 of materials to be used for the purpose of construction. 
 
 Quebec Bridge Co. v. Roy, 5 Can. Ry. Cas. 18, 32 Can. S.C.R. 572. 
 
 Taking gravel — Right to cross highway. 
 
 For the purpose of taking gravel from lands on both sides of a high- 
 way, a railway company applied to the Board for authority to construct 
 and operate tracks over such highway for a term of years, to close to pub- 
 lic traffic a portion of such highway, and to open a new road in lieu there- 
 of: — Held, that it is not necessary to comjily with s. 141 of the Railway 
 
EXPROPKIATIOX. 339 
 
 Art, 1903, wherp the eompanv can a^uire tlie lands coDtahung the gniTel 
 and has a right-of-war thereto, that for such purposes the company mav 
 exereise the same powers for qo Min g and diverting highways as for the 
 ecmstmetion and operation of its aiain line, and that a diversion of the 
 highway may be aothorized for the time net^ssary to exhaast the gravel 
 pit upon proper terms for safeguarding the interests of the monicipality 
 and of the pnblie. [Railway Aet, 1903, s. 2 (s) and (bb), a&. US (1) 
 and (q) 119. 141. 186 referred to.] 
 
 C*n- Pae. Ry. Co. v. North Dumfries, 6 Can. Ry. Cas. 147. 
 
 [Followed in Campbellford. Lake Ontario t Western Ry. Co. t. Camden, 
 16 Can. Ry. Cas. i36.] 
 
 Removal w gkavo. — Rights or HOsiESTeAnEss ox Domtxiox laxos. 
 
 The defendant eonstrueted a line of railway across Government land 
 and (qicned a gravel pit thereon, from which large quantities of gravel 
 were reaoved. The plaintiff made entry for the land as a homestead. In 
 aa action for trespass: — Held, that a homesteader on Dominion lands has 
 the exclusive right to the possession thereof, and may maintain aa action 
 for trespass. The company endeavoured to justify its action under s. 19, 
 Sdi. A. of 44 Vict. c. 1, which authorizes the company to take frmn adja- 
 cent public lands gravel for the constmetion of the railway. The evidence 
 shewed that the gravel was used for maintenance of the ri^t-of-way: — 
 Held, that statute referred to did not authorize the taking except for the 
 purpose of construction which did not include maint^iance of the ri^t- 
 of-way. 
 
 SmVth V. Can. Pae. Ry. Oil, 8 Can. Ry. Cas. 265, 1 SaA. LJL 165. 
 
 FUJXG PLAXS COXDmOS ntEJCEDEXT TO KVTEBIXG LAM»S RKHT TO TAKE 
 
 GKATKU 
 
 The sale, by deed, stipulatii^ for immediate delivery and possession, to 
 a railway cmnpany of all that portion of certain lots required by it for 
 its right-of-way and other purposes necessary for construction, mainteaance. 
 or operatiim as the same appears on the plans already filed or to be filed 
 in the land registry oflw« of the county in which such lands are situate, 
 does not give the company any right to the possession for the purpose of 
 taking away sand and gravel therefrom, of lands outside of the land? 
 designated upon the plan or plans filed under the Railway Act. 1906. if 
 further lands are reqniivd. the new or amended plan must first be filed be- 
 fore the railway acquires any right of possession under such deed. 
 
 Ha Ha Bay Ry. Co. v. Laronche. 10 D.LR. 3J<S. 22 Que. KJt. 92. 
 
 EinxEXT DoMixiox — Laxd takex by a.%ii.wAT to OHrr-ATx gbatei. 
 
 Compensation for land taken by a railway company undCT* & 180 of the 
 Railway Act, 1906. to obtain a supply of material for the construction, 
 maintenance or operation of a railway, is to be made as of the time when 
 the company takes possession of the land. (Per Harvey, CJ~, Simmons, 
 and Walsh.". J.J. » 
 
 Saskatchewan Land & Homestead Co. v. Calgary k Edmonton Ry. Co., 
 16 Can. Ry. Cas. 114. 14 D-L-R. 193. 
 
 [Affirmed in 19 Can. Ry. Cas. 126.] 
 
 FniXG PtAXS WITH KA1I.WAY BOAKU — Pl_%X FOB TAKIX« i:.AXn TO OBTAIX 
 
 ooxsT«rcnox mateuals. 
 S. 160 (2) of the Railway Act. 1906. providing that copies of the plans, 
 etc of a railway, when sanctioned by the Board, shall be deposited in the 
 oOke of the registrar of deeds lor the district or countr to which thev 
 
340 EXPROPRIATION 
 
 relate, does not apply to or require the registration of plans prepared un- 
 der 8. 180 of the Act, for the compulsory taking of land to obtain stone, 
 gravel, earth, etc., for construction or maintenance purposes. (Per Har- 
 vey, C.J., Simmons, and Walsh, JJ.) 
 
 Saskatchewan Land & Homestead Co. v, Calgary & Edmonton Ry. Co., 
 16 Can. Ry. Cas. 114, 14 D.L.R. 193. 
 
 [Affirmed in 19 Can. Ry. Cas. 120]. 
 
 Eminent Dominion — Sfbyeys — Taking gravel land. 
 
 Compensation for a gravel pit and the right of way thereto taken by 
 a railway company under s. 180 of tlie Railway Act, 1906. to obtain a 
 supply of material for construction purposes is to be made as of the time 
 when the company took possession of the land under Judge's order or as 
 of the service of the notice to treat and not on tlie basis of values some 
 years later when the arbitration took place. Gravel land which is required 
 by a railway company for obtaining construction material and the right- 
 of-way for a spur line to take it out may be expropriated imder s. 180 
 of the Railway Act, without any plans being submitted to the Board; no 
 deposit of plans is required as would be necessary were the land required 
 for a right-of-way for its line, but a certified copy of the surveyor's plan 
 is to be served upon the property owner as well as the notice to treat. 
 
 Saskatchewan Land & Homestead Co. v. Calgary & Edmonton Ry. Co., 
 19 Can. Ry. Cas. 126, 51 Can. S.C.R. 1, 21 D.L.R. 172. 
 
 [Saskatchewan Land & Homestead Co. v. Calgary & Edmonton Ry. Co., 
 14 D.L.R. 193, 6 Alta. L.R. 471, 16 Can. Ry. Cas. 114. affirmed.] 
 
 F. Highways; Diversion. 
 Authority to use streets — Damac.e.s — Nonliability of municipality. 
 
 By 16 Vict. c. 100 (Que.) the N.S. Ry. Co. was authorized to construct 
 a railway to connect the cities of Quebec and Montreal, with the restric- 
 tion that the railway was not to be brought within the limits of the city 
 of Quebec without the permission of the corporation of tlie city expressed 
 by a by-law. In July, 1872, the city council, by resolution, had given to 
 the company the lil>erty to choose one of tlie streets to the north of St. 
 Francis street in exchange for St. Joseph street, wliich had lieen at one 
 time chosen for that purpose. In 1874 the city council were informed by 
 the company that the line of railway had been located in Prince Edward 
 street, and the company asked the council to take the necessary step to 
 legalize the line, but the corporation did not take any further action in 
 the matter. In 1875, the company being unable to carry on its enterprise, 
 the railway was transferred to the Province of Quebec by a notarial dee(], 
 and the transfer was ratified by 39 Vict. c. 2 (D.). By tliat act the 
 name of the railway was dianged and the Legislature authorized the con- 
 struction of the road to deep water in tlie port of Quebec. It moreover 
 declared that the railway should be a public work and should b6 made in 
 such places and in such manner as the Lieutenant-Governor-in-council 
 should determine and appoint as Ijest adapted to the general interest of 
 the province. After the passing of this Act the Provincial Government 
 caused the road to be completed, and it crossed part of the city of Quebec 
 from its western boundary by passing through Prince Edward street along 
 its entire length. Tlie road -was completed in 1876. In 1878, L. (the 
 appellant ) , owner of several houses bordering on Prince Edward street, 
 sued the corporation of the city of Quebec for damages suflfered on account 
 of the construction and working of the railway: — Held, affirming the 
 judgment of the Court of Queen's Bench for Lower Canada, that the re- 
 spondent had no right of action against the corporation for the damages 
 
EXPROPRIATION^. ail 
 
 «Udk Ik mtwf ksic imlTq e d liy the eonstrartioB mod wovkuc ai the rail- 
 way im qnestiaa. If Ae dHpormtkni gsTe the anthorizatioB reqjniicd' br 
 IC YieL c 100, s. 3, tken wms a eoa^kte jostifieatioB of tbe acts cna- 
 p>«"— ! oL Hw nipoflii^ of teims was dismtioaaiy with tlie corpora- 
 tam. But the corporation neTer acted oa tbe donaiid to legalize, and 
 BCfver anthoriicd, i^e building of tbe railwaj tbrougb Prince Edvard 
 ali e tJ t. If the corporation could hare pierented tbe Gorenuneat fron 
 cem^trwdting tbe railvaT in tbe streetf of tbe city, in tbe hiee of tbe pto- 
 ▼inoaa irf 39 Viet. e. i, tbe reqiaiident could also hare preveated it. His 
 luiwiiiw, if any, was not against tbe eorpOTatioa bat agaiast the Prorincial 
 Go w e taM eat, tbe ovners of tbe rulway. Appeal dianisscd vitb costs. 
 Icfdnre t. Qnefaee. See Caas. Can.' S.CJK. Dig. 1893, p. 176. 
 
 'Emmovai. of tsees ox highwat — Rights <»' owses of aiuoisisg laxh. 
 
 The right oi property in shade trees on hi^ways and to foice tbcai ia 
 eoaferred upon tbe oamos of the bad adjacent to the byways by s. OSS 
 of the Mnnieipal Act. RJSJf. 1902, e. 116, i& not taken away l^ an aet 
 iaeorpnatiag a railway cmnpany with power to construct a railway akmg 
 the poUie hi^way with the consent of tbe monicipality and according to 
 ^aas to be approred fay the conncil of tbe nranicipality. eviea althou^ 
 aach eoaaeot has been given and socfa plans approved. [Dov^las r. Fox 
 (1880), 31 U.C.CJ*. 140. and Be Cnno (ISSSU 4-5 Ch. D. 12. followed.] 
 "Dm defeadaats' act of incorporation provided that tbe several claases of 
 the Mautoba Railway Act, R.SJi. 1902. e. 145, should be incorporated with 
 part of it. And tbe Railway Act provides that the ^veral 
 of the Manitoba Expropriatioa Act, ILSJf. 1902, e. 61, with re- 
 Bpeet to tbe ex|»opriation of land and the eoaipensation to be paid there- 
 for Eball be deemed to be incorporated mutatis mntandis with tbe Rail- 
 way Art: — Held, that the defmdants bad no right to ent down tbe trees 
 on the highway or to lower tbe grade in front of tbe plaintiff's land, al- 
 tiMNig^ sndi action was necessary in carryii^ oat tbe approved plans with- 
 ooA taki^ the proper steps, imder tbe Railway Act and tbe Expropiiatioa 
 Aet, other to ascertain and pay the damage coffered by the plaintiffs to 
 their land injnrioitsly affected by tbe intended eanstmction, or to proenre 
 an order from a Judge, under s. 25 of tbe Railway Act, giving then tb> 
 ri^t to take possesnoa upon giving security for payment of the < i—pi a 
 aation to be awarded. 
 
 Bannatyne t. Suburban Rapid Transit Co., 15 Maa. T.lt 7. 
 
 Right to cboss stseets — Expbopbiatiox fwiceeoekgs ob covpcxsatiox 
 — ^KxTEmox or cnr limits — Toll boad, pcbchase of — Effbct or. 
 
 Railways incorporated by tbe Dominion Parliament, where in tbe coa- 
 stmetian of their lines of railways. tb«y have «»in;»l:<>d with the requir»- 
 awats of the RaUway Act and obtained the consent of the Railway Coo- 
 auttee, have the right to cross the hig!iways of a city without taldi^ es- 
 pn^riation proccedii^s under tbe Railway Act, or withoot malriiig anj 
 c—pensation to the cit^ therefor. Where imder the powera conferred ly 
 51 YieL c;. 53, s. 9 (Ont.) for extending tbe limits of tbe city of Ottawa, 
 the city acquired at an agreed price, part of the road of a toU road com- 
 paiqr within sud extended limits, such part thereupon ceased to have its 
 pvenoBs character of a toll road, and Ivcanie a highway like the other 
 pnblie streets of the city. 
 
 Canada Atlantic Ry. Co. v. Ottawa. Montreal Jb Ottawa Rv. Co. v. 
 Ottawa, 1 Can. Ry. Caa. 298, 2 O.LR. 336. 
 
 [Affirmed in 4 OXJL 56, 1 Can. Ry. Cas. 305, 33 Caa. S.C.R. 376.] 
 
342 EXPROPRIATIOX. 
 
 Highway crossing — Compensation to municipality — "At or neae" citt 
 • — Power to take through county. 
 
 The plaintiffs were authorized by 47 Vict. c. 84 (D) to lay out, con- 
 struct, and finish a railway, .from a point on the Grand Trunk Ey. in the 
 Parish of ^'audreuil, in tlie Province of Quebec, to a point at or near the 
 city of Ottawa, in the Province of Ontario, passing through tlie counties 
 of Vaudreuil, Prescott, and Eussell, and also to connect their railway with 
 any other railway having a terminus at or near the city of Ottawa: — Held, 
 that "at or near the city of Ottawa" should be read as "in or near the 
 city of Ottawa," and the plaintiffs were autliorized to carry their line to 
 a point in the city and to connect it with the line of the Canadian 
 Pacitic Ry. Co. in the city. (2) That the plaintiffs had power, by impli- 
 cation, to take their line into the county of Carleton. (3) That the por- 
 tion of the Richmond road (or Wellington street) within the limits of 
 the city of Ottawa which the plaintiffs' line crossed, was a public high- 
 way and not the private property of the defendants. (4) That the plain- 
 tiffs, having taken the proper proceedings under the Railway Act and 
 being duly authorized to cross the highway, were not bound to make com- 
 pensation to the defendants for crossing it. Judgment of Boyd, C, 1 
 Can. Ry. Cas. -IdS, 2 O.L.R. ;i3G, affirmed. 
 
 Montreal & Ottawa Uy. Co. v. Ottawa, 1 Can. Ry. Cas. 305, 4 O.L.R. 56. 
 
 [Aflirmed in 33 Can. "s.C.R. 376.] 
 
 Deviation and closing street — Lands injuriously AKFEcrrou — Costs of 
 arbitration and award. 
 Tlie claimants alleged that their lands were injuriously affected by the 
 doing of certain acts authorized by clause 2 of the Tripartite Agreement 
 and two by-laws passed by the respondents — (1) Authorizing and per- 
 mitting the Grand Trunk Ry. Co. to place, maintain, and use certain 
 tracks on the Esplanade opposite the claimants' premises; (2) deviating 
 and closing a portion of Berkeley street. The premises of the claimants 
 were 125 feet to the west of Berkeley street, and south of the Esplanade. 
 The Tripartite Agreement was validated by 55 Vict. (Ont.) c. 90, s. 2, the 
 latter providing that the respondents should pay to any person whose 
 lands are injuriously affected by any act of the corporation in the execu- 
 tion of said agreement, compensation, which, if not agreed upon, should 
 be ascertained by arbitration. The arbitrators awarded $100 as damages 
 for the deviation and closing of Berkeley street, and found that the other 
 matters, for which compensation was claimed, were not acts done by the 
 . respondents in the execution of the Tripartite Agreement, for which the 
 claimants were entitled to any compensation from the respondents. The 
 award also provided that the arbitrators' and stenographers' fees and costs 
 of the award should be paid by the respondents in any event: — Held (1), 
 that the claimants were not entitled to damages for the deviation and 
 closing of Berkeley street. [Moore v. Esqucsing (1891), 21 C.P. 277; Falle 
 V. Tilsonbury (1893), 23 C.P. 167, followed.] (2) That the railway tracks 
 were placed upon the Esplanade under the authority of an order of the 
 Railway Committee. (3) That the respondents had done none of the acts 
 complained of in the execution of the Tripartite Agreement. (4) That 
 the respondents had no authority, since 51 Vict. c. 29, to consent to a rail- 
 way company constructing its lines upon any street in the city of Toronto. 
 (5) That the claimants' lands were not "injuriously affected," within the 
 meaning of the Railway Act, 1888, so as to entitle them to compensation. 
 [Powell V. T., H. & B. Ry. Co. (1898), 25 A.R. (Ont.), 209, followed.] (6) 
 That the respondents were entitled to the general costs of the arbitration 
 and award. [Re Pattullo and Orangeville (1899), 31 O.R. 192, followed.] 
 
EXPROPRIATIOX. S4-3 
 
 The daiaants also claimed damagis: to thro vater lots opposite their 
 property im the harfaoor aad anpateatcd. Held, that the res.poQdent was 
 BOt liable. 
 
 Re Medler & Araot aad Toronto, 4 Can. Sy. Ca& IZ. 
 
 [Followed in Can. Xorthern Ontario Br. Co. 1$ Can. Rt. Cas. 309.] 
 
 DtTESSIOX OF HIGHWAT — COMFEXSATIOS LaXDOWTEBS ^ACCESS TO XATl- 
 
 GAiaLE KIVES. 
 
 A railvar conpanT applied to the Board under s. 173 of the Bailwaj 
 Aet, 1906. i<H- anthoritr to expropriate certain lands for the parpoee of 
 tht diTersion of a public higbwar. The landowners interested opposed the 
 ai^lication nnle»^ the following conditioBs were granted: (11) That the 
 adjoinii^ laadowners be paid compensation for the lands (part of the 
 pablie hi^vay) on which the railway was to be built on the ground that 
 the said laafe would revert to them as s closed public highway; (it 
 that Hkt wpanjr par compeitsation to the owners of the land required 
 for the direrted highwav; (3) that the owners be giren the right of 
 eraasing on foot and to maintain landing» and nethoases on the eompanjr s 
 right-of-war next the river opposite the lands of ca^ owner : — Held, that 
 the application should be granted subject to the condition as to foot 
 crossings. 
 
 VaneaoTcr, Victoria i Eastom Bt. Co. r. Ddta, 8 Can. Bj. Cas. 354. 
 
 Pasties — Juklsoictiox — lnjirscnos. 
 
 In an action br a muniripalitr fen- an injunction against a railway ccm- 
 panv to re»train the latter from closing up or interfering with a certain 
 road, it developed that the Board had made an <Mrder antborixing the rail- 
 way ctimpany to divert a portion of the said road ami ctmstruct their line 
 hetat e n cMtain points of such diversion. The trial Judge decided that the 
 municipality c«>nld maintain >ncfa an action only by the Attorney-General 
 as plaintiff: — Held, on appeal, that, while the Court had jurisdiction to 
 grant all propo- relief, the Board having dealt with the matter, the plain- 
 tiffs should apply to the Board for relief as they had complete control over 
 their order. 
 
 Delta V. Vancouver, etc.. By. A. Xav. Col, 8 Can. By. Cas. 362. 14 B.C.R- 
 S3. 
 
 BaILWAT CTOX OB ALONG HIGHWAY DAMAGES TO ABTTIIXG LAXDOWXEBS. 
 
 Having obtained the consent of the municipality to use certain public 
 streets for that purpose, the G.T.P. By. Co. applied to the Board for leave 
 to construct and approval of the location of tbe line of their railway upon 
 aad along the highways in question. None of the lands abutting on the^e 
 highways were to be appropriated for the purposes of the railway, nw were 
 the rights or Polities of access thereto to be interfened with except in so 
 fmr as BUght result from inconvenimce caused by the construction and 
 operation of the railway upon and along the streets. In granting tbe ap- 
 plication tbe Board made the order complained of subject to the condition 
 that the company should "make full compensation to all persons interested 
 for all damage by tbem sustained by reason of tbe location of the said 
 railway along any street." On appeal to tbe Supreme Court of Canada: — 
 Held. Davies and Duff. J J., dissenting, that, under the provisioas <rf & 47 of 
 the Baflway Act, 1906, the Board had, on such applieatiiH, Ae power to 
 impose the ctmdition directing that compensation should be made by tke 
 company ia respect of the damages whidi might be suffered by the pro- 
 
344 EXPEOPRIATIOK 
 
 prietors of the lands abutting on the highways of the municipality upon 
 and along which the line of railway so located was to be constructed. 
 
 Grand Trunk Pacific, etc., Ry. Cos. v. Fort William et al., 11 Can. Ky. 
 Cas. 271, 43 Can. S.C.R. 412. 
 
 [Reversed in [1912] A.C. 224, 13 Can. Ry. Cas. 187.] 
 
 Condition as to compensation — Interested persons. 
 
 Under s. 159 of the Railway Act, 1906, the Board ordered that the loca- 
 tion of the appellants' line of railway along certain streets in the city of 
 Fort William be approved in accordance with an agreement between the ap- 
 pellants and the municipal corporation, but subject to the condition that 
 the appellants shall "make full compensation to all persons interested 
 for all damage sustained by reason" thereof: — Held, that the order must 
 be rescinded. Under s. 237 ( 3 ) the power to award damages was in respect 
 of construction, and s. 47 did not on its true construction extend that 
 power to meet the case of location ; and as the condition failed there was 
 no approval. [Grand Trunk Pacific and Can. Pac. Ry. Cos. v. Fort Wil- 
 liam, et al., 43 Can. S.C.R. 412, 11 Can. Ry. Cas. 271, reversed.] 
 
 Grand Trunk Pacific Ry. Co. v. Fort William et al., 13 Can. Ry. Cas. 
 187, [1912] A.C. 224. 
 
 [Referred to in Can. Northern Ry. Co. v. Holditch, 19 Can. Ry. Cas. 
 112.] 
 
 Additional IjAnds — Public lane or highwat. 
 
 Application to expropriate a strip of land from the city of Guelph which 
 the applicant claimed to be private property, and not as contended by the 
 respondent a public lane or highway. It appeared that a jjortion of the 
 land in question had been leased by the respondent to the Guelph Junction 
 Ry. Co. for its right-of-way, and in the lease there was a recital that the 
 lane was no longer necessary for public purposes: — Held (1), that the 
 declaration in the lease could not be regarded as evidence of the a,cceptance 
 of dedication of the strip of land in question, and not having been otherwise 
 accepted or dedicated by the municipality as a public lane it was not in. 
 fact a public lane. (2) That as the Canada Company might still be the 
 owner of the land in question, it should be added as a party nunc pro tune 
 to these proceedings, and an order might go granting the application. 
 
 Grand Trunk Ry. Co. v. Guelph, 12 Can. Ry. Cas. 371. 
 
 Location plan — Opening and closing streets — Lands injuriously af- 
 ECTED — Arbitration — Jurisdiction. 
 
 Upon a location plan being approved by the Board and an agreement 
 made with the respondent municipality, that if the respondent closed cer- 
 tain streets and opened others, the applicant would pay compensation to 
 any one whose lands were injuriously affected; the remedy of the prop- 
 erty owners is against the respondent, recoverable by arbitration proceed- 
 ings under the Municipal Act, and the applicant is responsible to the 
 respondent for the amount of compensation awarded. The Board has no 
 jurisdiction to decide whether the damages sustained by the property own- 
 ers are recoverable under the appropriate sections of the Railway Act deal- 
 ing with arbitrations, or by action. [Re Medlar & Arnott and Toronto, 4 
 Can. Ry. Cas. 13, followed.] 
 
 Can. Northern Ontario Ry. Co. v. North Bay, 18 Can. Ry. Cas. 309. 
 
 [Reversed in North Bay Landowners v. Can. Northern Ontario Ry. Co., 
 23 Can. Ry. Cas. 35.] 
 
EXPROPRIATIOX. 345 
 
 Q. MaOwmj land; Crowing^, 
 See also ConstitntiaBal Lav. 
 
 EisaT-oF-WAT — Obbbk or Sailvat CaamnTEC — Jirscnas or nxcmc 
 
 KAIL VAT VXTH SIEAM SAILVAT — ClHrSEST OT ^PCXKXPALITT. 
 
 The defenduiU vere a eompanT i mwpwa ted nadcr statutes <rf the Pror- 
 iaee of Ontario, i^eratii^ an electric raihray upon Yonge street b e lae ea 
 the tovn of Xevmaiket and the city of Tbronto, vith its soofhera tenuB- 
 ns in the northern part of the eitr, a fev yards north of the Clinadian 
 Paofie Sy. line& By order, the Bailvay Committee reciting the eoBsent of 
 OB bdttlf at the city of T<»<oata, approtred of the defendants eon- 
 thor tracks vith the tracks of the C JP JS. Col by Beans of a svitch, 
 as iiht ■ n «■ a fdan annexed to the order, and on the emditioas impftwrd by 
 the Older: — Held, that the defendants had not the right, vithoot tte an- 
 thinity or con:sent of the city, to occopy or ex{nt^»riate <»- othervise to fane 
 their vay oivr a part of Yonge street within the limits of the city so as to 
 enter the lands of the CJPJL Co. and make the p ropo e ed jnaction. The 
 ovder of the Bailvay Committee vas to be rcgpoded as dealing only vith 
 the mode of junction or anion, and not as professii^ to expropriate a 
 right-of-vay OTcr the highvay. And the consent of coan^ for the city, vhen 
 before the Bailvay Committee, vas to be lieved in the same vay. S. 173 
 •f the Bailvay Act, 1903, does not gire the Bailvay CooBmittee pover to 
 exprofoiatc land or to deal vith the right of property. The protieetiaB of 
 lAe crofisii^ or jnnctioa is the object of the Committee, vhich has to ap- 
 prove of the place and mode thereof, and vhich is not cancemed, so Car as 
 this section applies, vith hov the railvays arriTc at the point of imion: — 
 HtU, also, that the defendants had not, by Tirtne of any statute or agree- 
 men, rieving their road as a mere street railvay. the right to expropriate 
 the right-of-vay; and even if their road vas a railvay vithin the meaning 
 of the Bailvay Act. s. 1S3 vas not applicable, for the proposition here vas 
 not to carry the tracks 'along an existing highvay ;~ and th^ eonld not 
 avail thcBKsdves of s. 1ST, for the provisions oi lav applicable to the tak- 
 ing of land by the company had not been complied vith. The fdaintiffs 
 vere therrfore entitled, vithoot derogatioB of the order of the Bailvay 
 ri—mlllM to an injnncti«a restrainii^ the defendants from effecting the 
 proposed jmiction by the rndthod dievn on the plan. 
 
 Toronto t. MetropalitaB By. Col, 1 Can. By. Cas. 63, 31 OJL 367. 
 
 [A^died in Be Tlmmto k York Badial By. Co. and Tloranto, 26 DJJB. 
 244.] 
 
 IXTxxsEcnox or bail vat — ^Expbopuatio^e ofF LANDS occtmiD BT AsarHxm 
 
 KAILVAT — OBDBB <W KAILVAT COIIIUTTEE. 
 
 Where an order has been obtained from the Bailvay Coannittee allov* 
 img one railvay company to expropriate a right-of-vay over the lands of 
 another company any :^abecqopnt notice of expropriation served by the ex- 
 propriatii^ company must be set out vrith sofficient accuracy the lands 
 iridck it is proposed to ocmpy, and any material errw in the description of 
 ■neh lands or material variance from the d<ers<cTiption given in the <Hd<r 
 permitting expropriation vill inralidate so^ notice. 
 
 Grand Tnmk By. Co. t. Lindsay, Bobcaygeon <lk P<mtypool By. Col, 3 Can. 
 By. Cas. 174. 
 
 BaELVAT lands — CaMPEXSATlOX. 
 
 The Gnelph & Goderidi By. Co. applied to the Board under s. 137 of the 
 Bailvray Act, ld<]>3. for anthwity to take posi^ession of. use and occupy land 
 of the Grand Trunk By. Co. along the harbour of the tovm of Godoich. 
 
346 EXPEOPRIATIOK 
 
 The latter company opposed the application claiming that they were likely 
 to require for their business in the future two additional sets of tracks upon 
 that land. The land in question was upon a hillside and the construction 
 of the two additional tracks would cut away a strip of land required for 
 the proper support of tlie tracks whicli the Guelpli & Goderich l\y. Co. 
 wished to lay upon the land required from the Grand Trunk: — Held, that 
 the Board is empowered by s. 137 of the Railway Act, 1903, to autiiori/e 
 one railway company to occupy and use the lands of another, even to the 
 serious loss and detriment of the latter, due compensation being made there- 
 for, but such injury should be avoided except where the public interest im- 
 peratively demands it. 
 
 Re Guelph & Goderich Ry. Co. and Grand Trunk Ry. Co., 6 Can. Ry. Cas. 
 138. 
 
 [Followed in South Ontario Pacific Ry. Co. v. Grand Trunk Ry. Co. 
 (Junction Cut Case), 20 Can. Ry. Cas. I'rl.] 
 
 Branch line- — Spurs — Constiuction of. 
 
 Application under s. 176 of the Railway Act, 190G, for leave to expropri- 
 ate a portion of a triangular piece of land for the purpose of constructing 
 a spur across it from the applicant's l)ranch line on Lauriston street, in the 
 city of Saskatoon. The said land iiad been acquired by the respondent from 
 the former owner, one A. Bowcrnian, the respondent liad been autiiorized 
 by order of the Board to construct certain spurs across the land in ques- 
 tion when the applicant's spur was constructed witli tlie exception of the 
 section crossing the portion of the land aforesaid. The order authorizing 
 construction of the brancli line and tlie said spur of the applicant was made 
 before the respondent had acquired the said land: — Held (1), that the ap- 
 plicant should be authorized to take so much of the said land as would be 
 necessarj' for the constnution of its spur. (2) That if a dispute should 
 arise as to the area necessary to be so taken, the matter should be de- 
 termined by an engineer of the Board. (3) The expense of making the 
 necessary railway crossings on the land should be borne jointly by the ap- 
 plicant and respondent. [Can. Northern Ry. Co. v. Can. Pac. Ry. Co. 
 (Kaiser Crossing Case), 7 Can. Ry. Cas. 297; Grand Trunk Pacific Ry. Co. 
 v. Can. Pac. Ry. Co. (Nokomis Crossing Case), 7 Can. Ry. Cas. 299, dis- 
 tinguished.] 
 
 Qu'Appelle Ix)ng Lake & Saskatchewan Ry. etc., Co. v. Can. Pac. Ry. Co., 
 13 Can. Ry. Cas, 131. 
 
 Eight of dominion railway to fjcprofriatk unuskd BiGHT-OF-wAy of 
 
 PROVINCIAL RAILWAY. 
 
 A provincial railway company that has neither graded nor built tracks 
 upon a riglit-of-way acquired by it, caiuiot prevent a Dominion railway 
 company from expropriating the lands so held by the provincial company 
 and utilizing them for the actual construction of a railway authorized by 
 the Parliament of Canada. A Dominion railway company will not be en- 
 joined from expropriating and building tracks on a right-of-way acquired 
 by a provincial railway company, where the latter has not yet utilized it 
 for railway purposes; the rights of a Dominion railway company being in 
 such case superior to those of the provincial company. 
 
 Can. Northern Western Ry. Co. v. Can. Pac. Ry. Co., (Alta.) 13 D.L.R. 
 624. 
 
 JuEisDicTioN — Compensation — Rights — TKitxrs — Fp:e ki.m plk. 
 
 In fixing the rights which may be taken in railway lands, and the terms 
 and compensation under s. 176 of the Railway Act, 1906, lands which are 
 
EXPROPRIATION. 347 
 
 M* imtj Bot pot to MM iMtd iate nihraT use, bat (as th« Board fiad* win 
 ■ot raaaonbiy aad jrdbmkify be reqnirtd for sodi purposes bj tbe sraior 
 ruhrar, should be dealt with as the lands of a private iadhridoal. and 
 afaeirfatp ri^ts eonferrvd on the appKin* nMnpanr therein, bat the f<v in 
 raihrar lands vhieh may rea^^oaabljr be required at sooie tine in the future 
 to be put to a raiHntT usie br the snutM- companv. should be l^t in the 
 souM- eoapany and <«Hnp«satioa should be paid for the use and enjoj- 
 nMBt that the applicant cvonpanT obtains. [Re Guriph Jt Godcricfa Rv. Co. 
 and Grand Trunk Rjr. Col, 6 Can. Rr. Cas. 138. firfloved.] 
 
 South Ontario Pacific Rr. Cou t. Grand Trunk Rj. Col (Junction Cut 
 Case.!, 30 Can. Rt. Cas. 155. 
 
 [Ftdhwed in Midland Ry. Co. t. Grand Trunk Pacific Rt. Co.^ 23 Can. 
 By. Ca&. 80. 
 
 Rkht of Ddxcciox kailwat to Briu* ox tiscvuat u«ht-of-wat of raonx- 
 
 CXAL. KAILTAT. 
 
 A pnnrincial railvaT eoapanr that has neither traded nor built tracks 
 upoB a right-of-way acquired by it. cannot prerent a Donunion raihray 
 cflaqnny from expn^>riatin|; the land>. so held by the provincial cmmpany 
 and utjlinng tbewa for the actual constructioa of a railway authorized by the 
 FarliaBient d Cuada. A Doaunion railway cMnpany will not be enjoined 
 fiui ezprofMiating and building tracks on a rigfat-of-way acquired by a 
 I«ovin<ial railway company, where the latter has not yet utilized it for rail- 
 way purposes: the rights of a DooiinioB railway company being in such 
 eaae supoior to those of the |wwincial company. 
 
 Can. Xorthnn Western Ry. Co. v. Ckn. Pac. Rv. Co., 16 Cin. Ry. Casu 
 lOS. 13 DiuR. ©*4- 
 
 H. PWKJWMf BiSfets; 
 CoBstmction of anbankments, see Embankments. 
 
 COMPESSATIOX POeSESSOKT Tnl.C OF OCCCFAST — CoynXTXSG TKESPASS. 
 
 The plaintiff and his predeeeseors in title were in possession as tTrfipa-n 
 ers of certain land since 1871 ; the defendants entered upon a portioa of it 
 in mo and eoBstructed their railway upou it and continued in undisturbed 
 poaaeniim of aoch porti<m until 1904 and no claim was made for the land 
 so taken fhoi^ the defendants were willing to pay compensation to any 
 <me who eoald prove that he was entitled to it. In the year 1905 the plain- 
 tiff teoqght this action ui trespass^ The defendants pleaded (1» that he 
 was not the owner of the lands: (in that hi« claim, if any. was barred fay 
 the Statote of Limitatioasr^Seld (Tuck, CJ. and McLeod, J., ^sisenting >'. 
 that thoogh the plaintiff or his predeccsaor in title was originally a tres- 
 pa;sser, yet having been in peaceable possession at the time of the defend- 
 ants' entry on the lands, he was entitled to damages for being disturbed in 
 his powBeawMm. (2t That eadi passing over the land was a new trespass 
 and there fore the defcadants would he liable fen- all except for so much as 
 was barred under their pica of the Statute of Limitations which only 
 voids a remedy and does not chajqge the nature of the act. 
 
 Clair T. Teiiiscnaata Ry. Col, 6 Can. Ry. Casu 171. 1 E.LJL 534. 
 
 [Reiersed in 38 Can. S.CJL 330; 6 Can Ry. Cas. 367.] 
 
 TKESTASS — ^POSSESSIOS — Castal. rSBL 
 
 The easaal use <rf land for pastnring cattle in eoBmon wiUi other person? 
 does not enuAitale eridenee of possession sufficient to maintain an action 
 for tz«qnns against a railway company for the taking of the land for rail- 
 
348 EXPROPRIATION 
 
 way purposes without compensation. [Judgment appealed from, 1 E.L.R. 
 524, 6 Can. Ry. Cas. 171, reverspd.] 
 
 Temiscouata Ry. Co. v. Clair, 6 Can. Ry. Cas. 367, 38 Can. S.C.R. 230. 
 
 Damage to lands — Trespass — Compknsatiox. 
 
 The foundation of proceedings under s. 146 et seq. of the Railway Act, 
 1888, to determine the compensation to be paid a landowner for lands taken 
 or injnriously affected by a railway company in the exercise of their stat- 
 utory powers, is the notice to be served on tlie landowner thereunder; and 
 in the absence tliereof the railway company is, as to the lands damaged by 
 its construction, a trespasser, and like any other trespasser responsible to 
 tlie person injured in damages to be recovered in the ordinary Courts of the 
 country. Where, therefore, without taking any proceedings under said 
 sections, the defendants, a railway company, for the pvirposes of their rail- 
 way made a cutting adjoining the plaintifTs lands, which caused a sub- 
 sidence thereof, whereupon the plaintiff brought an action, claiming a 
 mandatory order to compel the defendants to support his lands and prevent 
 further subsidence, and recovered, damages for the actual loss then sus- 
 tained: — Held, that the plaintiff was entitled to the order and to the dam- 
 ages recovered; but as he would be entitled to maintain actions for the re- 
 covery of damages as further loss was sustained, leave was given to the de- 
 fendants to take proceedings under the above sections for the assessment of 
 compensation so as to have future damages settled, the judgment being 
 stayed for a limited time. 
 
 Hanley v. Toronto, Hamilton & Buffalo Ry. Co., 5 Can. Ry. Cas. 25, 11 
 O.L.R. 91. 
 
 Trespass — Entry before expropriation proceedings. 
 
 The filing of a plan, profile and book of reference under the Railway Act, 
 1903, shewing the land required for the railway, does not warrant the com- 
 pany in taking possession of it before proceedings for expropriation are 
 commenced, unless by agreement with the owner; and, if such possession 
 is taken, the company is a trespasser, and the owner is not limited to the 
 remedy by arbitration provided by the Act, but may proceed by an ordinary 
 action at law against the company. 
 
 Wicher v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 181, 16 Man. L.R. 343. 
 
 [Relied on in Carr v. Can. Northern Ry. Co., 17 Man. L.R. 181.] 
 
 Rights of placer miners — Deposit of waste — Compe2?sation. 
 
 The defendants claimed the right to construct their railway under the 
 authority of certain orders in council having obtained the approval of the 
 Board and Minister of the Interior of a route map referred to in subs. 1 of 
 B. 122 of the Railway Act, 1903, but not that referred to in subs. 5 of s. 
 122: — Held (1), before the defendants could expropriate land without the 
 consent of the owners they must comply with the provisions of the Act, 
 (2) Placer miners are owners within the meaning of the Act, and entitled 
 to compensation. (3j A placer mine is an open mine within s. 132 of the 
 Act. (4) The plaintiffs were entitled to an injunction restraining the de- 
 fendants from constructing their works and injuriously affecting the work- 
 ing of the plaintiffs' placer mining claims held by them under licenses issued 
 under the placer mining regulations, ss. 132, 133. [Yale Hotel Co. v. Van- 
 couver, Victoria & Eastern Ry., etc., Co., 3 Can. Ry. Cas. 108, followed.] 
 
 Day V. Klondike Mines Ry. Co., 6 Can. Ry. Cas. 203, 2 W.L.R. 205. 
 
EXPROPRIATION. 349 
 
 Tbiai. lixb — Abbitbatiox — Damages BtsuLXisc fbom exercise of stat- 
 utory POWEBS. 
 
 If damages are occasioned to a landownn* by the exercise of the powers 
 conferred on a railway company by the Railway Act and there is no n^li- 
 gence in the mode of exercising such powers, the person injuriously affected 
 is limited to the provisions of the Act for compensation. [G.P.R. Co. v. 
 Roy, [1902] A.C. 220, and Bennett v. G.T.R. Co. (1901), 2 OX.R. 425.] But 
 if there is negligaice in such exercise of statutory powers, or if damages are 
 unnecessarily inflicted, then an action will lie and the complainant is not 
 limited to the remedy given by the arbitration clauses of the Act. The 
 plaintiff's claim was for damages for cutting down trees in his grove 
 through which the defendants were making a survwr for a trial line for a 
 proposed branch of their railway, but the possibility of running the trial 
 line through the grove, without cutting down the trees by making a rec- 
 angular detour aroimd it was not raised at the trial and the trial Judge did 
 not pass upon it: — Held, that the plaintiff, who had been nonsuited at the 
 trial, was entitled to a new trial to determine whether the line could not 
 have been run in the manner suggested. 
 
 Barrett v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 356, 16 Man. L.R. 549. 
 
 [See note below.] 
 
 Damages fob ccttixg down trees — Trial line — Arbitkatiox. 
 
 At the new trial ordered in the foregoing case. 16 Man. L.R. 549. 6 Can. 
 Ry. Cas. 356, the County Court Judge again nonsuited the plaintiff who 
 appealed to the Court of Appeal: — Held, that the evidence shewed that it 
 was unnecessary to cut down the trees for the purpose of running the re- 
 quired trial line and that the plaintiff was entitled to recover in the action, 
 and that judgment should be entered for him for $250.00 damages and 
 costs of both trials and both appeals. 
 
 Barrett v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 364, 16 Man. L.K. 558. 
 
 Trespass — Taking possession of strip not of statctort width. 
 
 A railway company cannot, in an action for a trespass in laying side- 
 tracks on the plaintiff's land, justify on the ground that its predecessor in 
 title, without right, took a strip of land twelve feet wide from that owned 
 by the plaintiff, for part of is right-of-way. which was not, at such place, of 
 the width allowed by statute, and that therefore it became entitled to claim 
 the full ninety-nine feet allowed by statute for a right-of-way, which would 
 include the land on which the sidetracks were laid, since the Court cannot 
 presume that the company, by taking possession of the twelve-foot strip, 
 also took possession of the entire ninety -nine feet which it was entitled to 
 expropriate for a right-of-way. 
 
 Carr v. Can Pac. Ry. Co. (N.B.), 14 Can. Ry. Cas. 40, 5 D.L-R. 208. 
 
 Expropriation pending trespass action. 
 
 Where, pending an action against a railway company for trespass, the 
 company takes expropriation proceedings in respect of the land in question, 
 judgment may be given for the plaintiff for such damages as he has sus- 
 tained apart from the compensation which he would be entitled to claim in 
 the arbitration to be held in respect of the expropriation of the land. 
 
 Como V. Can. Northern Alberta. Ry. Co. and Can. Northern Kv. Co., 15 
 Can. Ry. Cas. 46, 9 DX.R. 683. 
 
 Sale to company by registered owner — ^Right of prior pi-rchaseb ten- 
 der agreement for sale — Caveat. 
 The plaintiff having purchased the land under an agreement for sale, and 
 
350 EXPKOPIUATIO^. 
 
 having filed a caveat to inotect his interest in such land, has a right of ac- 
 tion against a railway company that enters upon his land for the purpose 
 of making their railway and permanently occupying the same, until it has 
 paid a sum mutually agreed upon or paid into Court what it thinks fit to 
 offer as a fair compensation. 
 
 Holmested v. Can. Northern Ry. Co. and Annable, 19 Can. Ky. Cas. 102, 7 
 Sask. L.R. 200, 20 D.L.E. 577. 
 
 Injunction — ^Trespass — Statutory right to do lkgai.ly. 
 
 Damages are not assessable in a trespass action where the defendants 
 have by statute a right to do legally (on complying with certain prerequi- 
 sites) the very thing which constitutes the trespass. The proper course is 
 by injunction restraining the defendants from continuing the trespass un- 
 less tliey acquire title and proceed to have the compensation or damages 
 determined under the provisions of the Railway Act, within a reasonable 
 time. [Holmested v. Can. Northern Ry. Co.. 20 D.L.R. r)77, varied.] 
 Holmested v. Can. Northern Ry. Co.,']!) Can. Ry. Cas. 105, 22 D.L.R. 55. 
 
 I. Conveyances. 
 Title to land — Tknant for like — Convkyanck to railway company. 
 
 By C.S.C. c. 60, s. 11 (Railway Act), all corporations and persons 
 whatever, tenants in tail or for life, gr&ves de substitution, guardians, 
 etc., not only for and on belialf of themselves, their heirs and successors, but 
 also for and on behalf of those wlunn they represent . . . seized, pos- 
 sessed of or interested in any lands, may contract for, sell and convey unto 
 the company (railway company) all or any part thereof; and any 
 contract, etc., so made shall be valid and effectual in law: — Held, affirm- 
 ing the decision of the Court of Appeal, that a tenant for life is au- 
 thorized by this Act to convey to a railway company in fee, but the com- 
 pany must pay the remainderman or into Court the proportion of the 
 purchase money representing the remainderman's interest. 
 
 Midland Ry.' Co. v. Young, 22 Can. S.C.R. 190. 
 
 [Followed in Forbes v. Grimsby Public School Board. 6 O.L.R. 539; 
 approved in Re Toronto Belt Line Ry. Co., 26 O.R. 413.] 
 
 Agrp:ement to purchask i^\nd — ^1'aking posskssion — Landowxkr'.s kv.m- 
 
 EDY — ARBITKATION. 
 
 In carrying out the agreement provided for in (V.i Viet. e. 77 (Ont.), 
 an Act respecting the Town of ]Meadford, the town agreed with the plaintiff 
 for the purchase of and possession by the railway company of the portion 
 of the plaintiff's land required by the company, but without fi.xing the 
 price. The company, pursuant to s. 131 of the Railway Act, 1888, de- 
 posited a plan, profile and book of reference of the land required in the 
 county registry office, which was approved by the Railway Committee, 
 shewing the plaintiff's lands entered tipon it. and completed the work. 
 The purchase money not having Imh^ii agreed upon, or paid, plaintiff 
 brought an action against the town and the railway company for damages 
 to the land, and for interference with his Imsiness, whereupon the town 
 paid into Court $375.50, and set up, by way of defence, that plaintiffs 
 remedy was by arl)itration under the Municipal Act: — Held, that the 
 defendants, the town, were not liable, and the plaintifT's remedy against 
 the railway company was by arbitration proceedings under the Railway 
 Act, and not by action, and that the money in Court should be paid out 
 to him without prejudice to his right to proceed further against the com- 
 pany. [Judgment of Falconbridge, C.J.. varied.] 
 
 Todd V. Meaford, 3 Can. Ry. Cas. 375, 6 O.L.R. 469. 
 
EXPROPRIATION^. 351 
 
 0WXE« OF LA3CA— TKCSTEC AS "OWSTE*" SOTICK, 
 
 A ban trastoe of land is not "nhe ovnn- of the land or the person on- 
 povmd to C Mi fe y the land. <»- intcwsted in the land sooght to be taken," 
 vithu the f aiiig <rf & 71 of the RailmaT Aet. 1903: and notice ondo- 
 ihat seetiaii must be serred opon all the ee:stnis que trust. 
 
 Re Janes Bay Rv. Co. and WorreU et aL. 3 C^n. Rt. Cas. 21, (B O.W.R. 
 473. 
 
 IxFAXT wrat\rwcMXES — ^Tesaxt fob life — Obdes jtrTHouzixc coxvey- 
 
 ASCC 
 
 Where a widow va$ entitled to a life e!State in eertain lands and her in- 
 fant chUdien to the remainder in f<ee. and j^^he had made an agreement 
 with a railway eompany to sell them ^oeh part of the lands as they re- 
 qnircd for their ri;dit-of-way. at a reasonable price, approred by the of- 
 ficial guardian co behalf of the infants, an oi^er was made by a -lud^e 
 mder s. I'M of the Railw-ay Art. 1906. giving her power to sell the lands 
 and the rights of the infants therein, which power, joined to her legal 
 power as tenant for life, woald enable her to sell and convey the fee: 
 the puTvhase nMoey to be paid into Court, and the company to pay the 
 costs. [Re Dolsa (1889 », 13 PJL 84. followed, the sections of RJS.C. 1906, 
 e. 37. being subtctantiaUy the same as in the Act of 1888.] 
 
 Be Can- Pae. Ry. Co. and Byrne, 7 Can. Ry. Cas. 71, 15 OJ-R. 45. 
 
 CoitrexsATiox — Ptbchase of laxd fob bigbt-of-vat — Sale by xxstttcte 
 — Rexoitbse: of sibkiitikjs. 
 
 The sale or conveyance of lands for right-of-way permitted under the 
 Railway Act frran institutes to railway companies, is iHndii^ upon the 
 substitutes, notwithstandii^ violation of the mle^ respecting payment 
 of the consideration money. Hence, when the cfMupany has paid the n^o- 
 sideration money to the institute, instead of paying him the annual rwt, 
 theteon. the substitute has no recourse against the railway company 
 other than a right to recover his share of the consideration money, as de- 
 termined at the time of the sale. He cannot claim, at the opening of the 
 substitution, his share of the accrued value of the land sohL 
 
 Latour t. Grand Trunk Ry. Co.. 13 Can. Ry. Ca& 404. 40 Que. &a 514. 
 
 Pr^CHA.^* OF LAXB POSSESSION XirESSrTY OF EXrWWKIATIOX. 
 
 A contract to purchase is not established as asainst a railway com- 
 pany entitled to take lands by eminrat domain proceedings, by the fact 
 of the company having taken possession of samv after notice l^m the 
 owner naming his price and stating that if they took possession he would 
 construe their action as an acceptance of his terms. 
 
 Haney v. Winnipeg i Northern Ry. Co. (Man.'), 14 Can. Rj. Cas. 39, 1 
 DXcR. 387, 30 WX.R- 540. 
 
 PC^CHASB OF LAXB — XoTICE OF ABBtTBATIOX StATCS OF OWXEX. 
 
 On an application to the Court to restrain expropriation proc«edin«!9 
 taken by a railway company aa the ground that the company had agreed 
 upon a price with plaintiff, the plaintiff's status is proved prima facie by 
 •^hewing that be had been served as owner with notice of arbitration pro- 
 ceedii^s by the company without his further shewing his title or interest 
 in the land. 
 
 Hanev v. Wiimipeg t Northern Ry. Co. (Man.), 14 Gan. Rj. Cas. 39, 1 
 DiJL '387, 20 WXJL 540. 
 
352 E XPROPRI ATIOK 
 
 J. Location Plans; Deviation. 
 Description in map or plan filed. 
 
 A company built its line to the termini mentioned in the charter and 
 then wished to extend it less than a mile in tlie same direction. The time 
 limited for the completion of the road had not expired, but the company 
 had terminated the representation on the board of directors wliich, by 
 statute, was to continue during construction and had claimed and ob- 
 tained from the city of K. exemption from taxation on the ground of 
 completion of the road. To effect the desired extension it was sought to 
 expropriate lands which were not marked or referred to on the map 
 or plan filed under the statute: — Held, affirming the judgment of the 
 Court below, that the statutory provisions that land required for a rail- 
 way shall be indicated on a map or plan filed in the Department of Rail- 
 ways before it can be expropriated applies as well to a deviation from the 
 original line as to the line itself, and the company, having failed to shew 
 any statutory authority therefor, could not take the said land against the 
 owner's consent: — Held, also, that the proposed extension was not a de- 
 viation within the meaning of the statute, 42 Vict. c. 9, s. 8, subs. 11 (D.). 
 Per Ritchie, C.J., Strong, Fournier and Taschereau, JJ.. that the road 
 authorized was completed as shewn by the acts of the company, and upon 
 such completion the compulsory power to expropriate ceased. Per Gwynne, 
 J.: — That the time limited by the charter for the completion of the road not 
 having expired the company could still file a map or plan shewing the landg 
 in question, and acquire the land under s. 7, subs. 19 of the Act, 42 Vict, 
 c. 9, 11 O.R. 302, .'582, affirmed. 
 
 Kingston & Pembroke Ry. Co. v. Murphy, 17 Can. S.C.R. 582. 
 
 [Approved in Barbeau v. St. Catherines &. Niagara Central Ry. Co., 15 
 O.R. 58G; distinguished in Brooke v. Toronto Belt Line Ry. Co., 21 O.R. 
 401.] 
 
 Agreement — Misdescription — Plans and books of reference. 
 
 In matters of expropriation, where the railway company has complied 
 with the directions and conditions of Arts. 5163, 5164, R.S.Q. 1888, as to 
 deposit of plans and books of reference, notice and settlement of indem- 
 nity with the owners, or with at least one-third of the owners par indivis, 
 of lands taken for railway purposes, tlie title to the lands passes forth- 
 with to the company for tlie whole of the property by mere operation of the 
 statute, even without the consent of the other owners par indivis, and 
 without the necessity of formal conveyance by deed or compliance with the 
 formalties prescribed by the Civil Code as to the registration of real 
 rights. The provisions of the Civil Code respecting the registration of real 
 rights have no application to proceedings in matters of expropriation of 
 lands for railway purposes under the provisions of R.S.Q. Pending expro- 
 priation proceedings be^iin against lands held in common (par indivis), 
 for the purposes of appellants' railway, the following instrument was 
 signed and delivered, in 1886, to the company by six, out of nine, of the 
 owners par indivis, viz.: "We, the legatees Patterson of the Parish of 
 Beauport, County of Quebec, do promise and agree tliat as soon as the 
 Q.M. & C. Ry. is located through our land in Parishes of Xotre-Dame des 
 Anges, Beauport and L'Ange-Gardien, and in consideration of its being so 
 located, we will sell, bargain and transfer to the Q.M. & C. Ry. Co., for the 
 sum of one dollar, such part of our said land as may be required for the 
 construction and maintenance of the said railway, and exempt the said 
 company from all damages to the rest of the said property, and that, 
 pending the execution of the deeds, we will permit the construction of said 
 
EXPKOPRIATIOM. 353 
 
 raihn J to be j g wa ei M wiBk «iv tmr saii laad, vilQhiMt hiadiuKe of 
 aiiT kiad, profided ttat flw nid imilwaj is located to 
 A ftawaid a, tts Baa off tte lailnT vas altered aad 
 dapaed vitikcMt Ae Ayont <rf aa lamidgd plaa aad book off nJfciian ' to 
 ifcf tte deviaiiai fivai the Uae aa cngiaalfy located. The eoaqMur, 
 knrenr, took poiBBwiBa trf tlw land aad eoastroefad the raflnr aero^ it 
 aad. ia Augast, 1889, Ike natt ptmoas vho had sigBed the ahove iastra- 
 ■wat graated aa aheolate deed of the laads to the coaipaay for a emsidaa- 
 tioa off five doDazs, ackaovledgied to have beea paid, tccitia^ thereia that 
 the aaid laads had Ima aeleeted aad act apart hj the aaid raihraT eoae 
 paay for the cads aad parposes of its ruhrar. aad heii^ alrm^ in the 
 po Memgiin a of the aaid raihrar companr since Jane lltb 1S86, ia Tiitoe of 
 a eortaia iwoause of sale soas seing prirC bj tlw said nador in &Toor 
 of tte aaid eoaqianT.'" Neither of the iniitriiainiti vrere registered. G. 
 pail bawd the Xev Watcrfocd Core propotjr ia 1888 aad, after regt^tcrii^ 
 bn deed, ^united hjr all the ovaeis par iadivia, h i u i iebt a pctitoay aetaaa 
 to l e uw T M that part of Ibe propertr tabea bjr the raihraj eo^^aa j, a llfgiag 
 that the instmaieBtB neatioBed eoastitnted a doaatioB of the laads aad 
 did BOt COM aitbia Oe opevatiaB of Arts. al63 and 5164:— Held, that 
 the tenaa of subs. 10 of Art. SIM. woe maffirieatlT vide to iadnde aad 
 a|^j to doaatioBs: that the iastmniait in qnestioB vr&s aoi properlj a 
 dnaatioa, bat a valid i^iiii lai or aeeoid aritbin tbe prorision oi said 
 teafli srihs. aader oaenms maditioas ci iadcaaaitT wbicb anicared to have 
 beta aa tia fi rd bjr the wpaay; ttat, as the a g T tfe at stipulated ao time 
 vitbia arbidk the mem plaa dMNiId be filed aad the loestiaB a^teared to 
 have beea ande to the satisfactMiB of the rrqauted pi opo iti oB ai tbe oaa- 
 crs. it vas snffineat for the aaapaajr to file the a i a rii d gd idaa aad book 
 of lefereace at any tine thereafter aad that, as the iadeanutr agreed 
 npoa br six oat of aiae off tbe owners par iadiTidis bad beea satisfied br 
 HiaaigiBg the loeatioa «rf fte raihrsT line as dKiivd. the nqidreaHatis of 
 Art. SIS^ bad beea fnllr eoaaplied with aad the piaintifi's action coold not, 
 aaihi the cireaaBfaaees. be anJataiaed. 
 
 Qnebee, Uwli aeac y t, Charlermx %. Co. t. Gibeoae, ±9 Can. S.Cfi. 
 WO. 
 
 PovEBS or KxrwomjkTms — Puns jL!n> iocATi03r. 
 
 In their private Act, 61 Vict, c 68 (O.H, the defendants ineocponted 
 as. 13 to 20 of the BailwaT Act of Ontario, BjSJO. 1897, c aOi, rdatii^ 
 to the csqp«^»riatiaa oi land, but omitted to iaeorpanite a. 9 of tte laat- 
 a M.^Uu a ed Act, br vhich a geaeral power to take laad is eoafiened, aad a. 
 10, by vbieh a raiHny is eatitled to make snrrers aad file a plaa aad book 
 ai reference :^fleld, that aa. 19, SO of the Baflwnj Act of Oatario veie an- 
 workable Inr defendants as the powers at coaqml^ory alienatioa giv^^ by s 
 SO do Bot arii« nntil the map and bocdc of reference have beea dcpodted 
 nadcr s. 10. bat, a^s^oming that ss. 9, 10 woe ineorporatcd. aa no plan or 
 book of reference has been filed by defendants, they were witboot the ^t»- 
 tectioa aHosded by the Act. 2 OXJL 240, aSrmed. 
 
 Hopkin T. Haaulton Bee. Light k Cataract Power Coi, 4 O JjuB. 258L 
 
 CoMUKSCEMSiXT OF Ka-matwiATtas — Osnssiox to file rtAxs — F o a fBiitM S. 
 The defendant company was origiaaUv in(«rp<Mratcd in 1897 by an Art 
 off tbe Legislatare of Britisb Coh^pbia. and in 1$98. by an Act of tbe 
 Parliament of Canada, its objects wmv dedared to be works, for the 
 genera l adraatage of Canada, aad themfter to be sobject to tbe kgisla- 
 tivv miaXkantj of the Parliaaamt off Gaaada aad tbe provisions of tbe Rail- 
 way Act, except a. 89 thereof. S. 4 of tbe Dominion Act of 1898 required 
 Can. Bj. Ll Dig.— 23. 
 
354 EXPROPEIATION. 
 
 the railway to be commenced within two years. In 1901, the defendants 
 commenced expropriation proceedings in respect of the plaintiff Hotel 
 Company's lands, and by consent took possession and proceeded with con- 
 struction, negotiations to determine the amount of compensation by ar- 
 bitration being carried on in the meantime. The defendants had pur- 
 chased, for its line of railway, land on eitlier side of the plaintiff railway 
 company's right-of-way and had applied to the Railway Committee for 
 leave to make a crossing. On the application of plaintiffs who alleged inter 
 alia that the defendants' railway was not commenced within the two years, 
 that no map or plan and profile of the whole line of railway had been 
 prepared and deposited in the Department of Railways, and that the work 
 being done by the defendants was not authorized and was not being pros- 
 ecuted in good faith by the company under its charter, but was really for 
 the benefit of the Great Northern Ry. Co., so that it might extend its rail- 
 way system, wliich lies south of the International Boundary, into British 
 Columbia, injunctions were granted restraining, until the trial of the 
 action, defendants from continuing in possession and proceeding with the 
 expropriation of the land of the plaintiff Hotel Company, and also from 
 taking any proceedings toward effecting the proposed crossing of the 
 right-of-way of the plaintiff Railway Company. Motions to dissolve the in- 
 junctions were refused. The full Court (Irving, J., dissenting), dismissed 
 an appeal on the ground that there were several points of importance 
 which should be decided at the trial. Per Irving and Martin, JJ. 
 (Drake, J., dissenting) : — Special sittings of the Full Court may be held 
 either at Victoria or Vancouver to hear appeals in actions irrespectively of 
 where the writs of summons were issued. 
 
 Yale Hotel Co. v. Vancouver, Victoria & Eastern Ry. Co.; Grand Forks, 
 etc., Ry. Co. v. Vancouver, Victoria & Eastern Ry. Co., 3 Can. Ry. Cas. 
 108, 9 B.C.R. 66. 
 
 [Referred to in Fry v. Botsford, 9 B.C.R. 243.] 
 
 Deviation — Order autiiorizixg — Application to rescind. 
 
 Certain landowners applied to rescind an order of the Board authorizing 
 a deviation from the located line of the T. & X. Power Co. previously ap- 
 proved by the Board: — Held, (1), that the company's powers under its act 
 of incorporation (2 Edw. VII. c. 107 (D)), were not exhausted by the 
 construction of one line as in the case of a company authorized to build 
 between two termini or any specified number of lines. (2) That the cases 
 relating to deviations by railway companies do not apply. (3) \Yithout 
 considering the jurisdiction of the Board to make the orders respecting 
 location plans, the applications must be refused. 
 
 Walker v. Toronto & Niagara Power Co., 5 Can. Ry. Cas. 190. 
 
 Liability of municipality — Fiung plan — Mistake. 
 
 Under the act incorporating the I. & R. Ry. Co., and amending acts, it 
 was provided that lands required by the company for its right-of-way, sta- 
 tion grounds, etc., should be vested in the company upon the filing of a plan 
 thereof, as if the same were deeded to the company, and that the owners 
 of the same should only have recourse for the lands taken against the 
 municipality of the county. By an Act passed in 1903, c. 97, a resolution 
 of the Municipal Council, adopted for the express purpose of settling 
 what land the municipality was to pay for, was confirmed. Lands of the 
 plaintiff were taken for the purposes of the company, and a plan filed in- 
 dicating the land taken, and shewing it to be land which was the subject 
 of an award in plaintiff's favour under the act: — Held, that the land, 
 being clearly marked and indicated, became the property of the company on 
 
EXPROPRIATIOX. 355 
 
 the fifii^ 4^ tlie plan, and was properlr diarged ap against defendant un- 
 der tke kgislatiaii relating to tlie eompanr: — Held. also, that the liabilitr 
 of tte dtfc«daBt voold not be affected br a mistake in the resoliiti<Hi in re- 
 latioB to an inunatnial matter. 
 
 Mclsaar v. Inrernesic. 6 Can. Rv. Cas. 105, 3» X.S-R. 76. 
 
 [Affirmed in 37 Can. S.CR. 75," 6 Can. Rv. Cas. 109.] 
 
 Excessive expbofsiatiox — Descmptiox w i.a:cd6 — Rutkexce to Pi_ixs- 
 A mnnieipalitT parsed a resolation hy wbieh it a;?reed to par for lands 
 required for the rigfat-of-war, station grounds, sidings and other purposes 
 of a railvaT as shewn upon a plan filed under the prorisions of the general 
 Railway Act. At the time of the resolution tfatre were four sueh plans 
 filed, ead shewing a portion of the land proposed to be taken for these 
 purposes, and including in the aggregate, a greater area than could be ex- 
 pn^riated for right-of-way and station grounds under the prorisions of the 
 Aets applicable to the undertaking of the railway e<Hnpany. The Legisla- 
 ture passed an Act confirmii^ sueh resolution. To an action by the owner 
 of ihtt land taken, on an award fixing the Talne of that in excess of what 
 eoald be so expropriated, the corporation pleaded no liability on account of 
 tmA excess, and also, that there was no specific plan on file describii^r the 
 land: — Held, affirming the judgment appealed from (3S X.S.R. 76, 6 Can. 
 Ry. Cms. 105), that the fiirst defence failed because of the Act confirming 
 tlie reaidatkm, and, as to the second, that the four plans should be read to- 
 getiher aad eonsidered to be the plan referred to in such resolution. 
 luTemess t. Mclsaac, 6 Can. Ry. Caa. 109, 37 Can. S.CJI. 75. 
 
 Deviation op ixxe — Date of fhixg :\Eir m,ax — Coicpessatiox — Road- 
 sne i^&xnowxER. 
 
 Ob an application by a landowner for an order rescinding an order of 
 the Board allowing an electric railway company to change the location of 
 its line from the centre to the vest side of a public highway <hi the ground 
 that such deriation would injuriously affect his property: — Held (H, 
 refosii^ the application, that the Board baring already sufficient ma- 
 terial before it. could authorize such deviation without the filing of further 
 plans and profiles. 1 2 > That the railway in question was one *^to be oper- 
 ated as a street railway or tramway' within the meaning of s. 235 of 
 the Railway Act. 1906. and that the Board must either authorize the 
 placing of the railway upon the street in accordance with the terms of the 
 consent of the municipality tthat it should be on the west side of the 
 highway) or refuse the authority entirely. Chief Commissioner: — ^The con- 
 strnctioB of the railway would more than offset the damage to the own- 
 er's land. Deputy Chief Commissioner dissenting. The question of com- 
 pensation should be decided by the ordinary Courts of justice and rests 
 entirely between the immediate landowner and the mimicipality. Coiumis- 
 sioner Mills, dissenting. The order should stand only on condition that 
 the landowner is allowed reasonable compensation. 
 
 Robertstm v. Chatham, Wallacebur- 4 Lake Erie Ry. Co., 7 Can. Ry. 
 Cas. 96. 
 
 Location — ^Rbgistbatiox — Pla:s8. 
 
 Application to the Board for an order under ss. 26, 30, 15S of the Rail- 
 way Act, 1906. declaring the plan, profile and book of reference affecting 
 certain lots deposited in the Registry Office by the railway company, not 
 to be ni aeeordance with the provisions of the Railway Act. The plan had 
 been roistered with respect to a portion of the property in question, but 
 no steps had been taken for sev«al years to negotiate with the owners and 
 
350 EXPPvOPPilATION. 
 
 fix the price to be paid by the railway company: — ^Held (1), that an order 
 should be made cancelinji; the location shewn by such plan, etc., through the 
 lots in question. (2) That the Board has jurisdiction under s. 29 of the 
 amendment to the Railway Act, 7 & 8 Edw. VII. c. 62, to review, rescind, 
 change, alter or vary any order made by it. (3) That the charter of the 
 company does not authorize it to register plans upon the lands of private 
 persons and then take no steps to acquire title to such lands during the life 
 of the charter. (4) If the company is willing to expropriate the lands in 
 question upon the basis of the present value of such lands, no order need 
 issue. (5) Leave to appeal should be obtained from a Judge of the Su- 
 preme Court as the question is one of jurisdiction. 
 
 McDougall and Secord v. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 201. 
 
 Requirements pp plans — Injunction. 
 
 While a substantial compliance only is needed with the provisions of 
 8. 158 of the Railway Act with respect to plans, profiles and books of ref- 
 erence to be filed prior to expropriation proceedings being taken, it must 
 clearly appear from the plans, profiles and Ijooks of reference filed, exactly 
 what portion of the land of each separate owner the railway company 
 requires, and the mere indication of the centre line of the proposed railway 
 is not sufficient; the book of reference is a necessary part of the filings 
 to substantially comply witli the provisions; if the first definite informa- 
 tion of the owner as to the quantity of land to be taken is obtainable only 
 from the notice served, there has not been substantial compliance with the 
 act. In the absence of evidence that the company has been oppressive or 
 high handed, an injunction will not be granted to restrain the railway com- 
 pany from proceeding with the railway, even if there has not been sub- 
 stantial compliance witli the act, provided the railway company will 
 enter into an imdertaking to comply forthwith with the requirements 
 of the act and to facilitate the proceedings for determining the amount 
 of compensation to be paid — following Parkdale v. West. L.R. 12 App. 
 Cas. 602, 56 L.J.P.C. 66, 57 L.T. 602, and Hendrie v. Toronto, Hamilton & 
 BuflFalo Ry. Co., 26 O.R. 607, affirmed 27 O.R. 46. But the Court will re- 
 serve to the plaintiff the right to apply to a single Judge for an injunction 
 to prevent any unnecessary delay in proceeding to ccmply with the Act 
 and pay compensation, \\arrants of possession improperly granted to a 
 railway company which has not complied with the provisions of the Act 
 will not prevent or render invalid the registration of a plan 8ub<lividing 
 the lands required by the railway company, but: — Held, that in the ab- 
 sence of acceptance by the municipality of the streets, and evidence of a 
 user of the streets by the public, or of evidence of the sale of lands in the 
 subdivision, the streets shewn on the plan do not become highways. 
 Quaere, per Stuart, J.: — Whether or not the judgment of a Judge who is 
 persona designata is appealable in view of the decision in C.P.R. v. Little 
 Seminary of Ste. Thfr^se, 16 Can. S.C.R. 606, since the enactment of s. 220 
 of the Railway Act. Quaere, per Stuart, J.: — Whether or not a dissatisfied 
 litigant who has the right to appeal must appeal and is not a liberty to 
 bring the same matter before the Court in a different way, but: — Held, 
 that where the right of appeal was doubtful and the plaintiff has given 
 notice of appeal, and at the same time brought an action for injunction, 
 in which action the validity of the order appealed from would have to be 
 inquired into, the matter was properly brought before the Court: — Held, 
 aFso, that the Court will not be bound by agreements of counsel in a stated 
 
EXPROPRIATION. 357 
 
 ease as to tte dfetC i^oa tike rig^ oi parties to tke actiaB bjr detcrauaa- 
 tioa of CCTtaia qpestioas — 1— itt ed ia ccrtam specified ««j%. 
 
 Manaa t. Graad Tmk Fuxfie Sf . Col, 9 Cbbu By. Gu. Ml, 2 Alta. 
 LJEL 43. 
 
 [Parthr fcOamtd aad distiagaUhed ia Giroimd t. Graad Tmak FadAc 
 Bj. C<C 9 Caa. Rr. Cas. 3»«, 2 A I. R. .>4: cua-^idcs^nl ia Baadrrt ▼. 
 Edanatoi^ Daar^aa 4 B. C. Rjr. Cim 1« Caa. Bt. Cma. 142. 
 
 BocTE MAP — LocATKnr n-»:x$. 
 
 Af^ieatkia for appnnal ci its hwatioB. ""Priaee Bnpot weaterir. aile 
 to Bile l.£3." lihe ai^«aat prow d ul to eoBstmct tke roadbed hat 
 fonad tkat it eoold aot obtaia mmmt $9MJHB aader its eoatratte vitfc tbe 
 GoverBBeat aalesB it «as able to shrv that the three aad oae-^paarter miles 
 of raihmj had kea taaiiliatlBd ando- the pravi^ioBs off the Bailwaj Act, 
 IMMu Ike appiieaaft eoatcadtd that Ois beia^ Berdr the nrd of tW 
 e— paajj ao male aap or hMataoa ^ba was reqpdred: — Hdd (1), that 
 the cnaapaaT aot havii^ coaqdwd vith the proviaaaa <tf ss. 1^7. 158u 1^ 
 <rf the Bailvaj Act, the af^iicatUB aiet be nfased. (2^ That the Baud 
 had BO jniadictkB Bader 9 & 1* Edv. VU. c aO, & 2, tmpowtiimg the 
 Board to approve of mrts lUBgAi a cted vithoot approica] before Decoaher 
 31st, 1909. aiaee the raadbed ia ^focstioa had beea eoaatrocted sBbseqacat to 
 that dateu 
 
 Be Priaee Bopert Locatioa. Graad Tnaitk Pacific Bj. Col, 13 Caa. Bj. 
 Caa. 1^3. 
 
 Plxxs — DciJiT E\ coyoasasQ rBrwTHTfcn 
 
 Where the plaa of the liae of a proposed railaay has bccB ap p tiw ^ id hjr 
 the Bailvaj CoMBis^ioaer of :yaaitoha, aad filed ia the laad titks oficB 
 of the distAct, bat BQ«hiBg has bee* daw tOBwds aetaalhr edbah&UBg the 
 railvBT, except the obtaiai^ of a, barter vhieh iaeorporated the fro- 
 TisioBs of the llaaitoba Bailwaj Act, aad the pa]r»at ia of a specified de- 
 posit ia re j ect of snch charter, the rsilvaT cospaax shoold with rea- 
 ■nBiMe dispatch exexciBe its ri^dt to acfaiie the laad throo^ vhich rt» 
 proposed tiae mas br ewaeat doasaia piot ee dia ig, aad aa ovaer throagh 
 Bhoae pn^iertT the proposed liae nia« aaj, oa Ae mMpaaj"!! deiaalt 
 ia proceedla^ witbia a leasoaaUe tiaM-. a|^l^ paraaaat to the pgoririwi 
 ni the Maaitofaa Baihraj Art. 3 Geo. V. fHaa.)^ to hare the jdass aeC 
 aside. 
 
 Be Wiaaipe* Xorth-Esstera By. Co. (Uaa.), li Caa. Rj. Cms. CC, 16 
 D J-B. 4«9. 
 
 [Afiraed ia 11 DJLcB. 147.] 
 
 PlaXS JLS9 nHMTLE — VaCATIX€ FOB BEL4T. 
 
 Whoe the pbui of the liae of a pnqioecd railwav has beea approved 
 by the Bailwaj Cansua^oa of liaaitoha. aad filed ia the laad titles affirw> 
 of lAe district, but aothia* has beea doae towards sctaallr cstabli^i^ the 
 railvaj, except the obtauiag of a charter which ia eorporated the ^o- 
 yJiiaBi of the Msaitoba Baflway Act. sad the pajBest ia of a ■pciifitd de- 
 poot ia respect of snrh charter, the Poblic Utilities CasBaisBiaB of Uaa:- 
 tobB has jorisdictioa, opoB the appUcatioa of aa owaer t hiu B gh vhoiae 
 piup e itj the p rop o sed liae mas. to $et a&ide the plaas ob the eaBipaaT-'s 
 defanlt ia pro t e e d iag withia a rea;gonable tine. fBe Wiaaipe; Nortli- 
 Eastern By. Col, 10 DX.B.4«9, affirawd a> to jmisdietioa.] 
 
 Be Wiaaipeg Xorth-Easlan By. Col iNo. 2), 11 OX^B. 147. 
 
358 EXPEOPRlATIOi^. 
 
 Sexior and junior rule — Location plan — Deposit — Prioritt. 
 
 The provisions of the Railway Act, 190(3, as to deposit of location plana 
 in the appropriate Registry Offices, and notice of such deposit override 
 the provisions of provincial Registry Acts, giving priority to plans for- 
 mally registered in accordance with their requirements; and, therefore, a 
 highway laid out on a plan duly registered under a provincial Registry 
 Act is junior to a railway built in accordance with approved location 
 plan, previously deposited in accordance with the Railway Act, but not 
 registered. Re Grand Trunk Pacific Branch Lines, 22 W.L.R. 515, 16 
 (an. Ry. Cas. 24;i, distinguished; Tennant v. Union Hank. [1894] A.C. 45, 
 followed; Edmontcm v. Edmonton, Yukon & racilic Ry. Co., lo Can. Ey. 
 Cas. 128, referred to.] 
 
 Regina v. Can. I'ac. lly. Co., 16 Can. Ry. Cas. 2.38. 
 
 Location plan — Subseqi'ent registered plan — Prioritt. 
 
 A location plan having been deposited, under the provisions of the Rail* 
 way Act, the right of the landowner to lay out streets thereafter is sub- 
 ject to the railway company's right to proceed with its undertaking; and 
 subsequent registration of a plan opening highways is ineifective as 
 against the company. 
 
 Edmonton v. Calgary & Edmonton Ry. Co., 16 Can. Ry. Cas. 420. 
 
 [Affirmed in 22 Can. Ry. Cas. 182, 3*0 D.L.R. 222; followed in Midland 
 Ry. Co, V. Grand Trunk Pacific Ey. Co., 23 Can. Ry. Cas. 80. 
 
 Location plan — Registration — Seniority, 
 
 The proper registration of the location plan of a railway approved by 
 the Board sufficiently establishes the railway company's seniority over a 
 municipality, at points of highways not previously dedicated by the filing 
 of plans or used, constructed or accepted by the corporation. [Edmonton 
 V. Calgary & Edmonton Ry. Co., 16 Can. Ry. Cas. 420, affirmed.] 
 
 Edmonton v. Calgary & Edmonton Ry. Co., 22 Can. Ry. Cas. 182, 53 
 Can. S.C.R. 406, .30 D.L.R. 222. 
 
 [Followed in Midland Ey. Co. v. Grand Trunk Pacific Ry. Co., 23 Can. 
 Ry. Cas. 80.] 
 
 Location plans — ^Registration— Effect. 
 
 The date of the registration of the railway's location plan imder the 
 Railway Act governs as to the compensation to be paid on expropriation; 
 and any change either in title or in improvement to the land to be expro- 
 priated is subject to the notice resulting from such registration. 
 
 Re Edmonton and Calgary & Edmonton Ry. Co., 15 D.L.R. 417. 
 
 Plans — Modification. 
 
 An order of the Board authorizing an expropriation, and the plans and 
 specifications approved by it, for this purpose, can only be changed or 
 modified by another order of the Board. 
 
 Baril v. Grand Trimk Ry. Co., 46 Que. S.C. 295. 
 
 Street bxtension — Relocation of railway line — Reooitstrtiotiow of 
 bridge. 
 A portion of a railway line being relocated under an order of the Board 
 in order to provide for a street extension, another and junior railway com- 
 pany whose overhead structure on the first or senior railway company's 
 land required reconstruction to permit the extension of the street must do 
 the necessary work at its own expense where there is no provision for such 
 work being done at the city's expense in the former order of the Board. 
 
EXPKOPKIATIOX. 359 
 
 flawHoB T. Tr«—SH— Electric ad Toraatto^ Hanttoa t Bidbl* Rf . Cos. 
 (ffirck Araoe FiIimiww One), IS Clu. Br. Ck& 3M. 
 
 : Hotice. 
 
 ■WMOL PATMEST OT OOSEFCXSAIIOX. 
 
 ^ tkr Boatrl girn^ leaw to a ruhvar nmmfmmj to eoasfrart 
 
 off *, tfttr track aad antkoiizii^ l&e etfropriatiaa of tlw 
 famd is coadhasirr, «■!«!$ iri r ra ed oa appeal to tke Sapraap 
 Cult, as to Che r^bt iti tht coapaaj to ca^nfMriale tke tiad aad coa- 
 •traci Ike rrtrmina, aad the bet tkat the ovaer <rf tke laad is boaa lide 
 ptoujcd i^ to »ppt»l to the Si^naae Goart firaai sack order maid aot 
 jartifr a driaj la graatia^ a vamat, aader a. 217 of tke Baitoa j Art, 
 19M^ to prt tke o^ipaaT ia posicanoa of tke rHiaired laad befoic paj- 
 Mcat «f tke coBpeaatioa. as tkat scctioa aakes it tke dodtj «f tke Jai^ 
 to graat tke waxraat oa afidarit to kis aatisiactioa tkat iajnediato pats e a 
 ■MB if aecessarj. ^Hk a vanaaft AoaH, kovever. aot be graatcd aaleas 
 tkere is soae ai^geat aad sakstoatial aeed fmr iauaediate actioa ia tke ia- 
 tcnsi of tke rallwa J- ita^ or of tte paidie, aad it is aot Awfcicat to drv 
 tkat tke iatcrests <oS aa ia di ti d aal, wkose piup e itj aoald be le a ck c d bv 
 tke spar liae aikea bailt, aij g tatU call for saA coastzactica ia otder tkat 
 ke wmjr prafitoUjr cam- oa kis kaaacas oa sack piopcj H i - (^Kiagstoa A 
 FeariMnifce Rr. Co. aad' linrpl^ {18S6I. 11 PJL 3M, aad CPJL ▼. Stc;. 
 TMr^e, IC Caa. SLC.R. at p. «?, foUowcd.] 
 
 Be Caa. Xortkera Bj. C«l aad Bladcvood, » Maa. LJB. 113. li WJ^JL 
 
 Wjomaxt or FOSSESSiox — ^ILucBAiiMrr iwnsioss. 
 
 Ike cflect «f tke ckai^ of tke vwd '"'muiT'' ia sl 217 of tke Raihraj 
 AtiU RJ&.C IMW. CL 37, to ''^alP is tkat, oaee it is establisked to tke 
 satiftoctiaa of tke Jad^ tkat iaBcdiato po^eseioa of tke bad bj tke 
 coa^a^ is acccsaaij, tke Jad^ kas ao altaaativc bat to graat lAe «ar- 
 laat. He ai^ escrrkc Us diseietiaa. koanetcr, as to aketker aecessitj is 
 citibBskcd Aad kcxe tkere was ao s^ggcstiaa of tke accrniiBt y of iBBe- 
 diate provisiaa of facilities for tke pahlie; ttie patmeiiiiii Ba aas aoi aecm- 
 saiy for aaf ai]geBt parpoee of lAe c«aapaaj^tke basis of tke spplimtioa 
 was tke aeccjufcitj of &: aad B.'s propertj n^ts wen »m maA catitled to 
 iwiiikisliiw as tke aecessities <rf S. 
 
 Be OuL Xortken Bt. Col aad Blackwood, 13 J^JLIL 4»4. 
 
 Wabxast of posscsisiox — JraiSDicnox or JrvGX as pbbsoxa wBsteaiMXA 
 — Co^jMTioxs racccaeTT — DErosir or mix. 
 Be Gruid Traak Paeifie Br. Co. aad Mair^aa. 9 WX.B. 211 (Atta,). 
 
 Wabsaxts: vvb MKsassH»3C — Scii;$ TO BE PJUB rsrm Corrr. 
 
 Be Cani|didICord, Lake Oatario t Westera Bt. Col, 3 HJjlR. 889. 3 
 O.WJS. 1513. 
 
 XoncK — ExTcxr or lasmr — TCaawmr^r — ^^Laxbs" — Aukxvmkxt or ymice, 
 A BOtice of evpaoptia tioa coataiaii^ a elaose: '"Besening to tke said'^ 
 (laadoaacnl 'itbe rigkt or priiH^v bj vaj of caseBcat apoa tke laads 
 c tpio p sia ted of awiataiaiag, repairia* aad i«a^ tke daan. ahdee gales, 
 aad kcad race at prcscat eoastrartcd aad existiagr apoa tke said laads, 
 aad of ■■iaisiaiag, aad mamg ia tkeir |»e9cat coaditioa aad capacitr tke 
 kjdraalic riju^te aad privileges tkerebjr coatrolled or ea joved.* Br tke 
 iaterpsdatiaa ckune of the Baitwaj Aet. 1903. & 2 (■->, "'Ike expres^ioB 
 " laads tke acqairiag, takiag or aslag: of lAick is iacidcat 
 
860 EXPrtOPKIATION. 
 
 to the exercise of the powers given by this Act or the special Act, and in- 
 cludes real property, messuages, tenements, and hereditaments of any ten- 
 ure. . . .": — ^Held, by the reservation contained in the notice, if effect 
 were given thereto, the railway company would acquire an easement over 
 at least a portion of the lands of the owners, and as, under the above 
 clause of our Railway Act, the company have no right to acquire an ease- 
 ment, the order for immediate possession must be refused, unless the own- 
 ers permit an amendment in the notice by striking out the oljjectionable 
 clause. [Reference to s. 85 of the English Land Clauses Consolidation 
 Act; Hill V. Midland Ry. Co., 21 Ch. D. 143; Ayr Harbour Trustees v. 
 Oswald, 8 App. Cas. 623; Ontario & Quebec Ry. Co. v. Philbrick, 12 Can. 
 S.C.R. 288.] 
 
 Re James Bay Ry. Co. and Worrell, 5 Can. Ry. Cas. 23, 6 O.W.R. 512. 
 
 SUFFICIEXCY OF NOTICE — IMMEDIATE PCSSESSION. 
 
 The defendants had, under their special Act, power, to acquire "any 
 privilege or easement required bj' the company . . . over and along 
 any land, without the necessity of acquiring a title in fee simple thereto;" 
 Rnd the act defined "land" as including any such privilege or easement, 
 etc. In giving notice of expropriation the defendants did not state wheth- 
 er it was the fee simple, or merely some easement or privilege over the 
 land which they sought to acquire, but only that they proposed to acquire 
 the land "to the extent required for the corporate purposes of the com- 
 pany:" — Held, that such notice was too uncertain a foundation for expro- 
 priation proceedings, and the defendants were not entitled to a warrant 
 for immediate possession under s. 170 of the Railway Act, 1903. 
 
 Lees V. Toronto & Niagara Power Co., 6 Can. Ry. Cas. 128, 12 O.L.R. 
 505. 
 
 Immediate possession — Station site — Plans not prepaked, 
 
 A railway company having obtained an order from the Board authoriz- 
 ing it to take the lands of the owner for the purposes of a station the com- 
 pany made a motion under s. 170 of the Railway Act, 1903, for an order 
 for immediate possession of the said lands: — Held, that as the affidavits 
 failed to show that the railway company was ready forthwith to proceed 
 with the erection of the station, the motion must be dismissed but with- 
 out prejudice to the right of the railway company to renew the motion 
 when the conditions have changed. 
 
 Re Williams and Grand Trunk Ry.Co., 6 Can. Ry. Cas. 200, 8 O.W.R. 
 277. 
 
 Wabbant of POSSESSION — Practice. 
 
 Where a railway company under its powers to expropriate land obtained 
 a warrant for possession and the amount awarded the owner in subsequent 
 arbitration proceedings is less than the amount at first offered by the com- 
 pany, the costs of obtaining the warrant for possession shall be borne by 
 the owner. 
 
 Re Vancouver, Victoria & Eastern Ry., etc., Co., and Milsted, 7 Can. 
 Ry. Cas. 257, 13 B.C.R. 187. 
 
 Warrant of possession — Appeal from — Res judicata. 
 
 The defendant applied for warrant of possession under the Railway Act 
 regarding expropriation of lands, and the .Judge, sitting in Court, granted 
 the warrant of possession on facts which the Court en banc, in ^larsan v. 
 Grand Trunk Pacific, 9 Can. Ry. Cas. 341, 2 Alta. L.R. 43, held were not 
 sufficient to give the Judge jurisdiction, and the order was therefore inval- 
 
EXPKOPRIATIO^f. 361 
 
 a. Tht jtumtiS, JmKtrmd <4 taldag an appeal from tke order, bron^lit an 
 afetion agihwit Uk mahny cwmpaay. Ha iMhtg injvnctiaa and danH^e^: — 
 Held, tkmt tke phJatif coold ■amtain tike action, for the nnsaa tihat, 
 eren if an appial ««nld lie Aon tte wder, the plaintiff vas entitled to 
 additianal rt&l Igr wmj d an injnntllMi and damages nUdi coald not be 
 givai on appeal: — Odd, abo, tke princi]de <rf rs jodicata vonld not ap- 
 pl]r, as tke mrder giantins tte vairant. of po Bwew f i o n vas aaade vithoot 
 jnriadiftion. [Attanejr-Gcnnal for IHnidad t. Ekricke. £3 I-J.P.C. 6. 
 UR. (mS) A.C. 518, 1 B. 440, 69 UT. 503, lefemd to}— Held, also, that 
 tke railnnT eompanr haTing acted nnder the inTalid varrant of possession 
 kad eoanaitted a technical trespass and was liaUe for noninal daangcs, 
 nkick caxried costs. [Marfan t. Grand Trunk Paofic By. Co., 9 Can. Rj. 
 Ouu 341, distingoiskcd.] 
 
 tSimnwi T. Grand Trunk I^dfic By. Gol, 9 Gan. Bj. Gas. 3^ ± Jklta. 
 I.JL 54. 
 
 WjinKA3rr wxm imxesiate fossessiox — Jcdicl&i. oiscbsthhc. 
 
 Where a raQvaj companr Bored, nnder & 217 of tke BaihraT j&ct, ISMM, 
 for a variant for inmediate poaacasion, it naa kdd, that altkon^ it vaa 
 a eas« of kardskip on Ae landunner tkcre mas no discntion left to the 
 Jnd^ under the statute. 
 
 lieCarthv t. TiD^mbars. Lake Erie & Pacific Br. Co., 12 C^n. Bt. Gas. 
 S72, 2 O.W.S. ZL 
 
 ArnxsvaxuxxT or svtux. — ^E3(FoaccK« awako — ^Possessiox. 
 
 .An ahandonnent of a notice to take land« for lailvar purposes, under 
 tke BaihraT Act, 1S8S, c. 109, a. 8, anks. 26, nost take place vkile tke 
 notice is still a notice and befofc tke intention has been exerci$ied br tak- 
 ing tke lands. Tke proper nwde of enfovru^ an awd of ronipensjition, 
 ■Mde under the Bailvaj Act. is In* an order from tke Judge. Qnaeie. 
 akelkcr snb& 31 of s. 8, pcxnuts posfiession to be given before the price is 
 fixed and paid of anr land, except land on whick some vork oi eonstme- 
 tion is to be at once proceeded vith. 
 
 Gan Pae. Bt. Co. t. Ste. Tklr^se, 16 Can. SuCJL 606. 
 
 AnAmoxicEST — Sebticx or teu- ^(oncE. 
 
 Diefcndant companj proposing to expropriate certain lands of plaintiff, 
 amul notice to treat pursuant to s. 193 of tike BaihraT Act, 1906, but 
 upon disagreement as to price applied to a Judge for tke appointment of 
 an arbitrator, under s. 196, and also for a varrant of po aiienirion nadcr kl 
 SIT, 21$. Tkis aplication vas refused bcvaose the notice to treat nas not 
 a cwimp anied br the certificate of a dialnterested surreror trader s. 194. 
 The a e np on the compaoT ^errcd a nev notice, accompanied bT a fwoper err- 
 tificate. and at the same time 9CTred a notice abandoning and desisting 
 fro m the first notice and all proceedings had thereon. Plaintiff treated 
 tius latter notice as giren unn^ & 207 and proceeded to tax costs as of 
 an abandonment under &s. 199, 207. The costs vere submitted to Clement. 
 J., the Judge applied to. who directed that they be taxed br the Tegistrar, 
 and Clement, J. adopted tke taxatioa. At tke trial, Irring, J., came to 
 tke eonelusion tkat tke confirma tion br tke Judge after picliminazT tax- 
 ataon kr kis clerk, amounted to a ta3ution in fact br kim. and on tke 
 merits nas of opinion tkat there vas no afaandouMnt, and dismi^ed the 
 plaintiff^s action: — Held, on appeal, that tke nen notice to treat being 
 aerred at the same time as tke ahamkmment oi tke fixnt notice, vas man- 
 ifestlj a eoatinnation ni tke miginal proceedings, and did not come nithin 
 a. 207, an abandonment nnder niueh is one with tke intenti<w of nhollT 
 
3G2 EXPROPRIATION. 
 
 discontinuing and taking no further action. Held, further, that the sub- 
 ject was not res judicata by reason of the taxation by the Judge or by the 
 taxing oflScer on the Judge's direction. Semble, per Galliher, J.A. : — That 
 it was competent for the Judge to direct the taxation as he did and then 
 adopt it as his own act, it not being the intention of the statute that the 
 Judge should perform the actual clerical work of taxation. 
 Atwood V. Kettle River Valley Ey. Co., 15 B.C.R. 330. 
 
 Usufruct — Abandonment. 
 
 The abandonment of the usufruct from land need not be made in any 
 particular form. It may result from circumstances such as the conduct 
 of the usufructuary, his failure to exercise his rights, etc., from which the 
 Court may determine it. Expropriation for the purposes of an electric 
 railway (Art. 5164 et seq. R.S.Q.) does not affect the right of the owner 
 expropriated to damages for injury to the land which is left by the sub- 
 stitution of a steam for an electric railway. Therefore, this right is 
 independent of the enhanced value, if any. that is given to the land by the 
 railway and the arbitrators' award fixing the indemnity, is not a bar to 
 recovery of a claim, resulting from the expropriation. Such claim, more 
 over, is in no way based on the special provisions above referred to, but 
 is founded on the common-law liability stated in Art. 1053 C.C. (Que.). 
 Tlierefore it only applies to the damages actually suffered, to be revived 
 in case of fresh damage afterwards and cannot be determined by a gross 
 amount covering past and future damages. 
 
 Lapointe v. Chateauguay & Nor. Ry. Co., 38 Que. S.C. 139 (Sup. Ct.). 
 
 Right acquired by railway company — Abandonment by railway — Ease- 
 ment. 
 
 The title to land expropriated for a right-of-way by a railway company 
 that received a subsidy under 27 Vict. (X.B.), c. 3, 1864, and 28 Vict. 
 (N.B.), c. 12, 1865, is, by the provisions of such acts, limited to an ease- 
 ment merely, and upon abandonment thereof for railway purposes the 
 title reverts to the original owner. 
 
 Carr v. Can. Pac. Ry. Co. (N.B.), 14 Can. Ry. Cas. 40, 5 D.L.R. 208. 
 
 Procedure — Warrant of possession — ^Noncompliance with statutobt 
 Requirements. 
 
 A warrant of possession, issued under s. 217 of the Railway Act, 1906, 
 will be valid until set aside, although all of the statutory requirements 
 were not strictly complied with, as s. 220 of the Act provides that the 
 proceedings are to be continued in the Court which issued the warrant. 
 [Marsan v. Grand Trunk Pacific Ry. Co., 2 Alta. L.R. 43, 9 Can. Ry. Cas. 
 341. and Can. Pac. Ry. Co. v. Ste. Th^rese, 16 Can. S.C.R. 606, considered.] 
 
 Sanders v. Edmonton, Dunvegan & British Columbia Ry. Co., 16 Can. 
 Rv. Cas. 142, 14 D.L.R. 88. 
 ' I deferred to in 18 Can. Ry. Cas. 71.] 
 
 Trespass — Defences — Warrant of possession — Service of, on regis- 
 tered OWNER AFTER SALE. 
 In an action against a railway company for a trespass, a warrant of 
 possession for the locus in quo, issued under s. 217 of the Railway Act, 
 1906, will be a good defence, although some of the statutory requirements 
 pertaining to the issue of the warrant were not complied with, as the reg- 
 ularity of the warrant can be inquired into only in the prwoeding in 
 which it was issued. The service on the registered owner of land of notice 
 of an application, under s. 217 of the Railway Act, 1906, for the issuance 
 of a warrant of possession, is a sufficient compliance with s. 220, requir- 
 ing that such notice shall be served on "the owner , , , or the persons 
 
EXPROPRIATION. S63 
 
 empowered to cmiveT the land?, or interested*' therein, notnithstanding 
 that before the varrant was granted, the roistered owner sold the land 
 to and it was then in the po6sessi<m of a third person, who^e transfer had 
 not been registered, and whose interest was not disclosed hr caveat or 
 otherwise. (Per Harrey, CJ.^ and Scott, J.. afBrming the decision ap- 
 pealed frmn on an equal division of the Court. ) 
 
 Sanders v. EdnKnttMi, Dunvegan k British Columbia By. Co., 16 Can. 
 By. Cas. 142, 14 DXJL 8S. 
 
 '[Referred to in 18 Can. By. Cas. 71-] 
 
 SeXTICE op XOTICE — OWXEK AT TOIE OF DEPOSIT OF M-IX ^SCBSEQCEST 
 
 puBi-aASEK — Okdek restkaixixg akritkatoks — Bights cw owvek. 
 
 A railway ccMnpany taking expropriatiim proceedings for its right-of-wav 
 under the Bailway Act. 1906, is not entitled to proceed I'pou a notice to 
 treat served upon a person who was the owner at the time of the deposit erf 
 its plan, profile and book of reference, to the exclusion of a purchaser whose 
 title was already registered at the time the notice to treat was served oa 
 his vendor; the purchaser is entitled to have an offer made to him which 
 he can either accept or refuse and it is not sufllcient that the purchaser 
 was offered the opportunity of taking the vendors place in the arbitration 
 proceedings. Prohibition lies at the instance of the purchaser to restrain 
 arbitrators in expropriation proceedings under the Bailway Act, from pro- 
 ceeding upon a notice to treat served upon his voidor who has ceased to 
 have any title to the lamd in dispute upon the r^istration of the pur- 
 diaser's deed prior to such notice to treat. 
 
 Lachine, Jacques Cartier 4 Mais«oneuye By. Co. t. Beid, 20 D.LJ(. 816. 
 
 Jm. Costs. 
 See also B. on p. 295. 
 
 ExnUVBIATlOX COSTS. 
 
 (1) The eoets of an owner who succeeds in an aihitration under the 
 Bailway Act ^all be taxed as between solicitor and client. (2i The 
 tariff of costs prescribed for ordinary litigation may be accepted as a 
 general guide for taxing the c<»ts of such an arbitration. 
 
 Can. Xorthem Quebec By. Co. v. Paquin, 11 Que. P.R. 237. - 
 
 COUSSEL mES. 
 
 The costs of a successful attorney in a railway expropriation over $10.- 
 000 include the sum of $2o for the first sitting at enqu^te, instead of $10; 
 $70 as attorney's fee. $l-> hearing fee, $20 for filing factums and an addi- 
 tional fee of $-10. the amount of the case being over $10,000; but the sum 
 of $23 for the special enqudte fee will not be allowed. 
 
 Can. Pac. By. Co. v. Oligny, 12 Que. P.B. LL 
 
 Fees of asbitratob who kesigxes pexdixg the abritratiox. 
 
 Application by the railway company under s. 199 of the Bailway Act, 
 1906, to bare its eosts of an arbitration to determine the amount of com- 
 pematkwi to be paid lor land takoi taxed by the Judge, the board of ar- 
 
304 EXPROPRIATION. 
 
 bitrators having awarded only tlie sum previously offered by the com- 
 pany, J. one of the arbitrators first appointed, resigned before the award 
 was made and a new arbitrator was appointed in his stead. The owner 
 took up the award, paying the fees of all the arbitrators but J. who came 
 in on this application and asked that his fees be paid: — Held, tliat he 
 could liave no relief on this application, but must be left to his rpmedy, 
 if any, against the owner by action. In taxing the costs of the arbitration 
 under tlie statute, the Judge acts ministerially and cannot decide anything 
 as to the right to costs. [Ontario & Quebec Ry. Co. v. IMiilbrick (1886), 
 12 Can. S.C.R. 288, followed.] 
 
 Blackwood v. Can. Northern Ry. Co., 20 Man. L.R. 101, 15 W.L.R. 110. 
 
 XOTICE OF ABANDOXMEXT. 
 
 The word "desist" in C.S.C. c. 66, s. 11, subs. 6, has the same meaning 
 as "abandon" in the Railway Act, 1888, i. e., to leave off or discontinue. 
 Whether voluntarily or compulsorily makes no difVercnce; if the railway 
 coni])any cease o])erations to expropriate land and give notice as to other 
 operations, that is desistment or aliandonment, and the comp^^ny must pay 
 the costs to the landownet. [Widdcr v. Buffalo & Lake Huron Ry. Co. 
 (1865), 24 U.C.R. 222, 234, applied and followed.] 
 
 Re Oliver & Bay of Quinte Ry. Co., 3 Can. Ry. Cas. 384, 6 O.L.R. 543. 
 
 Proper pboceuure — What should be allowed. 
 
 The usual and convenient course in regard to costs of proceedings under 
 the Railway Act, 1888, provided for by ss. 154, 158, is not for the Judge 
 to tax in the first instance, but to relegate the bill of costs to an officer 
 conversant with the practice of taxation to ascertain what has been prop- 
 erly incurred; and his conclusions may l)e adopted or varied by the Judge. 
 If lands are taken compulsorily, the costs should be allowed in larger 
 measure than in ordinary litigation, but in the case of mere desistment, 
 it is enough if the bill is fairly taxed: — Held, with regard to items in 
 dispute upon taxation: — (1) That a consent to take possession was not 
 part of desistment proceedings, and the costs of it were properly disal- 
 lowed. (2) That costs of steps taken to appoint a third arbitrator were 
 not costs of the landowner; the appointment was a matter to be arranged 
 by the two arbitrators already named. (3) That "instructions for brief" 
 upon arbitration should be allowed. (4) That what was actually dis- 
 bursed in witness fees to a necessary and material witness as to value 
 should be allowed. (5) That the quantum of the counsel fee upon the 
 arbitration was in the discretion of the taxing officer, and should not be 
 interfered with; (6) That "instructions to move for costs of arbitration" 
 was properly disallowed by the taxing officer, in the discretion given by 
 item 38 of the tariff of the Supreme Court of Judicature. (7) That the 
 costs of a formal order for taxation and its incident.s, and not a mere fiat 
 or direction to tax, should be allowed, the liability for costs having been 
 disputed. See 6 O.L.R. 543, 3 Can. Ry. Cas. 384. 
 
 Re Oliver and Bay of Quinte Ry. Co., 3 Can. Ry. Cas. 386, 7 O.L.R. 567. 
 
 [Adopted in Re Can. Nor. Ry. Co. and Robinson, 17 Man. L.R. 580.] 
 
 Arbitrator's fees — Couxsel fees — Fees of e.xpert witxesses. 
 
 (1) Under subs. (5) of s. 2 of the Railway Act, 1906, interpreting the 
 word "costs" used in s. 199 of the Act, as including fees, counsel fees and 
 expenses, the costs of an owner who succeeds in an arbitration under the 
 Railway Act should be taxed as between solicitor and client. [Malvern 
 
EXPROPRIATION. 365 
 
 Uiliu District T. JialTvra (ISOO), 83 L.T. 3*6, foUowd.] (2) The tariff 
 «f coats jmaaibti for ovdisuy litjgrtiwi aaj be acrqp ted as a geacral 
 gude for texiag tke eoatB of aark am aititntiai; trot whou ia the opia- 
 itai of tbe taztaig ofieer, tke feea fixed br tbat tariff are iaadefoate eoa- 
 peaaatiMi for the aerriees Beeesauilv and resaaonablj r^Mlered, he is not 
 boond hy it a»d shovld aot foDov it. (3) Fw the parpo>de$ of the vmsa- 
 tioa of sadi easts the arfaitiatioa begaa when the eanpanT served aotiee 
 npon the ovaer oStrimg an aawi— t which ther vere villii^ to paj and 
 ■aaiin^ its arlatrator. aad item for woik d<iMe rcen before that date 
 ihooM be alloved if ther were for work that would properli- be costs of 
 the arbitratioii if doae after that date; for example. Fee pemsiag the 
 Ofider of the Board giiin^ leare to expropriate, and takin«r uatradtiOBSw 
 (4) The owner was entitled to tax the fees paid to the arbitrators oa tak- 
 imgupUm award. [S ^i e adbui* t. WirraL [lS9d] ± Ch. Sl±, distjagoished-l 
 (^f GooBsd fees allowed br the taxing officer were reduced to 4^100 per daj 
 for first eomisd aad STd per daj for second cooaaeL (6) The fees actuaUr 
 paid to expert witaeees shooM not neoessarilr be allowed, hot oalr faiir 
 and reasimahle fees for the time occapicd ia atteadi^g before the arbi- 
 tratocs aad ia qnalifyi^ theatselTcs to ^ve erideace. (7) The easts of 
 the tSTatina, iaehidi^ a fee of f33 for the argvmeat before the Jndge, 
 Jwald he horae bv the etMapaar. 
 
 Gn. Northern Rj. Co. ▼. Bofaiaaoo, 8 Can. Rr. Cas. 244, 17 Maa. JUL 
 S»9. 
 
 Clbxe's nss. 
 
 (1) The award hr the arbitrators does not eonstrtnte a judgment for 
 eoata aad, thcrefMe, the latter cannot be recovered a«aiast the kmsii^ 1""^ 
 hj way of exeeotioa. (2> Bt & 16± of the Railway Act. 1903. the Judge, 
 ia taadi^p the eostsi, is exovisiii^ a function nmely ministerial, and aieh 
 taTatioa has aoi the effect of givi^ to the par^ in favor of whom the 
 eosts have thus been taxed, a judgaaeat upoa whkh he mi|rht proceed to 
 l eeo r e t his costs. (3* The onlv mranw to reeore r the ca>?t> under the 
 Bailwaj Act, would be br war of aa ordinary action. [Compare Ex parte 
 GagaoB, 3 Que. S.C. 288.] 
 
 Can. Xortbon Ry. Co. v. Toochette i. Fortier, 9 Can. Ry. Gas. »3, 9 
 Que. PJL 123. 
 
 A raOway company which after haiii^ giv^^ a aotiee of expn^triatioB. 
 aliaadnafd_ it imda- the proTisioBs of & 207. of the Railway Act. 1906. is 
 obliged to pay heaides the taxed easts, the damages incurred by the owner 
 notified. These damages comprise the fees paid to an ardiitect aad aa 
 advocate onployed in making arrangements for the artatration. 
 
 Gravel t. Grand Trunk Ry. Co., U Can. Ry. Ca*. 437, 38 Que. S. C. 347. 
 
 Costs or AKRrntATiox. 
 
 The fact that a landowner has not appealed from or moved to set aside 
 aa award made in arbitratua proeecdingts to aseoiain the eompeaeatioB 
 to be paid for the taking of hia lands fay a railway, does not predude him 
 froat objecting to the payaHut of the company's costs of arbitration with 
 a^ich the arbitrators asnuwd to deal ahhoi^ without jurusdiction to 
 do so. A railway company e3q>r(^riating lands must give the mrtice con- 
 teaq»lated by the statute, i^.. offering to pay ""a certain sum or rent, as 
 coaipeaaatiaa,'* ia order to be eatitkd to costs ia the event of the arbt- 
 
366 EXPKOPKIATION. 
 
 trators' finding that the oflfer of the company was for sufficient compensa- 
 tion. 
 
 Re Grand Trunk Ry. Co. and Ash; Re Grand Trunk Ry. Co. and Ander- 
 son, 15 Can. Ry. Gas. 48, 9 D.L.R. 453. 
 
 [Aflirmed in 10 D.L.R. 824.] 
 
 Damages — Depreciation by emixent domain — Costs of landowner's sub- 
 sequent APPLICATION TO BOABD. 
 
 The cost of a landowner's future application to the Board for an order 
 relative to the working of minerals underlying land expropriated for a 
 railway right-of-way, cannot he included in an award of damages for the 
 land taken; the Board will have autliority to award costs when such 
 application is made. 
 
 Re Davies and James Bay Ry. Co., IG Can. Ry. Cas. 78, 28 O.L.R. 544, 
 13 D.L.R. 912. 
 
 Damages — Taking land — Separation from source of supply — Cost of 
 
 CROSSING railway. 
 
 On the expropriation of a railway right-of-way through a bYick-making 
 plant so as to separate the factory from its supply of brick-making mate- 
 rials, tlie costs of grading a necessary crossing over the railway may be 
 awarded as damages, notwithstanding that the construction of such cross- 
 ing depends on the subsequent consent of the Board. 
 
 Re Davies and James Bay Ry. Co., 16 Can. Ry. Cas. 78, 28 O.L.R. 544, 
 13 D.L.R. 912. 
 
 Land taken for railway purposes — When award exceeds amount of- 
 fered — Interest. 
 
 Whether an award for land expropriated for railway purposes is in ex- 
 cess of the sum offered therefor by a railway company so as to cast upon 
 it, under s. 199 of the Railway Act, 1906, the costs of an arbitration, is to 
 be determined not from the amount of the award itself, but by adding 
 thereto the interest or such other sum to which the landowner is entitled 
 under the Act or otherwise. 
 
 [Gauthier v. Can. Northern Ry. Co. (Alta), 16 Can. Ry. Cas. 354, 14 
 D.L.R. 490, followed] 
 
 Dagenais v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 353, 14 D.L.R. 494. 
 
 Condemnation proceedings — Land taken fob railway purposes — When 
 award exceeds amount offered — Interest. 
 
 In determining whether an award in a proceeding to expropriate land 
 for railway purposes exceeds the sum offered by the company so as to 
 cast upon it, xinder s. 199 of the Railway Act, 1906, the costs of the arbi- 
 tration, there must be added to the amount of the award the interest or 
 such other sum to which the landowner is entitled either under the Act 
 or otherwise. 
 
 Gauthier v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 354, 14 D.L.R. 
 490. 
 
 Arbitrators' fees — Taxation of. 
 
 The arbitrators' fees are not to be included in and made part of the 
 award in an expropriation for railway purposes; such fees are governed 
 by s. 199 of the Railway Act, 1906, and are to be taxed if the parties do 
 not agree upon the amount. 
 
 Green v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 139, 171, 22 D.L.R. 
 15, 8 Sask. L.R. 53. 
 
EXPROPRIATIOX. 3G7 
 
 KOT SUBJECT TO TAKIATIOX. 
 
 The costs of «b arlMiration in expropriation proceedings mder the Rail- 
 vaj Act are fixed and payable under the terms of that statute, and are 
 ■ot subject to Tariatkm in an action bv tbe landowner for trespass and 
 eompatsation in which tbe expropriation and avard are set up in defense. 
 [Gautbier v. Can. Xortbem Rt. Co., 14 DX-R. 490. 16 Can. Rt. Caa. 3.S4. 
 and Dagenais t. Can. Xortbem Rr. Co., 14 D.L.R. 4»4, 16 Can. Ry. Caf. 
 353, Taried.] 
 
 Gauthier t. Can. Xortbem Rt. Co.; Dagenais t. Can. Xorthera ^. Co., 
 19 Can. Ry. Cas. 144, 17 DXj£ 193. 
 
 KOT TO BE AI»ED TO All OCTXT OF AWASO. 
 
 The taxed costs of the arbitration are not to be added to the amtrant of 
 tlM avard in fixing the liability for costs of the arbitration under s. 199 
 off the Railway Act, 1906. in expropriation proceedings. 
 
 Dagenais T.'Can. Northern Ry. Co.. 19 Can. Rt. Cas. 144, 17 DXJL 193w 
 
 [Rerersed in 19 Can. Ry. Cak 144.] 
 
 Costs or akbttsatiox — -Jc^isdictiox to g«a5T. 
 
 Re Windatt and Georgian Bay t Seaboard Rr. Co., 24 DX.R. 877. 
 
 Right or jtuge to tax akbitkatobs' fees — Excessive fees. 
 
 The fees of arbitrators under the Railway Act, 1906. s. 199, are not 
 subject to taxation as between the arbitrators, and either tbe railway 
 eompany or the landowner, and the taxation contemplated by s. 199 of 
 the Act is that between the railway company and the landowner only. 
 Where a party in order to obtain tbe award from the arbitrators has been 
 oUiged to pay an excessive fee, such party may recover the excess beyond 
 what is a reasonable fee in an acti<m against the arbitrators for money 
 had and received. 
 
 Can. Northern Ry. Co. t. Green, 21 Can. Ry. Caa. 157, 9 Sask. LJL 371, 
 30 DXJL »46w 
 
 AWAKD. 
 
 The costs under s. 199 of the RaUway Art, 1906, of an arlntration, if 
 they are to be borne by the party whose land is expropriated, cannot ex- 
 ceed the amount of the award. [Calgary & Exlmonton Ry. Co. t. Sa^at- 
 cbewan Land k Homestead Co., 44 DX.R. 133. reversed.] 
 
 Calgary i. Ednnrnton Ry. Co. v. Saskatchewan Land & Honestead Co., 
 46 DX.R. 357, 24 Can. Ry. Cas. 346. 
 
 CoitPAXT ENmUED TO — AMOUST COSTS EXCXEDIZVe AWAKD. 
 
 Under s. 199 of the Railway Act. 1906, where the companT is entitled 
 to the costs of an arbitration, it is entitled to tbe full amount of such costs 
 as taxed although they exceed the amount of the award. If by statute a 
 party is entitled to costs it is implied that there is a right to recoTo- evoi 
 though not so stated in express terms. 
 
 Calgary k Edmonton Ry. Co. v. Saskatchewan Land k, Homestead Co. 
 24 Can. Ry. Cas. 343, 44 bx.R. 133. 
 
 [Reversed in 46 DiJL 357, 24 Can. Ry. Cas. 346.] 
 
 COMPKSSATIOX or ASBITSATOKS Exp«OPWATIOX ACT (SaSK.). 
 
 Can. Northern Ry. Co. v. Ouseley, et aL, 42 DXJl. 772. 
 
368 FALSE ARREST. 
 
 FACILITIES. 
 
 See Carriers of Goods; Carriers of Passengers; Carriage of Live Steele; 
 Cars; Stations; Train Service; Baggage. 
 
 FALSE ABBEST. 
 
 Annotations. 
 
 Malicious prosecution and false arrest. 3 Can. Ry. Cas. 373, 
 Liability of railway company for damages for false arrest. 6 Can. Ry. 
 Cas. 380. ' 
 
 Malicious prosecution — Particulars — Costs. 
 
 The plaintiff claimed damages from the defendant company for "causing 
 and procuring one M. to lay a series of criminal charges against" him. On 
 application of the defendants, the Referee ordered plaintiff to give further 
 and better particulars in writing of tlie manner in which the defendant 
 caused and procured M. to lay the charges. The plaintiff claimed that he 
 could not furnish such particulars: — Held, on appeal, that the order should 
 be varied as to require only that the plaintiff should furnish the best par- 
 ticulars he could give, with liberty to supplement his particulars after ex- 
 amining the defendants' officers and securing production, such additional 
 particulars to be furnished not later than ten days before the trial of the 
 action, [ilarshall v. Inter-oceanic (1885), 1 Times L.H. 394, and Williams 
 V. Ramsdale (1887), 36 W.R. 125, followed.] 
 
 Cousins V. Can. Northern Ry. Co., 18 Man. L.R. 320. 
 
 Probable cause — Liability of corporation fok acts of officers. 
 
 In an action for malicious prosecution and false imprisonment, it was 
 proved on the trial that the plaintiff and one L. were fellow passengers on 
 the defendants' road. L. complained to an officer of the company that a re- 
 volver had been stolen from his valise. The plaintiff had been seen by an 
 official of the defendant company at one of the stations to take something 
 from L.'s valise. L. made a charge of theft against the plaintiff, and he 
 was arrested by a constable appointed by the Government on the recom- 
 mendation of the defendants, and employed by them for duty on their road 
 and paid by them. The prosecution was carried on by L., but at the in- 
 stance and with the assistance of the officer making tlie arrest and other 
 constables in the employment of the defendants. After an investigation by 
 the P.M. of W. the plaintiff was discharged: — Held, that the evidence 
 shewed probable cause for the arrest and prosecution, and defendants were 
 not liable. That if there was want of probable cause the evidence failed to 
 connect the defendants with the prosecution and imprisonment so as to 
 make them responsible. 
 
 Dennison v. Can. Pac. Ry. Co., 3 Can. Ry. Cas. 308. 36 N.B.R. 250. 
 
 [Referred to in Thomas v. Can. Pac, Ry. Co., ]4 O.L.R. 55.] 
 
 Railway watchman — Railway constable — Scope of authority. 
 
 A watchman of the defendant company, who was also a constable ap- 
 pointed on their application under s. 241 of the Railway Act, 1903, arrested 
 the plaintiffs at a spot about half a mile from the railway line, and swore 
 out an information against them for breaking into a freight car with intent 
 to steal. The evidence failed, and they were discharged, and brought this 
 action for false arrest and malicious prosecution: — Held, that the defend- 
 ant company was not liable because the watchman in his capacity as such 
 had no authority express or implied, either to arrest or prosecute the plain- 
 
FARM CROSSIXGS. 3C9 
 
 ke was to be wyi ded •« 
 
 mat ^ M. ma%MmL «f the w—p— y, amd Ihiii v«s bo 
 
 taxToaei. aay eoHtzvl anr Us actiaa 
 
 T. Cka. Fml B3r. Col: BaA t. Cul PIul Rj-. Col, 6 On. Bj. Cks. 
 37±. 14 OlL^ m. 
 
 Pl£a or eriuT to vkswbk — Otbct. 
 
 Xo mctMB to rKoror d— g» for false amst vlll lie m fsToar of a 
 poitT who ^eads gnUj to a tkar^ ai tnsfmm ft r ie rreA a^aisst kia vWh 
 arrested. 
 
 IGgaanlt t. Gnad Tlrmk Ej. Cos 13 Cu. By. Cas. S2, 40 Qne^ & a 
 47JL 
 
 PtaBAHJt c&rsE. 
 
 Tht eatire abeeaee of icasoaalle aad yrolMMi. eaaae t— ■Pilule* Miliffr is 
 law vUch CBctitks the plaiatiff to l e cmei iiMayiii n aa aetiaa for false 
 airesti. 
 
 CkB. Fac Bt. Col t. Waller, 1 DX.B. 47, 19 CaiL Oim. Ca& 190. 
 
 LXABILirT L'ABKX QlEMIi: LAV. 
 
 The priMipks of tte FIkmIi law aa laid don ia Jkit. 1(63 C.C. (Qml) 
 and BOt flw friacipiea of tihe Jftie*** !■*' S"'**'* ™ * <** ^i' faist ancaL 
 [CopelaidL t. Lcdmr (1886). 1LL.K 33 KB. 3S9. dis^pio««d.] 
 
 Ca&. FacL Br. Co. t. WaBer, 1 DJ-B. 47, 19 Caa. Ck-. CksL 1901 
 
 FABBS. 
 See Tidxts aad Fares. 
 
 FABM CBOSSIXGS 
 
 Bi^t-<rf-vay aa xaihraT staooa gr: Bi^trcf-WaT. 
 
 CoaipeBfiatiaB or sohetitiitioa of iarm^ cr«jt^>i]mg br reaaoa ai expropria- 
 tiaai, aee Bspn^natiaB. 
 
 Liahifitj of Cnmv for coa^cnsatiaa of tam ciowwi^g, see GorcraMeait 
 BaihnyB. 
 
 1^ |^*]B to aad repairs of teraa eroesii^s and approa^es^ 3 Caa. Rr. Cas. 
 
 Tana Cro^i^s. 1 Can. Br. Cft& 33, 2 Caa. Br. Cas. 247, 5 Caa. Bj. 
 Ca«. 317. 
 
 LiAHUTT OF KAH-TAT covrAXT TO raonsc — AcaxxiMEST wtth accvt of 
 
 OUtTAXT. 
 
 The C.S.B. Col kariBg: taken for the puip o aea of tkeir raBaraT tke lands 
 irf C, aade a wkal agreement witk C tkro«^ tibnr agent T, for tke por- 
 ckaae of sack lan^ for mkiek tker agreed to par 90(2. and tker also agreed 
 to ■nke fii« far^ erosa^s aerooB tke railvay on C.'s famk tkne lerel 
 craaaings and two under croeeiags: tkat one of snck under eros^in^ skoiild 
 be of Milkien t keigkt and nidtk to adaait of tke pftwage tkroi^ it. firana 
 one pavt of tke farm to tke otker, of loaid« of grain and kaj. reaping and 
 Moving Backines: and tkat saek ntw^ings skould be kept and nuiatained 
 bjr flw coBipanT for afl IxBie for tke use erf C k» kors and a.«eigB& C. 
 viskcd tke agrreaent to be reduced to vriti^, and pnrticiilarly re«|oe«ted 
 Can. By. L. Dig.— 24. 
 
370 FARM CROSSINGS. 
 
 the agent to reduce to writing and sign that part of it relative to tlie farm 
 crossings, but he was assured that the law would compel tlie company to 
 build and maintain such crossings without an agreement in writing. C. 
 having received advice to the same effect from a lawyer whom lie consulted 
 in the matter, the land was sold to the company without a written agree- 
 ment and the purchase money paid. The farm croasinjis a<ireod upon were 
 furnished and maintained for a number of years until the company de- 
 termined to fill up the portion of their road on which were tlie imdcr 
 crossings used by C, who thereupon brought a suit against tlie company for 
 damages for the injury svistained by such proceeding and for an injunc- 
 tion: — Held, reversing the judgment of the Court below, Ritchie, C.J., dis- 
 senting, tliat the evidence shewed that the plaintiff relied upon tlie law to 
 secure for him the crossings to which he considered himself entitled, and not 
 upon any contract with the company, and he could not. therefore, con.pel 
 the company to provide an under crossing through the solid embankment 
 formed by the filling up of the road, the cost of which would be altogether 
 disproportionate to liis own estimate of its value and of the value of the 
 farm: — Held, also, that the company were bound to provide such farm 
 crossings as might be necessarj' for the beneficial enjoyment by C. of his 
 farm, the nature, location, and number of said crossings to be determined 
 on a reference to the Master of the Court below. The substitution of the 
 word "at," in s. 13 of c. 66 of the Consolidated Statutes of Canada, for 
 the word "and" in s. 13 of c. 51 of 14 and 15 Vict, is the mere correction 
 of an error and was made to render more apparent the meaning of the lat- 
 ter section, the construction of which it does not alter nor affect. [Brown 
 V. Toronto & Nipissing Ry. Co., 26 U.C.C.P. 206, overruled. 11 A.K. (Ont.) 
 287, varying 4 O.R. 28, reversed.] 
 
 Canada Southern Ry. Co. v. C^louse. 13 Can. S.C.R. 139. 
 
 [Applied in Can. Pac. Ry. Co. v. Guthrie, 31 Can. S.C.R. 164; Grand 
 Trunk Ry. Co. v. Therrien, 30 Can. S.C.R. 489; discussed in Ontario Lands 
 & Oil Co. v. Canada Southern Ry. Co., 1 O.L.R. 215; Vezina v. The Queen, 
 17 Can. S.C.R. 12; referred to in Guthrie v. Can. Pac. Ry. Co., 27 A.R. 
 (Ont.) 64; applied in Perrault v. Grand Trunk Co., 14 Que. K.B. 256; dis- 
 tinguished in Wells v. Northern Ry. Co., 14 O.R. 594 ; referred to in Erwin 
 V. Canada Southern Ry. Co., 11 A.R. (Ont.) 300.] 
 
 Under crossings — Agkeement for cattle pass — Tresti.k bridge, right 
 to substitute embankment for. 
 Tliis case differs from the preceding of Clouse v. Canada Southern Ry 
 Co. (13 Can. S.C.R. 139), in this, that an agreement was reduced to writing 
 to the eflfect that S., through whom the plaintiif claimed, should "have lib- 
 erty to remove for his own use all buildings on the said right-of-way, and 
 that in the event of there being constructed on the same lot a trestle bridge 
 of sufficient height to allow of the passage of cattle, the company will so 
 construct their fence to each side thereof as not to impede the passage 
 thereunder": — Held, reversing the judgment of the Court of Appeal for 
 Ontario (4 A.R. (Ont.) 306), Ritchie, C.J., dissenting:— That the agree- 
 ment provided for a passage for cattle only, and tliat conditional upon 
 there being a trestle bridge of sufficient lieight to permit of such a passage, 
 and did not make the right of the company to discontinue the trestle 
 bridge and erect an embankment subject to the construction of a cattle 
 pass in the embankment or a revaluation of the land. The plaintift"s 
 statement of claim should be dismissed with costs, but such dismissal 
 would not operate against any claim which he might have under the law 
 
FARM CROSSmoa 371 
 
 q wwJ B gf ms an^^ te ■ceeamy fur tke icaaoaaUe eajo?- 
 ■■M of tke amnd ludB. [U A^ fOirt.) 30C, mvncd.] 
 
 Cunda SiMtkra Rr. Col t. &wn, (1S8C). 13 Caa. S.C^ ICSL 
 [Applitd n Caa. PiiCL Rr. Col t. Gatkrie, 31 Caa. aC.£. 161.] 
 
 Laxd abjocosc rras oxb sue of kail vat. 
 
 .Aa owner Thosr laads adjma a railwar sabjert to the Bailaar Act of 
 Caaada. npoa amt aade oalr. i$ not «atitled to kaxv a ctossib^ over soeli 
 railaaj mder tke fKvnaama d tint Art, aad tihe special ctatates 
 relatiBp to tke G.TJL Col do met iapoee aar «T«ater liafatlitT ia le^ Wic t to 
 [|iiiiii«iji tkaa tke Raihraj Act. [Uidlaad Ry. Cql t. GribUe. [189S] 2 Ou 
 881, a^ Ouada Bo alkwa Rt. Co. t. Cloeiel 13 Caa. SLCJL 139, icfenvd 
 to.] Tke Pror ia cial Lepdatares kare ao jarisdirtioa to aake ngalatiaBs 
 ia respect to eroangs or tke tU a ctaia l caaditkm of tke roadked of laO- 
 vars subject to tke preriri—i of tke RaiKraT Art of Guada. [Caa. Plac. 
 Rj' Col t. Xotre-Daaw de ItMiiiaaii. [1899]' A.C. 367. fioHoacd.] 
 'Craad Tmak Rv. Col t. Tkerrirau 30 Caa. :s.C.R. 483. 
 [Ap^icd ia Graad Traak Rr. Co. t. Pnranlt. 3C Caa. S.C.R. C77; ff^ 
 kmcd ia Perranlt t. Graad Trmsk Rt. Col, 14 Que. K.B. 249: HiIIko«p et 
 aL T. Caa. Far. Rj. Col, 17 Caa. Rj! Ca& 427. See O'Briea Bra&. t. Caa. 
 P»e. Rt. Co., 21 Caa. Rr. Cas. 197.] 
 
 OjOSIx« rr caossucc 
 
 The fana cro^eia^ vki^ lailwaT coaipaaies are obliged to provide for 
 tke c— reaka c e of tke oaau » «i tke laads tke raihraj raa£ tkraf^ eoBsti- 
 tnte a legal iciiiladt aad sock aruers are. aot obl^ied to ftihllA a title 
 tkeretOL Wkea a cu a ip aaT ha:? once proTided sark q oaaiigK aa it eoasid- 
 ct* aMc^arj it eaaaot those op aar of tkeat am tke groaad tkat tkoae left 
 It. Tke Board kas ao jvrisdictiaa to declare aa esiatiBg craeaag 
 
 aad aDtk<Mize it to be dosed i^ 
 T. Teaummata Rj. Col, 41 QacL &C 337. 
 
 PmaaaBTwas — Hmwr-ar-wxT. 
 
 Wkea a Uae of lailvar scrers a farm, aad ao crosaag is j^orided hgr the 
 eaatpaar. a right-irf-vaT acrve^ tke liae nay be acqjaircd lij tke ovacr of 
 tke £ar^ br picmipiif. A nr^ cn»dBg. fnniied bjr a railway tam- 
 paay. aiay be ascd by aay prrsoa who. after tke srreraace. btco^ta tke 
 oaaer of portioas of tke fam oa both $ides of tke ttae of railvay. aad kas 
 a r^M of access to the cioesi^. A ri^t-<rf-aay any be acqaired. al- 
 t k oa gk tke dowaaat teae^wnt i« act «oat%aoiK^ to the aerrioit t cac a xa t- 
 jadgBMat of Boyd. C, affimnL 
 
 Gatkrie r. Caa. Par. Ry. Col. 1 taa. Ry. Ca^ 1. 21 AJL (Oat.» M. 
 
 [RevRvnl ia 1 Caa. Ry. Ca^. 9. 31 Caa. S.C.R. I^: distii^w^hcd in 
 Gnad Tmak Ry. Co. t. Vallicar. 3 Caa. Ry. Ca&. 399, 7 OXJL 364.] 
 
 EASzaui^T — Rkht-of-wat — Csca — PBCFcannox. 
 
 A raihaay liae passed over tke aortkna kalf of h>ts 32. 33, 34 resperthre- 
 ly, kari^ a trestle bri^e over a lariae on 34. near tke booadaiy of 33. 
 G- tke owaer trf lot 33 (except tke part ovaed by tke railway eoaipaayli 
 for a anariicr of ypar¥ a«ed tke pa$t>a^ oadn- tke trestle bridge to reack a 
 laae oa tke aoatk kalf of lot 34 orcr vkick ke could pass to a village on 
 tke amt nde, kis pnAimmm ia title, who uaacd all these lots. hariB? 
 ased tke inaMr roate for tke porpase. Tke coaipaay kari^ filled ap th«- 
 rariae, G. ^piied for aa iajoactioa to have it reopeacd: — Hrid, rerersiK; 
 tke jaiiparwf of tke Coot of Appeal (27 A.R. (Oat.) 64. 1 Caa. Ry. Ca^l 
 
372 FARM CROSSINGS. 
 
 1 ) , that such user could never ripen into a title by prescription of the right- 
 of-way nor entitle G. to a farm crossing on lot 34. 
 
 Can. Pac. Ey. Co. v. Guthrie, 1 Can. Ry. Cas. 9, 31 Can. S.C.K. 155. 
 
 [Distinguished in Grand Trunk Ry. Co. v. Valliear, 2 Can. Ry. Cas. 245, 
 1 O.W.R. 695; followed in Oatman v. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 
 521, 2 O.W.N. 21, 16 O.W.R. 905; distinguished in Leslie v. Fere Mar- 
 quette Ry. Co., 13 Can. Ry. Cas. 219, 24 O.L.R. 206. J 
 
 Duty to provide — Retroactivity of statute. 
 
 Before the Railway Act of 1888 there was no statutable obligation upon 
 a railway company to provide and maintain a farm crossing where the rail- 
 way severed a farm, and s. 191 of that Act, providing that every company 
 shall make crossings for persons across whose lands the railway is car- 
 ried, is not retrospective. [Vezina v. The Queen (1889), 17 Can. S.C.R. 1, 
 and Guay v. Tlie Queen (1889), ib. 30, in effect overrule Canada Southern 
 Ry. Co. V. Clouse (1886), 13 Can. S.C.R. 139, and approve Brown v. 
 Toronto & Nipissing Ry. Co. (1876), 26 U.C.C.P. 206.] 
 
 Ontario Lands & Oil Co. v. Canada Southern Ry. Co. et al., 1 Can. Ry. 
 Cas. 17, 1 O.L.R. 215. 
 
 [Followed in Carew y. Grand Trunk Ry. Co., 5 O.L.R. 653, 2 Can. Ry. 
 Cas. 241; relied on in Perrault v. Grand Trunk Ry. Co., 14 Que. K.B. 249; 
 followed in Wright v. Michigan Central Ry. Co., 6 Can. Ry. Cas. 133.] 
 
 "Farm purposes" — Injury to stranger — Duty. 
 
 The defendants having, in compliance with the requirements of s. 191 of 
 the Railway Act, 1888, made, and assumed the duty of keeping in repair 
 a crossing over their railway where it crossed a certain farm, nevertheless 
 allowed it to get into an unsafe and defective condition whereby a horse 
 of the plaintiff was injured. The plaintiff was at the time using the horse, 
 with the permission of the owner of the farm, in hauling gravel from a 
 part of the farm to the highway, for which purpose it was necessary to 
 cross the railway: — Held, without deciding whether the right of user of 
 such a crossing is limited to a user for farm purposes, but assuming it to 
 be so limited, that the hauling of gravel was, under the circumstances, a 
 farm purpose, and that the defendants owed a duty, even apart from s. 
 289, towards one using the crossing by invitation of the owner. 
 
 Plester v. Grand Trunk Ry. Co.. 1 Can. Ry. Cas. 27, 32 O.R. 55. 
 
 [Discussed in Tor. Ham. & Buffalo Ry. Co. v. Simpson Brick Co., 8 Can. 
 Ry. Cas. 464, 17 O.L.R. 632; referred to in Clayton v. Can. North Ry. Co., 
 7 Can. Ry. Cas. 355, 17 Man. L.R. 432.] 
 
 Pecuniary compensation in lieu of crossing. 
 
 When the value of a piece of land enclosed by a line of railway is so small 
 as to be disproportionate to the cost of a farm crossing; and is of no 
 utility to the farm from which it is so separated, the Court has the power 
 and the discretion to grant to the proprietor a pecuniary compensation in 
 lieu of a crossing. 
 
 Martin v. Maine Central Ry. Co., 1 Can. Ry. Cas. 31, 19 Que. S.C. 561 
 
 Nonrepair of approach within farm — Injury to tenant of farm- 
 Duty of rail-way company as to repair. 
 A railway company is not obliged or authorized to go upon the adjoin- 
 ing lands of the owner and repair the approaches to a farm crossing over 
 the railway. Where an accident to the plaintiff was caused by such ap- 
 proach being out of repair, held that the defendants were not liable, and a 
 
FAKM CROSSINGS- 373 
 
 dt vas granted. [PetertMMw^ t. Graad Tnmk Bj. Ok, 32 O.R. 154, 
 afi»ed, 1 OXJL 144, followed.] 
 
 Fklner t. Midi%an CoBtral By. Co, 2 Gu. By. Cms. 239, 2 O.W.B. 477, 
 • OJJL97. 
 
 [AAnMd in 7 OJLlR. 87, 3 Can. Br. Ca& 1»4.] 
 
 DCTT TO PSOVmE — CO^TTETAXCE OT LASD Ta 
 
 Tbe plaintiff's fatlier in 1SS2 eonreyed part of his farm to tlie Midland 
 By. Col, who coBstmeted their railway «o as to sever the farm, but did not 
 agree to make a farm eroesing. In 1900 the father eonreyed to the plain- 
 tiff all the &rm not preriooshr eonveyed to the raOway company: — ^Held. 
 that tte plaintiff could not compel the defendants, who had acquired the 
 "Ifidland By. in 1893. to provide a farm at rn t am g, either by virtue of the 
 SUMunioi Bailway Act oar Ontario Vgidatioa applicable to the rail- 
 way b^ore 1893. Beview of the statutes affecting the Midland By. CV 
 , [Ontario Lands and Oil Co. v. Canada Southern By. Co. (1901j, 1 OX^B. 
 215, foUowed.] 
 
 Carew r. Grand Trunk By. Go., 2 Can. By. Cas. 241, 3 OXJS. 653. 
 
 P«IVAIB WAT ACSOSS KAILWAT LA 51*5 EaSEMEXT BT rKESC*anO\ 
 
 Uses sot ix compatible wxth BEijnKEMESTS of kailwat. 
 
 Baflway lands may be dedicated for public or other n?er so long as that 
 naet is not inccmpatible with the present and actual requirements of the 
 railway. Where an adjoining landowner had used a well-defined path 
 arroes railway station grounds continuously for over 30 years, his user was 
 kdd to be eoafirmed by lapse of time. [Can. Pac. By. Col v. Guthrie. 1 Can. 
 Ify. Gas. 9, distinguished.] 
 
 GrsBd Trunk 'By. Co. v. Talliear, 2 Can. By. Cas. 245, 1 O.W.B. C95. 
 
 [Bevcraed in 7 Ol-B. 364, 3 O.WJi. 98.] 
 
 Bights to — AppnoACHES — Dctt to ketmu. 
 
 Whoe a railway severs a farm and the cwipany have constructed a 
 faia crossing, no duty is cast upon them, in the absence of expnss agree- 
 ■MBt, to ke^ in repair the approaches thereto within the farm. SfMe, in 
 the case of the approaches to an o ver h ead bridge on a public hi^way, the 
 presomptifm would be that the apfHoach is part of the bridge and to be 
 kept in r^air br the railway campanr. [6 OXJL 90, 2 Can. Br. Cks. 239, 
 afirmed.] 
 
 Palmer ▼. Michigan Central By. Co.. 3 Can. By. Cas. IM, 7 OXuB. 87. 
 
 Tm^ TO — JuKiSDicnox or MAfiisrsATEfs cotrcT. 
 
 In an action ior a farm crossing, it is sufficient if the plaintiff he ahenn 
 to be the actual bona fide owner, and in pot$sesi§iaa as such of the land 
 erosBed tnr the railway, although his title is not re^nstered; and the fact 
 that the land was purcha'^ed and cleared by him. long subsequent to the 
 Iwrilding of the railway, is no bar to his right of acti<». The district 
 Magistrate's Court has no jurisdiction to order the construdimi of a farm 
 crossing even when the cost thereof is alleged to be less if the crossing 
 would create a servitude, and would he interfering with future rights. 
 
 Boldne v. Can. P*e. By. Col, 3 Can. By. Cas. 197, 23 Qut. SlC. 238. 
 
 Cattle aso fasx passage — ^TkESTLE budge. 
 
 A railway company, desiring to fill up a trestle bridge imder which there 
 is a farm and cattle passage, in lieu thereof offered a farm crossing at rail 
 level: — Held, that the application must be refused because the agreement 
 is valid and binding between the parties as to the crossing, and the appli- 
 
374 FAKM CROSSINGS. 
 
 cation is not in the public interest, but solely to save expense to the rail- 
 way company. 
 
 Anderson v. Toronto, Hamilton & Buffalo Ry. Co. (Farm Crossing 
 Case), 3 Can. Ry. Cas. 444. 
 
 Means of access fob cattle — Statutory right of laxdowneb — Right 
 of ownebship. 
 
 Tlie owner of a farm has no statutory right under s. IflS of the Railway 
 Act, 15)03. to have a farm crossing constructed to sufficiently provide a 
 satisfactory means of access for his cattle to and from a spring. [V6zina 
 V. The Queen (1889), 17 Can. S.C.R. 1. applied.] 
 
 Re Armstrong and James Bay Ry. Co., 5 Can. Ry. Cas. 306, 12 O.L.R. 
 137. 
 
 JUBISDICTION OF SUPEBIOB COUBTS. 
 
 At the final hearing of a case, the Court has power to reverse an inter- 
 locutory judgment rejecting a declinatory plea, and to dismiss the action 
 for want of jurisdiction. The Superior Court of Quebec has jurisdiction in 
 actions to compel railway companies within the legislative .authority of 
 tlio Parliament of Canada, to make railway crossings, to pay damages for 
 their neglect to do so, etc., the Railway Act, 1903, having nowhere taken 
 away such jurisdiction by express words, or necessary implication. 
 
 Perrault v. Grand Trunk Ry. Co., 14 Que. K.B. 245. 
 
 [Reversed in 36 Can. S.C.R. 671, 5 Can. Ry. Cas. 293.] 
 
 Right to — Enfobcemkxt of — Statutoby contbact. 
 
 The right claimed by the plaintiff's action, instituted in 1904, to have a 
 farm crossing established and maintained by the railway^ company can- 
 not be enforced under the provisions of the Act, 16 Vict. c. 37 (Can.) in- 
 corporating the G.T.R. Co. Judgment appealed from 14 Que. K.B. 245, re- 
 versed, Idington J., dissenting in regard to damages and costs. 
 
 Grand Trunk Ry. Co. v. Perrault, 5 Can. Ry. Cas. 293, 36 Can, S.C.R. 671. 
 
 Cbossing undeb bah.way — High emraxkment. 
 
 The Board has jurisdiction under s. 198 of the Railway Act, 1903, to re- 
 quire a railwaj' company to make a farm crossing under its railway. 
 Where the railway was carried across a farm upon a high embankment, 
 and any crossing over it would be inconvenient, the owner was held entitled 
 to an undercrossing, in addition to payment of the purchase money for the 
 land taken and damages. [Reist v. G.T.R. Co., 6 U.C.C.P. 421, approved; 
 Armstrong v. James Bay Ry. Co., 5 Can. Ry. Cas. 313, 12 O.L.R. 137, not 
 followed.] 
 
 Re Cockerline and Guelph & Goderich Ry. Co., 5 Can. Ry. Cas. 313. 
 
 [See Lalande v. Can. Northern Ontario Ry. Co., 21 Can. Ry. Cas. 194; 
 followed in Atkinson v. Vancouver, Victoria & Eastern Ry. Co., 24 Can. Ry. 
 Cas. 378.] 
 
 Sale of land to railway company — Resebvation of bight-of-way — 
 Span bridge. 
 On the sale and conveyance of land to a railway company, on which there 
 existed a bridge or viaduct spanning a valley, the vendors reserved "the 
 right-of-way under the said bridge as now enjoyed by the vendors." At 
 that time the only use made of the right-of-way was by persons on foot, or 
 with horses, carts, etc.: — Held, that "as now enjoyed" meant "as now 
 use," i.e., for farm purposes, and did not justify the laying and using a 
 railway under the bridge. [Dand v. Kingscote, 6 M. & W. 174, and United 
 
FARM CROSSIXGS. 375 
 
 I«iid On T. Gnat Eaftern Ry. Co^ UEL 17 Eq. 13& 10 Ch. 586, dis- 
 tneiiubed.] 
 
 Cka. FteL Bj. Co. t. Gxud Tnmk By. Col, 3 Guu Ry. Ca& 400, 12 O.L.R. 
 
 [Relied on ra Fiaser t. Can. P^cl Ry. Co., 17 Man. L..R. 672, 8 WX.R. 
 380.] 
 
 Statctobt kicht to — MiiyrEXAXCE or. 
 
 Wright luiTutg parAasmd lands on bodi ades <rf Ae CS. Ry. Go. after 
 tibe line n£ etmetiuctcd, for vhkh no farm crossing had been famished, 
 ai^lied to the Board for a farm crossing^ otct the raihrar. Without this 
 CTDSsing an ineonienieat route was necessary to reach the lands at the 
 owner across the raihray: — Beld, by the Cliief Connub^oner, fdDhnring 
 Ontmrio Lands 4 Oil Co. t. Ouuda Sovthem Ry. Co.. 1 Can. Ry. Ca& 17. 
 that the ^ptieant had no absolute legal right to the crossing; that it could 
 only be granted fay the Board in the exercise of the disaetioQ given by %. 
 2a3 of the Railway Act 1906 (snb& 2, s. 198 of the Railway Act, 19039 : 
 that the applicant should, therefore, bear the cost of its constmetion and 
 maintenance and the eoaqiany should receire reasonaUe compensation, but: 
 — ^Held, by the majority of the Board that the railway company must con- 
 struct and maintain at its own expense an adeqpoate and satLsfaetoij farm 
 cTOtssing OTcr the railway on Wrigbf s farm. 
 
 Wright v. Michigan Coitial Ry. Col, 6 Can. Ry. Caa. 133. 
 
 TkaCFOKABT BO.UI — EXTBASCE GATES — ^ACSEEVEXT TO PBOTIDEL 
 
 The plaintiffs cooT'trucled their railway throogh a qaadrilatera] parcel 
 of land owned by one S. the predecessor in title of the defoidant. By an 
 agreement with S. the plaintiffs aeqnired (for a tonporary roadi a strip 
 of land crossing their tracks leading from the Hamilton road to the John- 
 son Settlement road, which was used as a diversion under s. 1^ of the 
 Railway Jkct. 1SS8, while a bridge was being constructed to carry the rail- 
 way over the Hamilton road and afterwards while repairs were beli^ made. 
 In the deed from S. the plaintiffs agreed to erect in lieu of farm crossings, 
 four gates for entrances to the temporary road from the four parcels of 
 land into whidi the wiginal parcel had been subdivided. The plaintiffs 
 closed that part of the t^porary road leading from their right-of-way to 
 the Johnson Settl^nent road and brought an action for an injunction re- 
 straining the defendant from trespaatsing upon it: — HehL that the tcsi- 
 ptwary road had not been dedicated as a highway, but that the defendant 
 waa entitled to a right-of-way over it to reach the .Johnsmi Settlement road. 
 
 Toronto, Hamilton t Buffalo Ry. Co. v. Hanley. 6 Can. Ry. CaSw 321, 6 
 O.W.R. 921. 
 
 ^hke XS9 usuKXPASs — ^Agsezxestt — Maixtexaxcs. 
 
 A railway constructed by the defendants* predecessors in title crossed the 
 ^aintiffs' reflective farms. In 18»i, when the railway was being laid. 
 bridges and an imderpass were eaastmetcd by the railway company to 
 enable the owners of the farms to pass from one side of the railway to the 
 other, and were for more than .50 years maintained and used in connec- 
 tion witli tke ^aintiffs' farms, with the knowledge of the defendants and 
 their pi 1 dM 1 1— i in title, without any objection on their part: — ^Held, an 
 the eridenee^ that tte bridges and underpass were provided fw and en- 
 joyed by the plaintilEs* predeoe^ors in title as part of the ■fciinimnln <nr 
 arrugcnMnts imder which the defendants* pr>edecess(»s in title acquired 
 their ri^t-of-way throi^ the lands in question, and tiie def^tdaata were 
 iMNnd by thf There could be no question of ultra virea; the a^hjeet-mat- 
 
376 FARM CROSSINGS. 
 
 ter of the agreements was within the powers and authority of the railway 
 company in dealing for the acquisition of a right-of-waj'. The defendants 
 were in the wrong in assuming to alter or reconstruct the bridges and un- 
 derpass without the sanction of the Board; and it was for them, and not 
 for the plaintiffs, to apply to the Board. Judgments of Boyd, C, and 
 ileredith, C.J.C.P., 7 O.W.R. 798, affirmed. 
 
 McKenzie v. Grand Trunk Ry. Co.; Dickie v. Grand Triuik Ry. Co., 7 
 Can. Ry. Cas. 47, 14 O.L.R. 671. 
 
 [Followed in Toronto, H. & B. Ry. Co. v. Simpson Brick Co., 17 O.L.R. 
 632; Leslie v. Pere Marquette Ry. Co., 13 Can. Ry. Cas. 219, 24 O.L.R. 206. J 
 
 Landlocked lands — Wat of access to bricktaed — ^Laxd ox one side of 
 THE railway — Cost of construction. 
 
 H. N. (a brick manufacturer) applied to the Board under ss. 252, 253 of 
 the Railway Act, 1906, for an order directing the T. H. & B. Ry. Co. to pro- 
 vide and construct a suitable crossing where the railway abuts on the lands 
 of the applicant. By reason of the construction of the T. H. & B. Ry., N. 
 was deprived of access to a traveled road except by passing over the lands 
 of his sons and crossing a number of railway tracks. The object of the ap- 
 plication was to obtain access to the said road by a crossing over the rail- 
 way for the purpose of more conveniently carrying on his manufacturing 
 business, but not in any way for farm purposes or as a farm crossing: — 
 Held, that the application for a crossing of the nature of a farm crossing 
 should be granted by the Board in the exercise of its discretion, upon the 
 condition that all expenses of construction and maintenance of the cross- 
 ing must be borne by the applicant. 
 
 New V. Toronto, Hamilton & Buffalo Ry. Co., 8 Can. Ry. Cas. 50. 
 
 [Followed in Richards, etc. v. Grand Trunk Ry. Co., 14 Can. Ry. Gas. 
 329.] 
 
 Contract — Undercrossing — Suitable farm crossing. 
 
 An application was made to the Board under ss. 252, 253 of the Railway 
 Act, 1906, for an order directing the C.P.R. Co. to provide and construct 
 a suitable farm crossing. The applicant complained that the present un- 
 dercrossing was too small to carry on properly his farming operations, and 
 applied to have it enlarged: — Held, that the application must be refused, 
 the railway company having carried out their contract in regard to the 
 undercrossing. 
 
 Stiles v. Can. Pac. Ry. Co. (Case No. 1141), 8 Can. Ry. Cas. 190. 
 
 Manufacturing purposes — ^Use of crossing for business of brick- 
 yards — Agreement to provide. 
 S. 191 of the Railway Act, 1888, is not restricted in its application to 
 crossings for farm purposes merely, notwithstanding the heading and side- 
 note "Farm Crossings," which may be taken as descriptive of the charac- 
 ter of the construction of the crossing, and not restrictive of the pur- 
 poses for which it may be used or of the uses to which the lands crossed 
 by the railway may be put, and notwithstanding the words of the section 
 itself, "convenient and proper for the crossing of the railway by farm- 
 ers' implements, carts and other vehicles," which may be similarly inter- 
 preted. The defendants, as lessees of S., occupied and operated a brick- 
 yard, in a city, on the north side of the plaintiffs' railway, and in connec- 
 tion with their business used a private lane over the property of M., lying 
 to the south of the railway. This lane led to a street, and was the only 
 means of access from the brickyard to a public highway. To reach this 
 lane, the defendants used a crossing over the railway and their right to do 
 
FARM CROSSINGS. 37T 
 
 so wms called in qaesti<Hi by this action. When the railTaj was built, the 
 land leased by the defendants and that owned by M. were the property of 
 the Messrs. B.. who in December, 1894, conveyed to the plaintiffs a ri^t-of- 
 way through their property, and obtained simultaneously with their con- 
 reyance an agreement by which the plaintiffs covenanted to provide and 
 maintain "a farm crossing^'' at the point now in question, which was duly 
 constructed. The Messrs. B. conveyed both properties to M. in 1901, and 
 in 1903 F. acquired from M. the premises afterwards leased by the de- 
 fendants. In his ccmveyance M. granted to F. a right-of-way over the lane 
 opposite the crossing. S. acquired title from F. and subsequently leased to 
 the defendants^ This land had been in use as a brickyard since 1S68, 
 but lay idle from that year until 1903, when S. established a brick-making 
 industry upon it. The plaintiffs were aware that S. bought with the in- 
 taition of using the crossing and the lane to the south as the means of con- 
 veying from hi$ yard, bri^ for local trade, and with this knowledge they 
 reconstructed and kept in repair the crossing in question whidi was used 
 by S. and the defendants for that purpose, without objection by the plain- 
 tiffs, until 1906. when they complained of its use, and b^an this action in 
 July, 1907: — ^Held, that a railway company acquiring a right-of-way may 
 take the land required subject to reservations in favour of the grantor of 
 such rights of crossing or other easements as may be agreed upon, and are 
 not inconsistent with the use of the right-of-way for railway purposes; an 
 agreement for a crossing contemporaneous with the deed of the right-of- 
 way is equivalent to a reservation in the deed itself: and, the vendors 
 having made such an agreement, the character and extent of the right of 
 crossing must be determined by the terms of that agreement. Subject to the 
 question of severance, the covenant of the plaintiffs with the 'vendors, 
 their heirs, e:xecutors and administrators," enured to the benefit of the 
 assigns or grantees of the vendors, including lessees of such grantees: and 
 the use which the defendants were making of this cn^sing was within the 
 rights conferred upon the Messrs. B. by the agreement of the plaintiffs, not 
 being, upon the evidence, inconsistent with the safe operation of the rail- 
 way, nor unduly increasing the burden of the easement created by the 
 agreement: — Held, also, that, although when the right of crossing was 
 created the lands on either side of the railway belonged to the same own- 
 ers, and were now held by different owners, there was no such severance as 
 would involve the cesser of the right of crossing. [Midland Ry. Co. t. 
 Gribble, [1895] 2 Ch. 827, distinguished.] 
 
 Torcmto, Hamilton & Buffalo By. Co. v. Simpson Brick Co., 8 Can. By. 
 Cfcs. 464, 17 OX.R. 63i 
 
 [Followed in Hillhouse, et al. v. Can. Pac. By. Co., 17 Can. Ry. Qia. 427.] 
 
 Cattle pass — Sti^sTrrmsG dkaixage pipe. 
 
 In an action against the defendants for damages for filling up a culvert 
 used as a cattie pass under the defendants' embankment and substituting 
 a drainage pipe, the plaintiff claimed the right to have the culvert main- 
 tained at its full size under an agreement made at the time of eonstruc- 
 ti<m, providing that the flow of the waters of a certain drain upon the 
 lands to be crossed by the railway should not be interfered with, that he 
 had acquired an easement by prescription, and that under s. 257 of the 
 Railway Act, 1906, the defendants could not fill in the culvert without 
 leave of the Board: — Held, (1) that the defendants had the right to sub- 
 stitute any other means of drainage to enable the water to flow tiirongh 
 the drain mentioned in the agreement. (2) That no easement by prescrip- 
 
378 FARM CROSSINGS. 
 
 tion had been acquired. [Can. Pac. Ey. Co. v. Guthrie, 31 Can. S.C.R. 155, 1 
 Can. Ry. Cas. 9, followed.] (3) That s. 257 of the Act did not apply. 
 Oatnian v. Grand Trunk Ey. Co., 12 Can. Ey. Cas. 521, 2 O.W.N. 21. 
 
 Cost of making — Proper enjotment of land. 
 
 Application under ss. 252, 253 of the Railway Act, 1906, directing 
 the respondent to construct a farm crossing for the proper enjoymont by 
 the applicant of liis land on the north side of tlie railway. The applicant's 
 farm of 72 acres was a subdivision of a larger farm provided with a cross- 
 ing, but was worked as a separate farm only, upon its being acquired by 
 the applicant, thus requiring a crossing to join the two portions of the 
 farm. The practice of the Board has not been uniform, but not infre- 
 quently the entire cost of making a farm crossing has been imposed upon 
 the railway company, especially in the Province of Quebec and Eastern 
 Ontario, the facts and circumstances, especially the size of the farms, being 
 considered in each case: — Held, that the respondent should be directed by 
 agreement to construct at its own expense a farm crossing for the appli- 
 cant upon the dividing line between him and his neighbour. 
 
 Eiddell v. Grand Trunk Ry. Co., 13 Can. Ry. Cas. 216. 
 
 Severance of farm — Undergrade crossing — Agreement — Maintenance 
 
 OF. 
 
 In 1885, the predecessor in title of the plaintiffs conveyed to a railway 
 company, the predecessors of the defendants, a certain strip of land, running 
 across a farm, for the right-of-way of the railway. The conveyance was in 
 fee, the consideration was $40. and there was no reference in the deed to a 
 crossing. Tlie defendants' predecessors, however, constructed an undergrade 
 crossing, which was necessary for the working of the farm, and this was 
 maintained and kept in repair by the defendants or their predecessors, and 
 was used by the plaintiffs or their predecessors until 1906, when tlie de- 
 fendants closed it up:— Held, having regard to the surrounding circum- 
 stances and the evidence, that it was a part of the agreement and arrange- 
 ment, made at the time of the purchase of the right-of-way, that the 
 ])laintiffs' predecessor sliould have an underpass for the passing of waggons 
 and cattle from one part of the farm to the other — the granting of the pass 
 was a part of the consideration for the right-of-way; and the plaintifTs were 
 entitled to have it maintained. [McKenzie v. Grand Trunk Ry. Co., 
 Dickie v. Grand Trunk Ry. Co., 7 Can. Ry. Cas. 47, 14 O.L.R. 671, fol- 
 lowed. Oatman v. Grand Trunk Ry. Co.. 2 O.W.N. 21, distinguished] : — 
 Held, also, upon the evidence that the pass was used in con- 
 nection with and for the purposes of the farm for over twenty years; and 
 the plaintiffs had established an easement by continuous user as of right 
 for that period. [Can. Pac. Ry. Co. v. Guthrie (1901), 31 (an. S.C.R. 155, 
 1 Can. Ry. Cas. 9, and Grand Trunk Ry. Co. v. Valliear (1904), 7 O.L.R. 
 364, 3 Can. Ry. Cas. 399, distinguished.] Semble, also, that the doctrine 
 of presumption of a lost grant could be applied. It being conceded by the 
 defendants that the plaintiffs were entitk'd to a level crossing, and the 
 plaintiffs being willing to accept such a crossing, with damages, in lieu 
 of the underpass, damages arising from the depreciation of the land by the 
 change from an underpass to a level crossing, and damages on account of 
 the underpass having been closed since 1906, were assessed. 
 
 l^slie v. Pere Marquette Ry. Co., 13 Can. Ry. Cas. 219, 24 O.L.R. 206, 
 [Affirmed in 13 Can. Ry. Cas. 228, on the ground that the plaintiffs' 
 right to an undergrade crossing had been established as an easement by 
 continuous user for twenty years.] 
 
FAKM CROSSINGS. 379 
 
 Qmhscstcb fob thk co^ttesiescs or uudb — Ricirre as9 oaufiAxio^Ks or 
 
 OOOtPAXIKS JLS» rBOnUETOBS. 
 
 OtoBtim^ vkiek railsay fWfifn are iioinid to Buke for the eonrcBi- 
 OMe oi the faHBds over which the Ubp is carrMd. are legal serTitiide». aod 
 the pmfrieton are aot obliged to establish a title. Whca a railvar com- 
 paar has oaee provided oosdags vhicb it reeogaiaes as beiag nercAsuy. it 
 eaaBot aholuh aw, OMier the pretext that one erossing was safieteat. The 
 Board has ao power to declare that aa existii^ rroKfing is Bsdese. 
 
 Saiadoa t. Tcaiscooata fir. Co.. 14 Caa. Rj. Cas. 33S, 41 Qoe. S.C. 
 33T. 
 
 CXOSSJCXC IX THE XAITTKE <W A FJJUf C*Os*IXG — ACCCSS TO HIGUVAT 
 
 CossTMrcTios syo maistesa>ci: — Gaus. 
 
 The Board gTaated a croesii^ ia the aatnre of a farm erossiBg from the 
 applkaats' lands to a highvar npon emditioB that aU expm5c^ of cob- 
 straetioa aad ■uJatcnaaee be borne bv tbe ap^liraat^ and that ^tes be es- 
 tabfished. vhich Bust be k^t elcecd. on both sides of the railvar. [Xev 
 T. ToroBtOL HaiBiltnB & Buffalo Rr. Co.^ S Can. Rj. C&s. o<>. folloved.] 
 
 RiAards t Beanett r. Grand Trunk Rr. Col^ 14 Can. Rt. Ca«. 329. 
 
 Statttobt ught — RmeisE bt iaxdovxek. 
 
 Where a railvaj corporation burs a strip of land to be used as a right- 
 •f-war for a railraT across a farm and takes with the deed of the strip 
 the vendors release of all claims for severance or depreciation without anr 
 resa-fataoK to the Teador oi anr right to ctosb the railwar oto- soch a 
 str^, the Teador is not ^titled a» of right upon the sob:-M|ueBt passsing 
 of a statete (B.C. Stat. 1911. e. 44, & 167 » directing the company to make 
 £arm aoadags f<H- "persons acroee who^ lands the railway is carried^ to 
 rmapei the compaaj to proride a cro-cing over the strip so coBTeycd. 
 
 HoBBSOBW T. Taneoorer Power Co., 9 DXJL »23. la Can. Ry. Cas. C9. 
 
 [CoB^pare s. 10 of B.C. Stat. 1911. c. 44. as to the power of the Britiah 
 CohnaUa MiBJatCT of Railways to order a crossing.) 
 
 LaXBS TAEEX fob KIGHT-^V-WAT — COMreXSATlOX — LiVK STOCK OB cattue 
 PASS. 
 
 T^OB aa apfdicatioa by a iandovner (aft«- receiving compensation for 
 laad takea fw right-of-way* for a cattle pass, the Board ordered that 
 the pass he boilt npon condition that the money received from the com- 
 pear he returned, and in case of di-^agneement that the compensatitm be 
 determined in* arbitration under tbe ICailway Act. In view of the incon- 
 TcnleBce caused upon farms ia which lire stock is kept amounting in sobk 
 cases to the equivalent of a capital investment of $1.±0M. railway com- 
 panies should be willing to give a live stock or cattle pas« where pos-^ihle. 
 
 WDsoa Brosw v. Can. Xorthnn Ontario Ry. Cou 16 Can. Ry. Ca*. 270. 
 
 BaILWATS KCTI-T BgHJKIi. KSTACTMEXT OT RaZLWAT AcT — EjOSTIXG FAKM 
 
 CBOSSESGS iwr*-wK EjnoMEsrs — Railtat ixcsca^-ixg DiFncrxTiE:>. 
 
 40^4 Viet. (Qoe.» e. 43, & 16 (1. 2|, (Art. 6806. RJS.Q. 1909), compels 
 railway companies to construct and maintain crossings, wherever &rms 
 are oroesed, by the railway. This obligatioB is imposed as well ob rail- 
 ways already coBstmcted as ob those constmctcd after the passing of the 
 Art, and, in r eqpeet ci the frnmer, the existing farm crossings become a 
 legal ^rritade (eas^nent> in favour of the real property connected by 
 th^a. CoBseqncBtly, railway companies cannot render the use ni such 
 
380 FAKM CROSSINGS. 
 
 farm crossing more difficult by widening the right-of-way and rendering 
 the crossing steeper, and if they do so they are liable in damages. 
 Drolet V. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 280, 44 Que. S.C. 86. 
 
 Reopening — Reservations. 
 
 Prior to the passing of the Railway Act of 1888, there was no right to 
 a farm crossing unless it was specifically covered in the conveyance from 
 the landowner to the railway, and to retain it, successors in title must 
 have it explicitly reserved in the conveyances to them. [Midland Ry. Ca 
 V. Gribble, 2 Ch.D. 129, 827 ; Toronto, Hamilton & BufTalo Ry. Co. v. Simp- 
 son Brick Co., 17 O.L.R. 632, 8 Can. Ry. Cas. 464, followed.] 
 
 Hillhouse, Hume & Booth v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 427. 
 
 AgBEEMENT between company and landowner — JUBISDICTION OF BOABD — 
 
 Compensation — Abbitbation. 
 
 The Board is unwilling to disturb agreements between railway com- 
 panies and landowners as to farm crossings to be provided, but it is not 
 bound by such an agreement if in contravention of the Railway Act, 1900, 
 or for other reasons void or voidable, and will in a proper case over-ride 
 it in order to see that the Railway Act is followed and a proper and con- 
 venient crossing given. \Vhen an agreement between a railway company 
 and a landowner specifies a level crossing, and it appears that the com- 
 pany has paid larger compensation in order to avoid the construction of 
 an undercrossing, the Board if it afterwards orders an undercrossing, not- 
 withstanding the agreement, may insist that the parties be restored to 
 their original position, and may require the owner, as a condition of the 
 order, to give security for the return of such part of the compensation 
 already paid him as shall represent the excess over the compensation prop- 
 erly payable, having in view the improved facilities, such compensation to 
 be determined by arbitration if necessary. 
 
 Ray V. Can. Northern Ry. Co., 16 Caii. Ry. Cas. 276. 
 
 Right to cbossing — Relinquishment — Conveyance. 
 
 A provision in a deed of lands taken for right-of-way by a railway com- 
 pany, that the consideration is to include full compensation and indem- 
 nity for all damages or injury to the property by reason of the railway, 
 does not constitute a relinquishment of the right to a farm crossing over 
 the railway lands. 
 
 Lusty V. Pere Marquette Ry. Co., 21 Can. Ry. Cas. 93. 
 
 [Followed in Atkinson v. Vancouver, V, & E. Ry. Co., 24 Can. Rv. Cas. 
 378.] 
 
 Senior and junior bule — Right-of-way — Patent — Cost of constbuct- 
 ing crossing. 
 
 The senior and junior rule applies to the case of a railway company 
 with prior location having a patent of its right-of-way through a farm lot 
 and when the owner of the adjoining lands has a patent for the several 
 portions subsequent to the date of the company's patent, the expense of 
 constructing the crossing must be borne by the owner of the farm. 
 
 Wimbles v. Grand Trunk Pacific Ry. Co.! 21 Can. Ry. Cas. 191. 
 
 Lapse of time — Conveyance of bight-of-way — Right to cbossino ex- 
 tinguished — Agbeement. 
 Notwithstanding the lapse of time without a demand for a farm cross- 
 ing, by the landowner or a conveyance of the lands taken for right-of- 
 way for valuable consideration, the Hoard will apply s. 252 of the Rail- 
 way Act, 1906, which provides that every company shall make crossings 
 
FARM CROSSIXGS. 381 
 
 for persims across whose lands the railway is carried convenient and prop- 
 er for the crossing of the railway for farm purposes, in all cases to which 
 it may be applicable, unless the right to the crossing has by express terms 
 been extinguished, either in the conveyance of the right-of-way itself or by 
 a sufficient agreement otherwise expressed. 
 
 Harris v. Great Northern Ry. Co.. 21 fan. Ry. Cas. 193. 
 
 [Followed in Atkinson v. Vancouver, V. k E. Ry. Co., 24 Can. Ry. Cas. 
 378.1 
 
 CROSStSG AT GRADE — CaTTLE PASS. 
 
 Where the railway was carried across a farm on a high embankment, 
 and any crossing over it would be inconvenient for cattle to get to pasture 
 .ind water unless driven, the owner of the farm crossed by the railway was 
 held entitled to a cattle pass (not an undercrossing i in line with farm 
 lane. [Re Cockerline and Goelph & Goderidi Ry. Co., 5 Can. Ry. Cas. 313, 
 f<^owed.] 
 
 I.alande v. Can. Northern Ontario Ry. Co., 21 Can. Ry. Cas. 104. 
 
 [Followed in Atkinson v. Vancouver, V. & £. Rt. Co., 24 Can. Ry. Gas. 
 378.] 
 
 Loss or KIGHT TO FAKU CKOSSIXG BY SEVERANCE OF OW^XEXSHIP OX ETTUEB 
 SIDE. 
 
 The mere acquisition of lands on both sides of a railway right-of-way 
 does not per se give a right to a farm crossing. The original owner hav- 
 ing lost his right to a crossing by conveying the lands on one side to an- 
 other person, a subsequent owner purchasing the lands on botli sides from 
 different vendors does not thereby acquire a right to a farm crossing to 
 c<mnect them. The Board, however, has jurisdiction under s. 253 of the 
 Railway Act. 1906. to order a crossing, which it will exercise in a proper 
 case and on proper terms. [See Grand Trunk Ry. Co. v. Therrien, 30 Can. 
 S.C.R. 48o: Midland Ry. Co. v. Gribble (1895)' 2 Ch. 129, 827.] 
 
 (yBrioi Bros. v. CanI Pac. By. Co., 21 Can. Ry. Cas. 197. 
 
 EXPBOPRIATIOX — CovrHACT SeBVITIDE — ^\*ALrE. 
 
 An owner entitled, under indenture with the Crown, to a crossing from 
 one part of his farm to another, the land expropriated from him having 
 been converted into a railway yard, and it being impossible to give the 
 crossing contracted for, is entitled to the value thereof upon releasing and 
 discharging the Crown from the obligation of constructing the same. 
 
 Fontaine v. The King. 38 D.L.R. 622. 16 Can. Ex. 199. 
 
 O^ISHEAD CBOSSIXG AGREEMENT FOB GRADE — SEVERANCE COSTS. 
 
 When the landowner has received a liberal price for his land taken 
 for the railway right-of-way. released the company by agreement from all 
 claims for damages to the remainder by reason of severance, and been 
 given a farm crossing at grade, the Board, although not bound by private 
 agri>ements, will not grant an overhead farm crossing at a more suitable 
 location unless the owner agrees to bear a portion of the cost. [Re Cock- 
 erline and Guelph & Goderich Ry. Co., 5 Can. Ry Cas. 313: Lusty v. Pere 
 Marquette Ry. Co., 21 Can. Ry. Cas. 9^: I.alande v. Can. Northern Ry. Co.. 
 21 Can. Ry. Cas. 194, followed, and Harris v. Great Northern Ry. Co.. 21 
 Can. Ry. Cas. 193, referred to. are cited by the dissenting judgment of 
 Commissioner Boyce. with reference to the apportionment of costs.] 
 
 Atkinson v. Vancouver, Victoria &. Eastern Ry. Co., 24 Can. Rv. Cas. 
 378. 
 
 MAINTEXA3CE — CLIMATIC COXDITIOXS. 
 
 A railway company is not obliged, during the winter season, to keep 
 
3S2 FATAL ACCIDE.\TS ACT. 
 
 snow on a level farm crossing during mild weather, to meet a climatic con- 
 dition entirely controlled bv the elements. 
 
 Sagala v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 386. 
 
 Private or farm crossings — Culvert for freshets — Specific perform- 
 ance — Damages from "construction, maintenance and operation." 
 
 An ajrreement by a railway company with the landowner from whom it 
 purchased a right-of-way and as part consideration therefor to build a 
 culvert so as not to obstruct freshet overflows which benefited his land, 
 may be the subject of a decree for specific performance and the landown- 
 er's remed}' is not one in damages only if the location and character of 
 the culvert required are capable of precise ascertainment. [Sanderson v. 
 Cockermouth & Workington Ry. Co.. 11 Beav. 407, 19 L.J. Ch. 503, nnd 
 Clowes V. StaflFordshirc, L.R. 8 Ch. 125, referred to.] A verbal agreement 
 to con.struct a culvert so as not to ol)struct a freshet overflow whicli was 
 of benefit to the party conveying the riglit-of-way may be shewn notwith- 
 standing a release contained in tlie conveyance of all claims for severance 
 and depreciation arising out of the taking or out of the '"construction, 
 maintenance and operation" of the railway; such release does not absolve 
 tlie railway from liability in respect of its failure to use such means to 
 prevent damage to the landowner as are reasonably possible consistently 
 with the proper construction, maintenance and operation of the railway. 
 [R. v. Wycombe Ry. Co., L.R. 2 Q.B. 310; London & N.W. Ry. Co. v. Og- 
 wcn. 80 L.T. 401, 63 J.P. 295, referred to,] 
 
 Whitcomb v, St. John & Quebec Ry. Co., 18 D.L.R. 558. 
 
 FATAL ACCIDENTS ACT, 
 
 See Employees; Lord Campbell's Act; Negligence. 
 
 FENCES AND CATTLE GUARDS. 
 
 A. Duty to Fence; In General. 
 
 B. Injury to Animals; Cattle Guards. 
 
 C. Defective Fences, 
 
 D. Animals at Large. 
 
 Injuries to cattle on government railways, see Government Railways. 
 Injury to animals on street railways, see Street Railways. 
 Injuries to animals while in transit, see Carriage of Live Stock; Lim- 
 itation of Liability. 
 
 Annotations. 
 
 Duty to fence and liabilities arising therefrom. 1 Can. Ry. Cas. 436, 2 
 Can. Ry. Cas. 378. 
 
 Duty of railway company to maintain fences and liability for breach 
 of, for injuries caused to animals. 3 Can. Ry. Cas. 248, 7 Can. Ry. Cas. 306. 
 
 Defective fences. 3 Can. Ry, Cas. 338. 
 
 Liability of railway company for injuries to children in consequence of 
 failure to fence railway premises. 4 Can. Ry. Cas. 11. 
 
 Railway Fences and Cattle Guards. 6 Can. Ry. Cas. 50. 
 
 Right to recover for animals killed or injured on the railway. 9 Can. 
 Ry. Cas, 48. 
 
 Injury to animals resulting from wilful act or omission of owner. ]3 
 Can. Ry. Cas. 361. 
 
 Liability of railway company for injury to cattle running at large by 
 
FATAL ACCIDE2^TS ACT. 3S3 
 
 n9isan*of iafliire to ieaee. 14 Cam. Rj. Ots. 363, 7 Can. Rt. Ca& 366, 17 
 Can. Bt. Cas. 76. 
 
 fJabilitf for defects in faces and cattle guards. 16 Can. Rr. Oks. 19, 
 17 Can. St. Gas. 76. 
 
 Aniaals at lai^. 16 Can. Rt. Ca& 19, 17 Can. Rt. Cas. 76. 19 Can. 
 Rt. Cas. 321, 21 Can. Rt. Cas. 135. 
 
 XcgUgenee or milfnl a«t or onissjon of ovner. 21 Can. Rt. Cas. 13a. 
 
 ^ni»alit on railwaT track& 21 Can. Rr. Cas. 1^1. 
 
 *»»— % at large tkroo^ *~nrilfiil act <Mr onusskn of onner.* 7 Can. Rt. 
 CasL 366, 32 DiJK. 397. 3-7 DXJL 423. -^ D.L.R. 4«1- 
 
 A. Duty to Fence; b Otaurt 
 
 EbCHVAT CBOBSC(« PbOTIDlTIOS St aIT. r U Kl SElQnKCSI£VTS. 
 
 Bjr the Railvaj Act, 1$S&. s. 197^ as amended hy m k 5A Vkt. e. 27, s. 6, 
 it is proTidcd tliat ~at ewrr publie road croasinp at rail lemd of tke raQ- 
 vnr, the itnte on botk side$ of the tra«k shall he toraed in to the «4nle 
 gnards, so as to alknr of the safe pasisage of trains."^ Bt & 2^ of the 
 tufu - Art, as I— ^MJrd br s. S of the latter, it is proTided that ~no loro- 
 or railvajT cng^ shall pa@ in or tiumigh anj thiekhr peopled 
 <rf anj eitr. town, or Tillage, at a speed greater than s^^ix ialVe> an 
 r. mJess the tnek is ffeneed in the Manner prescribed by thi» Aet:~ — 
 HUd, tibnt the words "in the Banner pteseribcd br this Aet~ do not rei<H' to 
 ike tntning in of the fence to the cattle guards: and. althoogh no other fcn<« 
 ia ^peeificallT prescribed in the railvaj legislation, the aaenning oi $. ±M 
 it, lAnt OBleffi the track, inehidii^ the cTOiiifsing. is propo-hr tencvd <iM- 
 othcmiae ^otccted so as to dficientlT vnm or bar the traTeler vhile 
 a tnin is croesi^, or inuoediatelT about to cro§.'$w the maximum speed at 
 vhich a train may eroK» in thickly peopled portmas of cities, townsw and 
 Tillages, is six wks an hour. The plaintiff was struck by a train at a 
 eraasii^ otr- a. main street in an incorporated town, not protected by a 
 gate or watchman. In an action to reeoTer damages for his injuries, the 
 jury found that the train was traTeling at the rate of twenty mUes an 
 hour, and that the injury cMuplained of wa» caused by this exceseire 
 speed, coupled with the absence of pn^er protection at the crossing, and 
 without n^I^ienee on the plaintiff's part: and the Court, though there 
 was ittr on g eridence of eontribntory negiigence. declined to interfere. 
 
 McKay t. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 42. a 0±JL 313. 
 
 [Rern^sed in M Can. S.C.R. 81, 3 Can. Ry. Cas. 52.] 
 
 HiGHWAT cnossi^cs — PnorBcnox at. 
 
 Ss. 197, 239 <rf the Railway Act, lig;^ as amoded by 55 4 56 Tict. c 26 
 (D.), as. 6, 8. do not retjuire that railway eompanies shall erect fence* 
 and gates at highway crossings in thickly peopled parts of citie»^ towns., 
 and Tillages before running their trains across such highways at a greater 
 speed than six miks an hour. The power to detenune whether gates 
 nionld be placed at highway crossii^ rests with the Railway Committee 
 and not witt a jury. [Lake Erie, etc:, Ry. Co. r. Barclay, 30 Can. S.CJB. 
 360, distingnished.1 
 
 Grand Trunk Ry. Co. r. McKay, 3 Can. Ry. Cas. 52. 34 Can. SLC.R. 81 
 (Followed in Tabb t. Grand Trunk Ry. Co.. 8 OJJEL 514: Clark t. Can. 
 Pae. Ry. Co., 14 Can. Ry. Cas. 51. 2 D-LR. 331: adhered to in Grand 
 Tnmk Ry. Co. t. Hainer.'36 Can. S-CJ5. 1S3: Grand Trunk Ry. Co. r. Per- 
 rault. 36 Can. S.CR. 678: Lake Erie A D. R. Ry. Co. t. ilarsh. 35 Can. 
 SLC.R. 198: di«>cus)^ed in Perrault t. Grand Trunk Ry. Co, 14 Que. K.B. 
 248. 2ttn: distinguished in Burtch t. Can. Pa.-. Ry. Co.. 13 OJ^R. 632: 
 Gowland r. Hamilton, Grim^, etc, Ry. Goi, 19 Can. Ry. Cas. 214; fol- 
 
384 FATAL ACCIDENTS ACT. 
 
 lowed in Carrier v. St. Henri, 30 Que. S.C. 47; Grand Trunk Ey., Co. v. 
 Daoust, 14 Que. K.B. 551; Quebec & Lake St. John Ry. Co. v. Girard, 15 
 Que. K.B. 51; Minor v. Grand Trunk Ry. Co., 22 Can. Ry. Cas. 194, 35 
 D.L.R. 106; referred to in R. v. Grand Trunk Ry. Co., 17 O.L.R. (iOl; Smith 
 V. Niagara & St. Catharines Ry. Co., 9 O.L.R. 158; Wabasli Ry. Co, v. 
 -Mistner, G Can. Ry. Cas. 70, 38 Can. S.C.R. 99; relied on in Girard v. 
 Quebec & Lake St. John Ry. Co., 25 Que, S.C. 248.] 
 
 FAir.IJBE TO FENCE — CONTRIBUTORY NEGLIGENCE — INFANT. 
 
 A street ran to the north and to the south from tlie defendants' tracks 
 in a city but did not cross them. Witli the tacit acquiescence of the de- 
 fendants, however, foot passengers were in the habit of crossing the tracks 
 from one part of the street to the other and for convenience in doing so 
 part of tlie fence between the tracks and each part of the street had been 
 removed. A boy of nine intending to cross from one part of the street to 
 the other walked through the opening in the fence to one of the tracks. 
 While he was standing and playing upon this track waiting for a train on 
 another track to pass he was struck by a train running at a speed of 
 about forty miles an hour and was killed: — Held, that there was a clear 
 neglect of a statutory duty by the defendants in permitting the track to 
 remain unfenced and at the same time running at such a high rate of 
 speed; that it was for the jury to say whether upon all the facts the de- 
 ceased had displayed such reasonable care as was to have been expected 
 from one of his tender years; and that their verdict in favour of the 
 child's father could not be interfered with. Judgment of Falconbridge 
 C.J., affirmed. 
 
 Tabb V. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 1, 8 O.L.R. 203. 
 
 [Followed in Potvin v. Can. Pac. Ry. Co., 4 Can. Ry. Cas. 8.] 
 
 Failure to fence — Contributory negligence — Infant. 
 
 On the west side of a street in a city, east of and parallel to the rail- 
 way, were a number of dwelling houses, with the lots on which they stood 
 not fenced, leaving a large open space in the rear, next to the railway 
 fence, in which there were openings. A boy of eight years and seven 
 months, while engaged in playing with his companions, went through one 
 of the openings in the railway fence, and getting upon the line was killed 
 by a train running at the rate of twenty-five miles an hour. The jury 
 found that the boy's death was due to the negligence of the defendants, 
 consisting in the poor condition of their fence; that it was not due to tlie 
 boy's own negligence, who was incapable of reasonable thought in the 
 matter, and that he was not a trespasser: — Held, affirming the judgment 
 of Falconbridge, C.J.K.B., that the Court might draw the inference of 
 fact, under Con. Rule 817, that the boy's death was duo to defendants 
 negligence in allowing their train to pass through a thickly peopled por- 
 tion of the city without the track's being projjerly fenced and that the 
 defendants were liable. [Tabb v. G. T. Ry. Co., 4 Can. Ky. Cas. 1, 8 O.L.R. 
 203, followed.] 
 
 Potvin V. Can. Pac. Ry. Co., 4 Can. Ry. Cas. 8. 
 
 Injury to child — Unfenced premises — Trespa.sser. 
 
 A boy, over eight years of age, entered from the adjoining highway 
 the unfenced freight yard of the defendants, for the purpose of gathering 
 pieces of coal dropped from the cars, and in doing so got luuler or along- 
 side the wheels of a car which, in being shunted, ran over and killed him, 
 at a place over 400 feet from where he entered the yard: — Held, that he 
 was wrongfully trespassing where he had no business or invitation to be: 
 
FATAL ACCIDENTS ACT. 385 
 
 -^dd. abm Oak tke plaiatil* had aot aiisScd tlw am eu* «|mmi thm 
 to estabfiak tj cridoMe nuBwulBiiiii frvM ^Ukk it a^g^ furlr be n- 
 foTvd ikmt ttne was imsoMble pnbdkOitj that tk aceidat rcsnhed 
 frooi the alHOMe <rf a fcaee at the place vhoe the bo^ taJbeni. [William 
 T. Gnat W«stc«s Sj. Co. 11874;. L.R. 9 Exch. 157. distia^wnhrd: Daniel 
 Y. Metzv^poiitaa Br. Co. (ia»|, L.B. 3 C P. 21C. affiroied flS71|, L.R. 
 9 HJL 4a, followed.] 
 
 Xcwd T. Caa- P^*- Rt. Co, 5 Caa. Ry. Ca& Sli, 12 O-I^R. 21. 
 
 [Bcferred to ia doster \. Toronto Elee. Light Gol, 12 OXJS. 413.] 
 
 HkHTAT CaOSSDEG — ^ToVXSHir ■OAIfe<: — Fe5;ci3e<l 
 
 The fraciBMBS of aa & 56 VidL e. 27, sl C mmimiBmg sl 197 4rf the Bafl- 
 -nmy Aet, 188ft, aad refuiring, at errrr poblie road avaamg at mad kid 
 ot the nuInaT the imcca on both sides of the crossii^ and of Ae tnck to 
 be laaa e d into the cattle guards applies to all poblAr road cmosi^v and 
 ■ot to those in tovwihips aaiij as ia the case of the fnriag prescribed br 
 s^ ISMl <rf the Saflvay Act. 1SS8L fGrud Tmak Bj. Co. t. MrKaj. 3 Can. 
 Kt. Cms. 52, 34 Can. S.C.B. SI, MIowvd.] 
 
 Grand Trunk Br. Co. r. Hainn-, dcu 5 Can. Bt. Ck& 59, 36 Can. SL.CJL 
 1801 
 
 ■ [Applied in Jolicaeur r. Grand Trunk Rt. Co.. 34 Que. SLC. 460: di»- 
 tinguiAfd in Beck t. Can. North. Bt. Co.. 2 A.LJL 55S; TiKley t. Torato 
 Kt. Cou 17 OX.B. 74: reffcmd to in EiaeiAaacr t. Halifax £ S. W. R;^. 
 Cot, 42 XjSLB- 434.] 
 
 BKHT to FEXCE UeHT-Or-TAT — iXTSMFBmEXCK WITH ACCESS 10 SnKDTC 
 
 A lailvaj eowpinT vhich in coBstmctii^ its line and fenein^ in its 
 r^^t-of-naj pursuant; to its stotutoiy right so to do. therebr interfered 
 with plaintiff's access to a s^^ia^ on the preanises of another lailwaT 
 whidi he was pennitted to use as a mere licensee, is mt liable to hia for 
 dawgea for such interfenace. 
 
 Ban ▼. Srdner ft LouiaiNn;g Br. Co. 9 DX.B. 14S. 
 
 Vstxtuaexm ulxbr — Texces — Onnts fob all bailwatsl. 
 
 Under the Baihraj Act. 1906. the Board doe» n&t possess authwitr to 
 naafce a genua l wder l eq uiii^ all railwajrs subject to its jnriadictaan to 
 erect and awntain fesMcs on the sides of their railwaT lines where ther 
 pass through lands which are not inrloicd aad either settled or i^prored; 
 ft can do so outjr after the special c iiiuMurta nces in le ^ec t «rf ao^e de- 
 fined loealitT hare been inreistigated and the necessitT' of sudi i i » < i «g in 
 that loealitT detenuned according to the evigem ies «f tte ease. DnC^ J., 
 coutra. The Bailwar Act empowers the Board to ordn- that, ^oa lines 
 of railwsj' not jet completed or open for traffic or in course of eoustme- 
 'UoB, lAere ther p«!s$> throi^fa inclosed lands, the railwar mmpanirm should 
 eoualract and maintoin such fences or take such othn- steps as nmjr be 
 ■MUiHiaij to prerent cattle and other animals fram getti^ npoai the r%ht^ 
 of-waj. IdiagttoB. J., contra. 
 
 Be Can. Northern Bt. Co. and Board of BailwaT Comaussiouers (Fenc- 
 ing Case*. 42 tan. SX.B. 443. 10 Can. Bt. Ca;Sw 104. 
 
 [Followed in Notana t. Can. North. Bt. Co^ 14 Can. Bt. Cks. 11, 7 
 DJJR. SS8.] 
 
 FAfLTBC TO nCSCE — DCTT OF CUOWX. 
 
 fl» Where the Crown is not rt<|uired br the adjoining proprietorj: to 
 fence its Une of railwar, there is no dniT. in faTonr of a trvi^assrr. cast 
 upon the Crown br the proTisioas of s». 22. 23 «rf the Gorawaent Bail- 
 Ckn. Bt. L D^.— 25. 
 
38C FATAL ACCIDENTS ACT. 
 
 ways Act to fence as aforesaid. (2) The suppliant, while working on a 
 property adjoining the I.C.E. within the city of Levis, was injured while 
 innocently trespassing on the right-of-way, there being no fence erected, 
 or other means taken, by the Crown to mark the boundary between the 
 adjoining property and the railway. It was not alleged that the adjoin- 
 ing owner had requested the Crown to fence: — Held, that the suppliant 
 had made no case of negligence against the Crown under subs, (c) of s. 20 
 of R.S.C., c. 140. 
 
 Viger V. Tlie King, 10 Can, Ry. Cas. 201, 11 Can. Ex. 328. 
 
 Right-of-way fences — Default — Penalty. 
 
 Where a railway was built and not fenced for many years through a 
 thickly settled, highly cultivated and rich agricultural district, the Board 
 ordered the right-of-way to be fenced by the railway company under s. 254 
 of the Railway Act, 1906, and imposed a penalty of $50 a day for eacL 
 day's default after the time specified in its order. [Re Board of Railway 
 Commissioners and Can. Northern Ry. Co. (Fencing Case), 42 Can. S.C.R. 
 143, ]0 Can. Ry. Cas. 104, followed.'] 
 
 Nutana v. Can. Northern Ry. Co., 14 Can. Ry. Cas. 11, 7D.L.R. 888. 
 
 Orders of Board — Extension of time — Statutory requirement. 
 
 The obligation to fence being imposed by statute and not, in the first 
 place, by order of the Board, the Board will not extend the time for com- 
 plying with a specific order requiring fencing, but will preferably cancel 
 its orders on the subject, and leave all parties to the operation of the act. 
 
 Re Fencing at Savona, B.C., 16 Can. Ry. Cas. 195. 
 
 Injury to animals. 
 
 S. 294 of the Railway Act, 1906, must be read with reference to condi- 
 tions of s. 254, and where there is no obligation to fence there can be no lia- 
 bility for injury to cattle, whether "at large" or "at home:" but where 
 there is an order compelling railway companies in general to fence, a 
 special order partly relieving a railway company from such duty at 
 certain portions of the locality in question does not relieve the company 
 from liability, in the absence of evidence as to where the animals got 
 upon the railway. (Per McCarthy. J.) [Higgins v. C.P.R. Co., 9 Can. 
 Ry. Cas. 34, followed; Parks v. C.N.R. Co., 14 Can. Ry. Cas. 247, disap- 
 proved.] 
 
 Waite et al. v. Grand Trunk Pacific Ry. Co., 21 Can. Ry. Cas. 126, 27 
 D.L.R. 549. 
 
 [But see 21 Can. Ry. Cas. 135 (note).] 
 
 Fences — Right-of-way — ^Navigable river — Obstruction. 
 
 Under s. 254 of the Railway Act, 1906, the respondent is only obliged to 
 maintain right-of-way fences turned in to the track at each end of the 
 bridge over the Souris river, a stream on which timber may be floated; 
 therefore, under s. 230 the respondent is prohibited from placing fences, 
 which would amount to an obstruction, across the river. 
 
 Abrey v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 17. 
 
 Contiguous parallel lines — Private lands — RESpoNsreiLmr — Joint 
 tortfeasors. 
 
 The provisions of s. 254 of the Railway Act, 1906, as to fencing the 
 right-of-way apply so as to require a fence between two contiguous parallel 
 lines of different railway companies, and default in maintaining same may 
 
FATAL ACCIDENTS ACT. 3ST 
 
 iBT<rfrg bottk m rrspoBsibilitT for tlie kflliii* of cattle ^trajia^ npoa the 
 tnck beicaase of a defect in the railwar itneing adjacvBt to prrrate laads. 
 LegaoH t. Moatieal Tern Cotta Col ^ DX^ 3Kl 
 
 StaXDABD of FESCES STATTTOBT OHJGATIOXS. 
 
 The statutory obl^tioD inposcd apoa lailwaj cwpaaies to proTide 
 feaees vhkh vould preveat cattle aad other aaiiaK froB ^rttti^ «■ the 
 railwaT is a soflfe-ioit protertioB to the poblie, aad it is iaadrisable for th« 
 Board to presmibe aar standard feaee. 
 
 Re Staadard Railvar FcaecsL 29 W.I-B. 45± 
 
 XeCLGCT of COirPAXT TO FtXC« BIGHT-<K"-WAT — I:sjr«T TO AlUOmXG LXSO 
 BT CATELf SnATXXG BOC^OtAKT FESCES. 
 
 Uader a. 145 of the Alberta Raihraj Act. 1907, dealii^ vith damages for 
 fulme <rf a raihrar eoatpaaT to fence a ri^t-of-war. and beii^ the coonter- 
 part of «. 19* of the DonnioB Railvaj Act. as it stood froB 1S90 until 
 1903, the dnfj <rf the rtmqmny extended onhr to fencing for the parpose of 
 p icf eat in g aanaals fraat bong iajnored br the companr's trains and engine!^, 
 and did not impose the dntj of erwtii^ bonndary fences to prevent aninmls 
 Ii'iMB aiiujimg froai the right -of-war to adjoiaii^ Iand& [Grand Tmnk Br. 
 Ool ▼. James, » Can. S.CJL 420, applied and folloaed; Winterlmm r. Ed- 
 mimtan Tnhon Jt Pacific Rv. Col. 1 Alta. L.R. 9*. 29S, referred to.] 
 
 FhHip T. Canadian XutlnWestem By. Co., fS W±JL 451, C W.WJL 
 
 B. lajmcj to Animals; Cattle Gtiazds. 
 
 See also CL, p. 395. and D^ p. 39& 
 Sr&TsatKST OF acrcxcx: — Leave to fi£ju» otbeb defences vith "xot 
 
 CCXLTT BT STfATTTE" — IXJlTtT TO AXIMAIS OS TKACK — CaTTLE CCABBS. 
 
 Daniel t. Can. Pac. Rt. Co_ 6 Wi.R. 5S8. 
 
 [PoUowed in Loi^heed v. Hamilton, 1 Alta. LB. 17, 7 WXJL 204.] 
 
 Xbgudct to fexce — 1 3: J err to mors ox adjacent fabm nr cattle tbes- 
 PASsrsc 
 
 Pnnpeit t. Can. Northern By. Co., 12 W.L.1L 3*4 (Alta.). 
 
 AXBUOJS KILLED OK TBACK — DCTT TO FEXCE — UXEXCUOSED LAXDS, 
 
 (It Where the locality is one in vhidb the lands ca either side of the 
 railway ri^t-irf-vay are not enrkirBcd aad either settled or improved, 
 theve is no liability on the defendants to fence. (2)1 Where animals are 
 killed on railvay property, aad there is no evidence of the existence of 
 any hi^nray, the burden was on the defendants, under s. 294 of the Bail- 
 way Act, 1906, to shew that the animals were at lar^e throng the neg. 
 licence or wilful act or omission of the owner: and th^ satisfy this oam 
 by shewii^. from the ]Jaintiff's own nidence. that when his horses were 
 let oat of the stable they could go anywhere they wished — that no restraint 
 was imposed on them, aad no care taken to see that they did not go di- 
 rectir to the railway track. Whether cattle are "at large" or no. depends 
 <m wiiether they axe under restraint or controL <piite i r re sp ec ti ve of wheth- 
 er they are on their ownn''s land or not. If. howerer, the animals were 
 net ~at Iarge~ $. 294 did not apply, and the plaintiff had no cause <rf ac- 
 tion, beeaoae the defendants were under no liability to fence. 
 
 Krcnaenbeck t. Can. Nwthen By. Co, 13 WjJr. 414, 14 Can. By. Ca& 
 22iL 
 
388 FATAL ACCIDENTS ACT. 
 
 Animates kh-lkd on tback — TlKiinvAY crossing — Insufficient cattle 
 
 GUARDS. 
 
 'J lie plaintiiT's horse got on the right-of-way of the defendants, and was 
 killed by a passing train. The evidence shewed that the animal got on the 
 right-of-way from the higiiway, where he was at large, being frightened 
 and driven there by the train which killed him; he was not struck until 
 after he was in the right-of-way and had passed over three cattle guards: 
 — Held, that the defendants could not escape liability vinder s. 294 (4) 
 of the Railway Act. l!l(>6, on the ground that the animal did not straj' 
 but was driven by their train into the right-of-way; the cattle guards at 
 the highway crossing was not "sufficient," within the meaning of s. 2o4 
 (3), because the animal did get on the railway. Parliament has im- 
 posed on railway companies the absolute duty to protect their lines from 
 animals. [Becker v. Can. Pae. Ry. Co., 5 W.L.R. 570, approved.] 
 
 Clare v. Can. Xorthern Ry. Co.' 17 W.L.R. 536 (Alta.). 
 
 Culvert — Duty to fence — Nkgi.igkncr. 
 
 A natural watercourse, which (lowed through a culvert under a railway 
 track, dried up in the summer, and to prevent cattle from passing through 
 it the railway company had placed gates in the culvert, which they neg- 
 lected to keep up, and by reason of the absence thereof, of which the com- 
 pany was duly notified, the plaintiff's cattle, which were lawfully pasturing 
 in a field on one side of the track, got through the culvert into a field on 
 the other side of the track, and from thence on to the railway track, where 
 they were injured: — Held, that the defendants were bound to keep the water 
 course as part of tlieir railway properly fenced, and were liable for the 
 damages sustained by the plaintiff. 
 
 James v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 407. 31 O.R. 672. 
 
 [Affirmed in 1 O.L.R. 127. 1 Can. Ry. Cas. 409; reversed in 31 Can. 
 S.C.R. 420; 1 Can. Ry. Cas. 422; approved in McKellar v. Can. Pac. Ry. 
 <o.. 14 Man. L.R. 618; distinguished in Arthur v. Central Ont. Ry. Co., 
 11 O.L.R. 537; Davidson v. Grand Trunk Ry. Co., 5 O.L.R. 574, 2 Can. 
 Ry. Cas. 371; Fensom v. Can. Pac. Ry. Co., 7 O.L.R. 254; Winterburn v. 
 Edmonton V. & P. Ry. Co., 1 Alta. L.R. 315; followed in Hunt v. Grand 
 Trunk Pac. Ry. Co.,' 18 Man. L.R. 503, 10 W.I^.R. 581; referred to in 
 Daigle v. Temiscouata Ry. Co., 37 N.B.R. 223; Winterburn v. Edmonton 
 Y. & P. Ry. Co., 1 Alta. L.R. 95.] 
 
 Culvert — Animals ox track — Duty to fence — Negligence. 
 
 The plaintiff's horses, which were in a field on one side of the defendants* 
 line of railway, passed to a field on the other side through an im fenced 
 culvert over which the line ran, and the fence in that field being broken, 
 wandered to the highway, and then at a crossing went on the line of rail- 
 way and were killed: — Held, that the defendants were bound to fence 
 the culvert, and that not having done so they could not set up that the 
 horses were not lawfully on the highway, or defeat the plaintiff's claim 
 to damages. Judgment of Street, J., 1 Can. Ry. Cas. 407, 31 O.R. 672, 
 affirmed. [Young v. Erie & Huron Ry. Co., 27 O.R. 530, commented on.] 
 
 James v. Grand Trunk Ry. Co.. 1 Cnn. Ry. Cas. 409, 1 O.L.R. 127. 
 
 [Reversed in 31 Can. S.C.R. 420, 1 Can! Ry. Cas. 422.] 
 
 Duty of fencing a culvert — Negligence — Cattle on highway. 
 
 A railway company is under no obligation to erect or maintain a fence 
 on each side of a culvert across a watercourse and where cattle went 
 through the culvert into a field and from thence to the highway and stray- 
 
TATAL ACCIDENTS ACT. 389 
 
 ing on to the railwaj track were killed, the company was not liable to 
 their owner. 
 
 Grand Trunk Rt. Co. t. Janaes, 1 Can. Ry. Caa. 422, 31 Can. S.C.R. 420. 
 
 [Distinguished in Daridscm t. Grand Trunk Ry. Co., 2 Can. Ry. Ca$. 
 371, o O.LJL 574; followed in Fenscmi ▼. Cao. Pac Ry. Col, 3 Can. Ry. 
 Cas. 376, 2 O.W.R. 479.] 
 
 Uttt to pesce right-of-way — Ljabiutt fob death or axuiai. xor act- 
 rAU.T snccK bt tkaix. 
 
 Under aube. 3 of s. 194 of the Railway Aet. 1SS8. as re-enacted by 53 
 VidL e. 28, s. 2, a railway company is not liable in damages fw the death 
 of an animal wlw^i, baring got on the track through a defecthre fence, is 
 frightened by a train and then run$ into a barbed wire in another part 
 of the fence and is so cut by the barbs that it dies. The damage to the 
 animal cannot be said to be "caused by any of the company's trains or 
 eagines." unless the animal is actually struck by the train or engine. 
 [Dicta of the .Judges in -lames v. Crand Trunk Ry. Co_ 1 OJ^R. 127, 31 
 Can. S.C.R. 420. and decision in Winspear t. Accident Insurance Co.. C 
 Q.B.D. 42, followed.] 
 
 lIcKellar v. Can. Pac. Ry. Co.. 3 Can. Ry. Cas. 322. 14 Man. L.R- 614. 
 
 [Followed in Hunt r. Grand Trunk Pac. Ry. Co.. IS Man. L.R. 6<M. 10 
 W.L.R. 581; distinguished in Winterbum t. Edmonton, Y. t. P. Ry. Co., 
 1 Aha. U.R. 95.] 
 
 A^mtAL KIIXB> ox TRACK — ESCAPE TO HIGHWAY — OPEJf GATE. 
 
 The plaintiff^s horse escaped from a field by jumping a gate without the 
 owner's knowledge and got upon the highway, went a short distance and 
 on to the track where it was killed by a train: — Held, that the company 
 was n^Ii«ent for failing to hare the place fenced or prc^ierly protected 
 throi^fa which the horse reached the track, [Railway Act, 1903, s. 199] 
 that the case could not have been withdrawn from the jury and that the 
 plaintiff was entitled to recover the value of the horse, thot^h not in 
 charge of a competent person [Railway Act, 1903. s. 237 (4)]. 
 
 Lebn v. Grand Trunk Ry. Co., 5 CanT Ry. Cas. 329. 12 O.L.R. 590. 
 
 [Followed in Parks v. Can. Xorthem Ry. Co., 14 Can. Ry. Cas. 247.] 
 
 DCTT OF MaIXTEXAXCC — LaCK of FEXCE bt consent — AxniALS or THUD 
 PABTT. 
 
 S. 194 of the Railway Act, 1888. obliging railway companies to construct 
 fences on both sides of their track, is imperative and a matter of public 
 interest, and the responsibility it imposes extends to a third party who^e 
 animal being lawfully on neighbouring ground is killed owing to the ab- 
 sence of sucb fence, although it was at the request of the proprietor whose 
 land bordered on the railway track, that the company omitted to make 
 said fence. 
 
 Quebec Central Rv. Co. t. Pellerin. 6 Can. Rt- Cas. 1, 12 Que. K.B. 
 152 
 
 [Cimsidered in Carruthers t. Can. Pac. Rv. Co.. 16 Man. UL 327, 6 Can. 
 Ry. Cas. 13.] 
 
 AXIMAI. KILLED OX TKACK AbSEXCE OF FEXCE — LjiXOS XOT IMPSOVED. 
 
 The railway line of the defendants passes through the land of the 
 plaintiff which is owned, occupied, and cultivated by him. There is no 
 fence whatever on or around plaintiff's land, nor on either side of the 
 railway. Plaintiff's cow was pasturing on his land south of the railway 
 when she ran on the track and was killed. Held, that the lands adjoining 
 
390 FATAL ACCIDEKTS ACT. 
 
 the railway must not only be improved or settled but also enclosed before 
 the company is required to erect fences under s. 199 of the Railway Act, 
 1903. 
 
 Schellenberg v. Can. Pae. Ry. Co., 6 Can. Ry. Cas. 29, 3 W.L.R. 457. 
 
 [Referred to in McLeod v. Can. North. Ry. Co., 8 Can. Ry. Cas. 3!), 18 
 O.L.R. 616.] 
 
 Injuby to cattle — Crossing — -Special agreement — Tenant. 
 
 S. 237, subs. 4, of the Railway Act, 1903, enacts that: "When any 
 cattle or other animals at large upon the highway or otherwise, get upon 
 tlie property of the company and are killed or injured by a train, the 
 owner of such animals so killed or injured shall be entitled to recover the 
 amount of such loss or injury against the company . . . unless the 
 company . . . establishes that such animals got at large through the 
 negligence ... of the owner or his agent . . . ": — Held, that, on 
 the proper construction, the reference in the above section is not to ani- 
 mals getting upon the railway from an adjoining enclosure, but only to 
 unimals at large upon the highway or otherwise at large; and that it can 
 have no reference to animals escaped from an adjoining field where, apart 
 from any defect in railway fencing, they were properly enclosed. The 
 action was brought for the loss of cattle of the plaintiti" which escaped 
 from his enclosure and got upon the railway and were killed. The plain- 
 tiff was a lessee from the owner for one year, and his animals got on 
 the railway owing to a defective gate at the farm crossing. Prior to the 
 plaintiff's lease tlie owner had agreed with the defendants that he might 
 put in the crossing provided he did it himself and would keep his gates 
 up, and that the defendants should not be responsible for anything he 
 might lose on that crossing: — Held, that this agreement exonerated the 
 defendants, the plaintiff being bound by it wliether he knew it or not 
 when he took his lease: — Held, also, per Riddell, J., that tlie plaintiff's 
 contributory negligence disentitled him to recover. It was proved by 
 evidence properly admitted that the plaintiff had agreed with the owner 
 to keep up the gates, and Avhile this could not be relied upon by the de- 
 fendants as an estoppel, or, in itself a ])erfect defence by way of con- 
 tract, it was cogent evidence of contributory negligence, for the plaintiff 
 knew it was his duty to keep the gate in repair and he knew that the gate 
 was not a safe gate, yet he deliberately put his animals into the field. 
 
 Yeates v. Grand Trunk Ry. Co., 7 Can. Ey. Cas. 4, 14 O.L.R. 63. 
 
 [Discussed in \Voodburn Milling Co. v. Grand Trunk Ry. Co., 19 O.L.R. 
 276; referred to in Clayton v. Can. Northern Rj-. Co., 17 Man. L.R. 433. 
 7 Can. Rv. Cas. 355; referred to in Higgins v. Can. Pac. Ry. Co., 18 O.L.U. 
 12.] 
 
 Liability to fence — Lands not enclosed — Cattle at large. 
 
 The plaintiff's cattle passed from his land (lots 41 and 42) on to the 
 defendants' right-of-Avay. and westerly thereon .to and across lots 43 
 and 44, and from off lot 44 again on to the right-of-way. where they were 
 killed by a passing train. The railway was not fenced across these lots, 
 nor for many miles on either side of the plaintiff's lands. South of the 
 railway the plaintiff's land w^as improved and settled, and was enclose*! 
 in the following manner: A colonization road ran south-westerly through 
 the plaintiff's land and was fenced on each side; there was a fence on the 
 east aide of lot 41 from the colonization road to the right-of-way, and 
 on the west side of lot 42 there was a fence from the colonization road 
 to a point within 70 rods of the right-of-way, of which 70 rods about 50 
 rods waa a "slash" of upturned trees, whose roots had been burned and 
 
FATAL ACCTDEXTS ACT. 391 
 
 tkcB Uovm dovB aad left just as they fell; for 20 rods soutli from the 
 riglit-<rf-«sf tlwie vas bo fcBce or other ob^tmctioa hot a ditch had been 
 dug bj the drfcBdaats upas thor right-of-vaj south of the roadbed ex- 
 teadii^ Tcstvaid am defesdaats' laad to the amth of plaintiff's land 
 »mA put of McMoDcb's (the adjoinia^ ovner) laad, ontil it turaed 
 southwazd for a distance of nave than 20 rods to a creek « lot 44. for 
 the purpose of carryia« off the vater from defoidants' land. The resiain- 
 der of plaintiff's land south of the colouzatkm road was in a ;^tate of 
 nature and u^d for pasture exc^t a soull cnckksed portion. There vere 
 so fences on McMullenV land other than that referred to on the vest 
 side of plaintiffs land. The plaintiff claimed the right, under an agree- 
 ment, with McMullen to pasture his cattle €■ lots 43 and 44: — Held, 
 (ll that neither the plaintiffs n<M- McMoUca's land vas so enclosed as 
 to make the defendants liable to erect a fence between their right-irf-war 
 aad these lands as required by s. 254 of the Railway Act, 1906. and & 199 
 of the Railway Act, 1903. [Phair t. Can. Northern Ry. Co.. 5 Can. Ry. 
 Cas. 3^, referred to.] (2) That the plaintiffs cattle having the rie^t 
 to be on McMullen's laad were not at lai^ within the meaning of sabsw 
 4 of s. 294 of the Railway Act, 1906, and the defendants were not liaUe 
 for their loss, but eren if the cattle were considered to be at large, the 
 plaintiff could not recover. [Carruthers r. Can. Pac Vtj. Col, 6 Caa. Ry. 
 Ca^ at p. 19, followed.] 
 
 Biddcson T. Can. Xorthem Ry. Co^, 7 Can. Ry. Gas. 17. 
 
 AXIMAL KHXEO ox TmACK — FaSX CCOSSrXC — ^AXTMAI. AT LAKCE. 
 
 Action for damages for a mare killed on the d^cadaats' railway track 
 while the mare was running at large, harii^ pinw rn ah ly got upon the 
 railway track at the farm erossii^ of a man named Morton at which 
 there were cattle guards but no gates: — Held, Martin. J., dissenting, that 
 ia the absence tti evidence that the mare was unlawfully at large at 
 Mortal's crossii^. the railway company was negligent in not maintain- 
 iaig gates at Morton's erosung. and that, according to the law to be ad- 
 ministered in British Cohonbia, she was "not wroi^fully on the railway" 
 and the owner was entitled to rccora-: — Held, further, that the fact of 
 farm ciossii^ heii^ (Mwided with cattle guards instead of gates at the 
 lequest of Morton, the owner, did not relieve the defendants fn an their 
 statutory duty under the Railway Act to maintain gates at this point. 
 Oecisiim of Irving. J., at the trial, reversed. 
 
 Coen T. New Westminster Southern Rv. Col. 7 Can. By. CasL 60, 5 WXJL 
 214- 
 
 *"1«CAUTT.'* UKXXTSG OF — ObUGATIOX W BAILWaT TO FCXCE. 
 
 Plaintiffs animals were killed on defendants' track, the right-of-way 
 Off which passed in front of his land. There was no f^Ke oected on this 
 p<Hition of land, either by the railway company or plaintiff. The ncnth 
 end of the plaintiffs randi was within SOO yards of the municipal limits 
 of Femie. There were about two acres of the ranch with a frontage of 
 4-)0 feet on the right-of-way, and about 200 feet off was an cndosnre 
 used as a goat pen. about 20 by 30 feet. There was also a potato patch 
 of about three-quarters of an acre, and a moveaUe fence separating this 
 patch from a grassy porti<m. This, together with a piece of fcncsa^ aloiqr 
 a waggon road, but not reaching the right-of-way by some 225 feet, was 
 the only fencing on the ranch. There was evidencv of scattered places 
 in the vicinity, s<Hne being f^Ked and odiers not. but with unfenced and 
 unoccupied land intervening: — Held, by the Full Court, reversi]^ the ImM- 
 uig of Wilson, Co. J,, (Clement. J., dissenting), that as the land ia qnes- 
 
392 FATAL ACX'1DE.\T!S ACT. 
 
 tion per se could not be classed as a settled or inclosed locality, there 
 was no obligation on tlie company to fence its right-of-way in tlie ab- 
 sence of an order from the Board to do so; and that their contiguity to 
 the limits of an incorporated town did not constitute the lands a por- 
 tion of the settled locality of such town. Having regard to the powers 
 given the Board by s. 254 of the Railway Act, lOOO. and particularly 
 the language of subs. 4, the word "locality" must be construed without 
 reference to the proximity of town limits. 
 
 Cortese v. Can. Pac. By. Co., 7 Can. By. Cas. 345, 13 B.C.B. 322. 
 
 Liability to fence — Lakds not excloseh) — Cattt.e at large. 
 
 S. 254 (4) of the Railway Act, 1906, is not retroactive. The exemption 
 from tlie obligation to erect fences in localities described in this subs. 
 does not relieve a railway company from liability for animals killed on thj 
 railway wliere fences were erected before tlie passing of the Act, and 
 were thereafter maintained. Tlic traclc of a railway company passing 
 through a locality in which the lands on eitlier side were not enclosed 
 and either settled or improved (s. 254 (4)) was fenced on both sides 
 where adjacent to a public liighway. The plaintiff's cow" was turned 
 out of its stable to pasture on unenclosed land and wandered along the 
 public highway (which highway ran parallel to the railway) until it got 
 upon the property of the defendants, througli their defective fence, where 
 it was killed: — Held, (1) that the defendants had not established upon 
 the evidence that such animal had got at large {hrough the negligence or 
 wilful act or omission of the plaintiff. (2) That the defendants having 
 erected the fence although not bound by law to do so and maintained 
 it before and since the passing of the Act, are not exempted from lia- 
 bility to the plaintiff under s. 254 (4). 
 
 .Quinn v. Can. Pac. By. Co., 8 Can. By. Cas. 143. 
 
 Damage to cbops by animals — Access fbom right-of-way — Liability. 
 
 S. 254 of the Railway Act, 1906, requires the railway to fence its right- 
 of-way under certain conditions, and subs. 3 provides "such fences . . . 
 shall be suitable and sufficient to prevent cattle and other animals from 
 getting on the railway." S. 427 provides that "every company omitting 
 to do any act or thing required to be done ... is liable to any person 
 injured thereby for the full amount of damages sustained by such omis- 
 sion": — Held, that where the railway company had not fenced its right- 
 of-way adjacent to the plaintiff's lands, and cattle came in on such lands 
 and caused damage to crops by reason of the company's neglect to erect 
 fences, the railway company is liable notwithstanding that the rest of 
 the lands are not enclosed by a "lawful fence." fRcniarks on Fence Or- 
 dinance (X.W.T. 1903, 2nd Session, c. 28), subss. 2, 7.] 
 
 Winterburn v. Edmonton, Yukon & Pacific By. Co., 9 Can. By. Cas. 1, 
 1 Alta. L.B. 92. 
 
 [Affirmed in 1 Alta. L.R. 298, 9 Can. By. Cas. 7; considered in Bros 
 V. Edmonton Y. & P. By. Co., 2 Alta. L.B^ 381; White v. Grand Trunk 
 Pac. By. Co., 2 Alta. L.B. 546; Hunt v. Grand Trunk Pac. By. Co., 18 Man. 
 L.E. 609, 613, 10 W.L.B. 581.] 
 
 Omission to fence — Liability — Damage to adjoining landowner oc- 
 casioned BY ANIMALS — HiSTORY OF LEGISLATION. 
 Where a statutory duty is imposed, neglect of the duty gives the party 
 damnified thereby a right of action, unless the person damnified is ex- 
 eluded from a particular class of persons who are alone intended to be 
 benefited by the statute. The fences required to be erected by the rail- 
 
FATAL ACCIDENTS ACT. 393 
 
 waj companj ondcr & 254 of tlw Railvay Art. 1906^ are for all parpoen 
 vhirh they maj srrre. and eonsequentlr, br rirtue of & 427. the companT 
 ia liable for all daniagc of whaterer kind resulting from the omissioo 
 to fence: — Beld, aflBirmiag the jadgment of Harrer, J., that *^here the 
 railvajr eompanv had not fenced its right-of-way. adjacent to the plaintiff's 
 land's, and cattle came in on such lands, and caused damage to erofK^ by 
 reason of the company's neglect to erect fences, the railway company is 
 liable notwithstanding that the rest of the lands are not enclosed by a 
 -lawful few*.'^ Per Stuart, J.:— The Fence Ordinance (X.W.T. 1903. 
 2nd session, e. 28 1 has no application to a case where it is the duty of 
 the person charged with damage to maintain that portion of the fence 
 through which animals doing damage hare entered. It makes no diff- 
 erence whether the rest of the lands are fenced or not. History and ef- 
 fects of the pleas of "Xot guilty."' and "Xot guilty by statute," traced 
 and discussed. The necessity of noting in the margin of the plea, the 
 statute permitting the plea, and the particular statute relied on. dis- 
 cussed, with remarks ab inconTenienti in respect of these pleas: (Toll 
 T. Can- P»c Ry. Co.. 1 Alta. L.R. 244. 8 Can. Ry. Cas. 291. quaere]. 
 
 Winterbnm t. Edmonton, Yukon t Pacific Ry. Co., 9 Can. Ry. Cas^ 1, 
 1 Jklta. L-R. 298. 
 
 DCTT TO FEXCE — ISJCBT TO CBOPS CJiCSED BT CATTUE STRATIXG. 
 
 The duty of a railway company to provide trader s. 2^ of the Railway 
 Act, 1906. fmces and cattle guards suitable and sufficient to prevent cat- 
 tle and other animals from getting on the railway, is prescribed only 
 to protect the adjoining landowners from loss cau^ied by their animals 
 being killed <Mr injured <m the track; and. notwithstanding the general 
 language of s. 427 of the Act which gives a right of action to anyone 
 who suffers damages caused by the breach of any duty prescribed by 
 the ikct. an adjoining owner whose crops are injured by cattle straying 
 on to his land frmn the railway track, in consequmce of the absence of 
 fences and cattle guards, has no right of acti<m against the railway 
 eampany in respect of such injury. Richards, .J„ dissented. [James v. 
 G.T.R.,'31 Can. .S-C-R. 420; Gonis v. Scott (18741. L.R. 9 Ex. 125, 
 and McKellar v. C.P.R. 1 1904 1. 14 Man. L.R. 614. followed: Winterbum 
 V. Edmonton Ry. Co. (1908». 8 WX.R. 815. not foUowed.] 
 
 Hunt V. Grai^ Trunk Pacific Rr. Co., 9 Can. Rv. Cas. 365, 18 Man. L.R. 
 •03. 
 
 Agkeemext — ^PnoTBmox of railway fboii axivals — Gate left orex — 
 Escape axb DtsTBrmox of aximal 
 A siding was constructed by the defendants from the main line of 
 their railway to the plaintiffs' miUs. which stood in a two-acre enclosure 
 bounded on one side by the defendants' fence. At the point where the 
 siding entered the plaintiffs' land the defendants constructed and main- 
 tained a gate across the siding and connected with the fence on each side: 
 this gate was usually kept shut by the defendants* servants except when 
 taking ears to or from the mills, but it was not alleged that there was 
 any agreement that the defendants should keep it shut. The gate was 
 left open by the defmdants-' servants on one occasi<m after they had 
 removed a car from the siding, and the plaintiffs' horse, which was loose 
 in the two-acre yard, escaped through the gate and was run over by a 
 train of the defendants on the permanent way. In an action to recover 
 damages for the loss of the horse, the jury found that the injury wa-« 
 caused bj the negligence ai the defendants' serrants in leavii^ the gate 
 
394 FATAL ACCIDENTS ACT. 
 
 open. A clause in the agreement between the parties concerning the use 
 and maintenance of the siding provided that the plaintiffs should "pro- 
 tect the railway of the company from cattle and other animals escaping 
 tliereupon from such portion of the siding as may be outside of the lands 
 of the company": — Held, that this meant that the plaintiffs should keep 
 animals from escaping from that part of their land occupied by the siding 
 to the property of the company; the defendants owed no duty to the plain- 
 tiffs to keep their animals away from the line of railway; the placing of the 
 gate by the defendants, their custom of closing it, and the complaints of 
 the plaintiffs that it was sometimes left open, could not create such a 
 duty; and, therefore, there could be no negligence on the part of the de- 
 fendants. Per Riddell, J., that in the construction of the agreement it was 
 of no significance that the clause above quoted was in the printed form of 
 the defendants, a great part of the form having been struck out and much 
 matter written in; also, that the practice of importing implied terms into 
 a contract is a dangerous one; and there could be no implication here of a 
 condition that the plaintiffs would be relieved from the agreement if the de- 
 fendants left the gate open. [Judgment of the County Court of Middlesex 
 affirmed; Britton, J., dissenting.] 
 
 Woodburn Milling Co. v. Grand Trunk Ry. Co., 9 Can. Ry. Gas. 374, 
 19 O.L.R. 276. 
 
 Upkeep of fences along right-of-way — Animals killed while wan- 
 dering ON TRACKS — Fences in bad state of repair. 
 
 Railway companies who do not maintain their fences and gates in the 
 condition provided by law, are at fault and liable for the loss of animals 
 who thereby gain access to tlie tracks and are killed. 
 
 Bouchard v, Quebec Ry. Light & Power Co., 14 Can. Ry. Cas. 241, 41 
 Que. S.C. 385. 
 
 Breach of statutory duty — Liability. 
 
 A railway company which fails to maintain such fences and gates, as 
 are required by the Railway Act of Quebec, commits a breach of duty 
 and will as a result be presumed responsible for any damages caused to 
 animals escaping on to its right-of-way unless it can rebut absolutely the 
 statutory presumption that it is responsible for the killing of the animals 
 on the track. [Can. Pac. Ry. Co. v. Carruthers, 39 Can. S.C.R. 251, 7 
 Can. Ry. Cas. 23, and Rogers v. G.T.P. Ry. Co., 2 D.L.R, 683, specially 
 referred to.] 
 
 Rowe V. Quebec Central Ry,, 14 Can. Ry. Cas. 245, 3 D.L.R. 175. 
 
 Cattle guards — Failure to provide. 
 
 In an action to recover the value of a horse claimed to have been 
 killed by an engine of the defendants' railway, the fact that the state- 
 ment of claim alleges an absence of cattle guards at the railway crossing 
 on plaintiff's land, does not preclude the plaintiff from relying on evidence 
 adduced at the trial as to a defective fence, where the statement of claim 
 does not specifically allege that the loss of the horse was due to the ab- 
 sence of cattle guards, but alleges in general terms that it was due to the 
 negligence of the defendants. 
 
 Stitt V. Can. Northern Ry. Co., 15 Can. Ry. Cas. 333, 23 Man. L.R. 43, 
 10 D.L.R. 544. 
 
 Animals on tracks — Engineer's dxtty. 
 
 Prima facie there is no duty on the engineer operating a railway train 
 who discovers stray animals in danger on the right-of-way over which he 
 
FATAL ACX'IDEXTS ACT. 395 
 
 is fiwiMg to stop Jus txaim ior tkt i w uf i ttn. of Jilting Trfc •■■iil> frva 
 tke track si» as to swne tihoB firaai mjaiy. 
 
 %arie T. Gmd Tk^ FkWc Rv. Cou. 17 Caa. Br. Caa. 71, 17 DXJt 
 387. 
 
 GL SrtKtiic Fehol 
 See ftb* R- fL 3S7.. mmi IK, t^ 396. 
 
 As tke Kuikwr lav iw|iim n the Abit ■poa ruhcaj cnwfiiMws of beep- 
 ing; m fBftr icfur tk fans •■ eadi aidr <Mf the fuNrit tnwk. it Sol- 
 loas tihst tkejr aie liiHi is iIbwbj.! i for imfrnty to as aaJMl oa ■mial 
 «f «iK «f ttoe Mu m x» ^amg kffc vilk aa aafnitoetnl «fau^ of JwJkka t 
 aae to >aiMr aa laiwil to pass thniwj.h., evca ahu a aaeii opeaiag is at a 
 phce adwre fkov is a dStch for dran^tW lud «■ eadk aMe of the rail- 
 
 Hm* t. Qwhee Kj., L 4 P. Cn^ 2 Cu. Er. (>& 367^ 21 Qoe. S.C £7. 
 
 CJuniK cacnxsc ox io HiCHarAT as» isimx — ^Xekucesck. 
 
 He plaiBtiff was ti» onraer of a field, beodedl oa ow side Igr the mub 
 liae ml tke defBadaat^* nilaa j. aad oa the other aide bjr a saitieh tfaeic^ 
 aad abattiBg am a h^hway. vioch was cioiatJ Inr hotk tiacis. O aiag to 
 a defect n the icMe h Ua m a the switch aad the* field. IOk pbiatif s cw 
 caayedfroM the fieU «■ to the switxh. arhidh Ae craand aad ^oii^ over 
 the had of a pritate ovaer, which aas aot feaccd off fra^ the switch, aad 
 thea ahaig a laae :»he waA am to the h^vhvaj aad thea foum id t d ahag it 
 to Ifte ania liae. vfaewie br nasoa oi a defectiw cattle "aard »he giot as 
 to the tiack aad «a» killBd hr a pad«»^ tiaiar— fleUL that tie d iliad 
 aids wre liahfe then«M^. [Giaad Tiaak Rr. Co. t. Jsmcs, 1 Clu. Rr. 
 CkiL ^BS, Asti^aished.] 
 
 DiTidmB T. Gnad Tradk Rr. Co, i Caa. Rr. Ca& 371. 3 O.I-.R. 374. 
 
 |Disttiii^!aiAeil ia FcmMa t. Caa. PSie. Rj. Cou, 7 OJ..R. 2»4.| 
 
 RiasEa ansE fexcc — IxuBfcAr aAr^cEKS of — Ixiwrmr to «»$«; tvexe- 
 
 The eoBpaaj aaiataiaed aloBg; its Uae of laiHnnr a huhed wire 
 an- feaee, arithoaft aaj poh^ faoaiJ or other caffdag eaanHCting the paste; 
 phiatifis* hoiae.. piiiittd ia their firid adjoiaiag, heeaaw fr^UbBmei. frmm 
 saiae caaoe aaexplaiaed, aad raa iato the icace, le ce iiia g iajaries aa ae- 
 Maat of vUA it had to be killed:— fldd. that the iieace aas aot iaher- 
 eathr daageroas. aad theitefare the cnamunr aas aot liable. The fnt is 
 whether the feaer i^ dia^iions to otJiaarr stock sader ordiaaix coadi- 
 tioas. aad aot wbether it i$ daa^ienias to a biJii a g home. Jad^eat off 
 IflSHT. Co. -J- mrracd. Ircii^. J. d iiw e atia p. 
 
 Pbth aad Ballard ▼. Graad Forks Jt Kettle River VaOrr Rr. Cbu, 3 
 Caa. Rt. Ca*. 35L 1© R.CJL 2». 
 
 IxraowB lAxasL 
 
 Thfve was a d ci et Uw g fowe, which dt fe a daat* had erected, aloaig the 
 liae kiaua their right-of^waj aad pbiatidTs Isad Owia^ to ito de- 
 fects the cow $ot oa to the lig^id^-way aad was kBkd hr oae of the d Oiad 
 aats' tiaia^. Ihe trial Ja^ge held that defeadaab w«xe ^ider a datf to 
 ■liaiiia the feaee aad gave jadgawat ia piaiatiFs fsToar: — field, af- 
 lammg jadfeMiai of tiv trial Goat, tku aader & 199 of the RailwaT Jkef^ 
 IMOv there is a datj cast aa a laflwanr coapaaj to finee where the ad- 
 joau^g laad is other (1| iaipi s ^e d or (21 settled aad csM^osed. 
 
 Dr^er r. Gu. Xocthera Rr. Gou, 3 Caa. By. Cas. 332, 13 liaa. I..R. 38S. 
 
396 FATAL ACCIDENTS ACT. 
 
 [Not followed in Schellenberg v. Can. Pac. Ry. Co., 16 Man. L.E. 155; 
 ii'ferred to in McLeod v. Can. Northern Ry. Co., 9 Can. Ry. Cas. 39, 18 
 O.L.R. 616.] 
 
 Animals killki) on track — Knowledge. 
 
 Four horses, the property of the plaintiff, escaped throuf^h an opening 
 on to a highway, thence through an opening on to a neighbour's land and 
 thence through an opening in defendants' fence to tlic track where they 
 were injured by one of defendants' trains: — Held (aftirniing Richards, J.), 
 6 Can. Ry. Cas. 13, 3 W.L.R. 455, that under the Railway Act, 1903, as. 
 199, 237, subs. 4, the defendants were liable. 
 
 Carruthers v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 15. 16 Man. h-B.. 323. 
 
 [Affirmed in 39 Can. S.C.R. 251, 7 Can. Ry. Cas. 23; followed in Bid 
 deson v. Can. Northern Ry. Co., 7 Can. Ry. Cas. 17 ; adhered to in Clay 
 ton V. Can. Northei-n Ry. Co.. 17 Man. L.R. 431; referred to in Atkin v. 
 Can. Pac. Ry. Co., 18 Man. L.R. 619; Higgins v. Can. Pac. Ry. Co., 18 
 O.L.R. 12; McLeod v. Can. Northern Ry. Co., 9 Can. Ry. Cas. 39," 18 O.L.R. 
 til6; Coen v. New Westminster South'. Ry. Co., 12 B.C.R. 424; McDaniel 
 V. Can. Pac. Ry. Co., 13 B.C.R. 53.] 
 
 Animals at labge — Trespass from lands not belonging to owner. 
 
 C.'s horses strayed from his enclosed pasture situated beside a high- 
 way which ran parallel to the company's railway, entered a neighbour's 
 field adjacent thereto, passed thence upon the track through an opening in 
 the fence which had not been provided with a gate by the company, and 
 were killed by a train. There Avas no person in charge of the animals, nor 
 was there evidence that they got at large through any negligence or wilful 
 act attributable to C: — Held, affirming the judgment appealed from (16 
 Man. L.R. 323, 6 Can. Ry. Cas. 13). that, under the provision of subs. 4, 
 of s. 237 of the Railway Act, 1903, the company was liable in damages for 
 the loss sustained notwithstanding that the animals had got upon the 
 track while at large in a place other than a highway intersected by the 
 railway. 
 
 Can.' Pac. Ry. Co. v. Carruthers, 7 Can. Ry. Cas. 23, 39 Can. S.C.R. 251. 
 
 [Referred to in Rowe v. Quebec Central Ry. Co., 14 Can. Ry. Cas. 245, 
 3 D.L.R. 175; followed in Parks v. Can. Northern Ry. Co., 14 Can. Rv. 
 Cas. 247.] 
 
 Damages to trespassing cattle. 
 
 A railway company is liable for damages for killing a cow which was 
 at large on the highway with the knowledge of the owner contrary to the 
 Railway Act, 1903, and which strayed from the highway to the land of D., 
 and from there to the railway track through a defective fence which the 
 defendant company were obliged to maintain. The company are liable for 
 damage done to the land of an adjoining owner by cattle of a neighbour 
 tresj)assing by reason of a defective fence which it was the duty of the 
 company to maintain. 
 
 Lizotte V. Temiscouata Ry. Co., 6 Can. Ry, Cas. 41, 37 N.B.R. 397. 
 
 [Observed in Winterburn v. Edmonton, Y. & P. Ry. Co., 1 Alta. L.R. 
 97; referred to in McLeod v. Can. North Ry. Co., 9 Can. Ry. Cas. 39, 18 
 O.L.R. 616; relied on in Winterburn v. Edmonton, Y. & P. Ry. Co., 1 Alta. 
 L.R. 309.] 
 
 « 
 Animal killed bt fall from bridge. 
 
 The plaintiff was tlie owner of a farm adjoining the defendants' railway. 
 The tenant of the plaintiff made an opening in the railway fence without 
 
FATAL ACCrDENTS ACT. 397 
 
 Oe kawriE^ge of the 4rffitftT tkroq^ vkidi m fcv boors after tke plaia- 
 til^ kocae cwayw i «■ to the xmihraLT, «]hi« it «m» killed br fallii^ finiai 
 a fcrii^:— Hdi, tkt the Afiaiiali vcre aot liaUe for tlM-'aet of a thini 
 pavtT (the tcaaat* ia M jfciag aa opnua^ ia the fnMe. 
 
 FWeDias t. Gtaad Traak Rr. Co. « Caa. Rj. Cas. 47. 
 
 [FoOoaed la Atkias r. Caa.' Par. By. Col, 10 Can. Rr. Casv iM, IS 
 Maa. UEL CS4, 11 irjL.R. 1.] 
 
 AsruAis Kiixfa ox tsacs — Esc Art lo hich«-at — Otex cate — Fcvcc ax» 
 CAiK xor or srTFiciEXT height. 
 
 The piaiatif* hw^sc* Mcaped froai his idd br joBpia^ over a fcace of 
 iaiialfcawt he^^t aad eonag apoa the h^hmaj. mat a ^ort distaare. ptt - 
 «■ to the track thn>a[*h aa ap ea •ato kadiap to dttrada ats' statioB •rooad. 
 ahne thej wie killed br a traia : — ^HeUL that the ewpaay was aot ae^li- 
 geat br failiag to keep their ^ate do^ed throi^h vhieh the hones r eac h e d 
 the track, aad the acipilgeace of the pfauatiff ia haria^ a fence oi iasidB- 
 cieat hei^ft was the caaie (rf the acndeat. 
 
 Laporte r. Caa. Xorthen Qae4>ee Rr. Co^ 8 Caa. Rr. Cas. 137. 
 
 [Reversed ia 36 Que. S.C. 17»-1 
 
 Cattlk at i.AaeE — ^Axtmai. kilxjed bt fauxxc raoM aaiLarAT -^T^nr 
 
 A heifer, while bcaag fed ia the stable of aa hotel ad^ceat to the de- 
 JadaaAif raOaaj, escaped iato the rard of the hotel aad froai theace oa 
 to the deiea da atg' lailarqr thnm^ a d^ertire feace. The aainal va? 
 ■Inaig the track to- the atta aho had her ia char*e. tiD i^e caaM 
 hnigt, aad tolliag: ttnm^ fieO a distaace of abovt 30 feet to t&e 
 ith aad was so sercnlT iajnred that she had to He killed: — 
 Held, that Ae defeadaats avrc aot liable aader the Railvar Act. 190S. 
 a. IZI (2), tte aanaal aot hari^ beea kilkd Inr the defeadaats' traia. 
 [Tone ▼. Erv <t Hnroa Rr. Co. ±7 O.R. ^30. folkmvd.] 
 Jkmi^lms r. Graad Tniak Rr. Co, 9 Caa. Rr. Cas. 27. 
 
 Smexr escapoec to Aaioixixc fakm — Orcxixe rsocs gaxs at fakm caoss- 
 zsB — OrcAiAGS rs rcscz. 
 Jht piaiatiff's dwep^ without aay ae$4if?cace oa Us part, escaped frooi 
 his farm iato that at the adjoiaia* ovaer. thrM^ which the drfradaanr* 
 raihrar laa, aad theace hariag got o^poa the railaar- track acre killed. 
 Hoe va» a gate at a farm cr o ssi ag oa the adjoiaiag owaer's farm which 
 had beea raided br the defeadaato at the reqaest of sack adjoiaio^ owaer. 
 kariag aa opraiag aader the gate «affirieat far the sheep to get throogh. 
 These were also opcnags ia the feace throogh which the Aeep coold bare 
 soft apoa the track; bat there was ao fiadiag <rf the jmrr as to the place 
 at which the sheep got apoa the track: — Held, that the defeadaate were 
 Eahle aader s. 3M 141 of tW Raflwar Art. 1906. crea assomia^ Aat the 
 sheep got apoa the track throagh the opeaiag aader the gate. The effect 
 off the words coataiaed ia the sectiaa, aaaajr. ~at large whether on the 
 hi^waj or aot.'^ is that the sectioa is aot liauted to cattle beiag at large 
 aa the hi^war aad theace gettiag upon the railwar fwemiiies:. 
 ~ r. Caa- Par. Rr. Co_ 9 Caa. Rr. Cas. M. IS O.LR. 12. 
 
 Gat isrr ix fexce — ^Asimals — Ixjcar to — Whe\ ~at labce^ — Cosrws- 
 
 CraST XBGUCEXOE — LaXDS EXCLOSSBl 
 
 The ^aiatiffs had lea»d a field, oa which ther pastured thrir horse;?, 
 adjaiaiaie the track of the drfeadiats' railwar, from wfakh it was sefM- 
 ratcd bjr a feace «ceted hr the defcadaats.. ia which ther had left a gap. 
 threap which the horses strajred oa to the track, where ther were nu 
 
398 FATAL ACCIDENTS ACT. 
 
 down by a train and killed: — Held, tliat the horses were not "at large" 
 within the meaning of s. 294 of the Railway Act, 1906, which was in 
 force at the date of the accident, and which does not cover the case of 
 such oAvners as the plaintiffs, wlio wore using their pasturing land adjoin- 
 ing the railway track in the usual manner for tlie purpose of keeping and 
 feeding their cattle, nor could such owners l)e considered as "suffering" 
 their animals to "enter upon" the railway, and so losing their right of 
 action under s. 295 (e). (2) There is no express provision in the Rail- 
 way Act, ]!)06, equivalent to s. 16 of the Consolidated Railway Act of 1879, 
 as amended by 46 Vict. c. 24, s. 9 (D. ), under which it was decided in 
 Davis v. Can. I'ac. Ry. Co., 12 A.R. (Out.) 724, that the question of con- 
 tributory negligence did not arise where the proximate cause of the dam- 
 age was the omission of the railway company to make or maintain fences 
 as required by the statute. (3) Notwithstanding the absence of an express 
 provision such as is above referred to, the defendants were liable to the 
 plaintiffs for the damages sustained by them, by reason of the duty im- 
 posed upon the defendants by s. 254 of the Railway Act, 1906, to "erect 
 and maintain upon the railway" fences "suitable and sufficient to pre- 
 vent . . . animals from getting on the railway," for breach of which 
 duty a statutory right of action against the company is given by subs. 
 2 of s. 427 of the Act, to any person injiu'ed. for the full amount of dam- 
 age sustained thereby. (4) Prima facie the fence was erected by the 
 company in accordance with their statutory obligation to do so where 
 the lands througli which the railway passes are "enclosed and either set- 
 tled or improved" (s. 254, subs. 4) ; and the onus laj' on the defendants to 
 shew that at the time when the fence was erected it was not "required" by 
 the Act. Judgment of Clute, J., affirmed. [New Brunswick Ry. Co. v. 
 Armstrong (1883), 23 N.B.R. 193, approved and followed.] 
 
 McLeod v. Can. Northern Ry. Co., 9 Can. Ry. Cas. 39. 
 
 [Followed in Palo v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 1.] 
 
 Animals killed on track — Defective Swing-gate. 
 
 Action to recover damages for loss of horses killed by defendants' train, 
 where it crossed plaintiflF's farm. Evidence was received as to plaintiff's 
 liorses getting on defendants' tracks by reason of a defective gate which 
 it was the defendants' duty to maintain. The jury found in plaintiffs' 
 favour, and Boyd, C, entered judgment accordingly. Divisional Court 
 affirmed above judgment on the ground that defendants had not discharged 
 their statutory obligation to maintain the gate with proper hinges and 
 fastenings, as required by Railway Act, 1906, s. 254, and there being no 
 evidence of contributory negligence as provided for by s. 295, 
 
 Dolsen v. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 246. 
 
 D. Animals at Large. 
 
 Stbaying animal killed ox track — Municipal by-law prohiditing ani- 
 mals RUNNING AT LARGE — VALIDITY — DEFECTIVE FENCES. 
 McDonnell v. Inverness Ry. & Coal Co., 4 E.L.R. 365 (N.S.). 
 
 Damage to trespassing cattle. 
 
 Where the plaintiff allowed his cattle to run at large upon the highway, 
 and a calf got upon the railway track from land adjoining the plaintiff's 
 at a place where there was no fence along the track, it was held that the 
 calf got at large througli the negligence or wilful act or omission of the 
 plaintiff, and therefore under s. 294, subs. 4, of the Railway Act, 1906, 
 he could not recover. 
 
 Dixon v. Can. Pac. Ry. Co., 39 N.B.R. 305. 
 
FATAL ACCIDENTS ACT. 390 
 
 AXDCALS gnin* OX TSACK — IXUHUTT. 
 
 Where aninuLU are nm over bf an o^iiie or traia on a raOwaT frack. 
 ike oans is on the railvaj- coMpaaj. mder sobs. 4 of s. 294 of tke BaOvaT 
 Aet, 1906, to shev that tke a«niiala got at Urge throogh the wL^HgLm t st 
 or wOfnl act or oonissian of the ovner. [Parks t. Can. Xorthera Rj. Co^ 
 15 WJLR. 445, IS WX^ 118, foUoved.] 
 
 Foster v. Can. Pat Rt. Co, 19 WXJL €23. 
 
 STRATIXG AXXMJOJS — DCTT AS BEBABOS TIESPASSSSS HEXOIXG STOCK. 
 
 A raihrajr conpanr is aot ehai]ged with anj doty in rv^ieet of aroidii^ 
 iBJmT to aaimak wron^fnllT upon its line of railwav nntil such txBe as 
 thieir pre s e a c e is discovered. [1 WX.R. 356. 6 Terr. UEL 168, rer e r a ed.] 
 
 Cmm. Pae. Rr. Co. t. Eggleston. 36 Can. S.C.R. 641. 
 
 [GoMiderad'iB McLean t. Rndd. 1 AI~R. 50$; allied in Coca t. Xev 
 WtaAmmsber Soothera Rj. Co., 12 B.CJL 423l] 
 
 ACTKKS FOB BOSSES KIIJ.ED OS TmACK. 
 
 In an action for «**— *g— for the value of horses kiUed br a train, the 
 plaintiff need not plead ni^iigeaee of the railvav cmnpanv under the Rail- 
 war Act. 1903. lat the defcBdants auiT plead the general issue and maj 
 ghre the Railwar Act and special statutes in eridenee thereunder. 
 
 Rocheleau r. Grand Trunk Ej. Co., 9 Que. PJS. 402. 
 
 AXUfAUS OS TKACK — ^WlLFTI. ACT OB OMISSIOX. 
 
 Action to recover damages for horses killed on defendants* track. Tt 
 was admitted that at the place vhere the animals reached the railvar 
 the defendants vere under no liability to fence, under snh& 4 of s. 2->4 
 «f the Railway Act, 1906; and, !■ fact, they had not fenced. Hie plain- 
 tiff contended that he was entitled to mover mder subi<». 4. 5 of s. 294: — 
 Held, that the application of sabss. 4. 5 of s. 294 is not restricted to eases 
 vhcre the railway company are under a liability to fence: and that, under 
 these snhsectioBS. the railway company can escape liabilitr only by shew. 
 lag that the animals got at large through the acgligcvee or wilful act oi 
 OBunsion of the owner. [History of the legislation and review ai the 
 aarUMMitieSw] And held, npoa the evidence, that the animals, in the orcnm- 
 iilaa»*s set out below, were not at lai]ge through the atgi igcate or wilful 
 act cr «— iiwiiw of the plaintiff. 
 
 Parks T. Can. Xorthera Rj. Cou, 13 WXJEL 445 (Una.). 
 
 IXJCBIES TO STKATHCG AXZlf ATS. 
 
 Plaintiff left a number of horses la a pasture partiaOr enclosed, heing 
 f>aeed in two sides;, bounded by a diaHow cre^ on the third side and un- 
 eadosed oa the fourth. He had been using this pasture for the purpose 
 of keeping his horses over night for some years, and up to the time in 
 qfacatiaB aoae had ever strayed out. On this ooea.^'ion tlie horses beii^ 
 left for sane days unattended to on account of a severe storai l^t tike 
 pasture, there being no evidence as to bow they escaped, and strajed oa 
 to the railway of defendants, where two of tbnn were killed by a train, 
 and one so seriously injured that it had to be destroyed. In an aetioa 
 for damages for the loss of the aaimals: — Held, that the phiatiff did aot 
 take reasonable preeantions to safdy keep the horses in qoestioB aad pre- 
 vent than from getting at large, and could not therefore, under the pro- 
 visions of subs. 4 of s. 237 of the Railway Act, 1903, recov er tlie value 
 of those killed, tlMte Ytamg ao eridcaee of negligmce oa the part of the 
 defeadaats. (2) Tkat sain. 4 of s. 237, whidi reads *^rhen any cattle or 
 other animals at large i^oa the h^way or otherwi^, get upon the pn^ 
 
400 FATAL ACCIDENTS ACT. 
 
 erty of the company and are killed or injured by a train the owner . . , 
 shall be entitled to recover" means any cattle or animals at large upon 
 the highway or upon other places than the highway. 
 Murray v. Can. Pac. Ry. Co., 1 S.L.R. 283. 
 
 Neglect to fence — Escape of animals from pbivate way to track — Es- 
 cape FROM HIGHWAY. 
 
 Plaintiff's cattle, allowed to be at large by municipal by-law, strayed 
 upon a path or track (not being a highway within s. 271 of the Railway 
 Act, 1888), and thence from a farm lot, upon the unfenced railway track, 
 and were killed: — Held, that the defendants were liable. Certain other 
 cattle of the plaintiff's also strayed and entered upon the track from a 
 highway crossing, and were killed: — Held, that the defendants were not 
 liable. [Nixon v. Grand Trunk Ry. Co., 24 O.R. 124; Grand Trunk Ry. 
 Co. V. James, 1 Can. Ry. Cas. 422, followed.] 
 , Fensora v. Can. Pac. Ry. Co., 2 Can. Ry. Cas. 376, 2 O.W.R. 470. 
 
 [Varied in 7 O.L.R. 254; 3 Can. Ry. Cas. 231; 8 O.L.R. 688; 4 Can. Ry. 
 Cas. 76; followed in Carruthers v. Can. Pac. Ry. Co., 16 Man. L.R. 328.] 
 
 Duty to maintain — Cattle running at large — Crown lands — Powers 
 OF municipalities. 
 
 The Railway Act, 1888, as amended by 53 Vict. c. 28. s. 2, enacts that, 
 if in consequence of the omission of a railway company to erect and main- 
 tain a fence, "any animal gets upon the railway from an adjoining place 
 where under the circumstances it might properly be, then the company 
 shall be liable to the owner of every such animal for all damages in re- 
 spect of it caused by any of the company's trains or engines." The plain- 
 tiff's cattle running at large in a municipality, as by one of the by-laws 
 they were permitted to do, got upon Crown lands, and from the Crown 
 lands on to the railway, and were killed on the track by one of the defend- 
 ants' trains: — Held, that by virtue of the by-laws permitting running at 
 large, the cattle were properly on the Crown lands, and hence the defend- 
 ants were liable under the above enactment. Per Meredith, J. (dissent- 
 ing) : — Municipal bodies have no such control or power, either over private 
 property or Crown lands, as to enable them to give a right to the cattle 
 to be where they were when they strayed on to the railway track. Vary- 
 ing 2 Can. Ry. Cas. 376, 2 O.W.R. 479. 
 
 Fensom v. Can. Pac. Ry. Co., 3 Can. Ry. Cas. 231, 7 O.L.R. 254. 
 
 [Affirmed in 8 O.L.R. 688, 4 Can. Ry. Cas. 76.] 
 
 Crown lands — Powers of municipalities. 
 
 The Railway Act, 1888. s. 194 as amended by 53 Vict. c. 28. s. 2 enacts 
 that, if in consequence of the omission of a railway company to erect and 
 maintain a fence, "any animal gets upon the railway from an adjoining 
 place where under the circumstances it might properly be, then the com- 
 pany shall be liable to the owner of every such animal for all damages in 
 respect of it caused by any of the company's trains or engines," and that 
 "no animal allowed by law to run at large shall be held to be trespassing 
 on a place adjoining tlie railway merely for the reason that the owner or 
 occupant of such place has not permitted it to be there." Tlie plaintiffs' 
 cattle running at large in a municipality, as by one of the by-laws they 
 were permitted to do, got upon Crown lands, and from the Crown lands, 
 on to the railway, and were killed on the track by one of the defendant's 
 trains: — Held, that notwithstanding the by-law permitting running at 
 large, the cattle were not properly on the Crown lands; yet the defendants 
 could not defend themselves by saying that they were trespassing there, 
 
FATAL AGCIDEXTS ACT. 401 
 
 bnt were liable under the abore enactmeBts. The authority of a mnaici- 
 pal eouncil under R-S.O. 1897, c. 223. s. 546 (2< extends no further than 
 to allow the running at large upon the roads and highways of the muni- 
 dpalitT. 3 Can. Rt. Caa. 231. 7 O.UR. 254. aflBrmed. 
 
 Fensom t. Can. Pac, Ry. Co., 4 Can. Ry. Cas. 76, 8 AUL 688. 
 
 Cattle at j-amge — lyntasBcno^ c* kaii.soai> ast> highwat. 
 
 On the proper construction of sl 237, subs. 4 of the Railway Act, 1903. 
 while it is unlawful for the owner of cattle to permit them to be at lar«e 
 within half a mile of the intersection of a kigfaway with a railway, and 
 while if killed at the intersection, the railway is exempt from liability — 
 if by reason of the failure of the company to comply with the statutory 
 requirements as to fencing. ccMistmction of cattle guards, etc., the cattle 
 reach the line of railway and are killed or injured at a point on the rail- 
 way other than the intersection, the ctmipany are liable, unless they can 
 establish affirmatirely that the owner was guilty of negligence. The mere 
 fact that the cattle were at large or the fact that they were not in diai]ge 
 of a competent per&on does not prevent the plaintiff's reeoTery. 
 
 Arthur v. Central Ontario Ry. Co., 5 Can. Ry. Cas. 318, 11 6.L.R. 537. 
 
 [Considered in Carruthers T.'Can. Pac. Ry. Co., 16 Man. LJL 329; fol- 
 lowed in Lebu t. Grand Trunk Ry. Co., 12 OJL.R. 590. 5 Can. Ry. Cas. 329; 
 referred to in McDaniel t. Can. Pac. Ry. Co.. 13 B.C.R. 52. See Bacon v. 
 Grand Trunk Ry. Co.. 5 Can. Ry. Cas. 325, 12 Oi-R. 196; followed in 
 Parks T. Can. Northern Ry. Co., 14 Can. Ry. Cas. 247.] 
 
 AXIMAL KnXES ox TRACK — XeGLMESCK. 
 
 In an action for damages for the loss of a horse killed by a train upon . 
 the defendants' track, the jury found that the horse was killed upon the 
 property of the defendants, and that the defendants were responsible for 
 that: — Held, that upon the proper constructi<m of s. 237, sul». 4, of the 
 Railway Act, 1903, a finding that the horse was killed upon the property 
 oi the defendants was sufficient to entitle the plaintiff to recover unless it 
 was shewn In- the defendants that the animal got at large through the 
 B^ligence of the owner or custodian, and such negligence was sufficiently 
 negatived, in view of the Judge's charge, by the finding of the jury that 
 defendants were responsible. Judgment of the county Court of Sinwoe 
 reversed. 
 
 Bacon t. Grand Trunk Ry. Co., 5 Can. Ry. Cas. 325, 12 O.LJL 196. 
 
 [Followed in Carruthers v. Can. Pac. Ry. Co.. 16 Man. L.R. 329: Cortese 
 T. Can. Pac. Ry. Co., 13 B.C.R. 323; libu v. Grand Trunk Ry. Co.. 12 
 OJ^R. 590. 5 Can. Ry. Cas. 329; referred to in McDaniel v. Canl Pac. Ry 
 Co.. 13 B.C.R. 53; vide Arthur v. Central Out. Ry. Co.. 5 Can. Ry. Cak 
 318. 11 O.L.R. 537: followed in Parks v. Can. North. Ry. Co., 14 Can. 
 Ry. Cas. 247. 
 
 •^BGUGEXCE OF OWXEK'" — "Lm^SOTBD OB SETTLH) AXD KSCrjOSKD." 
 
 Lands adjoining a railway must not only be improved or settled but 
 also enclosed before the company is required to erect fences under s. 199 
 of the Railway Act, 1903: — An owner of lands adjoining the railway, but 
 which the company is not bound to fence, cannot maintain an action under 
 s. 237 (4) for the loss of a horse killed on the railway. 
 
 Pliair T. Can. Northern Ry. Co_ 5 Can. Ry. Cas. 334. 6 O.W.R. 137. 
 
 [Commented on in Re Can. North. Ry. Co.. 42 Can. S.C.R. 475; refer- 
 red to in Daigle v. Temis«ouata Ry. Co., 37 N.BJI. 220; McLeod v. Can. 
 Northern Ry. Co., 9 Can. Ry. Cas^ 39, 18 OX.R. 616; Biddeson v. Can. 
 North. Ry. Co., 7 Can. Ry. Cas. 17.] 
 Can. Ry. L. Dig.— 26. 
 
402 FATAL ACCIDENTS ACT. 
 
 Cattle stbaying on track — Liability fob killixg — Meaning of "oth- 
 
 EEWISE." 
 Cattle being pastured in common by the occupiers of improved lands 
 bordering on the defendant company's railway found their way lo the 
 track, and were killed by a passing train of tlie defendant company. It 
 was proved that the defendants' fence along the common jjasinre was de- 
 fective, tliat the company had notice of the defect and neglected to repair 
 it, but there was no evidence as to how the cattle got on the track: — • 
 Held, that under the Railway Act, 1903, it might be inferred that the 
 cattle found their way to the track through the defendants' defective fence, 
 and a verdict for the plaintiff should have been sustained. Subs. 4 of 
 s. 237 of the Act provides that when any cattle or other animals at large 
 upon the highway or "otherwise" gets upon the property of the company 
 and are killed or injured by a train, the owner shall be entitled to recover 
 for the loss or injury from the company, unless they shew the negligence 
 or wilful act or omission of the owner: — Held, that the word "otherwise" 
 means "otherwise at large," and not otherwise at large in a place ejusdem 
 generis with a highway. 
 
 Daigle v. Temiscouata Ry. Co., 6 Can. Ry. Cas. 33, 37 N.B.R. 219. 
 
 [Referred to in McLeod v. Can. North. Ry. Co., 9 Can. Ry. Cas. 39, 18 
 O.L.R. j516.] 
 
 Animal killed on track — Negligence of owner. 
 
 Plaintiff's horses were found by defendants' section foreman on their 
 right of way about a quarter of a mile from a highway crossing. The 
 fences were in good repair and so were the cattle guards at the crossing 
 prior to a snowstorm which filled them up. The horses were killed after 
 the snow storm. There was no evidence as to how they came to their death 
 nor any evidence of external violence. It was shewn that the horses were 
 put in pasture at a distance from the plaintiflF's residence without any 
 one being left in charge and in such a position that they might easily have 
 escaped: — Held, that the plaintiff could not recover as the horses were at 
 large through his negligence or wilful act or omission. 
 
 Becker v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 29, 5 West. L.R. 569. 
 
 [Approved in Clayton v. Can. North. Ry. Co., 17 Man. L.R. 426, 7 W.L.R. 
 721, 7 Can. Ry. Cas. 355; followed in Parks v. Can. North. Ry. Co., 14 
 Can. Ry. Cas. 247; Wallace v. Grand Trunk Ry. Co., 17 Can. Ry. Cas. 64. 
 
 Pasture in open. 
 
 Plaintiff's animals were set at large to pasture in the open country, and 
 were killed at a place where the company was not bound to fence:— Held, 
 that he could not invoke the aid of s. 237, subs. 4, of the Railway Act, 
 1903. Decision of Forin, Co. J., affirmed, Martin, J., dissenting. 
 
 McDaniel v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 34, 13 B.C.R. 49. 
 
 [Followed in Power v. Jackson Mines, 13 B.C.R. 208; referred to in 
 Clayton v. Can. Northern Ry. Co., 17 Man. L.R. 426, 7 Can. Ry. Cas. 355.] 
 
 Loss of cattle straying on railways — Omission of owner. 
 
 Under subs. 4 of s. 237 of the Railway Act, 1903, which provides that 
 railway companies shall be liable for the loss of cattle killed on their 
 roads except when it is proved that such cattle "got at large through the 
 negligence or wilful act or omission of the owner or his agent," no lia- 
 bility whatever is incurred by the company for contributory negligence or 
 otherwise when the case falls within the exception. 
 
 Bourassa v. Can. Pac. Ry. Cas. 41, 30 Que. S.C. 385. 
 
 [Approved in Clayton v. Can. North. Ry. Co., 17 Man. L.R. 426, 7 
 W.L.R. 721, 7 Can. Ry. Cas. 355; followed in Renaud v. Can. Pac. Ry. Co., 
 13 Can. Ry. Cas. 358.] 
 
FATAL ACCIDENTS ACT. 403 
 
 "Xegucexce of owxol" 
 
 Where horses had hem plamd hy the plaintiff in a corral ho<iDided on 
 tke south and vest by a fence, on the east bj a creek, and not closed in 
 in anr war on the north, the creek being frozen over so that the horses 
 eoald pass over it. it was held that there was a wilful omission or ncgli- 
 genee on the part of the owner within the meaning of the statute in leaving 
 horses in ach a plaee at night, and that the owner, therefore, could not 
 recover against the railway company. The statute does not intend that 
 railway companies should be insurers against any accident which may oc- 
 cur by reason of their trains. Some duty is cast upon the owners of all 
 animals that are likely to lie placed in danger by reason of the trains, and 
 they must take reasonable precaution^ to prev^t than gettii^ at large, 
 ao that aceidetits may not happen to them. The facts are sufficioBtly set 
 oat m tke judgment of Wetmore. C. J. 
 
 MnrraT r. Can. Pae. Ev. Co., 7 Can. Ry. Cas. 351. 7 West. LJL 50 
 (Saak.). 
 
 [Beferred to in Clayton t. Can. North. Ry. Co., 17 3Ian. LJL 437, 7 
 Can. Ry. Cas. 355.] 
 
 Neeugexce of owstm — Obugatiox to fesck. 
 
 When it is proved that animals killed by a train of a railway company 
 Imd been allowed to go at large on a public road through the negligence 
 cr wilful act or omission of the owner or his agent, and. in consequence 
 thereof, got upon the right of way through a defect in the railway fence, 
 airin. 4 of 8. 237 of the Railway Act, 1903. (s. e»4 of the Railway Act, 
 ISOS), protects the company frooa any claim f<H- damages, althoi^^ the 
 company had failed to observe the requirement of s. 199 is. 254 of 1906) 
 by neglecting to keep the fence aloBg the right-of-way in premier repair. 
 S. 237 deals cinnpletdy with the question of aninwh at large getting upon 
 Ae railway track and being killed or injured, and. thaef(»e. s. 294 
 (a. 4£t of 1906 1 being only of general application, cannot be interpreted 
 so as to make the ctMapaay liable in a case in which, hr a. 237. it is ex- 
 preasly relieved from linlnlity. lIowriL C.J.A., dissenting. [Mnmcy v. 
 Can. Pac. Ry. Co. (1907>. 7 W.LJL 50: Becker v. Can. Pae. Ry. Co. 
 (1906), 7 Can. Ry. Ca& 29. and Bourassa v. Can. Pac Ry. Co. (1906), 
 7 Can. Ry. Cas. 4i. followed.] 
 
 Clayton v. Can. Northern Rv. Co., 7 Can. Rt. Cas. 355, 17 Man. L^R. 
 426. 
 
 COMI^TEXT PEBSOX IXFAXT IX CHABeE. 
 
 S. 2»4 of the Railway Act. 1906. enacts that "no horses ... or 
 other cattle dull be permitted to be at large upon any highway within 
 half a mile of i its > intersection with any railway at rail leveL unless 
 ... in charge of some competent person ... to prevent their loiter- 
 ia^ ... on such highway ... or straying upon the railway. If 
 the horses ... of any person which are at large contrary to . . . 
 this section are killed ... by any train at such point of intersection 
 . . . he shall not have any ri^t of action against any company in re- 
 qieet of the same being killed or injured.'' The plaintiff, a ^iriner, sent 
 a lad about ten years old to take fourteen cows along a public highway 
 and across the defendants' line of railway. The trains of the defendants ran 
 over and killed four of the cows, and the jury found negligence on the 
 part of the defendants, and also that the boy was a ''competent person" 
 within the meanii^ of the above section: — Held, that the plaintiff was 
 entitled to judgment. 
 
 Sexton V. Grand Tnmk Ry. Co., 9 Can. Ry. Cas. 119, 18 OJUR. 202. 
 
404 FATAL ACCIDENTS ACT. 
 
 Duty to fence — Aximai, getting on track — Open gate at farm cross- 
 ing. 
 
 If a gate in the fence at a farm crossing of a railway is left open by the 
 person for whose use the crossing is provided or any of his servants or 
 by a stranger or by any person other than an employee of the company, 
 the company is relieved by the s. 295 of the Railway Act, 190(5, from the 
 liability imposed by subs. 4 of s. 294 to compensate the owner for the loss 
 of an animal at large without his negligence or wilful act or omission get- 
 ting upon the railway track througli such gate and killed by a train. Per 
 Perdue, J.A. : — Some negligence or breach of statutory dnty on the part 
 of the railway company in respect of such gate would luive to be shewn 
 to render the company liable in sucli a case. Per Howell, C.J. A.: — If rail- 
 way fences or gates are torn down or get open by the action of the elements 
 or by some accident or default not caused by the act of man, and an animal 
 thereby gets upon the track and is killed, none of the exceptions in s. 295 
 would apply, and the company would be liable under subs. 4 of s. 294. 
 Nonsuit ordered, reserving right of plaintiff to bring another action. 
 [Flewelling v. Grand Trunk Pvy. Co. (lOOG). « Can. Ky. Cas. 47, followed.] 
 
 Atkin V. Can. Pac. Ry. Co., 'lO Can. Ry. Cas. 204, 18 Man. L.R. 617. 
 
 Animal killed on track — NEfU-iGExcE — Liahility. 
 
 The plaintiff's son, a boy of only 12, but a "competent person." was 
 leading the plaintiff's horse along a highway parallel with the defendants' 
 railway, when the horse became frightened, broke away from the boy, left 
 the highway, crossed lots, and got upon the defendants' tracks, where it 
 was killed by one of the defendants' trains. The facts, as found, were: 
 (1) tliat there was no negligence on the part of the train crew; (2) that 
 the animal did not get at large through the negligence or wilful act of the 
 owner or custodian of the animal; (3) that the lands on either side of the 
 railway at the place where the horse was killed were not enclosed or 
 either settled or improved, and there were no fences, gates, or cattle- 
 guards: — Held, upon consideration of ss. 254, 294, 295 of the Railway Act, 
 1906, that, in these circumstances, the law imposed no duty on the defend- 
 ants, and they were not liable to the plaintiff for the loss of the horse. 
 
 Seigle v. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 463, 13 W .L.R. 627. 
 
 Defective fence — ^Negligence — Wilful act of owner. 
 
 Action for the value of two horses alleged to have been killed by one 
 of the company's trains through its neglect to fence its right of way at 
 the place in question. The horses escaped from the pasture field by reason 
 of the defective fence (slash fence) with which it was enclosed; strayed 
 on to the unfenced riglit-of-way of the railway coini)any and were killed 
 by a passing train: — Held (1), that, under subs. 4 of s. 237 of the Rail-: 
 way Act, 1903, the defendant escaped liability througli the wilful act or 
 omission of the owner of the animals in question by having a defective 
 fence. (2) That, therefore, the exception in subs. 4 of s. 254, relieving a 
 company from fencing did not need to be decided. [Bourassa v. Can. Pac. 
 Ry. Co., 30 Que. S.C. 385, 7 Can. Ry. Cas. 41, followed.] 
 
 Renaud v. Can. Pac. Ry. Co., 13 Can. Ry. Cas. 358. 
 
 Wilful act or omission of owner — Defective fences. 
 
 Action to recover the value of cattle found killed on the defendant's 
 railway. Tlie plaintiff's cattle escaped by knocking down or jumping 
 over a fence of insufficient strength and height from one pasture field to 
 another, and from there got through the highway fence part of which 
 
FATAL ACCroEXTS ACT. 405 
 
 vas tamtiwdtti. •< krash with poles; Umbct aloag the ki^war, got ovvr 
 tfce cattle gaaris at tke crasi^ and were killed br a past^iiig train. The 
 plaiatiCa som adautted that said cattk' had got oat to the h^h«aT aaore 
 thaa oace tkroogh the fcaees vKaHi he had fixed at difTcreat tiaMs in 
 diffcRBt pla»» after ther had px out: — ^HekL that the cattle got at Iar>^ 
 throa^ the vilfnl art or omis&iaa <rf the plaintUT hf Rasoa tA his fcaces 
 both of the pastare field and at the k^var being iasadfieieBt aad ia- 
 aei i ue aad he cannot rccorer their Talne froaa the defendant. 
 
 WUktaaoa r. Grand Trunk St. Co. (Ont.r, 14 Caa. Kr. Ca& 236. 
 
 TlAWiJr r IQB aXULUjS KILLED OX TSACK — FESCSS — ^WlUFTX ACT OT onn^XX. 
 
 The liatalitT oi a railvar enipaay. nndii safaea. 4. 3 of s. 2M of the 
 Bailvar Act. IdOC. for daamges ia the ease of aniawK at large kOIed or 
 iajnored bf a tzaia is aot liaiited to territorr vhere the eompanT is br &. 
 SS4 obliged to exvrt saitaMe fences, and the caapaav can onlr escape sock 
 fiakilHjr hf tht aii^^ tikat the laiaMli; got at laige throng the nq tiigej a ca 
 or wUhd act «r oaiasoa of the ovaer or his agent or the custodian of 
 waA *"«—^** or his agent. The Railvay Act of 1903 changed the lav ia 
 thM respect. [Bank of EagUnd t. Vagliano. [1891] A.C., per Lord Her- 
 advll at p. 144, followed as to the iaterpretatioa <tf a statute iatended to 
 he a code ol lav oa the snbject referred to.] The plaintiff had for tvo 
 Tears beca aceartoased to tnra hi'S hivaes oat of the stable ia the winter 
 Id go vittoai halters to a watering troo^ aboot fifteen rards awav and 
 diitiag than back to the stable after drinking. On the occasion in que&- 
 tioa, the pfaiatifl' and his hired man were carrying oat the usual roatine 
 arhen three of the horsca after drinking^ without their noticing it. wa&ed 
 mK in the di r ec ti o n of the road iastead of returaing to the stable. What 
 Ae foorth had fiaished driridag it started to walk aftn- the others. The 
 ptaintiff uhwiw.d this and tnaMdiately tried to intercept the horses, bat 
 the three escaped and, althoagh the plaintiff followed them up at once and 
 did his best to recover thnn. tbej eTent na lhr got oo to the defendant's 
 railvaT track and were killed by a traia oa a bridge: — Held, that the 
 plaintiff was aot gaihy of aegUgence or any wilful act or omisisioa ia the 
 akstter so au to disentitle him to recorer. [Arthur t. Central Oatario Rj. 
 Col. 11 OT.R 537. 5 Can. Ry. Ca*. 318; Racoo t. Grand Tirnnk Ry. Col, 
 12 Oi-R- 196, 5 Can. Ry. Ca& 335: Lebu t. Grand Trunk Ry. Co_ 5 Oul 
 Ry. Cas. 329, 12 OX.R. 590; Camithers v. CJ»Jl. Co., 16 Man. UL 323. 6 
 Can. Ry. C»^ 15. 39 Can. S.CJL 251. 7 Can. Ry. Ca*. 23, and Becker r. Caa. 
 Pise- Ry. Col. 7 Can. Ry. CasL 29. 5 WJ_R. 5<». followed.] 
 
 Fuka T. Can. Nrnthem Ry. Co. (Maa,«. 14 Caa. Ry. Cas. 247. 
 
 [Disti^aished in Hopp t. Gu. Par. Ry. Col, 17 Can. Ry. Cas. 66, 16 
 DX.R. 343.] 
 
 XeSLKE^TCK of OW7EX. 
 
 A railway company operating under and subject to the Railway Act. 
 1906, is liable for kiUiag horaes at large upon the railway line, nnles« the 
 railway ctmipany estaUisfaes under s. 294 H*. that the animals got at 
 laige through the negligeace or wilful art of the owner or his agent or 
 the cnatodiaa ofsoeh aniawls or hi? agent, or unless the cirmnkstaar-s. 
 aa to the annner in which the h ots e * came to be at large are withia the 
 sperisl cxeeptians from UahiKty stated in ss. 294, 295. 
 
 Rogera t. Grand Trunk Par.' Ry. Co., 2 D.L.1L 683, 22 Man. LR. 319. 
 
 [Referred to in Rowe t. Qneber Central Ry. Col, 3 Di.R. 175.] 
 
 Tsjvmas ro axivals at lasce. 
 
 Under a. 294 of the Railway Act. 1906, as amended br 9-10 Edw. VH. c. 
 
400 FATAL ACCIDENTS ACT. 
 
 50, s. 8, imposing a liability on a railway company for injuries to animals 
 •'lit large" on its right-of-way, the onus of proving negligence on the part 
 of tlie owner of the animal in allowing a horse to be "at large" is upon the 
 lailway company. 
 
 Stitt V. Can. North. Ry. Co., 15 Can. Ry. Cas. 333, 23 Man. L.R. 43, 10 
 D.L.R. 544. 
 
 DkFECTIVE fence ANIJfAI.S AT T.ARGE t:M>FR IJY-I.AW. 
 
 Cattle turned out to graze on the highways as authorized by a munici- 
 jial by law are not "at large through the negligence or wilful act or omis- 
 sion of the owner" so as to relieve a railway company, under s. 294 (4) 
 of the Railway Act, 1906, as amended by 10 Edw. VII. c. 50, s. 8, from 
 liability for running down animals that came upon its right-of-way at a 
 place other than a highway crossing, by reason of defects in the fencing 
 which the railway company was under a statutory obligation to maintain. 
 
 Greenlaw v. Can. North. Ry. Co., 15 Can. Ry. Cas. 329, 12 D.L.R. 402, 
 23 Man. L.R. 410. 
 
 [Distinguished in Doble v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 
 312, 27 D.L.R. 115; followed in Kodi v. G.T.P. Branch Lines Co., 21 Can. 
 Ry. Cas. 136, 32 D.L.R. 39;5.| 
 
 IXJURY TO ANIMALS BY TRAINS — LaCK OF PROPtyj FENCE — OwNEB'S NEGLI- 
 GENCE. 
 
 The fact that the owner of an animal turns it out to pasture on his 
 own land beside a railway track which a company hijd not fenced as 
 lequired by law, does not shew that the animal was at large through negli- 
 gence or wilful act of the owner so as to relieve the company from liability 
 under s. 294 (4) of the Railway Act, 1906, for injuries inflicted on it 
 wliile on the right-of-way; the company's omission to construct a fence 
 did not deprive the adjoining owner of the right to turn his animals out 
 to pasture on his own land. [McLeod v. Can. Northern Ry. Co., 18 O.L.R. 
 (il6, 9 Can. Ry. Cas. .39, followed.] 
 
 Palo V. Can. Northern Ry. Co., 16 Can. Ry. Cas. 1, 29 O.L.R. 413, 14 
 D.L.R. 902. 
 
 Injuries to animals — Contributory negligence — Onus. 
 
 Fnder the provisions of subss. 4, 5 of s. 294 of the Railway Act, 1906, the 
 onus of establisliing that horses were at large through the negligence of 
 their owner or custodian, is upon the railway company seeking to avoid 
 liability for their getting upon the right-of-way and being run down by a 
 train. The onus of proof upon the defendant company, imder subss. 4 and 
 5 to establish negligence against the plaintiff in an action for injury to 
 animals on the track, is not displaced by a finding that the plaintiff wa^ 
 careless in looking after the injured animals, if the nature of such care- 
 lessness was not determined. 
 
 Maves v. Grand Trunk Pacific Ry. Co., 16 Can. Ry. Cas. 9, 14 D.L.R. 70. 
 
 Negligence of owner — Unenclosed lands. 
 
 Where a horse got at large from luicnclosed lands by reason of the 
 negligence of its owner in not properly confining it he cannot recover 
 damages for its loss, although the animal wanders a considerable distance 
 before getting upon the right of wjuv of the defendant. [Becker y. Can. 
 Pac. Ry. Co. 7 Can. Ry. Cas. 29, followed.] 
 
 Wallace v. Grand TVunk Ry. Co., 17 Can, Ry. Cas. 64. 
 
 Liability of railway — ^Killing horse on track. 
 
 Where a horse which had been turned out to pasture on unfenced 
 
FATAL ACCIDEXTS ACT. 407 
 
 raage lands adjoining a railwar took friglit on being driven into camp bj 
 tlw owner's emploTee and escaped from his control and was killed br n 
 train, the oimer has no right of action against the railwar ctHnpanr under 
 s. 2M, subflu 4, of the BaihraT Act 1906 (as amended 9 t 10 Edw. \TL 
 c 50, 8. 8), for, if he had the landowners permission to pasture on the 
 lands, the horse while thereon was not ''at large." and. if he had not such 
 pMnission, the horse was put ''at large" by the plaintiff's wilful act in 
 pasturing the horse there within the e:sception of the enactment. 
 
 Hupp T. Can. Pac. Ry. Co.. 17 Can. Ry. Cas. 66, 16 DX.R. 343. 
 
 [McLeod T. Canadian Northern R. Co., 18 OX.K 616: Parks t. Can. 
 Xorthera R. Co., 14 Can. Ry. Cas. 247, 21 Man. LlR. 103, distinguished; 
 see also as to animals at large, Rogers v. Grand Trunk R. Co, 2 D.L.B. 
 6S3.] 
 
 tSJJJMlBS TO AXIMALS OX TKACKS BT TKAIXS. 
 
 The CTident purpose of Parliament to deal with the whofe question of 
 a railway company's liabili^ for injury to animals at large by the 
 provisioras of s. 294 of the Railway Act. 1906. as amended, constitutes s. 
 2M a specific code laying down a general statutory liability and pro- 
 riding a special defence, thereby precluding the plaintiff, in such cases, 
 from resting liability upon a breach of s. 254 read with the general pro- 
 Tisions of s. 427. [Clayton v. Can. Xorthem Ry. Co., 7 Can. Ry. Cas. 
 355. 17 Man. L.R. 433, followed.] 
 
 Sporle r. Grand Trunk Pacific Rt. Co., 17 Can. Rr. Cas. 71, 17 D.L.R. 
 3«7. 
 
 IXJTKT TO AXIMALS BY TBAIXS — CaTTLE GCAUtS GaTESI ^'"IJxnsED HIGH- 
 WAT." 
 
 The Railway Act. 1906, does not forbid, either by s. 254 or otherwise, 
 the erection of a farm crossing in lieu of cattle guards at a road allowance 
 which is unused a$ a highway and is in fact used as farm land, and where 
 a railway company and an adjoining farm owner concur in so treating 
 an "unused highway ** the farm owner is bound under a. 255 to keep the 
 gates on each side of the railway closed when not in use. and damage 
 to the owner's animals through his own neglect to perform such statutory 
 duty is not recoverable frtHm the railway company, no n^ligence on the 
 part of those in charge of the train being shewn. 
 
 Brook T. Can. Pac Ry. Co., 18 Can. Ry. Cas. 78, 18 DXJS. 184. 
 
 ISJtJKIES — MirXlCIPAL BY-LAW — EXACTMEST BT IXPLICATIOX ^XbGUGEXCB 
 
 OF OW.MX. 
 
 A municipal by-law which restrains animals from running at large for a 
 eertain number of hours of the day does not give rise to an enactment by 
 implication permiting them to run at large during the remaining hours of 
 the day in derogation of the eommon-law duty of the owner to keep the ani- 
 mals fr<Mn his neighbour's land, and there can be no recovery when they are 
 killed <m the right of way of a railway company, if the animals are at 
 large through the n^igence of the owner within the meaning of subs. 4 
 of s. 294 of the Railway Act, 1906. as amended by s. 8, c. 50, 9-10 Edw. 
 Vn. [Greenlaw t. Can. Xorthern Ry. Co.. 15 Can.' Ry. Cas. 329. 12 DX.K. 
 402, 23 Man. L.R. 410. distinguished: Watt v. Drysdale, 17 Man. L.R- 15, 
 followed; Garriodi v. McKay, 13 Man. L.R. 404: Crowe v. Steeper, 46 
 U.C.Q.B. 87, referred to.] 
 
 DoWe V. Can. Xorthem Ry. Co., 19 Can. Ry. Cas. 312, 27 DJjlEL 115. 
 
 [See also Duncan v. Can." Pac. Ry. Co., 21 OJL 355.] 
 
408 FATAL ACCIDEls^TS ACT. 
 
 Animals kiixed on kight-of-way — Cattlk guaeds — Maintenance — In- 
 tersection OF KAILWAY and highway — Wir-FUL ACT OF OWNER — CON- 
 TRIBUTORY NEGLIGENCE — RAILWAY ACT, S. 294. 
 
 The plaintiff turned out certain of his horses and alloweti them to run 
 at large without being under the charge of any person. Tlie horses 
 strayed upon the defendant's railway at the intersection of the railway 
 with a highway, there being no cattle guard to prevent them from going 
 on tlic railway at such point of intersection. Tlie horses strayed tlienca 
 upon the right-of-way and were killed by the defendant's train, but at a 
 point other than the intersection of the railway with the highway. Held, 
 that the rights and liabilities of the railway company in respect to animals 
 at large are declared by s. 294 of the Railway Act, 1906, and no section of 
 general application contained in the Act should add to or interfere with 
 the specific provisions contained in the section specially framed to deal 
 with it, and the plaintiff cannot invoke the general principle of the com- 
 mon law to cure his contributory negligence in the face of a specific en- 
 actment making that contributory negligence an absolute defence to the 
 action. 
 
 Early v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 31 C, 8 Sask. L.R. 
 27, 21 D.L.R. 413. 
 
 Cattle on range. 
 
 Cattle running at large on the range are lawfully at large, and, if the 
 cattle are killed on a railway track, the railway company is liable under 
 s. 295 of the Railway Act, 1906. 
 
 Bardgett v. Can. Pac. Ry. Co. (B. C), 10 W.W.R. 810. 
 
 Injury to animals at large — "Wilful act or omission of owner." 
 
 The expression "wilful act or omission" has a meaning distinguishable 
 from "negligence," in that the former denotes a deliberate and conscious 
 intention ; hence animals on the lands of new settlers, which are kept to- 
 gether by means of tethering one of the oxen and wliich escape as a result 
 of the ox releasing himself from the fastening, are not at large through 
 the "wilful act or omission of the owner," within the meaning of s. 294 (4) 
 of the Railway Act, 1906 (amended by 9-10 Edw. VII 1910, c. 50, s. 8), 
 and entitles the owTier to recover for their being killed or injured on the 
 right-of-way of a railway company. [Parks v. Can. North, Ry. Co., 14 
 Can. Ry. Cas. 247, followed.] 
 
 Waite et al. v. Grand Trunk Pacific Ry. Co., 21 Can. Ry. Cas. 126, 27 
 D.L.R. 549. 
 
 Injury to animals — Unpenced track — Negligence of owneb. 
 
 The word "negligence" in s. 294 (4) of the Railway Act, 1906, as 
 as amended bj' 9-10 Edw. VII. c. 50, s. 8, is not used in the sense generally 
 attributed to it in common law. An owner is not necessarily negligent 
 because he leaves a large number of cattle near a railway in charge of one 
 man. In considering the alleged negligence of the owner, the absence of 
 a fence which the railway company was legally liable to erect should not be 
 taken into account. [See also Waite v. G.T.P. R. Co., 27 D.L.R, 549.] 
 
 Quast V. Grand Trunk Pacific Ry. Co., 21 Can. Ry. Cas. 132, 9 Alta. 
 L.R. 496. 28 D.L.R. 343. 
 
 Injury to animals — Owner's negligence. 
 
 Bugg V. Can. Northern Ry. Co., 36 D.L.R. 776, 3 W.W.R. 458. 
 
 Injt'rv to animals — Owner's negligence. 
 
 Where it is shewn that animals were at large, that they got upon railway 
 
FATAL ACCIDEXTS ACT. 409 
 
 fnipiitj, sad were ia jared thenoB, wit at aa iatcrseetiaa vHk Ike U^ 
 «aj, tke laihray coiqiaBry is fidhle «ader tke Baihnr Art, ISM; a. 3»i^ 
 ■alts it tarn ftm^ fbt lOv caae filfe vitluB tke frarBiaaa cf s. S96, 
 or ttat flK aanals g0k at Inse ttra^gih tibe argHgracr or vflfnl act or 
 ■li III! ilia «f tfe cNnaer. ika uaam raaaat be keld pnltj «rf acj^ignaer ia 
 aBamimg Ua aaiaah to taa at lar^ viMrr a Talid bjr-lav exists posittia^ 
 kna to do sa. [fonalav t. Gul Xortkra Rt. Co, 12 DX.R. -I03L 23 
 Maa. L.R. 410. 13 Cu. St. Cas. 339, foUowd.] ' 
 
 Kock T. G.T.P. Bnadi'LiMS Co, 21 Caa. Rr. 0>& 13t^ 33 DXJL 3»3. 
 
 Isjrax TO ,%xin%t.s — Ovxiafs xBEaucaEsoE — WiLnrx act am mnssaus. 
 
 It is a «ilfai act vitkia tke Monii^ «f a. 2M |1| of tike Baihraj Act. 
 190C, to tara aariralff at laifie ^oa a ki^nray vittia kaU a aile of aa 
 iataaw-ti aai at rail levari despite a laoriacial Act pcf ittiig aaiawH to 
 raa at iargt^ aad if tke waiairii so at large ^et fivaa tike ki^vair to rail- 
 var pmpetti aad are killed or iajaicd tkerv. tke laihraj maqiaaT ^ 
 Mt liabkL 
 
 A^enoa t. Caa. Xortken Rr. Cou 21 Caa. Rt. Cbil 14A, 33 DJLR. 
 418, 35 DX.R. 4TX 
 
 [AJbaHd ia 23 Caa. Rr. Cks. 243. 43 DXJL 2m.) 
 
 IXJUnar TO AXIMALS — WlUTX ACT — XEKuecxcc 
 
 -WitfaT ia s. 294 f4» of tke Railvav Act. 190S. aeaas lateatiouL'' 
 aad aa onraer vko iatcatiooallT taras kis aaiamls at iax^ caaaot l ecorei 
 d amag e s if tknr stzar to a laitvay rigkt-of-«aT aad are killed tketeaa 
 bjr a tiaia. 
 
 Aaderm t. Caa. Xoetkera Rr. Cou 21 Caa. Rt. Cas. 14a, 3* D XJL 47X 
 
 Isorar to axthals — Sbbmjsxsce — ^Wmn. act. 
 
 & 2»4 e« tke Railaaj Act, ISOC, a. 294. as aaanded Inr 9-10 Edv. Til 
 e. 30, a. Sy aeaas tkat if ■aiawlii aic aDoavd kjr tkeir uaati to be at 
 imtft vitkia oae-kalf wie of tte iatcnectiaa of tke laihmj aad a kigkaaT 
 at leieL tke o^mt takes tke nsk ayoa kuaseif of aar da»«enir wkick an j 
 ke caased to «r bjr tkeia apoa Ike iaterscetioa. aad if sack diwBgrj; aic 
 raaaed to tke laiwilr, aot apoa tke iatcnectiaa bat apoa tte railaaT 
 fmmti bejiMd it. tke cmpaanr aoaU be fiable^ aak» it ciitriilinbrid tkat 
 tke aai—iff gat at laise tk roa gk tke atgBg eace or wilfal act ar aaiana 
 «rf tke oaaer or kis a^t. [Aadosoa t. Caa. Noilften Ry. Co, 21 Gul 
 Rt. Cul 140 at p. 14jl 33 DXJL 473. afirmed.] 
 
 ^admnii t. Caa. Xotkeia Ry. Col, 23 Cia. Rr. Cka. 243, S7 Caa. SLCR. 
 13t.43IUiJK. 2m. 
 
 Fakk cbosbov — Sarisc gates — ^Maotexaxcc or. 
 
 S. 295 of tke RailwaT Act. 1900. provides tkat "ao pei^oa vkose korses 
 ... aze killed or iajnred br aar traia skall kamr aaj ri^rit of actioa 
 agafaat. aaT caaqnaj ia respect of SMk koeses . . . bei^ killed or 
 atjand, if tke saae were so killed «r iajarcd bnr rcosoa of aar pcvaoa (a) 
 for vkose lee aay fiuat crosei^ is foratsked tufia^ to keep tke gates at 
 cack aide of tke raihraj cloaed vkca aot ia ascL* Tkis a e iti oa is ao 
 di'ii ai e to aa artiaa fw duaages if tke ^tcs vkea erected amdd aot 
 aai^g; aad tke kia^cs aad futeaii^a kavv aot beca ai^iataiaed as l e naii e d 
 by s. 2S4 aad base becoae asdet». 
 
 Praaie T. Caa. Xortken Ry. Col, 23 Caa. Ry. Ca& 247, 42 DX.R. 159. 
 
 If cxKiPAi. BT-LAar — XiCTwar^cg — Ovxxx's bisk. 
 
 Wkcze tke fey-lavs of a HoaicipalitT permit tke raaaiag at laift of 
 
410 FATAL ACCIDE:N"TS ACT. 
 
 animals, it is not negligence but a wilful act or omission within the mean- 
 ing of s. 204 (4) of the Railway Act, 1906, for the owner to allow them 
 to run at large. If such animals are allowed to be at large within one-half 
 mile of the intersection of the railway and a highway at rail level, the 
 owner takes the risk of any damage. 
 
 Fraser v. Can. Northern Ry. Co., 23 Can. Ry. Cas. 250, 43 D.L.R. 562. j 
 
 Statutory duty to repair fences. 
 
 A railway company incorporated under a Quebec Statute and never 
 declared to be for the general advantage of Canada, or to come under the 
 provisions of the Dominion statute, is only obliged to build and keep in 
 repair such fences as wore required for the protection of the animals be- 
 longing to the adjoining owner, or of those who were rightly occupying 
 the adjoining land. 
 
 Dodier v. Quebec Central Ry. Co., 23 D.L.R. 667. 
 
 Animals killed on track — Xec.i.igence or wilful act or omission of 
 OWNER — Absence of cattle gltards. 
 
 Where animals at large through the negligence or wilful act or omission 
 of the owner stray on to the right-of-way of a railway company and are 
 there injured or killed, the company is not liable in damages, under s. 
 204, subs, 5 of the Railway Act, 1906, and the absence of cattle guards 
 does not render the company liable even wliere it is under a statutory 
 duty to maintain them. [Clayton v. Can. Northern Ry. Co., 7 W.L.R. 
 721'. followed.] 
 
 Durie v. Can. Pac. Ry. Co., 30 W.L.R. 768. 
 
 Cattle "at large" — Road allowance. 
 
 Cattle turned out upon a road allowance so that they can range upon 
 an open section must be said to be "at large," and a railway company, even 
 though their cattle guards or fences are negligently constructed, are not 
 liable for injuries thereto. 
 
 Fleming v. C.P.R. Co., 7 W.W.R. 525. 
 
 Municipal by-law — Restrictions. 
 
 The effect of a municipal by-law which permits animals to run at 
 large "except as prescribed or restricted by law or by this bj'-law or other 
 by-laws of the municipality," is to leave the case of an animal killed by a 
 train within half a mile of the intersection of a highway with a railway 
 within the operation of subs. 1, s. 294, Railway Act. 
 
 Block V. Can. Nortiiern Pacific Ry. Co. (Alta.), 10 W.W.R. 1228. 
 
 FEBBIES. 
 
 See Wharves and Ferries. 
 
 FIBES. 
 
 See Carriers of Goods; Constitutional Law; Limitation of Actions. 
 Accumulation of Weeds on Riglit-of-Way, see Weeds. 
 On Crown Railways, see Government Railways. 
 
 Annotations. 
 
 Liability of railway companies for fires. 1 Can. Ry. Cas. 208. 
 Use of defective engines or appliances, and improper and negligent 
 management of trains. 1 Can. Ry. Cas. 212. 
 
FIREa 411 
 
 Failare to lewai e eoabasiable BtttHial tnm ruhraj lunds. 1 Gaa. 
 Sj. GuL S13. 
 Addam* for danagies doa« br fire. 13 Cui. R;*. Gas. alC 
 
 Stabes vbom exgixe — 'Pmartm cjibe to rsETEsrr mnanax of — Use or 
 
 VOOe OB COAL FOB FTSI. 
 
 R. owned a bam situated about tvo bondnd feet ftos the X.B. Rt. Co«. 
 liae. aad sack bam vas destrored hx fire, cansed. as vas alle^td. br ^park'^ 
 fmat the defeadaat^' engiae. An aetka «a^ bnr)a«bt to rKover da0nf>(>«^ 
 for the loaa of said bam aad its eonteats. On the trial, it appeared that 
 the fnd and br the conpanr over this line was wood, and erideaev was 
 girca to the «#cct that cool was kss apt to throw out sparks. It also a|»- 
 pcared that at the place where the fire ocrorred there was a heavy a|»- 
 jirade, aeeeantatia^ a fnll head of steaai, and therefore iiKreasiag the 
 daager to —iTonndrBg propertr. The jury found that the defendants did 
 not OK icnMaahle eare in rnnninor the csjiine. bat in what the want of 
 such cant eoBMated did not appear br their findii^: — Held, reversia* the 
 jmi gmMM t of the S upmic Coort of Xew Bmnswiek. that the ronpany was 
 under no obfigatiaa to Bse coal for f oeL and the use of wood was not in 
 itsrif evidence of ncgligmice: that the finding of the jury on the tine<tion 
 of Bq^igu we was not satis^factoiy. and that therefme there should be a 
 new triaL 23 XJBJL 323, rervrsvid. 
 
 Xew Brunswick Ry. Co. t. Robinson (18»4I. 11 Can. &C.R. fiSS. 
 
 [An»Iicd in Campbell t. 'MeGre^ar, 39 X.B.R. 660: Glidden t. Wood- 
 alDck, 33 X3.S. 392: distin^nished in Campbell t. McGregor, 29 XJLR. 
 618; inapplicable in Leonard t. Can. Pac Ry. Col, 15 QJJR. 95.] 
 
 Tibs, cdxmtticateb fbom rcEMiSES of comtaxt. 
 
 .^rtioai br the respondent against the appellants for ue^tpnt^ in eans- 
 ia^ the destmction of the respondent's house and oatboildings br fire 
 fvom one of their hxomotJTes. The freight ahed id the company was 
 first United by sparks fro^ oae of the company's engines parssing Chip- 
 pawa atatiaB, and the fire extended to respondent's pmntsejL The foUow- 
 inter alia, were sabmitted to the jury, and the following 
 giicn: — Q. Was the fire occasioned by spaihs from the locomo- 
 tive? A. YesL Q. If so. was it cansed by any want of eare on the part of 
 the iiipanj or its servants, which, mder the eirmatstanccs, ought to 
 havn hen exerrised? A. Yes. Q. If so, state in what respect you thiak 
 gnntcr care ought to have been exercised* A. As it was a speeud train 
 and «■ Sunday, when employees were not on duty, there should have been 
 aa cxin, hand on dnlhr. Q. Was the saM>ke stack furnished with as good 
 a^^nratBS for arresiting sparks as wa.s consistent with the efficient working 
 of tibe engine? If you think the apparatus was defective, was it by reason 
 •f its not being at the best kind, or be<ranse it was oot of order? A. Out 
 of order. Verdict for plaintiff. :SS)H>. On motion to set aside verdict, the 
 Qu een 's Bench Division unanimously sustained the verdict. On appeal to 
 the Suprenw Court: — Held, affirming ikt judgment of the Court below. 
 Henry, J., disscatii^. (1) that the quwiioBs were proper questions to 
 put to the jury, and that there was sulBrift evidence of negligence on the 
 part of the appellants' servants to sustain the finding. (±t If a railway 
 coiBpany are guilty of default in the di^harge of the duty of running 
 their hxnaaotives in a |»x>p(T and reasonable ounner. they are respon^ble 
 for all *"~'c which is the natural conseq[aeaee of such default, whether 
 such damage is oeeasioaed by fire escaping from the engine coming dire>tt- 
 ly in contact with and consuming the property of third persons, or is 
 caused to the prt^rty of such third persons by fire eouununicating there- 
 
412 FitlES. 
 
 to from the property of the railway company themselves, which had heen 
 ignited by lire escaping from the engine coming directly in contact there- 
 with. (3) The statute 14 Geo. ITT. c. 78, a. 86, which is an extension 
 of 6 Anne c. 31, ss. 6, 7, is in force in the Province of Ontario as part of 
 the law of England introduced by the Constitutional Act, 31 Geo. ITI. c. 
 31, but has no application to protect a party from legal liability as a 
 consequence of negligence. 
 
 Canada Southern Ry. v. Phelps (1884), 14 Can. S.C.R. 132. 
 
 [Applied in Campbell v. McGregor, 2» N.B.R. 648; Central Verm. Ry. 
 Co. v. Stanstead & Sherbrooke Ins. Co., 5 Que. Q.B. 251; Jackson v. Grand 
 Trunk Ry. Co., 32 Can. S.C.R. 247 ; referred to in Grant v. Can. Pac. Ry. 
 Co., 36 N.B.R. .542; Morris v. Cairncross, 14 O.L.R. 544; Oatman v. Mich- 
 igan Central Ry. Co., 1 O.L.R. 145; relied on in Laidlaw v. Crow's Nest 
 Southern Ry. Co., 14 B.C.R. 173.] 
 
 Sparks from engine — Presumption as to cavse of fire. 
 
 A train of the C.A. Ry. Co. passed the sheriff's farm about 10.30 a.m., 
 and another train passed about noon. Some time after the second train 
 passed it was discovered that the timber and wood on plaintiff's land was 
 on fire, which fire spread rapidly after being discovered and destroyed a 
 quantity of the standing timber on said land. In an action against the 
 company it was shewn that the engine which passed at 10:30 was in a 
 defective state, and likely to throw dangerous sparks, while the other 
 engine was in good repair and provided with all necessary appliances for 
 protection against fire. The jury found, on questions submitted, that the 
 fire came from the engine first passing, that it arose through negligence 
 on the part of the company, and that such negligence consisted in running 
 the engine when she was a bad fire thrower and dangerous: — Held, affirm- 
 ing the judgment of the Court of Appeal, that there being sufficient evi- 
 dence to justify the jury in finding that the engine which passed first 
 was out of order, and it being admitted that the second engine was in 
 good repair, the fair inference, in the absence of any evidence that the fire 
 came from the latter, was that it came from the engine out of order, and 
 the verdict should not be disturbed: — Held, also, Henry J., dissenting, 
 that the locomotive superintendent and locomotive foreman of a railway 
 company are "officers of the corporation" who may be examined as pro- 
 vided in R.S.O. (1877) c. 50, s. 136, and the evidence of such officers as to 
 the conditions of the respective engines and the difference as to danger 
 from fire between a wood-burning and a coal-burning engine, taken under 
 said section, was properly admitted on the trial of this cause; and certain 
 books of the company containing statements of repairs required, on these 
 engines among others, were also properly admitted in evidence without 
 calling the persons by whom the entries were made. 14 A.R, (Ont,) 309, 
 affirmed. 
 
 Canada Atlantic Ry. Co. v. Moxley, 15 Can. S.C.R. 145. 
 
 [Applied Campbell v. McGregor, 29 N.B.R. 648; commented on in Knight 
 v. Grand Trunk Ry. Co., 13 P.R. (Ont.) 386; discussed in Leitch v. Grand 
 Trunk Ry. Co., 13 P.R. (Ont.) 369; distinguished in Jackson v. Grand 
 Trunk Ry. Co., 32 Can. S.C.R. 250; followed in Dixon v. Winnipeg Elec. 
 St, Ry. Co., 10 Man. L.R. 665; Gordanier v. Can. Northern Ry. Co., 15 
 Man. L.R. 3; Sinden v. Brown, 17 A.R. (Ont.) 173; referred to in Can. 
 Pac, Ry. Co. v. Roy, 9 Que. Q.B. 570; relied on in Dominion Cartridge Co, 
 V. McArthur, 31 Can. S.C.R. 405.] 
 
 Damages caused by sparks from locomotive. 
 
 Running a train too heavily laden on an upgrade, when there was a 
 
FIREa 413 
 
 wtnmg wind, eanaed an OBUsaal qnantitT of sparks to escape from tbe 
 loeoMotiy^ vkerebr the respondeats* bam, situated in eloee proximitr to 
 the railway track, was set on fire and destrored: — Held, affirming the 
 jodgments of the Courts below, that there was «iifficieot rridence of neg- 
 l^ence to make the companr liable for the damage caused bj the fire. 
 M. L.R. £ Q.B. 12i affirmed.' 
 
 North Shore Rv. Co. v. MeWiUie, 17 Can. SLCJi. 517. 
 
 [Applied in McDougall Co. v. Boisrert. 24 Que. S.C. 166: approved in 
 Can. Pac. Ry. Co. t. Roy, 9 Que. Q.B. 573; commented on in Zimmer t. 
 Grand Trunk Ry. Co.. 19 A.R. (Ont.» 693: followed in Foamier r. Can. 
 Pae. Ry. Co., 33* X.B.R- 568; Roy v. Can. Pac. Ry. Co., 9 Que. Q.B. 551: 
 not followed in Northern Counties Inr. Trust v. Can. Par. Ry. Co., 13 
 B.CJL 131; referred to in Briti>h Columbia Elee. Ry. Co. t. Crompton, 43 
 Can. S.C.R. 17: Northern Counties Inv. Trust t. Can. Pac. Ry. Co.. 13 
 B.CJL 138; Robinson t. Can. Northon Ry. Co., 19 Man. L.R. 315; Ryek- 
 maa t. Hamilton etc. Ry. Co., 10 OXJL 419.] 
 
 SpAKKS FSOM KSGTXE OB "HOT BOX." 
 
 In an acticm against a railway company for damages for loss of prop- 
 erty by fire alleged to have been occa^'ioned by sparks from an engine or 
 hot box of a passing train, in which the Court appealed frtmi held that 
 there was no sufficient proof that the fire occurred through the fault or 
 me^gtmct of the company, and it was not shewn that such finding was 
 clearly wrong or erroneous, the Supreme Court would not interfere with 
 tbe finding. 9 Que. S.C. 319, affirmed. 
 
 Steesae v. Central Vermont Ry. Co.. 26 Can. S-C.R. Ml. 
 
 [Distinguished in Rainville t. Grand Trunk Ry. Co.. 28 O.R. 625: fol- 
 lowed in Collins Bay Rafting etc. Co. v. Kaine. 29 Can. S.C.R. 262; Grand 
 Trunk Ry. Co. v. Ilainville, 29 Can. S.CJJ. 205: Mayrand t. Dassault, 38 
 Caiu S.CJL 465: referred to in Can. Pae. Ry. Co. t. Roy, 9 QiK. QJB. 573.] 
 
 Spakks raoM kailwat e.xgi:\e — Ri'bbish ox kailwat bekv. 
 
 In an action against a railway company for damages in consequence of 
 plaintiff's property being destroyed by fire allegcti to be caused by sparks 
 from an mgine of the company the jury found, though there was no direct 
 eridnice of how the fire ocearred. that the company n^Ugently permitted 
 an accumulation of grass or rubbish on their road opposite plaintiff^s 
 property which, in case of emission of sparks or cinders would be dan- 
 ^rous; that the fire originated from or by reason of a spark or cinder 
 from an engine: and that the fire was communicated by tbe spark or cin- 
 der falling on the company's premises and spreading to plaintiff's property. 
 A verdict against the company was sustained by the Court of App«d: — 
 Held, affirming tbe judgment of the latter court (23 A.R. (Ont.ii 242 >. 
 and following Sen^sac v. Centra] Vermont Ry. Co. (26 Can. S.C.R. 64 k: 
 George Matthews Co. v. Bouchard (28 Can.'s.C.R. 580 1: that tbe jury 
 having found that the accumulation of rubbish along the railway prop- 
 erty caused the damages, of which tbere was some evidence, and the find- 
 ing having been affirmed by the trial Court and Court of AppeaL it sbouk! 
 not be disturbed by a second Appellate Court. 25 A.R. (Ont.i 242, 28 
 O.R- 625, affirmed. 
 
 Grand Trunk Ry. Co. v. Rainville et al.. 29 Can. S.C.R. 201. 
 
 [Applied in Cameron v. Royal Paper Mills Co., 31 Que. S.C. iSO.] 
 
 FiSB FBOM EXCrXES DEST«rCTIOS or ADJOIXIXG PBOPEKTY — IXFEREXCK 
 
 ntOM CWCr^STAXCES. 
 
 In an action for damages for the plaintiff's loss by fire alleged to have 
 
414 FIKES. 
 
 boon communicated to their buildings and premises, adjoining the defend- 
 ants' railway, by sparks emitted from tlie defendants' engines: — Held, on 
 the evidence, that the defendants' engines were as safely built and equipped 
 as the nature of such means of traflic could admit, and that the train 
 was operated in a reasonable manner; no negligence was shewn; and the 
 action, therefore, rested upon s. 298 of the Railway Act, 1906: — Held, also, 
 on the evidence, that the fire originated from sparks emitted by the de- 
 fendants' engines; the evidence was not direct, as no 8i)arks were seen to 
 fly and alight ; but the inference from the circumstance in evidence was a 
 reasonably certain one: — Held, also, that, as the action rested on the stat- 
 ute, contributory negligence was not to be considered; the plaintiffs could 
 use their land and premises as they pleased, provided that they were not 
 actuated by motives amounting to fraud. [Fraaer v. Pere Marquette Ry. 
 Co., 18 O.L.R. 589, 13 O.W.R. 883, distinguished] :— Held, also on the evi- 
 dence, that the defendants had an insurable interest in the premises under 
 s. 298 (3) of the Act. Damages assessed for injury to the plaintiff's ware- 
 house and contents; but not for loss of trade, no specific damage being 
 shewn. 
 
 Winnipeg Oil Co. v. Can. Northern Ry. Co., 15 W.L.R. 120. 
 
 DaMAGK to woodland by FIBE — FiBE STABTED BY SECTIOX FOBEaiAX. 
 
 In an action brought by the owner of a lot of woodland adjoining de- 
 fendants' railway to recover damages alleged to have been caused by a fire 
 negligently started by defendants' servants and allowed to extend to plain- 
 tiff's land, it appeared in evidence that X., a section foreman of the de- 
 fendants' railway, set fires to burn up some piles of sleepers and rubbish 
 on the railway line. The weather had been very dry for a long time, and 
 forest fires were burning all over the country. Witnesses, on behalf of 
 the plaintiff, testified that they saw fire on the railway line at this time, 
 and traced its course through the fence to the plaintiff's land. N. swore 
 that the fires which he started were all burnt out before the first was seen 
 on the plaintiff's property, and otlrer evidence was given to the same effect. 
 The jury found that the fire spread from the fire set by N., and that X. 
 negligently and imreasonably allowed it to extend. A verdict was entered 
 for the plaintiff for $.500: — Held, that there was sufficient evidence to 
 justify the verdict. Per Tuck, C.J., and McLeod, J., that the Acts 48 Vict, 
 c. 11, and GO Vict. c. 9 (to orevont the destruction of forests and other 
 property by fire) are not ultra vires of the local Legislature. Per Mc- 
 Leod, J., that tlie defendants having brought on their land a dangerous 
 element, not naturallj' there, did so at their peril, and, if it caused injury, 
 they were liable, though no negligence was proved. The provision of said 
 Acts declaring that a person starting a fire, except for certain purposes 
 specified, b«>tween May 1st and December 1st, is guilty of negligence, aj.- 
 plied to the defendants, and they were, therefore, liable under the Acts as 
 well as at common law. 
 
 Grant v. Can. Pac. Ry. Co., 36 X.B.R. i)2H. 
 
 Spabks fbom engine. 
 
 An action for damages for the destruction of the plaintiff's property by 
 fire alleged to have been started by sparks from an engine of the defend- 
 ants, was dismissed, after trial without a jury, the evidence leaving the 
 origin of the fire doubtful. 
 
 Farquharson v. Can. Pac. Ry. Co., 18 W.L.R. 76 (B.C.). 
 
 FiBE CAUSED BY SPARK.S FROM EXGINK — ClRCTMSTANTIAL EVIDENCE. 
 
 In an action against a railway company for negligently causing fire by 
 
FLRES. 415 
 
 sparks from tbeir engine, the cause of the fire maj be proved by circum- 
 stantial evidence, 
 
 Rainville v. Grand Trunk Ry. Co,, 1 Can. Ry. Cas. 113, 28 OJL 625. 
 
 [Affirmed in 25 AJL (Onk) 242, 1 Can. Ry. Caa. U7, 29 Can. S.CJL 
 201, 1 Can. Ry. Cas. 125] 
 
 Duty of ccttexg dowx weeds. 
 
 A railway company is responsible for damages caused by fire which is 
 started by sparks from one of their engines, in dead grass and shrubs al- 
 lowed by them to acuwulate in the usual course of nature frcoa year to 
 year on their land adjoining the railway track. It is the company's duty 
 in such a case to remove the dangerous accumulation. Judgment of Fer- 
 guson, J., affirmed. 
 
 Rainville t. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 117, 25 AJL (Ont.) 
 242. 
 
 [Affirmed in 29 Can. S.C.R. 201, 1 Can. Ry. Cas. 125.J 
 
 ACGCMULATIOX OF WEEDS. 
 
 In an action against a railway company for damages in consequence of 
 plaintifTs property being destroyed by fire alleged to be caused by sparks 
 from an engine of the company, the jury found, though there was no direc-t 
 evidence of how the fire occurred, that the company negligently permitted 
 an accumulation of grass or rubbish on their road opposite plaintifT^ 
 property which, in case of emission of sparks or cinders, would be dan- 
 gerous; that the fire originated from or by reason of a spark or cinder 
 from an engine; and that the fire was communicated by the spark or 
 cinder falling on the company's premises and spreading to plaintiffs' prop- 
 erty. A verdict against the company was sustained by the Court of Ap- 
 peal: — Held, affirming the judgment of the latter Court (25 AJR. (Ont. i 
 242), and following Senesac v. Central Vermont Ry. Co. (26 Can. S-C.R. 
 641): George Matthews Co. v. Bouchard (28 Can. S.C.R. 580); that the 
 jury having found that the accumulation of rubbish along the railway 
 property caused the damages, of which there was some evidence, and the 
 finding having been affirmed by the trial Court and Court of Appeal, it 
 should not be disturbed by a second Appellate Couirt. 
 
 Grand Trunk Ry. Co. v. Rainville, 1 Can. Ry. Cas. 125, 29 Can. aC.R. 
 201. 
 
 [Applied in Can. Pae. Ry. Co. v. Grand Trunk Ry. Co., 12 OiiuR. 320, 
 5 Can. Ry. Caa. 400.] 
 
 Spabks fbo\i e:cgines. 
 
 In an action against a railway company, carrying on business under 
 legislative sanction, to recover damages resulting from a fire alleged to 
 have been caused by a spark from an engine, the plaintiff must, in addi- 
 tion to giving evidence from which it may reasonably be inferred that 
 the fire was caused as alleged, also give some evidence of negligence on 
 the part of the defendants, eg., in the construction or management, or 
 want of repair, of the engine, and the onus is not upon the defendants to 
 prove that they have adopted and used with due care reasonable con- 
 trivances to avoid the danger of fire. Judgment of Armour, C.J., reversed. 
 
 Oatman v. Michigan Central Ry. Co., 1 Can. Ry. Cas. 129, 1 OXJL 145. 
 
 [AppUed in Jackson v. Grand Trunk Ry. Co., .32 Can. S.C.R. 247. 1 
 Can. Ry. Cas. 156; referred to in same case, 2 O.L.R. CS9, 1 Can. Ry. Cas. 
 141.] 
 
416 FIRES. 
 
 Cause of fire — Expert testimony. 
 
 In an action against a railway company to recover damages because of 
 fire caused by sparks from an engine, two witnesses called on behalf of the 
 plaintiff, men without much practical experience, testified that, in their 
 opinion, the engine in question was defective constructively in a certain 
 particular, while eleven witnesses called by the defendants, all men of 
 practical experience, testified that the engine was constructed in accord- 
 ance with the best prevailing practice. The jury found for the plaintiff: 
 — Held, that in a case of this kind, depending upon the weight to be given 
 to scientific and expert testimony and not upon questions of credibility 
 and demeanour, such a verdict could not stand, and it was set aside and 
 the action dismissed. Judgment of Falconbridge, J., reversed. Armour, 
 C.J.O., dissenting. 
 
 Jackson v. Grand Trunk Ey. Co., 1 Can. Ry. Cas. 141, 2 O.L.R. 689. 
 
 [Affirmed in 32 Can. S.C.R. 245, 1 Can. Ry. Cas. 156; referred to in 
 Sheppard Pub. Co. v. Press Pub. Co., 10 O.L.R. 243.] 
 
 Sparks from engine — Defective construction. 
 
 Fire was discovered on J.'s farm a short time after a train of the de- 
 fendants had passed it drawn by two engines, one having a long, and the 
 other a short, or medium, smoke box. In an action against defendants for 
 damages it was proved that the former was perfectly constructed. Two 
 witnesses considered the other defective, but nine men, experienced in the 
 construction of engines, swore that a larger smoke box would have been 
 unsuited to the size of the engine. The jury found that the fire was 
 caused by sparks from one engine, and they believed it was from that 
 with the short smoke box ; and that the use of said box constituted negli- 
 gence of the defendants which had not taken the proper means to prevent 
 emission of sparks: — Held, affirming the judgment of the Court of Appeal 
 (1 Can. Ry. Cas. 191, 2 O.L.R. 689), that the latter finding was not justi- 
 fied by the evidence and the verdict for plaintiff at the trial was properly 
 set aside. 
 
 Jackson v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 156, 32 Can. S.C.R. 
 245. 
 
 Fire caused by sparks from locomotive. 
 
 Under the law of Quebec, even when no proof of negligence is adduced 
 by the plaintiff, a railway company, although authorized by statute to use 
 locomotives, and although it has complied with all the requirements of the 
 law and adopted the most approved appliances known to science for pre- 
 venting the escape of sparks from its locomotives, is nevertheless respon- 
 sible for damages so caused. (Quaere, as to the responsibility of railway 
 companies under the Railway Act, 1888. 
 
 Can. Pac. Ry. Co. v. Roy,"l Can. Ry. Cas. 170, 9 Que. Q.B. 5.")1. 
 
 [Reversed in 12 Que. K.B. 543, [1902] A.C. 220, 1 Can. Ry. Cas. 196; 
 applied in Jackson v. Grand Trunk Ry. Co., 32 Can. S.C.R. 247. 1 Can. 
 Ry. Cas. 156; commented on in Royal Electric Co. v. lli've, 32 Can. S.C.R 
 465; discussed in Roudreau v. Montreal Street Ry. Co.. 6. 13 Quo. K.B 
 534; distinguished in Davie v. Montreal Water and Power Co., 23 Que. 
 S.C. 146, 13 Que. K.B. 456; distinguished in Garand v. ^lontreal Light, 
 Heat and Power Co., 33 Que. S.C. 417: distinguished in Jones v. Atlantic 
 and N.W. Ry. Co., 12 Que. K.B. 40,3; distinguished in Montreal Water & 
 Power Co. v. Davie, 35 Can. S.C.R. 2(i3: followed in Montreal Light. Heat 
 & Power Co. v. Dumphy, 15 Que. K.B. 14; followed in Montreal Street Ry. 
 Co. v. Gareau, 10 Que. K.B. 427; referred to in Shawinigan Carbide Co. v. 
 Doucet, 42 Can, S.C.R. 349.] 
 
FIRES. 41T 
 
 FU CAJTSCD BT SPAKKS VSOM UOCOOfOUfB-^jIAHUrrr OT K&II.WAT COM- 
 
 PAzrr. 
 
 Tbe RspcadcBt bmo^kt ami for d — age* cmnsed bf » fire onginatiag 
 frtia qpaifcs mtiMfimg fmm a hwuMnititBi cagiae off Ok cnif y ^pellaat, 
 vlule tke cagfaw was c^flogned ia Um ordiaarf aae of its railvaj. The 
 ^ai atWia 4rf a^^igBaee «a tke part of the coatpaaj was ^enailr vitlidravn 
 fnmt the tiiaiiiiliritina of the trSbnaal en the preseat appeal: — ^Held, re- 
 vatiag the jndgnoit of the Court of Qneea's Bench, 9 Que. KJBw aol, 
 1 Caa. Ry. Ca&. 170: — A railvay eompanj, aothorixed by statote to 
 cavry on its railwaj ondertakiBv in the place aad by the »eoair adf^ted, 
 iB aot respoasiUe ia daaiages for injoir not caused by negligeaee^ bat by 
 tte ocdiaaiy aad aorauJ nae of its railway. 
 
 Gaa. Far. Sy. Co. t. Boy. 12 Qii& K£. 513. 
 
 [A fcawjl in'l Can. Br. Cas. 196. [1902] A.C. **».] 
 
 S^AKKs faoM ExcixES — ^AcTS DOXE CMwa STATTToar ArTHoanr — Xox- 
 
 IHan.lTY FOB DAHAGE. 
 
 A raihray coinpany anthorixed by statute to carry on its railway under- 
 taking in the place and by the means ad>)pted is not responsible in dam- 
 ages for injury not caused by negligence, but by the ordinary and normal 
 a^ of its railway: or in other words, by the proper execution of the 
 power eoaferred by the statute. The previous state of the eoauam law 
 imposing liability cannot render inoperative the poisitiTe eaactawat (rf a 
 atatnte. Neither the C.C. (Que.) Art. 356, nor the Dominitm Bail way 
 Act, 18SS, ss. 9t, 2SS, on their true construction contemplates the liability 
 ct a railway c«Hnpany acting within its statutory powers. So, where the 
 respondent had suffered damage cau>«ed by sparks escaping ir«n one of 
 the apprilants" locomotiTe cagincs while employed in the orduarr use 
 of its railway, the appeOaats were held liable. [Geddis t. Proprietors of 
 B^BB Beserroir (1S7S), 3 App. Cas. 430, 438; and Hammersmith Br. Co. 
 T. Brand (18C9), LJL 4 HX. 21S, followed.] 
 
 Caa. Pac. By. Co. t. Boy. 1 Can. By. Cas. 196. [1902] A.C- 220. 
 
 rFcdloved ia Greer t. Can. Pac. Br.'Cos 19 Can. Bt. CasL 33^ 23 DX^ 
 337.] 
 
 T-yy iJiW-Mta iir matssiaLS aIjDXC laACK. 
 
 A fire startii^ on or near the right-of-way of a railway ei^qiaay catued 
 by oae of their locomotiTes spread or jumped to the piopeit w vi the plain- 
 t^s, which was destroyed. The defendants contended that tiw rocky bluff 
 wlMre the fire started was not within their right-of-way, that a. 239 of tiie 
 BaOway Act. 1903. applies only to property upon or along the route of the 
 railway aad did not apply to that of the plaintiffs, which was three miles 
 diataat: — ^Hrid, Martin. J., di:»senting. that the question of how the fire 
 reached the plaintiff's pn^ierty and the position of the rocky bluff were 
 pt o pq ly left to the jury. (2) That the wwd '^along'*' in s. 239 does not 
 laeaa only "adjoining to"* cr "contignoos to." as does the word ~aIoag- 
 nde^" but '^ the neighbourhood oP or '"tiear^ or **'cloee to" and receiTce 
 additional force from the exprcaeioa **upon or along" not simply ''aloag.*' 
 The jury found a geaeral rndiri for 918.000. It was urged that imder s. 
 239 the daaiages could aot exceed S5.000. but : — Held, that the fiadiag that 
 the defendaats left iaflammable material on the right-of-way disposed of 
 that objeetioa aad the defoidants were liable for the full amount as found 
 by the jury. 
 
 ' Blue T. Bed Mountain Bt. Co., 6 Can. Br. Ca& 219. 5 WJ..B. 1. 12 
 B.CJL 460. 
 
 [Berencd in 39 Can. S.CJt. 390, 7 Can. By. Cas. 130; restored in [1909J 
 A.C. 361. 9 Can. By. Ca& 140.] 
 Can. By. ll Dig.— 27. 
 
418 FIRES. 
 
 Combustibles left on right-of-way. 
 
 The question for the jury was, whether or not the place of origin of the 
 fire which caused the damages was within the limits of the "right-of- 
 way" which the defendants were, by the Railway Act, 1903, obliged to 
 keep free from unnecessary combustible matter, and their finding was 
 that it did, but the charge of the Judge was calculated to leave the im- 
 pression that any space where trees had been cut, under the powers con- 
 ferred by s. 118 (j) of that Act, might be treated as included within the 
 "right-of-way" and, in effect, made a direction, on issues not raised by the 
 pleadings or at the trial, as to negligent exercise of the privilege con- 
 ferred by that section: — Held, that, in consequence of the want of more 
 explicit directions to the jury on the question of law and the misdirection 
 as to the issues, the defendants were entitled to a new trial. The Court 
 refused an application by the respondents, on the hearing of the appeal, 
 for leave to supplement the appeal case by production of plans of the 
 right-of-way which had not been produced at the trial, as being contrary 
 to the established course of the Court. 
 
 Red Mountain Ry. Co. v. Blue, 7 Can. Ry. Cas. 150, 39 Can. S.C.R. 390. 
 
 [Reversed in [1909] A.C. 361, 9 Can. Ry. Cas. 140.] 
 
 Damages by fire — Ignition of combustible matter ox railway. 
 
 By s. 239 of the Railway Act, 1903, c. 58, it is provided that the re- 
 spondent railway company shall at all times keep its right-of-way free 
 from combustible matter, subs. 2 providing that when damage is caused by 
 a fire started by a railway locomotive the company shall be liable whether 
 guilty of negligence or not, in the latter case tlie liability being limited 
 to a specified amoimt. Where ignition occurred from the respondents' 
 engine sparks at a rocky bluff shewn by a map filed by them in the De- 
 partment of Railways and Canals under s. 134 of the Railway Act of 
 1888. repeated by s. 128 of the later Act, to be within the delineated right- 
 of-way, the respondents were lield to be liable, for the damages assessed 
 by the jury. The Supreme Court of Canada, having on the objection of 
 the respondents refused to admit the map in evidence on the ground that 
 it had not been tendered at the trial, ordered a new trial: — Held, that 
 whether or not the Supreme Court was right in refusing to admit tlie 
 map their lordships would admit it, that it was conclusive in favour of the 
 appellants, and that there had been no misdirection. 
 
 Blue V. Red Mountain Ry, Co., 9 Can. Ry. Cas. 140, [1909] A.C. 361. 
 
 [Followed in Dutton v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 72.] 
 
 Sparks from a locomotive — Joinder of plaintiffs. 
 
 If it appears from the evidence that there was no other possible cause 
 for the starting of a prairie fire near a railway track than sparks from a 
 passing locomotive, the proper conclusion to be drawn is that the railway 
 company is liable, notwithstanding that the sparks must have carried the 
 fire an unusual distance and that no evidence was given as to the condi- 
 tion of the smoke stack and netting at the time. A number of plaintiffs 
 joined in the Tait case presenting separate claims for losses by the same 
 fire which plainly appeared by the statement of claim, to which the de- 
 fendants filed a statement of defence without having moved to strike out 
 any of the claims: — Held, without deciding whether Rule 218 of the King's 
 Bench Act justified the joinder of plaintiffs in this case, that it was too 
 late to take the objection of misjoinder at the trial. A deduction was 
 ordered to be made from plaintiff's counsel fees for the trial, because con- 
 siderable time was taken up in proving title to the property destroyed 
 
riRES- 419 
 
 wkiA tbe defadants lad aot beat asked to adBit^ and wliiek would Ik 
 facBOMd fimn bcic possessiam as aetmut tortfaaaors. 
 
 Tait T. Can. Pac. Ry. Co.; Bain v. Can. Pae. Rr. Co.; KeDett t. Gaa. 
 Pae. Rt. Co., 6 Can. Ry. Cas. 417, 16 Man. LJL 391- 
 
 [RefoTcd to in ClaA t. Waid, 2 Jklta. L.R. 468.] 
 
 CoxsounATiox or actioxs. 
 
 The consolidation of fonr actions, each br a different plaintiff against 
 the same defendants, eannot, upon the motion of the eonuBoa defendants, 
 be granted either in the strict sense of the word "coaaolidation," to star 
 absolatelr the proceedinos in three actions and to require the plaintiffs to 
 unite all their claims in <me action, or, in the looser and less accurate 
 sense, to sdeet one action as the test action and star the trial of the 
 othos pending the determinati<» of the test action, as the particular is- 
 soes in each case would be distinct from the issue in the others, though 
 cncii action vas based uptm an alleged injury to the premises of the plain- 
 til^ caused by the spread of the same fire negligently set out by the de- 
 fendants on their land and negUgently allowed to spread to the plaintiff's 
 huid. [2 DIjlJL 900, 3 O.W.X. 1015, affirmed.] [Amos v. Chadviek ( 1877 i . 
 4 Ch. D. 869, affirmed (1878>, 9 Ch. D. 459; Westbrxmke v. Australian 
 RJI.S.X. Co. <1853», 23 LJJf.S. C.P. 42; Lee v. Arthur (ISOSi, 10ft 
 I-.T.R- 61; Williams t. Raleigh. 13 P.R- (Ont.i 50. specially referred to.] 
 
 Knnla r. Moose Mountain (Xo. 2), 5 DJLR. S14. 26 OJIr. 332. 
 
 FiBE FBOK IjOCOMOTITE — DaHACE TO "STAXBIXG BCSH^ — ^LaXDS" — ^"PlAX- 
 TATIOXS." 
 
 In an action taitN^t tmder s. 29S of the Railway Act. 1906. to recover 
 the amoimt of damage caused to "standing bash" on the plaintiff's land 
 by a fire, alleged to have been started by a locomotire of the defendants 
 there was a c<mflict of eridence as to whether the tire which actually did 
 tke damage spread to the plaintiff's land from a fire started by the de- 
 fwMlinln* loeomotive, or from a fire started on the land of one H.: — ^Held, 
 that there was evidence to justify the written finding of the jury that the 
 dasuge to the plaintiff's property was caused by fire from the defendants' 
 loeomotiTe, and that an apparently inconsistent oral response made by 
 the foreman to a question put by the trial Judge, was on the CTidence. 
 reemcilable with the written finding: — Held, also, that "^standing bosh" 
 coaaeB within the prorisions of s. 29$. beii^ included in "lands." notwith- 
 standing the occurrence of '^plantations" in the words of the enactment, 
 "^en^a, lands, fences, plantations, or buildings and their contents.^ In 
 re gard to l^slation of this kind, the rule is to adopt the construction 
 ^ost henHifial to the public; see s. 15 of the Interpretati<m Act. R.S.C. 
 1906, c 1, a. 15. 
 
 CampbeU t. Can. Pae. Ry. Co., 9 Can. ^. Cas. 300, IS OJ:.lR. 466. 
 
 Spa«ks FnoM iocx)iiOTrvT: — Pboxluatf cacse. 
 
 Plaintiff was the owner of a warehoose in dose proximity to defend- 
 ants' railway. Within six feet of the warehouse be piled a quantity of 
 bar, which became ignited by a spark from a locomotive on the railway, 
 and the fire spread to the warehouse, which was totally destroyed. The 
 jury found tiiat the fire originated from the defendant's engine, bat that 
 tlw plaintiff had been guilty of negligence in stming the hay in such close 
 ptuaimity to the railway: — ^Held, that as the jury had found the plaintiff 
 negligent, and as noA n^igence was the proximate caiee of the damage, 
 he could not recover. 
 
 Cairns t. Can. Xorthem Ry. Co., 9 Can. Ry. Cas. 306, 2 S-L.R. 71. 
 
420 FIRES. 
 
 Destbuction of "crops" — Sparks from; locomotive — Marsh hat cut 
 
 AND baled. 
 
 The Railway Act, 1906, s. 298, enacts that "whenever damage is caused 
 to crops . . . plantations, or buildings and their contents, by a fire, 
 started by a railway locomotive, the company making use of such locomo- 
 tive, whether guilty of negligence or not, shall be liable for such damage": 
 — Held, that the plaintiflf was not entitled to recover under the alwve 
 section in respect to marsh hay cut at some distance from the railway and 
 baled and piled on the property of another person along a siding of the 
 defendants, to which place it had been carried while awaiting shipment, 
 and where it had been destroyed by fire caused by sparks from one of the 
 defendants' locomotives. Judgments of Teetzel, J., and a Divisional Court 
 reversed. 
 
 Fraser v. Pere Marquette Ry. Co., 9 Can. Ry. Cas. 308, 18 O.L.R. 689. 
 
 [Referred to in Ottawa Y.M.C.A. v. Ottawa, 20 O.L.R. 567.] 
 
 Fire spread to ADjoiiaNo property — Condition of right-of-way — Origin 
 
 OF FIRE. 
 
 Fire was seen smouldering in a dry stump on a high bank, about level 
 with an engine smokestack, on defendant company's right-of-way. Evi- 
 dence was given tliat one engine passed the place ten hours, and another 
 six hours previously. Evidence also went to shew that the right-of-way 
 contained intlammablo material, and that there were other fires, whose 
 origin was unknown, in the vicinity of the right-of-Avay. The fire in ques- 
 tion was first seen by some of plaintiff's workmen, when it was insignificant 
 in extent and the weather was calm, but the wind rising, the fire spread 
 and burnt plaintiffs' mill property and a large extent of timber area: — ■ 
 Held, on appeal (affirming the finding of Irving J., at the trial, dismissing 
 the action ) , that there was no evidence to connect tlie setting of the fire 
 by sparks from the defendant company's engines. 
 * Laidlaw v. Crow's Nest Southern Ry. Co., 10 Can. Ry. Cas. 27, 14 B.C.R. 
 169. 
 
 [Affirmed in 10 Can. Ry. Cas. 32, 42 Can. S.C.R. 355.] 
 
 COMBUSTlnLE MATTER ON BERM — ORIGIN OF FIRE — DAMAGE TO ADJOINING 
 PROPERTY. 
 
 In an action against a railway company subject to the British Columbia 
 Railway Act, if there is no evidence that the company had knowledge or 
 notice of the existence of a fire on their right-of-way, not caused by the 
 operation of the railway, the fact that the condition of the right-of-way 
 facilitated the spread of the fire to adjoining property which was de- 
 stroyed by it does not amount to actionable negligence. [10 Can. Ry. 
 Cas.' 27, 14 B.C.R. 169, affirmed.] 
 
 Laidlaw v. Crow's Nest Southern Ry. Co., 10 Can. Ry. Cas. 32, 42 Can. 
 S.C.R. 355. 
 
 Cause of fire — Sparks from railway locomotive — Conjecture. 
 
 In an action to recover damages for the destruction of property of the 
 plaintiff by fire alleged to have been started by sparks from a locomotive 
 of the defendants, tlie trial Judge, MacMahon, J., found in favour of the 
 plaintiffs: — Held, by a Divisional Court, reversing the finding, which was 
 based upon a misapprehension of the evidence, that the plaintiffs had 
 failed to meet the onus cast upon them by the law and to prove that the 
 fire which caused the damage came from the defendants' engine. In every 
 case there must be evidence from which it can fairly be inferred, not sim- 
 ply guessed, that the damage was caused by the defendant. [Connacher v. 
 
FERES. . 421 
 
 Ttmmto, an unreported dcdsian of the Qneca's Beacli DirisioiL, 4tk Ibuck, 
 1893. and Cunplidl ▼. Atiam TaaBin; Gol, am onrpported deosioB of the 
 Court of Af^eal, S9lfc Jne, 1900^ •peaallr re f erred Iol] 
 
 Beal V. ^firbigan Gentral Rj. Co^ 10 Can. Rj. Ca& 37, 19 OXJL aCS. 
 
 [ApproTed in Gordoa r. Goodvin, 20 OJ^R. 3±T; Rraa t. Mdntoah, 2Q 
 Oi-R. 31.] 
 
 PR^niE FBK — gt AlLTOK T AITTBOUTT FOB SETTCCG FIKC — WaXT OF WKATMS- 
 ABLE CASE — COX^IXT OT ADJOTSXSG LAXDOITXESS. 
 
 D^CBdant in the Hoath of September undertook to bum a firegaaid aloi^ 
 its tnek. No guards vere ploughed before the fire was set. The defend- 
 antB* fwnwiB wmt ahead of the other enpfcjrces and fired the prairie^ and 
 the others foUoved at some distance with appiianees fur erti^nMhing fire. 
 The vind was blowing in gv^^ and awaj fron the track, and the aen 
 ame unable to stop the fire, whiefi escaped and burned the |daintifr$ crop. 
 The drfendants soogfat to explain their iw^leet to plough a guard on the 
 grovnd that the guard must be 300 feet from the line, and to do so ther 
 ■mst hare trespa&^ed oo the {HropertT of others. It was not shewn, how- 
 erer, that the owners of su«b land had refu«ed perws^ioB to phx^b a 
 guard thereon. The d^endants, after fiiii^ a defence, obtained leave to 
 par certain moner into Court, and paid a certain sob in. but gave no 
 notice of payment: — Held, that while the c<»ipanT had a ri^t to bom 
 its r%bt-of-waT and was required br the Railway Act to do so, jet in ao 
 bumii^ it most exercise reasonable care to see that the fire does not e^ 
 eape^ (2) That the degree of care required varies at different seasons, 
 and when the grasses are dry and the conditaoos are caadnelTe to the 
 ^read of fire especial care is required, and the staitii^ of a fire w^en the 
 eoaiditions are farourable to its escape without proper guard and |Hccaa- 
 taoBS is prima facie negligent. (3) That the companj was not t unmd 
 frvaa ea^pljing with the statutory prorisions as to plou gh e d guards hy 
 leaaon of ^e fact that s«4i guards would hare to be ploog^ed on the 
 fiup e ilj of others, unless it was diewB that sadi adj<HBii^ IsBdowners 
 rrfused to permit such guards to be phmghed. (4) That bo notiee of pay- 
 meat in of the amount awarded as damages ha t ing been giroi by the 
 defendant to the plaintiff', the defendant was not ^rtitled to be rriiered 
 of costs by such payment in. 
 
 Keonermann t. Can. Northern Ry. Co. (Sa^.). 10 Can. Ry. Cas. 287. 
 
 LlABIlJTT FOB FOES FlKE STXKTTSG OX BICHT-fiS'-WAT ^BbEACH OF STATtT- 
 
 TOBT DCTT. 
 
 Under c. 91 of RJS.X.S. 1900. which requires a railway to dear from 
 off the sides of its roadway, wbrre it parses throi^h woods, all comlms- 
 tihle material, it is answerable for the value of property adjacent to its 
 roadway that was destroyed by fire which was started on the roadway 
 by ^arks from engines, in an accumulation of dried grasa^ iera&. bushes, 
 aad turf. [Rainville v. Grand Trunk. 25 AJL (Ont.» 242, affirmed, sub 
 bob. Grand Trunk v. Rainville, 29 Can. S.CJL 201, speejally referred to.] 
 
 Schwartz v. Halifax k S. W. Rv. Co. (N.S.ii. 14 Can. Rv. Cas. So. 4 
 DiJl. «91. 
 
 [Affirmed in 15 Can. Ry. Ca5l 186. 11 D.L.R- 790, 47 Can. S.CJL 590.] 
 
 LlABIUTT Ft» nBES BbEACH OF STAITTOBT DCTT — CoiC W: S T IBL ES. 
 
 Since an absolute duty is imposed on a railway company by R.SJCi<:. 
 1900, c. 91, to at all times keep its ri^t-of-way wli«e it pasises through 
 wttods, clear from all combustible material, such as bushes, grass and fern, 
 it is answerable for damages caused an adjoining landowner by fire started 
 
422 EIRES. 
 
 in an accumulation of combustible material on its right-of-way, by sparks 
 from a locomotive. [Schwartz v. Halifax & South- Western Ry. Co., 4 
 D.L.R. 691, 14 Can. Ry. Cas. 8.'), 46 N.S.R. 20, affirmed.] 
 
 Halifax & South-VYestern Ry. Co. v. Schwartz, 11 D.L.R. 700, 47 Can. 
 S.C.R. 590, 15 Can. Ry. Cas. 186. 
 
 Proximate cause — Sprk.\d of fire — Several coxcurrext fires as cause 
 Where it appears that the loss by fire was occasioned by tlie concur- 
 rence of several fires for only one of which the defendant was liable, a re- 
 fusal to put to the jury the question of what other fires were burning at 
 Ibe time in tliat vicinity and which one or more of such fires occasioned or 
 contributed to the l)urning of the plaintiff's property, will not justify a 
 new trial, where the Judge in his instructions to the jury fully covers 
 that point. 
 
 King Lumber Co. v. Can. Pac. Ry. Co. (B. C), 14 Can. Ry. Cas. 313, 7 
 D.L.R. 733. 
 
 [Appeal to Privy Council withdrawn by consent.] 
 
 Sparks from ix)comotive. 
 
 Where, from the testimony, the inference is strong that sparks from a 
 locomotive started a fire at a point off a railway company's right-of-way, 
 where, to the knowledge of the company's servants, the fire smouldered for 
 nearly a month, and then, fanned by a highwind, it spread, jumped across 
 a river and destroyed standing timber belonging to the plaintiff, the com- 
 pany is properly held liable therefor under s. 298 of the Railway Act, 
 1900. 
 
 Farquharson v. Can. Pac. Ry. Co., 15 Can. Ry. Cas. 190, 3 D.L.R. 258, 
 20 W.L.R. 914. 
 
 [Followed in Kerr v. Can. Pac, Ry. Co., 12 D.L.R. 425, 15 Can. Ry. Cas. 
 193.] 
 
 Fires — Locomotive — Ixffjience. 
 
 The fact that no fire was seen at or near a railway track until twenty 
 minutes after the passage of a railway locomotive wliich had not been 
 recently inspected, justified an inference that the fire originated from 
 sparks from such locomotive. [Farquharson v. Can. Pac. Ry. Co., 3 D.L.R. 
 258, followed. (See also Railway Act, 1919, s. 231).] 
 
 Kerr v. Can. Pac. Ry. Co., 15 Can, Ry. Cas. 193, 12 D.L.R. 425. 
 
 [Afilrmed in 16 Can. Ry. Cas. 25.] 
 
 Crown timber licexcee — Right of licexcee to sue for damages. 
 
 An action for damage by fire to timber growing on lands held under 
 license from the Crown can be maintained by the plaintiff as licencee. 
 
 West V. Corbett, 15 Can. Ry. Cas. 195, 41 N.B.R. 420. 
 
 [Affirmed in L') Can. Ry. Cas. 202, 47 Can. S.C.R. 596, 12 D.L.R. 182; 
 referred to in Greer v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 47.] 
 
 Locomotive of another company avith running bights. 
 
 If the operating railway company contracts to give another railway 
 company concurrent running rig'hts over its line, it must be taken to be 
 "making use of" the locomotive of the company having such running rights 
 within the meaning of s. 298 of the Railway Act, 1906, so aa to fix 
 the granting company with liability for damage caused by sparks from 
 a locomotive of the other company while using the line of the granting 
 company. [Tjemire v. Quebec & Lake St. John Ry. Co., 3 Que. S.C. 
 192, referred to.] 
 
 Fredette v. Grand Trunk Ry. Co., 16 Can. Ry. Cas. 22, 15 D.L.R. 131. 
 
FIRES. 423 
 
 OSIGIX ROM LOOOMOnVE — IlXTTXESCE. 
 
 The fact that no fire was seen at or near a railwar trade until a fevr 
 minutes after the passing of a railvrar locomotive which had not been 
 recently inspected, justifies an inference, where no other cause seemed 
 probable, that the fire originated from sparks frcnn «uch engine, so as 
 to fix the railway with liability under s. 298 of the Railway Act. 1906. 
 [Kerr t. Can. Pac. Ry. Co., 12 DXJl. 42.5. 15 Can. Ry. Cas. 193, affirmed; 
 National Trust v. Miller, 3 D.L.R. 69, referred to.] 
 
 Can. Pac. Ry. Co. v. Kerr, 16 Can. Ry. Cas- 25, 49 Can. S.C.R. 33, 14 
 DJLJL WO. 
 
 DfSTBrcnoX of timber — ^LlMTTATIOJr W AMOXrST BECOTEXABLE — OkDES 
 STATrXG PBOCEEDIXGS PEXDIXG TXIAI. OF ISSCE. 
 
 To determine the proportion of loss by fire which an owner is entitled 
 to recover from a railway company having regard to s. 298 of the Rail- 
 way Act, 1906, the Court may order the trial of an issue to determine, 
 first, whether the fire causing the damage resulted from the negligence of 
 tlie company, and second, whether any, and, if so, what claims exist for 
 loss caused to other persons by the same fire. 
 
 Fawcett v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 313. 
 
 Operation — ^Lack of safeft appuaxces. 
 
 The Railway Act. 1906, s. 298, places the onus on the railway company 
 of shewing that modem and efficient appliances were used on the locomotive 
 to prevent the sparks from same causing fires in property adjacent to 
 the railway in order to claim the benefit of the limitation of $.».000. which 
 is made applicaUe by that section in that contingency if the company has 
 not otherwise been guilty of n^ligence. 
 
 Dutton V. Can. North." Ry. Co.. 19 Can. Ry. Cas. 72, 23 D.L.R. 43. 
 
 [Affirmed except as to damages. 21 Can. Ry. Cas. 294.] 
 
 COMBCSTIBLE MATERIAL OX RIGHT-OF-WAT FiRE SPREAorXO ^DAMAGES. 
 
 The persistent failure of a railway company to remove from its right- 
 of-way. as required by statute, growing combustible material likely to 
 catch fire from sparks from the locomotives and to spread to adjoining 
 owners' property is an element to be considered in favour of awarding 
 liberal damages in that contingency. 
 
 Westhaver v. Halifax 4 S.W. Rr. Co., 16 Can. Rv. Cas. 29, 14 Di.R. 
 633. 
 
 Operation — Combustibles ox bight-of-wat. 
 
 Noncompliance with the requirements of s. 297 of the Railway Act, 
 1906, which requires the company to keeps its right-of-way free from dead, 
 dry grass and weeds and other tuine<-essary combustible matter is negli- 
 gence on the part of the railway company. [Blue v. Red Mountain Ry. 
 Co.. [1909] A.C. 361, 9 Can. Ry.'Cas. 140.' followed.] 
 
 Dutton T. Can. Northern Ry! Co., 19 Can. Ry. Cas. 72, 23 D.LJL 43. 
 
 Destructiox of timber — Costributobt xecligexce. 
 
 Where a timber license from the Department of the Interior stipulated 
 that the license should dispose of the tree tops, branches and other debris, 
 of the lumbering operations in accordance with the directions of the De- 
 partment, so as to minimize the danger of fire, but it is not shewn that 
 any directions were given by the Department in that respect, the failure 
 of the lumberman, cutting timber by virtue of such license, to so dispose 
 of the debris is not attributable to him as contributory negligence in an 
 
424 FIKES. 
 
 action against the railway company for the destruction of his logs by 
 fire caused by sparks from the locomotive. 
 
 Button V. Can. Northern Ry. Co., 19 Can. Ry. Gas. 72, 23 D.L.R. 43. 
 
 Timber — Rights of purchaser — Liabiijty of railway company for 
 destruction. 
 
 On a licensee under a timber license from the Department of the Interior 
 making a sale of the logs to another who did tlie lumbering, the logs 
 when cut became the personal property of the buyer and he has the right 
 to maintain an action against a railway company through whose negli- 
 gence the same were destroyed while still on tlie limits, although such 
 buyer had no assignment of the government license. [Booth v. Mclntyre, 
 31 U.C.C.P. 183, distinguished.] 
 
 Button V. Can. Northern Ry. Co., 19 Can. Ry. Cas. 72, 23 D,L.R. 43. 
 
 [Affirmed except as to damages, 21 Can. Ry. Cas. 294.] 
 
 Duty to clear right-of-way — Origin of kikes — Negligence — Onus. 
 
 S. 297 of the Railway Act, 1906, which requires railway companies to 
 keep the right-of-way free from dead grass, weeds and unnecessary com- 
 bustible matter, applies only to a line of railway under operation, not 
 whilst it is under construction; to charge a company with common-law 
 negligence, while constructing a railway, for causing fires by sparks es- 
 caping from locomotives, and from burning logs and rubbish necessary 
 for clearing the right-of-way, the onus is upon the plaintiflF to prove that 
 the fire originated from the sparks, and that the defendant was guilty of 
 negligence in setting-out the fire or allowing it to escape. Per McCarthy, 
 J.: — A person lighting a fire is not bound, to prevent injury in all events, 
 but only that injury shall not occur through his negligence. [Rylands v. 
 Fletcher, L.R. 3 H.L. 330, considered; Margach v. MacKenzie & Mann, 32 
 W.L.R. 162, affirmed. See also Button v. Can. Northern Ry. Co., 23 B.L.R. 
 43, 19 Can. Ry. Cas. 72.] 
 
 Margach v. Mackenzie, Mann & Co., 20 Can. Ry. Cas. 427, 9 Atla. L.R. 
 548, 28 B.L.R. 1. 
 
 Interest of plaintiff — Wrongful ownex in possession — Jus Tertii. 
 
 One in possession of timber which he has wrongfully taken to his limits 
 from government lands has a sufficient possessory title to maintain an ac- 
 tion for their destruction by fires caused by sparks from locomotives in 
 violation of ss. 297, 298 of the Railway Act, 1906, amended by 1-2 Geo. 
 V. (1911), c. 22, 8. 10. The railway company cannot set up jus tertii. 
 
 Button V. Can. Northern Ry. C, 21 Can. Ry. Cas. 294, 30 B.L.R. 250. 
 
 Originating cause. 
 
 In the absence of evidence of any other probable source, evidence that 
 three locomotives of a defendant railway company passed the spot where 
 a fire originated about the time of the fire, is evidence from which a 
 jury might not improbably infer that the fire was caused by sparks emit- 
 ted from one of these locomotives. 
 
 Hearn v. Nelson, 8 W.W.R. 99. 
 
 FLAG STATIONS. 
 
 See Stations. 
 
 PLAQMEN. 
 See Highway Crossings; Railway Cros&ings; Crossing Injuries. 
 
FRAUD AXD DECEIT. 425 
 
 FQBBCLOSUKB. 
 See BoBds aad Seeanties; Sale. 
 
 FOBSraor GOMPANIES. 
 Sea Bri^BM ; Ous; Bailvay Board; Tdr^nphs; ToOs and Tarifla. 
 
 FQKE8HOKB. 
 
 See Title to Laads, Ibqiropriatiaa: Waters. 
 latcrfexcBce vitli aeeess to Harbour, set InjaBctkm. 
 Power of DowBioa Parliamest to rc^uUbe Pronadal VarvAan mmd 
 Haitov, see ContitatMwal Lav. 
 
 FBAKCHISBS. 
 See Covporate Porers; Bailvaj Sub^idT; Street Bailvaja. 
 
 FBAUD AHD DECEIT. 
 
 ItOfiiviavseaiatiaBS snpportii^ action for deceit. 15 Can. Rr. Gas. 530. 
 
 DCTT OF KAII.WAT COMPACT TO QCOTE COCBECT KATES. 
 
 A raihraT compaoT. as a coMaw earria*. apart froia aar statatorj 
 oUigatioD. is boond to give aeenrate nfonaatioa wbeo requested br any pn>- 
 spettvn aKiH»er as to tbc rate of fre^rt oa goods proposed to be shipped. 
 Tkt f K w imama of s. 339. snbs^ 3, of tke RailvaT Art, 190(S, aiafciag it com- 
 paiborjr apan the agat to prodaee anr particular tariff opcm demand, do 
 ■ot affect the dntr of the eaanaoa carrier at eamman law to ;n^e eorrewt 
 iafonBatkm ob request. If the station agent in the ordinarr eourste of 
 his doctf, vpoB request of prospectire shipper, mi^reprrsent?. even thoii«rh in- 
 ■oeenthr and vithont fraud, the rate of freight on the goods to be shipped, 
 knoving the shipper intends to relv npon the rate quoted in wi«fcing 
 eoBtract of sale of these goods, the railwav companv is liable in an action 
 of deceit for the damage occasioaed to the shipper by his reliaoee upon 
 tlw agent's statement — and this; eren vhere tbe agent was supplied with 
 fan and accnraie infonnatioa by the ennpany and the agent ande snch 
 vaftme representation without the knowledge of the company. ScMUe, 
 if the improper quotation is made negligently, an action for ^*^'j^' 
 based on negl^pHice will probably al:>o Ue. Semble, if, howewr, aar per- 
 son requires and is satisfied with the production of the proper tariff in 
 enmpliinre with the statutorr duty imposed on the railway eaoBpaay, and 
 rdies « his own efforts to a^seertaxa the eorreet rate therefrom, the rail- 
 way company will not be liaUe for any mistakes be may make in the 
 afaaiBee of request for aasistaaee fmn the company's agent. Whcare the 
 riiippa- rdies upon untrue repsvsentations of the froght rate and sdls 
 goods on the haids off the freight rate quoted whi<^ is a l^ser rate than 
 the c o rree t rate, the measure of damages is not the diffetcaee between the 
 rate quoted and the rate paid, bat is the difference, if any, between the 
 net price realized for the goods, and the wholesale price at the point of 
 s h ipmen t at the time of shipment, ^os expenses of sale and shipment. 
 Where the trial Judge adopted an improper measure of damages, the case 
 was remitted to him for naiiiiii mini. Judgment of District Coon Judge 
 
426 FRAUD AND DECEIT. 
 
 affirmed as to defendant's liability, but case renaitted to him for reassess- 
 ment of the damages. 
 
 Urquhart v. Can. Pac. Ey. Co., 12 Can. Ry. Cas. 500, 2 Atla. L.R. 280. 
 
 [Disapproved in Gillis Supply Co. v. Chicago, Milwaukee, & Puget 
 Sound Ry. Co., 13 Can. Ry. Cas. 35, 16 B.C.E, 254.] 
 
 INCOERECT BATE QUOTED BY AGENT. 
 
 Plaintiff company, a British Columbia concern, sought from the defend- 
 ant company's agent at Seattle, Wash., U.S.A., information as to the rate 
 on plaster from a point in Kansas and was given a certain figure per ton. 
 There was some dispute as to wliether the rate quoted was from Kansas 
 to Seattle (according to defendant company's contention) or to Vancouver, 
 B.C. (according to plaintiff company's contention), but a letter from an 
 official of defendant company confirming the quotation of a rate to Van- 
 couver was put in evidence. There was no evidence that there had been 
 any carelessness or recklessness shewn in giving the information: — ^Held, 
 on appeal, reversing tlie finding of tlie trial Judge, that an action of deceit 
 did not lie in the circumstances: — Held, further, that there is no duty 
 cast upon a common carrier to give correct verbal information as to 
 rates: — Held, further, that to entitle plaintiff company to succeed, the 
 Avrong complained of, having been committed in the state of Washington, 
 must be shewn to l)e actionable in British Columbia as well. [Urquhart 
 Co. v. Can. Pac. Ry. Co., 2 Alta. L.R. 280, 12 Can. Ry. Cas. 500, disap- 
 proved.] 
 
 Gillis Supply Co. v, Chicago, Milwaukee & Puget Sound Ry. Co., 13 
 Can. Ry. Cas. 35, 16 B.C.R. 254. 
 
 FREE PASS. 
 
 Injuries to employees traveling on free pass, see Employees. 
 
 rREIGHT. 
 
 See Carriers of Goods; Tolls and Tariffs; Train Serrioti 
 
 FBEIGHT AGENTS. 
 
 See Agents. 
 
 GARNISHMENT. 
 
 See Claims. 
 
 GATES. 
 
 See Fences and Cattle Guards; Highway Crossings; Railway Crossings; 
 Farm Crossings; Crossing Injuries. 
 
 GENERAL ADVANTAGE OF CANADA. 
 
 See Work for General Advantage of Canada. 
 
 GOODS. 
 
 See Carriers of Goods; Title to Goods. 
 
GOVERNMENT ItAILWAYa 427 
 
 GOVERNMENT RAILWAYS. 
 
 A. Contracts. 
 
 B. Ex| t u|Hi«tion ; C<Hiip«isatlon. 
 
 C. V^OgeaBt, in gonenL 
 
 D. Fences and Cattle Guards. 
 
 E. Fires. 
 
 F. Injuries to Eo^kqraes. 
 6. Injnries to Faaaoigers. 
 
 H. Carriage of Goods; I<oss; Damage. 
 
 I. Construction and Operation; Damage. 
 
 Liability of Crown for etnistroction and maintenance of railway bridges, 
 see Bridges. 
 
 i 
 Annotatum. 
 
 Liability of Goremment Railway as a axnmon carrier. 53 CJjuJ. 281, 
 23 Can. Ey. Cas. 305. 
 
 A. O ontr acts. 
 
 Claim rm estka wfWK — Cebtificate of KSGrsvsM. 
 
 The suppliant contracted with the Minister of Public Works, to con- 
 struct, for the sum of $78,000, a deep «ea wharf at the Richmond station, 
 Halifax, agreeably to the plans in the engineer's office and specifications, 
 aad with such directions as would he given by the engineer in charge dur- 
 ing the progress of the work. By the 7th clause of the contract no extra 
 work could be performed, unless "ordered in writing by the engineer in 
 charge before the executicm of the work." By letter, subsequently the 
 Minister authorized the suppliant to make an addition to the wharf, by 
 the erection of a superstructure to be used as a coal floor, for the additional 
 sum of $18,400. Further extra work, whidi amounted to $^781, was 
 performed under another letter from the Public Works Department. The 
 work was completed, and on the final certificate of the GoTemmenfs en- 
 gineer in charge of the works, the sum of ${).6S1, as the balance due. was 
 paid to the suppliant, who gave the following receipt, dated 30th April, 
 1875: — ^^'Iteceived from the Intercolonial Railway, in full, for all amounts 
 against the Government for works under contract, as follows: 'Richmond 
 deep water wharf, works for storage of coals, works for bracing wharf, 
 rebuilding two stone cribs the sum of $n.681.'** The suppliant sued for 
 extra work, which he alleged was not covered by the payment made on the 
 30th .\pril, 1875. and also for damages caused to him by deficiency in and 
 irregularity of payments. The petition was dismisse-i with costs; and a 
 rule nisi for a new trial was subsequently moved for and discharged: — 
 Held, affirming judgment of the Court below, that all work performed by 
 the suppliant for the Govemmmt was either contract work within the 
 plans or specifications, or extra work within the meaning of the 7th clause 
 of the contract, and that he was paid in full the contract price, and also 
 tiie price of all extra work for which he could produce written authority, 
 and that the written authority of the engineer and the estimate of the 
 value of the work are conditions preeedent to the right of the suppliant 
 to recover payment for any other extra work. Henry. J., dissenting. Per 
 Ritchie, CJ.: Neither the engineer, nor the clerk of the works, nor any 
 subordinate officer in charge of any of the works of the Dominion of 
 Canada, has any power or authority, express or implied, under the law 
 to bind the Crown to any contract or expenditure not specially authorized 
 by the express terms of the ccmtract duly entered into between the Crown 
 
428 GOVERXMEXT RAILWAYS. 
 
 and the contractor according to law, and then only in the specific manner 
 provided for by the express terms of the contract. 
 O'Brien v. The Queen, 4 Can. S.C.R. 529. 
 
 Petition of right — Intercolonial railway contract — Condition preced- 
 ent TO RKCOVERY 0¥ MONEY FOR EXTRA WORK — CERTIKU'ATE OF CHIEF 
 
 exci.nkkr — Approval op commissioners — Power to ijixu Crown — 
 Tort — Fraudulent misconduct of Crown's servants. 
 Jones V. Tlie Queen, 7 Can. S.C.R. 570. 
 
 [Adhered to in Bcrlinquet v. The Queen, 13 Can. S.C.R. 74; followed in 
 Tlie Queen v. McGreevey, 18 Can. S.C.R. 384.] 
 
 Tender for work on Intfjicolonial ry. — ^I>iability of Crown — XEc.LEcrr 
 of i.c.r. commissioners — Power to order extra wokk — Certificate 
 
 OP chief ENGINE^3{. 
 
 Isbester v. The Queen, 7 Can. S.C.R. 696. 
 
 Petition of right — Contract for construction of railway. 
 
 The suppliants by their petition of right alleged that they were con- 
 tractors for the building of section No. 4 of the Interv-olonial Ry., and 
 duly entered upon and completed their contract, which contract they al- 
 leged was, under the Act entitled "An Act respecting the construction of 
 the Intercolonial Ry.," within the time, and according to the terms, cov- 
 enants and conditions set forth in said contract. That \v following the 
 directions and instructions of the commissioners and the engineers em- 
 ployed and placed in charge of the said works, which directions and in- 
 structions were given from time to time as provided by the contract, and 
 the said suppliants were bound to follow, and did follow, they performed 
 a large amount of extra work not comprised in said contract, nor in the 
 data furnished to them at the time tlie said contract was entered into, 
 nor in the schedules and specifications referred to in said contract and 
 connected tlierewith, and not intended to be covered by the lump sum, 
 which formed the consideration money of said contract. That they were 
 put to great expense by delays in preparations by the commissioners and 
 engineers, and to great loss and damage by reason of changes and altera- 
 tions necessitated by the unskilful manner in Avhich the works had been 
 laid out by the engineers. That the suppliants were deceived and misled 
 in making their estimates by insufficient and erroneous data in the schedule 
 of works and quantities prepared and published by the chief engineer. 
 That it had not been the usage, nor was it the intention of the parties, to 
 be held to the strict letter of the contract when the scliedule gave er- 
 roneous or insuflicient information, entailing extra work which could be 
 performed only witli ruinous consequences, but they were entitled to be 
 paid for such extra work. The suppliants set out at length tlie various 
 kinds of extra work done and changes made, and prayed for a settlement 
 of accounts, tliat tliey might be allowed their claim for the extra work 
 •lone, for the materials provided by them, for damages resulting from 
 defects of plans, specifications and surveys, from changes made in loca- 
 tion, grade, etc., from the negligence and want of skill of the Government 
 engineers, and for breach of tlie contract in being prevented from proceed- 
 ing witli the work, and that they might be reimbursed sums of money 
 advanced during the progress of the work with interest. The Attorney- 
 General demurred on the following grounds: That it did not appear by 
 the petition that the chief engineer of the I.C. Ry. had certified that the 
 work for or on account of whicli the suppliants claimed had been duly 
 executed, or that the suppliants were entitled to be paid therefor or for 
 
GOVERNMENT RAILWAYS. 429 
 
 may part tkoeoE, mar thmt such eotificate kad been aj^rared of br the 
 oi said railvay as required by s. 18 of tbe Ad of Parlia- 
 of <^— ^«^ cwtitled '"Jbi Act re^ecAii^ the caKstmctkm of the LC. 
 By^" passed ia the 3Ist year of H3I. reign: that H3L was aot leqwiasible 
 in a petitioB oi right for the daiaages^ and iajurieB meatioaed; that it did 
 aot appear by the terais of the eoatract the eoaaufisioaers or th«r m- 
 giaecm woe nader aar obttgataoa to lay oat work or foraLyi speofieations 
 therefor; that it appeared bjr the potion that the extra vork rlaimed for 
 was doaw ia parsuaace of di i et tiu os gJTea by the a^^ineer^ as provided fay 
 the coaAiaet, aad it vas not alleged aay extra paymoit w^as to be made 
 thesefor; that it «as iaimaterial that the schedules of vorks were defec- 
 tive or OToaeoas. be«anse such schedalea were not alibied to hare beca 
 warraated as accurate, but only of probable q[aaBtitie&, aad the demnnvr 
 deaied liability for any of the other aiatteis aieatioBed in the petition 
 oa the grooad that the contract provided for them, or that the work, if 
 doae. aas aot in any way warranted fay H.AL, or had bem done under 
 the directioas of the engineeis acting within the emtract. In the Ex- 
 chequer Court, Henry, J., overruled the demurrer with costs. On appeal 
 to the Suimme Court of Canada by the Attomey-Oeaeral : — ^Held. that the 
 nappliaatu' petition was too indefinite in form, aad was ia$uffirieat ia 
 aat f4*»»g out the c<mtract. and a compliance with the requimnents of 
 a. 18 of 31 Yict. c. 13 4D.it, <»- satisfactory ground of compliance with 
 the eonditioa precede n t required by that section. Appeal allowed. Judg- 
 aMBt of the Exdfaeqoer Court reversed, with leave to the suppliant (the 
 Crowa asseatiag^ to asMiad his petition, on payment of costs of appeal 
 aad dnaurrer. by settiag out the contract and such avcrawats as he 
 might be advised. 
 
 The Qneea ▼. Smith. Ca^ Can. S.C.R. Dig. 1S93, p. 634. 
 
 GowHBntEST cosraACT — AssicxirKvr — Ksowxedge of Mrsi>TEK or Ftrmjc 
 waKs — ^AssEXT or Caowx — Clacse rcoHiBrrcsG jl&sigxicext with- 
 
 ©CT ASSEST. 
 
 The Qneea v. Smith, 10 Caa. S.C JL 1. 
 
 :foe&CH or ooxraACT — ^Agseesiext wtth GovEaxitEyr rom. coamxcocs pos- 
 SESsioar of BAnj»ju» — Misfeasa^ci:. 
 By aa agreeaient entered into between the Windsor i. Aaaapolis By. 
 Co. aad the Govemmoit. approved and ratified fay the Govemor-in-CounciL 
 22Dd September, 1871, the Windsor Branch By., X^ together with cer- 
 tain running powers over the trunk line of the Intoeolfmial, was leaded 
 to the suppliants for the period of 21 vears fran 1st Jaaoaxy, 1S7± The 
 sup^iaats under said agreement went into possessitm of said Windsor 
 Braadi and operated the same thereunder up to the 1st Ai^nst, 1877, on 
 vhidk date C J^.B„ being aad actiag as Superintendent of Bailways. as an- 
 thmiaed by the Government (who claimed to have authority under an 
 Act of the Rarliament of Canada. 37 Vict. c. 16. passed with refcnnce 
 to the Windsor Branch, to transfn- the same to the W.C. By. Co. othrr- 
 wise than subject to the rights of the W. k A By. Co.) ejected suppliants 
 &om aad prevented thean from itsing said Windsor Branch and from 
 pawiiag over the said troak liae; aad four or fivte weeks afterwards said 
 Gofcnment gave over the poa oeari on of said Windsor Branch to the W.C. 
 By. Co., who took and retaiaed pos^essicm thereof. In a suit favought by 
 the W. k A. By. Co. against the W.C. By. Co. for recovery of possession, 
 etc., the Privy Council held that 37 Viet. c. 16 did not extii^inish the right 
 and interest which the W. & A. By. Co. had in the Windsor Brandk imder 
 the agjccneat of Had September, 1872. Oa a petitioa of right bnag 
 
430 GOVERNMENT RAILWAYS. 
 
 filed by suppliants, claiming indemnity for the damage sustained by the 
 breach and failure on the part of the Crown to perform the agreement 
 of 22nd September, the Exchequer Court held that the taking possession 
 of the road by an officer of the Crown under the assumed authority of 
 an Act of Parliament was a tortious act for which a petition of right did 
 not lie. On appeal to the Supreme Court of Canada: — Held, Strong and 
 Gwynne, JJ., dissenting, that the Crown by the answer of the Attorney- 
 General did not set up any tortious act for wliich the Crown claimed not 
 to be liable, but alleged that it had a right to put an end to the contract 
 and did so, and that the action of the Crown and its officers being lawful 
 and not tortious, they were justified. But, as the agreement was still a 
 continuous, valid and binding agreement to which they had no right to 
 put an end, this defence failed. Therefore, the Crown, bj' its officers, hav- 
 ing act«d on a misconception of or misinformation as to the rights of the 
 Crown, and wrongfully, because contrary to the express and implied stipu- 
 lations of their agreement, but not tortiously in law, evicted the sup- 
 pliants, and so, though unconscious of the wrong, by such breach become 
 possessed of the suppliant's property, the petition of right would lie for 
 the restitution of such property and for damages. Prior to the filing of 
 the petition of right, the suppliants sued the W.C. Ry. Co. for the recovery 
 of the possession of the Windsor Branch, and also by way of damages for 
 moneys received by the W.C. Ry. Co. for the freight or passengers on 
 said railway since the same came into their possession, and obtained 
 judgment for the same, but were not paid. The judgment in question was 
 not pleaded by the Crown, but was proved on the hearing by the record 
 in the Supreme Court of Canada, to which Court an appeal in said cause 
 had been taken, and which affirmed the judgment of the Supreme Court of 
 Nova Scotia: — Held, por Ritchie, C.J., and Taschereau, J,, that the sup- 
 pliants could not recover against the Crown, as damages, for breach of 
 contract, wliat tliey claimed and had judgment for as damages for a tort 
 committed by t]ie W.C. Ry. Co., and in this ease there was no necessity to 
 plead the judgment. Per Fournier and Henry, JJ., that the suppliants were 
 entitled to damages for the time they were by the action of the Government 
 deprived of the possession and use of the road to the date of the filing of 
 their petition of right. 
 
 Windsor & Annapolis Ry. Co. v. The Queen and Western Counties Ry. 
 Co., 10 Can. S.C.R. 335. 
 
 [In this case on appeal to the Privy Council the judgment of the Su- 
 preme Court was reversed in part. See 55 L.J.P.C. 41.] 
 
 [Applied in ^IcLean v. The King, 38 Can. S.C.R. 546; discussed in Re 
 Massey Mfg. Co., 11 O.R. 444: distinguished in Brigham v. The Queen, 6 
 Can. Ex. 418: McLean v. The King, 38 Can. S.C.R. 549; followed in R. v. 
 Dartmouth, 17 X.8.R. 317; referred to in Johnson v. The King, 8 Can. 
 Ex. 36!); relied on in Hall v. The Queen, 7 B.C.R. 92; Reg. v. Mowatt, 1 
 X.W. Terr. (Pt. 1) 87.] 
 
 Petition of kight — iNTracoLONiAL ry. contract — Certificate of en- 
 gineer A condition precedent to recover money for extra work. 
 Berlinquet v. The Queen, 13 Can. S.C.R. 26. 
 [Commented on in The King v. Stewart, 32 Can. S.C.R. 499.] 
 
 Contract to build government railway — Conditions precedent. 
 
 The compulsory powers given to the Government of Canada to expro- 
 priate lands required for any public work can only be exercised after com- 
 pliance with the statute requiring the land to be set out by metes and 
 bounds and a plan or description filed; if these provisions are not com- 
 
GOVERXMEXT RAILWAYS. 431 
 
 ^ed with, and there is no order-in-conncil authorizing land to be taken 
 iriMn an order-in-conncil is necessary, a contractor with the Crown who 
 enters npon the land to construct such 'public work thereon is liable to the 
 owner in trespass for such entry. 20 N.S.R. 30, reversed. 
 Keamey t. Oakes, 18 Can. S-'CB. 148. 
 
 Claim fob estsa xxd jjwitioxai. waas^ doxe ox 1-stt8c<hjo-xial Raii.- 
 
 WAT CBBTIFICATE BT CHI^ EXGETEEB — AfPBOTAI. BT COMMI8SIOSEB OB 
 
 HIXISTEK. 
 
 In 1879 the respondent filed a petition of right for $608,000 for extra 
 work and damages arising out of his contract for the construction of s. 
 18 of the LCJl. without baring obtained a final certificate from F.. who 
 held at the time the position of Chief Engineer. In 1880, F. having re- 
 signed, F.S. was appointed Chief Engineer of the I.CJL and investigated 
 the respondent's claim, and reported a balance in his favor of $12<1.371. 
 Thereupon the respondent amended his petition and made a special claim 
 for the $120,371, alleging that F.S.'s report or certificate was a final 
 elosii^ certificate within the meaning of the contract, which question wa< 
 submitted for the opini<m of the Court by special case. This report was 
 never approved of by the I.C.R. Commissioners or by the Minister of 
 Bailways under 31 Viet. c. 13, s. 18. The Exchequer Court, held that 
 ihe suppliant was entitled to recover on the certificate of F.S. On appeal 
 to the Supreme Court of Canada: — Held, reversing the judgment of the 
 £zx^hequer Court, (1) per Ritchie, C-J. and Gwynne, J., that the report 
 of PJS., assuming him to have been the Chief Engineer to give the final 
 certificate under the contract, cannot be construed to be a certificate of 
 the Chief Engineer, which does or can entitle the contractor to recover 
 any sum as remaining due and payable to him under the terms of his 
 contract, nor can any l^al claim whatever against the Government be 
 founded thereon. (2( Per Ritchie, C^J.: — ^That the contractor was not 
 entitled to be paid anything until the final certificate of the Chief Engineer 
 was approved of by the Commissioners or the Minister of Railways [31 
 Vict. e. 13, s. 18, and 37 Vict, c. 15: Jones r. The Queen, 7 Can. S.C.R. 
 570.] (3) Per Patterson, J.: — That although F.S. was duly appointed 
 chief engineer of the LC.R., and his report may be held to be the final and 
 closing certificate to which the suppliant was entitled under clause 11 of 
 the contract, yet as it is provided by clause 4 of the contract that any 
 allowance for increased work is to be decided by the Commissioners and 
 not by the engineer, the suppliant is not entitled to recover on F.S.'s certif- 
 icate. P« Strong and TaschCTcau, JJ. (dissenting) : — ^Ihat F.S. was the 
 Chief Engineer and as such had power under clause 11 of the contract 
 to deal with the suppliant's claim and that his report was ~a final 
 closing certificate'' entitling the respondent to the amount found by the 
 Exchequer Court on the case submitted. Per Strong. Taschereau and Pat- 
 terson, JJ.: — ^That the c^Bee of Conunissioners having been abolished by 
 37 Vict, c 15, and their duties and powers transferred generally to the 
 Minister of Railways, the approval of the certificate was not a condition 
 precedent to entitle the suppliant to claim the amount awarded to him 
 by the final certificate of the Chief Engineer. 1 Can. Ex. 321, reversed. 
 
 The Queen v. McGreevy, 18 Can. S.C.R. 371. 
 
 [Applied in Burroughes v. The Queen, 20 Can. S.C.R. 429; followed in 
 Rosrs V. The Queen, 4 Can. Ex. 397 ; Ross v. The Queen, 25 Can. S.CJL 564; 
 referred to in Goodwin t. Bie Queen, 5 Can. Ex. 324.] 
 
432 GOVEENMENT EAILWAYS. 
 
 Petition of bight — Submission — Mediators — ^Awaed — Reasons fob set- 
 ting ASIDE. 
 
 McGreevy v. The Queen, 19 Can: S.C.R. 180. 
 
 [Referred to in Quebec Bridge & Ry. Co. v. Quebec Improvement Co., 
 16 Que. K.B. 112.] 
 
 Department of railways — Claims for supplies. 
 
 S. 23 of the Act respecting the Department of Railways and Canals, 
 R.S.C. 1886, c. 37, which requires all contracts affecting that department 
 to be signed by the Minister, the Deputy Minister or some person specially 
 authorized, and countersigned by the secretary, has reference only to con- 
 tracts in writing made by that department {Gwynne, J., contra). Where 
 goods have been bought by and delivered to officers of the Crown for pub- 
 lic works, under orders verbally given by them in the performance of their 
 duties, payment for the same may be recovered from the CVown, there 
 being no statute requiring that all contracts by the Crown should be in 
 writing. (Gwynne and King, JJ., contra.) 6 Can. Ex. 39, affirmed. 
 
 The Queen v. Henderson et al., 28 Can. S.C.R. 42.}. 
 
 [Commented on The King v. British American Bank Note Co., 7 Can. 
 Ex. 135; distinguished Ross v. The King, 7 Can. Ex. 287.] 
 
 Accident — Prescription — Construction — Stipulation relieving the 
 Crown of liability — Insurance. 
 Saindon v. The King, 15 Can. Ex. 305. 
 
 Contract betwhien employee and I.C.R. and P.E.T. employees bexiep 
 AND Insurance Association to release Crown of liability — Re- 
 ceipt given in error. 
 Hudon v. The King, 15 Can. Ex. 320. 
 
 B. Expropriation; Compensation. 
 
 Expropriation of land for railway purposes — Value of land fob build- 
 ing purposes — Damages resulting from want of cbossing. 
 
 The Crown had expropriated a certain portion of land which the claim- 
 ant contended was held for sale as building lots. It was established in 
 evidence that such land had not been laid off into lots prior to the expro- 
 priation, and that none of it had, therefore, been sold for building pur- 
 poses. There was evidence, however, to shew that there was a remote prob- 
 ability that the land would become available for such purposes upon the 
 extension of the limits of an adjoining town. By the absence of a cross- 
 ing over the railway, claimant was deprived of access to the shore, and 
 thereby suffered loss in the use and occupation of the property remaining 
 to her: — Held, per Burbidge, J., in the Exchequer Court of Canada (see 
 2 Can. Ex. 21) that, while such remote probability added something to the 
 value which the property would otherwise have had, compensation should 
 not be based on any supposed value of the land for building purposes at 
 the time of the expropriation: — ^Held, also, that claimant was entitled to 
 compensation in respect of the damage resulting from the want of a cross- 
 ing. On appeal by the claimant to the Supreme Court of Canada: — • 
 Held, that the amount of compensation awarded should be increased, on 
 the ground that it did not appear that such compensation was assessed in 
 view of the future damage that might result from the want of a crossing. 
 2 Can. Ex. 21, varied. , 
 
 Kearney v. The Queen (1889), Cass. Can. S.C.R. Dig. 1893, p. 313. 
 
 [Followed in Re Gilbert and St. John Horticultural Assn., 1 N.B. Eq. 
 448; Can. Northern v. Billings, 19 Can. Ry. Cas. 103.] 
 
GOVERNMENT RAILWAYS. 433 
 
 EvriM ' H ATioy — Schtficiexct of awasd. 
 
 Tbe Crowa r epreaea ted by the Minister of Railways and Canals, re- 
 qoiruig a portion of a lot bekxiging to the respondents, for the eoostmc- 
 tion of the St. Charks Branch of the I.CJL, depoi$ited in the proper regis- 
 trj ofiee, in aeeordance with s. 10 of the Government Bftilwars Act. ISSl, 
 a plan of the land so reqaired. and gave notice under s. 15 of said Act, 
 tendering the stun of £2,662.42 as compensation for the land expropriated. 
 The lot in qnestiMi had been used as a cove, where a profitable lumber 
 business had beoi conducted. To enable such a business to be carried on 
 advantageooslv. a valuable wharf was erected, running into deep water. 
 at i^ick vessels of large size could load. Upon the respmidents' refusing 
 to aee^t the sum toidered, the question of the value to be paid hy the 
 CrowB for the land so expropriated, was submitted bv the said Minister. 
 iindrr the provisions of the Government Railways Act, 1881, to the Board 
 of OflBeial Arbitrators of Canada for their investigation and award. The 
 said Board awarded the claimants the amount which had be«i tendered 
 and refused as full compensation for the land expropriated, and all dam- 
 age to the balance of the property, and imposed the cost of the arbitra- 
 tion upon the claimants. The respondents appealed to the Exchequer 
 Court, and Foumier J., who heard the appeal, and before whom one wit- 
 ness on either side was examined, set aside the award of the arbitrators, 
 and allowed the claimants Sll,073 (being $8,500 as damages suffered by 
 the property through the construction of the road through it, and $2^-373 as 
 the value of the land expropriated), also the claimants costs of the ap- 
 peal ( save of their witnesses examined in the Exdieqner Court i and 
 before the arbitrators. On appeal from this judgment the Supreme Court 
 held that the judgment of the Court below was affirmed and the appeal 
 dismissed with costs. 
 
 The Queen v. Murphy, Cass. Can. S.C.R. Dig. 1893, p. 314. 
 
 IxtebcocjOXIai. Rt. extessiox — ^Damages — Scbkissiox — Petitiox or 
 Right. 
 Halifax aty Ry. Co. t. The Queen (1885), Cass. Can. S.CR. Dig. 1893, 
 p. 37. 
 
 Dam A£ss to pbopebtt fvom wobks execcted ox govekxmevt kailwat. 
 
 Where, by certain work done by the Government Railway authorities in 
 the city of St, John, the pipes for the water supply of the city were inter- 
 feted with claimants were entitled to recover for the cost reasonably and 
 properly incurred by their engineer in good faith, to restore their prop- 
 erty to its former safe and serviceable condition, under an arrai^:ement 
 made with the Chief Engineer of the Govemmmt raihray, and upon his 
 undertaking to indemnify the claimants for the cost of the said work. 
 Stnmg and Gwynne. JJ.. dissenting on the ground that the Chief Engineer 
 had no authority to bind the Crown to pay damages beyond any injury 
 done. 2 Can. Ex. 7S. affirmed. 
 
 The Queen v. St. John Water Commissioners, 19 Can. S.C-R- 125. 
 
 AWAKD OF <XnCIAI. ASBITRATOKS COMI^XSATIOX FOK lAJiD TAKEX. 
 
 On an appeal to the Supreme Court from a judgment of the Exchequer 
 Court increasing the amount awarded by the official arbitrators to the 
 claimant for expropriation of land for the I.C.R-: — Held, reversing the 
 judgment of the Exchequer Court and restoring the award of the official 
 arbitrators, that to warrant an interference with an award of value neces- 
 sarily largely speculative an Appeilat? Court must be satisfied beyond all 
 reasonable doubt that some wrong principle has been acted on or some- 
 Can. Ry. L. Dig.— 2S. 
 
4U4: GOVERNMENT RAILWAYS. 
 
 thing overlooked which ought to have been considered by the oflTicial arbi- 
 trators, and upon the evidence in this case this Court refused to inter- 
 fere witlj the amount of compensation awarded by the official arbitrators. 
 
 The Queen v. Paradis, The Queen v. Beaulieu, 16 Can. S.C.R. 716, 1 
 (an. Kx. 191. 
 
 [Applied in Bertrand v. The Queen, 2 Can. Ex. 292; Macartlnir v. He 
 King, 8 Can. Ex. 257; referred to in Re Gilbert & St. John Horticultural 
 Assn., 1 X.B. Eq. 442; relied on in The Queen v. Carrier, 2 Can. Ex. 44.] 
 
 Award of arbitratobs increased by the Exchequer Court. 
 
 In an expropriation of land for the Intercolonial Ry., the award of the 
 arbitrators was increased by the Judge of the Excliequer Court, after addi- 
 tional witnesses had been examined by the Judge. On appeal to the Su- 
 preme Court it was: — Held, affirming the judgment of the Exchequer 
 Court, that as the judgment appealed from was supported by evidence, and 
 there was no matter of principle on which such judgment was fairly open 
 to blame, nor any oversight of material consideration, the judgment should 
 be affirmed. Gvvynne, J., dissenting. 1 Can. Ex. 291, affirmed. 
 
 The Queen v. Charland, 16 Can. S.C.R. 721. 
 
 [Referred to in Re Gilbert & St. John Horticultural Assn., 1 X.B. Eq. 
 442.] 
 
 expbopriatiox for government railway purposes severance of land 
 
 — Farm crossings — Compensation. 
 
 When land expropriated for Government railway purposes severed a farm 
 the owner, altliough not at the time entitled to a farm crossing apart from 
 contract, was entitled to full compensation covering the future as well as 
 the past for the depreciation of his land by want of such a crossing. 
 Gwynne, J., dissenting on the ground that the owner was entitled to a cross- 
 ing as a matter of law. 
 
 Guay v. The Queen, 17 Can. S.C.R. 30. 
 
 [Applied in Grand Trunk Ry. Co. v. Perrault, 36 Can. S.C.R. 677; dis- 
 cussed in Ontario Lands & Oil Co. v. Canada Southern Ry. Co., 1 O.L.R. 
 215.] 
 
 Damages — Farm crossings. 
 
 Where land is taken by a railway company for (he purpose of using the 
 gravel thereon as ballast, the owner is only entitled to compensation for 
 the land so taken as farm land, where there is no market for the gravel. 
 The compensation to be paid for any damages sustained by reason of any- 
 thing done imder and by authority of R.S.C., 1886. c. 30, s. 3, subs, (e), or 
 any other act respecting public woi'ks or government railways, includes 
 damages resulting to the land from the operation as well as from the 
 construction of the railway. The right to have a farm crossing over one 
 of the Government railways is not a statutory right, and in awarding dam- 
 ages full compensation for the future as well as for the past for the want 
 of a farm crossing sliould be granted. Gwynne. J., dissenting, was of 
 opinion that the owner had the option of demanding, and the Gfovernment 
 had a like option of giving, a crossing in lieu of compensation, and that 
 on the whole case full compensation had been awarded by the Court below. 
 2 Can. Ex. 11, reversed. 
 
 Vezina v. The Queen, 17 Can. S.C.R. 1. 
 
 [Adhered to in Guay v. The Queen, 17 Can. S.C.R. 32; applied in Re 
 Armstrong & James Bay Ry. Co., 12 O.L.R. 137, 7 O.W.R. 713; Grand 
 Trunk Ry. Co. v. Perrault, 36 Can. S.C.R. 677; Ontario l^nds & Oil Co. 
 V. Canada Southern Ry. Co., 1 O.L.R. 215; distinguished in Grand Trunk 
 
GOVERNMENT KAILWAYS. 435 
 
 Ry. Co. V. Huard, 1 Que. Q.B. 510; followed in Can. Xortliern Quel)ec Ey. 
 Co. V. Frenette, 10 Que. P.R. 321; Re Van Home and Winnipeg & North- 
 ern Rv. Co.. 16 Can. Ry. Cas. 72, 14 D.L.R. 897; referred to in Xeilson v. 
 Quebec Bridge Co., 21 Que. S.C. 334.] 
 
 Valce of Uiyv taken — ^Awabd by IIxcheqieb Court Judge. 
 
 The Supreme Court of Canada will not interfere with the award of the 
 Judge of the Exchequer Court as to the value of land expropriated for 
 railway purposes where there is evidence to support his finding and such 
 finding is not clearly erroneous. 
 
 Levis V. The Queen. 21 Can. S.C.R. 31. 
 
 [Referred to in Re Gilbert & St. John Horticultural Assn., 1 N.B. Eq. 
 442.] 
 
 Tbanscostixextal Railway Commission — Expropriation. 
 
 The Transcontinental Railway Act, 3 Edw. VII. c. 71, does not expressly 
 empower the Commissioners to deal with compensation for land taken for 
 the railway, and s. !.■>, giving them "the rights, jMJwers, remedies and 
 immunities conferred upon a company tmder the Railway Act," does not 
 confer such power. The Transcontinental Railway is a public work within 
 the meaning of s. 2, subs, (d), of the Exchequer Court Act, and proceed- 
 ings respecting compensation of land taken for the railway may l)e taken 
 by or against the Crown in the Exchequer Court. Judgment of the Exche- 
 quer Court, 13 Can. Ex. 171, reversed. 
 
 The King v. Jones, 44 Can. S.C.R. 495. 
 
 Vesting — Time possession taken. 
 
 Under a, 18 of the Government Railways Act, 1881 [now R.S.C. 1906, 
 c. 143, 3. 22], lands taken for the purposes of a Government railway be- 
 came absolutely Aested in the Crown at and from the time of possession 
 being taken on its liehalf, and compensation must lie assessed in respect 
 of the value of the lands at that period. [The Queen v. Clarke (5 Can. 
 Ex. 64), explained.] 
 
 The King v. Royal Trust Co., 12 Can. Ex. 212. 
 
 Siding — Undertaking in mitigation of da3iages in prior suit. 
 
 In certain expropriation proceedings between the Crown and the sup- 
 pliant's predecessor in title, the Crown, in mitigation of damages to lands 
 not taken, filed an undertaking to lay down and maintain a railway track 
 or siding in front of. or adjoining, said lands, and to permit the then 
 owner, "his heirs, executors, administrators, assigns (and the owner or 
 owners for the time being of the said land and premises or any part there- 
 of and each of them) to use the same for the purposes of any lawful busi- 
 ness to be carried on or done on the Siiid lands or premises." By order 
 of Court the suppliant's predecessor in title was declared to be entitled 
 to the execution of such undertaking. Tlie undertaking was given in 1007. 
 and at that time the lands in question were not being used for any par- 
 ticular purpose. The Crown in execution of its undertaking subsequently 
 laid down a siding in front of or adjoining the said lands. There was, 
 however, a retaining wall between the siding and such lands, and the 
 Crown informed the solicitor of the suppliant on the .>th October. inOf>, 
 that "at any time you may desire, we are prepared to open a way throu^uli 
 this retaining wall so as to give access to the siding in order that y.)u 
 may conduct your business in the manner contemplated in the order <>f 
 the Court"; but, although the suppliant presented his claim for damiiiics 
 on the basis that the Crown had not given him a siding suitable for 
 
43C GOVERA^MENT RAILWAYS. 
 
 carrying on a corn-meal milling business, at the time of the institution of 
 the present proceedings nothing had been done to utilize the property for 
 any particular business: — Held, that upon the facts the Crown had fully 
 complied with the terms of the undertaking mentioned, and that the sup- 
 pliant had not made out a claim for damages. Quaere, whether the suppli- 
 ant had any right to take proceedings to compel the execution of the 
 undertaking by the Crown until the property was occupied for the purposes 
 of some particular business. (2) Whether the suppliant would have any 
 right to enforce a claim for damages in view of the fact that he had no 
 assignment of any such claim from his predecessor in title. 
 Hart V. The King, 13 Can. Ex. 133. 
 
 Value — Prospective capaiiility. 
 
 In estimating the amount of compensation for the expropriation of land 
 by the Crown, the prospective capabilities of the property or its specula- 
 tive value cannot be taken into consideration. Tlie compensation should 
 be measured by the prices paid for similar properties in the immediate 
 neighborhood. 
 
 King v. Blais et al., 18 Can. Ex. 63. 
 
 Residential pboperty — ^Valuation. 
 
 The reinstatement principle cannot be taken as the basis of compensa- 
 tion for residential property expropriated for a public work; nor can 
 the prospective value of the property arising from the construction of the 
 work be taken into consideration. The best guide is the selling value of 
 similar property in the locality. 
 
 King V. Blais et al., 18 Can. Ex. 67. 
 
 Shunting-yard — School — Harijoub — Riparian rights — Consequential 
 injuries. 
 
 The Dominion Government in the operation of its railways, constructed 
 a shunting-yard on lands reclaimed by it from the waters of Bedford 
 Basin, partly in front of the school buildings of the suppliant corpora- 
 tion. The latter owning water lots tliereon, whicli had been improved 
 as a bathing pavilion and wharf in connection with the school, claimed 
 compensation for injurious afl'ection by reason of the construction and 
 operation of said yard: — Held, Bedford Basin being a public harbour at 
 the time of Confederation, was the property of the Dominion by virtue of 
 the B.X.A. Act, and no title to water lots thereon could pass under a pro- 
 vincial grant. [Maxwell v. The King. 40 D.L.R. 715, 17 Can. Ex. 97, 
 followed.] The fact that the suppliant had been allowed a crossing over 
 the railway tracks to reach the beach where its lots were situated, did not 
 give it an irrevocable license as against the Crown, nor could it under 
 the circumstances claim such license as a riparian proprietor, nor could 
 such license be considered as an element of compensation. The injury hav- 
 ing been caused by the operation of works on lands otlier than those ex- 
 propriated from the suppliant, the latter was not entitled to compensa- 
 tion therefor. 
 
 Sisters of Charity of Rockingham v. Tlie King, 24 Can. Ry. Cas. 383, 18 
 Can. Ex. 385, 46 D.L.R. 213. 
 
 Expropriation — PrnLic work — ARAXDo>ArEXT — Revesting of land taken 
 — Compensation — Estimating damages — Constri'ction of statute 
 — Jurisdiction of P^xchequer Court — National Transcontinental 
 Railway Act — Railway Act — Exchequer Court Act — "Expropria- 
 tion Act" — Railways and Canals Act. 
 [Tlie King v, Jones. 44 Can. S.C.R. 495, followed.] 
 
 Gibb et al. v. The King, 52 Can. S.C.R. 402, 27 D.L.R. 262; reversed by 
 P.O. 42 D.I,.R. 336. 
 
GOVERXMEXT RAILWAYS. 437 
 
 GsATEL PIT — Basis of talcx. 
 
 Where land was taken for the pnrpose of a gravel-pit ior a Government 
 Railwav. the price paid on the sale of the land some three years after the 
 expropriation of the right-of-way when the land had been enhanced in 
 value by the operation of the railway, was held to be the best test and 
 starting point for ascertaining the market value of the land. 
 
 DeoMTS T. The King, 15 tam. Ex. 492. 
 
 HonX. FBOFESTT — EaSEMEXT. 
 
 Upon an expropriation by the Crown of a portion of a hotel site for 
 railway purposes, compensation should be allowed <m the basis of a build- 
 ing lot for injury to the property from the constmetion and operation of 
 the railwaT, and for an easemoit of a li^t-trf-way over a street affected 
 by the expropriation. 
 
 The King v. Birchdale, 16 Can. Ex. 375. 
 
 FUMN>tNG FBOM DITCHES. 
 
 The Commissioners of the National Transcontinental Ry. had expro- 
 priated a certain portion of a farm while in the possession of the sup- 
 pliant's predecessor in title and paid him compensation therefor and for 
 all damages resulting from the expropriation — the deed of sale stating 
 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- 
 aooaed hy the failure of the suppliant to open and complete his boundary 
 ditche& 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 auteur (i.e. former owner), and that no claim for damages would 
 lie anleas another expropriation had been made or some new work per- 
 formed, causing damages of a diaracter 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. N^Usence; In 6«nenL 
 
 TiTABn.lTY OF CSOWX F0« XBGUGEXCX. 
 
 The Crown, in its operation of the Intercolonial Kailway. is not a c<»n- 
 mon carrier, and. apart from its statutory duties, is not subject to the 
 duties imposed by the common law upon common carriers. [The Queen 
 T. McLeod, 8 Can. S.C.R. 1; The Queen v. McFarland, 7 Can. S.C.B. 216, 
 referred to.] 
 
 Williams t. Government Railways Management Board, 11 EXJL 10. 
 
 Dascage to fabm fbou ote«flow or water — ^Boc:n)AKT ditches — ^Maix- 
 
 TKXAXCE OW. 
 
 Under 43 Vict. 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 crosised by the railway since 
 1879 unless it is caused by acts or omissions of the Crown's servants, and 
 as the d a m ages in the present case appear, by the evidence relied on, to 
 have been caused through the nonmaintmance of the boundary ditches of 
 c l a im a n t's farm, which the Crown is under no obligation to repair or keep 
 
438 GOVEKNMENT RAILWAYS. 
 
 open, the appellant's claim for damages must be dismissed. 2 Can. Ex. 
 390, affirmed. 
 
 Morin v. The Queen, 20 Can. S.C.R. 515. 
 
 Death arising fbom negligence — Defective engine — Dangerois cross- 
 ing — Undue speed — "Train of cars." 
 
 The husband of the suppliant was killed by bein*; 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. Tlie 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 
 engine and tender by whicli 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 descril)ed. 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. 20 of the Government Railways 
 Act. R.S.C. ]88G, c. 38 (now R.S.C. 1906, c. 3(i 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 
 mutter, comes, in his discretion, to the conclusion not to employ a wateh- 
 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- 
 gerous one. 
 
 JTarris v. Tlie King, 9 Can. Ex. 206. 
 
 Injury to the person — Crossing — Reckless coNincT of driver of ve- 
 hicle. 
 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 runiiing 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) Cnder the law of Quebec 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 
 
 jnred and the railvar aathorities, the former is identified vith the drirer 
 in rei^pect of soefa rerkles^Bess and most bear the respoaabilitr for the 
 aerident. [Mills t. ArmstroBg (The Beminat, I^R. 13 A.C. 1, referred to 
 and distittvuished.] 
 
 Parent v. Ihe King:, 13 Can. Ex. 93. 
 
 [Followed in Minor t. Grand Trunk St. Co., 23 Can. Br. Ca& 194. 33 
 D-L.R. 106.). 
 
 ACCIBEXT TO THE FEBSOX NbSUGK:<CCE OF CWJWS'S SEBTAXTS ACTIOX BT 
 
 PA«EXT or DECEJlSfI> — PeCTMAKT BEAtJI T. 
 
 In the ca$e of death resulting from negtigenee. and an action taken bv 
 the partT entitled to bring the same udcr R.S.X.S. e. 178. s. 5. the dam- 
 ages should be calculated in reference to a reasonable expectation of pecuni- 
 ary benefit, as of right or otbervrise. from the ctmtinuance of the life. 
 Such party is not to be compensated for any pain or suffering arising from 
 the loss of the deceased, or for e3Epenses of aMdieal treatment of the de- 
 ceased, or for his burial expenses, or for fomily mourning. [Oabome t. 
 Gillett, L.R. 8 Ex. 8S. distinguished.] 
 
 McDonald t. The King, 2 Can. Ry. Cas. 1, 7 Can. Ex. 216. 
 
 I.fABnJTT PO« XEGUGESCE — EXCHEQCES ACT. 
 
 To render the Crown liable upon a petiti<« of right for acts of negli- 
 gmce of servants of the Crown in the operation of a Goremment railway 
 within the provisions of the Exdiequer Court Act. R^.C. 1906, c 140, s. 
 20 (f) (amcoMlBent of 1910:. such negligent acts must be the proximate, 
 determining and decisive cause of the injury. 
 
 Charhon t. The King. 8 D.LR. 911, 14 Can. Ex. 41. 
 
 Letq. cwkssixG — PnojEcnsc tkacks. 
 
 The condition of a crossing wherelH- tracks are allowed to project 
 above a highway level in violation of the Government Railways Act ( R^.C. 
 1906. e. 36, s. 16l is negligence which will render the Crown liable for an 
 aeeident caused by round stirpes plac«d between the rails by an unknown 
 person to aasist vehicles across the tncks. 
 
 Belangta- v. The King, 20 Can. Ry. Cas. 343. *4 Can. S.CJL 265, Z* 
 DJ_R. 221. 
 
 XeGUCEXCE CACSEXG death OPfZATIOX €Jir KAII.WAT. 
 
 X«;gligeaee of a servant in the unloading of coal for the Intercolonial 
 RaDway bom a ship moored to a pier is ~in. on or about*' the <q»eration 
 of the railway, within the Exchequer Court Act (R-S.C. 1906. c. 140. 
 &. 20 (f ) ) as amended by 9 & 10 Edw. YII., c 19. for which the Grown is 
 liable. 
 
 B^in T. The King, 33 D.LwR. 203, 16 Can. Ex. 349. 
 
 Pi-BOC woKK — Ooixisiox — Staixed actomobile. 
 
 The collision of a train with an automobile stalled on a level cro«sin: 
 of the Intercolonial Railway, oceaaoned by the delay of the engine driver 
 to apply his iM^es the moment he became aware of the presence of thc- 
 ■Mitor upon the track, is an accident "on a public work*' and caused 
 bj the ^"negligence of an officer or' servant of the Crown while acting with- 
 in the scope of his duties or employn>ent upon, in or about the constroe- 
 tioa, maintenance or c^ration of the Intercolonial Railway," irithiB the 
 meaning of s. 20 of the Exchequer Court Act. 
 
 Dunnett v. The King, 41 DXJL 405. 
 
440 GOVEKNMENT EAILWAYS- 
 
 LeVEX crossing G0VE3tNMENT EaILWAYS 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 ia 
 not for the Court to say tliat 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 tlie meaning of the Uovernment 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 commctne — Quebec law — Employee failing to com ply 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 
 the accident. 
 
 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 luider 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 
 fails. 
 
 Theriault v. The King, 16 Can. Ex. 253, 38 D.L.R. 705. 
 
 Crown's Sessvant — "Upon, in or arout railway" — Death — ^Ieasure of 
 
 DAMAGES. 
 
 Par. (f) of s. 20 of the Exchequer Court Act, R.S.C. 1906, c, 140, 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 Crovni 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. 
 
GOVERXMEXT RAILWAYS. 441 
 
 D. Fences and C^attle Gnaids. 
 
 (1) WIiov the Crovn is not required bv the adjoining proprietcvs to 
 fence its liae of nilwrnr, there is no duty, in fkroar of m trespasser, oisi 
 ^m the Grown bv the provisions of ss. 22, 23 of the Gtifwenment Rsil- 
 vsTS Act to fence as af(»esaid. (2j The soppUant, while working on a 
 j^opertr adjoining the LC^ within the eitr of Levis, was injnred whife 
 JMormtl y trespassing on the right-of-waj. there being no fenee oveted, 
 or oAer Means takoi. by the Crown to mark the boandarr between the ad- 
 JMnii^ pn^erl^ and the railway. It was not alleged that the adjoining 
 owner had reqinested the Crown to feiKe: — Held, that the suppliant had 
 ■ade no ease of n^iigmce against the Oown under suls. (e) of & 20 of 
 BJS.a, e. 140. 
 
 VIger T- The King, 10 Can. Ry. Cas. 201, 11 Can. Ex. 328. 
 
 E. Fires. 
 Fbb occasioned bt nxDcss fbom escixe — GoTBCTMErvr Railwats 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- 
 genee |voTed against the employees of the Dominion Goremmoit in charge 
 of tte train, and it was estaUidied that the engine in qnestixm was of a 
 ■ust approved type, and was equipped with all modem and efficient ap- 
 pliances iar the prevention of the escape of sparks, etc.: — Held, that the 
 ease fell within the provisions of sobs. 2 of s- SI of the Government Rail- 
 ways Act. as amended by 9-10 Edw. VII. c 24, and that the damages must 
 be limited to the sobb of 93.000, to be divided amongst the suppliant and 
 others who had suflincd loss by the fire. 
 
 Ducks T. The King, 10 ELKR. 138 (Exch. Court). 
 
 Fl«E FBOM EXGIXE — NbGLIGEXCE. 
 
 By 7 & S Edw. VII. e. 31, 3. 2. the Government of Canada is liable for 
 damage to property caused by a fire started by a locomotive wvnking on a 
 (sovenunent railway, whether its officers or servants are or are not negli- 
 ^nt^ and by a proviso the amount of damages is limited if modem and 
 efficient appliances have been used and the officers or servants ~have not 
 uihiiaiw; been guilty of any neglig«ce.~: — Held, DOtics, J., di sa e ntii ^ 
 that the esfu'cssion ~have not otherwise be«i gnUtr of any mgligen c e" 
 Means nc^Ugenee in any respect and not merely in the use of a loeooaotiTe 
 eqni^ed with modem and efficient appliances. Sparks from a loeomotive 
 ae* fire to Ae rotrf of a Government building near the railway track and the 
 fire was carried to and destroyed private property. The roof of this build- 
 ing had on several previous oceasicms caught fire in a similar way and the 
 OovcnnMnt officials, though notified on many of such occasions, had mily 
 potched it up without repairii^ it properly: — Held, reversing the judg- 
 ment of the Exchequer Court (12 Can. Ex. 3S9«, that the Govemmoit 
 o ffi rials w«re guilty of negligence in having a building with a roof in such 
 eondition so near to the track, and the owner of the property destroyed 
 was cntHted to recover the total amount of bis loss. 12 Can. Ex. 389, re- 
 voked. 
 
 Leger v. The King. 43 Can. S.CJL le*. 
 
 LlABtUTT FOS XBGOGEXCE — LEASED nOAD. 
 
 The Crown is liable under s. 20 «c> of the Exchequer Court Act (ILS.C. 
 1906. c. 140. as amended in 1910, c. 19 >. for an injury resulting from the 
 negligent settii^ oat of fires by secti<» men on a railway track leased by 
 the Crown and (^wrated as part of the Intercolonial railway system. 
 
 Xew Brunswick Ry. Co. v. The King, 37 D.LJL 366. 
 
442 GOVERNMEI^T RAILWAYS. 
 
 F. Injuries to Employees. 
 Negligence of 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 being 
 unable to get clear was run over by the cars and killed. It was shewn to 
 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 
 such negligence. 
 
 Desrosiers v. The King, 11 Can. Ex. 128. 
 
 [Affirmed in 41 Can. C.S.R. 71.] 
 
 Injury to employeks — Liability of the Crown — CostMox employment. 
 
 Under subs, (c) of s. 16 of the Exchequer Court Act, .10 & .51 Vict. c. 
 16, an action in tort will lie against the Crown, represented by the Goverrj- 
 nient 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 bebalf of herself and her children. The action 
 of the widow is not barred by lier acceptance of the amount of a policy o.' 
 insurance on the life of deceased from the I.C.K. Employees' Relief and 
 Insurance Assn., under the constitution, rules and regulations of which the 
 Crown is declared to be relcascul from liability to make compensation for 
 injuries to or death of any member of the Association. [Miller v. Grand 
 Trunk Ry. Co., [1906] A.C. 1S7, 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 tiie Crown. f\'iscount 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 ovks, another railway. 
 
 Ilie suppliant's husband was mortally injured while employed as a loco- 
 motive fireman on an I.C.R. train, running between Levis and Chaudi&re, 
 at a point on the Grand Trunk Ry. enclosed lietween 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 Vict. c. 8. Over this 
 section of railway the Government operated its trains and locomotive.^ 
 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 witiiin tiie meaning of a. 
 20 (c) of R.S.C. 1906, c. 140. 
 
 Lefran<.oi8 v. The King, 11 Can. Ex. 252. 
 
 Xec.t.iornce of fellow servant — Operation of railway — Defecttve 
 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 altbouuh 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 tiie engine driver 
 killed. In an action to recover damages from the Crown, under Art. lO.lt) 
 C.C. (Que.): — Held, affirming the judgment aj)pealed from (Armstrong v. 
 The King, 11 Can. Ex. 119), that there was such neudigence 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 Met. c. 16. s. 16 (c). im- 
 posed liability upon the down, in such a case, and gave jurisdiction to the 
 
GOVERNMENT RAILWAYS. 443 
 
 Exefcn{iipr Coort to entrrfaia the rlan for daaages; and tbat the defesce 
 that dercascd. havin« obtained satisfaction or "*fff*. ' within the mean- 
 ing of Art. 10t56 C.C. (Que. >, bv reason of the annnal eoatribation made 
 bj the Bailvar Department towards the I.CR. Emplojrees' Relief 4 In- 
 soranee Assn. of which deceased was a monber, was not an answer to 
 the action. [Miller r. Grand Tmnk Rt. Co.. [1906] 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.] 
 
 IXJr«T TO EMPLOYEE LOKD CaMPBEIX'S ACT EXOXEKATIOX FOB UAKnjTT. 
 
 In ?. 50 of the Goremment Railways Act. R.S.C.. 1$S6, e. 38, proridins 
 that "Her Majesty shall not be relicTed from liability by any notice, con- 
 dition or declaration in the event of any damage arising from any ne-^- 
 Ugoice, omismon or default of any officer, employee or servant of the 
 MinistM'.^ the words. *~noti<e. condition or deelaratiim,*' do not include 
 a contract or agreement by which an cnqtloyee has renooneed his right 
 to daim damages fro^ the Crown fKn* injury from negligence of his fel- 
 low serrants. [Grand Trunk Ry. Co. r. VogeL 11 Can. S.C.R. 612, dis- 
 i^^troTed.] An employee on the Intercolonial Ry. became a member o: 
 the LC.R. Relief and A^«nrance -Assn., to the fimds of which the Govem- 
 ment contributed annually :^.00O. In consequence of such contribution 
 n rule of the Aseociatioo provided that the members renounced all claims 
 against the Crown arising from injury or death in the course of their 
 deployment. The employee having been killed in discharge of his duty 
 b^ neg^ence of a fellow servant: — Held, reversing the judgment of the 
 Exdhequn* Coort. 6 Can. EIx. 276, that the rule of the Association was an 
 answer to an action by his widow under Art. 10-36 C.C. (Que.) to recover 
 coaBpensatioa for his death. The doctrine of common employment does 
 ■ot {Memil in the Province of Quebec. [The Queen t. Filion, 24 Can. 
 S.C-R. 4S2. foltewed.] 
 
 The Queen t. Grenier. 2 Can. Ry. Cas. 409. 30 Can. S.C.R. 42. 
 
 [Ccnnmented on in Armstroi^ 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., '34 Can. S.C.R. 45. 3 Can. Ry. Cas. 147.] 
 
 Ofes swncH — Are bbakes — CoTTBiBnoar sbgucexce — Peescwptiox — 
 lyratatrmox. 
 
 Aa injury to a brakeman on a train of the I.C.R.. resulting from the n^- 
 Ql^BBce of the employees of the railway in leaving a switch open without 
 wmmi^, is actionable against the Crown under s. 20 of the Exchequer 
 Court. Act. The suppliant having himself been guilty of contribnttHy 
 me^geaee in failing to hav« on the air brakes, as required by the rules. 
 the doctrine of fante eommnne was applied and the damases assessed ac- 
 emdi^lj'. 2. The doctrine of fellow servant is not in force, in the 
 Plovinee 4^ Qnebec. 3. The prescription for the filing of a petition of right 
 !> interrupted by the deposit of the petition with the Secretary of State. 
 
 IMonne t. The King. IS Can. Ex. 88. 
 
 XoGUGExrE — Yamj — ^IxjrsT TO "nucKMAX — Shi >tisc — ArrtXiscES — Sic- 
 
 XAUS ^LOOKOCT. 
 
 The Crown is not responsible for the death of a trackman run om- by 
 an g»gi»* carefully backing into a yard of the I.C.R.. not occasioned by 
 the ne gligtn ce of any offien- or servant of the Crown in or about the 
 (^pexation of the railway, within the meaning of s. 20 (fk of the Ex- 
 chequer Court Aet. but broogfat about by the negligence of the deceased 
 in havii^ &IIed to ke^ an e^ecially good hx^ont 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 engines 
 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 
 circumstances. 
 
 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., [1906] A.C. 187, and Saindon v. The King. 15 
 Can. Ex. 305, distinguished; Conrod v. The King, 49 Can. S.C.R. 577, 
 followed.] 
 
 Gingras v. The King, 18 Can. Ex. 248, 44 D.L.R. 740. 
 
 Accident to workman repairing cars — Failure to observe rules — 
 Faute commune. 
 Samson v. The King, 15 Can. Ex. 75. 
 
 Regulations — Operation of trains — Negligent signaling — Fault of 
 fellow servant — common fault — boaruing moving train — dis- 
 obedience of employee — voluntary exposurk 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 
 that its relation to the accident was too remote to be regarded as the cause 
 of the injury: — Judgment appealed from, 15 Can. Ex. 331, affirmed. 
 
 Turgeon v. The King, 61 Can. S.C.R. 588. 
 
 Negligence — Ejiployees' relief fund — Validity of contract — Estop- 
 pel. 
 
 The agreement of an employee of the I.C.R., as a condition to his em- 
 ployment, to become a member of the Temporary Employees' Relief and In- 
 surance Association, and under its constitution and by-laws to accept its 
 benefits in lieu of all claims for personal injury, is perfectly valid and may 
 be set up as a complete bar to liis action against the Crown for injuries 
 sustained in the course of employment: By accepting the Ijenefits he will be 
 estopped from setting up any claim inconsistent witii the rules and regula- 
 tions. 
 
 Gagnon v. The King, 17 Can. Ex. 301, 41 D.L.K. 493. 
 
GOVERXMEXT RAILWAYS. 445 
 
 NdGUGEXCE — LSJTBT TO BKAKEMAN ACCIDEXT. 
 
 The death of m brakeman riding on a box car while in the disdiarge of 
 ids duties on the I.C.R. ooeasioned by the overturning of the ear vben it 
 ■nddmly jumped the track, the roadbed and the ear being in perfect con- 
 dition and the train traveling at a moderate speed, must be r^arded as 
 an accident due to an nnforseen event and is not attributable to the ^"lieg- 
 ligence of any oflSeer or servant of the Crown . . . in or about the eon- 
 struetion. maintenanee or operation of the Intercolonial Bailway," within 
 the meaning of s. ±0 of the Exchequer Court Act. 
 
 Thibault v. The King. 17 Can. Ex. 366. 41 D.L1.R. 222. 
 
 G. iDUvxies to PasseDgen. 
 
 XbGUGEXCC «f OOXDrCTO* — IXTITATIOX TO BOAKD T9JkXS. 
 
 The plaintiff, standing on an I.C.R. station platform, and intending to 
 travel upon a train then oppc^ite the platform, hearing the conductor call 
 "all aboard*^ went towards the train as quickly as possible for the purpose 
 of boarding it, and having in her hand a paper box. The conductor, instead 
 of being at his proper place on the platform, had gone to the other side of 
 the train to signal to the engine driver, as he could not be seen from the 
 platform. The train started while the plaintiff was attempting to board the 
 train, and she slipped, owing to the motimi of the train, and was seriously 
 injured. The jury found that the call. **all aboard,'' was a notice to passen- 
 gers to get on board. The Supreme Court of New Brunswick held, that, 
 ahhougfa the plaint iff^s contract was with the Crown, the defendant owed 
 to her as a passenger a duty to exercise reasonable care, and that there was 
 ample evidence of negligence for the jury. The facts will be found fully 
 reported in 19 X.B.R., 3 Pugs, t Bur. 340." and 21 X.B.R. 586. On appeal to 
 the Supreme Court of Canada: — Held, that the judgment of tiie Court be- 
 low should be affirmed. Taschereau and Gwynne. JJ.. dissenting. Per 
 Kitchie, CJT.: — There was no obligation on the part of the passengers to go 
 on board the train until it was ready to start, or until invited to do so by 
 the intimaticm from the conductor, ^all aboard.*' It was his duty to be 
 careful before starting his train to see that sufficient time and opportunity 
 were afforded passengers to board the car in the inconvenient position in 
 which it was placed, and the evidence shewed the defendant exercised no 
 care in this respect. Per Henry, J.: — ^There was no satisfactory proof of 
 contributory negligence oa the part of the plaintiff. The paduge she car- 
 ried was a light one, and such as is often carried by paswwigers with the 
 knowledge and sanction of railway conductors and managers, and a tacit 
 license is. therefore, given to passengers to carry such with them in the 
 cars. The plaintiff violated one of the regulations in attempting to get on 
 tiie car while in motion. But the defendant could not shelter himself un- 
 der those r^ulations. The conductor was estopped from complaining that 
 the plaintiff did what, by calling "all atioard." he invited her to do. After 
 the notification, "all aboard," is given by a conductor, it is his duty to wait 
 a reasonable time for passengers to get to their places. 
 
 Han T. McPadden, Cass. Can. S.C.B, Dig. 1893, p. 723. 
 
 LlABIUTT OF CmOWX TOg, XOXFEAS.C^CE OR MXSFEASAXCK <»■ tTS SEBVAXTS. 
 
 The suppliant purchased, a first-class ticket from Charlottelown to 
 Souris. on the Prince Edward Island Ky., owned by the Dominion of Canada, 
 and. while on said journey, sustained serious injuries, the result of an ac- 
 cident to the train. By petition of right the suppliant alleged that the rail- 
 way was negligently and unskilfully managed and did not carry safely and 
 securely suppliant <m said railway, and claimed $30,000. The Attomey-G^i- 
 
446 GOVERXMENT RAILWAYS. 
 
 era! pleaded that the Crown was not bound to carry safely and securely, and 
 was not answerable by petition of right for the negligence of its servants. 
 The trial Judge found that the road was in a most unsafe state from the 
 rottenness of the ties, and that the safety of life had been recklessly 
 jeopardized by running trains over it with passengers, and that there had 
 been a breach of contract to carry the suppliant safely and securely, and 
 awarded $36.000: — On appeal to the Supreme Court of Canada: — Held, 
 Fournier and Henry, JJ., dissenting, that the establishment of Government 
 railway's in Canada, for the benefit and advantage of the public, is a branch 
 of the public police created by statute for the purposes of public con- 
 venience, and not entered upon or to be treated as a private and mercantile 
 speculation, and that a petition of right does not lie against the Crown 
 for injuries resulting from the nonfeasance or misfeasance, w*rongs, negli- 
 gences, or omissions of duty of the subordinate officers or agents employed 
 on the public service on said railways. That the Crown is not liable as a 
 common carrier for the safety and security of passengers using said rail- 
 ways. 
 
 The Queen v. McLeod, 8 Can. S.C.R. 1, 
 
 Iktendixg passenger waiting fob train — Negligence of crown's serv- 
 ant. 
 
 The suppliant, while waiting on the platform of an I.C.R. station, to 
 board a train, was knocked down by a baggage truck and injured. Tlie 
 truck was being moved by the baggage-master. The evidence shewed that 
 the accident could have been prevented by the exercise of ordinary care on 
 the part of the baggage-master: — Held, that as the injuries of which the 
 suppliant complained were received on a public work, and resulted from the 
 negligence of a servant of the Crown while acting within the scope of his 
 duties and employment, the Crown was liable therefor. 
 
 Sedgewick v. The King, 11 Can. Ex. 84. 
 
 Passenger alighting FROt train. 
 
 Tlie suppliant was a passenger on an I.C.R. train. Owing to the negli- 
 gence of a brakeman in failing to open the vestibule door of the car next 
 to the station platform, and leaving the opposite door open, the suppliant, 
 was compelled to use the latter. While in the act of alighting and before 
 she had reached the ground, the conductor started the train, with the re- 
 sult tliat the suppliant was thrown down and sustained bodily injury: — 
 Held, that both the conductor and brakeman of the train were guilty of neg- 
 ligence upon the facts shewn, and that the Crown was liable in damages. 
 
 Ryan v. Tlie King, 11 Can. Ex. 267, affirmed by Supreme Court. 
 
 Regulations — Liability of crown. 
 
 Where an engine driver of a train on a (Jovernnient railway, in the 
 manner of moving his train at a station, transgressed the regulations of the 
 railway, and a passenger was injured in alighting from the train by reason 
 of the wrongful conduct of the engine driver, a case of negligence was es- 
 tablished for wliich the Crown was liable under the provisions of s. 20 of 
 the Exchequer Court Act, R.S.C. 1906, c. 140. (2) The rule as to the pre- 
 ponderance of affirmative evidence over evidence of a merely negative char- 
 acter as laid down in Lefeunteum v. Beaudoin, 28 Can. S.C.R. 89, applied. 
 
 Hamilton v. The King, 14 Can. Kx. 1. 
 
 Injury to trespasser — Negligence. 
 
 B., in going towards a station of the I.C.R., instead of using a safe public 
 way or road thereto, entered, contrary to s. 78 of the Government Railways 
 
GOVERNMENT RAILWAYS. 447 
 
 Act, upon the track of the railway. Held, that inasmuch as B. was a tres- 
 passer on the trade, the only duty cast upon an engine driver was to 
 abstain from wilfully injuring B. while so trespasssing. and further that 
 inasmuch as the engine driver had applied the emergency brakes as soon as 
 he saw B. on the trad^^ he bad done all he could to avoid the accident, and 
 there was no negligence attributable to him. 
 Brochu V. The King, 15 Can. Ex. 50. 
 
 H. Carxiage of Goods; Itoss; Damage. 
 Cabbige op goods — Bbeacii of coxtbact — D.%MAGEs — Negugexce. 
 
 The suppliant sought to recover a sum alleged to have been lost by him 
 on a shipment of sheep undertaken to be carried by the Crown from Cliar- 
 lottetown, P.E.I., to Boston. The loss was occasioned by the sheep not ar- 
 riving in Boston before the sailing of a steamship thence for England on 
 which space had been engaged for them: and the cause of such failure was 
 lack of room to forward them on a steamboat by which connections are 
 made between the Summerside terminus of the P.ELI. Ry. and Pointe du 
 Chene, N.B., a point on the I.C.R. The suppliant alleged that before the 
 shipment was made the freight agent of the P.E.L Ry., at Cliarlottetown, 
 represented to him that if the sheep were shipped at Charlottetown on a 
 certain date, which was done, they would arrive in Boston on time: — Held, 
 that even if the suppliant had proved, which he failed to do. that this 
 r ep rea e ntation bad been made, it would have been inconsistent with the 
 terms of the waybill and contrary to the regulations of the P.E.I. Ry., and 
 therefore in excess of the freight agent's authority. (2) That the evi- 
 dence did not disclose negligence on the part of any officer or servant of the 
 Crown within the meaning of s. 16 {c\ of the Exchequer Court Act. 
 
 Wheatley v. The King, 9 Can. Ex. ±22. 
 
 lOABmrr op Cbowx as coiimox cabbiex — ^Loss of acid rx taxk cab Dint- 
 
 IXG TKAXSPOBTATIOX— COXTBACT. 
 
 The Crown is not. in r^ard to liability for loss of goods carried, in 
 every respect in the position of an ordinary common carrier. The latter 
 is in the position of an insurer of goods, and any special contract made is 
 in general in mitigation of its commoq-law obligation and liability. The 
 Crown, on the other hand, is not liable at conuuon law, and a petition will 
 not lie against it for the loss of goods carried on its railway except under 
 a contract or where the case falls within the statute, under which it is in 
 t-ertain cases liable for the negligence of its servants < 50-51 Vict, c 16. s. 
 16 >, and in either case the burden is on the suppliant to make out his case. 
 (2) By an arrangement between the consignee of the acid in question and 
 the I.C.R. freight charges on goods carried by tJie latter were paid at stated 
 times each month, and in case anything was found wrong a refund was 
 made to the consignee. In the present case the consignee paid the freight 
 on the acid amounting to $13-).00. no refund being made by the Crown. 
 This amount was paid to the consignee by the suppliant, and it claimed re- 
 coverj- of the same from the Crown in its petition of right. The evidence 
 shewed that by the arrangement above mentioned the freight was not i«y- 
 able on the transportation of the tank car, but on the acid contained in the 
 car, at the rate of 27 cents per 100 pounds of acid: — Held, that the Crown 
 was only entitled to the freight on the numljer of pounds delivered to the 
 consignee at Sydney, and that the balance of the amount paid by the con- 
 signee should be repaid to the suppliant with interest. 
 
 XichoUs Chemical Co. v. The King, 9 Can. Ex. 272. 
 
448 GOVERNMENT RAILWAYS. 
 
 Loss OF GOODS. 
 
 A claim for the loss of goods tlirough the negligence of a servant of the 
 Crown in the operation of the I.C.R. alleging damages caused by negligence 
 of an officer and servant of the Crown, is within the purview of the tiov- 
 eriinient Railways Small Claims Act, 9-10 Edw. VII. (Can.) c. 26, and is 
 within the jurisdiction of a Provincial County Court. 
 
 Williams v. Government Rys. Managing Board, 11 E.L,R. 10. 
 
 Negligexce of statiox-master — Wboxgful delivery of goods. 
 
 A station-master, employed by the Crown in the operation of the I.C.R., 
 who, in the course of his employment, delivers goods to a stranger upon 
 the mere assertion of ownership by the latter, without requiring any bill of 
 lading or other satisfactory evidence of ownership, is guilty of negligence, 
 damages for the loss of which are recoverable by the owner from the Crown 
 in an action on the case, independent of any contract on whieli the cause of 
 action is based, in any provincial Court having jurisdiction to the said 
 amount by virtue of tlie Government Railways Small Claims Act, 9-10 Edw. 
 VII. (Can.) c. 26, s. 2. 
 
 Williams v. Govt. Rys. Managing Board, 11 E.L.R. 10. 
 
 I. Construction and Operation; Damage. 
 
 SMAIX claims act CONSTEUCTIOX AXI) OPERATION. 
 
 Tlie Government Railways Small Claims Act, 1910, c. 26 (D), aa amended 
 l)y Acts 1913, c. 20, 1914, c. 9. does not confer jurisdiction to hear and de- 
 termine claims for damages arising out of the construction of a railway, 
 but merely those "arising out of operation," although the damages result- 
 ing from the construction were caused during the operation of the railway. 
 
 Lewis V. General Manager of Government Railways. 33 D.L.R. 20. 
 
 Negligence — Public work — Railways — Contractor — Sand deposits — 
 Expropriation. 
 
 Damages suffered by a landowner from sand deposits in the course of 
 construction of a Crown railway are only recoverable as against the con- 
 tractors; the injury not liaving resulted from any expropriation of land 
 is not actionable against the Crown under the Expropriation Act, and hav- 
 ing happened 10 acres away from the railway, was not "on a public work" 
 witliin the meaning of s. 20 of the Exchequer Court Act, and therefore not 
 actionable against tlie Crown under the latter statute. 
 
 Theberge v. The King, 41 D.L.R. 282. 
 
 GBADES, SEPABATION OF. 
 
 See Highway Crossings (Bridges and Subways) ; Railway Board. 
 
 GBASS. 
 
 See Weeds. 
 
 HAND CAB. 
 
 See Crossing Injxiries (C). 
 
 Hand car — Signal — Contributory negligence. 
 
 Although small hand cars used for working on railways are not 
 provided with any alarm signal, and although the Railway Act and the 
 
HIGHWAY CKOSSDfGS. 449 
 
 niles of Ike Btwrd do m* call for aaj, jd, as tkew kaad eaxs axe noi 
 iHNnd to atop at craanagB, tl«r dnrcn aoBt aignl tteir a^niack, 
 eitlwr to a^vid a rolHmf or to tmrnkie tfe drncr of a korse mffnmthinf^ 
 the raOvaj to watA Ids kone aad to nastier it u tine. Jkltkc^gk the 
 «»i»«^w «< gni^ •nth agaal is an act of M^i^jeaee zcadenBg the lail- 
 vaj eaapaay liable ia the emt of aa amdent. it is aot so vhea a p a sner - 
 hfi tke TiciiB of the aeeideat. saw the hand ear eoauBg aad 
 took upam fc»^«>tf to cross the railvay. 
 Lcmien ▼. La^geria, M Qoe, SC. 542. 
 
 HA&BOUB& 
 See Waten. 
 
 HEALTH PSOTBCnOH. 
 
 See Medical Atteation. 
 
 Dvtf to ^vfide ho^Htal? aad soi^icai attcsdaace far iajnred 
 ployces, see EapioTees. 
 
 HIGHWAY CBOSSDf 0& 
 
 A. Leave to Crass Hi^nray or Baflway. 
 & P t u toOi —; CnMitesa. 
 
 C. OMftt i t lh i aad MiffMra ; Osala. 
 
 D. Biidscs aad Vladacts. 
 
 E. adnvaya. 
 
 See Crorai^ lajories; Daaa^es (F| ; KaihrsT Crossiogs. 
 
 Coastxuctioa of bridges aad riadneis. ««e BridgesL. 
 
 Plrateetiaa of byways q o awd bnr irrigatioa viwks, see Draiaage. 
 
 lajaactioB la default of e oMp c asa tioa for iaterferaMe with aMcss to 
 bridge bj reason of rail war rrossi^ highvar. see InjoBctioB. 
 
 CoastitatiaaalitT of irtatnte enpovering Railvay Board to order the 
 f uteiAi ci off highvaj crassings. see ConstitatioBal Lav. See Be Oaa. 
 Par. Rr. Col and Yori^ 1 Can. Rr. Cas. 47. ±5 A.R.(Ont.l 65: rerersiBg 
 ia part 1 Caa. Rt. Cas^ 36. 27 O.R. m9: Toronto t. Grand Tmak By. Go., 
 37 Cka. S.C.R. ^ 3 Gaa. Br. Cas. 13a. 
 
 AaaotatifOBS. 
 
 ProtcctioB of higkvaj eroesiags. 3 Can. Rt. Ck& 39. 
 
 Hi^waTs and ri^lit of eontrol and possession of. 3 Can. Rt. Cas. 93. 
 
 R^ht <rf railvaT to eros^ hisbwaT. 1 Caa. Bt. Ca& 335. 5 Caa. Bt. Cas. 
 lOL ' * 
 
 Jarisdietioa of Bailvaj Board as to apportioaiaait <rf coi^ts of h^bwaj 
 ooaoags. 5 Caa. Rt. Ca& 163. 
 
 Hi^vaT aeroes railvar. 6 Can. Br. Ca«. 335. 7 Can. Bj. Caa. S9. 
 
 JnrisdictioB of Board to order bigbva\ aeross rulvaj. 13 Can. Bt. Cas. 
 IX. 
 
 A. LesTe to Cross Higbvay or BaOway. 
 
 DOHCATIOX or HICHVAT. 
 
 A dedication of laad to poblie parpoi«es must be nade with the iaten- 
 tion to dedicate, aad the mate acting «=<> as to lead pcraoas into tbe $up- 
 positioB that a vaj was dedicated to tbe public does aot of itself amooat 
 C*n. Bv. L Dig.— 29. 
 
450 HIGHWAY CROSSINGS. 
 
 to dedication. [Simpson v. Attorney-General, [1904] A.C. 476, at p. 493, 
 followed.] 
 
 Can. Northern Ry. Co. v. Billings, 5 D.L.R. 455, 3 O.W.N. 1504. 
 
 Right of railway to cross fuklic highway — Dedication. 
 
 Where it appeared that a testator had for years used as a private road 
 a strip of his lands and in his will reserved the same as a public road 
 by words insufficient to amount to a dedication of such strip for such pur- 
 pose the reservation apparently being made for the purpose of widening a 
 public road which was established many years after he had made his 
 private road on a strip of land adjoining his by the owner thereof, and 
 where an order of the Board granted the application of a railway company 
 for permission to cross the public road which was described in the plan 
 accompanying the application somewhat inaccurately as the road between 
 the testator's land and the adjoining land above mentioned which order 
 was made after a contest which was confined to the terms upon which the 
 railway company should be permitted to cross the public road, nothing be- 
 ing said about the private road and no question being raised as to whether 
 it was or was not part of the public road, such order did not give the 
 railway company any permission to cross the private road. 
 
 Can. Northern Ry. Co. v. Billings, 5 D.L.R. 455, 3 O.W.X. 1504 
 
 Construction of highway across railway. 
 
 In an action to restrain the defendants from acting upon an order of 
 the Railway Committee, made under s. 14 of the Railway Act, 1886, giv- 
 ing them the option to open a new street, by means of a subway, across 
 the property and under the tracks of a Dominion railway company, but 
 without compensation, and requiring the company to pay a portion of the 
 cost of construction, and meanwhile allowing a temporary crossing for 
 foot passengers only, and making certain other provisions, upon the sub- 
 ject: — Held, that the Provincial Legislature alone had power to confer up- 
 on the defendants legal capacity to acquire and make the street in ques- 
 tion. (2) It has conferred such capacity. (3) In virtue of its power 
 over property and civil rights in the province, the Provincial Legislature 
 has power to authorize a municipality to acquire and make such a street, 
 and to provide how and upon what terms it may be acquired and made. 
 (4) But that power is subject to the supervention of Federal legislation 
 respecting works and undertakings such as the railway in question. (5) 
 The manner and terms of acquiring and making such street, and also the 
 prevention of the making or acquiring of such a street, are proper sub- 
 jects of such supervening legislation. (6) Such legislation may rightly 
 confer upon any person or body the power to determine in what circum- 
 stances, and how and upon what terms, such a street may be acquired and 
 made, or to prevent the acquiring and making of it altogether, and there- 
 fore s. 14 of the Railway Act is not ultra vires. (7) Such legislation, in 
 virtue of its power over such railway corporations, as well as such works 
 and undertakings, may confer power to impose such terms as have in this 
 case been imposed upon the plaintiffs, and to deprive such corporations of 
 any right to compensation for lands so taken or injuriously alFected; and 
 has conferred such power on the Railway Committee, under s. 14, in such 
 a case as this. (8) Such legislation has not conferred upon the Commit- 
 tee power to give the temporary footway in question. (9) Nor any 
 authority to delegate its powers. (10^ The work it directs must be con- 
 structed under the supervision of an official appointed for that purpose by 
 the Committee. (11) The railway company may, if they choose, construct 
 
UIGHWAY CUO^SSl^'GS. 451 
 
 the works directed, under such superviaioa, instead of peraitting the 
 mnnieipalitT to do so. 
 
 Grand Trunk Ry. Co. v. Toronto, 1 Can. Ry. Cas. 82, 32 OJL 120. 
 
 [Approved in Re McAlpine and Lake ErieRy. Co^ 3 OJa.R. 230; eoa- 
 sidered in Atty.-Genl. t. Can. Pac. Ry. Co., 11 B.CR. 303.] 
 
 Right to caoss st«eets — Espbopuatiox pcocsesixgs — Xbcessitt fok — 
 Ejetessio-x of crrr uiors. 
 
 RaUways incorporated by the Dominion Parliament, where in the con- 
 stmetion of their lines of railways, they have complied with the require- 
 ments of the Railway Act. 1S88, and oMained the consent of the Railway 
 Committee, hare the right to cross the highways of a city without taking 
 expropriation proceedings imder the Railway .\ct, or without making any 
 compensation to the city therefor. Where under the powers conferred by 
 51 Viet. c. 53, s. 9 (Out.*, for extending the limits of the city of Ottawa, 
 the city acquired at an agreed price, part of the road of a toll road com- 
 pany within such extended limits, such part thereupon ceased to have its 
 previous character of a toll road, and became a highway like the other 
 public streets of the city. 
 
 Canada Atlantic Ry. Co. v. Ottawa, and Montreal k Ottawa Ry. Co. ▼. 
 Ottawa, 1 Can. Ry. Cas. 29S. 2 Ol-R. 336. 
 
 Coxpe;:ssatiox to mcsicipaijtt — Pwtate ow^exship or highway — ".\t 
 OB xkab" cnr — Poweb to take thbocgh corNTv. 
 
 The plaintiffs were authorized by 47 Viet. e. S4 (D. ) to lay out, eon- 
 stmct and finish a railway, from a point on the Grand Trunk Ry. in the 
 parish of VaudreuiL in the Province of Quebec, to a point at or near the 
 city of Ottawa, in the Province of Ontario, passing through the counties of 
 Vaudreuil, Prescott and Russell, and also to connect their railway with 
 any other railway having a terminus at or near the city of Ottawa: — 
 Held, that ~at or near the city of Ottawa^ should be read as **in or near 
 the city of Ottawa," and the plaintiffs were authorized to carry their line 
 to a point in the city and to connect it with the line of the Canadian 
 Pacific Ry. Co. in the city. ( 2 ) That the plaintiffs had power, by implica- 
 tion, to take their line into the county of Carleton. ( 3 1 That the portion 
 of the Richmond road (or Wellington street i within the limits of the city 
 of Ottawa which the plaintiffs' line crossed, was a public highway and 
 not the private property of the defendants. (4i That the plaintiffs, hav- 
 ing takoi the proper proceedings under the Railway Act and being duly 
 authorized to cross the highway, were not bound to make compensation to 
 the d^endants for crossing it. Judgment of Boyd, C, 1 Can. Ry. Ca^ 
 298, 2 OXJL 3.36, affirmed. 
 
 Montreal k Ottawa Ry. Co. v. Ottawa. 1 Can. Ry. Cas. 305. 4 O.L..R. 56. 
 
 >ft:^lClPAI- COBFOSATIOX OPEBATIOX OF BAIl-WAT USE OF STBEETS RbG- 
 
 VLATIOXS. 
 
 By the Nova Scotia statute, 63 Vict. c. 176, the L. & M. Ry. Co. was 
 granted powers as to the use and crossing of certain streets in the town, 
 subject to such regulations as the town council might from time to time 
 see fit to make to secure the safety of persons and property: — ^Held, ro- 
 versing the judgment appealed from. Davies, .J., dissenting, that such r^- 
 iilations could only be made by by-law and that the by-law making such 
 r^olations would be subject to the provisions of s. 2i&4 of "The Towns 
 Incorporation Act." (R.S.X.S. c. 71. • 
 
 Livarpool k Milton Ry. Co. v. Tonn of Liverpool, 3 Can. Rv. Cas. 80, 
 33 Can. &C.R. 180. 
 
452 HIGHWAY C1108SLXGS. 
 
 [Distinguished in Black v. Winnipeg Elec. Ey. Co., 17 Man. L.R. 83; 
 Toronto v. Toronto Ry. Co., 12 O.L.R. 534; followed in Quebec Ry. L. & 
 P. Co. V. Recorder's Court, 17 Que. K.B. 261 ; referred to in Dickie et al. 
 V. Gordon, 39 N.S.R. 331; Leslie v. Malahide, 15 O.L.R. 4; Shawinigan 
 Water & Power Co. v. Shawinigan Falls, 19 Que. K.B. 551.] 
 
 Opebation along highway — Street railway — Leave of municipality. 
 
 The N. St. C. & T. Ry. Co. applied to the Board for leave to cross cer- 
 tain streets in the town of Thorold by a branch line already authorized 
 by the Board. The municipality contended that the applicants' railway 
 i.s a street railway or tramway, or operated as such, and that, under the 
 Railway Act, 1003, s. 184, the leave of the municipality must be obtained 
 by by-law before a street railway or tramway can cross its streets: — Held, 
 upon the evidence, that the proposed branch line is not a street railway 
 or tramway, and that s. 184 only applies to operation along highways and 
 not to crossings thereof. 
 
 Re Niagara, St. Catharines & Toronto Ry. Co. (Thorold Street Cross- 
 ings), 6 Can. Ry. Cas. 145. 
 
 Crossing and diverting highways — ^Taking gravel. 
 
 For the purpose of taking gravel from lands on both sides of a high- 
 way, a railway company applied to the Board for authority to construct 
 and operate tracks over such highway for a term of years, to close to 
 public traffic a portion of such highway, and to open a new road in lieu 
 thereof: — Held, that it is not necessary to comply with s. 141 of the 
 Railway Act, 1!)03, where the company can acquire the lands containing 
 the gravel and has a right-of-way thereto, that for such purposes the com- 
 pany may exercise the same powers for crossing and diverting highways 
 as for the construction and operation of its main line, and that a diver- 
 sion of tlie highway may be authorized for the time necessary to exhaust 
 the gravel pit upon proper terms for safeguarding the interests of the 
 municipality and of the public. Railway Act, 1903, s. 2 (s) and (bb), ss. 
 118 (1) and (q), 119, 141, 186, referred to. 
 
 Can. Pac. Ry. Co. v. North Dumfries, 6 Can. Ry. Cas. 147. 
 
 Highways across railway — Right of private individuals — Public in- 
 terest. 
 Upon applications by certain towns and villages in Alberta in respect 
 of street crossings over the Canadian Pacific Ry.: — Held, that while the 
 Board has no general jurisdiction to determine whether a public right 
 of crossing over a railway exists, yet in eases where it is called upon 
 to exercise the powers specifically conferred upon it, or its jurisdiction 
 to enforce the performance of the duties of railway companies with re- 
 spect to highways, it has incidentally to inquire and determine whether 
 in fact a right of crossing does or does not exist at any particular point, 
 ss. 186, 187, Railway Act, 1903. S. 187 enables the Board to give leave 
 for the construction of a liighway across a railwaj', but does not provide 
 means by which private individuals or bodies not otherwise possessed of 
 power to open highwaj's, can do so. The Board is not authorized to direct 
 or compel railway comi)anics to construct of make highways across their 
 lands, where a public right of crossing does not already exist by law, 
 although it may give leave to a company or some other body to do so. 
 I'hc question as to the power of a railway company to dedicate a portion 
 of ita right-of-way for use as a public highway without the authority of 
 
HIGHWAY CROSSDiGS. 453 
 
 the Railvaj CoBmittee or tke Board mder tht Railvaj Acts reserred for 
 further arjiUKot. 
 
 H^ BiTcr et aL T. Can. Pac Br. Col, 6 Can. Rj. Gas. 344. 
 
 RAn-TAT CBOSSCD BT HIGHWAY — PlOTBCTIOX. 
 
 Application for leare to carry Inkerman street arrot£s the lands of the 
 respondent. Inkerman street was not opened up to the right-of-vaj of the 
 rc-^pondent on the south side and there was a block of land owned ly the 
 reqioDdait between its terminus and the said right-of-wav: — ^Held (1). 
 thai under s. 237 of the Railvay Act. 19M, the Board had jurisdiction to 
 give leave to construct a highway across "any railway." (2) That under 
 u. 2 (21) of the Act. the word "railway" included real property such as 
 the anid VktA of land. (Si That the application should be refused a> not 
 being in the public interest because the crossing would be dangerous and 
 would almost at once require protecticoi. Commissioner McLean ques- 
 tioned whether '^railway ,^ as Used in «. 237, would include more than the 
 fan width ot the right-of-way and not "property, real or personal and 
 works connected therewith." 
 
 St. Thcmas r. Grand Trunk Ry. Co., 13 Can. Ry. Cas. 134. 
 
 Arroano^MEXT of cost — ^Sexiob axd jrxioa srix. 
 
 When a railway is sought to be crossed by a highway the Board will 
 give authon^ for the construction of the crossing, as long as it is anob- 
 jertionable and is constructed in accordance with the standard regulation 
 of the Board, on terms that the cost, under the senior and junior rule, 
 is not thrown on the respondent railway company. The local authorities 
 will determine whether or not to construct the ctxissing. 
 
 Saskatchewan Board of Highway CommLssiooers t. Can. N<Hthem Rj. 
 Co., 19 Can. Ry. Cas. 2^. 
 
 ROAS aixjowa:«s:ces — Bt-law — ^Demcatio^c ami PBEScTtipnonf. 
 
 In the ProTince of Quebec, as distingiushed from Ontario, there are no 
 road allowances, highways beii^ opened across raihrajs (1) by resolu- 
 tion or by-law emanating from the municipal authmitj (2), by the 
 Lieut.-GoTemor-in-Coimcil under art. 2052. R.S.Q. 1909 (3), I7 dedication 
 and prescripticm. Where there is nothing in the application to show that 
 the hi^way concerned was opened before the railway under any of the 
 abore heads, the crossing should be authorized at the municipali^s ex- 
 pense. [Caldwell T. Can. Pac. Ry. Co, 9 Can. Ry. Gas. 497, dtstinguished.] 
 
 Pontiac t. Can. Pac Ry. Co.,* 19 Can. Ry. Cas. 298. 
 
 Pcvuc yECESsrrr — Use« — Excboachmext. 
 
 The Board will recognize the public necessity for a highway crossing 
 OTcr a railway especially at or near a point where for a long period the 
 railway company has allowed the public the use of sn^ crossing and it 
 will order the railway company to make the croissii^ conform to its stand- 
 ard regulations affecting highway crossings as amended May 4th. 19itt. 
 The Board is not called upon to deal with the question of an encroarb- 
 ment by a railway company upon the highway. [Westtm t. Can. Pac. and 
 Grand Trunk Ry. Cos. (Denison ATenue Crossii^ Cas^ No. 593), 7 Can. 
 Ry. Ca& 79, fcdlowed.] 
 
 Moodie t. Ou. Pac. By. Co., 20 Can. Ry. Cas. 217. 
 
 JmsDimox — QcTsnoxs or taw — AcKEEvcvr. 
 
 The Board gare leave to the appellant to appeal on two questions of 
 law: (1) Was the Board bound by the agreement between ei^ of Ed- 
 
454 HIGHWAY CROSSINGS. 
 
 monton and Grand Trunk Pacific Ry. Co., s. 7 of wliicli provides that an 
 application must first be submitted to the Lieutenant-Governor-in-council 
 for approval of the crossing before the application is made to the Board, 
 and, (2) if it was not so bound, do the provisions of s. 7 of the agree- 
 ment mean that the railway company should not pay such expense as is 
 placed upon it by the Board's order? The members of the Court answered 
 the second question in the negative. Tlic Chief Justice and Davies, J., in 
 answer to question 1, said that the agreement was an element to be con- 
 sidered in determining the rights of the parties with respect to the cost of 
 constructing and maintaining the crossing, or the installation or main- 
 tenance of the protection required. Tdington, J.: — ^^Thc question of the 
 bearing of the relation of seniority of construction upon the determina- 
 tion of the proper shares of the costs respectively to be borne by crossing 
 railways is one entirely in the discretion of the Board. [Edmonton v. 
 Grand Trunk Pacific Ry. Co. (Twenty-first Street Crossing Case). 14 Can. 
 Ry. Cas. 93, affirmed.] ' 
 
 Grand Trunk Pacific Ry. Co. v. Edmonton (Twenty-first Street Cross- 
 ing Case), 15 Can. Ry. Cas. 445. 
 
 Public interest — Additional facilities — Jurisdiction. 
 
 The Board, in granting permission under s. 237 of the Railway Act, 
 1906, to a railway company to cross a highway against the protest of the 
 municipality, must be satisfied that the crossing is in the public interest — - 
 e.g., that additional facilities are necessary — but it has no jurisdiction 
 to require, as a condition of granting the crossing, the acquisition of addi- 
 tional lands. 
 
 Can. Northern Quebec Ry. Co. v. Montreal, 18 Can. Ry. Cas. 389. 
 
 Temporary diversion and closing — Compensation. 
 
 The Board, under s. 180 of the Railway Act, 1906, in a proper case will 
 authorize the construction and operation of a temporary spur upon and 
 over a highway and the temporary closing and diversion of a portion of 
 the highway for that purpose, imposing such conditions, including compen- 
 sation to persons directly and specifically injured, as the Board thinks 
 proper. [Can. Pac. Ry. Co. v. North Dumfries, 6 Can. Ry. Cas. 147, fol- 
 lowed.] 
 
 Campbellford, Lake Ontario & Western Ry. Co. v. Camden, 16 Can. Ry 
 Cas. 236. 
 
 Agreement — Abutting i^andowners — Damages. 
 
 When an order has been made authorizing the crossing of certain streets 
 l>y a railway, upon condition that the railway company should enter intu 
 an agreement to indemnify the city against all claims for damages by 
 abutting landowners, the Board will not, after the execution of such 
 agreement, order the railway company to carry out its terms. 
 
 Calgary v. Can. Northern Ry. Co., 18 Can. Ry. Cas. 25. 
 
 Highway crossed by railway — Steam and municipal street railway- 
 Senior and Junior rule — Protection — Apportionment of costs. 
 The Board granted an application, by a municipally-owned street rail- 
 way under s. 227 of the Railway Act, 1906, to cross the tracks of a st€am 
 railway on a city street, which was senior to the tracks of the steam 
 railway. The tracks of the municipally-owned street railway were not 
 considered by the Board as junior to those of the steam railway, and the 
 cost of construction and maintenance of the railway crossing, as well as 
 
HIGHWAY CROSSINGS. 455 
 
 tlie instaUatioii and mantcnaBee of the proteetion, were directed to be 
 borne eqnallT fay the respoadeat and appellant. 
 
 Grand Trunk Pacifie Br. Co. t. Edmontoi (Twentr-fini Street Oussu^ 
 Caaet. 15 Can. Rj. Gas. 445. 
 
 [Ksdagnuhcd in Grand Trunk I^. Co. ▼. Kitcbcaer * Waterloo Street 
 Rt. Co., 24 Can- Ry. Cas. 13.] 
 
 B. Ftotectiaii; Qmwrfngi 
 See also *Xr and •a)." 
 
 SrcsALs jlso WAKfT\Gs — SHr^Tnsc TEAnre. 
 
 S. 256 of the Railway Aet. ISSS. proridin^ tkat nhe bdl with which 
 the eagiae is famished <liall be rung, or the whistie sooaded, at the dts- 
 taacs of at least eighty rods from every placv at vhidi the railway rrosaes 
 aay hi^way, and be kept ri^ii^ or be aooaded at short intervals un- 
 til the ci^:iBe has crossed such highway** applies to shunting and other 
 t M^ ww a ry —wwea ts in oonnectioB with the running of trains as wdl 
 as to the gcaexal traffic. 25 A.R. (Oat.t 437. affirmed. 
 
 Canada Atlantic Ry. Co. v. Henderson. 29 Can. S.C.R. 632. 
 
 [An>lied in McMullin v. Xora Scotia Steel t Coal Co.. 39 Can. S.C.R. 
 606: followed in Wallman v. Can. Pae. Ry. Co., 16 Man. L.R. 91 : Geiger 
 r. Grand Trunk Ry. Co., 10 O.L.R. 511; distinguished in Geiger x. Grand 
 Trunk Ry. Co,, 5 6.WJR. 4^4.] 
 
 Sfwrmc rtmroKuxsct: — Vaguetess axd vscbktaixtt or okdeb or Boabd. 
 
 An order of the Board requiring a railway company to put a highway "^n 
 satisfactory shape for public traveP should not be made a rule of this 
 Court under s. 46 of the Railway Act, 1906, on the af^licatioB of the 
 muniripality interested, because the wording of it is too vague and nn- 
 eertain to permit of its enforcement afterwards if made sodi a rule. A 
 Court of eqni^ would aot decree specifie performance of an agreoaeat 
 couched in sadh vague teran, and ^e cases are analogous. [Taylw v. 
 Portii^oa <1S55«. 7 DeG. M. t G. 328, ivferrvd to.] 
 
 Strathclair v. Can. Northern Ry. Oil, 21 Man. LJL 555. 
 
 Mr3ncxPAi. Bseri-ATiox keqcikixc esectiox or gates. 
 
 By the Act amending the Act of Incorporation of the defieadaak ena- 
 pany. the eompany was given the right to lay its tracks across the streets 
 oi the plaintiff town, provided that before doing so the consent of the 
 town eooaeil should first have been obtained. On application by d^endant 
 to tte town council for permissioB to croa? one of the ^ti ee ta ei the town, 
 a resolatioB was passed granting the application, 'subject to snd rcgu- 
 latioBs as the town council may. from time to time, make to secure the 
 aafel^ either of persons or property." Subsequently, the town council 
 p a ir d a resolution requiring the company to forthwith erect and main- 
 taia two gates, of the latest approved pattern of railway gates, on and 
 across the streets oa either side of the track. Defendant failed to comply 
 with the resoluticm so made: — Held, that the regulation was one that it 
 was within the powers of the town council to make: — Held, that the 
 town eooncil havii^ a special interest in the subject matter, the action 
 could be brought in the name of the town, without j<HniBg the Attomey- 
 Gcaoral: — Hdd, that the regulation in question being made by virtue of 
 a poacr gnca hj a serial act, was not. In the abaeaee of express w<m^ 
 to that effect, a by-law of the town which required the a^oit of the Gov- 
 emOT-in-eooBcfl before going into <qiaati<Hi : — ^Held, that sudi assent was re- 
 
456 HIGHWAY CROSSINGS. 
 
 quired only in connection with the cases specially mentioned in the Act. 
 [Towns' Incorporation Act, R.S. (1900), c. 71, ss. 263, 2G4.] 
 Liverpool v. Liverpool Ry. Co., 35 N.S.R. 233. 
 
 Obligation to erbxtt gates at street crossings. 
 
 A railway company in running its trains through the streets of a town 
 should not only refrain from exceeding the rate of speed prescribed by 
 the Railway Act in passing through crowded places, but slio\ild in addition 
 thereto, in order to avoid liability for accidents, place gates or other pro- 
 tection at the crossings. 
 
 Gerard v. Quebec & Lake St. John Ry. Co., 25 Que. S.C. 245 (Ct. Rev.) 
 
 Right-of-way — Obstruction of highway. 
 
 An action for an injunction to restrain the defendants from obstruct- 
 ing a highway in the township, by fences on both sides of defendants* 
 tracks where they crossed the highway, and for a mandatory order com- 
 pelling the removal of the fences: — Held, that the allowance for the road 
 in question, having been made by a Crown surveyor, was a highway with 
 in the meaning of s. 599 of the Municipal Act, and although not an 
 open, public road, used and traveled upon by the public, it was a high- 
 way within the meaning of the Railway Act, 1888, (2) that, although 
 the road allowance had not been cleared and opened up for public travel 
 and had not been used as a public road, it was not necessary for the 
 municipality to pass a by-law opening it before exercising jurisdiction 
 over it; the council might direct their officers to open the road, and such 
 direction would be suir.cient. (3) Tliat the right of the railway company 
 under s. 90 (g) of the Act to construct their tracks and build their fences 
 across the highway, was subject to s. 183, which provides against any 
 obstruction to the highway, and s. 194, which provides for fences and 
 cattle guards being erected and maintained; and, therefore, the defendants 
 had no right to maintain fences which obstructed the highway or inter- 
 fered with the public user or with the control over it claimed by the 
 municipality. (4) That the Railway Committee had no jurisdiction to 
 determine the questions in dispute; s. 11 (h)' and (q) of the Act not 
 applying. (5) That the Court had jurisdiction to grant the relief sought. 
 (6) That the highway being vested in the township corporation, who 
 desired to open it and make it fit for public travel, the plaintiffs were en- 
 titled to have the defendants enjoined from obstructing it and ordered 
 to remove the fences. [Fenelon Falls v. Victoria Ry. Co. (1881), 29 Gr. 
 4, and Toronto v. Lorsch (1893), 24 O.R. 227, followed.] 
 
 Gloucester v. Canada Atlantic Ry. Co., 1 Can. Ry. Gas. 327, 3 O.L.R. 
 85. 
 
 [Afiirmed in 4 O.L.R. 262, 1 Can. Ry. Cas. 334; followed in Sasman v. 
 Can. Northern Ry. Co., 20 Can. Ry. Cas. 246.] 
 
 Municipal corporation — Liability to repair. 
 
 By 8. 611 of the Municipal Act, R.S.O. c. 23, first introduced into the 
 Municipal Act in 1896, no liability is now imposed on a municipal cor- 
 poraton for want of repair of a railway crossing by reason of its l)eing 
 of too high a grade and the omission to fence, the obligation therefor 
 being under s. 186 of the Railway Act, 1888, solely on the railway com- 
 pany. 
 
 Holden v. Yarmouth et al., 3 Can. Ry. Cas. 74, 5 O.L.R. 579. 
 
HIGHWAY CROSSINGS. 457 
 
 Highways acboss kaii-wat — Right of pbivate rxDmBCALS to make — 
 
 POWEXS OF BOABO AS TO SPECIFIC PEEFOBMAXCE. 
 
 A private individual applied under s, 186 of the Railway Act. 1903. to 
 compel a railway company to make and maintain highway crossings across 
 its railway adjoining the lands of the applicant which had been laid out 
 into town lots with intersecting streets. The municipality had pa>#cd a 
 by-law purporting to establish as public highways such streets 
 without complying with s. 632 of the Municipal Act, R.S.O. 1897, c. 223:— 
 Held (1), under 8. 186 either a railway company or other par- 
 ties may apply to construct such highway crossings. (2) The by-law 
 of the municipality was inoperative to establish a highway across 
 the railway against the will of the company. (3) The Surveys 
 Act, R.S.O.'l897, c. ISl, s. 39, cannot create highways across the land 
 of a railway c-ompany or give any right to the applicant to have his 
 streets extended across the railway. <4) A railway company may, with 
 the leave of the Board. lay out and dedicate portions of its right-of-way 
 for use as highways which the municipality could accept without passing 
 a by-law for that purpose. (5) The applicant is only entitled to an order 
 from the Board authorizing the railway company to lay out and con- 
 struct such highways. The by-law of the municipality may be considered 
 an acceptance of such highways. (6) The Board does not enforce specific 
 performance of such agreements. It is not empowered to compel the rail- 
 way company to construct the highway at the instance of the applicant. 
 (7) As no other Court of authority than the Board can legally allow 
 the railway company or any other person to construct the highway, the 
 application should proceed for the purpose of enabling the Board to de- 
 termine whether it will give this permission. 
 
 Re Reid and Canada Atlantic Ry. Co., 4 Can. Ry. Cas. 272. 
 [Inapplicable in Bird v. Can. Pac. Ry. Co., 1 S.LcR. 279.] 
 
 Cattle gcabbs — ^Towxship bo ads. 
 
 The provisions of 55 & 56 Vict. c. 27, s. 6. amending 8. 197 of the Rail- 
 way Act. 1888. and requiring, at every public road crossing at road level 
 of the railway the fences on both sides of the crossing and of the track 
 to be turned into the cattle guards applies to all public road crossings 
 and not to those in townships only as in the case of the fencing prescribed 
 by 8. 194 of the Railway Act. 1888. [Grand Trunk Ry. Co. v. McKay, 3 
 . Can. Ry. Cas. 52. 34 Can. S.C.R. 81, followed.] 
 
 Grand Trunk Rv. Co. v. Hainer, 5 Can. Rv. Cas. 59. 36 Can. S.C.R. 
 180. 
 
 [Applied in Jolicoeur v. Grand Trunk Ry. Co.. 34 Que. S.C. 460; dis- 
 tinguished in Buck v. Can. Northern Ry. Co., 2 Alta. L.R. 558; Tinsley 
 V. Toronto Ry. Co.. 17 O.L.R. 74; referred to in Eisenhauer t. Halifax k 
 S.W. Ry. Co.," 42 X.S.R. 4.T4.] 
 
 Stveet kailwav i.xTERSEcnox — ^McTaciPAiJTT — Costs. 
 
 By agreement made in 1888 between the town of Chatham and the 
 Ontario & Quel>ec Ry. Co., the company agreed to maintain on two streets 
 gates and watchmen where the railway crossed the highway, and to 
 permit crossings to be made over four streets by the Chatham Street 
 Ry. Co. and "such other companies or corporations as the town miirht 
 from time to time authorize to construct and run street railways in 
 Chatham." By by-law of the city of Chatham passed 1905, the Chatham 
 W. & L.E. Ry. Co. (incorporated by 4 Edw. VII. c. 105. Dom.) was author- 
 ized to lay down and construct a street railway in Chatham and was 
 
458 HIGHWAY CROSSINGS. 
 
 given extensive privileges of running passenger- and freight cars by elec- 
 tric power on certain streets, including those crossed by the Ontario & 
 Quebec Ry. Co. The Chatham W. & L.E. Ry. Co. applied to build and 
 operate its tracks along two streets across tlie tracks of the Canadian 
 Pacific Ry. Co., the lessees of the Ontario & Quebec Ry. Co.: — Held, thai 
 the applicants, although possessing greater powers than an ordinary 
 street railway, came within the terms of the agreement of 1888 as being 
 a company authorized to construct and run a street railway in Chatham: 
 — Held, also, that the consent of the railway company in the agreement 
 of 1888 to permit crossings for street railway purposes did not amount 
 to a consent to permit crossings for all purposes nor require it to bear 
 the cost of any extra i>iotection necessary in consequence of a street rail- 
 way or other railway building across its line, and that the extra expense 
 incurred ought to be borne by the applicants. 
 
 Chatham, Wallaceburg & Lake Erie Ry. Co. v. Can. Pac. Ry. Co., 5 
 Can. Ry. Cas. 175. 
 
 Protection — Omission. 
 
 Where the Railway Committee, in view of a dangerous crossing at any 
 point, has not been invoked under s. 187 of the Railway Act, 1888, to 
 make the necessary regulations to minimize or do away with the danger, 
 a railway company cannot be held to have committed an act of negligence 
 by reason of such omission. 
 ' Andreas v. Can. Pac. Ry. Co., 5 Can. Ry. Cas. 440, 2 W.L.R. 249. 
 [Affirmed in 5 Can. Ry* Cas. 450, 37 Can. S.C.R. 1.] 
 
 Highway not sanctioned by Board — Duty of protection. 
 
 A crossing built by a railway company and designated by a sign as a 
 "railway crossing," which the public is permitted to use, but the opening 
 of which has not been sanctioned by the Board, is not a highway under 
 the Railway Act, 1906, ss. 242, 243. so as to impose a duty on the railway 
 company as to construction and maintenance of fences and the protection 
 of highways, and, therefore, cannot be charged with negligence for any 
 omission to fence or for defective approaches, particularly where the cross- 
 ing had been previously used safely by the same person and others. 
 
 Bird V. Can. Pac. Ry. Co., 7 Can. Ry. Cas. li>5, 6 W.L.R. 393. 
 
 [Reversed in 1 S.L.R. 266, 8 Can. Ry. Cas. 314,] 
 
 Defective construction — Crossing not on highway — Duty of com- 
 pany to fence. 
 
 When a railway company establishes a crossing, not authorized by the 
 Board over its railway, at a point other than on a highway and invites 
 the public to use such crossing, it is the duty of the company to take every 
 precaution for the safety of the public using such crossing and in view 
 of the statutory provision requiring the company to fence the approaches 
 to a railway crossing X)ver a highway properly authorized, the failure of 
 the company to so fence an unauthorized crossing constitutes such negli- 
 gence as will render the company liable for injury to any person sustained 
 on such crossing when the proximate cause of such injury is the failure 
 of the company to fence. 7 Can. Ry. Cas. 195, 6 W.L.R. 393, reversed. 
 
 Bird V, Can. Pac. Ry. Co., 8 Can."Ry. Cas. 314, 1 S.L.R. 266. 
 
 Reopening highway — Conditions as to safety — Contribution. 
 
 On an application to review, rescind or vary a former order of the 
 Board approving the closing of a public highway across the right-of-way 
 
HIGHWAY CROSSINGS. 459 
 
 of a railvar emnpuiT and the »uk?titatH>ii of a stUe therefor: — ^Held (1 ». 
 that conditioiis have greatlv changed since the date of the former order, the 
 reasonable convMeaee of the poblic requires the highvaj to be open, 
 which had nercr hem legallr closed: — HeU (2i. that the application 
 for the reopening of the highwar should be granted on condition that 
 the railvaj coinpanT ciKistract crossing, the citv maintain the same and 
 make sack fhiny ii in the locality as vill render the erosi^xng as safe as maj 
 be under tiie circiuBitaDces. 
 
 VictfHia T. Esqnimalt ta Xanaimo Bt. Co., 9 Can. Rt. Cas, 470. 
 
 HiCHTAT CMXSSED BT EAILWAT DlVESSIOX OT HIGHWAY Pl_SJt AXD P»0- 
 
 rnx. 
 
 Instead of carrying the Saskatchewan Trail beneath their track bj 
 means <A a sabwar. the respondents, by order dated October 29, 1909. 
 were given the alternative of closing the said Trail by the diversion of it 
 to X — tern street, provided that releases from the landowners who might 
 be a ---d were secured and filed. An order was given to the respondmts 
 to expropriate the properties of such landowners as would not give re- 
 leases. Without conforming with the Railway Act, 1906, by filing a plan 
 and profile of the highway diversion, the respondents, by faulty construe- 
 tioB of the works, made the Trail dang«vas and XortOB street impass- 
 able : — Held ( 1 1 . the respondents were and are still trespassers by 
 contravening the act and the Board's permission. (2i The respondent!^ 
 must provide subways at both streets as apparently was their original 
 intention, and not to clo>«e and divert the Trail. (3| The order of Oc- 
 tober 29th, 1909. should be rescinded entirely. C -t > A new order might 
 go requiring the respondents to construct an overhead cnxs^ing for the 
 Saskatchewan Trail, fifty feet in width, abutments parallel with the high- 
 way, or if they chose sixty-six feet in width abutments at right angie<> 
 with railway, to* Detail plans must be filed within thirty days for ap- 
 proval of the Board's engineer, and work completed within ninety days 
 after said approvaL |6> A penalty of ^100 a day for every day's defatilt 
 im obaerring the above conditions. 
 
 EdMmtoB V. Grand Trunk Pacific Ry. Co.. 13 Can. fty. Cas, 444. 
 
 DiAMOXD CBOssrsG — St«eet kailwat — Pwrrecno.x at csossrxG. 
 
 Upon an application to direct the removal of the respondmt's tra^ 
 from a public highway, and by the respondent to legalise its maintenance 
 under sa. 99A. 222. 237 of the Railway Act, 1906. the Board granted the 
 r rKp ami K aVs application upon condition that upon the construction of a 
 street railway upon the highway, diamond crossings should be installed 
 and sufficient protection given at the crosising at the respondents* cAp e na e 
 and that the movonent of the steam railway upon the highway should b» 
 restricted. 
 
 Ottawa V. Grand Trunk Ry. Col, 14 Can. Ry. Cas. 185. 
 
 PTKEEr BAILWAT — ^TeUPOSAKT AXD TtMMJilCKST CKOSSCCG. 
 
 Upca an application to have a temporary right of crossii^ the tracks 
 of a steam railway with the tracks of a municipal electric railway 
 made pennanent, where the highway crossing was permanent, and the 
 respaadent steam railway company had originlly consented to the temporary 
 cmasing, and thereupon permanent works had been constructed by the 
 ■•■■iop^litT, the Board made no order but directed that unless there was 
 an el imia a t i oH of grade or change in the street ear location a systnn of 
 derails ahoold be installed against the electric ear line on account of the 
 dangerous character of the crossing. 
 
 I^thtaridge t. Can. P»e. Ry. Co., 14 Can. Ry. Cas. 345. 
 
4(30 HIGHWAY CROSSINGS. 
 
 Division of highway — New gbade ceossixg. 
 
 The jurisdiction of the Board as to the closing of a highway is limited 
 to the extinguishment of the public right to cross the railway; and this 
 power is ordinarily exercised by first granting permission to divert the 
 highway and afterwards making the order to close the road allowance 
 within the limits of the company's right-of-way after the construction 
 of the new grade crossing on the diverted highway. 
 
 Re Highways and Railway Crossings, 12 D.L.R. 389. 
 
 Width of highway — Restbicting to pobtion devoted to highway' traffic. 
 
 The right of tlie public in a street over a railway right-of way is not lim- 
 ited to the portion planked and gravelled for traffic by reason of the fact 
 tliat no town by-law was adopted for opening the street, under s. 705 
 (b) of c. 57 of 8 & 9 Edw. VII. after the crossing was ordered by the 
 Board, where, prior to application to the Board a by-law was passed 
 authorizing the extension of such street across the right-of-way of the 
 railway companj'; and the latter accjuiosced in the opening of the road 
 for its full width, and subsequently recognized its existence. 9 D.L.R. 
 777, 15 Can. Ry. Cas. 31, reversed. 
 
 Campbell v.\an. North. Ry. Co. (No. 2), 12 D.L.R. 272, 15 Can. Ry. 
 Cas. 357, 23 Man. L.R. 385. 
 
 Abolition of gbade crossings — Cost — Liability of railway. 
 
 Where the main track of a railway was laid across a street prior to 
 the passage of s. 238A of the Railway Act amendment (8 & 9 Edw. VII. 
 c. 32), imposing on railways thereafter to be constructed the cost of pro- 
 viding for the protection, safety and convenience of the public at highway 
 crossings, such provision is not rendered applicable to such railway by 
 reason of the fact that its sidetracks were also laid across the street after 
 the adoption of such section. 
 
 British Columbia Elec. Ry. Co. v. Vancouver, Victoria Ry. etc. Co., 
 15 Can. Ry. Cas. 237, 48 Can* S.C.R. 98, 13 D.L.R. 308. 
 
 [Reversed in 18 Can. Ry. Cas. 287, 19 D.L.R. 91 ; considered in Vancouver 
 V. Vancouver, Victoria etc., Ry. Co., 18 Can. Ry. Cas. 296.] 
 
 RlOHTVOF-WAY — CONTEMPORANEOUS ACXJUISITION — EqUAL RIGHTS — JURIS- 
 DICTION — Electric bell — ^Apportionment of cost. 
 
 Where the rights of the municipality are at least equal to those of 
 the railway company, the creation of the street crossing having been 
 contemporaneous with the acquisition of the land for railway right-of- 
 way, the Board may make an order for contribution by the municipality 
 towards the cost of protecting a level crossing by gates and watchmen. 
 The Board has jurisdiction to make a further contribution from the 
 Railway Grade Crossing Fund towards the cost of protection works at 
 a crossing after contributing to the cost of installing an electric bell at 
 the same crossing more than a year ago. 
 
 Lachine v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 23. 
 
 Obstbuction of street crossing — Standing cabs — Gates. 
 
 To justify conviction of a railway company under s. 394 of the Railway 
 Act, 1906, for obstructing a street crossing by allowing cars to stand 
 across the street, it must be shewn by the prosecution that the obstruc- 
 tion was wilful, and where the crossing was protected by gates and the 
 only evidence was of the times when the gates remained closed against 
 street traffic for periods in excess of five minutes, a conviction should be 
 quashed where it was not shewn that any one train or cur caused the 
 
HIGHWAY CROSSIXGS. 461 
 
 otatmeUflB, nor was it shewn that the delay vas not attribatable to the 
 gatenan rather than to the trabinm: s. 3»4 of the Railwajr Aet does not 
 appH' to ofaatmetioii evaded by the gateman's aegleci at a street rroasing. 
 Rex V. Grand Trunk Et. Co^ 18 Can. Rt. Caa. 74, 18 D-LJL «3. 
 
 HKHTAT CWISSrVGS. what AKE PWVATt DaiTEWAT. 
 
 A private driveway acroe* a railway used by the puUie as a means of 
 access to an adjoining farm is not a highway crossing within the mean, 
 i^ of s. 155 of the Ontario Railway Act, RJS.O. 1914, e. 1S5. nor within 
 the purview of s. 259 of the Dominion Railway Act, 1888. respecting the 
 fencing of and reg:ulation of speed at erossing^ 
 
 Gowland v. Hamilton. Grimsby & Beamsville Elec. Ry. Co., 19 Can. Ry. 
 Cks. 214. 24 DUt- 491. 
 
 SCBSTITCTED HI6HWAT — ^APPOWTIOXIIEST OF COST. 
 
 Where it is necessary to open a new highway across a railway on ac- 
 comt vi the dangerous and tmsatisfactory condition of existiiq>r highway 
 avaangs, it may be considered as a substituted highway and the expense of 
 ^oteetion at the crossing should be divided equally as near as p<»sible 
 li e ta eei i the municipality and railway company concerned. 
 
 S»niM. T. Pere Martjuette Ry. Co.. 16 Can. Ry. Ca*. 233. 
 
 Gates axd watchvex — Heavy raAmc — C3ost. 
 
 Where the traflic on the highway is mndi heavier than on the railway 
 by which it is crossed, and protection by gates and watchman is necessary, 
 the Board ordered 2091; of the co>t of protection to be paid out of the 
 Railway Grade Crossing Fund, and the remaining S<K^ to be divided 
 equaUy between the applicant and respondent as well as the cost of opera- 
 tion. 
 
 Tormito r. Can. Flae. Ry. Co. (Symington Ave. Crossing Caae), 19 Caa. 
 By. Caa. 293. 
 
 TmavBcnoy — Costs of MAisrryAycK astj oPDtATio:^. 
 
 At the crossing in question, where there are four tracks and cmsiderahle 
 shunting traflBc, protection by an electric bell is not so satisfactory as 
 at crossings where there are fewer tracks and less shunting, and the 
 Board directed protection by gates, operated ni^t and day, appcHtion- 
 ii^ the costs of installatitw as follows: Township of Howard. 109c; 
 Village of Thame^ville. 15^ : Grand Trunk Ry. Co.. 35% ; and Railway 
 Grade OtMsing Fund 209c : the Township, the Village and the Railway 
 to bear lO^cr 159c. and 759e respectively of the costs of maintenance and 
 operation, the statute not permittins anything to be given towards the 
 eoets of maintenance and operation from the Fund. 
 
 Tkamesville et aL v. Grand Trunk Ry. Co., 23 Can. Ry. Cas. 33. 
 
 IXADBQUATE PSOTECnOX DA^kGEBOI^ OKOSSrSG COSTS Of OOSST«rCTH>2r 
 
 A:n» ESSTAIiATlOX. 
 
 Where two railways in close proximity cross two highwav« the Board 
 decided that towers should be erected to operate pairs of gates day and 
 night at the points of crossing, on the ground that. the protection was 
 inadequate (there being none where the junior railway crossed the high- 
 ways), and the croesings were dangerous owing to the heavy volume of 
 traffic on the railways and highways and the obstruction of the view; ap- 
 portioned the cost as it considered fair under the eireumstanees, with 
 
4()2 HIGHWAY CROSSINGS. 
 
 the usual contribution from the Railway Grade Crossing Fund towards 
 construction and installation. 
 
 Walkerville v. Grand Trunk and Pere Marquette l?y. Cos., 24 Can. Ry. 
 Gas. ]. 
 
 Protection by electric bell— Cost — CoNSTRurnoN — ;Maixtknance. 
 
 Where a highway is senior to a railway which crosses it, it is the prac- 
 tice of the Board to exempt the municipality controlling the highway from 
 any contribution to the cost of installation or maintenance of an electric 
 bell to protect the crossing. 
 
 Morse v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 64. 
 
 Cost of protection — Electric bell — Senior and junior rule. 
 
 Tlic Board will not require any contribution from the local authority 
 towards the cost of protection by electric bell at a highway crossed by a 
 railway, the question of seniority is not considered, the usual contribution 
 of 20% is made from the Railway Grade Crossing Fund and the remainder 
 of the expense is borne by the railway company. [See Morse v. Can. Pac. 
 Ry. Co., 24 Can. Ry. Cas.' 84.] 
 
 Mission City Board of Trade v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 253. 
 
 Watchman of gates maintained by company and municipality — Nt:GLi- 
 gence of — Liability of municipality. 
 
 A highway crossing the tracks of two railway companies, the Board 
 made an order for the installation of gates to be operated by watchmen. 
 One of the railway companies was directed to install the gates, and the cost 
 was divided between the municipality and the two companies in certain pro- 
 portions. The cost of maintenance was divided the same way. An accident 
 having been occasioned by the negligence of one of the watchmen appointed 
 by the company having the conduct of the work, an application was made 
 by the other company, whose engine caused the accident, to have the dam- 
 age paid by the company appointing the watchman, or to provide as to di- 
 vision of responsibility for accidents due to the negligence of the watchman. 
 Held, that the watchman should be regarded as the agent of the company, 
 whose trains or engines do the damage, and tlie municipality should not be 
 responsible for any damages caused by the negligence of the watchman. 
 
 Re Royce Ave. Crossing (Toronto), 32 W.L.R. 227. 
 
 C. Construction and Maintenance; Costs. 
 
 Apportionment of cost of protection — Electric striset railway — 
 Municipality. 
 
 A municipal corporation in New Brunswick applied for an order under s. 
 187 of the Railway Act, 1903, for protection of two of its highways where 
 crossed by the railway: — Held, that the Board had jurisdiction under s. 47 
 of the Railway Act, 1903, to order the municipality liable under the Pro- 
 vincial Act, 63 Vict c. 46 (N.B.), for the support and maintenance of its 
 highways, to contribute to the expense of protecting such crossings as in 
 other provinces. [Toronto v. Grand Trunk Ry. Co., 37 Can. S.C.R. 232, re- 
 ferred to.] An order was made by the Board that the municipality should 
 pay one-half the wages of watchmen employed to operate gates to be in- 
 stalled, operated and maintained by the railway company at the crossing to 
 be protected. 
 
 Saint John v. Can. I'ac. Ry. Co., 5 Can. Ry. Cas. 161. 
 
HIGHWAY CROSSINGS. 463 
 
 •-3ICSICIPAl-rTT 0« FEXSOS ISTtXESTOT — PBtfllJC'IlOS BT GATES LOS- 
 
 TKIBTTIOX TO COST Of. 
 
 Wkcfe ma eleeCrie street raihrmy erosaed tke 6.T. Rt. outside the limits 
 «f a tDVB, ev^ Tkere the eorpontioB admitted it vas interested in having 
 ^ates to protect the crossing, it was held that the eosts should be borne by 
 the G.T.R. Co. [Grand Trunk Ry. Co. v. Kingston. S Can. Ex. 349. 4 Can. 
 Ry. Cas. 102; Be Can. P«e. Ry. Co. and York. 27 OJ5. 539, 25 A.R- (Ont.) 
 65, 1 Can. Ry. Cas. 36, 47, referred to.] 
 Grand Trunk Ry. Co. v. Cedar Dale et aL (Cedar Dale Crossing Case) 
 7 Can. Ry. Cas. 73. 
 
 [FoDoved in Thorold r. Grand Trunk et al. Ry. Cos.. 24 Can. Ry. Cas. 
 21. 
 
 HiCHVAT ACaO£« BAILWAT — MrXIdTALITT — CO6T OF COXSTBCCTIOX a:CD 
 MAISTESASCE. 
 
 At the end of a village street a private level crossing over two lines of 
 railway was allowed to be used for many years by the public for access to 
 a stove foundry across the traeks without any active steps being taken by 
 the railway companies owning tbem to prevent this practice. The land on 
 the village side had been subdivided into lots and boilt uptm acroes the 
 tracks. This street had beoi laid out in continuation through farm lands 
 to a public highway. The railway companies put up warning notices and 
 oeeasioBaUy closed the gates at each side of their lines thereby preventing 
 aaj inference of any intention to dedicate this portion of their lines to 
 public nse as a highway crossing. Upon application by sudi adjoining vil- 
 lage municipality f<H- an order directing the railway companies to tvm- 
 stroct a public highway across their lines at the place in question: — Held 
 (1), that the applicant should be granted leave at its own exp«ise to con- 
 stract and maintain a highway across the railways and the lands of both 
 n— |wi«|i (2 1 The multiplication of level crossings is entirely undesir- 
 able but. not so undesirable as illegal level crossings and railway MMupanies 
 •hould either f«ice off their lines and take steps to prevent the unlawful 
 crossing of their tracks or allow public highways to be placed across th«n 
 where the public interest demands such a course. 
 
 Weston V. Can. Pac. and Grand Trunk Ry. Cte. (Denison Avenue Cross- 
 ly Case), 7 Can. Ry. Cas. 79. 
 
 [Followed in Mcmtreal v. Can. Ry. Co., 18 Can. Ry. Cas. 50; Lach- 
 ine V. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 3S5: Hoodie v. Can. Pac. Ry. 
 Col, 20 Can. Ry. Cas. 217: London v." Grand Trunk Ry. Co.. 20 Can. Ry. 
 Cas. 242: Grand Trunk Ry. Co. v. Hamilton, 22 Can. Ry. Cas. 442.] 
 
 COKST«rCTIOS ox HKHWAT LCAVE <»" THE BOASD AXD M L . S I C IP AUTT— 
 
 P»I<»ITT — PBOTWmVE APPIJANCES ApPOBTIO:«rEXT Of^ COST. 
 
 Where in a railway company's original Act of inc(»^M>ration the eon- 
 ■tmrtiaa of its railway along a highway, except under a by-law of the 
 pr<^>er municipal council is expressly prohibited and the prohibition is re- 
 peated in the act declaring the company's railway to be a work for the 
 gBBeral advantage of Canada, the Board has power under the Railway Act, 
 1906, a 26, to pnrfiibit the conpany from maintaining or nang its railwar 
 190a the public highway, if eanstmcCed thereon without due aathority ; but 
 semble, the genoal jurisdictjon emferred upon the Board by s. 26* apart 
 frwn special circumstances does not extend to the prohibition of placing 
 rails upon ot along public highways merely because the leave of the Board 
 has not been given. Sock oanthorized acts are not ttsoallT done in contra- 
 
464 HIGHWAY CROSSINGS. 
 
 vention of the Railway Act, and being breaches of the general law for- 
 bidding the obstruction of highways are not within the jurisdiction of the 
 Board. An order of the Board agpproving location plans of a railway does 
 not give authority to construct or operate the railway upon or across a 
 public highway. The railway of the Windsor Co. was constructed along a 
 public highway without the necessary authority of the municipality and 
 the Board. The consent of the municipality or municipalities 
 was afterwards obtained, but not the requisite leave of the Board. 
 The Board, however, granted leave to the Windsor Co. to cross tlie 
 Canadian Pacific Ry. Co.'s line upon the highway, and afterwards the Essex 
 Co., with its location plan properly sanctioned by the Board, and having 
 the leave of tlie Board to cross the highway on the line of that location, 
 applied to have the railway of the Windsor Co. removed from the highway 
 or to be allowed to cross it at the expense of the former, and to have the 
 orders sanctioning the location plans of the Windsor Co. and giving that 
 company leave to cross the line of the Canadian Pacific Ry. Co. set aside, 
 the Essex Co. claiming a right of seniority because the construction of .the 
 Windsor Co.'s railway on the highway was unauthorized: — Held (1), that, 
 while the Board had jurisdiction to retiuire the removal of the Windsor Co.'s 
 rails from the highway at the point wliere the Essex Co. obtained leave to 
 cross, no absolute right of priority was acquired by priority of sanction ot 
 location plans, or of leave to cross the highway, as the two railways were 
 constructed almost simultaneously, and the application was refused by the 
 Board in the fair exercise of its discretion, the maintenance and operation 
 of the Windsor Co.'s line along the highway was aiithorized, and leave was 
 given to the Essex Co. to cross the lines of the \^'indsor Co. and the Can- 
 adian Pacific Ry. Co., the cost of maintenance and operation of protective 
 appliances at the crossings being divided equally between the two com- 
 panies. (2) That the Essex Co. had no status for the purpose of its appli- 
 cation to cross the line of the Windsor Co. to question the legality of the 
 location of the latter's line upon the highway. 
 
 Essex Terminal Ry. Co. v. Windsor, Essex & Lake Shore Rapid Ry. Co., 
 7 Can. Ry. Cas. 109. 
 
 [Affirmed in 40 Can. S.C.R. 620, 8 Can. Ry. Cas. 1 ; followed in Hamilton 
 V. Toronto, Hamilton & Buffalo Ry. Co.. 17 Can. Ry. Cas. 366, 370.] 
 
 Location of railway — Consent of municipality — Crossing — Leave of 
 Board. 
 On August 12, 1905, the Township of Sandwich West passed a by-law au- 
 thorizing the W. E., etc., Ry. Co. to construct its line along a named high- 
 way in the municipality, but the powers and privileges conferred were not 
 to take efl'ect unless a formal acceptance thereof should be filed within 
 thirty days from the passing of the by-law. Such acceptance was filed on 
 September 12, 1905. Tliis was too late, and on July 20, 1907, the council 
 of Sandwich West and of Sandwich East respectively passed by-laws con- 
 taining the necessary authority. In April, 1906, the location of the line of 
 the E. T. Ry. Co. was approved by the Board. In June, 1906, the Board 
 made an order allowing the W.E., etc., Ry. Co. to cross the line of the 
 C.P.R. In March, 1907, another order respecting said crossing was made 
 and also an order approving the location of the W.E. Ry. Co., the municipal 
 consent being obtained three months later. The E.T. Ry. Co. applied to 
 the Board to have the orders of June. 190(5, and March, 1907, rescinded and 
 for an order requiring the W.E. Ry. Co. to remove its track from the 
 highway at the point where the applicant proposed to cross it to discontinue 
 its construction at such point or, in the alternative, for an order allowinj,' 
 it to cross the line of the W.E. Ry. Co. on said highway. The applicants 
 claimed to be the senior road, and that the W.E. Rv. Co. had never obtained 
 
HIGHWAY CROSSINGS. 465 
 
 the requisite authority for locating its line. On a ease stated to the Su- 
 preme Court br the Board: — Held, that the Board had power to refuse to 
 ^t aiside the said orders; that the bj-laws passed in July, 1907, were suf- 
 ficient to legalize the construction of the W.E. Ry. Co.'s line on said high- 
 way; and that the Board can now lawfully authorize the latter company to 
 maintain and operate its railway thereon: — Held, further, that lea re of 
 the Board is necessary to enable the E.T. Ry. Co. to lay its tracks across 
 the railway of the W.E. Ry. Co. on said highway: — Held, also, that the 
 Board, in exercise of its discretion, has power by order to authorize the 
 nuiintenance and operation of the W.E. Ry. Co. along said highway and 
 to give leave to the E.T. Ry. Co. to cross it and the line of the C.P.R. near 
 the present crossing and to apportion the cost of maintaining such crossing 
 equally between the two companies instead of imposing two thirds thereor 
 upon the KT. Ry. Co., as was done by a former order not acted upon; and 
 to order that if the E.T. Ry. Co. finds it necessary in its own interest to 
 have the points of crossing differently placed, it should bear the expense of 
 removing the line of the W. £. Ry. Co., to the new point of crossing. 
 Essex Terminal Ry. Co. v. Windsor. Essex & Lake Shore Rapid Ry. Co., 8 
 Can. Ry. Gas. 1, 40' Can. S.C.R. 620. 
 
 Pbotbctiox bt ]<eaxs <w gates axd watchmex — CoxTMBtnox TO COST or 
 — MrxiciPAi. coBF<»Anox. 
 
 Until 31st December, 1901, the defendants paid their share of the cost of 
 protecting certain level crossings in and about the city of Toronto pursuant 
 to the order of the Railway Committee dated 8th January. 1S91. and then 
 ceased from making further payments: — Held (1), in an action brought to 
 enforce payment, that the defendants were concluded by the authority of 
 decided cases. [Re Can. Pac. Ry. Co. and York, 27 OJL 559, 25 A.R. (Ont.) 
 65, 1 Can. Ry. Cas. 36, 47; Toronto v. Grand Trunk Ry. Co., 37 Can. 
 S.C.R. 232, 5 Can. Ry. Cas. 138.] (2) That the order of the Railway Com- 
 mittee was valid and binding until rescinded by the Board. 
 
 Can- Pac Ry. Co. t. Toronto, 7 Can. Ry. Cas.'274, 8 O.W.R. 348, 9 O.W.R. 
 785. 
 
 [Affirmed in [1908] A.C. 54, 7 Can. Ry. Cas. 282: followed in Hamilton 
 Street Ry. Co., 17 Can. Ry. Cas. 393 ; Grand Trunk Ry. Co. v. Kitchener k 
 Waterloo Street Ry. Co., 24 Can. Ry. Cas. 13.] 
 
 PKOTKmOX OF HIGIIW.\T CEOSSING.S — CONTBIBITTIOX OF COSTS — MC"X1CI- 
 
 PAUTiEs — Bbftish Xobth Amekica Act, s. 91, sr^s. 29 — s. 92, sttes. 
 
 10 (a) "PtXSOS." 
 
 The Railway Committee, by order made under ss. 187, 188 of the Rail- 
 way Act, 1888, directed certain measures to be taken to saf^:uarding the 
 respondents' railway, which it a through railway, and for the protection of 
 the public in traversing it at certain level crossings where it passes across 
 public streets at points within or immediately adjoining the boundary of 
 the appellant city, and directed the cost thereof to be borne in equal pro- 
 porticms by the railway and the city. In a suit by the railway after the 
 execution of works as directed to recover the apportioned amount from the 
 corporation: — Held, that ss. 187, 188 were intra vires of the Parliament of 
 Canada by force of the BJi.A. Act. s. 91, subs. 29, and s. 92. subs. 10 (a» : 
 — Held, also, that, having regard to s. 7, subs. 2, of the Interpretation Act 
 (R.S.C., 1886, c. 1), "person" in s. ISS includes a municipality. 
 Toronto v. Can. Pac Ry. Co., 7 Can. Ry. Cas. 282, [1908] A.C. 54. 
 [Followed in Re Xarian Singh, 13 B.C.R. 479; relied on in Carleton v. 
 Ottawa, 41 Can. S.CJL 552, 557; Montreal Street Ry. Co. v. Montreal. 43 
 Can. S.C.R 204; Grand Trunk Ry. Co. v. Kitchener & Waterloo Street 
 Can. Ry. L. Dig.— 30. 
 
466 HIGHWAY CROSSINGS. 
 
 Ry, Co., 24 Can. Ey. Cas. 13; Thorold v. Grand Trunk et al Ry. Cos., 24 
 Can. Ry. Cas. 21.] 
 
 CONTBIBUTION TO COST — PaRTY INTERESTED MUNICIPALITT. 
 
 A municipality may be a "party interested" in works for tlie protection 
 of a railway crossing over a liighway though such works are neither with- 
 in or immediately adjoining its bounds and the Board lias jurisdiction to 
 order it to pay a portion of the cost of such work. 
 
 Carleton v. Ottawa, 9 Can. Ry. Cas. 154, 41 Can. S.C.H. oo2. 
 
 [Followed in Thorold v. Grand Trunk et al. Ry. Cos., 24 Can. Ry, Cas. 
 21.] 
 
 Highways ackos.s railway — Railway to open and kkau kxpense. 
 
 On application by a municipality for a highway crossing over the line ol 
 the C.P.R. Co. at the expense of the railway company on the town line 
 between two townships where no road allowances had been reserved in the 
 original survey, but under this system of survej', when patents issue, a 
 reservation of five per cent is made for roads, with the right in the Crown 
 to lay out same, where necessary or expedient: — Held, in view of such reser- 
 vation by the Crown, that tiie railway company should' be prepared to 
 bear the expense of opening the highway across its right-of-way. 
 
 Caldwell v. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 497. 
 
 [Distinguished in Pontiac v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 298.] 
 
 Gates — Grade crossing fund — Contribution by municipality. 
 
 Application by the mxuiicipality for an order requiring the company to 
 place gates at a highway crossing already protected by an electric bell. It 
 was shewn that this crossing was particularly dangerous owing to obstruc- 
 tions to the view, the heavy traffic both on highway and railway, and the 
 bell being constantly out of repair: — Held, that the company should install 
 and maintain gates at this crossing, that twenty per cent of the cost of 
 installation should be payable from the Railway Grade Crossing Fund, that 
 ten per cent of the cost of operation be borne by the municipality. 
 
 Walpole V. Grand Trunk Ry. Co., 9 Can. Ry.Cas. 499. 
 
 Highway across railway — Municipality — Cost of constrijction. 
 
 A complaint by the town of St. Pierre that the respondent intended to 
 close Simplex street wliere it crossed its tracks and asking that the re 
 spondent should bear part of the cost of protecting the crossing. Simplex 
 street had been originally a farm crossing but was now used as a general 
 public highway crossing. The Board's officers reported that the crossing 
 should he made a regular highway crossing and be fully protected by 
 gates and watchmen: — Held, that the applicant must reimburse the re- 
 spondent for the cost of construction, maintenance and protection of the 
 crossing, receiving from the Railway Grade Crossing Fund, 20 per cent of 
 the cost of the protection works. 
 
 St. Pierre v. Grand Trunk Ry. Co., 13 Can. Ry. Cas. 1. 
 
 [See Grand Trunk Ry. Co. v. Toronto, 32 O.R. 120, 1 Can. Ry. Cas. 82, 92; 
 Weston V. Can. Pac. and Grand Trunk Ry. Cos., 7 Can. Ry. Cas. 79; 
 followed in Montreal v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 50; Lachine 
 v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 385: London v. Grand Trunk Ry. 
 Co., 20 Can. Ry. Cas. 242; Grand Trunk Ry. Co. v. Hamilton, 22 Can. Ry. 
 Cas. 442.] 
 
 Branch line — Spur crossing — Expense of construction. 
 
 Application under a. 17C of the Railway Act, 1906, for leave to expro- 
 
HIGHWAY CROSSINGS. 4Slt 
 
 priate a portioi of a triaagnlar piece <rf fand for the purpose ol mostmet- 
 iagr a spur acroea it iram the ap|dicaBtfs branch line on L^ street, in tli«; 
 city <rf :SadcaftoaaL The said land had beea aeqniivd by the respondrot irooa 
 the foraer ovBcr. one B. tbe respoadmt had been avthorized bj ordo- oi 
 Board to iiMfliml certain spur? aen»>$ tiie land in qne^tioB vhcn the ap- 
 ^icanfs spmr was constructed «ith the exception of the sectioa aomumg the 
 portioa of the land af<we:iaid. The order aiithorizin« constroction of the 
 fanach line and the said ^por of the applicant «as Bade before the reepaad- 
 tmt had aeqniicd the said land: — Held «1|, that the applicant shoold he 
 aHthorixed to take «o mneJi oi the said land a^ Tould be necessary for the 
 of its spur. l2i That if a dispute shook! ari«e as to the area 
 to be so taken, the aiatter shoold be determined by an rmgi m nw of 
 the Board. (3i The expmse <rf ankin* the necessary raihray crossai^s «• 
 the land AmiM be borne jointly fay tbe applicant and respondent. [Can. 
 Xorthen Ry. Co. t. Can. Pae. Ry. Co. (Kaiser Crossii^ Ca«e>. 7 Can. Ry. 
 Ca£. 297: Grand Tnmk Pacific- Ry. Co. t. CPJL (NokooBis Craesing Ca£e«. 
 7 Can. Ry. Cas. 299. distinguished.) 
 
 gif Appelle, ILLw t Sask. Ry., etc., Cos. ▼. Can. Pae. Ry. Col, 13 Can. Ry. 
 Cas. 13L 
 
 Hkhvat caossED bt «aii.wat — Pbotectiox — Cost — ArromrfosusxT. 
 
 Application to determine the character <M the protection at a oveai^ 
 «f a hi^vay by a railway and to appmtiaa the cost thereof. The railwaj 
 <rf the first respondent croaae a a poblie h^^hvay leading; to an amn.iMtnt 
 park, knovn as Gnauby Beadk, vith a doiride track and the otho- respoad- 
 fnt operates an electric railway on the east side of the highway ending a 
 ihort distance sooth of the tracks of the fix^ respondent: — Hdd (1), that 
 one watritatan shoold be ^ployed from May 1 to October 1, for the first 
 year to aee if that would afford sufficient protection, {ii That the town- 
 ship AnnM bear 15 per cent and the first respondent the umiining 85 per 
 eeat of the coet and that the second respondent should bear no portaon vt 
 the cost <rf ]Mroteetion. Conanaaianer McLean: — ^That the second respond- 
 ent contribnted to the danger and ^onld pay half of 8a per cent of the cost 
 of |»otectHin. 
 
 Grimsby BenA Amnseaacnt Co. t. Grand Trunk and Hamilton, etc, Ry. 
 Cos., 13 Can. Ry. Cas. 138. 
 
 Gates — Cox ST«rcTiox — M.\i5tex a?ece — Co!>t — Aitoktioxment. 
 
 Application directing the respondent to cvMistmct. maintain and operate 
 l^tes at two highway croi^ings within 150 feet of one another: — Hdd (1). 
 that the respondent should erect, maintain and operate the gates and be re- 
 iarimrsed to the extent of 20 per o^t out of the Railway Grade Crossing 
 Fund for the cost of construction of each pair of jcates. the applicant to 
 contribute 30 per cent towards the cost of their operation and maintenance. 
 {±i That the rule is that tbe smaller rural municipalities should contribute 
 on a basis of 15 per cent, but in this case the highways being so close msd 
 the mnnicipality being unwillii^ to close either cm account of land damages 
 and IneanTcnieBce it should pay a larger proportion. 
 
 Tavistock t. Grand Trunk Ry. Co.. 13 Can. Ry. Cas. 442. 
 
 Sbtjukatiox or <a*Brs — Steam kaii.wat asd electkic aiKmi rmlwat— 
 ArroBnoxMEXT or 006T. 
 Upon an application by a municipality for an order to carry four streets 
 orer the intnsecting tracks of a steam railway company, two of tbe-« 
 streets being oenqiied by the tracks of an electric street railway. tJ»e 
 Board decided that the cost be apportioned as follows: — ^For the streets 
 
468 HIGHWAY CROSSINGS. 
 
 not occupied by the electric railway, the steam railway to contribute 75 
 per cent, and tlie municipality 25 per cent of the cost; for the streets oc- 
 cupied by tlie electric railway, the steam railway to contribute 60 per 
 cent, the electric railway 20 per cent, and the municipality 20 per cent 
 of the cost, with contributions in three cases from the Railway Grade 
 Crossing Fund of 20 per cent up to $5,000, such cost to include the cost ot 
 depressing the tracks of the steam railway, and damages to its lands ex- 
 clusive of the right-of-way. 
 
 Vancouver v. Great Northern and British Columbia Elec. Ry. Cos., 14 
 Can, Ry. Cas. 333. 
 
 SxREirr RAILWAY — Protectiox — Apportionmknt of cost. 
 
 The Board granted an application by a municipality for a crossing on 
 the highway of a steam railway by its electric street railway to save a 
 detour of three thousand feet on condition that the applicant pay for its 
 own construction, its own rails, and other work and tiie diamonds, but the 
 cost of protection, that is, the installation of the interlocking plant, its 
 maintenance and operation, to be borne equally by the applicant and re- 
 spondent. The municipality was not estopped, and had the right to make 
 the application under the changed conditions, irrespective of any action 
 previously taken by the Board. The rights of municipalities to apply 
 to the Board to open level crossings, in the public interest, are higher 
 and should more readily be given effect to than applications of railway com- 
 panies to cross highways on the level. 
 
 St. Thomas v. Michigan Central Ry. Co., 14 Can. Ry. Cas. 339. 
 
 Lighting — Railway and traffic bridge — ^^'OLUME of traffic — Toixs. 
 
 The Board will exercise jurisdiction to require a railway company to 
 provide proper lighting for and approaches to a railway bridge upon 
 which provision is made for vehicular and pedestrian traffic, for the use ot 
 which bridge tolls are charged, and toward whose construction assistance 
 was given under the Dominion Subsidy Act (1900), G3-G4 Vict. c. 8. 
 
 Mahon v. Grand Trunk Ry. Co., 16 Can. Ry. Cas. 268. 
 
 Separation of grades — Public interest — Level crossings — Diversion. 
 
 After closing and diverting a highway crossing over two railways on 
 the level it is in the public interest tliat the Board should not order an- 
 other highway to be opened across these railways for the convenience of a 
 few landowners who are cut off from access to the diverted highway except 
 liy going some distance east to where the diverted road joins the old road 
 by an overhead bridge. 
 
 Bush et al. v. Grand Trunk and Campbellford, Lake Ontario & NVestern 
 Ry. Cos., Bush Road Crossing Case, 16 Can. Ry. Cas. 437. 
 
 Opening of highway — Right-of-way. 
 
 The Board will not invoke its compulsory powers to compel a railway 
 company to supply a right-of-way across its own lands for a municipal 
 highway to be used for highway purposes quite irrespective of railway 
 purposes. 
 
 Courtney v. Esquimalt & Nanaimo Ry. Co., 18 (an. Ry. Ca.^. .'?84. 
 
 Opening of highway — Right-of-way — Apportionment of cost. 
 
 The opening of a highway across the lands taken for right-of-way of a 
 railway company is a new public right over it. and tlie cost of its con- 
 struction and maintenance should l)e borne by the applicant municipality. 
 
 Mont Laurier v. Can. Rac. Ry. Co., 18 Can. Ry. Cas. 387. 
 
HIGHWAY CROSSINGS. 469 
 
 A f T ua- r io xMEVT of cost — Expexsk RcuunrBsai. 
 
 Whov the Baud gnnts perauasiaB to the appticant to open up a Iki^- 
 wi^ aao» tke rigiht-of-waT of tke mpamitnt, tht mdfonn pmctiee is to 
 yhfTT the whole cost of coa«tmctHM aad BaintenaMw ^opoa the af^licaat, 
 halt the ovder maj provide, if the a|^licaBt so desires, that the -wotii of 
 eoBStmetioa Bay he doae bj the respoadeat, the expemse thervof being 
 ranAaraed hj the applicaat.' [Westoa r. Grand lYvdt aad Caa. Pac Rt. 
 Caa. (Deran ATone CraaaiBe Case), 7 Cul Rj. Cks. 79; St. Kene t. 
 G^aad Tna^ Br. Cou (Sapkx ATnoe Crosua^ Case), 13 Gu. Rv. Caa. 1; 
 BiM^rimg T. Grand Trnak and Hichisam Cratral Ry. Cos.. 14 Caa. Rx. 
 Cma. 10; Montnal t. Caa. Pac Rj. Co., 18 Caa. Rj. Gk& 30; LAchiae t. 
 &aad T^vk Ry. Co., 18 Caa. ^. Cas. 383, foUoved.] 
 
 Tnihai r. Grand Trunk Ry. Co. (AsUaad Areaae Croanag Case.), 29 
 Cha. Sy. Caa. Hi. 
 
 Boas aujowasck — Semok axd jrrxioB bcue — Coerrs — AiroKnoxvExr — 
 Iji7bove>ie:vis. 
 
 la ^ipljiag the aeaior aad joaior role bctaem imilvaT co Mp aa ie s. eoa- 
 «f the ooaiiag aad aot a p pww ra l of loeatkni ^ve$ priority, hot 
 aoaiopalitifa aad railway eoaipanies that principle cannot be ap- 
 plied, vhea it ia ao^ght to erosa a railway by a h^way whor a road al- 
 lowaaee ptcnoBaly erintfd thca ao aatter how loi^ the raihraj may have 
 beea ti,iiiliiMl«d it is eoandered to be junior, and the railway eoapany 
 ahould iastall aad laiatiin tte aeeeaeaiy croesii^. [Caa. Xorthen Ry. 
 Co. T. Can. Pac Ry. Co. (Kaiser Ckossi^ Caaei, 7 Can. Ry. Cb&. 297; Can. 
 jiorthera Ry. Co. t. Can. Pae. Ry. Co., 11 C«n. Ry. Ca& 432. followed.] 
 Where there is no road allowance and the nianieipalitT desire? to use the 
 laad of the railway mipany upon which *to coa«tnict a highway, the en- 
 tire eoata of the hi^way napro<«^wats will be borne by the applicant. 
 [G ton te aiu t. Canada Atlantic Ry. Col, 3 OJJR. 8a, 1 Can. i^. Gas. 327, 
 f<dlowed.] 
 
 Saaana t. Can. Xortbern Ry. Co. (Kylemre Crossi^ Case), 20 Can. 
 Ry. Gas. 24C. 
 
 Dedhutios of gbossixg — AFPoanoxMEVT or otksr — Coxstsccikrc as» 
 mmcnox. 
 
 The Board has decided on a aamber of oecasioos, that to fix a railway 
 iiaapiiiy with a portion of the cost of coastmrtii^ aad protectii^ a higfa- 
 araj uuwiiig, there ainst be sammt act by the railway company dedieali^ 
 the eroasing to the poblic. bat, where the nxk^ing is a way of caHoaaaiea- 
 tioB nader the Railway Art. the nranicipality will be asjusted to the exteat 
 <rf 20 per eeat from the Railway Grade Cros>ii^ Pond in bearing the whole 
 eost <rf eaaatraeti^ and protecting a proper ermssing. [Weictaa v. C^^raa-i 
 Traak aad Gaa Pac Ry. Cos., 7 Caa. Ry. Cas. 79: St. Pierre v. Grand 
 T^nak Ry. Col (Simplex Avenoe Crossii^ Case I, 13 Ou. Ry. Cas. 1. fol- 
 lowed.] 
 
 Moatrcal t. Can. Pac Ry. Ccu 18 Can. Fr. Ca<. .10. 
 
 [Fidlowed in Lachine r. Grand Trunk Ry. Cou 18 Can. Ry. Cas. 3S5; 
 Laadoa r. Grand Trunk Rv. Col. 20 i'an. Ry. Gas. 242; Grand Trunk Ry. 
 Col t. Hamiltoa, ^ Can. Ry. Cas. 44±3 
 
 Dbmcatiox or wat — APKtrrioxMEXT of costs — Gkaibs — Sktamatkiik — 
 
 SirBWAT. 
 
 The well-defined policy oi the Board in eases where there is no eviden«e 
 of any dedication of a way of coramnnication to the public by a railway 
 coapaay acrosB its tracks, is that the entire expcase off grade s^paratioa 
 
470 HIGHWAY CROSSINGS. 
 
 necessary to carry tlie subway under the existing tracks of a railway com- 
 pany should be borne by the applicant municipality. [Weston v. Grand 
 Trunk and Can. Pac. Ry. Cos. (Denison Avenue Crossing Case), 7 Can. Ry. 
 (as. 70; Town of St. Pierre v. Grand Trunk Ry. Co. (Simplex Avenue 
 Crossing Case), 13 Can. Ry. Cas. 1; Montreal v. Can. Pac. Ry. Co., 18 Can. 
 Ry. Cas. 50, followed.] 
 
 Lachine v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 385. 
 
 [Followed in London v. Grand Trunk Ry, Co., 20 Can. Ry. Cas. 242.] 
 Sexiok and juniob rule — Costs. 
 
 The senior and junior rule which is sometimes applied by the Board when 
 determining who should pay the cost of the crossing of one railway over 
 another, should not be applied where a higliway is crossed by a railway, as 
 the municipality being the owner of the street and now being the owner of 
 the street railway, should not be considered junior to the steam railway 
 company and the costs of protecting the crossing should be apportioned 
 equally between them. 
 
 Braiitford v. Grand Trunk lly. Co., 20 Can. Ry. Cas. 166. 
 
 Evidence of dedication — Expenditube of public money — Senior and 
 JUNIOR rule. 
 
 When it is sought to open a highway across a railway, there must be 
 evidence of intention to dedicate by the owner, acceptance by the munici- 
 pality, user by the public, and expenditure of public money to keep the 
 proposed highway in repair and fit for use to bring it within the category 
 of a public highway under the Municipal Act, R.S.O. 1914, c. 192, s. 432. 
 Without such evidence the proposed highway is junior to the railway and 
 under the senior and junior rule the whole of the expenditure required will 
 be placed on the applicant. [Gooderham v. Toronto, 25 Can. S.C.R. 246, 
 distinguished.] 
 
 Hamilton v. Hamilton Radial Elec. Ry. Co., 22 Can. Ry. Cas. 438. 
 
 Dedication — Acceptance — Devise — Right-of-way — Seniob and junior 
 
 BULE. 
 
 A will devising a right-of-way to a certain class of individuals does not 
 make a right-of-way, where it crosses a railway, a highway crossing: there 
 being no evidence of the acceptance of a highway at that point by the 
 municipality nor recognition of its existence by the railway company: tlie 
 railway is senior to the highway at the point of crossing. [W^eston v. Can. 
 I'ac. and Grand Trunk Ry. Cos. (Denison Avenue Crossing Case), 7 Can. 
 Ry. Cas. 79; St. Pierre v. Grand Trunk Ry. Co. (Simplex Avenue Cross- 
 ing Case), 13 Can. Ry. Cas. 1; Montreal v. Can. Pac. Ry. Co., 18 Can. Ry. 
 C'as. 50, followed.] 
 
 Grand Trunk Ry. Co. v. Hamilton (Depew S<^reet Crossing Case), 22 Can. 
 Ry. Cas. 442. 
 
 Apportionment of cost — Volume of traffic — Senior and junior rule. 
 
 In apportioning the cost of protection at railway crossings of highways 
 which have l)een in existence for many years, the volume of traffic on the 
 highway and railway respectively, which has made the crossing danger- 
 ous, is an element to which more weight should be given than the question 
 of seniority merely. 
 
 Montreal v. Grand Trimk Ry. Co. (St. Henri Yards Crossing Case). 22 
 Can. Ry. Cas. 444. 
 
 Highway crossing legalized — Costs of protection. 
 
 Where a highway crossing over a railway has not been legally estab- 
 
HIGHWAY CROSSIXGS. 471 
 
 lislied prior to April 1, 1909, it may be considered a highwaj crossing of 
 the railway at grade level within the meaning of the Railway Grade Cross- 
 ing Fund,**. 239 (A), 8*9 Edw. VII. e. 32, s. 7, and the Board may 
 legalize the crossing and make a contribution of 20 per cent oat of that 
 fluid towards the installation of gates, the remainder of the costs of pro- 
 tect if»n to be borne by the applicants. 
 
 Maisonneave t. Can. Northern By. Co., S Can. Sy. Ca& 446. 
 
 Bbidge — RBcoxsTBrcnox — Sexiob a:w> Juxio« Rnx. 
 
 Under the senior and junior role the hi^way being senior to the rail- 
 way no pari of the coat of reconstructing the bridge on the highway over 
 the railway should be put upon the respondent city, bat the respondent 
 tramways c<Mnpany being junior to the railway, one-foarth of the cost of 
 reconstruction to make the bridge strong enough to carry electric ears 
 should be imposed upon it. [Toronto Railway Co. t. Toronto and Can. 
 Pac Ry. Co. (Avenue Road Subway Case), 53 Can. S.CJR. 222. 20 Can. 
 Ry. Cak 280. foUowed.] 
 
 Can. Pac Ry. Co v. Montreal and Montreal Tramways Co. (Xotre Dame 
 Street Bridge Case*. 23 Caji. Ry. Cas. 3L 
 
 Steam .\xd mcxicipaixt-owxkd stbeet kts. — Coxstrcctios — ^Appobtiox- 
 
 MKXT OF COSTS ^SeXIOB XSD JTTXKW BCXX. 
 
 The rule of the seniw and janitM* road does not apply in apportioning 
 the cost of a municipally-owned street raUway whose tracks are subse- 
 quently laid across the tracks of steam railways upon the street, but the 
 cost of nuking the crossing should be borne by the city and the cost of 
 the protective appliances and tl^ir maintenance should be borne equally 
 liy the city and the steam railways. 
 
 Edmonton t. Grand Trunk Pacific and Can. Northern Ry. Cos. (Syndi- 
 cate Avenue Crossing Casei. 15 Can. Ry. Cas. 443. 
 
 [Distinguished in Grand Trunk Ry. Co. v. Kitchener 4 Waterloo Street 
 Ry. Co., 24 Can. Ry. Cas. 13.] 
 
 SEXIOB A5D JITXIOK BtTX — ^STREET RAII-WAT ACQCIKED BY SfrXICIPALITT. 
 
 A Steam railway does not lose its seniority at a crossing on the highway 
 of an electric street railway when the electric railway is acquired hr the 
 municipality. [Can. Pac. Ry. Co. v. Toronto. 7 Can. Ry. Cas. 274, af- 
 firmed: Toronto v. Can. Pac. Ry. Co. [19*iS] A.C. 54, 7 Can. Ry. Cas. 
 282: Grand Trunk Ry. Co. t. United Coiuties Ry. Co. (St. Hyacinthe 
 Crowing emset, 7 Can. Ry. Cas. 294; Can. Northern Ry. Co. v. Can. Pac. 
 Ry. Co. (Kaiser Crossing Casei. 7 Can. Ry. Cas. 297, followed: Edm<mton 
 Street Ry. Co. v. Grand Trunk Pacific Ry. Co., 14 Can. Ry. Cas. 93. af- 
 firmed; Grand Trtmk Pacific Ry. Co. v. Edmonton Street Ry. Co. (Twenty- 
 First Street Crossing Caset, 15 Can Ry. Cas. 445: £dmont<» v. Grand 
 Trunk Pacific and Can. Pac. Ry. Cos. (Syndicate Avenue Crossing Case), 
 15 Can. Ry. Ca«. 443, distinguished.] 
 
 Grand Trunk Railway Co. v. Kitchener i Waterloo Street Rv. Co.. 24 
 Can. Ry. Cas. 13. 
 
 DlVEBSIOX — EUMIXATIOX CoSTS. 
 
 Where crossings of a highway by a railway are eliminated by the 
 diversion of a highway, the rule usually followed by the Board is to place 
 the greater portion of the cost on the railway and the remainder on the 
 municipality or municipalities interested. In the present case, two-thirds 
 
472 HIGHJVAY CROSSINGS. 
 
 of the cost was apportioned to the railway and one-tliird to the local 
 authorities. 
 
 Canadian Government Railways v. Mulgrave et al. (Cesale's and Auld's 
 Cove Crossing Case), 24 Can. Ry. Cas. 68. 
 
 Construction — Jurisdiction, 
 
 Where a railway company's Act of incorporation, 6 Edw. YII. c. 70, b. 
 0, enables it to "construct, maintain and operate" . , , equipment and 
 appliances for the supply of heat, light, water and power, tlien under ss. 2 
 (21), 235, 237, of the Railway Act, 1906, the Board has jurisdiction to 
 authorize the company to lay and maintain across public highways con- 
 duits containing pressure steam. 
 
 Toronto Terminals Ry. Co. v. Toronto and Toronto Harbour Commis- 
 sioners, 24 Can. Ry. Cas. 71. 
 
 [An appeal to the Supreme Court of Canada was dismissed.] 
 
 D. Bridges and Viaducts. 
 Footbridge over railway. 
 
 The city of Vancouver applied for an order permitting it to construct 
 at its own expense a wooden footbridge across the tracks of the C.P.R. 
 Co. at the north end of C. street, where a street ends at the south bound- 
 ary of the railway right-of-way; the footbridge being in continuation 
 northerly of the street and leading to wharves, the property of the rail- 
 way company, on the water front of Vancouver Hai'bour. The nearest 
 highway crossing of tlie railway was several hundred feet distant from 
 the site of the proposed footbridge. The company contended that the 
 Board had no jurisdiction to grant the application, its power being limited 
 to order the erection of a footbridge at an existing highway crossing un- 
 der 8. 239 of the Railway Act, 1906:— Held, that under s. 237 the Board 
 had jurisdiction to grant the application: — Held, that the footbridge so 
 erected shall be a highway across the railway. 
 
 Vancouver v. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 478. 
 
 Separation of grades — Bridge — Number and speed of trains — ^Vehi- 
 cular AND PEDESTRAIN TRAFFIC. 
 
 Application for the construction of a highway bridge to be substituted 
 for a level crossing over the main line of the respondent: — Held (1), 
 that the three main factors to be considered as creating the necessity 
 for protection at a highway crossing arc, the number of trains, and es- 
 pecially the rate of speed at which trains run over the crossing, the 
 amount of vehicular and pedestrian traffic over the crossing, and the view 
 which those using the highway have of trains fipproaching in both di- 
 rections. (2) That the rate of speed at which trains run is a matter of 
 greater importance than the number of trains passing over the crossing. 
 (3) That only limited weight should be given to arguments based on the 
 amount of vehicular or pedestrian traffic passing over the crossing. (4) 
 That the rate of speed at which trains pass over the crossing is a very 
 important factor. (5) That the extent of the view at such crossing is 
 a matter of the greatest consequence. (6) That the application should 
 be granted and a highway bridge substituted for the level crossing over 
 the double track main line of the respondent notwithstanding the fact 
 that the traffic on the highway at the point in question is comparatively 
 light. 
 
 Front of Escott v. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 315. 
 
HIGHWAY CROSSINGS. 473 
 
 Railway gbosseb kt highvat — Cost or ovesheao bbidge — Mr^nci- 
 
 FAUTT. 
 
 Le«Te was graoted lij tlie Board to a moiueipalitj to eaxry a kig^waj 
 over the riglit-of-way aad tracks of two lailwaTs b^ means at a brid^ 
 wkere ao lu^wnj wristfd and tke ienlapmtmt of a TiUage kad been re- 
 tarded for want of a f nwwiaj;' iqna emdition that the monieipality bear 
 the wkole cost of constroetion. Am lawiatat was granted over the r^bt- 
 of-war, with right of support bjr fitxs withoat pajnieat of compensation 
 to the railway enfaina. 
 
 Bridgefaorg t. Grand Tmnk and Michigan Cmtral Br. Cos^ 14 Gsa. 
 Rf. Caa. 10, 8 DJUR. 951. 
 
 [FoDowed in Citj of Lmdoi t. Grand Trunk Rj. Co., 20 Can. By. Cms, 
 242.] 
 
 RAIL.WAT cnossta> bt hkhwat — Bkidge — Cost — Mr:aciPAiJTT. 
 
 In dealing with an applieation by a munieipality to direct a railway 
 company to carry a new highway across its tracks by an orerhead cro6»- 
 ia|^, the Board's jorisdictioD is confined to giving directi<ms as to the 
 stractoe when railway property is interfered with and npon the mnnie- 
 ipalitT pasaong a by-law providing a proper and suitable structure for 
 the purpose an order will go approving of same, and in such case the 
 whole cost of the new highway will be upon the applicant. 
 
 Mission District Board of Trade v. Can. Pac Ry. Co., 14 Can. Rv. Cas. 
 331. 
 
 ^fonwE — Railwat tabd — ^ArroKnoxicEVT ae cost. 
 
 Where an application was made by a local improvement district for 
 a bridge carrying the highway over railway tracks, and the limits of an 
 adjoiaii^ city were afterwards extended so that the highway became whol- 
 ly within the city limits, the Board decided that the district should not 
 bear any portion of the cost of such bridge, that the city should contrib- 
 ute $3,000 of the cost for that portion of the bridge which crosses the 
 throogfa tracks of the railway company, who must bear the whole cost of 
 extending the bridge across their yard, 20 per cent of the cost of the 
 wh<rie bridge to be paid out of the Railway Grade Crossing Fond and the 
 halanee by the railway company. 
 
 Saskatchewan Local Improvement, etc v. Can. Pac Ry. Co., 14 Can. 
 Rf. Cu. 337. 
 
 Railway axd tkaffic bkidce — Repais axd maettexaxce — Usual kcxe. 
 
 The usual rule in cases of repairing and maintaining highway bridges, 
 ^art frun special circumstances, is that the railway company is re- 
 aponnble for raflway stmdnres, and the munieipality for structnreji 
 landed over to it for municipal and highway purposes. 
 
 Aasinibtua v. Can. Northern Ry. Co., 14 Can. Ry. Cas. 3«5. 
 
 OaHimLciJo:^ by iuugatiox wobks. 
 
 Where in the exercise of a right conferred by statute upon a puUW 
 aervice corporation, a public highway is interrupted by the work whidi 
 the public service corporation is authorized to cons^iaet, there is an im- 
 plied obligation that the public service corporation shaD Maintain an 
 adequate snbs tltnt e for the highway by a bridge or other meana. [The King 
 V. Alberta Ry. k Irrigation Co.. 3 Alta. L.R. 70. affirmed on appeal ; Alberta 
 Ry. ft Irrigatiim Co. v. The King. 44 Can. S.C.R. 505, reversed on appeal. 
 See also The Queen v. Inhabitants of the Isle of Ely, 117 Eag. RcpcHrts 
 671, 15 Q.B. 827, 19 LlJJLC. 223, 14 Jur. 956; R.'t. Soathamptoa, 17 
 
474 IIIGIIWAY CKOSSIXGS. 
 
 Q.B.D. 435; Hertfordshire County Council v. New River Co., [1904] 2 
 Ch. 520.] 
 
 Rex V, Alberta Railway & Irrigation Co., 7 D.L.R. 513, [1912] A.C. 827. 
 
 Crossing oveb highway — Order of Board — Failure to Comply with con- 
 ditions IMPOSED, WHERE HIGHWAY DIVERTED RESCISSION OF ORDER — 
 
 New ORDER FOR CONSTRUCTION OF OVERHEAD BRIDGE. 
 
 Re Grand Trunk Pacific Ry. Co. and Fort Saskatchewan Trail, 7 D.L.R. 
 891, 21 W.L.R. 364. 
 
 Bridge — Maintenance — ^Apportionment of cost-^urisdictiokt. 
 
 Apart from any question of contract, the obligation of a company main- 
 taining a bridge carrying a highway over a railway must be construed 
 with regard to the requirements of the present-day traffic. In 1896, by 
 an order of the Railway Committee, the respondent railway company was 
 authorized to carry a highway (King street in the city of Hamilton) over 
 the railway by a bridge of a certain width. The order contained no pro- 
 vision as to maintenance, extension or widening of the bridge. Upon the 
 growth of the city and a new district (McKittrick Subdivision) being 
 hiid out beyond the citj' limits, in wliich a new l)ridge was constructed on 
 tlie extension of King street, designed to accommodate a double line of 
 street cars, the Board made an order for the construction by tlie Hamilton 
 company of a new bridge of the same width and strength, in lieu of the 
 bridge built in 1896. Under the special circumstances of the case the 
 municipality was required to contribute 30 per cent and the railway 70 
 per cent of the cost. [Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. (Myrtle 
 15ridge Case), 15 Can. Ry. Cas. 433, sub nom. Can. Pac. Ry. Co. v. Grand 
 Trunk Ry. Co., 49 Can. S.C.R. 525. 17 Can. Ry. Cas. 300', 20 D.L.R, 56, 
 distinguished.] 
 
 Hamilton v. Can. Pac. and Toronto, Hamilton & Buflfalo Ry. Cos. (Ham- 
 ilton Bridge Case), 20 Can. Ry. Cas. 159. 
 
 [Followed in Windsor v. Can. Pac. Ry. Co., 21 Can. Ry. Cas. 66.] 
 
 Bridge — Widening — Public interest — Second track of street railway 
 — Api»ortionment of cost. 
 
 Where the respondent had discharged its responsibility to maintain a 
 bridge carrying a higliway over a railway sutlicient to accommodate pre- 
 sent traffic, the Board in the public interest ordered the bridge to be 
 widened from 40 to 56 feet to enable a street line to be double tracked. 
 Tlie proposed second street railway track being junior to that of the re- 
 spondent tlie Board apportioned the cost as follows, 65 per cent to the 
 respondent and 35 per cent to the applicant or street railway companj'. 
 [Hamilton v. Can. Pac. and Toronto, Hamilton & Buffalo Ry. Cos., 20 
 Can. Ry. Cas. 159, followed; Can. Pac. Ry. Co. v. Grand Trunk Ry. Co. 
 (Myrtle Bridge Case), 49 Can. S.C.R. 525, 17 Can. Ry. Cas. 300. 20 D.L.R. 
 5G; London v. I^ndon Street Ry. Co., 19 Can. Ry. Cas. 436, referred to.] 
 
 Windsor v. Can. Pac. Ry. Co., 21 Can. Ry. Cas. 66. 
 
 Separation of grades — Jurisdiction — Pitblic safety — Apportionment 
 of cost. 
 
 Under ss. 8, 59, 227, 237, 238 of the Railway Act. 1906, the Board has 
 jurisdiction, in the interest of public safety, to ctrder that a railway cross- 
 ing of a liighway should be protected or that the grades be separated, and 
 to apportion the cost between Dominion and provincial railway companies 
 and municipalities interested in the works ordered. [IJe Can. Pac. I'y. 
 Co. and York, 25 A.R. (Ont.) 65, 1 Can. Ry. (as. 47: Tor(mto v. Grand 
 Trunk Ry. Co., 37 Can. S.C.R. 232, 5 Can. Ry. Cas. 138; Can. Pac. Ry. 
 
HIGHWAY CROSSIXGa 475 
 
 Co. T. T«Ht>Bto, 7 C*n. Rr. C*s. 274; Toronto t. Can. Par. Rt. Co. [190S] 
 JLC. 51. 7 Ckn. Rr. Ckk 28S, ftrflowed; Can. Pac. Rt. Co. t. Toronto 
 (Toronto Yiadnct Case < [1911] A.C. 461. 12 Can. Rr. Ca& 37S: At- 
 tonex-Gtatral for Alhetta t. Attomcy-Ceneral for Canada, rt aL. 31 
 TJ:^ 32; Brhisli Colombia Eke. Rj. Co. t. Vancourer. Yktoria & Ext- 
 ern Rt. Co. and VancooTpr [1914] A.C. 1067. ronsidervd.] 
 
 HaouhtoB Stnrt Rr. Co. t. Grand Trunk Rt. Co.. 17 Can. Ky. Ca*. 393 
 [Followd in London RailvaT CoDuni&>ion t. Bdl TelcfAone Co.. IS 
 Can. Rt. Caa. 43a.] 
 
 Sepakatiox or gsaoe:^^ — Highway — Pavkmext — AiTomoxMExr or cost. 
 
 Whea ordering tlie separation of grades bptwecn a higfawaT and rail- 
 vaj. the practice of the Board in the ca;»e of unpaTcd stivets ha^ been not 
 to ttrat tlM co^ of the paTcment as part of the cost of the vork^^ bot 
 vh» a pmiaafent parennrnt ha> been dc^troTcd bT the construction of the 
 vorks. the new pavement and coc^t tlmeof is treated as part of the onder- 
 takiii^. 
 
 Can. Pae. Rj. Co. t. Calgair, IS Can. Rt. Ca& 38. 
 
 Jrsisoicnox — ItoMixiox asd fbotiaciai. kailvats — AppomoxMcxr or 
 C06T — Sepa«atiox or eKADe». 
 
 The proTisions of sa. 8 (ai. 2S. o9 of the Railvaj Act. 1906. empower- 
 ing the Board to apportion among the persons interested the cost of works 
 and construction vhiefa it orders to be done or made intra Tires. The 
 tracks ci the appellant crossed those of the respmident railwaT company 
 at grade on a palilic highvaj. On the report of the engineer that the 
 erosising was dai^eroos. the Board of its own motion ordered that 
 the street be carried under the respondent railwaT companv's tracks. The 
 grade separation reliered the appellant from the expense of maintaining 
 an interlockiflg plant and benefited it otherwise. [British Columbia 
 Else. Rf. Co. T. YancouTer, Victoria & Eastern Rt. etc.. Co. and Vancouv- 
 er [1914] A.C. 1067. IS Oin. Rt. Cas. 2S7. distinguished.] 
 
 Toronto Rt. Co. t. Tonmto and Can. Pae. Rt. Co.. 20 Can. Rr. Cas. 
 2S0 (ATcnueRoad Subway Casei. a3 Can. S.C.R.' 222. 30 D.L.R. 86^ 
 
 [Ftdlowed in Can. Pae. Ry. Co. t. Montreal and Montreal Tramways 
 Gou. 23 Can. Rj. Cas. 31 ; Thorold t. Grand Trunk et aL Ry. Cos., 24 Cu. 
 
 E. Snliwajirs. 
 
 Ooxsiwrcnos or sitbwat — Local iMPnovEMExrs. 
 
 An agrennent was entered into by the city of Toronto with a railway 
 company and othn- property owners for the const metion of a subway un- 
 der the tracks of the company ordered by the Railway Committee the cos^ 
 to he apportioned between the parties to the agreemrat. In connection 
 with the work a roadway had to be made, running east of King street to 
 the limit of the subway, the street heii^ lowered in front of the company's 
 lands, which were to some extent cut off from abuttii!^ as before on cer- 
 tain stress; a retaining wall was also found necessary. By the agreement 
 the company abandoned all claims to damages for injury to its lands by 
 constxnttion of the works. The city passed a by-law assessing on the 
 company its portion <rf the cost of the roadway as a local improrement. 
 the greater part of the property as assessed being on the approach to the 
 subway: — Held, that to the extent to which the lands of the company 
 were cut off from abutting on the street as before the work was an injury, 
 and not a boiefit to such lands, and, therefore, not within the clauses (d 
 
476 HIGHWAY CKOSSINGS. 
 
 the Municipal Act as to local improvements; that as to the length of the 
 retaining wall the work was necessary for the construction of the subway 
 and not assessable; and that the greater part of the work, whether or not 
 absolutely necessary for the construction of the subway, was done by the 
 corporation under the advice of its engineer as tlie best mode of construct- 
 ing a public work in the interest of the public, and not as a local im- 
 provement: — Held, further, that as the by-law had to be quashed as to 
 tiiree-fourths of the work affected, it could not be maintained as to the 
 residue whiih might have been assessable as a local improvement if it 
 liad not been coupled with work not so assessable. Notice to a property 
 owner of assessment for local improvements under s. 622 of the Munici- 
 pal Act cannot be proved by an affidavit that a notice in the usual form 
 was mailed to the owner; the Court must, upon view of the notice itself, 
 decide whether or not it complied with the requirements of the Act. In 
 the result the judgment of the Court of Appeal, 23 A.R. (Ont.) 250, waa 
 affirmed. 
 
 Toronto v. Can. Pac. Ry. Co., 26 Can. S.C.R. 682. 
 
 [Referred to in The King v. Chappelle, 32 Can. S.C.R. 624.] 
 
 Subway — Apportionment of cost — Railway companies and municipal- 
 ities. 
 
 An order of the Railway Committee authorized an electric street rail- 
 way to cross the tracks of a steam railway beyond the limits of the city, 
 the expense of protecting the crossing by gates and watchmen was by 
 agreement divided equally between the two companies. Subsequently the 
 limits of the city were extended beyond the crossing, and the growth of pop- 
 ulation having rendered additional protection necessary, application was 
 made by the city to the Board for the construction of a subway on the 
 highway, and the apportionment of the cost thereof between the two rail- 
 way companies: — Held, that the city should contribute equally with the 
 steam railway company of the cost of the work: — Held, also, that the 
 electric street railway company should likewise contribute to the cost of 
 the work. Ordered that the cost of construction of the subway, including 
 compensation for land damages, be borne by the parties in the following 
 proportions: Three-eighths by the city, three-eighths by the steam rail- 
 way company, one-quarter by the electric street railway company. 
 
 Ottawa v. Canada Atlantic Ry. Co. and Ottawa Elec. Ry. Co. (Bank 
 Street Subway Case), 5 Can. Ry. Cas. 126. 
 
 [Affirmed iii 37 Can. S.C.R. 354, 5 Can. Ry. Cas. 131.] 
 
 Construction of subway — Apportionment of cost — Person interested 
 — Street railway. 
 The Board, on application by the city of Ottawa, ordered a subway to 
 be made under the track of the C. A. Ry. Co. where it crosses Bank 
 street, the cost to be apportioned among the city, the C.A. Ry. Co. and the 
 Ottawa Elec. Ry. Co. By an agreement between the Electric Co. and the 
 city the company was given the right to run its cars along Bank street and 
 over the railway crossing, paying therefor a specified sum per mile. The 
 company appealed from that portion of the order making them contribute 
 to the cost of the subway, contending that the city was obliged to furnish 
 them with a street over which to run their cars and they could not be 
 subjected to greater burdens than those imposed by the agreement: — Held, 
 that the Electric Co. was a company "interested or alTectcd" in or by the 
 said work within the meaning of s. 47 of the Railway Act, 1903, and could 
 properly bo ordered to contribute to the cost thereof: — Held, further that 
 there was nothing in the agreement between said company and the city to 
 
HIGHWAY CROSSIXGS. 477 
 
 pierait the B<nrd making said order or to alter the liabilitj of the com- 
 paBT so as to eontribute. 
 
 Ottawa Elee. By. Co. t. Ottawa and Canada Atlantic Rt. Co., 9 Can. Ry. 
 Cms. 131. 37 Can.*S.C.R. 354. 
 
 [See Toronto r. Grand Trunk By. Co., 37 Can. SLCR. 232. 5 Can. Ry. 
 Cas. 13S: followed in ThoroM r. Grand Trunk et aL By. Ca»., 24 Can. 
 Ry. Cas. 21.] 
 
 SrSMTAT (TXnCS KAILWAT — PsimflGE TO KAi:^ GKJU»E OT HIGITWAT. 
 
 For many years the defendants, by aoreement with the city of Winni- 
 {■e^, had occapied a portion of the width of Point Dou^tas avenne in sai«j 
 ^city with the tracks of its main line. In 1904 a further ain^eement was 
 made between the city and the company, and ratified by the legislature, 
 whereby the company obtained the ri^t to raise the grade of Point Dong- 
 las avenae or of any part thereof to a height not exceeding ten feet above 
 the then existing grade, upon certain c<Hiditions: — Held, that the word$ 
 ~or any part thereot™ related to a part of the l»eadth as well as of the 
 length of the arenue, and that the defendants had a right to raise the 
 grade of the southerly forty-fire feet in width of the avenue leaving twen- 
 ty-one feet at its original heights although the result of that was to 
 diminish the value of the plaintiff's lots on account of the construction 
 of a subway alcagside of them: — ^Held, also, that an order of the Board 
 granting leave to the defendants to construct such subway was valid and 
 binding, although it had been made ex parte and in ignorance of the fact 
 that the plaintiff had previously obtained an interim injunction against 
 sadi coBStmrtion. the plaintiff having made no application to rescind or 
 rary the order as he might have done. The interim injunction granted in 
 19C^ had been affirmed on appeal before the hearing of the cause: — ^Held. 
 that that decision was not binding on the trial Judge and did not divest 
 him of the responsibility of deciding the case upon the merits at the hear- 
 ing. [C.P-B- V. G.T-B. (1906), 12 O-LB. 320, followed.) 
 
 Fraser v. Can. Pat By. Co., 8 Can. By. Cas. 205, 17 Man. LB. 667. 
 
 S(7KWAT — LETEL CWJtSSIXC AgKEEMEST — TlAFTIC LIGHT. 
 
 Application by the municipality to rescind an order of August 9, 1910, 
 approving of a level crxn^sing where the track of the railway crossed Choate 
 road, and to restore the order of February 15. 1910, requiring the railway 
 company to construct a subway thereat. In -luly. 1910, a petition was 
 received from residents of the township staling that they would prefer a 
 level crossing to a subway: the railway company then applied to rescind 
 the order for a subway and for authority to construct a level crossing. 
 Upon a report and recommendation of the engineer oT the Board (treat- 
 ing the petition as exprc-ssing the views of the municipality) an order 
 was issued on 9th August. 1930. canct-lline the order for the subway and 
 approving of a level crussing. At the hearing, the municipality stated 
 that in consideration of getting a subway at Choate road they had con- 
 sented to level crossings at other places in the town>hip. where, if such 
 consent had not been given, a different character of crossing m^ght have 
 been ordered. This statement was not denied by the railway company. 
 The railway company contended for a level crossing laecause a subway 
 woold be difficult and expensive to <-on>truct on account of the nature of 
 the soiL The Board's engineer agreed with the statement of the railway 
 eonqiany that the subway would be difficult and expensive and pointed out 
 that traffic on the hi^way was light: — ^Held (1). that the order for a 
 level crossing should be rescinded and the order for a subway restored. 
 <2) That the approvml given by the municipal council to level crossings 
 
478 HIGHWAY CllOSSlNGS. 
 
 at other highways in tlie township upon the understanding that they 
 were to have a subway at Choate road was an agieement from which the 
 railway company should not be relieved. Application for diversion of a 
 liighway into another highway where there was a subway under the rail- 
 way: — Held (1), upon the evidence that the diversion would be unreason- 
 able and the railway company should construct a subway carrying the 
 highway under the railway. (2) That the use of public highways should 
 be disturbed as little as possible in the construction of railways, except 
 where some change is necessary in the interests of public safety. 
 Clarke v. Can. Northern Ry. Co., 11 Can. Ry. Cas. 161. 
 
 SfJBWAY AprORTIOXlIENT OF COST — SeXIOR AND JUXIOB ROAD. , 
 
 The city of Regina applied to extend Broad street by building a sub- 
 way under the yards of the railway company, and consented to close Ham- 
 ilton street crossing the railway yards at grade. A crossing of necessity 
 had been established at Hamilton street and acquiesced in by the railway 
 company for many years. The railway company contended that Hamilton 
 street was a mere trespass crossing, and the public could be prevented 
 from using it at any time; that if the application was granted, the cross- 
 ing would be jmiior to the railway, and the whole expense should be borne 
 by the city: — Held (1), that the application should he granted, and the 
 railway compa)iy shoiild contribute to the cost of the work because it had 
 brought about an intolerable situation by laying out the town, and not 
 providing proper access from one part to the other. (2) That the city 
 should bear the cost of constructing the subway and substructures, and 
 the railway company should bear the cost of the superstructures. (3) 
 That the company should provide the approaches and the city should bear 
 the abuttal damages, both at the subway and the closed level crossing at 
 Hamilton street. (4) That the sum of .$5,000 be paid out of the railway 
 grade crossing fund, and be divided between the parties in the proportion 
 that the cost borne by each bears to the cost of the work. ( 5 ) That the 
 rule of the senior and junior road has been relaxed by the Board in favour 
 of the railway company at points where a separation of grades is made 
 and the highway is senior to the railway. 
 
 Regina v. Can. Pac. Ry. Co., 11 Can. Ry. Cas. 165. 
 
 [Followed in City of Medicine Hat v. Can. Pac. Ry. Co., 16 Can. Ry. 
 Cas. 413.] 
 
 Subway — Agbeeaient — Compensation. 
 
 Application to alter or rescind an order confirming an agreement be- 
 tween tlie town and the Railway Co. in regard to the protection and clos- 
 ing of certain streets and approving the works covered thereby. Under 
 the agi-eement the Railway Co. agreed to construct a subway at Cornelia 
 street, an overhead footbridge at C51eorge street, and convcj- two strips of 
 land on each side of its right-of-way to connect other four streets, and to 
 bear all damages in connection with those works and alterations in the 
 streets of the town; the municipality, on its part, agreed to pass by-laws 
 <;Iosing live streets, including Cornelia, except that portion occupied by 
 the subway, and sell the portions within the right-of-way to the Railway 
 Co. The landowners objected to the provision of the agreement dealing 
 with damages on the ground that they would not be able to recover full 
 compensation under the provisions of the Municipal Act. for injury done 
 to their holdings: — Held (1), that the agreement, on the whole, was not 
 one that should be interfered with. (2) That the landowners sliould be 
 
HIGUWAY CROSSINGS. 470 
 
 left to their legal rights to h*\e the amoinit of tkeir v«rkMis «^ai■w stt- 
 tJed bT the pnopn' triheiial. 
 
 Re Smith's Falls mMi Gu. Par. Bj. Co., 11 Can. Rt. Cas. 180. 
 
 SCBWATS — SeXIOOTT — ^DXTES OF BSCISTSATIOX — AmMTIOXSIEXT OF COST. 
 
 Jkpplication that the munieipalhr owned ekvrtrie railway of the appli- 
 cant upon a highvav be sranted leave to cross the line of the respondent 
 bj a aabwaj TTf^**** of a level crosdng: — Held (1), that it «a$ shewn 
 that a fiMM ihi ■ in; the location of the stnect was ic^istered prn^r to the 
 tiMaitiffw plan of the respondent. (2) That the street now being within the 
 boaadarics of the applicant raonieipalH- carried with it the attribote of 
 seaiontT acquired by the prior resistration of the plan according to the 
 fravisMS <Mr X.W J.' OnL. e. 4. & 75 ( 1901 1 , Public Works Act. (3 1 That 
 the mpuadft should ?hew cause whjr an order should not be made for a 
 f, the cost to be apportioned cqnalhr betwem the applicant and the 
 subject to a contribution of 20 per cent up to $>3.000 to the 
 CM* «f the walk, bam the Railway Grade Crossing Fund. 
 
 Eimmtam v. EdmoBton, Yukon 4 Pacific Ry. Cou, 13 Can. Ry. Ca:^. 12S. 
 
 [Bcfemd to in Regina t. Can. Pac Ry. Co.. IC Can. Ry. Cas. 238.] 
 
 ArrucAtios ram cossimccnox or sc^wat — Exccssite EXFExorrrmE — 
 
 PbOPOS^ED DITESSIOX OF HIGHWAY SimnSSlOX OF PLAXS. 
 
 Be SaToy and Can. Northern Ry. Cou, 7 DX.R. 886, 21 W.L.R. 377. 
 
 Sbpakatiox or gbades — AppomoxMEvr of cost — ^Vot-ims of tbaffic — 
 Sexiob axd jtrxioK mvul. 
 
 In apportioning the cost of separation of grades, the amount of trafBc 
 am the highway and raUway respectively are more important factors than 
 the <{uestioB of seniority, and the senior and junior rule should not be 
 given as much weight as in the case of one railway crossing another. 
 
 Ste. Anne de Bellevue k Senneville v. Grand Trunk and Can. Pac Rj. 
 Ool, 1« Can. Ry. Cas. 250. 
 
 PCVUC HIGHWAY — PtBUC IXTEKEST — AFPCWnOXlTEXT OF COST. 
 
 In a tity which was originally planned, and laid out by a railway eam- 
 pany without adequate provisions for hi^way crossings over its tracks, 
 and which has grown to large proportions on both sides of the railway 
 so that numerous croesings are necessary, and an existing highway cross- 
 ing is found to be congested and dangerous, the Board may require the 
 ct^pany to bear a part of the cost of carrying another de facto highway 
 by menats of a subway across the railway in order to relieve the conges- 
 tion/ notwithstandi^ that such last-m«itioned highway has no legal exist- 
 ence where it ci oa ta the tracks, and that tbe proposed subway construe 
 tioa therefore creates an entirely new public risht of croaking. [Regina v. 
 Can. Pac. Ry. Co., 11 Can. Ry." Cas. 165. followed.] 
 
 Medicine Hat v. Can. Pac. Ry. Co. (Medicine Hat Streets GaseK 16 Can. 
 Ry. Cas. 413. 
 
 SrnwAT — ^Ptbuc highway — Cost of iifxicifAUTY — Pmuc ixte«est. 
 
 As a general proposition, there is no objection to municipalities build 
 iag subways at their own cost, if they desire to make the expniditnre. 
 provided they do not interfw* with railway facilities, irrespective entire- 
 ly of circumstances which would justify the Board Mdering such action 
 in the public interest under the .Act. 
 
 Medicine Hat v. Can. Pac Rv. Co. (Medicine Hat Streets Case), 16 Qui. 
 Ry. Cas. 413. 
 
480 HIGHWAY CROSSINGS. 
 
 JJAILWAY grade CKOSSIXG KUXD ArPOETION'MEXT OF COST. 
 
 Where there has been actual long continued use by the public (though 
 Avitliout legal right) of a level crossing in the nature of a highway cross- 
 ing over a railway, the Board, in ordering in the public interest, that the 
 liighway be legally established, and carried across the railway by means 
 of a subway, may direct that part of the cost be paid from the Railway 
 Grade Crossing Fund, as in the case of separation of grades at a railway 
 crossing of a legal highway, [Regina v. Can. Pac, Ry. Co., 11 Can. Ry. 
 Cas. 165, followed.] 
 
 Medicine Hat v. Can. Pac. Ry. Co. (Medicine Hat Streets Case), 16 Can. 
 Ry. Cas. 413. 
 
 Highway opened — Semor and jtjniob bule — Equities — Subway. 
 
 A street having been opened across the right-of-way of the respondent, 
 the applicant was given permission by the Board to construct and main 
 tain a subway under the railway at its own expense and the respondent, 
 under the senior and junior rule, was not ordered to contribute to the ex- 
 pense, but if the applicant agrees to close a neighbouring street, notwith 
 standing this rule and that the equities as well as the title are in the 
 respondent's favour, the cost of the subway will be apportioned equally be- 
 tween the applicant and respondent. 
 
 Winnipeg v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 381. 
 
 Compensation to abutting owner — Consequential injuries. 
 
 The construction of a subway in pursuance of an order-in-council under 
 ss. 178, 179 of the Railway Act, R.S.N.S. 1900, c 99, required for the 
 public safety to carry a highway imder a railway, entitles an abutting 
 property owner to recover, from the company executing the work, compensa- 
 tion for the value of his land injuriously affected thereby, though the land 
 itself is not actually taken. [Parkdale v. West, 12 App. Cas. 602, followed; 
 Burt V. Sydney, 15 D.L.R. 429, 50 Can. S.C.R. 6, 16 D.L.R. 853, followed.] 
 
 Burt V. Dominion Iron & Steel Co., 19 Can. Ry. Cas. 187, 25 D.L.R. 252. 
 
 '[Reversed in 20 Can. Ry. Cas. 134.] 
 
 Pedesteian and vehiculab subway — Highway closed — Gbade sepaba- 
 TioN — Cost of construction. 
 
 A municipality and a railway company by agreement (ratified by by- 
 law) closed a portion of a highway, except for foot traffic. More than ten 
 years after the highway was closed the municipality, alleging an improvi- 
 dent bargain, applied to the Board for an order requiring the respondent 
 to construct a vehicular and pedestrian subway under the railway at the 
 closed portion of the higliway. The Board ordered the railway company 
 to contribute 60 per cent of the cost of the pedestrian subway, after 
 allowing a 20 per cent contribution out of the Railway Grade Crossing 
 Fund, but held that as to vehicular traffic the agreement must stand and 
 llwvt if the city wished to construct a vehicular subway, the contribution 
 of the respondent should not be increased. 
 
 Brantford et al. v. Grand Trunk Ry. Co., 23 Can. Ry. Cas. 7. 
 
 [Valid in 24 Can. Ry. Cas. 371.] 
 
 Pedestrian and vehicular subway — Cost — Public interest. 
 
 The decision of the Board in the previous case, 23 Can. Ry. Cas. 7, was 
 varied by directing a vehicular subway to be built in the public interest, 
 the respondent railway company to make the same contribution towards 
 the cost of the vehicular subway that it was ordered to make in the case 
 
HIGHWAY CROSSIXGS. 481 
 
 of the pedestrias subway, Bamely 60 per cent of the east of the pedestrian 
 sobwaj. 
 
 Bimntfrad t. Grand Tnrak Rt. Col, 21 Can. Rt. Ou. 371. 
 
 Cdsr — ArromnoTntKsr — Sexiok a^© jrvsiom. bcls — Faciuties — Tomt- 
 
 SXTK, 
 
 The senior and junior rule that, vhen a railway is erotsised by a highway, 
 the applicant should bear all the eo^t, does not apply where the railway 
 company Imts out a townsite and benefits fmn the sale of lots; in that 
 townsite it should assist in providing suitable facilities for the puUic to 
 get acroas the railway property. At Tirden, in Manitoba, the Board di- 
 reetcd the eonstmction of a pedestrian subway by the railway company, 
 the cost of the subway to be apportioned equally between the railway com- 
 pany and the town, and to be kept dean and lighted by the town, and. in 
 case an extension of the subway became necessary in the future, the costs 
 were to be apporticned equally between the partiesL [Begina r. Can. Pac 
 Ry. Co., 11 Can. Ry. Cas. 165: Medicine Hat t. Can. Pac By. Co. (Medi- 
 cine Hat Streets Case), 16 Can. Ry. Cas. 413, followed.] 
 
 VTrden t. Can. Pac Ry. Co., 21* Cm. By. Cas. 70. 
 
 SUBWAT trSDEB 1»ACKS Pc-BLIC PASK COST — SeTIOK AXD JTmOB KI7LE. 
 
 Where a subway was built under railway tracks in a paUie park, to 
 which the railway was senior, to give access between the portioas tyii^ 
 north and south (^ the railway of which the entire cost was bone by tte 
 municipality except the superstructure (borne by the railway company), 
 and the municipality having given the land on which to lay trades to 
 snre elevat<M:s south of the railway, of which six were to be built imme- 
 diately aouth ai the railway main line, ap]died for a subway under sadi 
 six tracks, the senior and junior rule does not apply, and the cost of the 
 arotk will be divided eqnaOy between the municipality and the railway 
 ennpanies interested. 
 
 Port Arthur t. Can. Pac and Can. Northern Ry. Cos, 23 Can. By. Gaa 
 
 HIGHWAYS. 
 
 See Hi^way Crossings: CTOs>sing Injuries,. 
 GoBpenaation to adjoining landowners, see Expropriatiaa. 
 See Xviaance; Highway Cioeangs. 
 
 AuMtsUon. 
 Bj^t of control and possession of highways. 3 Can. Ry. Gaa. S2. 
 
 Cossrrercnox of kailwat as highwat — Spbciai. cntcxniSTAscES. 
 
 Construction of a railway along a highway is objectionable, *Bd, exe^t 
 
 special circumstances, the Board will not exercise its jurisdietifla to 
 authorize such construction (for example, whoe the <4>jeet <Mf the 
 panys incorporation would otherwise failii. 
 
 ^«ex Terminal Ry. Co. v. Sandwich, 19 Can. Ry. Cas. 304. 
 
 OaaOBAMTS. 
 See Carriers of Passengers. 
 
 Cbdcesb Imsogkatiox Act — ^Habeas oobpi~s. 
 
 Chinese immigrants who are lehised admission in the United Statesi, 
 Can. Ry. L. 1%.— 31. 
 
482 ikju:n^ctio]^. 
 
 and do not appeal from the decision so rendered against them, are not 
 entitled to a writ of habeas corpus, while being transported from tlie 
 United States to China, in conformity with the agreement between the 
 United States and the Canadian Pacific Ry. Co. 
 Chew and Can. Pac. Ry. Co., 6 Quo. P.R. 14. 
 
 Annotation. 
 
 Transportation of immigrants. 4 Can. Ry. Cas. 416. 
 
 INDUSTRIAL SPURS. 
 See Branch Lines. 
 
 INJUNCTION. 
 
 Mandatory injunction enforcing contract regulating train service, see 
 Train Service. 
 
 Mandatory injunction compelling street railway to specifically perform 
 contract with municipality respecting street car service, see Street Rail- 
 ways. 
 
 Injunction restraining interference with expropriation, see Expropria- 
 tion. 
 
 Jurisdiction of Board to grant relief by injunction, see Railway Board. 
 
 Prevention from interference with highways, see Highway Crossings. 
 
 Annotation. 
 
 Whether mandamus, injunction, specific performance or damages is 
 the proper remedy for the enforcement of covenants by railway companies. 
 Ed. Note, 1 Can. Ry. Cas. 294. 
 
 Damage caused bt injunctiox — Want of probable cause. 
 
 Where a registered shareholder of a company, finding the annual re- 
 ports of the company misleading, applies after notice for a writ of in- 
 junction to restrain the company from paying a dividend, and upon such 
 application the company do not deny even generally the statements and 
 charges contained in the plaintiff's affidavit and petition, there is sufficient 
 probable cause for the issue of such writ; and, consequently, the defendant, 
 who upon the merits has succeeded in getting the injunction dissolved, has 
 no right of action for damages resulting from the issue of the injunction. 
 [18 Rev. Leg. 12, Mont. L.R. 3 S.C. 232, 17 Rev. Leg. 550, affirmed.] 
 
 Montreal Street Ry. Co. v. Ritchie, 16 Can. S.C.R. 622, 
 
 [Followed in Lavoie v. Duret, 7 Que. S.C. 355.] 
 
 Restraining use of fobeshobe of harbour. 
 
 The Dominion Act, 44 Vict. c. 1, s. 18, gave the C.P.R. Co. the right to 
 take and use the land below high-water mark in any stream, lake, etc., 
 so far as required for the purposes of the railway: — Held, that the right 
 of the public to have access to a harbour, the foreshore of which had been 
 taken by the company under this Act, was subordinate to the rights given 
 to the company thereby, and the latter could prevent by injunction an 
 interference with the use of the foreshore so taken. [2 B.C.R. 306, af- 
 firmed.] 
 
 Vancouver v. Can. Pac. Ry. Co., 23 Can. S.C.R. 1. 
 
 [Leave to appeal to Privy Council refused, 23 Can. Gaz. 360; considered 
 in Attorney-General v. Can. Pac. Ry. Co., 11 B.C.R. 299; followed in Can. 
 Pac. Ry. Co. v. Parke, 6 B.C.R. 15; referred to in Can. Pac. Ry. Co. v. 
 McBryan, 5 B.C.R 198.] 
 
IXJUXCTIOX. 483 
 
 EXFBOPKIATIOX FOB STATED PUKPOSE — ^VlOLATlOX OF OOXTRACT. 
 
 ( 1 1 Where a petitioner for injanetion sliews that his rights under the 
 terms of a contract made h\ him with the respondent and under a servi- 
 tude granted by it over the propertv acquired are violated by it and an- 
 other railway under agreement with it. an interlocutory order of injunc- 
 tion will be granted to restrain both respondoits from the performance 
 of any acts in violation of the contract and servitude. (2t Where a 
 railway company, by expropriation proceedings, obtains land for one object 
 and makes use of it for another, causing additi<Hiai damage to the ex- 
 propriated party, particularly when the railway company has declared 
 that it Lb so expropriated for the former object in order to »ave the greatiT 
 danger resulting from the other object, the expropriated party is entitled 
 to an interlocutory order of injunction, irrespective of his right to recover 
 damages, the object of the law being that all damages must be paid before 
 ezpn^firiation. 
 
 Hampson v. Chauteauguay & Northern Ry. Co., 6 Que. P.R. iS3. 
 
 [Applied in United Shoe Machinery Co. v. Brunet. 27 Que. S-C. 213.] 
 
 Malice — Ibkepas.\bl£ damage. 
 
 The plaintiff had obtained the right to operate a line of electric railway 
 in certain streets within the limits of the municipality defendant, under 
 a by-law of the town council and under a contract passed between plain- 
 tiff and defendant. The defendant, by the contract, reserved the right to 
 take possession of the streets used by the plaintiff, for the purpose of 
 changing the level and the performance of other necessary work. It wa-t 
 acting under these powers whoi the work was stopped by a temporarv- 
 in junction order: — ^Held (affirming the judgment of the Superior Court. 
 .\rchi))ald. J.): (1) Where one of two parties to a contract is doins a 
 thing which, by the terms of the contract, he has specially reserved the 
 right to do, the other party to the contract is not entitled to an injunc- 
 tion to restrain the doing of the thing, on the ground that the work is 
 proceeding in a way which inflicts more damage than would be caused if 
 another method, more expensive, had been adopted. So, in the present 
 caae, the defendant, which had granted certain powers to the plaintiff, but 
 had reserved the right to take possession of the streets when necessary 
 for road operations, was not bound to adopt a more lengthy and expensive 
 though less injurious method of performing the work. (2i In order to 
 obtain an injunction in such circumstances, where there has been no in- 
 vasion of a legal or equitable right, it must be established that irreparable 
 injury will be caused if an injunction is not granted. (3* A temporary 
 interruption of traffic and injurious method of removing the rails, causing 
 a damage in the nature of a pecuniary loss, do not constitute an irrepar- 
 aUe injury. (4) Although difficulties had existed lietween the parties, 
 and defendant may have derived satisfaction from the thought that the 
 exercise of its rights would cause the plaintiff damage, yet malice altme 
 does not open any right of action, where, as here, there was a real inten- 
 tion to accomplish the work, and defendant was acting within its right. 
 
 Montreal Park k Island Ry. Co. v. St. Louis, 17 Que. S.C. 545. 
 
 Highway cbosstxg — Ixterfebex<e with access to bkidgk. 
 
 The permission granted by the Railway Committee for the crowing of a 
 public highway by a railway at a place where there are approaches to a 
 bridge belonging to a private individual does not deprive such person of 
 his recourse for indemnity and, in default of previous tender of such in- 
 
484: INJUNCTION 
 
 demnity, he may, by injunction, prevent the railway company constructing 
 the crossing over the approaches to his bridge. 
 Jones V. Atlantic & North-West Ry. Co., 12 Que. P.R. 302. 
 
 RkSTKAIXINO the EUNNING of CAKS — ENFORCKMEXT of ACiRKENrEXT. 
 
 ]>y an agreement made between the plaintiffs, the miuiicipality of To- 
 ronto, and defendants, a street railway company, the defendants agreed 
 that, upon receiving at any time twenty-four hours' notice from the plain- 
 tiffs' engineer, they would cease running their cars by electricity on the 
 portion of the Yonge Street within the city limits: — Held, that, nothing 
 having occurred to operate as a waiver by the plaintiffs of this term of the 
 agreement, and the notice having been duly given, the plaintiffs were en- 
 titled to an injunction restraining the defendants from propelling their 
 cars by electricity within the limits of the city. 
 
 Toronto v. Metropolitan Ry. Co., 1 Can. Ry. t'as. 63, 31 O.R. 367. 
 
 Railway committee — Location of i.ixe — Conflicting surveys — Juris- 
 
 DICTION. 
 
 An injunction will not l>c granted to restrain one railway company 
 making its surveys and locating its line so as to cross and recross the line 
 of another. The Railway Committee is the tribunal specially constituted, 
 having powers and jurisdiction respecting the crossing, intersection and 
 junction of railways, the alignment, arrangement, disposition and loca- 
 tion of tracks, the use by one company of the tracks of another and every 
 matter, act or thing which by the Railway Act, 1888, or the special Act 
 of any railway company is sanctioned, required to be done or prohibited. 
 The Court in a case of this nature, in which the Railway Committee has 
 jurisdiction, will not make a declaration of the rights or priorities of the 
 contending parties. 
 
 Ottawa, Arnprior & Parry Sound Ry. Co. v. Atlantic & North-West Ry. 
 Co., 1 (an. Ry. Cas. 101. 
 
 [Referred to in Perrault v. Grand Trunk Ry. Co., 14 Que. K.B. 240.] 
 
 Interlocutory injunction — Extropbiation — Commencement of work — 
 Omission to file plans. 
 
 [See note of this case under Expropriation (J).] 
 
 Yale Hotel Co. v. Vancouver, "Victoria & Eastern Ry. Co.; Grand Forks 
 & Kettle River Ry. Co. v. Vancouver, Victoria & Eastern Ry. Co., 3 Can. 
 Ry. Cas. 108, 9 B.C.R. 66. 
 
 [Referred to in Fry v. Botsford, 9 B.C.R. 243.] 
 
 Restraining construction of railway — Franchise. 
 
 Per Sedgewick and Killam, JJ. : — A company having power to construct 
 a railway within the limits of the municipality has not such an interest in 
 the municipal highways as would entitle it to an injunction prohibiting 
 another railway company from constructing a tramway upon such highways 
 within the permission of the municipality under the provisions of Art. 
 470 of the Quebec Municipal Code. The municipality has power, under the 
 provisions of the Municipal Code, to authorize the construction of a tram- 
 way by an existing corporation notwithstanding that such corporation has 
 allowed its powers as to the construction of new lines to lapse by nonuser 
 within the time limited in its charter. Per Girouard and Davies, JJ. : — A 
 railway company which has allowed its powers as to construction to lapse 
 by nonuser within the time limited in its charter and which does not own a 
 railway line within the limits of a municipality where such powers were 
 
IXJUXCnON. 4S5 
 
 gnmted 1ms ao iatcacst iBliiifl to aaiBtan aa iajmrtiaB iHuhaatus tW 
 futimtl— tkcraa of ■— ftii nilnj or faanaj. 
 
 MoHtml BmA 4t Idnd Rf . Ck. ▼. Chnteu^gny Jt Xortken Kj. Ool, 4 
 Cmm. Rf . Ck&. S, 33 Gu. S.C.H. 48L 
 
 Cio5^si«rcTKRs or »Aa.wAT — l5;jtrBT lo hijkes — CtatwKS&A'wwais. 
 
 Ike ihfiiUaii daiBtd tlv r^bit to txmstxmet tknr ruhraj aada- fke 
 aatkoritj of tH^™ orfgrs-ia imniil, kaviaig olifiand tke appnml of tkr 
 Boaxd aad Mianter of tW lattnior of a raate mmp rOemA t» ia siAo. 1 
 of a. 122 of ike BaOvar Jlct. ismts. lot aot tkat nfrmd *o ia nfe. 3 of 
 iw laiz—BtM (1), before the Apieadaats eoald einao y iiala laad aillwail 
 the CMstat off the owaen^ thn- aiast «MBplj with the mwi o i u i off tibt 
 JidL (2) Flaetr auaere mre omacrs mithia the Mraaiag off tte Act, mmi 
 •■liiWJ ta ii—painliiw fSs A placer wae is aa opca aiae vHhia & 
 133 of the Ad. f4} TW plaiatiff? wne eatitled to aa iajaactiaa restraia- 
 i^ the deffeadaats firoH iui*Ji tiag thfir worts aad iajarioacij affeeti^ 
 the ooiLi ag oi tte plaiatifFs placer aiiaiag dana* held br thea aaJi i 
 fiecBHS iw ed aader tW filacu auaia^ wgalotiaaii, a&. 1£. 133 of the 
 Act. (Tale Hotel Coc t. Vaacoamr, Tictona & Enrtoa Bj^ ete^ Col. 3 
 Caa. St. Ca& lOS. iblhmcd.] 
 
 Dtej V. Kkmlike Uiaes Rt. Om S Caa. Rjr. Ck& 203. 2 WXlR. SSSl 
 
 EsrmarmuTKis — OfraessTiKXEBS — OjaaKS&Mnoit — ir:r3CBacssj«T BCUiT. 
 
 Ia the ahscacr of erideaee that the tMM|iaaj has heca op|iw.iiiin.' or hi^- 
 aa ia jaactiiai win aoc be graated ta restiaia the laHw^ eoBpaaj 
 fifocec diag with the lailwaT. mm if ttere has aot beea lafciitiatiil 
 with tike Act, prorided the laHwa j coipoay will cater iato aa 
 ■aihitiiia^ to coatphr forAwith with the reqairaacats of the Act aad to 
 fiacilitale the proccediag¥ for d eicj ai iai Bg the ■aawiat of enapcanatioa to 
 be paid. [FoDowii^ P&rfcdale t. West, 12 AppL Gas. fiOi. S6 LlJJP.C. €6. 
 37 L.T. (BOS. aad Hcadrie t. Tnoato, Haailtoa 4 Bafalo Rj. Col. fS O.B. 
 mS, a gitd 27 OJB. 4«.] Bat the Goat viB reseiTe to the plantiff Ifte 
 rifht to appfy to a siagle Jadge for aa iajwai tioa to preteat aay ^UKces- 
 saiT ddar ia pcoccedia^ to iiuaiply with the Act aad paj cnBpeaaatMB. 
 
 ilarsaa t. Graad Trai^ Br. Col 9 Caa. Rj. Cas. 341, 2 AUa. L.R. 43. 
 
 [Ksd^iaidhcd ia Giroataid t. Gnad Traak Fae. B^. Ga, 9 Ou. Ry. 
 Gu. 334, 2 Alta. LJL 34.] 
 
 Esraorauno3c — IXTAua wAsaiLvr of rossEaswn. 
 
 The driiadsal applied for wanaat of pownefTiriwa aader the Railwajr Act 
 rrgsidiag iipiupiiatioa of bads, aad the Jmd^. sittia^ ia Goort. ^;iaBtel 
 the wanaat off possrsisioa oa fairt« which the Court ca baac ia Ihrsaa t. 
 Gnoad Traak Ftcifir, 9 Caa. Rt. Ca:& 341. 2 Alta. L.R. 43, hdi wvre aot 
 saflkicBt to j^ire the -ladjie jnrisdictioB. aad th#> order wis thnvfoce ia- 
 vafid. The plaiatiff. ias-tcad of takiBg aa appeal fnaa the order, bnaifht 
 aa artiim a^iast the raitwaj coiapaaT. claiwiag iajuaetiaa aad da^ajpr^: 
 -^eld, that the pfauatiir eoiald aaiataia the aetioa. for the mma tkat. 
 cuva if aa appeal would Ue timm the order, the plaiatiff was eatitled to 
 additinaal refief Inr way of aa ia jaartioa aad daaagcs which eoald aot W 
 gim oa appeal: — Bdd, alsoL the pnaciple of res jadicata woald aot apphr. 
 as tike Older sraatiBip the wanaat of pasf««siaa was ande withoat jari»- 
 dictioa. [Attaney-OcMral for Triaidad t. Eariche, CI LJ.P.C. C, [1»31 
 AC 31R. 1 R. 44B, 99 KT. 503. referred to]:— fldd. al» that tihe lailwaT 
 c Mipaai haTiag acted aader the iaralid warraat of poaHsaiaB had eoat- 
 ■ittcd a techaieal trrtpnw aad ws£ liable tor aoniaal daaagea, which 
 
486 IN^JUNCTIOX. 
 
 carried costs. [Marsan v.. Grand Trunk Pacific Ry. Co., 9 Can. Ry. Cas. 
 341, 2 Alta. L.R, 43, distinguished.] 
 
 Girouard v. Grand Trunk Pacific Ry. Co., 9 Can. Ry. Cas. 354, 2 Alta. 
 L.R. 54. 
 
 Damages in lieu of inji:xction. 
 
 The ordinary rule is to grant damages in lieu of an injiuiction in cases 
 where (a) the injury to plaintiff's legal rights is small, and (h) is capable 
 of being estimated in damages, and (c) can be adequately compensated by 
 a small-money payment, and (d) where it would be oppressive to defendant 
 to grant an injunction. [Shelfer v. London Elec. Lighting Co. (Xo. 1), 
 [1895] 1 Ch. 287, at 322. approved.] 
 
 Can. Pac. Ry. Co. v. Can. Northern Ry. Co., 7 D.L.R. 120, 22 W.L.R. 
 289. 
 
 Damages in lieu of injunction. 
 
 Where an injury has not been actually committed, but is threatened, it 
 is still a matter of doubt, whether the Court which might grant an in- 
 junction to restrain the threatened injury has any jurisdiction to award 
 damages in lieu of an injunction which would have been preventive only 
 and not mandatory. [Martin v. Price, [1894] 1 Ch. 276, considered.] 
 
 Can. Pac. Ry. Co. v. Can. Northern Ry. Co., 7 D.L.R. 120, 22 W.L.R. 289. 
 
 Injury or inconvemente to property — Irrigation works. 
 
 Where a railway company had agreed in building its road to erect per- 
 manent bridges over plaintiff's irrigation ditches and it appeared that, 
 without first erecting temporary bridges, and maintaining them, for some 
 months, the agreement could only be performed with great difliculty and 
 ♦ onsiderable delay and consequent loss to the company and there was no 
 jiroof that plaintiff would sustain more than nominal damages, the Court 
 has a discretion to refuse an interim injunction to restrain the railway 
 company from erecting the temporary structures, leaving it open for the 
 Court at the trial to make a mandatory order for their removal or to award 
 damages or to do both, and this particularly in view of an express statu- 
 tory power to award damages in lieu of, or in addition to, an injunction for 
 breach of contract. 
 
 Can. Pac. Ry. Co. v. Can. Northern Ry. Co., 7 D.L.R. 120, 22 W.L.U. 289. 
 
 Street railways — Violation of franchise. 
 
 An injunction will be denied a city to enjoin the operation of an electric 
 railway on the ground that the company has no power to do so by reason 
 of an irregularity in the proceedings of the municipality purporting to 
 confer the franchise on the company, where it does not appear that the 
 railway is a nuisance, or that the city suffered special damages from its 
 operation, although it crossed some public streets under an order made by 
 the Board, 
 
 Burnaby v. B.C. Elec. Ry. Co., 12 D.L.R. 320. 
 
 Restraining application to Governor-in-council for leave to exprop- 
 riate LAND. 
 The Court will not enjoin a proposed application by a company to the 
 Governor-in-council for permission to expropriate land or an easement for 
 the purposes of its business, as permitted by its charter, c. 113 of N.S. 
 Acts, 1911, on the ground that the property sought was not such as could 
 be acquired by expropriation, because affected with public rights, or rights 
 already acquired by others under statutory grants; since the Court cannot 
 assume in advance that the Governor-in-council will exceed his jurisdiction 
 
rS'SOLVEXCY. 4»7 
 
 or act iDegallT and gr*nt permission to take land not subject to expro- 
 priation. (Per Townshead, C^^ and Loagler. J.t 
 Miller T. Halifax Pawn Co. (NJS.). 13 DSJL »44. 
 
 Watcb KiGiRS — Defsctite bkat^age. 
 
 The prorisio» (rf & 166 4rf the Eaihraj Aet (B.C.> 1911, e. 44, antlKMrix- 
 iag tke Minister of KaihraT^ to make orders in cas4?s of defectiTc draina^ 
 do not depriTe tlie Courts of jnnsdietioB in a proper ca^e to grant an in- 
 jnnetioa. (Dictum of Irrins; JJLn 
 
 31 cCrimmon t. Briti<li Colnmlna Eke. Br. Col, 19 On. Kj. Casw 329, 24 
 DXJS.368. 
 
 IHJT7S£BSl 
 
 See Crossing Injnries: EmploTecs; Carriers of Passei^rs; Limltnt 
 of LiabilitT (Bji ; Wires and Poles. 
 
 INSOLYEMCT. 
 See Sale; Beceirers. 
 
 V^SBOTMED CSEDrrOB ^OT ASSEVTIXG TO SCHEME OT AEBAXGEHEVT. 
 
 ( 1 i An UBseeiired rreditor who does not assat to a a e h e me of arraa^e- 
 mmt filed under s. 2S5 of the Bailwaj Act. 1903, is aofc boand thcrebr. 
 (2» It is. hoverer. a good objection to such hdm i e that it porports in 
 terms to di^haige the claim of such creditor. (3i Bt a scheme of ar- 
 rangement, between an in:solTent railway company and its creditors, it 
 wa.« proposed to cancel certain outstanding bmds and to issue new deben- 
 tures in lien thereof against pn^iertr that was at the time in the pos- 
 session of the trustees for the bondholders of another railway company. 
 Part of such new debentures were to be issued upon the insolroit company 
 acquiring the control of certain claims, bonds and liens against the rail- 
 way; and pdurt upon a good title to the railway being secured and rested 
 in the trustees for the new debenture holders^ The railway company, the 
 trastees for whom bondhfMcrs were in posecasion €tt the railway, objected 
 to tihe atkaae of arrangeoKBt. Its rights therein had aot beta dcCcrmiaed 
 or foreriosed: — ^^Id. that the railway company was mtitlcd to be heard 
 in oppositioa to the scheme, and that the latter was open to objection in 
 so far as it purported to give authiwity to issue a part of the new d eb ea- 
 tures upon acquiring the control of such claims, bonds and lieas. and vitt- 
 oai a^ proccedii^s to foredoae cr acquire the ri^ts of noA raiHray 
 wpnny ia the railway. ( 4 1 Xo scheme or arrangeaieat mdcr the Bail- 
 way Act, 1903, oqght to be confirmed if it appears or is diewn that all 
 orcditors of the aame dass are not to rcceire equal U ea lm eat. 
 
 Be Baie des Chalenrs By., 9 Can. Ex. 386. 
 
 Saix — Puoa EXQimr rvro cuayts or cwMamms — Pledge w bo:tbs — 
 
 TkCSTEE FOa BOXDHMJ>ESS. 
 
 An enquiry before a referee into the ralidity and prion^ oi tke daiais 
 of creditors of an insolrent railway may be <vdaed before an order far 
 the sale of the railway is made under tbe provisions of s. S6 of the Ex- 
 chequer Coart Act (BJS.C. 1906, c 140i. (2> A pledgee <a railway btmds 
 has a saSeieBt interest (in the nature of that of a mortgagee) in such 
 boads to iastitate an actaoa for the sale of the railway under the provi- 
 aoaa of a, 26 of the Exchequer Court Act. (3) A trastce for the bnid- 
 holdcrs of aa iaaatrcat railway may becoow a pordaaer, as sodi trastce. 
 
488 INSOLVENCY. 
 
 at the sale of the railway. (4) Under the terms of s. 20 of tlie Exchequer 
 Court Act part of a railway may be sold when the railway is in default 
 in paying interest on its bonds. (5) A director, being a creditor of a 
 railway company, present at a meeting where authority is given to pledge 
 the bonds of the company, is estopped from setting up the invalidity of 
 such bonds in an action by the pledgee. ((») The Court in exercising its 
 jurisdiction in respect of railway debts under the said section, will not 
 review the judgment of anotlier Court of competent jurisdiction affecting 
 the railway, but will leave the rights of any person entitled to attack 
 the judgment to the determination of the Court which pronounced the 
 same. 
 
 Royal Trust Co. v. Baie des Chaleurs Ry. Co., 13 Can. Ex. 1. 
 
 Status of creditor as mortgagee of bonds and trustee. 
 
 Certain of the defendants, who were creditors of the railway company 
 defendant, asked leave during the progress of the trial to amend their 
 defence by setting up noncompliance by the railway company with certain 
 statutory requirements as to the issue of bonds: — Held, that the amend- 
 ment asked would result in raising a new issue between the parties, and 
 the application should be refused as having been made too late. (2) By 
 its statement of claim the plaintiff company asked among other things, 
 that certain mortgage bonds of the defendant company held by them to- 
 gether with a mortgage deed in favour of the plaintiff, as trustee, made 
 by the defendant company to secure certain bonds or debentures, be de- 
 clared a "first claim and privileged debt" ranking on the property of 
 defendant company's railway: — Held, that judgment should be entered 
 declaring that said mortgage bonds and trust deed constituted "a claim 
 and privileged debt," but that their rank, amount and priority should be 
 determined by the registrar of the Court, to whom a general reference 
 was directed to take accounts and ascertain what was due to the several 
 creditors and what the priorities were as between them, and whether there 
 were any prior claims, and, if any, for what amounts respectively. 
 
 Royal Trust Co. v. Atlantic & Lake Superior Ry. Co., 13 Can. Ex. 38. 
 
 Scheme of arrangement — Enrollment where no objections. 
 
 Motion to confirm a scheme of arrangement, between the Great Northern 
 Ry. Co. and its creditors, filed in the Exchequer Court imder the provisions 
 of s. 285 of the Railway Act, 1903. Per Curiam: — The motion will be 
 granted. The scheme of arrangement will be confirmed, and, as there is 
 no objection, the same will be enrolled by the Registrar forthwith. 
 
 Re Great Northern Ry. Co., 5 Can. Ry. Cas. 416. 9 Can. Ex. 337. 
 
 Scheme of arrangement — Motion to restrain pending action. 
 
 In proceedings taken to confirm a scheme of arrangement, filed by a 
 railway company under the provisions of s. 285 of the Railway Act, 1903, 
 an application was made, on behalf of the railway company, for an order 
 to restrain further proceedings in an action against such company begun 
 in the Superior Court for the District of Montreal, by certain creditors, 
 before the filing of tlie scheme of arrangement but which had not proceeded 
 to judgment: — Held, that as there were real and substantial issues to be 
 be tried out between the parties in the action pending in the Superior 
 Court, the same ought to be allowed to proceed pending the maturing of 
 the scheme of arrangement. [Re Cambrian Ry. Co.'s Scheme, L.R. 3 
 Ch. App. 280, n. 1, referred to.] 
 
 Re Atlantic & Lake Superior Ry. Co., 5 Can. Ry. Cas. 418, 9 Can. Ex. 
 283. 
 
INTERCHAXGE OF TRAFFIC. 489 
 
 INSUSANCE. 
 
 Of emploTces. see Emploj-ees. 
 
 Condition in bill of lading requiring insurance of goods, see Carriers of 
 Goods; limitation of Liability. 
 
 Aa affecting amount of damages, see Damages. 
 
 INTEECHANGE OF TEAITIC. 
 See also Tolls and Tariffs. 
 
 JrXCTIOX OF TWO B-1II.WATS — AlTHORITT OF THE BOAKD. 
 
 The object of the Railway Act. 1903. (ss. 177. 253. 271) is to ensure 
 that all reasonable and proper facilities for the handling, forwarding and 
 interchange of trafiic shall be afforded to the shipping public. For this 
 purpose the Board may. without the sanction and against the will of a 
 railway company, permit a junction to be made with its line by another 
 railway wliere. in the opinion of the Board, such junction is reasonably 
 necessary in the public interest and in the interest of traffic in the dis- 
 trict through which the railway passes. The parties to a lease of a 
 railway cannot by stipulation between themselves restrict the powers or 
 discretion of the Board to authorize such a junction. 
 
 Niagara. St. Catharines 4 Toronto Ry. Co. v. Grand Trunk Ry. Co. 
 (Stamford Junction Case), 3 Can. Ry. Cas. 256. 
 
 COXXECTIOX or RAILWAYS — IXTEBCHAXGE OF TRAFFIC. 
 
 A physical connection was made and used some years before 1st Feb- 
 ruary. 1903. between the lines of a provincial and Dominion railway, but 
 no order was obtained authorizing such connection under s. 173. Railway 
 Act, 1888, or s. 177. Railway Act. 1903, although a crossing had been duly 
 authorized by the Railway Committee in 1897. Upon an application being 
 made tinder ss. 253. 271 of the Railway Act. 1903, to compel an inter- 
 change of traffic between the two railways: — Held, that Parliament has 
 the incidental power to determine the terms upon which a railway, not 
 otherwise subject to its legislative authority, may connect with or cross 
 one that is so subject, and the obligations between the companies concerned. 
 [B.X.A. Act. s. 91 (10) (a) and (c), and s. 92 (291: ss. 306, 307, Rail- 
 way Act 1888. and s. 7. Railway Act. 1903, referred to] : — Held, that such 
 connection being illegal, no order should be made. An application to au- 
 thorize the connection, under s. 177, Railway Act, 1903, must first be 
 made. 
 
 Patriarche v. Grand Trunk Ry. Co. et al.. 5 Can. Ry. Cas. 200. 
 
 DOKIXIOX BAILWAT — PbOVIXCIALLT IXCOBPORATEO BAILWAT COXXECTIOX. 
 
 The Board has no jurisdicti<m to order a connection to be made or traffic 
 to be interchanged lietween a Dominion railway and a provincially in- 
 corporated railway which it crosses, such provincial railway not having 
 been declared a work for the general advantage of Canada. Under s. 8 
 of the Railway Act, 1906. the jurisdiction of the Board is confined to the 
 point of crossing, and does not e!rtend to the whole line of the provincial 
 railway. Where a railway company incorporated by the Parliament of 
 Canada was authorized to acquire two provincially incorporated railways, 
 but no work had been done in connection with such railway, and the vali- 
 dating Act provided that the acquisition should not make such railways 
 subject to the Railway Act. 1903, or works for the general advantage of 
 Canada, but that they should remain subject to the legislative control of 
 the province: — Held, (1) that under s. 3, the special provincial Act over- 
 
490 INTERCHANGE OF TRAFFIC. 
 
 rides the Railway Act. (2) That there is no jurisdiction to authorize 
 making connections with or affording facilities to a Dominion railway 
 which does not exist, and an order requiring such connection to be made 
 would be in effect ordering a provincial railway to connect with a Domin- 
 ion railway, as to which the Board has no jurisdiction. 
 
 Boards of Trade of Gait, etc. v. Grand Trunk, Canadian Pacific, etc., 
 Ry. Cos., 8 Can. Ry. Cas. 395. 
 
 Compulsory conistectiox and ixtebchange of traffic. 
 
 Subs. 4 of s. 57 of the Ontario Railway Act, 1906, 6 Edw. VII. c. 30, 
 applies only to railways actually in existence and operation at the time 
 of the application to the Ontario Railway and Municipal Board thereby 
 provided for, and there is no difference in this respect when the railways 
 in question, or any of them, are street railways. Where, under subs. 6 
 of s. 57, the Railway and Municipal Board makes an order declaring that 
 s. 57 shall apply to two railways, as to one of which it has jurisdiction 
 to make such an order, but not as to the other, the intention Ijeing to 
 bring about an interchange of traffic between them, the Court of Appeal will 
 not strike out that part of the order which is beyond the Board's jurisdic- 
 tion and let the remainder stand, when the effect of so doing would be to 
 name a different order from that whicli the Board intended to make, and, 
 in fact, made. Upon the proper construction of the said subs. 6, the said 
 Board has power only to declare that that section shall apply to a particu- 
 lar railway, without any limitation as to the railways with which such rail- 
 way may thereby become liable to interchange traffic, but such a declara- 
 tion does not restrict the power of the said Board to refuse subsequently to 
 order an interchange of traffic between such railway and any other railway, 
 or to impose such terms of interchange as it may see fit. S. 57 does not 
 apply to a railway owned by a municipal corporation. 
 
 Re Toronto and Toronto *Ry. Co., 14 Can. Ry. Cas. 422, 3 D.L.R. 561, 26 
 O.L.R. 225. 
 
 Passengers — ^Through — Joint tickets. 
 
 The Board is not concerned with the disputes of rival railway companies 
 as such, or with the fact that one desires to do business with another to 
 the exclusion of a third, its only interest being that of the public in the 
 transportation of passengers and freight. Under the special circum- 
 stances of this case the respondent Michigan Central Ry. Co. are obliged 
 under ss. 217 and 334 of the Railway Act, 1906 to make reasonable traffic 
 arrangements to enable the applicant to do business witli it, by issuing 
 through joint tickets for the transportation of passengers. 
 
 London & Lake Erie Ry. Co. v. Michigan Central and London & Port 
 Stanley Ry. Cos., 20 Can. Ry. Cas. 194. 
 
 SntmvisiON — Diversion — Senior and junior — Cost — Construction and 
 
 MAINTENANCE. 
 
 The general practice of the Board when an application is made for an 
 interchange track for the purpose of interchanging traHic. whore it appears 
 that the effect of establishing such interchange is to subdivide the traffic 
 by diverting it from the older line, is to place the full cost of construc- 
 tion and maintenance on the junior line. 
 
 Grand Trunk Pacific Ry. Co. v. Can. Pacific Ry. Co. (Calgary Inter- 
 switching Case), 21 Can. Ry. Cas. 187. 
 
 Transfer track — Removal — Facilities. 
 
 The Board may authorize the removal of a transfer track used for the 
 
INTERCHAXGE OF TRAFFIC. 491 
 
 iaierAai^ of tufc,, vAca tlie iaterrhai^e can be done at another point, 
 resoltng in eeamomnr of rollii^ stock Morfrnt in tlie poUic interest. 
 Am rdienng the strain on tlie existing facilities bv remoTing the track 
 and wimi" the rails and tie» at other points where there is nrwi^t need. 
 
 Can. Pae. Bt. On. t. Sa^:atoon and Mooeejav Boards of Trade, 2± Can. 
 Rt. Cks. Z*». ' 
 
 IXTEaCHAS«K TRACKS — IXTIBSWTTCHntC TACIUTtSS ApPOmOXMKST OF 
 
 COST. 
 
 The Board under s. ±2S of the Bailvaj Aet. 1906. grants, to anj per- 
 ^ion or persons interested, interchange tracks and interswitehing facilities, 
 not f<H- the pnrpoee oi benefiting one raihrar cMnpanr at the expense of 
 another, hot soleH- in the public intere?'t. the cost of proriding sth faieili- 
 taes to he hotve bj the api^cant indostrr. and the railway conponr to 
 whose tracks aceeso is desired. [Grand Tmnk Rt. Co. t. Can. Par. Ry. 
 Gsl and Loadoa (Loiidan Intoswitdui^ CaseK 6 Can. Rt. Cas. 3^, at 
 p. 331. followed.] 
 
 GiDies Bros, and Grand Tmnk Rr. Co. t. Can. Psc. Rj. Co., 18 Gan. 
 Rt. Cas. 44. 
 
 ISTEBCHAXeE TBACK COXXECTION WTTH PSOVINCIAI. SAILWAT. 
 
 The Board will order, in the pabiie interest, an into^iange track for 
 tzmnsfcrria^ passengers and freight, to be built br the Dominion railway 
 eoapanj connect ii^ its line with that of a Prorineial railway cmnpany, 
 conditi<m that the Prorineial company contribute one third of the 
 
 Cnmberland Board of Trade t. Ej^uimalt t Nanaimo Ry. Co.. 13 Can. 
 Rt. Caa, 118. 
 
 GeXKMAL. I^TTEKSWrTCHlXG ObDEB — AGKEI3tE3rr. 
 
 The prorisioos of the General Inter^witching Order do not apply to 
 the ca«e of an agree fnt making special prorision for the cost of inter- 
 switching in a particular locality. [Caa. Pae. Ry. Co. r. Grand Trunk 
 Ry. Co. (London Interswitrhii^ Casei. 13 Can. Ry. Cas. 433. followed.] 
 
 Fergus t. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 42. 
 
 [Distii^inished in Can. Pae. Ry. Co. and Spanish Rivo- etc t. A^oma 
 Eastern Ry. Co.. 22 Can. Ry. Cas. 3S1J] 
 
 Tkamc — lvrEBCHA:\GE — FAcmnES — Pcmjc tstoest — Ecosomt — Cox- 
 
 TEXIESCB- 
 
 Pnblic interest, economy of morc^vnt to shi|^iers and conrenience mitst 
 be established before the Board will grant to <me carrier interchange 
 traffic facilities with another. Xo carrier is ^titled to such facilities as 
 of ri^t. The property and advantages <rf one carrier should not be in- 
 terfered with for the nme benefit of another, but objections by a carrier 
 «■ the ground that the other carrier will thereby obtain a great advantage 
 at its expense will be oTerruled in the interest of the public. 
 
 Can. Xorthnn Ontario Rt. Co. t. Can. Pae. Ry. Co., 20 Can. Rt. Cas. 
 200. 
 
 IXTECCHAX^ TBAfgW — 0D6TB ShUTTSG FOCSTS IXTEBSWTTCHrXC FAC1U- 
 
 TiBS — LrsK HAUi. — Deutext. 
 The carrier who obtains access to industries on the lines of other car- 
 riers shonM t«njtim.t at its own expense tracks to be used for the inter- 
 change of tnffie. Where traffic moTcs between a certain point and a 
 shipping point or destination common to the carriers concerned, or any 
 
492 INTERCHANGE OF TRAFFIC. 
 
 two of them, where intcrswitching facilities are provided, the carrier 
 upon whose line, including private sidings tributary thereto, the traffic 
 is loaded, is entitled to the line haul and the privilege of effecting the 
 rc((uired delivery on the line of the other carrier l)y means of intcrswitching 
 at destination, provided that the said carrier can afford facilities and 
 privileges equal to those of the competing carrier at no greater cliarge. 
 Ke Belleville Interchange Tracks, 23 Can. Ey. Cas. 22. 
 
 InTEB( IIAXGE TRACK — EXPENSE. 
 
 An interchange track between the lines of the C. P. R. Co. and a branch 
 line of the G. T. P. Co. was ordered by the Board to be constructed at 
 Forrest, ten miles from Brandon, at the expense of the G. T. P. Co. in 
 order to give Brandon a connection with the latter railway. 
 
 Brandon Shippers v. Can. Pac. and Grand Trunk Pacific Ry. Cos., 23 Can. 
 Ry. Cas. 28. 
 
 Facility — "Interested or affected" — Apportionment of cost.s. 
 
 Where, upon the application of a municipality, the Board directs the 
 construction of an interchange track, as a necessary facility for the 
 handling of traffic, the applicant municipality will not be ordered to con- 
 tribute any portion of the costs of the work as being "interested or af- 
 fected" within the meaning of s. 59 of the Railway Act. [Re Can. Pac. 
 Ry. Co. and York, 27 O.R. 550, 25 A.R.(Ont.) 65, 1 Can. Ry. Cas. 36, 47; 
 Grand Trunk Ry. Co. v. Kingston ct al., 8 Can. Ex. 349, 4 Can. Ry. Cas. 
 102; Ottawa Elec. Ry. Co. v. Ottawa and Canada Atlantic Ry. Co. (Bank 
 Street Crossing case), 37 Can. S.C.R. 354, 5 Can. Ry. Cas. 131; Toronto v. 
 Grand Trunk Ry. Co., 37 Can. S.C.R. 232, 5 Can. Ry. Cas. 138; Grand 
 Trunk Ry. Co. v. Can. Pac. Ry. Co. and London (London Interswitching 
 case), 6 Can. Ry. Cas. 327; Grand Trunk Ry. Co. v. Cedar Dale, 7 Can. 
 Ry. Cas. 73, at pp. 77, 78; Toronto v. Can. Pac. Ry. Co. [1908] A.C. 54, 
 7 Ry. Cas. 282; Carleton v. Ottawa, 9 Can. Ry. Cas. 154; British 
 Columbia Elec. Ry. Co. v. Vancouver, Victoria & Eastern Ry. & Nav. Co. 
 and Vancouver [1914] A.C. 1067, 18 Can. Ry. Cas. 287; Toronto Ry. Co. 
 V. Can. Pac. Ry. Co. and Toronto (Avenue Road Subway case), 53 Can. 
 S.C.R. 222, 20 Can. Ry. Cas. 280, 30 D.L.R. 86, followed.*] 
 
 Thorold v. Grand Trunk and Niagara, St. Catharines & Toronto Ry. Cos., 
 24 Can. Ry. Cas. 21. 
 
 Interswitching — Carriers compei.led to furnish service — Tracks — 
 Interchange — Equality of service. 
 
 Interswitching, having regard to the public interest, should be treated 
 as a right, and carriers should be compelled at all times, according to their 
 powers, to furnish an interswitching service, as to all their tracks, in- 
 cluding team tracks, equal to the service accorded to their own traffic at all 
 points, where interchange tracks are now installed, or may hereafter be 
 provided. 
 
 Re Interswitching Service, 24 Can. Ry. Cas. 324. 
 
 Interswitching — Terms — Team tracks — Spurs — Private or industrial 
 — Distinction — Tolls — Absorption. 
 Distinction should be made Ix^tween team tracks and private or indus- 
 trial spurs as to terms of interswitcliing, the service to team tracks being 
 subject to the consideration (a) that the first duty to the carrier owning 
 the terminal facilities is to provide for its own traffic, and (b) that tlie 
 carrier owning tiie terminal is entitled to fair remuneration for the use 
 of its property. Interswitching tolls in the case of team tracks should 
 
INTEREST. 493 
 
 be luigher *1««" for private or indu^trul spars, and should be absorbed 
 bj the line carrier, a^ in the cas* of private spur- 
 Re Intersaitehing Service, ^i Can. Ry. ("a>. 324. 
 
 INTEREST. 
 
 A. On Arlntiatiaa Awards. 
 
 B. Generally. 
 
 On bonds, see Bonds and Securities 
 
 A. On AiliiLcatioo Awards. 
 
 CoXlwaCV-lTIOX rUOCEEDlSCS — JrElsJMCTlOX OF AREITEATOBS. 
 
 Interest on the sum avrarded as compensati<» as of the date of the 
 depoi§it of the plan and profile, should not be givoi br arbitrators as a 
 part of their award for land expropriated for railway purposes, and will 
 be struck out as beycmd their juri^ietion; the right to interei^t from that 
 date is conferred under the Railway AdU 1906, and not left to be deter- 
 mined lij the arbitrators. [Re Clarke and Toronto Grey Jt Bruce Ry. Co., 
 
 18 OXJL «28, 9 Can. Ry. Cas. 290, referred to: Re Davies and James Bay 
 Ry. Co., 20 0XJ8. 5S4, 10 Can. Ry. Cas. 225, followed.] 
 
 Re Ketcheson and Can. Northern Ontario Ry. Co., 16 Can. Ry. Caa. 
 SM, 29 OX.R. 339. 13 DX.R. 854. 
 
 [Followed in Re Xatimial Trust Co. and Can. Pae. Rr. Co., IS Can. Ry. 
 Cas. 292. 15 Di-R. 320. 29 OX.R- 462; Green t. Can. Northern Ry. Co, 
 
 19 Can. Ry. Cas. 139, 22 DJL.R. 15.] 
 
 COxoesTX^Tios PKOcxEDiNGs — Whex ixtetest wbscxs to kcx. 
 
 To the amount of an award for land expropriated for railway purposes 
 inta«st attaches not from the date of the award but from a previoas tak- 
 ing possession by the railway company. [Gauthier v. Can. Northern Ry. 
 Co. (Attal, 16 Ckn. Hj. Ca&. 354. 14 DX.R. 490, foUowed.] 
 
 Datgenaia v. Can. Nmlhem Ry. Co.. 16 Can. Ry. Cas. 353. 14 DX.R. 494. 
 
 COXSCSCXJiTIOX FSOCESDINGS — ^WhEX ISTOREST BCfilXS TO BrX. 
 
 Where a railway company takes possession of land bef<»e proceeding to 
 ex pro priate it, on an award of damages being snbeequently made, interest 
 attaches, not fran the date of the award, but frmn the time of taking 
 possession. [Re Clarke and Toronto. Grey and Bmee Ry. Co., IS OX.R. 
 628. 9 Can. Ry. Cas. 290; Rhys v. Dare VaUey Ry. Co.* ILR. 19 Eq. 93, 
 and Re Shaw 'and Birmingham Corp.. UB. 27 Ch. D. 614, 54 Ul. Ch. 51. 
 foUowcd.] 
 
 Gaothier ▼. Can. Northern Ry. Co.. 16 Can. Ry. Cas. 354. 14 D.L.R. 490. 
 
 [FoUowed in Dagenais v. Can. Northern Ry. Ok, 16 Can. By. Cas. 353.] 
 
 SrATX-rOKT KiGHT TO rSTEKSST — PoWIEB OF AKBUKATOHS. 
 
 The right to interest upon the compensation awarded for the eompul'sory 
 taking of lands under the Railway Act. 1906. is a statutory right, and 
 the arbitrators have no power to iiKlude sudi intovst in their award. 
 [Re Ketehestm and Can. Northern Ontario Ry. Co., 16 Can. Ry. Cks. 286, 
 29 O.L.R- 339 at p. 347. 13 D-LJ?. 85*. foUowed.] 
 
 Green v. Can. Northern Ry. Co., 19 Can. Ry. Cks. 139, 171, 22 DX^R. 
 15, 8 Sask. L..R. 53. 
 
494 JUNCTIONS. 
 
 From date of warkant of possession. 
 
 Interest should be allowed to the owner of property, on the amount 
 awarded by the arbitrators, from the date of the warrant of possession. 
 [Clarke v. 'Toronto, Grey & Bruce \\\. Co., 18 O.L.R. 628, followed.] 
 
 Re Grand Trunk Pacific Ry. Co. and :Marsan, .3 Alta. L.R. 65. 
 On purchase money from service ok notice. 
 
 Arbitrators may award interest on purchase monej's from the date of 
 the service of the notice of expropriation. 
 
 Green v. C. X. Ey. Co., 8 S.L.R. 255, 9 W.W.R. 007. 
 
 B. Generally. 
 
 Interest on payments in arrear — Track rentals. 
 
 Under the true construction of the Ontario Judicature Act (R.S.O. 
 1897, c. 51, s. 11.3), it is incximbent upon the court to allow interest for 
 such time and at such rate as it may think right in all cases where a 
 just payment has been properly withhold, and compensation therefor seems 
 fair and equitable. In the present case the company was ordered to pay 
 interest on arrears of track rentals. 
 
 Toronto Ry. Co. v. Toronto [1006] A.C. 117, 5 O.W.R. 130, 132. 
 
 [Affirmed in 19 Can. Ry. Cas. 323, 26 D.L.R. 581.] 
 
 INTEBLOCKINa APPARATUS. 
 
 See Crossing Injuries; Railway Crossings; Employees; Negligence. 
 
 INTEESWITCHING. 
 
 See Tolls and Tariffs; Interchange of Traffic; Branch Lines and Sidings. 
 
 IBRIGATION. 
 
 See Drainage. 
 
 See Tolls and Tariffs. 
 
 JOINT TARIFF. 
 
 JUDGMENT. 
 See Pleading and Practice; Appeals. 
 
 Annotation. 
 
 Assignment of judgment. 6 Can. Ry. Cas. 479. 
 
 JUNCTIONS. 
 
 See Railway Crossings; Interchange of Traffic; Branch Lines and Sidings, 
 
 Junctions — Crossings. 
 
 The "joining" of two different lines of railway for which the leave of the 
 Board is required under the Railway Act. lOOG. s. 227, means joining on the 
 same level so as to enable cars to be transferred from one road to the other 
 The "crossing" of two different linos of railway for which the leave of the 
 Board is required under the Railway Act, means the passing of the track* 
 of one railway on, over, or under, the tracks of another by meeting at any 
 
JURISDICTION. 495 
 
 angle, eontinuing at the same angle to tbe opposite side of the track crossed 
 and immediatelT leaving the track crossed. 
 
 Canadian Xorthem Western Ry. Co. v. Can. Pac Ry. Co. (Alta.), 16 
 Can. Ry. Cas. 105, 13 DXlR- 624.' 
 
 "Joixixg" — "Ckosshcg." 
 
 The "joining" of t\ro dififerent lines of railway for whidi the leave of the 
 Board is required under the Railway Act, 1906, s. 227, means joining on 
 the same level so as to enable cars to be transferred from one road to the 
 otiier. The "crossingr" of two different lines of railway for which the leave 
 of the Board is required under s. 227. means the passing of the tracks of 
 one railway on. over, or under, the tracks of another by meeting at any 
 angle, continuing at the same angle to the opposite side of the track crossed 
 and immediately leaving the track crossed. 
 
 Can. XortheiTJ Western Ry. Co. v. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 
 105, 13 DX.R. 624. 
 
 JURISDICTION. 
 
 Of Railway Board and Railway Committee, see Railway Board. 
 
 Of Recorders Court to collect street railway lines, see Street Railways. 
 
 Annotatioiis. 
 
 Jurisdiction in appeals from awards. 21 Can. Ry. Cas. 332, 381. 
 
 Dominion and Provincial Jurisdiction. 20 Can. Ry. Cas. 12S. 
 
 Jurisdiction of Commissioner under Public Utilities Act of Manitoba. 
 30 DX.R. 159. 
 
 Jurisdiction of Supreme Court of Canada as to Jurisdiction of Commis- 
 sioner under Public Utilities Act of Manitoba. 30 D.LJL 159. 
 
 EXCHEQCER ContT — RaH-WAT COMillTTEE — POWEB TO KAKK 8AUE OKOERS. 
 
 By s. 17 of the Railway Act, 51 Vict. c. -29 (1888), the Exchequer Court 
 is empowered to make an order of the Railway Committee a rule of Court : 
 but where there are proceedings pending in another Court in which the 
 rights of the parties under the order of the Railway Committee may come 
 in question, the fixcheqoer Court, in granting the rule, may suspend its 
 execution until further directions. (2) The Court refused to make the 
 order of the Railway Committee in this case a rule of Court upon a mere 
 ex parte application, and required that all parties interested in the matter 
 should have notice of the same. 
 
 Re Metropolitan Ry. Co. and Can. Pac. Ry. Co., 1 Can. Ry. Gas. 96, 6 
 Can. Ex. 351. 
 
 CotHBT OF Review — Jubisdictios to review verits of cask. 
 
 The Court of Review has absolute and unrestricted power to decide the 
 merits of a cause reserved for its consideration, without r^ard to the ver- 
 dict of the jury. (ArL 496, C.C.P.). 
 
 Ferguson v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 420, 20 Que. S.C. 54. 
 
 [Referred to in Miller t. Grand Trunk Ry. Co.. 21 Que. S.C. 350, 2 
 Can. Ry. Cas. 449, 34 Can. S.C.R. 70.] 
 
 CocxTT Courts — Title to laxd — Pbopertt ix saxd axd gravel ox high- 
 
 WATS. 
 
 (1) A claim of a municipality for damages for the taking by a railway 
 company of quantities of sand and gravel from alleged highways and al- 
 lowances for roads in the municipality not in its actual possession or occu- 
 
406 JUEISDICTION. 
 
 pation, if disputed, raises a question of the title to a corporeal hereditament 
 within the meaning of a. 59 of the Countj' Courts Act, R.S3I., c. 33, and 
 the jurisdiction of the County Court to adjudicate on such claim is ousted 
 when such a question of title is bona fide raised, notwithstanding the pro- 
 visions of ss. 615, 644 of the Municipal Act, R.S.M., c. 100. giving the right 
 of possession of such roads to the municipality and power to pass l)y-laws 
 for preserving or selling timber, trees, stone or gravel on any of such roads. 
 (2) Under the enactment substituted for s. 315 of the County Courts Act 
 by 59 Vict. c. 3, s. 2, an appeal to this Court lies from the decision of a 
 County Court Judge on the question of jurisdiction as well as from all 
 other decisions in actions in which the amount in question is $20 
 or more. (3) Althougli the action in the County Court failed for 
 want of jurisdiction, the plaintitT should be ordered to pay the costs of it 
 under s. 1 of c. 5 of 1 Edw. VII., and also the costs of the appeal. [Fair 
 V. McCrow (1871), 31 U.C.R. 599. and Portman v. Patterson (1861), 21 
 U.C.R. 237, followed.] 
 
 Louise V. Can. Pac. Ry. Co., 3 Can. Ry. Cas. 65, 14 Man. L.R. 1. 
 
 Magistrate's Coubt — Farm crossings. 
 
 In an action for a farm crossing, it is sufTicient if the plaintifT be shewn 
 to be the actual bona fide owner, and in possession as such, of the land 
 crossed by the railway, although his title is not registered; and the fact 
 that the land was purchased and cleared by him, long subsequent to the 
 building of the railwaj', is no bar to his right of action. The district magis- 
 trate's Court has no jurisdiction to order tiie construction of a farm cross- 
 ing even when the cost thereof is alleged to be less than $50 if the crossing 
 would create a servitude and would be interfering with future rights. 
 
 Bolduc V. Can. Pac. Ry. Co., 3 Can. Ry. Cas. 197, 23 Que. S.C. 238. 
 
 Superior Court — Expropriation — Intervention. 
 
 A party claiming to be owner of land expropriated by a railway company 
 can intervene in the course of the proceedings for expropriation, but such 
 intervention will not affect the validity of proceedings taken up to that 
 time. The Superior Court has jurisdiction to decide the case on the inter- 
 vention. 
 
 Montreal & Southern Counties Ry. Co. v. Woodrow, 11 Que. P.R. 230, 10 
 Can. Ry. Cas. 496. 
 
 Public Utilities' Commission — Quebec — ^Submission of Dominion com- 
 pany: — RiOHT TO order trains OF ONE COMPANY TO RUN OVER LINE OF 
 ANOTHER. 
 
 1. Although the Quebec Public Utilities' Commission, has not super- 
 vision over Federal utilities, and can not issue orders against them, such 
 want of jurisdiction is only ratione personae, and can only be invoked by 
 the party who claims that he is not subject to the jurisdiction of the Com- 
 mission. 2. The Commission has the right to order a company to allow 
 another company to run trains over its line, for a remuneration which the 
 Commission has the right to fix. Such power may be inferred from the 
 interpretation of Art. 742, R.S.Q. 1909, in wliich the enumeration of the 
 powers is not specific. 
 
 Canada & Gulf Terminal Ry. Co. v. Fleet, 28 Que. K.B. 112. 
 
 Supreme Court — Ontario Railway and Municipal Board Act — Con- 
 struction. 
 S. 63 of the Ontario Railway and Municipal Board Act, 1906, 6 Edw. 
 VII., c. 31 (transferred with some modification to tlie Ontario Railway 
 
LIMITATION OF ACTION'S. 497 
 
 Aet, R.S.O. 1914, e. 185, & 260], which was intended to get over the dif- 
 ficulty of forcing the railway company to obey an order of the Board does 
 not deprive the supreme Court of jurisdiction to entertain an action for 
 damages for breach of contract. 
 
 Toronto T. Toronto By. Co., 46 DXJK. 435, 24 Can. Ry. Caa. 255, 44 
 OJ*R. 308. 
 
 EXCHEQUXB COCW — CCTmfC OF TOIBEB — CoXSTBCCTIOX Of CmOWJ! KAIL- 
 WAT. 
 
 The Exchequer Court has jurisdiction to entertain a claim for the cut- 
 ting and removing of timber by officers and servants of the Crown while 
 tfigaged in the construction of a Crown railway. 
 
 Makme t. The King, 18 Can. Ex. 1. 
 
 JUBY. 
 Findings of Jury, see Pleading and Practice (F.) ; Sfareet Baflways (K.). 
 
 IiANDS. 
 
 See Expropriation; Title to Lands. 
 
 LAST CHANCE. 
 See Ultimate Xegligence. 
 
 T.F.ASBa 
 See Contracts. 
 
 LEVHL CROSSINGS. 
 See Highway Crossings; Crossing Injuries. 
 
 LICHNSEES. 
 See Carriers of Passengers: Employees. 
 
 Annotation. 
 Liability of carrier for injuries to passenger or licensee. 4 Can. By. Gas. 
 
 aooi 
 
 LIMITATION OF ACTIONS. 
 
 A. Generally. 
 
 B. Street Railway Claims. 
 
 C. Foreclosure Proceedings. 
 
 Notice of Claims, see Claims; Limitation of Liability. 
 Limitation of actions for removal of siding as injury by reason of rail- 
 way operation, see Branch Lines and Sidings. 
 
 Annotations. 
 
 Practice in damage and personal injury cases against railways and limi- 
 tations of actitms. 2 Can. Ry. Cas. 383. 
 
 Limitation of actions for damages bv reason of construction or operation 
 of railway. 13 Can. Ry. Cas. 512. 
 Can. Ry. L. Dig.— 32. 
 
498 LIMITATIO]^ OF ACTIONS. 
 
 A. Generally. 
 Damage OAUSEa) by opb:kation of railway. 
 
 Tlie "damage" referred to in s. 27, of the Railway Act, 1886, and a. 287 
 of the Railway Act, 1888, is '"damage" done by the railway itself, and not 
 by reason of the default or neglect of the company running the railway, or 
 of a company having running powers over it, and therefore the prescription 
 of six months referred to in said sections is not availalih' in an action like 
 the present. 
 
 Mont. L.R. 5 Q.B. 122, affirmed; North Shore Ry. Co. v. McWillie, 17 
 Can. S.C.R. 511. 
 
 COMMENCEaiENT OF PRESCRIPTION CONTINUING DAMAGE. 
 
 The prescription of a right of action for injury to property runs from 
 the time the wrongful act was committed, notwithstanding the injury re- 
 mains as a continuing cause of damage from year to year, when the dam- 
 age results exclusively from that act, and could have been foreseen and 
 claimed for at the time. 
 
 Kerr et al. v. Atlantic & North-West 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; PrMontaine 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.] 
 
 Liability as warehouseman. 
 
 The Railway Act applies to an action charging a railway company with 
 negligence as warehouseman, and an action not commenced within six 
 months, is barred. 
 
 Walters v. Can. Pac. Ry. Co., 1 Terr. L.R. 88. 
 
 [Doubted in Great West Supply Co. v. Grand Trunk Pacific Ry. Co., 19 
 Can. Ry. Cas. 347.] 
 
 Continuous damage — Flooded lands. 
 
 The limitation of one year in s. 306 of the Railway Act, 1906, does not 
 apply to an action of damages for the continuous flooding of land, caused 
 by the defective construction of culverts on a railway within the legisla- 
 tive authority of the Parliament of Canada. 
 
 Leamy v. Can. Pac. Ry. Co., 38 Que. S.C. 149. 
 
 Acts of commission or omission. 
 
 The provisions of The Railway Act, 1888, s. 287 (as to limitations of 
 actions for damages or injury sustained by reason of the railway) apply 
 to actions founded on the commission of acts, not to those founded on the 
 omission of acts, which it was the company's duty to perform. If, in an 
 action against a railway company, an amendment of the statement. of claim 
 is asked for, it should not be allowed if s. 287 applies, and the amendment 
 sets up a new cause of action. [Kelly v. Ottawa Ry. Co., 3 A.R. (Ont. ) 
 616; McWillie v. X.S.R. Co., 17 Can. S.C.R. 511; Zinimer v. G.T.R. Co., 
 19 A.R. (Ont.) 693, considered.] 
 
 Findlay v. Can. Pac. Ry. Co., 2 Can. Ry. Cas. 380, 5 Terr. L.R. 143 
 [Commented on in Can. Northern Ry. Co. v. Robinson, 43 Can. S.C.R. 
 408; referred to in Robinson v. Can. Northern Ry. Co., 19 Man. L.R. 315.] 
 
LIMITATION OF ACTIONS. 499 
 
 IXJCBT TO GKATCTTOUS PASSEXGEB — COMMOX-LAW LIABIUTT Ct.AUf "BT 
 
 KCASOX OF KAIL WAT." 
 
 Where an action for damages for injuries re<*ived on defendants' railway 
 wliile traveling <hi an unconditional free pass was brought more than 
 six months after the happening of the accident, the action is not barred 
 under the limitation clause of the Ontario Railway Act. R.S.O. 1897, c. 
 207. s. 42. incorporated into the defendants' special Act — because it was 
 based on the defendants' breach of their common-law duty, founded on 
 their undertaking to carry the plaintiff safely, and not on injury sustained 
 "by reas(» of the railway" within the meaning of that clause. Semble, that 
 the words "may prove that the same was done in pursuance of and by 
 authority of this Act and the Special Act" in the latter part of R.S.O. 
 1897, c. 207, s. 42 (li, mean no more than "may prove that the damage 
 or injury was sustained by reason of the railway," as in the earlier part of 
 the section. 
 
 Ryckman v. Hamilton, Grimsby k Beamsville Elec. Ry. Co., 4 Can. Ry. 
 Caa.' 457. 10 O.LJl. 419. 
 
 [Adopted in Sayers v. British Cohunbia Elec Ry. Co., 12 B.CJL 109; 
 referred to in British Columbia Elec. Ry. Co. v. CrompttMi, 43 Can. S.C.R. 
 7, 14 B.C.R. 226: Lumsden v. Temiska'ming i North. Ry. Co., 15 OXJL 
 469; North. Counties Ins. Trust v. Can. Pac. Ry. Co., 13 B.CJt. 131; Robin- 
 son V. Can. North. Ry. Co.. 19 Man. L.R. 315; distinguished in Greer v. 
 Can. Pac. Ry. Co.. 19* Can. Ry. Cas. 52, 19 Di.R. 140; followed in Traill 
 V. Niagara, St. Catherines k Toronto Ry. Co., 21 Can. Ry. Cas. 165. 33 
 D.L.R. 47.] 
 
 DAMACfS "SrSTAISED BY REASOX OF BAII.WAY'' — TiMBEB CtTT F<« COXSTBUC- 
 
 Tiox — Trespass. 
 
 The defendants, the T. k N.O. Railway Commission, were incorporated 
 by 2 Edw. \^I. c. 9 (Ont. i which provides, by s. 8, that they shall have in 
 respect of the railway all the powers, rights, remedies, and immimities 
 conferred upon any railway company by the Railway Act of Ontario. The 
 latter Act, R.S.O. 1897. c. 207, s. 42. provides that "all actions for indem- 
 nity for damages or injury sustained by reason of the railway, shall be 
 instituted within six months next after the time of the suppo^Hi damage 
 sustained." The defendants (the Railway Commission and a contractor 
 under them ), before the tiling of the plans of the railway, and in the course 
 of constructing it, entered upon the timl>er limits of the plaintiffs and cut 
 timber for construction purposes. These acts ceased much more than six 
 months before the conunencement of this action, brought to recover dam- 
 ages for the trespass and for the value of the timber: — Held, following 
 McArthur v. Northern k Pacific Junction Ry. Co. (1888-90). 15 O.R. 73;J. 
 17 A.R. (Ont. k 86. that the plaintiffs' claim was for damages sustained 
 by reason of the railway, and was barred by the statute: and it made no 
 difference that the Commission had not filed the plans of their railway or 
 taken the necessary steps to compensate those whose lands or interests 
 they entered upon or affected. [Judgment of Riddell, J., 10 O.W.R. 115. 
 affirmed.] 
 
 Lumsden et al. v. Temiskaming k Northern Ontario Railway Commis- 
 sltm. et al.. 7 Can. Ry. Cas. 156, 15 O.L.R. 469. 
 
 [Followed in Westholme Lumber Co. v. Grand Trunk Pacific Rt. Co.. 25 
 Can. Ry. Cas., 41 D.LJ8. 42.] 
 
 Damages caused bt spabks fbou engine — "Bt reasox of the oossTRrc- 
 
 TIOX AXD OPEBATIOX OF THE R.VILWAY." 
 
 In an action for damages caused by sparks from a railway engine, the 
 
•500 LIMITATION OF ACTIONS. 
 
 railway company claimed the benefit of s. 27 of the Consolidated Railway 
 Act, 1879, which was incorporated into their charter by Parliament. Said 
 .8. 27 provides, in part, that all suits for indemnity for any damage or in- 
 jury sustained by reason of the railway shall be instituted within six 
 months next after the time of such supposed damage sustained: — Held, on 
 appeal, per Hunter, C.J., and Clement, J., that by virtue of s. 20 of the 
 Interpretation Act (Dominion), the Railway Act, 1903, applies to the 
 Canadian Pacific Ry. Per Irving, J.: — ^The general Railway Act of 1879, 
 notwithstanding its repeal by subsequent general legislation governs the 
 Canadian Pacific Ry. 
 
 Northern Counties Investment Trust v. Can. Pac. Ry. Co., 7 Can. Ry, 
 Cas. 164, 13 B.C.R. 130. 
 
 Defective crossing. 
 
 The provisions of the Railway Act, 1903, as to the time in which actions 
 may be brought apply to the Canadian Pacific Ry. Co., and an action for 
 injuries resulting from a defective crossing was properly brought more than 
 six months, but within one year after the date of the injury complained of. 
 
 Bird V. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 314, 1 S.L.R. 26G. 
 
 Spur track facilities — Damagks for rf.fcsal to supply. 
 
 S. 242 of the Railway Act, 1903, limiting the time for bringing "all 
 action or suits for indemnity by reason of the construction or operation of 
 the railway," does not apply to an action for a breach of a statutory duty 
 in neglecting and refusing to supply reasonable and proper facilities. 
 
 Robinson v. Can. Northern Ry. Co., 11 Can. Ry. Cas. 289, 19 Man. L.R. 
 300. 
 
 Denial of traffic facilities — Injury by reason of operation of kail- 
 way. 
 
 Injuries suflFered through the refusal by a railway company to furnish 
 reasonable and proper facilities for receiving, forwarding and delivering 
 freight, as required by the Railway Act, to and from a shipper's warehouse, 
 by means of a private spur track connecting with the railway, do not fall 
 within the classes of injuries described as resulting from the construction 
 or operation of the railway, in s. 242 of the Railway Act, 1903, c. 58, and, 
 consetjuently, an action to recover damages therefor is not barred by the 
 limitation prescribed by that section for the commencement of actions and 
 suits for indemnity. [Judgment appealed from, 19 Man. L.R. 300, 11 Can. 
 Ry. Cas. 289, affirmed, Girouard and Davies, JJ., dissenting.] 
 
 Can. Northern Ry. Co. v. Robinson, 11 Can. Ry. Cas. 304, 43 Can. S.C.R. 
 387. 
 
 [Affirmed in 13 Can. Ry. Cas. 412, [1911] A.C. 739.] 
 
 Operation of railway — ^Refusal of facilities by means of siding. 
 
 The special provisions of the Railvvaj- Act, 1903, as to one year's limi- 
 tation (see 8. 242, substantially re-enacted by s. 3()(> of the Railway Act, 
 1906), relate to damages sustained by the construction or operation of the 
 railway, and do not apply to the refusal of facilities by means of a siding 
 outside the railway as constructed, which is not an act done in the opera- 
 tion of the railway. [Can. Northern Ry. Co. v. Robinson, 43 Can. S.C.R, 
 387, 11 Can. Ry. Cas. 304, affirmed.] 
 
 Can. Northern Ry. Co. v. Robinson, 13 Can. Ry. Cas. 412, [1911] A.C. 
 739. 
 
UMITATIOlf OF ACTIONS. 501* 
 
 THAwrxa STXAXHE — Coxsnnrcnas or kailwat. 
 
 Injoiies garfaifii Vf an cmpIoTcw of a. railvaj o^ipuiT Irr tibe e3Eplo- 
 skm. of djaaaute vlule tkaviag it for use ia blastiag out hard pan in a 
 gravel pit are Boi daau^es 'sostaiBcd by reasoa of tlK constnictioa or 
 mwratiii of the railvaj.^ and. therefore, the oi^k^ee is sot barred hj s. 
 306 «rf Om BaOway Act, 1906, from bri^ii^ his addon after the lapae <tf 
 ow jear. 
 
 Anderson ▼. Can. >(orth. Rf . Co^ 13 Can. Ry. Cas. 331. SI Han. IJL 121. 
 
 [ Affiia na l in 45 Can. S.CJL 355, 13 Can. Rj. Ck& 339.] 
 
 Ixjnass TO taaroTEE — Pbocxvcxg matebials — CoxsmrcnoTr or kah.- 
 
 WAT. 
 
 The liautaiaon «rf one year, in respect at aeti<H» to recoTer eonpensa- 
 tion for injories sustained ^hy reason of the eonstTurtioB or operatkNi" 
 of railv»rs, provided by s. 306 of the RaihrsT Act. 1906. relates only to 
 injories sustained in the actual coBatraction or operation of a railway; 
 it does not apply to ca^es vbere injuries have been sustained by employees 
 engaged in vi»i» undertaken by a railway company for promrii^ or pre- 
 paring materials which may be necessary for the coastmction of their 
 railway. [Can. Xorthem Ry. Col v. Robinson. [1911] A.C. 739, applied: 
 jindgMrt appealed from, 21 Man. L.R 121. 13 Can. Ry. Cas. 321, afErmed.] 
 
 Can. Korthem Ry. Co. v. Anderson, 13 Can. Ry. Cm&. 339, 45 Can. &C JL 
 355l 
 
 IXJCKT IBUlCltm VHnX WOSKTSC AT ICEHOrSE FOB KAII.VAT COUPAXT. 
 
 An injury caused by the defective state of the scaffold bein^ used in 
 the eoBSfametion of an icehouse for the use of a railway company is not 
 one ''anstained by reason of the eonstruction or operation of the railway,'^ 
 nithin the meaning of s. 306 of the Railway Act, 1906, and tiherrfove an 
 action to recover damages for such injury is not barred by that section by 
 the lapse of a year. The limitaidnn of tiaw ]»escTibed by s. 306 rdates 
 only to actions against railway coipanies provided for in the Railway 
 Act itself, and was not intended to reply to actions, the ri^ts of whidi 
 exist at eannMm law or under Provincial legislation. Per Cameron, JJL: 
 — ^Althon^ the definition of the word "railway^ in paragraph (21) of s. 2 
 of the Railway Act would seem to include icehouse in qu^ion, yet that 
 is subject to the qualifying provision "unless the context otherwise re- 
 ^pmes,* at the beginning of s. 2. and the context in %. 306 does otherwise 
 require. [Ryckman v. Hamilton. Grimsby k Bcamsville Ry. Co. (1905), 
 10 OJLR. 419, and CXJL v. Robinson, 43 Can. S.CJL 3S7. followed.] 
 
 Sutherland v. Can. Xorthem Rv. Co^ 13 Cuu Ry. Gas. 495, 21 Man. 
 UK. 27. 
 
 COXnXCOCS DAMAGE BT BAIL WAT. 
 
 Where an injury or damage caused by the eonstmction or toleration of 
 a railway is continuoas. the limitation of f^oe year for bringing an action 
 tihoefor, as prescribed by ?. 306 of the Railway Act. 1906. does not apply. 
 
 Oarr t. Gkl Plae. Ry.Co. (X. B.), 14 Can. Ry. Cas. 40, 5 DX-R. 208." 
 
 TBBsrass to i.axo — ^Rah-wat i_&Tn(G sidetkack. 
 
 An actaon against a railway company for a trespass committed by lay- 
 i^ sidetradka *m tte plaintifTs land, is not an action for injuries sns- 
 tained by reason of the eonstmction or operation of a railway, which 
 must, uader s. 306 ei the Railway Act. 1906. be bron^t within one year 
 after tke cause of action arose. 
 
 Carr t. Can. Pac Ry. Co, 14 Can. By. Cas. 40, 5 D.LlR. 208. 
 
502 LIMITATION OF ACTI0:N^S. 
 
 Injury to lands by diverting surface water. 
 
 The flooding of an adjoining owner's land by a railway company by in- 
 terference with the natural flow of surface water may result in such con- 
 tinuing damage as to extend the time for bringing an action for damages 
 sustained by reason of the construction or operation of the railway. 
 
 Niles V. Grand Trunk Ry, Co., 15 Can. Ry. Cas. 73, 9 D.L.R. 379. 
 
 Damage by fire — Contractor. 
 
 An action to recover damages caused by negligence on the part of the 
 defendants in not providing modern and efficient apparatus for preventing 
 the escape of sparks from a locomotive used during the construction ol 
 a railway, must be brouf,'ht under the provisions of s. 30G of the Railway 
 Act, 190G, within one year from the date when such damage was caused. 
 
 West V. Corbett, 15 Can. Ry. Cas. 195, 41 N.TJ.R. 420. 
 
 [Affirmed in 15 Can, Ry. Cas. 202, 117 Can. S.C.R. 59G, 12 D.L.R. 182; 
 referred to in Greer v. Can, Pac. Ry, Co,, 19 Can. Ry. Cas. 47,] 
 
 Breach of contract to ix)cate statio.v. 
 
 An action for the breach of an agreement to locate a railway station on 
 the plaintifTs land in consideration of a right-of-way over it is not with- 
 in the limitation of one year prescribed by s. 30G of the Railway Act, 1906, 
 for actions for damages or injury sustained by reason of the construction 
 or operation of a railway. [Beard v. Credit Valley Ry. Co., 9 O.R. 616, 
 followed.] 
 
 Gauthier v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 354, 14 D.L.R. 490, 
 
 Actions against minicipalitie.s — Negligence — St-^titory period. 
 
 S. 2 of the Municipal Act, R.S.O., 1914, c. 192, which bars any action 
 for negligence against a municipality if not brought within three months 
 from the time when the damages were sustained, will also apply to a case 
 where the municipality is added as a party defendant after the expiration 
 of the statutory period, although the action was instituted within the 
 time. 
 
 Burrows v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 183, 23 D.L.R. 173. 
 
 Negligence — Right of action — General statutory provisions — Lorh 
 Campbell's Act — Carriers. 
 By 8. 60 of the Consolidated Railway Company's Act (B.C.), 59 Vict. c. 
 55, actions to fix damages for injury sustained by reason of a tramway or 
 railway or the works or operations of the company, are subject to a lim- 
 itation for six months. The limitation thus provided for the protection 
 of a private corporation has not the effect of altering the general limita- 
 tion of twelve months provided by s. 5 of the Families Compensation Act, 
 R.S.B.C. 1911, c. 82. [Green v British Columbia Elec. Ry. Co., 12 B.C.R. 
 199; Can. Northern Ry. Co. v. Robinson, 43 Can. S.C.R. 387, 11 Can. Ry. 
 Cas. 304; Zimmer v, G. T. Ry. Co., 19 A.R. (Ont.) 693; Markey v. Tol- 
 worth, etc., Hospital District (1900), 2 K.B. 454; Williams v. Mersey 
 Docks, etc., (1905), 1 K.B. 804, referred to.] Per Duff. J.:— S. 60 of the 
 Consolidated Railway Company's Act (B.C.), 59 Vict. c. 55, has no appli- 
 cation to an action brought against the company for breach of duty as 
 a carrier: [Sayers v. British Columbia Elec. Ry. Co.. 12 B.C. 102, referred 
 to; Trawford v. British Columbia Klcc. Ry. Co.. 18 B.C. 132, 15 Can. Ry. 
 Cas. 39, affirmed; British Columbia Elec. Ry. Co. v. Turner, sub. nom. ; 
 Trawford v. British Columbia Elec. Ry. Co., 18 B.C. 132, 15 Can. Ry. Cas. 
 39, affirmed,] 
 
LIMITATIOX OF ACTIONS. 503 
 
 British Cohnnbia Eke. Rj. Co. t. Tuner, 18 Cam. Bj. Cas. It^ 49 Gul. 
 S.CJEL 470, 18 DiJL 430. 
 
 [FoUowd ia Traill t. Niagara, St. CatkariBes 4 Tonato Ry. Co.. 31 
 Ca«. Rjr. Cae. 165, 33 DJJR. 47.] 
 
 SwoJoauM — 'RuMxisQ necATm ties. 
 
 Ike ii«M ( g am. tke r^t-of-aav oi won ovt aad derajed ties rcaowd 
 la tlie ovdiaarr eearee of tlie aiaintaiaBce of tlie railwar Is vithiii tlie 
 ter^ ^coaatnKtioB or operation of tlie railaraj''' ao as to bar ao aetioB ia 
 Oatario agaiast t^ raihny f«- iajiiry siwrfaiaed br the spreading: of the 
 fire to aJjoJaiag {Hnqpeity valesB brought withia one year nader the Bail- 
 way Act, 1906, & 306l [MeArthnr t. Xorthera t PaeUie Junction Ry. Co.. 
 
 15 O.B. 733; Ryckmaa r. HaaihoB, Grimsby k Beaatsrille Ry. Co., 10 
 OJLJL 419, 4 Can. Ry. Cas. 457: Can. Northern v. Rohinisvm. [1911] JLC 
 739, 13 Can. By. Ca& 412: and West t. Corbett. 12 DJLR. 18S, 47 Gaa. 
 S-C.B. 596, 15 Can. By. Cas. 202, referred to.] 
 
 Greer t. Caa. Pat Bj. Coi, 19 Caa. ^. Cas. 47, 31 OJ..R- 419. 19 
 DJ^B. 135. 
 
 [ikfirmed by Sopreme Court of Oatario. 19 Caa. By. Ca$. 52, 32 OJ..B. 
 140, 19 DX.B. 140: affirmed br Supreme Court of Caaada, 19 Can. Bv. 
 GUL 58, 51 Can. S.C.B. 333, 23 Di^ 337.) 
 
 LooTAnox or actions — Coxsrsrcnoif aih» opexatiotc — Occupatiox. 
 
 jLa action for damages suffered by the landowner which could not be ia- 
 ehided ia the award on exprc^riation oi the land under the Railway Act. 
 1906. ex. gr., for a wroDgfnl occupation by the railway prior to t'l^'Mg 
 expropriatioB proceedings, is not within the limitation of one year pre- 
 scribed by s. 306 of the Act. as such injury arises merely out of the occu- 
 pation by the railway c<mpany and not out of the "construction or opera- 
 tion" of the railway. [Gauthier t. Can. North«Ti By. Co., 14 Di.B- 490. 
 
 16 Caa. By. Cas. 35. affirmed.] 
 
 Gauthier t. Caa. XorthCTn By. Co. and Dagenais \. Can. Xorthoa Ry. 
 Co., 19 Can. Ry. Cas. 144, 17 DX.R. 193. 
 
 Flooi»xg or LAxns — Defectite ccxvEar — Costixtatiox of damagk. 
 
 TW negligent construction of a culvert obstructing the flow of a natural 
 vatcrconrse and causing the flooding of lands is a continuatioa of daauge. 
 and the limitations under s. 267 of the Railway Act of British Colamhia, 
 1911, c. 44, will not begin to run until after one year after the doing or 
 committing of such daamge ceases^ [McGilliTrav v. Great Western Rv. 
 Co.. 25 U.C-R- 69, followed.] 
 
 MeCriaunoa t. British Columbia Elec 1^. Co.. 19 Can. By. Caa. 329. 24 
 DX.B. 368. 
 
 'Smbucest wakehocsixg — ^Dama^ vbok "coxsTCucnox Axn OPEKA-nOX." 
 An action for breach of a railway cr^npany's contract of warehousing 
 entered into by it after the arriral of the consignment at destination is 
 not within the limitation of s. 306 of the Bailway Act. 1906. which deals 
 with actions for damages caused by reasmi of the "construction or opera- 
 tion" of the railway. [Lilly v. Doubleday, 7 Q.B.D. 510, followed; Wal- 
 ters T. Can. Plae. B^. Co., 1 Tm. LJt. Sg, doubted.] 
 
 Great West Suj^hr Co. t. Grand Trunk Pacific Bt. Ool, 19 Gu. By. 
 Caa. 347, 23 DX.B. 780. 
 
 XbCUGEXCE — BCKXIXG W<mx-<>CT TIES ox WCHT-Or-WAI. 
 
 The injury done to adjoining property by the railway coMpany settiag 
 
504 LIMITATION OF ACTIONS. 
 
 out fire on its right-of-way for the purpose of destroying worn-out ties, 
 and by its omission to prevent the spread of the tire, is an injury caused 
 by the "operation of the railway" within the time limitation for bring- 
 ing action therefor imposed by the Railway Act, 1000. [Greer v. C.P.R., 
 19 D.L.R. 135, 31 O.L.R. 419, affirmed; McCallum v. G.T.R., 31 U.C.R. 527, 
 followed; Ryckman v. Hamilton, G. & B. R. Co., 10 O.L.R. 419, 4 Can. Ry. 
 Cas. 457; Can. Northern Ry. Co. v. Robinson, [1911] A.C. 739, 13 Can. 
 Ry. Cas. 412; Grant v. C.P.R., 36 N.B.R. 528, distinguished.] 
 
 Greer v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 52, 32 O.L.R. 140, 19 
 D.L.R. 140. 
 
 [Followed in Can. Northern Ry. Co. v. Pszenicnzy, 20 Can. Ry. Cas. 
 417.] 
 
 IN.JUBY FKOM CONSTKUCTION OB OPEBATION OF BAILWAY — LOADING BAILS. 
 
 The statutory limitation as to time for bringing an action for damages 
 for injuries sustained by reason of "the construction or operation of the 
 railway" (Railway Act, 1906, c. 37, s. 306), extends to a case of injury 
 sustained by a labourer, who was employed in a gang loading old rails 
 on flat cars by means of a crane and steel chain which broke, such work 
 being performed in the actual "construction or operation of the railway." 
 
 Danyleski v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 410, 21 Man. L.R. 364, 
 32 D.L.R 95. 
 
 InJUBY from CONSTBUCTION OB OPERATION OF BAILWAY — ^LOADING RAILS. 
 
 Injuries sustained while unloading rails from a box car to a flat car for 
 easier distribution in replacing the old track, are sustained "by reason of 
 the construction or operation" of the railway, within the meaning of the 
 Railway Act, 1906, and an action for damages must be commenced within 
 one year as provided by s. 306, of the Act. [Greer v. Can. Pac. Ry. Co., 19 
 Can. Ry. Cas. 58, 23 D.L.R. 337, 51 Can. S.C.R. 338, followed.] 
 
 Can. Northern Ry. Co. v. Pszenicnzy, 20 Can. Ry. Cas. 417, 54 Can. 
 S.C.R. 36, 32 D.L.R. 133. 
 
 StEEET BAILWAY CBOSSING DIAMOND DERAILMENT OF TRAIN — CON.STRUC- 
 
 TION OR OPERATION OF BAILWAY. 
 
 Grand Trunk Ry. Co. v. Sarnia Street Ry. Co., 21 Can. Ry, Cas. 160, 
 37 O.L.R. 477. 
 
 iNJUBY — CONSTBUCTION OB OPEBATION — NEGLIGENCE — CaBRIAGE. 
 
 The time limit imposed by s. 306, of the Railway Act, 1906, respecting 
 actions for injuries caused by reason of the "construction or operation of 
 the railway" does not apply to actions arising for injuries to passengers 
 out of negligence in their carriage. [Ryckman v. Hamilton, Grimsby & 
 Beamsville Elec. Ry. Co., 10 O.L.R. 419, 4 Can. Ry. Cas. 457; Sayers v. 
 B.C.E.R. Co., 12 B.C.R. 102; B.C.E.R. Co. v. Turner, 18 D.L.R. 430, 49 
 Can. S.C.R. 470, 18 Can. Ry. Cas. 193, followed.] 
 
 Traill v. Niagara, St. Catharines & Toronto Ry. Co., 21 Can. Ry. Cas. 
 166, 38 O.L.R. 1, 33 D.L.R. 47. 
 
 Construction of railway — Obstruction of accf.ss to sea — Navigable 
 
 WATERS. 
 
 The obstruction of a right of access to the sea by reason of the con- 
 struction of a railway is within the meaning of s. 306 of the Railway Act, 
 1906, and an action for damages occasioned thereby must be brought with- 
 in one year of the placing of the obstruction. [McArthur v. Northern 
 Pacific Junction Ry. Co., 17 A.R. (Ont.) 86; Lumsden v. Temiskaraing & 
 
UMITATIOX OF ACTIOXS. 505 
 
 Xortlwni Oatario Br. C<k, 15 OJ-R. 499, 7 Can. Kr. Cas. 151^ fidknred. 
 Chaadiere ^«Ai-» 4 Fouadnr Co. t. Caaada Atlaatic Rjr. Col, 2 Cm. Sy. 
 Gm. aofi. 33 CaiL &.CJL 11, diiiliafiihiil ] 
 
 Westkriaw Lather Go. ▼. Gnmi Tkvak Padfie By. Co, 23 Ouu Ry . 
 Ck&, 23 B.C.B. 343, 41 DXlS. 42. 
 
 Bb Stzeet Baflway ClaiML 
 CL.4iifS — SnsEr kail vats. 
 
 Ike atatatanr exaaptiaa as to liBitatioa «rf artiaas provided bf s. W 
 of tke CoBsolidated Baihnijr CoapaiT's Act, 1896 (B.C.), doca Mt caare 
 ta the beaefit of flw Britiyi Cohnriiia Ekctric Rj. Col's opoatioas as car- 
 ried oa ia the city of Victoria. The doctrine that ^vate lfgiiil>tioa amst 
 he strietfy cMtstnicd against tlw cnaipaay or corpocatiaa obtaiuag Ae 
 —air, a^ilied. 
 
 (VoBiptoB T. British Cohnalna E3ce. Br. Co., 10 Cuu By. Ota. 236, 14 
 BuCB. ±24. 
 
 [Bercned ia 43 Caa. &C.B. 1, 10 Caa. Br. Cas. 266l] 
 
 Sonar kailvat cuums — ^PanTrr. 
 
 The appellaat campaaT, harii^ ac^juircd tW propertr, ri^ta^ eoatiacta. 
 ^rikses aad fna^ises of tbe Coasolidatcd Bailvar k Ligjit Col, nada 
 the proriaaas of the Coa^olidated BaOmay Can{Hin-'s ^ct, 1896 (B.C|. 
 is entitled to the hea^t of tbe Ihaitatioa of aetioas prarided by a. 60 of 
 that statate. Idiagtoe, J., disscatiag. Tbe liBitatiaa ao p nyrided applies 
 to the case of a miaor iajored, vhile residia^ ia his Bother's boase, by 
 coatact with aa electric aire ia use there nader a coatzact betaiiea the 
 coapaay aad his wither. Jad^^aeat appealed fnw, 14 B.CJL 233, 10 
 Cka. By. Cas. 256, reiersed, DaTi» aad Idb^toa, JJ., dtsseatia^. 
 
 Britidi Colombia Eke ^. Co. t. Cnmptoa, 10 Caa. By. Cas. 266. 43 
 Can. S.CJR. L 
 
 STatET kaH-vat aochmcxts — Coixisiox. 
 
 Tbe limitatioa period for co aawa i i^ aa actioa far d^Miys for per- 
 soaal iajaiT against tbe ovnei^ of a aMifeor Tcbide by eoiBsioa with tb» 
 aaitor Tebide is six years from the time whea tbe came of aetiaa amae. 
 aader 10 Edw. Til. (Oat.^ c. 34. &. 49 CfTD «£ an actioa nupoa the case.' 
 [Petaboroi^ t. Edvaxds (1880H, 31 CLP. 231; TboMna t. Lord Clan- 
 ■orris, [1900] 1 Cb. HS, referred to.] 
 
 \faitland t. HacKeazie and Toronto Br. Gol, 6 HT.B 336, 4 O.W.X. 
 109. 
 
 [JLSnaed ia 13 DXJL 129.] 
 
 MrmciPAi. STBEST kailvat — Xbgucevt co:cstccctiox a^v ortMMnos:. 
 
 Tbe SmitatioBs of time fm- brii^ing aetioas against a mnaicipality for 
 iia aegligia t eaastmction vr operatica of a street raihray, are gOTeracd 
 hy tbe Oatario BaUvay Act, ILS.O. 1914. c 1S3, s. 265: and tl^ Municipal 
 Act, RS.O. 1914, c. 192, tbe Pnblie Utilities Act- BjS-O. 1914, e. 204. and 
 the Public Anthorities ProtectJoa Act. R.S.O. 1914, c 89, hare no applica- 
 taoa ia this respect. 
 
 Kaariiifn t. Pnt Arthnr. 20 Caa. By. Ca& 333. 37 OX.B. 146, 31 DX.B. 
 C70. 
 
 03CTASIO KAII.VAT ACT — ^^TOK DAMAGE OK HCnrKT STSTAIXES BT KEASOX OF 
 A KaTLWAT." 
 
 The proriskas at the Oatario Baihray Act, 1906. 6 Edr. TH. e. 30. & 
 223, whe r e b y artinaa for damage or injory sustained by reason of a rail- 
 
506 LIMITATIOIS^ OF ACTIONS. 
 
 way under that Act, must be brought within one year, are in effect incor- 
 jjorated with the special Act 36 Vict. (Ont.), c. 99 (under which the 
 Ix)ndon Street Ry. Co. was incorporated) and the limitation of one year 
 substituted for that of six months under the Railway Act, C.S.C, c. 66, s. 
 83, which by the special Act were declared to be incorporated therewith. 
 [Re Wood's Estate, 31 Ch. D. 607; Clarke v. Bradlaugh, 8 Q.B.D. 63, and 
 Metropolitan v. Sharpe, 5 A.C. 425, referred to.] 
 Kilgour V. London Street Ry. Co., 19 D.L.R. 827. 
 
 Differing pf.riods of limitation — General limitation under provincial 
 
 RAILWAY act — LONGER PERIOD UNDER LORD CaMPBELL's AcT (B.C.) — 
 
 Action against railway for causing death. 
 [Green v. B.C. Elec. Ry. Co., 12 B.C.R. 199, followed.] 
 Gentile v. British Columbia Elec. R. Co., 15 D.L.R. 384. 
 
 C. Foreclosure Proceedings. 
 Interest coupons — Real Property Limitation Act. 
 
 The restrictions placed upon the right to recover arrears of interest 
 charged upon land imposed by s.s. 17, 24 of tlie Real Property Limitation 
 Act, R.S.O. 1897, c. 133, are not applicable to the case of coupons for the 
 payment of interest on railway mortgage bonds, which are secured by 
 mortgage deeds of trusts. The coupons are, in effect, documents under 
 seal — the bond under seal containing a covenant for payment of the cou- 
 pons — and they, therefore, partake of the nature of a specialty, and are 
 good for at least twenty years. 
 
 Toronto General Trusts Corp. v. Central Ontario Ry. Co., 3 Can. Ry. 
 Cas. 339, 6 O.L.R. 534. 
 
 [Affirmed in 8 O.L.R. 604, 4 Can. Ry. Cas. 70.] 
 
 TjImitation of actions. 
 
 Bonds under seal issued by a railway company contained a covenant to 
 pay half yearly instalments of interest evidenced by attached coupons, 
 and payment of principal and interest was secured by a mortgage of the 
 luidertaking, which also contained a covenant to pay: — Held, in foreclos- 
 ure proceedings upon this mortgage, that the interest being a specialty 
 debt and the mortgaged undertaking consisting in part of realty and in 
 part of personalty not subject to division, the holders of coupons, whether 
 attached to the bonds or detached therefrom, were entitled to rank for all 
 instalments which liad fallen due within twenty years, and not merely 
 for those which had fallen due within six years. .Judgment of Boyd, C, 
 6 O.L.R. 534, 3 Can. Ry. Cas. 339, affirmed:— Held, also, that even if 
 the case were dealt with upon the footing of the mortgage being one of 
 realty only, there was the right to rank, for there were no subsequent en- 
 cumbrancers, and there had been shortly before the claims were filed a 
 valid acknowledgment by the company of liability for all the interest in 
 question. 
 
 Toronto General Trusts Corporation v. Central Ontario Ry. Co., 4 Can. 
 Ry. Cas. 70, 8 O.L.R. 604. 
 
 Annotations. 
 
 Connecting lines as affected by conditions in bill of lading limiting 
 liability. 2 Can. Ry. Cas. 117. 
 
 Government regulation of railway companies respecting agreements ex- 
 empting liability for negligence. 5 Can. Ry. Cas. 15. 
 
LIMITATIOX OF LIABILITY. 507 
 
 LiabilitT of carriers for the loss of goods notwithstuiding special eon- 
 trart limiting liability. 5 Can. Ry. Cas. 399. 
 
 Liraitati<» of liability by eiqiress eoBpanies for losses of or damage to 
 goods. 6 Cin- By. Cas! 318. 
 
 Limitation of iiatnlity to person in charge of live stod^ 19 Can. By 
 Ca& 44. 
 
 LmiTATION OF T.TAKn.TTY. 
 
 A. Irfws or Damage to Goods. 
 
 B. Idve Stock; Persons in Charge. 
 
 C. Loss of Baggage. 
 
 D. Express Companies. 
 
 Exoneration from liability of master to ^errant, see Ejnployces. 
 
 Limitation of liability to employee traveling on free pass, see Em- 
 j^yees. 
 
 CMudtitationality of statute re^latii^ agreements limiting for negli- 
 genee, see Constitational Law. 
 
 A. Iioss at Itemage to Goods. 
 
 CaRKIAGB or FBTSOLEfM LlABUXTT COSDmOXS "AT OWXEK'S KISK." 
 
 The respondents sued the appellants' railway company for breach of 
 contract to carry petroleum in covered cars from L. to H.. alleging that 
 they negligently carried the same upon open platform cars, whereby the 
 barrels in which the oil was were exposed to the sun and weather and 
 were destroyed. At the trial a verbal contract between plaintiffs and 
 defendants' agent at L. was proved, that the defmdants would carry the 
 oil in covered cars with despatch. The oil was forwarded in open cars and 
 delayed in different places, and. in consequence, a lar^ quantity was 
 lost. On the shipment of the oil a receipt note was given which said 
 nothing about covered cars, and which stated that the goods were sub- 
 ject to conditions endorsed thereon, one of which was ~that the defend- 
 ants would not be liable for leakage or delays, and that the oil was 
 carried at the owner's risf: — Held, per Bitch ie. CJ.. and Foumier and 
 Hairy, JJ., that the loss did not result from any risks by the contract 
 napoeed on the owners, but that it arose from the wrongful act of the 
 defendants in placing the oil on open cars, which act was inconsistent 
 with the contract they had entered into, and in contravention as well of 
 Uie undertaking as of their duty as carriers. Per Strong. Foumier. 
 Henry and Gwynne, JJ.: — ^The evidence was admissible to prove a verbal 
 contract to carry in covered cars, which com met the agent at L. was 
 authorized to enter into, and which must be incorporated with the writ- 
 ing. 90 as to make the whole contract one for carriage in covered ears, 
 and that noncompliance with the provision as to carriage in covered cars 
 prevented the appellants setting up the condition that "oil was carried 
 at the owner's rislr~ as exempting them from liability. Judgment in 27 
 U.C.C.P. 52S, 28 U.C.CJ». 586. and 4 A.R. (Oni. » 601.' affirmed. 
 
 Grand Trunk By. Co. t. Fitzgerald, 5 Can. S.C.R 204. 
 
 [See Bicknell t. Grand Trunk By. Co., 26 AIL (Ont.i 431; commented 
 on in Grand Trunk By. Co. v. McMillan. 16 Can. S.C.R. 557: discussed 
 in Mayer r. Grand Trunk Ry. Co.. 31 l.C.CJ*. 248; McXeeley v. McWil- 
 liaau, 9 OJL 728; referred to in Dixon v. Bichelieu Navigation Co.. 15 
 A.B. (Chit-» 647; Ellis v. AbeU, 10 A.B. (Ont.i 226; relied on in Dyment 
 V. Northern 4 X.W. By. Co.. 11 O.IL 343: Grand Trunk Rv. Co. v. Vogel. 
 11 Can. S.C.R. 626; McMillan v. Grand Trunk By. Co., 15 A.B. (Ont.> 
 
508 lihitatio:n^ of liability. 
 
 14; McXeely v. McWillianis, 13 A.R. (Ont.) 324; Robertson v. Grand 
 Trunk Ry. Co., 24 O.R. 75, 21 A.R. (Ont.) 204; Stafford v. Bell, 31 U.C.C.P. 
 77; St. Mary's Creamery v. Grand Trunk Ry. Co., 5 O.L.R. 742.] 
 
 CONTBACT BY ONE FOE SEVERAL — CUSTODY OF GOODS DELIVERY — NEGLI- 
 GENCE. 
 
 The M.D.T. Co., through one B., contracted with H. to carr^' a quantity 
 of butter from London, Ontario, to England, and tlie bills of lading were 
 signed by B., describing himself as agent severally, but not jointly, for 
 the G.W.' Ry. Co., the M.D.T. Co. and the G.W.S.S. Co. named as carriers 
 therein. The G.W. Ry. Co. were to carry the goods from London to the 
 Suspension Bridge, the M.D.T. Co. from the Suspension Bridge to New 
 York, and it was then to be delivered to the S.S. Co. for carriage to 
 England. It was provided by one clause in the bill of lading that if 
 damage was caused to the goods during transit the sole liability was to 
 be on the company having the custody thereof at the time of such damage 
 occurring. The butter was carried to New York, where it was taken 
 from the car and placed in lighters owned by the M.D.T.. company to be 
 conveyed to the steamer "Dorset" belonging to the S.S. Co. On arriving 
 at the pier where the steamer lay, the lighter could not get near enough 
 to unload, and the stevedore in charge of the steamer had it towed across 
 the river with instructions for it to remain until sent for. The "Dorset" 
 sailed without the butter, which was sent by another steamer of the S.S. 
 Co. some live days later. The butter was damaged hj heat while in the 
 lighter: — Held, affirming the judgment of the Court below, that the 
 M.D.T. Co., having made a through contract for the carriage of the goods, 
 they were liable to H. for the damage, and even under the bill of lading 
 were not relieved from liability, as the butter was never delivered to, and 
 received by, the S.S. Co., but was in the custody of the M.D.T, Co. when 
 the damage occurred. 12 A.R. (Ont.) 201, 4 O.R. 723, affirmed. 
 
 Merchants' Despatch Transportation Co. v. Hately, 14 Can. S.C.R. 572. 
 Shipment of goods to a point beyond defendants' line — Negligence — 
 Construction of conditions of contract. 
 
 Action for damages for the loss of goods carried by the defendants from 
 Toronto to McGregor station, on the C.P.R. in Manitoba, and for delay 
 in transport. The defendants' road extended as far as Fort Gratiot, Mich., 
 and the goods were carried the rest of the waj' by other companies, and 
 were damaged by the negligence of one or more of such companies. The 
 defendants set up the 10th condition indorsed on the receipt given to the 
 plaintiff for the amount paid for carriage, which was as follows: "Goods 
 addressed to consignees at points beyond the places at which the com- 
 pany has stations, . . . will be forwarded to their destination by pub- 
 lic carrier or otherwise." Held, that the contract of the defendants was 
 to carry the goods to McGregor station; and the 10th condition applied 
 only to the forwarding of the goods from the place to which the defend- 
 ants had contracted to carry them, whether that was a place on the line 
 of the defendants' or a connecting railway, and had not the effect of 
 limiting the liability of the defendants to matters occurring on their own 
 line only. [Collins v. Bristol & Exeter R. Co., 7 H.L. Cas. 194, followed.] 
 Held, also, tliat s. 104 of the Railway Act, 1886. which precludes a rail- 
 way company from relieving itself from liability by any notice, condition, 
 or declaration, if the damage arises from any negligence, omission, or mis- 
 conduct of the company or its servants, do not apph' to a contract to 
 carry goods over other lines, even though such are within the territorial 
 jurisdiction of the Parliament of Canada. [Judgment of Q.B.D. (12 O.R. 
 i03) affirmed, but on different grounds.] 
 
 McMillan v. G.T.R. Co., 15 A.R. (Ont.) 14. 
 
UMITATIOX OF LIABILITY. 509 
 
 C&KKIAGE BET03a> TESMIXTS OF IXSHE — STATCTOIT UASHXTT — JOTXT TOKT- 
 rXXSOBS — RBTyASar 
 
 Where a imihraj compaBT imdcrtakcs to carry goods to a poiot beyond 
 the tenaiaas of ita on line its eoatraci is f(»- carriafe of the goods over 
 the vhole traant, aad the other coaipanies over whose lines they most 
 pass are aMTcly agents of the contni<^in«: company for such carriage, and 
 in no priiity of eontraet vith the shipper. [Bristol t Exeter Ky. Co. 
 T. Collins (7 HX. Cms- IMt. foUoved.] Soeh a contraet being one vhich 
 a railaay company might refuse to enter into, s. 104 of the Railway Act. 
 1886. c 109. does not prevent it from restricting its liability for negli- 
 genre as carriers or otherwise in rpspert to the goods to be carried after 
 they had left its own line. The decision in Vogel t. G.T.B. Co.. 11 Can. 
 SLCJL tli. does not govern $-ach a contract. One oi the conditions in a 
 contract by the G.T. Ry. Co. to carry goods from Toronto to Portage la 
 Pnurie. lian.^ a place beyond the terminns of their line, provided that 
 fkn Hmiiianj "Should not be responsible for any kes, wsdelivery. damage 
 or detention that might happon to goods sent by than, if soch lo£$. mis- 
 driimy, damage, or detention ocrnrred after said goods arrived at the 
 stations or places on their line nearest to the points or places which they 
 were consigned to. or beyond their said limits": — ^HeJd, that this condi- 
 tion would not relieve the company from liability for loss or damage 
 occnrriag during the transit even if such loss ocrnrred beyond the limits 
 of the company's own line: — Held, per Strong and Taschercau. -JJ.. that 
 the loss having o c c uii ed after the transit was over, and the goods de- 
 lirered at Portage la Prairie, and the liability of the company as carrier^ 
 haTing ceased, this condition reduced the contract to one of mere bailment 
 as soon as the goods were delivered, and also exempted the company 
 froB liability as warehouiemen. and the goods were from that time in cus- 
 tody of the company on whose line Portage la Prairie was situate, as bail- 
 ee for the shipper. Fournier and Gwynne. J-J.. dissenting. Another cnndi- 
 tiim at the contract provided that no claim for damage to, loess of, or 
 detcntian <rf goods should be allowed imkr^ notice in writing, with par- 
 ticulars, was given to the station agent at or nearest to the place of 
 delivery within thirty-six hours after delivery of the goods in re s pect to 
 which the claim was made: — Held, per Strong. J., that a plea setting 
 vp BMMa^pIianee with this condition having been donurred to. and the 
 piaintiJF mat havii^ appealed against a judgment overrulii^ the demurrer, 
 the question as to the sufficiency in law of the defence was res judicata : — 
 Held, also, per Strong. J.. Gwynne. J., contra, that part of the consign- 
 ment having been lost, such notice must be given in respect to the same 
 withia thirty-^ix hours after the delivery of those which arrive safely. 
 Quaere — ^In the present state of the law is a rekaae to. or satisfaction 
 from, one of several joint tort-feaaors. a bar to an action against the 
 others? Judgment in 1± O.R. 103 and M A.R. (Ont.l 14. reversed. 
 
 G.T. Ry. Co. V. McMillan. 16 Can. S.C.R. 543. 
 
 [In this case application was made to the Privy Council for leave to 
 appeal, but was refused on the ground that the case admittedly did not 
 affect property of considerable amount, nor could it well be dercrihed as 
 being of a very substantial character, the sum at stake being reduced to 
 somethii^ under £250 stg.: and the judgment of the Supreme Court did 
 not detomine a question of great public interest, or an important ques- 
 tioB of law. Gagon v. Prince. 8 App. Cas. 10^ approved. Mar 17th. 
 1889.] 
 
 [Dismsacd in Richardson v. Can. Pac. Ry. Co., 19 O.R. 3t9; (vferred 
 to in Bate t. Caa. Pise. Ry. Co, 14 O.R. eiS; Cobban v. Can. Pac. Ry. Co., 
 
olO JJM1TAT10>; OF LIABILITY. 
 
 23 A.R. (Out.) 11",; Ferris v. Can. Xortliern Ry. Co., 15 Man. L.R. 144, 
 1 W.L.R. 177; McKenzie v. Can. Pac. Ry. Co., 4.3 N.S.R. 460; Robertson 
 V. (Jrand Trunk Ry. Co., 21 A.R. (Ont.) 204, 24 O.R. 75; Tolmie v. 
 Micliigan Central Ry. Co., 19 O.L.R. 26, followed in Lockshin v. Can. 
 Nortliern Ry. Co., 24 Can. Ry. Cas. 362, 47 D.L.R. 510.] 
 
 Connecting lines — Loss by fibe in avakehousb. 
 
 In an action by S., a merchant at Merlin, Ont., aj^ainst the L. E. & 
 D.R. Ry. Co., the statement of claim alleged that S. liad purchased goods 
 from parties in Toronto and elsewhere to l)e delivered, some to the G.T.R. 
 Co., and tlie rest to the C.P.R. and other companies, by the said .several 
 companies to be, and the same were, transferred to tlie L.E. etc., Co., for 
 carriage to Merlin, and tliat on receipt by the L.E. Co. of the goods it 
 became their duty to carry them safely to Merlin, and deliver them to 
 8. There was also an allegation of a contract bj* the L.E. Co. for storage 
 of the gootls and delivery to 8., when requested, and of lack of proper 
 care whereby the goods were lost. The goods were destroyed by lire while 
 stored in a building owned bj' the L.E. Co., at Merlin: — Held, reversing 
 the decision of the Court of Appeal, tliat as to the goods delivered to the 
 G.T.H. Co. to be transferred to the L.E. Co. as alleged, if the cause of 
 action stated was one arising ex delicto it must fail, as the evidence 
 showed that the goods were received from the G.T.R. Co. for carriage 
 imder the terms of a special contract contained in the bill of lading and 
 shipping note given by tlie G.T.R. Co. to the consignors, and if it was a 
 cause of action founded on contract it must also fail as the contract 
 under which the goods were received by the G.T.R. Co. provided, among 
 other things, that the company would not be liable for the loss of goods 
 by lire; that goods stored should be at sole risk of the owners; and that 
 the provisions should apph' to and for the benefit of every carrier: — 
 Held, further, that as to the goods delivered to the companies, other tlian 
 the G.T.R. Co., to be delivered to the L.E. Co., tlie latter company was 
 liable under the contract for storage; that the goods were in its pos.ses- 
 sion as warehousemen, and the bills of lading contained no clause, as did 
 those of the G.T.R. Co., giving subsequent carriers the lienefit of tlieir 
 provisions; and that the two Courts below had licld tliat the loss was 
 caused by the negligence of servants of the L.E. Co., and such finding 
 s'hould not be interfered with: — Held, also, tliat as to goods carried on 
 a bill of lading issued by the L.E. Co., there was an express provision 
 therein that owners should incur all risk of loss of goods in charge of the 
 company, as warehousemen; and that such condition was a reasonable 
 one, as tlie company only undertakes to warehouse goods of necessity and 
 for convenience of shippers. 17 P.R. (Ont.) 224. reversed. 
 
 Lake Erie & Detroit River Ry. Co. v. Sales. 20 Can. S.C.R. 663. 
 
 [See Richardson y. Can. Pac. Ry. Co., 19 O.R. 369; referred in Elmsley 
 V. Harrison. 17 P.R. (Ont.) 42.3 ;' Hunter v. Boyd, 6 O.L.R. 639; applied 
 Neil v. American Express Co., 20 (Jue. S.C. 258; approved Laurie v. Can. 
 Xorthern Ry. Co., 21 O.L.R. 178; distinguished Allen v. Can. Pac. Ry. 
 Co., 19 O.L.R. 510, 21 O.L.R. 416.] 
 
 Marine railway — Contract fob hauling vessel. 
 
 Defendants took charge of plaintiffs' vessel for the purpose of hauling 
 it out on defendants' marine railway and making certain repairs. While 
 the work of hauling out was proceeding the vessel fell over and was in- 
 jured. In an action claiming damages defendants relied upon a written 
 contract containing the following jn-ovision: "The company give distinct 
 notice to all parties intending to use or using the railway and it shall 
 
LIIIITATIOX OF LIABILITY. 511 
 
 be hrid to be part «f thar ttmiiwdt with $aeh partses ttkat tltr ttmafmmr 
 viU mot be liahle for aor njnnr or daan^ bnr aecideBt . . . vUdi 
 nsfii^ or tbeir <aiwoe$ or ma^uerr mai\ sastaim *m the laibraT or vbikt 
 beii^ iHiJ theiv or bei^ lamdni thtrdmmTz — Hdd, that saeh prori- 
 aoB fii Mi m a^r vaj fiait the n i^poainbilii^ of the coapavr for acta 
 of ■til iHlibliiihrd ac^igeaee. ftether, that it was aot aeicessanr to 
 plijatHTu' n^A to recof e r that anae cpeeiie act of ae;pli^eac« on their 
 port dboali be cstabliiiwd^ bat that s«eh a eg ii yr e n^t be imitmd 
 iram the facts proved. 
 
 GortiM-PHr Fisheries Co. r. North S^^daer Mariae Rr. Co^ 44 XjS^ 
 493. 
 
 or VKE&T — ISBOKSCMETT OT BOX. OF L.&OCSC 
 
 IThcB it dearlj tfpeaiT^ that the Ion 4Mf goods shipped br nilwaj aiBst 
 haw beea caascd bj tlM> ae^;ligeBce or onamsi of the raEbraj coapaar 
 •r ita senaats. the tntmfanx i» ptvc-laded br safae^ 3 of ». 24€ of the Rail- 
 wmj Art, 188Sv firaoi rdjia;*^ oa a coaditioa of the bill ot ladi^ escaiptii^ 
 it from liaUitT for aar deAneaejr ia we^ht or Mea wu e M et- {ii The 
 certifieate of a wighauster aader s. 9 of the Haaitoba Gtaia Act. IMd. 
 b uag oahr ^isa facie eridcaee of the wight of graia ia a car, aaj be 
 icbatt ed.' f3) The iadorscMort of a bill of ladi^ to a baak for coUec- 
 tisa, thoi^ it passes the propertr ia the goods^ does aot prercat the 
 ritipper flow fariagii^ aa attsoa ia re«|iect of the loi>i$ of the goods, if he 
 sttin has aa iatetest ia thcai. (4« Su 21 of the Weights aad Measam 
 Act, R&.CL, c 104, docs aot a^lr to a contract for carrri^ vheat by the 
 carload, althoo^ the aoo^Mr of badids ia the car had beea asccrtaiacd 
 Igr bag: ■Miinnawl. 
 
 Ferris t. Cm. Xortheta Kr. Cul, 13 Haa. LJL 134. 
 
 [Followed ia Raa^li et aL t. Caa. Xorthera Kt. Cou 19 Caa. Rj. C». 
 343. 21 DXJt. 437: Scaalio v. Caa. Pae. Rt. Co.1 23'CaB. Rr. Cak 336; 
 (%ilTie Floor UilU Co. t. Caa. Pac Rj. Co.. 47 DXJL 22«. 
 
 CiftiCT- OF C4iaas — ^Xoncc snm.&Tixc fob :^oxi.iAaiurr. 
 
 A carrier eaaaot stipalate tSiat bj reaaoa of the mtoeed charge for 
 carriage of goods he vill not be liable for iajmr thereto ewa if earned 
 bf- tiie fsalt or aegtij^raee of hi$ eaiphnecs: bat ahea such stipnlatiaa 
 ku beea aiade the oaacr ot the goods daimged aiast prme that it aas 
 caased br such fanh or ae^ligcace. 
 
 DruaViDe r. C.P.R. Co., ±f Que. S.C 4S0 (tCir. Ct.1. 
 
 Dam-scb to flooBS — CosTKJurr LxxTrrxe; tuaniTT — ^Xeeucexge — ^FkACD — 
 GooBB marooTEB rs crs^nnis vabebocse. 
 Sonaaadia t. NatJoaal Expros Co.. 4 E.f.R. 338. (Qdcl). 
 
 Shutcxc BCL-xin — ^Lxiuted uahutt — Second cAaanaL 
 llacfccBzie t. CP.R-. 7 EX-R. i6 (X.S.». 
 
 C a wiicc or «MKia6 — Loss bt fixe — Xonce of AaarrAX. 
 
 A tailvay coMpaaj anj. bgr toaditioa, rdiere itself tram fiabilitr for 
 daaage to goods ia traasportatica caased br ire. vhere sach fire does 
 aot occvr throi^h the aeigligeace or <H[a»ioB of the compear or its serr- 
 aata. It is aot aeccasarj In- the lav of Caaada that such a cooditioB 
 «baald be ~ja«t aad rcasaaable.'~ Good^ arrived at the raihrar ¥tatioa to 
 aUch they vere deietiaed aad aotice of the arriral was givea the saae dar 
 to the (OB»igaee who. howcrer. did aot rcsMve theat aad tber were de- 
 stn^ bjp fire at the statioa five daj« afterwards: — Held, oa the eri- 
 
512 LIMITATIOA^ OF LIABILITY. 
 
 denee, that the notice given was sufficient, and that the consignee had had 
 a reasonable time within which to remove the goods, 
 
 McMorrin v. Can. Pac. Ky. Co., 1 Can. Ry. Gas. 217, 1 O.L.R. 5G1. 
 
 Bill of lading — Condition requiring insurance — Breach of — Loss of 
 
 GOODS. 
 
 Under s. 246 of the Railway Act, 1888, a railway company is precluded 
 from setting up a condition endorsed on a bill of lading relieving the com- 
 pany from liability for damage sustained to goods while in transit, where 
 the damage is occasioned through negligence. Consignors, by their own 
 shipping bill, agreed to insure the goods to be shipped, the railway com- 
 pany being thereby subrogated to consignors' rights in case of loss, and 
 a condition of the bill of lading given by the railway company on the 
 shipment of goods, required the consignor to effect an insurance thereon, 
 which, in case of loss or damage, the company were to have the benefit 
 of. The consignors insured the goods, but afterwards countermanded the 
 insurance: — Held, that the bill of lading superseded the shipping bill 
 and formed the contract between the parties, and that the railway com- 
 pany under the above section were precluded from setting up the breach 
 of such conditions as a ground for relief from liability, where the damage 
 to the goods had been occasioned through negligence. 
 
 St. Mary's Creamery Co. v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 122, 
 5 O.L.R. 742. 
 
 [Affirmed in 8 O.L.R. 1, 3 Can. Ry. Cas. 447; distinguished in Mercer 
 V. Can. Pac. Ry. Co., 17 O.L.R. 585, 8 Can. Ry. Cas. 372; Sutherland v. 
 Grand Trunk Ry. Co., 8 Can. Ry. Cas. 389, 18 O.L.R. 139.] 
 
 Bill of lading — Condition requiring insurance — Breach of — Loss or 
 
 GOODS. 
 
 Under s. 246 of the Railway Act, 1888, a railway company is precluded 
 from setting up a condition endorsed on a bill of lading relieving the com- 
 pany from liability for damage sustained to goods while in transit, where 
 damage is occasioned through negligence. Consignors, by their shipping 
 bill, agreed to insure the goods to be shipped, the railway company, being 
 thereby subrogated to consignors' rights in case of loss, and a condition 
 of the bill of lading given by the railway company on the shipment of 
 goods required the consignors to effect an insurance thereon, wliich, in 
 case of loss or damage, the company were to have the benefit of: — Held, 
 that the contract being one for total exemption from liability where, as 
 here, the damage to the goods was occasioned by negligence, the defend- 
 ants were precluded, under the above section, from setting up the breach 
 of such condition as a ground of relief from liability. [Judgment of Mere- 
 dith, J., 5 O.L.R. 742, 2 Can. Ry. Cas. 122, affirmed; Vogel v. Grand Trunk 
 Ry. Co. (1885), 11 Can. S.C.r'. 612, followed; Robertson v. Grand Trunk 
 Ry. Co. (1895), 24 Can. S.C.R. 611, distinguished.] 
 
 St. Mary's Creamery Co. v. Grand Trunk Ry. Co., 3 Can. Rv. Cas. 447, 
 8 O.L.R. 1." 
 
 Shipping bill — Contract for carriagk «y watkr — "Ownkr's risk." 
 
 Plaintiff, a Syrian merchant imperfectly acquainted witli English, exe- 
 cuted, without solicitation, a contract for the shipment of furniture from 
 Toronto to Fort William via Owen Soimd, the goods being shipped at a 
 reduced rate by defendants' boat from Owen Sound. On tlie boat they 
 were damaged by water, the boat having run on a rock, but no evidence 
 shewing negligence in the management of the boat was given. The con- 
 tract provided that the goods should be shipped at "owner's risk," and 
 
LIMITATIOX OF LIABILITY. 513 
 
 that tke defcodants should aot be liaUe for ''damages OKaaooed br 
 . . . we^: — Hdd, (1) Aere vas no eTidnce tlat the goods had been 
 danagtd bj the defeadaiit?' negligence: the mere fmct that thnr boat 
 had ma npoi a rock vithoot eridcnee of the cimmsfcaaees caimhig the 
 aeeideat mat being procrf thai thcz« had been aar n^ligeaee in the man- 
 agesKBt of tte boat by defoidaats' offioers. (2)* Etcb if there had been 
 eridaice of negligenee, the plaintiff could not recover because be vas 
 bound br his contract relieving defendants from liability, and as the 
 goods we being carried by water and not upcm a line of raOvaj. the 
 «yefation of the coatract vas not limited bj the BaSwav Act, 1888, &. 
 2-l€ (3i. to ca««s vhere the damage vas due to causes other than the 
 negligence of the defcadante. 
 
 Abdon T. Can. Pac St. Cb., 4 Can. Bj. Cas. 541. 
 
 C«vT«Acr ixjfmxG ii^BfT.rrr — ^Vauditt — (telMs or Boaed — F»actio3CS of 
 
 A BAT. 
 
 On the 17th October. 1904. the plaintiff dipped three packages of house- 
 hold goods on the defendants' raQvar, and signed a special contract br 
 vhieh he nndntook that no daim in reaped of injury to or Ios« of the 
 goods should be made against the defendants exeeedii^ the amount of 
 95 for any one of the packages. On the same day the Board, by order, ap- 
 proved of the form of speoal contract signed by the plaintiff, under ». 
 275 of the Railvay Act, 1903. providii^ that no audi contract shall be 
 valid unless ''such class ot contract" shall hare been first aathniKcd or 
 approved by the Board. In an action to recover the value of the goods, 
 vhit-h vere Io>t by the defendants: — ^Held, that, under ss. 23. 24. 25. 275 
 of the Art. the Board had jurisdiction to make the order, the maLHng of 
 it va« a judi«-ial proceeding, and the order must be regarded as in full 
 force during the vbole of the 17th October. 19«>4: and. therefore, the con- 
 tract vas valid, and the plaintiff entitled to recover only $15. Reviev 
 of cases bearing upon the rule that in judicial proceeding fractions of a 
 day are not regarded. 
 
 Buskev V. Can. Pae. Ry. Co.. 5 Can. Ry. Cas. 3»4. 11 OX.R. 1. 
 
 (FiJloved in Underbill t. Can. Xortbern Ry. Co., 18 Can. Ry. Cas. 313.] 
 
 Fkeeuom fbom UABUxrr — ^^Paoptrrr." meati:\g or — ELttsdem gksvmxs. 
 
 In considnYtion of the construction of a siding to their mill premises, 
 plaintiff company entered into an agreement vith the railvay eampaay 
 fleeing fhoB from liability for damage to the ~sidii^ or to Indldii^s, 
 feaces or other prt^rty vhatsoever' of the plaintiff company ''or of any 
 other peraon." Tvo horses of the plaintiff company, engaged in hauling 
 a car from one part of the siding to another, vere killed by being run 
 dovn vith a ear sent <m the sidii^ by a flying svitch: — Held, reversing 
 the fiadiniK of Wilson, Co. J., that the vord ''property'* in the agreement 
 vas Bot eoafiaed to fixtures, buildings and roUhig stock, and that the 
 horses vere ^opo-Iy included. 
 
 East Kooteaay Lumber Co. t. Gaa. Pac. Ry. Co., 8 Can. Rt. Cas. 310. 
 13 RC.R. 422. 
 
 LlAlHUTT rOS DAMA^ TO «OOD6 IX TSAXSIT — COXTmACT LnOTCSG 1X030.- 
 
 mr. 
 
 la an action against a carrin- for damage to goods in transit, it must 
 
 he proved that the goods vere undamaged vben delivered to the carrier. 
 
 Whca goods are shipped by rail under a contract liiiiitJ»g liability and 
 
 providi^ for traasport at ovner s risk, the railvay eompaay is mot liable 
 
 Caa. Ry. K I>ig.-.33. 
 
514 LIMITATION OF LIABILITY. 
 
 for damage to such goods unless it be proved that such damage is the 
 result of negligence on the part of the company. 
 
 Mason & Risch Piano Co. v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 369, 1 
 S.L.R. 213. 
 
 STIPtTtATION 8TKICTLY CONSTRUED DESCRIPTION "BRITTLE AND FRAGILE 
 
 objects" NOT TO APPLY TO WOODEN CHEESE BOXES — LIABILITY OF GAB- 
 BIER. 
 
 Common carriers, as the insurers of the goods entrusted to them, are 
 liable for loss of, and damage to, them. Stipulations in contracts for the 
 carriage of goods and in bills of lading, exempting the carrier from lia- 
 bility in certain cases, are construed strictly. Wooden cheese boxes do not 
 come under the description, in such a stipulation, of "brittle and fragile 
 objects," especially when it appears at the end of a long enumeration of 
 objects wholly dissimilar. Supposing, however, the clause to apply, the 
 carrier would still be liable for damage proved to be caused by his fault, 
 and such fault is established, as to one shipment of cheese in wooden boxes, 
 by shewing that 11 per cent of the boxes were damaged, with the addi- 
 tional proof that the average number damaged, in ordinary shipments in 
 the cheese trade, is only 5 per cent. 
 
 Alexander v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 406, 33 Que. S.C. 438. 
 
 [Affirmed in 18 Que. K.B. 530; applied in Manufacturers' Paper Co. 
 V, Cairn Line SS. Co., 38 Que. S.C. 362.] 
 
 Fault of connecting carrier — Transport by sleigh boas. 
 
 The plaintiflF delivered to the defendants lumber to be forwarded to G. 
 station, subject to the conditions of the shipping bill, and paid the freight 
 to G. The lumber was conveyed to S., the station nearest to G. on the 
 defendants' line. The only transportation possible from S. to G. was over 
 a sleigh road by teams owned by a transport company, with whom the 
 defendants had a working arrangement. The car containing the lumber 
 was left on a siding at S., and the agent of the transport company was 
 notified, but that company did not forward the lumber to G., and the de- 
 fendants shipped it back to the plaintiff without delay, and returned the 
 freight. By clause 10 of the conditions on the back of the shipping bill 
 it was, inter alia, provided that the defendants did not contract for the 
 safety or delivery of any goods except on their own lines, and that wliere 
 a through rate was named to a point on other lines, the defendants were 
 to act only as agents of the owner of the goods as to that portion of the 
 rate required to meet the charges on such other lines, and that their re- 
 sponsibility in respect of any loss, misdelivery, or detention of goods 
 carried under the contract should cease as soon as the defendants should 
 either deliver them to the next connecting carrier for further conveyance 
 or notify such carrier that they were ready to do so: — Held, in an action 
 for breach of the contract by nondelivery of the goods, that this clause 
 relieved the defendants; "the next connecting carrier" was not limited 
 to a railway company operating other lines, but meant any connecting 
 carrier. Clause 15 provided that the defendants should not be liable for 
 loss of market or for claims arising from delay or detention of any train 
 in the course of its journey, and any loss or damage for which the defend- 
 ants might be responsible should be computed upon the value or cost of 
 the goods at the place and time of shipment: — Held, that this clause also 
 applied; the immunity from liability for loss of market was not limited 
 to claims arising from delay or detention of any train, but was general: 
 — ^Held, also, that, there being a limitation under the contract itself, the 
 law applicable to common carriers did not apply: — Held, also, that the 
 
TTMTTATTOX OF LIABILITY. 515 
 
 ^aiatiff vas not mtitled to sncrccd as w an aetioa for tort, as tbe de- 
 fcBdaats receired ikf Inmbrr for eaxriagc aader iWe provisioas oi a $pMiaI 
 CMtzad : — Hdd. lastly^ that tJie defcndaats had fulfilled their oUi^tioBS 
 udnr the roBtrart. aad verv aot liahie mmiKT & 284 paras. (b|. ici, idl, 
 of the Railway Act. I9i)6. (-Jad*BDmit of Ha-er. J^ affirawd.] 
 
 Laurie r. Can. Northrm Ky. Tol. 10 Caa. Ry. Oas. 431. ±1 Oi.IL 178- 
 
 Labs vhuje rs ros^^ssiox <v rxrcxMEDLATE nAmmnra — I^ake axs kail 
 mocrxs. 
 
 A» aetioi to mover damages for uoadtlirery of a carload of tools kkst 
 IB traasit by the aiMJa ug, oa Lake Superior, of a steaat^hip of the 
 X.X. Col The poods wm shipped from Kakabriui Fall^ ia a C.PJ{. Cos 
 car ria Canadian Xorthera By. Co. to Port Arthur, placed on board the 
 steamship for transpt^tation to Point Edward, thence Tia Grank Trunk 
 Ry. for deliTery to the plaintiffs at St. Catharines. The plaintiffs con- 
 tended that the terms of the contract va« for tran^tortatioB all rail 
 and not br lake and raiL and that the defieadants were liahie for Iwvarii 
 of a throng contract to carry by a t hrough route and at a throi^h t<ril: 
 — Held, rerersing the trial Judge, who gave jn^ment in faronr of the 
 l^intiffs, holdii^ that the defeadants no« having contracted thenselres 
 out of liability for the loas that onmi e d became liahie undn' their con- 
 tract to driiTer to the plaintiffs at destination, and alBnua^ the judg- 
 ment <rf the Court oi Appeal that the defendantc; contracted only to de- 
 liTcr the goods at Port Arthur to the N.N. Co., which they did. and were 
 t h er efore not liable for noaddirery. 
 
 JtmAa Maehine Co. t. (^b. Xorthem Ry. Co.. 11 Can. Ry. Cas. 44«. 
 14 O.WJL 307- 
 
 [Distii^:nished In Laurie t. Can. Northern Ry. Co.. 21 O.LJl. 178.] 
 
 TjaiJTT FOB VKLAX — ^DciaT CAVSEO OX CDXXECTtXG KAILWAT — XonCC TO 
 
 A carrier by land, who nenrcs goods to be forwarded by other carriers, 
 is not liable, in the absence of notiee of special cause for deliTery withia 
 a given time, for damage ariaiBg from delay caused by coagestiaa of traf- 
 fic in the hands of the next succeeding carrier. A stipulatioa in a bill 
 of lading, by a carrier of goods to be forwarded by him and other carriers, 
 liauting his liability to kiss or injury caused by his own negH^^ence, is 
 valid aad binding, though the shipper's attention is not speciaDv drawn 
 to it. [Clarke v. HoUtday. 39 Que. S.C. 499. follonvd.] 
 
 Bam T. Bostoa 4 Maine Ry. Co., 13 Caa. Ry. Cas. 370, 41 Que. S.C. 
 
 TaaasATtois of liabhtit — Akritai. of goods — Rej^soxable ttwe fob dc- 
 
 UVEBT. 
 
 The liability of carriers by railway- qu2 carriers teiminates upoa the 
 airival of the goods carried at their destination and the expiration of a 
 reasoaable time for delivery. From Saturday morning until Monday is 
 not a reasonable time ia which to pay the freight and donaad delivery of 
 a carload of potatoes in very cold weather. 
 
 Lockshin t. Can. Northern By. Col. 24 Can. Ry. Cas. 3«8, 47 Di.B. 51C. 
 
 SBmtEICT <V OtAIX LlABnLITT OF IXTOtXEIHATE CABBIEBS. 
 
 When a diipmeat of grain is despatched in a sealed ear over several 
 lines ol railway co na ecut ively, the intermediate carriers are only answer- 
 
516 LIMITATION OF LIABILITY. 
 
 able for damage arising from their own acts. In the absence of proof to 
 this effect, they are relieved of all liability. 
 
 Duchesneau v. Can. Northern Ry. Co., 23 Que. K.B. 19. 
 
 B. Live Stock; Persons in Charge. 
 
 XkGI.IOENCE POWEK OK COMPA.NY TO I'ltO IKl 1 ITSEI-F KROM — LiVE STOCK AT 
 
 owner's risk. 
 
 A dealer in horses hii'ed a car from the G. T. R. Co. for the purpose 
 of transporting his stock over their road, and signed a shipping note by 
 which he agreed that "the owner of animals undertakes all risks of loss, 
 injury, damage and other contingencies, in loading, etc. When free passes 
 are given to persons in charge of animals, it is only on the express con- 
 dition that the railway company are not responsible for any negligence, 
 default, or misconduct of any kind, on the part of the company or their 
 servants, or of any other person or persons whoinsoeA'er, causing or tend- 
 ing to cause the death, injury or detention of any person or persons travel- 
 ing upon any sucii free passes. . . . the person using any such pass 
 takes all risks of every kind, no matter how caused.'"- The horses were 
 carried over the G. T. R. in charge of a person employed by the owner, 
 such person having a free j)ass for the trip. Tiirough the negligence of 
 the company's servants a collision occurred by which the said horses were 
 injured. On appeal from the Court of Appeal for Ontario, 10 A.R. (Ont. ), 
 162, affirming the jiulgnient of tlie Divisional Court, 2 O.R. 197, in 
 favour of the defendants: — Held, per Ritchie, C.J., and Fournier and 
 Henry, JJ., that under the General Railway Act, 1868. c. 68, s. 20,. subs. 
 4. as amended by .34 \'ict. c. 43, s. 5, re-enacted by Consol. Railway Act, 
 1879, c. 9, s. 2'), subss. 2, 3, 4, which prohibits railway companies from 
 protecting themselves against liability for negligence by notice, condition 
 or declaration, and which applies to the G. T. R. Co., the company could 
 not avail itself of the stipulation that it should not be responsible for 
 the negligence of itself or its servants. Per Strong and Taschereau, J.J.: — 
 That the words "notice, condition or declaration." in the said statute, con- 
 template a public or general notice, and do not prevent a company from 
 entering into a special contract to protect itself from liability. 
 
 Grand Trunk Ry. Co. v. Vogel, Grand Trunk Ry. Co. v. Morton, 11 Can. 
 S.C.R. 612. 
 
 [Disapproved in The Queen v. Grenier, 30 Can. S.C.R. 42; applied in 
 Brasell v. Grand Trunk Ry. Co.. 11 Que. S.C. ir»7; considered in Burdett 
 V. Can. Pac. Ry. Co., 10 Man. L.R. 11 ; Walters v. Can. Pac. Ry. Co., 1 
 N. W. Terr. R. 28, 38: discussed in St. Mary's Creamery v. Grand Trunk 
 Ry. Co., 5 O.L.R. 742; distinguished in Robertson v. Grand Trunk Ry. 
 Co., 24 Can. S.C.R. 615; followed in Cobban v. (an. Pac. Ry. Co., 26 O.R. 
 732, 23 A.R. (Ont.) 115: referred to in Canada Permanent v. Teeter, 19 
 O.R. Ii56; Glengoil S.S. Co. v. Pilkington, 6 Que. (^B. 104; commented on 
 in Bate v. Can. Pac. Ry. Co., 14 O.R. 625. Cam. S. C. Cas. 10; considered 
 in Robertson v. Grand Trunk Ry. Co., 24 O.R. 75; distinguished in Bick- 
 nell V. Grand Trunk Ry. Co., 26 A.R. (Ont.) 431; Cobban v. Can. Pac. 
 Ry. Co., 26 O.R. 732:' :McCormack v. Grand Trunk Ry. Co.. 6 O.L.R. 
 ,'')77; McMillan v. Grand Trunk Ry. Co., 15 A.R. (Ont.) 14; Robertson v. 
 Grand Trunk Ry. Co., 21 A.R. (Ont.) 204; Sutherland v. Grand Trunk 
 Ry. Co., 18 O.L.R. 139; followed in Cobban v. Can. Pac. Ry. Co., 23 A.R. 
 (Ont.) 115; McMillan v. Grand Trunk Ry. Co., 12 O.R. 103; St. Mary's 
 Creamery Co. v. Grand Trunk I'y. Co., 8 O.L.R. 1; referred to in Bate v. 
 Can. Pac. Ry. Co., 15 A.R. (Ont.) 388; Ferris v. Can. Northern Ry, Co., 15 
 Man. L. R. 144; Shaw v. Can. Pac. Ry. Co., 5 Man. L.R. 337.] 
 
LDUTATIOX OF LIABILITY. 517 
 
 Cabu-mx or riTE stock. 
 
 Br & 2-H* <3i of the Raflwr Jkct. 18S8L "evwwj perstm aggrieved Inr asr 
 ■ eg lert or rcfnsal ia the i»«^is» shall have aa artion therefor against tW 
 eiMipaBr. fri— vhirh artioB tke iiwipaai dkall aot be. relieved by aar 
 aodee, cmditiaa or derlaratiaB, if the daau^ anse« froot aaj ■egl^mre 
 or oans^ioa cf the coaspaar or of it$ s^rrants'': — HeM. affiraun^ the de- 
 ri«iaa of the Coart of Appeal, that thi< prorision doe» aot disaUe a rail- 
 var eo^WBT froat caterin;^ iato a spenal roalrart for the earriag<e of 
 goods aad liauUa g it? lialiaiitT a5 to anKant of daaia^es to be rccorered 
 for hiea or iajnnr to »oHi ^ood>. ari^in*^ froBi a^^enee. [Vofpri r. Graad 
 TnaJt Rt. Col, il Caa. S-CJt. 61* and Bate t. Caa. Pac Rt. Col, 15 AJi. 
 Oat. 388, distia^idded.] The Grand Tnink Rj. Co. reeeired froaa R. a 
 horaa to be carried orer its line, and the ajpnit of the eoapaBT and R. 
 s igtd a eoBtrart for sorb rarria^ vbieh rontained this proTtsion: "The 
 Ui^|Maj shall in no case be rv^poasible for anr aaaoaat esceedii^ ame 
 h— diul doUars for each and aaj horse,' etc.: — Held, affinaiag the de- 
 ciaka of the Coort of Appeal, that the vords "^hall in no ease he re- 
 spoasible" wne soffieientlj general to cover all cases of Vmb h o wg i ei 
 caased, and the hor^se harin* been killed br ue^Uigiaiee of s^rraats of the 
 coaqianv. R. could not recover more than $100, thoo^ the ratne of the 
 horse lar«elT exceeded that amount, [fl A.R. (Ont.) :2<M. alBraii^ 24 
 O.R. 75. affimed.] 
 
 Robertson x. Grand Trunk Rr. Co.. i* Caa. S.C.R. 611. 
 
 [Applied in Grenier t. The Queen. 6 Can. Ex. 30±: disms«ed in Cobban 
 T. Can. Pac. Rt. Co_ 26 OR. 732: St. MarTTs Crcamerr Co. t. Grand Tmnk 
 Rr. Col. 5 OjLR- 742-. distinguished in St. Mary's Creamerr Co. t. G.T. 
 rV. Col. 8 OJ^R- 1 : folloved ia Mercer t. Can.' Pac. Ry. Co., 17 OX.R. 
 5KS, 8 Can. Rt. Cas. 372: Satherlaad t. Grand Trunk Rr. Col. 18 OX.R. 
 139; n^errvd'to in Cobban r. Can. Pac. Rt. Co.. 23 AJL (Ont-» 11 J: 
 LaMOBt T. Can. Transfer Co.. 19 OX.R. 29l'; Movatt v. ProTident A^m. 
 Gou 27 A.R.(OBt.|l 675: McCormack t. Grand Trunk Rt. Co., 6 OXJR. 
 577; Taylor t. Grand Trunk Ry. Co., 4 OJL..1L 357; WcmdEj t. Can. De- 
 ve k y en t Co., 8 B.C.R. 19u): relied on in Central VeraMat Ry. Co. t. 
 Franch«re, 35 Can. S.C.R. 74: Wilson t. Can. Develop. Col, 9 B.CLR. 106; 
 see Grrnier r. The Qnecn. 6 Can. Ex. 276.] 
 
 CaBKL&CK or UTE STOCK — Dei.AT OF SHIPWeXT AnAXBOXMETT — SJlIC »t 
 
 A shi|^cr of poods is bound by the conditions to vhieh he has sal^ 
 scribed in the bill of ladin*. and vfacre one of such coaditiaas vas that 
 the carrier (a railway company • should not lie liable fm* the driay of :' 
 trains, and dama^ vas caused to the shipper of live stock by a delay of 
 tvo hours, be could aot recwer. If the -stork is ahaadoned to the c«Hn- 
 pany and sold, the latter has the r^t. before remittiaf; the proceeds of 
 the sale, to demand fnim the ship the return of the bill of ladii^. 
 
 Lafoataiae r. Grand Trunk Ry. Co.. 26 Que. S.C. 455. 
 
 Ljtk stock — CoxntATEvnox or Loco's Dat Act. 
 
 The proTisions of a special contract of carria^ limitinp the liability 
 of the defendants, common carriers, ia ca.-^ of a collisioa to a stated sum. 
 do not apply where the common carrier is guilty of a eiMrporate art in 
 roatraTeation of a sUtute alMve that corporate act occasioned the colli- 
 sioa. Where, therefore, a railway company received liTe stock for carria;::e 
 at a lower rate than it was entitled to charge in consideration of tiie 
 shipper ouentu^ a ^eeial eoatract liauting the coapany^'s liability in 
 
518 LIMITATION OF LIABILITY. 
 
 tlie event of a collision of its trains to $100 per head of such live stock 
 killed, and a collision occurred between the train upon which the live 
 stock was carried and which was being run lawfully and another ti'ain 
 of the same company which was being run unlawfully in contravention 
 of the Lord's Day Act, and an action was brought by the owner of the 
 live stock in tort claiming the full value of the animal killed bj- such col- 
 lision: — Held, that the special contract had not the eiroct of limiting the 
 company's liability or excusing the defendants from liability if such lia- 
 bility arose by reason of the breach of a prohibitive statute; that the un- 
 lawful running of the train in contravention of the Lord's Day Act was 
 a corporate act of the defendants, and that the principles of the law of 
 negligence were not applicable. The judgment of Sifton, C.J., upon a 
 stated case affirmed by the Court en banc. 
 
 Rise V. Can. Pac. Ky. Co., 3 Alta. L.R. 154, 14 W.L.R. 635. 
 
 Loss OF HORSES — SPECIAL CONTRACT UMITIXG MABILITY. 
 
 In an action for damages for the loss of two horses out of a carload of 
 fourteen shipped over defendants' railway, judgment was entered for the 
 plaintiff upon the answers of the jury finding the defendant company 
 guilty of negligence and that the plaintiff could not have avoided the acci- 
 dent by the exercise of reasonable care. Upon motion in term the County 
 Judge held, the defendant company exempt from liability under the terms 
 of a special contract permitting its liability, approved by the Board under 
 s. 275 (1) of the Railway Act, 1903, and dismissed the action: — Held, 
 upon an appeal to the Divisional Court that upon the true construction of 
 the contract it did not cover negligence of the company or its servants and 
 that the Board has no power to limit the liability of the company for neg- 
 ligence contrary to the provisions of the Railway Act, 1903, s. 214 (3) : — 
 Held, also, that the findings of the jury upon the evidence were so un- 
 satisfactory a new trial must be ordered. 
 
 Booth v. Can. Pac. Ry. Co., 5 Can. Ry. Cas. 389, 7 O.W.R. 593. 
 
 [Referred to in Sutherland v. Grand Trunk Ry. Co., 18 O.L.R. 139; re- 
 lied on in Mason & Risch Piano Co. v. Can. Pac. Ry. Co., 1 S.L.R. 215.] 
 
 Animals — Speclal contract limiting liability — Notice of loss. 
 
 By 8. 284 (7) of the Railway Act, 1906. "Every person aggrieved by any 
 neglect or refusal of the companj' to comply with the requirements of this 
 section shall, subject to this Act, have an action therefor against the 
 company, from which action the company shall not be relieved by any 
 notice, condition or declaration, if the damage arises from any negli- 
 gence or omission of the company or its servants." By s. 340: "No 
 contract, condition, by-law, regulation, declaration or notice made or 
 given by the company, impairing, restricting or limiting its liability in 
 respect of the carriage of any traffic, shall, except as hereinafter provided, 
 relieve the company from such liability, unless such class of contract, con- 
 dition, by-law, regulation, declaration or notice shall have been first 
 authorized or approved by order or regulation of the Board. (2) The 
 Board may, in any case, or by regulation, determine the extent to which 
 the liability of the company may be so impaired." The defendants received 
 from the plaintiff a mare, with other animals, to be carried from a station 
 on their line of railway in Ontario to a point in British Columbia, under 
 a special contract, which had been approved of by the Board (which the 
 plaintiff signed). I'nder this contract the animals were carried at a lower 
 rate than the company were entitled to charge. The contract contained a 
 provision that the defendants should in no case be responsible for any 
 amount exceeding $100 for the loss of any one horse, or a proportionate 
 
LnaXATIOX OF LIABILITY. 519 
 
 ■■M m aay oae emsr for ia juries to suae, aad Hmt aay loot or daaagr 
 shoaU be eonpoted aad paid for oa cadi basis. Tboe ws a fnither pro- 
 Tirioa relirria^ Ae eoaipsflj firoai liabilify, nnalefis a writtaa aotiee, vitb 
 tlK faD particnlars of the k^s or dsMigr sad of tbe daia to be Bade 
 la icapeet tkereof. is delivered to tl^ statioa a«ent at the said ptaat «f 
 driitcix vithia 34 hoars after the said propestr, or some part of it, has 
 beea ddivovd.*^ Datia^ the carria^ oa the nulray. the amv va& 
 thnwigb the defeadaats' ae^i^eacv, serioBsIj iajnred. Before the eoasifiB- 
 ■cat arrived at its destiaataaa the plaiaUff, ^»^™g that the Bare va? 
 ptTHaaeathr ia jnmL hw the per»iwisioa of the railaaT aap e iia teadeat there. 
 l ea ww ed tke Bare from the car at aa ia faifdi ate statioa aad aidd her 
 at a loss, the iiMiiadfi oi the s h ipaaat bei^ carried oa to the place 
 ai dciiTCsy. Xo aotice of the hns was givf^ there to the eoafaay's uKriil 
 vithia the 24 hours:— Held, that aotwfthstaadiag the hMs was setaiaed 
 throefh the deieadaats* atgliftU M ie , the tpmil eoatraet aas biadias <>■ tl^e 
 plaiatiff, aa that ia ao eicat eoald he le e u ni B Bore thaa the proportioaate 
 part of 9>100; bat that the uaiiiaina to gm the nquired aotice rdievvd 
 the coaipaaj fnaa all fiabilitjr. [Jai%anat of the Cooatr Coort of thr 
 eoaatr ol C^, affirmed. Bobertsoa t. Graad Tnmk Rj. Co. (ia»»), 2* 
 Caa. S.CJL «il. followed: St. Marr's Crcanetx Co. t. Graad Traak 1^. 
 Col (ISM). 8 OXJL 1, 3 Caa. Ry. Gsa. 447, dbtia^nished.] 
 
 Meteer v. Cka. Par. Rr. Co., 8* Caa. Rr. Caa. 37£ 17 OiJL 585. 
 
 (CoanMated oa ia Xeaaua r. Graad Traak Rr. Co.. 30 OJ^R. 285; 
 distiagaishcd ia Toinie t. Uidu^aa Geatral Rt. Col, 19 OX.R. 2S. 9 Gaa. 
 Rt. Ca«. 337: referred to ia Sathcrlaad r. Graad Traak Rv. Cou 18 OXilL 
 139: WiDdasM t. Caa. Exprew Cou 14 Caa. Rt. Gas. 2«7. 7 D.LuR. 450.] 
 
 SaiPXKyT or UTE stock — LnciTATHHr or ix&hutt — Cos.^bltisc cab- 
 
 The plaiatiff ddiTcnd to a raOaay eoBpaay at Brocktoa. Mass., U. Sl, 
 a aaadier of Tsladble horses for earria^ to GriaKbr. Oatorio. vader a 
 eoatraet kaova as a lire stock eoatraet, fanr vhicfa tke horses vcre to be 
 carried oa the liae of that nilwaT as far as it aeat aad thea br eon- 
 m nii mg liaes to the place of deliTerr. the eoatraet beii^ expresslj' catered 
 iato hv the eoatractia^ railvar on its ova behalf, as veO as oa behalf 
 of the eoaaeetia^ liaes. The eoatraet eoataiaed a prorisiaa that oa paj- 
 BHBt of a specilied rate of frei^t. b«i^ a rate lover thaa that vhi^ the 
 riiwpaaj was catitled to charge, liability vas to be liwted to aa aaooat 
 aat esceedia^ SlOO for tmA aaiauL or a total liability aot exeecdiiif 
 $13M, the plaiatiff havia^ the optioa of shippi^ at a lu@:lMr rate aad 
 ohtaiai^ the mwpany's liability as eosiBMm carriers. The ]»OTi9oa re- 
 strieti^ fiability vas siwiar to that contoiaed ia the forai of lire &to;k 
 eoatraet of the defeadaats approred fay the Board nader s. 340 ot the Rail- 
 way Jket, 190S. The hones were carried by the eoatraetiap railaay as far 
 as its liae extcaded, aad acre thea driivered to a eo aa xti ag railvay aad 
 theace to the drfnahats, aad dari^ Qtt traant oa the defeadaats' liae aa 
 a wi d tat o etaii ed thiii^h the aegi i^u ac e of the defendaats. ia vhiA aoMe 
 •f the aaiwds a«» killed aad others iajared :— HcU, that by the tcnw af 
 the e oa traet it ippliad aoi oahr to the railway eosBpaay writh which it was 
 BMde, baft vith the cnaafctisg railways, aad that by its terats the de- 
 vere aeapted fnm liability bcyoad the aaoaat stipulated for: 
 that, evea if the approval of the Board vas caseatial to ite validity, 
 I approval had beea obcaiaed, for it vas, ia s a b st aa e e, the aiaw elas 
 vbich had beea approved. 
 T. Grud Traak Rj. Co., 8 Gaa. Rr. Caa. 389, 18 OX.R. 139. 
 
520 LIMITATIOi^ OF LIABILITY. 
 
 Carriage of live stock — Special contract — Injury to pkrsons ix 
 
 CHARGE traveling FREE. 
 
 The third parties shipped two carloads of horses over the (h^fendants' 
 line, and placed G. and R. in charge. G. was killed and R. injured while 
 on the defendants' train, through the negligence of the defendants, and in 
 actions brought by the administrator of the estate of G. and by R. against 
 the defendants, judgments were recovered against the defendants for 
 damages for the negligence. The defendants sought indemnity against 
 the third parties, the owners and sliippers of the horses. Special 
 contracts for shipment of live stock were signed by the defendants* 
 agent and by the third parties, the form of contract being that authorized 
 by the Board under the Railway Act. The rate of freight charged was that 
 authorized under Canadian classification No. 14, dated the IStli December, 
 1908, and approved by the Board in cases where the stock is shipped under 
 the terms and conditions of the special contract, which classification con- 
 tains certain general rules governing the transportation of live stock, in- 
 cluding this, that the owner or his agent must accompany each carload, 
 and owners or agents in charge of carloads will be carried free on the 
 same train with their live stock, upon tlieir signing the special contract 
 approved by the Board. G. and R. were carried free, but neither signed the 
 special contract, nor was any pass issued and delivered to either of them 
 embodying its terms, and neither of them knew the contents of the special 
 contract. Upon the face of each contract was written, "Pass man in 
 charge." Among the conditions of the contract were, that the liability of 
 the defendants should l)e restricted to $100 for the loss of any one horse, 
 and that in case of the defendants granting to the shipper or any nominee 
 or nominees of the shipper a pass or privilege less than full fare to ride 
 on the train in which the property is being carried, for the purpose of car- 
 ing for the same while in transit, and at the o\vner'8 risk, then, as to 
 every person so traveling, the defendants are to be entirely free from 
 liability in respect of his death, injury, or damage, and whether it be 
 caused by the negligence of the defendants or their servants or employees, 
 or otherwise howsoever. On the back of the contract, and as part of the 
 document approved by the Board, provision was made for ea^h person en- 
 tilled to free passage to sign his name, followed by a note that agents 
 must require such persons to write their own names on the lines alx)ve. 
 The defendants' agent neglected to observe this direction: — Held, that 
 the third parties owed no duty to the defendants to inform G. and R. of the 
 terms of the special contract. (2) Looking at the express terms of the 
 written contract, including the rule set forth in classification 14, intended 
 for the giiidance of both parties, and having regard to all the circumstances 
 under which the contract was entered into, there was no implied agreement 
 on the part of the third parties to indemnify the defendants, in order to 
 give the transaction such efficacy as both parties must have intended it to 
 have. There would have been no claim against which to be indemnified if 
 the defendants' agent had performed his duty, and it would be contrary 
 to principle to imply an agreement by the third parties to protect the 
 defendants from the consequences of their own carelessness. 
 
 Goldstein v. Can. Pac. Ry. Co.. 21 O.L.R. 575, 12 Can. Ry. Cas. 141. 
 
 [Affirmed in 23 O.L.R. 536, 12 Can. Ry. Cas. 485.] 
 
 Injury to passenger in charge — Shipper of animal — Reduced bate. 
 
 By the terms of a special contract, in a form approved by the Board, it 
 was agreed between the defendants and the plaintiff, a shipper of a horse by 
 the defendants' railway, that the defendants, granting to the plaintiff", 
 traveling on the train in which the horse was being carried, for the pur- 
 
UMITATIOX or LIABILITY. 521 
 
 pose of taking care of it, the privilege of traveling at a reduced far?, 
 •s^faould '''be entirely free from liability in respeet to his death, injury, or 
 damage,^ whetha' caused by negligence or otherwise. The plaintiff, while 
 so traveliBg, was injured, and brou^t this action to recover damages for 
 his injnrj: — ^Held, that the defendants were authorized to make the con- 
 tract, and were thereby relieved from liability to the plaintiff. Ss. 284, 
 340 of the Railway Act, 1906. considered. The word "impairing" in ^ 
 340 is intended to cover the case of total exemption from liability: — Held, 
 also, that it was immaterial whether the plaintiff, who signed the contract, 
 had read it or knew its contents. 
 
 Heller t. Grand Trunk Ry. Co„ 13 Can. Ry. Cas. 363. 25 O.LlR. 117. 
 
 [AfErmed in 25 O.L1.R. 488. 13 Can. Ry. Cas. 367.] 
 
 IXJT^T TO PASSE3GER C\%BSIACr OF HOBSC AXD PASSEXGES. 
 
 By s. 2 (31 i of the Railway Act, 1906, "traffic^ means the traflSc of 
 panimnjTr. goods, and rolling stock: and the provision of the special con- 
 teaet in question in this case (set out in the judgment of Mulock, C^J.. 13 
 Can. By. Cas. 363, 25 O.L.R. 117 > entirely freeing the defendants from lia- 
 Ulity in respect of the death or injury of the passenger traveling in charge 
 ni a horse, both l>eing carried under the one contract, was not a destruction 
 of all liability under the contract, but a limitation to the goods carried: 
 and this came within s. 340 (2) of the Act. Upon this ground, the judg- 
 ment of Mulock. C.'J., was affirmed: Riddell, J., agreeing with the judg- 
 ment as to the meaning of the word "impairing" in &. 340 of the Act; 
 and FalctmiHidge, C.J.K.B., not dissenting therefrom. 
 
 Heller v. Grand Trunk Ry. Co,, 13 Can. Ry. Cas. 367. 25 O.L.R. 48S. 
 2 DJ-R. 114. 
 
 LiABIUTT OF KAILWAT TO CAEETAK^ Of LIVE STOCK — RSBTCES FASC — PmVI- 
 TY OF OOST»ACT. 
 
 One traveling upon a railway in charge of live stock at a reduced fare, 
 wlueh is paid by the shipper of the live stock, is not bound by a special 
 contract between the shipper and the railway company relieving the com- 
 pany from liability in case of Lis death or injury, of which he had no 
 knowledge, to which he was not a party, and from which be derived no 
 benefit. [Goldstein t. Can. Pac. Ry. Co, 23 OJLR. 536: speciallv referred 
 to.] 
 
 Robinson v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 441, 5 D.LuR. 513, 
 26 O.LuR. 437. 
 
 [Reversed in 14 Can. Ry. Cas. 444. 8 D.LR. 1002, 27 O.L.R. 290: re- 
 stored in 47 Can- S.C.R. 622, 15 Can. Ry. Cas. 264, 12 DX.R. e9«J, and 
 reversed again in Grand Trunk Ry. Co. v. Robinscm, [1915] A-C. 740, 19 
 Can. Ry. Cas. 37, 22 D.L.R. 1.] 
 
 I^ABIUTT OF KAILVAT COMPAST TO CABIiTAKEB OF LITE STOCK — REDCCm 
 FABE. 
 
 Oae who travels upon a railway in charge of live stock, at a reduced 
 fare paid by the shipper of the stock under a special contract- between the 
 shipper and the railway company, and pays no fare himself, and has no 
 other ticket or other authorization entitling him to be upon the train at 
 all. cannot be heard to deny that he is traveling under the provisions of 
 the special contract, though he has neither read nor signed it, and is 
 bound by a provision therein relieving the railway company from liability 
 for his death or injury, though caused by the n^ligence of the company. 
 It is within the power of the Board under the provisions of the Railway 
 Act, 1906, to authorize a contract relieving the company from liability to 
 
522 LIMITATION OF LIABILITY. 
 
 one traveling in charge of live stock at a reduced fare, for injuries caused 
 by the negligence of the company or otherwise. [Dicta in Goldstein v. 
 C.P.R., 23 O.L.R. r)36, followed; Robinson v. Grand Trunk Ry. Co., 14 
 Can. Ry. Gas. 441, 26 O.L.R. 437, 5 D.L.R. 513, reversed.] 
 
 Robinson v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 444, 8 D.L.R. 1002. 
 27 O.L.R. 290. 
 
 [Reversed in 16 Can. Ry. Cas. 264, 47 Can. S.C.R. 622, 12 D.L.R. 696, 
 and restored in 19 Can. Ry. Cas. 37, 22 D.L.R. 1, [1915] A.C. 740.] 
 
 Liability of railway to caretake» of stock — Reduced fare. 
 
 One traveling upon a railway in charge of live stock at a reduced fare, 
 which is paid by the shipper of the live stock, is not bound by a special 
 contract between the shipper and the railway company relieving the com- 
 pany from liability in case of his death or injury, of which he had no 
 knowledge, to which he was not a party, and from which he derived no 
 benefit, and where the railway company failed to do what was necessary 
 to bring the special conditions of the contract to the attention of the 
 traveler. [Robinson v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 444, 8 
 D.L.R. 1002, reversed; Robinson v. Grand Trunk Ry. Co., 5 D.L.R. 513, 
 
 14 Can. Ry. Cas. 441, restored.] 
 
 Robinson v. Grand Trunk Ry. Co., 47 Can. S.C.R. 622, 12 D.L.R. 696, 
 
 15 Can. Ry. Cas. 264. 
 
 [Reversed in 19 Can. Ry. Cas. 37.] 
 
 Person in charge of live stock — Negligence — Free pass — Contract 
 
 LIMITING liability OF COIMPANY. 
 
 A railway company is liable in damages for the death of a person 
 caused by the negligence of the company's employees, notwithstanding 
 that the party killed was in charge of liv-e stock and was being carried 
 on a free pass and had signed a contract releasing the company from all 
 liability, where the party signing could not read or write, and could not 
 liave known the nature of the conditions signed, and the company had 
 not done what was reasonably sufficient to give him notice of the con- 
 ditions. 
 
 Can. Pac. Ry. Co. v. Parent, 19 Can. Ry. Cas. 1, 51 Can. S.C.R. 234, 
 21 D.L.R. 681. 
 
 [Reversed in 20 Can. Ry. Cas. 141.] 
 
 JylABILITY TO CARETAKER OF STOCK — REDUCED FARE EXEMPTION FROM LIA- 
 BILITY. 
 
 One who travels upon a railway in charge of live stock, at a reduced 
 fare paid by the shipper of the stock under a special contract between 
 the shipper and the railway company, and pays no fare himself, and 
 has no other ticket or other authorization entitling him to be upon the 
 train, cannot be heard to deny that he is traveling under the provisions 
 of the special contract, though he has neither read nor signed it, and 
 is bound by a provision therein relieving the railway company from 
 liability for his death or injury, though caused by the negligence of the 
 company. [Robinson v. Grand Tnmk Ry. Co., 47 Can. S.C.R. 622, 15 Can. 
 Ry. Cas. 264, 12 D.L.R. 696, reversed.] 
 
 Grand Trunk Ry. Co. v. Robinson, 19 Can. Ry. Cas. 1, [1915] A.C. 
 740, 22 D.L.R. 1. 
 
 CARRiEsts — Live stock — ^Injury to caretaker. 
 
 A condition in a live stock contract between shippers and a railway 
 company, relieving the company of liability for injury or death of men 
 
LDIITATIOX OF LIAUIUTY. 523 
 
 m diai:^ of attle vhile betng carried br the ralhraT, is biadiag oa the 
 Mm so is eharige if ther acc^ paa$e&, granted under tlie coatraet coatain- 
 ing subi»taiKe of the eonditioiis, the a««ptaii^ <»- otherarise is a questi<» 
 of fact. [Can. Put. 1^. Co. t. Parent, 21 DXJL «81, 51 Can. S.C.R- 2S4. 
 19 Can. Ry. Cas. 1, rererwd.] 
 
 Can. Pae. Ry. Col t. Plucat, 20 Can. Ry. Cas. 141, £1917] A.C. 1»5. 
 33DJ..^12. 
 
 •f Baoaee. 
 lioss or »^co«a8 — ^KoncE or coxomoxs. 
 
 The ^aintiff pnrchased froa> an aeeat of the defendants at Ottava 
 vhat va» called a land-seeker's ticket, the only kind of return ticket 
 iasned on the route, for a putmtge to Winnip^ and return, paying sone 
 thirty doHars Ies» thaa the single fare eaeh vay. The ticket was not trans- 
 ferable and had printed on it a number of conditions, one of vfaich linutcd 
 the liability of the coaapaay for baggage to veariag appard not czcccdi^ 
 SIOO in Talne, and auaother required the signature ct the iwufnyr for 
 the porpooe of identifieatiaa and to prevent a transfer. The agent ob- 
 tained the plaintiff's signature to the ticket, explaining that it vas for 
 the fipoat oi identification, but did not zead nor crylain to ho- any of 
 the coaditicasi, and having :iore eyes at the time she nas unable to read 
 thna hcndL On the trip to Winnipeg an accident haj^ened to the train 
 and plaintiirs baggage, valued at over #1,000, f ught fire and vas de- 
 stroyed. In an action for damages for sudi loan the jury found for the 
 ptaintiff for the amount of the alleged value of the baggage: — ^Held, re- 
 Tcrnng the judgment of the Court of Appeal. 1.) A.R. tOnt.* 3SS. and 
 the Drriaaaawl Court. 14 O.IL 625. Gvynne. J., di»^ntin«r, that there was 
 anfirient evidence that the lose of the baggage was caused by defendants' 
 ■ei^ligenee, and the special conditions printed on the ticket not having 
 been broo^t to the notice of plaintiff she was not bound by them and 
 canU recover her loss from the company. 15 JLR. (Ont.) %S, 14 OJL 
 CSS, leieised. 
 
 Bate V. Can. P*c. Ry. Co., 18 Can. S.CJS. 697. 1 Cam. S.C. Cas. 10. 
 
 [Considered in Robertson r. Grand Trunk Ry. Cot, 24 O.R. 75; dis- 
 cnssed in Cobban v. Can. Pac. Ry. Co.. 26 O.R. 732; distinguished in 
 C o ow ha ▼. The Queen, 26 Can. S.C.R. 15: Mowat v. Provident Assurance 
 Cou 27 A.S. (Ont.) 675; Providmt Saving Life Assor. Soc. v. Mowat, 
 32 Can. S.C.R. 161: Robertson v. Grand Trunk Ry. Co., 21 A.R. (Ont.t 
 204. 24 Can. S.C-R. 611: Sibbald v. Grand Trunk Rj. Co., 18 A.R. (Ont.) 
 184: explained in Robertson v. Grand Trunk Ry. Co., 24 Can. S-C.R. 
 617; referred to in Grand Trunk Ry. Co. v. Sibbald, 20 Can. S.CR. 265: 
 LasMnt V. Can. Transfer Co., 19 O.Lr. 291.] 
 
 BafiCAfiE acuvEBT sexvice — Notice oe coM»mo:\s. 
 
 The acceptance from a carrier of a receipt on whidi conditions are 
 printed limiting his liability, creates no presumption of knowledge of 
 tibem a^inst the aceeptw. within the BManing of art. 1676, C.C. (Qne^). 
 which KmitB tte operatian ot smA printed notices to thoce who have 
 knowledge of them. 
 
 Conway v. Caaadian Transfer Co., 40 Que. S.C. 8». 
 
 TMAXyirem coxraxr — ^Lost kacgage — RECEirr — Coxamox UMRcrc ua- 
 
 aiUTT. 
 
 [See note of this case under Carriers of Goods (B».] 
 LaBMmt V. Canadiaa Transfer Col, 9 Can. Rv. Ca& 3S7. 19 OX.JL 
 291. 
 
 [Disti^uished ia ^eaeer v. Can. Pae. Ry. Co., 16 Can. Ry. Cas. 207.] 
 
524 LIMITATIOX OF LIABILITY. 
 
 Baggage of passkngeb — Condition on back of check. 
 
 A passenger who checks his baggage on a ticket previously purchased 
 is not bound by a condition printed on the chock but not on the ticket, 
 limiting the liability of the carrier in case of loss, where such condition 
 was Jiot brought to the notice of the passenger, and tlie circumstances 
 disclosed no assent either actual or constructive to such condition by the 
 passenger. [Lamont v. Canadian Transfer Co., 9 Can. Ky. Cas. 387, 19 
 O.L.R. 291, considered.] 
 
 Spencer v. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 207, 13 D.L.R. 836. 29 
 O.L.R. 122. 
 
 Check-room — Condition on beceipt. 
 
 The liability of a common carrier with respect to baggage checked for 
 safe keeping is that of a bailee for hire, and lie is liable for a loss thereof 
 through misdelivery notwithstanding a condition on the receipt limiting 
 the liability, of which the holder had no notice. 
 
 McEvoy V. Grand Trunk Ry. Co., 35 D.L.R. 301. 
 
 D. Express Companies. 
 Cakbiage by expbess — Liability fob safety of goods — Oxus of proof. 
 
 (1) An express company which formally undertakes to forward goods 
 is not a mere agent or intermediary between the shipper and the actual 
 carriers. It is itself a common carrier, and, as such, liable for the safe 
 carriage and delivery of the goods, and the onus of proof is on it to 
 shew that loss of them is due to irresistible force or the act of God. (2) 
 A clause in a bill of lading for goods forwarded by express that the 
 company will not be bound, in case of loss, beyond a stated amount un- 
 less their value be declared in it. is valid and binding. 
 
 Dominion Express Co. v. Rutenlx>rg, 18 Que. K.B. 53, 5 E.L.R. 314. 
 
 CONNECTIXO lines — RESPONSIBILITY FOB GOODS DA JI AGED OUBIXG TRANSIT. 
 
 An express company is not responsible for the damages to goods en- 
 trusted for carriage, when the accident happened on another and connecting 
 line of transfer, and the bill of lading contained a clause by Avhich the 
 company was relieved from any liability if the loss or injury happened at 
 a place beyond its lines or control. 
 
 Neil v. American Express Co., 2 Can. Ry. Cas. Ill, 20 Que. S.C. 253. 
 
 LIABILITY' FOR GBOSS NBX3LIGENCE. 
 
 A special condition that the defendants should not be liable for loss or 
 damage, tmless it should be proved to have occurred from the gross neg- 
 ligence of the defendants or their servants, did not avail the defendants, 
 because the railway companies employed by the defendants for the trans- 
 action of their business were to be regarded as the defendants' servants, 
 and the negligence was to be accounted gross negligence. 
 
 James Co. v. Dominion Express Co., 6 Can. Ry. Cas. 309, 13 O.L.R. 211. 
 
 [Approved in Dominion Express Co. v. Rutenberg, 18 Que. K.B. 53.] 
 
 Privity of coxtbact — Liability in tort. 
 
 The plaintiff delivered to the Dominion Express Co. at Toronto goods 
 for transmission to Quebec. The goods were being carried in a car upon 
 the defendants' railway, when a collision took place, and the goods wen^ 
 destroyed; the car was the defendants', but the contents were wholly uii. 
 der the control and in the possession and \nider the ])hysit'al oversight of 
 a servant of the express company: — Held, that, although there was no 
 
LIMITATIOX OF LIABILITY. 
 
 020 
 
 foiritj of cmtiaet between the plaiatiff aad the defcaduits, the plun- 
 tiff had a sood caoae of actioB is tort. [Berinr o# the au^orities..] The 
 shippii^ bin eoatained rarioos pnmsioBS luutiag the lialMlitT «l the ex- 
 press conpaaj, iater alia, alao, this pnnisioB: '^And it 15 also nader- 
 stood that the stipoIatioB eoBtained hereia shall extesd to and enurp to 
 the bcaefit of each and erery eompanv or persm to vhom. throii«;li Ihi^ 
 cnmpaBT, the belov de^eribed pn^iertT BiaT be iatmsted or delirerfMl for 
 transpottatioB": — Held, opon a coostnirtioo of the whole shipping bill, 
 that the defeadants were not a eompanr to whom. thioD«h the express!' 
 ctrnpaBT. the propertx was intrasted or deliTrred for traasportatioa, aad 
 the goods were, therefore, not beiii« earried by theaa mder a special eoa- 
 tiact with the plaintiff: and ther were liable as in tort for the ralne of the 
 goods. [Lake Erie i Detroit 'River Br. Co. t. Sales (1893^. :f6 Can. 
 SLCJS. 663. dietingnisbed.] Qnaere. whether, if the def»dants had been 
 soch a company, thex coaM have taken adrantaiie of a contnct made by 
 another company for their benefit, but without their privity. 
 
 Allen T. Can.' Par. Ry. Co., 10 Can. Ry. Cas. 408. 19 OxIr. 510. 
 
 [Affirmed in 21 O.L.R. -116. 10 Can. Ry. Cas. 424: relied on in Dnryea 
 r. Kanffman, 21 O.L.R. 161; referred to in British Columbia Elec. Ry. 
 GoL T. Crampton. 43 Can. S.CJL 7, 10 Can. Ry. CasL 266.] 
 
 LiABOLmr Es tobt — Absence or fmtttt. 
 
 The plaintiff delivered to the Dominion Exprcs? Co. at Toronto a trunk 
 «f vahmhie samfdes to be carried to Qoebee. The company ^ave him a 
 Tceapt thoefor, whereby, as he failed to place a value on the articles in the 
 tnmk, their value was fixed, as between him and the company, at $50. 
 The conpany was an independent company, <^ierating^ upon the lines of 
 railway of the defendants in Canada, under a general agreement with the 
 defendants, by one clause of which the e3Lpress ecMnpany as^^umed all re- 
 spoaaihilitf for and asreed to satisfy all valid claims for the loss of or 
 damage to express matter in its charge, and to htM the defendants harm- 
 less and indemnified against such claimg. The trunk was placed by the 
 espreas company in a car of the defodaats upon the defendants' railway. 
 and was there, in charge of the e3q)ress company's servant, when a col- 
 lision oerarred. as a result of which a fire took place, and the trunk and 
 cont^ts were destroyed. The defendants admitted that the collisaon was 
 cansed by the n^ligence of their servants: — HekL that an action in tort 
 lay against the defendants for the loss of the goods; tiie d^endants were 
 liable for their ''active*^ n^ligence in brii^ing about the eollisioB: — 
 Hdd, also, that the defendants were not entitled, as a^inst the plaintiff, 
 to tte exemption from liability stipnlaied for in tiieir agreement with 
 the express company, under which they received and were earryinz^ the 
 goods: nor to the benefit of the limitation of liability to &50 provided f«- 
 in the plaintiff's emtract with the express company: for to the first 
 agiuuBiat the plaintiff was a stranger, and to the <econd the defendants 
 were in the same position: and, in addition, the exemption clauses should 
 be construed strictly, and the exemptions claimed would not extend to 
 inelnde an act of collateral or "active" negligence. [3lartin v. Great In- 
 dian Peainsular Ry. Co. (1867>. LJL 3 Ex. 9. spenally referred to. Lake 
 Erie k Detnut River Ry. Co. v. Sales (1896). 26 Can. S.C.R. 663. dis- 
 tinguished.] SmUe: — that, if the agrveneat between the plaintiff and 
 the express contpaay had any application, the clause "that the stipulation 
 nmtaiacd hereia dmD extend to and inure to the benefit of each and every 
 eaofMaT or person to whmn throosh this company the below deserii>ed 
 property amy be inteusted or delivered for transportation'' did not apply 
 to the defendants, but to a person or company beyond the line of the de- 
 
526 LIMITATION OF LIABILITY. 
 
 fendants' railway, to wliom it might be necessary for the express company 
 to part with the property in order that it should reach its destination. 
 
 Allen V. Can. Pac. Ry. Co., 10 Can. Ry. Cas. 424, 21 O.L.R. 416. 
 
 [Judgment of Riddell, J., 19 O.L.R. 510, 10 Can. Ry. Cas. 408, affirmed.] 
 
 Company's receipt to pabty other than thkir customer — Speciai. 
 conditions. 
 
 A person who forwards his railway baggage cliecks to an express com- 
 pany with instructions to take delivery of the baggage and reforward it 
 by express may claim damages for its loss in transit while in their cus- 
 tody as upon the company's common-law liability, and is not bound by a 
 condition of a shipping receipt issued to the railway company on receiv- 
 ing delivery from it, purporting to limit the maximum liability of the 
 express company in case of loss, where the contract evidenced by such 
 shipping receipt is in terms made between the express company and the 
 railway company only and its provisions were not communicated to the 
 owner of the baggage. The fact that an express company is enabled by 
 statute to make use of a special form of contract impairing, restricting, 
 or limiting its liability does not prevent the company from contracting 
 upon the basis of a more extended liability as upon its contractual rights 
 at common law, although such special form has received the approval of 
 the Board, exercising governmental powers of supervision over common 
 carriers. 
 
 Wilkinson v. Canadian Express Co. (Ont.), 14 Can. Ry. Cas. 267, 7 
 D.L.R. 450. 
 
 [See Edwards v. Sherratt, 1 East. 604; Lohden v. Calder, 14 Times 
 L.R. 311; Hayward v. Can. Northern Ry. Co., 6 Can. Rv. Cas. 411; Merc- 
 er V. C.P.R., 8 Can. Ry. Cas. 372.] 
 
 LIQUOR SHIPMENT. 
 
 See Crimes and Offences. 
 
 LIVE STOCK. 
 
 See Carriage of Live Stock; Fences and Cattle Guards; Limitation of 
 Liability (B.). 
 
 LOCATION. 
 
 See Construction and Location. 
 
 LOCOMOTIVES. 
 
 Causing fires, see Fires. 
 
 Injuries to animals, see Fences and Cattle Guards. 
 
 Excessive spood, see Crossing Injuries; Carriers of Passengers; High- 
 way Crossings; Railway Crossings. 
 
 LORD CAMPBELL'S ACT. 
 
 See Negligence; Employees; Pleading and Practice; Government Rail- 
 ways. 
 
 Right of action in one province for death occasioned in another, see 
 Conflict of Laws. 
 
MAXDAMUS. 527 
 
 JjOBSrS BAY ACT. 
 See Saadaj Timfie; CoBstitutkiMLl I^w. 
 
 MAUCIOX7S PIlOSECUnOH. 
 See False AmsL 
 
 MAia)AMnS. 
 
 Maadaams compeUia^ street railvay to ^iwifieallT peifw eoatract 
 antk amaictpalitr rvspeetiag street car s^riee, see Stzeet BaOwaja. 
 MaadaBMK caforan^ passcager acgnanatodatioa aad rat^ see ToIU aod 
 
 ^^ctfcer aiaadaiiw iajnac'tioa, specifie performanee <nr damages, is tlie 
 j KUfti n inlj far the enforcement of covenaats br railvar eompaaies. 
 1 Cka. Rt. Cas. 294. note (4». 
 
 liawdaiwns eompelliag transfer of shares. 7 Can. ^. Gas. 373. 
 
 Bekotal of kailvat fexces — JrKi$aicTio3r or boakd. 
 
 The ranranrence of three conditions is neces<sarT to ^re a right to pro- 
 ceed br anndanms — (a^ an imperatire cArial daty to be pofonned br 
 a public body or officer; (hi a refusal to perfcmn it: (e) the absence of 
 aaj other reco«irse to ranedr the conaeqoenccs of such refosaL There is 
 no inqierative dntr cast on a miinieipal corporation to eanse the rasoval 
 of fences placed on one of its roads by the Fed«aJ GoreraaiMit at a point 
 vhere GoTerament railway crosses it. And the Railway Act, 1903. gires 
 to the Board power to hear and determine eomplauits arising- oat of sncfa 
 a BUitter and its jorisdiction excludes that <rf the ordinary Courts. For 
 these icaasMs the ronedy by mandamos against the corpwatioa is not 
 open. 
 
 Carrier x. St. Henri. 30 Que. S.C. 45. 
 
 Casbiage of passexcgks — Rates axv acoommodatioxs — Emublemext. 
 
 Two questions must be found in faroor of the applicant before the writ 
 of prerogatire anndaBOs can issoe: First, has the ai^Hcaat a specific 
 l^al right to the perforaiance of sonw duty by the respondent; and. 
 second. wUl the applicant without the ben^t of the writ he left without 
 liiiilml remedy? Where the applicant sought a mandamus to compel 
 the Grand Tmak Ry. Co.. pursuant to & 3 of their Act of ineorpontiai, 
 IS VicL e. 37 (D.), to run a train aMttainiag third-cla:^ carriages, and to 
 permit the applicant to travel therein on payment of a fare not exceeding 
 one penny a mile: — ^Held. that the applicant had an adequate remedy 
 msder tk prarisiowi <rf the Railway Act, 1903 (ss. 8. 23. 23, 44, 214. 294. 
 hei^ specially referred to), and that that remedy could be more conven- 
 iently applkd and executed under the direction and superrision of the 
 Board than by the Court; and the application was refused. 
 
 Re Robertson and Grand Trunk Ry. Cou 6 Can. Ry. Cas. 490, 14 OJUR. 
 497. 
 
 [See Bohertaon t. Grand Trunk Ry. Col, 6 Can. Ry. C^ 494.] 
 
 COXPn-SOCT EXmOFSIATIOX — COMPEXSATIOS. 
 
 Where thoe is no contract between the parties respecting land taken by 
 a railway company for a right-of-way, the landowner may be oititled to 
 rdic^ under Rule 879 of the King's Bench, by way of mandamus to com- 
 
5->8 MANDAMUS. 
 
 pel the company to proc<»ed to liavo compensation determined under the 
 provisions of the Railway Act, 190G. 
 
 Carr v. Can. Northern Ry. Co., 7 Can. Ry. Cas. 238, 17 Man. L.R. 178. 
 
 Shares — Tbansfer on company's books — Mandamus to knforce trans- 
 fer. 
 
 The owner of two shares of stock in the defendants' railway, assigned 
 them to the plaintiff, endorsing the assignment on the certilicate. The 
 plaintiff called at the head office and demanded that the necessary transfer 
 should be made on the company's books, and also saw the president; and. 
 after some correspondence, the transfer not having been made, he procured 
 a duplicate assignment of the stock, and placed the matter in the hands of 
 his solicitor, who thercui)on wrote the company demanding a transfer, and 
 enclosed one of the duplicate assignments, and stated that he would at- 
 tend on a named hour, ready to surrender the certificate, and have the 
 transfer completed, and, on receiving a reply that it could not be attended 
 to, this action was brought, in which an order for a mandamus was 
 claimed. An interlocutory order made by a Judge in Chambers directing 
 a mandamus to issue, was, on appeal to the Divisional. Court, set aside, 
 and the matter left for decision at the trial. 
 
 Nelles v. Windsor, Essex & Lake Shore Rapid Ry. Co., 16 O.LlR, 359, 
 7 Can. Ry. Cas. 367. 
 
 Duty of company to take lands. 
 
 A railway company, in its requirement of right-of-way, included, inter 
 jilia, land in which the ])laintiff had a leasehold interest, but the right-of- 
 way was at no time wliolly upon the plaintiff's property, tlie greater por- 
 tion being upon adjoining lands. The company, without proceeding to ar- 
 bitration, acquired tlie interest of the plaintiff's lessor, and built its road 
 clear of but adjoining that portion of the indicated right-of-way over the 
 land in which the plaintiff was interested. In an action to compel the 
 company to acquire and pay for the right-of-way as indicated, the 
 company contended that it could be compelled to pay for only that portion 
 of the right-of-way which it actually took possession of, and Irving, J., at 
 the trial, dismissed that contention and held that the plaintiff was in- 
 juriously affected by the construction and operation of the railway: — 
 Held, on appeal, Martin, J. A., dissenting, that the trial Judge was right. 
 
 [McDonald v. Vancouver, Victoria & Eastern Ry., etc., Co., 12 Can. Ry. 
 Cas. 67, 15 B.C.R. 315. 
 
 [Reversed in 44 Can. S.C.R. 65, 12 Can. Ry. Cas. 74.] 
 
 Action to compel expropriation — Cojipensation. 
 
 The approval and registration of plansS, etc., of the located area of the 
 right-of-way, under the provisions of the Railway Act, 1006, and the 
 subsequent construction and operation of a railway along such area, do not 
 render the railway company liable to mandamus ordering the expropriation 
 of a portion of the lands shewn upon the plans which has not been phys- 
 ically occupied by the permanent way so constructed and operated. 
 Judgment appealed from, 12 Can. Ry. Cas. 67, 15 B.C.R. 315, reversed, 
 Fitzpatrick, C.J., and Davies, J., dissenting. 
 
 Vancouver, Victoria & Eastern Ry., etc., Co. v. McDonald, 12 Can. Ry. 
 Cas. 74, 44 Can. S.C.R. 65. 
 
 AIABCONI WIRELESS. 
 
 See Telegraphs, 
 
MECHANICS' LIEX. 529 
 
 MASTER AHD SESVAHT. 
 See EmpIoTccs. 
 
 ABBOtatiflD. 
 
 Applicability of rule of re< ipsa loqnitnr. ^ Can. Bj. Cas. 305. 
 
 MEAI. TICKETS. 
 
 Ooatract of railwar company vith rpstanraiit keeper for the sappiy of 
 leals to onployecs, see Caatnct^. 
 
 MBCBANICS' UEH. 
 MfiCHAxics' IfEX Act — Domtxios »aii.wat. 
 
 A lico under the Mechanics* and Wa^ Earners* Lien Art, RS.O. 1897. 
 e. 153. cannot be enforced against the railiray of a company incorporated 
 under a Dnninion Act. and declared thereby to be a company incorporated 
 fw the general advantage of Canada. Decision of a Dirisional Court, 13 
 O.L.R. 169. 6 Can. Ry. Cas. 300. affirmed. 
 
 Crawford v. Tilden'et aL. 6 Can. Ry. Cas. 437, 14 OX.R. 572. 
 
 31e)cha3(Ics* A5D Wage-Ea«xe«s' Ljex Act — ^Xor KsrvmcKABLe. agassst 
 
 DOMIXIO^ aAILWAT COSSTI n TIOITAI. LAW. 
 
 A lien under the Mechanics' and Wage-Earners' Lien Act. R.S.O. 1914. 
 c. 140. cannot be enforced against a railway company incorimrated under 
 Dominion Act. [Crawford t. Tilden. 6 Can!. Ry. Casl 437. 14 O.LR. 572. 
 f«dlowed; Johnson & Carey Co. r. Can. Xorthern Ry. Co.. 43 OX^R. 10, af- 
 firmed on this point.] Where the lien cannot be mforced against the 
 prt^ierty of the company, no Talid lien, which justifies the plaintiff in 
 proceeding to judgment under s. 49 of the Act. can be established. [John- 
 son t Carey Co. v. Can. Northern Ry. Co.. 43 OJ^. 10. reversed.] 
 
 Johnson k Carey Co.. t. Can. Northern Ry. Cbs 24 Can. Ry. C^s. 294. 
 44 OJjJR. 533, 47'dX.R. 75. 
 
 MEDICAI. ATTENTION. 
 
 See Health Protection. 
 
 Compensation for medical attention, see Damages. 
 
 Duty of railway company as to persons injured, see Employees. 
 
 ArTH<»rrr or eailway officiai. to exgage PHTSicxuf to kexo^ sfcK* l e i K 
 TO FEXsox rxjrsED. 
 
 Where a person has been injured by a railway accident, the highest 
 (rficial of the company on the ground has authority to bind the company 
 for the cost of such medical services and attendance as may be immediately 
 requisite. And where the facts were reported by such official to the 
 c<Hnpany immediately, and no disavowal or counter order wa« sent to the 
 physician engaged imtil seven weeks later, the company is responsible to 
 the physician engaged for the value of his medical attendance and services 
 during this period. 
 
 Gandreau v. Canada Atlantic Ry. Co., 24 Que S.C. 337. 
 
 MINES AND MINE&AI1& 
 See Title to I^nds. 
 CompoisatioB for, see Expn^iatiosi. 
 Gn. Ry. L. IMg.— 34. 
 
,30 NEGLIGENCE. 
 
 MONEY OBDEBS. 
 
 Claims for loss of money, see Claims. 
 
 Authority of agents to receive money orders, see Agents. 
 
 M0BTGA6ES. 
 
 See Bonds and Securities. 
 
 MOTIONS. 
 
 See Pleading and Practice. 
 
 MUNICIPAL OWNEBSHIP. 
 
 Municipal ownership of street railways, see Street Railways. 
 See Limitation of Actions. 
 
 MUNICIPALITY. 
 
 As party interested in protection of highway crossings, see Highway 
 Crossings. 
 
 Municipal assent, see Street Railways; Highway Crossings. 
 
 Actions for negligent construction or operation of municipally owned 
 street railway, see Limitation of Actions. 
 
 NAVIGATION. 
 
 Obstruction of navigation, see Waters. 
 
 NEGLIGENCE. 
 
 A. In General. 
 
 B. Contributory Negligence. 
 
 C. Ultimate Negligence. 
 
 D. Injuries to Children. 
 
 E. Injuries to Husband or Wife. 
 
 F. Lord Campbell's Act. 
 
 Injuries while visiting railway yard, see Warehouse, Yards and Work- 
 shops. 
 
 Lex Loci Actus as affecting liability for tort, see Conflict of Laws. 
 
 Injuries occuring on Government railways, see Government Railways. 
 
 Injuries occasioned by reason of defective station grounds, see Stations. 
 
 Accidents occurring on bridges, see Bridges. 
 
 As creating nuisance, see Nuisance. 
 
 Injuries caused by fires, see Fires. 
 
 Injuries on street railways, see also Street Railways. 
 
 Injuries to employees, see Employees. 
 
 Injuries at crossings, see Crossing Injuries. 
 
 Damage occasioned by reason of construction of railway, see Expropria- 
 tion. 
 
 Injuries to passengers, see Carriers of Passengers. 
 
 Loss or damage to goods, see Carriers of Goods. 
 
 Injuries to live stock, see Carriage of Live Stock; Fences and Cattle 
 Guards. 
 
 Injuries or damage resulting from the accumulation of weeds, see Weeds. 
 
KEGLIGEXCE. 531 
 
 X^l^cMW of nOvaj hum 1 1 rtli iii m Makn^ fake arrest, see Fake Anv«t. 
 
 iBJaris fwi bf mL^Ogimu. of eapkrave^ see LimitatioB of UabOHr; 
 
 Cuncn «f 
 
 CoBtribHtHy mftUftU M X at ki^vaj«. 1 Caa. Ry. Cas. 3». 
 
 Xc^^ace aad eoBtiilmtarj mr^hgmtx. 1 Caa. Bj. Oas. 403, 4 On. By. 
 
 Ca^ i!^ 
 
 Lford CaapbelFs JLtt; Measure aad apponkmiMat 4rf daaucea. 2 Caa. 
 Ky. Gml 18l 
 
 Sfcpif>tBce and^ tlte aB iiiiita i of ehildrea to ^ans of daagcr. 2 
 Go. Rjr. Ca>. 230. 
 
 ISt^gemoe oa traia of aaotker canpaar. 2 Cm. Rj. Gul S9. 
 
 Beviev of ca«s of m^JOgiMiJu 3 Caa. Rjr. Gul 31fi. 
 
 la jiMa to dkOirea it taut qm mt til failnre to feace railvaT pnwses. 
 4 Caa. Rj-. Cas. 11. 
 
 iBJaries to ckildrca trtsfamamg oa railaaT prcaueesu 9 Caa. Rj. Ckc 
 
 Uitnnte ac^igcaccL 12 Caa. Rt. Ca& lOi. 40 DX.B. 103. 
 
 fJ T»»<B>P!f aad tzcsfa«<!<Ts. 9 Caa. Bj. Ca^. 3«0; 12 Caa. Bjr. Caa. 245l 
 
 FucatB daia aader Fatal Aecidnts Lav, Lard CiMfhilTa AdL la 
 IlLLB.Sai. 
 
 'St^bgtmat or aritfal art or oaussiaa. 3a DX^B. 481. 
 
 ImtomfeUM tmfkmr. IS Caa. 1^. Ca^. 2Ml 
 
 Rtradk of rtatirtarr Anr. IS Caa. Bt. Cas. 2S4. 
 
 D rfwti ie STsttm aad previses. 18 Caa. By. Cms. 2S3l 
 
 CoMBOB ca^BTMnt. 18 Caa. ^. Ca;i. 283. 
 
 Specific aad gcarral allr^tkias of ar^ti^caeF. 19 Caa. Br. Caa. 213. 
 
 Xaiaaace aatkoriaed br Hmkipal W-lav aatkoriied bjr ^tniaoal stat- 
 ate. 19 Caa. Rj. Ca*. 239. 
 
 lajarics caused bnr iatcrfdeace vitk da^gooaa ttfBfmtmL. 19 Caa^ Rj. 
 Cos. 243. 
 
 Uhnaate ac^li^cace. 31 Caa. Br. Cas. 388. 
 
 Jkaiauk at lar;^. 21 Caa. Br.'Cas. 133. 
 
 Doctriae of res ipoa lo^ aitor . 23 Caa. Bt. Gis. 3QiL 
 
 A. b Omrnl 
 
 JoccT orcsATiox or bailvat — RE:»rox«JxuLnT fob act or jtKjrr iMrurnm, 
 — ^Tbaffk uatgrMETT- 
 
 Whcre by lAe ar^ligface of tke tiaia dcspatcber ea^agcd by the 6.TJL 
 Cou aad aadn* its cootnrf aad directioas, iajuriiFS wtrt caased by a eoUiaaa 
 of two LC.B. traias ea tbe aaigle track of a portioa of tbe G.T. By. oper- 
 ated ^dkr the joiat tiaJSr agrecaeat. ratified by the AdU 62 4 83 Viet. 
 t. 5 (D.), the coaipaay is liabfe, aotntkstaadias that the tnia despatcher 
 vas declared by the a gieeta t to be ia the joiat iiphiy of tihe Cron and 
 the railvay fwpaay. aad the Crova «a« thereby nbtigrd to pay a portian 
 of his salary. Jadgawat aj^ealed frua. affiraed. 
 
 G^aad Traak By. Co. r. Hoard. 3« Caa. S.C.B. 833. 
 
 Lobs or xmcB — Xorncs or coxamoxs. 
 
 [See aole of this caw nader Liwtatioa of Liability (CI.] 
 
 Bate T. Cam. Pte. By. (1S89K 1 Cam. &C. Ca& 10, 18 Cka. &CLB. 897. 
 
532 NEGLIGENCE. 
 
 Liability of joint owners — Joint ownership of the crown and a 
 
 PRIVATE company. 
 
 When the trains of two railways run over a section of the line of one of 
 them, under an agreement which provides, inter alia, that the servants 
 employed on the section in common use, shall be considered, and sliall be, in 
 fact, in the joint employ of the owners of the two railways, the latter are 
 both jointly and severally liable for the consequences of a collision of two 
 trains belonging to one of them, caused by the fault or neglect of a servant 
 so employed. If, therefore, one of the railways is the property of the 
 Crown, and the other of a ])rivatc companj-. the latter is liable in damages 
 as sole tortfeasor. [Atkinson v. Grand Trunk Ry. Co., 27 Que. S.C. 227, 
 affirmed.] 
 
 Atkinson v. Grand Trunk Ry. Co., 36 Can. S.C.R. 655. 
 
 Statutory rules for running of trains — Observance by employees. 
 
 The provisions of the Railway Act for the protection and safety of the 
 public are not supposed to provide for all possible contingencies and the 
 fact that mechanics and officials in charge of trains have observed tliem 
 does not suffice to relieve their employers from liability in case of acci- 
 dent. They are also bound to act witli ordinary prudence; for example, 
 trains should not be run at the maximum speed prescribed in places where 
 there is danger in doing so. 
 
 Grand Trunk Ry. Co. v. Fecteau, 20 Que. K.J3, 131. 
 
 Person killed between tracks and platform — Trespassh:r or licensee 
 — New trial. 
 Carruthers v. Toronto & York Radial Ry. Co., 19 O.W.R. 983, 3 O.VV.N 
 14. 
 
 Unlocked turntable — Infant. 
 
 Can. Pac, Ry. v. Coley, 3 E.L.R. 126 (Que.). 
 
 Walking on track in a stormy day — Liability of railw.w for death. 
 Grand Trunk Ry. Co. v. Parent, 7 D.L.R. 810. 
 
 Bkkaoh of statutory duty — Right of action. 
 
 Where a statutory duty is imposed, neglect of the duty gives the party 
 damnified thereby a right of action, unless the person damnified is excluded 
 from a particular class of persons who are alone intended to be benefited 
 by the statute. 
 
 Winterburn v. Edmonton, Yukon & Pac. Ry. Co., 9 Can. Ry. Cas. 7, 1 
 Alta. L.R. 298. 
 
 Proximate cause — Injury caused by a thing — Fault of the owner. 
 
 In an action of damages for an injury caused by a thing, it is incumbent 
 upon the plaintiff to establish affirmatively, not only the damage claimed, 
 but also fault, negligence or imprudence on the part of the defendant, as 
 owner or person having the care of the thing. Such ownership or care has 
 not, in law, the efTect of placing upon the defendant the burden of proving 
 negatively the absence of fault on his part, or that of his servants. 
 
 Can. Pac. Ry. Co. v. Dionne, 10 Can. Ry. Cas. 57, 18 Que. K.B. 385. 
 
 [Relied on in Shawinigan Carbide Co. v. Doucet, 42 Can. S.C.R. 306, 18 
 Que. K.B. 288.] 
 
 Injury to trespasser — Excessive speed — Proximate cause. 
 
 A railway company may be liable for injury to a trespasser upon the 
 
XEGLIGEXCE. 533 
 
 ri^t-ni^mmj ia brauk of «. 408 of Ike Baihraj Adt, IMS, if tkdr e^pmt 
 drircr tgl ec to d to apj^ the imiij^ibij bcakes at the Umte he bceaaw avane 
 of the daagu of accideat vhea he first aotked deceased atteaqtii^ to 
 oves the txadks. 
 
 rmarirk t. Caa. Vme. Rr. Ccl. 1± DXJS. 3C7. IS Gu. Rr. Ck;<. 393, re- 
 versed: JodgaMsat of B.C. Court of Affol (aot ivportcdK affinnedL] 
 
 Caa. Pac By. Co. t. Hiarirh, 16 Caa. Kt. Ca& 303, 4I« Can. S.C.K. mT, 15 
 DlKS. 472. 
 
 LoOOMOniVB E^WEVEEB — ^DFTIES JkS TO nSCACTIOX — Cotxisiox. 
 
 A limiMiiliie co^iaMr or other railvar eatpSoree havii^ caalnd of the 
 trM^s, affccr becoauap aware of the prr^oK^ of aaj pn^soa daageranshr 
 aear the tract, homrrer iaiprDdnitlT. i$ booad to lee ordiaaiy earr to 
 avoid iajnnr to hiat vhea he kaovs that the danger of cdIUsmm is noai- 
 Bcat; ■«« kaoakdgr that fke daager is poesihle b aot ^MN^h, thoe bie$c 
 be kao«-led|ge that a colIisioB was likefy to oecar. (mils t. Jj«tsti«^, 13 
 A.C. 1; Pordr t. G.T. Rt. Col C1904n. COat.). nan^iortcd: Jones t. Toroato 
 4 Yoft Radkl Co., 23 0X.R. 331, 1± Caa. Rr. CasL 436; Weir x. C.PJL, 
 16 AJL fOat.», len, referred toL] 
 
 LoadoB T. Gruid Trnak Ry. Col: Soaiaias t. Grand Tmak Rj. Cd., 
 18 Caa. Rt. Cas. 174, 3f OJLR. 6ti 39 DJL.R- S46. 
 
 Tiwii I or jrcT — ^DntEcr jicr oa osussiox cjirsrxG e^jtbt — PsESTMr- 
 
 T»X. 
 
 A fiadiag hy the jnrjr ia a aegligeaee aetioa ag^iast aa deetric railaar 
 eoaqpaar that &e defeadants vac sniItT of aegfi^eaee coaastii^ of the mo- 
 ttmrf" haag iaci — p eteat of maaiag the car will aot ia itself be snffidwat 
 to rmdcr the coaqiaaj liaUe naksss it is provied ia eridenoe aad fooad W 
 the jorr that the iaroBpetcace oi the ■otoraiaa resulted ia sane detiaite 
 act or oBissioB which was Ae direct eavse of the iajnnr. Where the oalj 
 fiadiag of the jarr oa the question of acgUgeace in a coUieiaB ease agaias4 
 an deeftrie railwaj campaar was. that the defendants were a cglig e B t ia 
 a^oiatiBg aa ineoa^eteat Botoniaa, it is to be assaned that the jnrjr 
 foaad ia d^eadaats' farour oa the otiher qae«tions raised in the ease, sUch 
 as the 5peed of the ear, the failure to sound the gnag. the salfieieacy of the 
 brakes aiad the allied operatiaa ni the ear on the wroa^ trade of a double 
 txadc sfstea. 
 
 MAacr T. W'maipeg Elec. Rr. Cou 18 Gaa. Rr. Ca& 179, H DXJEL 7S6. 
 
 Hkhvat cboss:i:;«;g — DAXcaeaoris scbwat. 
 
 A raihraj company rharged with the duty under the Railway Act. 1906, 
 a> 241, to naintaia ^safe sburtures Ir' which aay h^hway is carried over 
 or nadcr aay railway, will be liaUe for iajnries resaltiBg fro^ the dai^er- 
 oas eoaditiaa of a subway ctnstmeted 1^ the railway conpaay at the ex- 
 pe ast. of a atnaicipality. 
 
 Burrows t. Grand trunk Ry. Cou 18 Can. Ry. Gas. 183. 33 DXJ:. 173. 
 
 OtESATIOX — UXCOVESEII SWITCH BODS. 
 
 la the aberaee of any r^^Iatioa by statutory authority reqnira^ a raS- 
 «aj roaipaay to cavrr the switch rods of a hand switch oa the railway, it 
 is aot opea to a jury to fiad that the failure to do so eoastitntcs ne^igeace. 
 [Zmdt T. Oaa. Fac. Ry. Co., 23 Oi.R. 602, 1± Can. Ry. Cas, ^O, re- 
 ferred to.] 
 
 MaDoiy t. Wiaaipcg Joint TerminaK IS Ian. Ry. Cas. 277, ii DJL.R. 
 44& 
 
 [AlEmed in 29 DJLR. 20. 20 Can. Ry. Ca&. 3S2, followed ia Xdsoa t. 
 Gaa. PaCL Bj. Col, 35 D XJB. 318. 
 
534 Js^EGLIGEXCE. 
 
 Operation — Switch bods uncovered — Findings of jtbt. 
 
 A finding by a jury of negligence in permitting switch rods to be un- 
 covered will not be upheld wiien the evidence is that the practice univers- 
 ally followed on this continent was observed, and no evidence was given that 
 covering was practicable. [Mallory v. Winnipeg Joint Terminals, 22 
 D.L.K. 448, 25 Man. L.R. 456, 18 Can. Ry. Cas. 277, affirmed.] 
 
 ilallory v. Winnipeg Joint Terminals, 20 Can. Ky. Cas. 382, 53 Can. 
 S.C.R. 323. 29 D.L.R. 20. 
 
 [Discussed in Herman v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 416, 44 
 D.L.R. 343; distinguished in Xelson v. Can. Pac. Ry. Co., 55 Can. S.C.R. 
 (126, 39 D.L.R. 760, 25 Can. Ry. Cas.] 
 
 Licensee — Da^iages — Laying -water pipes. 
 
 In obtaining permission from tlie Board to lay a water main under the 
 railway yard of the respondent, the applicant, who is a mere licensee, should 
 assume responsibility for all damages that may occur, arising from any neg- 
 ligence on the part of its employees or those of the respondent, connecteil 
 with the laying, renewing or repairing of its water pipes, through the re- 
 spondent's property. 
 
 Winnipeg v. Can. Pac. Ry. Co. (Greater Winnipeg Water District Case), 
 23 Can. Ry. Cas. 75. 
 
 t'UOSSING TRACK I\ FRONT OF EI.ECTKIC CAR — ReASONAHLE CARE — CIRCUM- 
 STANCES. 
 
 A person about to cross a track in front of an electric car running on 
 rails must exercise reasonable care. What is reasonable care depends on 
 the circumstances of each case and is a matter to be determined by the 
 jury. 
 
 Orth v. Hamilton, C4rimsby & Beamsville Elec. Ry. Co., 23 Can. Ry. Cas. 
 344, 43 O.L.R. 137, 43 D.L.R. 544. 
 
 Negligence of empix)yee8 of two different companies-^oint and sev- 
 eral LIABILITY. 
 
 Tlie jury having found on sufficient evidence that an accident resulted 
 from the common negligence of the employees of two different companies, 
 such companies are in law jointly and severally liable for the damage. 
 [Jeannotte v. Couillard (1894), 3 Que. Q.B. 461, distinguished.] 
 
 Grand Trunk Ry. Co. and Montreal v. McDonald, 23 Can. Ry. Cas. 361, 
 57 Can. S.C.R. 268, 44 D.L.R. 189. 
 
 Street car approaching railway crossing — Negligence of motorman — 
 Collision with work train — Injury to passenger. 
 
 An electric railway company which by the inexcusable negligence and 
 breach of rules of one of its motormen, places the passengers of a car in i 
 position of great peril from imminent danger of collision with a railway 
 work train, is liable in damages for the death of one of the passengers who 
 liecoraing terrified jumps or falls off the car and is killed by the train. 
 The trainmen being suddenly faced with a new situation of danger which 
 gave them little, if any time to think and act. even if they could have done 
 anything more than was done to avoid the accident are not required to pos- 
 sess the presence of mind which would enable them to do the best thing 
 possible. A work train is not required to be equipped with air brakes. 
 
 Bartlett v. Winni])eg Elec. Ry. Co. and Can. Northern Ry. Co., 23 Can. 
 Ry. Cas. 381, 29 Man. L.R. 91, 43 D.L.R. 326. 
 
KEGLIGEXCE. 535 
 
 Railwat tabd — Switch staxd too seak to track — Operatiox. 
 
 In an action by a freight conductor in the emploT of the defendant com- 
 pany for damages for injuries sustained while making a flying or drop 
 »nitch, the jury found that there was no n^ligence on the part of the 
 plaintiff, but that the defendants were guilty of n^ligence in building the 
 switch which the plaintiff was operating at the time of his injury. Haul- 
 tain, CJ^^ on appeal held that in riew of the eridenoe. which was con- 
 flicting, the verdict could not be said to be perverse and should not be dis- 
 turbed. Xewlands. J.A., thought that, the jury having held that the de- 
 fendants were guilty of n^ligmce, in having the switch too near the track, 
 not for all purposes but for the purpose of performing the operation in 
 which the plaintiff was injured and that operation being a proper one to be 
 performed, at the time and having been properly performed, the verdict 
 sliould not be disturbed. Lamont and Elwood. JJuk., held that, according to 
 the evidence, the cause of the accident was the cutting away of the engine 
 from the cars at a point too close to the switch and whoever was responsi- 
 ble for this was guilty of the negligence which caused the accident. Also, 
 the defendants could not be said to be negligent in placing the switchstand 
 when it was done luider the advice of their railway experts, with whos^e 
 opinicNis nearly all the experts at the trial agreed, juries could not be al- 
 lowed to set up a standard which should dictate the practice of railway com- 
 panies in the conduct of their busines.s and the verdict should be set aside. 
 [NelsMi T. CJ».R. Co. (1917), 39 DXlR. 760, 55 Can. &CJI. 626, [1918] 
 •» W.W.R. 177: Mallory v. Winnipeg Joint Terminals (1916), 29 DX.K. 
 20, 53 Can. S.C.R. 323. 20 Can. Ry. Cas. 382, discussed.] 
 
 Herman v. Can. Pac Ry. Co., 23 Can. Ry. Cas. 416. 44 D.LlR. 343. 
 
 Traix bcx joixtlt bt two companies — ^Xegugexce of exgixexx — Cox- 
 
 TBOL of SEKVAXT at TtMK OF ACCIDEXT. 
 
 An agreement was entered into between the Central Vermont Ry. Co., 
 which was operating a line between St. Albans. U..S.A.. and St. Johns. P.Q., 
 and the Grand Trunk Ry. Co.. which was operating a line between St. 
 Johns and Montreal whereby they were to run a train jointly between St- 
 Albans and Montreal. The same train crew was to remain in charge during 
 the trip, but each company was to pay the crew while running over its own 
 line and each company was to assume all liability for loss or damages sus- 
 tained in operating trains oa its own line. The Court held that the Central 
 Vermont Co. coiild not be held liable for damages for injuries caused by 
 the negligence of the engineer while running on the Grand Trunk Co.'s line 
 Itetween St. Johns and MontreaL As the engineer was at the time of the 
 accident under the omtrol of, and paid by the Grand Trunk Co., it al<me 
 was liable. . 
 
 Central Venncmt, Ry. Co. t. Bain: Grand Trunk Ry. Co. v. Bain, 48 
 D.L.R. 199. 
 
 Rah-wat bcubs — Switch staxd axb fixed sigxau 
 
 A switch stand is not a fixed signal within the meaning of the railway 
 regulatimis and is governed by different rules; an engineer is not guilty of 
 n^ligence in passing a red light on a switch stand, although compelled by 
 the railway rules to stop where such is shewn as a signaL 
 
 Walker v. Ckn. Pac Ry. Co., 23 Can. Ry. Cas. 390, 11 SX.R. 192, 40 
 D.L.R- 547. 
 
 [AflBrmed in 23 Can. Ry. Cas. 399.] 
 
 Railway bcues — Switch staxd axd fixeo sigxals — Opisatiok. 
 
 A switch stand is not a fixed signal within the meaning of the railway 
 
536 NEGLIGENCE. 
 
 rules and regulations and is governed by different rules; an engineer is not 
 guilty of negligence in passing a red light on a switch stand although com- 
 pelled by the railway rules to stop where such light is shewn as a fixed 
 signal. Per Anglin, J.: — The words "must know" in rule 401 do not import 
 knowledge acquired by use of the engineer's own eyes to the exclusion of 
 every other source of knowledge however reliable. 
 
 Can. Pac. Ey. Co. v. Walker, 23 Can. Ry. Cas. 399, 57 Can. S.C.R. 493, 43 
 D.L.R. 698. 
 
 Operation — Coal companies — Dkkkctivk appliances, 
 
 A coal company which operates wholly on its own lands in connection 
 with its mines a railway and on it carries passengers and freight may 
 properly be found negligent in operating its cars Avith a "link and pin" 
 coupling long after the general introduction of safer and better methods, 
 although the company may not be subject to the Railway Act, 1906, s. 264. 
 [Fralick v. G.T.R.. 43 Can. S.C.R. 494, 10 Can. Ry. Cas. 373; Stone v. C.P.R., 
 47 Can. S.C.R. 634, 13 D.L.R. 93. referred to.] ' 
 
 Cook V. Canadian Collieries, 21 D.L.R. 215. 
 
 Brakes on cars released by children. 
 
 A company which, by its employees, without the authority of the owners 
 of a railway, moves cars placed on a track at the top of a grade for the 
 purpose of being unloaded further down the grade, and merely hand brakes 
 them, without securely air braking and blocking them, assumes the risk ot 
 the cars' being started down the grade by mischievous boys releasing the 
 brakes, and is responsible for all resulting damage to life or property. 
 
 Geall V. Dominion Creosoting Co.; Salter v. Dominion Creosoting Co., 39 
 D.L.R. 242. 
 
 Negligence — Bumping of car. 
 
 Failure to detect bumping by a railway car, which later overturned, does 
 not of itself imply negligence. 
 
 Pyne v. Can. Pac. Ry. Co., 37 D.L.R. 751. 
 
 Duty of engineer to look and warn — Speed — Joint operation. 
 
 An engineer in charge of a locomotive is not obliged constantly to look 
 forward to see if there is anyone or anything on the track, and he may oc- 
 cupy himself, while the train is in motion, in making repairs to his engine 
 if he has given the warnings required by law at crossings and other places. 
 Where there is no statutory regulation as to the speed of a railway train 
 it cannot be taken into consideration to determine the cquse of an accident. 
 A railway company which grants to another company the right of running 
 over its line and its joint operation is liable for the consequences of acci- 
 dents which occur on it. 
 
 Collin v. G.T.R. Co., 48 Que. S.C. 106. 
 
 Engine without lights. 
 
 A railway company which permits the public to habitually use its track 
 as a short cut, knowing it to be so used, is guilty of negligence, if with- 
 out giving the public warning it runs an engine, without lights and with 
 a defective whistle, over the track on an extra trip, on a dark and windy 
 night. [Lowery v. Walker, [1911] A.C. 10, followed.] 
 
 Herdman v. Maritime Coal, Ry. & Power Co. (X.S.), 40 D.L.R. 96, an- 
 notated. 
 
KEGLIGEXCE. 537 
 
 B. Coitzibiitaxy NegUgcnee. 
 
 VfAlMXXe BB T UBK-N KAIIJS^ — XONSCTT. 
 
 A raihrav- ear in whidh vas a horse in charge of the plaintiff had on ar- 
 riral at a station been ghimted on to one of sereral lines of rails in the 
 defendants' station rard. The plaintiff left the car and retnmed to it, 
 CToesin^ sereral track? in doing ?o, and again left it. in broad dajiight. to 
 prodBn water for the horse. There was less snow between the rails than 
 upon the space between the traces, and the plaintiff, according to his own 
 eridcnee, having to walk some little distance along the railway lines. choi<e 
 to walk between the rails to avoid getting his feet wet. and while so walk- 
 ing was overtaken by an engine and tender slowly moving, reversed with- 
 out the necessary warning, and was knod^ed down and injured: — Held, af- 
 finaii^ the nonsuit at the trial, that even if the defendants were guilty of 
 mt^Sgeace in not giving notice that the engine and tender were in motion, 
 the aerident was caused not by reason of their n^igence but hf the plain- 
 tiff's own neg^ligence in choosing to walk in a place of extreme danger, in- 
 stead of a place of perfect safety which was open and known to him. [Cal- 
 lendar t. Carlet<» Iron Col (1S93), 9 Times L.R. 64^ and (1894) 10 
 Hmes L.R. 366, followed.] 
 
 Phillips V. Grand Trunk Ry.. 1 Can. Ry. Cas. 399, 1 OiJL 28. 
 
 [Distinguished in Tinsley v. Toronto Ry. Co., 15 OiJL 43S: referred to 
 in London 4 Western Trusts v. Lake Erie.' etc., Ry. Co., 12 OXJl. 28; Pres- 
 ton V. Toronto Ry. Co., 13 OXJl. 369.] 
 
 ItefX^SCE TO ACnOX — BBEACH of SlATTTOaV DTTT. 
 
 Contributory negligence may be a defence to an action fomdcd on a - 
 favcnch of statutory duty. 
 
 Deyo V. Kingst<m k Pembroke Ry. Co.. 4 Can. Ry. Cas. 42, 8 OX.R. oSS. 
 
 [Distinguished in Muma v. Can.'Pac. Ry. Co.. 14 OXJL 147, 6 Can. Ky. 
 Gaa. 444; referred to in Street v. Can. Fac. Ry. Co., 18 Man. I^R. 342.] 
 
 Obstktctiox of view — Reasonable cake aftbi passhcg. 
 
 A tool house obstructing the view of a railway track for a considerable 
 distance does not exonerate the injured from contributory negligence, 
 where, after passing the obstruction, he could, by the exercise of reastn- 
 able care, have looked in the direction from which the train was cooling 
 and thus avoid the injury. 
 
 Andreas v. Can. Pac. Ry. Co., 5 Can. Ry. Cas. 440, 2 WJJS. 249. - 
 
 [Affirmed in 5 Can. Ry. Cas. 450, 37 Can. S.C.R. 1.] 
 
 WhKX OOXTStBCTCttT NEiaJGESCE A DEFKVCE. 
 
 In order to disentitle a plaintiff to recover upon the ground oi eontrib- 
 nttaj negligence it must be found distinctly that the accident was at- 
 tnhntable to his failure in the duty imposed upon him. [Rowan y. Toronto 
 Stzcet Ry. Co., 29 Can. S.CJi. 718, referred to.) 
 
 Dart T. Toronto Ry. Co. (Xo. 2), 8 DAJR. 121, 4 O.WJi. 315. 
 
 IXJCKT TO PEBSOX OS TSACK — LICENSEE. 
 
 A railway cfunpany is not answerable for the death of a pers<Hi who. in 
 possession of his faculties of seeing and hearing, walks along a railway 
 track without looldng for an approaching train whidi he could have seen 
 by the exerdse of tke nost ordinary care. A licoisee who walks along a 
 railway track assumes all risk of injury from being stmdc by trains. 
 
 Hinridi v. Can. Pat By. Co., 15 Can-Ry. Cas. 393, 12 DiA 367. 
 
5.^8 ii^EGLIGENCE. 
 
 CKOS.SINGS — Riding with another. 
 
 A person being given a gratuitous ride on a wagon and sitting Ijeside 
 the driver is under no duty on approaching the crossing of an electric 
 railway to use extraordinary care as to the approach of cars; and on his 
 being killed in a collision with a car not seen by either of them, an action 
 on behalf of his family against the electric railway for damages for his 
 death is not defeated by a finding that the deceased was negligent in not 
 taking ''extraordinary precautions to see that the road was clear," in 
 view of further findings of excessive speed by the railway and that the 
 railway motorman could have stopped the car and have avoided the acci- 
 dent had it not been for the defective brakes which the railway negligently 
 maintained as part of the car equipment. [Brenner v. Toronto Ry. Co., ' 
 (> Can. Ry. Cas. 2(J1, 13 U.L.K. 423, on appeal 7 Can. Ry. Cas. 210, 15 
 O.L.R. 195, and 8 Can. Ry. Cas. 108, 40 Can. S.C.R. 540, considered; Pike 
 V. l>indon General Omnibus Co., 8 Times L.R. 164; Dublin, etc., Ry. Co. 
 V. Slattery, 3 A.C. 1155; and Grand Trunk Ry. Co. v. McAlpine, 13 D.L.R. 
 ()18, [1913] A.C. 838; Scott v. Dublin, etc., Ry. Co., 11 Ir. C.L. 377; and 
 Herron v. Toronto Ry. Co., 11 D.L.R. (iOT, 15 Can. Ry. Cas. 373, referred 
 to.l 
 
 Loach V. British Columbia Electric Ry. Co., 17 Can. Ry. Cas. 21, 16 
 ]:).L.R. 245. 
 
 [Affirmed in 20 Can. Ry. Cas. 309, 23 D.L.R. 4; followed in Ontario- 
 Hughes-Owens V. Ottawa Elec. Ry. Co., 23 Can. Ry, Cas. 252. 
 
 Efficient cause — ^Defense. 
 
 In an action for negligence causing death in which a defence of con- 
 tributory negligence is raised, if a negligent act on the part of the de- 
 ceased is established which was the efficient cause of the fatal injury 
 the question of the deceased's view of the possibilities of his act is im- 
 material, and whether the possibility of injury was or was not foreseen 
 by him all the consequences which are the direct and natural outcome 
 of his negligent act are attributable to same in bar of the action. [Lake 
 Erie & Western Ry. Co. v. Craig, 73 Fed. Rep. 642, criticized.] Negligence 
 or want of ordinary care or caution on the plaintiff's part as constituting 
 contributory negligence may disentitle him to recover where it is such 
 that otherwise the injury could not have happened. [Smith v. London & 
 S. \V. Ry. Co., L.R. 6 C.P. 14, referred to; and see Jones v. Can. Pac. Ry. 
 Co., 30 6.L.R. 331, 13 D.L.R. 900, 16 Can. Ry. Cas. 305, and Grand Trunk 
 Ry. Co. V. McAlpine, 13 D.L.R. 618, [1913] A.C. 838, 16 Can. Ry. Cas. 
 186.] 
 
 Cook v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 150, 32 O.L.R. 108, 19 
 D.L.R. 600. 
 
 Accident at crossing — Riding with anotheb. 
 
 Contributory negligence of the person who had hired the vehicle and 
 was himself driving it is not attributable to the passenger who is riding 
 with him in the vehicle and who has no control over same, in answer to 
 the latter's action for damages against the railway, under the Fatal Acci- 
 dents Act (Ont. ), wliere the passenger jumped from the vehicle when 
 a collision seemed imminent and was killed and the accident was due to 
 the company's neglect of its statutory duty under s. 276 of the Railway 
 Act, 1906, to give warning of the approach of tiie train moving reversely 
 over a level crossing. 
 
 Mitchell V. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 188, 22 D.L.R. 804. 
 
NEGLIGEXGK 539 
 
 IXJtUT AVOIDABUE XaTWlTHSTAJXDnJG COS^TWBCTMT ^fUGUCENCE — ULTI- 
 MATE ^kOGIJGEXCX. 
 
 Etcb if the deceased idio was killed while crossing the railway wa$ 
 gniltr of etrntribotorr n^Ugenee in not looking for approaching trains 
 damages will be awarded against the railwar if there was such ultimate 
 negligence <« the part of its employees operating the train that the col- 
 lisifHi might have been avoided after they became aware of the danger 
 had the watchman stationed at the rear of the train moving reversely 
 shonted a warning (on seeing the horses and load of lumber), to the 
 driver walking on the far side and not visible to him. instead of jump- 
 ing oS and attempting only to warn the other train hands. [Jones v. Can. 
 P»c By. Co., 30 O.L.R- 331. 13 D.L.R. 900. 16 Can. Ry. Cas> 305; Wake- 
 lia T. London & S. W. Ry. Co„ 12 App. Cas. 41. referred to.] 
 
 (yCallaghan t. Great Northern Ry. Co., 18 Can. Rj. Cas. 156, 20 DX.R. 
 145. 
 
 Coyiyioy facxt — Xbgligexce of plaixtiff sole effectite cacse. 
 
 By the law which prevails in the Province of Quebec in actions for 
 ■egligmce where both parties have been in fault, damages are awarded 
 proportionate to the d^ree in which the respective parties are to blame: 
 where, however, the sole effective cauise of an accident is the plaintiff's 
 own negligence he is not entitled to recover any damages. 
 
 Can. Pae. Ry. Co. t. Frechette, 18 Can. Ry. Cas. 251, (1915] A.a 871, 
 22 DX-R. 356. 
 
 OoxTTxcnro xbbugesce w defexda^st — Cause of Tsrwr. 
 
 The principle that the contributory negligence of a plaintiff will not 
 disentitle him to recover damages if the defendant, by the exercise of 
 care, might have avoided the result of that nfgligence, applies where the 
 defendant, although not committing any n^ligent act subseqii«it to the 
 plaintiff's negligence, has incapacitated himself by his previous n^Iigence 
 from exercising such care as would have avoided the result of the plain- 
 tiff's negligence. [Loach v. British Columbia Elec. Ry. Co., 16 DX.R. 245, 
 19 B.C.R- 177. 17 Can. Ry. Cas. 21 affirmed; Judgment of Anglin, J., in 
 Brenner t. Twonto Ry. Co., 13 Oi.R. 423. 6 Can. Ry. Cas. 261. approved.] 
 
 British Columbia Elec. Ry. Co. v. Loach, 20 Canu Ry. Cas. 309, [1916] 
 1 A.C. 719. 23 DiJL 4. 
 
 [Considered in Tait v. British Cohmibia Elec. Ry. Co.. 20 Can. Ry. Cas. 
 408: followed in Columbia Bitnlithic v. British Columbia Elec. Ry. Co., 
 21 Can. Ry. Cas. 243, 37 DX.R. 64: considered in Smith v. Regina, 21 
 Can. Ry. Cas. 270. 34 D.L.R. 23S: applied in Critehley v. Can. Northern 
 Ry. Co, 21 Can. Ry. Cas. 277. 34 Alta. XR. 245. 
 
 C. mtiiiuite Negligence. 
 TiifK — Anticipate© daxgeb. 
 
 In an action for negligence against a railway company the trial Judge 
 should confine all questions of ultimate negligence to the time from which 
 the defendants or their servants could have anticipated the danger. 
 
 McEachen t. Grand Trunk Ry. Co., 2 DX.R. 588, 3 O.W.N. 628. 
 
 CoXCrBREXT CAUSES. 
 
 Where an injury is the direct immediate result of two operating causes, 
 viz., the negligence of the plaintiff and that of the defendaat, the plain- 
 tiff cannot recover damages. 
 
 Long V. Toronto Ry. Co., 10 D.XR. 300, 15 Can. Ry. Cas. 3S. 
 
540 NEGLIGENCE. 
 
 CONCXJBBENT NEGLIGENCE. 
 
 In an action of negligence, a plaintiff, whose want of care was a direct 
 and eflFective contributory cause of the injury complained of, cannot re- 
 cover, liowever clearly it may be established that, but for the defendants' 
 earlier or concurrent negligence, tlic mishap, in wliich the injury was re- 
 ceived, would not have occurred. [Herron v. Toronto Ry. Co. (No. 1), 
 6 D.L.R. 215. reversed.! 
 
 Herron v. Toronto Ky. Co., 15 Can. Ry. Cas. 373, 11 D.L.R. 697, 28 
 O.L.R. 59. 
 
 Ultimate negligence. 
 
 Ultimate negligence is constituted by a repetition or continuance of 
 the primary negligent act coupled with a present allility to discontinue 
 or avoid it, and a failure to do so. [B.C. Elec. Ry. Co. v. Loach, 23 D.L.R. 
 4, [1910] 1 A.C. 719, 20 Can. Ry. Cas. 309, considered.] 
 
 Smith V. Regina, 21 Can. Ry. Cas. 270, 10 Sask. L.R. 72, 34 D.L.R. 
 238. 
 
 [Affirmed in 42 D.L.R. G47.] 
 
 InJIRY avoidable NOTWITHSTAXDING COXTKIIUTORY NEfil.IGENCE. 
 
 In an action for damages for injuries sustained, where contributory 
 negligence is alleged, a new trial will be ordered if the attention of the 
 jury has not been directed to the question whether but for the negligence 
 of the defendant the accident might have been avoided notwithstanding 
 the negligence of the plaintiff, and their finding is not conclusive on this 
 point. [Loach v. British Columbia Elec. Ry. Co., 23 D.L.R. 4, [1916] 1 
 A.C. 719, 20 Can. Ry. Cas. 369, followed.] 
 
 Ontario — Hughes-Owens v. Ottawa Elec. Ry. Co., 23 Can. Ry. Cas. 252, 
 40 O.L.R. 614, 39 D.L.R. 49. 
 
 D. Injuries to Children. 
 Failure to fence — Contkibutoby negligence — Infant. 
 
 [See note of this case under Fences and Cattle Guards (A).] 
 
 Potvin v. Can. Pac. Ry. Co., 4 Can. Ry. Cas. 8. 
 
 [Tabb V. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 1, 8 O.L.R, 203, fol- 
 lowed.] 
 
 Failure to fence — Infants — Contribitory negligence. 
 
 [See note of this case under Fences and Cattle Guards (A).] 
 Tabb V. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 1, 8 O.L.R. 203. 
 [Followed in Potvin v. Can. Pac. Ry. Co., 4 Can. Ry. Cas. 8.] 
 
 Unfenced premises — Trespasser — Infant. 
 
 [See note of this case under Fences and Cattle Guards (A).] 
 Newell v. Can. Pac. Ry. Co., 5 Can. Ry. Cas. 372, 12 O.L.R. 21. 
 [Referred to in Gloster v. Toronto Elec. Light Co., 12 O.L.R. 413.] 
 
 Allowing children access to machinery. 
 
 A railway company that leaves a mechanical contrivance (e.g., a turn- 
 table) in an open place to which children of tender years are allowed 
 access, is guilty of negligence and liable for the consequence of their un- 
 skilful handling of it. [2!» Que. S.C. 282. 8 Can. Ry. las. 269, affirmed.] 
 
 Can. Pac. Ry. Co. v. Coley, 8 Can. Ry. Cas. 274, 16 Que. K.B. 404. 
 
 [Approved in Roullier v. ^Magog, 37 Que. S.C. 249; referred to in Nor- 
 mand v. Hull Elec. Co. 35 Que. S.C. 340.] 
 
XEGLIGEXCK 541 
 
 tsrCMSES TO MtXOKS TjAltHJTY TO MIXOBS — ^^STEALHSG MUK" OS OOW- 
 
 CATCHEB — ^EVIDEXCE — ^XOXSCTT. 
 
 WmUaee t. Can. Pac By. Co^ 6 DI^R. 864, 4 O.W >^. 135. 
 E. lojuxles to Husband or 'W^e. 
 
 AcnOH KT SVSaXSD FOB IKJUU£S TO WIFE PaCTISS. 
 
 The right o( action for damages for personal injuries sustained by a 
 married woman, commune en biens. belong-: exclusively to her husband, 
 and she cannot sue for the recovery of such damages in her own name, 
 even with the authorization of her husband. Where it appears, upon the 
 faee of the writ of summons and statement of claim, that the plaintiff 
 has BO right of action, it is not necesisary that objection should be tak«i 
 by exception a la forme. Absolute want of legal right of action may be 
 invoked by a defendant at any stage of a suit. Judgment of the Court 
 of Queen's Bench. 3 Que. P.R. 1, overruled on the motifs, bat affirmed in 
 its result. 
 
 McFarran v. Montreal Park Jt Island Ry. Co., 30 Can. S.CJL 410. 
 
 [Applied in Desrouard v. Fortier, 5 Que. P.R. 251; distinguished in De 
 Councy r. David. 33 Que. S.C. 180-. Girard r. Vincent, 21 Que. S.C. 207; 
 followed in Sauriol v. Clermont, 10 Que. K.B. 304, 306.] 
 
 F. Iiord Campbell's Act. 
 Bkxeficiasies — ^Pakexts. 
 
 The right of action given to the mother of a minor, killed by accident, 
 by art. 1056 C.C. (Que. t, is personal to her and does not come from the 
 deceased nor from the succession. 
 
 Richard v. Can. Pac. Ry. Co., 13 Que. P.R. 268 (Sup. Ct.). 
 
 Fatai. AociDEXTs Act — Death or bexeticiakt — ScBvnrAi. or actiox — 
 
 EXECtTOKS AXD ADVIXISTBATOBS. 
 
 Upon the death before judgment of the sole beneficiary on whose behalf 
 an administrator has brought an action under the Fatal Accidents Act. 
 R.S.O. 1897, e. 166. the action comes to an end. It cannot be continued 
 for the benefit of the beneficiarv-'s estate, nor can a new action be brought 
 by the beneficiary's personal representative. Judgment of Ferguson, J., 32 
 OJL 234, reversed- 
 
 McHngh T. Grand Trimk Ry. Co.. 2 Can. Ry. Cas. 7, 2 O.LlR. 600. 
 
 (Approved in Hockley v. Grand Trunk Ry. Co.. 7 O.L.R. 186; followed 
 in Blayborough v. Brantford Gas Co., 18 OXJi. 243.] 
 
 BeXEFICIASIES ^WlDOW OF SECOXD KAERIAGE. 
 
 A woman claiming to be the widow of a man killed owing as alleged 
 to the negligence of the defendants, brought an action against them with 
 ho- two children as coplaintiffs to recover damages. Subsequently another 
 action was iMxiugbt by another woman also claiming to be the deceased's 
 widow to recover damages for the benefit of herself and her child, her 
 marriage having takoi place after an alleged divorce of the first plain- 
 tiff: — Held, that only one action would lie under the Act: that that ac- 
 tion would be for the boiefit of the persons in fact entitled: and that, 
 there being no doubt as to the right of the children in the first action, 
 that action should be allowed to proceed and the rights of all parties 
 worked out in it, the second action being stayed ; the plaintiff in the second 
 
r.42 NEGLIGENCE. 
 
 action to be represented by counsel at the trial if desired. Judgment of 
 Falconbridge, C.J., reversed. 
 
 Morton v. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 455, 8 O.L.R. 372. 
 
 [Referred to in Reid v. Goold, 13 O.L.R. 51.] 
 
 Beneficiaries — Right of mother while father living. 
 
 The niotlier of the deceased is a person for whose benefit an action can 
 be brought under the Fatal Accidents Act, although the father is living. 
 
 Renwick v. Gait, Preston & Hespeler Street Ry. Co., 5 Can. Ry. Cas. 
 376, 12 O.L.R. 35. 
 
 Beneficiaries — Release. 
 
 In an action brought under the Families Compensation Act, R.S.B.C. 
 1911, c. 82, by the widow and children of a deceased person, for damages 
 for injuries resulting in the death of such person through the negligence 
 of the defendants, where the defendants' statement of defence sets up that 
 the deceased during his lifetime accepted compensation from them in full 
 satisfaction of the injuries and signed an agreement releasing the defend- 
 ants from all present or future liability to himself or. to his heirs, the 
 plaintiffs may, without bringing in the personal representative of the 
 deceased as a party, attack the validity of such release on the ground 
 that it was obtained by fraud. [Trawford v. British Columbia Elec. Ry. 
 Co., 8 D.L.R. 1020, reversed]. 
 
 Trawford v. British Columbia Elec. Ry. Co., 15 Can. Ry. Cas. 39, 9 
 D.L.R. 817. 
 
 [Affirmed in 18 Can. Ry. Cas. 193.] 
 
 Death of parent — Actiox by childrex — Evidence of probable di'ra- 
 TiON OF life — Damages — Probable accumulations. 
 
 Tliat the premature death of an aged parent caused an acceleration of 
 the enjoyment of his estate by his children is not such a benefit as will 
 prevent them recovering under the Fatal Injuries Act, 1 Geo. V. c. 33, 
 R.S.O. 1914, c. 151, where there is a reasonable probability that had the 
 parent lived he would have saved all of his income for the benefit of his 
 children. The fact that the deceased was an unusually healthy man, al- 
 though 82 years old, may be considered in awarding damages under the 
 Act. and a finding of a probable greater duration of life than that of the 
 average man maj' be based thereon. [Rowley v. London & N.W. Ry. Co., 
 L.R. 8 Ex. 221, 226, followed.] The measure of damages under the Fatal 
 Injuries Act, where it appears that the deceased would have saved the 
 annual income from his property for the remainder of his life for the 
 benefit of his children, is not the full amount thereof for the probable 
 duration of his life, but the present value of the annual payments thereof 
 capitalized at five per cent. 
 
 Goodwin v. Michigan Central Ry. Co., 16 Can. Ry. Cas. 51, 29 O.L.R. 
 422, 14 D.L.R. 411. 
 
 Release by deceased — Repudiation for fraud. 
 
 Where a release by the deceased is relied upon by the defendants in an 
 action for damages by his dependents, under the provisions of the Fam- 
 ilies Compensation Act, R.S.B.C. 1911, c. 82, the plaintiffs may take 
 exception to the release on the ground that it was fraudulently procured, 
 although the personal representative of the deceased has not been made a 
 party to the action. Such an exception may be entertained by a Court 
 of equity notwithstanding that the money paid as consideration for the 
 release is neither tendered back to the defendants nor brought into Court 
 
NEGLIGENCE. 543 
 
 t» afcile flw HEoe of the mctioii. [Lee t. Lanca^Iiirp i. Yotksliirp Rt. Col, 
 6 Ch. App. ST: Bead t. Great Eastera Br. Co„ LJL 3 Q.B. m5; Robin- 
 sam T. Can. P*e. By. Co., [1892] JLC. 4S1; Bideal v. Great Wisstern By. 
 Cc 1 F. A F. 706; dov^ r. LoMkm 4 X. W. By. Co., LB. 7 Ex. ±«: 
 Srvaid t. Tie "Vtra, Cmz," 10 App. C*&. 59; Pym t. Great Xorthera By. 
 GiL. 2 B. 4 S. 759, 4 B. 4 S. 396; Willians t. Mersey Docks etc. (1905 i. 
 1 K. B. 8(K4; Erdman t. Walkerton. 20 A.R. (Ont.t 444: Johnion t. Grand 
 Tmnk By. Co., 21 AJL lOnt.) 4il*. referral to.] 
 
 BrifzA Cohmbia. Eiee. By. Co. t. Tanwr, 18 Gan. By. Cm& 193. 49 
 Ckn. S.C.B. 470. 18 DX.R- 430. 
 
 ACnOX FOB BESKFTT OF FAiOLT — TUf£ FOK COMJCEXCEXG TmOCEEDlSCA 
 
 LnciTAnox ix specuu. act. 
 
 Tke Faaulies Conpensatioa Act of Britisli Cohnalbia. is, save in slight 
 aad inmatcrial respects, in tlie same terais aic tlie Fatal Accidents Art. 
 1846 (kaovm as Lord CampbeH's Actt, and ]Hmides tliat actions there^ 
 ^Mkr ahall be coauneiKed within twelve ealeader ■oatiir- of tke death of 
 fke dTf**«>J The appellants opnuted a tramway vader p ow ei s conferred 
 by an Act of the ahore prorinee whieh by &. 60 provided a six montlu' 
 period of U^ltatioB in reject of "^ctioBs for idonnity for any dama^ 
 or injnry sustained by w— im of the tramway, or the operations at tbe 
 eanpany." One of tkt i^pdbnts* tn^nrg baring knodied down and 
 iasfantly kiDed a man, tbe reapimdent iiimminii il an action against than 
 wmAtT tbe FunHiea Compcanation Act for tbe ben^t of tbe father an<i 
 modber of tbe dtceand, IW action was cMnmcneed more than »ix 
 moirtbs but leas than twdre months after tbe aerident and death. Tbe 
 caaae of aetioa nader tbe Families Ct^peasation Act was a diffenst 
 «mo$r of action from tbat which tbe de<reased person woold have bad if he 
 bad lived, and was not <me to which tbe limitation seetion in tbe appel- 
 lants" Act applied: and that the action was acctwdin^Iy maintainable, 
 (^iarkey v. Tohrorth ete^ Board, [1900] 2 Q.B. 4.>4. disapproved.] 
 
 Bntisb Colrmbia Elee. By. Co. v. Gentile, 18 Can. By. Cas. 217, [1914] 
 A.C. lOM, 18 DXJL 264. 
 
 A workman in tbe employ of a railway company as tde^rafA linenun 
 was strnck and killed by an engine of another cmnpnny while walking 
 abmg tbe latter company's tracks. He was at tbe time retaining witb bis 
 foreman and several fellow workmen after tinl^faing tbe day's work, to tb« 
 boardiaig ear provided for them by tbeir onployers, in whi^ they kept 
 tbeir tools, slept and took their meals^ In an action under Lord Camp- 
 bell's Act against two companies, a jury found against theaa both, but 
 tbe trial Judge dismissed the ea<«c- as against tbe evoipnny on whoae tracks 
 HtB deceased was walking, holding that as to them tbe dec eas ed was a 
 laere trespasser, and that they had been guilty <rf no negli gence and of 
 no breaeh of duty to him as sndt. Jodgment was entered against de- 
 ceased's employers on tbe ground tbat tbe dec ease d was at tbe time under 
 tbe directions of tbe foreman wbo bad left the boarding car witb tbe 
 party in tbe morning and bad been in charge of tbe work on which be bad 
 been engaged during tbe day: and that the foreanan had led tbe deceased, 
 witbfimt warai^, into a placie of danger. Held, on appeal (revcrsii^ tbe 
 i«4smcnt against tbe employers and dismissing the action) tbat tbe 
 evidence did not suf^mrt the findings of tbe jury: deceased's work for tbe 
 day bad come to an end and be was no lo^;er under tbe directi<m of tbe 
 f<»eman nor bound to conform to his orders; that there was no evidence 
 
544 NEGLIGENCE. 
 
 of any order or direction by the foreman to proceed along the track; and 
 that the injury was not sustained in the course of the deceased's employ- 
 ment. [Holmes v. Maehay & Davis (1899), 2 Q.B. 319; Kelly v. Owners 
 of the Ship Foam Queen (1910), B.W.C.C. 113; Walters v. Stanley Coal 
 & Iron Co. (1910), 4 B.W.C.C. 89, followed.] 
 
 Sharpe v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 224. See 23 D.L.R. 487. 
 
 Death — Remedies for — Que. C.C. 
 
 Art. 1056, C.C. (Que.) confei-s an independent and personal right of 
 action upon the consort and ascendant and descendant relatives of a per* 
 son who dies in consequence of an olTence or quasi offence, not on the rep- 
 resentatives (as Lord Campbell's Act does), but the offence or quasi offence 
 must occur in Quebec. 
 
 Can. Pac. Ry. Co. v. Parent, 20 Can. Ry. Cas. 141, 33 D.L.R. 12, [1917] 
 A.C. 195. 
 
 Accident — ^Proximate cause — Traix — Operation. 
 
 A verdict of a jury will not be set aside if they were justified in com- 
 ing to the conclusion that the direct cause of the accident was in the 
 arrangement and equipment of the train, and if there was evidence upon 
 which they might properly find that the negligence of the company was 
 in the system employed for tlie operation of the particular train. 
 
 Cheeseman v. Can. Pac. Ry. Co., 22 Can. Ry. Cas. 253, 40 D.L.R. 437. 
 
 [Reversed in 23 Can. Ry. Cas. 429, 57 Can.' S.C.R 439, 45 D.L.R. 257. 
 
 Dkfective system — Brakks — Fellow servant — ^Workmen's compensa- 
 tion. 
 
 The use of an auxiliary truck in substitution of a damaged car next to 
 the engine, unconnected with the braking apparatus, thereby reducing the 
 braking efficiency to one-half, is not of itself evidence of a defective sys- 
 tem so as to charge the railway company with common-law liability for 
 the death of the engineer when the cab of the engine was struck by it 
 in the process of shunting; the accident having been occasioned by the 
 negligence of a fellow servant in thus placing the truck, the liability of 
 the company was limited to recovery under the Workmen's Compensation 
 Act. [Cheeseman v. Can. Pac. Ry. Co., 45 N.B.R. 452, 22 Can. Ry. Cas. 
 253. 40 D.L.R. 437, reversed.] 
 
 Can. Pac. Ry. Co. v. Cheeseman, 23 Can. Ry. Cas. 429, 57 Can. S.C.R. 
 439, 45 D.L.R. 257. 
 
 NEW TRIAL. 
 
 See Pleading and Practice; Negligence; Street Railways; Employees; 
 Crossing Injuries. 
 
 NOT GUILTY. 
 
 See Pleading and Practice. 
 
 NOTICE. 
 
 See Expropriation, 
 
 NOTICE OF. ACTION. 
 
 See Street Railways (J) ; Claims. 
 
ST7ISAXCE. 545 
 
 Mc3ncirA£ aamnmjOKfjf — Sckficikxct of :xancE. 
 
 Claimiag daa^ges against a mnnicipalitr '^or smashing plaintlfTa anto- 
 ■Mihilr bf car No. 46 on Comberland St. Xortli this moniing^ is a sofBcieBt 
 aotiee ot aetimi, if any be necessarr. 
 
 Kmisisto T. PMt Arthur, 20 Can. Rj. Gas. 335, 37 OXJEL 146, 31 DXJK 
 670. 
 
 AcnOX F(W DAMAGES — ^NOTICE OF ACTIOS VJfVBK STATITIE — DWACXT — EF- 
 FBCT OF OMISSIOX OT JiCmCB. 
 
 An Act which requires persons baring claims for damages against a 
 steevt raihraj otMopany to give a month's Botiee in writing before bring- 
 ing action does not subordinate the ri^i of action to the obeerrance oi 
 sodi fonnalitjr. It is only req[nired to render less onerous, for the com- 
 paay, the settlement of claims in ease of accidents for which it is respon- 
 tSUt. Tlwrefore, the omission to give notice does not inrolTe rejection 
 d the aeCJOB and has no other result than to subject the party in default 
 to costs. 
 
 Montreal Street Ry. Co. t. Patenaude, 16 Que. Q.B. 541. 
 
 Ooxmnox pbeoedest — ^Dii.atc«t excbphox. 
 
 ne provision in the charter of the Montreal Street Ry. Co., compelling 
 any one desiring to bring an acticMi against the cranpany for damages to 
 give 30 days' notice does not make such notice a condition preeedent to 
 the right of action; it is merely one of the prejudicial requireanents the 
 unobserrance of which should be invoked l^ a dilatory exoeptioo. 
 
 Kattiee v. Montreal Street Ry. 0>., 20 Que. S.C. 222. 
 
 NOTICE OF CLAIMS. 
 See Claims. 
 
 NOTICE OF IX>SS. 
 
 See Claims; Limitation of Liability. 
 
 NUISANCE. 
 
 As to embankment causing flood, see Embankment. 
 See Street Railways. 
 
 Annotations. 
 
 Operation of railway creating nuisance. 1 Can. Ry. Cas. 454. 
 Nmaaaee resulting from exercise of public franchise. 2 Can. Rt. Gas 
 303. 
 Notice arising from exercise of statutory privilege. 5 Can. Ry. Gas. 439. 
 Xuisance causing continuing damage. 2 Can. Rr. Cas. 309. 
 Injuries caused by operation of a railway. 20 Can. Ry. Cas. 109. 
 
 ORBKATIOX of KACHINEBT — COXTUSTTIXe SXHSAXCK — ^NeGUGEXCE — ^VlBEA- 
 TIOXS, SMOKE, DCST, ETC. — StATUTOBY FSAXCHISE. 
 
 Where injuries caused by the opoation of machinery have resulted from 
 the imskilful or negligent exercise of powers conferred by public authority 
 and the nuisance thereby created give* rise to a continuous series of torts, 
 the action accruing in consequence falls within the provisions of Art. 
 2261, C.C. (Que.), and is prescribed by the lapse of two years from the 
 date of the oeeurreaee of each successive tort. In the present case, the 
 permanent charaeter of the damages so caused could not be aMaaaed from 
 Gan. Ry. L. Dig. — 35. 
 
546 iVUISANCE. 
 
 the manner in which the works had been constructed and, as the nuisance 
 might at any time be abated by the improvement of the system of opera- 
 tion or the discontinuance of the negligent acts complained of, prospective 
 damages ought not to be allowed, nor could the assessment, in a lump 
 sum, of damages, past, present and future, in order to prevent successive 
 litigation, be justified upon grounds of equity or public interest. Judg- 
 ment appealed from reversed, the Chief Justice and Girouard, J., dis- 
 senting. [Fritz v. Hobson, 14 Ch. D. 342, referred to; Gareau v. Montreal 
 Street Ry. Co., 31 Can. S.C.R. 463, distinguished.] 
 
 Montreal Street Ky. Co. v. Boudreau, 36 Can. S.C.R. 329. 
 
 [Applied in Montreal v. Montreal Brewing Co., 18 Que. K.B. 406; fol- 
 lowed in Lapointe v. Chateauguay & Northern Ry. Co., 38 Que. S.C. 142.] 
 
 Smoke — Noise — ^Vibration. 
 
 Where there has been a manifest disturbance of enjoyment and viola* 
 tion of rights of ownership, e. g., by the smoke, noise and vibration caused 
 by the operation of machinery on an adjoining property, the person so dis- 
 turbed in his enjoyment is entitled even without proof to any precise 
 amount of damages suflered, to nominal or exemplary damages. More- 
 over, on a question of the appreciation of damages, the Court of Appeal 
 will not disturb the award of the Court below, in the absence of any 
 special ground for doing so. 
 
 Montreal Street Ry. Co. v. Gareau, 13 Que. P.R. 12. 
 
 Electric light iwyer house — Vibratiox — In junction — Damages. 
 
 An electric light company incorporated under the Ontario Companies 
 Act, R.S.O. 18!)7, c. 200, purchased a piece of land adjoining plaintiflF's 
 residence and erected a transforming and distributing power house there- 
 on. By the working of the engines so much vibration was caused in the 
 adjoining land as to render the plaintitT's house at times almost uninhab- 
 itable and to create a nuisance though doing no actual structural injury. 
 The company had no compulsory powers to take lands, and no opportunity 
 had been afforded the plaintiff of objecting to the location of its works. 
 Moreover the company was under no compulsion to exercise its powers, 
 nor was any statutory compensation provided for any injury of the char- 
 acter in question done by such exercise, nor was there any evidence that 
 the company's powers might not have been exercised so as not to create a 
 nuisance: — Held, that the plaintiff was entitled to an injunction and a 
 reference as to damages. 
 
 Hopkin V. Hamilton Elec, etc., Co., 4 O.L.R. 258, affirming 2 O.L.R. 240 
 
 Carriage of animals — Proper exercise of powers — ^Negligence. 
 
 Railway companies to which the Railway Act applies are authorized by 
 law to carry cattle and hogs, and as a necessary incident thereto for the 
 purpose of shipping the animals to have pens for herding them, and they 
 are not liable if, in the proper exercise of their powers in doing so, with- 
 out negligence, they create a nuisance. [London & Brighton Ry. Co. v. 
 Truman (1885), 11 App. Cas. 45, followed.] 
 
 Bennett v. Grand Trunk Ry. Co. et al., 1 Can. Ry. Cas. 451, 2 O.L.R 
 425. 
 
 [Relied on in Barrett v. Can. Pac. Ry. Co., 16 Man. L.R. 556, 3 W.L.R. 
 132; referred to in Bessette v. Can. Pac. Ry. Co., 24 Can. Ry. Cas. 113,] 
 
 Vibration and smoke — Authorized industry. 
 
 The fact that a company has been authorized by the Legislature to carry 
 on an industry does not relieve it from the legal obligation to rectify any 
 
NUISANCE. 547 
 
 njorr tkat tibe workii^ of this imdostrj naj cause to ■ eigMw wi iL ig ows- 
 cr». 'iCmm. Par. Kt. Co. t. Roy, » Que. Q3. 551, foOowvd.] Wfca tW 
 carnrn^ oa <rf aa iadnstrr m» ia a ananfictiiri^ eartrr rpsohs in a 
 pvejndiee to artghiwiiiag wa e i* to aa exteat wludi snrpasees the <Hili- 
 aaij iaeaBveuoMcs of rieiaa^e — for exaaiple, tt f oa gh vilvatiaBS cansed 
 bf puwafal —rfciargy aad thmq^ jiiil e <hirpj witk soot vkieh «!<cape!< 
 fniM Ifte fanncea— he wko carries oa this iadastrjr is ohi^ed to rectify 
 Uw fsejadice so eaaaed. 
 
 HMrtreal Street Rt. Co. t. Gamn. 2 Caa. St. Ca$. 2M, 10 Que. Q.B. 
 417. 
 
 [Allied ia Garean t. Moatnal Street Rj. Col, 31 Caa. S.C.R. 4«7, 2 
 Cka. R^. Cms. 297.] 
 
 OtoEKAXiox or EUECTKic kah-vat — Fovea hocsc sucHmEsr — ^Vmuno.xs. 
 
 SSfOKE AXa XOC^ IXJTKT TO ABJOtXISG HM T Iiail . 
 
 SiotwithBtaadi^ tbe ^irilegea eaafcrred tj- its Art of laeorpoiatkni 
 apoa aa eleetrie street railvaj conpaay for the coBStrartioa and opera- 
 tioa of aa eleetrie tramvaj opoa the poUic tho i oa gh fares of a citT. the 
 iiaayiBj is respoanble ia daauges to the owaer« oi faop ei t* adjoiaiag 
 Ha power ho«se Im- aar sfaroctaral iaXnries caused br the Tibratioas pn»- 
 teeed hf its aHuhiaerT, aad the diaitnotioa of reatak aad value therebf 
 nmiinfd [DiTsdale t. Ijog^s. 26 Caa. S.C.R. 20, foDovcd.] Ia aa 
 actina hf the uaaci <rf adjoiaii^ jft aygr ty for diawges thus caaaed, the 
 erideaee was eoatradietorT aad ^e Cearts hriov gare effect to the teati- 
 ^aj of wieatifie witae^es ia piefer^Me to that of persoas acqinaiated 
 with the loealitT: — Held, that a o t a ith staadiag the c u m iui eat fiadings of 
 the Coarts hAfw, as the witaenes wse eqiuaDj credible, the eciAeaee of 
 those who tjfokr from persoaal kaoa ledge of the facts oi^t to have been 
 p ie f e ii ed to that of persoas giria^ opiaioas based SMrehr apoa seicatifie 
 ohiei i a tioaR. Ia rercrsia^ the j u d gta t appealed frout, the Saprene 
 Coait, ia the iatcxest of both parties, assesaed iamagtA, oace for alL at 
 aa ■■oaal d teand snfieieat to iadcanlffjr the piaiatiff for all iajuries. 
 past, preaeat, aad fotare, resaltiag fira^ the aaiaaace coai^aiaed of. 
 dbaaid At dec! to acccfit the aaoaat so estiaiated ia foil satisfaetioa 
 t h ere of ; otheraise. &e record vas orde r e d to be traasautted to the trial 
 Goart to have tte aaaant of daaages detcnaiaed. 
 
 Gareao t. Moatrcal Street Rr. Co^ 2 Caa. Rr. Cas. 297. 31 Caa. S.C.S. 
 •MS. 
 
 [Notc^ — ^Tkis case is not aa appeal froat that of lloatreal Street Rj. 
 Co. T. Friix Garean^ 10 Que. K.B. 417. 2 Can. Rr. Ck& 2S6. FoDoacd ia 
 Boadrcan v. Moatrcal St. Ry. Co_ 13 Qae. K.B. 533; Darie \. Moatrcal 
 Water 4 Pover Co^ 23 Qne. S.C. 141.] 
 
 OnEacBuasKD stseet cak — Ixaoeqcate cam. sx^iniEyri — EIXDA:«aEXi3(« 
 
 PCaUC COMFOBT — COXTIXTASCE — IXOICTMEVI. 
 
 The iatcatioa <rf s. 223 of the Cr. Code. 190« (Cr. Code, l»t2, a. U3), 
 vhich was takea from $. laiS of titt English draft Otauaal Code, is to 
 leave aatooehed the conaMa-laa' ri^rt to ^occed hj iadietawat vr iafor- 
 lastina as a reawdr for a pnblie anisaace not inrolThi^ poblie safety or 
 pablit health or occasicaiag iajnrr to the person of aa iadiridnal (Cr. 
 Code, s. 222 >, bat which merrir nidai^ers the property or comfort of the 
 paUie (O. Code, s. 2211 ; the latter renaias a criaie. but the remedly is 
 aow rcstrietcd hf Ct. Code, «. 223, to that of abatesMst. A ani- 
 saaea Maiataiaed by a eoMpaay which operates a street railway 
 oB city atreets hj tte ■jutiMilii aad eoatiaoed ov w r c tow d ing of cars 
 
548 NUISANCE. 
 
 through failure to put on a proper equipment is none the less a public or 
 common nuisance and indictable as such, although only a portion of the 
 general public who used the ears had their comfort or property endan- 
 gered by the overcrowding. [R. v. Toronto Ry. Co. (No. 1), 18 Can. Cr. 
 Cas. 417, 23 O.L.R. 186, ailirmed on appeal; Macdonald v. Hamilton, etc.. 
 Road Co., 3 U.C.C.P. 402, referred to.] Judgment for the abatement of it, 
 on a conviction for a public nuisance, cannot be given unless the nuisance 
 continues at the time of the indictment. 
 
 Rex V. Toronto Ry. Co., 25 D.L.R. 580. 
 
 [Reversed in 23 Can. Ry. Cas. 183, [1917] A.C. 630, 38 D.L.R. 537. 
 
 Snow and ice — Removal of from iircHWAY — Repairs. 
 
 The efficient removal of snow and ice from a highway, in accordance 
 with statutory powers given, by a municipality does not create a nuisance 
 for which damages can be recovered. [Elliott v. Winnipeg Elec. Ry. Co., 
 22 Can. Ry. Cas. 258, 38 D.L.R. 201, followed. Note. This case was re- 
 versed in 23 Can. Ky. Cas. 194. 42 D.L.R. 106, and trial judgment re- 
 stored.] In determining whether a liighway is in repair at the time an 
 accident occurs, it is necessary to take into account the nature of the 
 country, the character of the roads, the care usually exercised by munic- 
 ipalities in reference to such roads, the season of the year and the nature 
 of the accident. 
 
 Clark v. Winnipeg and Winnipeg Elec. Ry. Co., 40 D.L.R. 533. 
 
 Municipal corporatioxs — Smoke regulation — Railway roundhouse. 
 
 The smoke stack of a locomotive engine is not a flue stack or chimney 
 within clause 45 of s. 400 of the Municipal Act, R.S.O. 1914, c. 192, which 
 empowers municipal councils to pass by-laws for smoke regulation; and a 
 railway company is not liable to conviction under clause 45 for the dis- 
 charge of smoke from its locomotives while in the roundhouse. [R. v. 
 Can. Pac. Rv. Co., 23 Can. Cr. (as. 487, affirmed on a different ground.] 
 
 R. V. Can.' Pac. Ry. Co., 19 Can. Ry. Cas. 311, 33 O.L.R. 248, 25 D.L.R. 
 444. 
 
 Alteration of highway — ^Violation of statute — Remedy. 
 
 One who suflFers special damage by reason of a nuisance created in a 
 highway, by the execution of certain works under statutory powers, has 
 a right of action at common law, if conditions precedent to such execu- 
 tion prescribed by statute have not been observed. [Burt v. Dominion 
 Iron & Steel Co., 40 N.S.R. 335, 19 Can. Ry. Cas. 187, reversed.] 
 
 Dominion Iron & Steel Co. v. Burt, 20 Can. Ry. Cas. 134, [1917] A.C. 
 179, 33 D.L.R. 425. 
 
 Railway upon highway — Statutory powers conferred — Snow and ice. 
 
 Where statutory powers have been conferred in respect of a public high- 
 way, the efficient exercise of these powers in accordance with the provi- 
 sions of the statute does not create a nuisance for which damages can be 
 recovered. 
 
 Elliott v. Winnipeg Elec. Ry. Co., 22 Can. Ry. Cas. 258, 28 Man. L.R. 
 363, 38 D.L.R. 201. 
 
 [Reversed in 23 Can. Ry. Cas. 194, 42 D.L.R. 106, 56 Can. S.C.R. 560.] 
 
 Endangering public comfort — Overcrowding of street cabs. 
 
 The franchise granted to a street railway company by agreement be- 
 tween it and the municipality, confirmed by the Provincial Legislature, 
 to operate street cars on the public streets does not make the overcrowd- 
 
IfUISAXCE. 549 
 
 big of iht street can a pvdilie wousaact vitkim Cr. Code, s. 223, where tke 
 Urea, safety or fcealffc <rf tibe poUie are not endaiigered aad «]mx« bo n- 
 jarj is oeeaaiaiied to the permn of aar indiridaal (Cr. Code, &. 222) ; and 
 a de MU ie t to an indirtoKnt in so far as it chai^ged same dboold Imts 
 been alloved. [B. v. Toronto By. Co., 25 Can. Cr. Cas. 183. 25 DJLB. 
 58«, 31 OJLuB. 5S9, reversed.] 
 
 Totxmto St. Co. r. Hie King, 23 Can. Ry. Gas. 183, [1917] A.C. C3«. 
 38 DXIL »37. 
 
 tswtcntEXTS ram ptbijc xtisasce. 
 
 The effect of s. 223 of the Criminal Code is to leave jndictifiit as a 
 method of i^oeedare for tiring: the general questioB vhethcr a. »nmmiwi 
 ■uaaaee to the detrimest of the psv^rtr or comfort of the poblic pem- 
 ttmXfyf tto^h not affecting life, safety or health, has beat eo^^uttcd: 
 hat wken life, safety or health is not inToIred (Or. Code, a. 222), the eon- 
 vietiaa «■ —eh iadietmeBt is not for a erime hot for a eiril vrong only 
 aad the emmaqpeatia] procvedings to which s. 223 refers are not f<»' the 
 fiiinishi nt of the person eonrieted but for the ahatenwnt or reaaedr of 
 the ■iwhief done. 
 
 Toroato By. Co. r. The King. 23 Can. By. Gas. 183, [1917] A.C Ot. 
 38 DXJL 537. 
 
 RaILWAT ox HKHWAT SXOW AXD ICE — TJSSXFB — Dahagesl 
 
 Iflliere statutory power has been eoaferred on a street raflway coaa- 
 paay for the removal of sndw from its tracks "so as to afford a safe and 
 nnobstmeted passageway for carriages and vehieles" the company is lia- 
 Ue in damage;!^ if in the exercise of sadi power it renders the highway 
 unsafe for tTaffic thereby causing injury to a pedestrian. [Elliott t. Win- 
 tapeg Eke. By. Cos 28 ifan. UEL 363, 22 Gaa. By. Gas. 258, 38 D JJBL 201, 
 rewaed.] 
 
 Elliott T. ^^^BBipeg Elec. By. Co., 23 Caa. By. Gas. 194, 42 DXJL 19C, 
 56 Gaa. &CB. 560. 
 
 OBSTBXTCnOV. 
 See Hig)iway Crossings (B«. 
 
 orrzNCEs. 
 
 See Crimes and Offences. 
 
 OPEBATIOK OF BAILWAT. 
 
 See Railway Board. 
 
 Negl^cBt operation of railway, see Nt^gligenoe : Carriers <rf Pasaemgersx 
 Carriers of Goods; Garriage of Live Stock; Fires; CrooBli^ lajories; 
 Street Bailways; Employees; Xcisanee: Pleading and Practice (H). 
 
 PABTICUIJkB& 
 See FleadiBs aad Practice. 
 
 PABTTES. 
 See Pleading and Practice; Third Party Procedure. 
 
550 PATENTS EOR IXVENTIOJS^S. 
 
 PASS. 
 
 See Employees. 
 
 PASSENGERS. 
 
 See Carriers of Passengers; Train. 
 
 PATENTS FOR INVENTIONS, 
 
 Railroad tik plates — Xovklty — Patkmabh.ity. 
 
 S., the plaintiffs' predecessor in title, obtained Canadian letters patent 
 for improvements on wear plates for railroad ties, which, according to the 
 specification, consist in a flat, or comparatively fiat, body portion, pro- 
 vided at its opposite sides with depending flat-edge flanges a^lapted to 
 enter the wooden body of the crossties without injuring ihe same, whicli 
 flanges are relatively parallel and lie in planes approximately at right 
 angles to that of the said body portion. Tlie inventor claimed { 1 ) a wear 
 plate for railroad ties consisting of a body liaving projecting flanges at its 
 side edges; and (2) the combination with a railroad rail and supporting 
 crossties of a wear plate consisting of a body having projecting side flanges; 
 said plate being interposed between the rail and tie with its flanges entered 
 into the tie longitudinally or parallel with the grain or fibres of the tie. 
 The substance of the invention was the projecting or depending flanges at 
 the edges of the plate adapted to enter the wooden body of the crossties 
 without injuring the same. S. had also obtained an earlier patent in 1882, 
 which only difi"ered from the one above set out in having one or more 
 flanges or ribs placed under the plate for insertion into the tie, its object 
 being the durability of railway ties. Prior to S.'s alleged improvements, 
 iron or steel plates had been used as tie plates, and it was common knowl- 
 edge that the insertion of such a plate between an iron or steel rail and a 
 wooden tie would give greater durability to tlie rail. It was also a matter 
 of general knowledge that reduction of the weight of the plate without 
 loss of strength could be effected by using channel iron or angle iron, or 
 by having the plate made with flanges or ribs. It was equally a matter of 
 common knowledge that if such flanges or ribs were sharpened they could 
 be driven into the tie, and that such flanges or riljs would in that position 
 assist in holding the plate in place: — Held, that there was no invention 
 in either of the improvements for which S.'s patents were granted. (2t 
 Costs were withheld because the judgment proceeded upon a defence not 
 raised in the pleadings, but in respect of which defendant was allowed to 
 amend the statement of defence after trial. 
 
 Servis Railroad Tie Plate Co. v. Hamilton Steel & Iron Co., 8 Can. Ex. 
 381. 
 
 Em ri.oYKF.'.s Ixvkxtions. 
 
 \Vliere a form of license to use a patented invention was signed by the 
 employee in whose favour the patent had been issued, to license the em- 
 ployers, a railway company, to use the same for a nominal consideration 
 of one dollar without royalty or further payments being thereby provided, 
 and the railroad company objected to the inclusion of a clause in the 
 license which purported to restrict the license so as to exclude the use of 
 the invention by certain allied railway companies and gave notice of such 
 objection to the proposed licensors, and the license was not executed by 
 the company nor was anything done towards its acceptance further than 
 the retention by the company of the copy forwarded to them, such reten- 
 tion without registration thereof will not be held to be an acceptance of 
 
PATEXTS FOR IXVEXTIOXS. 551 
 
 the a giicf t iMBdiBg vpm the conpanj, if it appears that the alleged 
 iaveBtioB vas pnfeeted ia the course of the eraplovee's work for the eom- 
 paDT a»d that the UeeasiHV kaear that the etHnpaay alvajs deBiaaded from 
 oBplorees vha iavcated a device nsder such cireninslaaees aa absohite 
 liccase vithovt cost to the compaaT for the use of the iareation on their 
 ova aad all allied lines. 
 
 Imperial Sapplr Co. r. Grand Tnmk St. Co., 1 DX.B. 243. 10 EJJR. 
 414. 13 Caa. i:x.'j07. 
 
 [Referred to ia 7 D.Ia.R. .504, 14 Can. Ex. 88.] 
 
 S.U^ — ^LlCeXSE — ^ASSIGMIEXT- 
 
 Whree a serraat derives an inreBtifMi in the time and at. fiie expoise of 
 his master and with the as'^ of the masters materiaL and. haTin^ obtained 
 a patcai for the invention, assents to its use by the master, the proper con- 
 rhuMMi is that he has given the master an irrevocable license to use the 
 iareatioaL The qnestioo of the respective r^ht« of master aad servant 
 ia pateats obtained by the servant most be decided in each particalar case 
 upon the facts of that case. 
 
 Imperial Supply Co. t. Grand Tmak Ry. Co., 7 DX.JL aOi, 11 EJJR. 
 310, 14 Caa. Ex.'88. 
 
 EarTotm. TO oext taumtt (V patent. 
 
 A anster who nses an invention under a license fron his serrant. the 
 patcatce. whiA license is not express, but is implied by law frma their 
 rdatioBship and from the circumstances surrounding the invnition is es- 
 tapptd fraia denying the validity of the patent. [Imperial Supply Co. v. 
 Grand Tmak Ry. Co. (Xo. li, iDiJL 243. 13 Can. Ex. .507. referred to.] 
 
 Imperial Supply Co. v. Grand Tmak Ry. Co., T DXJL 504, 11 EXJL 
 340. 14 Can. Ex. 88. 
 
 l5TEXTI03f <»■ SEBTAXT — OWSHBSHIF. 
 
 In the abe^ce of a special contract, the invention of a servant, erea 
 thoa^ aiade ia the master's time, and with the use of the masters ma- 
 terial and at the expense of the master, does not become the property of 
 the master, so as to justify him in opposing the grant of a patent for the 
 i reati on to the servant, who is the proper patentee. [Re Marshall aad 
 Kaylor's PSitent, 17 R.P.C. 5.>3. referred to; Worthingttm Pumping &^Be 
 CoJt. Moore^. 20 R-P.C. 41. distinguidied.] 
 
 Imperial Supply Co. v. Grand Trunk Ry. Co., 7 DXJL 504, 11 KT^R. 
 310, 14 Can. Ex. 504. 
 
 PETITION or RIGHT. 
 Sec Goveraawnt Railwavs: .Jurisdictioa. 
 
 PIPES. 
 See Wires and Poles (B). 
 
 PEAKS. 
 See Exprq^iatioa (J). 
 
 See Pleadii^ and Praetiee. 
 
552 PLEADING AND PRACTICE. 
 
 PLEADING AND PRACTICE. 
 
 A. Statement of Claim; Particulars. 
 
 B. Pleas. 
 
 C. Reply; Amendments. 
 
 D. Parties; Joinder; Names. 
 
 E. Service; Venue. 
 
 F. Trial; Jury; Findings. 
 
 G. Evidence; Witnesses. 
 
 H. Stay of Proceedings; Security. 
 I. Judgments; Motions. 
 J. New Trial; Misdirection; Nonsuit. 
 K. Third Party Procedure. 
 
 See Discovery; Street Railways. 
 
 Annotations. 
 
 "Not Guilty by Statute." 1 Can. Ry. Gas. 526. 
 
 lliird Party Procedure. 1 Can. Ry. Cas. 532. 
 
 Jury findings and general verdict in cases of negligence. 2 Can. Ry. Cas. 
 337. 
 
 Practice in proceedings upon examination for discovery. 2 Can. Ry. 
 Cas. 405. 
 
 Practice in service of process on railway companies. 3 Can. Ry. Cas. 
 134. 
 
 Findings and functions of jury. 3 Can. Ry. Cas. 301. 
 
 Inference and permissible probability. 13 Can. Ry. Cas. 319. 
 
 General issue and plea of not guilty by statute. 13 Can. Ry. Cas. 512. 
 
 A. Statement of Claim; Particulars. 
 Pabtictilaks — Claim of dedication. 
 
 In an action by the provincial Attorney-General for a declaration that 
 the public had a right of access to the sea over the embankment of the 
 C.P.R. via certain streets in Vancouver, it was alleged that in 1870, Her 
 Majesty, by the officers of her colony of British Columbia, laid out and 
 planned a town site on Burrard Inlet and dedicated certain parts of the 
 town site to public uses: — Held, that plaintiff must give (1) particulars of 
 the authority under which the town site was laid out; (2) of the nature 
 and dates of dedication and by whom made, and (3) of what portions of 
 the town site were dedicated. 
 
 Attorney-General v. Can. Pac. Ry. Co. (No. 2), 10 B.C.R. 184. 
 
 Genebal allegation of illegality — Debentures. 
 
 Particulars will be ordered to be given of a paragraph in a contestation, 
 alleging generally the illegality of an issue of debentures, without averring 
 in what the illegtility in question consists. 
 
 Connolly v. Baie Des Chaleurs Ry. Co., 4 Que. P.R. 178. 
 
 Statement of claim — Delay in moving — Con. bule 268. 
 Delap V. Can. Pac. Ry. Co., 4 O.W.N. 416, 23 O.W.R. 644. 
 
 Pabticulaks — Negligence — Death in bailway accident — Res ipsa lo- 
 
 QUITUB — DiSCOVEBY. 
 
 Madill V. Grand Trunk Ry. Co., 3 D.L.R. 876, 3 O.W.N. 1333. 
 
 Statement of claim — Sufficiency of allegations — Animal killed. 
 A statement of claim in writing that on a certain day, near a certain 
 
PLEADING AND PRACTICE. 553 
 
 place, i^intiff's horse was killed by the defendant railway- companr's 
 engine, to his damage in a certain sum, is a fairly eomprehensive state- 
 ment of the facts shewing what the cause of action is for, w ithin the mean- 
 ing of s. 95 of the County Courts Act. R.S3I. 1902, c. 38, allowing a 
 "simple statement in writing of the cause of action such that it may be 
 known or understood by a person of ordinary intelligence what the action 
 is brought for.'' Where a statement of claim is defective in that it does 
 not fully disclose a cause of action, but the evidence does shew a cause 
 of action, and there is no surprise of the opposite party, the trial Judge 
 should amend if be thinks an amendment necessary'. 
 
 SUtt V. Can. Northern Ry. Co., 15 Can. Ry. Cas, 333, 23 Man. UEL 43, 10 
 D.L.R. 544. 
 
 AlXJEBATIOSS AB TO DAMAGES GeKOLAI. ^SpECIAI- 
 
 A general damage need not be specially pleaded, but special damage 
 most be pleaded in order that the defendant may not be taken by surprise 
 at the trial. 
 
 Staats T. Can. Pac. Ry. Co., 17 Can. Ry. Caa. 7, 17 DJ*.R. 309. 
 
 ESTOPFEI; — IXCOXSISTEXCT IX (XAnCS SWOKT STATEMENT. 
 
 A plaintiff suing a railway company for the value of logs cut in lumber- 
 ing operations and which had been set fire by sparks from a locomotive 
 of the railway line which ran through the timber limits, will, in the 
 ■bnenre of satisfactory evidence of mistake, be held to the statement made 
 in his sworn return to the Goremment agent of the number of 1<^ de- 
 stroyed by the fire. 
 
 Dntton T. Can. Northern Ry. Co., 19 Can. Ry. Cas. 72, 23 DXuEL 43. 
 
 PaKTICXLABS ^AOCIDEXT TO TKAET. 
 
 In an action for damages against a railway company occasioned by the 
 derailment and wrecking of a train, it is not necessary to particularly 
 specify, on a claim for general damages, the negligence alleged in the 
 particulars of claim : the fact that damage is done by something getting out 
 of cmitrol which normally is. or ought to be, under e<Mitrol. raises a pre- 
 sumption or rational inference of fact, that the accident is due to the neg- 
 ligence of the user or his servants, and an order by a Master for further 
 particulars thereon cannot be supported, the occurroice itself when proved 
 warranting a finding of negligence. 
 
 Mulvenna t. Can. Pac. Ry. Co., 15 DXJJ. 616. 
 
 Daicages fbom death — LoBD Campbeu-'s Act. 
 
 In an action under the Fatal Accidents Act, 1 Geo. V. c. 33. R.S.O. 
 1914, c. 351, an order for a statement of particulars from the parents of 
 the benefits received from their son during his lifetime should not be made 
 as it would be cmnpelling the plaintiffs to give particulars of the evidence 
 by whidi they intended to support their claim. 
 
 Mulvenna t. Can. Pac. Ry. Co., 15 DXJL 616. 
 
 PaKTICULAKS — WoKKitES'S OOJCPEXSATIOS CASES. 
 
 S. 15 of the Workmen's Compensation for Injuries Act^ R-S.O. 1897, 
 c. 160, R.S.O. 1914, c. 146. requiring that where the injury complained of 
 has arisen by reason of tie negligence of any person in the defendant's 
 service, particulars shall be given by the plaintiff of the name and descrip- 
 tion of such person, applies only where the claim is based on some specific 
 act of misconduct on the part of a fellow-servant, and is not intended to 
 
554 PLEADING AND PKACTICE. 
 
 sliift the onus thrown on the defendant in cases where the plaintiff can 
 rely upon the res ipsa loquitur rule. 
 
 i'ierce v. Grand Trunk By. Co., 16 D.L.R. 69. 
 
 T>OBD Campbell's Act — Conteavention of railway bules by company. 
 In an action against a railway company under Lord Campbell's Act for 
 negligence causing death,' an order should not be made that the plaintill' 
 deliver particulars of the railway company's rules and regulations in con- 
 travention of which the plaintiff claimed that a defective and improper 
 system was maintained in leaving switches unprotected, which had led to 
 the personal injury which caused the death. 
 Pierce v. Grand' Trunk Ry. Co., 16 D.L.R. 69. 
 
 B. Pleas. 
 Action of damages for death — Prescription — Plea of. 
 
 In an action by a widow for compensation for the death of her hus- 
 band from injuries received in the employ of the defendants: — Held. 
 Fournier, J., dissenting: — That at the time of the husband's death all 
 right of action was prescribed under Art. 2262, Que. C.C., and the pre- 
 scription was one to which the Courts were bound to give effect although 
 it was not pleaded. 
 
 Can. Pac. Ry. Co. v. Robinson, 19 Can. S.C.R. 292. 
 
 [Reversed, [1892] A.C. 481; distinguished in The Queen v. Grenier, 30 
 Can. S.C.R. 42.] 
 
 Loss of money order — Money had and recmved — Spexjial pleias — "Never 
 
 INDEBl'En." 
 
 An express company gave a receipt for money to be forwarded with the 
 condition indorsed that the company should not be liable for any claim 
 in respect of the package unless within sixty days of loss or damage a 
 claim should be made by written statement with a copy of the contract 
 annexed: — Held, that in an action to recover the value of the parcel, on 
 the common count for money had and received, the plea of "never in- 
 debted," put in issue all material facts necessary to establish the plain- 
 tiff's right of action. 10 Man. L.R. 595, reversed. 
 
 Northern Pacific Express Co. v. Martin et al., 26 Can. S.C.R. 135. 
 
 [Referred to in Leroy v. Smith, 8 B.C.R. 297; relied on in Fairchild 
 V. Rustin, 17 Man. L.R. 209.] 
 
 Vagueness of plea — Custom of employees of railway company. 
 
 In an action in damages by the widow of a railway conductor against 
 the railway company for the death of her husband, where the defendant 
 pleads that the victim took no steps to protect his own train, as required 
 by the rules and regulations of the company, and that such negligence 
 was the determining cause of the accident, it is not legal for the plain- 
 tiff to answer that the deceased "had done all that was customary for the 
 employees of the said railway company defendant," and such allegation 
 being too vague will be rejected on an inscription in law. 
 
 Lealiey v. Grand Trunk Ry, Co., 5 Que, P,R, 350. 
 
 Db:fence: — "Nor guilty by statitte." 
 
 A railway company cannot be required to give particulars of the defence 
 of "not guilty by statute." The right to plead such a defence, being 
 expressly preserved by Rule 286, the application of Rule 299 is excluded. 
 [Jennings v. Grand Trunk Ry. Co., 11 P.R. (Ont.) 300, overruled.] 
 
 Taylor v. Grand Trunk Ry. Co., 2 O.L.R. 148, 1 Can. Ry. Gas. 523. 
 
PLEADIXG AXD PRACTICE. 555 
 
 **XOT GCILTT BY STATCTE" — SpBCTFIC IKXLU. — ^XBCESStTT OT AJIENDMEST 
 AT TKLkL. 
 
 Hie pk» of Tiot guilty by statute" is not a speeific dmial of the repre- 
 smtatire rfiaracter of the plaintiff allied in the statement of claim. 
 Where, therefore, a plaintiff, as administratrix of her deceased husband. 
 w^ued a railway company for damages for causing his death by negli- 
 geace, and the company pleaded "not guilty by statute," but did not 
 qpeeificallr deny the representative character of the plaintiff: — Held, that, 
 atthongh the evidence shewed that the plaintiff was an infant at the time 
 letters of administration were granted, this fact was no answer to a 
 ■iwtioH for judsment on the verdict of the jury in favour of the plaintiff. 
 wa aamdment having bem asked for at the trial, and the ease having 
 been left to the jury on the pleadings as they stood. 
 
 Toll V. Can. Pac Ry. Co.. 8 Can. Ry. tas. 291. 1 Alta. LR. 244. 
 
 [Affirmed in 1 Alto. L.R. 318. 8 Can. Ry. Cas. 294; applied in Wliite 
 T. Grand Trunk Pac. Ry. Co.. 2 Alta. L.R. 535: observed in Winterbum 
 T. Edmtmton, Y. t P. Ry. Co., 9 Can. Ry. Cas. 8, 1 Alta. LR. 311, 8 WX.R. 
 7»5l] 
 
 AcnOX BT IXFAXT WITHOCT XKXT FRIE>'D — GKAUT OT lETTBES OF ADHTS- 
 ISTBATIOX TO VAt-IDITT. 
 
 "The Ordinance respecting Juries" was not brought into force in Alberta 
 hf reason of the repeal of the Xorth-West Territories Act by R.S.C. 
 1906, schedule "A.-' voL 3, p. 2941. [The effect of 6-7 Edw. VII. (D.> 
 e. 44, considered.] Independently of "The North-West Territories .\ct. 
 1905" (4-5 Edw. VII. ( D. i c. 27 • the effect of the Alberta Act was not to 
 repeal the former Xorth-West Territories Act. but to prevent its remaining 
 in force proprio vigore; and to continue (s. 16) in force the law therein 
 eoKtoined as a body of law. in the same manner as the common and stat- 
 nte law of England, as it stood on .July I5th. 1870. was introduced into 
 the Territories. If an infant sues, without naming a nest friend, it is 
 a mere irregularity, and may be waived by an unconditional appearance 
 ci the defendant. But quite independently of waiver there must in every 
 case be s4Hne stage at which it is too late to take advantage of a mere 
 irregularity. In any case the Judge can deal with it under rule 53S. 
 Letters of administration granted to an infant are not void, but void- 
 aUe; and snnble until revoked the infant can sue. qua administrator, and 
 need not be represented, when c« suing by a next friend. In an action for 
 ■cgligence. it is not improper to receive evidence as to what may have been 
 done by the defendants subsequently to remedy the defects or dangers 
 complained of. but the jury should be warned that such evidence taken 
 by itself is no evidence of n^ligence. If there be no other evidence of 
 negligence the case should be withdrawn from the jury. The evidence 
 in this case considered, as to whether the case should have been left to 
 the jury or not. It is within the discretion of the trial Judge to submit 
 special questions to the jury or not; but in either case the jury may ren- 
 der a general verdict. The words 'Hhe Court may give such damages," in 
 Cm. Ord. X.W.T. c. 48. s. 3. means the .Judge at trial, or the -Judge and 
 tfce jury, as the case may be. Semble. a verdict for $4,500, under the cir- 
 eoBstances of this ease, cannot seriously be excepted to. 
 
 Toll V. Can. Pac. Ry. Co.. 8 Can. Ry. Cas. 294. 1 Alta. L.R. 318. 
 
 Flea "xot Gmrr" — Histobt of. 
 
 History and effect of the plea* of "TCot guilty," and "Xot guilty by 
 itatute," traced asd discoased. The necessity of noting in the margin 
 
556 PLEADING AND PRACTICE. 
 
 of the plea, the statute permitting the plea, and the particular statute 
 relied on, discussed, with remarks ab inconvenienti in respect of these 
 pleas. [Toll v. Can. Pac. Ey. Co., 1 Alta. L.R. 244, 8 Can. Ry. Cas 291, 
 quaere; 9 Can. Ry. Cas. 1, 1 Alta. L.R. 92,. afTirmed]. 
 
 Winterburn v. Edmonton, Yukon & Pacific Ry. Co., 9 Can. Ry. Cas. 7. 
 
 Tax exejiptions — Defence of. 
 
 In an action by a city corporation against a railway company for 
 the recovery of taxes assessed against certain property belonging to the 
 company within the city limits, the company may set up as a defence the 
 exemption privilege provided in s. 14, c. 40, R.S.S., notwithstanding an 
 unsuccessful appeal by them from the assessment to the Court of Revision 
 and the dismissal of a subsequent appeal to a Judge of the District Court 
 on this very ground. 
 
 City of Prince Albert v. Can. Northern Ry. Co. (Sask.), 10 D.L.R. 121, 
 15 Can. Ry. Cas. 87. 
 
 [See Nickle v. Douglas, 37 U.C.Q.B. 51.] 
 
 C. Beply; Amendments. 
 Reply — Avoidance of formal rei-ease pleaded in defence. 
 
 Where the equitable defence of a release of the cause of action is set 
 up, the Court, on finding that the release was fraudulently obtained, may 
 refuse to give effect to the document without decreeing its cancellation 
 or annulment. (Per Macdonald, C.J. A.) Tlie plaintiff may properly 
 plead in reply that a release, which is set up as a defence in an action 
 for damages for injuries sustained through the alleged negligence of 
 the defendant, was obtained by fraud, since, under the Judicature Act, 
 both legal and equitable questions can be disposed of in the one action; 
 and it is not now necessary, as was the former practice, to file a bill in 
 equity to restrain the defendant from relying on the release as a bar on 
 the ground that it was fraudulently obtained. (Per Macdonald, C.J.A. ) 
 
 Trawford v. Elec. Ry. Co., 15 Can. Ry. Cas. .39, 9 D.L.R. 817. 
 
 [Affirmed in British Columbia v. Turner, 18 Can. Ry. Cas. 193.] 
 
 Amendment — Collision — Specification of tortious acts and negli- 
 gence. 
 
 ]. When a plaintiff in an action of damages specifically charges the 
 tortious act or negligence that caused the injury, he is estopped from prov- 
 ing any other at the trial, and the admission of such evidence by the 
 Judge is a sufficient ground to qiui«h a verdict in his favour. (2) Leave 
 to amend a declaration "so as to agree with the facts proved," will not 
 be granted if the amendment changes the nature of the demand, or is 
 such as to lead the defendant into error as to the facts intended to be 
 proved. In an action of damages caused by a collision with a tramcar, 
 in which it is alleged that "the car which struck the plaintiff was crossing 
 another car moving on the same street, in the opposite direction," the 
 plaintiff cannot, after trial, amend his declaration to make it set forth 
 that the second car was stationary and not moving. Leave granted him 
 to do so by the trial Judge is a sufficient ground to quash a verdict in 
 his favour. 
 
 Lemieux v. Montreal Street Ry. Co., 38 Que. S.C. 400. 
 
 Reply — Departure — Reformation of contract. 
 
 The plaintiffs alleged that they supplied the defendants, under an 
 agreement, with patent brakes for use on their railway, and that the 
 
PLEADDfG AXD PRACTICE. 557 
 
 defeaduits altered tbem and infringed the plaintiffs' patent. The de- 
 fieadanta alleged that they had a right under their agreement with the 
 plaintiffs to do what they had done. The plaintiffs, by their reply, de- 
 nied any such agreement, and alleged that if the written agreement did 
 give any sach right, it was not the true agreonent, and they a»ked to 
 hare it reformed: — Held, that there was no departure in the reply: for 
 the fact that, by mutual mistake, the written agreement did not set 
 forth the true agreement between the parties in this particular respect was 
 a perfectly good answer to the plea of the agreement, and it was not 
 necessary that the agreement should be actually corrected before the 
 mistake could operate as an answer to its terms. Held, also, that, even if 
 the portion of the agreement upon which the defendants relied wa$ con- 
 tained in the same instrument as the "agreement^ mentioned in the 
 statement of claim, the plaintiffs might, consistoitly with their rely- 
 ing upon one part of it. ask to hare another part reformed. 
 
 MacLanghlin v. Lake Erie A Detroit River Ry. Co., 2 OX.R. 151- 
 
 [Seversed in 3 O.L.R. 706.] 
 
 D. Parties; Joinder; NaaMS. 
 JoTsvat or defexdasts — Elbctiox lo pbocecd agatsst. 
 
 In an action brought against the G. k G. Ry. Co., the C. P. Ry. Co.. 
 and the Canada Foundry Co.. jointly, in which it was alleged that the 
 plaintiff was employed by the C.P.R. Co., to work upon the construction 
 of a line of railway being constructed by the C.P.R. Co.. under the name 
 <rf the G. & G. Ry. Co., leased and operated by the C.P.R. Co.. on which 
 the Canada Foundry Co. agreed to construct a steel bridge, and the plain- 
 tiff was ordered by his employers to assist in that work and did so: 
 that '^the defoidants" undertook the placing of a necessary girder and 
 the plaintiff assisted <m his employers' orders; that the work of placing 
 the girders was so negligently done that he was injured: that the appa- 
 ratus used, including the roadbed. wa« under the control of ^he defend- 
 ants;" that they wo-e negligent in not providing a safe roadbed and t&- 
 cient apparatus; that there were defects in the derrick and plan adopted, 
 and that '"the said aeeidoit happened by reason of the said n^:ligence 
 of the said defendants, and by reason thereof the plaintiff soffned the 
 injuries herein complained of: — Held, that the statement of claim snffi- 
 deatly alleged a joint cause of action, and the plaintiff was not bound 
 ti» elect against whidi of the several defendants he would proceed. 
 
 Sjwmm T. Gnelph 4 Goderich Ry. Co.. 13 OXuR. 47. 
 
 NHGUGEXCE — OPERATXHG TBACS ox LIXE of OTH^ eOMPAXT — Sc^SEQrrxT 
 AILALCAMATIOX — XaXE OF AX AMALCLAUATED COMPAXT. 
 
 A» ei^ine and train was operated over the road of the E. ft H. Ry. Co. 
 by the servants of the defendants, the two companies subsequently becom- 
 ing amalgamated by agreement confirmed by 2 Edw. Vll. c. 69 ( D. • . as the 
 L.E. 4 D. Ry. Co., which succeeded to the ri^ts and became subject to 
 the liabilities of both companies: — Held, that an action for negligence fiH* 
 injuries to the plaintiff caused while crossing the track, before amalgama- 
 tion, was ri^tly brought against the defendants, and an order to amend 
 or revive was superfluous. The jury awarded the plaintiff $1,600 for his 
 personal injuries (dislocation or fracture of collar bonet : — Held, exces- 
 sive, and a new trial ordered unless the plaintiff agreed to accept $1,200. 
 
 Brewer v. Lake Erie 4 Detroit River Ry. Co., 2 Gan. Rj. Cas. 237, 2 
 O.W.R. 125. 
 
558 PLEADIXG AND PRACTICE. 
 
 JOIjSDEE of parties — HUSBAXD AND WIFE — PERSONAL INJUMES LoSS OP 
 
 SERVICE, 
 
 Per Stuart, J.: — Where a married woman sues in tort to recover dam- 
 ages for personal injuries, and not in respect of either her separate, real 
 or personal property, it is not only ))roper to join the husband as a party 
 plaintiflF, but if he is not joined the defendant can insist upon the joinder, 
 either by motion in Chambers or summarily at the trial of the action. 
 The liusband has a right of action in himself alone for the loss of the serv- 
 ices of his wife occasioned by such injuiy. The wife herself has no cause 
 of action arising from such loss, and she cannot be joined as a party 
 plaintiflF with the husband in such form of action, llie individual action 
 of the husband for loss of services can be joined witli the action of the 
 husband and wife jointly for general damages for the injury suflfered by 
 the latter. Semble, that the Common-Law Procedure Act, 1852, s. 40, is 
 in force in Alberta, and quaere whether English Order 18, Rule 4, is in 
 force here or not. 
 
 Swan V. Can, Northern Ry, Co,, 9 Can, Ry. Cas. 251, 1 Alta. L.R, 427. 
 
 Joinder of action — Parties — Irregularity — Prelimin.Vry plea — Estop- 
 pel, 
 
 Two navigation companies which enter into a covenant with a railway 
 company to furnish ships to ply regularly between two jiorts, the consid- 
 eration being certain reciprocal obligations assumed by the railway com- 
 panj', can be joined in the same action to claim diverse sums, exigible by 
 each of the two companies from the railway company for breach of its 
 covenants. In any event, the irregularity of this joinder, if irregularity 
 there be, must be raised by the defendant by way of preliminary excep- 
 tion. By proceetiing to trial without raising it, the defendant is held to 
 have waived the objection, and is thereby estopped from founding there- 
 upon at tlie hearing upon the merits of the action. 
 
 Furness, Withy & Co, v. Great Northern Ry. Co., 10 Can. Ry. Cas. 440, 
 32 Que. S.C. 121. 
 
 [Affirmed on this point in 10 Can. Ry. Cas, 453, 42 Can, S,C.R, 234, 10 
 Can, Ry. Cas. 479.] 
 
 Joint action — Parties — Irregularity — Preliminary exception. 
 
 Two steamship companies who agree to provide a railway company 
 with steamers for a regular service between two ports, subject to recipro- 
 cal obligations, may join in the one action to recover from the railway 
 company, for nonexecution of its obligations, different sums of money due 
 to each of them. In any event, if such action is irregular, the point should 
 be raised by preliminary exception; by proceeding with the contestation of 
 the case without objection on its part, the railway company is presumed 
 to have acquiesced in the action and the point cannot be raised at the 
 hearing of the ease on its merits. 
 
 Furness, \\ithy & Co. v. Great Northern Ry, Co,, 10 Can, Ry, Cas. 
 453. 
 
 [Affirmed on this point in 42 Can, S.C.R. 234, 10 Can, Ry, Cas, 479.] 
 
 Infants — Suit by next friend — Adding at trial. 
 
 The bringing, by an infant under twenty-one of an action to recover 
 damages for personal injury without joining a next friend is a mere 
 irregularity which may be cured by adding a next friend at the trial, 
 when the circumstance of the original plaintiff not being of age was then 
 
PLEADIXG AXD PRACTICE. 559 
 
 first ii|iT«>i«i«««i without objcctimi kuTiiig prerioiislT beak taken. [Be Brock- 
 IdMBk, 6 Ch. D. 338, followed.] 
 
 Dorie t. Toronto Bj. Cos 16 Cu. Bj. Cas. 3S4, 15 DX.B. 747. 
 
 Cons — AoBCse paktt iwnEXDJLjrr — Mcxicxpautt — Xdgugexge. 
 
 Costs Bay properly be allowed a plaintiff where it appears reasonable 
 and proper fw hbn to add as a pnrty defendant a municipality eharigeaUe 
 Witt nc^iisence. (Ull t. Oakrille, il DJ^B. 113; Besterman t. British 
 Hotor Cmb. Co.. [1914] 3 K.B. 181, followed.] 
 
 Bnnvws v. Grand Trunk By. Cos 18 Can. By. Gas. 183, 23 DX.R. 173. 
 
 PAKnSS ^IXTCnVEXTlOX ISTEBEST ACQl^ISES PKXDEXTE LITE. 
 
 A pet»m having an nnrvgistered interest in land in Alberta within 
 tike knowledge of a railway company at the time of the service of the 
 "mtdiet to treaf in expropriation proceedings and registering his intere$^ 
 after sndi proceedings hare been commenced must be treated as a pur- 
 chasH* pendente lite because of the prmisifms of the Land Titles Act 
 (Alta.) 1906, e. 24. but may be allowed to intervene and be added as a 
 party to the arbitration proceedings. [Sanders v. Edmonton Dnnvegan 
 & bIC- By. Co., 14 D.L.B. 8S. 16 Can. By. Cas. 142. referred to.] 
 
 Be Edmonton, Dnnvegan k B.C. By. Co'., 16 Can. By. Cas. 396, 15 DXJL 
 •38. 
 
 [Varied in Sanders v. Edmonton Dnnv^an k B.a By. On, IS Gaa. By. 
 Cas. 71-] 
 
 E. SerrJes; Venne. 
 Sestics rpo^r »*itWAT — Jcmcattse .Act. 
 
 44 Viet. (1881), e. ] CD.), entitnled -"An Act respecting the Canadian 
 Pacific Bailway Company," Sdiednle A., s. 9 (1), providing for a place 
 of service in each Province or Territory is special legi£lati<», and is 
 mandatory, and quoad the C.P.B. Co.. it overrides the general provisions 
 as to aerriee of s. 14 (3) of the Judicature Ordinance. Judgment of Mc- 
 Guire, J., reversed. 
 
 Lammt v. Can. Pae. By. Co., 3 Can. By. Cas. 124, 5 Terr. LJL 60. 
 
 [Discussed in B. v. Massey-Harris Co.. 6 Terr. LJ8. 130.] 
 
 XonCB TO IIVKAT — SESVICE ox KEGISTEBED OWXEX OKI.T. 
 
 The aerriee off a notice to treat oi the expro{»iation of lands for rail- 
 way purposes need only be made upon the registered owner, and, in the 
 absenee irf fraud, the railway ctHupany may disregard an unregistered 
 interest of which they have notice: on the subsequent registration of an 
 interest in a part only of the land the holder thoreof may be added as 
 a party to the expropriation proceedings, bat he is not entitled to a 
 separate offer of compensation at a separate award against the company 
 for his portion. [Be Edmontan, Dnnvegan k B.C. By. Co., 16 Can. By. 
 Gas. 396. 15 DJJR. 938, varied. See also, on sufficiency of notice, Sanders 
 V. Edmonton, Dunvegan k JLC Uj. Co„ 16 Can. By. Cka. 1«, 14 DXJL 
 88.] 
 
 Sanders t. Edmonton. Dunv^an 4 British Cohunbia By. Co,, 18 C^ia. 
 By. Cas. 71, 18 DXuB. 633. 
 
 Vesce — ^Xbgugexce — PiACB OF Acnox. 
 
 An actitm for the ne^igeat destruction by a fire of the plaintiff's logs 
 piled in readiness for tranqmrtation need not be brought in the province 
 in which the logs were situate, but may be brou^t in another province 
 
560 PLEADING AND PRACTICE. 
 
 in which the defendant company carries on business. [Tytler v. C.P.R., 
 26 A.R. (Ont.), 467, followed.] 
 
 Button V. Can. Northern Ry. Co., 19 Can. Ry. Cas. 72, 23 D.L.R. 43. 
 
 Change of venue — Fkes: transportation. 
 
 Where the defendant seeking a change of venue was a railway com- 
 pany the order granting the change should be made conditional upon the 
 defendant's affording free transportation for the plaintiff and his witnesses 
 upon their line of railway to and from the place to which the venue 
 was changed. And where it appears from the affidavits read that a strong 
 feeling exists in the county in which the venue is laid which will make 
 it difficult to obtain a jury with no interest in the matters involved, the 
 Court will order the venue to be changed to a county in respect to which 
 no such difficulty exists. 
 
 Starratt V. Dominion Atlantic Ry. Co., 5 D.L.R. 641, 46 N.S.R. 272. 
 
 [Followed in Carrutliers v. Nova Motor Co., 8 D.L.R. 689, 46 N.S.R. 
 514.] 
 
 F. Trial; Jury; Findings. 
 
 NEeLIGENCB — P*INDINGS OF JURY — CONTRIBUTOKT NEGLIGENCE. 
 
 In an action founded on personal injuries caused by a street car the 
 jury found that defendants' negligence was the cause of the accident and 
 also that plaintiff had been negligent in not looking out for the car: — 
 Held, reversing the judgment of the Court of Appeal (2 O.L.R, 53) that 
 as the charge to the jury had properly explained the law as to contribu- 
 tory negligence the latter finding must be considered to mean that the 
 accident would not have occurred but for the plaintiff's owti negligence 
 and he could not recover. 
 
 London Street Ry. Co. v. Brown, 1 Can. Ry. Cas. 390, 31 Can. S.C.R. 
 f>42. 
 
 [Applied in Brenner v. Toronto Ry. Co., 40 Can. S.C.R. 556, 13 O.L.R. 
 423, 1 Can. Ry. Cas. 261; followed in Weir v. Amherst, 38 N.S.R. 489.] 
 
 Negligence — Specific findings. 
 
 In an action for damages for personal injury caused by a car of the 
 defendants, the jury found that defendants' negligence was the cause of 
 the accident, but also that the plaintiff might, by the exercise of reasonable 
 care, have avoided the accident. There was evidence sufficient to justify 
 both these findings. The trial Judge dismissed the action, following Lon- 
 don Street Ry. Co. v. Brown (1901). 31 Can. S.C.R. 642. On appeal, the 
 Court ordered a new trial on the ground that the jury's finding that the 
 plaintiff might have avoided the accident by the exercise of reasonable 
 care was not sufficient without their saying in what respect he failed to 
 exercise reasonable care, as the Court was iinable to determine from the 
 jury's finding whether the plaintiff was in law guilty of contributory neg- 
 ligence or not. The Court suggested that the proper course for the trial 
 Judge to take in such a case would be to submit to the jury two ques- 
 tions, such as, 1. Was the plaintiff guilty of negligence? 2. If yes, 
 what was this act of negligence? and that it would probably be well to 
 add a third question: Whose negligence really caused the accident? 
 
 Shondra v. Winnipeg Elec. Ry. Co., 21 Man. L.R. 622. 
 
 Negligence — Contributory negligence — Form of qiestions to jury. 
 When contributory negligence is set up in an action to recover damages 
 
PLEADING AXD PRACTICE. 561 
 
 iftr n^ligener, viiick is being tried before a jury the plaintiff is entitled 
 to a clear and distinct finding upon the point. In an action against a 
 sitreet lailvaj coapanj to recoTer damages, the jnnr, after finding in 
 answer to qmutiaiu that tlie defendants vere guilty of negligence, in 
 mnning at too high a rate of speed, not properly soundii^ the gong, 
 and not haring the car under proper control, and that the plaintiff'^ in- 
 jury was caused by this negligence, said in answer to further questions, 
 that the plaintiff was guilty of contributory negligence in not using more 
 caution in crossing the railway tracks: — Held, that this answer was 
 a^higBoas and ungatisfaetory, and, in view of the p i er iuus distinct an- 
 swers, not iairbr to be treated as a findii^ of contributory negligenee. Per 
 Osier, JJL: — Instead of putting in snc^ cases the qnestioa, '"Was the 
 plaintiff guil^ of contributory n^^igenee?^ involving as it does, both 
 the fact and the law, it would be better to ask, ~Conld the i^intiff by 
 the ^Lereise of reasonable care have avoided the injury?" and to pro- 
 vide fcM- the case of an affirmative answer by the further qnestimi, Tf 
 ■D, in aiiat reqiect do you think the plaintiff emitted to take naaoanhle 
 care?''* Judgment of Meredith, C^., reversed. 
 
 Brown t. London Street By.. 1 Can. Ry. Cas. 3S5. 2 OXJL 53. 
 
 [Bevencd in 31 Can. S.C.S. ft^ 1 Can. Ry. Cas. 390; referred to in 
 Hl^siej ▼. London Street Ry. Co., 16 OXJL 330.] 
 
 NbGUGEXCC — COVnUBUTtWT XEGUGCXCE — TtSUISGS OF tVKi. 
 
 On the trial of an action against a street railway company for damages 
 in iimwqm wi of injuries received throi^h the negligenee of the company's 
 auiants^ the jury answered four questions in a way that would justify 
 a Todiet for the plaintiff. To the fifth question: "Could R. by the 
 exercise of reasonable care and diligence have avoided the accident?" the 
 answer was: "We believe that it could have been possible:" — Held, re- 
 versing the jndgmoit of the Court of Appeal, that this answer did not 
 amount to a finding of negligence on the part of the plaintiff as a proxi- 
 mate cause of the accident which would disentitle him to a verdict. Held, 
 further, that as the other findings established negligence in the defendant 
 as the eaoae of the accident which amounted to a dmial of contributory 
 negligence; as there was not evidence of negligence on plaintiff's part in 
 the reetH^; and as the Court had before it aU the materials for finally 
 determining the questions in dispute a new trial was not necessary. 
 
 Rowan v. Toronto Ry. Co.. 29 Can. S.C-R. 717. 
 
 [Approved in Brown v. London Street Ry. Co., 1 Can. Ry. Cas. 385, 
 i OXkR. 53: distinguished in London Street Ry. Co. v. Brown. 1 Can. 
 Ry. Gas. 390. 31 Can. S.C.R. 651; CHeam v. Port Arthur. 4 OJ^R. 209; 
 Pooffe V. Can. Iron Furnace Co., 11 OX-R. 52, 10 D.UR. 37: followed in 
 Badgriey v. Grand Trunk Ry. Col. 14 O.WJL 425: referred to in Bell v. 
 Winnipeg Elec. Street Ry. Co.. 15 Man. L.R. 346: Halifax Elec. Tram 
 Cou V. Ii^lis. 30 Can. S.C.R. 258; SSieppard Pub. Co. r. Pr^s Puh. Co.. 
 10 OJjlR. 243.] 
 
 TkLU. — ^Xbgugexce or st«ket kjulwat — ^Momficatiox <» ixsTKrcnojrs. 
 
 Where, in a jury trial of an action for n^ligence against a street rail- 
 way company and a municipal corporation, the plaintiff desists from his 
 action as against one of two defendants jointly sued in damages and the 
 trial Judge thereupon modifies the assignment of facts to be submitted 
 to the jury, no prejudice is suffered by the remaining defendant if the 
 a sajgament of facts as modified allows the jury to find the accidoit was 
 doe otker to the negUgOMe of the plaintiff, or to that of the defendant or 
 to that of neither of them. 
 
 Moalxeal Street Ry. Co. t. Conant, 14 Can. Rv. Cas. 305. 7 DXJL 26L 
 Can. St. L. Dig.— 36. 
 
5G2 PLEADING AXD PKACTICE. 
 
 Negligence — Genekal verdict — Akswees to questions. 
 
 Where a jury retiirns a verdict in favour of the plaintiff and then at the 
 request of the trial Judge verbally give their reasons for the result, their 
 linding is nevertlieless a general verdict and their reasons may be dis- 
 regarded if there is sufficient evidence to support the linding. Qiiscre, 
 whether a jury's answers to questions must be in writing. 
 
 J3alfour v. Toronto lly. Co., 2 Can. Ry. Cas. 325. T) ().J.,.H. 735. 
 
 [Affirmed in 32 Can. S.C.R. 239, 2 Can. Ry. Cas. 330.J 
 
 Appeal — Question of procedure — ^Verdict — Weight of evidence. 
 
 The Supreme Court of Canada refused to interfere with a decision of 
 the Court of Appeal for Ontario in a matter of procedure, namely, whether 
 a verdict of a jury was a general or special verdict. The Court also re- 
 fused to disturb the verdict on the ground that it was against the weight 
 of evidence after it had been affirmed by the trial Judge and the Court of 
 Appeal. 
 
 Toronto Ry. Co. v. Balfour, 2 Can. Ry. Cas. 330, 32 Can. S.C.R. 239. 
 
 [Commented on in Jamieson v. Harris, 35 Can. S.C.R. 643.] 
 
 Cause of injury — Province of jury — Specific questions. 
 
 Where on the trial of an action based on negligence questions are sub- 
 mitted to the jury, they should be asked specifically to find what was the 
 negligence of the defendants which caused the injury; general findings of 
 negligence will not support a verdict unless the same is shewn to be the 
 direct cause of the injury. 
 
 Mader v. Halifax Elec. Tramway Co., 5 Can. Ry. Cas. 434, 37 Can. S.C.R. 
 94. 
 
 [Referred to in Toll v. Can. Pac. Ry. Co., 1 Alta. L.R. 332.] 
 
 Charge to jury — Misdirection — Objection at trial — Failure, Effect 
 
 OF. 
 
 Per Osier, J.A. : — There is no hard and fast rule which absolutely pro- 
 hibits the Court from entertaining an objection on the ground of misdi- 
 rection when the party has omitted to take it at the trial. 
 
 Brenner v. Toronto Ry. Co., 7 Can. Ry. Cas. 210, 15 O.L.R. 195. 
 
 [Affirmed in 40 Can. S.C.R. 540, 8 Can. Ry. Cas. 108.] 
 
 Misdirection — Correction after sPECinc objection — Re\'iew on appeal. 
 
 Where, on a specific objection to his charge, the trial Judge recalled the 
 jury and directed them as requested, the contention that the directions thus 
 given were erroneous should not bo entertained on an appeal. 
 
 Can. Pac. Ry. Co. v. Hassen, 7 Can. Ry. Cas. 441, 40 Can. S.C.R. 194. 
 
 Remedying defects of danger — Evidence. 
 
 In any action for negligence, it is not improper to receive evidence as to 
 what may have been done by the defendants subsequently to remedy the de- 
 fects or dangers complained of, but the jury should be warned that such 
 evidence taken by itself is no evidence of negligence. If there be no other 
 evidence of negligence the case should be withdrawn from the jury. The 
 evidence in this case considered, as to whether the case should have been 
 left to the jury or not. It is within the discretion of the trial Judge to 
 submit special questions to the jury or not; but in either case the jury may 
 render a general verdict. The words "the Court may give such damages.' 
 in Con. Ord. N.W.T. c. 48, s. 3, means the Judge at trial, or the Judge and 
 
PLEADING AXD PRACTICE. 563 
 
 the jarv, as tiie case may be. Semble. a Terdict for $4,300, under the cir- 
 cumstances of this case, cannot seriously be excepted to. 
 
 ToU T. Can. Pac. Ry. Co., 8 Can. Ry.'Cas. 294. 1 A_L.R. 318. 
 
 [Applied in White V. Grand Trunk' Pac. Ry. Co.. 2 Alta. L.R. 53-3; ob- 
 serred in Winterbum v. Edmonton, Y. A: P. Ry. Co., 1 Alta. L.R. 311, « 
 \V.L.R. 795.] 
 
 Trial — Jvist — Two equ-4Li.t possible views ox facts. 
 
 If the facts which are admitted are capable of two equally possible views, 
 which reasonable people may take, and one of them is more consistent with 
 the case for one party than for the other, it is the duty of the .Judge to 
 let the jurv decide between such conflicting views. [Davey v. London k S. 
 W. Ry. Co', 12 Q.B.D. 70, foUowed.] 
 
 Ramsay v. Toronto Ry. Co., 17 Can. Ry. Gas. 6, 30 OXJL 127, 17 DXJL 
 220. 
 
 Special fetolxgs — Verdict — Xecligi^:>-ce. 
 
 The finding of a jury in a railway personal injury case that the defoid- 
 ant railway company was guilty of negligence in "nonobservance of rules 
 in going through a closed switch,*' does not necessarily refer to the com- 
 pany's printed book of rules, put in as evidence by the plaintiff, but may 
 be supported as referring to a rule of operation to that effect proved by oral 
 testimony as governing the conduct of employees, although not embodied 
 in the printed rule book. 
 
 Staats V. Can. Pac. Ry. Co.. 17 Can. Ry. Gas. 38, 17 DiJL 309. 
 
 Verdict — Da^iages exceeding amocst claimed. 
 
 A jury cannot award as special damages an amount greater than the 
 amount claimed, unless the pleadings are amended so as to cover the 
 larger amount. [Chattell v. Daily Mail Publishing Co., 18 Tiiaea LJL 
 165. followed.] 
 
 Staats V. Can. Pac. Ry. Co., 17 Can. Ry. Gas. 38, 17 DiJL 309. 
 
 TkiAL — Verdict — SrFFiciE.NCT and correctsess — Cvmages;. 
 
 In a personal injury case where the jury's award of general damages at 
 $15,000 is attacked as excessive and the evidence shews that the injuries 
 sustained were unusually severe, the award will not be disturbed where it 
 stands the test that twelve reasonable men might reasonably find the dam- 
 ages at that amount. [To>>in v. Can. Pac. Ry. Co.. 2 D.L.R. 173. 5 SXJL 
 381 ; and Gordon v. Can. Northern Ry. Co., 2 DX.R. 183, 5 S.L.R. 369. fol- 
 lowed.] 
 
 Staats V. Can Pac. Ry. Co., 17 Can. Ry. Cas. 38, 17 DX.R. 309, 
 
 'Dual — CoxTRrarroRY xegligesce — When a qcestios for jcrt. 
 
 Contributory negligence is prima facie a question for the jury, and only 
 where it is very clear that no jury could reasonably find otherwise shonht 
 a case be withdrawn from the jury on the ground that contributory negli- 
 gence has been established. [Da\Tie« v. British Columbia Elec. Rv. Co.. 7 
 D.L.R. 767, 17 B.CR. 498. 14 Can. Ry. Cas. 309, reversed.] 
 
 Daynes v. British Columbia Elec. Ry. Co., 18 Can. Ry. Cas. 146, 49 Can. 
 S.C.R. 58, 19 DXlR. 266. 
 
 Trial — Fixdixgs of jury — ^St.%tkmexts of foremax. 
 
 The oral statements of the foreman of a jury, explaining to the Court the 
 cause of an accident as found by the jury, cannot override the deliberate 
 
564 PLEADING AXD PRACTICE. 
 
 written verdict of the whole jury, so as to warrant tlie action of the trial 
 Judge in entering judgment against their verdict. 
 
 Gray v. Wabash Ry. Co., 20 Can. Ry. Cas. 301, 35 O.L.R. 510, 28 D.L.R. 
 244. 
 
 New trial — Verdict against weight of evidence — Reasonableness. 
 
 Where the verdict arrived at by the jury upon evidence properly submit- 
 ted to tliom upon questions of fact is one that reasonable men might reach, 
 the verdict will not be disturbed as being against the weight of evidence. 
 [Commissioners of Railways v. Brown, 13 A.C. 133; Windsor Hotel Co. v. 
 Odell. 30 Can. S.C.R. 336, followed. See also MacKenzie v. B.C. Elec. Ry. 
 Co., 21 B.C.R. 375; McDonald v. Campbell (N.S.), 22 D.L.R. 748; Ball v. 
 Wabash Ry. Co. (Ont.), 26 D.L.R. 560; Morgan v. McDonald (Can,), 27 
 D.L.R. 125; Can. Pac. Ry. Co. v. Walsh, 24 Que. K.B. 185; Suarez v. 
 Kisenhauer, 47 N.S.R. 418; Tobin v. Halifax (X.S), 16 D.L.R. 367; 
 Holt Timber Co. v. McCallum (P.C.), 25 D.L.R. 445.] 
 
 Fraser v. Pictou County Electric Co., 20 Can. Ry. Cas. 400, 50 N.S.R. 30, 
 28 D.L.R. 251. 
 
 Finding of jury — Contributory negligence. 
 
 When he meaning to be given to the finding of the jury is that the leav- 
 ing of one of the gates at a railway crossing open was an invitation to the 
 driver of a truck that he might safely cross the tracks, and where there is 
 evidence to support this finding and also a finding against contributory 
 negligence, the findings will not be disturbed. 
 
 Armstrong Cartage, etc., Co. v. Grand Trunk Ry. Co., 23 Can. Ry. Cas. 
 264, 42 O.L.R. 660, 43 D.L.R. 122. 
 
 Questions submitted to jury — Interpretation of findings — Negli- 
 gence. 
 
 About 10 o'clock at night a farmer was found on the tracks of the de- 
 fendant company with both thighs amputated above the knee and one foot 
 caught in a "split switch" — no one saw the accident and tlie injured person 
 died shortly after being found. The jury in answer to questions, found 
 that the death was caused by the defendants' negligence in having a split 
 switch on a public highway and they found against contributory negligence. 
 The Court held that under the circumstances there 'was evidence to go to 
 the jury on the question of negligence, and in basing their conclusion on a 
 consideration of that evidence, the jury were not usurping the jurisdiction 
 of the Board. The finding was not in the nature of a direction as to whai 
 the protection to the public should be, but a finding that from the kind and 
 manner of construction of the switch, it was dangerous to persons using 
 the highway, and that those responsible for its presence on the highway 
 were negligent if it was the cause of injury. Also that an authorised act 
 must be done not only in a reasonable way and without negligence, but 
 there is the additional obligation upon one exercising a statutory or au- 
 thorised power not to extend that power. Whatever were the rights 
 which the defendants acquired in respect of the highway they did not ex- 
 tend to or include the erection and maintenance of the split switch. [South- 
 wark & Vauxhall Water Co. v. Wandsworth, [1898] 2 Ch. 603; Roberts v. 
 Charing Cross (1003), 87 L.T.R. 732; Moore v. Lambeth Waterworks Co. 
 (1886), 17 Q.B.D. 462, referred to.] 
 
 Srunelle v. Grand Trunk Ry. Co., 23 Can. Ry. Cas. 348, 43 O.L.R. 220, 
 44 D.L.R. 48. 
 
PLEADING AND PRACTICE. 565 
 
 XlEUSSXCB— AcnOX FOB HAMAOS — FtXIHXC OF JUBT — KliaiWHWg SnEBL 
 
 la aa actiaa for dMrnrnges for iajories a wta ia t J hj boag: r^ 4amrm Vy 
 ifcfiai«Bli' caeiaF. tke Court oa mppcal h^i that the fiadb^ of the jmr, 
 ttei. tte eoHyaar was ^viltj of a^figOMe ia aot " pwwjaid iag vith aafci t a t 
 ah ai ammwtiuagc wTeckage uae,' «r&$ eot « >ed by the alkgatkn 
 afeef n ^aiatiff's pl> ailia^ aad e«rjiw w c speed woald he 
 as voald he eseesEne aadcr all the linawitgBHii off tke case, 
 aad iOmt the jaix had the r^t to pa^s vpoa the faestioa at cxceenve speed. 
 Pliaor T. G.TJL Cou 33 DJLJL lOS. 3S OJ-JL «4«, dHto^rnehcd ; CoiaB- 
 h» Ktafithic t. B.C. Eler. Rr. Col. 37 DX.IL «4, m Cka. SjCJL 1; Orth t. 
 BauHna Grn^ £ BamsriOe Ek«. Rr. Cou 43 DX.R. 137, 43 0±JR. 137, 
 nEMirad toLj 
 PMUck T. Wabash R. S. Odl, 4S DX.R. ^26. 
 
 SncBr BAIL.TAT — Reasoxabix gjuk — Ckmxssaos vith AmnfOBiLK. 
 
 j&a actaoa fw iajmx to aa antoanUIe hf a eoOiaiaB with a street car tm 
 t^fi^ a eonwr caaaot be anuataned agaiast the eluJUi c laihray if there 
 aas BO iiidean to varraat the jvij ia fiadiag that the BMttomaa hf ex- 
 enraamg reawacMf care could hare stop p e d his car aad hai-e aitiided the 
 cnilitinB after he had hetoait aaaie or oo^t to have hf >naa aaaie that 
 ■t. 
 T. Torarto Ej. Cou 22 DX.R. $9S. 
 
 kjocT TO swncHaiAX — ^Keelkexce — Waxt or ruxTGB bcles — Srvcofc 
 
 The fiuaia l fiadiap of a jmrj that the ia jaries ««staiaed bjr a saitch- 
 ■aa were caaeed b]r the aegl^^eace of the lailva j cwpaay is liaiitad hj a 
 ■piflfc: fiadiag that the ae^il^eBce coasisted ia aot hariag; d^ahbe priated 
 i«ka aad ia aot atamg that th^ are at adl tines strictly ohejped, aad dBs- 
 ae qiecific act of ae^l^eaee €■ ahicfa aa actiaa at eoanaa hnr ia 
 
 Hile T. Graad Tnmk Pacific Rt. Col. 24 D.UR. 9. 
 JrBT — Fdtmxgs — ExrcBT evibcsck — SaTicH STAxa — locAXtas — 
 
 Too CLOSE TO BAH. 
 
 A jmT naj fiad, aithaat the as!<i$taaee of expnt evideace, that the loca- 
 tioa of a saritdi staad ia a raihraT rard is too eloi«e to the raiL aad is aot 
 le a aw ai M y aaSdeat to peraut of the «afe paasa^ thma^ it of a laaa rid- 
 ia|r oa the si^ ladder of a <ar. [MaUory t. Wiaaipe^ Joiat Toanaals. »S 
 Gu. &.CB. 323. 3» Caa. Rt. Cax. 3S2. 29 DX.R. 20: Phelaa t. Graad Ttoak 
 Phcifie By. Gol, 31 Cka. &CJL 113, at p. 133, 18 Caa. Ry. Cas. 233, 23 
 DlI.:R. 90, dKtia^shed.] 
 
 XcboB T. Caa. Pac. Ry. Col, 24 Caa. Ry. Ca& 30S, 5o Caa. SLC.R, Cas, 39 
 OJJR. 760. 
 
 Vebbkt or JVMY — Weight of etiihzscc 
 
 If the aasacTs by a jmy to qoct^tioas sal^uttied caa be sopperted hy aay 
 raMOBaile rwi ti mt ioa, aa appdlafe Coort dboald sap p u i l Ukarn, aad aot 
 ael aside the fadiags as eoatiaiy to the ve^t of eiidcaee aaleaa they are 
 mA aa ia the opiaioa of the appellate Coort coald aot have heea arrived 
 at hf icaaaaHdUe aea. pfcK^rvr r. Le Roi Miaii^ Go^ 32 Caa. SLCLR. 
 CM; Jaadesaa t. Harris, 35 Caa.'aC.R. (£25. referred tou] 
 
 Stairatt t. Doauaioa Atlaatic Rr. Cou 16 DX.R. 777. 
 
 Fekbcbcs of jukt — ScRXScc Asne rESMcr — CoyrB iBfni i Mdeuge^cce. 
 Ia aa aetiaB for daaages for iajory to aa aatonobtle oa a hi^aay tho 
 
566 PLEADING AND PRACTICE. 
 
 findings of the jury ishould not be disturbed although they liave not direct- 
 ly indicated the connection between the negligence found and the accident, 
 if they did on the evidence reasonably draw the inference that the effec- 
 tive cause of the accident was the ''excessive rate of speed," and that the 
 plaintiff was not guilty of contributory negligence. 
 
 Gallagher v. Toronto Ry. Co., 23 Can. Ry. Cas. 257, 41 O.L.R. 143, 40 
 D.L.R. 114. 
 
 G. Evidence; Witnesses. 
 
 Witnesses — Rerfeshing rkcollkctio.n — Rkferexce to notes uade at 
 time of transaction. 
 
 A witness may refreish his recollection from notes made by him at the 
 time of a transactioji in question and then make a statement as to the 
 truth of the memorandum. The rule is tliat the memorandum proposed 
 to he looked at must be made by the witness, or adopted as a correct 
 account by him at or about the time when it was made. (Per Irving, 
 ,I.A.) Where the loss of original notes of a certain transaction in ques- 
 tion has been proved, and tliat a transcript thereof has been made on 
 (lie following day, and that this copy was accurate, and the memory of 
 the witness has been exhausted on the subject, he has a right to refresh 
 his memory by reference to the copy. (Per Martin, J.A. ) 
 
 Daynes v. British Columbia Eiec. Co., 14 Can. Ry. Cas. 309, 7 D.L.R. 
 767. 
 
 [Reversed in 18 Can. Ry. Cas. 146, 49 Can. S.C.R. 58, 19 D.L.R. 266.] 
 
 Cross-examination of witness hy rpterence to deposition taken on 
 uisco\T5RY — False impressions drawn thkrefrom — Discretion of 
 
 TRIAL JUDGE. 
 
 Where a witness is cross-examined by reference to his deposition taken 
 on discovery, it is not permissible to conduct the proceedings in such a way 
 as to give to the jury a false impression of the evidence given by the wit- 
 ness on discovery, and where that is attempted, the trial Judge, in his 
 discretion, may allow the whole of the discovery evidence to be read, or per- 
 mit such other steps to be taken as may be necessary to remove the false 
 impression. (Per Irving. J.A.) 
 
 Ring Lumber Co. v. Can. Pac. Ry. Co. (B.C.), 14 Can. Ry. Cas. 313, 7 
 D.L.R. 733. 
 
 [Appeal to Privy Council withdrawn by consent.] 
 
 Witnessf-s — Refreshing memory — Rf:fkrence to notes made at time of 
 transaction. 
 
 A witness may properly be asked to refresh his memory by looking at a 
 copy of his notes which he was prepared to verify as having been made by 
 himself from the original which was a transcript of his stenographic re- 
 port of the interview between the parties; and refusal to permit that 
 course is ground for a new trial where it is impossible for the appellate 
 Court to say that its rejection did not materially affect the issue. [Daynes 
 v. British Columbia Elec. Ry. Co.. 7 D.L.R. 767,' 17 B.C.R. 408, 14 Can. Ry. 
 Cas 309, reversed.] 
 
 Daynes v. British Columbia Elec. Ry. Co.. 18 Can. Ry. Cas. 146, 49 Can. 
 S.C.R. 58, 19 D.L.R. 266. 
 
 Evidence — Medical Testimony — Expert opin ions — Number. 
 
 S. 10 of the Evidence Act, R.S.O. 1914, c. 76, which prohibits the calling of 
 more than three expert witnesses without leave of the Court, is not violated 
 
PLEADIXG AXD PRACTICE. 567 
 
 if in eonneetion with the statutory number of experts there is also given 
 the testimooT of the attending phrsician describing the condition of the 
 injured after the accident and that of the phrsician who made an e\- 
 aaunati<m for insurance, but not being regarded as expert witnesses. 
 Burrows t. Grand Trunk Ry. Co., 18 Can. Rt. Cas. 183, 23 D.L.R. 173. 
 
 EvneXOB — ^TKATX SUDDKX STOP — BbEAKIXG COXTFIXSG PIS — LSJTBT — XbG- 
 
 OGEXCE- 
 
 The undisputed evidence that an employee of a railway company who was 
 employed to heat the cars in the railway yard, while attending to his duties, 
 was going from a second-class ear to the baggage car for coal, that as he 
 was reaching for the door of the baggage car the train suddenly stopped, 
 the Ingagge car and the second-class ear parted from the breaking of a 
 knuckle pin, the employee being thrown to the ground and injured by tho 
 wheels of the baggage car, is sufficient evidence to justify the jury in find- 
 ing that the injuries were the result of the negligence of the company in 
 stopping the train too suddoily, when air brakes and safety chains were 
 not in use. 
 
 Worsley t. Can. Xorthem Ry. Co., 23 Can. Ry. Cas. 385, 11 Sask. LcR. 
 473, 43 D.LlR. 287. 
 
 EtiDESCE — Bl'KOEX OF FBOOF — DeUTEBT RECEIPTS TO CAKRIEKS — RE- 
 CEIPT PUOB TO LOCATTNG GOODS. 
 
 The rule of evidence that a written receipt signed and delivered (acknowl- 
 edging the delivery of goods by the shipper to a consignee • shifts the bur- 
 den of proof, cannot be applied in favour of the shipper, in the face of the 
 consignee's direct denial of delivery and the fact that such receipts were by 
 the consignee company's rules of business exacted prior to inspection or 
 deliver}' of the goods and that such receipts were not really effective until 
 a later stage when the goods, if found, might be checked and delivered. 
 
 Henderson v. Inverness Ry. Co., 16 D.L.R. 420. 
 
 OxTS — ExcEmo.xs on exemptioxs — Railway coxstkuctios ooxtkact — 
 Statemext as rasis for smsiDY. 
 
 Where a railway construction contractor and his employer stipulate 
 that the payment to the contractor of a certain item of the contract price 
 must depend upon the contractor's statement of the construction cost being 
 passed by the Federal Government as basis for a specified additional sub- 
 sidy, the employer is relieved from the payment where the subsidy in ques- 
 tion is withheld by the Government on the ground, among others, that the 
 contractor's construction statement is not even in part established, tuiless 
 the contractor satisfies the onus shifted upon him and affirmatively proves 
 s<Mne other efficient cau^e for the denial of the subsidy. 
 
 Dini T. Brunei, 18 D.L.R. 3S5. 
 
 H. Stay of Proceedings; Sectixity. 
 Stat or pboceedesgs — Appeal pexdixg. 
 
 The Court in its discretion may always grant a stay of proceedings pend* 
 ing an appeal to the Supreme Court, but where there is no express rule 
 permitting such an appeal such discretion should only be exercised on 
 account of the existoice of special circumstances which must be shewn by 
 the applicant. 
 
 Hockley v. Grand Trunk Ry. Co., Davis t. Grand Trunk Ry. Co, 3 Can. 
 Ry. Cas. 2.>2. 7 O.L.R. 186. 
 
 [Affirmed 'm 7 OX.R. 6.58.] 
 
568 PLEADING AND PRACTICE. 
 
 I. Judgments; Motions. 
 Failube to move fob judgment — Verdict of special jury — Lapse of 
 
 TIME. 
 
 The provisions of Art. 494, C.C.P., are not on pain of nullity, and a fail- 
 ure to move for judgment in accordance with the verdict of a special jury 
 until after the lapse of the time prescribed by this article, does not deprive 
 the party of the right to a judgment, unless the action itself has been de- 
 clared perempted for failure to proceed therein during two years. 
 
 Miller v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 449, 21 Que. S.C. 346. 
 
 [Affirmed in Grand Trunk Ry. Co. v. Miller, 2 Can. Ry. Cas. 490, 12 Que. 
 K.B. 1; reversed on other grounds in 34 Can. S.C.R. 45, 3 Can. Ry. Cas. 
 147.] 
 
 Short notice of motion — Service of — Contents of notice. 
 
 Where a party applies for special leave to serve short notice of mo- 
 tion, he must distinctly state to the Court that the notice applied for is 
 short; and the same fact must distinctly appear on the face of the notice 
 served on the other party. 
 
 Can. Pac. Ry. Co. v. Vancouver, Westminster & Yukon Ry. Co., 3 Can. 
 Ry. Cas. 273. 
 
 Order — Purchase money — Payment into Coubt-^Seevice of — Setting 
 
 ASIDE. 
 
 An order made under the N.B. Railway Act, C.S.N.B., c. 91, s. 17, for 
 claimants on purchase money for a railway right-of-way paid into Court 
 by the railway will be set aside where the mortgagor wlio contracted for 
 the sale had no authority to do so for the mortgagees, nor was service of 
 the order made on an assignee of the mortgages, as had been directed by 
 the Court when the order was made. 
 
 Re Reardon and St. John & Quebec Ry. Co., 20 D.L.R. 910. 
 
 J. New Trial; Misdirection; Nonsuit. 
 
 New trial — Misdirection — Right to re-examination. 
 
 By 60 Vict. c. 24, s. 370 (N.B.), "A new trial is not to be granted on the 
 ground of misdirection, or of the improper admission or rejection of evi- 
 dence unless in the opinion of the Court some substantial wrong or mis- 
 carriage has been thereby occasioned in the trial of the action." On the 
 trial of an action against the Electric Street Ry. Co. for damages on ac- 
 count of personal injuries, the vice-president of the company, called on 
 plaintiff's behalf, was asked on direct examination the amount of bonds 
 issued by the company, the counsel on opening to the jury having stated 
 that the company was making large sums of money out of the road. On 
 cross-examination the witness was questioned as to the disposition of the 
 proceeds of debentures, and on re-examination plaintiff's counsel interro- 
 gated him at length as to the selling price of the stock on the Montreal Ex- 
 change, and proved that they sold at about 50 per cent premium. The 
 Judge, in charging the jury, directed them to assess the damages as "upon 
 the extent of the injury plaintiff received, independent of what these people 
 may be, or whether they are rich or poor." The plaintiff obtained a verdict 
 with heavy damages: — Held, that on cross-examination of the witness by 
 defendant's counsel, the door was not open for re-examination as to the 
 selling price of the stock; that in view of the amount of the verdict it was 
 quite likely that the general observation of the Judge in his charge did 
 
PLEADIXG A^TD PRACTICE. 569 
 
 ■at RHOfc its effect on the jonr as to the finaneial ability of die companjr 
 to reload vdl in d« — gea . 35 X^.B. 1. varied. 
 
 HcsK T. SaiBt Jobn Bt. Co^ 30 Can. S.CJL 218. 
 
 [CoBsidered is Siwdair t. Soddell, 16 Man. L.R. 60.] 
 
 XeW TSLUj — GEXEKJlI. TESDICT DOCBTT AS TD VEAXGCG OP JtK l . 
 
 In an actaoa far damages for injarr to a ekild vho vas run aver br a 
 car of ikt d^ieadants, in which negligence was alleged, several questions 
 were sofamitted to the jury by the trial Judge, but he also told them that 
 they mi^t, if they chose, find a general Texdict. When the jury returned 
 into Court, the foreman announced. '^We award the plaintiff $300 dam- 
 ages.^ On being asked by the trial Judge whether they had answered the 
 qceatkma, they said they had answered three, as follows: "1. Q. Was 
 ttft c— paiiy guilty oi negligmce? A. Yes. 2. Q. If so^ in what did such 
 ■mUfeffi coasist? A. Ch-er-speed. 3. Q. Was the plaintiff guilty of con- 
 tri b Ml u fj negl^eBee? A. Yes." On this the trial Judge dismissed the 
 actiaB: — Held, that there should be a new trial: it was probable that the 
 verdiet was intended to be a general one. but the matter was not free from 
 doubt: and the jury should have been asked to make the matter plain be- 
 fore being discharged. Among the questions that were not answered by the 
 jury was the following: *^ould the rootorman. after it became apparent to 
 him that the boy was going to cross the track, by the exercise of reasonable 
 eaxc and skill, hare prerented the accident, if he had been running at a 
 nasoBable rate of speed t~ In learing this question, the trial -Judge said: 
 T want you to consider that last element, because it is not. "Could he 
 hare (nwented the accident if running at an unreasonable rate of speed.' '': 
 — H^d, that this question was not properly framed, and the jury were 
 ■ot pn^ierly directed. The unreasonable rate of speed was the original 
 ■^giigeiiee, and the question which the jury had to consider, after finding 
 saA negligence, was whether, notwithstanding that unreasonable rate of 
 speed, the motorman, after seeing the child c^>nunitting or about to com- 
 mit a ncigligent act. could, by the exercise of reasonable care, hare aToid- 
 ed the consequences of it: — Held, that the defendants should pay the 
 eosts of the plaintiff's appeal from the judgment dismissing the action 
 (Martin, J.A., dissenting as to this) ; and that the costs below slMNild 
 abide the result of the new triaL 
 
 Bayfield v. British Columbia Elec. By. Co., 14 WXlB. 414. 
 
 XeW TBIAI. IXSCTFICIESCT OF DAMAGES COMFBOIOSK TKMBtCr. 
 
 A new trial tm the ground of the insufficiency of the damages viB not 
 he granted unless it appears clearly to the Court that the smallneas of 
 iJhe damages has arisen from mistake upon the part of either the Court 
 or jury, or from some unfair practice on the part of the defendant. A 
 TCftBei will not be set aside on the ground that it is a compromiae vodict 
 if it can be justified upon any hypothesis presented by the endeneeL 
 
 Currie t. Saint John By. Co., 3 Can. By, Cas. 280, 36 XJB.B. 194. 
 
 New noAL — Invalid atixnsc or. 
 
 It is not a valid ground for ordering a new trial that the Judges differ 
 from the condnsians at which the jury have arriTed or ecmsider that the 
 findingB shew that the defoidants had not had a fair and imprejudiced 
 triaL Hcaee, in aa acti<m for damages for loss of life occasioned by the 
 we^SgBot maaMgemmt of a street car where the jury finds that th< 
 dfffdwnt was goilty of negligence in causing tte aeeident and that the 
 vas BOt guilty of contributocy negligaiee, it is error in setting 
 
570 PLEADIXG AXI) PRACTICE. 
 
 aside a judgment entered upon sucli verdict and ordering a new trial, wher'i 
 the evidence of both sides was properly submitted to the jury. 
 
 Toronto Ry. Co. v. King. 7 Can. Ry. bas. 408, [1908] A.C. 2(}0. 
 
 [Commented on in Brenner v. Toronto Ry. Co., 40 Can. S.C.R. 552; 
 followed in Tinsley v. Toronto Ry. Co.. 17 O.L.R. 74; referred to in Berth- 
 olot V. Saleases, .39 N.B.R. 149; White v. Victoria Lumber, etc., Co., 14 
 B.C.R. 374; distinguished in Milligan v. Toronto Ry. Co., 17 O.L.R. 530.] 
 
 New trial — Misdirkctiox — Vkkdict on issuks. 
 
 An order for a new trial should not be granted merely on account of 
 error in the form of the questions submitted to the jury where no prejudice 
 has been suffered in consequence of the manner in which the issues Avere 
 presented by the charge of the Judge at the trial and the jury has passed 
 upon the questions of substance. The judgment appealed from (18 Man. 
 L.R. 134, 9 Can. Ry. Cas. r2(i) was affirmed, the Chief Justice dissenting, 
 and Davies, J., hesitante, as to the quantum of the damages awarded. 
 
 Winnipeg Elec. Rv. Co. v. Wald, 9 Can. Ry. Cas. 129, 41 Can. S.C.R. 
 431. 
 
 Xkw trial — Jury findings — Pkri'lrxku jury — Uncertainty. 
 
 Where the result of jury findings and of what takea place at the trial 
 witli reference to their answers and to questions put by trial Judge (both 
 written and oral) leaves uncertainty as to what they meant, a new trial 
 will be granted. 
 
 Herron v. Toronto Ry. Co., 14 Can. Ry. Cas. 124, 6 D.L.R. 215. 
 
 [Reversed in 11 D.L.R. 697, 15 Can. Ry. Cas. 373.] 
 
 New trial — Jury findings — Uncertainty. 
 
 Where a jury's original written findings of answers to questions submit- 
 ted are inconsistent, and, in an answer to an enquirj- by the trial Judge, 
 the jury orally explains and harmonizes the various answers in open 
 Court, the result from this course is, that the earlier writte'n findings are 
 displaced pro tanto by the final verbal findings, and the inconsistency of 
 the findings may thereby be cured. 
 
 Herron v. Toronto Ry.'Co., 15 Can. Ry. Cas. 373. 11 D.L.R. 697, 28 O.L.R. 
 59. 
 
 [Herron v. Toronto Ry. Co. (No. 1), 14 Can. Ry. Cas. 124, 6 D.L.R 
 215, reversed.] 
 
 New trial — Vague and AjiBuadi's findings. 
 
 In a personal injury case arising from a street car colliding with a rig, 
 where the jury, upon their first return into Court, found under one ques- 
 tion that, after defendants' motorman sa>\- that the plainifT was about to 
 drive across the tracks, the motorman could not by reasonable care have 
 avoided the accident, while finding under another question that the motor- 
 man was guilty of negligence in waiting too late before applying the 
 brakes, and while finding under a third question that the motorman was 
 negligent in not a])plying the brakes when he first noticed the plaintiff 
 heading across the tracks, and where, upon proper comment by the trial 
 .Judge on such contradictory findings, the perplexed jury struck out the 
 answers to the two questions first mentioned, still leaving doubt as to 
 what they meant by the answer to the third question, such findings are 
 vague and ambiguous and a ground for a new trial. 
 
 Herron v. Toronto Ry. Co., 14 Can. Ry. Cas. 124, (i D.L.R. 215. 
 
 [Reversed in 11 D.L.R. 697, 15 Can. Ry. Cas. 373, 28 O.L.R. 59 ; referred 
 to in Loach V. British Columbia Elec. Ry. Co., 17 Can. Ry. Cas. 21, 16 
 D.L.R. 245.] 
 
PLEADING AND PRACTICE. 571 
 
 Xbw tslal — l5Cx>ssisTErr iSD ctscektaes Frxotxcs or jt^t. 
 
 In a personal injury action arising fixHn a car colliding with a rig. 
 where the jury finds (a t tliat by reasonable care plaintiff, had he ^een tiiat 
 be had sufficient time to cross the tracks, could have avoided the accident, 
 (b( that by reasonable eare defendant's motonnan had he applied the 
 brakes when he first noticed plaintiff heading across the trades could have 
 avoided the accident, (ci that the accident was caused bv negligence of 
 both plaintiff and defendant, such findings are inctmsistent and uncertain 
 and a ground for a new trial. 
 
 Ilerron v. Toronto Ry. Co., 14 Can. Ry. Cas. 124, 6 DX.R. 215. 
 
 [Reversed in 11 D.LJR. 697, 15 Can. Rt. Caa. 373. ±8 OX.R. 59.] 
 
 Xew tbial — MisDntECTio:^. 
 
 The Judge's charge to the jury is to be read as a whole, and if in view 
 of its general meaning and effect, the jury wture not left under any er- 
 roneous impression as to the real nature of the issues to be determined 
 (M* as to tiie law applicable, misdirection cannot be predicated upon an 
 isolated portion of the charge when read apart from the other portions, so 
 as to constitute a ground for ordering a new trial. [.Jones v. Can. Pac. 
 R- Co., 14 Can. Rv. Cas. 76. 5 D.LR. 33^. 3 O.W.X. 1404. reversed.] 
 
 Jones T. Can. Pac. Ry. Co.. 16 Can. Ry. Cas. 305. 13 DX.R- 900. 24 
 O.WJL 917, 30 O.L.R. 331. 
 
 XBGU6EXCE — AMFTTATIOX OF FOOT — EvmESCE. 
 
 Tile injury for which plaintiff sued was his foot being crushed, and on 
 the day of the accident the medical staff of the hospital where he bad 
 been taken held a consultation and were divided as to the necessity for 
 amputation. Dr. W.. who thought the limb might be saved, was. four 
 days later, appointed by the company, at the suggestion of plaintiff's 
 attorney to co-operate with the plaintiff's physician. Eventually the 
 foot was amputated and plaintiff made a good recovery. On the trial 
 plaintiff^s physician swore to a cMiversation with Dr. W. four days 
 after the first consultation, and three days before the amputation, when 
 Dr. W. stated that if he could induce plaintiff's attorney to view 
 it from a surgeon's standpoint, and not use it to work on the 
 ayapathies of the jury he might consider more fully the question of am- 
 putation. The Judge in his charge referred to tMs conversation and told 
 the jury that it seemed to him very important if Dr. W. was using his 
 poatioB as one of the hospital staff to keep the limb on when it should 
 hare beat taken off. and that he thought it very reprehensible: — Held, 
 Strong. C.J.. and Gwynne, J., dissenting, that as Dr. W. did not represent 
 the company at the first cMisultation when he opposed amputation: as 
 others of the staff took the same view and tha% was no proof that 
 amputation was delayed through his instrumentality: and as the jurr 
 would certainly consider the Judge's remarks as bearing on the contention 
 made on plaintifTs behalf that amputation should have taken place on 
 the veiy day of the accident. It must have affected the amount of the ver- 
 dict. To tell a jury to ask themselves "If I were plaintiff how much ought 
 I to be paid if the eranpany did me an injury !^~ is not a proper direction. 
 35 X.B.R. 1, varied. 
 
 Hesse v. Saint John Ry. Co.. 30 Can. S.C.R. 218. 
 
 [Considered in Sinclair t. RuddelL 16 Man. L.IL 60.] 
 
 New tkial — Coxtlictesg nsniscs as to xbgugesce. 
 
 The findings of a jury in an action for personal injuries sustained by 
 a loeoBotiTe fireman by reason of the escape of steam from a valve in 
 
572 PLEADING AND PKACTICE. 
 
 the engine, that the injuries were caused by the negligence of the defend- 
 ant in not seeing tlie valve proijerly closed, and that the plaintifiF by the 
 exercise of reasonable care in examining the valve could liave avoided the 
 accident, are conflicting and ground for a new trial under r. 501 ( 1 ) 
 (Ont.). [St. Denis v. Baxter, 13 O.R. 41, 15 A.R. (Ont.) 387; Austra- 
 lasian Steam, etc., Co. v. Smith (1S89), 14 App. Cas. 321, followed; Kerry 
 V. England, [1898] A.C. 742, distinjjuished.] 
 
 Ball v. Wabash Ry. Co., 20 Can. Ry. Cas. 329, 35 O.L.R. 84, 26 D.L.R. 
 569. 
 
 New teial — Errors of Court — ^Appellate judgsiext on merits. 
 
 Where a trial Judge directs a judgment against the verdict of the jury, 
 the Appellate Court in setting the judgment aside will not order a new 
 trial, but will direct a judgment to be entered in accordance with the 
 verdict. [Jones v. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 305, 13 D.L.R| 
 900, 30 O.L.R. 331, referred to.] 
 
 Gray v. Wabash Ry. Co., 20 Can. Ry. Cas. 391, 35 O.L.R. 510, 28 D.Lf.R. 
 244. 
 
 New trial for errors of court — Insufficiency of issues submitted — 
 Negligence. 
 
 In an action for damages for injuries sustained by the plaintiff by 
 being struck by the defendant's street car while the plaintiff on foot 
 was crossing the track, if upon the facts (a) the plaintiff's conduct may 
 not have been negligent, and (b) the defendant may have been guilty 
 of negligence which occasioned the accident, the omission at the trial to 
 pass in a satisfactory way upon these issues is ground for a new trial. 
 [Myers v. Toronto Ry. Co., 10 D.L.R. 754, reversed.] 
 
 Myers v. Toronto Ry. Co., 18 D.L.R. 335. 
 
 Action for DAxrAOEs — Negligence — Mutual obligations — Insufficiency 
 
 OF issues SUBSriTTED TO JURT. 
 
 In an action for damages for injuries sustained in a collision between 
 a motor car and a passenger train when both parties have been guilty of 
 negligence, a new trial will be ordered where the Court has failed to 
 submit the mutual obligations of the parties to the jury, with proper and 
 complete directions on the law and as to the evidence applicable so as to 
 enable them to come to a reasonable conclusion. 
 
 Gavin v. Kettle Valley Ry. Co., 23 Can. Ry. Cas. 379, 43 D.L.R. 47. 
 
 [Affirmed in 25 Can. Ry. Cas., 47 D.L,R. 65.] 
 
 iNACCtTRACY IN SUMMING UP — CONDUCING TO WRONG VERDICT. 
 
 An inaccurate statement as to the fa«ts made by a Judge in summing 
 up, will not necessarily be a ground for a new trial; the party claiming to 
 have been adversely affected by the error must shew that the misstate- 
 ment was of a character which must have conduced to a wrong verdict. 
 [Clark V. Molyneux, 3 Q.B.D. 237, referred to.] 
 
 Starratt v. Dominion Atlantic Ry. Co., 16 D.L.R. 777. 
 
 Misdirection — Instructions, correctness of — Damages — Personal in- 
 juries — Impairment of earning capacity. 
 In a negligence case against a railway company by a fireman in its em- 
 ployment, for permanent personal injury impairing his earning capacity, 
 the Judge should charge the jury to consider, on the quantum of damages, 
 the general opportunities in life still open to the plaintiff, and there is 
 misdirection where the charge limits those opportunities to the plaintiff's 
 particular calling or even the class of callings within his general industrial 
 
PLEADIXG A^^) PRACTICE. 573 
 
 fleU. for uutaaees, rmilroading. [Jolmstoii t. Great Westcra Bt. Co^ 
 [1904] 2 K-B. 250; Koirky v. London 4 X.W. Rt. Co., LlB. 8 ii. 221. 
 ^eoallf ufa r wd to; Sehnrtz t. \\lnnipeg Eire. Co^ 12 DX.R. 56, and 
 Hall MiB T. Middleaes, 6 DX.R. o33, eansidcTed.] In a n^li^enrr action 
 for daangea for pennaaait personal injunr to the plaintiff, a railroad mao, 
 inpairnis Us earning capacitj, it is misdirertion for the trial Judge to 
 ihaige tlie jurr Inr sog^stug that the jaryraen pat themselves in tke 
 plaintiff's place and consider for tbemselTes whether, in similar cirmm- 
 staaccs, anr of them would be willing to undergo such suffering and loss, 
 and to seek employment in industrial fields other than rmilroadii^. [John- 
 <toa T. Great Western Ry. Co.. [1904] 2 K-B. 250: Rowley t. London k. 
 N.W. Ry. Co., L.IL 8 Ex. '221, sfteeially referred to.] 
 
 I'ickaing t. Grand l>unk Paeifio Ry. Co.. 14 D.L.R. 584. 
 
 Xew tkiai. — ^Xbgligexce — CoxTmiBCTYMrr xggugexce — IssumciEsr nr- 
 
 STBTCnOXS TO JWH. 
 
 The jury having found negtigeiiee on the part oi the defendants* ^- 
 ploTces and of the plaintiff's wife, who was driviag his antoaolMle, in 
 answo- to two further questions found that after the eaqdoifees of Oe de- 
 fendants became aware, or ought to hare become aware, that tlie aoto- 
 ■Mibile was in danger of being injured, they could hare prertnited the in- 
 jury in the exercise ot reasonable care W the ifeeij a^lieation of brakes. 
 On these findings the trial Judge entered judgment for the plaintiff. The 
 Court held that the Court of Appeal was justified in orderii^ a new trial 
 on the ground that the jury should hare been instructed that it was the 
 duty of the driver of the motor car as well as that of the railway em- 
 ployees to have taken all reasonable care to avoid the collisim, when the 
 dai^ger oi it should have been apparent, and that questi<ms as to her 
 <i»n<lntl at that stage of the oecnrrmce. similar to those with regard to 
 the conduct of the railway naployees should have been submitted to the 
 jury. [Gavin t. Kettle Valley Ry. Col, 23 Can. Ry. Cas. 379, 43 D.L.R. 
 47. affirmed.] 
 
 Gavin V. Kettle VaHey Ry. Co. (25 Can. Ry. Cas., 47 DXJL 65). 
 
 KbGUGEXCE — EVIDESCE — PrTVU-BGE — Jr«T — IVpnOFCS COMMENTS BT OOCX- 
 SEL — MlSDBGCTIOX — XeV TUAL — CoSTS OF ABOBTITE TBIAL. 
 
 In an actiiHi for damages owing to the n^ligence of the motorman of a 
 street car, the conductor refused to produce in evidence the written report 
 of the accidoit that he had givra to his company, the contents of which 
 were privili^ai^ Counsel for the plaintiff, when addressing the jury, said: 
 "T%e plaintiff has sworn to «Mie set of facts with regard to the occurrence;, 
 the conductor has sworn to another, the evidoioe as to which is right ma« 
 be found in that report, the company have declined to allow its contents is 
 be disclosed. Now. gentlemen, you may draw such an infaenee," and th« 
 learned Judge not having instructed the jury that they were not entitled 
 to draw an unfavourable inference from the nonproduction of the re* 
 port, there was misdirection and there must be a new triaL [WentwMlh 
 T. Lloyd (18641. 10 HX. Cas. ."iSg, followed. Xote on ruling as to costs.] 
 
 Errico t. British Columbia Eke. Ry. Co., 23 B.CJL 468. 
 
 K. TUid Party Procedure. 
 IxDCM:vtTT — ^Dekectioxs — Onoex allowtsg xoncx — ArrcAi^ 
 
 la an action to l ec ofM d amag e s for the death oi an anpl<nnee of the 
 defendants, who was IdDed at the crossing of defendants* railway with an- 
 other railway, tte defendants obtained an ex parte order allowing them to 
 SHTc a third party notice upon the other railway company, claiming in- 
 
574 PROVINCIAL DIRECTORS. 
 
 domnity imdei- an agreement whereby the latter company were allowed to 
 jMit in the crossinff at the point where the accident happened, upon their 
 indemnifying the defendants against anj' claim for damages arising during 
 the progress of the work. The defendants asserted and the other com- 
 pany denied tliat the accident in question happened during the progress 
 of tlie work: — Held, that it wa^s desirable that the question as to the 
 defendants' liability to the plaintiff should be established in such a way as 
 to be binding upon the third parties, although all the matters in dispute 
 between the defendants and the third parties could not be determined in 
 the action. [Baxter v. France (No. 2), [1895] 1 Q.B. 591, distinguished.] 
 Form of order giving directions as to trial and questions of costs in such 
 a case, settled. Semble, referring to Baxter v. P>ance, [1895] 1 Q.B. 455, 
 458. til at it was the duty of the third parties, if they objected to being 
 added, to appeal within due time against the order allowing the notice 
 to be served upon them. 
 
 Holden v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 529, 2 O.L.R. 421. 
 
 [Discussed in Doun v. Toronto Ferry Co., 11 O.L.R. 16, 6 O.W.R. 920, 
 973.] 
 
 POLICE. 
 
 See False Arrest. 
 
 PEACTICE. 
 See Pleading and Practice. 
 
 PRIORITIES. 
 See Railway Crossings: Highway Crossings; Wires and Poles. 
 
 PROCEDURE. 
 
 See Pleading and Practice; Third Party Procedure. 
 
 PROTECTION OF CROSSINGS. 
 
 See Highway Crossings; Railway Crossings; Crossing Injuries; Wires 
 and Poles; Farm Crossings. 
 
 PROTECTION OF PASSENGERS. 
 
 See Carriers of Passengers. 
 
 PROVISIONAL DIRECTORS. 
 
 Statutory prohibition of officers and dire<'tors as parties to railway con- 
 struction contracts, see Contracts: Constitutional Law. 
 
 Power of Provisional Directors to execute l)ond for the performance of 
 conditions in consideration of a bonus, see Railway Subsidy. 
 
 Electric railway company — Powers of provisional directors — Con- 
 tra cr. 
 Tlie provisional directors of the defendant company, incorporated by 1 
 Edw. VII. c. 92 (O), to build an electric railway, gave power to their 
 president and secretary to make a bargain with the plaintiffs, who were 
 promoting a rival electric railway. A bargain was made, and the result 
 
PROVIXCIAL Dlta^CTORS. 573 
 
 ivparted ta the pronaoBal directors^ vho ratified vhat hmi hem dttsp. 
 TW eoatnct pupurtid to be Made bct««« the tiamfamx amd the pluB- 
 titf$: the pl«i«tiff» 'vcre to cease op tra tiiMag n suffort of amx onhtr riml 
 raihKaj aad to ■ami lit tke iiwb|Mji is sftvrimg ttMm^tisr^ ete^ aod wme 
 to re«eii« SljMiL The phiotii^ carried oat th«r part o€ the kaiwiaiB, aad 
 mam im e d the I'wpioj for the ^IJOOU, xiitiog in the alteroatire da^a$«« 
 for auaeiktvtscatatiaa ogaiwg the pnsideBt aod ^ittrttairr. vho ve«« joined 
 MS d ffeodaots The ooBpaanr had sot bcca otwaoixed at the tiae of the 
 enatract; bvt the pre^idevt aad seeretaiy beiiewd that the coaipaBT had 
 power to cater iato the cuatraet; aad ther iv|ire$eated to the plahniff*-. 
 aad the ptaiatiSs bdieved, that tbcy had pover to Make the doatraet. 
 The ptcsideat aad secretarr acre ^ailty of ao fraad. The Art of iairar- 
 ponatiaa ptovidcd (a. H* that the' several daasts of the RailaaT 
 Act nhoald he iaeorporated mith aad be dceaaed to be part of the 
 Jket of lacnrpotatiaa: — Held, haiiag regard to the proiisioa^ of & 
 •U of the Efedtnc Sailvai- Att. BJS.O. ]«97, c ^m. that the prorisioa- 
 al d iic e faa* bad ao poacr to eater iato the coatzart. aad the coatract ««$ 
 ant, biadiag ca the coapaaj. aothi^ hari^ hcea doae to ratifv it: — BeM, 
 ha>a\tnf, that, as the poacr of the <oaapiaj to cater iato ^aeh a «aatra<(C 
 aas aott csdaded br its Act of laeorpoiatiaa, bat depeadtd apoa facts as 
 ta arigaaiiatiaa. etc the tcpresiaiatioa of the priaiihat aad secretary 
 vas aot a£ to lav. bat as to fact, aad ther acre liable to the plaitiffs 
 tteicte-. (Strathcr^ r. llaclKBzie (l»7)i' fS O.R. 2&U di=tii^-:ai^ed.« 
 
 SriEkirk t. Wiadmr. £«ses 4 Lake Shore Rapid Rr. Cou L» Caa. Rt. 
 Oa*. ilX » OJLR. 2SWL 
 
 [RcvcTMd ia 21 O.LJL lOS, 12 Caa. Rr. Cas. 279, 22 OX.R. 230. 12 
 Cka. Rr. Cas. 282.] 
 
 ELDcmc aauLVAT compast — Poaxas or faongioyAi. BaccToaf« — Cox- 
 
 & 9 of the Special Act^ 1 Edv. TIL e. 92 (0.». iamrporati^ the defead- 
 aat iwpaay. caacts that the prorisioaal directors naj a^nc to par for 
 tte icnieca of pcmas aho aar be eaq»loTcd by the dirMtors ibr the 
 parpose of asdetii^ the directors ia farthcria^ the aa^ ilaliajj,; or fat 
 Ac panbase of Ac ri^t-of-aay. aad aay a juiiawa t so Bade shall be 
 liadiag oa the eoapaay: — Held, that the express laajniaae of the special 
 Act pmaik over the ^eaeral pnyri«iaa (&. -Ml of the Beetric Raihaaj 
 Art. RJ^LO. 1897. c. 209. all the <(-laa<««. of vbidL, except ^ far as iacoa- 
 asfeeat, acre, by s. 12 of the Special Act. iacwporated viA aad d t« » ed 
 to be a part of tibe special Act; aad. thenfcrc the pun ink— I directors 
 had poacr to biad the eoapaay by aakia^ the eoatract soaqiffat to be ea- 
 iaaced. a coatract to pay the |daiatiCs for scrriccs ia farthetii^ the con- 
 paar's aaihital iaj.. The Special Act. s. 9. say^ that this caa be doae by 
 the prvrisiaBal directors ""ahea saactioaed by a rote of the shareholder^: 
 at aay ^eaeral Mectia^~: — Odd, approrii^ aad ibUoai^ McDov^all t. 
 Liadsay Psaper IGll Co. <(18»i>. 10 P.R. (|Oat.» 247. 2i2. that the plaia- 
 tics' coatract aas aot affected by the auaidiwii aa< t of this directioa : aad. 
 apart froB that, the coatract aas approved, before aad after it aas Madr. 
 by the ahole body of shartholders. thoa^ aot fonaaOy awwaihbd ia vea- 
 ctal Mcctiae:. Jodjnaeat of RiddriL J- 20 O.LJL 290. 12 Caa. Ry. Ck.<. 
 273. a-hich vas ia faroar <rf the plaiatiffs a^aiast the iadiridaa] dricad- 
 aats. rerersed. aad j a d ^ta t directed to be catered for the plaiatiffs 
 ^aiast the ii—paay. 
 
 Sefldik T. Wiadsor. Eb»x t Lake Shore Rapid Rr. Col, 12 Caa. Ry. 
 Ofts. 279. 21 O.LR- 109. 
 
 [ASiawd ia 22 O.L.R. 230. 12 Caa. Rj. Cas. 282.] 
 
570 PKOVINCIAL DIRECTORS. 
 
 EleCTBIO railway company — POWEBS OF PB0VI8I0NAL DIBECTOBS — CON- 
 TRACT. 
 
 S. 9 of the Special Act, 1 Edw. VII. c. 92 ( O. ) , incorporating the defend- 
 ant company, is an enabling enactment, enlarging the powers of the pro- 
 visional directors, and authorizing them to act for and on behalf of the 
 company to an extent much beyond the scope to which provisional directors 
 are limited by s. 44 of the Electric Railway Act, R.S.O. 1897, c. 209. The 
 language of s. 9 distinctly implies that the provisional directors are 
 authorized, with the sanction of the shareholders, to engage the services 
 of promoters or other persons for the purpose of assisting them in further- 
 ing the undertaking; and the power to engage services implies the 
 power to pay or agree to pay for such services. The services of 
 the plaintiffs which were engaged under the agreement sued upon 
 were within the class of purposes requiring the sanction of the 
 shareholders if the agreement had been to pay in paid-up stock or 
 bonds. If the sanction of the shareholders was necessary in order to 
 make the agreement binding upon the company, it was given in substance. 
 [Monarch Life Assn. Co. v, Brophy (1907), 14 O.L.R. 1, distinguished.] 
 Apart from these considerations, the agreement being under the seal of the 
 company, and the services liaving been rendered in fact by the plaintiffs and 
 accepted in fact by the company, there was ample consideration to support 
 the claim against them for the sum mentioned in tlie agreement. The 
 company having appealed from the judgment against them, and the plain- 
 tiffs, as the direct result of the company's appeal, having appealed from thfe 
 dismissal of the action as against the individual defendants, both appeals 
 were dismissed with costs, but the company were order to pay to the plain- 
 tiffs the cost to be paid by the latter to the individual defendants. [Law- 
 ford v. Billericay, [1903] 1 K.B. 772, and East Gwillimbury v. King 
 (1910), 20 O.L.R. 510, followed; judgment of a Divisional Court", 21 O.L.R. 
 109, 12 Can. Ry. Cas. 279, affirmed.] 
 
 Selkirk v. Windsor, Essex & Lake Shore Rapid Ry. Co., 12 Can. Ry. Cas. 
 282, 22 O.L.R. 250. 
 
 Provisional directors — Powebs of — Conducting business. 
 
 Under the Railway Act, IflOG, provisional directors of a railway company 
 have no right to carry on the business of the undertalcing, their powers being 
 limited to those specifically defined by s. 81, subs. 3, to merely opening 
 .stock books, receiving and safely depositing stock subscriptions, making 
 plans and surveys. 
 
 Re Burrard Inlet Tunnel & Bridge Co., 10 D.L.R. 723. 
 
 PUBLIC AID. 
 
 See Railway Subsidy. 
 
 BAILS AND BOADBED. 
 
 Injuries resulting by reason of defective rails or roadbed, see Carriers 
 of Passengers; Crossing Injuries; Employees; Negligence; Street Rail- 
 ways. 
 
 Jurisdiction of Railway Committee to exonerate railway company from 
 filling in spaces, see Railway Board. 
 
 Roadbed — Filling in spaces. 
 
 Under the true construction of the Railway Act, 1888, the power con- 
 ferred by subs. 4 of &. 262, upon the Railway Committee to exonerate a 
 
RAILS AXD ROADBED. 577 
 
 rmilwuj company during a specified portion of the year from the duty of 
 filling certain spaces speieified in sobs. 4, did not apj^T to tlie duty imposed 
 by subs. 3 of fiUing certain other spaces specified by subs. 3. Such exten- 
 sion of power was not auth<M-ized by the grammatical construction of the 
 subsections, nor rendered imperative by the ctHitext. 
 
 Grand Trunk Ry. Co. t. Washington, [1899] A-C. 275. 
 
 IteFEcnvE coxsTsccnox or koadbed — Dnt.An vext — ^Latext dkfeict. 
 
 The roadbed of applicants* railway was constructed, in 1893,. at a place 
 where it followed a curve around the side of a hill, a cutting being made 
 into the slope and an embankment formed to carry the rails, the grade be- 
 ing one and one-half per cent or 78.2 feet to the mile. The whole of the 
 embankment was built on the natural surface, which consisted as after- 
 wards discovered, of a layer of sandy loam of three or four feet in depth 
 resting upon clay subsoil. No borings or other examinaticms were made 
 in order to ascertain the nature of the subsoil and the roadbed remained 
 for a number tA years without shewing any subsidence except such as was 
 considered to be due to natural causes and required only occasional re- 
 pairs: the necessity for such repairs had become more frequent, however, 
 ior a couple of months immediately prior to the accident which oeca- 
 ^oned the injury complained of. Water, coming either from the ditch, 
 or from a natural spring formed beneath the sandy loam, had gradually 
 run down the slope, lubricated the surface of the clay and, finally, caused 
 the entire embankment and sandy layer to slide away about the time a 
 train was approaching, on th evening of 20th September. 1904. The train 
 was derailed and wre^ed and the engine-driver was killed. In an action 
 by his widow for the recovery of damages: — ^Held, that in constructing the 
 roadbed, without sufficient examination, upon treacherous soil, and failing 
 to maintain it in a safe and proper condition, the railway company was, 
 prima facie, guilty of negligence which cast upon them the onus of shew- 
 ing that the accident was due to some imdiscoverable cause: that this 
 onus was not discharged by the evidence adduced from which inferences 
 merely could be drawn and which failed to n^ative the possibility of the 
 accident having been occasioned by other causes which might have been 
 foreseen and guarded against, and that. c<msequently, the company was 
 liable in damage& Judgment appealed from affirmed, following Great 
 Western Ry. Co. v. Braid, 1 Moo. P.C. (X.S.» 101. 
 
 Quebec k Lake St. John Ry. Co. t. Julien, 6 Can. Ry. Cas, 54, 37 Can. 
 S.C.R. 632. 
 
 [Referred to in Isbister v. Dominion Fish Co., 19 Man. L-R. 449.] 
 
 TKACKS PaVISG AGBEEITEXT APPOBTIOXliKST OF COST — JCIUSDIGTIOS. 
 
 Where a railway company laid ^T" rails for an electric railway upmi 
 the street of a municipality under an agreement and confirmatory by-law 
 containing the provision "the said rails to be level with the existing road- 
 bed and that gravel be placed and maintained in good order by the com- 
 pany between the rails and two feet on either side thereof,^ such c«n- 
 pany is not bound at the request of the municipality, at a later date, to 
 construct a permanent foundation of any character and pave between the 
 rails. The Board has jurisdiction under ss. 5 and 26A (8 i 9 Edw. VII.. 
 c. 32>. and may authorize the municipality at its own expense to chan<^- 
 the railway grade to conform to the altered grade of the highwav and if 
 it d^ires to surface the railway right-of-way in the same way and with 
 the same foundations as the adjacent highway, the railway companv con- 
 Can. Ry. L. Dig. — 37. 
 
578 KAILWAY BOARD. 
 
 tiibuting such portion of the cost as represents its contractual liability to 
 lay gravel between the tracks and two feet on either side thereof. 
 
 St. Lambert v. Montreal & Southern Counties Ry. Co., 19 Can. Ry. Cas. 
 283. 
 
 BAILWAY ACT. 
 
 Construction and constitutionality, see Constitutional Law. 
 
 RAILWAY BOABD. 
 
 A. Dominion Board. 
 
 B. Provincial Board. 
 
 See Amalgamation; Appeals; Branch Lines and Sidings; Crossings; 
 Damages; Demurrage; Expropriation; Farm Crossings; Highway Cross- 
 ings; Mandamus; Railway Crossings; Stations; Telegraphs; Telephones; 
 Tolls and Tariffs; Train Service; Wires and Poles. 
 
 Annotations. 
 
 Jurisdiction of Railway Comm.ittee. 1 Can. Ry. Cas. Ill, 4 Can. Ry 
 Cas. 411. 
 
 Jurisdiction of Board. 5 Can. Ry. Cas. 163, 174. 
 
 Jurisdiction of Board to order compensation to abutting landowners 
 upon construction of railway upon highway. 14 Can. Ry. Cas. 199. 
 
 Jurisdiction of Board to order highwav across railway. 7 Can. Ry. Cas 
 89. 
 
 Jurisdiction of Board respecting railway crossings. 5 Can. Ry. Cas. 
 413, 6 Can. Ry. Cas. 144. 
 
 .Jurisdiction of Board with respect to regulating rates and tarifTs of 
 through traffic. 13 Can. Ry. Cas. 556. 
 
 Jurisdiction of Board to authorize Dominion railway company to take 
 lands of Provincial railway company. 18 Can. Ry. Cas. 144. 
 
 Jurisdiction of Board to order contribution by Provincial companies to 
 eost of Separation of Grades. 18 Can. Ry. Cas. 296. 
 
 Orders of Provincial Boards respecting street railways, see Street Rail- 
 ways. 
 
 Regulation of car equipment, see Cars. 
 
 Constitutionality of statutes empowering Board to make orders and 
 regulations, see Constitutional Law. 
 
 Orders for compensation for damage to lands, see Expropriation. 
 
 Regulation of shipping system, see Cars. 
 
 Refunds for overcharges, see Tolls and Tariffs. 
 
 Stop-over privileges, see Train Service. 
 
 Apportionment of costs of works ordered by Board, see Highway Cross- 
 ings (D). 
 
 Land for spurs, see Branch Lines. 
 
 Tolls in foreign country, see Tolls and Tariffs (A). 
 
 Regulation of traffic facilities, see Interchange of Traffic; Junctions. 
 
 Ordering of interlocking appliances at crossings, see Railway Crossings. 
 
 A. Dominion Board. 
 
 Powers of Railwat Committee — Maintenance of gates at cbossings 
 — Municipalities. 
 
 Under ss. 11, 18, 21, 187, 188 of the Railway Act, 1888, Parliament 
 
RAILWAY BOAED. 579 
 
 cMfemd ■foa tk Baihraj OoiiMifAee Oe pomer fa ardor Omt gtibes wi 
 ■ ■litiB ihwW he fnriiei ami Mihiriif J Iqt swk a railvnr at aose^ 
 m^ ut h ^ w aj* tiatwaa^ differcaft adjaecat ■l iri fa K tigg; to decide 
 nAuA ■■■iapalitieB arr iate Ke tte d ia the cranri^gt; t» fix the p iu p wtiu w 
 «f <ke «Ht t» he bovae \fv the diScnat ■aairiyalitiga; to tmtj aay onkr 
 i^ifc Iff addia;: odwr ■aakipililW li as iatocsted, aad to icadjast tke 
 piwpaitiiia of the coct: aad the drririna off the coHautiee caaaot he le- 
 tkatjd Inr the Coart. Jiaaidpalities are sahjeet to ^Mh k^gisfatiaa aad 
 the orders of the (caaauttee ia the suae var a$ ptirate iadiridaalsL 
 
 Re Cka. Par. Rt. Co. aad Coaatr aad T^onra^ip of Tort, 1 Caa. Rj. 
 GaiL X, 27 O.R. iiS. 
 
 (BeivrMd ia part ia 1 Caa. Rj. Ca:$v. 47. 2a AJL fOat-i* £i: adopted ia 
 maa^c;^ v. Tomato Gcanal Trwt:^ 19 Ifaa. L^ *i9z ap^icd ia Moat- 
 ital Stnct Rt. Co. t. lioatreaL 43 Caa. S.C.R. 2il; appimwd ia Re Mr- 
 Al^iae <k Lake Eric Rr. Co^ 37 Caa. S.C.R. ±40: Maodord ia ^tlhr.-4G;«a- 
 eral r. Cka. P»<t. Rj.' Cou U B.C.R. 3tt*; reiemd to ia Giaat x. Cam. 
 Fte. Rt. Co.^ 3« X.R.R. SO*-. Graad Tnnk Rt. Co. t. Cedar Dale. 7 Caa. 
 Rt. Cak. 73; Caa. Pae. Rt. Co. t. Tomato. 7 Caa. Rt. Cas. 274: foDoaed 
 ai Thondd t. Graad Traak ct aL Rt. Coa., 24 Caa. Rf. Gas. 2L.] 
 
 A3» BBbrxxnoxs — Hjchvat caikissrxGs — Maixiexaxcc or cates 
 — AmmnoyrMEJcw or cost — 11 i::3C]ciPAUTEe& 
 
 The RaHaaT CoMHittee oa the appiicatioa of the ritr of Tomato^ oir- 
 dcrad the Ckaadiaa Fteifie Rt. Col to pat ap gates aad keep a satc^aaa 
 ahm, the liae of laihraT oossed a h^^vaj raaaia^ fnaa the eitr of 
 iato Ote toaa ahip off Yoifc, the liae of railvaT boi^ at the phoe 
 the boaadiM b e taee a the two ^aaicipalities, aad 4adci«d tte 
 <aat of aniateaaace to be paid ia eqaal proportioas br the railaaj coat- 
 paay aad the «itT. Oa a sabscfaeat ap^iratioa br the (itr npieiwa tii^ 
 ttat the toaaship aas efaallj iaterestcd aad aAiag for coatzibatioa firaai 
 Oe taaadip. the toaaehip hroa^t ia the coaatr. aad aa older aa« Bade 
 br tte RailaaT CoaBittce that the eo^tr aad toaaship Aoald coatribate 
 ia certaia proportiaaB: — HcM, per Bartoa. CJ.O^ aad HariraMa, J-^: 
 That, aaamiag the vaUditj of k^iislatiaa caaferrii^ jarisdietioa oa the 
 Railaaj Co^^uttee, their poacrs aese^ liautcd to persoas or BKaaieipali- 
 ties iavaid^ the escnisr of tdbeir jarisdictiioa. aad thai their ordn- aas 
 iavalid ao Car as it impowd a baidia apoa the toaaship aad ooaatT. 
 Fer Obier, JJL: That the Icgidatiaa aa:$ iatra Tirf«^ aad that the towa- 
 iMf aad eontr aeie pcnoas iatcreatod aithia the awaaiag of Oe Ad, 
 aad lahjeet to the jarisdinioa of the Railaaj Coaauttee. Per M«wdith, 
 •J.: nat the lef:tdatiaa aas iatia Tites^ bat that the cooatj aas mat a 
 paau a iatncstcd. aot beii^ aader aaj ir*piia>iliiliili for the aniatcaaaee 
 of the hi^haaj ia tfaestiaa. Per Caiiaai: That tk deetsaoa of the Rail- 
 aaj Coauaittce apoa a sabjevt. aad ia respect of p«rMa<c aitUa its JBri«- 
 dietaoa, caaaot be rerieaed or iat ei fet ed aith br the Coart. Ia the iv>- 
 aait aa appeal baa the jai^BMat of Rose. J- ±7 O.R. m9, 1 Cka. Rj. 
 Gaa. 3i, aas aHoacd as to the coatj af York, aad diaqaiiined aa to the 
 taaachip <rf York. 
 
 Be Gu. FlM. Rt. Col aad Yoek. 1 Caa. Rt. Cas. 47. 25 A.K. (Oat.| 
 C5l 
 
 [FoOoaed ia Wawilfna Street Bj. Co. t. G. T. B. Col, 17 Cka. Br. Ca^. 
 3S3L] 
 
 BiiLa-AT Co.3acTTTEE — ^Mjjexsc oaaEK BTUB OF Eschboteb Cocbt — Ex 
 
 PAKIE QBBCX. 
 Bj CL 29 ^ the BaOaaj Act. 31 Vict. s. 17. the Exehr«|aer Coart i« 
 off the BaOaaj Ciaaiillie a rale of Ckarf ; 
 
580 RAILWAY BOARD. 
 
 but where there are proceedings pending in another Court in which the 
 rights of the parties under the order of the Eailway Committee may 
 come in question, the Exchequer Court, in granting the rule, may suspend 
 its execution until further directions. (2) The Court refused to make the 
 order of the Railway Committee in this case a rule of Court upon a 
 mere ex parte application, and required that all parties interested in the 
 matter should have notice of the same. 
 
 Re Metropolitan Ry. Co. and Can. Pac. Ry. Co., 1 Can. Ry. Cas. 96, 6 
 Can. Ex. 351. 
 
 Railway Committee — Conflicting si'Rveys and locations — Injunction 
 — Declaration of bight. 
 
 An injunction will not be granted to restrain one railway company 
 making its surveys and locating its line so as to cross and recross the 
 line of another. The Railway Committee is the tribunal specially con- 
 stituted, having powers and jurisdiction respecting the crossing, inter- 
 section and junction of railways, the alignment, arrangement, disposition 
 and location of tracks, the use by one company of the tracks of another 
 and every matter, act or thing which by the Railway Act or the special 
 Act of any railway company is sanctioned, required to be done or pro- 
 hibited. The Court in a case of this nature, in which the Railway Com- 
 mittee has jurisdiction, will not make a declaration of the rights or prior- 
 ities of the contending parties. 
 
 Ottawa, Arnprior &. Parry Sound Ry. Co. v. Atlantic & North-West Ey. 
 Co., 1 Can. Ry. Cas. 101. 
 
 [Referred to in Perrault v. Grand Trunk Ry. Co., 14 Que. K.B. 249.] 
 
 Railway Comxiittee — Construction of subway — County road a.\d cri*Y 
 streets — Cost of construction. 
 
 The municipal corporation of a city was one of the movers in an ap- 
 plication to the Railway Committee for an order authorizing the construc- 
 tion of a subway under a railway, by which one of the city streets was 
 made to connect with a county road, the works being adjacent to a city 
 street but not within the city limits: — Held, that the city was interested 
 within the meaning of the terms as used in s. 188 of the Railway Act. 
 which provides that the Railway Committee might apportion the cost of 
 such works as those in question between the railway company and "any 
 person interested therein." (2) On an application to make an order of 
 the Railway Committee a rule of Court, the Court will not go into the 
 merits of the order, or consider objections to the procedure followed by 
 the Railway Committee. Semble, that while the Railway Committee has 
 jurisdiction in such a case, to impose upon the party interested an obli- 
 gation to bear part of the expense, it has no jurisdiction to compel a 
 party other than the railway company to execute the works. 
 
 Re Grand Trunk Ry. Co. and Re Railway Act, 4 Can. Ry. Cas. 102, 8 
 Can. Ex. 349. 
 
 [Followed in Thorald v. Grand Trunk et al. Ry. Co., 24 Can. Ry. Cas. 
 21.] 
 
 Construction of subway — County road and city streets — Cost of 
 construction. 
 
 The municipal corporation of a city was one of the movers in an ap- 
 plication to the Railway Committee for an order authorizing the construc- 
 tion of a subway under a railway, by which one of the city streets was 
 made to connect with a county road, the works being adjacent to a city 
 street but not within the city limits: — Held, that the city was interested 
 
RAILWAY BOABD. 5S1 
 
 vitkbi tke m^^^^z ^ ^^ terns as Vs«d in & ISS of the Bailwaj Ad, 
 whith prorideB that the BaDwar CnBauttn ausht apportion the coii of 
 mtA vorks as those is qiie«tiaa h e tm w the nilvav companj and "anj 
 pcTHM MteTKted tbeTMB.*' (2) On an applkatioB to make an order of 
 the Bailvaj I'ommittee a mle of Coart, the Court vill not go into the 
 mt I il I of the order, or consider objenionii to the proeednre folloved hy 
 the BailraT Coauuttee. Senble, that while the Railtraj Committee has 
 jiiri«dietioB in sorh a ease to impose upon the party intere rtcd an obliga- 
 tion to bear part of the expense, it has no jari^diction to eoaapd a partr 
 or other than the railvaj companj to execute the vork>. 
 
 Re Grand Trunk Rr. Co. and Kin^on, 4 Can. Rv. Cas. 102, S Gu. Ex. 
 
 [R^errvd- in Graml Trunk Rj. Col r. Cedar Dale, 7 Can. St. Casw 73; 
 foOovcd in Thnold r. Grand Trunk et aL Ry. Cos., 24 Can. Rr. Cas. 21.] 
 
 Highway cvossexg — &bcific rejcFoaiiASCE. 
 
 The Surreys Act, R-S.O. 1S97, e. 181, «. 39, cannot create h^vays 
 aeroaB the land of a raihray company or give any i%ht to the applicant 
 to hate his streets extended acrȤ$ the railway. A railway cmnpany may. 
 with the leave of the Board. lay out and dedicate portions of its rig^trof- 
 way for a$e as highway? which the municipality could accept without 
 p«»«g a by-law for that purpose. The a{^licaat is only entitled to an 
 order from the Board authorizing the railway company to lay out and 
 construct soeh highways. The by-law <rf the municipality may be eon- 
 sidned an acceptance of sadi highways. The Board does not enforce 
 qwrific perf<»mance <rf soA afei«tnta. It is not emponcnd to coaipd 
 the railway company to construct the hi^way at, the instance d the 
 applicant. As no other Court or authoritT than the Board can legally 
 allow the railway company or any other person to construct the h^^raray, 
 the application should proceed for the purpose of enaUii^ tte Board to 
 deterwne whether it will give this permissiaB. 
 
 Re Rrid t Canada Atlantic By. Co^ 4 Can. By. Gas. 272L 
 [DiEtingni«hed in Bird r. Can. Pte. By. Cou 1 SXJS. 279.] 
 
 AnrcmcATio's of past imA^SAcnoNs — Defaci-t ex DCMrxKAGE CHAnccs 
 
 — P«E3fATr^ SALE OF OOOfkS FOB — POWXE OF BOABD TO AWAMD DAM- 
 AGES. 
 
 The Board is a jodiciaL as well as an exeentive body, created to enforce 
 tke railwaT legislation of the Dominion Parliament, but not to suf^rfant 
 or n^IenMnt the Provincial Courts in the exercise of their ordinary 
 jurisdiction. In making orders and regulations under ^^ 23, 25 of the 
 BaHway Act. 1903, the Board is not to adjudicate in respect to ri^ts 
 arising out of past transactions but to lay down rules for future conduct. 
 The Board is not empowered to award damages or any other relief for 
 any injury caused by an infraction of the Act, e.^.. s. 241. Cars loaded 
 with coal were held by the railway cranpany for payment of demurrage or 
 car storage charges and in default of payment were di^ioeed of by pri- 
 vate sale before the expiry of six weeks specified by s. 280 (2) : — Held, 
 ftat any claim for damages for premature or improvident sale should be 
 prosecuted by action in the Provincial Courts. 
 
 DnOie v. Grand Trunk By. Co.. 4 (an. By. Gas. 304. 
 
 [Approved in Robinson v. Can. Northern By. Co., 19 Man. UEL 306: 
 followed in Victoria et aL t. Esquimalt t Xanaimo Rj. Ool, 24 Can. By. 
 Cas. S4.] 
 
582 KAILWAY BOARD. 
 
 .Street railways — ^[cxicipal assent — Use of highways ix cities axd 
 TOWNS — Consent by MtNiciPAi, authority. 
 
 In the case of a stroet railway or tramway or of any railway to be 
 operated as such upon the highways of any city or incorporated town, the 
 consent of the municipal authority re(|uired by s. 184 of the Railway Act, 
 1903, must be by a valid by-law approved and sanctioned in the manner 
 provided by the provincial municipal law, and, in the absence of evidence 
 of such consent having l)een so obtained, the ISoard has no jurisdiction to 
 enforce an order in respect to the construction and operation of any such 
 railway. The order appealed from was reversed and set aside, the Chief 
 Justice and Oirouard, J., dissenting. 
 
 Montreal Street Ry. Co, v. Montreal Terminal Ry. Co., 4 Ca-n. Ry. Cas. 
 373, 36 Can. S.C.R. 309. 
 
 [Adhered to in Essex Terminal Ry. Co. v. Windsor, Essex & L.S. Ry. 
 Co., 40 Can. S.C.R. 025.] 
 
 Highway crossings — Subway — ^I unicipality. 
 
 The power of the Board under s. 180 of the Railway Act, 1003, to order 
 a highway to be carried over or under a railway is not restricted to the 
 case of opening up a new liighway, but may be exercised in respect to one 
 already in existence. The application for such order may be made by the 
 municipality as well as by the railway company. [Bank Street Subway 
 Case, 5 Can. Ry. Cas. 12o", affirmed.] 
 
 Ottawa Elec. Ry. Co. v. Ottawa and Canada Atlantic Ry. Co., 5 Can. 
 Ry. Cas. 131, 37 Can. S.C.R. 354. 
 
 [See Toronto v. Grand Trunk Ry. Co., 37 Can. S.C.R. 232, 5 Can. Ry. 
 Cas. 138.] 
 
 Power to impose teums. 
 
 The Board granted an application of the James Bay Ry. Co. for leave 
 to carry their line under the track of the G.T.R. Co., but. at the request 
 of the latter, imposed the condition that the masonry work of such under- 
 crossing should be sufticient to allow of the construction of an additional 
 track on the line of the G.T.R. Co. No evidence was given that the latter 
 company intended to lay an additional track in the near future or at any 
 time. The James Bay Co., by leave of a Judge, appealed to the Supreme 
 Court of Canada from the part of the order imposing such terms contend- 
 ing that the same was beyond the jurisdiction of the Board: — Held, that 
 the Board had jurisdiction to impose said terms: — Held, per Sedgewick, 
 Davies and Maclennan, JJ., that the question before the Court was rather 
 one of law than of jurisdiction and should have come up on appeal by 
 leave of the Board or been carried l>efore the Governor-General- in-council. 
 
 James Bay Ry. Co. v. Grand Trunk Ry. Co., 5 Can. Rv. Cas. 164, 37 
 Can. S.C.R. 372. 
 
 Farm crossings. ' 
 
 Orders directing the establishment of farm crossings over railway sub- 
 ject to the Railway Act, 1903, are exclusively within the jurisdiction of 
 the Board. 
 
 Grand Trunk Ry. Co. v. Perrault, 5 Can. Ry. Cas. 293, 36 Can. S.C.R. 
 671. 
 
 [Applied in Valieres v. Ontario & Quebec Ry. Co., 19 Que. K.B. 523.] 
 
RAILWAY BOARD. 583 
 
 CbOSSIXGS vrSVBM mAMLMAT. 
 
 The Board has jurisdiction under s. 198 <A the RaUwrny Act, 1903, to 
 minire a railiraj omniMuij to make a farm crossing under its railway. 
 
 Re Cockerline and Gnelph t Goderidi Br. Co^ 5 Can. Rr. Cas. 313. 
 
 [See Lalande v. Can. Xortbem Rr. Col, 21 Can. Rr. Ca& 194; followed 
 in Atkinson v. Vancouver. Victm-ia i. Eastern Rj. Co., 24 Can. Ry. Cas. 
 378.] 
 
 RaILVAT CBOSSnCGS. 
 
 The defendants obtained an ex parte order from the Board authorizing 
 them to constmet. maintain, and operate certain sidings inrolfing the 
 aosaaag ot the right-of-way of anoUier railway. The plaintiffs, on be- 
 coming aware of this order, moved against it before the Board, under ss. 
 23. S <tf the Railway Act, 1903, but the Board confirmed it:— Held, that 
 by sodi application to vary or amend the order the plaintiffs had sub- 
 mitted to the jurisdiction of the Board, and were concluded within the 
 »ope of their judgmoit, and could not now go behind the orders in the 
 present action, which was for damages and an injimction : and this, wheth- 
 er the application for the ol parte order could be considered an applica- 
 tioB under s. 177 of the Railway Act for a cnnssing order or not. The 
 plaintiirs objected that the Board had no jurisdictitm because the line in 
 qnestion, being a Ivanch line, the plans were not filed in the Registry 
 Office, pursuant to s. 175. subs. 2, and s. 122 of the Act: — Held, that 
 they could not raise the question of jnrisdicti<m in this way, the Act 
 spedaDy providing by s. 44 for an appeal from orders of the Board to 
 the S up re m e Court of Canada on such questions. By virtue of s. 7 of the 
 Railway Act, 1903, where one railway crosses another which is subject 
 to the Act. the Board has exclusive jurisdiction. 
 
 Can. Pac. By. Co. t. Grand Trunk Ry. Co., 5 Can. Ry. Cas. 400. 12 
 OJ^R. 320. 
 
 [Relied on in Fraso- v. Can. Pac Ry. Co., 17 Man. L.R. 672, 8 WX.R. 
 380.] 
 
 DkAIXAGE WfXKS. 
 
 Under subs. 1 (b) of s. 23 of the Railway Act. 1903, as amended by 6 
 Edw. Vll. c 42. s. 2. the Board may sanction and approve propoeed drain- 
 age works authorized by s. 118 (mi. 
 
 Can. Pac. Ry. Co. v. Murphy, 5 Can. Ry. Cas. 497. 
 
 PBOTBCnOX OF HIGHWAY CBOSSIXGS COXTEtBCTIOX 4M^ OOSI8. 
 
 The Board, in matters pertaining to the protection of highway cross- 
 ings and the apportionment and contribution of costs therein, is a Court 
 of original jurisdiction and must decide for itself not merely questions of 
 law, but also questions of fact as regards the ^interest" In such matters 
 of the parties concerned, and also whether, in the exercise of its discretion, 
 a municipality or township should contribute to the costs of protecting 
 any croesings. 
 
 Graad Trunk Ry. Co. t. Cedar Dale, etc, 7 Can. Ry. Gas. 73; ThoroM 
 T. Grand Trunk et aL Ry. Cos., 24 Can. Ry. Cas. 21. 
 
 JvscmoK — ^Doiaxiox kjulwat — Pbotixciaixt jyscomrtmxTED bailwat. 
 
 The Board has no jurisdiction to order a cmnection to be made or 
 traffic to be interchanged between a Dominion railway and a provincially 
 ineorporated railway which it crosses, such provincial railway not having 
 been dedared a wmk for the gmeral advantage of Canada. Under s. 8 
 of the Railway Act, 1906, the jurisdiction of the Board is confined to 
 fte point of crossing, and does not extend to the whole line of the prorin- 
 
584 RAILWAY BOARD. 
 
 cial railway. Where a railway company incorporated by the Parliament 
 of Canada was authorized to acquire two provinciallj' incorporated rail- 
 ways, but no work had been done in connection with such railway, and 
 the validating Act provided tliat the acquisition should not make such 
 railways subject to the Railway Act, 1003, or works for the general ad- 
 vantage of Canada, but that they should remain subject to the legislative 
 control of the province: — Held, (]) that, inider s. 3, the special Provin- 
 cial Act overrides the Railway Act. (2) That there is no jurisdiction to 
 authorize making connections with or affording facilities to a Dominion 
 railway which does not exist, and an order requiring such connection to 
 be made would be in effect ordering a provincial railway to connect with 
 a Dominion railway, as to which the Board has no jurisdiction. 
 
 Boards of Trade of Gait, etc. v. Grand Trunk, Can. Pac, etc., Ry. Cos., 
 8 Can. Ry. Cas. 195. 
 
 Subway under railway tracks ai.oxg highway — Privilege to raise 
 
 GRADE OF highway. 
 
 For many years the defendants, by agreement with the city of Winni- 
 peg, had occupied a portion of the width of Point Douglas avenue in said 
 city with the tracks of its main line. In 1904 a further agreement was 
 made between the city and the company, and ratified by the Legislature, 
 whereby the company obtained the right to raise the grade of Point Doug- 
 las avenue or of any part thereof to a height not exceeding ten feet above 
 the then existing grade upon certain conditions: — Held, that the words 
 "or any part thereof" related to a part of the breadth as well as of the 
 length of the avenue, and that the defendants had a right to raise the 
 grade of the southerly forty-five feet in width of the avenue leaving 
 twenty-one feet at its original height, although the result of that was to 
 diminish the value of the plaintiff's lots on account of the construction of 
 a subway alongside of them: — Held, also, that an order of the Board 
 granting leave to the defendants to construct such subway was valid and 
 binding, although it had been made ex parte and in ignorance of the fact 
 that the plaintiff had previously obtained an interim injunction against 
 Buch construction, the plaintiff having made no application to rescind or 
 vary the order as he might have done. [C.P.R. v. G.T.R. (1906) , 12 O.L.R. 
 320, 5 Can. Ry. Cas. 400, followed.] The interim injunction granted in 
 1905 had been affirmed on appeal before the hearing of the cause: — Held, 
 that that decision was not binding on the trial Judge, and did not divest 
 him of the responsibility of deciding the case upon the merits at the 
 hearing. 
 
 Fraser v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 205, 17 Man. L.R. 667. 
 
 Compensation — Running bights. 
 
 The Bay of Quinte Ry. Co. applied to the Board, under s. 364 of the 
 Railway Act, 1906, or any other pertinent section, for an order directing 
 the K. & P. Ry. Co. to ascertain and settle the compensation payable by 
 the applicant to the respondent in respect to the running rights possessed 
 by the applicant over a portion of the K. & P. Ry. By an agreement 
 between the parties, validated by statute 52 Vict. c. 77 (D), such compen- 
 sation, in case of dispute, was to be settled by arbitration: — Held, that 
 the Board had no jurisdiction to entertain the application. 
 
 Bay of Quinte Ry. Co. v. Kingston & Pembroke Ry. Co., 8 Can. Ry. 
 Cas. 202. 
 
 Injunction — Diversion of highway. 
 
 In an action by a municipality for an injunction again.st a railway 
 
KAILWAY BOARD. 585 
 
 cuMpaMj to rrntrafai tike latter from dosing up <»- interfering vith a 
 eettaia rmd, it dtewfioped tibat the Board had made an order authorizing 
 the raihray compuy to divert a portion of the said road and eoostruct 
 thor liae betveen certain points of such diTer&ioD. The trial Jiidg« do 
 eided that the atmiicipality coold maintain such an action onlr by the 
 JUtarmef-Gtmeral as plaintiff: — ^Held, on appeal, that, vhile the Court 
 had jmiadietion to grant all proper relief, the Board having dealt with 
 the ■Mtter, the plaintiffs should applj to the Board for relief, as they 
 had II— ph ii control over their order. 
 
 Ifmidpalil^ of Delta t. Vanoourer, Victoria k Easton By. 4 Xav. 
 Col, 8 Can. By. Ca*. -362, 14 B.CJL S3. 
 
 PBOTEcnox or highwat caosstsGS — Cor^Tmatcnox or costs — Mirxici- 
 
 rAlSTT AS ~PA«TT IXIEBESTED." 
 
 A municipality may be a ~party interested" in vorks for the protectioB 
 of a railway crossing orer a highway, though such works are neither with- 
 in or immediately adjoining its bounds, auid the Board has jurisdiction to 
 oido' it to pay a portion of the cost of saA work. 
 
 Carleton t. Ottawa. 9 Can. By. Cas. 1»4, 41 Can. S.C.B. m2. 
 
 [FoDowed in Thorcdd r. Grand Trunk et al. By. Co&, 24 Can. Bt. Ca& 
 21-1 
 
 ExiBESs conPAXns — Da^cgebocs coioioDiTiES — ^Beftsai. to cabbt. 
 
 Applieatiim to the Board fiM* an order directing the express companies 
 i^oating in Canada to rceeire and carry a certain commodity. The ex- 
 press companies contended that the Board had no jurisdiction to order 
 them to carry any cla&s of commodity and refused to carry the said com- 
 ■Midi^ because it was dangerous and liaUe to explode: — Held, under the 
 nderant provisions of the Bailway Act. 1906, s^l 317, 348-354, express 
 companies are at liberty to exercise their own discretion in refusing to 
 carry br express any particular commodity. 
 
 Canadian and Dominion Express Coe. t. Commercial Acetylene Col, 9 
 Can. By. Cas. 172. 
 
 Damages — ^Waoxc-BnxixG — Xegucexce. 
 
 On an application to recover damages for the company's alleged n^Ii- 
 genee in waybilling a skiff to the wrong address, and charging excess toBs 
 for ^— «*««»g it in a roundabout course to its proper destination, it being 
 h> didftote who was responsible for the erroneous waybilling: — Held, that 
 the Board had no jurisdiction to entertain the complaint; the complain- 
 ant mmt be left to her rights in the Courts: — Held, that the Board could 
 only investigate the error in computing the express tolls of the company, 
 but as the companv offers to refund the excess the Board should not in- 
 terfere. 
 
 Bogers v. Canadian Express Co., 9 Can. By. Cas. 480. 
 
 FOKEIGX BAII.WAT STATIOX rAdUTIES — ^ThBOCGH TBAFnC 
 
 An application was made to the Board for an order directing the Great 
 Xorthem By. Co. to construct a platform and station building. The Xew 
 - Westminister Southern, a provincial railway, incorp<Hvted by an Act of 
 the L^slature of British Columlna. had not been declared a work "tor 
 the general advantage of Canada," The trains of the Great Xorthem. a 
 foreign railway, used the line of the Xew Westminister Southern a> a 
 eonnectii^ line between its line in the State of Washington and Vancouver 
 in British Ctdmnhia. The latter company was not shewn to have any rol- 
 
586 RAILWAY BOARD. 
 
 ling stock or equipment, or so far as operation was concerned to be in any 
 way a separate organization from the former: — Held (1), that the Great 
 Northern, a foreign railway, is subject to the jurisdiction of the Board in 
 so far as it operates in Canada. (2) That the New Westminster Southern, 
 a provincial railway, although not declared to be a work "for the general 
 advantage of Canada," but connecting with a railway subject to the juris- 
 diction of the Board, is, by s. 8 (b) as regards through traffic upon it, and 
 all matters appertaining thereto, subject to the Railway Act. (3) That 
 station facilities are matters appertaining to through traffic. (4) That 
 proper facilities should be provided for the safety and convenience of 
 the public using the trains of the Great Northern. (;")) If the Great 
 Northern desires to apply for leave to appeal upon the question of juris- 
 diction, the issue of the order may be delayed for 30 days but, if not, the 
 size and location of tlie station and platform may be defined by an engineer 
 of the Board. 
 
 Thrift v. New Westminster Southern and Great Northern Ry. Cos., 9 
 Can. Ry. Cas. 205. 
 
 [Followed in Stewart, etc. v. Napierville Junction JRy. Co., 12 Can 
 Ry. Cas. 399.] 
 
 Accomodation of traffic — Stations. 
 
 The Board has power to order a railway company whose line is 
 completed and in operation to provide a station at any place where it 
 is required to afl'ord proper accommodation for the traffic on the road. 
 Idington and Duff", JJ., dissenting. 
 
 Grand Tnmk Ry. Co. v. Department of Agriculture for Ontario, 10 
 Can. Ry. Cas. 84, 42 Can. S.C.R. 557. 
 
 Fences and catti.k guards — General order for all railways. 
 
 Under the provisions of the Railway Act the Board does not possess 
 authority to make a general order requiring all railways subject to its 
 jurisdiction to erect and maintain fences on the sides of their railway 
 lines where they pass through lands which are not inclosed and either set- 
 tled or improved; it can do so only after the special circumstances in 
 respect of some defined locality have been investigated and the necessity 
 of such fencing in that locality determined according to the exigencies of 
 the case. The Railway Act empowers the Board to order that, upon lines 
 of railway not yet completed or open for traffic or in course of construc- 
 tion, where they pass through inclosed lands, the railway company should 
 construct and maintain such fences or take such other steps as may be 
 necessary to prevent cattle and other animals from getting upon the right- 
 of-way. 
 
 Can. Northern Ry. Co. and Board of Railway Commissioners ( Fencing 
 Case), 10 Can. Ry." Cas. 104, 42 Can. S.C.R. 443. 
 
 Opening boad fob traffic — Passenger service. 
 
 Upon an application for an order to compel the railway company to 
 institute and operate an adequate daily first-class passenger service on 
 its line between Winnipeg and Edmonton during the period of construc- 
 tion: — Held, (1) that under s. 261 of the Railway Act, 1906, the Board 
 has no jurisdiction to open a railway for the carriage of traffic other than 
 for the purposes of construction, until application has been made there- 
 for by the railway company. (2) That since the Government by the pro- 
 visions of the special Act incorporating the Grand Trunk Pacific Ry. Co. 
 (4 & 5 Edw. VII. c. 98), has power to fix by order-in-council the date of 
 the completion of the railway, it may be that the Board cannot open the 
 
KAILWAY BOARD. 5S7 
 
 rafliTBT ontil sndi in^r is issued, the special Act ova--ridi]ig tlie BailiraT 
 Aet under s>. 3 of the latter Act. 
 
 Cntxal Sadutcbevan Board <rf Trade t. Grand Trunk Pac Bv. Co., 10 
 Can. Rr. Cas. 135. 
 
 [Referred to in city of Hamilton r. Toronto. Hamilton t. Buffalo Rv. 
 Co., 17 Can. Ry. Cas. '353. 
 
 Rbccxahox or safctt of emplotees — Wages or cnjckex) empijotess. 
 
 Application that railvav companies :-h<Hild ranedr certain complaint:: 
 dealing with ( 1 i and 1 6 1 installation of signboards at the limits of muni- 
 cipalities and vards, ii:*i and (111 liability to accident and exposure from 
 IooiMM>tlTes running tender first and recommending st(»m protector on 
 locomotire, (3i installation of power bead-lamps and air bell ringers, (4i 
 providing an engineer as pilot instead of conductor. Ivakeman or fireman, 
 where the rc^rular engineer is unfamiliar with the road. (5i and {9} pro- 
 viding suitable quarters at divisional and terminal points and more ample 
 room on locomotives for engineer? and firenea, (7) mooval of certain 
 snow cleaning devices from locomotives, inspection (8) of wooden bridges 
 and (10) of locomotives, by a competent inspector after arrival at ter- 
 minab^ (12i payment of wages of injured employees during recovery: — 
 Held, ( 1 ) that the request in ( 1 1 is too broad and no general order 
 should be made, and (6i that in all individual instances where necessity 
 exists, the request shall be granted. (2> That in (2) and (11) the re- 
 quests should be refused, no evidence being given that trains were so 
 operated, except in cases of emergency, and nothing being known as to 
 the storm protector. (3i That tbe request in (3) as to the installation 
 of power head-lamps should be refused, and as to air bell ringer>» granted. 
 (4) That the request in (4| should be refused, as granting it would re- 
 scind a previous rule. (5) That the Board has no jurisdiction to deal 
 with the requests in i5) and il2). (6> That the application in (7i 
 should stand for further information. (7i That as to tl^ request in (9i 
 the Board should not make any general regulati<m without specific in- 
 formation. (8 1 That the application in (Si had been dealt with by order 
 Xo. 11445 and that the application in (10) should be refused. 
 
 Re Brotherhood of Locomotive Engineers, 11 Can. Ry. Cas. 330. 
 
 OSOiZ IMPOSING 1*XEXFOCCEABLe COSDmOSS. 
 
 An <H-der of the Board imposing some conditions ob an applicant rail- 
 way company that the Board did not have power to impose in invitom, 
 is void tmlcaB soch conditions are assented to by the company, as it can- 
 not accept part and reject the remainder of the order: and if the terms 
 upon which the Board's order was made are rejected by the applicant 
 eompany. and an appeal taken instead of a motion to rescind the order, 
 it may be declared upon appeal that the order shall ranain inoperative 
 ludess <H- until the terms are accepted. 
 
 Can. Northern Ry. Co. v. Taylor, 15 Can. Ry. Cas. 298, 11 DXJL 435. 
 
 A(^no?( fob damages — Rehotai. or sidixg. 
 
 Action for damages for taking away spur tra^ {aeiUties formerly en- 
 joyed and refusing to restore same for plaintiff's use on their land ad- 
 joining the railway yards. The Board had, by their order, made oader 
 as^ 214, 253 <rf the Railway Act. 1903, found as'a fact that the defendaats 
 had refused to afford "reasonable and proper facilities'' as required by 
 a. 253 and directed the defmdants to restore these spur trai^ facilities 
 within four weeks, whidi order was affirmed by the Supreme Court of 
 Canada, 37 Can. S.C.R. 541: — Held (1), an action lies for damages under 
 
C88 KAILWAY BOARD. 
 
 the circumstances, the finding of fact by the Board being conclusive un- 
 der s. 42 (3) of the Act, and this Court has no jurisdiction to find and 
 assess the damages. (2) Plaintiffs were entitled to damages from the 
 date of the breach and not merely from the date of the Board's order. (3) 
 The Board had no jurisdiction to deal with the question of damages and, 
 not having assumed to do so, the plaintifl's were not e8toi)])c(l from bring- 
 ing this action by any adjudication of the Board. (4) Damages should 
 l)e allowed during the time taken up by the appeal to tlie Supreme Court, 
 and Peruvian Cuano Co. v. Dreyfus, [1902] A.C. 1(50, did not apply. 
 
 Robinson v. Can. North. Ry. Co., 11 Can. Ry. Cas. 28!), 19 .Man. L.R. 
 300. 
 
 [Affirmed in 43 Can. S.C.R. 387, 11 Can. Ry. Cas. 304, [1911] A.C. 739, 
 13 Can. Ry. Cas. 412.] 
 
 SEcriox MEN — Length of sections — XujtBER of men to be employed. 
 
 An application that the B.S. & II. B. Ry. Co. be directed to employ two 
 men and a foreman on each of certain sections of its railway. The appli- 
 cation was granted under an order of the Board. Subsequently the rail- 
 way companies were notified that the Board would take' up the question 
 of fixing the length and number of men to be employed on the sections of 
 the railway: — Held, that, luidcr s. 269 of the Railway Act, the Board had 
 no jurisdiction in the matter in question. 
 
 Re Section Men, 12 Can. Ry. Cas. 375. 
 
 Highway crossings — Viaducts and bridges. 
 
 Held, aflirming 42 Can. S.C.R. 613, 11 Can. Ry. Cas. 38, that, under s. 
 238, and the amending Act of 1909 (8-9 Edw. VII. c. 32), ss. 237, 238, 
 (he Railway Conunittee and the Board had jurisdiction to make orders 
 requiring two railway companies to construct a bridge over their lines 
 and an elevated viaduct several miles in length, for the purpose of carry- 
 ing four of the tracks of their railways through the city, the latter of 
 which virtually superseded the former. The evidence shewed that the 
 lines of rails were laid "upon or along or across a highway" — highway 
 being defined by s. 2, subs. 11, of the Railway Act, 1906, as including '"any 
 public road, street, lane or other public way or communication." As re- 
 gards the respondent company, the lines were laid along an esplanade, 
 which was deemed a public highway luider 28 Vict. c. 24. As regards the 
 appellant company, they were laid along a route as to which there was 
 actual user by the public, whether by right or leave and license express 
 or implied. It was accordingly within the words "public communication," 
 and exposed to the danger from which the public were under s. 238 entitled 
 to be protected: — Held, further, that the Board, where it has jurisdiction, 
 may in its discretion make any order of this kind for the protection, 
 safety and convenience of the public, except wliere it is restricted by s. 
 3 of the Railway Act, 1906, which enacts that wliere the provisions of 
 that Act, and of any special Act passed by the Parliament of Canada, re- 
 late to the same subject, the latter, so far as necessary, shall override the 
 former. But the Act, 56 Vict. c. 48, relied on by the ajipellants, which 
 is a special Act within tlie meaning of s. 2, subs. 28, of the Railway Act 
 of 1906, does not relate to the same subject as the Railway Act. The 
 former empowers the companies afiVcted thereby to construct and use cer- 
 tain specified works; the latter empowers the Board to require railway 
 companies to construct such woiks as it may deem necessary for the pro- 
 tection and convenience of the public. Effect can be given to both stat- 
 
RAILWAY BOARD. 589 
 
 ■tes, asd s. 3 eoBscqueBtlr dors not n tkis case restrict ia anr vst the 
 poTer of the Board. 
 
 Caa. Fu. Rr. Co. ▼. Toraito and Graad Tnmk Kr. Co. (Toroato Via- 
 duct Case), 12*Caa. Br. Cas. 378, [1911] A-C. 4*1. 
 
 [FoUovcd ia citr of Haaiiltoa t. Toroato. Hajafltoa t. Bitfalo Kj. Co, 
 17 Caa. Rt. Cas. is3, distii^wsbed ia 17 Caa. Rr. Ca£. 370.] 
 
 TBAEC SnVIGB — FOBEK^ B^OLa-ATS. 
 
 Jka applkatiaa to dirtrct the respoadeat to fnraish adciiaate statioa ac- 
 itioB aad ^ati^fartorr train aerrice on its line of raihniT. The 
 ■t, a Canadian miivar, incorporated br the Prorince of Qoebec. 
 aas opciated fanr the Delaware t Budsoa Rr. Co.. a foreign companr. 
 throii^ its agent and sobsidiarr companr, the Quebec, Montreal k Sooth- 
 era Rr. Co_ another Canadian company: — Held, (li that the respoadcat 
 lOMpaay was not a separate or^aniiation and that there vas no separate 
 ■aiHsaacBt. (2ii That under subs. 3 of & 258 of the Railarar Act. 1906. 
 the Board had jurisdiction to direct the respondent, subsidized bj the 
 FariiaawBt of Canada, to maintain and operate suitable staticas aith 
 amtahle accommodation or focilitiesw (3) That uader e^ 11 of 8 4 9 
 Edv. Tn^ amendin* the Railway Act. the Delaware, Hudson t Qnriiec 
 aad Montreal 4 Southem Rr. Cos. were both subject to dinrction to main- 
 tain fimptT traia serriee and facilities upon this, section of the line. 
 fThrift T. Xew Westminster Southem and Great Nonbem Rr. Co5>, 9 
 Can. Rr. Cas. 205, followed.] 
 
 Stewart et aL r. Xapierrille Junction Rr. Co., 12 Can. Rr. Gna. 399. 
 
 Ajcaljcascatiox AG«gyr>fK\TS — Doinxiox xsn rmosisast. kailwats. 
 
 Application under s. 361 of the Railway Act. 1906. for a recommenda- 
 tioa by the Board to the Goreraor-in-council for the sanction of amal^- 
 ■■fion a g re em e n ts between Dominion and prorincial railway companies. 
 The Mimtreal Park k. Island and Montreal Terminal Ry. Cos. were incor- 
 porated by a Dominion Act and the Montreal Street Rr. Co. by an Act of 
 tike Prorince of Qnriiee. Agreements were made between the three c«an- 
 paaies appareathr pursuant to the authority giren in two special Acts 
 «f Ae Doniaioi incorporatii^ the first two railway cmapanies for the 
 aale of these railways with their facilities aad assets to the prorincial 
 railway: — ^Held. (li that, under s». 361, 362 (wUch must be read to- 
 gether), the Board has ao jurisdictioa to deal witt the amatgamataosB of 
 laHway eompaaies iaeorporated uader Dooiiaioa aad proriarial sfatates. 
 (2 1 That the profier Bode of procedure would be to apply as prorided by 
 the q>ecial Acts for saaetioB of the ajrreements to the Govvraor-ia-coaaciL 
 
 Be Aamlgaaiatkm AgreeaMats, 13 Can. Ry. Cas. IM. 
 
 BOCXK MAP" — LOCATIOX PULXS. 
 
 Application for approral of its loeatioa, "Prince Rupert westerly, mile 
 § to aule 3.23." The applicant proceeded to coastmet the roadbed, but 
 found that it could not obtain some S400,000 under its contracts with the 
 Goremment unless it was aUe to diev that the three aad Mw-quarter 
 miles of railway had been constructed under the prorisioas of the Rail- 
 way Act, 1906. The applicant coataded that this being merely the yard 
 of the c<MBpany, no route map or location plan was reqfuired: — Held (1». 
 that the company not harin^ compli«^ with the prorisions of ss. 157. 
 Ia8, la9 of the Railway Act. the applicatSaa amst be r e fme d. (2> ThaS 
 the Board had ao jurisdicti<» tutder 9 4 10 Edw. Vll. e. 30, s^ 2. empower- 
 ing the Board to approre of works constructed withovt approral before 
 
-,00 RAILWAY BOARD. 
 
 December 31st, 1909, since the roadbed in question had been constructed 
 subsequent to that date. 
 
 Re Prince Eupert Location, Grand Trunk Pacific Ry. Co., 13 Can. Ry. 
 Cas. 153. 
 
 Street raiiavays — Provincial railway — "Through traffic." 
 
 The Railway Act, 1906, does not confer power on the Board to make 
 orders respecting tlirough traffic over a provincial railway or tramway 
 winch connects with or crosses a railway subject to the authority of the 
 Parliament of Canada. Davies and Anglin, JJ., contra. Per Fitzpatrick, 
 C.J., and Girouard and Duff", JJ. : — The provisions of subs, (b) of s. 8 
 of the Railway Act are ultra vires of the Parliament of Canada. 
 
 Montreal Street Ry. Co. v. Montreal, 11 Can. Rv. Cas. 203, 43 Can. 
 S.C.R. 197. 
 
 [Affirmed in [1912] A.C. 333, 13 Can. Ry. Cas. 541.] 
 
 Provincial street railway. 
 
 By an order dated May 4, 1909, the Board of Railway Commissioners 
 for Canada (created by Dominion Railway Act, 1903, .and beyond the 
 jurisdiction and control of any province), directed with regard to throiigh 
 traffic over the Federal Park Ry. and the provincial street railway, both 
 within and near the city of Montreal, that the latter should "'enter into 
 any agreement or agreements that may be necessary to enable" the former 
 company to carry out its provisions with respect to the rates charged so 
 as to prevent any unjust discrimination between any classes of the cus- 
 tomers of the Federal Line: — Held, that the said order so far as it re- 
 lated to the provincial street railway was made without jurisdiction. 
 [Montreal Street Ry. Co. v. Montreal, 43 Can. S.C.R. 197, il Can. Ry. 
 Cas. 203, affirmed.] ' 
 
 Montreal v. Montreal Street Ry. Co., [1912] A.C. 333, 13 Can. Ry. Cas. 
 541. 
 
 Foreign carriers — Reduction of rates. 
 
 The Board has no jurisdiction to order a reduction in rates from ini- 
 tial points in the United States. [Can. Northern Ry. Co. v. Grand Trunk 
 and Canadian Pacific Ry. Cos. (Muskoka Rates (No. 2)), 10 Can. Ry. 
 Cas. 139 at pp. 147, 148, followed.] 
 
 Continental, Prairie & Winnipeg Oil Cos. v. Can. Pac. etc., R.W. Cos., 
 13 Can. Ry. Cas. 156. 
 
 [Followed in FuUerton, etc., Co. v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 
 79.] 
 
 Construction of private siding. 
 
 Notwithstanding provisions in an agreement under which a private 
 industrial spur or siding has been constructed entitling the railway com- 
 pany to make use of it for the purpose of afi"ording shipping facilities for 
 themselves and ])ersons other than the owners of the land upon which it 
 has been built, the Board, except on expropriation and compensation, has 
 not the power, on the application imder s. 226 of the Railway Act, 1900, 
 to order the construction and operation of an extension of such spur or 
 siding as a branch of the railway with which it is connected. [Black- 
 woods V, Can. North. Ry. Co., 44 Can. S.C.R. 92, applied. Duff", J., dissent- 
 ing.] 
 
 Clover Bar Coal Co. v. Humberstone, etc., Cos., 45 Can. S.C.R. 346, 
 13 Can. Ry. Cas. 162. 
 
 [Distinguished in Boland v. (irand Trunk Ry. Co., 18 Can. Ry. Cas. 60, 
 21 D.L.R. 531.] 
 
RAILWAY BOARD. 591 
 
 CaOfPJLXIEB — LOCAI. AXB THBOCCH TOLLS — JlKXT THBOCCH 
 TASIFFS. 
 
 Afp^tmtkm far a jaiat thinifch tariff of talla feaa poiau ia tke Uaited 
 States enrt^MM ta Spokaae to Bcgiaiu Saak.. of «2 per 100 Die. oa her- 
 liei^ aaaB firait aad vc^eiaUea. The Great X<«tkna Express Co. agrerd 
 ta accept 80 ccats per 100 Ihm. milt off wkatmr tidl tke applkaat ai^t 
 ■ake with tke rc^oadeat hawi lyoa »JDOO Ifas. wanoBai to the poiat 
 ia fantiaa fnaa Spokaar. The rapoadeatfs tarifls oa tW said co— odt- 
 iam fnm Spokaae to Cal^aiy, Bc^iaa aad Medieiae Hat ««iv $i pa* 100 
 Oa, »i-i— i™ 2OJ0I0O Ukw. aad to StrathcoM aad S«i*«tooa »*^a per 
 100 IbsL, aad ligr adding the hical to Spokaae Made thro^^ tolk of $U0 
 aad S3.33 respectirelT. The applicaat eoateaded that the Board ai%ht 
 i B^ aii e the respoadeat to reiastate the j«at th iu a (gh tariff ia cffiedt aith 
 lAe Gkeat Xorthera Express Co. ia 19N«»:— HeU (li. that aader & 336 
 of tte Baihnj Act. lOoifi, the Board had ao juriadictioa to wder the iai- 
 tial forcip carrier to file or coacvr ia joiat tariJ?» at the request of the 
 applicaat. (2> That while the Board eoald aot reifaire the forei^ car- 
 rier to either file or <raa«ir ia fili^ joiat tariffs, it ad^t reqpdre the 
 respoadeat to file saaie if the forei|;B carrio- eoacumd aad rice rcxaa if 
 Mch jjmat tariffs were thooght br the Board to be fair aad reaaoaahle. 
 f3| That $iace the fore^a carrier had aot eoacnrred. aad the diffocace 
 ia t<ril was sach that it would be oafair to reqaire the Caaadiaa carrier 
 to accept all the shriakage aec caa arr to bring the toil dowa to ^; this 
 i^pGcatioB Ba?t be refaaed. [Stocktoa et aL t. Caa. PacL B;^. Col, 9 
 OuL Bt. Cas. 1«», distiagaiaiMd.] 
 
 Stodtoa ct aL T. Doaiaioa Expnw Co., 13 Caa. Bj. Cas. 439, 3 DX.1L 
 
 CoxsTarcTiDT peuoo — Orcxixc boas fob tsaffic. 
 
 Af^dicatioB to compd the respoadeat to open its liae for traffic froat 
 Pkabie Creek, westward. The re^oadeat carried cioatractor''s supplies 
 aad labourers for the coastmctiaa off the railwaj. part of the supplies 
 were aoid aad aot used hr the coatxactovs. The tt qioadf at also carried 
 paaHBgen aad accepted fares fro » the geaeral pubiie. paldi ihini[^ a tit 
 taUe that it was operati]^ the vaia liae of its railwaT b e taeea Filiw 
 toa aad Fitzhi^: — Held, (It that aotwithstaadii^ s.' 201 off the BaH- 
 waj Act that the railwaj Aonld aot be opeaed for traffic (other thaa 
 for pui pose s off coastmctioa br the canpaar) wittont leave of the Board, 
 it uas imnaabh ttat it Aould carrj ordiaarjr ai^plies aad taboaroa far 
 caaimetan darii^ the eoKtraetiaa period. (2| Thai tlK reqnadeat had 
 THdated a. 2tl ly eatahiiaiiiag a geaeral pasaeager aerrice. (31 That bj 
 a 317 tkt reqpaadeat was prohibited from aajast d ia ei u a ia atioa ia favofar 
 •f its caatractan hf earrriag their suppliea for sale ia eoaipctitiaa with 
 I'fchaat a. (4> That the respoadeat dhoa M cease aajast diseriw- 
 subject to a fiae of ^00 for aar aad everj caae off dcfaalt or eoa- 
 tnaatioa. (51 That the board had ao jurisdictioB to eoi^el the respoad- 
 eat to open its railwar for traffic; bat if it applied for pcrauasiaa to do 
 so it aiast carry freight aad paaaeagers nader the prorisioas off tte stat- 
 ate^ 
 
 Britiih Coiuabia aad Alberta Mnaicipalitica t. Graad T^uak Pacific 
 Rj. Col, 13 Gaa. By. Caai 4C3. 
 
 WoaSS COXSTKCCTCB UTTHOrT LEATX: 
 
 The Board has ao jariadirtioa to approve of snnks c —riiatt ed wiflboat 
 
592 RAILWAY BOARD. 
 
 its leave subsequent to December 31, 1909. The statute 9 & 10 Edw. VII. 
 (D. ) c. 50, s. 2, does not apply to works constructed after that date. 
 
 Re Grand Trunk Pac. Branch Lines Co., 14 Can. Ry. Cas. 12, 7 D.L.R. 
 885. 
 
 Limitation of liability. 
 
 It is within the power of the Board under the provisions of the Rail- 
 way Act, 1906, to authorize a contract relieving the company from lia- 
 bility to one traveling in charge of live stock at a reduced fare, for in- 
 juries caused by the negligence of the company or otherwise. 
 
 Robinson v. Grand Trunk Ry. Co., 8 D.L.R. 1002, 27 O.L.R. 290, 14 Can. 
 Ry. Cas. 444. 
 
 [Reversed in Robinson v. G.T.R., 12 D.L.R. 696, 47 Can. S.C.R. 622, on 
 other grounds.] 
 
 Special and General orders of board — Erections near track. 
 
 A special order of the Board imder subs, (g) of s. 30, of the Railway 
 Act, 1906, providing that water stand pipes shall be placed not less than 
 7 feet 6 inches from the centre of tbe tracks of the C.P.R., is not abrogated 
 by a subsequent general order, not retroactive in effect, whidi prohibited 
 the placing of water stand pipes, so that there should be less tban 2 
 feet (> inches between them and the widest engine cab, so as to render the 
 railway company liable to a brakeman who was injured by coming in 
 contact, while riding on a ladder on the side of a car, with a stand pipe 
 which was 7 feet 6 inches from the centre of the track, but not 2 feet 6 
 inches from the side of the widest engine cab. A general order of the 
 Board under subs, (g), providing that thereafter no structure more than 
 4 feet in height shall be placed within 6 feet from the nearest rail of a 
 railway track, and that no water stand pipe shall lie placed so that there 
 .shall be less than 2 feet 6 inches between it and the widest engine cab, 
 is not retroactive, and does not contemplate the removal of stand pipes 
 within such prohibited distance erected luider a special order of such 
 Board permitting the C.P.R. to maintain its stand pipes at a lesser dis- 
 tance. [Kutnar v. Phillips, [1891] 2 Q.B. 267, specially referred to.] 
 
 Clark v. Can. Pac. Ry. Co. (B.C.), 14 Can. Ry. Cas. 51, 2 D.L.R. 331. 
 
 [Referred to in Kizer v. Kent Lumber Co., 5 D.L.R. 317.] 
 
 Express companies — Exclusive operation. 
 
 The Board cannot compel an express company to operate and compete 
 over the line of a railway from which it has withdrawn by reason of the 
 acquirement of the line by a railway operating an express service through 
 its allied express company. [Continental, Prairie and Winnipeg Oil Cos. 
 V. Can. Pac. et al. Ry. Cos., 13 Can. Ry. Cas. 156, followed.] 
 
 Shippers by Express v. Can. Northern Express Co. and Central Ontario 
 Ry. Co., 14 Can. Rj. Cas, 183. 
 
 Tolls and rates — International traffic. 
 
 The Board has no jurisdiction to regulate an international rate except 
 in so far as the haul within Canada is concerned. 
 
 Dominion Sugar Co., Canadian Freight Assn., 14 Can. Ry. Cas. 188. 
 
 Railway on street — Compensation to landowners. 
 
 The Board may make it a condition of the occupation of a street by a 
 railway company's tracks running along that street, that the railway 
 company should compensate landowners injuriously affected because of the 
 
RAILWAY BOARD. 593 
 
 opomtioB of tlie raQvav on the highway, if sueh landowners hare not 
 ben rwapfwted in some other war. 
 
 HaaiUoB ▼. Gnnd Tmnk Rj. Co. (Re Shanting on Ferguson arenne, 
 Hamitton), 14 Can. Rt. Cas. 196, 5 DX.R. 60. 
 
 Vwawvsciai. kaolwat. 
 
 Tkt St. J. Jt Q. Rt. Co.. a proiineial railwar companr haTin^r applied 
 to the Boaid under ss. 227. 229 of the RulwaV Act, 1906, for authoritr 
 ta eonneet its tracks with tho«e of the C.P.R. Co. and operate its trains 
 orer them between <vrtain points, to rearrange certain tracks of the C.PJL 
 Co.. coestrnct and operate switch^ from its lines at certain points, and 
 make other phjsiral ehang«>s. The Board refused the application on the 
 groond that the benefits of the prondoDs of the Railway Act allowing one 
 railway ctHnpany to ui« the lines and appliances of another can only be 
 given to Dominion railways, and that the statutes 1 & 2 Geo. V. (1911| 
 e. 11, and 2 Geo. V. (1912> c. 49, do not place the applicant railway under 
 the jurisdiction of the Board. [Preston k Berlin Street Ry. Co. T. Grand 
 Trunk Ry. Co., 6 Can. Ry. Ca*. 142, foUowed.] 
 
 St. Jolin t Quebec Ry. Co. v. Can. Pac Ry. Co., 14 Can. Ry. Cm&. 360. 
 
 OOMPLETIOX <W KAILWAT — JjOCXTtOiS PLAXS — ^APrSOTAI. — OfEXIXG V%M 
 
 jmAwnc. 
 
 Tlte Board has no jurtsdictian to entertain an applicatimi for the com- 
 filetiutt oi a line of railway whei« the route map has been approred. Its 
 jurisdiction is confined to approral of the location plans and upon appli- 
 cation to open the railway lines for traflBc when eonstmcted. 
 
 Herrin Board of Trade t. Can. Northern Ry. Co., 14 Can. Ry. Gas. 363. 
 
 SlOP-OTEX FmmtOGBS — ^DElCrSSAGE. 
 
 It is atirely within the discretion <rf the carriers to grant or withhold 
 stt^-orer piirilegea on carload and part carload shipments daring its 
 transportati<m to final destination at coneentration points for the pur- 
 pose of storage, inspection or completion of carload: therefore, where the 
 ■top-orer priri^e is not granted, unjust discrimination not baring been 
 established, the Board b^ without jurisdiction to direct that this privilege 
 shall be giren by the carrier. 
 
 Simcoe Fruit, etc., Assn. \. Grand Tnmk, edtc, Ry. Cos., 14 Can. Ry. 
 Gas. 370. 
 
 RAH.WAT AXD imAFnc bkioge — MirMciPAixrr — Repair axd xactiexxxge. 
 
 The Board has no jurisdiction to decide a dispute between a municipal- 
 ity and a railway company as to which of them is liable for the repair and 
 maintenance of a combined railway and traflk' bridge, which ends on 
 railway property, on both sides of a river, and who^e approaches run over 
 a municipal highway: the matter is entirely between the railway company 
 and the provincial authorities, who aided in the coostmction of the bridge. 
 
 Aanniboia v. Can. Northern Ry. Co.. 14 Can. Ry. Cas. 365. 
 
 XOXEXISTKXT aAILWAT ^EeCOSSTBCCTIOX — RbOPEXTSG F0« TRAFFICS. 
 
 The Board has no jurisdiction to entertain an application where the 
 wrong complained of happened ten years l<efore the Board was constituted, 
 nor can it compel a railway company, the succe!^«or in title of the re- 
 spondent, to reconstruct and reopen for traHlSc, with proper facilities, a 
 portion ot its railway which has become nonesistenl. 
 
 Chambers of Commerce Federation v. South Eastcn By. Co., 14 Can. 
 Rj. Cas. 367. 
 
 Can. Ry. I* Wg.— 38.- 
 
594 RAILWAY BOARD. 
 
 Tolls — Foeeign railway. 
 
 The Board, not having any jurisdiction over the tolls charged in a for- 
 eign country, no comparison can be made between tlicm and those in 
 Canada for the transportation of the same commodity. 
 
 Imperial Rice Milling Co. v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 375. 
 
 Opexixg road for traffic. 
 
 The Board cannot compel a railway company to open and operate for 
 passenger and freight traffic a newly constructed road, as the determina- 
 tion as to when it shall be opened for traffic rests solely with the railway 
 company. 
 
 Re Grand Trunk Pacific Ry. Co., 3 D.L.R. 819. 
 
 Opening road for traffic. 
 
 Where a railway company had been carrying passengers over a newly 
 constructed road that had not been opened for traffic by an order of the 
 Board under s. 261 of the Railway Act, 1906, the Board will refuse to 
 make any order directing the company to open the road for traffic on that 
 account, but will forbid the company from continuing to carry passengers 
 except under the provisions of the Railway Act. 
 
 Re Grand Trunk Pacific %. Co., 3 D.L.R. 819. 
 
 Railway in colrse of construction. 
 
 A railway company may rightfully carry as freight over a road that is 
 in course of construction, for an independent contractor, who was building 
 it, ordinary construction and camp supplies necessary to such work and, 
 as passengers, it may also carry labourers for employment thereon, not- 
 withstanding the road has not been opened for general traffic by an order 
 of the Board under s. 261 of the Railway Act, 1906. 
 
 Re Grand Trunk Pacific Ry. Co., 3 D.L.R, 819. 
 
 Jurisdiction — Provisional directors — Irregularities. 
 
 The Board Avill not pass on any issue arising between provisional di- 
 rectors of a railway company and municipalities in regard to the legality 
 of payments for calls on subscriptions made by the provisional directors, 
 or other issues of such character. 
 
 Re Burrard Inlet Tunnel & Bridge Co., 10 D.L.R. 723. 
 
 Jurisdiction — Partially organized company — Status. 
 
 A railway company, whose organization has not been completed as re- 
 quired by tlie provisions of the Railway Act, but which is assuming to 
 carry on business through its provisional directors, has no standing to 
 file detailed plans of its undertaking with the Board, it being necessary, 
 on the part of the company to lile evidence with the Board shewing that 
 the provisions of the Railway Act relating to organization have been com- 
 plied with as a condition precedent to its right to file such plans, or of 
 its right to any recognition by the Board of any such partially organized 
 company. 
 
 Re Burrard Inlet Tunnel & Bridge Co., 10 D.L.R. 723. 
 
 Widening right-of-way — Retrospective order. 
 
 The Board cannot, seven years after the filing and approval of the 
 
 location plans of a railway, by an order not based on s. 162 or 167 of the 
 
 Railway Act, 1906, permit the filing of a new plan to take effect as of the 
 
RAILWAY BO.\RD. 595 
 
 4aie off the i j g M at, so as to »crra«ip tke vidtk of the oriMpiBr's r^ft- 
 Chambers V. Cu. Vme. Rr. Co, 48 Cam. &CLS. l«f^ U DJLJL C0. 
 
 Otebbeaii BuncE — :>nEET kailtat. 
 
 TW Booird kis jarndktiiML nodm- ssu S fm|, 39. 337, 23S of the Baflvay 
 Art, UHOC as iiihnl hr S Jk 9 Ed«. VIL c 3*, to rrqoirf a tnmmaj 
 «■— f -J to hear a pirti«Ni of the eost of aa owrhrad bri^>e urn the ek w a - 
 tioa of a citT ftncft oa mhiA siKh <i()aipaa|r's ear liaes rui, at the poiadt 
 vhne it crasHS a DowaioB raOwT. 
 
 Brtt^k CbI— hii Elrr. Rt. Co. t. Ytmtamnrr, etc., 15 Caau Bj. Cas. 237, 
 48 Cka. SLCJL 90^, 13 DJL.R. 3IML 
 
 [Beccned ia IS Caa. Br. Cas. 2$7. 19 D.LlR. 91: ^atimguAei m 
 TlM— la St. Col t. Citr of Tormrto aad Caa. P*r. Rj. Col, A On. Rjr. 
 CaaL 288.l' 
 
 Qcxsnoxs OF LAV — Leatie to atteal. 
 
 \ffMintkm Uk leave to sec dova aa ippKcitwM for leaw to a ffe a l 
 to the tTa|M i ■! Coort oa ^jaeEtioak^ of law arisn^ apoa aa ovier of the 
 Board approria^ of enk<isi^$ fenr the applicaats' ¥mt of raiI«aT of hi^- 
 vars ia the citj of Priaw Jkftert apoa coaiitioa that the applicaat e«aa- 
 poHate the liadoawi i, oa the hi^vajrs far liiwagei fif aarit eaffned 
 ly dvaa tgr nmaom mt the locatiaB of the raflvar akn^ the k^waj: — 
 Heli, ttai, the fnetjoa of lav hen^ ow of jatisdieliaB, the party 'whs 
 «i^«fc8 the jfiwIirtiM AmOd applj to a Jadge «f the S^nae Govt 
 fv kare to appeal, hadt tihe Baarl shoald aot. ^lirr hm pawii to aadh- 
 
 vealhr oae of jansdktioa. AppKritioa rrfased. 
 
 Priaee JkAnt r. Cam. Xorthen Rr. Co. fCundJaB Xorthcn Stnet 
 PxMee Atktwt), U On. tkr. Cma. 
 
 LcaVK TO AmAJL — Jt 1^11 lMI-\. 
 
 A Jmige of the Svpnae Court of Caaada wiD aot graat lesTe to appeal 
 froBi tW lirririwi ml the Board oa a qpectaoa of jorisdirtiaK if he has bo 
 daohl that svch densioo was cnrrert. L«oTe nfosed. 
 
 Haliiftx Board of Trade t. GtumI Tnak Bj. Co. (Halifax Bates Case}, 
 1± Caa. By. Casw aS. 
 
 JvtMsmcnois — Qcestiox or lav. 
 
 A fwctiaa of jartsdictiaB aaj aka he a 5[ars<ioa of lav vithia the 
 ■eaaia^ of s. m of the BailvaT Act, 1906. aad the Boaid aaj submit 
 for the o^aioa of the Sopmae Coort ^pe»tioa# of bv vhirh iaixrfve the 
 ■ittu ml the jnriadictiaa of the Board. (Essex Termiaal Br. Co. r. 
 W i ll i III, Essex A Labe SkoR Rapid Rr. Ca, 7 Caa. Rr. Cas. 109, at p. 
 124. 40 Caa. S.CJt. «•, 8 Gu. Rj. Ca& L foDooed.] 
 
 Haailtoa x. Toraato, HaailtoB 4 Buffalo Br. Col (Hmtrr Stnet Caset. 
 17 Caa. By. Casw 3i8. 
 
 JcusMcnox — QcEsnox or lav — States cask. 
 
 Cvdnr «. oi a€ the Bailvar Act. 190S, the Board Bar, of its amm »o- 
 tioB, state a ca«p ia writj^s ^^ <^ opiaioa of the Sopnaae Coart of 
 Caaada, apoa a ipicstioB of jariadirtioa vhirh. ia the opiaioa of the Board. 
 BTCiies a qaeetioa of lav. [Easex Termiaal By. Co. t. Wiadsor, Essex 
 
596 KAILWAY BOARD. 
 
 & Lake Shore Rapid Ry. Co., 7 Can. Ry. Cas. 109, at p. 124, 40 Can. S.C.R. 
 620, 8 Can. Ry. Cas. 1, followed.] 
 
 Hamilton v. Toronto, Hamilton & Buffalo Ry. Co. (Himter Street Case), 
 17 Can. Ry. Cas. 370, 50 Can. S.C.R. 128. 
 
 Abolition of grade ckossings — LiAnir.iTY of street railway — Power as 
 TO cost. 
 
 Where the Board makes a permissive order on the application of a 
 municipal corporation authorizing the latter to construct viaducts to 
 carry streets over a railway which is subject to Dominion legislation and 
 it is left to the municipality to avail itself of the order or not, s. 59 of 
 the Railway Act, 1900, does not apply, and it is not competent for the 
 Board to include in its order a direction that a tramway company, whose 
 line and crossing of the other railway would be affected by the change of 
 grade, shall contribute (on the ground of the benetit which it would re- 
 ceive) a certain portion of the expense if the application on which the 
 tramway company appeared was one solely between the other railway 
 and the municipality and no relief was claimed against the tramway 
 company in the notice of motion. [British Columbia • Elec. Ry. Co. v. 
 Vancouver, Victoria & Eastern Ry., etc., Co. and Vancouver, 13 D.L.R. 
 308, 48 Can. S.C.R. 98, 15 Can. Ry. Cas. 237, reversed.] 
 
 British Columbia Elec. Ry. Co. v. Vancouver, Victoria & Eastern Ry., 
 etc., Co. and Vancouver, 18 Can. Ry. Cas. 287, [1914] A.C. 1067, 19 D.L.R. 
 9L 
 
 [Followed in Thorold v. Grand Trunk et al. Ry. Cos., 24 Can. Rv. 
 Cas. 21.] 
 
 Separation of grades — ^Jurisdiction — ^Highway improvements — Api-or- 
 tionment of cost — Contract and civil rights. 
 
 A municipality making highway improvements for the convenience of 
 the public, with the incidental grade separation, should, in addition to 
 its own portion of the cost of the works, bear the portion of such cost 
 from which an electric railway operating on the highway was relieved by 
 the judgment of an appellate Court. In grade separation proceedings the 
 cost of pavements and sidewalks on highways carried over the railway 
 should be borne by the municipality unless a permanent pavement already 
 laid is destroyed by the work ordered by the Board; in that case tlie cost 
 of the substituted pavement is added to the cost of such work. The Board 
 does not pass on matters of contract and civil rights between the parties 
 concerned in the work of grade separation, but only directs by which 
 party the works authorized or ordered shall be done, leaving it to that 
 party to carry out the work properly and without imdue expense, and 
 without interference by the Board except for the pur])ose of seeing that 
 its order is properly carried out. [British Columbia P^lec. Ry. Co. v. 
 Vancouver, Victoria and Eastern R3'., etc., Co. and Vancouver, [1914] 
 A.C. 1067, 18 Can. Ry. Cas. 287, considered.] 
 
 Vancouver v. Vancouver, Victoria & Eastern Hy., etc., Co., 18 Can. Ry. 
 Cas. 296. 
 
 Jurisdiction — ^Validity of orders — Publication. 
 
 Publication in the Canada Gazette is not a condition precedent to the 
 operation of an order of the Board even as regards general orders affect- 
 ing the public; s. 31 of the Railway Act, 1906, requires that judicial no- 
 tice shall be taken of an order published by the Board or by leave of the 
 Board, but in other cases the order may be proved by a certified copy 
 
BALLWAY BOARD. 597 
 
 mder s. 419 irf ilw Art [B. t. CSSJL Co^ IS Can. Cr. Ca& 170; Bu^»t 
 T. Cmn. Pae. Rr. Co., U OX.B. 1, 3 Can. Er. Cas. 3»4, foUoved.] 
 
 Uaderhill T.'Caii. Xortheni Ry. Co, Is'Can. Ry. Cas. 313, *» D-LJL 
 279. 
 
 JvasmcruKf — ^Mttsicifai. ruFwivEsiEST — Gkabcs — Setakatiox. 
 
 The jiiiisdietion of the Beard is «mfiw!d in eases of separation of 
 grades to tke public interest in so far as DoHunica franehiaga are cob- 
 eerved and tte proper administration of then by Dmminion raihray cob- 
 panirfli. It is not the bnsineas oi the Board to decide an i&s«e of nni- 
 nicipnl apedieney. vhether or not nranicipalities dhonld make certain 
 iMjHtf f w enta in cases where the whole e»^ will be on the mnnicipality. 
 
 Winnlpes t. Cmi. Pae. Ry. Co_ 18 Can. Ry. Cas. 317. 
 
 JjimtSDicaax — TEteFHOXES — Uxjrsr Msc»nrtSATiox. 
 
 Be ponvTB c onlieii e d on the Board in regard to tdephone efmipanies 
 are not. neeessarihr identieal with those conferred in respect <rf raOway 
 eoaipanieB. Tktt powers of the Board with regard to the former are defined 
 and nsizieted by 7-S Edw. VTL c 61, part 1. & 5. The Board has no 
 jniadieliMi to order the reopening of a td^hone pay station, althoo^ 
 maA aa ^iplication may be joatified mder the j^ovlsions of the Railway 
 Aet agunst imjost discriminatiMi. 
 
 St—ey Point t. BeD Telephone Col, 18 Can. Ry. Ca& 319. 
 
 JraiSDicnox — ^Acthchuzatiox or coxraACT KxawnsG fbom uuBiuTr. 
 
 It is within the power o€ the Board under the ^t»Tisions of the Rafl- 
 way Act, 1906, to authorize a contract relieiing the company from lia- 
 bility to one trareli^ in charge of lire stock at a reduced ^re, for in- 
 juries caused fay the negligence of the cooapany or otherwise. 
 
 Grand Trunk' Ry. Col t. RoinnsaB, 19 Caa. Rjr. Ck&. 1, [1913] JLC. 740. 
 22 DUR. 1. 
 
 [RolHBacm t. Grand Trunk Ry. Col, 47 Can. S.C.R. 633, 13 Can. Rt. Cas. 
 a**, 12 DX.H. 696. rcTersed.] 
 
 JcMswcnox — Opes fob tsaffic — TRAXSFoarATiox — ^Tolxs — Coxsnnrc^ 
 
 TIDX FESIOII. 
 
 The Board has no jurisdiction over carriers, so far as traffic is eoncaned 
 ^idar proper application is asade to open for traffic under a. 261 (2), of 
 the Railway Act, 1906. althoi^ it may well be that in the public in- 
 tHvst some provision should be made in connection with transpmiation 
 tolls, even before the raihray has passed the constraetion period. [Baker, 
 Reynolds i: Co. t. Can. P»c. Ry. Co.. 10 Can. Ry. Cas. 151 : RaadaD, et aL 
 T. Can. Pac- Ry. Cou 17 Can. Ry. Cas. ia±: Riverside Lumber Co. v. C^b. 
 Piat Ry. Co., 18 Can. Ry. (as. 17, followed.] 
 
 Re Kdmonton, Ihmvegan t British Cohirabia Ry. Co., 19 Can. Rv. Cas. 
 393l 
 
 JcxiSDicnox — ^Pbotexcial z' *»■»«»« 
 
 It is not the function of the Board to decide whether a section of the 
 Railway Act (8 4 9 Edw. VII. c. 32. s. 5At. firing it jnrisdieti<^n over a 
 provincial carrier is ultra vires or not. [Montreal v. Uontreal Street Rv. 
 Col, [1912] A-C. 333, 13 Can. Ry. Cas. 341. affirmii^!: Montreal Street Ry. 
 Co. V. Montreal, 43 Can. S.C.R. 1!»7. 11 Can. Ry. Cas. 203. referred to.] 
 
 .\nger A aL v. Grand Trunk and Can. Pac Ry. Cos_ 19 Can. Rv. Cas 
 401- 
 
598 RAILWAY BOARD. 
 
 Explosives — Initiai. cabrieus — Discretion — Obligation. 
 
 An initial carrier is under no obligation to become a member of the 
 r>iireau of Explosives if it satisfies the Board that a competent inspector 
 lias been appointed and proper arrangements made for the inspection of 
 shipments of explosives originating on its line. Under s. 317 of the Rail- 
 way Act, 1006, connecting carriers must accept such shipments of ex- 
 })losives when presented for transportation and cannot under s. 286 exer- 
 cise tlieir discretion by declining to accept the shipments. 
 
 Can. Northern Ky. Co. v. Grand Trunk and Canadian Pacific Ry. Cos. 
 (Bureau of Explosives Case), 20 Can. Ry. Cas. 220. 
 
 JuBiSDiCTioN — Water gate — Culvert. 
 
 The Board has no jurisdiction under ss. 26 (2) or 26 (a) of the Rail- 
 way Act, 1906, to nuike an order directing the respondent to construct a 
 water gate at the culvert on its right-of-way to protect the applicants 
 from being flooded. 
 
 Trites v. Can. Pac. Ry. Co.. 21 Can. Ry. Cas. 1. 
 
 Jurisdiction — Stoi'Over privilege — Discretion of carrier. 
 
 The Board has no jurisdiction to compel carriers to put in a milling- 
 in-transit or stopover privilege of a similar character. It is in the dis- 
 cretion of the carrier to grant it or not. The Board can only intervene 
 wlien unjust discrimination or imdue preference has been shewn. 
 
 Shingle Agency v. Can. Pac, Can. Northern and Great Northern Ry. 
 Cos., 21 Can. Ry. Cas. 9. 
 
 Reheabinc — Doubt as to correctness — New evidence. 
 
 The Board will not reconsider its former decision unless doubt has 
 arisen in the minds of the Board as to the correctness of the first conclu- 
 sion by reason of new matter advanced on an application to reopen or 
 otherwise as to the soundness of the first conclusion, or when new evi- 
 dence on a material issue can be presented. 
 
 American Coal &, Coke Co. v. Michigan Central Ry. Co., 21 Can. Ry. 
 Cas. 15. 
 
 Jurisdiction — Tolls— Division — ^Lake and rail. 
 
 The Board has no jurisdiction over the tolls charged or the division 
 demanded by the different steamship companies operating boats on the St. 
 Jjawrence or Great Lakes, except that under s. 333 (3) of the Railway 
 Act it has jurisdiction over the tolls on tlie steamships owned, operated 
 and used by the Canadian Pacific Ry. Co. 
 
 Boards of Trade of ^lontreal and Toronto et al. v. Canadian Freight 
 Assn., 21 Can. Ry. Cas. 77. 
 
 Jurisdiction — Breach of agreement. 
 
 A specific breacli of an agreement must be shown to give the Board 
 jurisdiction under 8 & 9 Edw. VII. c. 32, s. 1. 
 
 Hamilton v. Grand Trunk Ry. Co. (Burlington Beach Case), 21 Can. 
 Ry. Cas. 211. 
 
 Jurisdiction — Railway bridge — Branch line. 
 
 Where a company is authorized by its charter to build a bridge and 
 lay railway tracks upon it, but has no power to build a railway the Board 
 
KAILWAY BOARD. 599 
 
 kas BO jniadirtioB to antliorize it to fauOd m Iwaaeh line of railvav nnder 
 a. 175 of tke RaOTar Act. 1903. 
 
 lateraatioBa] Bridge k Termiiial Co. t. Can. Xortkera Br. Co.. 21 Can. 
 Ry. Cas. 218. 
 
 DOMIXiOX KAII.WAT TAKi:C6 tASB OT PBOVrXCIAI. KMLVAT. 
 
 The Board has no jnrisdietioa, nader >. 176 of the Railwaj Aet, 1906, 
 to order tkmt a Dcauaioo railvaj compaiiT shoold be aathorized to take 
 aad me laads which, at the time <rf the application for the approval and 
 of the approval of the location of the Dominion railvar, had become the 
 propertT of a provincial railway cmnpanr. [Mcmtreal v. Mmitreal Street 
 Rj-. ColI [1912] A.C. 333. 13 Can. Rr. CasL »41, referred to.] Per Idington 
 J. (d iac e n tingn. — ^Tbe Botud ha^ the same power to make ord^ respect- 
 i^ the nse and occnpation of the lands of a provincial railway eompany 
 as it has in regard to the lands of any other corporate body created by a 
 ftorlnrial l^i^latIIre. 
 
 Moatnal Tramways and Montreal Park k Island By. Cos. v. Ladline, 
 Jaeqfoes Cartier k ilaismmeove Bj. Col, 18 Gaa. Ry. Ca&. 122, 50 Can. 
 S.C.R. 84. 
 
 Ji'Kisojcnox — ^Telephoxe sekvict — FAcmnES. 
 
 2 & 3 Edw. VII. e. 41, s. 2, limits tke Board's jurisdiction to direct 
 tke installation of a telephone serriee but gives tke Board no power in 
 regard to facilities sack as it has in the case of railway companies. 
 [Tinkers v. Bell TelephoM Co., 20 Can. Ry. Cas. 249. at p. 2-55. followed.] 
 
 North Lancaster Exchange t. Bell Telephone Co., 21 Can. Ry. Cas. 220. 
 
 [Followed in Re Andersni and Bell Telephone Co^ 24 Can. Rr. Cas. 
 234.] 
 
 JmnsMcnox — Si«rcTrur xcab t»acks. 
 
 Applications to tke Board, under the provisions of general Order Xol 
 65. which provides that ^Xo stmcCore over four feet higk shall herafter 
 he placed within six feet froB the gsuge side of the nearest rail without 
 first obtaining the ap|»oval of tke Board." for the purpose of obtaining a 
 limited clearance, affect a matter connected with the opera tioa of tke 
 railway, and skonld be made by the railway company concerned and not 
 by tke indhridnal or industry affected. 
 ' Re General Order No. 65, 16 Can. Ry. Cas. 412. 
 
 JcviSBicnox — ^Railway ox highway — Mr:siciPAL rsE or hkhwat. 
 
 la din i inT'HE an application by a railway company to construct a spur 
 OB a highway, tke Board has no jurisdiction to impose terms on tke 
 municipality concerned as to tke use it skould make of tke kigkway in 
 question. Tke Board's jurisdiction is cfMifined to autkorizii^ tke eon- 
 sbriction and maintenance of tke railway on tke highway. 
 
 Montreal t. Can. Pac. Ry. Co. (Longne Point Spur C^), 21 Can. Ry. 
 Cas. 224. 
 
 JmsDicnox — ^Toixs — ^Re.\soxamjb — Expemmextai. — ^l3n>rsT«T nsTEUor- 
 
 Tke juriadictMm of the Board is confined to dealing with the reason- 
 ableness of toDs. and it is not its function to put in experimental toll« 
 with a view to developing industry. [British Columbia News Co. v. Ex- 
 press Trafie Assn.. 13 Can. Ry. Ca.<^. 176. at p. 178. followed.] 
 
 Sootkera Alberta Hay Growers v. Can. Pac. Ry. Co. (Timothy Seed 
 Case), 21 Can. Ry. Cas.' 226. 
 
coo EAILWAY BOARD. 
 
 Jurisdiction — Opebation of eailway — Noise — Municipal by-law — 
 Smoke from locomotives. 
 
 Unless it can be established that a railway company in carrying on its 
 undertaking authorized by Parliament upon its own property, in a man- 
 ner which is calculated to do as little harm to adjacent owners as pos- 
 sible, is not exercising as much care as it might, to lessen the noise of 
 operation, the Board has no jurisdiction to interfere. It is not incum- 
 bent upon the Board to summon offending parties before the Courts of 
 the Province for violation of its own order and a municipal by-law regu- 
 lating the emission of smoke from railway locomotives. 
 
 Toronto v. Can. Northern Ky. Co. (Don Valley Shunting Case), 21 Can. 
 Ry. Cas. 452. 
 
 Jurisdiction — Traffic Agreement — Conditions. 
 
 The Board has no jurisdiction under s. 364 (3) of the Railway Act, 
 1906, to dispense with the sanction of the Governor-in -Council required by 
 s. 364 (2), but can only recommend for such sanction a traffic agreement, 
 properly brought before it, of which it approves. The Board has juris- 
 diction to dispense with conditions as to consent of shareholders, adver- 
 tising in local papers and other conditions as to procedure in bringing 
 the matter properly before the Board. 
 
 Re Grand Trunk and Quebec, Montreal & Southern Ry. Cos., 23 Can. Ry. 
 Cas. 101. 
 
 Jurisdiction — ^Tolls — Water borne traffic — Local ports. 
 
 The Board has no jurisdiction to deal with a tariff of tolls for water 
 borne traffic between local ports, no part of such traffic being attributable 
 to railway traffic. [Dawson Board of Trade v. White Pass & Yukon Ry. 
 Co., 9 Can. Ry. Cas. 190, distinguished.] 
 
 Massett v. Grand Trunk Pacific Steamship Co., 23 Can. Ry. Cas. 121. 
 
 Disputed accounts — Jubisdiction — Reference. 
 
 In a case of dispute between a municipality and a railway company 
 over the cost of a bridge carrying a highway over a railway, of which 
 each pays a certain proportion, where owing to the length and intricacy 
 of the accounts it is impossible for the Board in the exercise of its juris- 
 diction to decide the questions at issue at an ordinary hearing, the mat- 
 ter was referred to a Referee imder s. 60 of the Railway Act to take the 
 accounts and report to the Board what amount (if any) is due by one 
 party to the other, the reference being at the applicant's risk as to costs. 
 [See North Bay Landowners v. Can. Northern Ry. Co., 23 Can. Ry. Cas. 
 35.] 
 
 Vancouver v. Vancouver, Victoria & Eastern Ry., etc., Co., 23 Can. Ry. 
 Cas. 123. 
 
 Jurisdiction — Bbidge — Highway and bailway — Pedestbian — Public 
 
 WAYS. 
 
 The Board has only such jurisdiction as is given it by the express terms 
 of the statute or by the necessary implications therefrom. S. 59 of the 
 Railway Act, 1906, does not confer jurisdiction on the Board to order a 
 combined highway and railway bridge. The Board having found upon the 
 evidence that the respondent built the extensions on either side of a rail 
 way bridge for the pedestrian use of the public, it was held that the foot- 
 
RAILWAY BOARD. 601 
 
 patlis 9o provided vne, in fmet, public wars and eiHiiainnkations. [Dnthie 
 r. Gnnd Tnuik Rt. Co., 4 Can. Ry. Cas.* 304, at p. 311. followed.) 
 
 Victoria and Attomer-Coieral for Britidi Columbia t. Esquimalt t 
 Xanaimo Rt. Co., 24 Can. Ry. Cas. S4. 
 
 PuHUc xriSA:xcE — St(JCK pexs — Jr«ia>icnox. 
 
 The Board has no juriadictiMi, under s& 36 fit, 3S4 of tbe Railvay 
 Act, 1906. or othenrlse, to direct tke remoTaL as a public nuisance, of a 
 stock pen on the railway. [Bennett r. Grand Trunk Rj. Co., 2 OX.R. 
 4SS, 1 Can. Ry. Cas. 451, referred to.] 
 
 Be^eCte t. Can. Pac Ry. Co, 24 Can. Ry. Cas. 113. 
 
 AcmSMMEST — ^VaUDATIOS — JCRISDICnOX Ex POST FACTO OHWXS. 
 
 Where a railway company entovd into agreements for the purchase of 
 the assets, stO(^ and frandiises of other railway companies, and subse- 
 quently became insolTent. the Board has no jurisdiction, under s. 361. of 
 tile Railway Act, 1906, to recommend such agreements for Talidati<». 
 [Niagara^ St. Catharines i Toronto Ry. Co. t. Grand Trunk Ry. Co. (Mer- 
 ritton Crossing Case>, 3 Can. Ry. Ca&. 263. at p. 267. referred to.] 
 
 Be Central Ry. Co. AgrranenU^ 24 Can. Ry. Cas. 117. 
 
 LaXDS OV PBOnxCIAI. SAILWAT — POWEBS OF DomXIOX PAMJAltEXT — 
 JrWSDlCTIOX — ^LOCATIOX FfJiS. 
 
 S. 176 of the Railway Act, 1906, does not authorize the taking of lands 
 of a proTincial railway c<Mnpany; and the settled practice of the Board, 
 accords with this view. The Dominion Parliament has power, ancillary 
 to its main kgislatire power r^arding railways, to authorize the tak- 
 ing of lands of a proiiocial railway by a Dominion railway company, to 
 the extent necessary to give effect to the purpose of the Domini<» incor- 
 poration. To the extent necessary to give effect to the pttrpose of the 
 Dominion incorporation, the Board has jurisdiction under the Railway 
 Act to authorize the expropriatitm by a Dominion railway company of 
 lands of a provincial railway company, either by an order approving lo- 
 cation plan under s. 159, or in a proper case, by order, e.g., under s. 178, 
 in the same manner as lands of individuals. Sembie, vrhoi application 
 is made under s. 159 of the Railway Act for the approval of a location 
 plan oT a Dominion railway crossing lands of a provincial railway com- 
 pany, the Board must fir~t determine in each case, whether expropriation 
 oi tiie required lands of the provincial railway should be authorized, since 
 tbm order of approval carries with it the right of expropriation of such 
 laads within the limits set out in s. 177 of the Act. [Preston t Berlin 
 Street Ry. Co. v. Grand Trunk Ry. Co, 6 Can. Ry. Cas. 142; St. John t 
 Quebec Ry. Co. v. Can. Pae. Ry. Co., 14 Can. Ry. Cas. 360; Toronto v. 
 Bell Telephone Co, [1905] A.C. 52: Atty. -General for British Coliunbia 
 T. Can. Pac. Ry. Co, [1906] A-C. 204, followed: Atty .-General for Alberta 
 T. Atty.-General for Canada. 31 Ti.R. 32. referred to.] 
 
 Lachine, Jacques Cartier, etc, Ry. Co. v. Montreal Tramways and Mam- 
 treal Part: t Island Ry. Cos, 18 Can. Ry. Cas. 133. 
 
 Ji3misDicnox — Specific time — ^Pctbjc evterest. 
 
 The Board has no jurisdiction under the Railway Act, 1906, (sa. 30, 
 268, 270, 307), to prevent the use by railway companies of any specific 
 time, unless sudi use is shewn to be against the comfort, convenience and 
 ■a^ty of the traveling pubUe and railway employees. The Daylight Sav- 
 
cm llAILWAY BOARD. 
 
 ing Act, 1!)1S, according to the ordinary canons of construction, remains 
 in force until repealed. 
 
 Re Daylight Saving Act, 3918, 24 Can. Ry. Cas. 199. 
 
 Act — Operation — Judicial and admi.xistrative body — Discretioxaby — 
 Legislative — Jirisdictiox. 
 
 Parliament having stated its intention that the operation of the Day- 
 light Saving Act should not extend beyond the year 1918, it is inadvisable 
 that the Board should under all the circumstances take any action under 
 it. The Board is both a judicial and administrative body, its jurisdiction 
 is largely discretionary and in some instances legislative in its character. 
 
 Re Daylight Saving\\ct. IMS. 24 Can. Ry. Cas. 199. 
 
 JUBISDICTIOX DISMIS-SAL OR Dl.SClPMXE OF EMPLOYEE — INTERNAL MAN- 
 AGEMENT. 
 
 The Board has no jurisdiction to discipline or remove an employee of 
 a railway or telephone conii)any; the matter is entirely one of internal 
 management of the company. [Tinkess v. Bell Telephone Co., 20 Can. 
 Ry. Cas. 249, at pp. 253, 25."): North Lancaster Exchange v. Bell Telephone 
 Co., 21 Can. Ry. Cas. 220. followed.] 
 
 Re Anderson and Bell Telephone Co., 24 Can. Ry. Cas. 224. 
 
 Exclusive jurisdiction — Accoxi modatiox facilitie.s — Reasoxableness. 
 
 The Board has exclusive jurisdiction to determine whether a railway 
 has provided reasonable accommodation and facilities for traffic as re- 
 quired by ss. 284, 317 of the Railway Act, ]90(). and there being no find- 
 ing of the Board that the plaintiff had been wrongfully deprived of such 
 accommodation or facilities he cannot recover in this action. Per Barker, 
 C.J., McLeod and White, JJ. (Landry and Barry, J-J., dissenting) : [Can. 
 Northern Ry. Co. v. Robinson, 43 Can. S.C.R. 387, [1911] A.C. 739, distin- 
 guished.] 
 
 Meagher v. Can. Pac. Ry. Co., 42 N.B.R. 46. 
 
 Jurisdiction — Rea.sonablexess — Discretion of carriers — Development 
 OF business — Flat toll — Weight. 
 
 Carriers in their discretion may fix tolls to develop business; the 
 Board's jurisdiction is concerned only with the reasonableness of tolls. 
 [Canadian Portland Cement Co. v. Grand Trunk and Bay of Quint« Ry. 
 Cos., 9 Can. Ry. Cas. 209; Blaugas Co. v. Canadian Freight Assn., 12 
 Can. Ry. Cas. 303. at p. 304; British Columbia News Co. v. Express Traf- 
 fic Assn., 13 Can. Ry. Cas. 76, at p. 78; Hudson Bay Mining Co. v. Great 
 Northern Ry. Co., 16 Can. Ry. Cas. 254, at p. 259;' Canadian China Clay 
 Co. V. Grand Trunk, Can. Pac. and Can. Northern Ry. Cos., 18 Can. Ry. 
 Cas. 347; Roberts v. Can. Pac. Ry. Co., 18 Can. Ry.Cas. 350, followed.] 
 The Board uphi)lding the princi))le of charging on the unit of weight, re- 
 fused to grant a flat toll instead of a toll by weiglit on sliipments of wood 
 from Algonquin Park, Ontario, to municipalities for distribution among 
 their citizens cost. The Board has no power under s. 341 (a) of the Rail- 
 way Act, 1906, to extend the carriage of traflic so as to include a practice 
 not already existing where no question of unjust discrimination arises. 
 The granting of the tolls provided for by s. 341 is permissive so far as 
 tlie carrier is concerned; the jurisdiction of the Board under that section 
 is simply amendatory. 
 
 Waterloo et al. v. Grand Trunk Ry. Co., 24 (an. Ry. Cas. 143. 
 
 Jurisdiction — Questiox of law — Piiysicai. connections. 
 
 Under s. 176 of the Railway Act, 1906, the Board as a question of law, 
 
RAILWAY BOARD. 603 
 
 kas ao juisdicCioB to urtkoflizF a ProTiacial nulvar eoatpaay to take aad 
 nae the laads aad tracks of a Dotaiaioa railvaj compaBj, altboi^bi under 
 14 2 Geo. V. CL f!2, s. » (3*^ ammdii^ & 22S, tke Board caa nake sup- 
 filiiatil ordets for tlie safe aad i»oper traasier oi ea^ines aad equip- 
 ■■cat of the pioriaeial railvar ronpaaj br tite DtMainion railvar 
 eoaipaBT br aieaas of a pfarsical c<HiaeetioB. [Prestoa t Berlia Street 
 Br. Co.'t. Graad Truak Bv.'Cb., < Caa. Rj. Ca?. 142; St. Joha 4 Qnebee 
 Kt. Co. t. Caa. Par. Rt. Co, 14 Caa. Rt. Ca*. 360, followed.] 
 
 St. Joka 4 Qnefaee Rj. Col t. Caa. Par. Rt. Co., 17 Caa. Rj. Cas. 334. 
 
 'R. ProTiBoal Board. 
 
 PmJC UnuniES CoM)IIS>SIO:?C. t^lEBEt WoBKS fob CESESJlL A0VAXTJU.E 
 
 or Casaux — Pbovixclu. beci'i^tion. 
 Whea a railvar of a coaipaBT eoaatituted br a Proriaeial Aet is. after 
 I iiiiili I ilia, declared br Fu-liaawat to be a vork for tbe g ener a l adraatage 
 off f^iint^a, it b wome^ ^ubjert to Fednml jnri«dietioa: bat if. br a Federal 
 Act, the enatpaar is aathoriaed to purehasc and opn^te another proria- 
 eial lailaar vhicb is aot declared to be a wiMi: for the •eaeral adraataafe 
 of Ca— da. it revaias subject. a> to the latter, to proriaeial jnrtsdictioa. 
 Th Mcio fe, the Poblie Utilities CoBIBia)^ioB is conpeteat to arbitrate on 
 dicagrceaeats prorided fmr bj art. 740 et seq. RJSlQ. 1909, vhich aaar 
 arias Je s pectii^ the last awa tioned railvar between the coaapaay and 
 
 Qwshec Railway, L^t, Heat 4 Power Co. r. Lan«lai& H Que. K.B. 167. 
 
 OsTJUUo BoABO — JraiSBicnox — MtrxiciFAi. kailwat. 
 
 A foraaU a g ree aa e n t betweea muairipalities which is not of a rohra- 
 tarj dwraeter bat which is executed in coofonaitj with a directioa of 
 the Oatario Railwar and Municipal Board as to tke operation of a muni- 
 cipal railwar i« withia the exdn^ire jurisdiction of the said Board as to 
 adjost^KBt of differences arisii^ thereuader betweea the municipalities 
 ia the accoooting for the profits of the operation of the road, aad an 
 action ia the Hifih Coort will be diswssed. 
 
 Waterloo r. Berlia. 7 DX-R. 241, 4 0-W.X. 256. 
 
 (Afirmed ia Waterluo r. Berlia. 12 DJ^R. 390. 2S OJ^R. 206; distia- 
 |,Biihi i in Brantford r. Grand Valler Rr. Co, 16 Caa. Rr. Cas. 406, li 
 DJJL 87.] 
 
 OmrMaaa Boabb — Jcvimicnox — Poweb to pebmtt stbeet bailvat to dk- 
 
 TIATE LIXE. 
 
 As the Twtmto 4 York Radial Rr. Co. is not authorized br Ie«:isIatioB 
 to deviate its line from Yonge street, ia the ritr of Toroato. to a private 
 r%ht-af-war. the Ontario Rr. aad Mnaicipal Board is without jurisdic- 
 tion to permit it to do so. 
 
 Toronto r. Toronto 4 Ywk Radial Rr. Co.. 12 DJL.R. 331, 28 OX.R. 
 180, 15 Can. Rr. Cas. 277. 
 
 [ Alii mid in'l7 Can. Rr. Cas. 346. 1-5 D.L.R. 270.] 
 
 OxTABio Bouun> — CoxsTTrmox — ^Powebs axd DmEs — Not a Cotbt. 
 
 The Ontario Railwar and Mooicipal Board althoa|rh it has for some 
 povposes, as part of its powers and duties, judicial functions to perform, 
 is not a Si^erin- Court within the meaning of s. 96 of the B.X-^ Act. 
 [Winn^iS mec. Bj. Col r. Wiaaipc^ (1916), 30 DJLJL 159, distia- 
 gaishad.] 
 
 Re Toronto Rjr. Co. aad Toronto, 46 D.LJt. »i7. 
 
G04 EAILWAY BOARD. 
 
 0-NTAKio Board — Jvbisdictiox — Ixhebent powers — Tax appeal — Re- 
 
 OPEXIXG OF. 
 
 Wliere the assessment for school purposes of a power company was fixed 
 on the company's appeal to tlie Ontario Railway and Municipal Board 
 on the consent of the company and the municipality in an unorganized 
 district of Ontario, that Board had no jurisdiction after the passing and 
 entry of such order, to reopen tlie appeal on the application of the town 
 school board and a ratepayer, and to substitute a higher assessment for 
 its previous order; the ell'ect of subs, o of s. 4 of the Ontario Railway 
 and Municipal Board Act, 6 Edw. VII. c. 31, providing that the Board 
 shall have all the powers of a Court of record, gave it such jurisdiction 
 as in inlierent in a Court of record but not powers which are conferred on 
 ))articular Courts by statute or by rules of Court passed under statutory 
 authority. 
 
 Re Ontario & Minnesota Power Co. and Fort Frances, 19 D.L.R. 429. 
 
 RAILWAY COMMITTEE. 
 See Railway Board. 
 
 RAILWAY CROSSINGS. 
 
 A. Leave to Cross. 
 
 B. Junctions. 
 
 C. Protection; Seniorities; Costs. 
 
 See Crossings; Farm Crossings; Highway Crossings; Interchange of 
 Traffic. 
 
 Distinction between Crossing and Junction, see Junction. 
 Crossing railway by overhead bridge, see Bridges. 
 
 Annotations. 
 
 Power of Board to authorize railway crossings. & Can. Ry. Cas. 144. 
 
 Senior and Junior Rule, Priority of Construction and Apportionment 
 of Cost. 15 Can. Ry. Cas. 450. 
 
 Senior and Junior rule at crossings. 22 Can. Ry. Cas. 188. 
 
 Negligence in not giving warning signals at crossings. 19 Can. Ry. Cas. 
 221. 
 
 Costs of installation, operation and maintenance of protection at kigh- 
 way crossing. 22 Can. Ry. Cas. 188. 
 
 A. Leave to Cross. 
 Permission of Railway CommiTte:e — Appeal from — Injunction — Costs. 
 
 The defendant company had obtained from the Railway Committee an 
 order permitting it to cross the C.P.R. track. Pending an appeal by the 
 C.P.R. Co. from the order to the full Cabinet, the defendant company pro- 
 ceeded to lay the crossing and tlie C.P.R. Co. applied for an injunction: — 
 Held, that defendant company was not exceeding the terms of the order, 
 which was binding on the Court until reversed on appeal to a competent 
 authority, and therefore an injunction could not be granted. Before lay- 
 ing a crossing notice should be given of the time at which it is intended 
 to commence work. Failure by a cornpany to give such notice constituted 
 good cause for depriving it of the costs of successfully resisting a motion 
 for an injunction. 
 
 Can. Pac. Ry. Co. v. Vancouver, Westminster «t Yukon Ry. Co., 3 Can. 
 Ry. Cas. 273, io B.C.R. 228. 
 
RAILWAY CROSSINGS. 605 
 
 'PmawsciAi. MJULwxr — Muxictpai. rEAXCHisES. 
 
 The Preston k Berlin Street By. Co^ openting m prorineial railvav 
 under manieipal franehises. applied to tlie Board, im^r s. 177 of the Rail- 
 war Act, 1903, for anthority to eoostraet tvo crossings over the Grand 
 Trunk tix. Co/s tracks, or in the alternative for an order direetii^ the 
 (■rand Trunk to shift its tra^s so as to afford the applicants access to 
 their freight terminals in the toirn of Waterloo. It was suggested on 
 behalf of the town of Waterloo that an order might be made for this pnr- 
 pcse under s. 187: — Held (1 ». that the application for the crossings most 
 be refused as not proper in the public interest. (2) And that the Board, 
 uuAtr the Railway Act. 1903, has no anthority to etHnpel the Grand Trunk, 
 s Doaunion railway, to shift its tracks for the convoiience of the ap- 
 plicants, a Provincial railway. <3t And that the Board, under s. 137 
 of the Railway Act, 1903. had not jnri^iction to grant to a Provincial 
 raflway company power to take, use or oeeupy the lands of a Dominion 
 railway company. 
 
 Preston i Berlin Street Sy. Co. ▼. Grand Tnmk By. Co„ 6 Can. Bv. 
 Cas- 142. 
 
 [Followed in St. John t Qoriiee By. Co. t. Can. ¥*c By. Co.. 14 Can. 
 By. Cas. 360: St. John & Quebec By. Co. t. Can. Pac. By. Co, 17 Can. By. 
 Cas. 334; Lacbine, Jacques Cartier etc By. Co. t. Montreal Tramways 
 etc.. By. Cos. 18 Can. By. Cas. 133.] 
 
 Level c«ossisg — P«ovrxciAi- kailway — Wosk ro« thb gevxsal adta:v- 
 
 TAGE OF CaSADA APPROVAL OF ■OCTE. 
 
 The Windsor, Essex etc.. By. Co. applied to the Board to rescind or 
 vary its order for a subway under the tracks of the Michigan Central By. 
 Co. at Essex, and substitute a level crossing. Upon the evidence the 
 Board reluctantly accepted the recommendation of the chief engineer in 
 &vour of a level eros«ing. The applicants were originally incorporated 
 onder the provisions of the Ontario Electric Bailway Act, B.S.O. 1897, e. 
 S09. After obtaining an order for a crossing, their railway and works 
 were declared by 6 Edw. \ ll. c. 184 rD.« to be works for the general ad- 
 vantage of Canada: — Held, that the route and location plans need not 
 be approved by the Board under the Bailway Act. 1903, before the varia- 
 tion of the fonner order for a crowing could be made. 
 
 Windsor. Essex k Lake Shore Bapid By. Co. v. Michigan Central By. 
 Co., 6 Can. By. Cas. 1-52. 
 
 MrXICIPALLT OW\T3» STREET KATLWAT APPUCATIOX TO C90SS TO JjEU- 
 
 TEXA:ST-G0VERN0B-IX-«)rXClL 
 
 An application of a street railway to cross the tracks of a steam rail- 
 way company at a place where the latter <-rc»5ses a city street, need not be 
 submitted to the Lientenant-Govemor-in-eonncil for approval, under s. 
 12* of e- 8. of the Alberta Statutes of 1907. as to steam railways under 
 Federal control, since such application falls within s. 227 of the Railwav 
 Act, 1906. 
 
 Ednnrnton .Street By. Co. v. Grand Trunk Pacific Bv. Co.. 14 Can. Bv 
 Cas. 93. 4 D.L.R. 472.' 
 
 [See 7 D.L.R. 888; 22 WXJL 45.] 
 
 B. Junctions. 
 Jfxcnoxs — Ge-vekal adtaxtage of Canada. 
 
 The railways of the Canadian Pacific By. Co., the Great Northern By. 
 Co., the Quebec By. and IJgfat 4 Motive Force Co., all enterprises for 
 
606 RAILWAY CROSSIXGS. 
 
 the general advantage of Canada and under control of Parliament, and 
 also the railway of the Quebec & Lake St. John Ry. Co., an enterprise of 
 a purely provincial nature under control of the Legislature of Quebec, 
 all four enter the city of Quebec; and the Quebec Harbour Commission, 
 which is under the control of Parliament, in order to facilitate the access 
 of these four railways to the Louise dock, constructed on their property 
 a railway siding about 300 feet in length, whicli forms in no manner any 
 part of the systems of any of these four railwaj^s, but by the means of 
 which the trains of the Quebec & Lake St. John Ry. transfer to the Can- 
 adian Pacific Ry. and vice versa: — Held, reversing the judgment of Cimon, 
 J. (1), that this does not constitute on the part of the Quebec & Lake 
 St. John Ry., a connection with the Canadian Pacific Ry., nor a required 
 crossing within the meaning of s. 306 of the Railway Act of Canada, 1888, 
 so as to make the Quebec & Lake St. John Ry. an enterprise for the gen- 
 eral advantage of Canada and place it under tlic control of Parliament; 
 that the connection or crossing referred to in said s. 306 must be a phy- 
 sical and immediate connection without any intermediary rails: — (2) 
 Held, further, that the general language of said s. 306 is insufficient to 
 make the railways which are not expressly and specifically mentioned 
 enterprises for the general advantage of Canada: — (3) Held, also, that 
 construing the said s. 306 and s. 177 of the same act, the said s. 306 
 should be interpreted as applying only to any branch line or line of rail- 
 way Avhich, on account of the junction, should become part of the system 
 of railways enumerated in the section, and, consequently, a branch line 
 of one of these railways. 
 
 Garneau v. Quebec & Lake St. John Ry. Co., 12 Que. K.B. 205. 
 
 Connection of tracks — Pkovincial railway. 
 
 Tlie St. J. & Q. Ry. Co., a provincial railway company, having applied 
 to tlie Board under ss. 227, 229 of the Railway Act for authority to con- 
 nect its tracks with those of the C.P.R. Co. and operate its trains over 
 them between certain points, to rearrange certain tracks of the C.P.R. Co., 
 construct and operate switches from its lines at certain points, and make 
 other phj'sical changes. The Board refused the application on the groimd 
 tliat the benefits of the provisions of the Railway Act allowing one rail- 
 way company to xise the lines and appliances of another can only be 
 given to Dominion railways, and that the statutes 1 & 2 Geo. V. (Iflll), 
 c. 11, and 2 Goo. V. (1912), c, 49, do not place the applicant railway under 
 the jurisdiction of the Board. [Preston & Berlin Street Ry. Co. v. Grand 
 Trunk Ry. Co., 6 Can. Ry. Cas. 142, followed.] 
 
 St. John & Quebec Ry. Co. v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 360. 
 
 [Followed in Lachine, Jacques Cartier. etc., Ry. Co. v. Montreal Tram- 
 ways, etc., Ry. Cos., 18 Can. Ry. Cas. 133. | 
 
 C. Protection; Seniorities; Costs. 
 Packing railway frogs. 
 
 The proviso of subs. 4 of s. 262 of the Railway Act, 1888, does not 
 apply to the fillings referred to in the subs. 3, and confers no power upon 
 tlie Railway Committee to dispense with the filling in of the spaces be- 
 hind and in front of railway frogs or crossings and the fixed rails of 
 switches diiring the winter months. Judgment of the Court of Appeal 
 for Ontario, 24 A.R. (Ont.) 183, reversed. 
 
 Washington v. Grand Trunk Ry. Co., 28 Can. S.C.R. 184. 
 
 [Affirmed [1899] A.C. 275; applied in Weddell v. Ritchie, 10 O.L.R. H; 
 commented on in Fralick v. Grand Trunk Ry. Co., 43 Can. S.C.R. 515; 
 
RAILWAY CROSSINGS. 607 
 
 di£fin«ui«i]ied in Grant v. Can. Par. Br. Co„ 36 XJB.R. 533; followed in 
 Cnmn t. Grand Tnmk Rr. Co., 25 A.R. (Ont->, 407-] 
 
 Cbossixgs or two bailwats — IvrexijocKrvG signal ststeu — Costsibi:- 
 
 TIOX. 
 
 Where tvo railway companies differ a« to the nature and e3Ctent of the 
 protection prescribed br an order of the Railway Committee to be fnr- 
 niithrd at a crossing of two railways, and one company voluntarily pro- 
 Tides tke additional protection which it claims the other company shouhl 
 supply acctwdin^ to the terras of such order, the Board will not. by an 
 ex post facto order, direct repaymrat by the other company of the ex- 
 pCBditare thereby incurred, and in default of payment order that the 
 I nwiiin^ be discontinued. In such cases the proper course is to apply to 
 tke Courts for an interpretation of the order. The order of the Railway 
 Gmuuttee directed that an interlocking signal system and all the neces- 
 aaiy works and appliances for pr<>perly operating the same be provided 
 aft MoA crossing: — Held, that derails do not form part of the appliances 
 required by such order, and a permanent watchman is not neces^sarily re- 
 quired. Cmnpensation is not allowed (1) for the use of the land of the 
 acaiar ctaipany occupied by the crossing tracks of the junior cmnpany. 
 wkere no substantial injury is done to the lands of the senior company: 
 ■or (2 1 for interferaoce with the business of the senior company, or for 
 mmj other delays in the use of its railway due to precautions taken in the 
 ■■e of tlie crossing required for public safety. (S. 177, Railway Act. 
 1903.) The Board fixed $90 as the annual compensation to be paid by the 
 jmior company for the use of two sidings belonging to the senior com- 
 pany, haring lengths of 1,200 and 661 feet respectively, the cost of main- 
 tenance <rf such siding to be borne by the two companies upon wheelage 
 basis. 
 
 Niagara, St. Catharines k Toronto Ry. Co. v. Grand Trunk By. Co. 
 (Mcrritton Crossing Case), 3 Can. Ry. Caa. 263. 
 
 Railway iXTEKSfmoN — Pbotbctiox — Costs — Pbiobitt. 
 
 The G. t G. Ry. Co. was incorporated on 6th June. 1904. by 4 Edw. VEE. e. 
 81 (D), a plan shewing the location of its line across the Elora road, out- 
 side the city of Gnelph. was approved by the board on 2nd July, 1904. 
 filed in the Registry OflSce on 8th July, and notice thereof given in the 
 local newspapers in August. The G.R. Ry. Co. on 25th May. 1905. by 5 
 Edw. VII. c. 91 (Ont. ) was empowered to build and operate an extension of 
 its railway on the Elora r<iad outside the city of Guelph. Its location 
 had been authorized by a by-law passed by the council of the county of 
 Wellington on 4th June. 1904, when the rails were laid and the line put 
 into operation: — Held, upon an application by the G. Jk G. Ry. Co. to 
 cross the GJL Ry. Co., that the location and operation of the latter had. 
 under the circumstances, become authorized on 25th May. 1905, and was 
 prior to that of the applicant company, who, according to the usual rule, 
 must bear the expense of crossing and maintenance of the necessary pro- 
 tection. 
 
 Gnelidi t Goderich Ry. Co. t. Gndph Radial Ry. Co.. 5 Can. Ry. Cas. 
 180. 
 
 [Distinguished in Grand Trunk Ry. Co. t. Samia Street Ry. Co., 21 
 Cu. Ry. Cas, 160, 37 OXJL 477.] 
 
 Itticxijockixg afpuaxces — Okdes of the boasd. 
 
 Under an agreement dated May 22nd. 1SS7. it was agreed between the 
 Grand Trunk Ry. Co. and the I.C.R. (whose successor is the CJ*.B. Co. I, 
 
608 KxVlLWAY CROSSINGS. 
 
 that the said I.C.R. should bear the cost of providing, maintaining, equip- 
 ping and working an ordinary level railway crossing togetlier with all 
 risk arising from such constructions and operations. The agreement also 
 contained the following provision: "In the event of the Government of 
 this Dominion passing any Act whereby certain signals, interlocking 
 switches or other appliances shall be used on level railway crossings, it 
 is hereby understood and agreed that the party of the second part" (be- 
 ing the International Company) "will provide, work and maintain such 
 at tlu'ir own expenses:" — Held, that the said clause of the agreement 
 should not be narrowly construed, that the Board had authority under 
 the Railway Act, 1903, to order an interlocking system at this crossing 
 for the protection of the public. Ordered, that the C.P.R. Co. do install, 
 maintain and operate the ordinary interlocking, derailing and signal sys- 
 tem at its own expense at the said crossing. 
 
 Re Can. Pac. Ry. Co. and Grand Trunk Ry. Co. (Lennoxville Crossing 
 Case), 6 Can. Ry. Cas. 77. 
 
 Double track — Prioeity — Expense op protecting crossing — Senior 
 
 AND junior companies. 
 
 A railway company having the right, under its charter to construct one 
 or more sets of tracks becomes the senior company not only when its line 
 is crossed by the line of a junior company, but also in respect of the 
 crossing of any additional tracks subsequently laid by it, and the junior 
 company must bear the expense of making and protecting all such cross- 
 ings, as new tracks are laid by the senior company: — Held, that under the 
 circumstance of this case, the United Counties Ry. Co. should bear the 
 expense of protecting the crossing of its line by the intended double track 
 of the Grand Trunk Ry. Co. 
 
 Grand Trunk Ry. Co. v. United Counties Ry. Co. (St. Ilyacinthe Cross- 
 ing Case), 7 Can. Ry. Cas. 294. 
 
 [Followed in Fort William v. Copp Bros., 11 Can. Ry. Cas. 149; dis- 
 tinguished in Grand Trunk Ry. Co. v. Sarina Street Ry. Co., 21 Can. Ry. 
 Cas. 160; Midland Ry. Co. v. Grand Trunk Pacific Ry. Co., 23 Can. Ry. 
 Cas. 80; Grand Trunk Ry. Co. v. Kitchener & Waterloo Street Ry. Co., 24 
 Can. Ry. Cas. 13.] 
 
 Priority of approval — Registration — Ownership. 
 
 The map shewing the location and the plan of a branch line of the 
 applicant were approved under ss. 157, 159 and registered as required by 
 8. 160, of the Railway Act, 1906, prior to the respondent. Tlie respondent 
 owned in fee the land at the point of crossing of the two locations prior 
 to the approval of any plans. The respondent's line at the point of cross- 
 ing was built first and the railway was in opei-ation wlien construction 
 work upon the applicant's railway reached the crossing: — Held, that the 
 resjjondent was senior to the applicant at the crossing. 
 
 Can. Northern Ry. Co. v. Can. I'ac. Ry. Co. (Kaiser Crossing Case), 7 
 Can. Ry. Cas. 297. 
 
 [Followed in Can. Xortli. Ry. Co. v. Can. Pac Ry. Co., 11 Can. Ry. Cas. 
 432; Sasman v. Can. Northern Ry. Co., 20 Can. Ry. Cas. 246; ilidland 
 Ry. Co. V. Grand Tnmk Pacific Ry. Co., 23 Can. Ry. Cas. SO; (^rand Trunk 
 Ry. Co. V. Kitchener & Waterloo Street Ry. Co., 24 Can. Ry. Cas. 13; dis- 
 tinguished in Qu'Appelle, etc., Ry. Co. v. Can. Pac. Ry. Co., 13 Can. Ry. 
 Cas. 131 : Erie & Ontario Ry. Co. v. Niagara, St. Catharines & Toronto 
 Ry. Co., 18 Can. Ry. Cas. 29.'] 
 
RAILWAY CROSSIXGa 609 
 
 PBHOBriT or MrrwavAL — Ovxexship — SESxamx. 
 
 The Ttapamitmt, prior to tihe upfbtmmt, obfaiaed approval of the loea- 
 tioB aad p r o c eeded vilk tke eoastraetiaa of a laaack liae nado- 44 Tkt. 
 c 1, a^ 14. He applicaat pradiag aa applkatioa to cross aaid liae» ob- 
 taiaed a gnmt £pob tbe Cnm C DMaiaioa « of tke laad at Ike croeiag 
 porsoaat to 3 Edw. YXL e. 7, & 46l Held, that the respoadeat was aeaior 
 to the applicaat at tke enaamg. (He Bru<^h Liaes, 36 Gu. S.C.B. ^ 
 followed.] 
 
 Cbaad Tmak Pacific Br. Co. r. Gu. Pac Ry. Co. (Xokonis Cro^iB^ 
 GueK 7 Caa. Rt. Cas. 299. 
 
 [I^ttiBgaished ia Qo'JkppeDe, etc. By. Co. r. C.P.B. Col, U Qui. Rt. 
 Gas. 131; foUoTed ia Erie k Oatario Rj. Co. t. Xiafaia. St. Cathariats 
 A flovoato Ry. Co., 13 Caa. Rt. Cas. 29;*lCidland Rj. Co. t. Gnad Traak 
 PMific Bj. Co^ 23 Caa. Rt. Cas. 80.] 
 
 l A P t-K i ac M. SFca — Stkezt kjulwat — Lute to cboss — ^Expes>e of — Pao- 
 TBcmcG CBOssncG — SEXioa axd jrxioa oomfaxt. 
 
 Af^licatioa ior aa aider nader &. 2f 7 of tlie Railvaj Act, to cross tke 
 ^rar or hnack liae of the CP.R. Co.. kaova as the Copp Foundrr ladaa- 
 trial Spur vitii a aeeoad street railvsT track. Br a gre e aw t aitk Copp 
 Brothers auide ia IMS the town irf Port Arthur peraiitted its street rail- 
 way to be crowed br a ^nr froai the aiaia line of the C.PJS. Oa. at the 
 e.tpw»e of Copp Brothers. Tbe citr of Fort Williaai snlwniaeathr beeaaie 
 the owners of the street railwaT. Br agreement with Copp Brotbers tbe 
 eitr eoastract«d a sHond street railwaj tract across tbe spur aad applied 
 to tbe Board for aa order direetiag whether Copp Brothers or tbe aty 
 should pay tbe expeaae of eoastnctiag aad protectiBg tbe second crossiag. 
 Tbe Board refosed to eatertaia tbe applicatioB because tbe citj bad ao 
 right to c oB*tii» c t tbis ero^i^ witbout first haTing obtaiaed leaTe to 
 cross. A further appUeatiaa was tbca aude as above stated. Tbe real 
 object oi the citr, altbongb aot stated ia tbe applicatioa was to compel 
 C4^p Brothers to bear tbe cost of coustmctiag aad protectiag tbe tetoad 
 erossii^ oa tbe gronad tbat the street railwaT was tbe seaior compaoT: — • 
 Hdd, tbat witb jcspect to a steam railway seaior as to one line it must 
 eoatiaae to be seaior wbea it comes to double track. That if the city bad 
 ma ill- aa applicatioa ia tbe regular way for leave to crossv tbe matter 
 woaU then have beca ^i^ierly before tbe Board, but tbat it was qjuite 
 irregular for the mnaicipality to construct tbe crot^iag witbout aatbority 
 aad tbea apply to tbe Board for tbe purpose of aiakiag Copp Bratbers pay 
 tbe expeaae iaddeat tbereto. and tbe applicatioa mtKt be refnaed. [Graad 
 Traak Ry. Co. t. Uaited Couaties Ry. Co. (St. Hyadatbe Cramiag Gaae, 
 Xo. 2991 K 7 Caa. Ry. Ca& 25MI. followed.] 
 
 Fwt William t. Gopp (Copp Foundry Industrial Spur Ckse), 11 Caa. 
 Ry. Casw 149. 
 
 CtessncG or steam kailwat bt )nmciFAU.T owxed stbcxt kailwat — 
 Stseet SETioa or kailwat — ^Liabujtt fob cost. 
 
 Where^ ia point of tiaie, a city street is senior to tbe tracks of a steam 
 
 railway tbat cross it. tbe tracks of a muaicipally owned street railway 
 
 which are sutHequeatly laid across tbe tracks of tbe steam railway, are 
 
 aot juaior thereto so as to require tbe whole cost of tht iaatallatioa, amia- 
 
 Gbb. Ry. L. D^.— 39. 
 
610 RAILWAY CEOSSINGS. 
 
 tenance and protection of the crossing to be borne by the city, but it will 
 be divided equally between them. 
 
 Edmonton Street Ry. Co. v. Grand Trunk Pac. Ey. Co., 14 Can. Ry. Cas. 
 !)3, 4 D.L.R. 472. 
 
 [Grand Trunk Ry. Co. v. Kitchener & Waterloo Street Ry. Co., 24 Can 
 Ry. Cas. 13. See 7 D.L.R. 888, 22 W.L.R. 45, affirmed in 15 Can. Ry, Cas. 
 445.] 
 
 Obder of Board — Stpreme Covkt — Cost of ixstallation, maintenance 
 and protectio.v of cbossixfi of railway by municip ally-owned 
 street railway. 
 
 Edmonton Street Ry. Co. v. Grand Trunk Pacific Ry. Co. (No. 2), 7 
 D.L.R. 888, 22 W.L.R. 45. 
 
 COXSTRUCTION AND OPERATION SUBWAT CONTRIBrTION. 
 
 The Canadian Ontario Ry. crossed imder the line of the Grand Trunk 
 Ry. by means of a subway. Subsequently the Campbell ford, Lake Ontario 
 & Western Ry. obtained authority from the Board to cross the C.N.O. Ry., 
 using for that purpose the embankment of the same subway: — Held, that 
 the C.N.O. Ry. was not entitled to receive any contribution from the C.L.O. 
 & W. Ry. towards the expense it had already incurred in making the em- 
 bankment. 
 
 Campbellford, Lake Ontario & Western Ry. Co. v. Can. Northern On- 
 tario Ry. Co., 14 Can. Ry. Cas. 220. 
 
 Seniob and junior — Title — Right-of-way. 
 
 When a railway company has secured a right-of-way, its tracks on that 
 right-of-way, no matter when laid, are always senior to those of any rail- 
 way company desiring to cross such right-of-way. [Grand Trunk Pacific 
 Ry. Co. V. Can. Pac. Ry. Co. (Nokomis Crossing Case), 7 Can. Ry. Cas. 
 299, at p. 301, followed; Canadian Northern Ry. Co. v. Can. Pac. Ry. Co. 
 (Kaiser Crossing Case), 11 Can. Ry. Cas. 432, distinguished.] 
 
 Erie & Ontario Ry. Co. v. Niagara, St. Catharines & Toronto Ry. Co., 
 18 Can. Ry. Cas. 29. 
 
 [Distinguished in Midland Ry. Co. v. Grand Trunk Pacific Ry. Co., 23 
 Can. Ry. Cas. 80.] 
 
 Senior and junior — Crossing not authorized — Apportioxmext of cost. 
 
 Under the senior and junior rule the junior respondent interfering with 
 the tracks of the senior applicant, should pay all the cost of constructing 
 the crossing and operating and maintaining the protective appliances, but 
 where the track to be crossed was not authorized by the Board to be laid, 
 and both parties acted improperly, the applicant should bear the cost of 
 constructing the crossing, and the respondent the cost of maintaining and 
 operating the protective appliances. 
 
 Can. Pac. Ry. Co. v. Winnipeg Elec. Ry. Co., 18 Can. Ry. Cas. 31. 
 
 Senior and junior — Flagman — Expense — Responsibility. 
 
 The junior railway company permitted to cross with its line the tracks 
 of the senior should bear all the expense and responsibility of such cross- 
 ing, and should employ and pay the flagman at the crossing and not mere- 
 ly reimburse the senior company for the wages of a flagman carried on 
 the pay roll of the latter company. 
 
 Winnipeg Elec Ry. Co. v. Can. Pac. Ry. Co., 18 Can. By. Cas. 36. 
 
KATLWAY CROSSINGS. «11 
 
 SnxxT muLVAT caotssov — Dulmo^k* — Coxsmrcria^r ob orcKuio^c or 
 mamlwat — iMxajoMxs OF jumosr. 
 Gimad Tmk Rj-. Oa. t. Sania Street St. Col. 21 Cu. Sj. Ca& 109. 37 
 OJLJL 477. 
 
 ScsioB A39 rcsaam wcic — OrxxssBir or ukxa — IjocjkTtos — Pwatm cox- 
 
 OmwtasMf af a block of bjaJ asl affsonl fi m plaa of nihraj loatcd 
 tkoeaa dh> aat pve scaioritf at thr plMip of icmckssiag; <n«r aaotlKT ruHniT 
 ■Wii Iwcatiua plaa aas afptwvd aad Bar bnk prior ta l&e luutiaitiaa 
 of tke fint memtiamrd taOvaj apm a Bea lacatsm oa aaotWr portiaB vi 
 tke mae Hack of load. TW JLasiftaat CUrf Cno—wsintr, d iHwali a g, 
 aas of opiaioa tkat the oaaoskip of tW bad mitii tW n^« to baOd a 
 laDawT tkenoa g»^^ ieaimiU- [Caa. Xortkefa Br. Col t. Caa. Vme. Rr. 
 OiL {Kai«r Ckasdi^ Case'. 7' Caa. Bj. Ca& 397: Gnmd Tiaak Padiic ^. 
 Cm. ■V. Caa. For. Rv. Co. KXok<<MHU LTVi<taii^ Ca^tf->'. 7 Caa. Br. Cas. 299: 
 On. XorAna 1^. Co. t. Caa. P»t. Br. Cou U Oul Bt. Ca&. 432: EdaMa- 
 toa T. Cklfarr i EdwaitOB Br. Co. 1« CaaL Br. Cas! 420 at fk. 423 Kaf- 
 Swmti 53 CuL SjCB. 466 at f. 413^ 22 Caa. Br. Ca&. l!S2i> ; Soath Oatario 
 PmnStt Rt. Co. t. Graad Traak Bt. Co. (fJnKtkn Cat Ca:SF». 20 Caa. By. 
 Goa. IM^USkamedz Gnmd Twmak.'Rv. Co. v. Uaited Coaatits Br. Oa. fl^ 
 BsmdtAe Oraasn^ Ca««, 7 Cka. Bj. Ca$. 2!M: Erie i OatarMTBy. Co. t. 
 JBmg/um, SL Ootlariaw^ 4 Toraato Br. Col, U Caa. Br. Cos. '29, 4»- 
 
 IDdlnd Rjr. Co. t. G^aad Tnorik PariAc Ibr. C«l fSt. Boaiface Crossly 
 Claw)). 23 Caa. Bt. Ca& 80. 
 
 SlEAV KftlLa-AT 1 1MWM%C snEEr mULVAT !^XKK A5« jjrsiKm wn£ — 
 
 Siiiwm as ID onxAHOs — HievarAT iKunc — Lumat— juc euet- 
 
 -mc U3ns ox mmsmwaxs — Dmoxiox ob rmanjicxxL xxcaBraaanox — 
 
 S kamm t. 
 
 Jka ckrCric railaaj «»a$ a ki^kaar as a ngkt-of-axjr is to be treated 
 
 as aa otdiaaiy k^^aaj oeea|iaat. aad tke r e fo re a-hnv it crosses a sceaai 
 
 raOamj. tke traCe «f tte st«a raHaaj skoald have priontr, tbn^b tke 
 
 stoa^ nMd, if jaaior. ^oald paj tke «K>t of Wjti a tt ioo aad ■aialfa«a<r 
 
 of the mntjumij, ctoaia^. Tke imtt, tkat aa tlertr i L raHavj iipiiiling. 
 
 aka^ the ki^aaT. aot oalr as a £3xv«t ranhniT. kat also a;^ aa iate tai!— a 
 
 «r radial liae. is ia coaqietitiaa aitk a ^teaa raHa^ vkiek crashes it. 
 
 does aot aCnt tkeir ivspeetive r^kt^^ a^ to ««ia*itT at tke crosni^. Its 
 
 ase of Ae ki^aaiT is aa exteajjoa of tke otdiaarr ki^aaj- mcr aad tke 
 
 txafie ti Vkt stttmm raihray ^kwid kave prioritj. Wfcetker a street rail- 
 
 aaiT is iacar pu rated kr the Daniaiiw or kr a Pnsriacv does aot aCeet its 
 
 n^x as to seaioritT a$ a«aia$t aaotker steaai railaaj avmam g it. 
 
 Lake Erie 4 Xortken Rt. Co. t. Bi aa tiot d Stnet Br. Ga. IC C^a. Bt. 
 Gbs.244. 
 
 [FoOoacd ia Midlaad B]r. Co. t. Graad Ttaak PlaeilSe Ify. C^ 23 Caa. 
 ]ty. OmlSOl] 
 
 XAILWAT HUIBim i . 
 
 A. Oo w auM— 
 
 SL Wmiir^al 
 
 Sec Sale (A). 
 
 'iisssrrwaniArKis: of s r a s iai moxetc bt obbcb ix cotscvl. 
 
 Wkese ■ aa er is graafeed kr tke L««K4atare aad its applicatiaa 
 
G12 RAILWAY SUBSIDY. 
 
 scribed in such a way as to confer a discretion upon the Crown, no trust 
 is imposed enforceable against the Crown by petition of right. The appel- 
 lant railway company alleged by petition of right that by virtue of 51 & 52 
 Vict. c. 01, the Lieut.-Governor in Council was authorized to grant 4,000 
 acres of land per mile for 30 miles of the Hereford Ry. ; that by an order 
 in council dated 6th August, 3888, tlie land subsidy was converted into a 
 money subsidy, s. 9 of said c. 91 of 51 & 52 Vict., enacting that it shall 
 be lawful,"' etc., to convert; that the company completed the construction 
 of their line of railway, relying upon the said subsidy and Order in Coun- 
 cil, and built the railway in accordance with the Act 51 & 52 Vict. c. 91, 
 and the provisions of the Railway Act, 188S, and they claimed to be en- 
 titled to the sum of $49,000, balance due on said subsidy. The Crown 
 demurred on the ground that tlie statute was permissive only, and by 
 exception pleaded inter alia, that the money had been paid by Order in 
 Council to the subcontractors for work necessary for the construction of 
 the road; that the president had by letter agreed to accept an additional 
 subsidy on an extension of tlu'ir line of railway to settle difficulties, and 
 signed a receipt for tlie balance of $6,500 due on account of the first sub- 
 sidy. The petition of right was dismissed: — Held, that the statute and 
 documents relied on did not create a liability on the part of the Crown 
 to pay the money voted to the appellant company enforceable by petition 
 of right (Taschereau and Sedgcwick, JJ., dissenting), but assuming it 
 did, the letter and receipt signed by the president of the company die not 
 discharge the Crown from such obligation lo pay the subsidy, and pay- 
 ment by the Crown of tlie subcontractors' claim out of the subsidy money, 
 without the consent of the company, was a misappropriation of the sub- 
 sidy. 
 
 Hereford Ry. Co. v. The Queen. 24 Can. S.C.R. 1. 
 
 [Applied in R. v. ].rfivery, 5 Que. Q.B. .326; distinguislied in Qu'Appelle, 
 Long Lake & Sask. Ry. Co. v. The King, 7 Can. Ex, ll,") ; referred to in 
 I'niversal Skirt Mfg, Co. v. Gormley, 17 0.L.R..114.] 
 
 CO.ST OF CONSTRUCTION ROLLING STOCK AND EQUIPMENT. 
 
 The provisions of the Act, 3 Edw. VII. c. 57, authorizing the granting 
 of subsidies in aid of the construction of railways are not mandatory, but 
 discretionary in so far as the grant of the subsidies by the Governor in 
 Council is concerned. On a proper construction of the said Act it does 
 not appear to have been the intention of Parliament that the cost of roll- 
 ing stock and equipment should be included in the cost of construction in 
 estimating the amount of subsidy payable to the company in aid of the 
 "Pheasant Hill Branch" of their railway under the provisions of that Act, 
 notwithstanding that tlie said Act did not specially exclude the considera- 
 tion of the cost of equipment in the making of such estimate as had been 
 (lone in former subsidy Acts with similar objects, and that the Governor 
 in Council imposed the duty of efficient nmintcnance and equipment of 
 the branch as a condition of the grant of the subsidy. Judgment of Ex- 
 chequer Court, 10 Can. Ex. 325, affirmed. 
 
 Can. Pac. Ry. Co. v. The King, 38 Can. S.C.R. 137. 
 
 [Approved in Re Ontario Voters' Lists Act, West York, 15 O.L.R. 303.] 
 
 Statutory contract — Bonds of railway company — Government guar- 
 antee. 
 The Government of Canada, in a contract with the G.T.P. Ry. Co., pub- 
 lished as a schedule to and confirmed by 3 Edw. VII. c. 71, agreed to guar- 
 antee the bonds of the company to be issued for a sum equal to 75 per 
 cent of the cost of construction of the Western division of its railway 
 
KAILWAT SUBSIDY. 613 
 
 Bjr a later cattract {aA. to 4 Edv. Tn. c. 24), tke Goveraarat agreed to 
 UBplcHoit its gaanatee, ia sarii Baaaer as aug^ be agnrd apoa, so as 
 to Bake the fftuatdB mi taiA boads a saa eqpal to 75 per cert of saA 
 cost of coBsfanKtioB: — ViM, that ttia accoad caatnet oalr wpoeed apoa 
 the Gormuaoft Ae liahilitr of gaaraateriag hoads, the pg oee e d s of ahiA 
 voaU prodae e a defiaed aawBat aad aot that of wmpftfim^ ia cadi or its 
 eqpurakat, amy defi e i eaey there atight be be t a e ra the pr o e e e ds of the 
 boadf aad the aud 75 per eeat. 
 
 Be Giaad Tmak Pacific Boads^ 42 Caa. S.C^ 506. 
 
 [See n»12] A-C. 2W.] 
 
 Hie DoatiaioB GovrmaKat bnr coatract aitb the appeDaats ia 1903 (eoa- 
 fiiand It 3 Edr. VII. c. 71 > /gnaraatccd to the cxtcat of 75 per mt of 
 the eoat of coastractioa of a mtaia sectioa of their raSvar, the appci- 
 laats' first anctgage boads charged oa their vhole vadertakiag; the bal- 
 aaee of cost to be raised br seroad awrtgage boads gaaraateed br the 
 Graad Tmak Rr. Co. Br a ^appInaeBtal coatraet ia 19M (coafinaed bf 
 4 Edv. VIA. c. ±A} the Gonvrwrnt agreed to iM|ih i al thor gaaraatee 
 «o as to Bake the proceeds of th* guaranteed boads whidk had proved to 
 he d efifira t eqnal to the said 75 per ceat of the cost of loailiaitiMa. The 
 O a pact Coart hrid that aader this coatraet the appeOaats acre hoead 
 to isEae additioaal first awrtgage boad$ to the exteat of the deficit aad 
 Oat the Goreraaaeat shoald gaaraatee theaa:— HcU, by the PrirT Coaa- 
 cO, r ewi aia g the dcrisaoa of the Saprcaae Coart of Caaada oa a re fe reac e 
 ■ade Iff Order-ia-CoaaciL that the a^pdlaats had ao poacr to iaaae 
 beads otfher thaa those aathortaed br the or^iaal coatraet. aad that it 
 aarid be a lavach of faith aitb the weoad Baatgagee to do ao if thejr 
 coald. The GonrcraBeat vere bemd to ia^loaeat their gaazaatee br ea^ 
 or its eqniralcat so as to disfharge their fiabalitT as defiaed by the first 
 coatraet and coafinaed hx the icroad, aith o at impoai^ am* farther lia- 
 bifity oa the coaqnay. 
 
 Grand Tmak Pacific St. t. The King, [I'l^] ^-C. 2(M. 
 
 Mrnas of Qwom^ omczas — Coytrmoyass. Axn pact patmevt or subsivt 
 — PErmox or ucbt. 
 
 (1) The grant by a statute of a $ah$idy ~to aid ia coaqileti^ aad 
 c^aippii^ a railway, throaghoot its ahole length for the part aet ea^ 
 faced and that not finished, about e^chty miles giH^ to or aear Gasp^ 
 Baaa," vitih a i»orko that it ^all be payable to a persoa or peraoaa, 
 ele., estabiidii^ that they are ia a ptfecitioB to carry oat the aoik. ap- 
 |riies exdttsirriy to the eighty aailes of the road radiac *^ *" b^*'' Gasp^ 
 Basia. (2) A difTermt e<»>tnictioB of the ^totate hgr idBri i j <rf the 
 Croaa. the efleeti^ of a eomproBiise in r oaieqa ea c e aad evea a port pay- 
 aieat of the sobsidy, afford no groonds to recorer the balaaee fraai the 
 Croaa by petitioa of right. 
 
 De Gaiiader r. The Ki^, 15 Qoe. KB. 331. 
 
 [ Afci a iJ ia 39 Caa. &C.B. «83L] 
 
 SrasiBT — ^Laxo cka^t — ^ITHEniEB mtneiaijs nrci.raBBL 
 [33 Caa. S^CB. 673, aSrau^ 8 Caa. Ex. 83. reversed.] 
 Calgary & Edawatoa By. Col t. The Kiag, [1904] A.C. 765. 
 
 GkaXT op LA^rVB — HlXEBAl. <XAXMS. 
 
 The legislatiTe Latent of the Railway Aid Act <B.C.) was, that the ia- 
 tcrest of the Croaa ia laads (already located as miacial daims), vhich 
 
G14 KATLWAY SUBSIDY. 
 
 are comprised in a greater block of lands granted as a subsidy to a 
 railwayy company under the Act, may pass to the railway company, sub- 
 ject to existing and future rights of the persons who prior to the subsidy 
 had made such locations. 
 
 Farrell v. Fitch, 7 D.L.R. 657, 22 W.L.R. 517, 17 B.C.R. 507. 
 
 [Railway Aid Act, B.C. Statutes, 1800, c. 40, construed; Osborne v. 
 Morgan (1888), 13 A.C. 227; Nelson & Fort Sheppard Ry. Co. v. Jerry 
 (1897), 5 B.C.R. 300; Re Demers, 1 B.C.R., pt. 2, 334; Staffordshire 
 Banking Co. v. Emmott, L.R. 2 Ex. 208, referred to.] 
 
 l.AXD.S GB.\NTED FOR RIGHT-OF-WAY TRANSFER TRACK. 
 
 I'here is a marked distinction between lands granted for right-of-way 
 and other railway purposes and those granted as sul)sidies; the latter are 
 in the same position as a cash bonus, and part of the remuneration for 
 the building of the railway. The respondent should be ordered to pay 
 their proportion of the cost of the land reijuired for the construction of a 
 transfer track. [Montreal Tramway and Mfintreal Park & Island Ry. Co. 
 V. Lachine Jacques Cartior, etc., Ry. Co., .W Can. S.C.R. 84, at p. 92, 18 
 Can. Ry. Cas. 122; South Ontario Pacific Ry. Co. v. Grand Trunk Ry. Co. 
 (Junction Cut case), 20 Can. Ry. Cas. 152, followed.] 
 
 Can. Pac. Ry. Co. v. Grand Trunk Pacific Ry. (Subsidy Lands Case), 21 
 Can. Ry, Cas. 95. 
 
 Rights of transferee completing work. 
 
 A statute authorizing the payment of a subsidy for completing the con- 
 struction of a line of railway, entitles a company, as the successor of an- 
 other company who had commenced the work, to receive subsidy in re- 
 sj)ect of that portion of the road forming part of the subsidized line which 
 liad been constructed by the other company. [Quebec, Montreal & South- 
 ern Ry. Co. V. The King, 15 Can. Ex. 237, reversed.] 
 
 Quebec, Montreal & Southern Ry. Co. v. The King, 29 D.L.R. 46(5. 
 
 ]']XTEXT of government's power to retain proceeds in PAYilENT OF IN- 
 DEBTEDNESS — Subcontractors. 
 
 'Die preceding part of s. 18 of the Railway Subsidy Act (N.B.), 4 Geo. 
 V. c. 10, as it stood prior to its repeal by s. 6 of Act, 5 Geo. V. c. 9, and 
 substituted by s. 12 of the latter Act, providing for the retention by the 
 government, out of the proceeds of bonds authorized thereunder, amounts 
 sufficient to cover "all outstanding indebtedness due contractors or others 
 employed in the actual work of constructing the railway, and for mate- 
 rials, wages and supplies, that have gone into the construction," refers 
 only in respect of indebtedness by the company itself and does not cover 
 indebtedness of subcontractor or others. 
 
 St. John & Quebec Ry. Co. v. Hibbard Co., 26 D.L.R. 519. 
 
 B. Municipal Bonus. 
 
 Bonus — Grant to railway in aid of construction — Mandamus to en- 
 force. 
 
 By 18 Vict. c. 33, the Grand Jimction Ry. Co. was amalgamated with 
 the Grand Trunk Ry. Co. The former railway, not having teen built 
 within the time directed, its charter expired. In May, 1870, an Act was 
 passed by the Dominion Parliament to revive the charter of the Grand 
 Junction Ry. Co., but gave it a slightly different name, and made some 
 changes in the charter. After this, in 1870, a by-law to aid the com- 
 pany by $75,000 was introduced into the county council of Peterborough. 
 Thia by-law was read twice only, and, although in the by-law it was set 
 
RAILWAY SUBSIDY. 615 
 
 oDt and declared that the rateparers should rote on said pit^tosed br- 
 lav on the 16th Norember. it was on the 23rd Xovembo- that the rate- 
 parns Totcd on a bv-Iaw to grant a bonus to the appellant MHnpany. eon- 
 stmetioa of the road to be cmnmeoeed before the 1st Mar, 1872. At the 
 time when the voting took place on the br-law. there was no power in 
 the mnnieipalitr to grant a bonus. On the 15th February, 1871. the 
 Act 34 Vict, c 48 (Ont.) was passed, which declared the ln--law as valid 
 as if it had been read a third time, and that it should be l^al and bind- 
 ing on all persons as if it had been passed after the Aeft On the same 
 day of the same year. c. 30 was passed, giving power to municipalities to 
 aid railways by granting bonuses. In 1874 the Act 37 Vict. c. 43 (Ont.) 
 was passed, amending and consolidating the Acts relating to the com- 
 panj. In 1S71 the ocHnpany notified the council to send the debentures 
 to the trustees who had been appointed imder 34 Vict. c. 48 (Ont. ». In 
 1872 the council served formal notice on the company, repudiating all 
 liability under the alleged by-law. Work had been commenced in 1872. 
 and time for completion was extended by 39 Vict. c. 71 (Ont. t. Xo sum 
 for interest <»- siukiog fund had been collected by the corporation of the 
 county of Peterborough, and no demand was made for the debentures 
 until 1879, when the company applied for a mandamus to issue and 
 deliver them to the trustees: — Held, affirming the decisicm of the Court 
 lielow. that the effect of the statute 34 Vict. c. 49 (Unt.i, apart from any 
 effect it might have of recognizing the existence of the railway company, 
 was not to l^alize the by-law in favour of the company, but was merely 
 to make the by-law as valid as if it had been read a third time, and as 
 if the municipality had had power to give a bonus to the company, and. 
 there being certain other defects in the said by-law not cured by th'? 
 said statute, the appellants could not recover the bonus frcHn the defend- 
 ants. Per Gwynne. J.. Foumier and Tasehereau, .J J., concurring: — As the 
 undertaking entered into by the municipal corporation contained in by- 
 law for granting bonuses to railway companies, is in the nature of a eon- 
 tract entered into with the company for the delivery to it of debmtures 
 upon conditions stated in the by-law. the (mly way in Ontario in whidi 
 delivery to trustees on briialf of the company can be enforced, before the 
 company shall have acquired a right to the actual receipt and benefit of 
 than by fulfilment of the conditions prescribed in the by-law, is by an 
 actMm under the provisions of the statutes in force then regulating the 
 proceedings in actions, and not by summary process by motion for the 
 old prerogative writ of mandamus which the writ of the mandamus ob- 
 tainable on motion without action still is. Per Henry, J.: That if ap- 
 pellants had made out a right to file a bill to enforce the performance 
 of a contract ratified by the Legislature, they would not have the right 
 to ask for the present writ of mandamus. 45 U.CJl. 302. reversed. 
 
 Grand Junction Ry. Co. v. Peterborough. 8 Can. S.C.R. 76, 6 AJL (ObL) 
 339. 
 
 [Commented tm in lIoult«» r. Haldimand. Be 12 .A.B. (Ont.) 503; 
 dintinguished in Brussels v. Bonald. 11 AJL (Ont.) 605: followed in 
 Canada, Atlantic By. Co. v. Cambridge. 14 A.B. (Ont.) 299; refored to 
 in Be Brandon Bridge, 2 Man. L.B. 17 ; Canada Atlantic By. Co. t. Ottawa, 
 8 OJL 201; Jenkins v. Ceatral Ontario By. Co., 4 O.B. 593.] 
 
 BOXC^ — GCAS&XTfXXXG COSTS OT EXPBOPKIATIOX. 
 
 Under 44 & 45 Viet. e. 40. s. 2 (Que.) passed on a petition of the 
 Quriiec Cestral Br. Co., after notice given by than, asking for an amend- 
 ment of their charto-, the town of Lfins paaecd a by-law guaranteeing to 
 paj to the ecHopaay the vkide eort of cxpn^riation for the right-of-way 
 
C16 KAILWAV SUBSIDY. 
 
 for the extension of the railway to the deep water of the St. Lawrence 
 River, over and above $30,000. Appellants, ratepayers of the town of 
 Lgvis, obtained an injunction to stay further proceedings on this by-law, 
 on the ground of its illegality. Tlie proviso in s. 2 of the Act, under which 
 the town of L^vis contended that the by-law was autliorized, is as fol- 
 lows: "Provided that within thirty days from the sanction of the pres- 
 ent Act, the corporation of tlie town of Levis furnishes the said company 
 with its valid guarantee and obligation to pay all excess over $30,000 of 
 the cost of expropriation for the right-of-way." By the Act of Incorpora- 
 tion of the town of Levis, no power or authority is given to the corpora- 
 tion to give such guarantee. The statute 44 & 45 Vict. c. 40 was passed 
 on the 30th June, 1881 ; and the by-law forming the guarantee was passed 
 on the 27th July following: — Held, reversing the judgment of the Court 
 of Queen's Bench, and restoring the judgment of the Superior Court, that 
 the statute in question did not authorize the corporation of L^vis to im- 
 pose burdens upon the municipality which were not authorized either 
 by their Acts of incorporation or other special legislative authority, and 
 therefore the by-law was invalid, and the injunction must be sustained. 
 
 Quebec Warehouse Co. v. Levis (1885), 11 Can. S.C.R. 606. 
 
 [Referred to in Pointe Gatineau v. Hanson, 10 Que. K.B. 371.] 
 
 Bonus to railway — Validity of by-law. 
 
 A by-law was submitted to the council of the city of 0., under 36 Vict, 
 c. 48, for the purpose of granting a bonus to a railway then in course of 
 construction, and after consideration by the council it was ordered to be 
 submitted to the ratepayers for their vote. By the notice published in 
 accordance with the provisions of the statute such by-law was to be taken 
 into consideration by the council after one month from its first publica- 
 tion on the 24th September, 1873. The vote of the ratepayers was in 
 favor of the by-law, and on 20th October a motion was made in the council 
 that it be read a second and third time, which was carried, and by the 
 by-law passed. The mayor of the council, however, refused to sign it, on 
 the ground that its consideration was premature; and on 5th November 
 the same motion was made and the by-law was rejected. Nothing more 
 was done in the matter until April, 1874, when a motion was again made 
 before the council that such by-law be read a second and third time, which 
 motion was, on this occasion, carried. At this meeting a copy only of 
 the by-law -was before the council, the original having been mislaid and 
 it was not found until after the commencement of this suit. When it 
 was found it was discovered that the copy voted on by the ratepayers con- 
 tained, by mistake of the printers, a date for the by-law to come into 
 operation different from that of the original. In 1883 an action was 
 brought against the corporation of the city of O., for the delivery of the 
 debentures provided for by the by-law, in which suit the question of the 
 validity of the whole proceedings was raised: — Held, affirming the judg- 
 ment of the Court below: (1) That the vote of 20th November, 1873, 
 was premature, and not in conformity with the provisions of s. 231 of 
 the Municipal Act; that the mayor properly refused to sign it, and that 
 without sucli signature the by-law was invalid under s. 226. (2) That the 
 council had power to consider the by-law on 5th November, 1873, and the 
 matter was then disposed of. (3) That the proceedings of 7th April, 
 1874, were void for two reasons : One, that the by-law was not considered 
 by the council to which it was first submitted as provided by s. 236, which 
 is to be construed as meaning the council elected for the year and not the 
 same corporation; and the other reason is, that the by-law passed in 
 1874 was not the same as that submitted, there being a difference in the 
 
KAILWAY SUBSIDY. «17 
 
 dattt. **i«Hf, fkmt Oe fmrrtmw af a mamh ipililj i 
 bar affcer it fc^ kecB vafed oa Ijjr fl» nMKfmwen mn mat WBOterial oalr, 
 iMflt the l^^-law can be t^iiMiii or leJKljed im^cdiTc at flhe famnaUe 
 yn^be. 12 OUUL 2M, 8 OLR. SH, a^katd. 
 
 fkMJa .Ailaatic Ry. On. t. Ottavm, 13 Caa. S.CLR. 3Si. 
 
 [The Pfeivj GMMca gi aateJ leaw to apfcal ia this case, hat the appeal 
 vaa aat fiaanatiil ta a. Iwia a ii fr 11 Caa. ijiaaette 3M; ■pfiwinl ia 
 Imiam Sinct Rjr. Ciot ▼. I i»iii, 9 OX^ 439-. disto^iuhed ia Re Dr«ar 
 ami East WiDiaiK, 10 OJJEL 4«3; ioDovwd ia Ca— ih AtlaaAie Rr. Co. 
 r. CaBlri4ge, 11 OJE. 39*, 14 A-R. uOmdi 299-, nStrrtd to ia Bickfonl t. 
 Chatham. 14 AJL {CNit.I| 32.] 
 
 Bnxirs — Acmsxxext kt MrxictrAi. amnmsAiua id take siock jjcb to 
 PAT FOB EX •aE3nrvae& 
 
 The carpomtioa off the t%mmxx of Ottawa aader the aathoritj at a hjr- 
 law aaAitanl to deliver to the >LO. Jl W. Rr. Co. for stock 'wh'rrihed 
 Igr fhev S/IM deheaftaDras off the covporatioa off flOO each^ favsUe twemr- 
 tve jfars fraai date aad heara^ «is per oat iattreit, aad sahanfaeBthr 
 vithoat aay Tafid caaoe ar naaoa. rrfi ww l aad mrghH ei to issae said 
 d ehuatuie s. Ia aa artioa hroa;g,hl Inr the fvaapaar a^aisit the map i aa - 
 tioo snUjr for drnmrnpti far their o t ^t t aad refund to ishk aud deheo- 
 tms: — BcU, afiimiai^ the jmagmraH. at the Coort hehw, that the coipan- 
 tioBp apart tram its liahOitT for the aaaaat off the deheatans aod iatnvst 
 tttrcoa^ was liaUe aador Arta. 196, 1973, 1»ML 1»41. CX. iQwuli for 
 iBM^ti II tar hnach off the conaaat. Ritchie, CJ^ aad G«7«Be di$»eatia^ 
 HJLR. 1 QJL 49, 29 I.CJ. 14& a fctd . 
 dtiaata t. lioartrcal, Ottawa & Wc^ten Rr. Gou 14 Cu. S.C.R. ]«r 
 
 [AppGed ia C«shlia t. Ftederie de Joliette. Z4 Caa. S^CIL I3S: 
 ■efemd to ia G^aae t. Woodhara. 3» Qw. &C. 43S: Zarit ▼. Great Xorth- 
 cn iBfL Co, 2» Qw. S.C 49&] 
 
 BoBts — HrxiciPjU. iKiBsmBES — Fcrrrac coxamoxsL 
 
 A d thiiotai e loap a a^gntiaMe i tutif t. a laihRar wapaar that has 
 laMpliiid with aD the taaditioot praecdeat stated ia the bp^v to the 
 iaiaim, aod drirrevr off dtbe a taies pnated bj a Maaicipality is ea^itled 
 to laid debeotaie. free fma aar deitlaxatioa «■ Aeir iace of t iilil ■■ i 
 acatiaoed ia the bjr-law to be perfoi id ia fatare, rarb as the Hatarc 
 kccpi^ ap off the road. cte. Art. »fi*. Uaa. Code. pULR^ i Q.R. 199, 
 
 SL C««ire r. UcFarlaae flSSTl. 14 Ckat &CR. 738. 
 
 Bkst^s — AOBEaocrr arrrH Mtrxicirju. amrtmjkrtos. 
 
 A ■aainpal corporatioo eatcnd iato aa agmawat vith a tailaaT 
 caaipaBy br which the latter was to mcaw a boaacs oa ccrtaia eoaditiaas. 
 •ae off which was that the co^paaj "''^hoald cnastzact at or aear the earaer 
 aff Cblfaarae aad WlDiaH sticeta (ia Toraato} a trti^ aad pasHcagcr 
 <tatina with aD ac ccjaa rr auiaawndatina, coaaected br switches, lidi^i. 
 or ot htiaue with said road' ■?<■■ the cnaacfl aff the towa p aatj a g a Inr- 
 hiw ^Tuati^ a aeKssaxr r^^-of-waj: — fldd, ill that sach Maditioa 
 was aot coMf^icd with br the cnctioa off a rt a ti wi baildiag aot eied. aor 
 iateaded to be ^sed. aad for which proper udajri. sarh as atatioa vastrr. 
 ticket a^eat. ctCL. wne aot appotatcd. Stnaig. J., diiaiaiinf. «2ii P«°r 
 yiiia^.. J.:— That the eaaditiaa oahr called for the e uMJU amoa of a 
 baiUBa^ with the iw |aii ed acc wa wM la tioa aad caaaeetiaas, aad did aot 
 a^aaat to a rwaaal to raa the traias to rack atatjoa or anise aaj othcr 
 a» of it. (3) The wards "all a cccai arr acxoanaodatioa," ia the coadi- 
 
618 EAILWAY SUBSIDY. 
 
 tion, required that grounds and yards sufficient for freight and passenger 
 traffic in case the station were used should be provided. 
 
 Bickford v. Chatham, 16 Can. S.C.R. 235, 14 A.R. (Ont.) 32, 10 O.R. 
 257. 
 
 [Leave to appeal in this case was refused by the Privy Council, see 
 Can. Gazette, Vol. XIV., p. 153; discussed in Nottawasaga v. Hamilton, 
 etc.. Ry. Co., 16 O.A.R. 52; followed in Georgetown v. Stimson, 23 O.R. 
 33; Kingston v. Kingston, etc., Ry. Co., 28 O.R. 399.] 
 
 Municipal aid to railway company — Debextures. 
 
 A mimicipal corporation, under the authority of a by-law, issued and 
 handed to the treasurer of the Province of Quebec $50,000 of its deben- 
 tures as a subsidy to a railway company, the same to be paid over to the 
 company in the manner (and subject to the same conditions) in which 
 the Government provincial subsidy was payable under 44-45 Viet. c. 2, s. 
 19 (Que.) viz., "when the road was completed and in good running order 
 to the satisfaction of the Lieut. Goveriior-in-Council."' The debentures 
 wore signed by S.M. who was elected warden and took and held posses- 
 sion of the office after the former warden had verbally resigned the posi- 
 tion. In an action brought by the railway company to recover from the 
 treasurer of the Province the $50,000 debentures after the Government 
 bonus had been paid and in which action tlie municipal corporation was 
 mise en cause as a codefendant, the provincial treasurer pleaded by de- 
 murrer only, which was overruled, and the County of Pontiac pleaded 
 general denial and that the debentures were illegally signed: — Held, (1) 
 affirming the judgment of the Court l)elow, that the debentures signe'J by 
 the warden de facto were perfectly legal. (2) Tliat as the provincial 
 treasurer had admitted by his pleadings that the road had been completed 
 to the satisfaction of the Lieut. Governor-in-Council the onus was on the 
 municipal corporation, mise en cause, to prove that the Government had 
 not acted in conformity with the statute. Strong, J., dissenting. 
 
 Pontiac v. Ross, 17 Can. S.C.R. 406. 
 
 [Referred to in Re Trecothic Marsh, 38 N.S.R. 28.] 
 
 Bonus — Condition in bond fob bepayment. 
 
 The county of H., in 1874, gave to the H. & N.W. Ry. Co. a bonus of 
 $65,000 to be used in the construction of their railway, and the company 
 executed a Ixmd, one of the conditions of which was that the bonus should 
 be repaid "in the event of the company, during the period of twenty-one 
 years, ceasing to be an independent company." In 1888 the H. & N.W. 
 Ry. Co. became merged in the G.T. Ry. and, as was held on the facts 
 proved by the trial Judge and the Divisional Court, ceased to be a inde- 
 pendent line: — Held, affirming the decision of the Court of Appeal for 
 Ontario, 19 A.R. (Ont.) 252, that there had been a breach of the alwve 
 condition and the county was entitled to recover from the (J.T. Ry. the 
 whole amount of the bonus as unliquidated damages under said bond. 
 Appeal dismissed with costs. 
 
 Grand Trunk Ry. Co. v. Halton (1893), 21 Can. S.C.R. 716. 
 
 Bonus — Construction of stbeet railway — ^Validating Act. 
 
 The corporation of the town of Port Arthur passed a by-law entitled 
 "a by-law to raise the sum of $75,000 for street railway purposes and to 
 authorize the issue of debentures therefor," which recited, inter alia, that 
 it was necessary to raise said sum for the purpose of building, etc., a 
 street railway connecting the municipality of Neehing with the busi- 
 ness centre of Port Arthur. At that time a municipality was not author- 
 
RAILWAY SUBSIDY. 619 
 
 ized to CMUtmet a aticet lailwar berood its territorial limits. The bv- 
 lav was Toted i^ob hf tiw ratepajers and parsed, but none was submitted 
 Mdcria^ tlie eoHtmetioB 4rf the work. Suhsequentlv an Act was pa^-sed 
 hv tke Legtslatare of Ontario in respect to the said by-law wliieb enaeted 
 that the same *^ herebr confirmed and declared to be valid, legal and 
 binding on the town . . and for all parpo$«s. etc relating to or 
 
 affecting the amid by-law, and any and all amendments of the Municipal 
 Jkct . . . shall be deemed and taken a< bavins h?en complied with~: 
 — Held, that the said Act did not di^pt-nse with the requirements of ss. 
 .i04. 505 of the Municipal Act requiring a by-law providing for con- 
 stmetioa of the railway to be passed, but only confirmed the one that was 
 pa Billed as a money by-law: — UekL alsd. that an erroneous recital in the 
 fscasible to the Act that the town council had pa«i>ed a construction by- 
 lav had no effect on the question to be decided. 19 A.R. (Ont.) 555, re- 
 versed. 
 
 Dwyer t. Port Arthur, ±2 Can. S.CJl. 241. 
 
 fBeferred to in Bell v. Westmonnt. 15 Que. S.C. 585.] 
 
 Boxtrs — SrascKiPTiox fo« shakes — Debcxttkes. 
 
 An aeti<» en reddition de comptes does not lie against a trustee invested 
 with the administration of a fund, until such administration is complete 
 and tenainated. The relation existing between a county corporation under 
 the provisions of the Municipal Code of Quebec and the local municipali- 
 ties of which it is composed, in relation to money fay-laws, is not that 
 of agent or tm^ee. but the county <-orponition is a creditor, and the 
 several local municipalities are its debtors for the amount of the taxes 
 to he assessed upon their ratepayers respectively, ^\"he^e local munici- 
 palities have been detached from a county, and erected into separate cor- 
 porations, they remain in the same position, in regard to suljsisting money 
 by-laws, as they were before the division, and have no further rights or 
 oU^atiotts than if they had never been separated therefrom, and they 
 caanot either conjointly or individually institute actions against such 
 county corporation to compel the rendering of special accotuts of the ad- 
 ministration of funds in which they have an interest, their proper method 
 of securing statements being through the facilities provided by .Art. 164. 
 and other provisions of the Municipal Code. 3 Rev. de Jur. 559. aflirmed. 
 
 Ascott V. Compton; Lennoxville v. Compton (IS98), S9 Can. S.C.R. 228. 
 
 Boxes — Pe«MAXEXT EXEMPTIOXS — DeBEXTCKES AXD EXEMFTIOX IX SAME 
 BT-LAW. 
 
 By-law No. 148 of the city of Winnipeg. pas)$ed in 18S1. exempted fM* 
 evo- the C.PJl. Co. from "all municipal taxes, rates and levies and as- 
 sessmcats of every nature and kind**: — Held, that the exemption includ- 
 ed adiotrf taxes. The by-law also provided for the issue of debentures to 
 the company, and by an Act of the L^slature. 46 & 47 Vict. c. 64, it 
 was provided that by-law 148. authorizing the issue of deben turps grant- 
 ing, by way of bonus to the C.PJt. Co.. the sum of $200,000 in considera- 
 tion of certain undertakings on the part of the said company: and fay- 
 law 19.1. amending by-law No. 148 and extending the time for the 
 (-(Hnpletion of the undertaking . . . I>e and the same are hereby declared 
 kgaL binding and valid. . . .: — Held, that notwithstanding the descrip- 
 tion of the by-law in the Act ^as c«>nfined to the portion relating to the 
 iasoe of debentures, the whole by-law. including the exemption from 
 taxatioa. was validated. [12 Man. L^R. 581. reversed.] 
 
 Can. Pae. Ry. Co. v. Winnipeg. 30 Can. S.C.R. 558. 
 
 [Considered in Bal^uiie Prot. School v. Can. Pae. Ry. Co., 5 Terr JLJL 
 
020 RAILWAY SUBSIDY. 
 
 132; Re Toronto School Board, etc., 2 O.L.R. 727; distinguished in Pringle 
 V. Stratford, 20 O.L.R. 246; followed in North Cypress v. Can. Pac. Ry. 
 Co., 35 Can. S.C.R. 556; referred to in Toronto School l^oard v. Toronto, 
 4 O.L.R. 468.] 
 
 Boxrs — MlMClPAL BY-LAW — CONDITION PRECKDKXT. 
 
 An action to annul a municipal by-law will lie althougli the obliga- 
 tion thereby incurred may be conditional and the condition bas not l^-en 
 and may never be accomplished.. Where a resolutory condition precedent 
 to tlie payment of a bonus under a municipal by-law in aid of the con- 
 struction and operation of a railway lias not been fulfilled within the 
 time limited on pain of forfeiture; an action will lie for the annulment 
 of the by-law at any time after default, notwithstanding that there may 
 have Ijeen part performance of the obligations on the part of the railway 
 company and that a portion of the bonus may have been advanced to the 
 company by the nuinicipality. In an action against an assignee for a 
 declaration that an obligation had been forfeited and ceased to be exigible, 
 on account of default in the fulfilment of a resolutory condition, exception 
 cannot be taken on the ground that there has been no signification of the 
 assignment as provided bj' Art. 1571 C.C. (Que.). The debtor may accept 
 the assignee as creditor and the institution of the action is sufficient no- 
 tice of such acceptance. [Bank of Toronto v. St. Lawrence Fire Ins. Co., 
 [in03] A.C. 59, followed.] 
 
 Sorel V. Quebec Southern Ry. Co., 36 Can. S.C.R. 686. 
 
 Bonus — Debentures — Compuance with conditions — Certificate of 
 engineer. 
 
 Under Ontario Act 34 Vict. c. 48, the Grand Junction Ry. Co. was 
 recognized as an incorporated company, otherwise that it was actually 
 incorporated by Act 37 Vict. c. 43 (Ont. ) ; the effect of the two Acts being 
 to give to the company so incorporated the benefit of a by-law of the 
 respondent corporation, which, under certain conditions, provided a bonus 
 for the railway. Under the Act of 1871 the said by-law was legal, valid 
 and binding on the corporation, but that the railway company had not, 
 on the evidence, complied with the conditions precedent. The stipulated 
 certificate of the chief engineer had not been produced, and, although 
 under par. 8 of the by-law, debentures might be delivered to trustees 
 without a certificate that applied to a. time when the delientures or their 
 proceeds were to be held in suspense, not to a time when the trusts were 
 spent and the payment, if made at all, should be made direct to the com- 
 pany. [Judgment of the Court of Appeal, 13 A.R. (Ont.) 420, affirmed.] 
 
 Grand Junction and Midland Railways v. Peterborough, 13 App. Cas. 
 136. 
 
 Bonus — Bond of provisional directors — Liability to perform — Amal- 
 gamation WITH OTHER COMPANIES. 
 By the bond of a railway, exe<'uted by its provisional directors in con- 
 sideration of a bonus in aid of the railway, the company agreed to erect 
 and maintain worksliops in a certain town during the operation of the 
 railway. The company, after certain changes of name, amalgamated with 
 other companies, and formed a larger one under another name, which 
 latter company, although it had agreed to do so, ceased to sp maintain 
 the workshops. This last-mentioned company subsequently amalgamated 
 with and became part of the defendants' system, and by the amalgama- 
 tion the defendants l>ecome responsible for all the liabilities of the other 
 companies: — Held, that the bond of the provisional directors was a cor- 
 
RAILWAY SrBSIDY. 621 
 
 pocmte act binding on its suercssoars, and. bj eonscqoenre. on the defend- 
 aats, vbo bad acquired tbe road; that the road. thoa«b it formed part 
 of a bugger railwar OHUieetion represented br tbe defendantis was still 
 in operation, and as tbe eontnrt was to maintain tbe worktops during 
 tbe operation of tbe raUvar. it remained a landing engagement, and a 
 reference to ascertain tbe damages, if anr, for breaeh of the covenant. 
 was directed. 
 
 Whitbv T. Gnnd Trunk Rv. Co., 1 Can. Rv. CasL 265. 3± O.R. 99. 
 
 [Reversed in 1 O.L.R. 4^. 1 Can. Rr. Cas. 269: distinguished in Hamil- 
 ton T. Hamilton Street Rt. Co., 10 OJ..R. 57o, 595, 5 Can. Rt. Cas. 206, 
 223.] 
 
 Boxes — Bosi) — ^Recital. 
 
 Bt its Act of Incorporation a railvaj companr bad power to reeeive 
 and take grants and donations of land and other property made to it. to 
 aid in tbe constmetion and maintenance of tbe railway, and any munici- 
 pality was authorized to pay. by way of bonus or doaatiom. any portion 
 of the preliminary expenses of the railway, or to grant to the railway 
 sums of money or debentures by way of bc»us or donations to aid in the 
 emstnietion or equipment of the railway. Tbe railway company, in con- 
 aidetatitm of a bonus by a municipality, agreed to keep for all time its 
 bead offiee and machine shops in the municipality: — Held, that the reeital 
 of tbe agreement in a bond signed by tbe railway company amounted to 
 a corenant on their part to observe its terms, but that such an agreement 
 was not justified by statutory provisions, and was not enforceable. Judg- 
 ment of Boyd. C. 32 O^. 99*, reversed. 
 
 Whitby T. Grand Trunk Ry. Co.. 1 Can. Ry. Ca«- 269. 1 O.L.R. 480. 
 
 Boxes OF MfMCIPAUTT COMPEXSATIOX FOE LAXDS EXPKOPRIATCD. 
 
 A mimieipality pasi^ed a resolution by which it agreed to pay for 
 !ands required for the right-of-way. station grounds, sidings and other 
 purposes of a railway as shewn upon a plan filed under tbe provisions 
 of the general Railway Act. At the time of the resolution there were 
 four such plans filed, cadi shewii^ a portion of tbe land proposed to 
 be takoi for these purposes, and including, in tbe aggregate, a greater 
 area than could be expropriated for right-of-way and station grounds 
 imd«r the provisions of the Acts applicable to tbe undertaking of tbe 
 railway ctanpany. The L^islature passed an Act confirming such resolu- 
 tion. To an action by tbe owner of tbe land taken, on an award fixing 
 the value of that in excess of what could be so escpropriated. tbe cih-- 
 poration pleaded no liabiUty cm account of such excess, and also, that 
 tbcare was no specific plan on file deseribing tbe land: — Held, affirming 
 the judgmoit appealed from, that the first defense failed because of the 
 Act confirming the resolution, and. as to tbe second, that the four 
 plans should be read together and considered to be tbe plan referred 
 to in such resolution. 38 X.S.R- 76. 6 Can. Ry. Cas. 105. affirmed. 
 
 Inverness v. Mclsaac, 37 Can. S.C.R. 765, 6 Can. Ry. Cas. 109. 
 
 Boxes — Sexdixc iioxET OX coxomox — ^Bkeach or — Terms axd coxm- 
 
 TIOXS OF AID. 
 
 Tbe W. t L.E. etc., Co. gave a bond to tbe town council of Wood- 
 stock, reciting that tbe council had agreed to lend them £25.000 to assist 
 in constructing their railway, and conditioned that tbe company should 
 mat espmd tbe loan, nor begin to construct their road, imtil the whole 
 smni aee eas ary to complete it from Woodstock to Port Dover should be 
 obtained: — Held, that there was nothing in 19 Tict. e. 74 (tbe provisions 
 
6^2 EA1L^YAY SUBSIDY. 
 
 of which are set out in the case) to relieve defendants from liability 
 for a previous breach of this condition. 
 
 Woodstock V. Woodstock & Lake Erie Ry. Co., 16 U.C.Q.B. 146. 
 
 Bonus — Statutoky powers to jiakk conditions — Siding and flag 
 
 STATION. 
 
 By .33 Vict. c. 36, s. 7, municipalities were authorized to aid the 
 Hamilton & Erie Ry. Co., subsequently incorporated with defendants, 
 by way of bonus, subject to such restrictions and conditions as might be 
 mutually aj^reed upon between the municipality and the directors of 
 the railway; and by 34 Vict. c. 41, amending this Act, the county were 
 authorized, on the petition of certain townships and villages of the 
 county, to grant such aid, and issue the debentures of the county payable 
 by special rates and assessments in such townships, etc.: — Held, that the 
 powers given by the first Act to agree as to the conditions on which 
 sucli aid sliould be granted, W'ould apply to aid granted under the subse- 
 quent Act. The conditions agreed upon in this case were, that the 
 defendants should grant and continue to the Great Western Ry. Co., 
 the Grand Trunk Ry. Co., and the Canada Southern Ry. Co., equal 
 privileges as to working and using defendants' railway; that defend- 
 ants should have a siding and flag station at or near to two named 
 villages on their line, and should cause or procure the Grand Trunk Ry. 
 Co. to erect a station at or near a named point of intersection: — 
 Held, that these conditions were all legal and valid; and that defendants, 
 Iiaving received the debentures for the bonus, could not object that such 
 agreement was ultra vires. 
 
 Haldimand v. Hamilton & North Western Ry. Co., 27 U.C.C.P. 228. 
 
 [See St. Thomas & Credit Valley Ry. Co., 7 O.R. 332, 12 A.R. (Ont.) 
 273; Re Grand Junction Ry. Co. and County of Peterborough, 8 Can. 
 S.C.R. 76, 6 A.R. (Ont.) 339.] 
 
 Bonus — Tax exemptions — Subsequent bepeal of by-law. 
 
 The corporation of the township of North Cayuga, having power by 33 
 Vict. c. 33, s. 18 (Ont.) "an Act to incorporate the Canada Air Line Ry. 
 Co.," to exempt the property of the company from taxation, passed a 
 by-law providing that all the real property of the company in the 
 township should be rated at $12 per acre (the then average rate) for fifty 
 years. This by-law was subsequently, repealed, but it did not appear 
 that upon the faith of it the applicants had in fact altered their position, 
 or done anything which they otherwise would not have done, and the 
 railway was being constructed through the township before it was 
 passed: — Held, on the application to quasli the repealing by-law, that 
 the Court under the circumstances could not interfere. 
 
 Re Great Western Ry. Co. and North Cayuga, 23 U.C.C.P. 28. 
 
 Bonus. 
 
 In 1880, before the passing of 46 Vict. e. 18 (Ont.) a municipal council, 
 with the view of granting a bonus to a railway company, caused to be 
 submitted to tlie vote of the ratepayers a by-law to raise money for 
 that purpose. At the voting thereon the votes for and against it were 
 equal, and the clerk of the municipality, who also acted as returning 
 officer, verbally gave a casting vote in favour of the by-law: — Held 
 (reversing the judgment of the C.P.D., 11 O.R. 392), that s. 152 of the 
 Municipal Act, R.S.O. (1877), c. 174, is not applicable to the case of 
 voting on a by-law, and, therefore, tlie casting vote of the clerk was a 
 nullity, and the by-law did not receive the assent of the electors of the 
 
RAILWAY SUBSIDY. 653 
 
 wiOum tfe MBune of KJS0. (]S;r7|, c^ 174. & 311. a«^ ssdi 
 ■■« be ami igr pii— IbBJMM of tke t^-faiw:— Oeld. foSbrar. 
 
 ikflnlir St. Gbl t. Ottiavi. 1* JLR. 'kOmld 2M. and 1:± 
 On. SjCJL 377, Oat thp hr-Iwr wu k^ iv ■—ii—fliBBii «itli & 
 3» mi tike M— irip a ll Act. R^.O. ISTT. <l 174. tfe axtiaa fir rpiaiiBj^ 
 ntOi ■. aiS «f 36 Yirt. c 4&. Pn^ BntoL J. JL— IW fraviaaK of & 
 a«l af tte IfMirifl Act af 1873 (36 Vi^ e. 4Sh. 4» salt afvlr te t^r- 
 kcss far pwHtimg hammirt to nilvnnm. aad tW jw||.ibI «f tibr SaqpRse 
 Gont of CkmadM m Gunia AHutir Rr. Col t. Ottiava^ 13 CkiL &r.K„ 
 fL 377. das; aat so decide. 
 
 Ouaada Jkflaartdie %. Ca. t. CmmJ^nig^ 14 AJR. (OaA.^ 39, 1» Ga&. 
 SCJK.219. 
 
 Bvsrs. 
 
 ne raOvai- coMpaar ansc boHad Inr their o i igia e pl ckaKter te eoameKie 
 wi&iB tkne jwaxs. aad t» faiA tte raad witkm ta^lkt, v«ar^ vUck tkj 
 iukd fa da «itUa tke sfncified tnae:— &il, afinai^ tte ^cisioB of tke 
 daoMeij Diiiaaaal Gaatrt, S OlK. fill, aad af Praaliaal, J^ Ol USX tkat 
 fhe pliiatifi- wire mat m a paritiaai to csafaree tke deliiwrjF aff tke dekcB- 
 taacs aJtir tke lapse of aiae ^reais tnm tke fasaag; af tke %4aar, wkoi a 
 taial ikiafei af cirr»<*aaecs kad taft» flace. and vhea tke period fixed 
 \f tte piaiatigy' ekaner far tke coaapletiaB of tke laihniT kad espiicd. 
 
 Oiaida Atlaatie Bj. Co. t. Ottawa, 1* ^^ K |Oai.l 234^ 
 
 Boisrs — Ctoxmsn; — Rair.icii — Chxsce or amcntstASKws. 
 
 A raOvaj coaapaaij kari^ ^btaned a boaw from tlw plantiSs ayaB 
 iiMilitiiM tkat its awrfcif jko^ thwM ke -leeated aW aBaiataiBed* vitk- 
 ia tke otj lints, did «o craet aad M aiataia tkoa for soBe v«ar&. ^til 
 fgirhtiw a ■■■ligaMftrd aritk aad kH* its idcatify ia _aB- 
 all tke c^a^vMcats aad agnrmmtm mi tke ■■■l^iaiwlia^. 
 ^ pnacmd- Tke ■■■l^aMitid <iWi|iMaj «as a lte«a arfa 
 pu pet ait I t» a Back laxjjnr rutwar iii^iMaj. «ko icaaaved tke 
 tke citT inits:— Held. tfat. aMho ^gk all tke c^a^^eMarts 
 r tke q tigiaa l miipaaji woe lacaemd. tte aaal- 
 I perpetail^ kjr tke lai^ c wpaaj of tke aaaller. 
 tke arttkoritT mi PSuliaHnt, iaipwud onr ulitiwi ^oa tke aaal- 
 raad «ki^ anaifad a rkaagr m tke polinr as to tke ate aad siaa 
 af tke matMmf Aafs, aad tkat tfe c^a ^iM t kad ken atisicd tgr ike 
 leke aid dbops hw tke ar^iaal eoapaoy dni^ Ha iade- 
 
 T. OMtario ft Qackee Rt. Co, 32 O.R. 344^ 
 
 BoBBB — Bt-l&t — -MaJOKnT of eudctobsl 
 A "mmjmnty' ml tke ciecton iciemd to ia tke Railv»r Act off ISaS f ai. 
 
 75, T6|, aad tke Haairipal Act aff 1866 {s. IM. saks. 6)1, rafond to uwaft 
 to a tNr4av. b aot aa akaalaie —j M iii of all tke exioti^^ ^aalifiid dee- 
 tars, kat a ■ajoribr of tkow coauap forwacd to vote far tte i«f 
 
 Jcdkias t. ElgiB.' 21 r.CCP. 323: firwio t. Tovasead. Sk. 3M. 
 
 [See. aim. MeArar aad Sania. 12 U.C.Q.R 9».] 
 
 Boxrs — CaxBinosAK. BOBcsTms — G^jkacsc or KJUt-arAT — Mjlxbxvcs. 
 
 A t o aik ip carpanDtiiBi pa«ed a kr-lav tkat tke reeve ikoakl anke oat 
 d iki alama aat ' m»^^ (SgOMi vkick dwald ke sealed 1^^ Cke eorpante 
 seaL aad aapa^d Inr Mm aad tke tnaaanr; mmi tkat, p twrided tke gniimg 
 ml dihaieati* railv^ ihaald ke uiMpklid to a certaio paiat. kjr a day 
 tke raeic ikaald sahscrihe for j^ares m 
 
624 RAILWAY SUBSIDY. 
 
 to tlie extent of $5,000, on behalf of the corporation, and deliver said 
 debentures to the company in payment therefor. By 3G Vict. c. 98 (Ont.) 
 the by-law was confirmed. On application for a mandamus to the reeve to 
 make such subscription and delivery: — Held, unnecessary to sliew an agree- 
 ment by the municipality to take the stock, or a written subscription, or to 
 make the treasurer or the corporation parties to the application; and 
 on the affidavits set out below the mandamus was granted with costs. 
 Ke Canada Central Ry. Co. v. Brown, 35 U.C.Q.B. 390. 
 
 Bonus — Conditional debentures — Mandamus. 
 
 A railway charter provided that on receiving certain petitions the cor- 
 poration of the county, etc., should submit to the electors a by-law to aid 
 the company by a bonus, and sliould deliver to trustees the debentures for 
 any such bonus when granted. The company, as an inducement to the 
 passing of such a by-law, gave a bond conditioned to build their road with- 
 in a certain time, and to repay the bonus to the county in the event of their 
 ceasing within twenty-one years to be an independent company. Under 
 the facts of this case, set out in the report, the Court refused a mandamus 
 to compel the corporation to hand over the debentures to the trustees 
 appointed to receive them, there being ground for apprehension, owing to 
 the delay, that the bond could not be performed; but the rule was dis- 
 charged without costs, and without prejudice to a further application. 
 
 Re Hamilton & North-Western Ry. Co. and Halton et al., 39 U.C.Q.B. 93. 
 
 Bonus — Conditionai. debentures — Restraining deuverv. 
 
 Under 31 Vict. c. 4, a township municipality passed a by-law granting 
 a bonus to a railway company, upon the express condition that the deben- 
 tures securing such sum should be deposited witli the treasurer of the 
 Province as custodian for the company, but the same were not to be deliv- 
 ered to the company, unless and until the railway should within two 
 years be fully completed and in running order, and regular trains had 
 passed over the road, and the company had performed certain other stip- 
 ulated works; in all of which the company made default. In a suit by the 
 municipality seeking to restrain the treasurer from delivering up the 
 debentures to the company: — Held, that time was of the essence of the 
 transaction, and that the company having, no matter from what cause, 
 failed to complete the work in the manner stipulated for, the plaintiffs 
 were entitled to receive back the debentures. 
 
 Luther v. Wood, 19 Gr. Ch. 348. 
 
 Bonus — Conditional debentures — Restraining disposition. 
 
 A municipal corporation having passed a by-law giving a certain sum in 
 debentures by way of bonus to a railway company, the company executed 
 a bond to the township reciting that the township had agreed to give the 
 bonus on condition (amongst other things) that sixty continuous miles of 
 the road should be built within two years; that the debentures should not 
 be disposed of by the company until the contracts had been let and the 
 work commenced; and that if the road were not commenced and built as 
 mentioned, the debentures should be returned to the municipality; and 
 the condition of the bond was, that in case of failure the company would, 
 on demand, pay over to the township the sum of $50,000, or return the 
 debentures. The contracts having been let and the work commenced aa 
 stipulated: — Held, in view of the whole instrument, that the company 
 should not be restrained from disposing of the debentures before the com- 
 pletion of the work. 
 
 Brock V. Toronto & Nipissing Ry. Co., 17 Gr. Ch. 425. 
 
RAILWAY SUBSIDY. 625 
 
 BoxrS OCXTT AXD MTSnCIFAI. AID — ^X'aUBITT OF BT-UlW. 
 
 S. 2 of the Act mider vhieh the by-law in question was passed bj the 
 CoontT of Bmee to aid the WelUngion. Grer t Bruce Rr. Co., 31 Viet. c. 
 13, was wide cmmb^ to include county manicipalitr, and that the faj-law 
 was therefore not ultra rires. 
 
 Be Gibsmi and Bruce, 20 U.C.CJ*. 398. 
 
 Boxes — Cocyrr i n aaL\ n.« Es — Failcse to coxstbcct bailwat. 
 
 The eoontj of Siawoe had, under a br-law. passed in pursuance ci 35 
 Yict. e. 66, s. 15, iseaed debentures to the amount of JiSOO.OOO to aid in the 
 u— U ttioa <a the Hamilton k North Western Rt. (>ee 20 Or. C%. 211). 
 hot ly reason of the neglect of the eompanr to commence the oonstmctioa 
 of fte railwaT within the time limited their duuter had become forfeited, 
 and the br-law under which the debentures had beea i— u ed had therefore 
 beeo^ Toid and of no effect, whereupon one of the townships which had 
 joined in the petition for the pasaing of the by-law filed a bill a^inst the 
 railwaT, the county and trustees of the debentures, aeridng to restrain the 
 trustees fro^ ariling or parting with the d eb e ntiir ea and to have the same 
 handed back to the county: — Held, on demurrer by the county, (1) That 
 the township had no intovst to maintain such a suit, and (2) that the cor- 
 poration of the county was the proper paxty to institute proceedings. 
 
 West Gwillimbury v. Hamilton 4 Korth Western By. Co., 23 Gr. Ch. 
 383. 
 
 Boxes — ^Debcxttkes — ^Likx ox. 
 
 By 16 Yict. e. 22 and c 124, and 18 Viei. c. 13, certain municipalities 
 were authiwixed to issue deboaturcs imder by-lawg of the corporations to 
 aid in tbe eoaatroction of a railroad. The ocmtractors for building the road 
 agreed with the company to take a certain amount of their remuneration 
 in these debentures, and the work baring been commoiced, certain of these 
 driwntures were issued to the company. The contractors afterwards failed 
 to carry on the works, and disputes having arisen between them and the 
 annpany, all matters in difference were left to arbitration, and an award 
 th ei e w der was made in favour of the contractcM^ for the sum of £27,645. 
 payable by instalments. One of these instalmmts having become due, and 
 been left unpaid, the contractors filed a bill to have the driieatures ddir- 
 efcd over to them in the proportion stipulated for according to the terms 
 of the contract: — Held, althougfa the ctmtrartors would have been mtitled 
 to a specific lien on these debentures under their original agreement, the 
 fact that they had referred all matters in difference to arbitration, and 
 had obtained an award in their favour for a money payment, precluded 
 them from now obtaining that relief; and a demurrer for want of equity 
 was allowed. 
 
 Sykes v. Brockville k Ottawa Ry. Co, 9 Gr. Ch. 9. 
 
 BO^DS DUKMIKES MaXDAMUS. 
 
 A county by-law was pascsed on the 12th December. 1S73. to aid a raitway 
 company by a bonus of £80,000, and to issue debentures therefc»r. under 
 the clauses of the Municipal Act of 1S73 then in force. The by-law re- 
 quired that the debentures should not be delivered to the trustees appointed 
 to receive them until the company should have agreed that the amount 
 thereof should be wholly expended upon tbe eonstmetion of the line with- 
 in the county; that seventy-five per cent of the amount should be advanced 
 as the work progressed on the engineer's certificate, and the balance on 
 completion of the road; and that the portions of the railway within the 
 county should be commenced within one and finished within three j-?ars 
 Omi. Ry. L. Dig. — 10. 
 
626 EAILWAY SUBSIDY. 
 
 from the passing of the by-law. On application for a mandamus to the 
 county to deliver these debentures to the trustees, it appeared that on 
 the 24th of Novemlier, 1874, the company, by agreement with the county, 
 after reciting the by-law, covenanted to commence that part of the road 
 within the county in one and complete it in three years from the passing 
 of the by-law; and that they would only ask for the proceeds of the 
 debentures, as to seventy-five per cent thereof "to pay for work done and 
 expenses incxirred during the progress of said work wiUiin the county, and 
 as to twenty-five per cent thereof to pay for work done and expenses in- 
 curred on finally completing said railway within the coimty; and that the 
 whole proceeds of the debentures should be expended in the construction 
 of the said railway within the county, and not otherwise or elsewhere." 
 This agreement was handed to the warden on the 7th of December, 1874 
 (within five days of the time limited by the by-law for commencing the 
 work ) , but was not executed by the county, and on the same day the 
 debentures were demanded. The company had- in that month made some 
 purchases of rights-of-way. On the the 4th of December they entered into 
 a contract with one C. for the construction of fourteen miles of the road 
 within the county, to be begun within five days and completed by 1st of 
 September, 1875, but it contained a clause enabling the company to sus- 
 pend the work at any time without being liable for damages. C. began 
 work on the 10th of December, and continued till the 15th of February, 
 1875, for which he received about $800. He was told that he must begin 
 by the 12th of December in order to enable the company to get the deben- 
 tures. The crmipany had not filed their plans and survey as directed by 
 the Railway Act, C.S.C. c. 60, without which they had no authority to 
 begin their work, and were bound to no particular route: — Held, in the 
 Queen's Bench, that the company were not entitled to the mandamus, for 
 they had not legally located their line, and were bound to no route; they 
 had no power to begin the work as they had done; and from all the facts, 
 more fully stated in the case, it appeared that they had not done so in 
 good faith. Semble, that there was not a sufficient variance between the 
 agreement required by the by-law and that executed by the company to 
 have alone furnished an answer to the application, though they were not 
 clearly identical. Per Harrison, C.J. : — The whole matter was one of 
 contract, and the company, if entitled to the debentures, had another 
 remedy, either at law or in equity, which would l)e more convenient and 
 appropriate than a writ of mandamus. The company had a line of one 
 hundred miles to construct, which would cost .$1,500,000. Their capital 
 stock was only .$50,000, of which not quite ten per cent had been paid up; 
 and including the whole stock, and the bonuses granted, they had only 
 $160,000. Quaere, per Wilson, J., whether before ordering the debentures 
 to be handed over, the Court could have required more stock to be called 
 in. Semble, not; but it was suggested that the by-law should provide 
 for this; and that to carry such by-laws a certain proportion of the whole 
 number of votes of the locality should l)e required. 
 
 Re Stratford & Huron Ry. Co. and Perth, 38 U.C.Q.B. 112. 
 
 Bonus — Debenti-res — Preferential bonds. 
 
 A proposed by-law for granting a bonus of ,$44,000, was assented to by 
 the ratepayers of the townsliip of Eldon ; and to induce the council after- 
 wards to ratify the by-law, the company entered into a bond, that if cer- 
 tain other townships should deliver to the company certain debentures 
 expected from them, the company would give to Eldon $6,000 of preferen- 
 tial bonds of the company; tlie company having a limited statutory 
 authority to issue preferential bonds "for raising money to prosecute the 
 
RAILWAY SUBSIDY. 627 
 
 udertakiiig.** One of the tovnships failed to ^ve the debmtares expect- 
 ed from it, and the companv, instead of giTing it:» preferential bonds to 
 Eldon, gave to the municipalitT an ordinary bond for the $6,000: — Held, 
 that the ctunpany had no anthority to give its preferratial bonds in order 
 to carry out its bargain with the municipal eonneil: that the default 
 of one of the other townships to give the debentures expected from it dis- 
 entitled Eldon to demand preferential bonds from the company, even if 
 the company had had authority to grant them: and that the giving of the 
 bond which the company did give was no waiver of the objection, as an 
 answer to the municipality^ demand of preferential bonds. 
 Eldm T. Toronto t Xipis^ing Ry. Co., 24 Gr. Ch. 396. 
 
 BOXUS DeLJTEBT or OEBENTtRES — Maxdamcs. 
 
 Upon an application for a mandamus to a township etwporation to 
 ■lake and deliver to trustees certain debentures ftM- $25,000 authorized by 
 two by-laws of the corporation granting aid to a railway compamy, it 
 was argued that the company had lost all claim to $18,000, if not to the 
 whole of the bonus, by noneommeneeroent of their road. On the other 
 hand, the company contended that, by certain agreements with the cor- 
 poration, and by several statutes, esXeading the time for commencement, 
 tlieir right to the debentures was preserved: — Held, that such right, de- 
 pending upon matters of contract, should not be determined upon such 
 an applicatitm. but by suit in the ordinary way; and the application was 
 disehaiged with costs. 
 
 Re London, Huron k Bruce By. Co. and East Wawanosh, 36 U.CQ.B. 
 93. 
 
 [See, also. Re North Simcoe Ry. Co. and Toronto. 36 U.C.Q3. 101.] 
 
 B05CS — DlSCOXTISlA>'CE OF OPEBATIOX — ^LL&BILITT OF STOCKHOUIESS. 
 
 Where a township mimicipality advanced a large sura of money to a rail- 
 way company under the provisions of the consolidated Municipal Loan 
 Fond Act, and some of the stockholders of the company were afterwards 
 released from their liability by an Act of the Legislature passed nearly 
 eighteen months after the works on the road were stopped for want of 
 funds, and new companies were formed under that and suhseqtient Acts of 
 the L^slature, which released the new corporations from the construction 
 of the original line of road, until a new line had been ctmstructed, and it 
 appeared that there was no immediate prospect of such a result: — Held, 
 reversing the judgment of the Court below, that the mimicipality was not 
 released from their liability to the Crown. 
 
 Norwich t. Attorney -General, 2 E. & A. 541. 
 
 Boxes — Doinxiox bailwat. 
 
 Under s. 559. subs. 4, of the Municipal Act. R-S.O. 1877. e. 174, a grant 
 by way of bonus may be made to a Dominion railway. [Canada Atlantic 
 Ry. Co. V. Ottawa, 8 O.R. 201. 12 A.R. <Ont-J 234. followed.] 
 
 Canada Atlantic Ry. Co. v. Cambridge, 11 O.R. 392. 
 
 Boxrs — Ebectiox of .statioss — Specific pekfo«maxck. 
 
 In consideration of a bonus granted by the plaintiffs, the Wellington, 
 Grey k Bruce Ry. Co. covenanted ~to erert and maintain a permanent 
 freight and passenger station^ at G. Shortly afterwards the road «~:is 
 leased, with notice of this agreement, to the defendants, who dis.rontiniie>l 
 G. as a regular station, merely stopping there when there were any )«•>- 
 SMigers to be let down or taken up: — Held, aflirming Spragge, C, 25 Ht. 
 Ck. 86, that the mere erection of station buildings was not a fulfilmeni 
 
G28 IIAILWAY SUBSIDY. 
 
 of the covenant, and tliat the municipality was entitled to have it specif- 
 ically performed. Tlic decree, which enjoined the defendants from allow- 
 ing any of tlieir ordinary freiglit, accommodation, express, or mail trains, 
 other than special trains, to pass without stopping for tlie purpose of 
 taking up and setting down passengers, was varied by limiting it to such 
 trains as are usually stopped at ordinary stations. 
 
 Wallace v. Great Western Ry. Co., 3 A.R. (Ont.) 44, 25 Gr. Ch. 86. 
 
 Bonus — Grant to individual — Validity. 
 
 A by-law granting $1000 to an individual in consideration of his hav- 
 ing at the instance of the corporation advanced the amount in aid of a 
 railway was held bad, for it was not a grant to a railway, and it had not 
 been assented to by the electors. Quaere whetlier without such assent 
 the corporation could grant a bonus to a railway out of surplus founds in 
 hand. 
 
 Re Bate and Ottawa, 23 U.C.C.P. 32. 
 
 Bonus — Illegal issue of debentures. 
 
 The Court has jurisdiction to restrain a municipal corporation from 
 obtaining the vote of the ratepayers in favour of a by-law which if passed 
 would be illegal without legislative sanction, and which sanction such 
 vote was intended to aid in obtaining in an informal and unauthorized 
 manner. Where, therefore, the corporation of the town of Port Hope were 
 about, submitting to the vote of tlie ratepayers a by-law authorizing the 
 harbour commissioners of that town to issue debentures to the amount of 
 $75,000 to aid in completing a railway, but wliich debentures the corpora- 
 tion had not legally the power of directing to be issued, the Court re- 
 strained the corporation from proceeding to take such vote. 
 
 Helm V. Port Hope, 22 Gr. Ch. 273. 
 
 Bonus — Illegality — Jurisdiction to restrain. 
 
 Tlie Court has jurisdiction to restrain a municipal corporation from ob- 
 taining the vote of the ratepayers in favour of a by-law which, if passed, 
 would be illegal without legislative sanction, and which sanction such vote 
 was intended to aid in obtaining in an informal and unauthorized manner. 
 
 Helm V. Port Hope, 22 Gr. Ch. 273. 
 
 Bonus — Insufficie2?cy of lands to make grant. 
 
 The legislature of Canada, by an Act, set apart a certain quantity of land 
 along the line of a projected railway running through Quebec and Ontario, 
 to be granted to the company on completion of the railway; and a propor- 
 tionate part of such land on the completion of 20 miles of the railway. 
 The company having completed a portion of the line of railway in Ontario 
 to an extent of more than 20 miles, applied for a grant of the proportion 
 to which, under the Act, they claimed to be entitled, which was refused. 
 The company thereupon presented a petition of right against the province. 
 It was alleged that the Province of Ontario had not along the line of the 
 road sufliciefit lands to make the grant desired: — Held, that this formed 
 no ground for the province of Ontario insisting that the Province of Quebec 
 should have been made a party to the proceeding. 
 
 Canada Central Ry. Co. v. Regina, 20 Gr. Ch. 273. 
 
 Bonus — ^Invalid by-law — Quashing. 
 
 A by-law of a county council, in aid of a railway, to the extent of .$20,000, 
 
RAILWAY SUBSIDY. 629 
 
 which had not been submitted to the ratepayers under the Municipal Act of 
 1866, was on that ground quashed. 
 
 Clement r. Wentworth, 22 U.C.CP. 300. 
 
 Bonus — Muxicipal aid — Taking stock is kailwat coutajft. 
 
 A by-law to take stock in the B^-town & Presoott By. Co. was quashed: 
 ( 1 ) Because it appeared not to have been concurred in by a majority of the 
 asseaaed inhabitants, as required by 13 & 14 Viet. c. 132. (2; Because no 
 sufficient rate was imposed for the payment of the debt and interest, as re- 
 quired by 12 Vict. c. 81. The defendants did not support their by-law, and 
 the Court refused to hear counsel cm behalf of the railway company as the 
 rule was not directed to them. 
 
 Be Billings t. Gloucester, 10 U.C.Q.B. 273. 
 
 Boxes — MrxicxPAL .\n>— ilAXDAJirs to exfobcc 
 
 The North Simcoe Ry. Co. is incorporated by 37 Viet. e. 54, (Ont.), s. 
 23 of which enact« that any municipal corporation '*which may be interested 
 in securing the construction of the «aid railway, or through any part of 
 whi<di, or near which, the railway or works of the said company shall pass 
 or be situate," may aid the company by giving money In- way of bonu»: 
 Provided that no such aid shall be given except after the passing of a by- 
 law for the purpose and the adoption thereof by the ratepayers. By s. 24 
 tke proper petition, as prescribed in that section, shall first be presented to 
 Ihe council, expressing the desire to aid the railway, and stating in what 
 way and for what amount, ''and the council shall within six weeks after the 
 receipt of such petition by the clerk of the miuicipality, introduce a by-law 
 the effect petitioned for, and submit the eame for the af^roval of the qualified 
 Toters." The company were empowered to construct a railway from 
 Barrie or some other point on the line of the Northern Ry., passing through 
 certain named townships, to Penetanguishene, and to extend it from some 
 point in the township of Vespra to connect with the Northern, or with the 
 Toronto, Grey & Bruce Ry. A by-law to aid the company by a bonus of 
 $100,000, reciting that the city of Toronto was interested in securing a rail- 
 way connection with the townships through which the line would pass, was 
 introduced, on a proper petition, and read twice in the council ; but on mo- 
 tion to go into committee on the by-law it was resolved, by a vote of four- 
 teen to seven, that it would -be unwise, in view of the large increase of the 
 city debt, to incur further liability to aid a railway totally disconnected 
 with the city and more than sixty miles from it; and that the council in 
 the interest of the citizens, felt it to be their duty to refuse to submit it 
 to the ratepayers: — Held, afiirming the judgmrat of Gwj-nne, J., that the 
 council should not be compelled to submit the by-law; and a nisi for a 
 mandamus was discharged with co«t«. Semble. that it was for the council 
 to decide whether the corporation were "interested in securing the con- 
 struction of the railway;" but that if it was a quesion for the Court, the 
 materials before them would not warrant a decision in the afllrmative. 
 Quaere, per Gwynne, J., whether the provisional directors of the company 
 had any status to warrant their application for »uch writ. Semble, that 
 at all events, the by-law submitted should contain proper conditions as 
 to the expenditure of the money, etc.. as contemplated by the statute. 
 
 In Re North Simcoe Ry. Co. and Toronto, 36 U.C.Q.B. 101. 
 
 Boxrs — McxiciPAL ix>ax — MoarnAOF. or bailwat bqcipmext. 
 
 The municipality of B., being interested in the completion of a railway, 
 by a by-law agreed to lend the company, in municipal loan fund debentures, 
 £100,000, for securing the repayment of which the company executed to the 
 
g:3o kajlway subsidy. 
 
 municipality a mortgage on all their property, which, by a statute, was 
 declared to be valid and binding as well against all the property of the com- 
 pany already owned l»y tlu-m as that which tliey might afterwards acquire; 
 iind which by a subsequent agreement made for the settlement of certain 
 suits pending between the parties, it was agreed should be advanced to the 
 rompany in certain proportions as the work progressed. In compliance with 
 a requisition of the company for funds, "for work done, and material fur- 
 iiislied, and right-of-way, etc., for the use of the railway,"' the municipal 
 council directed their bankers to hand over to the company an amount of 
 the debentures, which, upon their being handed over, were immediately 
 seized by tlie sheriff, under an execution at tlie suit of the bankers. Upon a 
 l)ill filed for the delivery up of the debentures: — Held, that so far as the 
 debentures were required for the payment of the right-of-way, rolling stock 
 ready to be delivered, and otlier materials not yet become tlie property of 
 the company, they were impressed with a trust to be applied by the com- 
 pany to the payment of those demands. 
 Brockville v. Sherwood, 7 Gr. Cli. 297. 
 
 Bonus — Notice of ky-ijvw — BRiitKJiV. 
 
 In giving notice submitting a by-law, granting aid to a railway company 
 for the approval of the ratepayers, the officers whose duty it was to give 
 such notice had not posted up the clauses of the Municipal Act in reference 
 to bribery, in the manner required by the Act: — Held, no ground for 
 quashing the by-law. 
 
 West Gwillimbury v. Simcoe, 20 Gr. Ch. 211. 
 
 Bonus — Notice of by-law — Failure to seal. 
 
 The notice of a by-law for the granting of aid by a municipality to a rail- 
 way company should be publislied in accordance with the provisions of the 
 Municipal Acts.: — The objection to a by-law that it was not sealed when 
 submitted to the electors, was untenable. 
 
 Jenkins v. Elgin, 21 U.C.C.P. 325. 
 
 Bonus — Notice of by-law — Irregularity. 
 
 14 & 15 Vict. c. 51, s. 18, directs that a copy of the by-law (to take stock 
 in a railway) shall be inserted at least four times in each newspaper printed 
 within the limits of the municipality; but the Court refused to quash a by- 
 law imder which a large sum had been borrowed, because it had been pub- 
 lished three times only in one of two papers. A full copy of the by-law was 
 no published, but at the time of passing a clause was added appointing a 
 day on M-hich it should come into operation, and directing that the debt 
 should be payable within twenty years from that day, while in another 
 clause the debentures were made payable in twenty years from their dates. 
 The Court, however: — Hehl, that whether 14 & l.l Vict. c. 51, s. 18. subs. 3, 
 or 16 Vict. c. 22, s. 2, subs. 4, were to govern, this was an irregularity for 
 which they were not bound to quash. 
 
 Boulton v. Peterlwrough, 16 U.C.Q.B. 380. 
 
 Bonus — Public aid — Debentures — Mandamus. 
 
 A writ of mandamus to compel the issue of debentures by a municipal 
 corporation under a by-law in aid of a railway, will not be granted upon 
 motion, but the applicant must bring his action. [Re Grand Junction Ry. 
 Co. V. Peterborough, 8 Can. S.C.R. 76, followed.] 
 
 Re Canada Atlantic Ry. Co. v. Cambridge, 3 O.R. 291. 
 
RAILWAY SrBSIDY. 631 
 
 BosrS — RJOLWAT SOT IS ESaSTESCK. 
 
 Tlie Act incorporating the munieipalitj of Shnniiiili. gare it all tlie powers 
 of towndiips under the general municipal law, and in otiier seetions au- 
 tboriied ihe council to make assessments for neeessarj expenses, and for 
 tte estaUishmrat of a lodmp house, and the salary of a constable: — ^Held. 
 that this language did not prohibit tiie council from passing a bj-law 
 granting a bonus to a railwaT cmnpanv, as the right of doing so when 
 exercised rendered the parmmts under it neeessary expenses. The fact 
 that the railway intended to be benefited was not named, and was realbr 
 not in existence when the rote on the question was to be takes, consti- 
 tuted no objection to the panning of a by-law for the purpoae. 
 
 Vickers t. Shuniah, 22 Gr. Ch. 410. 
 
 Boxes — Refcsai. — BBonxr. 
 
 Right of corporation to refuse to pass a by-law granting aid to a railway 
 cMBpany, where the assent of the electors has been procured by bribery. 
 
 Re Lai^fm and Arthur Junction Ry. Col, 45 U.C.Q3. 47. 
 
 [Carried to appeal but apparently never reported.] 
 
 Boxes — RjEFrSAL TO GKAXT — MaXDAMC^ 
 
 Before the Court will grant a mandamus to a municipal corpwation to 
 pass or submit a by-law to the electors granting a railway bonus, a distinct 
 **f— w«» np(» and refusal by tbe corporation to pass or submit the by -law 
 must be diewn. P., a member of defendants' council, presented a petition 
 for a by-law and granting such a bonus, on the 20th June, and on the 21st 
 the committee to which it was referred reported farourably. adding that 
 they had a legal opinion going to shew that it was imperative on them to 
 submit tbe by-law. The Council refused to adopt this report, and on tbe 
 ^ame day P. moved that a by-law in accordance with the petition be then 
 read a first time, which was lost, but it did not appear that the by-law 
 was drawn up or presented to the council, and it was not before the Court. 
 On the 25th. P. applied for a mandamus : — Held, not a sufficient demand and 
 refusal; for the Council were not bound to adopt the report, or assent to 
 the k^I opini<Mi embodied in it, or to pass the motion for the first reading 
 of a by-law not before them: and they were entitled to some time to eon- 
 sider the nature of the by-law they were required to pass and submit: 
 and, semble, they should hare had reasonable notice of the intention to 
 mad^e this application. 
 
 Re Pedt and Peterborough. Zi U.C.Q^. 129. 
 
 Boxirs — ^Restkaixixc passage of bt-law. 
 
 Where a municipality has l^ally a right to pass a by-law granting a sum 
 of Moaey, it would seem premature to apply to restrain the by-law being 
 siAautled to the ratepayers, as they aught refuse to approve of the by-law. 
 [Helm T. Port Hope. 22 Gr. Ch. 273, distingui^ied.] 
 
 Vickers v. Shuniah. 22 Gr. Ch. 410. 
 
 Damages — Bkeach or coxxsact — DiscoxnxrAXCE <w eailwat sebvice. 
 
 Where a railway eompauiy in breach of a contract entered into by them 
 to run trains fran the eastern part of the eity of St. T. to the western 
 part, ceased to run such trains: — Held, on a reference as to damages, that 
 though the actual depreciation of property in the western part of the city 
 resulting therefrom was a matter pertaining to the property owners, and 
 not to the city yet the lessened taxatitm resulting fitMn such depreciation 
 was not too remote a fact fcMr consideration on tbe reference, and such a loss 
 in taxation which could be traced to or reasonablv connected with the cob- 
 
032 KECEIVERS. 
 
 pany's default formed a yearly standard which might be capitalized so as 
 to fairly represent the money compensation to which the plaintiffs were 
 entitled. Stated broadly the enquiry was how much less benefit had been 
 received by the municipality by reason of the railway service at one sta- 
 tion being discontinued. Constat, that the personal loss or inconvenience 
 suffered by travelers or citizens from the abandonment of the station, or 
 the actual depreciation in value of the land individually owned in that 
 neighbourhood could not be reckoned as constituents per se of the dam- 
 ages suffered by the corporation: — Held, also, that if the railway com- 
 pany admitted that they were never again going to run trains to the 
 western end of the city, the damages should be assessed once for all, which 
 might be done either by fixing one solid sum, or by directing a yearly 
 payment. 
 
 ot. Thomas v. Credit Valley Ry. Co., 15 O.R. 673. 
 
 RAILWAY TIES. 
 See Timber Licenses. 
 
 RATES. 
 
 See Tolls and Tariffs; Tickets and Fares; Street Railways. 
 
 REBATES. 
 
 See Tolls and Tariffs. 
 
 RECEIVERS. 
 Annotations. 
 
 Receivers upon foreclosure; Rights of mortgagees; Working expenses 
 for operation of road. 2 Can. Ry. Cas. 283. 
 
 Powers of receivers. -3 Can. Ry. Cas. 367. 
 
 Appointment of receiver on behalf of bondholders and their powers. 5 
 Can. Ry. Cas. 431, 2 Can. Ry. Cas. 283, 285. 
 
 FOBECLOSUBE SUIT — RePAIBS TO BOAD — AUTIIOBITY TO ISSUE BECEIVEB'S CEB- 
 TIFICATES. 
 
 In a debenture holders' suit to enforce their security, which was against 
 all the property of a railway company, receivers appointed to operate and 
 manage the railway and business of the company, and maintain the road 
 and rolling stock, were empowered to borrow a limited sum on receivers 
 certificates made a first charge on the company's property, in priority to the 
 debenture security, to pay expenses incurred by them in necessary repairs 
 and in operating the road. 
 
 Sage V. Shore Line Ry. Co., 2 Can. Ry. Cas. 271, 2 N.B. Eq. 321. 
 
 autiiobity to construct portion of lines — objection of bondholders — 
 Order for sale of road. 
 
 The Court will not grant to the receiver and manager of a railway au- 
 thority to proceed with the construction of a small portion of the incom- 
 pleted part of the line of railway, where it is questionable whether such 
 construction will be of any real benefit to the undertaking, and in the 
 face of the opposition of these of the bondholders whose interest is largely 
 
RECEIVERS. 633 
 
 in exe«ss of tltose desiring it, and in tbe i*ee of a judgment directing a sale 
 of the road. 
 
 Sitdiie T. Central Ontario Ry. Col; Weddell t. Ritdiie, 3 Can. Bj. Gas. 
 357, 7 OJJL 727. 
 
 AiTorsTjcEST^ — Pbotuccxai. jir«Da>icnox. 
 
 Ike High Court of Justice, at the instance of a creditor of a raihrar 
 eoaqpanj, has porer to appoint a receiver, both where the company, being 
 ■itoate within the province, is under provincial legislative jurisdiction and 
 wkoe it is under Federal legislative jurisdiction, if there is no Federal 1^- 
 islatiaB providing otherwise. 
 
 Wae V. Bruce Mine* Rj. Co., 5 Can. Ry. Cas. 415, U OXJL 200. 
 
 [Referred to in Crawfwd v. Tilden, 13'OX.R. 169.] 
 
 B£FBI6ERATOS CABS. 
 See Cars. 
 
 BEFUMS. 
 See Tolls and Tuiffs. 
 
 •RRT.F.ASK, 
 
 Release by servant for injuries caused by negU^enee of master, see Em- 
 ployees. 
 
 BEPAIB& 
 
 Bqtairs of crossings, see Farm croasii^s; Highway Crossings; Baflway 
 Croaaings; Fences and Cattle Guards. 
 Bcpair of bridge, see Bridges. 
 
 BEPOBTS. 
 
 See Accident Reports. 
 
 Productiim of reports, see Discovery. 
 
 BBS IPSA IA)QUITUB. 
 
 See Carrier of Goods; Carriers of Pa&^eugers; Crowing b juries; Em- 
 ployees: Negligence; Street Railways. 
 
 Aimotatioai. 
 Application of rule as relating to negii^ence. 23 Can. Ry. Cas. 305. 
 
 BESPONDEAT SUPEBIOB. 
 See Ageats; Empkyetes. 
 
 BIGHT OF ACTION. 
 See Xegligmce; Pleading and Practice. 
 
(334 KIGHT-OF-WAY. 
 
 BIGHT-OF-WAY. 
 
 See Expropriation; Farm Crossings; Higliway Crossings; Railway Cross- 
 ings. 
 
 Right to cattle passage in drainage culvert, see Drainage. 
 
 Pbivate way in station grounds — Easement — Prescbiption — Implied 
 
 GRANT. 
 
 The defendant claimed a right-of-way through the plaintiff's station 
 grounds, at M., by virtue of open, continuous, and uninterrupted user for 
 more than 30 years: — Held, that the right must rest upon the presumption 
 of a grant, and if an actual grant would have been illegal and void, a grant 
 implied from 20 years' user could not be valid. The user on which the de- 
 fendant relied began in 1872. At that time the Northern Ry. Co., through 
 whom the plaintiffs derived title, had no power to make a sale or grant of 
 any of their property otlierwise than for the benefit and account of the rail- 
 ways: 12 Vict. c. 196 (D.). In lS(i8 the Northern Ry. was declared to be 
 a work for the general advantage of Canada, but none of the general Rail- 
 way Acts passed by the Dominion Parliament was mad^ applicable to it 
 until the passing of the Railway Act. 1888, ss. 3, 5; and by s. DO (d) the 
 power of a railway company to sell and dispose of lands and other property 
 was limited to so mucli thereof as was not necessary for the purposes of the 
 railway. The land in question was acquired for use by the company as a 
 railway station, and tlie area was within the quantity which they were au- 
 thorized to acquire for the purpose: — Held, that neither at the time when 
 the user on which the defendant relied began, nor since, was there power in 
 the railway company to make a grant of such a right; it was not for the 
 benefit of the railway; neither was it of lands not required for its pur- 
 poses; and the defendant had, therefore, failed to establish his right. Be- 
 tween the lot owned by the defendant and the station grounds there was 
 a strip of land laid out as a street which he was occupying as part of his 
 premises: — Held, that, even assuming that he had acquired title to the 
 strip by possession, that did not carry with it any right to a way, of 
 necessity or otherwise, over the plaintiffs' lands in order to give him an 
 outlet. Judgment of Boyd, C, 1 O.W.R. 695, reversed; Osier, J.A., dis- 
 senting. 
 
 (Jrand Trunk Ry. Co. v. Valiear. 3 Can. Ry. Cas. 399, 7 O.L.R. 364. 
 
 [Distinguished in Leslie v. Pere Marquette Ry. Co., 13 Can. Ry. Cas. 219, 
 24 O.L.R. 206.] 
 
 RIVERS. 
 See Drainage; Waters. 
 
 ROADBED. 
 
 See Rails and Roadbed; Street Railways; Railway Crossings. 
 
 SALE. 
 
 A. Sale of Railway. 
 
 B. Sale of Securities. 
 
 Appointment of receiver upon foreclosure, see Receivers. 
 Rights of bondholders and mortgagees, see Bonds and Securities. 
 Insolvency and scheme of arrangement, see Insolvency. 
 
SALK 635 
 
 A. aaJkt of Xaflvay. 
 Sale or tkamvat bt shesiff — I.ikx fx« rsicE or caks. 
 
 A eoaipwBT <^aatias aa eleetzie tnuavar. bjr powbcsiaa of tlw araoie- 
 ipol corporatioB, ca imik laid •■ foUic stnels Tested u iW MooiripolitT, 
 to sccnv Uk prneipol aad ioteivst of ao i««e of its ddbeatare boadb 
 hjpotWcated its ml propcnx. mjamr. car& ctCL. ie«d is coaacrtioa 
 thrmrith. to trustMS for the debronuv hoM»& aad traa^fcmd tW wtuiV' 
 able fropertjr of tke coaapojiT aad it« prciiirat awl fmarv rmniHs to tkr 
 trostn^ Bt a proniBoal statute. 3 Edv. VII. r. 91. :>-. 1 iQur.*, tW deri 
 «a» ralidated aad ratified. Oo tW sale, ia exMtuioa. of tke traaiwaT. a^ 
 a goii^ (oacna: — Bdd. tkat vketker. at tke tise of sadb sale, tke ear> 
 ia faeetioa mere Bovahfe or iaiBorable ia ckaiactmr. tke effint oi the 
 deed aad ratifjriag statate vas to aabtadiaate tke ri^tc of otker ned- 
 itors to tkose ot the tnetecs, aad. c n awq a ra tly, tktt oapaid veadiKs 
 thereof aere aot catitlrd. aader Art. 2J00O of C.C. (Qoe.t to prioritr of 
 pavamt bf priril^e apoa the di^ribatiaa of the bmibcts nalind oa the 
 Mle ia esecotioa. Ia the lesolt, the j i aig—at a|ii|iealnl froat IS Qae. 
 KJL 8S, aas afinaed. 
 
 Ahcan 4 Sopcr t. Xev York Trust Col. 43 Caa. S.C.R. 3ST. 
 
 MOKTCASE — ^FnCTTBfS RoiXIXC STOCK — ExBcmox. 
 
 Aa deetnr street railwaT roapaaj. iaeorporated niMkr the Oatario 
 JMat Stack Goaqiaaies LKters Patent Aet. R^O. IS^I. r. 1^7, aad sab- 
 jeet to Oe prorisiaas of tW Street EailvaT Aet. RJS.O. 1887. c 171, gne 
 to txastces for fculdc ta of dehcatam of thr eoaqiaaj a ■ort^a^e apoa the 
 nal estate of tike coaapaaT. together aith all liBildi^»s. ■■t.hiaeij. appli- 
 aaecis. works aad fixtaRSy ete.. aad also all rollii^ stock aad all other 
 ■achiaaj. appliaares. vorks aad fixtores. etc to be thereafter a$ed io 
 coaacctiaa aift the ^id vrnks. cte. The ln--la«? of the directors of 
 shaivkoUera (aho vere the saaw persoas aad oahr fire ia aomberf aathor- 
 iziag the giria^ of the mortgage directed it to be ^Tca upoa all the real 
 estate, plaat, fraachises. aad iacoae of the coaapaaj, aad the d c b c atmes 
 stated Oat thn- were a ec ai e d br Mort^a^ <rf the real estate. fraachinBs. 
 rallia^ stock, plaat. ete, ao|aijed or to he aeqaired: — Held, that s. 38 of 
 R^O. 18S7, c. ISt. docs aot restrict the power <rf SMirtsasia* to the esast- 
 iag: propntT of the ccatpaar aad that a conpaaj is iavestod with as ixt^ 
 powers to Bort^^a^ its ordiaair after acqaired propcrtr a« beloaj; to a 
 aataral pcrsoa: that the BMtga^ ia t«i»s corned aft«- ao^red prop- 
 ertr. aad erca if aot aothorind ia this respect apoa a strict teadii^ of 
 the bNr-law« had be«a ae qai g jc e d ia aad ratified aad was hiadiag. Jndp- 
 Mcat of a Dirisioaal Coort afiraed: — Held. akct. that the roDia^ stock, 
 poks. wires^ ete_ foraied aa esseatial part of the corpos of what mast he 
 rc|»arded as aa cat ire aiachiae. aad were thereforr fisttnes aad aot svir- 
 aUe aader esceatiaa to the prejudice of the MortivajEees. Jti dg u wa t of Ar- 
 Boar. CJr_ a lEiBtd . 
 
 Kirfcratzidk t. Cunwall EkcL Street Rj. Gol; Baak of lloatreal r. Kirk- 
 patrick. 2 OXJL 113 KC-A.-. 
 
 Skjzibk Axa SAif — Siaip or lax* xot tsclwkb ix ftk^t saztrac 
 
 A raOwar was seiiBd aad sold br sheriflTs sale to the preseat oppoeaat. 
 It was described as fiftr feet ia width, bat the greater part of the liae was 
 actaallr sixtr-six feet wide. The prescat plaiatiff bow- caused the liae to 
 be seised agaia. but stated exceptioas froas the seizure, which esceptioa-^ 
 rcallT iarluded the eatire road les« the surplus width: — ^Held. that the 
 seizare was irregular aad ilkgal, the adjndicatioa br the sheriff bn^ 
 
636 SALE. 
 
 of a specific object, fenced at the time of the sale, and known as consisting 
 of the property so enclosed. The error as to the width was immaterial, 
 unless it were to give a ground of action by the defendant to have the 
 sale set aside. Moreover, a railway can only be seized as an entirety, 
 which had not been done in the present case. 
 
 Carter v. Montreal & Sorcl Ry. Co., 23 Que. S.C. 3. 
 
 Bonds — ;Mortgage — Default in payment. 
 
 A railway incorporated by provincial legislation, and which is after- 
 wards declared to be a work for "the general advantage of Canada," can 
 be validly sold as a going concern, where the sale is under the provisions 
 of a mortgage, or at the instance of holders of bonds secured by a mort- 
 gage on tlie railway, or under any other lawful proceeding. Bonds of 
 the railway were issued, and as security for their payment a mortgage of 
 the railway was made to a trust company, containing a provision that 
 in default in payment of the principal of the bonds, and on request of 
 three-fourths of the bondholders, the trustee should immediately elect 
 and declare the bonds to be due and payable and take proceedings for en- 
 forcing payment: — Held, that the Railway Act, 188G, ss. 14, 15, 16 (re-en- 
 acted by the Railway Act, 1888, s. 278), although passed subsequently to 
 the date of the mortgage, applied, and that a sale of the railway could 
 be validly made. A consent judgment directing a sale of the railway was, 
 under the circumstances of the case, vacated, and the defendants allowed 
 to come in and defend. [Petro v. Welland Ry. Co. (18G2), 9 Gr. 455, and 
 Gait v. Erie Ry. Co. (1868), 14 Gr. 499, distinguished.] 
 
 Toronto General Trusts Corp. v. Central Ontario Ry. Co. ; Ritchie v. 
 Blackstock; Central Ontario Ry. v. Blackstock, 2 Can. Ry. Cas. 274. 
 
 [Affirmed in 4 Can. Ry. Cas. 328; 8 O.L.R. 342.] 
 
 Bonds — Mortgage — Default in payment — Sale of railway. 
 
 A railway incorporated by provincial legislation, and which has been 
 declared to be a work for "the general advantage of Canada," can, since 
 the passing of the Railway Act, 1888, ss. 14, 15, 16, be validly sold as a 
 going concern, where the sale is under a mortgage, or at the instance of 
 holders of bonds secured by a mortgage on the railway, made before or 
 after the passing of that Act, or under any other lawful proceeding. Judg-' 
 ment of Boyd, C, 6 O.L.R. 1, 2 Can. Ry.'Cas. 274, affirmed. 
 
 Toronto General Trusts Corp. v. Central Ontario Ry. Co., 4 Can. Rv. 
 Cas. 328, 8 O.L.R. 342. 
 
 [Affirmed in 4 Can. Ry. Cas. 340; 21 T.L.R. 732; [1908] A.C. 576.] 
 
 Mortgage — Charge on land and railway — Power of sale. 
 
 A railway which is subject to the legislation of the Dominion of Can- 
 ada can be sold in a suit by trustees for bondholders to enforce a mort- 
 gage on the railway company's railway, lands, and franchises. Semble, a 
 railway which is subject exclusively to the law of the Province of Ontario 
 cannot be sold in a suit to enforce such a mortgage. Decision of the 
 Court of Appeal for Ontario (8 O.L.R. 342, 4 Can. Ry. Cas. 328), affirmed. 
 
 Central Ontario Ry. Co. v. Trusts & Guarantee Co., 4 Can. Ry. Cas. 340, 
 21 T.L.R. 732, [1908] A.C. 576. 
 
 Insolvency — Sale to a company by its promoters. 
 
 A syndicate of four persons procured a Quebec Act incorporating a rail- 
 way company which they had promoted and sul)scribed for $300,000 of the 
 company's shares (being all that were issued), and were, with others 
 
SALE. 637 
 
 t]M7 kad qpalifiei. dccted directon. Tker tkca pardttacd a nil- 
 vmj thcBwhca, aad tke iMorpomtcd eoapuij, bei^ capovvrcd so to do 
 kj that Act, fvrdMaed tte said railway fixMi thea for $6i&jOOO, pajiag 
 far it bgr teki^g credit for tke aaad w h a g ifii iM and adoMMrlcdp^ indeiit- 
 fdmtm to tke aaid f ovr penou af the haJaMC of |3iSjOM ia efoal sharr^ 
 Oa tke iasol mM-j r of tke aaid iaearpantcd eaaapaaj aad of aaotlier «mb- 
 paar villi vfciek it had beca aaoJgaanted, tlMir railvavs wnv sold, aad 
 tW fffa|inadrat coapaaT, to wIkmb tW syadicate's daiat had bcca a^^anL 
 ilaiid to raak as nvditore a^aiast tli« proceeds of sale: — Hdd, tluit the 
 daiaa Bust be alloved. The iacorporatia^ Art aothorized the pareha«p, 
 aad. whether or aot the price was exressire. evaj amt iaterestcd ia the 
 capital of the roipaay coaoimd ia the paichaae vith full kaomlcd^ of 
 aU the circmstaaces! SahMoa t. Saloaoa. |1»7] A.C. ±2. falhmed. 
 ra^fcMial «rf the SupreaM Court of Caaada, vhich aflbmed the decisiaB of 
 the Exdwi|oer Court, sub. aonu Miaister of Bailvaja r. <)aebee Soafthna 
 Rj^ 10 Caa. Ex. 139, afinaed by the Prirr Ciwai il 
 
 'Attoraey-Ocaeral for Ckaada x. Staaiard Trast Obl of Xev YihIih> [1*11] 
 A.C 498. 
 
 Sum xrsimM stbcal act. 
 
 By 4-^ Edv. VIL e. 1»S, reqtecti^ the South Shore By. Gol aad the 
 Qaehec Soathcsa By. Co., the FariiaaMat of Caaada, awa^ other thii^r^, 
 ft w t h ied that the Exeheq[Ber Covrt n^t <wdcr the sale of the lailvays 
 ■wataaaed aad their accessories &«i sooa as poasiUe aad coareaieat after 
 the f — ^-g of the Act, aad that such railvays aad their acreHories, rr- 
 apeetivriy, should be sold sepaiatdy or together as, ia the opiakia of the 
 Exchequn- Court, vould be bet^ for the iatereets of the creditors of the 
 aaid eoaipaaies. Aa order for such sale was aiade aad tfudi ra leceired ia 
 aeeoidaace therewith: — Held, that ia nrspect of the teaderi ao tvceiTcd. 
 tte statute left it to the Court to detcrauae vhi^ <rf then it vas ia the 
 best iaterests of the oeditors to accept. {±} That, iaananch as if the 
 ptupaty fren sold ia part to oae purchaser aad ia part to aaother, tvo 
 aev aad diverse iate ie ats would arise, aad it would be aeoessaiy to divide 
 the property both nal aad personal, aad to aiake two traaafers iaitead of 
 oae, it was ia the best iaterests of the creditorss, as w«D as of the publir, 
 to accept a tender for the pio pei tjt as a whole, al th ou g h aoA teader 
 was for a less sum, by souk S3J0OO. thaa the af;;^regate ct two separate 
 teaders far distiaet portions of the whole property. 
 
 Hiaister of Bailways t. Quebec Sontbem Ry. Co, 10 Caa. Ex. 119. 
 
 [Afiiiaid fay the Sapreaiie Court of Canada.] 
 
 Bights of rrwctLAsem of aAitwAT at saix — ^I.xcoaroaATiox or compaxt — 
 
 DiKCCTOaS' SALABT SET-OFF. 
 
 A purchaser of a railway doe^ not acquire aa ah^olute right to the laD- 
 way. What be acffoires is an interiai ri;:ht to operate the railway to be 
 followed ap by iacorporation as prorided by s. 280 of 51 Vict. e. 29. (See 
 s. 299 of the Railway Act, R.S.C. 1906, e. 37. « i2i While aa iadepeadeat 
 pun^aser buying with his own Boney and ^ling at aa eahaaced price 
 to a company, with full disrtosore aad without fraud, caa dain his profit, 
 proBioters. who stand ia a fiduciary relationship to the compaay. cannot 
 take SQch profit. Hmce, where promotera bought with the aioBcys of a 
 cMopany iaoMpiwated by theatselres. to whom they turaed orer the pn»p- 
 erty. they were aot permitted to recover again«t the company any profits 
 oa the traasaetioa. (3i A reijaolotion of shardnrfders is necessary to 
 authorize the paymeat of salaries- to directors of a coaapaay. <4 « Hariag 
 regard to the pttt t iahwm of arts. 1031 and 1187 CC.P., creditor? were 
 
638 SALE. 
 
 allowed by the referee to set off the claims of certain debtors, officers of the 
 company, for salaries taken by them without proper authority, and for 
 expenditures made by them out of the company's funds for a purpose ultra 
 vires of the company. No objection was taken to this ruling before the 
 referee, and the Court, on appeal from his report, confirmed such ruling, 
 but expressed some doubt as to the jurisdiction of the referee to set off 
 such claims. 
 
 Minister of Railways and Canals v. Quebec Southern Ry. Co., Hodge's 
 Claim, 12 Can. Ex. 11. 
 
 Judicial sale of railw-ays — Interested bidder — Counsel and solic- 
 itors. 
 
 Solicitors and counsel retained in proceedings for the sale of property 
 are not within the classes of persona disqualified as purchasers by art. 
 1484, C.C. (Que.). The Act, 4 & 5 Edw. VII., c. 158. directed the sale of 
 certain railways separately or together as in the opinion of the Exchequer 
 Court might be for the best interests of creditors, in such modes as that 
 Court might provide, and that such sale should have the same effect as a 
 slier iff 's sale of immovables under the laws of the Province of Quebec. 
 The Judge of the Exchequer Court directed the sale to be bj' tender for 
 the railways en bloc or for the purchase of each or any two of the lines 
 of which the}' were constituted:- — Held, that the .Judge had properly exer- 
 cised the discretion vested in him by the statute in accepting a tender 
 for the whole system, in preference to two separate tenders for the sev- 
 eral lines of railway at a slightly increased amount, and that his deci- 
 sion should not l)e disturbed on appeal. 
 
 Rutland R.R. Co. v. Beique and ilinister of Railways; \Miite v. B^ique 
 and Minister of Railwaj's; Morgan v. Beique and Minister of Railways, 
 ."> Can. Ry. Cas. 421, 37 Can. S.C.K. 30:5. 
 
 Interpretation of contract — Balance of purchase price — Subsidies — 
 Duty of government — Distribution of funds — Pending litigation. 
 
 A stipulation in a contract for the sale of a railway that the balance 
 of the purchase price is to be paid from time to time to the extent of fifty 
 per cent in Government subsidies points to the payment of the balance out 
 of subsidies paid in respect of the residue over and above fifty per cent, 
 not to the payment of the entirety of fifty per cent of the subsidies, as a 
 condition precedent to a demand for payment of so much as has been paid 
 and for an accounting thereof, [.ludgment of Canada Supreme Court re- 
 versed; Irvine v. Hervey, 13 D.L.R. 868, 47 N.S.R. 310, affirmed.] A Pro- 
 vincial Covernnient empowered by statute with the distribution of funds 
 under a railway subsidy contract is not justified in making payments 
 thereon pending an action for tlie deterniiiuition of the respective rights 
 relative thereto and of which the (government had full notice. The proper 
 course to be juirsued by the Crown in a case where it is charged with the 
 (H.stribution of certain funds under a railway subsidy contract that is be- 
 ing litigated and a receiver appointed is either to apply to the Court for a 
 construction of the contract, and to pay accordingly, or to pay the whole 
 amount over to the receiver to be paid out under orders of Court. [Judg- 
 ment of Canada Supreme Coiu-t reversed; Irvine v. Hervey, 13 D.L.R. 868, 
 47 N.S.R. 310, affirmed.] 
 
 Eastern Trust Co. v. MacKenzie, Mann & Co., 22 D.L.R. 410. 
 
 B. Sale of Securities. 
 
 Railway bonds — Power of sale — Notice — Ahoutive auction sale — Sub- 
 sequent private sale — Bona fide purchasers for v.\lue. 
 As collateral security to a promissory note the makers deposited with a 
 
SALE. 639 
 
 bask cutaiB xaflvaj boads, mmd, ly iMiiiiailw of kjrpotkeeuioa, aatli- 
 oriaed tk huk. i^poa defiaolt, '%«■ tiae to tow to seO tke said 
 lies ... by ff^™(S fiA^ea days' aotiee ia oa« dailj paper 
 ia tlw dij «f Otta«« . . . with po««r to tte liaak to bni- i 
 sdD wiHtmt boag liaUe fw anr loss oceaaoaed Aovlrjr.'" I>e^Blt kaTii^ 
 beea ■■df. aotiep of iateatioa to sell vas duly poUisked, aad, pm^oaat 
 to dbe aotiee, tike faoiKU were offered for sale at puUie aactioB, after two 
 poB^aaaBfOte at tte ic^faest <rf the phdgoTj, bat no sale vas aade for 
 «aat of bidders. Tke baak afterwards made a private sale of tke boads 
 vitkoot aay forAcr adiertiseneBt : — ^HeM. that tke words "Inr ^rii^'' in 
 tke ail ■!■ iiliiM were eqiuTakat to "after *iTiag^^ or ~irst •iri]^'^ or 
 "giiiag.^ and ike (oaditioa of paUtfation of tke aotiee karing been fuer- 
 io iw m A , tke power to sdl arose ajad ai^kt be exercised afterwards witkout 
 a fresk notice: — Held, alao, tkat time was aotkiag apoa tke eridrace to 
 skew tkat tke porxchasers were not bona fide pmrkaaers for value or tkat 
 tkcy kad aaj reasoa to ^appose tkat tke kaak a«(e aot antkorixed to sell: 
 aad vader tke>e eimun^tances tke coaslinetiuB of tke power of sale skouh! 
 ■ot be strained ajsain-^t tke pnrduksn-Tv. 
 
 Tomato Goiejal Trusts Corp. v. Geatral Ontario Br. Cou, 3 Can. Ry. Cas. 
 »«, 7 OXJL 6«0. 
 
 [Berened ia 4 Caa. Rr. Cas. 3^: 10 OJ^JL 347.] 
 
 Railwat boxbs — PowE« or sale — XomcE — Abokttve afctiox $ai£ — ^Sr»- 
 
 SBQCE^T rKITATE SALK. 
 
 Jls (oUatM^ seraritT to a p wiian r j note tke makers deported witk 
 a bank 300 railway boads, and, br a mnnoiandiiK of ^rpotkecatioa. 
 aatkorized tke baak, ^oa debnlt. "from tia^ to tiae to sdl tke said se- 
 carities ... by sirin* 15 days' notice ia one daily paper p«ridiA«d in 
 tke city oi Ottawa . . . witk power to tke baak to boy ia and resell 
 aritkoat bonp liable for any loss ooeasioBed tkereby :" — Hrid. rwer^in^ the 
 jadgawat of Street. J., 7 OXJL MO. 3 Can. Ry. Gas. 344, O^ler. J.A^ di^ 
 aeating. that the power wa« to sell by auction and tkat tke baak kad n« 
 power to sell by private eoatraet. Soable tkat. evea if tkoe was power 
 to sM by private eoatraet, tke sale aaade to tke rrnpaartfatii eoald aot. 
 vpoa tke evidence as to tke metkods adopted, be su pp or te d, ttcy kai™g 
 aotiee tkat tke hank keld tke bonds a$ pledgees. 
 
 Toronto General Trusts Corp. v. Central Ontario Rv. Co., 4 Cka. Ry. Cas. 
 350, 10 OT.R. 347. 
 
 SAI.E OF LAND. 
 
 See Title to land. 
 
 For tke purpose of railway, see ExpropriatioB. 
 
 SCHEME OF AREAK6EMEHT. 
 Sac unolveacy. 
 
 flBCnOH MEK. 
 Rc^nlatiaa of sectioa aea, see Railway Board. 
 
 SECUBITIEa. 
 See Bonds and Secarities. 
 
640 SHARES. 
 
 SEIZUBE OF RAILWAY. 
 See Sale. 
 
 SENIOBITIES. 
 
 See Expropriation (Location); Highway Crossings; Railway Crossings; 
 Wires and Poles. 
 
 SEPARATION OF GBADES. 
 
 See Highway Crossings. 
 
 Annotation. 
 
 Apportionment of Cost of Separation. 22 Can. Ry. Cas. 188. 
 
 SEBVICE OF FBOCESS. 
 
 See Pleading and Practice. 
 
 SHAKES. 
 Annotation. 
 
 Transfer of shares and mandamus compelling same. 7 Can. Ry. Cas. 
 373. 
 
 Distribution of shares — Hasty proceedings — ^"General advantage of 
 Canada." 
 
 Meetings of shareholders of a company called according to the distribu- 
 tion of shares for an hour named should not be proceeded with in haste 
 as soon as such hour arrives, but a reasonable delay should be accorded to 
 tardy representatives. Hence, a meeting called for twelve o'clock noon for 
 the election of directors, which is opened by the shareholders present at 
 one minute after twelve and proceeds with the election and constitution 
 of a board of directors, the proceedings being terminated and the meeting 
 closed at ten minutes past twelve, should be deemed, because of such pre- 
 cipitation, as made in fraud of the absent shareholders and should be de- 
 clared illegal and null. When an Act of the Parliament of Canada de- 
 clares a provincial railway a work for the general advantage of Canada, 
 the Railway Act, 1903, applies as well to the railway as to the company 
 constructing or operating it to the exclusion of incompatible provisions of 
 the Provincial Act constituting such company, especially in matters re- 
 specting the mode of, and formalities for, raising the capital stock. 
 
 Armstrong v. McGibbon, 15 Que. K.B. 345. 
 
 Tran.sfer on company's books — Mandamus to enforce tuansfer. 
 
 The owner of two shares of stock in the defendants' railway, assigned 
 them to the plaintiff, endorsing the assignment on the certificate. The 
 plaintiff called at the head office and demanded that the necessary trans- 
 fer should be made on the company's books, and also saw the president; 
 and after some correspondence, the transfer not having been made, he pro- 
 cured a duplicate assignment of the stock, and placed the matter in the 
 bands of his solicitor, who thereupon wrote the company demanding a 
 transfer, and enclosed one of the duplicate assignments, and stated that 
 he would attend on a named hour, ready to surrender the certificate, and 
 have the transfer completed, and, on receiving a reply that it could not 
 then be attended to, this action was brought, in which an order for a man- 
 
SIGNALS AXD WARNINGS. *J41 
 
 damns vas fi*»—*«l Am. iBterlocoUwy otder Bttde bj a Judge m Cham- 
 ber& diractiBg a ■■ndawniT to i^soe, vas, oa app^ to the Dnisional 
 C«Mirt, set asUe, aad tte matter left for deeisioB at tht triaL 
 
 Nelles r. Wwiinir, Essex 4 Lake Shore Bapid By. Col, 7 Caa. Rt. Cas. 
 3S7, 16 OT.R 359. 
 
 LnoTAXiox or issnc 
 
 Tht ftondams of tke Railvar Att as to the organlzatioo of railwav 
 eompaBJes aad the amoont of ^-tocfc suhseriptioBs are prorisioiis aiade for 
 the pvteetiaa of the pubUr aad Kiiist be strietiT foDoved. 
 
 Re Bnrrard lalec Tdiuk-I k Bridge Co., 10 D.L^ 723. 15 Caa. Rj. Ca£. 
 i89. 
 
 SHIPPING KTTJi, 
 See BQIs of Lading; Carriers of Goods. 
 
 SHIPPING SYSTEM. 
 
 See Cars; Traia Serrke; Stations; Intavhange of TralBe; Tolls aad 
 Tirilk. 
 
 SMUNTIHG CAB& 
 lajariea received vkile shaatiag cars, see Emplojees; Ooasi^ Iajark&. 
 
 SmiNGS. 
 See Branch Lines and Sidios^ 
 
 SIGNALS AMD WASHINGS. 
 
 See Crossii^ Injuries: Street Bailwajs: X^igence; Banplojces; Fcaees 
 aad Cattle Guards: Bailvar Crossings; Highwaj CnossiBga. 
 
 LoococT — Signals. 
 
 A anmber of raihraj cars vhich are conneeted aad are forced backward 
 hw the conenssioo made in coopiing will cuBStitate a 'nrain'' b^<»e get- 
 tiag onder var in a forward direction, and where tboe is a statutory 
 oUi^taoa to station a brakeman on the last ear ai a train moria^ re- 
 veradj, the railwar most station the brakeman on the car last em^ed, 
 althavg^ the reverse motion is nsed only in the operatioa of taldag am 
 that ear. [Homager r. CP.R.. 20 AJL'(Oat-i 344. 250. approved.] 
 
 Hels«m r. Morrisev, FCTnie k Michel Br. Co., 1 D-L.B. M, 19 W T.Tt 
 8S5, 17 B.C.B. d5. 
 
 SIGNATUBE. 
 See Contrarta. 
 
 SLEEPING BERTH. 
 See Carriers of Passengers. 
 
 SMOKING CAB. 
 
 See Carriers of Passengers. 
 Caa. By. L. Dig. — II. 
 
(542 STATIONS. 
 
 SPECIFIC PEBFOBMANCE. 
 
 Specific performance of order of Railway Board requiring protection of 
 liighways, see Highway Crossings. 
 
 Specific performance for the sale of lands for railway purposes, see 
 Title to Lands. 
 
 Specific performance of agreements affecting street railways, see Street 
 Railways. 
 
 Annotation. 
 
 Whether mandamus, injunction, specific performance or damages is the 
 proper remedy for the enforcement of covenants by railway companies. 1 
 Can. Rv. Cas. 294. 
 
 SPUB LINES. 
 
 See Branch lines and Sidings. 
 
 STABLES. 
 See Warehouses, Yards and Workshops. 
 
 STATEMENT OF CLAIM. 
 See Pleading and Practice. 
 
 STATION AGENT. 
 
 See Stations. 
 
 STATIONS. 
 
 A. Facilities; Agents. 
 
 B. Bus .Line; Hackmen; Transfer Companies. 
 
 C. Injuries at Stations. 
 
 Agreements respecting telephones in railway stations, see Telephones. 
 Injury to passenger crossing tracks at station, see Carriers of Passengers. 
 Expropriation of lands for station purposes, see Expropriation. 
 Injuries to employees at stations, see Employees. 
 
 A. Facilities; Agents. 
 Flag statiox — Agents — Annual earnings — Grain shipments. 
 
 Under ss. 30 (g), 258, 284 (1) (a) & (3) of the Railway Act, 190«. 
 the Board has jurisdiction to require a railway company, to erect and 
 maintain platforms or freight sheds or any other structures or works that 
 may be deemed reasonably necessary for the protection of property oi 
 the public at stopping places on the railway (known as flag stations) 
 used for unloading and delivering traffic. At such stations a suitable 
 shelter or waiting room should be erected for both passengers and freight, 
 provided with a door and windows, proper platforms and approaches. At 
 stations where the total freight and passenger earnings amount to $15,000 
 per annum, the company should appoint and maintain permanent agents; 
 at points where the business consists principally of shipping grain, and 
 such shipments amount to at least 50,000 bushels, agents sliould be ap- 
 pointed and maintained during the grain shipping season; at points of 
 
STATIOX& W3 
 
 It what a tdcgnfli mwratar is located for tke fcaadlrag of tnsns 
 ke shoaU be jpwnded witb the mteeammrj cfoi^Midt to luadle afl tniffie 
 Oerat. 
 
 Wiuip^ Jobbers. etcL t. Vaa. Pte. cfei Rj. Cos. (Flag statioa ofcseK 
 8 Cam. By. Ci£. laL 
 
 FjuausUM — fbBEXGS KJULVAT — Ofexatiox is C&sjaa — ^Thbimtgii TSJkFnC 
 Aa ■fplii 1 1 ion was nade to the Board for as Mder diractbi^ xhr G.XJL 
 Co. to eoastnict a platfarai aad statMia boOdiae: The N.WjSL a pro- 
 Tiadal lailraj, i n t u rp oi ated bjr aa Act of BritiA CohndMa, had aot 
 becB declared a arork ~for the general adranta^ of Canada " The trabu 
 of the G^JL. a forei^ railwaj a^ed the line of the X.W^ a$ connect- 
 in^ line between its line in the State ci Washb^ton and Vancoorrr in 
 British Orfambia. The latter conpanj nas not dewn to hare anr roll- 
 mg stock or eqaipaeDt. or so far as operation was coocemed to be in 
 aaj wmj a sepuate oi^ganiiatiaa fron the fonner: — ^Hdd. (Ijl that the 
 G^.R. a f<»eign railway, is subject to the jiuiediction of the Board in 
 so far as it operates in Canada. (21 That the X.WJS^ a prorincial rail- 
 waj. altho^^ not declared to be a work "for the general advanta^ of 
 Canada."' bat connecti^ with a railwaj subject to the jnrisdictioB of the 
 Board, is. br s. 8 (b) as regards thrai^k traffic upon it. and all natters 
 apportaining thesvtoi, subject to the Baibrai- Act. (3| That station fa- 
 cilities are ■att n s appertaining to throi^h traffic. ii4l That pn^ier 
 JMJlities iiihonld be pnnided for the safetr and cvBTenicnce of the pub- 
 lic using the trains of the G.X.R. (at If the G.XJL desires to apphr for 
 leare to appeni upon the question of jurisdictioB. the insne of the ord«T 
 ■nr be ddajed for 30 da^s, but, if not. the siae and locatian of the statJMi 
 and idatfomi any be dHined by an engineer of the Board. 
 
 Thrift T. New Westminster Soothem and Great Northnn By. Col, 9 
 Gu. By. Gas. eOtj. 
 
 [Followed in Stewart, etc t. Xapierrille Junction Ify. Go., 12 Can. Br. 
 CasL 399.] 
 
 Skaxioxs — AcctnataoATtojc or ik&ffic. 
 
 The Board has power to order a railway coapany whose line n eoB- 
 pleted and in <^ieratioB to proiide a staticja at any fdace where it is re- 
 4|nired to aJTm^ propn* acconiaodatHni for the traffic on the road. Iding- 
 ton and Duff. JJ.. diseenti^. 
 
 Grand Trunk By. Co. t. Departaaent <rf Agriculture, 10 Can. By. Ca*. 
 84. « Can. S.C.B. 557. 
 
 SfAHOXS AXn PACTUTTE!* FOSOGX KAII.VATS. 
 
 An applicatian to direct the respondent to fornix adequate statiaa 
 ananmiMliliun and satistectory train serriee on its line of railway. The 
 rra|inilinl. a Canadian railway, incwporated by the Pronnce of Quebec 
 «>• opetated by the IMawaie and Hudson By. Col. a foreign conpanr, 
 thraogh its agent and subsidiary company, the Quebec, Hontrcal k, Sonth- 
 era ^. Co, another Canadian eompaay: — ^BehL (1| that the respondoit 
 f « ^V"J **» ■<>* * separate organization and that there was no scfmnte 
 ■"agement. (2) That tmder subs^ 3 of & 2S8 irf the Bailway Act, 
 1906, the Board has jurisdictioB to direct the le^ondent, soli^idized by 
 the Parliameat of fS a n a d a , to maintain and operate suitable stations with 
 suitahle aceommodation or facilities. j3' That under s. 11 <rf S 4 9 
 Edw. Vn., Bailway Act amendment, the Delaware t Hudson and Que- 
 bec. Montreal k Southern By. Cos. w^-nc both ««ibject to direction to main- 
 tain proper train serriee and facUities upon this aectian <rf the line 
 
644 STATIONS. 
 
 [Tlirift V. New Westminster Southern and Great Northern Ry. Cos., 9 Can. 
 Ky. Cas. 205, followed.] 
 
 Stewart and St. Cyprien v. Napierville Junction Ry. Co., 12 (an. Ry. 
 Cas. 399. 
 
 Location — Distance apart — Sparsely settled i,ocai.ity. 
 
 Applications for an order directing the respondent to erect and main- 
 tain stations at Kitsumkalum and Stewart's Landing. The respondent 
 proposed to locate stations at Littleton and Copper River, and if th(!se 
 applications were granted there would be four stations within less tlian 
 eleven miles in a sparsely settled locality. The location of a station at 
 Kitsumkalum would involve a yard on a grade with a bridge over a river 
 at one end and a highway crossing in the neck of the yard, while a station 
 at Stewart's Landing would be about three miles northerly from Littleton 
 and about two miles southerly from Copper River: — Held, that the ap- 
 plication must be refused, and tlie locations proposed by the respondent 
 approved. 
 
 Khy v. Grand Trunk Pacific Ry. Co., 13 Can. Ry. Cas. 22. 
 [Followed in Forward Towiisite v. Can. Pac. Ry. Co., 1-4 Can. Ry. Cas. 
 377.] 
 
 Regular and flag stations — FiiF.ir.irT agent — Accommodation. 
 
 After stations with regular equipment had been maintained at French 
 and Rutter, six miles apart, from 1908 to 1911, Rutter was made a flag 
 station, part of the business was transferred to French, the agent re- 
 moved and a night operator left in his place. Upon complaint by resi- 
 dents (representing that a population of 2,500 was dependent upon the 
 station). the Board, upon the report of its inspector, ordered the railway 
 company (1) to keep a caretaker to look after freiglit, express and mail 
 matter at the station from 7 a.m. to 6 p.m. daily, except Sunday. (2) 
 To see that its conductors sold tickets to people boarding trains at Rut- 
 ter, and their baggage checked without charge, and condemned the prac- 
 tice of leaving freight and express matter in open sheds at flag stations. 
 Per Commissioner McLean: — (1) The railway company had not justified 
 the removal of the agent. (2) The general policy laid down in the Flag 
 Station case, 8 Can. Ry. Cas. 151, has not been modified. (3) By Order 
 No. 6242, railway companies are released from liability for goods un- 
 loaded at flag stations where there is no agent. 
 
 Rutter Station Patrons v. Can. Pac. Ry. Co. (Rutter Station Case), 
 14 Can. Ry. Cas. 1, 8 D.L.R. 711. 
 
 Station — Location of — Change in. 
 
 After approving the location of a station upon a certain lot, the Board 
 will not approve another location of the same station upon a different 
 lot when tlie railway company has refused to carry out its original con- 
 tract with the owner of the first lot. The Board, on fixing tlie location for 
 a railway station on the Transcontinental Ry. at one of two conflicting 
 sites proposed by representatives of settlements closely situated to each 
 other and bearing similar names, will not restrain the location of a sec- 
 ond station at the other site on the application of tiie railway on a case 
 for additional facilities being made out. 
 
 Kelly v. Grand Trunk Pacific Ry. Co. (Hazelton B.C. Townsite Case), 
 14 Can, Ry. Cas. 15, 5 D.L.R. 303. 
 
 Governmental control — Duty as to stations — T^cation — Unjust dis- 
 crimination. 
 
 In deciding between conflicting applications for tiie location of a sta- 
 
STATIONS. W5 
 
 tioB, tke Boud ^oold aair imtrr^eae is the taae td m j»t dkrrhuBHtiaa 
 l*l w «A« the railwaT conpSBT and the ta adw e i ?. !■ deeidias "F** 
 a lontiaa <rf a station, the' Board dMmld aoC deal vith the poasMe 
 growth of a aev tova, imt shoald CBane that the patroBS of the railway 
 ihiwiH be proiided with proper £ari1ities in the pablie iaterest. 
 
 Draid Laadovaera t. Graad Tnmk P»aic Rj. Cou, 14 Caa. Bj. Ca& 
 20. I DJ.R- SS4. 
 
 Statmhcs — Locution. 
 
 The Board refused aa applieatioa for aa order dirertii^ a niilwaj roai- 
 paaj to establish a station at the rraanag of aaother raihraj ahoat 
 tvo Biles distant froai its exi^iin« statioa. where a towasite had bent 
 located, elerators ereeted and a amaicipalitT orgaaized, the nsoal di»- 
 taace betaeea stations beia* ei^t or tea aiika. (Ebjr et aL t. Graad 
 Tkaak Faeifie Br. Co.. 13 Caa. Rr. Cas. 22. foHawedL] 
 
 Foraard r. Caaadiaa Paeifie Bj. Co. (Forward Towaate Case), 14 Caa. 
 Br. Cas. 377. 
 
 SaFETT or STATIO^SS, AFTCOACHCS: A.XB n-&TFO«M<» BaILWAT BkCACV OT 
 
 STAll'IUKT OCTT — NEGLECT TO FTl^ISH SITrTAaLE ACCOM MOBl&TIOS FOB 
 PASSXIXCEKS AT SIATIOJS ABJ^EXCC OF SrrATlOS HOCSt 
 
 Iforrisoa v. Pere Harquette By. Co., 4 O.W.X. .»4t. 27 OXJL 271, affirai- 
 iag; jad^Beat of Brittoa. J., 4 O.W.X. 1S6. 
 
 DCTT AS TO DETOTS SlOTTIXC PUiCES BOABa Of BaILWAT C0MlfIS8I09- 
 
 ESS — Beccxatiox of uicAno!c or ?rATioxs AXD stmxes — Sailvat 
 Exnomxc towxstte — Diskeigakb or Fcauc coxtexibsck. 
 Be Catkaife SUtioas. 7 DJ...B. 641, 21 WJLB. 383. 
 
 GOK^EBXlfESTAI. BECTXATIOX — LOCATION OF STATHMF — ESCX^nEESnCG HFn- 
 
 cTXTiEs — Praijc coxtexiexce: 
 Be Sooth HazeltoB, 8 B±,M. 1036, 22 WX.R. 44i. 
 
 SropnxG rTACBs. 
 
 The Board wiB aot permit a railwaT eoapaaT to ehai^ the plaee at 
 which its prcde(c«$orK ia title were eoBpellcd to sake stops wheie by its 
 Art of iaeorporatioa the aionieipal br-laws ^raati^ fraachiss for the 
 boiUiag of road and desigaati^ soA st(^>pia« piaees were eoatianed ia 
 forre. 
 
 Be Loadoa t Lake Erie Traai^iOTtatioB Cou 10 HJUR. 11, 15 Cka. By. 
 GUI.9SL 
 
 Kbglbct to rcvsnsn ACCoMMoaATiox fob passeixcbbs at statio^v — K\- 
 
 POSr^ or PASREXCCB io coun 
 Where a wran«fal act ha$ oceasioaed exposure to the weather, aad iB- 
 aca* has resulted fron soHi exposore. j>veh ilbK-<i$ is aot to he rv«ar<h^l 
 aa dae to aa iaten e a iag iad ep e a deat came. The rale with regard to re- 
 ■uieaeas of danage is the saaie whether the daatajses are daimed ia an 
 ■tioa of cvatraet or of tort. The iaqfuirr is. what is the aatai al aad 
 ptobaUe coawqaeace of the bmeh? [Hobfas r. Loadoa A Sooth Westen 
 Br. Co. «]875). UB. 10 Q.B. 111. disth^nished. UeHahoa t. Field 
 (1881 ». 7 Q.BJ>. 591. and The Xottia* IIUl (18»4;, 9 PJ). 106, spectalhr 
 refored to:] — ^Aad held, ia thi* rase. afSnaii^ the juigmmt of Brittoa, 
 J., 27 OX.B. 271, that the plaintiff wa* entitled to iimiu lor his losa of 
 health oecasioaed bj the defendants default aad acgieet aad breach of 
 sUtototy oUigation; aad that the jory had rightly Mtaaored the fall 
 
046 STATIOXS. 
 
 amount of his damagt": ss. 284 (1) (a), (7), and 427 (2), of the Rail- 
 vvaj' Act, 1906. The amendment to the Kailway Act, by 7 & 8 Edw. VII. 
 c, 60, s. 10, shews that, even if tlie Board had a right to interfere, the ac- 
 tion of the person aggrieved was not taken away. 
 
 Morrison v. Pere Marquette Ry. Co., 12 D.L.R. 344, !;'» Can. Ry. Cas. 
 406, 27 O.L.R. 551. 
 
 [Affirmed in 15 Can. Ry. Cas. 40G. 12 D.L.R. 344, 28 O.L.R. 319.] 
 
 Failure to provide — Exposure of passenger to elements. 
 
 Tlie failure of a railway company to provide a suitable station house 
 at a regular stopping place, as required l)y s. 2S4 of the Railway Act. 
 1906, renders it liable for the resultant illness occasioned a passenger from 
 exposure to the elements while waiting at night for a train. [Morrison 
 V. Pere Marquette Ry. Co., 4 O.W.N. 544. 27 O.L.R. 551, affirmed.] 
 
 Morrison v. Pere Marquette Ry. Co., 12 D.L.R. 344, 15 Can. Ry. Cas. 
 406, 28 O.L.R. 319. 
 
 Unjust discrimination — Facilities for unloadincl delivery and sale 
 
 OF GOODS. 
 
 Under the Railway Act, the statutory duties of the railway company 
 to furnish facilities relate, in so far as the terminal station is concerned, 
 merely to the unloading and delivery of the goods and do not include 
 facilities for their sale; thus the prohibitions, against undue preference or 
 unjust discrimination in furnishing facilities do not apply to the failure 
 or refusal of a railway company to allot space to a wholesale fruit firm 
 in a building owned by it used by other fruit dealers as a market into 
 which railway tracks run. [Re Western Tolls. 17 Can. Ry. Cas. 123, 
 pp. 148 to 156; Twin City Transfer Co. v. Can. Pac. Ry. Co., 15 (an. Ry. 
 Cas. 323, followed; Purccll v. Grand Trunk Pacific Ry. Co., 13 Can. Ry. 
 Cas. 194; Donovan v. Pennsylvania Ry. Co., 199 U.S.R. 279; South Western 
 Produce Distributors v. Wabash Ry.Co., 20 I.C.C.R. 458; Cosby v. Rich- 
 mond Transfer Co., 20 I.C.C.R. 72; Perth General Station Committee v. 
 Ross (1897), A.C. 479, at pp. 479. 482: Barker v. Midland Ry. Co., 18 
 C.B. 46, referred to.] 
 
 Cuneo Fruit & Importing Co. v. Grand Trunk Ry. Co., 18 Can. Ry. 
 Cas. 414. 
 
 [Followed in Congreave v. Can. Pac. Ry. Co.. 19 Can. Ry. Cas. 423.] 
 
 Closing — Revenue — Agent. 
 
 The Board has fixed an arbitrary amount of $15,000 as the revenue 
 which a railway company should derive at a station to warrant it in 
 ordering the maintenance of an agent. 
 
 Ozias v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 425. 
 
 Passengers — Arrival and departure — Facilities. 
 
 Tlie obligations of a carrier are to provide proper facilities for the ar- 
 rival and departure of passengers subject to regulations for the proper 
 l>olicing of its station premises. [TSvin City Transfer Co. v. Can. Pac. 
 Ry. Co., 15 Can. Ry. Cas. 323, followed.] 
 
 Twin City Transfer Co. v. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 435. 
 
 [Followed in Congreave v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 423.] 
 
 Facilities — Convenience of public. 
 
 Notwithstanding continued failure of a railway company, as lessee, to 
 meet its obligations to another railway company, as lessor, for existing 
 privileges in connection with the joint use of station premises, the lessor 
 may be required to extend further privileges to the lessee in such premises. 
 
STATIONS. 647 
 
 iff it be ifci ■■ ffcat saA farther iMlti le ges are Becxasarr to eaaUe tht 
 lessee to aliwd frafer eoamaieaee aad f a rilit i e i t to the public 
 Cu. TiathiiB Bj. Col t. Gnad Tnuk Rjr. Ool, 20 Caa. Br. Ca& 67. 
 
 ■A f ff uiAU PCPT or waaiAyKvr acext — EAasis&s. 
 
 Wbere tbe euaiags at a statioe, apart fmai graia. from a eoasiderable 
 powat^e of the total earaiaga, anoaati^ to at least ^Slo.OOO. a per. 
 ■nacat agiat AooM be appoiated. The exprcsnoa "priacipaDj^ ia aee- 
 tiam 5 of Gcaeral Ord«- No. »4, dated Jaanarr S, 1910, is aot to be coa- 
 5traed as aieaaia^ that ia cases vheie the graia aaoTemeat is the priaeipal 
 bosiaess. or even eoB^ritiites BK»e thaa 50 per ccat of the whole caraii^s, 
 seetioa 4 is aot to appir. 
 
 Oakdale Grain Growers Assn. r. Grand Tmak Pacifie Rt. Co^ 20 Cu. 
 Rt- Cas. 70. 
 
 Location — JraisDicno^;. 
 
 The qoestioB ol a kxatioa of a station, onder s. 258 of the Railvar Act, 
 IB catircljr a matter for the Board's diseretioa. abieh caa be exervtaed 
 irrrspertiTe of apparent conflict of agTeements and ratifjii^ Acts. [Ottawa 
 r. Canada Atlantic and Ottawa Elec. Rj. Cos. (Bank Street Subwar Case). 
 33 Caa. SuCR. 376. 5 Can. Rj. Cas^ 126. referred to.] 
 
 VaacoaTer r. Vaacoarer. Victoria 4 Eastera Rt. etCL, Col, 20 Caa. Bf. 
 CasL 72- 
 
 Statiox acest — Bah. ass watex — Eabxix«s. 
 
 Under s. 333 *(3« of the Bailwaj Act. 1906. when a rail carrier <^nbject 
 to the jnrisdiction of the Board owns, operates or itses a water carrier 
 as a direct roaaertion with the parent rail carrier, between anj Caaadian 
 iMBians of the rail carrier amd another port ia Canada, the earaiags f<M- 
 the watnr portion shoald be considered as part of the throi^ route and 
 tolL Applying this principle to shipments of siHer lead arr from Xew 
 Hazletoa to Vaacomrer. the earaiass at the former station were fooad li^ 
 the Board to jostifr the retention of a station agent at that pmnt. 
 
 Grand Tnmk Pacific Bt. Co. t. New Hazelton. 20 Gu. Bj. Ca& 169. 
 
 FtAc sTAnox — DiscBcnox — £AKXT:\es — Acext. 
 
 The practice of the Board is not to direct that a A»g statioa shall be 
 ■mde aa agcncr poiat naless there is a bosiaess of $15,000 per aaanm 
 at the poiat ia qnestioa. Carriers, with a view to expaadiag bosiaess. 
 hare a wider diseretioa to aoke ventures in creating agencr pmats thaa 
 the Board. Where the earning power of a carrier at a statioa is low the 
 matter to be coasidered is what accommcdation it is leaaoBable lor the 
 paUic to expect. 
 
 Be Lower Argrle Statioa, 21 On. Br. Cas. 434. 
 
 LOCAIHKX or STATIONS FLAG SIAIHKf — JilSCMEnOS — BEAS03rABIJB TACIU- 
 
 TIES. 
 
 The general iateatioa of the Bailwaj Act is timt the iaitial diseretioB 
 as to the loeatiaB of stations shall be with the carrio-. The Board is 
 ji^ified ia iatoreaiag oahr when there has been aa aareasanable exercise 
 of this diseretioa, or vhea there are exeq>tioaaI eiicamstaaeesw la ad- 
 jndicatiag on the kteatiaa of stops the Board wiD take into eonsidnatioa 
 the aremge «f eoaweaicaee to the public aad the oUigatioa of the carriers 
 to afford rcasoaahle facilities, haring ia view the aatore of traffic <m the 
 zailwaj, aad will give due regard to the ^ect of addititmal stops am. the 
 
648 STATIONS. 
 
 ability of the carriers to give efficient through service in fOini)otition with 
 other lines, 
 
 Hartin et al. v. Can. Northern Ry. Co. {Twin Elm Flag Stop Case), 
 21 Can. Ry. Cas. 437. 
 
 Station agent — Adequate service — Api'Oixt.mknt. 
 
 The Boaid refused an application for tlie appointineiit of an agent 
 where it appeared that it was almost impossible for railways to obtain 
 agents to nuui stations much more important than the 4tli class station 
 in question, and an agent could not be installed without depriving a 
 more important station of adequate service. 
 
 Edmonton Board of Trade v. Can. Northern Ry. Co. (Legal Station 
 Case), 24 Can. Ry. Cas. 7. 
 
 Stations — Agents. 
 
 The Board allowed the agents at five stations to be dispensed with and 
 refused the application in the case of six others. 
 
 Re Quebec, Montreal & Southern Ry. Co., 24 Can. Ry. Cas. 229. 
 
 Flag stations — Necessity for approval of Board. 
 
 When a railway companj' opens a station and appoints a permanent 
 agent there, business in that locality is built up on the assumption that 
 the station will continue to be a permanent station; and the Board should 
 be consulted and the representatives of the public heard, before such a 
 station is closed, or turned into a mere flag station. 
 
 Re Removal of Agents from Agency Stations, 27 W.L.R. 387. 
 
 Facilities — Traffic — Stations — Sidings — Existing highway — Dis- 
 advantages — Offset. 
 
 The Board will not order a carrier to provide facilities for traffic, such 
 as stations or sidings in order to otfset existing highway disadvantages. 
 The Board refused to order the construction of a freight shed, shelter and 
 siding half way l)etween two stations, eight miles apart. [Pheasant 
 Point Farmers v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 13, 7 D.L.R. 887, 
 followed.] 
 
 Kelly V. Grand Trunk Ry. Co., 24 Can. Ry. Cas. 367. 
 
 B. Bus Line; Hackmen; Transfer Companies. 
 
 Cabmen and 'busmen — Designation or placp:s for vehicles to stand — 
 Discrimination. 
 
 A cabman or 'busman carrying on a general business has no special 
 rights in connection with traffic to or from a railway station. He has a 
 general right to take his cab or 'Inis to the station for the purpose of dis- 
 charging passengers; and he has the same right to back his 'bus up to 
 the station platform, at a convenient spot for receiving passengers. The 
 railway company is under an obligation to see that passengers are not 
 unduly importuned by cabmen or 'busmen at or on its platform; and in 
 the discharge of that obligation, the railway company has the right to 
 designate tlie points where the traveling public will be received from cabs 
 and 'busses, and where they will go for such conveyances on the arrival 
 of trains. [South Western Produce Distributors v. Wabash Ry. Co., 20 
 I.C.C.R. 458; Donovan v. Pennsylvania Ry. Co., 199 U. S. 279, distin- 
 guished.] 
 
 Purcell v. Grand Trunk Pacific Ry. Co., 13 Can. Ry. Cas. 194, 28 W.L.R. 
 689. 
 
 [Affirmed in 15 Can. Ry. Cas. 314.] 
 
STATIONS. 6ft» 
 
 SlAXIo:!C VUCAB — SKJUBOKAKf wmoct-MaBss. 
 
 Am appeal fraa tke jadl^at «< the Board restramiap tlK rerpnaJft 
 «■ jntly iiiiiiwiMli^fc agumst ttm applieut, vas diiiiiiiiinril with 
 to the eat&ag special dRu^rtaBce*, hurtt viOMat nrtroii^ W 
 sMh iiiWBiiel to cast aajr *— ht spaa the ri^t of Oe appeOaaits to 
 take anch steps as aHnr he ■eeeoaair to auiataia order vithia the I«its 
 df its otafiaB eraaaad. * [PbtcU t. Graal Tnnk Placilic St. Gol, 13 Cajb. 
 Rr. Cas. IM, aCnaed.] 
 Gkaad TniA Faofie Rr. Oa. r. PareeD, 1^ Caa. Br. Ca& 314. 
 
 Hacks, cjubuasos — ExcursiTE rmrraxsjEB. — DiscmaasjUMtiS. 
 
 The ^raat tnr a raihrar wMipaay to oae traasfcr «r has HiMtnay of the 
 e&daMvc pririlep of soUntiog paascagets oa dtpet p«iip eitj is aot aa 
 aajmt diKTiwaatiaa a^uust aaother tiaacfcr in^paaj aithia the ia- 
 hihitina «f h^ f»t. 317^ of the Baifrar Act, IMM^ ahkh prmat& dis- 
 criwaatiaa httona pasecagen^ ihippi 1 1 aad caaa%aecs of irv^ht. kan 
 dors aot LumLt i a the a geaei f s oa^hnnd for nceiriagr or delrnriii^ txadfe. 
 at, to. or froB railwar ^tatioas^ [Parall t. Giaad Tvaak Parifir Rj. Gou 
 13 Caa. Rt. Cas- IM. distiagaished.] :Sare a raiHraj itatioa is private 
 pnipertT as h e fe ea a railaaj ccaqpoaj aad the ^nMval pakiir esiteptii^ 
 who have oKcasma to ase it for the paipum. of txaaspoetotioa. the 
 ■jT aaj ^raat the cselB$rve pririi^e to a has or traarfcr owprfr 
 af aolicitiasr aithia its itotaoBs the carriagie of poascatgas aad hagwa^. 
 A laHaaj cwpaar fast prahihit the mcipC aad diarhaif y of pao»a- 
 fVTs aad baggiCie at atotioa plationas hnr aH hat oae has or tiar fin- eom- 
 paar. iftha^h icaaaaaUe rrgalitiaaa Baj he iMpoaed oa the priiil^r: 
 tiaee the railaaj ra^paaj'a datr to ir:$ posseagns mfaiivs that aderfaate 
 aad aaitahie awaMaadatioaa he faraiihed for the arrival aad de|nrtaie 
 of pasocapns aad their hog^i^ fmaa statioas hy smA Mcaas as ihr 
 latter Bar deare to ca^^jr. rParteO t. Graad Traak Facifie Rj. C«u 13 
 Caa. Sty. Cas. l»i: DoMwaa t. Feaarrlraaia Col. 199 UJSJL 279; Soath 
 Woiten Prodare Di^trihaton t. Waha^ Rr. Co_ 39 latcvstate Oaa- 
 ■eree R. 45»: aad Crashnr t. Fifhaanad IVaa^fM- Cou. 23 latcntoto Cob- 
 ■arci R. 7% l e fa tt d to.] 
 
 Tvia CiCT Traaafrr Col t. Caa. Fm. Rt. Col, 11 DJLS. 744, IS Cka. 
 Rj". Casu Sa 
 
 [Followed ia Tvia Cilj Traa^cr Co. t. Caa. Pae. Rr. Cou Id Cu. Rr. 
 Ca^ 433: C^wo Frait. rte, Co. r. Graad Tradk Rr. Cou 18 Cu. Rt. Ckk. 
 414; Coa^reare r. Caa. P»e. Rr. Co. 19 Caa. Rr. Ck& 423; dijtiii^aiahed 
 ia CitT TrajKfer Co. v. Cta. Xorthna Rr. Cou 19 Cwa. Rr. Ca^ 4*7. 
 
 UsxrsT mtscmaaicATias — ^Ta&^srEx comtaxies. 
 
 A carrier anr ivat space ia its station to tiaa$fer conpaaies oa dif- 
 ficnat tnraK for each withoot cowng aithia the iahihitiaBS as to dis- 
 csiauaatioa coatoiard ia s^^ 2S4. 317 of the RailaaT Act, 190S. 
 
 Taia Citr Traa^fer Co. r. Cka. Par. Rr. Co., IS Caa. Rr. Ca^ 433l 
 [Foiloved io Co^rcare r. Caa. Fae. Rr. C«u 19 Cka. Bj. Ca«. 423.] 
 
 UsxcsT BUscatacc^Tiox — C^itnas — Siatioxs — IkiL^csim co3crAxiK& 
 
 A carrier Mar aHoc space ia its station to traasicr foi|Mait oa 
 differcat teras for each vithcat coaiap aithia the iahAitiaas as to di«- 
 rriaiaatiaa coataiaed ia m^ 2§4. 317. of the Railoar Art. 19IWL [Taia 
 CitT TVaasfn- Col r. Cka. Pkr. Rr. Co. ]C Caa. Rr. Cas. 433. foUoared.] 
 Baaff liretr 4 Bnwira t. Cu. Pac Bj. Co, 19* Cka. Br. Gas 4±jl 
 
050 STAT10:S'S. 
 
 Passengebs — Arrival axd departure — Facilities — ^Police regulations. 
 
 The obligations of a carrier are to provide proper facilities for the 
 arrival and departure of passengers, subject to regulations for proper 
 policing of its station premises within which the allotment of space falls. 
 [Twin City Transfer Co. v. Can. Pac. Ry. Co., 15 Can. lly. Cas. 323, 10 
 Can. Ry. Cas. 435, followed.] 
 
 Banff Livery & Busmen v. Can. Pac, Ry. Co., 19 Can. Ry. Cas. 425. 
 
 Unjust discrimination — Facilities — Passengers. 
 
 A carrier's obligation, at a station, to its passengers, is to provide 
 proper facilities for their arrival and departure, but it is not permitted to 
 discriminate between passengers so using its facilities by ss. 284 and 317 
 of the Railway Act, 1906. [Twin City Transfer Co. v. Can. Pac. Ry. Co., 
 15 Can. Ry. Cas. 323, 16 Can. Ry. Cas. 435; Cuneo Fruit & Importing Co. 
 V. Grand Trunk Ry. Co., 18 Can. Ry^ Cas. 414, followed.] 
 
 Congreave v. Can. Pac. Ry. Co., 19 Can. Ry. C as. 423. 
 
 Jurisdiction — Public interest — Contract. 
 
 Where no public interest is involved, and no inconvenience results to 
 the public by the operations at a railway station of two transfer com- 
 panies, the Board will not interfere between them on the mere question 
 of their contractual rights, which should be decided in the regular Courts. 
 Complaint of breaches of contract to whicli the applicant and respondent 
 are parties. [Twin City Transfer Co. v. Can. Pac. Ry. Co., 15 Can. Ry. 
 Cas, 323, distinguished.] 
 
 City Transfer Co. v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 427. 
 
 C. Injuries at Stations. 
 
 Station buildings — Plankeu way— Invitation to public to use — Duiy 
 OF company. 
 
 The approach to a station of the Grand Trunk Ry. from the highway 
 was by a planked walk crossing several tracks, and a train stopping at the 
 station sometimes overlapped this walk, making it necessary to pass 
 round the rear car to reach the platform, J., intending to take a train at 
 this station before daylight, went along the walk as his train was coming 
 in, and seeing, apparently, that it would overlap, started to go round the 
 rear, when he was struck by a shunting engine and killed. It was the 
 duty of this shunting engine to assist in moving the train on a ferry, and 
 it came down the adjoining track for that purpose before the train had 
 stopped. Its headlight was burning brightly, and the l)ell was kept ring- 
 ing. There was room between the two tracks for a person to stand in 
 safety. In an action by the widow of J. against the company: — Held, Four- 
 nier and Gwynne, JJ., dissenting, that the company had neglected no duty 
 which it owed to the deceased as one of the public: — Held, per Strong 
 and Patterson, JJ., that, while the public were invited to use the planked 
 walk to reach the station, and also to use the company's premises, when 
 necessary, to pass around a train covering the walk, there was no implied 
 guaranty that the traffic of the road should not proceed in the ordinary 
 way, and the company was under no obligation to provide special safe- 
 guards for persons attempting to pass round a train in motion: — Held, 
 per Taschereau, J., that the death of the deceased was caused by his own 
 negligence. Decision of the Court of Appeal, 16 A.R. (Ont,), 37, affirmed. 
 
 Jones V. Grand Trunk Ry. Co., 18 Can. S.C.R. 696. 
 
STATIOXS. 651 
 
 ACOOUMCOXTKKS SXATIOX AT KAILWAT CSOSSIXG IXJCKT TX> PASSEXCES 
 
 CBOSSI3(G TBACX. 
 
 A f ftiimgrr aboard a railvar traiii. stormbound at I>, left tbe train 
 aad attwipted to walk tbroi^h the storm to his home, a few miles dis- 
 tant. Whilst proceeding along the railvaj. in the direction of an adjacent 
 puUic highway, he vas struck Imt a locomotive engine and killed. Thcfc 
 vas no de|ioi cv agmt maintained br the company at L^ bat a room in a 
 ■■■■11 boiMipg tb»e vas used as a vaitii^ room, pasea^er tickets were 
 sold and furs efaaiged to and from this point, and. for a number of Tears, 
 trarelns had been allowed to make uae of the permanent iraj in order 
 to rracfa the nearest higfanays. there beinu d«> other pa»9«ge way pro- 
 Tided. In an action by his administrators for damages: — Held. Tasche- 
 reau and Kii^. JJ., dissenting, that, notwithstanding the long oso' of 
 the permanent way in passing to and from the highways by paaw nguh 
 takii^ and leaTing the company's trains, the deceased could not, under 
 the circumstances, be said to have been there fay the invitation or license 
 of the eompauT at the time he was killed and that the actioa would not 
 lie. 
 
 Giand Trunk Ry. Co. t. Anderson. tS Can. S.CJL 54L 
 [Referred to in' Burke t. British Columbia Elec. Ry. Col, 7 B.CJL 88, 
 followed in De \'ries v. Can. Pac. Ky. Co.. ±0 Can. Ry. Cas. 375.] 
 
 Statiox Btnintxcs — Dangebots way — Ixtttatiox o« ucejksk. 
 
 Tke approach to a stati<m from the highway was by a plaaked walk cross- 
 ing several tracks, and a train stoppii^ at the station sometimes over- 
 lapped this walk, making it necessary to pass around the rear ear to reach 
 the platform. J., intending to take a train at this station before daylight, 
 went along the walk as his train was coming in. and seeing, apparently, 
 that it would overlap, started to go round the rear, when he was struck 
 bj a shuating engine and killed. It was the duty of this shunting engine 
 to assist in moving the train on a ferry, and it came down the adjoining 
 track for that purpose before the train had stopped. Its headUght was 
 burning brightly, and the bell was k^»t rii^ng. There was room between 
 the two tracks for a person to stand in safety. In aui action by the widow 
 of J. against the company: — SeM. aflhming the judgment of the Court 
 ci Af^eaL 16 A.R. (Ont.) 37, Foamier and Gwynne, JJ., dissenting, that 
 the eompany had neglected no duty which it owed to the deceased as one 
 of the public: — Held, per Stroi^ and Patter^son. JJ., that, while the pab- 
 lie were invited to use the planked walk to readi the station, and also to 
 use the company's pr«uses. when necessary, to pass around a train cover- 
 ing the walk, there was no implied guaranty that the traffic of the road 
 dmtld not proceed in the ordinary way, and the company was tinder no 
 obligation to provide special safeguards for persons attempting to pass 
 around a train in motion: — Hdd, pa- T aechcrea a, J., that the death of 
 the deceased was caused by his own negligenee: — Held, per Patterson, J.: 
 — In an issue of neglignce, the jury should be asked, ''What was the doty 
 which you find to have been neglected?*' 
 
 JoM T. Grand Trunk Ry. Co. (1889), 1 S.a Cas. 262, 18 Can. S-CJL 
 
 [Referred to in Anderson t. Grand Trunk Ry. Co, 24 AJL (Ont.) 672; 
 Tabb T. Grand Trunk Ry. Co., 8 O.LR. 203.] 
 
 ArpnoACH to station — Gcabds — Rate of srcEO — OBsrarcnox. 
 
 When a railway train approaches a station, at the ordinary speed 
 (twelve miles an hour) at whi^ a train prepares to stt^. at a plaee w^oe 
 tiw Board has not oidned guards to be put, and whid is not shewn to be 
 
052 STATIONS. 
 
 a populous part of a city, town or village, and where all the warnings 
 required by law have been given, the company is not liable for an accident 
 caused by the engine striking a carriage driven in an imprudent manner 
 and at an excessive pace, even when freight cars, placed on a siding, have 
 obstructed the view of the arriving train, the company having a right to 
 utilize the sidings for the purpose of stationing such tars there. 
 Filiatrault v. Can. Pac. Ry. Co., 18 Que. S.C. 491. 
 
 Daxgkkols way to station — Sloping platform. 
 
 The plaintiff, a contractor for supplying milk to the defendant's dining 
 cars, after having delivered the milk in the freight shed, was returning 
 with the empty milk cans, as was Iiis usual practice. He was proceeding 
 around the south-west corner of the station, down a sloping platform, at 
 a run, when just at that time a train on the shunting track, which he 
 lia<l to cross, arrived a short distance north of the sloping* platform and 
 the sidewalk which lead from it across the track. The plaintiff fell and 
 the hind trucks of the nearest car passed over his foot: — Held, (1) that 
 the sloping platform was a dangerous way under the cij'cumstances and 
 its structure in that way negligent. (2) The omission to ring a bell or 
 blow a whistle or give some other proper signal to indicate the approach 
 of the train, and that the engine was backing down the slmnting track 
 at an excessive and dangerous rate of speed, were acts of negligence. 
 (3) The proximate cause of the accident was not the heedlessness of the 
 plaintiff in running, but the dangerous character of the sloping platform, 
 which prevented him from avoiding the accident when he perceived his 
 danger. 
 
 Hansen v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 429, 4 West. L.R. 385. 
 
 [Affirmed in 40 Can. s!c.R. 194, 7 Can' Ry. Cas. 441; adhered to in Bird 
 v. Can. Pac. Ry. Co., 1 S.L.R. 270, 8 Can. Ry. Cas. 314; distinguished in 
 Isbister v. Dominion Fish Co., 19 Man. L.R. 443; relied on in Toll v. Can. 
 Pac. Ry. Co., 1 Alta. L.R. 332.] 
 
 XONRKPAIR OF ROADWAY IN STATION GROUNDS. 
 
 Where one is injured by the want of repair of a road in the station 
 yard of a railway company, and the road is one which is used by the 
 public openly and constantly as a road for teams, and there is no notice 
 or other indication that it is not intended to be so used, the fact that the 
 company has provided another road in good repair, which might have been 
 used, is no defence, in the absence of contributory negligence, to an action 
 for damages for such injuries. 
 
 Thompson v. Grand Trunk Ry. Co., 14 Can. Ry. Cas. 99, 5 D.L.R. 145. 
 
 Failure to open vestibule doob at station. 
 
 Where a railway company negligently omitted to open the vestibule 
 door of a day coach on arrival at a passenger's destination, and the pas- 
 senger, in his efforts to get off the train, went to the next coach to find 
 an open vestibule from which to alight, and the train was, by that time, 
 pulling away from the station at a speed of three or four miles an hour, 
 there was nothing in the rate at which the train was proceeding to make 
 it manifestly dangerous for the plaintiff to attempt to get off, and such 
 course on his part was not contributory negligence. [Keith v. Ottawa & 
 New York Ry. Co., 5 O.L.R. 116, applied.] 
 
 McDougall V. Grand Trunk Ry. Co., 8 D.L.R. 271, 14 Can. Ry. Cas. 316, 
 27 O.L.R. 369. 
 
STATITES. 653 
 
 STATDTE& 
 See Coasdtviioiuil Law. 
 
 StjlTCTES AIMXmB F»OM ESGLAXD — EFFECT OF E^CGUSH DETISIOXS. 
 
 A statute prartieallr copied fro^ an English Act i» taken subje<rt to 
 jadkial deeiskm^ apoa it p^m ia Ei^lamL [Trimble r. HilU 3 A.1 . Hi, 
 referred to; PWtit r. Can. Northern Rv. Co. (Xo. li. 7 D.L.IL 645. 
 varied.] 
 
 Pettit V. Can- North. Ry. Co. (No. 2), U DJ^R. 31«, 23 Man. LR. 213, 
 15 Can. Rt. Cas. 27± 
 
 GossTsccnos of sTATimES. 
 
 The artieles of C.C.P. being deiired from the Fhgiiah law, the terras and 
 expressions used therein are to be interpreted aecMdii^ to Ei^lish prac- 
 tice and jurispnidenoe. 
 
 Fei«l«nan t. MoBtml Street Ry. Co^ 3 DX.R. 125. 
 
 [Bervsed in 7 DX.R. 6. 22 Qw^. K-B. 102.] 
 
 Cox»i«rcrios — ^Latxs stati-ik to costwm. — Acts of saxk sessukx — ttm- 
 rcexAxcT. 
 
 If there be a repa«!nancj between two statutes passed at the same sesf^ioa 
 aS the Legislature, the later statute will prevail, and where there is no 
 other mode of distuMtion as to date, the chapter of the annual statutes 
 benrii^ the higher number may be presumed to be latn- in date. [R. t. 
 Justices off Mkidlenex, 2 B. 4 Ad. 81S. followed.] 
 
 British Columbia, Elec Ry. Co. t. Stewart, 16 Can. Ry. Ca«. 54, [1913] 
 A.C. 816, 14 D J-R. 8. ' 
 
 SCTTCCG OCT ACnarWEXT BrXMXG EFFECT. 
 
 An a g r temen t set oat in a schedule to a statute haa the same ^eet as 
 if it were a elanae in the statute. [25 DJ-IL 2S. 22 B.C.R. 247. affirmed.] 
 
 Can. Northern Pacific Ry. Co. t. New Westminster, 36 DXJL 505. 
 [M17] A.C. 602- 
 
 O0XST«CCnOX HiGHWAT cnOSSED BT KAILWAT ^TXAXSFEB F*OH 03rTAUO 
 
 TO DOMIXIOX P OIE-MI AIXT ESISTtSG AT TDOL 
 
 The proper constmetion of s. 2 of 59 Viet. e. 11, authorizing the trans- 
 fer from the Govemmmt of Ontario to that of the Dominloa of any lands 
 theretofore taken by the railway company for its roadbed is. that soeh 
 transfer shall not affect or prejudice the rights of the public with respect 
 to the only common and public highways which wrrv in existence at that 
 time, namely, those potentially existing in the 5 per cent acreage reserved 
 in all GoTemment lands by the order-in-council of 1866. 
 
 Can. Pac Ry. Co. t. Ontario Department of Public Works. 24 Can. Rt. 
 Caa. 231, 58 Can. S.aR- 189. 45 Di-R. 413, 
 
 STAY OF FROCEEDIHG& 
 See Pleading and Practice. 
 
 STOCK. 
 See 
 
654 STREET RAILWAYS. 
 
 STOP-OVER. 
 
 Stop-over privileges in tlie regulation of tolls, see Tolls and Tariffs; 
 Tickets and Fares. 
 
 STOPPING-PLACES. 
 
 See Stations. 
 
 STREET RAILWAYS. 
 
 A. Franchises; Construction. 
 
 B. Use of Streets; Wires; Poles; Rails; Snow. 
 
 C. Fares; Car Service. 
 
 D. Municipal Ownership; Bonus. 
 
 E. Regulation; Railway Board. 
 
 F. Negligence; Contributory; Ultimate. 
 
 G. Duty towards Passengers; Injuries to. 
 H. Ejection from Cars. 
 
 I. Injuries to Animals. 
 
 See Constitutional Law; Damages; Emploj'ees; Negligence; Notice of 
 Action; Nuisance; Pleading and Practice. 
 
 Street railway crossing other railway, see Railway Crossings. 
 
 Injuries resulting from crossings of electric wires, see Wires and Poles. 
 
 Sale of street railway and equipment in satisfaction of bonds and secu- 
 rities, see Sale. 
 
 Ilegulatioii of street railways by Railway Board, see Railway Board. 
 
 Criminal liability for negligence endangering life, see Crimes and Of- 
 fences. 
 
 Advertising contract with street railway, see Contracts. 
 
 Expropriation of lands for street railway purposes, see Expropriation. 
 
 Powers of provisional directors to contract under Electric Railway Act, 
 see Provisional Directors. 
 
 Powers of power company to erect poles on highways, see Corporate 
 Powers. 
 
 Annotations. 
 
 Speed; Warnings; Negligence. 2 Can. Ry. Cas. 19.3. 
 
 Scope of conductor's authority. 2 Can. Ry. Cas. 201. 
 
 Right of municipality to stipulate for a percentage of the gross earn- 
 ings for permitting exercise of francliise by street railway. 6 Can. Ry. 
 Cas. 393. 
 
 Reciprocal duties of motorman and drivers of vehicles crossing tracks. 
 1 D.L.R. 783. 
 
 Contributory negligence of child injured while crossing highway. 
 Hargrave v. Hatt, 9 D.L.R. 521. 
 
 A. Franchises; Construction. 
 Franchises — Conditions as to pav>:mkntr. 
 
 The Toronto Street Ry. Co. was incorporated in 1861, and its franchise 
 was to last thirty years, at the expiration of which period the city could 
 assume the o^vner8hip of the railway and property on payment of the 
 value, to be determined by arbitration. The company was to keep the 
 roadway between the rails, and for eighteen inches outside each rail 
 
STREET RAILWAYS. 655 
 
 paved and iiiaeaidaaBizcd aad in good repair, osiiig flie same nntcrial 
 as that OB the rpnainder <rf the stmt, but if a panaweBt pavcnodt donld 
 be adopted by the eitr, the eonpany vas not bound to wmMii KJ t a like 
 paTODMit betifreen the rails. ete„ bat was onhr to pay the c<Kt priee of the 
 ^ame. not to exceed a specified sum per yard. The eity laid upon certain 
 streets travnracd hv the company's railvay permaneot parements of cedar 
 blocks, and issued debratuns for the whole c«>«t <a>f such work&. A by-lav 
 was then passed, charging the eranpany with its^ portion of such easts in the 
 mannci- and for the period that adjacent owners were assessed, tnder the 
 Municipal Act for local improTements. The company paid the serinai 
 rates aaseased vp to the year 18S6. bat refused to pay for sofaseqaent years, 
 on the gromd that the cedar block parement had proved to be by no 
 Tann permanent, bat defectire and whoUy insnffieient for streets npon 
 aAich tiie railway was operated. An action baring: been brooght by the 
 atf for these rates, it was held that the company was only liable to pay for 
 prims wrnl roadways, and a refaenee was ordered to determine, amoi^ 
 other things, whether or not the pavements laid fay the city were pemmn- 
 ■ent. This reference was not proceeded with, but an agreement was altered 
 into by which all matters in dLspnte to the end of the year 188S were set- 
 tled, and thereafter the c<»ipany was to pay a specific som annually per 
 ■ule in lien of all claims on account of debentores mataring after that 
 date, and '''in lien of the companys lialnlity for cs— Uu c ti oa, reaewal, 
 maintenance and repair in respect of all the portions <rf streets oeenpied by 
 the company's track so long a$ the franchise of the company to use the 
 said streets now extends."^ The agreement provided that it was not to af- 
 fect the rights of either panhr in respect to the arbitration to be had if the 
 dtjr took over the railway, nor any matters not specifically dealt with 
 thernn, and it was not to have any operation "beyond the period over whiich 
 the aforesaid franchise now extends." This a g re en w a it was ratified by an 
 Act of the legislature passed in 1S90. which also provided for the holdinsr 
 of the said arbitratian, which having been entered npmi the city claimed 
 to be fsid the rates '^imi— J npon the company for eoBstmetioD of per- 
 manent pavements for which dehentnres had been issued payable after the 
 tenunatian of the franchise. The arlntrators having refused to allow this 
 daiaL an action was brought by the city to recover the said amount. HehL 
 affirming the decisioB of the Court of Appeal, that the claim of the city 
 coald not he allowed; that the said agreement discharged the company 
 from all liability in respect to construction, renewaL maintesanee and re- 
 pair of the said streets : and that the danse {wovidii^ that the a g r ee me n t 
 shoold not affect the rights of the parties in respect to the arbitration. 
 c4c, most be considered to hare been inserted ex majcHi eautela and could 
 not do away with the express contract to relieve the empany from lia- 
 hihtj: — HehL further, that by an Act passed in 1877, and a fagr-bw made in 
 puisuance thereof, the company was only aaaessaUe as for local improve- 
 ments, which, by the llanicipal Act. constitute a lien upon the pn^wrty 
 assessed, bat noA a personal liability upon the owners or occupiers aftn* 
 tiiey have ceased to be snch: therefore, after the termination of the fran- 
 Aise. the company would not be liable fnx* these rates. 
 Toronto v. Tmmito Street Ry. Co., 23 Can. S.CJL 19S. 
 
 TjKACK KETTjULS — IXTEKEST OX PATHESTTS rx »»«r** 
 
 The Ontario Judicature Act (RJS.O. 1S97, e. 51), s, 113, enads flmt "in- 
 terest shall be payable by law or in which it has been usual for a jury to 
 allow if: — ^Held. that under the true coBsbnetion of this sectkm it is 
 incumb^t npon the Court to allow interest for such time and at sn^ rate 
 as it may think right in all cases where a just payment has been properly 
 
656 STREET RAILWAYS. 
 
 withheld, and compensation therefor seems fair and equitable. An order by 
 llie Co«rt below that the appellant company should pay arrears of track 
 rentals within the limits of the respondent city, over and above their peri- 
 odical payments already made, and should pay interest thereon, was af- 
 tirnied. 
 
 Toronto Ry. Co. v. Toronto, [1906] A.C. 117, 5 O.W.R. 130, 132. 
 
 [Affirmed in 19 Can. Ry. Cas. 323, 34 O.L.R. 4.16, 26 D.L.R. 581.] 
 
 Contract with mttnicipamty — Opeeation of strkkt railway — Spkcific 
 performance. 
 
 Specific performance of an agreement by a street railway company with a 
 municipal corporation to construct, equip and operate a line of railway 
 along certain streets in the municipality cannot be enforced, nor damages 
 be awarded for nonperformance of the contract if the construction of the 
 street railway has been rendered impossible through the action of the 
 Railway Committee in refusing to sanction a crossing, or by reason of the 
 occupation of the street by anotlier railway company, whether with or 
 without lawful authority; the duty of the municipality in the case of un- 
 lawful occupation being to restore the street to a condition to permit of the 
 construction. When the obligor in a bond agrees, if required by the obligee, 
 to perform certain works and subsequently by agreement between the suc- 
 cessors in law of the obligor and the obligee an absolute obligation to do the 
 work is substituted, the effect of the later agreement is to discharge the 
 obligation created by the bond. 
 
 Ottawa V. Ottawa Elec. Ry. Co., 1 O.L.R. 377. 
 
 Agreement between municipal corporation and electric railway 
 COMPANY — Conditions in agreement repucnant to st.\tute. 
 
 By an agreement dated tlie 20th of November, 1888, between the predeces- 
 sors of defendants and the plaintiff; authority was given to establish a 
 system of street railways in the city of Victoria; but clause 25 of the 
 agreement provided that the cars to be used should be exclusively for the 
 carriage of passengers. In 1894 the Legislature passed an Act, c. 63, conse- 
 quent upon a petition reciting an agreement, the incorporation of the per- 
 sons named therein as a company, and the passage of an Act, c. 52 of 1890, 
 giving the company power to build and operate tramways through the dis- 
 tricts adjoining Victoria, and to take, transport and carry passengers and 
 freight thereon. The petition further prayed for an Act consolidating and 
 amending the Acts and franchises of the company then in force, and de- 
 claring, defining and confirming the rights, powers and privileges of the 
 company. S. 16 of said c. 63 provides that "in addition to the powers 
 conferred by tlie agreement the said company are hereby authorized and 
 empowered ... to take, transport and carry passengers, freight, ex- 
 press and mail matter upon and over the said lines of railway . . . 
 subject to the approval and supervision of the city engineer, or other of- 
 ficer appointed for that purpose by the said corporation as to location of 
 all poles, tracks and other works of the said company": — Held, that the 
 passage in the agreement being repugnant to the provision in the statute, 
 the latter should prevail. 
 
 Victoria v. British Columbia Elec. Ry. Co., 15 B.C.R. 43, 13 W.L.R. 336. 
 
 MrNICIPAL FRANCHISE — OPERATION OF TRAMWAY — EARNINGS OUTSIDE MTT- 
 NICIPAL LIMITS — PaY.MENT OF PERCENTAGE. 
 
 The city of Montreal called for tenders for the establishment and opera- 
 tion of an electric passenger railway, within its limits, in accordance with 
 specifications and, subsequently, on the 8th of March, 1893, entered into ;i 
 
STREET RAILWAYS. 657 
 
 c—toact vitk a mmfumj tkea «pera.timg a. tyttem id karae traatwajc? ia 
 Ok atj ^^iA tTttafcid lata mijtiaimg — airipalitiw. The cottraet gnat- 
 ed the fraMhiae far <he periad «ff tkiitjr yean frnaa the Ut of August, 
 1892, aad oae of ita daves pcovi^i tihat tte tumtfmmj ihoidil faj to the 
 city, aaanalfy, 4nrii« the tem of the iraaduae, ''feoa the lat of Scptoaber, 
 ins, IVOB dw total aBBvat of ita graaB wiraiae* an^^ fnm the vhoLs 
 mmaliiw af ita aaid laihraT, either with cars propelled by Attndtw or 
 with can draws hy hocaes" coxain pereeatagea Bpecifcd, ac euidia g to the 
 Sioaa — T»i»g» fraaa year to year. Upon the first aelth»>Bt» am the 1st of 
 Seplea i l ie i, IMS, the roipaay paid the pereeata^es without aay distiae- 
 tiow httaixa f raiagt ariuag beyoad the city liwts aad those ariaK 
 withia IJw ct^, bat, aohaeqaeatly, thef icfmoe d to pay the p e iiewta ge ex- 
 cept iqwa the estiaated awo— t of tte graaa eaniiagi ariaiaig withia the 
 atj. la aa actioa by Uk atj ta r eeowe i tlw pcneatages i^aw the snisd 
 earai^a of the tnoaway liaea bolfc iaaiiir aad yfiidt of the city liauta: — 
 Hcid. lewcraiag the jndgiwat a^ealed froea, the CUrf Jaatiee and KiDaii^ 
 X, diiwfBtiag. that the city was eatitled to the ^eofied pereeatage apoa 
 the groK earmi^is (rf the conpaay arkii^ froai the operatiaa of the traat- 
 way boUi withia aad ontade of the city fiwt». 
 
 ifoatreal t. Moatreal Strert By. Co^ 4 Gbb. Ry. Cas. 114, 34 Gul S.CJL 
 45». 
 
 [Benned ia [19M] A.C. 100, 3 Caa. Ry. Cas. 287: foUovnl ia HamHtoa 
 Street Ry. Co. t. Haniltoa. 38 Caa. &C.R. IOC; d»«*iiigni<li>^ in Hamiltoa 
 ▼. Haaittoa Street By. Co., 10 OUR. 57S.] 
 
 CurrSACT with XCXICIPAIJTT — PatMSSTT op FB(»<DaTIOS OF GB06S BC- 
 
 cairrs — '^■oes mEcezns." 
 
 A coTcnaat by the diffiaata to pay to the plaiatifli a eertaia prapor- 
 taoa of the def endaate' groaa reeopU waa held, ia the c iicai— taa eea of tke 
 case, to be aot beyoad the powers of the plaiatiffs, a city corporatiaa, aad 
 . the defeadaats, a street raihray eanpaay. Upoa the pn^ier eoaatraetioB of 
 the eovcaaat, the Urm '^groaa receipts" was hdd to iadode farea paid by 
 fmmaemgen withovt the corporate territorial liauts <rf the pfauatiCs. where 
 theae pawgagiiii bcgaa their joorae y aqpoa the defeadaata* railway beyoad 
 aadi Uwta; aad also to iarlade traSe rece ip t B aot yet eaiaed, sa^ as re- 
 eeipta fnaa the aale of pa ateagejs * tiduts still ontataadiag. 
 
 HaaiiBna t. HaauMoa Street Ry. Co_ 4 Can. Ry. Caa. 146, 8 OJJS. 4a5t. 
 
 [AifinMd ia 10 OXJS. 575, 5 C^ Ry. a& 206. 38 Out. aCJL 106.] 
 
 COXTKACT WITH IfXTSlCirXLITT PaTHXXT OF rEBCEXTAGE OS emOBS BE- 
 
 OEXPTs — ^"Gaoss ^acoPTS." 
 Aa a gitcta t between the parties for the payaMat by the ihffiadialii to 
 the plaiatiffs of a certain povcatage <rf the defcadaats' gioaa l aee ipta was 
 iatra vires oi both; that the term "gross receipts" iadndes fares paid by 
 oortside the limits of the city of HaauHoo. The toaa alao ia- 
 eys receired from the sale c4 tickets which aught poasiUy not 
 be aaed ia parmeat of £ue& Jodgment ci Meredith. J., 4 Caa. Rr. Css. 
 146. 8 OJ^R.'459, affirmed. 
 
 HaaaiRoa t. Hamilfam Sl^cct Ry. Co. (No. 1). 5 Gaa. By. Caa. 206^ 10 
 OJ<^ S75. 
 
 [Affirmed ia 38 Can. &C.R. 106.] 
 
 MinnciPAi. coaroBATioic — AeaasEUEyrr with {ctbeet kailwat coicrAxr — 
 Use or niamaw — Taxmext fo«. 
 
 By agreemeat la I am the city of HamiHon and the Hamihoa Street Ry. 
 Col, the latter was aothorized to ctmstmct its railway oa certain naowd 
 Caa. Ry. L. Dig. — I*. 
 
G58 STKEET RAILWAYS. 
 
 streets and agreed to pay to the city, inter alia, certain percentages on 
 their gross receipts: — Held, following Montreal Street Ry. Co. v. Montreal, 
 [1906] A.C. 100, that such payment applies in respect to all traffic in the 
 city, including that originating or terminating in the adjoining township of 
 Barton: — Held, also, that as, when the railway was extended into Barton, 
 tlie company agreed with that township to carry passengers from there 
 into the city at city rates, the percentage was payable on the wliole of 
 such traffic, and not on the portion within the citj- only: — Held, further, 
 that the power of the company to construct its railway was not derived 
 AvhoUy from its charter, but was subject to the permission of the city 
 corporation; the city had, therefore, a right to stipulate for payment of 
 such percentages and the agreement was intra vires. The judgment of the 
 Court of Appeal, 10 O.L.R. 575, affirming Meredith, J., at the trial, 8 O.L.R. 
 455, was affirmed. 
 
 Hamilton Street Ry. Co. v. Hamilton, 38 Can. S.C.R. 106. 
 
 Routes and speed — Ratio of track mileage to increased i^opulation. 
 
 The defendants passed a resolution authorizing certain extensions and 
 changing some of the routes of the plaintiffs' railway", and the plaintiffs, 
 relying upon a by-law being passed later to carry out the resolution, per- 
 formed certain work and incurred expense. The by-law was subsequently 
 passed, read a first, second and third time at one meeting of the defend- 
 ants, signed by the clerk, sealed with the municipal seal, but not signed 
 by the mayor. In an action to compel the mayor to sign it and the de- 
 fendants to accept an agreement to carry it out: — Held, that the company 
 took the risk of a by-law being passed, and that they were not misled; 
 and that without the mayor's signature it was incomplete and invalid: — 
 Held, also, that two by-laws, set out in the judgment of MacMahon, J., as 
 to the routes and speed of the plaintiffs' cars were, imder the circumstances, 
 valid as being within the defendants' power and authority under 59 Vict. c. 
 105 (Ont. ), which validated a by-law of the defendants and an agree- 
 ment between plaintiffs and defendants under which the plaintiffs built 
 and operated their railway. By the original by-law, under which the road 
 was authorized to be built and operated, as set out in the judgment of 
 MacMahon, J., the defendants were bound to establish new lines, as might 
 be directed by by-law of defendants, in the proportion of one mile of track 
 to every 2,000 inhabitants of the city then existing or thereafter extended, 
 the population to be ascertained as mentioned in the by-law, and that in 
 the event of any local municipality being annexed, the railways of the com- 
 pany within the annexed municipality, and the company in relation thereto 
 should have all the rights and be subject to the terms of the by-law. A 
 local municipality was annexed to the defendants' municipality in 1898. 
 and at the time of annexation had a street railway trackage of 5,900 
 feet. The population of the city in 1001 was 39,183 being an increase of 
 4,183, and the proportion of additional trackage to population was ll,04.r 
 feet. By a subsequent by-law defendants were directed to construct 7,380 
 feet of additional track: — Held, Maclennan, .J.A.. dissenting, that under 
 the original by-law the mileage of the local municipality must be added 
 to the mileage of the lines in the city at the time of the annexation, and 
 the amount deducted from the amount required by the last-mentioned by- 
 law, which was consequently bad as being in excess of the mileage the 
 defendants could require. 
 
 London Street Ry. Co. v. London, 4 Can. Ry. Cas. 171. 
 
 Percentage on gross earnings — "Whole operation of its bailwat." 
 By art. 1018 C.C. (Que.) "all the clauses of a contract are interpreted 
 
STREET RAILWAYS. 659 
 
 the ame by tke oAcr, p.^v^ to tmth the »*^"»tg derived frm the ^tire 
 Act.'^ TW a^dlaat eoanpaaj l»Tii^ eoBtnrted with tlw resfomAemt eitj 
 to pay aBBoally entam sfeiiSied fencatages oa tlie total aaHNmt of their 
 graoB candpgs ansnup froot the vkole operatkni of their raihrar. and it 
 mfifmximg fnmt tibe rest of the eontrart that the ritr considered territories 
 at fflrtiffiilr annieipalities were not hielDded within its scope, and that it 
 cooU cmSj deal with streets within its Jjuri^ietion. and that the ccmpanj 
 had to BMke separate arrangements with outside municipalities in respect 
 of the operation of the railway within their limits: — Held, that br th« 
 true eoBstmction of the contract the citj was only entitled to percentages 
 on the gross earnings ansing from the whole operation of the lines within 
 its own linuts^ 
 
 MoBbcal Street Rv. Co. t. Montreal, 5 Can. Rj. Cas. 3S7. [190C] A.C. 
 100. 
 
 [Followed in Hamilton Street Rj. Co. v. Hamilton, 38 Can. S.C.R. IOC: 
 distinguished in Hamilton t. Hamilton Street Rt. Co.. 10 OXJL 575.] 
 
 Statctobt gkasts. 
 
 Whoe the Legislatnre requires that priTil^es shall be granted br by-law. 
 they cannot be granted or aci|nired in any other lianner. eg., fay orert act, 
 waiver or acqniescesce either by a conunittee of the council or fay the whole 
 ■nnicipal council itself. 
 
 Montreal Street Ry. Co. r. Montreal, 3 DJ^R. 812. 
 
 CCBBEXT — MtrXlCTPAL OOXSEST — ReSTSKTIOXS Jk8 TO mFOKTATIOX. 
 
 A conqtany empowered to <^erate a street railway and to sn^ly deetric- 
 Uj for light, heat and power, over poles and wires erecicd in tbe streets 
 and public places of a city, may, without first obtainii^ the consent of 
 the city, transmit thereon electricity generated and devehqped beyond the 
 city limite. 
 
 Winnipeg Elec. Ry. Co. t. Winnip^, 4 DXJL 110, [1912] A.C. 335. 
 
 FkA^CHiaES — Switches — Use or hichwats. 
 
 A stipnlatian in an a g r e e m ent be t wee n a county corporation and the 
 railway company which deals in sereral respects with the entire line of an 
 electric railway, that the company may eonstmct, put in, and maintain 
 such switches, and turn-outs, as may frwt time to time be found nec es s a ry 
 for the operating of the company's line of raflway on a named street, is to 
 be construed as of general application to the whole of the line upon th*r 
 street named and not merely to the line of estiension of the railway on that 
 street whi<^ the agreement anthorizd. It is within the jurisdiction of 
 the Chairman of the Ontario Railway and )lunieipal Board to cons tru r 
 an agreemoit between a county <«rporatioa and a railway company grant- 
 i^ power to enlarge the number of switches operated fay the raihray 
 company upon a highway. 
 
 Re Waddington and Toronto t Tork Radial Ry. Col, 9 D.L1.R. 81, 15 Can. 
 Ry. Cas. 82. 
 
 MCTOCirAt ntJkXCHISES — VaUWIT I.XnJKiBMIOX or ATTOnXET-GEXlXAI- 
 
 A municipal corporation cannot attaric the validity of a contract between 
 it and an electric railway company because the by-law authorizing its 
 execution was not submitted to the electors for approval as required Inr ^. 
 04 of the BuC. Municipal Act of 1897. where the company had made laige 
 expenditureB as a direct consequence of its execution, if not pursuant t-t 
 the contract. In an acticm by a municipal earporatioa to obtain a dedara- 
 tioB that a eontract between it and an electric railway company is void 
 
C^60 STREET RAILWAYS. 
 
 because a portion of its conditions were ultra vires, the Court will not, on 
 such general claim, make a selection of such of its provisions as are ultra 
 vires, but will leave that to be settled in concrete cases questioning the 
 validity of specific clauses of the agreement. The Attorney-General should 
 be made a party to a proceeding to question the power of an electric rail- 
 way company to operate its road notwithstanding informalities in obtain- 
 ing the municipal franchise, where, after due notice to the municipality, an 
 authorization of certain crossings had been made by the Board on the foot- 
 ing of the electric railway having the requisite franchise. [Re Point Grey, 
 16 B.C.R. 374, distinguished.] 
 
 Burnaby v. British Columbia Elec. Ry. Co., 12 D.L.R. 320. 
 
 Contract for construction — Sanction of contract by shareholders. 
 
 Action for damages for breach of contract for construction of electric 
 railway. Plaintiff proved execution of the contract under corporate seal 
 signed by president and secretary. The contract was never carried out: — 
 Held, that R.S.O. (1897), c. 209, s. 17. had enact«d that no such contract 
 should be of any force or validity until sanctioned by a resolution passed 
 by the votes of the shareholders, in person or by proxy, representing two- 
 thirds in value of the paid-up stock, at a general meeting specially called, 
 and not having been complied with action should be dismissed, but under 
 the circumstances without costs. 
 
 Thomas v. Walker, 1 O.W.N. 1094, 16 O.W.R. 751. 
 
 Municipal Ordinancf: — By-law — Validity — Approval by ratepayers — 
 Special privilege conferred by lkgislatube. 
 
 A municipal by-law directing the execution of an agreement between the 
 municipality of Point Grey and an electric railway company consenting to 
 the construction of a tramway on certain streets of the municipality and 
 also imposing terms on which cars should be operated, does not confer such 
 particular privilege, right or franchise as to require the submission of the 
 by-law to the ratepayers for approval under s. 64 of the Municipal Clausos 
 Act, B.C. Stat. 1906, where the railway company was empowered by c. 
 r)5 of the B.C. Stat, of 1896, to construct and operate a tramway in that 
 and other municipalities subject to the consent of the municipal council 
 l)eing first obtained and to the latter's designation of the streets upon which 
 the tramway should be built, although the permission of the municipal 
 council was further specified by statute to be upon such conditions as to 
 plan of construction and for such period as might be agreed upon between 
 the company and the council; the purpose of the proviso requiring the con- 
 sent of the municipality is restrictive and not donative in character, and 
 its function is to circumscribe, or impose conditions upon the exercise of 
 the rights already conferred by the Legislature. [Re Point Grey Elec. 
 Tramway By-law, 16 B.C.R. 374, reversed.] 
 
 British Columbia Elec. Ry. Co. v. Stewart, 16 Can. Ry. Cas. 54, [1913] 
 A.C. 816, 14 D.L.R. 8. 
 
 EsTOPPBX — Municipality — Waiver of bight to assert forfeiture of 
 franchise. 
 
 Mere forbearance on the part of a municipality in asserting a forfeiture 
 of a street railway company's franchise for noncompliance with its re- 
 quirements, does not amount to a waiver of or acquiescence in the default 
 of the company. 
 
 Brantford v. Grand Valley Ry. Co., 16 Can. Ry. Cas. 408, 15 D.L.R. 87. 
 
STREET RAILWAYS. 6«1 
 
 Omtkis — Sailvat caMMJOSKMSs — F<uBruirsE or bailwat wmAXcmmB. 
 
 SSmet tike Bailvay Aek, UM^ does mt coder jmiadSctiaB oa dw Bawd te 
 dedue or idieve fr«ai a fiorfaitaR; it t eiag efatlwd calf vitk amA powers 
 as are wfcm d kf fke .Act, or t^ aoaK speeU Act, «r soe fcaa niate to 
 tte lafiauial off orderS), ns*!***"** »d directMBs Hade thereaader. tW 
 C3oa>taaic aot dt fiita d of jarndictiaa to dbdaie the forfatasc of a street 
 ruhraj tnm^at for lahrtaatial tRadHo of Ha tiiwi [Waterloo t. 
 7 SlUL 3il, and ia appcaL 12 DXJL SM^ dkti^akhcd.] 
 
 T. Gnad VaDej Ry. Col, IS Caa. Sy. Gu. MS, 1> DX.S. ST. 
 
 l3crrKT TO MMttxsTSQ raonxiT ovxkb — ^Rebisktesc access. 
 
 A pioputj ovaer am tke sknet afetted who voald SBtaia fprriil dam- 
 age hrcaaae «f restricted ag <»» to kia f o pjtj if aa dectrie lailvaT liae 
 ■ui I. ili.aikd aloag tte ad jeiaia^ Ati e ti sht amt tke raHwar coo^oajr to 
 mlnia tke CM a aUiii oa, altko^k aatkorind kj tke annicipalitT if ao 
 fHiiaiti iw kas beea oktaiaed iroB tke Oatario Saihraj aid Maairipal 
 Board kjr tke coaipaaT aAject to iU aatkcMritr oader tke Oatario SailwaT 
 Aet,3ft 4G«ol V. ci'3Cls.230l " 
 
 IGtcUD T. Sudwiek. Wiadnr k A Mk c »ttfcig Kjr. Om 19 Caa. Rj. CasL 
 381^ 33 OJLR. 39* . 22 DJ-S. 531. 
 
 I^CIXSITX: BKKIK. SVMJWTT TO rSASmSZS OT OTHXS BJUL.VATS RESfOTAI. 
 
 A ■aaii ipal eocpicatiaa gi aaUa g a street raitvaj eoapaar tke exelas- 
 rre rIgiUt t» operate smrfmr* cCreet railvaTs ia tke citr, for a tens of 
 jean, aAgeei to ccrtaia i e i4iidiw a »> . tfliectcd by tke fruMkiHS of otker 
 railwayai, eaaaot, after tke reaoval of re ati ie ti e mi apoa tke tersiaatiaai of 
 tke otkcr &aafckiM% vidua tike period of tke gtaat, witkkold its eiwscat to 
 tke r^t to opcrete vpoi tke partiaa of a street vacated kr aaotker fraa- 
 ckisev ia tke aane laaer as apoa tke ol&er stmts of tke cxtr. [Toroato 
 Sj. Gdl t. Toroato^ [IMC] AXL 117. fioDamed, a O.W.R. 130, 132, afinsed.] 
 
 Tteoate By. Ca. t. Toroato, 19 Cka. ^. Cks. 323, 34 OX.R. 43C, 2» 
 DXJL 3S1. 
 
 [AfirsMd ia 30 Cu. By. Cas. 11a, 2» DJ..R. 1, [191C] 2 A.a 5^] 
 
 ExcixsifBBBBB mur -ftaaiisAJsas «f a^ttbccbcst tb. 
 
 Aa afciuiat gnmsimg aa exctasive fraackiee for a period of yiais over 
 a di Ca w J area, aad, so fmr as tke giaator caa, over aaoAer area ia wkiek 
 a tkird party kas cadstiap ri^ts, will take elTcct so as to coafer oa tke 
 graatee aa exdoBTe fraacftise vitkia tke -ernad area wkea tke aateccdeat 
 ri^ta tenuaatc ±S DJLB. .iSl. 34 O.L.IL t^C afirsMd. 
 
 Toroato ▼. Toraato By. Cou :» Caa. By. Cas. 11^ [191«] 2 AXL »t2. 
 » DJi^B. L 
 
 -BeTAIK or BOAWrAT AG«EEJfEST arrTH VlAiarAUTT — 
 
 *&Kr dXAX Asa Of fu > Pta asrAia' — ^Xew fatixc — ^"Tbacks.^ 
 
 Uader tke Oatario Bailaay aad Maairipal Board ABcadaeat Act, 1910, 
 tke Board kaa ao farisdietioa to re^fuire tke appeUaats operatia* a street 
 laihoay slo^ ccrtaia streets ia Toroato to pave tke part of tke road med 
 by tke ralhny «r to da aorks vkirk woold give tke roadway a aev ckar- 
 arter vken tke agreesMBt aitk tke araaietpality aader vkick tke sppel- 
 laats operate (daase «l proridcs tkat tke appeOsats skoald -±eep rieoa 
 
CG2 STREET RAILWAYS. 
 
 and in proper repair that portion of the traveled road between the rails 
 and for eighteen inches on either side thereof." 
 
 Toronto Subvirban Ry. Co. v. Toronto, 20 Can. Ry. Cas. 260, [1915] A.C. 
 590, 24 D.L.R. 269. 
 
 Alteration of route — Municipal consent. 
 
 Tlie Toronto & York Radial Ry. Co., by the terms of its franchise and 
 by legislation, is authorized to deflect its lines from Yonge street in the city 
 of Toronto, to a private right-of-way owned by it; the deflection is for the 
 purpose of enabling it to operate the railway already located and con- 
 structed, and therefore the consent of the municipal council is not neces- 
 sary. 
 
 Toronto & York Radial Ry. Co. v. Toronto. 21 Can. Ry. Cas. 107, 31 
 D.L.R. 627. 
 
 Agreement with corporation — Construction — Liability. 
 
 A railway company which is obligated under a by-law granting it the 
 right under certain conditions to construct, maintain and operate an 
 electric railway, to pay an agreed rate for every mile 6r pro rata for a 
 portion of a mile of railway operated, is liable to pay only for the portion 
 of railway actually operated; if, however, the efl"e(t of the by-law is that 
 the whole railway is to be operated, the company is liable in damages 
 for nonperformance of this condition, the damage being equal to the amount 
 the company would have had to pay had the whole line been operated. 
 
 Wentworth v. Hamilton Radial Elec. Ry. Co., 41 D.L.R. 199. 
 
 Agreement with corporation — Construction — Operation — Former ac- 
 tion — Cau.se ok action not the same — Same question not in issue 
 — Res adji'uicata — Estoppel. 
 
 A railway company which is obligated under a by-law granting it the 
 right under certain conditions to construct, maintain and operate an elec- 
 tric railway, to pay an agreed rate for every mile or pro rata for a por- 
 tion of a mile of railway operated, is liable to pay only for the portion 
 of railway actually operated; if, however, the effect of the by-law is that 
 the whole railway is to be operated, the company is liable in damages for 
 nonperformance of this condition, the damage being equal to the amount 
 the company would have had to pay had tlie whole line been operated. 
 Where the cause of action is not the same as a former action (County 
 of Wentworth v. Hamilton Radial Elec. Ry. Co.. 28 D.L.R. 110. .31 O.L.R. 
 659, 33 D.L.R. 439, 35 O.L.R. 434, 54 Can. S.C.R. 178), and the same 
 question was not in issue and was not raised or decided, there can be 
 no application of the doctrine of estoppel or res adjudicata. 
 
 Wentworth v. Hamilton Radial Elec. Ry. Co,, 23 Can. Ry, Cas, 209, 41 
 O.L.R, 524, 41 D.L.R. 199. 
 
 JX)CATI0N AND PLANS — APPROVAL, 
 
 Clause 5 of the agreement between the Metro|)olitan Street Ry. Co. and 
 the municipal council of the County of York, in scliedule A of 56 Vict. c. 
 94 (Ont,) , setting out that the location of the line of the railway in the said 
 street or highway shall not be made until the plans shewing the positions 
 of the rails and other works have l)een submitted to and approved by the 
 warden, county Commissioners and engineer, and clause 3 of the agreement 
 in schedule A of 60 Vict. c. 92, setting out that before the work is com- 
 menced upon any section of such extension, the plans setting forth tiu» 
 proposed location of the company's tracks shall be approved by the com- 
 mittee, form the very basis of all the work to be afterwards undertaken 
 
STREET KAILWAYa 663 
 
 aad tte frodaetioa of the plans so approTcd canaot be dfaysrd witk hr 
 the OHtario Baflvaj »ad Moniripal Board. [TwoBto k Yoik Badial Rt. 
 Go. T. Toroato. 13 DXJL 370: Toronto t. Metn^olitnn Rjr. Col, 1 Can. 
 Rf. Caa. 63, 31 O.B. 36T, applied.] 
 
 Re Tomato k York Radial Ry. Cou mad T<m>nto. 26 DX.R. 344. 
 
 OrcsjiTios ox CTTT Kimmgit — Coxse^t of ml.mcipjxht. 
 
 Tlie frowi^ams of s. 233 oi the Raihraj Act. 1906, reqniriiig the consent 
 br bj-lav of Oe ■nnicipal antlMHitT of a dtj or incorporated tovn before 
 anj eompanj can carrr its lines upon the highvaT, mhr applies to a street 
 railvaT or a raOvar iterated as sndi. 
 
 Re Loadna Raihnj On— iwim, 33 W XJR. 334. 
 
 S. Use of Sbeets; Wires; Poles; 
 
 GSADIXG 8TSEET — Da^VAGE ID LAXD ADJCHXIXG SnTOKT. 
 
 A stzect railvay componT. in igradii^ a street in Tancourer. In accord- 
 ance vith an a»reeni^it entered into vith the eorporatioD, pnrsaant to 
 the Vanconrer Incorporation Act and Aasea d M ml ei 1S95. is not liable 
 fw damages for loss of sopport cansed to lands adjoining the street. 
 
 Mardonell t. British C<diimbia Elee. Rr. Co.. 9 B.CLR. 343. 
 
 REGCXATfON or CSE OT HKHWATS FiXES AXD WTXALTIES. 
 
 tli The Recorder's Court for the eitr ai Hontrcal has jurisdiction to 
 try an action for the recovety of a fine iiqtased for a teench of the con- 
 dition:? in a by-lav to grant a street railway eampany certain pririleges. 
 The fact that a contract is entned into by the city aind the cmnpany. to 
 carry oat the by-law. does not alter the nature of the duties prescribed 
 by the latter, so as to conTcrt them into c«»tractual obligations. (3 1 
 When a mnaicipal by-lav has a {H'oviso to be carried out u&on an order 
 to be given by the eooncil. the adoption by the latter of a report of one 
 of its committees empowered to deal with the matter, recommendii^ per- 
 formance and that instructions be given for the purpose, amounts to a 
 sufaetantive order, as required by the by-law. |3i A clause in a by-law 
 imposiii^ a penalty, that its enforconent shall devolve upon an officer 
 named, makes it his duty to initiate and carry on proeeedi^ia, but does 
 not mean that he mui^t do so in his own name. (4) A covenant in a 
 contract between a city and a street railway company, tihat the latter, in 
 rase of annexation by the former ~of any of tlw outside municipalities, 
 shall extend its system" thereto, is binding only as to the outside munici- 
 palities that were, at the time of the contract, eont^uons to and adjoin- 
 ing the city. (5t A company cannot be cimipelled to exeente a covenant 
 into which it has no power to enter under its charter. (6» When a con 
 tract betwee n a city and a street railway company, to build and operate 
 a raflwny, dee^nates the streets in which this is to be dime, and a cove- 
 nant is added tfiat in case of the annexation of nei^riMNning inritiMy. 
 the emnpsuiy shall extend its railway to it. when ordered to do so. the 
 «der to be effective, must dcsgnate tibe t»ti e ete in the new territory to 
 which it is meant to a|^ly. (7) A covenant to extend a railway into 
 ''ontmde municipalities*' thereafter to be annexed, does not appH- to ^"parts 
 oi oatside municipalities*' which are anne3ttd. (8) Xor can the eooipany 
 be eompdied to carry it oat. until the city has complied with sobn eq n en t 
 kgialative enactments of a public nature, for the proteetim of interested 
 pnrtaea. 
 
 Montnal Street Ry. Co. r. Recorders Coart, 37 Qne. S.C 311 (Dkrid- 
 «on. J.). 
 
 J See Qnebee Ry.. etc Co. t. Qneber, 41 Can. S.CJL 145, affirm!^ 17 Qne^ 
 K.B. 336, 33 Qne. S.C. 489.] 
 
664 STREET RAILWAYS. 
 
 Use of steeetts — By-law — Penalty. 
 
 The city enacted a by-law granting the company permission to use its 
 streets for the construction and operation of a tramway, and, in con- 
 formity with the provisions and conditions of the by-law, the city and 
 the company executed a deed of agreement respecting the same. A pro- 
 vision of the by-law was that "the cars shall follow each otlior at intervals 
 of not more than five minutes, except from eight o'clock at night to mid- 
 night, during which space of time they shall follow each other at intervals 
 of not more than ten minutes. The council may, by resolution, alter the 
 time fixed for the circulation of the cars in the different se<'tions." For 
 neglect or contravention of any condition or obligation imposed by the by- 
 law, a penalty of $40 was imposed to be paid by the company for each day 
 on which such default occurred, recoverable before the Recorder's Court, 
 "like other fines and penalties." An amendment to the by-law, by a subse- 
 quent by-law, provided that "the present disposition shall be applicable 
 only in such portion of the city where such increased circulation is required 
 by the demands of the public" : — Held, that default to conform to the con- 
 ditions and obligations so imposed on the company was an offence against 
 the provisions of the by-law, and that, under 29 & 30 Vict. c. 57, s. 50 (D. ) , 
 the exclusive jurisdiction to hear and decide in the matter of such offence 
 was in Recorder's Court of the city of Quebec. Quebec Ry. v. Recorder's 
 Court, 17 Que. K.B. 256, 32 Que. S.C. 489, affirmed. 
 
 Quebec Railway, Light & Power Co. v. Quebec, 41 Can. S.C.R. 145. 
 [See Montreal Street Ry. Co. v. Recorder's Court, 37 Que. S.C. 311.] 
 
 DtJTY AND CARE OF STBEET RAILWAY. 
 
 Apart from statutory enactment, a street car and other vehicles have 
 equal rights of the same kind to the concurrent use of the streets, the 
 rights and duties of both are reciprocal and mutual, and each is bound 
 to the exercise of reasonable care in self -protection and in avoiding harm. 
 [Jones v. Toronto & York Radial Ry. Co., 25 O.L.R. 158, specially referred 
 to.] 
 
 Carleton v. Regina, 1 D.L.R. 778, 20 W.L.R. 395, 5 S.L.R. 90. 
 
 [Referred to in Balke v. Edmonton, 1 D.L.R. 876, 4 Alta. L.R. 406.] 
 
 Fbanchises — ^Rights in and to use of streets — Duty to pave between 
 
 AND outside of BAILS. 
 
 Where the predecessor of a street railway company, on being granted a 
 long term franchise by the predecessor of a municipal corporation to build 
 a street railway in a public highway in close proximity to a large and 
 rapidly growing city, agreed that the traveled portion of the highway 
 l)etween the rails and for eighteen inches outside thereof should be kept clean 
 and in proper repair by the railway (such agreement being confirmed by 63 
 Vict. (Ont.) c. 124) , the company is bound to pave between its rails and for 
 eighteen inches outside thereof at its own expense on the highway becoming 
 a city street and being subsequently paved by the municipality, notwith- 
 standing the highway was but an unpaved "mud road" when such agreement 
 was entered into. The Ontario Railway and Municipal Board, under s. 3 of 
 10 Edw. VII. (Ont.) c. 83, which provides that the Board may require the 
 making of changes, repairs, improvements or additions which ought reason- 
 ably to be made in the tracks used by any railway company in connection 
 with the transportation of passengers, freight or property, in order to pro- 
 mote the security or convenience of the public, has power to require a street 
 railway company, at its own expense, to pave between its rails and for 
 eighteen inches outside there(rf on the subsequent paving by a city of the 
 
STREET RAILWAYS. 6«5 
 
 Ughway am i^adk Ike tzadn woe laid, aotTi t it B ta adm s the fatt tkat 
 ikt emvaay m ti ^ui t d ita fnackne aad laid its tracks am aadk k%lnraT 
 it vasaMfere "^aad raaf Ijias hcjoad bat ia dose ymiMity ta the Imits 
 of a large aad rmpidtf gnmimg cHy; naee tke wwi "tndEa" as mcd 
 m a. 3 mamt be gnva its widest faaiag so as to iadnde aoi aaify the rails 
 thereof bat also that part vi the hi^vaj occnpied br the raHvaj itsrif . 
 He fvw at tte Board, aader a. 3 <rf 10 Edw. VTL {ihA.} c 83, to nqmn 
 a atnet laihraj aot fi<iait>J aader aa order of the Board, to pare 
 bUataa its raife aad oataide ttncoC, is aot aCcctcd bgr cl 54 of 1 Geo. T. 
 (OtaL), whi^ is applicable oaly to aath railway as aaj hai« beca coa- 
 alraeled nader aa order ci sach Board. Oa rcqairin^ a street railway 
 isaipaaj to parr between aad caAnde of its rails, the Board shoaU pre. 
 aeribe the Materials to be aaed, aad aot leare it to the detenaiaatioa ai 
 tt» e^iaeer of the Board ia the enat that the city aad the laihray eoaa- 
 paay caaaot ngne ia respect thereto. [New Torfc t. Harlea Brid^, etc. 
 By. Co., 1S6 X.Y. 304, ftdlowcd.] 
 
 Be Toroato aad Toroato Jt SabarbaB Rr. CkiL, 13 DX.B. 673, 29 OXIL 
 105. 
 
 UisB or S'TSKiris fok p<h.es axi> wikes CAaarrsc Ei.£cnac clkkkat — AsauB- 
 
 IfETT TO KEZF POWEa HOCSES WTIHrS CTTT IXSmS. 
 
 It was a terai of the a^reeaMat betweea the plaintiffs and the Wiaaipe^ 
 ElecL Street Ry. Co. that the cnnpaay waald place aad keep withia the 
 city liaiits all their casiaea^ ■achiaeiy. posrer hoaaes. etci. for their 
 atnet railway nirtc^ aad the a g re ea se a t farther prorided that, ia so 
 fmr as its terms aad coaditioas idatcd to the ^iperatioa, conduct aad 
 ■aaageBMBt off the railway sntcB. the saaae and the falfilmeat of saaw 
 dboold be eoaditiaaa prceedeat to the cnatiBBed eaj ojaaia t of the ]»iTi- 
 fepes aad r^ts of the compaay. In 1904 the abofe-aaaurd coaipaay 
 aaalgaantcd. nader the name of the defeadaats. with the Wiaaipc^ G«a- 
 eral IVvwer Co^ wbidb had. nader its charter powers. coBstracted a bydro- 
 eleetrie {dant at Lae dn Boaaet. on the Winnipeg rirer. and a line of 
 poles aad wires for the traa^aissioa of the riectric rnrrent to the city. 
 The powo- company's ^ct ai iBCorporatiaa gave it the r^bt to erect 
 poles aad wires in the streets of the city for the paipu a e. of coavey- 
 iag electric cnrreat for li^tii^, heating or s^pfying motive pown- 
 with the con^oit of the cooncO. Xo sach c o as tnt was ev'er girea 
 or aiked for, bot after the amalgamation the defendants discoatiaaed 
 the ase of their steam power plant in the city, aad operated their 
 atnet railway sjstea a by power derired from the alternating iiui e at 
 bro a^t iato the city fn^ the power plant at Lac dn Boaaet aad 
 chained at a transforming station in the city into the direct cari e at 
 aaed for propdlii^ the ears: — Held (Richards, J.A. disaeatia^), that there 
 had heea no breach of the toia of the agreement first above r efeii e d to, 
 that there was notbii^ in the agreement requiring tte defendants to 
 generate their own power for the purpose of operatiag thor cars, that 
 they woald hare the right to purchase power for that pm po a e fr om 
 aay other cn^any. and that the power used in prnprffing the cars waa, 
 ia fact, generated within the city limits. Per Mathers, J., in the Court 
 hdtmz — There was a distinct breadi of the agreement for which aa ae- 
 titm for damages would lie, but the ke^ii^ of the power house withia 
 the city was aot a eimditiaa or term relating to the ^operation, conduct 
 aad maBagem eat" of the railway syatem. and, therefne. there was no 
 forfeiture ot the i^hts and privileges of the defendants. More o v e r , if 
 the agreement bad folly prorided for such forfeiture, the cit^ had waived 
 
666 STliEKT RAILWAYS. 
 
 it by afterwards passing by-laws fixing schedules for the running of the 
 cars, by calling on the company to proceed at once with the construction 
 and operation of new lines, which were accordingly built and subsequently 
 operated at great expense to the company, and by accepting five per cent 
 of the gross earnings of the company payable under the agreement, all 
 these things having been done after the plaintiffs had full knowledge of 
 the alleged breach of the agreement. The defendants, through the amal' 
 gamation with the power company, had also acquired the right to develop 
 electric energy outside the city and to distribute it in the city through 
 poles and wires for lighting and commercial power purposes, but only 
 with the consent of the city council; and their own act of incorporation 
 empowered them to furnish light and power and use the streets for those 
 purposes, but only when authorized by a by-law of the city: — Held, (1) 
 as no such consent had been given or by-law passed, the plaintiffs were 
 entitled to an injunction to prevent the defendants from erecting, main- 
 taining or re-erecting poles or wires on the streets, lanes or highways 
 of the city for the transmission of electric energy for any purpose other 
 than for their street railway and requiring the defendants, upon due 
 notice, to remove all such poles and wires now used by them for any such 
 other purpose. (2) The city was not estopped from applying for the in- 
 junction by having applied for, taken and paid for power transmitted 
 with its knowledge, over the poles and wires objected to, from the plant 
 outside the city without its consent and against its protest. (3) The 
 issue by tlie city engineer of a permit for the erection of the poles and 
 wires objected to, intended only to authorize the use of them for electric 
 lighting purposes, did nj)t obviate the necessity of the consent of the city 
 being obtained for the transmission of current for power purposes. Such 
 a permit amounted to no more than a license to erect the poles and 
 wires which might be revoked at any time. The Manitoba Electric & Gas 
 Lighting Co.. incorporated in 1880 by special Act of the Legislature, had 
 power to use the streets of the city for carrying on the business of elec- 
 tric and gas lighting within the city with the authority of the council 
 and upon obtaining permits from the city engineer. It carried on this 
 business with the necessary authority until 185)8. when it conveyed by 
 deed its systems of gas and electric light works and also "all franchises, 
 rights, powers, assets, plant and appliances" to the Winnipeg Electric 
 Street Ry. Co. The Gas Company's Act gave it power to alienate "any 
 of its personal property, lands, tenements, rights and franchises or inter- 
 est therein as it might see fit." The defendants had also, in 1900. ac- 
 quired by deed from the North-West Electric Company, wliich had been 
 incorporate<l by letters patent under the Joint Stock Companies Act. its 
 system of electric lighting and power works, which it had been operat- 
 ing in the city under conditions similar to those of the gas company, 
 and also all its "franchises, rights, powers," etc.: — Held, that neither 
 the gas company nor the electric company had power to alienate its cor- 
 porate powers, and that the defendants had not. by said deeds, acquired 
 any right to erect or maintain poles and wires in the streets of the city 
 for purposes of electric lighting, heating or power, unless authorized to do 
 so by by-law of the city, although those companies which were now de- 
 funct, had formerly acquired and exercised siuh rights: — Held, also, that 
 the Attorney-General was not a necessary party to the action. [I'enclon 
 Falls V. Victoria Ry. Co., 29 Gr. 4, followed; Wallasey Local Board v. 
 Gracey (1887), 36 Ch. D, 593. distinguished.] The ratification by Act 
 of the Legislature of the by-law of the city providing for the agreement 
 between it and the company gave the terms of the by-law the force of a 
 
STREET KAILWAYS. 667 
 
 statafte, aad tkrc&ftcr the phiwtilii cnaM Mi ky aa? artiai of tkHir$. 
 low th»ii- 1%^ to ouiflfc ^OB tke wf ay^ i— fljiai, vitk tke tarns 
 of tke atatate aai tlK bf-lav, or giie tkt ih ft —liata aar additioBal lii^ts 
 iy catoffd. «Bn«r or aofueaecMe. (Poalsobe t. Caaada Cntral Br. 
 C^ {18831. 3 OS. 503; Port Jiitiknr t. Fovt Wmiam a89«4, ^^ ^R- 
 «OMLi ^±2, a^ Torarto w. Tonato Rt. Co. (UK), 12 OJ^R. SU, di»- 
 U^WuiMd.] Thp parties hiim^ wmmUt to a«n« «• ertttln« the wnatos 
 of tlw ja^t"' ■» <« ^ CBtcxed. tke aatter «a« afterwuds bio^gfat before 
 tke Gout, arkea (osBsel for defcMiaats for tke iret tnae poiatcd oM 
 tkat tke ivlicf •ruted wait tHMrawi tkat a:dsed for W tke statcant of 
 daiMz — ^HeU. ti^t tke statc»«t of daiat ^oaU aot he aawwicd at tkis 
 $la^. ilfkii^eh asked for kr tke plaiatiff^ bat tkat. nader all tke eiraia- 
 j4aoc«es. tke j u d gmemt skoald staad. 
 
 Wiaaipeg t. Wiaaipcfr Bet. Rt. Col. ±0 liaa. Li^ 337. IC WJJL «±. 
 
 Mc^ncirju. mr-ukw KsecxAnxc EZEcnox of 'vibes axd folks ts stbexts 
 — Clo3irc}c&&zi0s — ^Rehotal of roLEs axv wugs. 
 
 A br-laa- of tke citr at Wiaaapc^. fttsed to rc^galate tke crertioa aad 
 ■■iatiaian of eieetric poles aad ainsv iprciilly provided tkat it ^hooU 
 aot, be applkable to poles or viiws erected or refaired to be onMted for 
 tke parpoae of ayntati^ aa electrie street ruhraj ftrsteat. aad tkat as 
 to otkcr palea aad aires it parportcd to v^galate tkeir ercrttoo or naia- 
 **—■*■ aahr apoa strtfitc aad poblir places vested ia or aader tke cen- 
 tral aC ike cii^. Sakjeet to tkew liMitotaiB& par^irapk 1 of tke b!r4a«- 
 prorided tkat ao pole er virt skooid be erected aitkoot a poait from 
 tke titjz para^rapb 3. tkat evwj penait skoald be sabject to pevDcatiaa 
 bjr tke cftr at aaj tiaK, ia tke akivace of aa a^rveaMat ratified br bjr- 
 laa, vitkoot coHpeasatiaa. tkat tke aeeeptaaee of a permit ekookl coa- 
 stitBte aa ■ j,n n aa at. aad tkat aqpoa rcTOcatiaa poles aad «in« skoaU ke 
 reaM>v«d vitkia 14 dars after aotice. etc.: aad pangraph 4. tkat tke ofi- 
 c^rs of tke dty woe aotkoriaed aad directed to cat dova poles aad aires 
 aot reaaocted after aotice of rerocatioa. etc Upoa a aotoa to ^jaask tke 
 b^-lav: — Held, kariag reigud to tke prvrifMas of tke Wlaaipeg ckarter. 
 aad cspedallT s. 703, saba. ]±3. tkat tke prorisioas «i tke b^-law a«re 
 aot altia rires, aareaaoaable, or <^pressirv: — Hdd. also, tkat tke br-laa- 
 did aot iaterfoe aitk tke veiled iatereste of tke ^ppliciats aader tkp 
 Tai i u— statates i a car pura ti^ tke^ aad graatiag tkeia eertaia po««rs 
 aad pririlctges aad aader ■jytt Meats Bade porsaaat to tkcse datates. 
 
 [Wiaaipc^ r. Wiaaipc^ Elec Rj. Co^ 13 WJ.^ 21. 1« WAJR. €3. re- 
 ferred tOu] 
 
 Be Wiaaipc^ EiecL Rt. Co. aad Wiaaipe^. IS WX..R. CS4. 
 
 J f WKinw- 'Hoa: or Ostasio Railv-at axv Mrxirtpju. Boaks — Ones roa 
 
 ■ETAIB A5» CESTEV-AI. OF ISACKS ■^OS>1«rCT.'' STEAXISC OF. 
 
 (1) Tke Oatario RailvaT aad llmukipal Baud kad po««-. aader ss. 
 83, 84 of tk Oatario RaOvaT aad Moaieipal Board Act. 1908. to auke 
 aa order reqjairiagr tke Toroato ^. Ool to repair, rvacv. aad restore to a 
 aiilabk aad aAadEaetarr caaditina Ihe tia^s aad sohstrortorr ia ase 
 apoa a crrtaia alieti ia tke cify of Toroato foraerhr ia tke toaa of To- 
 roato Jaactiaa, oaer akick tke coaqnaT operated its tracks: aad tkere 
 vas jarisfictiaa to anke tke order aotaitkaJtaadia* tke akseace fnaa tke 
 record of tke Tomrta Sbbarbaa Street Rt. Co. Coastrwtiaa of <fte agree- 
 scat bctacea tke eorpocataoa of tke towa of Toroato Jaaetioa aad tke 
 Toroato Sabaibaa Straet; Rt. Co.. of tke lltk Xovoaber. 1899, v^alidated 
 aad coafiraHd kjr 83 ¥idL rl 103 COat.! aad set oat ia ackedale B.. tkn^- 
 to; aad of tke agrnoaat bc tac ea tke toaa of Toroato Jaaetioa. tke To- 
 
068 STREET RAILWAYS. 
 
 ronto Ry. Co., and the Toronto Suburban Street Ry. Co., of the 6th Oc- 
 tnl)er, 1899, validated and confirmed by the same statute, and set out in 
 schedule D. "Construct," in clause 12 of the first-mentioned agreement, 
 requiring the company to construct the tracks and superstructure ac- 
 cording to the best modern practice from time to time in general use, 
 is not confined to original construction, but includes necessary recon- 
 struction, — the meaning is "construct from time to time" or "construct 
 and maintain": — Held, also, that the railway was a street railway, with- 
 in s. 2 (21) of the Ontario Railway Act, 1906; s. 164, which provides for 
 the case of a railway becoming dangerous from lack of repairs or renewals, 
 applies to street railways; and the Board had power, under that Act, 
 to deal with such a situation — that is, of danger to the public — independ- 
 ently of the agreements between tlie municipality and the railway com- 
 pany. Semble, also, that the Ontario Railway and Municipal Board 
 Amendment Act, 1910, passed while the proceedings before the Board were 
 pending, but before the hearing, under which the powers of the Board 
 were enlarged, also applied — the efi'ect of certain sections of the new Act 
 being to modify the general rule that pending proceedings are not to be 
 affected by new legislation. 
 
 Re West Toronto and Toronto Ry. Co., 25 O.L.R. 9, 20 O.W.R. 271. 
 
 Ebection of poles — By-law for REMOViLL. 
 
 A city that has, under a general by-law, granted* permits to a company 
 to erect poles in its streets and public places cannot, after such permits 
 have been acted upon, require the removal of such poles on the ground 
 that the permits were void because issued without the adoption of a by- 
 law in ea«h instance. [Winnipeg v. Winnipeg Elec. Ry. Co., 20 Man. 
 L.R. 337, 16 W.L.R. 62, reversed.] 
 
 Winnipeg Elec. Ry. Co. v. Winnipeg, 4 D.L.R. 116, [1912] A.C. 355. 
 
 Ebection of poles — ^Teansmission of electbicity. 
 
 Power granted under 43 Vict. (Man.) c. 36 to a company to "break 
 up, dig, and trench so much and so many of the public streets, roads, 
 squares, highways, and other public places in any municipality . . . 
 as may at any time be necessary or required for laying down or erecting 
 [or repairing] the mains, pipes or wires to conduct" gas or electricity, 
 will permit the erection of poles therein to carry wires necessary for the 
 conveyance of electricity. [Winnipeg v. Winnipeg Elec. Ry. Co., 20 Man. 
 L.R. 337, 16 W.L.R. 62, reversed.] 
 
 Winnipeg Elec. Ry. Co. v. Winnipeg, 4 D.L.R. 116, [1912] A.C. 355. 
 
 Erection of poles and electric wires. 
 
 All doubt as to the power of a company to erect poles to carry elec- 
 tric wires through the streets and public places of a city is concluded 
 by the fact tliat the city agreed to grant the company permits, under 
 certain conditions, to erect poles therein, and requiring that it should 
 permit the use thereof by other companies, and also by the city for wires 
 of its fire alarm system, or for heat and light. 
 
 Winnipeg Elec. Ry. Co. v. Winnipeg, 4 D.L.R. 116, [1912] A.C. 365. 
 
 Cost of repairs — Maintenance of roadway, 
 
 A corporation obliged to maintain a public road which enters into a 
 contract authorizing a company to construct and operate a tramway on 
 said road on condition of maintaining it and keeping it in repair does 
 
STREET-RAILWAYS. 669 
 
 BBt Mfure a friril^e «■ tke tramvar for tlw cast «f repure vhiA k 
 was obUgBd to makm ovi^ to tke iBsotrener of Out OMipuij. 
 Hone ▼. I^vis Cbntj Bj. Col, » Que S.C. 333u 
 
 OBBotBccxioar or KMue r — ^Acrc3rcLATHHr or KSkOv. 
 
 A» aekJOB vas ln«^t agaiast tlie eitr irf Toroadto to recover daaiases 
 far iajanes neaned br reasoa of iaov kavii^ beca piled oa tW ^i^ir of 
 tke iAi e eta , aad the street tailvav cnsBpaay was bnm^t ia a» third 
 partT. He endeace aas that the >aov froia the sidewalks was placed 
 OB the raadaaj immediatelr adjotao^ br seiraats oi the ci^ aad saov 
 tnm the xailaaT tiad^ aas p l ace d bj snraats ai the laihsaj coBpaaj- 
 apoa the roadvaj iaiawdiatelT adjoiaiag the track vhhoat aaj pervisaaaa 
 fr«H the citT^ thus raisi^ tlw raadaaj aeirt to the track, vbere tke ae- 
 caieat occvncd, to a height of aboat tveatj iaches abore the rails. The 
 jarjr faoad that the disrepair of the street was the act <tf the railvaT 
 ■J, vhick vas t h eref ore Bade liable over to the dty for tke dua- 
 The cmpaar coateadcd oa appeal that the Tcrdiet was 
 aad cmtrarr to erideaee: — Bdd, a giauag the decisioa of the 
 OmdI of JippcaL that aader the eiideace gtrea at the ■■aarr ia akid 
 the SBoa- froai tke track had beca placed oa the roadaaj iwdi a t ely 
 adjoiaii^. the jarr might iiaiwllj be of opiaioa tkat if it kad aot 
 heea aa pbccd tkere tke acciAeaft avoid aot ka^ kappeaed. aad, tkat tUm 
 was the airie caaae of the aeddeat. 
 
 Tonarto Rj. Ca. t. Toroato, 34 Caa. SLCJL SS9. 
 
 [Coaawated oa ia MitcheU t. HaBiltaBL 2 OUL 58l] 
 
 AiBiiiiMii > I Foa mEMOTAX. or sxov. 
 
 A covcaaat or agreesMat ia a eoatract betveea a ntr aniaieipalitT aad 
 a trajBcar conpaaT. p uisaa at to a br-IaT graati^ the pririkge to operate 
 tramcars oa eertaia eoaditioas. tkat tke ciaqiaBjr skaU par tke eitr oae- 
 half the cost oi the reaMDial of stow fnnH the eatire street sarftiBe, ia 
 the at ic cta ahere the traaMars pass, is aot aa a gnct at of a loai—ifiil 
 aatare. vitkia tke meaaiag of art. -I21 C.CP. Hcace, a trial bjr jarr 
 caaaot he kad ia aa actioa l»oa^t aader tke a gieeta t bj the otj 
 agaia$t tke compaaj. to recover tke cost of toaoral of aaov. 
 
 Moatreal Termiaal Kj. Co. t. MoatnaL 19 Qne^ K.B. 216. 
 
 Riurr TO cuujt icz Axa ssow cno the stuxiiv — ^Etxcmc svEzma. 
 
 Tke Citr Cooacil oi Uoatreal beii^ boosd as tke road antkoritr to 
 Tcaaore tke ice aad {vov oa tke streets from enrh to cnrb. iarladi^ tke 
 saow tkrova or fallmg tkereoa from tke roofe of kpa ws aad leaaored 
 thereto froaa the ridevalks.— Held, that the reepoadeat street laihraT 
 eoaqmav. hariag coatrarted with the rity to keep their trad: free from 
 iee aad saow. did aot. haria* n^sard to the svrroonfiag rirmm^taaees. 
 aad ia the at^eace of vords expreia^lT or iaipliedhr forladdii^ it, contmit 
 a aiusaace Inr saeepiag their ^mw iato tke street. (Ogstoa v. Aberdeea 
 Distrkt Tramvays Co.. [1897] A.C. 111. disti^aiahed.] Hrid. abo. that 
 the citT havii^ graated to the compaar all rights aad privil eges aecessanr 
 for the proper aad effirieat use of riertric pover to operate cars ia the 
 stie e ts in the aaaaeT soccesi^fallT ia n$e ekevhne. the latter could aot 
 be preveated from n^iag the electric sweepers. 11 Qne. K.B. 4^. affiraied. 
 
 Ifoatrcal t. Mootnal Street Rt. Cou [1903] A.C. 4S2. 
 
 [IKsti^aided ia BeH t. Cape Breton Elec Co, 37 X^.K. 303: 31adn> 
 tr. Halifax Elee. Traaraaj, 37 NwS.lL 54S.] 
 
070 strp:et hailways. 
 
 Removal of snowfalls — Electric sweeper — Construction of agree- 
 ment. 
 
 Tlie agreement with the plaintiffs under which the defendant's railway 
 is operated provides that the track allowaaices shall be kept free from 
 snow at the expense of the defendants, so that the cars may be in use 
 continuously; and that if the fall of snow is less than six inches at any 
 one time, the defendants must remove the same from the tracks, and 
 shall, if the city engineer so directs, evenly spread it on the adjoining 
 portions of the roadway, but should the quantity of snow at any time 
 exceed six inches in depth, the whole space occupied as track allowances 
 shall be at once cleared of snow, and tlie snow removed and deposited at 
 sucli points on or off the street as may be ordered by the city engineer. 
 55 Vict. c. 99, s. 25 (Out.), passed to construe the above, enacts that the 
 defendants shall not deposit snow on any street, square, highway or other 
 public place in the city of Toronto without having first obtained the per- 
 mission of the city engineer: — Held, that there was nothing in the above 
 to prevent the defendants from sweeping the small snowfalls or the large 
 to the sides of tlie road by means of an electric sweeper, and the purpose 
 of the application being to prevent the use of the sweeper altogether, the 
 appeal should be dismissed. 
 
 Toronto v. Toronto Ey. Co.. 16 O.L.R. 205. 
 
 Removal of snow from tracks. 
 
 By the provisions of a municipal by-law, to which a street railway com- 
 pany were bound to conform, the company were obliged to remove snow 
 from their tracks in such manner as not to ol)struct or render unsafe the 
 free passage of sleighs or other vehicles along or across the street. After 
 a heavy snow-fall the company removed the snow from their tracks, the 
 result being tliat there was a bank of several inches at each side of the 
 tracks to the level of the snow-covered portions of the street: — Held, 
 that the company had not discharged their obligation and tliat they were 
 liable to indemnify the city against damages recovered against the city 
 by a person who had in consequence of the bank been upset while driving 
 along the street. Judgment of Rose, J., aflirmed. 
 
 Mitchell v. Hamilton, 2 O.L.R. 58 (C.A.). 
 
 Excessive speed — Nuisance caused by depositing snow on street. 
 
 The defendant company removed from their tracks snow which ac- 
 cumulated there during a heavy snow storm, and deposited it upon the 
 highway in such a way as to make it impassable to waggons, which were 
 forced, in consequence, to make use of the company's track, of which the 
 company had notice. Plaintiff's horse and waggon, while proceeding along 
 the track, was overtaken by one of defendant's cars. and. before it could 
 escape, was run into and the horse, waggon and harness, and the contents 
 of the waggon injured. The evidence showed that the car, at the time, 
 was being driven at an excessive rate of speed, and that the driver of the 
 waggon made repeated efforts to attract the attention of the motorman, 
 but failed to do so although there was suflicient light and there was an 
 unobstructed view of tlie place where the waggon was at the time of the 
 accident for a distance of four hundred yards: — Held, in an action claim- 
 ing damages for negligence, the plaintiffs were entitled to recover. Held, 
 that the blocking of the highway by defendant constituted in fact as 
 well as in law a nuisance, and, the common law having been infringed, 
 there was no burden cast upon plaintiff to show a requirement by the 
 local authorities to level the snow to a certain depth over a certain area. 
 
STREET RAILWAYS. «71 
 
 aad fkat maA n^puztmmt lud wiC beoi «— piifJ vith. EUd, also, ttat 
 if wfaihiligj ifefig,! te vu vriied «■, Ike eaae was oae m vkidh de- 
 fcadaate mrn^ aat mlr j^ore sadi a^iigeBcr. bat, also, tkat it vas of 
 sarh a «*«■■»*—• tikat tkcy eoaU not br the esnviae of OKdiaai}: can aad 
 dH^ace hatve axotcd tlv auwUef vhich happmed. Hdd. ako. tbat the 
 iiiiiliiilii— IB tte tamfmMT's darter ia rrlatioa' to the leviHia^ of saov 
 ]daccd i^oB tbr k%hva j,, aHMimted to a cnaditica. 
 Ben T. Cape Bntoa Elee. Co, 37 XJSJR. fSSL 
 
 Cakk or snacEis — AxaeBBStesrr wna cnr — Rmov^Ai. of ssaw — ^Xo^cfea- 
 
 Tke Sahrt Joha Rjr. Co. acqnirrd the Saiat John Street Ballwaj ia 
 UM, aobjeet to tte oUigatiaas at beepiag ia repair the streets ia whieh 
 the lailvaT raa. as protided br & 10 of dO Vict, c 33, aad also the obliga- 
 tina of Trmtniag the saov aad ice as provided bjr s. 10 of m Viet, cl 
 St. Ia 1S95 the Act 38 Viet, c 7±, vas paaaed, s. B oi viudi anthorized 
 tfte coaipaaT to a«Tee vith the citr <rf Saiat Jdha to par the said eitj 
 aa aaaaal saam to be agreed npoa as a eoasideratiaa for takia* tart, etc., 
 of the all ee ls aad the lu a o ral of the imaw thereoa, rriierii^ the coatpaar 
 fira^ all fiabDitr for the sane duri^ the c «Mtiaa a are <rf the agrecsaeat. 
 A**Mg aader the aothontr of tkis scetica. the iiaapaaj aad tike eitr ea- 
 tdcd iato a coatiact hr vhieh the city nadertoak to do what, br the 
 aectioa, it ia aatlnnaed'to do:^Held. i'pcr Tuck. C.J., Haax^oa^ Bart- 
 er aad IfcTead, JJ.), ia aa aetioB for diMigf t caused br the defeadaats' 
 ae^igcaee ia aoi iiiiiiaj. the taam ia a street throo^ vhich the raihrair« 
 raa, that s;. C, aad the a grmta t Bade thereuader. imposes npoa the cirr 
 ao greater liabilitT ia res p ec t to the care of the streets tbu otherwise 
 attadhea to the^ as a laoaicipal civporatioa. aad aegle c t to reaaow tbe 
 laoar aas a awre aoofieasaare for which they wne aot liaUe at the suit 
 off a prirate iadrridaal. aad a aoasoit should be eatnvd. Per Gregorr. 
 J. That there was a statotorr oUigatioa oa the railway eoaipaay to lerd 
 the SBOw aad keep safe ia that respect for poblie trard the streets whore 
 the railway rxm& That while the Act 58. Vict. c. T3 does aoi ii^MMe a 
 daty oa the city, it aathwiics it ia this ia«taaee to becoaw a coatraetor 
 for the perforvaaee of the work, aad to staad ia the plaee cf the enapaay 
 ia respect to all its liabflities ia regard to the iiMiwa l of saow. aad the 
 city is liable to a priTate iadi«idaal for daatages caaaed by its iailare to 
 do so. 
 
 McCrea r. Saiat Joha^ 36 X.B.R. 144. 
 
 "SviBs^CB — SsafovAi. or sxow iun» wx laox tkack to aimaccst pob- 
 
 nUAK OP WISKJS. 
 
 Defcadaat coaqiaay, o]»eratiag a traaway liae ia H., was eaapowered 
 Vy its Act of iacorporatioB aad the rales aude thuc aader to raaove 
 saow aad ice froai its tracks, to eaaUe it to operate its cars, '^Itronded" 
 that, ia case of soch reaiocaL it shooM be the dnty of the eosipaay to 
 level the ^m>w aad ice so reaioved to a oaiforsB depth to be deterauaed br 
 the tify * ■! »■ ■ « *■ • aad to soch distance oa either side ai the track as the 
 l a giam ahoaid direct, or to remofe froia the street all ^mmt aad ice 
 d ifetaib e d , plnaj^bt d or throwa out. etc.. withia 48 hours of the fall or 
 diatuibaaee, etc, if the city eagineer ^onld so direct. Ia ex^ncise of the 
 power c— fated upoa it the defeadaat eoatpaay swept saow froaa it« 
 tracks aad piled it up oa either side of the road ia siKh a way as to 
 foras a ri^e or baak which caused a sleish drirea by ]daiatiff to slew, 
 throwiag hiss out aad severely iajuriag hiis: — Held, that the ii.Mi.iTal 
 
G72 STKEET RAILWAYS. 
 
 by the company, under the powers conferred upon it, of snow and ice, 
 and placing it upon other portions of the street, was not to be treated 
 as a nuisance for which the company would be responsible in damages. 
 Kemble, that, irrespective of any directions given by the engineer, it was 
 tlie duty of the company, in removing snow and ice from its track and 
 throwing it upon adjacent parts of the street, to do so in a reasonably 
 careful manner, and with a just regard to the rights and interests of the 
 public, and that if the question had been left to the jury in this way a 
 verdict for the plaintiflf based upon sufficient evidence could not have been 
 disturbed. Also, that the company would be responsible for the conse- 
 quences of failure on their part to carry out the directions and deter- . 
 mination of the city engineer, but, in the absence of such directions and 
 determination, they were only bound to act in a reasonably careful man- 
 ner, and the adequacy of their performance of the duty cast upon them 
 was to be determined by the circumstances of the case. 
 
 Mader v. Halifax Elec. Tramway Co., 37 N.S.R. 546. 
 
 [Affirmed in 37 Can. S.C.R. 94, 5 Can. Ry. Gas. 434.] 
 
 Accumulation of snow on tracks — Dutt of bemovai, — Negligexce, 
 
 Where a street car company has by its charter privileges in regard to 
 the removal of snow from its tracks and the city engineer is given power 
 to determine the condition in which the highway shall be left after a 
 snowstorm, a duty is cast upon the company to exercise its privilege in 
 the first instance in a reasonable and proper way and without negligence. 
 Mader v. Halifax Elec. Tramway Co., 5 Can. Ry. Cas. 434, 37 Can. 
 S.C.R. 94. 
 
 [Referred to in Toll v. Can. Pac. Ry. Co., 1 Alta. L.R. 332.] 
 
 Highways — Obstruction by street railway — Snow on tracks. 
 
 The failure of an electric railway company on removing snow and ice 
 from its tracks into a highway, to level it to a imiform depth, as required 
 by R.S.N.S. 1900, c. 71, s. 194, is negligence rendering it liable for injuries 
 sustained as a result of such neglect. The onus rests on an electric rail- 
 way company, in an action against it for injuries sustained from snow 
 removed from its railway tracks and left heaped up in a highway, to 
 shew that it was levelled oflF to a uniform depth as required by R.S.N.S. 
 1900, c. 71, s. 194. An electric railway company is not entitled to the 
 verdict on an answer of a jury, under proper instruction as to the duty 
 of the company, in an action against it for injuries caused by the heap- 
 ing up of snow by defendant company when removing same from its 
 tracks, where the answer was to the effect that such accumulation of snow 
 caused or contributed to the plaintift''s injury, although there was no 
 express finding that the snow was negligently left in the highway, since 
 the answer was sufficient to shew that the conduct of the defendant was 
 inconsistent with due care, and that the snow was not levelled to a uniform 
 depth as required by R.S.N.S. 1900. c. 71, s. 194. 
 
 Wright V. Pictou" County Elec. Co., 11 D.L.R. 443, 15 Can. Ry. Cas. 394, 
 47 N.S.R. 166. 
 
 Franchisks — Duty to pave between and outside of rails. 
 
 Where the predecessor of a street railway company, on being granted a 
 long term franchise by the predecessor of a municipal corporation to build 
 a street railway in a public highway in close proximity to a large and 
 rapidly growing city, agreed that the traveled portion of the highway be- 
 tween the rails and for eigliteen inches outside thereof should be kept clean 
 and in proper repair by the railway (such agreement being confirmed by 
 
STREET RAILW AYS. 673 
 
 CS Viet. (Oai.) c 121|, the eaaipaiijr is boond to pare betveea its rails mad 
 for e i^tw iackes ootnde U t tnioi at its owb aqpense on tke higlivaj be- 
 couBg m a!kj street aad beug sobaeqaeBtfy paved Ivr the ■miiripality, wit' 
 wtOstaaMli^K tfce U^way «as tat •■ vapaTed "Bniid road'* a^ea sodi 
 agreeneat was e at ntd iato. [New York t. Hark'W Bridge, He^ Bj. Go., 
 186 K.T. 301, followed.] 
 
 Re TiHtmto and TorcMto k Sobortaa Bt. Col, 16 Gaa. By. Ga& 63, 29 
 O.UL 105, 13 DJ*^ 674. 
 
 F^AXCHISES — USB OP SmXXP — ^PaTI!S€ BETITESX AXD OCTSIOB or KAILS — 
 POVES C^ OxTjUUO RAII.WAT ASV MlTXICIPAL BOASO — ^Matbuals. 
 The Ontario Bailvay and Mnnieipal Board, under s. 3 of 10 Edw. TIL 
 
 (Ont.) c 83, which provides that the Board may require the aiabing of 
 Hia^es, rqiairs. improiiaifta or additions whidi oo^t reasoaably to be 
 ■Bade ia the trads used by any railway nmpany in eonneetioa with the 
 ttaaqportatioB of passoger^. freight or prc^rty. in mder to promote the 
 secnrity w eonrenience ol the pid>lie, has power to require a street railway 
 conpaay, at its own expense, to pave between its rails and for eighteen 
 inches outgide thereof oa the sahaequait paring by a city of the highway on 
 whick the txacfcs were hud, aotvithstanding the fact that when the ecm- 
 paay acquired its franchise and laid its tracks on sudi highway it was a 
 moe '^nd nnd"^ lyung beyond but in dose proximity to the limits of a 
 large and rapidly growing city; since the word ^^traeks^ as used in s. 3 
 must be given its widest meaning so as to indnde not oaly the tails 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. 
 
 4 Oat. I c. 83. to require a street railway not coostrueted under an order of 
 such Board, to pave between its rails and outside thereof. i» not affected by 
 c. »4 of 1 Geo. V. (Ont.), which is applicable only to such railways as may 
 have been constructed under an order of such Board. On requirii^ » street 
 railway c<MDpany to pave between and outside of its rails the Ontario Rail- 
 way and Municipal Board >honld 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 k Suburban By. Co.. 16 Can. Br. Gas. 65. 29 
 OJL.B. 105, 13 DX.B. 674. 
 
 DaSGEXOCS PLACXXG of pole — WaJST <»• UCHT8 — COIXISIOX — LlAIOUIT — 
 
 Sbgucxsce. 
 
 A street railway eonpany is not liable for injuries resulting from a etd- 
 lision of an autoaaolnle driven at night with a wire pole erected between 
 the tracks, where tte placJag of the pole was done in pursuance of a 
 ■raaieipal by-law and under the supervision of the city engineer, and there 
 hamg ao mimieipal regulation as to lighting the pole. [Weir t. Hamilton 
 Sbeet By. Co, 32 Oi.B. 578, 22 D.I.R 155, reversed.] 
 
 HamiltoB Street By. Co. t. Weir, 19 Can. By. Cas. 233, 51 Caa. S.C.B. 
 506: 25 HXiEL 46. 
 
 OwMxaas bt mitmcipautt — Gmotwat kail — "Skgukesce — ^Xcisaa<x. 
 
 Tke ase oi a grooved rail at street intersections by a miraicipal eorpora- 
 fioa aulhuiiaed by statute to build and operate a street railway, is not ae^ 
 UgUMia, mcfc a laH being in common use and aeeessazy for its porpase. 
 Ncifter, ia ilw aae of such a rail, can the eorpoatioB be At i ^ d to aaia- 
 taia a palilw aaisaaee, for the legislature, ia anaorixi^ tte coastnie- 
 Om. By. L. Dig. '* 
 
G74 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 — Altebatiox of gkade — ^Municipal ebgulation — 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 tlie 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 — Coxstruction — Claim of corporation to recov- 
 er MONEYS EaCPENDED IN REMOVING SNOW AND ICE FROM RAILED STREETS 
 
 — Liability of street rail\vay 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 ^lunicipal Board Act, 
 R.S.O. 1914, c. 186. The city is not compelled to make an application to 
 the Board, under s. 2], 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," 6.3 Vict. 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 removk 
 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. Tlie 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 nonremoval. 
 
 Toronto v. Toronto Ry. Co., 46 D.L.R. 435, 24 Can. Ry. Gas. 255, 44 O.L.R. 
 308. 
 
 C. Fares; Car Service. 
 
 EXTHarSION OF RAILWAY — TiME TABLES — OPEN CARS — HeATING — NiGHT 
 CARS. 
 Under the agreement between the plaintiffs and defendants, which is set 
 out in 55 Vict. c. 99 (Ont.), the right to determine what new lines should 
 be established and laid down is vested in the city, and appl ies 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 
 
 wkm and item ears sbcold be Iwatcd, is for tbe otj ^^iBcer, aibjeet to 
 tke affcoval ai iht otr cookiL TW dtr Iutc bo powr to coa^el the 
 tmmfmm^ to eoatnae to nn after wdai^t sbt car wbidk. bariag started 
 hciaic aidwgjkt. eaanot ia doe course fiai^ its route br that tiaM. Ob a 
 fecial case slated in an aetioB odr saeh ^pestaoas will be aaswred as 
 ■nat BecaJMu ily arise in the acticB. Tbe Conrt, t h e ief or e , ia \itm <rf C3 
 Tiet. c 102, s. 1 aad 5 (O.).. beii^ Bade a^IicaUe to the dtj dedined to 
 BBSwer a ^piestiaa raided ib a special case as to tbe ri^t <^ the city to 
 have ■yrfifif ll jr perfonaed tho<e proiisioas of tbe a giteaMB t bereia 
 foBBd ia its favoBr: aad an expreaaon <rf opiaioa pmioosJr gins agaJBSt 
 •raati^ sadi spcvifie perforaaBce. foUowi^ RiagstoB t. ELii^stm Slee. 
 Bt. Col (18MI, 25 JLR. (Oat.* 4«±. was vitbdnav. 
 'Tomato r. Toronto Rr. Cou 4 Caa. Br. Cas. ISS, 9 OX^ 333. 
 [Taricd ia 10 O.I.IL €57, 5 Can. Rt. Ca.$. f39: TCinprsed in 37 Can. S.CJL 
 430; 5 Can. Rr. Cas. i5lfz Taried. [1907] A.C. 315; a^iroTed ia Toraato r. 
 Toraito Rj. Cou [ISilO] JLC. 312: followd ia Tomato x. Tomato Rt. Col, 
 11 OXlB. 103; MoBtreal Street Rt. Co. t. Becord^'s Court. 37 CaB.'s.CJL 
 317; Tonato t. Toronto Rt. Co.. 12 OX.^ 534: ivteiTcd to in Can. Nortb. 
 Rt. Col t. Robinmn. 43 Caa. S.C.R. 410: relied on in Toroato Rt. Col t. T^m^- 
 oato, 19 Ol-R. 396: Robin^tw t. Can. Xortbera Rj. Co^ 19 MaJa. L.R. SlCu] 
 
 TtME TJlH-CS — ROCTES OfEX CJtK$ — ^XlCHT CASS. 
 
 Upon aa appeal bj tbe defendants and a CTo«<-appeal br tbe plaiatilfs tbe 
 jiMlf_i a I <rf Anglin. J- reported 9 OX^ 333, 4 Can. Ry. Ca5. 159. as to 
 tbe iMBitiwrtiiM ia certain respects of tbe afeiunmit betarcen tbe Citr of 
 TorartB aad tbe Torooto Rt. Co. was aSrawd except as to tbe running of 
 ni^t cars, tbe Court of Appeal bei^ of opiaion. rvrersii^ tbe jndgBHBt 
 b elw OB tbis poiat, tbat a car vhicb starts on its route bef<Mie Biidaigbt 
 — tt fialab its route ewB if it bas to ran after aiidnigbt to do $o. 
 
 ToniBto T. Toronto Rt. Co.. 5 Can. Rjr. Ca& 239. 10 OX.R. 637. 
 
 [Benrsed in 37 Can.'s.C.R. 430. 5 Can. Rj. Cas. 250.] 
 
 Use or hkhwats — Ciis sEsncf: — ^Tixe tsblek. 
 
 Except vbere otberaise ■^pecianj prarided in tbe aj.muMBt betvcea tbe 
 Tonnto Rj. Co. aad tbe Citr <rf Toronto set fortb in tbe scbednle to c 99 
 of the statutes of Ontario. 55 Vict_ in 1892. tbe rigfat of the citT to de- 
 terBUBC, decide upon and direct tbe establbbBent of ne«r lines <rf tracks and 
 truavay serrice in tbe manner therein prFsvritied. applies oahr nitbin the 
 tenitnrial liBit.« of tbe citr as constitutMl as tbe date of tbe coatract. 
 JadgBKBt a^Makd fron (10 OXJL 657, 5 Can. 1^. Cass. 239K rerer^d, 
 Girouard. J., dissenting. Tbe city, aad not tbe coaapany. is Ae proper 
 auldbority to detemine. decide upon and din•^rt tbe estaMishaMBt of nev 
 lines, aBd tbe serTice. timetables aad routes tbervon. Jndgmeat af^ealed 
 from ■111 and, Sedgenick. J.. dLK^enting. As between tbe contnctiB^ par- 
 ties, tbe coaapany. and sot tbe city, is tbe proper authority to determoBe, de- 
 cide i^OB aad direct tbe time at which the use of open cars shall be dis- 
 fontiantd in the ABtuaaa and resaawd ia tbe Sprii^ aad whea the ears 
 th o a ld be prorided with beati^ apparatas aad heated. Jad giat appealed 
 fraai reversed. Girouard. J., dkseati^. Upoa tbe faihinp of the uaapaaj 
 to eaai^r with requbitioBs for extcasioos as prorided in tbe agreeawat, it 
 has BO ri^ft uf aetiaa against tbe city for grants of tbe |»iTilege to others; 
 the ri^t of Wial iaj, sack grants accrues — ipso facto, to tbe city, but is not 
 the oaly 1 1 1 ilj wUdi the city is entitled to iaToke. J udgaan t appealed 
 fraa afinwd, Scdgeaick, J., dissent ii^. Cars startii^ out befocv aiida^Ebt 
 as day-cars saty be icqfoind fay the city to coaaplete their routes, attboi^ 
 
676 STREET RAILWAYS. 
 
 it may be necessary for them to run after midnight or transfer their pas- 
 sengers to a car whicli 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.K. 430. 
 
 Operation of cabs — Fender — "Front" of jiotor cab — Penalty. 
 
 By 1 Edw. VII. c. 25, s. 1 (Ont.) it is provided that a street railway com- 
 pany, wlien operating any portion of their line by means of electricity, 
 shall use "in the front of each motor oar 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 tlie 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. Ry. Cas. 234, 10 O.L.R. 730. 
 
 Newly annexkd tkkritory — Stopi'ing places — T'igiit to fix — Determina- 
 tion OF ENGINKEK. 
 By s. 14 of the agreement entered into between the plaintiffs and defend- 
 ants, set out in 55 Vict. c. 9fl (Ont.), the defendants are required to estab- 
 lish and lay down new lines and to extend the tracks and street car service 
 oil 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 
 l)y l)y-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 tlie 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. (1004), 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. l(i 
 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. 632 
 of the Municipal Act, for that section only applies to tliose electric 
 railways which come within R.S.O. 1897, c. 209, and had no applica- 
 tion to the defendants. Tlie by-law for the laying out and construction of 
 the extension was jiasscd 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 pro<-lamation 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. 6 of 63 Vict. c. 102 (Ont.) it is provided that if the railway company 
 neglect or fail to perform any of their obligations under the Act and the 
 
STREET RAILWAYS: 677 
 
 agreement, mnd an action is taroa^ht to compel performance the Court be- 
 fore whom the action is tried shall, nofithstanding anv rule of law or prac- 
 tice to the contrary, enquire into the alleged breach, and in case a breach is 
 found to have been committed, shall make an fflrder specifjring what things 
 shall he done br the defendants as a substantial compliance with the Act 
 and agreement; which shall be oiforcible in the same manner, etc., as a 
 mandamnsL Held, that an order could be made specifying what was neces- 
 sary to be done to constitute a substantial compliance with the agreement. 
 [Kingston x. Kingstcm t Cataraqni St. Ry. Co. (1893i, 25 AJL (Ont.) 4Si, 
 specially refored to-1 HekL also, that the corporation could aiarce the 
 laying ont of such extensicm notwithstanding the option given fay s. 17 of 
 the agreement to grant to another person or company the ri^it of laying 
 •iown lines on streets, after failure of the defendants, though dnlj BOtlfied, 
 to do so. HekU also, that the engineer for the time being and not the en- 
 gineer who held oflke when the agre^nent 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 corporatiorf. to whom he must make his reoommenda- 
 tion, which the council may approve or reject as they see fit. By s. 26 of 
 the a gitemm t it is provided that the speed and service necessary <m 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 ears 
 shall only be stopped clear of cross streets, and midway between streets, 
 where the distance exceeds €00 feet. Held, that the regulation (rf the places 
 at which cars are to stop to take on and let off pasieengers is part of the 
 service within s. ±6. and. therefore, subject to the limitations of Sw 39. the 
 defendants might be required to stop wherever the city mgineer and city 
 council might agree in requiring them to do so. The engineer reported to 
 the council recommcvding that the cars should be required to stop at cer- 
 tain specified points, and his report was adc^ted by resolution of the eoon- 
 ciL Held, that this was a determination and not merely a recommendation 
 of the engineer, for it must be assumed that before making his rccanuMn- 
 dation he had determined the matter so far as he could : and that it was not 
 essential that the adopti<m of such reeommmdation should be by by-law. 
 
 Twmto V. Toronto Ry. Co., 5 Can. Ry. Cas. 278, 11 O.I^R.' 103. 
 
 [Affirmed in 12 O-L.R-534. 6 Can. Ry. Ca*. 381: followed in BUck t. Win- 
 nipeg Elec. Ry. Co., 17 Man. L..R. S4,' 6 WX.R- 238.] 
 
 Xewxt axxexed tekutokt — Stoptixg rLACES — Right to ftx — Detekmiaa- 
 nox OP ExeiXEXs. 
 Su 1-1 of the agreement entered into between the plaintiff^s and defend- 
 ants, set ont in 55 Vict. c. 99 I Ont. i 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. frcMU time to time, recommended by the 
 city engineer and approved by the city council, does not apply to territory 
 whidi was not within the limits of the city at the date of the agreement: 
 but has subsequoitly been annexed to and become part thereof. [Toronto 
 Ry. Co. V. Toronto. 37 Can. S.C.R. 430 I reversing the jnd^mort of the Court 
 of Appeal, 10 OX.R. 657 i, followed.] By s. 2t» of the a g r eemen t the ~spet-d 
 and soTTce" 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 br 
 s. 39 the cars shall only be stopped clear of cross streets and midway 
 between streets, where the distance exceeds six hundred feet: — H^d, sub- 
 ject to the limitation of section 39. that the r^^nlating of the places at 
 which ears shall be stopped came within condition 26 relating to the speed 
 and service, and was therefore to he determined ty the city engineer and 
 approved of by the couneiL The engineer made a report to the council 
 
G78 STREET RAILWAYS. 
 
 recommending tliat 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 
 l)efore determining what service should lje supplied, and that such report, 
 though somewhat informally expressed, was a sufficient determination on 
 tlie part of the engineer, and that the adoption by resolution was sufficient, 
 it not being essential that such adoption should he by by-law. Held, also, 
 that the plaintiff's were entitled to an order restraining the defendants from 
 running the cars upon their railway, except in accordance with tlie 
 determination of the engineer as to the stopping j)laces. 
 
 Toronto v. Toronto Ry. Co., 6 Can. Ry. Cas. 381, 12 O.L.R. 534. 
 
 Equipment of caks. 
 
 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.lK. 772, 15 Can. Ry. Cas. 19. 
 
 CONTBACT WITH MUNICIPALITY — BY-LAW — IXTRA VIBES — "WOBKMEN'S 
 
 tickets"^ — "School childben's tickets." 
 
 Upon the proper construction of the defendants' Act of incorporation, 36 
 Vict. c. 100 (Ont.) the amending Act, 56 Vict. 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 tlie public gen- 
 erally; and that the provision of tlie liy-law in that behalf was not ultra 
 vires of the plaintilFs. 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 wliicli 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. 
 1 53, that the agreement of which the enforcement was sought in this action 
 
STREET RAILWAYS. 079 
 
 ««s intia Tires; that l^ the Uamm «f the agrecBat tk defcadaats tov 
 bomid to acD on their caia ticb^s kaova as "wwIl m's tickets" or -^liautcd 
 tickets.^ aad to reeore thcat froai all persoa s teaderiag thea* as fut^ dor- 
 ii^ eertaia ap r vi^4 hours of tbe dar; that the plaiatiffs eoaU apaiataia 
 the aetiaa withoot the aid of the Attomer-Gcneral ; aad that perfonaaace 
 of the eoatraet could be enforced br the Court bv iajoaetiaB. [Ki]^:stoa 
 T. Kiagstim, etr„ Eke. Rt. Co. (ia»S), 25 A.B. -l«±. distiagnished.] 
 
 Haauttnt ▼. HaaiiltoB Street Rj. On. (No. 2), a Gsa. Bj. Gss. 223. 10 
 OXJL 394- 
 
 Bt-law op MxrsicirAurT — Passexgk« fakes — Schooi. chujkex — ^Redccxb 
 
 Uader a aumiripal bj-lair g mea aiag a street railvar. it va$ provided 
 that the ordiaarv ca^ fare should be 3 ceBt», children nader fire rears of 
 a^e. aot occnprii^ a seat aad aceoBipaaied br its pareat. to be carried 
 free; aad for erur child uader twelTe jears of age, except as af<vesaid. 
 the fue should aot exceed 3 e^ts. Tickets were to be iseued aad sold 
 at the foDoving rates: Ordinarr tickets, six for 23 eeats, each ticket 
 to be taken ftH* aa ordiaarj 3 emt cash fare; ckildrea's aad a^ool 
 childreB's tickets, ten for 25 c^rts, cack ticket to be takea for a S-ceat 
 fare, as abore provided; vorkiag iBea*8 speoal tidkets, eight f<M- 25 cents, 
 to be takm for a 5-ccat fare: — Held, lero-siag the (»der of the On- 
 tario Railvar and Uonicipal Board, that tbe dbildren mtitled to schoirf 
 children's tickets were thoee uader the age of twelve vear^. and not those 
 uader ta-mtv-one. eva tbon^ the latter vere actualhr attendiag schot^ 
 
 Re Sandv'ich East aad Windsor k IVcuBseh EIec.*Rj. Col, 8 C^a. Rj. 
 Cas. 125. 16 OX.R. Ml. 
 
 Fakes — Apfkovai. w tjlkiit bt pakk (xanassioyvms. 
 
 Hw Oatario Railvav aad Unaicipal Board, upon aa appiieatian hj tte 
 Board of IVade above-aaiaed. nade aa order cMapeliing Ae latoraatiaaal 
 Rf. Co.. owning and tolerating an electric railway along the bank of the 
 Niagara River from Qoeenston to Chippawa. and inoinrporated bj 35 Viet. e. 
 9C (Oat.) to coaBphr with s. 171 of the Ontario Railway Act, 1906, bv ae- 
 eeytiag a five emt cash fare for conveying passengers for any distance aot 
 I iimliag three miles, ete.: — Held, reversing the order of the Board, that the 
 rwM|iaj caBM within sabs. 5. of s^ 171. providiag that ~tlus section shall 
 Bst appfy to a coatpaay whose tariff for passenger fares is subject to the ap- 
 piaval of aay eanmi^ioBers in whom are vested aay park or laads owned 
 by tha Oowa for the use of the public of the Province of Ontario;" aad, a. 
 171 heiag thus excluded, that the Board has no power, on aa applieatiai 
 m ac k as waa amde in this case, to direct what fares the company should 
 chaige. The effeet of the incor p o r ation into the company's Att <rf s. 31 <rf 
 the Railway Art of Ontario. 1LS.O. 1887, c. 170. was not to abrogate eianse 
 % vi the agrvemeat with tJbe Oounusnoncrs for the Queen Tietoria Niagara 
 Fan Park, set out as sch. B to the etanpany^s Act. Tbcy should be read 
 together in such a way as to give ^ert to both: and readiag tke^ as sub- 
 jectiag the company's tariff to the approval of both the MuaaiiswiiMniB aad 
 the IJent. GoTemm- ia Council (<h- the Board sohstitnted thoefor) was not 
 inconsistent with the intention of the parties. 
 
 Re Niagara Falls Board of Trade aad latonational Rr. Col, 10 Cka. 
 Ry. Cas. 63, 20 OXJL 1*7. 
 
 PAS^n^a FAKES — Agmebmext as to sfbcui. kjosb — Usjt:rsT aiscsna- 
 
 XATIOX. 
 
 A coapaay (^cratiag, subject to DiMuakm authority, a traaiway 
 thrn ^g h aevcnl ■wmiripalities adjacent to the ci^ of Moatreal, aad hav- 
 
G80 STREET RAILWAYS. 
 
 ing connections and traffic arrangements with a provincial tramwaj- 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 
 whicli tliere was no such agreement. On the hearing of a complaint, al- 
 leging unjust discrimination in respect to fares, the Board refused to 
 take the agreement into consideration when tendered in evidence to justify 
 the granting of the special rates and ordered the company, appellants, to 
 furnish the service to persons using the tramway in both municipalities 
 at the same rates of fare. On an appeal, by leave of the Board, in respect 
 of the propriety of overlooking the contract, submitted as a question of 
 law: — Held, Davies and Anglin, JJ., dissenting, that, as the existence of 
 the contract was one of the elements bearing upon the decision of the 
 question of substantial similarity in circumstances, the Board should have 
 admitted the evidence so tendered in regard to the agreement in considera- 
 tion of which the special rates of fares had been granted. 
 
 Montreal Park & Island Ry. Co. v. ilontreal, 11 Can. Ry. Gas. 254, 43 
 Can. S.C.R. 256. 
 
 [Referred to in Can. Pac. Ry. Co. v. Regina Board of Trade, 13 Can. Ry. 
 Cas. 203, 45 Can. S.C.R. 321.] 
 
 Operation — Through Cars — Tkrmixai, and ixteirmediate points. 
 
 Neither the Act of Incorporation of the defendants, 39 Vict. c. 87 (Ont.), 
 nor the agreement with, and the by-law of the city of Hamilton, contains 
 any limitation upon the right of the defendants to operate through cars 
 between terminal points without stopping, and in the absence of any regu- 
 lation by the Ontario Railway and Municipal Board under the Ontario 
 Railway Act, 3 & 4 Geo. V. c. 3(5, the defendants have the same right as 
 steam railways to run trains or cars from one point on its line to another 
 without making any intermediate stops. 
 
 Fielding v. Hamilton & Dundas Street Ry. Co., 18 Can. Ry. Cas. 82. 
 
 Order of Ontario Railway and Municipal Board to put on additional 
 CARS — Failure to comply — War conditions. 
 
 It is no answer to an order made by the Ontario Railway and Munici- 
 pal Board to a street railway company to place additional cars upon its 
 system, that the company had made all possible efforts to do so, but that 
 owing to the war and other conditions compliance was impossible, where 
 the company has not applied to the Board imder s. 25 of tJie Railway and 
 Municipal Board Act (R.S.O. 1914, c. 186) to rescind or vary the order 
 or under s. 42 for an extension of time for compliance. 
 
 Re Toronto Ry. Co. and Toronto, 46 D.L.R. 547. 
 
 Ontario Railway and Municipal Board ()rdi:r to pit on auditional 
 cars— Failure to comply — War conditions — Order rescind or vary. 
 
 It is no answer to an order made by the Ontario Railway and 
 Municipal Board to a street railway company to place additional 
 cars upon its system, that tlie company had made all possible efforts 
 to do so, but that owing to the war and other conditions compliance was 
 impossible, where the company has not applied to the Board under s. 25 
 of the Railway and Municipal Board Act (R.S.O. 1914, c. 186) to rescind 
 or vary the order or under s. 42 for an extension of time for compliance. 
 
 Re Toronto Ry. Co. and Toronto, 24 Can. Ry. Cas. 278, 44 O.L.R. 381, 
 46 D.L.R. 547. 
 
STREET RAILWAYS. 631 
 
 IscmEJk:^: or fakes — Bt-i^t — Scbmissiox to eixctucs. 
 
 The aty cotmol kas power under e. 39 of the ConsoUdaied Railway 
 Coapa^s Act, 1896 (B.C.)t to eater into aa a^recseat vitk the street 
 raihtaj tiTraiiaj; Ite aaoont of fares to be paid br pacse^io^ aad Bar 
 paas a bj-Iav aathonzn^ the sane irithoiit sotanittiag the by-law to the 
 dertors. The power «f the Comeil nnder Su 39 to make or vary an agree- 
 tnt as to fares is aoi affected by »abs. 13 of s. 1±3 of the Vaaeoarer la- 
 covporatiM Act, 1900, as aaended by B.C. Stat$. 1912, e. 59, s. a. 
 
 YaBOMner t. British Cofamibia Eleetrie Bv. Co.. 26 B.C.R. 162. 
 
 D. » * — « *< r *' Ow aeaihip ; Bonus. 
 MimciPAi. owxocsHir of kailwat — A^tsatoks. 
 
 The Q-S. Ky. Co. were authorized nadfr a by-law passed by the corpo- 
 ntaaa «i the eity <rf Quebec and aa a^^iMist exeeoted in porsnance thcve- 
 of to eoBstmet and operate in certain streets of the eity a street railway 
 for a period of forty year». bot it was al:>o prorided that at the expiration 
 of twenty years (froa the 9th February, lSd3), the eorporatioa ais^t, 
 after a notice of six inontha to the !«id «NBpany, to be given within the 
 iBcJre ^MMths immediately preceding the expiration of the said twenty 
 jvan, assome the ownership of the said railway upon payment, ete. of 
 its Talne. to be determined by arbitration together with tm per cent addi- 
 tioaal: — Held, reversing the judgments of the Courts below. Foamier. J., 
 dieaenti]^. that the conpany were entitled to a full six months' not ire 
 ^ior to the 9th February. 1S85, to be given within the twelve months 
 p rece d ing the 9th February. 1885, and. therefore, notice given in Xuvem- 
 ber, 1SS4. to the company that the corporation would take possession of 
 the railway in six BMmths thereafter was had. Per Strong ami Henry. JJ. 
 That the Court had no power to appoint an arbitrator or valuator to 
 ■nke the vahatiaa provided for by the agreement after the refusal by the 
 company to appoint their arbitrator. Foumier. •!.. contra. 
 
 Quebec Street By. Co. t. Quebec, 15 Can. S.C.R. 164. 
 
 FltuccHiscs — Assrirmox or ow^sesshif by mimcipautt — PrnmarLx, of 
 
 TJU-CATIOS VaLCT or F»ANCH1SE- 
 
 BjS.O. 1897. e. 20S. s. 41 (It provides that -Xo municipal eooaefl shall 
 graat to a street raflway company any privilege nnder this Act for a 
 Igagrr period than twenty years, but at the expiratiaa of twenty years 
 frmm the time of passing the first by-law whiefa is acted upon, conferring 
 the r^t of laying rails upon any street, or at such earlier date as may 
 be fixed by a g ree m e n t, the municipal corporation may. after giving ^Lc 
 isonthar notice prior to the expiration of the period limited, assume the 
 ownership of the railway, and aD real and personal property in coanertion 
 with the workiBg thereof, on payment of the value thereof, to be deter- 
 mined by arbitration.'' Arbitrators were appointed under the Street Rail- 
 way Act. TLS.O. 1897. c. 208. to determine the value of the appellants' 
 railway and aB real and personal property in connection with the working 
 thereof, the ownership of which had been assumed, umln- the provisions of 
 a. 41 (1) of the Act, by a town corporation, part of the railway befa^ 
 laid within the town. The arlNtrators in their award fixed on a certain 
 nan as **the actual present value of the ranway and of the real and per- 
 sonal prt^terty in connection with the working thereof."^ and stated that 
 in arriving at that Tslae they had Valued the railway as beii^ a railway 
 ia Use and capaUe of being used and operated as a street railway.*' and 
 that they had ~not allowed anything for the value of any privilege or 
 franchi^ whatsoever,'* in either of the mnnitripalities in which the rail- 
 
682 STREET RAILWAYS. 
 
 way was laid. They further stated that they had not been able to assent 
 to the contention of the company that the proper mode of valuation should 
 be to capitalize the amount of the permanent net earning power of the 
 railway, and that they had not reached their valuation in any way on 
 that basis, but had "considered only the actual present value": — Held, 
 iNfoss, C.J.O., dissenting, that the arbitrators had erred in their method 
 of valuation, and that in the case of a railway producing, as the appel- 
 lant's railway did, a considerable permanent profit, the proper method of 
 valuation was to take its net permanent revenue and capitalize that, the 
 result representing its real value. [Stockton and Middlesbrough Water 
 Board v. Kirkleatham Local Board, [1893] A.C. 444, distinguislied.] 
 Right of owner to allowance of 10 per cent as for compulsory taking dis- 
 cussed. Judgment of Britton, J., reversed, and award remitted to the 
 arbitrators for reconsideration. 
 
 Berlin & Waterloo Street Ry. Co. v. Berlin, 9 Can. Ry. Gas. 271, 19 
 O.L.R, 57 
 
 [Reversed in 42 Can. S.C.R. 581, 10 Can. Ry. Cas. 181.] 
 
 Fk.\nchise — Assumption by muxicipaijty — Principle of- valuation. 
 
 By s. 41 of the Ontario Street Railway Act, R.S.O. 1897, c. 208, no 
 municipal council shall grant to a street railway company any privilege 
 thereunder for a longer period than twenty years, and at the expiration 
 of a franchise so granted, or earlier if so agreed upon, it may, on giving 
 six months' previous notice to the company, assume the ownership of the 
 railway and all real and personal property in connection with the working 
 thereof on payment of the value of the same to be determined by arbitra- 
 tion: — Held, reversing the judgment of the Court of Appeal, 19 O.L.R. 57, 
 9 Can. Ry. Cas. 271, that the proper mode of estimating the value of the 
 ''railway and all real and personal property in connection with the work- 
 ing thereof," was not by capitalizing its net permanent revenue and taking 
 that as the value, but by estimating what it was worth as a railway in 
 use and capable of being operated, excluding compensation for loss of fran- 
 chise. Held, also, that in view of the provisions in the Street Railway Act 
 authorizing the municipality to assume ownership of a street railway op- 
 erating in two or more municipalities the company in this case whose 
 railway was taken over by the town of Berlin was not entitled to com- 
 pensation for loss of its franchise in the municipality of Waterloo. On 
 the expiration of its franchise the company executed an agreement ex- 
 tending for two months the time for assumption of o\vnership by the mu- 
 nicipality, but did not relinquish possession until six months more had 
 elapsed. During the extended time an Act was passed by the legislature 
 reciting all the circumstances, ratifying and confirming the agreement for 
 extension and authorizing the municipality to take possession on payment 
 of the award subject to any variation in the amount by the Court. Held, 
 that though this Act did not expressly provide for taking possession on 
 the same footing as if it had been done immediately on the expiration of 
 tiie franchise its efi"ect was, not to confer on the municipality a new right 
 of expropriation in respect of an extended franchise, but merely to extend 
 the time for assumption of ownership under the original conditions. The 
 rights of the company to compensation are defined by statute, and there 
 is no provision for an allowance of ten per cent over and above the actual 
 value of the property. 
 
 Berlin v. Berlin & Waterloo Street Ry. Co., 10 Can. By. Cas. 181, 42 
 Can. S.C.R. 581. 
 
STREET RAILWAYS- 683 
 
 ifusiciPAL AID — Ooxstarcnos betosd limits or musicxpaijtt — Yal- 
 iDATXxc Act. 
 
 Tlie town of Port Artknr pa&scd a bv-Imv to nke the warn of $73,000 
 for street railvsT purpcxscs, and to aatkmrixF the isMie of deheatam tkrre- 
 fu*, vhidi recited, iater alia, tliat it va» neeessarr to raise said saaa for 
 tbe porpose of bnildiag. et^^ a street railwaj coanectii^ the miiucipalitT 
 «rf Xeefaiag vitli tlie bnt^iaeas cmtre of Port Arthur. At that tine a ^o- 
 ■ieipalitT vas not aotborized to constmet a street railvar b^oad its ter- 
 ritfwial limits The br-lav was Totcd opon by the ratepayers asd passed. 
 Lat aoae «as safamitted orderinjc the coBstmctioa of the wtvk. Subse- 
 ^umtlT an Act «a> pa^^sed by the Le^islatnre of Ontario vhidi enacted 
 that the ^aid by-lav ~is hereby confimed and dedared to be valid, k^al 
 and Inndin^ on tbe tovn . . . and for all purposes., etc relatinv to or 
 affecting the said by-lav. and any and all aBMadMents oi the Municipal 
 Act . . . shall be dccvied and taken as having been conaplied vitb'*: — 
 Held, reversing the decision of the Court of Appeal. Taackercno, J., dis- 
 aftiig. that the said Act did not dispense with tke iw| i uif ents <A ss. 
 304, 303 of the Municipal Act requiring a by-lav proridbig for eonstrae- 
 tioB of the railvay to be passed, but only ron liitd Ae oae thai vms 
 paimeiil as a money by -lav. Held. also, that an erroneoos recital in the 
 prenmbie to the Act that the Tovn Council had passed a eoBstmctioa br- 
 lav had no effect on the ipaestiaii to be decided. 19 A.R. (Ont.) 353, re- 
 versed. 
 
 Dnyer v. Port Arthur. ±2 Can. S.CJL 241. 
 
 [Beferred to in Bell v. Westmount. Id Que. S.C. 383.] 
 
 E. R^nlatkn; BailwaT Board. 
 Sbccxatio:^ nr crrr »t-lav. 
 
 A requirement of a city by-lav that a street railvay company should 
 Ikcep and nmintain its engines, machinery and pover bouses vitkin tJw 
 city limits, is complied vith by the maintomnee therein of a sub-station 
 containing apparatus for the reduction of the voltage of electricity gcaer- 
 ated beyond the city liaaits and also for transfomung into a direct car- 
 icnt. 
 
 Winnipeg Elec. Ry. Co. v. Winnipeg. 4 DJ..B. IIC, [1913] A.C. 333. 
 
 ArraovAL or pi_*:ss — Coxmtioxai. .utwivai- 
 
 (1) Xotvith^tandii^ the provision of s. 472 of the Winnipeg Ckarter 
 that 'nhe povers of the council sball be eAercised by by -lav vhen not 
 «i*hervwe antkorized or provided for.~ the approval by the city council of 
 the coiHtmetion by defendants of a loop line on certain named streets of 
 the city may be given by resolution. [Toronto v. Toronto Ry. Co. (1900), 
 12 OX.R. 334. foUoved.] <'2» It is not a valid objection to such a resoln- 
 tioa that it vas one af^roving a retort of the Board of Octroi even if 
 snch Board had no pover to deal vith sndi a matto*. <3) Tke coonefl 
 had pover to give an approval coupled vith a conditiim that the company 
 should also con>^ruct another loop line on certain other streets, although 
 the council might be nnaUe aftnvards to oiforce the omditian. (4) 
 Under the lav governing such construction the approval of the detailed 
 plans by the City Council is not required, so that tbe making of a change 
 in the plans by the etty engineer which had not been approved by the 
 council vas no giunml for an injunction. 
 
 Black T. Winnipeg Slee. Ry. Co.. 17 Man. L.R. 77. 
 
 Bbeach or KT-LAV — IxTorKsnois or ArroKXET-GEXimAi. 
 
 In an action bj tke Attorney -General on the rdation of a city aai its 
 
684 STREET RAILWAYS. 
 
 building inspector and by the city in its own right against an electric 
 railway company to restrain the breaches of certain city by-laws concern- 
 ing the erection of buildings and of any gas works or gas holders within 
 llie city, in which action the company claimed that by virtue of tlie powers 
 derived from another company that it was not subject to the by-laws and 
 also denied their validity, and at the opening of the trial applied to amend 
 its defence by pleading that the plaintiffs, by the judgment of the Privy 
 Council in the company's favour in a former action which the city alone 
 brought against the company and in which the issues were similar to 
 those in the present action, were estopped from denying that the latter 
 possessed all the powers of its predecessor, the Attorney-General is not 
 estopped by the judgment in the former action and as against him the 
 application to amend should l)e refused. [St. ilary Magdalene v. Attorney- 
 (leneral, G H.L.C. 18fl: People v. llalladay, 93 Cal. 241, 29 Pac. R. 54, 
 writ of error dismissed, 159 U.S. 415, distinguished.] 
 
 Attorney-General v. Winnipeg Elec. Ry. Co., 5 D.L.R. 823, 22 Man. L.R. 
 761. 
 
 BrKACII of XIlNIt [PAL BY-LAW — InTERVKXTION OK AxTOUXEY-GENEaiAL. 
 
 In an action by a city in its own right and by the Attorney-General on 
 the relation of the city and its building inspector against an electric rail- 
 way company to restrain the breaches of certain city by-laws concerning 
 the erection of buildings and any pas wori<s or gas holders within the city, 
 in which action the company claimed that by virtue of the powers derived 
 from another company it was not sul)ject to the by-laws and also denied 
 the validity of the by-laws, and at the opening of the trial applied to 
 amend its defence by pleading that the plaintiffs, by the jiulgment of the 
 Privy Council in the company's favour in a former action which the city 
 alone brought against the company and in winch the issues were similar 
 to those in the present action, were estopped from denying that the com- 
 pany possessed all the powers of its predecessor, the amendment was al- 
 lowed as against the city and an opportunitj' given the company of proving 
 it. 
 
 Attorney-General v. Winnipeg Elec. Ry. Co., 5 D.L.R. 823, 21 W.L.B. 
 906. 
 
 Actions against electric railways — Ixtervextiox of Attorxey-Gex- 
 
 ERAL. 
 
 The right of the Attorney -General to take action on belialf of the public 
 for the violation by an electric railway company of a by-law forbidding 
 the erection of gas liolders within the city without lirst obtaining the per- 
 mission of the city council, cannot be taken away by the city consenting 
 to the erection of a gas liolder by a company in breach of the city's own 
 by-law. [Yabbicom v. King, [1899] 1 Q.B. 444. followed.] 
 
 Attorney-General v. Winnipeg Elec. Ry, Co., 5 DJ^R. 823, 21 W.L.R, 906. 
 
 Breach of city by-laws. 
 
 The only party who can sue for the protection of the public right is 
 the Attorney-General of the province in an action to restrain the breach 
 of three city by-laws, one of wliich forbade tlie erection of any gas works 
 or gas holders within the city without first obtaining the permission of 
 the city council, another prohibiting the erection of buildings within the 
 city without a permit from tlie building inspector, and the third prescrib- 
 ing an area within the city within which no gas works should be erected 
 or continued. [Devonport v. Tozer, [1903] 1 Ch. 759; Attorney-General v. 
 
STREET RAILWAYS. 685 
 
 Woablediw, [1904] 2 CL S4; asd Attonej-OcMral t. Poatjrpriddl, [190S] 
 1 Oi. 388, refemd to.} 
 
 AUarmej-Gtmenl v. Wioup^ Elec I^. (X, S DXJL 823, 21 WX.IL 
 MS. 
 
 T(Mm:rro kailwat ACKEzrvEXT — Ottakio Railwat Boabd. 
 
 Ab order w eouneil in par>iuiKe of the jadgneBt of the Prirr Coontil. 
 [1907] A.C. 315. ordered that subject to certaiB conditioos etmtuned in 
 their a«recaKBt it «a$ for the rei^poiideDts and not the appellants to deter- 
 miae vhat nev line& should be laid dovn on streets vithin the eitr of 
 Toronto. Thereafter an order was nude by the Ontario Railvaj and Mu- 
 nicipal Board that the respondents eonstruet between ten and fifteen addi- 
 tional nules of single track, and the company seiected cntain streets for 
 that parpo!4p. Subsequently the Court of Appeal for Ontario affirmed a 
 deeisioB of the said Board that the company had the right to selert: — 
 HekL that the jodgneat in [1907] A.C 313 was perfectly clear and that 
 tke order in ooimeil thereon was unalTected by the Ontario Act, 8 Edw. 
 VJL c. 11*, *. 1. 19 0-Ll.il 396. 1 O.WA. 5. affirmed. 
 
 Toronto t. Toronto Ry. Co.^ [191M]] A.C. 3L2. 
 
 OsTAsio Rah-wat axd ilrxiciFAL Boakd jtmsoictiox — Acbeemett bb- 
 TBXKv jnrxicirAi.mEs — l\»si«E.-i*io}5 or «aii.wat. 
 
 UadcT an agremnent made between two municipalities and confirmed by 
 the statute. 8 Edw. VIL e. 80 (Ont.), one of the municipalities was, on 
 pnjmen t of the amoiut of an award, to b e come the owner of a part of an 
 eketrie railway wbidi tkeretofore had been owned by the other although 
 operated in both municipalities and the whole road was to be opentcd 
 and managed by a board of commissioBers constituted in the manner pro- 
 Tided for in the statute and agreement. The amount awarded having 
 Wen paid, and the appellants, a Board of commissioners who had been 
 <^ieratir^ the railway for the municipality which owned it, retainiig con- 
 troL managfMBt, aBd paiiwiwi<m of the railway, and refusing to permit 
 ctHnpliance with the pnnisioBS of the agreemeat and enactment in r^ard 
 to its operation and management. He Ontario Railway and Municipal 
 Board was applied to. and such compliaBce was enforced by its order: — 
 Hdd, that the Board did not thereby exceed the powers conferred upon 
 it Inr the Ontario Railway and Miuicipal Board Act« 1906. 
 
 Be Port Arthur Elee. Street Ry., 18 OJLR. 37(6. 
 
 (hrrABio Railwat axb Mcxicipai. Boacd — Fkaxchise fob oxi.t single 
 
 TKACK ^XO rOWES TO OBDEX fMMTBLE: TBACK. 
 
 Waddi^tOB T. Toronto Jt York Radial Ry. Co. 18 O.W.R. 021. 
 
 Ooxsnurcno^; asd otebatiox — MryiciFAi, assent — Railwat Boabd. 
 
 Ib the ease of a street railway or tramway or of any railway to be 
 operated as such upon the highways of any city or ine(H|>orated town, the 
 coBsrat of municipal authority required by s. 1^. Railway .\ct. 1903. 
 ■uist be In* a ralid by-law, and in the absence of such fary-Iaw. the Board 
 has BO jurisdictioB to oiforce an order respecting the cmtstroetion and 
 opcntaoB of mch railway. 
 
 Montreal Street Ry. Co. t. Montreal Terminal Rr. CSo., 4 Can. Rt. Cas. 
 373. 36 Can. SXIR. 3C». 
 
 [Adhered to in Essex Terminal t. Windsor etc„ Ry. Co_ 40 Can. S.C-R- 
 4B3; rcfared to ia Cbjl Pac Rj. Co. t. Grand Tmak Ry. Co., 12 OXJL 
 320.] 
 
GS6 STREET RAILWAYS. 
 
 Municipal street railways — Accounting for profits. 
 
 The Courts will not entei'tain a suit for an accounting of profits from 
 the operation of a railway by two municipalities under a formal agree- 
 ment executed not voluntarily but in conformity to an order of the Ontario 
 Railway and Municipal Board, since the matter was one exclusively within 
 the jurisdiction of the Board. 7 D.L.R. 241, 28 O.L.R. 20G, affirmed. 
 
 Waterloo v. Berlin, 12 D.L.R. 390, 28 O.L.R. 206. 
 
 [Referred to in Malone v. Hamilton, 10 D.L.R. 305.] 
 
 F. Negligence; Contributory; Ultimate. 
 See also Negligence. 
 
 Injury to driver crossing track — Improper construction of track. 
 
 The plaintiff, a driver employed by the Montreal Brewing Co., while 
 crossing the track of the defendants on Place d'Armes, opposite the church 
 of Notre Dame, was, thrown out of the waggon whicli he was driving by 
 the breaking of the rear axle, bi'caking his leg and sustaining other severe 
 injuries. He brought an action of damages alleging tliat the accident had 
 occurred by the fault of the defendants, owing to the improper construc- 
 tion and bad order of the track. The Superior Court for Lower Canada 
 (Torrance, J.) found that the track was in bad order, the switch being 
 three inches above tlie level of the road, contrary to law, and that this 
 caused the accident without any fault on the part of the plaintiff, whose 
 damages he assessed at $2,500. The Court of Queen's Bench* for Lower 
 Canada (appeal side) reversed this judgment, being of opinion that the 
 rails, as well as the part of the roadway the defendants were bound to 
 maintain, were lawful and sufficient; that the defendants were not in fault, 
 and that the plaintiff had not exercised the necessary caution and prudence 
 to which he was boiuid, and might, by the exercise of reasonable caution 
 and prudence, have avoided the accident. On appeal to the Supreme Court 
 of Canada: — Held, that the questions to be decided were purely matters 
 of fact, and the judgment of the Court of first instance should not have 
 been disturbed. Strong, J., dissenting, on the ground that the judgment 
 of the Court of Queen's Bench on the facts was correct. Appeal allowed 
 with costs. 
 
 Parker v. Montreal City Passenger Ry. Co. (1885), Cass. Can. S.C. 
 Dig. 1893, p. 731. 
 
 [In this case the Privy Council refused leave to appeal. 6 Can. Gaz. 
 474.] 
 
 Derailment. 
 
 A street railway company is liable, in addition to actual damage suf- 
 fered, for the diminution in value of an immovable situate at the foot of, 
 and adjoining a steep hill down which the cars run where they are fre- 
 quentlj' derailed and precipitated on the immovable to the great peril of 
 any persons who may be on the spot. 
 
 Amyot V. Quebec Ry., Light & Power Co., 36 Que. S.C. 141. 
 
 Accident to person on street railway track — Guard rail — Improper 
 height of rail. 
 Chisholm v. Halifax Tram. Co., 9 E.L.R. 201 (N.S.). 
 
 Liability for protruding rails. 
 
 Where a city by-law declared that a street railway company should be 
 responsible for all damages occasioned by the construction, maintenance, 
 and operation of its railway, it is answerable for injuries sustained by 
 
STREET RAILWAYS. 687 
 
 Ae pfaraHir who wma thrown from a T^ide bj tibe nil Mag of a wheel 
 ■ g^iiigt. a raQ that was foar indies abore the sarfkee of tihe street, not- 
 vithstaadia^ the rail had originallT been laid flush with the street, and its 
 elevatiaa was due to mets of the eitr in repairing the street. 
 
 Mimtzcal Street Kt. Co. t. Bastien, 12 D.LJS. M± 
 
 [ADdxcd T. We&t Metropolitan Tramwaj Co.. LJR., [1S91] 2 Q3. 398; 
 and Howit t. Xottingham Tramway Co., 12 Q.B.D. 16, distinguished.] 
 
 XcxsAXCE — EmEcnoJi of dam to <mtaix powex — OmsTKrvnos of mux. 
 
 Where the proprietors of land on opposite banks of a river enter into an 
 anaageaMBt with respeet to the ownership of a dam erected for the pnr- 
 fomt «{ obtaining power, tonrhii^ both banks and extending aeross the 
 it is competent for them to do so. and owners farther down the 
 hare nothing to say as to the terms of the arrangemeat where the 
 qaantity of water pa«c$ing down is not diminished. Where the owners be- 
 low br means of a dam erected by them eaose the water to flow hack and 
 to ohBtiiiet the operation of a mill above them ther will be liable in daan 
 ^gcs fw the obstrortion $o caused. In the action claiming da— ges for 
 snA obstmetioD and an injunction to restrain the continuance of the in- 
 jnry both the owner of the fee and the tenant operating the mill are prop- 
 erly joined although the former will only be entitled to recover nominal 
 damages. And where the amount of damages awarded by the trial Judge 
 is found to be excesave in view of the evidence and a reduction is ordered 
 and the judgment varied in other res^pects no mder will be made as to 
 costs. 
 
 Crosby v. Yarmouth Street Ry. Co_ 4-5 X.SJL 330. 
 
 BXCBSSrVE SFEZD — GOXG SOT SOirXDE3> — CoXnUBrTOBT XEIGUGET^CE. 
 
 A passenger on a street car going west alighted on the side &rthe^ 
 fmn the other track and passed in front of the car to cross to the op- 
 posite side of the street. The ^»ace between the two trads was very nar- 
 row and seeii^ a car coming frmn the west as she was about to step on 
 the track, she recoiled, and at the same time the car she had left started 
 aud she waa eniBhed betwem the two. receiving injuries &<(»■ which she 
 died. In an action by her fother and mother for ■*-~'"gr ' the jury found 
 that the company was negligent in running the east boand ear at exeesaive 
 speed and starting the west bound car and not sounding the goi^ in proper 
 tut. They found also that deceased was negligent, but that the eam- 
 paay could, nevertheless, have avoided the accidoit by the exercise of 
 reaaonable care: — Held, that the case having been submitted to the jury 
 with a dhaige not objected to by the defendants and the evidence justify- 
 ing tte findings the Tudict for the plaintiffs should not be disturbed. The 
 {riaintiffs should not have had the funeral and other expenses ineorred 
 by the fathn- ai deceased allowed as damages in the action. 
 
 Twonto Ry. Co. v. Muhaney, 38 Can. S.C.R. 337. 
 
 [Referred to in .Jones r. Toronto, etc, Ry. Cou, aO O JLJL TL] 
 
 Use <w cdxtsoixeb — Dctt of motokmax. 
 
 Rule 212 of the rules of the London Street Ry. Co. provides that '^hen 
 the powo- leaves the line the ctmtroUer must be shut off. the overhead 
 switch thrown and the ear brought to a stop. ..." A ear <mi which the 
 lights had be^ weak and intermittent for some little time passed a point 
 on the line at whidi there was a circuit breaker when the power ceased 
 to operate. The ■Mtorman shut off the oontrolkr bat, instead of apply- 
 ing the brakes, allowed the car to proceed by the monentum it had ac- 
 quired and it eollided with a stationary car <ni the line ahead of it. In an 
 
688 STKEET EAILWAYS. 
 
 action by the motorman claiming damages for injuries received through 
 such collision: — Held, that the accident was due to the motorman's dis- 
 regard of the above rule and he could not recover. 10 O.W.R. 302, af- 
 lirined. 
 
 Harris v. London Street Ry. Co., 39 Can. S.C.R. 398. 
 
 CBO.SS1XG — Undue speed — Sounding gong. 
 
 Appeal from the judgment of the Court of King's Bench, appeal side 
 (14 Que. K.B. 355), aflirmiiig the judgment of the Superior Court, Dis- 
 trict of Montreal, entered upon the verdict of a jury, in favour of the 
 plaintiff. The plaintiff was a passenger on a tramcar operated by the 
 company, and on approaching a crossing, signalled the conductor to stop 
 the car and, when it slowed down, but before it reached the crossing, 
 stepped of the car and attempted to cross to the other side of the street 
 by passing in rear of the car on which he liad been traveling. He was 
 struck and injured by a car coming at a considerable speed from the op- 
 posite direction without, it was alleged, giving notice according to running 
 regulations, by sounding the gong as it was meeting and passing the other 
 car. The jury found generally for the plaintiff, without specifying any 
 particular act of negligence, but that the plaintiff was also negligent and 
 assessed the damages at $3,500, for which judgment was entered at the 
 trial. By the judgment appealed from it Avas held that, upon the con- 
 tradictory evidence, there was sufTicient ground to support the verdict. On 
 tlie appeal to the Supreme Court the company contended that there was 
 misdirection, irregularity in the verdict and that the verdict was against 
 the weight of evidence. After hearing counsel on behalf of the appellants 
 and without calling upon the respondent's counsel for any argument, the 
 Supreme Court of Canada dismissed the appeal with costs. 14 Que. K.B. 
 355, affirmed. 
 
 Montreal Street Ry. Co. v. Deslongchamps, 37 Can. S.C.R. 685. 
 
 [Referred to in Wallingford v. Ottawa Elec. Ry. Co., 14 O.L.R. 383.] 
 Precautions. 
 
 An electric tramway company should avoid everything which, not being 
 absolutely necessary for the service, is a source of danger to the public, 
 and if it does not do so it is guilty of imprudence for which it is respon- 
 sible. The fact that a cause of danger could only be avoided by increased 
 labour and expense is no excuse for allowing it to remain. 
 
 Mattice v. Montreal Street Ry. Co., 20 Que. S.C. 22. 
 
 Injury to pedestbain — Excessive speed — Bi rde.v of showing means of 
 
 ESCAPE. 
 
 Plaintiff was proceeding along the track of the defendant company, on 
 a public street in the city of Sydney, when he was overtaken, struck, and 
 severely injured by an electric car, which was being driven at an excessive 
 and dangerous rate of speed. At tlie time of the accident, plaintiff was 
 prevented from escaping by a car of another line, which was obstructing 
 the crossing in front of him, and by banks of snow, which had been thrown 
 up by defendant's plow, at the side of the track upon which lie was stand- 
 ing: — Held, setting aside the judgment for defendant, and ordering a new 
 trial, that the burden of showing that plaintiff liad means of escape, was 
 upon the defendant company. Also, that plaintiff liaving the riglit to be 
 where he was, and the whole event, from the moment he discovered his 
 danger to the time he was struck, having liappened in tlie course of a few 
 seconds, he was not to be held to the obligation of selecting the best pos- 
 sible means of escape. 
 
 Ricketts v. Sydney & Glace Bay Ry., 37 N.S.R. 270. 
 
STREET RAILWAYS. 6S9 
 
 fSJCST TO PEXSOX XISKCCC aXS UVE TO SATE THAT OF AXOnTHEK. 
 
 A atatoMeat of daui alksii^, u effect, tliat a duU alMWi two jears off 
 age had fyiea oa tlK ttack of tike deiciadaats' stne<t lailvay oa a public 
 stxvet ia tke city; tkmk umt id the defeadaats* cars was ajuau adhiag the 
 chOd at a high late of ^wed, aad tfat, oaiag to the aeg ^u a u e «^ the 
 ■wfeonaaa ia chai^ of the car ta aoi atoppiag it, the shild^ fife was ea- 
 daagocd withoat ac^igeaee oa her part; that the platatiff. ubienla g this, 
 aeceaanihr raahed ia fraat irf the rar ia aa attea^ ta cave the child, aad 
 that, ovii^ to the aiotorBaa's ae«ligeaoe ia aot atoppii^ the ear or re- 
 '*"'i^ its ipee d, he was stmck aad iajoivd bgr the ear, dischkses a good 
 ca^K of aetiaa. 
 
 ScTmoar t. Wiaaipeg Elec Ify. Ok, 19 3laa. L^B. 412, 13 W XcB. 5CCl 
 
 OMJjnos — -lIoroB cak sivrcc ar tsaxcjue. 
 
 naatiCs ^ator car, |»oiccedii^ akia^ the hi^aay, got parOjr httauca 
 the lails <rf the defeadaat eoapaaj, but oaiag to the cosditiaa of the rcMd, 
 was aaahle to get oat of the vaj <rf aa appraachiag traTir. Oa seei^ 
 his dilfanltjr. fhe driver aigaaiW to Oe Motonaa trf the traiatar to stop, 
 which he eadeaToted to do, but was uaaMe to avoid a adtisioa, ia which 
 the BMior car was duaagcd. The trial Jadge gave ja4C!>>>eat f<H- plaia- 
 tiff oa the grouad tA aegt^ieaee oa the part of the dffeadaat cowpaay ia 
 aot hariag a car of the site whiA caaied the wdiiiiina e quipp e d with air 
 bnkes. which woaM. he hdd. have eaaMed the antorana to have stopped 
 ia tiaw to preveat the eollisioa: — ^Hdd. oa spptal, oa the cvideace, that 
 there was ao aegtigeaee oa the part of the aaitonaaa. Per Martia. JJL. 
 ttat th«e was ao evideaee to support the tSadisg of aegiigcBce ia the 
 II— ptiij'ii aot havii^ the ear eqfuipped with aa air brske. 
 
 Wiater t. British ColnariMa Eke. Rjr. Co., 13 JLCJL 81, 13 WJLcB. 33S. 
 
 i g« - MMM w ii: ansa — Drrr of dkitix to sate his cab crsnea coxraoi. 
 
 niHse plaiatjff sighted &om oae of the d^eadaat's cais at a^ht time. 
 at a poiat where the streK was tora up for puipuns of repair, aad the 
 beO oa a car iaoBediatehr behiad that fnm which he al^hted, was claag- 
 iag; aad gaing be tae e a the two ears, aad looldag Mf aad dowa a pamlhfl 
 tiack befmc cmoni^, but seeiag ao car appsoachiag, was aercrl&riees 
 •track aad iajaivd br aa appvoachiag car, maaiag at am eseenive speed 
 oa andi paralU track: — Hdd, that be was eatitled to iccovcr, as it was 
 the dalj of the driver to have hi$ ear oadcr coatnd. 
 
 lIortoB V. British CblnailHa Elec Rj. Co.. 1^ B.C.E. 1S7. 
 
 AodDETT TO ramsTMAts — U^ntne sfesd of cak. 
 
 Foissaa t. Shntoooke Street St. Cos 3 ELLuR. 3SS (Que.). 
 
 DaBK XKHT — 'SbSLBCT to GIVB TTOHCIE BT BEXX — CCKKSEST TO BBHrCTIOX OT 
 DAXACXS. 
 
 The plaiatiff. traveling hw dectrie railway along a eouatnr road oa a 
 dark aight. got off at a regular atoppiag place. He thea tnraed back alo^ 
 the road, aad after he had waDoed aooM distaace akM^ it, aad was BMvtag 
 towards the railway- track, the car Inr which he had travded, ^'■«**-g up, 
 stmck hiaL Thoe was a light at both cads of the car, which was tiavd- 
 iag at the rate of three or four aiiles aa hour, but the enrrcnt was very 
 weak aad the light slight, aad the amtonaaa eaaw withia four or five 
 feet of the ^aiatiff hefose aeeiag hiia, aad he did aot sound the goi^ or 
 give aay otter waraiag <rf his an>roach: — Hdd, that tiboe was erideace 
 ^ aegligeaee oa the part of the def eBdaata» aad the appeal fraa the trial 
 Caa. Ry. L. Dig. — U. 
 
(500 STKEET RAILWAYS. 
 
 judgment was dismissed and a new trial refused, on the plaintiflf consent- 
 ing to reduce his damages. 
 
 Ford V. Metropolitan Ey. Co., 2 Can. Ry. Gas. 187, 4 O.L.R. 29. 
 
 l.XTKaSECTIOXS — ULTIMATE NEGLIGENCE — INJURY TO PERSON CROSSING TRACK 
 NlXiLECT OF MOTORMAN TO SHUT OFF POWER. 
 
 Negligence of a defendant incapacitating liim from tiikiiig due care to 
 avoid the consequences of the plaintiflf's negligence, may, in some cases, 
 though anterior in point of time to the plaintiff's negligence, constitute 
 "ultimate" negligence, rendering the defendant liable notwithstanding a 
 finding of contributory negligence of the plaintiff. Sucii anterior de- 
 fault of the defendant is "ultimate" negligence when it rendiTs inefficient 
 to avert injury to the plaintiff means employed by the defendant after 
 danger became apparent, and which would otherwise have proved adequate 
 to prevent the mischief, or renders the defendant wholly incapable of em- 
 ploying such means, though time was afforded for his using them efficaci- 
 ously but for such disabling negligence. [Scott v. Dublin & Wicklow Ry. 
 Co. (1861), 11 Ir. C.L.H. 377, approved; Radley v. London & North 
 Western Ry. Co. (1876), 1 App. Cas. 754, applied.] The plaintiflf in cross- 
 ing a city street in front of an approaching motor-car of the defendants 
 was admittedly guilty of negligence or contributory negligence, but, on 
 the evidence, would have crossed safely if a moment more had been al- 
 lowed her. As it was, she was struck by the corner of the car fender and 
 injured. There was evidence of a rule of the defendants that motormen 
 were to shut off power at a certain distance between reaching a crossing, 
 and that the motorman on this occasion did not do so, and in an action 
 for the defendants' negligence causing the plaintiff's injuries the trial 
 Judge in his charge to the jury withdrew the evidence of this rule from 
 their consideration: — Held, that the place where the plaintiff attempted to 
 cross was a crossing being opposite a street running at right angles to the 
 street upon which the car was being operated, though not an intersecting 
 street; and the withdrawal of the evidence as to the rule was misdirection, 
 and misdirection which might have affected the result; the jury might, 
 upon the evidence, have found that, but for the motorman's failure sooner 
 to shut off power, or to reduce speed, the momentum of the car would have 
 been so lessened that he could with the emergency appliance at his com- 
 mand, have avoided running down the plaintiff; and this failure, thougli 
 anterior to the plaintiff's negligence, would be "ultimate" negligence, with- 
 in the meaning of the rule which makes a defendant liable, notwithstand- 
 ing contributory negligence of the plaintiff, if in the result he (the de- 
 fendant) could by the exercise of ordinary care have avoided the mischief. 
 
 Brenner v. Toronto Ry. Co., 6 Can. Ry. Cas. 201, 13 O.L.R. 423. 
 
 [Reversed in 15 O.L.R. 195, 7 Can. Ry. Cas. 210, 40 Can. S.C. R. 540, 
 8 Can. Ry. Cas. 108, commented on in Snow v. Crow's Nest Pass Coal 
 Co., 13 B.C.R. 155; followed in Burman v. Ottawa Elec. Ry. Co., 21 O.L.R. 
 446, 10 Can. Ry. Cas. 353; Loach v. British Columbia Elec. Ry. Co., 17 
 Can. Ry. Cas. 21, 16 D.L.R. 245; referred to in Hinsley v. London Street 
 Ry. Co., 16 O.L.R. 350; Wallingford v. Ottawa Elec. Ry. Co., 14 O.L.R. 
 383; approved in British Columbia Elec. Ry. Co. v. Loach, 20 Can. Ry. 
 Cas. 309.] 
 
 New trial — Misdirection — Charge to jury — Ohjection at trial. 
 
 Appeal allowed from the judgment of the Divisional Court, reported 13 
 O.L.R. 423, 6 Can. Ry. Cas. 261, granting a new trial. Per Osier, .J. A.: — 
 There is no hard and fast rule which absolutely prohibits the Court from 
 
STREET RAILWAYS. 691 
 
 cntntainin^ an objcvtion oa tlie gronnd of misdireetioB vhoi tkt paitr 
 iias omitted to take it at tlie trial. 
 
 Brarnn- v. Tonnto By. Co, 7 Caa. Ry. Cas. 210, 8 Can. Ry. Cas. 
 100, 15 OXJL 1»5. 
 
 [AffinMd in 40 Can. S.C.B. 540. S Can. Ry. Cas. 108.] 
 
 Chabgb or Jn>GE — CosTUBnoaT :<cikucence. 
 
 A mle of the Toronto Ry. C». provides that "trhen approadiing erae»- 
 i^B aad crotrded plaees vhere there is a poi^oIbilitT of aeodents the 
 apeed mamt he reduced and the ear kept earefully under controL Go rery 
 :$knrly over all enrre^. $iritt-he$ and intersections: never faster than three 
 miles an hour . . .^ A girl on the south «ide of Qutta Streei wiabed 
 to erosB to University Avenue vhiHi reaches but does not cr o— Qneen. 
 She sav a car coming along the latter street from the east and thoi^it 
 she had Hmtt to cros^. but was struck and severely injured. On the trial 
 •f an actkm for damages the Judge in his charge said: ^It is not a 
 iiaestiaB, geBtlenoen of the jury, as to the raotorman's duty under the rule, 
 it is a question of vhat is reasonable for him to do.~ Tbe jury found 
 that defendants vere not guihy of negligence: that plaintiff by the exer- 
 cise of reasonable care could have avoided the injury: and that she failed 
 to exercise such care by not taking proper precanti<»a before crossing. 
 The action was dismissed at the trial; a Divisional Court ordered a nev 
 trial OB the ground that the Judge had misdirected the jury in vith- 
 draving from their consideration the rules of the company; the Court 
 of Appeal restored the judgment at the trial: — Held, affirming the judg- 
 ment of the Court of Appeal. 15 O.L.R. 195, 7 Can. Ry. Cas. 210, which 
 set aside the order of the Divisional Court for a nev triaL 13 OX^R. 423. 
 C Can. Ry. Cas. 261, that the action was property dismissed: — Held, per 
 Girouard and Duff. JJ.: — The Judge's daarge was open to objection but, 
 as under the findings of the jury and the evidence fdaintiff could neC pos- 
 siUy recover, a new trial should be refused. Per Davies, J.: — ^TlMre was 
 no ■nsdirvction. The jury were not led to believe that the ndes were not 
 to be considered, but only that they should not be the standard as to what 
 was or was not negligence, which question should be decided on tke facts 
 proved. Per Maclennan. J.: — ^The place at which the accident occurred, 
 where University Ave. meets Qneen Street, is not a crossing nor inter- 
 section within the meaning of the rules and they do not apply in this 
 
 Brenner t. Toronto Ry. Cou 8 Can. Ry. (as. 108, 40 Can. S.C.B. »40. 
 
 CO^CIUBITCKT XBGUGE-XCE — XeW TVIAI. 
 
 In an action for damages against thf appellants for loss of life occa- 
 uoncd by the negligent management of their tramcar by their servant 
 employed to drive it. the jury found that the servant was guilty of neg- 
 ligeace in causing the accident and that the deceased was not guilty of 
 contributory negligence, and judgment was accordin^y entered for the 
 plaintiffs: — ^Held. reversing 8 O.W.R. .i07, tbat the Court in appeal from 
 that judgment was in error in «ettii^ it aside and ordering a new trial, 
 there having been evidence ttn both issues properly submitted to the jury. 
 It is not valid ground for ordering a new trial that the Judges differ from 
 the conclusion at which the jury have arrived or consider that the find- 
 ings shew that the defendants had not had a fair and imprejudiced trial. 
 Special leave to the respondents to cross appeal against the order for a 
 
GO 2 STREET RAILWAYS. 
 
 new trial granted, nunc pro tunc; the appeal praying that the action 
 should be dismissed. 
 
 Toronto Ry. Co. v. King, 7 Can. Ry. Cas. 408, [1908] A.C. 260. 
 
 [Commented on in Rrenner v. Toronto Ry. Co., 40 Can. S.C.R. 5.")2; 
 followed in Tinsley v. Toronto Ry. C^o.. 17 O.L.R. 74; referred to in Berth- 
 elot V. Salesses, 39 X.B.R. 149; Wliite v. Victoria Lumber, etc., Co., 14 
 B.C.R. 374; distinguislied in Milligan v. Toronto Ry. Co., 17 O.L.R. 530.] 
 
 Excessive speed — CoNXRiBrTORY negligence. 
 
 TJie deceased in attempting to cross over one of the streets of a city 
 on which there were street car lines, passed behind one of the cars, and 
 was just stepping on to the track on which cars coming in the opposite di- 
 rection ran, when she fell and was struck by an approaching car and 
 killed. In an action brought to recover damages therefor, the jury, while 
 finding that there was negligence on the defendants' part in running at too 
 liigh a rate of speed, and that there was contributory negligence on the 
 plaintiff's part in not taking proper precautions before attejn])ting to 
 cross, also found that the defendants could have avoided the accident had 
 tlie car been running at a reasonabU' rate of speed. Upon their answers 
 judgment was entered for the plaintiff: — Held, Garrow, J., dissenting, that 
 on these findings, the judgment could not be supported, and a new trial 
 was directed. 
 
 Kinsley v. London Street Ry.' Co., 7 Can. Ry. Cas. 419, 16 O.L.R. 350. 
 
 [Distinguished in McCraw v. Toronto Ry. Co., 18 O.L.R, 154.] 
 
 Crossing — Ackjident — Contributory negijgence. 
 
 The plaintiff, intending to take a street car going westerly, so as to 
 reach his house, on arriving, shortly after midnight, at tlie southerly side 
 of the street on wliich the particular car line was, saw a car coming west- 
 erly about 300 feet off, and without again looking for the car he attempt- 
 ed to cross over the street in a westerly diagonal direction, so as to reach 
 a street corner, where he expected the car would stop, it being, as he said, 
 tlie usual practice for all cars to stop there, though it appeared there was 
 no rule requiring them to do so. and because he saw two persons slanding 
 at the corner apparently waiting for the car, and wlio had signalled it to 
 stop, but of this he was not aware. The car, however, ran past the cor- 
 ner, knocking down the plaintiff and severely injuring him. The motor- 
 man had seen the plaintiff when the car was about 150 feet off. It was 
 claimed that the motorman was intoxicated and incapable of knowing 
 what he was doing, and tliat the car was going at an excessive rate of 
 speed. The place was Avell liglited and notliing to obstruct the view: — ■ 
 Held, that the accident was attributable to the plaintiff's own want of 
 care in attempting to cross over the street as he did, and that the case, 
 therefore, should have been withdrawn from the jury. Magee, J., dis- 
 sented on the ground that it was a question for the jury. Judgment of 
 Britton, J., at the trial reversed. 
 
 Tinsley v. Toronto Ry. Co., 8 Can. Ry, Cas. 69, 15 O.L.R. 438. 
 
 [Reversed in 17 O.L.R. 74, 8 Can. Ry. Cas. 90; distinguished in Milli- 
 gan V, Toronto Ry, Co,, 17 O.L.R. 530.] 
 
 Injury to person crossing in front of car — Omission to stop — Stop- 
 ping PLACE CONTRIBI TORY NFXILIGKNCE. 
 
 The plaintiff intending to take a street car going westerly, on arriving, 
 shortly after midniglit, at the southerly side of the street on which the 
 particular car line was, saw a car coming westerly very rapidly, being 
 then about 300 feet off. He saw two persons standing at the corner sig- 
 
STREET RAILWAYS. ©93 
 
 ■•1 &e car to stop, aad iHlieri^ tkat it vould do an, it hoag tte asial 
 aad f iitii^iij practice to stop at tht corner, wkea pua oa a viahed to gtt 
 oat or off tke car, he vitkom agaia lookiag to see irtere the ear «a», at- 
 *— f**J to croes m froat of it. «o a$ to get oa it, aihea, iaatead oi stop- 
 fia^ it raa past the etwaer. kaocked dova the plaiatiff aad iajond him: 
 — Held, that it eoald aot be said that there vas iaexrasahle a^^jgeaee on 
 the ptaiatiffB part ia attcaqitii^ to cross the street ia froot of the car, 
 fv he a^gM rrawaMr a^sme that the car would stop at the comer ia 
 panaaaee of the stgaal to do so. aad that the case thereftHe could aot 
 have heea vithdrawn froB> the jury : aad was prt^terlr sobuttcd to the^ 
 JadlgBMat of the Dirisioaal Court' <190T), 15 OXJL 43S, 8 Caa. Br. Cas^ 
 flB^ mvaeo. 
 
 IImI^ t. Toronto Rt. Co- S Can. Rj. Cas. M, 17 OX-R. 74. 
 
 DHffm or VEHICLE — Cmssisc is fbont op AirmoACia^G cak — Co^rnnc- 
 
 TOKT XEGUCgXCE. 
 
 The plaiatiff was dririi^ ca^sterly ia his carriage aad pair of horses, 
 at a ■odtrifi' pace, ak^ one of the streets of a city, aad oa arririB^ 
 wUhia thirty feet of a cro^ street, oa vkich there was a street ear liae, 
 he aaar a ear coBiiB» fro^ the aorth. vhere there vas a dowa grade, ap- 
 fgnarhiag at a rapid rate, the car beii^ then about 300 feet distaat. The 
 phiatiff admitted that he eoold easUj have stopped his carriage and hors«s 
 hcfai« reachi^ the track. He consalted vith his eoariiaian. aad, both 
 h ilag of the opiaioa the cpe ed of the car aas not eo great as to prrveat 
 their eroosiag ia sifety, he attempted to do so, vhen the carriage was 
 iiliml by the ear. aad damaged, aad he, himself injured. Xo attoapt 
 aaa made by the aaotonana to slow down the car. Oa qoestioas sabatit- 
 ted to the jury, they foaad that the aecidcat mas cansed throogh the de- 
 foidaBtai' aegl^geace, tnA ac^Ugeace coasistiag ia the ear aot bei^ nader 
 fjepcr etmtrol and that thoe was ao eoatrihatocy aegtigeaee oa the ^aia- 
 ttfTs part: — ^Hdd. that it could aot be said, ia all the circaBastaaees, the 
 plaiatiff acted so reckleas^ly as to prechide the subraissioa to the ja:nF of 
 the urn 1 1 iim whether or not he acted with leasoaaMe care; aad a finding 
 by the jnry n the plaintiff's favour was vphcU. Jadgmeot at the trial 
 aad of the Divisioaal Court affirmed. Moss. CJF.O.. and Mnvdith, JJL, 
 d iawa ting. 
 
 Hill^aa T. Toronto Ry. Co.. S Can. Ry. Cas. 434. 17 OXJL S3tL 
 [Leave to appeal refused in IS OUL 109. 17 OJ^^ 370.] 
 
 DcTT OF courxsr to m os whjexi. ctabbs. 
 
 1. It is aegligeace ia a company operating electric cars <m tibe streets 
 ci a city not to have su^ guards for the front wheels as will prevent per- 
 soas *«"»»g oa the tracks from bei^ ma ova-, and the company wiU be 
 liable ia daamges to aay persmi iajnred ia coasequeace of soch negli- 
 giaet, aaless there is snffirieat coatributory a^igeace oa the part of 
 ■■ch posoBs to cottstitnte a defeaee. i. Xo such coatribototy negligence 
 caald be attributed to a child imder six years old. 3. A rerdiet far fSgOOO 
 damages ia such a ease, where one of the child's legs was cut off^ is not so 
 cscessiw as to warraat the Court in ordering a new triaL 
 
 Wald V. Winnipeg Elec. Ry. Co.. 9 Can. Ry. Cas. 126. 18 Han. L.R. 134. 
 
 [Affirmed ia 41 Can. S.C.R. 431. 9 Can. Ry. Ots. 129.] 
 
 I^Ejrar to pcbsox csossgcg tkack — Excsssive spezb — Failtke to givs 
 
 WASXIXG FxaXVE TO LOOK. 
 
 The plaintiff, who was sooKwhat hard of hearing, attempted to eroFS 
 from the east to the west side of a h^way on which the defendants' 
 
694 STKEET RAILWAYS. 
 
 single track was laid. Before he began to cross he observed a car of the 
 defendants standing upon a siding about 550 feet north of him, and, from 
 liis knowledge of the practice of the defendants, inferred thai it was wait- 
 ing there for a car from tlie soutli to pass it. lie, therefore, just before 
 crossing the track, looked south for a car, but did not look north, and 
 had almost passed over the track when he was struck by a car coming 
 from the north, and injured. There was evidence that the gong was not 
 sounded nor the whistle blown nor the speed of the car slackened as lie 
 approached the track. He could have seen the car approaching had he 
 turned and looked, and the motorman must have seen him approaching thj 
 track. Had the brakes been apolied and the car delayed for a second or 
 two, he would have escaped. There was evidence that it was going at 
 from 16 to 18 miles an hour: — Held, that there was some evidence of 
 negligence on the part of the motorman which should have been submitted 
 to the jury; and a nonsuit was set aside. Per Mulock, C.J., that the 
 plaintiff was not to assume that the motorman would start his car from a 
 ])oint enabling him to see the plaintiff walking in a direction that would 
 soon bring him upon the track, and. nevertheless, that the car would be 
 driven at such a speed as to overtake him, and that without giving any 
 warning of its approach. Per Clute, J., that there was evi-lence to sub- 
 mit to the jury of negligence on the part of the motorman in not sounding 
 the gong, in not exercising more care in keeping a look-out, and in not 
 applying the brakes before the car struck the plaintiff. He could not but 
 see that the plaintiff was approaching the track, and it was to be in- 
 ferred from the evidence that he ought to have known that the plaintiff 
 was oblivious of the approaching car. [Brill v. Toronto Ry. Co. (1903), 
 1^5 O.W.R. 114, distinguished.] 
 
 Jones V. Toronto & York Radial Rv. Co., 10 Can. Ry. Cas. 361, 20 
 O.L.R. 71. 
 
 [Affirmed in 21 O.L.R. 421, 10 Can. Ry. Cas. 308.] 
 
 Injury to persox crossing track — Contributory nfxjligence. 
 
 In an action for damages for injuries sustained by the plaintiff, owing, 
 as he alleged, to the negligence of the defendants, whereby he was struck 
 by a car operated by their servants, while crossing a highway on foot: 
 — Held, that there was, at the close of the plaintiff's case, some evidence 
 proper to be passed upon by the jury both of negligence on the part of 
 the defendants and of contributory negligence on the part of the plain- 
 tiff; and that a nonsuit was properly set aside and a new trial directed. 
 Judgment of a Divisional Court, 20 O.L.R. 71, 10 Can. Ry. Cas. 361, 
 affirmetl. Per Garrow, J.A., that it is the well-established rule that, where 
 reasonable evidence is given of negligence on the part of the defendant 
 and of contributory negligence on the part of the plaintiff, these issues 
 must be determined by the jury. The cases which at first sight seem to 
 qualify this rule are cases in which the Court was able to reach the con- 
 clusion that the negligence of the plaintiff was the sole cause, or that the 
 conduct of the plaintiff was per se negligent, or the evidence so clear and 
 Undisputed that only the one inference could be reasonably possible. 
 
 Jones V. Toronto & York Radial Ry. Co., 10 Can. Ry. Cas. 368, 21 O.L.R. 
 4-21. 
 
 [See 23 O.L.R. 331, 12 Can. Ry. Cas. 436.] 
 
 IXJUBY to persox CROSSING TRACK — CONTRIBUTORY NEGMGENCE — ULTI- 
 MATE NEGLIGENCE. 
 
 Upon the second trial of this action, such trial being directed by the 
 judgment of a Divisional Court (20 O.L.R. 71, 10 Can. Ry. Cas. 301), 
 
STREET RAILWAYS. 695 
 
 Igr tke Cbnt trf Appal (21 OX.IL 42L 10 Can. Bt. Casw 368* — 
 the aetioB hrhit for daaages fior mjinies sietaued br tlie plaiatiff cmimg 
 to the aOesed mglieuu. of the servaats ^ the Jift'ailiBlB is chuge of 
 aa electrk triM fir aduA stiwk tte plaia*iff alMa aaaBag tihe deieai- 
 aatsr' track iqtoa a p^blie hl^hwaT — the jarr. ia aaa-m er to qaestioas. 
 food: (1) That then vaa ae ^ieea e e ۥ the part of the defeadaats aUA 
 «aased or hriped to cause the ctrflisiaa: (ii that that acgji^eaee aa&. 
 that ~vith the eridoMe prtm the or should hare faeca stopped ia a 
 shortn- distaan':' (3^ that there aas aegl^cBfce oa the part of the piaia- 
 tiff which caused or helped to caaee the nrfUsioB: (4) that that ac^ii- 
 gco ce was, that "he mJ^Kt have exercised a little more care;" (5) that, 
 Botwithftaadiag the a^JgoMe of the plaiatiff^, the drfeadaals eoold br 
 the ousose of reasoaaUe care have pieieate d the cidliaaa: (C) that the 
 ■oUwa a dMMld hai« nea tte aaa aooacr aad aoimded his gu m ^ coa- 
 tiawMdr: — flcJd, reveni^ the jadgnest of Ridddl, J^ that ^on thc^ 
 (arhich were saffieieBtfy sostaiaed bf tihe evideaeel jodgneat 
 he eatcnd for the plaiatiff. Per Bqrd. C.:— The role of lav 
 ■pplif hli is that exi»v§!sed by Lord Pcuaace la Radkr t. Loodoa aad 
 North Wcstera Bj. Co. (lS7is», 1 App. Cas. T»4. 7^: -Thou^ the 
 plsiatiff naj have beea gniltr ot acgligeaee. aad althoi^^ that aegl^ eaee 
 aMT, i* fact, have ciaitrilaited to the aocideat, jet if the defendaat could 
 ia the nsolt, br the exercise of ordiaarj care aad dil igtate, hare avoided 
 the auschief which hai^peaed. the j^aiatiff's aegU gt ac e will act exeoK 
 hia.'' The jarr hercL opoa the cvideaee. fiad aa ultinate waat of care oa 
 the part fA the UMMonaaa after the daager to the plaiatiff had become 
 appareat. aad after the plaiatiff appeared to be nacoBsrions of the daa- 
 ger. Thk i» to be regarded as the dcasire cause: the approach of the 
 plaiatiff wa^ oalj the coaditioa uader which this iajnnr became immi- 
 acat. aad was aot the nhiBute determiaiag cause. [ReTBoids t. Thnmi i 
 TiUiag (19031 19 Tiaies L^R. 539. 20 Tiaws L.R. 57. aad Rice t. Toroato 
 %. Cou (1910». ±2 OJ^R. 446. di^tiagnishrd.) Statemeat of the mat- 
 ters to be coBsidervd ia wei^ii^ the degree of care reqaint^ as between 
 f o o tpawseag tr s aad ^ca ia charge of a street car operatiag ia a public 
 Uj^waj. Per MiddlKoB, J.: — ^The priaeiple which g o> »wa tUi case is, 
 that whMe a p er soa or cnvporation t« permitted to operate a daagerous 
 Tchieie npou a higbwar. that p^^al-^wa carries with it a correspoodiaig 
 datr of great care aad iiice!N«aBt watchfufaics$ to avoid iajorr to others 
 aring the highwar. The n^er of the higbwar for rapid traasit poorposes, 
 though lawful aad expresdj saactioucd bv the Le«i^hitnre, is, a er qth e- 
 lesB, so pCTilaiB to the warfarer that those in charge of the rafudlr smk-- 
 i^g ¥iAicie oog^ at all times to watch for the nawarr aad aegtigcBt foot- 
 paaseager, aad ther caaaot escape fr om this dutr br assertaag that ther 
 did aot ia fset perenre the plaiatiff's daager. Adapting the lai^vage of 
 Daries r. Haaa (lS42s 10 M. & W. 546. ther are bound to go ahmg the 
 higjkwaT at such a pace aad with such rigilaace a> to prercut auschi^: 
 aad the aaawer of the jury to the Cth questiou briags lAe case aithia this 
 rale. Per Middletoa, J^ also: — ^Br the 3rd aad 4th aafswen <rf the jurr 
 thcy found coutrilNitaex a^^l^eaee. 
 
 Joae^ r. Toroato ft 'York Radial Br. Co- 12 Csa. Br. Cas. 43C: 23 
 OXJL 331. 
 
 [Berosed ia 25 OXJL 15S, 13 Caa. Br. Cms. 107.] 
 
 EXCSSSITK SFBES OT CAM — CaOS>i:iS« BEHIXD CAB WTTHOCT LOOKHrG — UlTT- 
 3CATK XBBUGKSCK. 
 B. al^Aed boas an east-booad car of the detendaats oa the south side 
 of Gerrard street, and ia attemptiag to cross the north track of the de- 
 
COG STREET KAILWAYS. 
 
 fendants, opposite the gate of the Toronto General Hospital, which he 
 was about to visit, he Avas struck by a westbound car and so injured that 
 he died. In an action by R.'s executors to recover damages for his death, 
 the jury, in answer to questions, found: that R.'s injuries were caused by 
 the negligence of the defendants, which consisted in excessive speed; that 
 K. could by the exercise of reasonable care have avoided the accident; 
 that R. was negligent "by not looking for approaching car;" that the mo- 
 torman of the west-bound car, after lie became aware, or, if he had exer- 
 cised care, ought to have been aware, tliat R. was in a position of danger, 
 could have prevented the accident by the exercise of reasonable care; and 
 that in that respect the motorman's negligence consisted in "too great a 
 speed:" — Held, that, as the primary and ultimate negligence of the de- 
 fendant were one and the same — excessive speed — and as that negligence 
 was concurrent with the negligence of the deceased, there could be no re- 
 covery. No question of ultimate negligence arose upon the findings of the 
 jury. Upon the findings of the jury, the action was dismissed, but with- 
 out costs. Per Boyd, C. : — At places like the Hospital the cars should 
 not be driven at such a rate as to imperil those who have to cross the 
 track in the visitation of the sick. 
 
 Rice v. Toronto Ry. Co., 12 Can. Ry. Cas. 98, 22 O.L,R. 446. 
 
 Duty as to persons on or near track. 
 
 A motorman seeing a vehicle driving at right angles to his track, as if 
 to cross, is justified in not reversing his controller until he sees that the 
 driver of the vehicle does not intend to stop at the track and allow the 
 car to pass, but the moment he perceives that there is danger it is his 
 duty to act as promptly as he can to avert the danger. 
 
 Carleton v. Regina, 1 D.L.R. 778, 20 W.L.R. 395, 5 S.L.R, 90. 
 
 [Referred to in Balke v. Edmonton, 1 D.L.R. 876, 4 Alta. L.R. 406.] 
 
 Injury to drivers of vehicles. 
 
 It is contributory negligence for the driver of a horse-drawn vehicle not 
 to look immediately before attempting to cross a street railway crossing 
 to see that he has plenty of time to cross in safety and before any prop- 
 erly operated car can approach dangerously close to him. 
 
 Carleton v. Regina, 1 D.L.R. 778, 20 W.L.R. 395, 5 S.L.R. 90. 
 
 [Referred to in Balke v, Edmonton, 1 D.L.R. 876, 4 Alta. L.R. 406.] 
 
 Cabs passing street crossing. 
 
 It is the duty of a motorman in taking his car over a crossing to keep 
 a reasonable lookout for pedestrians and vehicles using the same crossing. 
 
 Carleton v. Regina, 1 D.L.R. 778, 20 W.L.R. 395, 5 S.L.R. 90. 
 
 [Referred to in Balke v. Edmonton, 1 D.L.R. 876, 4 Alta. L.R. 406.] 
 
 Excessive speed — Person crossing track. 
 
 Where a street car approaches a stopping place at an excessive speed, 
 and there are persons waiting to board the car, and the car slackens speed 
 as though to stop, but does not stop, and the highway is in such a condi- 
 tion as to demand the close attention of any one making use of it, an at- 
 tempt to cross in front of the car does not necessarily constitute contrib- 
 utory negligence, but the question must be left to the jury. 
 
 Slingsby v. Toronto Ry. Co., 3 D.L.R. 453, 3 O.W.N. 1161. 
 
 Excessive speed at street intersection — Injury to pbxson crossing. 
 
 A verdict against a street railway company in favour of the plaintiff 
 for injuries sustained by being struck by a street car will not be dis- 
 
STREET RAILWAYS. 697 
 
 tnrbed where, frcan the evidence, the jnnr was justified in finding thai 
 the car was negiigentlr operated at excessive qwed ia cnwsinv a public 
 ■tnnt at a dangerous point where the view was obstmeted, and that the 
 plantiff, who was driving a lamg waggn^ exercised reaaonaUe care in 
 "XffpnmAing and endeavoring to cross the track and tttaik reasonable care 
 to save hi—>l^ frmn injury, and that the motonnan in charge of the car 
 had time to avoid the accident after he became aware that the plaintiff' in- 
 tended to ero66 the track. 
 
 Gooddiild v. Sandwich, Windsor k Amherstbnrg Rr. Co^ 4 DJJJL 139, 
 3 O.W:5f. 1252. 
 
 Htm or MOTosMAX — Revehsisg or poweb — Isjcht axowable sorwiTH- 
 
 BIASVVXG COSTKIBUTOST XBGLIGEXCS — "LaST CSMAM CHAXGE" — UlTI- 
 XATE XEGUeEXCE. 
 
 Hamovis v. Calgary, 7 DX.R 789. 
 
 [.ilffirmed in Hamovis v. Calgary (No. 2), 11 DJJEL 3.] 
 
 RaXE Cr SPEED MrXICIPAL BT-LAW. 
 
 Where a municipal bv-law fixes a limit of speed, e. g., e^^ miles an 
 hour for the street cars of a company, sach company is not therdby anth- 
 OTixed to run its cars at such maximum speed r^ardless al conditions 
 and circumstances; hence a speed of not more than five or six miles an 
 hour may be imprudence on a dark, rainy night on slippery rails and on a 
 dimly lighted street, and if such car causes injury to a po^on crossing 
 at the intersection of streets the company will be liable in damages. 
 
 Montreal Street Ry. Co. v. Omant, 14 Qui. Ry. Cas. 305, 7 DX.R. 261. 
 
 USUAt STOPPING PLACE XEGIJGKXTI.T ECXXTXG PAST STAXIOXAKT CAB. 
 
 A passenger who had just alighted from a street ear which was being 
 wtA on a parallel track by another, at a point where cars usually stopped 
 to disdiarge and receive passengers, and where, to the knovled^ of the 
 railway company, it was the custom or habit of persons alig^hting from 
 ears to cross a parallel track in order to reach another stieet, is not 
 ■eeessarily guilty of contributory negligence, where the foet that an- 
 otlier passenger warned the plaintiff", a woman, to look out for the ear, 
 might well have flurried and perturbed her. as witnesses said, and led 
 her to lower her head in the face of a sbvng wind, as she went around 
 tte rear of the car from which she had just ali^ited, and attempted to 
 erooB the parallel track, where she was stru^ by a ear which was negli- 
 gmtly run past ^e stationary car at an unusually high rate of speed. 
 [Cooper V. London Street Ry.* Co.. 14 Can. Ry. Cas. 191, 5 DXJt. 198, 
 affirmed.] 2. The negligence of the defendant street railway eonpany 
 was snffieiently shewn so as to prevent the withdrawal of sudi question 
 from the jury, where the evidence disclosed that sufficient caution was not 
 observed in running a street car towards a car standing on a parallel 
 track disefaargiB^ passengns at a street crossing where they were regu- 
 larly disduuged and reeeired, and where, to the knowledge of the com- 
 pany, it was the habit or cnsttmi of passengers to erosB a parallel track 
 in order to reach another street, and that the car struck and injured 
 the plaintiff, who had just alighted from the stationary ear, and without 
 noticing the car approaching from the opposite direction, passed around 
 the rear of the standing car and stepped upon the parallel track. [Cooper 
 V. Lcmdon Street Ry. Co., 14 Can. Ry. Cas. 191, 5 DX.R. m, affirmed.] 
 3. Where there is no reasonable evidence upon the whole case whether 
 adduced by the plaintiff or the defendant upmi which the jury could find 
 is the plaintifTs favour in an aeti<m of negligence^ the case should be 
 
(398 8TKEET RAILWAYS. 
 
 \viUu!rawn from them and the action dismissed; it is not necessary to go 
 tlirough the form of directing the jury to find a verdict for the defendant 
 and of having such verdict recorded. (Dictum per Meredith, J.A. ) 
 
 Cooper V. London Street Ry. Co., 15 Can. Ry. Cas. 24, 9 D.L.R. 368. 
 
 [Followed in Ramsay v. Toronto Ry. Co., 17 Can. Ry. Cas. 6, 17 D.L.R. 
 220.] 
 
 LiCEXSEES AND PETBMISSIVE USERS OF RIGHT-OF-WAY. 
 
 Where a railway compiiny owning a tramway line leading to their rail- 
 way station constantly permits the public to walk on the tracks of the 
 tramway line without interference, it owes a duty to exercise reasonable 
 care in the operation of the tramway to avoid running down a person 
 walking on the tracks, to or from the station, as such circumstances create 
 a leave and license to him to so use the tracks. [Grand Trunk Ry. Co. 
 V. Anderson, 28 Can. S.C.R. 541, referred to.] 
 
 Andrews v. B.C. Elec. Ry. Co., 15 Can. Ry. Cas. 75, 9 D.L.R. 566. 
 
 AuTOMOBn.ES — Duty when aitboacuixg street ckossing. 
 
 It is the special duty of a person driving a motor vehicle to keep a good 
 lookout wliile approaching a tramway crossing, and it is the duty of such 
 person coming out from a cross-road into a main artery of trailic to wait 
 and give way to that traffic, and not to throw himself headlong into the 
 advancing traffic along the main traveled road. (Per Irving, J.A.). 
 [Campbell v. Train (1910), 47 Sc.L.R. 475, applied.] 
 
 Monrufet v. B.C. Elec. Ry. Co., 9 D.L.R. 569, 18 B.C.R. 91. 
 
 Crossing track — Failure to look. 
 
 A railway company is not liable for injuries sustained by a person 
 who crosses a street in front of a moving street car without keeping the 
 car in sight until he has crossed the street, and trusts blindly to an opin- 
 ion formed on leaving the sidewalk that there was ample time to cross. 
 
 Myers v. Toronto Ry. Co., 10 D. L. R. 754. 
 
 [Reversed in 18 D.L.R. 335.] 
 
 Accident at street crossing — Excessive speed. 
 
 It is actionable negligence to run a tram car toward an intersecting 
 street at an unlawful rate of speed without attempting to slacken speed 
 on discovering an automobile on or near the track in a position of danger. 
 Contributory negligence sufficient to prevent a recovery against a street 
 railway company for a collision with the plaintiff"'s automobile, is not 
 shown from the facts that, on approaching an intersecting street, the 
 plaintiff reduced the speed of liis automobile so as to avoid a slowly mov- 
 ing westbound car without discovering an eastbound car approaching 
 at an unlawful rate of speed until his automobile Avas near or on the 
 track, and in the emergency, he increased speed and attempted to pass 
 in front of both cars, when his automobile was struck by the eastbound 
 car, the speed of which was not slackened after the motorman discovered 
 the plaintiff's danger. 
 
 Derry v. B.C. Elec. Ry. Co.. 12 B.C.R. 258. 
 
 Liability for injury to person crossing tka( k to roard car. 
 
 A judgment against a street railway company for injuries sustained by 
 the plaintiff by being struck by a street car while crossing a track to 
 board another car, will not be disturbed on appeal on the ground that the 
 plaintiff's negligence contributed to his injury, where, under all the circum- 
 stances of the case, the question of the defendant's negligence as well 
 
STREET RAILWAYS. 699 
 
 as the ^auntilTs coDtriliatoiy ueftigeuBt, to« f^ffP"^ qaestkMis for the 
 
 juiy. 
 
 Ogke T. B.C. E3«e. Ry. Co, 12 DXJL 261. 
 
 [Fni^ui T. LoBdan'jb X.W. St. Co. (ISS9L 3 Tbnes UB. 598: Roddy 
 X. Umdom & S. W. R. Co. (ISSH), 8 Times LJK. eSS; and Tor«to Rr. Co. 
 T. Ki^. [1908] JLC. 2S0, foUovcd.] 
 
 IxjuKT TO rcBSOx c«ossnEC -n&cK — Fah-cbe id look fob curs. 
 
 Failore to look for a|>proac-faiB^ ears before crossia* a street car traek 
 will defeat an action for the death of a pedestrian vko. Iiad be it«ed orli- 
 aaiy care, would have seen the ear that struck him. which could not hare 
 been sti^ped by the motormaB after di^ctnrerii^ the peril of the deceased 
 in time to avrnd striking Ubl 
 
 Ryder t. St. John Ry. Co., 13 Di.R. 11. 
 
 IXoadoB Street Ry. Co. r. Brown. 31 Can. S.C.R. 642, applied.] 
 
 OoujsHa wrrH tehicxe — ExcessirE speed — CoxiWBtno«T sbcucexce. 
 
 Persons crossing the street railway tracks are entitled to assume that 
 the ears win be driTen moderately and prudently, and if an accident hap- 
 pens through a car goins at an e\cesisire rate of «peed the street railway 
 company is responsibie. The driver of a cart struck by a car in cmssi^ 
 a track is mat, guilty of contributory negligence because he did not look 
 to see of a car was approaching if, in fact, it was far enough away to 
 enable him to erase if it had been prooeedii^ moderately and prudently. 
 He can be in no worse position than if he had looked and seen that there 
 was time to cross. Gwynne, J., dissenting, fl A.R. (Ont^f 533, affirmed. 
 
 Toraito Ry. Co. t. GoaielL, 24 Can. S-OR. 582. 
 
 [IKstn^ukhed in a'Heam t. Port Arthur, 4 OAJR. 209: referred to in 
 Halifax Elee. Tram. Co. t. Inglis. 30 Can. S.CJL 2.>8: Jmies t. Tbronto. 
 etc. Ry. Cos 20 O.L.R. 71.] 
 
 CotXISIOS AT CS06SISG RaTB OF STKBO — COSTSniTTOBT XECUGEXCE. 
 
 A wagon in whi4 plaintiff was proceeding from Sydney to dace Bay 
 was struck by an electric tram car owned and operated by the defendant 
 company, while attemptii^ to eras the defendant's track, at a place 
 known as Grand Lake Crossing, and plaintiff was injured. The evidence 
 showed that near the crossing there was a down grade for a distance of 
 about 3,000 feet, and then an up grade for 1.000 feet, terminating at a 
 sidi^ near which the crossing at which the accident ocenrred was situated. 
 Cte the down grade it was usual to run cars at a speed of from 20 to 25 
 ■ules an hour, but when half way down the power was shut off and the 
 speed am reaching the siding was 10 miles an hour. When plaintiff's 
 Uam waa first seen it was at a distance of from 33 to 40 feet from the 
 CTOssi^, and the car was distant from .50 to 75 feet. The iBOtonnan in 
 charge oi the car acted prMnptly in applying the brakes and rerersin^r 
 the current, but was imable to avert the collision. The whistle had been 
 bkmn when 300 yards distant from the crossing, and the car was provided 
 with suitable appliances for stiq^ing it within a reasonable tisae. The 
 rate of speed at which the ear was proceeding was lensonaUe omsidering 
 the time and place. Plaintiff heard a whistle blown which he sn^oeed to 
 he that of a Sydney and Louisborg train but did not see the ear until 
 his horse's head was distant about 20 feet from the crossing. Thoe was 
 also evid^Me to ^ow that be failed to exercise proper care in approachi^ 
 the axkssing as the reins were lying loose, and one witness called for 
 plaintiff testified that, at the time, the horse was being whi|^>ed and 
 «as galloping: — ^Held, affirmii^ the judgment of the trial judge and dis- 
 
700 8TKEKT KAILWAYS. 
 
 missing the action, that the proximate cause of the accident was negligence 
 on the part of the plaintiff. Held, that a point not raised by the state- 
 ment of claim, or at the trial where evidence might have been given to 
 display the contention, should not be raised on appeal. 
 Livingstone v. Sidney & Glace Bay Ry. Co., 37 X.S.U. 336. 
 
 Injuby to pkrsox and property — C'or.r.isioN of street car and wa^jgon-^ 
 EviDRNCB — Findings of jury — Damages. 
 
 Williams v. Toronto Ry. Co., 2 O.W.X. 39, 20 O.VV.R. 3. 
 'Collision with cab — Negligence of motorman — Speed. 
 
 Plaintiff's driver, who was proceeding in the same direction as a tram 
 car owned by the defendant company, stopped his cab to allow a passenger 
 to alight. He then turned and attempted to cross tlie track upon which the 
 car was running, about two car lengths ahead of the cab. The motorman, 
 who had been ringing his gong when he saw the cab turn across the track, 
 put on his brakes; then, seeing that he could not stop in time to avoid 
 a collision, released the brakes and applied the current the reverse way. 
 A collision having occurred, and an action having been brought by plain- 
 tiff, to recover damages for the injury done to the cab, the jury found 
 that the car was running at too high a rate of speed, and that the motor- 
 man was negligent in failing to apply the brakes, or reverse the current 
 in time to avoid the accident: — Held, dismissing the defendant's appeal, 
 that the question of speed was one for the jury, and, there being evidence 
 to support their finding, that the Court should not interfere. 
 
 Inglis v. Hailfax Elec. Tram. Co., 1 Can. Ry. Cas. 352, 32 N.S.R. 117. 
 [Affirmed in 30 Can. S.C.R. 256, 1 Can. Ry. Cas. 360; applied in Robin- 
 son V. Toronto Ry. Co., 2 O.L.R. 18; distinguished in O'Hearn v. Port 
 Arthur, 4 O.L.R. 209; referred to in Tinsley v. Toronto Ry. Co., 15 O.L.R. 
 438.] 
 
 Electric car colliding with cab — Excessive speed — Contributobt 
 
 negligence. 
 A cab driver was endeavouring to drive his cab across the track of an 
 electric railway, when it was struck by a car and damaged. In an action 
 against the Tramway Company for damages it appeared that the accident 
 occurred on part of a down grade several hundred feet long, and that the 
 motorman after seeing the cab tried to stop the car with the brakes, and 
 that proving ineffectual reversed the power, being then about a car length 
 from the cab. The jury foimd that the car was running at too high a 
 rate of speed, and that there was also negligence in the failure to re- 
 verse the current in time to avert the accident; that the driver was neg- 
 ligent in not looking more sharply for the car; and that notwithstand- 
 ing sucli negligence on the part of the driver the accident could have been 
 averted by the exercise of reasonable care: — Held, affirming the judgment 
 of the Supreme Court of Nova Scotia (32 N.S. Rep. 117), Gwynne, J., 
 dissenting, that the last finding neutralized the effect of that of contribu- 
 tory negligence; that as the car was on a down grade and going at an 
 excessive rate of speed it was incumbent on the servants of the company 
 to exercise a very high degree of skill and care in order to control it if 
 danger was threatened to any one on the highway; and that from the evi- 
 dence given it was impossible to say that everything was done that rea- 
 sonably should have been done to prevent damage from the excessive speed 
 at which the car was being run. 
 
 Halifax Elec. Tramway Co. v. Inglis, 1 Can. Ry. Cas. 360, 30 Can. S.C.R. 
 256. 
 
STREET ILVILWAYS, TOl 
 
 TACGOS — CtoyimwmMcr xbcucesce — Dm to 
 
 Tk gtnmtiM, «ko «m Ariit^ a kiw smI vagB^ "f^rj Amir akm^ 
 a stnct •■ Oe kft ode aC a car tnefe. tarard ta the ri^ ta cra» tke 
 toack aai tke aacE"* ^'** ateack Inr a car mUck kad hera nmimp he- 
 -s^ Tie phiBtar »id tkat ahoat'oar kaidlRd feet fraa tke poiat at 
 wkkk ke txiei to ciass ke Inked kack aad tkat^ aa car aas to be «««. 
 aad ke dU aot kxik a|;aia kefaiv tnriap to craae:— HcM, tkalt it 
 Mb datr ta kaw iMbdL ami tkat kK aot kan^g Amb a 
 uailaii atgligiute oa ks part, akkk discatitJed kaa ta 
 aeHL CDtepr T. Inaina StraK Rj. Cou (18M|. 3» OJS. 49CS. applied.! 
 JadgiHat of Brittoa. J. rmrsed. Per Bonrd. C: — ^A driver of a vekide 
 ■wcii^ ilna- a ttrat ia akick cai¥ are raaaiag. aad wka kaavs vkca 
 jad akeie ke iatcads to eroM tke car tracka. is koaad to be v^gilaat to 
 mtt h it m n iramiig tkat ao car is ooaiiap kekiad kiat. A greater tardta 
 ia tkis regard rvst^s oa tke driver tkaa ca tke ■ otof B . vko k aoft to 
 he kept ia a state of a c iiuata c a B aad app n h fiin a krt i i n w fn a r aar 
 at aaj ■laai ■! cxa» ia froat of tke mmims car. 
 
 Cr&ara v. Ftot Aitkw. i Cul Bt. Caa. 173, 4 OJLB. 3». 
 [DWiicBidHd ia liarskall t. Gates. 10 B.CJL 1S3; ia«ppiir«kif ia Bd 
 V. Wiaa^cig EkcL Street Rt. Ca, 13 Maa. ImB. 3M; leiui c d to ia ThbiIi— 
 4t WeaL Trwts ▼. Lake Erie. etc. Rr. Gol. 13 OX.R. 3S: .^^^utk r. Xia^aia. 
 dCL R. Co. 9 OX.R. 1S«: Tiader t. Tonato Rr. Co, 1^ OJjJL 438; 
 leGcd oa ia WaDiBaa t. Caa. PSm-Rj. Co.. IS llaa. L.R. 89.] 
 
 CoLusMs — Rnc OF THE aa^a. 
 
 A atitet railaar cwipaay kas ao cxd^nve rigkt to tkat portiov of a 
 pakfie street c o *gie d br its. tracks. It kas. k aaete i . a paraawaat aad 
 aaperiae r^kt. aad atkiera are koaad to ohMun. ttat rigkt to tke csteat 
 of aioiiliaj. colfisMaa: kat it also, is Oe datr of tkeae ia ckaige of a 
 car ta cserriie dOignare aad care, rvtm t k o agk tke pciaai ia daagLi of 
 laliJMBa aaj kiaself be aegligcat. Tke rale of tke road aa ^plied to 
 ■imt ears d iigaw ed- 
 
 BaUoar t. Toroato Rj. Cou 2 Caa. Rr. Gas. 314. 
 
 n»iid ia 3 OJ-£. 733, 2 Cul Rr/ca^ 323.] 
 
 CofXBaws — Vabjcwe to koec anx — S^oa- mt sok ev tk^ol — Coisjwtmo- 
 
 Tke piaiatiC, a tdegrapk aaeswager. aas ridia^ a fckj n J e ia a soatkertjr 
 directiaa bekiad a street car of tke ifc feadaaf > oa tlv m«$t track, aaid 
 tke car itiippiBj^ ia oeder to avoid raaai^g iato it, aad kecame ke faaad 
 SMar vas piled ap «■ tke road oa tke r^t side ke taiatd to tke left 
 side, aad aas atrack hr a car coaiag oa tke casi track, aad iajared. It 
 dU aot appear tkat tke latter car kad soaaded tka gea« or givea aar otker 
 varaiag. Tke plaiatiff k oaaa g aas aoasaited at tke trial:: — BM, tlttt 
 tke defeadaatf v«e booad to adapt reasoaakle precaatioiK to pvcveat 
 a c ci dt aU kr aoaadiag a goag or otkerake. altkoi^k tkere «aa ao alata- 
 toiy a kli^ Blkw; aad altkoa^ tke plaiatiC aaj kave pat kisself ia a 
 poi^tioa of peril, Ok aas aot per se aa act of aegiigeaeez aad tWre keia^ 
 rriiemn akick aJi^ kare satisfied tke jarr tkat tke accideat aas caaicd 
 W n ai i iiii i aa oa tte defeadaat's part to rii^ tke ga^. aad also eridcace 
 <na akidb fk^ au^ft kave foaad tkat it waa attrikataUe to tke plsia- 
 tiC^a aaa a^ ^iaix, tke case skoold aot kavc fceea vitkitava froa 
 
702 STREET liAlLWAYS. 
 
 tlicm. [Dublin, Wicklow & Wexford Ry. Co, v. Slatteiy (1878), 3 App 
 Cas. 1155, sjiecially referred to.] 
 
 Preston v. Toronto Ry. Co., 5 Can. Ry. Cas. 30, 11 O.L.R. 56. 
 
 [Affirmed in 13 O.L.R. 369, 6 Can. Ry. Cas. 249; distingiiislied in Tins- 
 Icy V, Toronto Ry. Co., 15 O.L.R. 438; followed in Brenner v. Toronto Ry. 
 Co., 13 O.L.R. 423.] 
 
 Collision — Negligence of motormax. 
 
 The fact that the motorman and the conductor exchanged places on a 
 street car in contravention of the company's rules, and that the conductor 
 so permitted to drive the car allowed it to collide with another car 
 either from negligence or inconipotencc. may form the basis of an action 
 by a passenger for the resulting personal injuries he received. 
 * Winnipeg Elec. Ry. Co., v. Hill, 8 D.lv.R. 106, 40 Can. S.C.R. 654. 
 [Hill V. Winnipeg Elec. Ry. Co., 21 ^lan. L.R. 442, affirmed.] 
 
 Collision with vehicle — Ultimate nkuligence. 
 
 In a personal injury case arising from a street car colliding with a rig, 
 where the trial Judge submits the question of ultimate negligence, but 
 the jury did not deal with it (or there is doubt as to whether they did 
 deal with it), even in a case where, upon unravelling confused jury 
 lindings, the effect may be that both were to blame and that the motor- 
 man after he saw the plaintiff in danger could not have stopped the car, 
 but there is no finding by the jury as to whether the motorman could by 
 reasonable diligence have avoided the accident after he should have known 
 that the plaintiff was about to cross in front of the car, and where the 
 finding at most is that the motorman could not have stopped the car 
 after he saw (not might have seen) the plaintiff, such findings are incom. 
 plete and groimd for a new trial to the plaintiff is there was evidence 
 before the jury sufficient to support a finding, had there been one, of ulti- 
 mate negligence on the part of the defendant. 
 
 Herron v. Toronto Ry. Co., 14 Can. Ry. Cas. 124, 6 D.L.R. 215. 
 
 [Reversed in 11 D.L.R. 697; 28 O.L.R. 59, 15 Can. Ry. Cas. 373.] 
 
 Collision with vehicle — ULTiiiATE negligence. 
 
 In a personal injury action arising from a street car colliding with a 
 rig, where both the plaintiff and the defendants' motorman were guilty 
 of negligence, each in not seeing the danger and avoiding the injury of a 
 collision, if it appears that when the motorman first saw the impending 
 danger it was too late to prevent the injury, the plaintiff's action fails. 
 [Herron v. Toronto Ry. Co. (No. 1), 6 D.L.R. 215, 14 Can. Ry. Cas. 124, 
 reversed.] In a personal injury action arising from a street car colliding 
 with a rig where the findings of the jury were in effect that the negligence 
 of the defendants' motorman and that of the plaintiff were concurrent 
 and simultaneous negligence of similar character by both parties and that 
 there was not any new negligent act by the defendant in addition t-o its 
 first act of negligence, verdict was properly for the defendant and will not 
 in that respect be disturbed. [Herron v. Toronto Ry. Co. (No. 1), 6 D.L.R. 
 215, 14 Can. Ry. Cas. 124. reversed.] 
 
 Herron v. Toronto Ry. Co., 11 D.L.R. 697, 15 Can. Rv. Cas. 373, 28 O.L.R. 
 59. 
 
 Reab end collision — Failure by motorman to observe rules. 
 
 Where it appears from plaintiff's own evidence that he was familiar 
 with a rule of the railway company calling for a five-minute interval be- 
 tween cars and he, as motorman of a car, failed to observe that rule. 
 
STREET RAILWAYS. 703 
 
 -whi^ failure oo Us put tmnsrd a conis.ioB wHh a car ahead, a verdict bv 
 the jnnr in his faroiir will be set aside and the action dismissed oa 
 appcaL ' (Per Macdonald, CJ-A^ and Galliher. .1.^ i 
 
 Dajncs t. Britirii CohimlHa Eke. Rr. Col, 14 Can. Rt. Caa^ 309, 7 DJLR. 
 767. " 
 
 [Revvreed in IS Can. Rt. Cas. 146^ 19 DJ:.JL 266. 49 Can. S.C.R. 5$.] 
 
 ISJVMT TO CHIIJ> — CO MMBL ' m aT ytBT.IGKXCE — ULTIMATE XBGUGEXCE. 
 
 In sabmittin^ the ca$e to the jnrr in an acti<Mi for damages arising out 
 <rf injurr to a child bv one of the defendant companr's cars, fire qu«Ktioo> 
 w^oe submitted br the Judge, who also instructed the jnrr that they might 
 if thejr choee. bring in a general Terdict. The jury returned a verdict 
 for the plaintiff in OOO damages. On the Judge asking whether they had 
 aasvered the questions, the foreman replied that they had answered three: 
 "(1) Was the company guilty of negUgence* Yes. (21 If so. in what 
 did suA B^igcsce consist? Over^iced. (3) Was the plaintiff guilty of 
 eaatribatory negligence? Ves.'^ The trial Judge, on this, dismissed the 
 afllion: — ^Held, that while it was probable that the jury intended to 
 return a goieral verdict, yet the matter was not free from doubt, and 
 Aoald have been cleared up before the jury was discharged. There should, 
 thocfon', be a new triaL One of the questioB not answered was ''CoukI 
 tke motrnman. after it became apparrat to him that the boy was goin;; 
 t» cross the tracks, by exercise of reasmiable care and skill, hare pre- 
 vcated the acridcat if he had been running at a reasonable rate of speed?*^ 
 The Judge said, in submitting this questi«i: **I want you to nmsider 
 that last element, because it is not: *Could he have jMvrented the acci- 
 dent if running at an unnreasoaable rate of speed ^* ^ Held, that this 
 question was improperly framed, and the jury were not properly directed-, 
 that the original rate of speed was the original negligoice. and after 
 finding suA negligence the jury had to consider whether, notwithstanding 
 the unreastmable rate of speed, the raotorman. after seeing the boy ccHumit 
 or about to commit a negligent act. could, by the exercise of reasonable 
 care, have avoided the consequraces of it. New trial ordered, costs of ^»- 
 peal to appellant, and costs of trial below to abide the evoit of the aev 
 triaL 
 
 Rayfield t. British Columbia Elec. Rv. Co., 15 B.CJL 361, 14 WJLR. 
 414. 
 
 Co:n«iBrTo«T tecugexcie bt uitcwed chiu>. 
 
 A boy of eleven years of age and of sufficient intelligaMe, in the estima- 
 tion of the Court, to understand the probable consequence of his actions, 
 is liaUe for contributcHy neglisence in the case of an accident, while 
 attempting to board a tramway car as a trespasser and in disobedience 
 to orders of the school-masters in charge of him. 
 
 Xormand v. HnU Elec. Ry. Co.. 35 Que. S.C. 329. 
 
 [Followed in Champagne' v. Montreal St. Ry. Co. 35 Que. S.C. 514.1 
 
 IKJCTT to rXTAXT — FaTLCBE of MOrrOSMAX TO TAKE PBOPES P«ECAmoX8 
 
 In an action brought in the name of an infant, claiming damages for 
 injuries occasioned throi^h the alleged n^Iigence of the defendant com- 
 pany in the operation of their electric tramway, the evidence shewed that 
 the infant, a child aged one 3rear and eleven months, was seen approach- 
 ing tb«> track upon which one of the defendant's cars was moving slowly. 
 The whistle was sounded and the child stopped for a moment and then 
 moved quickly towards the car and was struck, and received the in. 
 juries for which the action was brought. Upon seeing the child stop 
 
704 STREET RAILWAYS. 
 
 wlien the whistle was blown, the motorman immediately applied speed 
 without waiting to see whether the child was going to return or making 
 any effort to remove it from its dangerous position: — ^Held, that this was 
 a clear case of reckless conduct, for which defendant was responsible. 
 Also, that the failure to take proper precautions to avert injury to the 
 child was not to be excused by the alleged necessity £)f complying with 
 the time table and preventing delay to passengers. Also, that the fail- 
 ure of defendant company to provide its car with a fender was clear 
 evidence of negligence. 
 
 Lott V. Sydney & Glace Bay Ry. Co., 8 Can. Ry. Cas. 276, 41 X.S.R. 153. 
 
 [AflSrmed in 42 Can. S.C.R. 220, 9 Can. Ry. Cas. 359.] 
 
 CONTBIBUTOKY NEGLIGENCE OF CHILOKEN — PRESUMED JUVENILE DISCRETION. 
 
 A boy of eight and one-lialf years, possessing the ordinary intelligence 
 of a child of that age, will be presumed to know enough to get out of the 
 way of a moving street car if he saw it coming. In an action to recover 
 for the alleged negligence of a railway company in running over a child 
 eight and one-half years of age, where the testimony of the witnesses 
 fails to bring out a material point as to the question" of the contributory 
 negligence of the child (ex. gr., why he failed to observe the approach of 
 the car) it is error on the part of the trial Judge not to permit the child 
 to testify either under oath or in the form of unsworn evidence received 
 under the provisions of s. 39 of the Evidence Act, R.S.M. 1902, c. 57, 
 where it appears that the child understood the duty of telling the truth. 
 
 Schwartz v. Winnipeg Elec. Ry. Co.. 12 D.L.R. r)6. 23 Man. L.R. 483. 
 
 [See Annotation to Hargrave v. Hart, 9 D.L.R. 521, on contributory 
 negligence of child injured while crossing highway.] 
 
 Crossings — Contributory negligence — ^I-.ookinq both ways. 
 
 A person about to cross a railway track is under a duty not to be guilty 
 of negligence, but what is the exercise of reasonable care is a question of 
 fact to be decided by the jury, according to the facts of the case, and fail- 
 ure to look just before crossing a street railway track is not, as a matter of 
 law, negligence per se. [Grand Trunk R. Co. v. McAlpine, 13 D.L.R. 618, 
 [1913] A.C. 838, 16 Can. Ry. Cas. 186, explained.] 
 
 Ramsay v. Toronto Ry. Co., 17 Can. Ry. Cas. 6, 30 O.L.R. 127, 17 D.L.R. 
 220. 
 
 Excessive speed and lack of warning — Crossing street with beason- 
 able care. 
 
 Where the substance of the jury's findings in an action against a street 
 riiihvay for running down and killing a foot passenger crossing the street, 
 is that the death was caused by negligence in operating their car at an ex- 
 icssive rate of speed and in failing to give warning of the approach of the 
 car. and that the deceased, having looked up and down tlie street and seen 
 no cKr. had exercised reasonable care, judgment must be entered for the 
 ])laintiff, if there was evidence upon which reasonable men might find, as 
 the jury did, that defendants were guilty of negligence and that the de- 
 ceased had exercised reasonable care. 
 
 Ramsay v. Toronto Ry. Co., 17 Can. Ry. Cas. 6, 30 O.L.R. 127, 17 D.L.R. 
 220. 
 
 [Cooper v. London Street R. Co., 9 D.L.R. 368, 15 Can. Ry. Cas. 24, 4 
 (1.^^^N. 623, followed; Dublin, Wicklow & Wexford Ry. Co. t. Slattery, 3 
 App. Cae. 1155, 1166, distinguished.] 
 
STREET RAILWAYS. 705 
 
 COSTKIBCTOBT KbEXIGEXCK — RelASOXASLS CASE — ^DnECT AJXD IWOSUUkT^ 
 CArSE. 
 
 L. started to croes a street trarersed bj an electric raihraj and proceeded 
 ia a north-Testerlj direction witli bis head down and apparently nncon- 
 scaoos of liis surrounding*. A car was coming frcnn the east and the mo- 
 tonnan sav Ub when he left the curb at a distance of about fifty jards. 
 Twenty yards further on he tlirew aS the power amd whoi Ll, stUl ab- 
 stracted, crowed the devil strip and stepped <m the track reversed being 
 then about ten feet from him. The fender struck him before he crossed 
 and he received injuries causing his death. On the trial of an action by his 
 widow the jury found that the motormaa was negligent in not having his 
 car uder prt^ier control, that L. was a^gligent in not loirfdng out for the 
 car, but thai the motormaa eould, notwithstanding, have avoided the acci- 
 dent by the exercise of reaaoBaUe care. A majority of them found, also, 
 that Ik's n^ligeBce did not continue up to the mommt of impact. Upon ap- 
 peal firon the judgment setting aside the verdict for the plaintiff at the 
 trial and dismissing his action, the verdict at the trial was sustained ou 
 the ground that the jury were entitled to find that when the motorman first 
 saw L. he should have realized that be might attempt to cross the tra<^. and 
 it was his duty then to have the ear under control, and that his failure to 
 do so was the direct and proximate cause of the accident for which the rail- 
 way company was liable. (Davies and Anglin. J.J., dissenting.) [Long 
 v. Toronto Ry. Co.. 15 Can. Ry. Cas^ 35. reversed; Tuff v. Warman. 5 
 C.B JC^ 573 : Radley v. London i X.W. Ry. Co.. 1 App. Cas. 754 : Walton v. 
 London t Brighton i S.C. Ry. Co., H. & B. 424; The Bemina. 13 App. Gas. 
 L 12 PJ). 58; Davie* v. Mann. 10 AI. & W. 546. followed.] 
 
 LMig V. Toronto Ry. Co., IS tan. Ry. Cas. 92. 50 Can. S.C.R. 224. 
 Dirrr ox seeisc reasox ob vehicle on ob xeas track. 
 
 It is the duty of a street railway company to run its electric cars on city 
 streets under such control and at such rate of speed and accompanied by 
 such warning, that the motorman will be enabled to take reasonable pre- 
 cautions to avoid a collision when an emergency arises by a vehicle neces- 
 sarily turning upon the tracks in a crowdt^ street. 
 
 Dnrie t. Toronto Ry. Co.. 16 Can. Ry. Cas. 334. 15 DXJL 747. 
 
 OR&ATIOX — ^IMkaILMEXT <W cab — PkIMA facie XBCtlGEXCE — Waitek. 
 
 Although proof of derailment of a railway car and its resultant injury 
 generally establishes a prima facie case of negligence against the defend- 
 ant eompany in a personal injury action, yet the plaintiff who goes fnr- 
 Ika- and undertakes without success to shew specially the cause of 
 BoA derailment may thereby waive the prima facie case uptm which he 
 might otherwise have relied. 
 
 Curry t. Sandwich, Windsor 4 Amherstburg By. Co., 19 Can. By. Cas. 
 210, 18 DXJL 685. 
 
 ^CB TBACK — IXJTBIES CAUSED BT CABS BELEASED BT CHnJBKX. 
 
 A strert railway eoaipany, which is supplying material for a street con- 
 stroetaai eonpany, and has for that purpose a spur line connecting with the 
 main trade fay a knife switch, which allows cars upon the spur line to run 
 down the grade and out on to the main line, is responsible for injuries 
 caused by boys releasing the cars on the spur line, thus causing a collision 
 witli the ear on the main line on which the plaintiff was traveling. [Mc- 
 Dowall V. Great Western Ry. Co.. [1903] 2 K.B. 331. distinguished.] 
 
 Gnea t. British CoIumbU Elee. By. Co., 19 Can. By. ObSl 2M, 8S DXJL 
 543. 
 
 Cu. By. Ll Dig.- 
 
706 STREET RAILWAYS. 
 
 Pboteuding bails — Collision with automobile — MtrNiciPALiTT. 
 
 A municipal corporation operating a sti'eet railway is liable for a colli- 
 sion of a street car with an automobile which had become stalled owing to 
 rails protruding at a highway crossing. 
 
 Kuusisto V. Port Arthur, 20 Can. Ry. Cas. 335, 37 O.L.R. 146, 31 D.L.R. 
 670. 
 
 Accident at crossings — Private driveway — Collision with vehicle — 
 Speed — ^Warnings. 
 
 The operating of an electric car at an excessive rate of speed and the fail- 
 ure to give proper warnings wliile approaching a private driveway crossing 
 constitutes negligence at common law which renders the company answer- 
 able for injuries to a vehicular traveler resulting from a collision at the 
 crossing. [Grand Trunk Ry. Co. v. McKay, 34 Can. S.C.R. 81, 3 Can. Ry. 
 Cas. 527; Bell v. Grand Trunk Ry. Co. (1913), 15 D.L.R. 874, 48 Can. 
 S.C.R. 561, 16 Can. Ry. Cas. 324, distinguished.] 
 
 Gowland v. Hamilton, Grimsby & Beamsville Elec. Ry. Co., 19 Can. Ry, 
 Cas. 214, 24 D.L.R. 49. 
 
 Collision with automobile — Contributory negligence — Violating 
 rule of road. 
 
 Driving an automobile contrary to the rule of the road as required by a 
 municipal traffic by-law, particularly the reckless proceeding out from be- 
 hind a street car in a diagonal course thereby hiding from view a street car 
 approaching from an opposite direction, constitutes contributory negligence 
 which will preclude recovery for injuries sustained in consequence of a col- 
 lision with the street car. [British Columbia Elec. Ry. Co. v. Loach, 20 
 Can. Ry. Cas. 309, 23 D.L.R. 4, [1916] A.C. 719, considered.] 
 
 Tait V. British Columbia Elec. Ry. Co., 20 Can. Ry. Cas. 408, 22 B.C.R. 
 571, 27 D.L.R. 538. 
 
 [Appeal to Supreme Court of Canada quashed on ground of want of juris- 
 diction.] 
 
 Dangerous placing of troixey pole — Absence of guards — Collision. 
 
 A street railway company empowered by its Act of incorporation to erect 
 poles on a street, so as not to impede public travel, will be liable in dam- 
 ages for injuries to a vehicular traveler resulting from a collision of a 
 motor car with one of the trolley poles that had been shifted from its 
 uniform position at the side of the street to the devil's strip, without any 
 lights to guard it at night. 
 
 Weir V. Hamilton Street Ry. Co., 22 D.L.R. 155. 
 
 Boarding crowded cab — Standing on step — Contributory negligence. 
 
 Standing on the lower step on the entrance platform of a crowded car 
 and hanging on to the bar handle in an eflfort to board it amounts to con- 
 tributory negligence which will preclude recovery for injuries sustained as 
 a result of being thrown therefrom when the car is being started. 
 
 Clarey v. Ottawa Electric Ry. Co., 21 Can. Ry. Cas. 231, 38 O.L.R. 308, 33 
 D.L.R. 586. 
 
 Duty on seeing person near track — Warnings — ^Ultimate negligence. 
 A motorman approaching a crossing, who has given the statutory warn- 
 ings, is not bound to give additional warnings to persons approaching it, 
 unless be had reason to believe that they were oblivious of his presence and 
 
STREET RAILWAYS. 707 
 
 of i\»Hgt I m inwiiif, tke track; kis failure to do so, ib tiie dreaBstaaees, 
 does wit eu mAitut e nhiauite Degligeaee. 
 
 Ibmem t. BritiA Coiaman Elee. Rj. Cou, 21 Gu. B7. Cms. 238, 23 B.C.R. 
 M, 3C DJOL 301. 
 
 KeGIJ6E:(CB — COXT«IBrTO«T — ^UlTTMATE — DotCTITK MiAKKS — Sfeed. 
 
 DefeetiTO brakes tm a «treet ear incapable of arresting its speed when 
 a^nMckiag a hivfawar erasing is negligence which will raider the rail- 
 wuj eamfmnj liable for a collision, notwithstanding the plaintiff's eontrib- 
 ntarr ncsKgaee. [British Colombia Elec. Rr. Co. t. Loach. [1916] 1 A.CL 
 719,' 23 DJxB. 4, 20 Can. Bt. Cas. 309, followed: Colombia Bitulithie t. 
 British Columbia Elec. Ry. Co., 31 D.L.R. 241. 23 B.CR. 160. rerersed.] 
 
 Cohimhia Bitulithie t. British Columbia Elec Rt. Co., 21 Can. Ry . Cas. 
 243, 55 Can. S.CR. 1, 37 DX.R. 64. 
 
 OLXIMATB XBGI-IGEXaE — EXCESSIVE SPfZBl. 
 
 Running a street car at an excessive speed can only become ultimate neg- 
 ligcBce, for which there is liability notwithstanding the plaintiff's con- 
 tributory negligence, in cases where the motorman could, or should have, 
 avoided the accident, but failed to do so. 
 
 Smith V. R^ina, 21 Can. Ry. Cas. 270, 34 D.L.R. 238. 
 
 CtHXISIOX UlTiatATE XEGUGKXCK. 
 
 The faUure of a motorman to avoid a collisi<Hi. when he could have dmie 
 so, after seeing that the plaintiff was about to cross, is the ultimate n^li- 
 geaee and the proximate cause of the accident, despite the plaintiff^s con- 
 tributory negligence in failing to look. [Calgary v. Hamovis. 15 D.L.R. 
 411, 48 Can. S.CR. 494. followed. See annotati(», 1 DT.R 783.] 
 
 Banbury v. Regina. 21 Can. Ry. Cas. 285, 10 S-L.K. 297, 35 DJL.R. 502. 
 
 UjfrsrAi. joLTTSG OF CAR — Dttt or sebta:cts rs cbameb. 
 
 If there is unusual jolting or bumping a street car it is the duty of the 
 anvants in charge of the car to ascertain w^y the bumping is going on. 
 Failure to do this is negligence fw which the company is liable in ease of 
 injury to a passenger, caused by the sudden stopping of the ear, ovii^ to 
 tke falling of a brakeshoe. 
 
 Seott T. Toronto Ry. Co., 48 DX.R. 569. 
 
 Loose isoulet bopc. 
 
 Allowing a rope attached to a trolley pole to hang loose, and capable of 
 beiai; blown out by the wind and entangling person? waiting for cars, is 
 ■^[ligeBee, for which a person injured in consequence thereof may recover. 
 
 Wilkes V. Saskatoon, 32 DiJl. 42. 
 
 BOABPTVG CA« WHILE ES HOTIOS WaKNESGS AGAISST — COXTKIBCTOKT XBB- 
 
 UGKSCE. 
 
 Disregard of a warning prominently displayed at the point of eatraaee to 
 a street ear that persons should not get on the car while it is mawiagjwamj 
 eoBstitiite contributory negligence on the part of the passenger whidi will 
 prevent his recovering damages for injury to his foot by having it caught 
 in the step riser which was defectively and improperly built, if it appears 
 that the plaintiff's foot could not have slipped into the opming left in the 
 riser had he boarded the car when it was stationary. [Newberry ▼. Bris- 
 tol Tramways, 107 L.T.R. 800, referred to.1 
 
 Black T. Calgary, 24 DiJL 55, 31 WXJL 191, 8 W.W.R. 64«. 
 
708 STREET RAILWAYS. 
 
 Conductor stopping cab suddenly whkn not at regular stopping place 
 — Injury to passengfj{. 
 
 Tlie stopping of a street car in tlie middle of a block, not being necessary 
 or jiijstifiable under the circumstances, a jury is justified in finding negli- 
 gence, where the car was brought to a violent or sudden stop, which 
 caused a passenger standing in the car to fall and sustain injuries. 
 
 Billington v. Hamilton Street Ry. Co.. M D.L.K. 708, 39 O.L.R. 25. 
 Collision — Ultimate negligence — Failure to look — Defective brakes. 
 
 Columbia Bitulithic v. British Columbia Elec. Rv. Co., 31 D.L.R. 241, 35 
 W.L.R. 227. 
 
 Operation — Duty and care — Struck by step of car. 
 
 A plaintiff suing a street railway company for being hit by the step of a 
 car while at the side of the track is not entitled to have tlie question of 
 negligence submitted unless he has established by some reasonable proof 
 want of due care by the company or its servants. 
 
 Dunham v. Cape Breton Elec. Co.', 21 D.L.R. 38. 
 
 Hill — Loaded vehicle — Street cab track — Right-of-way. 
 
 Tlie driver of a loaded veiiicle climbing a steej) hill has no special right 
 of way over a street car track and must use reasonable care in crossing. 
 Blindly crossing the track without looking to see whether a tram car is ap- 
 proaching or not is negligence which disentitles him to damages for in- 
 juries sustained. 
 
 Davie v. Nova Scotia Tramways & Power Co., 41 D.L.R. 350. 
 
 Injury to passengioi — Extending arm through wimx)w. 
 
 Unless a tramway company has been guilty of negligence in some other 
 respect, a passenger who puts his arm on the sill of the car window in such 
 a way that it projects bejond the side of the car, and is struck by a car go- 
 ing in the opposite direction, cannot recover damages for such injuries. 
 
 Montreal Tramways Co. v. Lefebvre, 24 D.L.R. 278. 
 
 Collision with automobilbj — ^Theatres — Speei>. 
 
 Running a street car at a high rate of speed at a place where people 
 were leaving a theatre, thereby colliding with an automobile proceeding 
 out from thereabouts, is negligence for which the railway company is re- 
 sponsible; where both are at fault the company may be condemned to pay 
 half of the damages claimed. 
 
 Fairbanks v. Montreal Street Ry. Co., 31 D.L.R. 728. 
 
 Collision — Negligence of jitney driver. 
 
 Where in the agony of imminent collision caused by a jitney driver's 
 recklessness, a motorman increases speed, in the hope of avoiding an acci- 
 dent, the railway company is not liable for injuries occasioned thereby to 
 a passenger of the jitney. [See Annotation in 1 D.L.R. 783.] 
 
 Moore v. B.C. Elec. Ry. Co., 35 D.L.R. 771. 
 
 Driver of motor cak — Nj:gligence of street car conductob proximate 
 cause. 
 Tlie negligence of the plaintiff in misjudging the speed of an oncoming 
 street car will not prevent iiim from recovering damages for injuries caused 
 by his car being hit by such street car, where the real proximate and deci- 
 sive cause of the injury was that the motorman was running the car at suds 
 an excessive rate of speed that he could not stop the car within a reason- 
 
STREET RAILWAYS. TOD 
 
 able distance and avoid tlie nsoU of the plaintilFa negliseiiee vkick ni^t 
 hare been anticipated. 
 
 Par$«Bs T. Toronto Rv. Co^ 48 DX.R. €78. 
 
 Coixisio:x WITH pexsox cvosslng stbeet — Signai.s — Pboximais causl 
 Sitkoff v. Toronto Ry. Cou 29 Di-R. 498. 
 
 Xbcugence — Escape op euectmc cr«BE\T — Juxismcnox of comkissiox 
 — Afpeals rwoii — Coxsi n i tioxautt — ^Appocxttvk powe«s. 
 Winnipeg Elee. Et. Co. t. Winnipeg: Re Pnblie Utilities Act, 30 DJ*R. 
 159. 
 
 AOdBBTT AT SXSBET CBOSSIXC — EXCESSIVE STEED OP CAB — YAOJCmE TO 
 SOCXD eOXG COLUSIOX VITH AUTOSiOULE. 
 
 That the driTer of an automobile, when abont to eraes a street railway 
 track at a street intersection where hi$ view was obetrarted bv a fcaee at 
 the edge of the sidewalk, erected about a building in cooree of connroetioB. 
 eoold hare seen an approaching car had he looked a second sooner, does not 
 establish contributorr- negligence <^ufficient to defeat a recoTerr for a col- 
 liaoa with the car. whidi was running, in violation of a ntonieipal regnla- 
 tion, at a high rate of speed without its gong being sounded. [Toronto Rt. 
 Co. T. King, [1908] A.C. 26i>. applied: Toronto Rj. Co. r. GosnelL 24 Can. 
 S.C.R. 582; and Grand Trunk Rr. Co. t. Griffiths, 4o Can. aOB. 380. 
 ^eeialljr referred to.] 
 
 Sinungton t. Moose Jaw Street Rt. Co., IS DXJL 94. 
 
 Pexsox cno!«siXG tkack — Reixaxce ox bulks — Pbopes spccb axb opcmA- 
 
 nOX ^SCOTE OF "STOP. LOOK AXD USTEX" DOCTBTXE. 
 
 Where the plaintiff, abont to cross a stre^ railway track, sees the ear 
 ■Miing at such a distance away that he thinks it safe to voiture across the 
 shml distance he has to go. he has the right to assume such, safety and that 
 the ear is being operated pn^rly and not at an excessive rate <rf ^»eed. 
 Where a person oo foot is about to cross a street railway track having 
 takoi the precaution to look once and having reasonably framed the opinion 
 that it is $afe to rrosis the track because an approaching car is at such a 
 distance that, if operated in a usual and proper manner, the pedestrian can 
 safety cross: the trial Judge is in error, if be states the law as imposing a 
 dntA- to look again, or continue looking and keeping the car in si^t. as a 
 conditi<Mi precedoit to any right of recovery. [Myers v. Toronto Ry. Co., 10 
 Di-R. 754. reversed.] 
 
 Myers v. Toronto Ry. Co., 18 DXlR. 335. 
 
 IXJCBT TO FQtSOX AUGHTIXG FBOlf CAB — OCTWABD SWIXG OF BKAB STEPS 
 
 PbOXLSCATE cause op IXjrBT — DtTT or COMPAXT TO PASSEXGEB. 
 
 Hie obligation of the defendant company to the plaintiff, as its passenger, 
 did not end until she reached a place from which she might have safely 
 passed from the point of debarkatitw to the place where she had to go to 
 transfer to another line. The obligation of the company was greater 
 towards a passenger who had not completed his journey, but in order to 
 do that had to transfer to another line than it would be to a passenger who 
 bad completed his journey; but. even as to such a paasenga", the company 
 was Ixtund to provide a stopping place at whidi the pirnrnf.1 1 could pro- 
 ceed to the sidewalk without having to pass throagh sodi a pool of water as 
 existed at the usual place for crossing or subject!]!^ him to the danger, 
 before be had reached the siJewalk. assuming that he had not unnecessarily 
 delayed in crassing. of being struck by a car when it was swinging around 
 a curve such as existed at the stopping place. The plaintiff was still a 
 
710 STREET RAILWAYS. 
 
 passenger when she was struck by the rear end of the steps of the car as it 
 swung outwardly in rounding tlie curve; the company owed her a higlier 
 duty than if she had been merely a traveler upon the highway; the serv- 
 ants of the company were guilty of negligence in starting the car without 
 first making sure that the passengers who had left it were not still bo- 
 *,ween it and the wagon; and that negligence was the proximate cause of 
 the plaintiflf's injury. Judgment of Middleton, J., 44 O.L.K. 232, 46 D.L.K. 
 722, affirmed. 
 
 Barr v. Toronto Ry. Co. and Toronto, 40 O.L.R. 64. 
 
 Collision upon highway of automobile and f.i.kctric strket car — Ac- 
 tion BROUGHT BY DRIVER ADDITION OF OWNER AS CO-PLAINTIFF — 
 
 Judge's charge — Findings of jury — Operation of "backing" street 
 CAR — Control from front — Question for Ontario Railway and 
 Municipal Board — Negligence of conductor — "Misjudging course 
 OF automobile" — Failure of driver of automobile to give signal 
 
 WHEN turning. 
 
 O'Dell V. Toronto Ry. Co., 44 O.L.R. SilO. 
 Injury to passenger — Fall caused by breaking of strap — Prim.\ facie 
 
 NEGLIGENCE — RES IPSA LOQUITUR — ABSENCE OF EVIDENCE OF INSPECTION 
 
 — Finding of jury — Xondirection — ^New trial — Husband joined as 
 
 co-plaintiff. 
 The fact that the strap by which the plaintiff was supporting herself, 
 standing in the car, broke when called on to bear the strain, cast upon the 
 company the burden of shewing that the breaking was not due to any negli- 
 gence on its part. Tlie case was one for the application of the rule res 
 ipsa loquitur. [McPhee v. Toronto and Bulmer (1915), 9 O.W.N. 150; 
 Sangster v. T. Eaton Co., 25 O.R. 78, 21 A.R. (Ont.) 625; T. Eaton Co. v. 
 Sangster, 24 Can. S.C.H. 708. and Toronto Ry. Co. v. Fleming (19i:5), 47 
 Can. S.C.R. 612, -followed.] The company adduced evidence for the purpose 
 of rebutting the prima facie presumption which arose from the breaking of 
 tlie strap, but made no attempt to shew that the strap had been inspected or 
 tested, or that any system of inspection or testing was in use, nor to shew 
 how long the strap which broke had been in use. The jury should have 
 been instructed that the burden of rebutting the presumption of negligence 
 which arose from the breaking of the strap was upon tlie company, and 
 that unless that burden had been satisfied the plaintifl's were entitled to 
 succeed; and. the jury not having been so instructed, and their findings 
 as to negligence being unsatisfactory, the ends of justice would be best 
 served by setting aside the judgment and directing a new trial. [Judg- 
 ment of 'Meredith, C.J.C.P. 44 O.L.R. 568, reversed.] 
 Brawley v. Toronto Ry. Co., 46 O.L.R. 31. 
 
 Res ipsa loquitur — Jerks and jolts. 
 
 A jerk or jolt of a street car while receiving passengers, resulting in a 
 passenger being thrown off and injured while attempting to board the car, 
 is prima facie proof, without more, that the accident was caused by the neg- 
 ligence of the railway company, to which the principle of res ipsa liquitur 
 applies. [See Imperial Tobacco Co. v. Hart (N.S.) 36 D.L.R, 63.] 
 
 Johnson v. Halifax Elec. Tramway Co., 36 D.L.R. 56. 
 
 Duties as to speed and signals — Agreement with municipality as to — 
 Right of pedestrian to assume compliance. 
 When by an agreement between a municipal corporation and a company 
 operating street cars, it is provided that the company will not run its 
 
STREET RAILWAYS. 711 
 
 cans at a grata- rate of speed tkaa tea auks an hour vitlua otjr liaBits, 
 vithoot the poauanaa of tike eorpotatiaB, and that a gimg duM be sounded 
 vitluB fiftr feet off cacii erosai^. A person croeaag tlw Toad vhere tlie 
 street ears are opomled has the right to ajsmae that the dri T er s of the cars 
 vill eoBi^jr vith these r^iilatioii& [Sianingtoa t. Moose Jaw Street Sf. 
 Co., 5 W.W.R- T59, fMamtd.} 
 
 BrovB T. Moose Jaw Eke C«^ 7 W.W JL C95. 
 
 DCTT WBXS AFTSOACHIXC A CSOSSrXG. 
 
 It 15 quite a frequent and expected practice for Ae piAKc to c ro s s a street 
 bdiind a car stopped at a comer of a street. This eroso^ henug dai^erons 
 «• aeeoont of a car irhich but be eaaii^ in the opposite dii ec tk* , it ought 
 t» be the object of >peeial precaotiaa oa the part of the cssplojees of the 
 rnipaBy. And a car passing another ear at rest» d larharg ing pa wtrngeris 
 ii^ght to go at such a speed as to enable it to be stopped alnwEt instantlr. 
 And a ■oAorman. at a ■otwt vhen, bjr the presence of another ear at re^ 
 is nnable to see per?«ns apfnoacU^ froB the oth«- ilde of t^ stre^ 
 ostght to keep his attention abeoIntelT rrretted so as to be able to avoid anj 
 d a n g e r which ught arise. 
 
 Baton T. Montreal TramwsT? Co., 51 Que. SLC. 74. 
 
 COLUSIOX WITH ACTOMCmnjE CoXCrBSENT XBGUGEXCK. 
 
 In an action for damage^ for negligmce in the (^leration of a street ear 
 roDidiii^ with plaintiflT^ aotomobile, where it is found that the plaintiff was 
 hinself ncgUgent and his negligenee was cancnrrmt with tlie negligence ot 
 the defendant whidi, e^g.. excessive ^Ked. was boa prisury and ultimate, 
 the plaintiff cannot recover. [Bice r. Tcvonto 1^. Gol, 20 O X^ 446, ftAr 
 h»wed.] 
 
 United Motor Co. r. Begina. 10 SJ..B. 373, 3 W.WJ8. 509. 
 
 O. Duty towards Passeagexs; aijiirie« tn. 
 
 DcSnXATIOX OF CAB — SlGS-BOtAKUS IXHCAIXXG — DCXT 4W^ PASSKXGOK TO 
 IXQCTBE. 
 
 There is no obligation on the part of a railwar cmnpany to carry a pas- 
 se^n- through to his destination in any one particiilar ear. The only con- 
 tract on the part of the company is to eirry passci^iers in aceordanee with 
 the usual modes and methods of rrnining its trains; and it is Uk passen- 
 gir's dnty to j^oteet himself by i»i*tT»g inquiry as to Ae ill iJinsliim of 
 the ear he enters. 
 
 OXonnor v. Elalifax Elec. Tramway Co., 38 X.SLR. 212. 
 
 [Affirmed 37 Can. S.C.R. 523.] 
 
 AOCIIHAT BT AUGHTXXG FBOX CAM — C^OSStXG TKACK. 
 
 Plaintiff in returning home at two o'clock in the momii^ on a west 
 bound car mi the north track of defendants' street railway alighted from 
 the car and jffoceedied to cro» Oe north and sooth tracks on the street 
 in frosit of an approaching east bound car on the south track then about 
 100 feet away. There was evidence that the ai^rondung car was goi^ 
 at the rate of 8 to 10 miles an hour, and that there was a bright ekctrie 
 li^t near by that the plaintiff, if careful, could have seen the car. The 
 asotonnaa did not apply the brakes or sound tte gong before the plaintiff 
 ^f*" sfcmrk: — tMd, that a nonsait was ]»opa-hr directed. 
 
 Galli^n- v. Toronto By., 8 Oi-R. 098. 
 
 [Beierred to in Preston t. Toronto By. Col, 13 OJLB. 3G9.] 
 
712 STREET RAILWAYS. 
 
 Injury to passengee after alighting from cab — Coxtuirutory, 
 
 The plaintiff was a passenger on a crowded car of the defendants going 
 westward. Being near the front end of the car when it stopped at the 
 street where he wisliod to alight, he made his way past a juunber of peo- 
 j)le in the passage and in the front vestibule to the steps at that end, on 
 which another man was standing, and stepped oil" the car in tlie direction 
 of the parallel track of the railway. Almost instantaneously upon alight- 
 ing, he was struck by another car of the defendants proceeding eastwards 
 on the other track, knocked down and very seriously injured. The dis- 
 tances between the sides of two cars, when passing one another on the 
 two tracks, was 44 inches, and the height of the lowest step of the car 
 from the ground was 15* inches. There was no rule of the company pro- 
 hibiting passengers from alighting at the front entrance of car&> but a 
 rule of the company required motormen, when approaching another car on 
 that avenue, to slacken speed and ring tlie gong continuously until tk« 
 car had been passed. It was the custom of the company to permit passen- 
 gers to alight at the front entrance. The trial Judge found as facts that 
 the motorman on the eastbound car did not sensibly slacken his speed or 
 ring his gong as he approached the other car. The plaintiff was not 
 aware of the approaching car until it struck him: — Held (1), that the 
 motorman on the car by which the plaintiff was struck was guilty of neg- 
 ligence, rendering the defendants liable in damages for the injury done to 
 plaintiff. (2) The plaintiff had not been guilty of such contributory neg- 
 ligence as to prevent his recovery of damages, as he had a right to ex- 
 pect that, as far as the acts of the defendants' servants were concerned 
 he might alight in safety and would have a reasonable time after alight- 
 ing to look about so as to guard himself against injury from other cars 
 of the defendants, but was not given that time. [Oldright v. G.T. Ry. Co. 
 (1895), 22 A.R. (Ont.) 286, and Chicago, M. & St. P. Ry. Co. v. Lowell 
 (1894), 151 U.S.R. 209, followed.] (3) There is no binding authority for 
 the proposition that, from the moment a passenger's foot touches the 
 ground, a street railway's liability for injuries to him by their other car 
 ceases. 
 
 Bell V. Winnipeg Elec. Street Ry. Co., 15 Man, L.R. 338. 
 [Affirmed 37 Can. S.C.R. 515. Referred to in Savers v. B.C. Elec. Ry. 
 Co., 12 B.C.R. 111.] 
 
 Protection of passengers alighting. 
 
 The conductor of a street car who, after stopping the car to permit a 
 passenger to alight, gives the signal to start again before satisfying him- 
 self that the passenger has safely departed is guilty of negligence and his 
 employers are liable for any injury that results therefrom. 
 
 Dupuis V. Montreal Street. Ry. Co., 16 Que. K.B. 286. 
 
 Collision — Injury to passenger reading paper. 
 
 A street railway company is liable for the consequences of a collision 
 caused by its curves being too sharp for the length of the cars. Passen- 
 gers using the cars are not obliged to be on the lookout for accidents and 
 the fact that a person injured was absorbed in reading a newspaper when 
 the accident occurred was not evidence of contributory negligence. 
 
 Jago V. Montreal Street Ry. Co., 35 Que. S.C. 109 (Ct. Rev.). 
 
 Dangerous condition of car steps during storm — Duty of passenoeb 
 TO exercise more than ordinary caution. 
 The steps of an electric car owned and operated by the defendant com- 
 pany, were in a slippery condition in consequence of exposure, while in 
 
STREET KAILWAYS. 713 
 
 ^K. te SMMT ioOorwed br no, skrt ami <aU. Hk endoKC ^hsvcd tltu. 
 tkecarkudkai ttora^VNr dcwMd ia Ote ■wraiag, beiaic iRng wM ««t, 
 aad tkat it wmU sot Inmv bem pnctiaUe to operatr it is sack m g ather 
 acs Ikai wUck pntaiird at the tiiw awl to srad it tadk tamstaatdy to tJk« 
 lua to bnv the smht aiid ite remand.— BtU, tint y amm i fctiA^ hMiii^^ 
 aad i n»»i«g, the car at :^Kh a twe «nn« Inaad to omiMt Maw tkaa 
 «it4iMnr eulMB. aad Oat it wnald aot W rmsamaJU^ to bald thr cas- 
 par aenaBtaUp far ia jarics svitaiaed bj piaiatiC a f rinfag»T oa oar «i 
 tbe^ cuts. abo. m grttaig off tbe car, dipped aad ML 
 
 McC««MMk T. Splaiy 4 Obce Bay Ej. C«u, 37 XJS.R. iM. 
 
 Smcr CUB ooxarcroa — ^TkAx;»vx or riUBSKscBB at aiLsczBoc^ ruuriL 
 
 Ova^S ^ '"S '■Bura^E'^S ^'^ whiJab' fiae «C dModaat iMaipnay's 
 cuiL An- avtv aot raaamg «■ tiaK. Tbat abidi Ibr piaiatiff aa£ ridiag 
 oa a Iridge. Tbov aas aaatber <ar iwidiililj abcad abicb, 
 caanHi, aadd take plaiatia' to brr deiKiailaw before tbot ia abicb 
 aas. Tbr coadartor asbcd or told bcr sad aaotbcr pa«cagn- to 
 to tbot car, aad ia doii^ «l ^f aas iojatcd bf falUag; oa tbr 
 ia lAe dufcac!»:-^cid. tbat, la tbe abeoMe off evidacr to ske 
 it aiwt be amat d tbat tbe eoadactor bad lalbaiitj to a<e ht« 
 ia fbe liiiaMilliao i to faraard tbe paano^HS to tbeir Aeitiaa- 
 Xbe ^jaotioa off tbe scope off tbe luadtlm's aatborithr barat;^ htrm 
 taice bnai^rft to tbe aotice of tbe Jad^ daria^ tte triaL yet be did aot 
 JSntt tbe jaiy oa tbat paiat, aad Oe caat ban^ beea aOoaed to «• to 
 tbea aitbaat dinctiaa. aad ao objectioa takca to tbe cbai^ «a tbat »t- 
 tfonrt. Hdd.fbattbisbra^e^ tbecaseaitbia SMtt T. Faaie (UMi. 11 
 BXJB- 9L aad tbcnfoR tbe flbek of abat aas dbae aac tbat tbe issoM 
 latwiilid ««te aneptcd «a botb r^der as tbe oahr xasacs oa abicb tbe 
 jmwj aas asked to pa^ 
 
 ^bacJl T. Brftub CiilaMkii Elec Kr. Cou. 15 RCJS. 37S. 14 WJLR. SBCL 
 
 Lsjcar to PASSESCEa — CoLuaox or cabs — HonoaiLEX ari-Tbo^iij^ cdx- 
 laotxca — CoaaccTOB acnac as voroajiAX. 
 Tbe pliiiatif. a pbj ibiaa o^aead aad paid far a $pcvia] deetrie car off 
 tbe driradaats to caatnej Iuub ftaaa a plane at a diftoaee tiu m bis baae 
 after tbe le^abu* cars bad cxaaed ■"■■"£ at aig^t. Wbile be aas tnar- 
 di^ ia tbe car so Jaraimbed. a an t ba eketiie car of tbe defeadaats laa 
 iato it. aad tbe plaiatiff aas iajared. It appeared tbat Ok itnrwia of 
 tbe car abicb aas at bait bad abaa d aa e d tbe caatroOcT to tbe c—dactor, 
 aad aas bi— 4f actiap as coadaetor. abicb aas ae * *— * ^^^ Affeadiatjp* 
 tabs aad aaaalbMiad kgr iJb^L Tbe plaiatiffk anaafoacat far tte spe- 
 cial car aas aade aitb tlK i iidai'iio of tbe car by abicb be acat ort 
 to tbe dktaat place, aad be paid tbe «aacy for tbe car to tUs cnadartor. 
 tbe car aaitiag for bia abca be aas itadj to l e tai a. Ia aa 
 for Atmngrt for tbe plaiatiTs iajarics. tbe defeadaats raned tbe 
 tbat tbe taadaytoi abo cbaitered tbe car to tbe plaiatiC aa« 
 to basa bad aaOarity to do sar— Bdd. tbat. by proiiiQr hi* 
 caatiact aitb tbe loadactar aad ttat be paid tor tbe car aad aas itramvd 
 ia it aad carried, tbe plaiatiff Mde oat a piiaa facie case of aatbority: 
 aad, ia tbe a^Wvacv of aay eridcaee to tbe coatxaxj, it anut be iin aai I 
 tbat tbe car vaj> daly let; aad, ia aay eieat. tbe plaiatiff ams, at tbe 
 tiae of tbe ^lli^wa. lamtoDy travelia|r oa oae of tbe liifiaiiiats* cars 
 opnatcd hr tb»a «■ tbor liae of railaay, aad bad paid far tbe privilege 
 off so tnvi^ii^ At tbe trial, tbe jaiy fond tbat tbe idwia ia daui^- 
 iag places aitb tbe laadactai acted ia bnacb off bis daty; aad to tbe 
 fae st i aa f4,^, ^TTas tbere acjligeace^ aad, if sol abat did it eaasist iaf* 
 
714 STEEET RAILWAYS. 
 
 answered: "Tlie failure of the servants of the company in performing their 
 duties": — Held, that the niotorman's negligence in leaving the controller 
 was the effective cause of the injury, and that the defendants were liable 
 for the result of that neglijiencc. [Engelhart v. Farrant, [1897] 1 Q.B. 
 240, followed.] Held, also, that the findings of the jury sufficiently estab- 
 lished the negligence and the hreacli of duty on the part of the motorman, 
 and also that his action, in conjunction with that of the conductor, caused 
 the accident. The very fact of the collision was evidence of negligence 
 causing the accident. Per Perdue, J.A. : — From another standpoint, the 
 defendants' contract was, that their servants should use care and diligence 
 so that no accident should happen; and, in order to make the defendant 
 liable, it was enough to shew that the negligence which caused the plain- 
 tiff's injury was that of the defendants' servants. Per Richards, J.A. : — 
 The exclusion from the evidence at the trial of the defendants' printed 
 rules for the guidance of motormen, whether proper or not, did the de- 
 fendants no wrong; the only object of putting in the rules would be to 
 prove that the motorman was forbidden to delegate or abandon to others 
 the performance of his duties: and that fact was otherwise well proved. 
 Hill v. Winnipeg Elec. Ry. Co., 21 Man. L.R. 442. 
 
 Duty to assist passengers — Scope of conductor's authority. 
 
 Plaintiflf came to a platform station of the defendants and signalled an 
 approaching car to stop. The car slowed down but did not stop, and as it 
 was passing the conductor seized plaintiff's hand and while attempting to 
 help her on board signalled to car to go on again which it did and she 
 was injured. Tlie jury found that the plaintiflf was injured by the con- 
 ductor seizing her hand and trying to pull her on the car, and that he 
 acted negligently: — Held, that it was the duty of the conductor to assist 
 people in getting on and oflf the car and that it might be within the line 
 of his duty to assist those apparently about to get on a car while it was 
 slowing xip; that the scope of a conductor's authority is one of evidence; 
 that there was evidence to go to the jury and that the eflFect of it was 
 for them to consider and that it should have been left to them to pass upon 
 the circumstances of the case as to the scope of the conductor's authority. 
 Judgment of Street, J., at the trial, reversed. 
 
 Dawdy v. Hamilton, Grimsby & Beamsville Elec. Ry. Co., 2 Can. Ry. 
 Cas. 196, ,5 O.L.R. 92. 
 
 Negligence — Fright — Nervous shock. 
 
 Fright or a nervous shock from which a physical injury results, may 
 be a ground for an action en responsabilite against the person through 
 whose fault it happened. [V'ictorian Railway Commissioners v. Coultas, 
 13 App. Cas. 222, discussed.] 
 
 Montreal Street Ry. Co. v. Walker, 4 Can. Ry. Cas. 227, 13 Que, K.B. 
 324. 
 
 iNJLTtY TO passenger ALIGHTING FROM CAR — CROSSING BEHIND CAR DUTY 
 
 TO SOUND GONO REGULATIONS OF CROSSING. 
 
 The plaintiflf was a passenger on a car of the defendants, and stepped 
 from it while it was in motion, as it reached a street crossing; the motor- 
 man had been signalled to stop, but failed to do so. The plaintiflf alighted 
 safely, but found himself in front of a horse and cab swiftly driven 
 towards him. In order to avoid a collision with the horse, and also in 
 order to cross to the west side of the street, the plaintiflf turned behind 
 the car he had just left and passed on towards the other track; as he 
 
STREET RAILWAYS. 715 
 
 raiHied it. W became aware of a car coning towards him at a rapid rate, 
 aad to avoid being t«b don he flm^ himself on the fender, thus taring 
 his life, bat he was aerionslT iajnred. la an action to recover damage 
 for his iBJ«rics he was a witness at the trial, and said that it was im- 
 possible to get oat ci the war of the car: he did not hear the goo* «oand. 
 althoogh if it had been rang he woald have beard it. Bv one of the 
 regiolatioiis forming part of the agree m e n t between the citv corporation 
 aad the defendants, validated by 57 Viet, c 76 (0.|. nnder which the 
 defendants operated their cars on the city's highways, it was provided 
 that eaeh car vas to be ^applied with a gong, to be soanded by the driver 
 when the ear approached to within 50 feet of each crossing. This was 
 not brooght to the attention of the Jodge at the trial. The plaintiff, 
 however, was aware that it was the usual practice to sound the gong at 
 cmsiogs, and be expected it to be done when a ear was approaching a 
 oossiBg: — Held, that, even if the regulatioa had not the force of a statu- 
 tory requi nmui t the proof of failure to comply with a precaution which 
 the defoidants had reeognixed as important for the safety of persons 
 using the crossing on streets occupied by the railway, was evidence for 
 the jury of negUga»ee in the conduct of the car: and the question whether 
 the goi^ was soanded was for the jury. SemUe, per Moss, C.J.O.. that 
 the ter^ '^crossing" in the agreement, is intended to indicate any place oa 
 or ahM^ the streets occupied by the railway where tha« is a walk laid 
 lor the purpose of enabling foot pas$«iigers to cross fran one side of the 
 ^iiuei to anoth«-. and where the cars would stop to take up or let down 
 passengers: and is not confined to the crossing of aa intersecting street. 
 The Court declined to interfere with the discretion of the Court below in 
 withholding costs from the plaintifl*. in setting a>ide a nonsuit and grant- 
 ing a new trial. Order of a Divisional Court, affirmed. 
 
 Wallingfoid t. Ottawa Elec. By. Co., 6 Cao. By. Cas. 454, 14 O.UR. 
 SB. 
 
 AccruEXT — ^Leaxixc ove« to ExrerroiATE — ^Stbcck bt rosT. 
 
 The plaintiff, as a passenger, was, about midnight, standing on the 
 back platform of one ot the defendants' cars, soioking a cigar and lean- 
 ing upon the railway gate or grating at the side, over which he leaned, 
 from time to time, a distance from five to seven inches, and expectorated. 
 Apparently while doing so. he was struck by somethiog and received the 
 injuries complained of. The plaintiff allied, in his statement of claim, 
 tluit be was struck by a post belonging to the defendants and used by 
 them for their trolley wire, but gave no evidence as to this. As a matter 
 of fact, thne were trolley poles along the line of the defendant railway 
 on the side where the plaintiff was struck, but there was no evidence 
 given by the plaintiff of their position, and the evidence for the defendants 
 placed them about two fe^ from the ovohang of the car: — ^Held (re- 
 versing the judgment of the Divisional Court, 10 O.WJL 331, tiiat the 
 plaintiff's aetioa should be disauased. as then was no evidence of what 
 caosed the injtuy; Meredith, J.A., dissenting. Per BiddelL. J. (in the 
 Divisional Court • : — While it is impossible to lay down any specific role 
 for the guidance of railways or street railways generally, a railway f^ter- 
 atii^ in a country in which tobaceo chewing or gum chewing is not u- 
 common must expect its patrons, or some of them, to be tobacco and gam 
 chewcrs. aad if it be the custom of such passengers to put their heads 
 past the lines of the car to expectorate, the railway should be held to 
 know of such custom, aad should either remove all obetmctions from the 
 side of the track, a suffieimt distance to avoid the foofaability of an acci- 
 dent, or prevat the passengcav from projecting their heads over the side. 
 
716 STREET RAILWAYS. 
 
 or at least give proper warning as to the danger. And in every case the 
 railway must take all reasonable precautions against an accident happen- 
 ing to one wlio is acting as in the ordinary course of affairs "in the vicin- 
 age" it may be expected that some will act. The Massachusetts rule that 
 it is necessarily negligence for one riding in a railway car to project any 
 portion of his person out of the window not followed by the Divisional 
 Court. 
 
 Simpson v. Toronto & York Radial Ry. Co., 7 Can. Ry. Cas. 218, 16 
 O.L.R. 31. 
 
 Negligexce — Injury to passenger in attempting to enter by front 
 
 DOOR. 
 
 In compliance with an order made by the Ontario Railway and Mu- 
 nicipal Board, the front platform of the defendants' cars was enclosed by 
 a vestibule having a swing door, fastened by a spring lock on the inside, 
 capable of being opened by the motorman to permit the exit of passengers. 
 The plaintiff, not being aware of this order, attempted to get on a car so 
 equipped at the front, and while so doing, the car started and she was 
 thrown to the groinid and injured. She asserted that the motorman saw 
 her standing on the step, and notwitlistanding started the car. There 
 was no notice on the door notifying the public of the nonadmission by 
 that door. On a charge to the jury that they might find on one or all of 
 the following grounds of negligence, namely (1) the omission of a non- 
 admittance notice (2) starting the car while the plaintiff was on the 
 step, and (3) in not opening the door and letting the plaintiff in, they 
 found that the defendants' negligence consisted in the omission to have a 
 nonadmittance notice on the door, and did not make any finding as to the 
 other alleged grounds of negligence. The Divisional Court, on appeal to 
 it, while holding that the ground of negligence found by the jury was not 
 tenable, in that the company was merely obeying the Board's order, which 
 did not require any such notice, directed a new trial on the other alleged 
 grounds of negligence. The Court of Appeal, while aflirniing the judgment 
 of the Divisional Court as to the ground on which the jury found not 
 constituting negligence, reversed the judgment granting a new trial, hold- 
 ing that the finding of the jury was tantamount to a finding negativing 
 negligence on the other alleged ground. 
 
 McGraw v. Toronto Ry. Co., 9 Can. Ry. Cas. !»7, 18 O.L.R. 154. 
 
 Injury to passenger — Premature starting of car. 
 
 The plaintiff, immediately after entering a car of the defendants, and 
 before she had readied a seat, was, from some cause, thrown down back- 
 wards and injured. In an action against the defendants for damages, the 
 negligence charged in the .statement of claim as the cause of the fall was 
 "the sudden jerking forward of the car,"' and this was supported by the 
 evidence of the plaintiff herself and of two other eye witnesses of the oc- 
 I'urrence. Evidence was called for the defence to shew that the car was 
 new and in good condition, that only the lowest notch was used in putting 
 on the power, and that there was no unusual jerk. The trial Judge in his 
 charge practically withdrew from the jury the consideration of the alleged 
 jerk as the cause of the fall, but told the jury to consider whether the 
 conductor was negligent in starting the car before the plaintiff (an aged 
 jierson) was seated. The jury found tliat the defendants' servants were 
 negligent in starting the car before the plaintiff was in a position to save 
 herself from falling; and the trial Judge directed judgment to be entered 
 for the plaintiff. There was some mention in the evidence of the pre- 
 mature starting of the car, but it was not put forward as an independent 
 
STREET RAILWAYS. 717 
 
 eanae of eoBplaiat mtil the Judge catj^wsized it in kis eku^. Xeitlw'r 
 partr made anj objcetioB to tlie ckaige. Tke defrtJBiits appealed from 
 the jndgmot, bat tbe plaintiff did mat, bf cxosB-a^Mal or otlMrwise, raia*^ 
 aa «ri>jectiiHi to the |«actical withdrawal fira^ the jurr of the cUef cana«^ 
 of cnmplalBt: — Hdd, that iht questton of the jcxk should aot hare ht*n 
 vithdravm froai the jonr; there was bat oae iaeidcat, aoade np oi tb:<- 
 eondoet of the coodiKtor in ^ring the dismal and that of tbe motormsn 
 in obeTiag it; and it should hare b«ea left a» one question to the jury. 
 The finding aetuallv made could not, upon tbe erideiMe. be supported. 
 Held, also, that the rirenmstanre that an objettiaa was not taken at the 
 |ffoper time «a:i^ not necesi^iarilv fataL [Brenner t. Ttwonto Rj. Co 
 (1907^ 15 O.LJL ia.». laS. 7 Can. Ry. Cas- 210, and WooWr x. Can. 
 Xorthem Rt. Co. (laOS*. 11 O.W.R. 1030. 1036. fc^owed.] Held. abo. 
 that it was to be inferred that the jurr (inflooMed br tbe Judge's re- 
 marks) did not consider the eridowe upon the question of tbe jerk, and 
 that their ^nfd*^ did not implr that that question va^ determined in 
 favour of the defendants Held. al>o. that tbe real qur^ion in l«:^ne not 
 haiii^ been past^ed upon br the jurr. there vas power to dirert a new 
 trial; Meredith. JJL. dissenting. [Jones t. I^ieneer (1:^7>. 77 L..T.IL SX, 
 ioiloacd.] Per Meredith. J.JL:— That the defcadant^' appeal should be 
 ■Hovcd and the aetion di:ani^<scd; the ra>« was the rare one of an accideat 
 far which no one could be justlr blamed: and the Court had. in the eir- 
 iiiMiilimi I, no power to direet a new trial. 
 
 Barman t. Ottawa Elec. Rt. Co., 10 Can. Ibr. Ck& 353, H OXJL 44& 
 
 bjTKT TO PXSSEX^S AUGHTING FSOV CAS — CXArTHOUZED SKXAL. TO 
 STAKT — DETECnTE STSTOI. 
 
 The plaintiff was a pase«iger upon a crowded open car of the defmid- 
 ants, who <^»erated an electric railwaj upon the streets of a eitj. The 
 plaintiff wis^hed to al^t at N. street, and the car stopped there, upon 
 tte signal of the conductor, who was upon the footboard, engaged in eoi- 
 fecting fare& While tbe plaintiff was in the act of ali^ting. the car wa« 
 started, upon a signal given by an unauthorized person who was standing 
 «■ the rear platform, and the plaintiff was thrown down and injured. 
 The car had previouslj. on the easae trip, been started after a stop. W the 
 unauthorized person, and the coaduetor had not interfered or repri- 
 him. Tbe plaintiff alleged nc^igence in staitinig the car too 
 and in ore r c ro wding the ear so that the conductor was not able to 
 p e ifoim his duties, and daimed damages for her injuries^ The facts were 
 not in dispute, and the trial Ju^e withdrew the ease fnnB the jurr, and 
 gave jndg^ncst for the defendants: — Held, that it did not follow that, 
 heeaoBi! there were no facts in dispate. tbe matter to be decided was a 
 pure question of law; it might be for the jur>~ to sar what ther found to 
 he the true inference fnm these facts, eg,, whether th«v was negligmice 
 *«»'^»g the accident: there was at least one question which should hare 
 been submitted to the jury, viw-, whether there was any n^ligence of tbe 
 amdnetw in failing to hear or to eoantermand the unauthorized signal 
 for starting the car, in time to hare prev^mted injury to the plaintiff, 
 particularly in tmw of what had preriously taken place. And semble, 
 that there was at least one other question whi^ ni^t be submitted to 
 the jury, viz. whether the defendants failed in their duty in not takii^ 
 due precautions to prerrnt tbe starting of the car throogfa the unauthor- 
 ized act of a pasacager in ringing the hell, which might iuTolre the ques- 
 tion (not raised by the pleadings k wbetbcr tbe system adopted hv the 
 defendants was defeetiTCL [Nichols t. Lynn 4 Boston Ry. Co. ( 1S97 ) , ICS 
 3iaas. 5^ appcored and followed.] Held, therefore, that there should 
 
718 STKEET RAILWAYS. 
 
 be a new trial, with leave to the plaintiff to amend as she might be ad- 
 vised; Riddel], J., dissenting. Per Riddell, J., that the plaintiff had failed 
 to establish a case of negligence as charged; and, if she wished to allege 
 a defective system, could only be allowed to do so in a fresh action, or in 
 this action upon amendment, payment of costs, and being confined to the 
 new cause of action. Judgment of the County Court of the County of 
 York, reversed. 
 
 Haigh V. Toronto Ry. Co., 12 Can. Ry. Cas. Ill, 21 O.L.R. 601. 
 
 Injury to pas.sexgeb alighting rsou car. 
 
 A verdict for the jilaintiff for injuries sustained by the starting of a 
 car with a jerk as he was about to alight therefrom will not be disturbed 
 where there was sufficient evidence, although conflicting, to go to the 
 jury that the plaintiff had not time to alight in safety before the car 
 started. 
 
 Jacob V. Toronto Ry. Co., 3 D.L.R. 818, 3 O.W.N. 1255. 
 
 Riding on steps of cab. 
 
 Although it was l)eyond the scope of the authority of a street car con- 
 ductor to give the plaintiff, an intending passenger, permission to stand 
 on tlie car step the jury may properly find that the intending passenger 
 liad the leave and license of the defendants, where it was shewn that the 
 practice of standing on the car steps was so common at the particular 
 time and place, and was followed under such circumstances, that the de- 
 fendants must have known, or ought to have known of it. 
 
 Williams v. British Columbia Elec. Ry. Co. (No. 2), 7 D.L.R. 459. 
 
 [Afiirmed in 12 D.L.R. 770.] 
 
 Injury to passenger — Riding on step of car. 
 
 An intending passenger may recover for injuries sustained through the 
 negligent operation of a crowded car, notwithstanding the fact that he 
 was riding on tlie step of the car, where such was a practice commonly 
 permitted by the company. [Williams v. British Columbia Elec. Ry. Co., 
 7 D.L.R. 459, affirmed.] 
 
 Williams v. British Columbia Eke. Ry. Co. (B.C.), 12 D.L.R. 770. 
 
 Injury to passenger — Explosion — Condict of motorman. 
 
 The plaintiff was a passenger upon an electric street car of the defend- 
 ants, when an electric explosion occurred in the car, and the plaintiff was 
 injured by being forced out of the car and thrown upon the ground by his 
 panic stricken fellow passengers. In an action to recover damages for his 
 injury, he alleged as negligence on the part of the defendants, among 
 other things, tliat they had not properly inspected the controller. At the 
 trial, wliich took place thirteen months after the explosion, the defend- 
 ants called as a witness the foreman at one of their barns to shew that 
 there liad been a proper inspection. The witness could not, from memory 
 alone, testify to an inspection shortly before the accident. Counsel for 
 the defendants proposed to put into the witness's hands a report, signed 
 by him in the usual course of his work, shewing that the car had been 
 examined three days before the explosion. Upon objection by the plaintiff, 
 the trial Judge ruled that the witness could not refresh his recollection 
 by looking at the report, unless he had a recollection to refresh, which 
 he did not profess to have; and, therefore, excluded the testimony. The 
 jury found negligence on the part of the defendants in that: (1) Tlie 
 motorman was incompetent to handle a car in case of emergency; (2) 
 had he used the air brake, the car could have been brought to a stop before 
 
STREET RAILWAYS. 719 
 
 Ite iiiMft ha^cBed; aad (3i^ tkmt tke ar v«s mat, properlv msftetedz 
 mmi. j uJgf t «as q it« re J for tlie pbintiff: — Hdd, npoa appeal, tbat the 
 testoMBj of the foraaaa vas -nipn^crlT rejected. Hdd, also, per yitsre- 
 diOi, J.1.:— That the indue as to tke moamfeUmet of the aMttHranui 
 afforded, ia itself, bo eanae «rf actica; aad that l&ae «as ao reasoaaUe 
 erideaee of a^igeace am the part of the ■ottorBaa ia foifii^ to ap|d]r 
 the brakes heiar« secki^ to icaamre tike pa aiiaagti a aad to have the dkr- 
 trie q meat cat off hy tke reaoval of lAe pole fira^ the aire. A aev 
 trial «as directed. 
 
 Fleaumg t. Tormto %. Co, 13 Gu. Rf. Gas. 278, 2» OXJL 317. 
 
 ExFUosiox — Dki'Sjciivk casrmoLLXM. 
 
 Whov a eoainder of a car is aheva to have beta "orakanled" br fke 
 drfeadaat carrier ahostfy bdhn; aa ezplosiaa o n emie d resoltii^ ia iajarj" 
 to a pa nwagu, tibe bvrdea a npoa tike delAdaat to shew that it had been 
 
 Heni^ T. Twoato Rr. Co., 8 DXJL 307, li Caa. Rjr. Gas. 17, 27 OXR. 
 332. 
 
 [A giiaul ia 12 DX.R. 249, 47 Caa. S.CJL 612, 15 Cu. Rp. Cks. 386.] 
 
 DcnmTK coxiwKiEaL 
 
 Whether tha« had beea fnvftr iiepeetiaB aad rribuiMing of a def ectire 
 eoatndkr oi a ear nnder the lai— geieat of the defeadaat eurier so as to 
 acgatnne aaat of due care oa its part ia aa actioa fat Rsoltiag iajories 
 to a passcBger, are p rope r qpiestiaKs for a jury. 
 
 Fkmiag t. Tomato Ry. Col, 8 DXJEL 307, 27 OXlR. 332, 13 Caa. Rj. 
 Cki. 17. 
 
 [Jkffinaed ia Tomato Rj. Col t. Flnii^ 12 DJLJL 249, 47 C^a. &C JL 
 612, 13 Caa. Rx. Ck& 386.] 
 
 Extijosiox — Res iraa. lOQnTcit. 
 
 Whoe aa explosiaai oeenrs ia the eoatroDer of a ear. vbi^ eoatroller 
 vas ^tir^ aadrr the' ■naagisneat of the defi^daat carrier, aad tke re- 
 aaHiBg accidtat is sucb as ia the ovfiaary coarse of thii^s do^ aot 
 happe* if those vho have the ataaageacat aae proper care, it affoids 
 of ttadf safficMBt evideaee that the acrideat arose from vast of care, ia 
 the absaee of cs^^amtiim by Ok earlier. [Seott t. Loadoa Dock Co, 3 
 H. Jt a 396, foOowed.] 
 
 Fkaii^ T. Toroato Ry. Col, 8 DUR. 507, 13 Cut. B^. Gas. 17, 27 O J.R. 
 332. 
 
 [J Jhtjd ia 12 T>XJR. 2«, 47 Caa. S.C.R. 612, IS Gaa. Bj. Gas. 3S6.] 
 
 EXFIOSKEfr OF COXISOLUS. 
 
 ika expkeioa ia tke eoBtroDer of aa deetrie street car vhidi wold mt 
 hai« oc ei ui e d ia the ordiaanr coarse of eveais had pn^er care beea need 
 ia iaspeetii^ it, is priaia iaat soffieicnt to shew aci^igeBee as regards a 
 resaltii^ iajaty to a pa iMwngM . A carrier is liable for aa iajmy received 
 by a street car paaBO^er as Ae resalt of aa e<^hwioa ia tiw eoatndler 
 of the ear doe to a ddieet thai ihoald hate beea d isemei e d by piop e i 
 iaspectioB. Ia aa actioB for iajarjr sairtaifd by a street car paiiiwaji^ii 
 as the result of aa esphiaaaa ia the eoatroller <rf Ae ear dae to 4' f^ '* ^^^ ^ 
 that mi^t ha^e beea diaeovered by iHtiper iaap ee ti oa, it is for the jaiy 
 to detenaiae abether the carrier exercised doe care ia that respect. 
 
720 STREET RAILWAYS. 
 
 [Fleming v. Toronto Ry. Co., 15 Can. Ey. Cas. 17, 8 D.L.R. 507, 27 O.L.R. 
 .'532, affirmed.] 
 
 Toronto Ry. Co. v. Fleming (No. 2), 47 Can. S.C.R. 012, 12 D.L.R. 
 241), 15 Can. Ry. Cas. 380. 
 
 Riding ox platfx)rm — Platform part of car. 
 
 Plaintiflf's husband was a passenger on one of the defendant company's 
 cars, riding on the front platform, where it was customary- for passengers 
 to ride. The doors were open and there was no projecting bar across the 
 opening, or other measures of safety taken. On the car approaching a 
 switch, at a speed of three or four miles an hour, he was jolted off the 
 car and, falling under the wheels, was killed. A jury gave a verdict of 
 $3,500, but the trial Judge entered judgment for the defendant company 
 on the ground that there was no evidence of negligence on their part: — 
 Held, on appeal, that there was evidence of negligence and that the verdict 
 should stand. 
 
 Dynes v. British Columbia Elec. Ry. Co., 15 B.C.R. 429. 
 
 [See Dynes v. B.C. F^lec. Co., 17 B.C.R. 498, 14 Can. Ry. Cas. 309, 7 
 D.L.R. 707.] 
 
 Injury to passenger amchting. 
 
 In an action against a street railway company for personal injuries 
 alleged to have been caused by starting the car while a passenger was 
 getting off the rear platform, tlie fact that the conductor, who, by a rule 
 of the company, was required to be on the rear platform when the car was 
 .stopped, was not called as a witness by the defendant company militates 
 against the defence; and the jury may draw inferences against the defend- 
 ants from the keeping back of evidence which is alone in their possession. 
 [F'uclid Avenue Trust Co. v. Tlohs, 24 O.L.R. 447, applied.] 
 
 Schwartz v. Winnipeg Elec. Ry. Co., 9 D.L.R. 708, 23 Man. L.R. 00. 
 
 [Followed in Winnipeg Elec. Ry. Co. v. Schwartz, 17 Can. Ry. Cas. 1, 
 10 D.L.R. 081.] 
 
 Injury to passenger alighting — Sudden starting of car. 
 
 A passenger may recover damages for being thrown from a street car 
 by its sudden starting as he was about to alight in compliance witli the 
 conductor's request that all passengers should disembark as the car was 
 going no further. 
 
 Montreal Street Ry. Co. v. Marins, 12 D.L.R. 020. 
 
 Car door closing on passenger's hand — Vagueness of verdict. 
 
 A verdict finding the defendant street railway company negligent in the 
 words "carelessness in handling the car" is too vague upon whicli to give 
 a judgment in an action by a passenger for injuries sustained by the door 
 of the car closing upon the passenger's hand; a more specific finding is 
 necessary to establish liability on the basis of the car having been run 
 at too high a speed and so jolted as to cause the door to close suddenly. 
 
 McGovern v. Montreal Street Ry. Co., 12 D.L.R. 028, 19 Rev. Leg. 356. 
 
 Injury to passenger — Contribi'tory negligence — Usual incidents of 
 
 operating — ^Verdict contrary to directions of trial Jitxje set 
 
 aside. 
 
 PlaintilT, a passenger, got on the lower step of one of the defendant 
 
 company's tram cars, after having been warned by the conductor not to 
 
 get off until the car stopped, and was thrown off, as she claimed, bv a 
 
 jolt of the car. Assuming such jolt to have occurred, there was nothing 
 
STREET RAILWAYa 721 
 
 to shov tkat H was mat ame of the ordinary nridcaia of operatic the 
 car. aad bo me^tigemtr oa the part of the eompaar was J i a rfc—J . Brid, 
 that tihe plamtiff «as aot catitkd to retomr daaa^vs far nijorKs sa»- 
 taiaed aad that the wrdirt nadcYed bv the jorr ia |daiatirs favoor. 
 nwtTarT to iastrartioas of the trial Jod^. aiast be set aside. Pier Clus- 
 hi^BL J. — ^The Here ha^peaia^ of the jolt mUrh threv plaiatiff oC aUle 
 the ear aas ia Botioa. did aoC (rf itsttt bespeak ac^I^eaee of the coaa- 
 paaj. It aras aeecssarx. therrfore. for ^aiatiff to prow sark m t LgJUgtmi t . 
 bjf afirautire eridrace. 
 
 Whitfard T. Nova Scotia Traaivarsy etc., Goi, 32 XJSLS. lOS. 
 
 STormc roasTB pob ■dabdccc cab — Sicxjlijs. 
 
 H a p e mo a dttL ro a* to gH, ca a car sigaals a ^Hit<maa to ;top at a 
 place other thaa at repdar ■toppia^ pontr this latter is aot obliged to 
 paj atteatina to hia. Bat if thie i»tm»a a retaras the sigaal, aad slack- 
 caa tke speed of the ear. he thereby a^soBcs the obl^patiaa of seda^ that 
 the paa a tagu is aafdr caifaarked; if he starts the ear faefote Hm |iBi«iai;ii 
 is safely ahoaid aad the paaeeagcr sastaia iajnij, the traaarays ewpaay 
 is liahle for all di»«g.n sofferedL 
 
 McGiD T. Moatnal Traai«aj? Cou 49 Que. S.C. 33iL 
 [Appeal ^[aashed ia 30 D±JR. 4^. 33 Caa. S.CJL 3M.] 
 
 PaOtATTaB STTAMTTSC OF C&B DCTT AS TO ALICBTTXG CoXTamrTOBT JCEO- 
 
 USEXOE PeBSOX rXBlB MKABnjTT. 
 
 Startia^ a traia car bcfote aarertaiaiag that a panma^ti has safely 
 ali^ted, erea oa the si^^aal ~all ri^t~ of a persoa oa the rear TeatJhale. 
 kc a^Iifeace vhich vill reader the traa cootpaay liable for iajaries sas- 
 taiaed by the paasca^er falli^ off the car. [See Anakhav t. B.C. ElecL 
 Ry. Col. 14 DJ^R. 393. IS B.C.R. 152: Moatzeal Street By. Co. t. Ckevaa- 
 dier (Qae.K ^ DX.R. 349: Black t. Cai^iary (A]ta.t, 24'dX.R. S5: Daa- 
 ham T. Cape Bretoa Eiee. Co. (X^.ii. 21 DX.R. 38; Bfaikely t. Moatrcal 
 Traavays Co. (Qoe.), 30 DJ^^ 643: Wiaaipcs Elec. Ry. Col t. Schwartz 
 lllaBLll, 16 DJLIL 681; Sdkaffer t. IW Ki^. 14 Caa. Ex. 403.] A pa:»- 
 aaapr's failore to see, while ali^tia^, that the car was ia aaitioa, is aot 
 aeeeaaarily coatribntfivy ae^^^eace. if the pa jtseage r is aa old persoa with 
 pereeptiTe faculties le^ acaie thaa those of yooth. 
 
 Fraser t. Pictoa Cooatr Elee. Col, 20 Caa.'BT. Gas. 400. 50 XjSlS. 30, 
 a DJLB. 25L 
 
 OfESftSC DOOa WHEX 50T AT KEBCTAK STMnXC PIACTT — IXTTTAHOX TO 
 
 ALiCHT — Steed or cab — Qtestios fob jtbt — Xesu^dcc — Xew 
 
 The door of a street car b«i^ opcaed by the ccadnctor whea the ear 
 «aa aot at a regular stoppiBg plac^T it is a quest ioa of fact to be 4fT*ilwl 
 by the jaty ia aa actioa for daawgea for ia jaries reeeired by a fatsstmger 
 ia alii^ti^ froB the car. whether the car was aaonriafr ao fast that the 
 ■otioa voold be perceptibie to aay reaaoaaUe pasae^gn-, aad so amative 
 aa iaritatioa to alight which au^t be iatplied by the opcaii^ of the 
 door. This qiie»tioa caa aot be ssBBUuily dealt with by the trial Jod^. 
 [Gaaey t. Toronto Ry. Col (1917)1, 38 DXJL 837; G.fjL Gol t. Marae 
 C1917I, 39 DX.R. C91, antlicd.] 
 
 Jarris r. Loadoa Street fty. Col, 48 DXJL CI. 
 
 Tkaif PASSES^ — CoxTcnKST Moae of dgscest — Xboubbkk or iwam- 
 WAT CO- — Xbeugexcs or pas^j^excexs. 
 
 A traorway rompaay i$ botntd to procure for its paaKBigers a eoBTcaieat 
 GsB. Ry. I^ Di^— 4C 
 
722 STREET RAILWAYS. 
 
 mode of descent, and if it has no station should provide some easy means 
 of descending and indicate to passengers where thej' shovihl descend, and 
 the negligence of the passenger does not excuse the torts of the carrier. 
 Montreal Street Ry. Co. v. Chevandier, 24 D.L.R. 349. 
 
 1 X.UKY TO PASSENGER ALICHTIXO ^^TERMIXAL — RuSlf. 
 
 A street railway company is liable for an injury to a passenger while 
 alighting from a street car at a terminal stopping j)lace, occasioned by the 
 on rush of passengers on both sides of the car, even though the terminus 
 or stopping place was on land of a municipal corporation. 
 
 Williams v. Toronto & York Radial Ry. Co., 48 D.L.R. 34G. 
 
 Measure .of care required — Nbxsligence — Dischargixg passengers at 
 dangerot's spot. 
 
 If the act of a third party, ex. gr. the city municipality, in reconstruct- 
 ing a street paving, has rendered dangerous an alighting place chosen by 
 the street railway, the latter must, even at the risk of inconvenience to the 
 passenger, choose another point of alighting for the time being at least; 
 or it should take reasonable and prudent steps to cause the threatened 
 danger for the time being to disappear or should warn of the danger a 
 passenger who is about to alight. 
 
 Blakely v. Montreal Tramways Co., 20 D.L.R. 643. 
 
 Care and safety of passengers. 
 
 A tramway company is liable in damages for injury sustained by a 
 passenger in one of its cars; if it permits an obstruction there; if it does 
 not keep it in good condition ; if, on the happening of an accident, its 
 employees instead of calming the passengers order them to disembark, thus 
 increasing their fright and causing a panic. 
 
 Montreal Tramways Co. v. McNeil, 25 Que. K.B. 00. 
 
 Passenger alighting — Stopping place — Conductor's inattention. 
 
 Where the conductor was in the forward part of the car talking to the 
 motorman, instead of being in a position to warn passengers not to alight 
 when the car slowed up to "take the points," at the corner at which the 
 plaintiff had previously asked the conductor to let her off, the company 
 was held liable. 
 
 Armishaw v. British Columbia Elec. Ry. Co., 14 D.L.R. 393. 
 
 H. Ejection from Cars. 
 Exposure to cold causing rheumatism. 
 
 In an action for damages from being \vrongfully ejected from a street 
 car, illness resulting from exposure to cold in consequence of sucli eject- 
 ment, is not too remote a cause for damages ; and where the evidence was 
 that the person ejected was properly clothed for protection against the 
 severity of the weather, but was in a state of perspiration from an alter- 
 cation with the conductor when he left the car and so liable to take cold, 
 the jury were justified in finding that an attack of rheumatism and bron- 
 chitis which ensued was the natural and probable result of the ejectment, 
 and in awarding damages therefor. Gwynne, J., dissenting, 21 A.R. 
 (Ont.), 578, affirming 24 O.R. 683, affirmed. 
 
 Toronto Ry. Co. v. Grinsted, 24 Can. S.C.R. 570. 
 
 [Relied on in Delahanty v. Michigan Central Ry. Co., 7 O.L.R. 690.] 
 
 Refusal of conductor to change money. 
 
 By common law he who wants to pay to a conductor of a street car. 
 
STREET RAILWAYS. 723 
 
 tbe amount required for the passag? on sueh a car, must offer an exaet 
 amount and not a coin or a bill of a much greater value and which the 
 cmidnctor has to change. Nevertheless the usage and the jurisprudence 
 do eompromise such a strict rule of the common law, on account of the 
 inconvenience in which it mav result for the public and the public carriers. 
 The refusal of a conductor of a street railway to change a So bill, which 
 was offered by a passenger to permit the latter to pay his fare, and at the 
 ^ame time warning the passenger that he should either pay or leave the 
 car, does not constitute an injury which will give the passenger a right of 
 action for damages against the company, as responsible for the act of its 
 employees^ The company will be held to change a reasonable amount not 
 exceeding two dollars, Imt it will not be held to change $6 or any other 
 bill of a greater amount which the passenger may offer in paymmt. 
 Cadieux v. Montreal Street Ry. Co., 18 Rev. de Jur. 42. 
 
 Reftsai. to pat fake. 
 
 The Ontario Railway Act of 1906, 6 Edw. VII. c. 30, is, by s. 5, made 
 applicable to street railway companies incorporated by the Legislature, bat, 
 by the same section, if provisions of the general and special Acts are 
 inconsistent, those of the latter shall prevaiL By s. 116 of the general 
 Act, a passenger on a railway train or car who refuses to pay his fare 
 may be ejected by the conductor ; and by s. 17 of the Act incorporating the 
 Toronto Ry. Co„ a passenger in such case is liable to a fine only: — Held, 
 that these two provisions are not inconsistent, .and the conductor of a 
 street railway car may lawfully eject therefrom a passenger who refuses 
 to pay his fare. In this ease the company was held liable for damages, 
 the passenger having been ejected from a car with unnecessary violence. 
 
 Tonmto Ry. Co. v. Paget, 10 Can. Ry. Cas. 4«1, 42 Can. S.C.R. 488. 
 
 USAUTHOBIZED BOAKDING OF SPBCIAI, CAB EjBCTIOX LlAMLrTT. 
 
 The conductor of a "special car~ not receiving any passmgers is not 
 justified in throwing off a person while the car is in motion, after the 
 latter had safely boarded the car in disr^ard of that fact, and his doing 
 so will render the street railway etmpaaT liable for injuries resulting 
 therefrom. 
 
 Nolan V. Montreal Tramways Co.. 26 Di.R. .527. 
 
 I. Injuries to Animate, 
 Rail above boas level — Ixjikt to uobse. 
 
 The charter of a street railway company ret^uired the road between, and 
 for two feet outside of, the rails to Ite kept constantly in good repair and 
 level with the rails. A horse crossing the track stepped on a grooved 
 rail, and the caulk of his shoe caught in the groove, whereby he was in- 
 jured. In an action by the owner against the company it appeared that 
 the rail, at the place where the accident oi-curred, was above the level 
 <rf the roadway: — Held, that as the rail was above the road level, con- 
 trary to the requirements of the charter, it was a street obstruction un- 
 authorized by statute, and. therefore, a nuisance, and the companv was 
 liable for the injury to the horse caused thereby. Judgment of the Suinreme 
 Court of Nova Scotia, 24 N-S.R. 113. affirmed.' 
 
 Halifax Street Ry. Co. v. Joyce. 22 Can. S.C.R. 258. 
 
 Failitbe to stop cab — Fbigiiteneo hobse. 
 
 The motorman of an electric car is not necessarily guilty of n^ligen<^ 
 because he does not at once stop the car at the first notice that a horse 
 is being frightened either at the ear or at something else. AU that can 
 
724 STREET RAILWAYS. 
 
 be expected is that the motorman shall proceed carefully, and it is in each 
 case a question whether this has been done. Upon the facts in this case 
 the majority of the Court held that there was no evidence to justify a 
 finding of negligence and set aside a judgment in the plaintiff's favour. 
 Judgment of Falconbridge, C.J., reversed. 
 
 Robinson v. Toronto Ry. Co., 2 O.L.R. 18 (C.A.). 
 
 Collision — Injury to hokse. 
 
 In an action against a street railway company in which the plaintiff 
 claimed that he had been obliged to shoot his- horse injured by a car the 
 action was properly dismissed at the trial on two grounds, one, that it 
 was established by the witnesses called and the circumstances proved that 
 at the moment wlien the collision took place plaintiff was driving his 
 horse at a very fast gait in a place of danger, and the other, that he had 
 failed to prove any negligence on the part of the company or its em- 
 ployees. 
 
 Montreuil v. Quebec Ry., Light & Power Co., 30 Que. S.C. 6. 
 
 Animal killed on track — Tre.spasser. 
 
 The plaintiff sued for damages for the loss of a horse killed upon the 
 defendants' track by one of their cars. The horse was admittedly a tres- 
 passer: — Held (Britton J., dissenting), that the defendants were not lia- 
 ble for the only negligence found by the jury, viz., that the motorman 
 should have seen the horse on tlie track in time to enable him to stop the 
 car. [Judgment of the County Court of Essex, reversed.] [Grand Trunk 
 Ry. Co. V. Barnett, [1911] A.C. 361, followed.] 
 
 Bondy v. Sandwich, Windsor & Amherstl)urg Ry. Co., 13 Can. Ry. Cas. 
 57, 24 O.L.R. 409. 
 
 [Considered in Diplock v. Can. Northern Ry. Co., 20 Can. Ry. Cas. .3;"i6.] 
 
 In-tury to dog — Contributory negligence. 
 
 For the plaintiff suing an electric railway company for having run down 
 and killed a valuable dog owned by him, to have allowed the dog to follow 
 the rig in which he was driving along the street car track in a city at a 
 distance of 100 feet or more is such contributory negligence as will disen- 
 title him to recover where the jury has found that the plaintiff did not 
 have his dog in proper control while on the street. 
 
 Lucas V. Toronto, 22 D.L.R. 601. 
 
 SUBSIDY. 
 See Railway Subsidy. 
 
 SUBWAY. 
 
 See Highway Crossings; Farm Crossings. 
 
 SUNDAY TRAFFIC. 
 
 See Constitutional Law. 
 
 Freight tbaitic — Undue delay — The Lord's Day Act. 
 
 On an application to the Board for an order under par. (x) of g. 12 
 of the Lord's Day Act, R.S.C., 1906, c. 153. permitting it to do certain work 
 on the Lord's Day in order to prevent undue delay to traffic: — Held, upon 
 the evidence that in order to prevent undue delay to traffic the applicants 
 may be permitted on the Lord's Day: 1. To unload grain carriers and 
 
SlUO)AY TRAFFIC. 725 
 
 Vwd grmia iato cars at Ontario Lake porta hLL mt aim Seftemhet 15tk ia 
 OTcrf jear and June 1st ia tke foDoviap year. 2. Pdww said dataa do 
 sack work aa naj be Beeeasary to fnaiA at sack ports a eoBtiaaoas 
 raOvaj aerviee for earnriag graia froat delators aad vessels. 3. Perform 
 all weik aeceBearT for deliTenr to tli^ dcstiaatioBs of freig^ ears in 
 baant wkem tke Lord's Day befaa. Otlier raihrays earryiag grain froB 
 said porta are entitled to the like pririleges. 
 
 Be Lard's Day Act and Grand Tmnk Ry. Co., 8 Caa. Ky. Cs£. 23. 
 
 Thbocgh fsdght passengex TaAmc — Cjcdte dclat — Loao's Dat Act. 
 
 Applicatiao for an order under & 3, and s. 12 snfas. 1 (x| of the Lord's 
 Day Act, R.S.C., 1906, c. 153, permittu^ certain vork to be done on the 
 applicant's steamers and trains at Owen Sooad and Fort William, On- 
 tario, on the Lord's Day, in order to prevent ondne delay to throogh 
 frejl^ traffic upon its line of railway: — Held, upon the evidence that in 
 order to prevent nndne delay to traffic the applicant companv may be po-- 
 mitted to do on the LcMrd's Day: ~Any vork necessarily incidental to the 
 loadiag or unloading of freight and merchandise nprni or frmn the said 
 ■^■■ — "■ or the trans-shipping of freij^ aad m er e han d iae b etae e n tte 
 said steamers and cars of the applicant eanpany at Owen Sound and Fort 
 William, Ontario, aad the coalii^ of the said steamers at Owen Sound.'* 
 
 Be Lord's Day Act and Can. Pac. Ry. Col, 11 Can. Ry. CasL 193. 
 
 On&ATIOX StrXDAT LAWS BlXDIXC EFTBCT OP HBOVrXCIAI. ACT OX STKEET 
 
 BAILWAT COMPAST IXCOCPOBATED BY DoilIMOX PaKI.I %UEXT. 
 
 S. 193 of the Ontario Railway Act 1906, 6 Edw. VTI. c. 30. re^ectin^ 
 operation on Sunday is, bj virtue of s. 9 of the Railway Act, 1906i, binding 
 upon an electric railway situate wholly within the Province of Ontario, 
 which was incorporated by the Parliament of Canada in 1910. and dedared 
 to be a work for the general advantage of Canada. In order that a rail- 
 way or part of a railway may form part of a continuous route or system 
 within the meaning of subs. 5 of the said s. 9, respecting operations on 
 Sunday, there must be a direct physical connectioa between it aad the 
 other through road of which it is to form a part, and proper facilities 
 by way of sidings and accommodations ior the transfer of traffic must 
 enflt, which should generallv be sanctioned by the premier authorities, 
 [Hammans v. Great Western Ry. Co., 4 Ry. 4 Canal Traffic Cas, 181; Great 
 Oeatral Ry. Co. v. Lancashire k Yorkshire By. Co., 13 Ry. k Canal Traffic 
 Gas. 266;' Black v. Delaware k Raritan Canal Co„ 22 SJ. Eq. 4«2, re- 
 ferred to.] 
 
 Kerley t. London k L.E. Transportation Co. (Ont.|. 14 Can. Ry. Gas. 
 Ill, • DJ^R. 189. 
 
 [Beversed ia 13 DJL^ 365, 28 OXJL 606. 15 Can. Ry. Cas. 337.] 
 
 Laboch Axn nrsixEss — OnoKATixG mailwat — PnovixoAi. JcaisiHcnox, 
 
 HOW UXrTCD. 
 
 A proseeotian under the Sunday observance laws of Ontario against a 
 railway coapai^ dbartered by tbe Dominion Parliamoit with powers of 
 operatiaa bejvad the limits of tbe province cannot be maintained merely 
 iqna the giuund that the company has not actually exercised such powers 
 oataide at ikt province. 14 Can.Ry. Cas, 111, 6 b.L.R. 189, revereed. 
 
 Keiley v. London, k SJE. TransportatioB Co., 15 Caa. Ry. Cas. 337, 28 
 OXJL 606, 13 D.LJL 365. 
 
726 TELEGRAPHS. 
 
 SUPERSTRUCTURE. 
 
 Assessment sad Taxation. 
 
 SWITCHES. 
 
 See Branch Lines and Sidings; Junctions; Railway Crossings; Street 
 Railways. 
 
 As affecting tariffs, see Tolls and Tariffs. 
 
 SWITCHING. 
 
 See Tolls and Tariffs. 
 
 TANK CARS. 
 
 See Cars. 
 
 TAXATION. 
 
 See Assessment and Taxation. 
 
 TELEGRAPHS. 
 
 See Tolls and Tariffs (H) 
 
 Tax on telegraph comj)anies. see Assessment and Taxation. 
 
 Marconi wireless system — Press and private messages — Excessive 
 
 AND discriminatory RATES.' 
 
 An application was made to the Board for an order directing certain 
 telegraph companies to transmit press messages to the Marconi wireless 
 station at Glace Bay at the same rate as to other points along the At- 
 lantic coast of Canada from the city of Ottawa. It was alleged that the 
 rates were excessive and discriminatory because the telegraph companies 
 on messages to Glace Bay charged the higher private rate rather than the 
 lower press rate: — Held, that the evidence did not establish that excessive 
 or discriminatory rates were charged, the rates being lower from Ottawa 
 to Glace Bay than from the same point to other Canadian Atlantic coast 
 points and the application must be dismissed. 
 
 Times Publishing Co. v. Can. Pac. Ry. Co., G.N.W. and Western Union 
 Telegraph Cos., 9 Can. Ry. Cas. 169. 
 
 Foreign corporation — Exclusive rujht — Restraint of trade. 
 
 The E. & N.A. Ry. Co. made an agreement with the W.U. Tel. Co., 
 giving it the exclusive right for 99 years to construct and operate a line 
 of telegraph over its road. The road was sold to the St. J. & M. Ry. Co., 
 whicli leased it to the N.B. Ry. Co. for a term of 999 years. The tele- 
 graph line was constructed by the W.U. Tel. Co. under the said agreement. 
 The C.P. Ry. Co. completed a road, a portion of which liad running powers 
 over the line of the N.B. Ry. Co.. on which the W.U. Tel. Co. had construct- 
 ed its line. The N.B. Ry. Co. having given ])ermission to the C.P. Ry. 
 Co. to construct another telegrapli line over the same road, the W.U. Tel. 
 Co. obtained an injunction to prevent its being built. On appeal to the 
 Supreme Court of Canada. Held (1), the agreement between the E. & 
 N.A. Ry. Co. is binding on the present owners of the road. (2) The con- 
 tract with the W.U. Tel. Co. was consistent with the purpose of its cor- 
 poration, and not prohibited by its charter or by the local laws of New 
 
TELEGRAPHS. 727 
 
 Bnuisvick, and its ri^t to eaier into soA a contract and carrj on the 
 bngmees proTided for therrbr is a r^ht mo^ized bv the comitT of na- 
 tiai& (3) The exclosire r^t grutcd to the W.U. TeL Co. does not 
 aroid the coBtract as beiag agawait poblie polkr, or as being a contract 
 in RStnint of trade. 
 
 Can. Pae. Ry. Co. t. Western Union Trf. Co., 17 Can. S.C-R- 151. 
 
 [Applied in'jacqae^-Gartier W. t P. C<o>. x. Qaebee Rj. L. * P. Co_, 11 
 Que. KB. 54«; L.Tnch r. Wm. Richards Col, 38 X.B.R. 180; dtseosscd in 
 Bojrie t. Victoria^ Yukon Tr. Co., 9 B.C.R. 22S-. foUoved in Biikbe<ck 
 Xorthncst, ^tc, Co. v. Brafaant, 8 <^m. Q.B. 319; referred to in Hewsoa 
 r. Ontario Pover Col, 3S Can. S.CJL 604: Merritt t. Copper Crovn llinia^ 
 Co., 34 X.S-R. 421.] 
 
 Wncs cxDnKnorxv — Jrvismcnox — Stbeet mnwmiM Errs. 
 
 The Board has no jorisdiction imdcT the RaiNraj Act to direct that 
 tdcgraph «ire» be put under ground vith a riev to ejecting an aesthetic 
 betterment or street improvonent. [Grand Trunk Pacific Rv. Co. v. Fort 
 WiUiara el aL. [191*] A.C. 224. at p. 225. 13 Can. Ry. Cas. is7, followed.] 
 
 Woodstock T. Great Xorthmeston Telegraph Col, 19 Can. Rr. Ois. 427. 
 
 Deutixt of messages — LrurrATiox of uabiutt. 
 
 A telegraph companr which receives a UMssage addr^sed to a person at 
 Qnrinc is bound lo delirer it as soon as it is reeeired: if. br mistake, it 
 delirers it to another person it is liable in damages vhich mar be sus- 
 tained bj the pcr>«)n to whom it is addressed. The company cannot, by 
 the insertion of an exculpatory daose, escape this liability: its obligation 
 to delirer telegraphic me«isages being based upon statute and in the in- 
 terest of the public. 
 
 Great Xorthwestern Telegraph Co. r. Dominion Fish k Fruit Co.. ii 
 Que. K-B. 230. 
 
 MESiSACES — Ltll^rATIo^s of liabiuitt. 
 
 A telegraph company may validly stipulate in a contract for transmis- 
 sion of a message that it will not be liable in ca^e of failure to transmit 
 by fault of its employees for more than the price paid for its transmis- 
 aon unless the message is repeated at the expense of the sender. Such 
 an agiv«Bent contains nothing unlawful nor contrary to public order 
 
 Tangnay t. Great Xorihwe*tem T*4egraph Co., 51 Que. S-C. 261. 
 
 TBIJSFUOiraSB. 
 
 See Tolls and Tariffs (L) ; Railway Board. 
 
 Injuries by wires and poles. s<e Wires and Poles (A.). 
 
 Wires crossing highway, see Wires and Poles {B.n. 
 
 AfiBEEMEST BCrWEEX KAHLWAT ACT ISUrBOXIE COXPAXISS — -MCXICIPAI. 
 
 heuthoxe ststev. 
 The towns of Fort William and Port Arthur having renewed their ap- 
 plication for an order directing the railway company to allow the installa- 
 tion of telephone instruments in its stations <see 3 Can. Ry. Cas. 205 1 : — 
 Held, adopting the former judgment of a majority of the Board. (1) Cona- 
 pensation should be made to the railway company for the use of its sta- 
 ticBS and the interferoMe with its property consequent upon such installa- 
 tion. (Railway Act, 1903, s. 193.] <2« Compensation should also be 
 made to the telephone company for the loss of the exclusiTe privilege of 
 tdephoae connection with such stations. [Railway Act, 1903, a. 193.] 
 
728 TELEPHONES. 
 
 (3) Tile effect on the exclusive agreement between the telephone company 
 and the railway company, of installing such a municipal telephone sys- 
 tem, must be determined by the law of the Province of Quebec where the 
 contract was made. (4) The installation of such a mimicipal system does 
 not rescind the exclusive contract between the telephone company and 
 railway company. [C. C. (Que.), art. 1065; Dupuis v. Dupuis, R.J.Q. 19 
 S.C. 500.] (5) The evidence does not furnish a satisfactory basis for 
 determining the compensation to be paid by the municipalities and sug- 
 gestions are made as to its ascertainment hereafter by the Board or by 
 arbitration. (6) Payment of such compensation or the giving of proper 
 security therefor to both companies should be a condition precedent to the 
 installation of tlie syptem in each town. (7) Leave was given to state a 
 case for the opinion of the Supreme Court whether the installation of the 
 municipal system entitles the telephone company to a rescission of its 
 contract with the railway company. 
 
 Port Arthur, etc., v. Bell Telephone Co. and Can. Pac. Ry. Co. (Tele- 
 phone Case), 4 Can. Ry. Cas. 27i). 
 
 Railwat stations — Agreements respecting telephones — Restraint of 
 
 TRADE. 
 
 •Two municipalities owning and operating a joint telephone system with- 
 in their limits applied to the Board, under s. 193 of the Railway Act, 
 1903, for an order directing a railway company to allow the installation 
 of telephone instruments in its railway stations and for leave to connect 
 them with their telephone system. Prior to the enactment of s. 193, an 
 agreement was made between the Railway Company and the Bell Tele- 
 phone Co. whereby the Telephone Co., for valuable consideration, was 
 granted for a period of ten years the exclusive privilege of placing tele- 
 j)hone instruments, apparatus and wires, in the several stations, offices 
 and premises of the railway stations in Canada, where the Telephone Co. 
 had established or might, during the continuance of the agreement, estab- 
 lish telephone exchanges: — Held, per Blair, Chief Commissioner: That 
 the said agreement was valid and not void or voidable as being in re- 
 straint of trade or against public policy, and that an order made under s. 
 193 should provide for payment of compensation upon just terms for all 
 lawful rights and interests injuriously affected thereby. Per Bernier, 
 Deputy Commissioner: While the agreement is valid and compensation 
 should therefore be allowed, the question of compensation should be re- 
 served for future consideration and determined after hearing any case that 
 might be presented by the Canadian Pacific Ry. Co. or any other railway 
 company in support of damages. Per Mills, Commissioner: That the 
 agreement is in restraint of trade and against public policy, and that 
 compensation should be awarded only for the use of the premises occu- 
 pied by the applicants' telephones and the expense of operating them. 
 Order suspended pending further argument as to the quantum of com- 
 pensation. Upon questions of law the opinion of the chief commissioner 
 prevails in case of a difference of opinion amongst the members of the 
 Board under s. 10. [Nordenfelt v. Maxim-Nordenfelt Gun, etc., Co. (No. 
 1), (1893), 1 Ch. 630 (1894), A.C. 535; Rousillon v. Rousillon, 14 Ch. 
 351; Can. Pac. Ry. Co. v. Western Union Telegraph Co., 17 Can. S.C.R. 
 151; London & North Western Ry. Co. v. Evans (1892), 2 Ch. 432 (1893), 
 1 Ch. 16; Re Cuno, Mansfield & Mansfield, 43 Ch. D. 12, and Wells v. 
 London, Tilbury & Southend Ry. Co., 5 Ch. D. 126, referred to.] 
 
 Port Arthur, etc. v. Bell Telephone Co. (Telephone Case), 3 Can. Ry 
 Cas. 205. 
 
 [Reconsidered in 4 Can. Ry. Cas. 279.] 
 
TELEPHOXES. 729 
 
 Goxnt&CT — D m aciu Ki of scbscsibbrs — ^Ricbt to. 
 
 D., a sofascriba- in ToroBto, OBtaiio, to the telephone senrke of tlie 
 lapandeat, m]^Iied to the Board for an order directing the respcmdent to 
 fnraidk him vith a en^y of their official telephoae directory, containing 
 the list of their subscribers in the towns in West^nn Ontario. There was 
 DO provisioa in the contract betweoi D. and the respondeat entitlii^ him 
 to be supplied with such directories in or ooti»ide ot Toronto, althoi^ it 
 is the practice of the respondent to famish their subscribers with direc- 
 tories in their own districts: — Held (1), that the Board has no jnrisdic- 
 tioa and«- the Railway Act to grant the application, lit Upon the evi- 
 dence it is unreasonable that suhscribers in certain districts should he 
 furnished with directories printed for and fumiyied to subscribers in oth- 
 er diatriets. 
 
 D%nam r. BeU Telephone Co., 8 Can. Ry. Cas. 300. 
 
 lK»tAU_inO}t or TEIXPHOSES rx aAILWAT STATlO^fS — Ptbuc covtkx- 
 lEXCE — EicxrsiTE coxtbact. 
 
 Upon applieatioo to the Board by the P. and C. tele]dione eompanies 
 for an order compelling certain railway companies to permit the installa- 
 tion and maintenance in railway stations of telephones: — Held (1) that, 
 under s. 243 of the Railway Act, 1906. the Board has jurisdiction to grant 
 the order applied for and may impoee such terms as it deems best and 
 e xp e di ent but should not take into consideration any contract giving es- 
 dusive {Rivil^es to any other telephone company. (2) That the only 
 point to be considered by the Board is whetho- such telephone connection 
 will be of benefit and cmivenience to the public having business with the 
 railway company. (3) That telephone companies who may be entitled 
 to su^ an order being usually incorporated by the province, and thus not 
 sa bj ect to the jurisdiction of the Board should enter into a contract con- 
 taining fair and reasonable conditions to be prescribed by the Board. 
 
 People's and Caledon Telephone Co& v. Grand Trunk and Can. Pac. Ry. 
 Co«^ 9 Can. Ry. Cas. 161. 
 
 [Followed in Alberta United Farmers ▼. Can. Pae. Sy. Go., 23 Gan. Ry. 
 Cas. 104.] 
 
 CoymacT — 1 .\ i uu'ke tatiox or — CoxmesATioxs axi» messages — ^Xbces- 
 
 SAKT EQCIPMEXT. 
 
 On an application for the interpretation of a provuian in an agrve- 
 sent between two telephone companies that the BeU (re^iandcnt) Co. 
 permit an intercha^e of telephonic emiversations and messages he tn e e n 
 the Byron (applicant I Co.'s system . . . and provide the Bccesaarr 
 eqpd]Mnent at its office in the village of Byron. Afto- the two systems 
 were connected an enlarged switchboard was required to enable the sub- 
 seribers of the applicant to converse with one another by switdiii^ 
 through the re^iondent's office: — ^Held. that the resptmdent had per- 
 fwed its duty under the ccmtract if the switdiboard was large enouf^ 
 to cany the traffic between the two systems^ and the application was re- 
 fused. 
 
 Byron Telephone Co. v. Bell Telephone Co.. 11 Can. Ry. Cas. 433. 
 
 EXCLCSITE CDXTBACT — APP«0VAI. PfBUC rSTtMEST. 
 
 The respondent entered into a contract providing (dause 11.) for an 
 exclusive connection. The applicant objected to this elanse in the con- 
 tract being approred by the Board. The applicant and the respondent, 
 the Canadian Telephone Co., i^ierated in Sberbrooke and formerly had a 
 
T.U) TELEPHOA^ES. 
 
 toiineetion: — Held, that the clause should not be approved by the Board 
 in the public interest. 
 
 People's Telephone Co. v. Bell and Canadian Telephone Cos., 12 Can. Ry. 
 Cas. 19. 
 
 Dominion and provincial companies — Jurisdiction — Discretion — ^Un- 
 just DISCRIMINATION — COMPETITIVE AND NONCOMPETITIVE — DUPLICA- 
 TION — ToLi-s — Long distance — Order on terms. 
 
 Under subs, (b) of the interpretation clause, s. 1 of 7 & 8 Edw. VII. 
 c. 61, part 1, a provincial company cannot invoke the jurisdiction of the 
 Board to prohibit, on the ground of unjust discrimination, a Dominion 
 company from, in the exercise of its discretion, making an agreement with 
 one noncompetitive provincial company and refusing it to another, which 
 is alleged to be similarly situated, in order to prevent competition, or 
 upon more correctly speaking duplication in telephone service. The scope 
 of the Board's jurisdiction, under s. 5, being concerned with tolls, it is 
 given power, under s. 4 (5, fi). to order one company, subject to its juris- 
 diction, to afford to another, whether subject to its jurisdiction or not, the 
 use of a long distance system u]>oii such terms as to compensation as it 
 deems just and expedient. The IJoard has jurisdiction to make an order 
 upon terms, but not to issue a declaratory order as to the status of the 
 applicant or respondent. 
 
 Port Hope Telephone Co. v. Bell Telephone Co., 17 Can. Ry. Cas. 343. 
 
 Service — Jurisdiction, 
 
 Under 7 & 8 Edw. VII. c. 61, s. 5, the Board has no jurisdiction to deal 
 witli the rearrangement of the respondent's telephone service between 
 diflferent exchanges the matter being one of internal management of its 
 own business. 
 
 Tinkess v. Bell Telephone Co., 20 Can. Ry. Cas. 249. 
 
 [Followed in North Lancaster Exchange v. Bell Telephone Co., 21 Can. 
 Ry. Cas. 220; Re Anderson and Bell Telephone Co., 24 Can. Ry. Cas. 224.] 
 
 Jurisdiction — Toll — Switching — Services. 
 
 The Board is not given any power under 7 & 8 Edw. VII. c. 61, to direct 
 that local telephone service shall be given to an applicant who is not a 
 subscriber of a company subject to its jurisdiction and therefore has no 
 juisdiction over the switching connected therewith. 
 
 Bell Telephone Co. v. Falkirk Telephone Co., 20 Can Ry. Cas. 266. 
 
 [Followed in Joliette Telephone Co. v. Bell Telephone Co., 21 Can. Ry. 
 Cas. 443.] 
 
 Jurisdiction — Connection and Communication — Stations — Removal of 
 telephones— "Facilities clause" — Physical transportation and 
 accommodation. 
 The Board has no jurisdiction under s. 245 of the Railway Act, 1906, 
 to compel a railway company to continue the maintenance of telephonic 
 connection and communication between its stations and the telephone sys- 
 tem, already installed, of the applicants. The Board has no jurisdiction 
 under ss. 284 and 317 of the Railway Act to prevent the removal (at the 
 instance of the municipalities within whose limits railway station* are 
 situate) of telephones installed at such stations. The "facilities chiuse." 
 8. 284, refers to physical transportation and physical accommodation on 
 the railway. Telephonic communication with a railway station to lie 
 acquainted with the movement of the passenger or freight trains is not a 
 facility which railway companies are required to furnish to the public 
 
TELEPHOXES. 781 
 
 mdo- >L 384. [Pert Artlmr, et aL t. Bell Tdrphooe and Caa. Pac. Rv. 
 C4MU 4 Caa. St. Cas. 379, at p. 3S4; Peoples and Caledon Telc|»lione Cos. 
 T. Graad Tnnd^ and Can. Pac Bj. Coe^ 9 Can. Br. Ca& 161, at p. 163. 
 referred toLj 
 
 Maaitoln t. Can. Plae. Br. Co. (Telephone Coaneetion and Comnnniea- 
 tion Caseii, 21 Can. Br. Ca*. 4*5. 
 
 [FoUoved in Alberta United Farmers t. Can. Pae. Br. Co.. 23 Can. Bt. 
 Cas. 104.] 
 
 JraisDicnox — Telephoxes — Tekms — Coxbitioxs — Bocic — Moset 
 
 PATMEST. 
 
 In approring the route on a highvar of the Bell Telephmie Co.. the 
 jurisdietion of the Board is confined to fixing '«neh terms^ conditions or 
 limitations as refer to the line«^. wires or poles within the mnnieipalitT. 
 The Board has no jnriadietion to require, as a condition, the parmmt of 
 anj moner or the granting of free telephones to the mnnieipalitT. 
 
 Windscw- t. BeD Tele|riione Co.: Bell Telephone Co. t. Windsor. 33 Can. 
 Bt. Cas. 416. 
 '[Followed in Bell Telephone Co. r. Londoa. 34 Can. Bt. Cas. 103.] 
 
 JtrviSDicnox — Cosvmoy.s — Compexsatiox — ^Bkioge. 
 
 Tbe Board is giTen no jurisdietion under s. 47 of the BailvaT Act. 1906. 
 to make the parment of compensation a term of an order approTing the 
 location and construction of a telephone line upon a public hi^nj or to 
 impose anj condition for which a mnnieipalitT may contend in bargaining 
 with a telei^Hme ccMupany as a term or ftmdition of such order. [Grand 
 Tmnk Pacific Ry. Co. t. Fort William Landowners, etc.. [1914] A.C. 334. at 
 p. 339, 13 Can. By. Cas. 187. followed.] It is not the function of the 
 Board to decide upon the Taliditr of I>Mninion or proTincial legislation. 
 Under its charter. 43 Vict. c. 47, s. 3 and the interpretation clause of the 
 Bailwar Act. 1906. s. 3 (11). the Bell Telephone Co. has power to 
 carry its lines along a bridge on which there is a public right of traTel- 
 u^.' [Auger et al. r. Grand Trunk and Can. Pac. By. Cos^ 19 Can. By. 
 CtSL 401. ftrflowed.] 
 
 Bell Telephone Co. t. Ottawa and Carleton. 33 Can. By. Cas. 421. 
 
 [Followed in Bell Telephone Co. t. London. 34 Can. By. Cas. 103.] 
 
 SEsncE — Pkttate bbaxch exchange — BEsmcvTtAi. ti^^ES — Sepakate ust- 
 
 VXO TOU. 
 
 Wk»e the telephone serrice in connection with whidi publication by 
 listiai^ in the telephone directory is asked is not of the pr irate branch 
 escimage line, but of the separate residential ones, and entirely distinct 
 frooi the contract corering tlie private branch exchange serrice. the serr- 
 iet asked for is a distinct one. and is subject to the separate listing tolL 
 
 Irish 4 Maulson t. BeU Telephone Co., 33 Can. By. Cas. 19. 
 
 JrusDicnox — Cost off^ usstaixatiox axd maixtexasce. 
 
 Under s. 34.5 of the Railway Act, 1906, the Board has no jurisdiction 
 to direct railway companies to bear the cost of installatimi and mainte- 
 nance of telephtMies in their stations, but it has jurisdiction to direct them 
 to pmnit municipalities or corporations carrying on a telephone bosi ne— 
 to install instruments without charge to the railway companies in their 
 stations. [People's and Caledon Telephone Co*, t. Grand Trunk and Can. 
 Pac. By. Co«^ 9 Can. By. Cas. 161: Manitoba t. Can. Pac. By. Co„ 31 
 Can. By. Cas. 44.5. followed.] 
 
 Alberta United Farmers t. Can. Pac Bt. Co., 33 Can. Bt. Cas. 104. 
 
7;}2 TELEPIIOXES. 
 
 Jurisdiction — Lixes on highways — Conditions — Compensation. 
 
 The Board has no jurisdiction under ss. 247, 248, of the Railway Act, 
 1906, to make the payment of rent, as compensation, a term of an order 
 approving the location and construction of telephone lines upon, along, 
 across or under a public highway, or to impose any condition, for which a 
 municipality may contend in bargaining with a telephone company, a term 
 or condition of such order. [Windsor v. Bell Telephone Co., 22 Can. Ry. 
 Cas. 410; Bell Telephone Co. v. Ottawa and Carleton, 22 Can. Ry. Caa. 
 421, followed.] 
 
 Bell Telephone Co. v. London, 24 Can. Ry. Cas. 102. 
 
 Increase in bates — Refusal to pay — Removal of instrument — Notice 
 — Municipal powers — Nature op rental — Bailment — Duration op 
 contract. 
 Edwards v. Edmonton, 25 D.L.R. 825. 
 
 Right to maintain poles and wires in streets — Company incorporated 
 
 BY charter under ONTARIO COMPANIES AcT CONSENT OF TOWN TO 
 
 EXERCISE OF POWERS — TRESPASS TO PUBLIC LANDS — RIGHTS UNDER 
 CHARTER. 
 
 A telephone company has not the right to plant poles upon a highway 
 without sanction derived from the Legislature or from Parliament. Tiie 
 municipality has no inherent legislative power to grant the right; and, 
 unless there is to be found some authority emanating from Parliament, 
 when the undertaking is under the jurisdiction of Canada, or from the 
 Legislature, when the undertaking is under the jurisdiction of the prov- 
 ince, or from the municipality, when the Legislature has given power to 
 the municipality, this non-natural use of the highway is unlawful. [Do- 
 mestic Telegraph Co. v. Newark (1887), 49 N.J. Law344, 346, approved.] 
 A charter creating a company confers upon it the powers of a natural 
 person so far as such powers are enumerated. A company which has 
 power under its charter to own and operate a telephone line has no right 
 to exercise that power until it acquires it in accordance with the general 
 law of the land. The Companies Act confers power upon the companies 
 chartered; it gives no right to those issuing the charter to deal with the 
 rights of the public upon highways or to interfere with the public domain. 
 The provisions of the Municipal Franchises Act, R.S.O. 1914, c. 197, do 
 not apply to a telephone company. 
 
 Temiskaming Telephone Co. v. Cobalt, 42 O.L.R. 385, 43 D.L.R. 724. 
 
 [Reversed in 44 O.L.R. 366.] 
 
 Contract — Knowledge of condition — Cancellation — Liquidated dam- 
 ages. 
 
 The signer of a telephone contract is presumed to know all the condi 
 tions appearing therein, and is bound by a stipulation that in case of 
 cancellation of the contract through the default of the subscriber the 
 balance due for the unexpired term shall become payable as liquidated 
 damages. [Bell Teloplione Co. v. Duchesne, 21 D.L.R. 822, referred to.] 
 
 Bell Telephone Co. v. Zarbatany, 31 D.L.R. 641. 
 
 POWEB TO grant USE OF STREET. 
 
 A resolution of a township council is not an authorized municipal meth- 
 od granting a telephone company the privilege under certain conditions 
 of constructing its telephone line, a by-law being necessary. (Per Mid- 
 dleton, J.) 
 
 Howse V Southwold, 5 D.L.R. 709, 27 O.L.R. 29. 
 
TELEPHONES. 133 
 
 MCXKIPAI. IXIXrHOXE SYSTEM. 
 
 A Mmuapalitj maj establish u. tflrplinT srctca ■■da- 2 Gcol T^ cl 3S, 
 ^oa hda^ pn^o-lj petitioBed to do so, vithoot gn^ag HTert to all the 
 fay eg * of the pctitioa. if the svtittm coaaplies vith the Act ia qnestioa. 
 
 Be Bobertaoa aad Colhone, 8 DX.JL 149, 4 O.WJC. 274. 
 
 CoMrrxsoBT sesvics. 
 
 Notvithstaaiia^ the prortsioas of the Ontario Telpphoae Act. 1910, 
 thrrr is bo jarisdictioB ia the Oatario ILailvar and Municipal Board to 
 ■ttke aa order directiag "cooaertion. iatercomainaicatioa. joiat operation, 
 reriprocal ose aad tran^aiiM^ioo of bopine^^" iarolriag the expcBditnre of 
 Biimfj apoB capital ac«oaat. by the sutn^cribers to a telephone srste^, 
 constenrted aad installed nader the proTi^ioas of the Ontario Local Moaie- 
 ipal Td^hone Act. 190S. 
 
 Br»sris T. licKiUop Telephone Srstm; Birth t. MrXiDop. 2 DX.R. 
 M3, 26 OJLJL 29. 
 
 MinnciPAi. m-ETHOxK srsrcsf — Gom^MfCSTAi. WBEUiAnoys. 
 
 The coastractioa and iastallatioa of a tdephone sjsteu nader the pn^- 
 of the Oatario -Local Mnaieipal TelephoM Act, 1908" br an asao- 
 m! iadividaal subscribers, erea vhea operated aadcr a certain 
 does aot constitnte thea a corporate bodj or legal entity, aad their 
 tdephone MsteM aad equipaaeat nsed ia coaaertiMi therewith becoate re^- 
 ed ia the ninniripaUtT ia txnst for the benefit <rf the saberribei^ 
 
 Bnnwk t McKilk^ TelephoM* Systea; Birth t. MeKiUop, 2 DJ;.^ 
 M3, 2S OX.B. 29. 
 
 Al JIBMil I ag i ntiJ TEX^THO^C COMPAQ lE^^ — JlTKISDICTiOi^r. 
 
 While the Oatario Railwaj aad Moaieipal Board nay "ivvien-, rcseiad. 
 ehaagie, alter or Tarj aar rale, regulation, order or decision. ' nude by it. 
 it ihonld not aiake aa onler haviag the effect of interferii^ vith an agree- 
 BMst entered iato between two telefAone iiitiwi or coBpanies to whiA 
 the appnvral <rf the Board had already been giren, except on a properly 
 fi 11 d application for the porpoee, and npon due notiee to the parties la- 
 terested to af^tear and state thnr objeetioas; the Board has ao power or 
 jniiaJiition to alter or rary sneh approved agreement except o^oa aa 
 ■pplicatiun of which doe notice has been giTcn to the interested parties^ 
 
 BrasscJs T. MrKiUop Telephone SystcsB; Birth t. HcKiDop, 2 DX^R. 
 SiS, 2S O XJL 29. 
 
 TEMPERANCE ACT. 
 
 Violatian af Canada Temperance Act by express mmfumj friaiifinlinf, 
 liper, see Ciiates aad Offencesw 
 
 THISTLES. 
 See Weedk 
 
 TICKETS AMD FAXES. 
 
 Biq^alatioB «f street car fare?, see .Street Railways. 
 
 Begalatiaa of tolls and tariffs, see Tolls aad Tariffs: Railway Board. 
 
-34: TICKETS AND FARES. 
 
 Annotation. 
 
 Conditions of ticket. 2 Can. Ry. Cas. 106. 
 Railway ticket — Right to stop over. 
 
 By the sale of a railway ticket the contract of the railway company is 
 to convey the purchaser in one continuous journey to his destination : it 
 gives liim no right to stop at any intermediate station. [Craig v. Great 
 Western Ry. Co. (24 U.C.Q.B. 509); Briggs v. Grand Trunk Ry. Co. (24 
 U.C.Q.B. 5*16); and Cunningham v. Grand Trunk Ry. Co. (9 L.C.J. 57^ 
 11 L.C.J. 107), approved and followed; 4 Can. Ex. 321, affirmed.] 
 
 Coombs v. The Queen, 26 Can. S.C.R. 13. 
 
 [Adapted in Emmerson v. Maddison, 36 N.B.R. 266; applied in Prov- 
 ident Savings Life Assurance Soc. v. ^lowat, 32 Can. S.C.R. 156; explained 
 Lamont v. .Can. Transfer Co., 19 O.L.R. 291.] 
 
 ReTV RX ticket — COXDITIOX OF inENTIFICATIOX — NeGIECT TO COMPLY WITH 
 
 — Ejectment from traix. 
 
 Plaintiff purchased an excursion ticket from Indian Head, N.W.T., to 
 Toronto and return, one of the conditions, which he signed, being that he 
 should identify himself to the authorized agent of the railway in Toronto 
 before he set out on his return journey, and obtain the agent's official 
 signature, dated and stamped at Toronto. On production of his ticket 
 he secured his sleeping berth, had his baggage checked and was admitted 
 to the train and started on his return journey, but neglected to identify 
 himself as required and was put off the train, after he had refused to pay 
 his fare, although he offered to identify himself to the conductor. In an 
 action for damages: — Held, that he could not recover. Judgment of 
 Lount, J., affirmed. 
 
 Taylor v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 99, 4 O.L.R. 357. 
 
 TIMBER LICENSE. 
 Damage to timber licensees caused by fires, see Fires. 
 
 TIME TABLES. 
 
 See Train Service; Street Railways. 
 
 TITLE TO GOODS. 
 
 Trover — Possessory rights — Wroxgful takixg. 
 
 A person possessed of goods as his pi'operty has a good title as against 
 every stranger, and one who takes them from him, having no title in him- 
 self, is a wrong doer and cannot defend himself by shewing that there was 
 title in some third person, for as against a wrongdoer possession is title. 
 [Jeffries v. G.W. Ry. Co., 5 El. & Bl. 802; The Winkfield, [1902] P. 42; 
 Glenwood Lumber Co. v, Phillips, [1904] A.C. 405, referred to.] 
 
 Dutton V. Can. Northern Ry. Co., 19 Can. Ry. Cas. 72, 23 D.L.R. 43. 
 
 TITLE TO LANDS. 
 
 Conveyance of lands for railway purposes, see Expropriation. 
 Jurisdiction of Magistrate's Court and County Court involving title to- 
 land, see Jurisdiction. 
 
TITLE OF LANDS. 735 
 
 K^trietiaB n Contnet <tf Sale as to mer of land, 7 DXJL 614. 
 
 Sau or LAjn*— Deutcxt or rossEssiox to Acacxr. 
 
 S. T. brao^t aa aetkm to reeorer $3,200 a;5 balance of the purchase 
 moaej of eertain lands in Qnebec sold by hira to ihe X^ Rt. Co. To 
 this adJOB the railwar compaar pkadcd br teniporarr exception that oat 
 of 3,307 soperfic-ial feet sold to them. S. T. never delireted 710 feet, and 
 that ao lomg as the full quantity piireha?ed was not delirered tlney- vere 
 not hooad to pay. To this plea S. T. replied spedaUy that he deliT^rrd 
 all the land sold to P. B. V.. the agent of the company vith their a^^^ent 
 and approbation, toother vrith other land stdd to said P.B.V. at the same 
 tiae. At the trial it «as >hevn that P. B. V. had parcha.scd all the lands 
 owned by S. T. in that locality bat exacted tvo deeds of sale, one of 
 3,307 feet for the railway company, and another of the balance of the 
 pt o p e itj for hnuelf By the deed to P. B. V*. his land is bounded by than 
 prrrioosly $oId to the company. P. B. V. took possession and the 
 railway company fmced in what they required: — Held, affirming the judg- 
 ments of the Court of Queen's Bench for LkC. that S. T. haTii^ deliv- 
 ered to P. B. v.. the agent of the company, with their assent and approba- 
 tion, the whole of the land sold to them together with other lands sold to 
 the said P. B. V. at the same time, he was entitled to the balaace of the 
 purchase mimey. Per Tascherean. J.: That all appellants could claim 
 was a diminution of ]Mrice. or cancellation of the sale under arts, l-i^l, 
 1502, and that therefore their plea was bad. 
 
 North Shore Ry. Co. t. Trudel (18871, 24 CKJ. 57. 
 
 Right or p«e-emtoox — ^Laxds tassemxEa — AeucrLTnui. settlexs. 
 
 By 47 VicL c. 14, subs, (f •, (B.Ci. certain land conveyed to the E. Jt 
 N. Ry. Col was. for four years from the date of the Act, thrown open 
 to the actual "settlers for agricnhural purposes." coal and timber land 
 excepted. H. and W. respectively claimed a ri«fat of pre-^nnptioa under 
 this Act: — Held, affirmii^ the decision of the Supreme Gourt of British 
 Orfumhia. that the Act did not confer a right of pIte^-«nption to lands 
 not within the g um ption laws of the province: that only ''unrese-rved 
 and UBoeeupied lands" came within tboee laws and the lands claimed had 
 la^ b^ore been reserrrd for a town site: and that the dainunts were 
 not upon the lands as "actual settlers for agricultural purposcss" but had 
 entered with express notice that the lands were not open for settlement 
 
 Hoggan V. Esqaimaalt i Nanaimo Ry. Co.: Waddington v. Esqnimault 
 A Xanaimo Ry. Co., 20 Can. S.C.R. 235. 
 
 [Affirmed in [1894] A.C. 429: considered in Esquimault, etc Ry. Co. 
 T. McGregor, 12 B.C.R. 270; referred to in Esquimault, etc, Ry. Co. v. 
 Fiddick, 14 B.GJL 429.] 
 
 Rights or pke-esiptiox. 
 
 Where the appellant claimed as ''an actual settler for agricultural pur- 
 poses." that by s. 23 of the British Columbia Act. 4« Tict. c. 14, he was 
 entitled to a right ot preneinption ovm' certain lands included in a gov- 
 ernment grant for the purpose of the respondent railway, and it appeared 
 that the land in question had. prior to the Act. been reserved as a town 
 ate: — ^Held. that a settler means a person entitled to record land under 
 the Land Act. 1875. by reason of compliance with its provisions: that the 
 Aet did not apply to reserved land«: that under 47 Vict- e, 14. no new 
 rig^t of pre-emption was given, nor was the word ~settkr" used in any 
 
736 TITLE OF LANDS. 
 
 new sense. Accordingly, the appellant's claim failed, since he was not a 
 settler in the only sense known to the law of the colony. 
 
 Hoggan V. Esquimault & Nanaimo Ry. Co., [1894] A.C. 429. 
 
 Location of permanent way — Fencing — Laying out of boundaries. 
 
 A railway company purtliased land from P., bounded by a non-navijable 
 river, as "selected and laid out" for their permanent way. Stakes were 
 l)laiited to shew the side lines and the railway fencing, at the points in 
 dispute, was placed, here and there, above the water-line, although the 
 fompany could not have the quantity of land conveyed unless they took 
 possession to the edge of the river. P. remained in possession of the strip 
 of land between the fence and the water's edge and of the bed of the stream 
 ad medium filum, and, after the registration of the deed to the company, 
 sold the rest of his property including water rights, mills and dams con- 
 structed in the stream to the defendant's auteur, describing the property 
 sold as "including that part of the river which is not included in the 
 right-of-way, etc." The plaintiffs never operated their line of railway, 
 hut, immediately on its completion, under powers conferred by tlieir char- 
 ter, and the Railway Act, 14 & 15 Vict. c. 51, leased it for 999 years to 
 another company and the railway has been ever since operated by other 
 companies under the lease. On appeal the Supreme Court: — Held (1), 
 that the description in the deed to the railway company included, ex jure 
 naturiB, the river ad medium filum aqua" as an incident of the grant and 
 that their title could not be defeated by subsequent conveyance through 
 their vendor and warrantor, notwithstanding that they may not have 
 taken physical possession of all the lands described in the prior convey- 
 ance. (2) That the possession of the strip of land and the waters and 
 lied of the river ad medium filum by the vendor and his assigns, after 
 the conveyance to the company, was not the possession animo domini 
 required for the acquisitive prescription of ten years under art. 2251 C. C. 
 (Que.) but merely an occupation as tenant by suffrance upon which no 
 such prescription could be based. (3) That the failure of the vendor to 
 deliver tlie full quantity of land sold and the company's abstention from 
 troubling him in his possession of the same could not be construed as 
 conduct placing a construction upon the deed different from its clear 
 and unambiguous terms or as limiting the area of the lands conveyed. 
 
 (4) That the terms of the description in the subsequent conveyance by 
 P. to the defendant's auteur were a limitation equivalent to an express 
 reservation of that part of the property whieli had been previously con- 
 veyed to the company and prevented the defendant acquiring title by ten 
 years' prescription, and further that he was charged with notice of the 
 prior conveyance through the registration of the deed to the company. 
 
 (5) That the acquisitive prescription of thirty years under art. 2242 
 C. C. (Que.) could not run in favour of the original vendor who had 
 warranted title to the lands conveyed to the company because, after the 
 sale, his occupation of the part of the property the possession of which 
 he liad failed to deliver, was merely on suffrance. The judgment of the 
 (Quebec Court of Kings Bench, appeal side, was reversed on the questions 
 of law as summarized. On the question raised as to the right of action 
 to recover the lands and for damages caused to the permanent way, it 
 was held, affirming the judgment appealed from, that the lease to the 
 companies which held and operated the railway, amounted to an emphy- 
 
TITLE OF LAXDS. 
 
 tattie lease «wi^mg Ak dwiif mtile ami afl tiw plantifs' liigkts !■ 
 respett. «f tke nuHraj reaervnig, Wwnr, tke doannw firedL 
 
 liasnv^ppt TaDe;- Kf- Gol t. Reed. 33 Cka. SLCJL 437. 
 
 [JIfplied m Aity.-Gcaetal of Qtbec t. Fi»»r, 37 Caa. SLCS. JSO: 
 Jkttjr.-GcMsal «f Qwbec t. Seott, 3ft Cu. SLCJK. «14; rdicd oa ia Tai^mT 
 T. CawidiMi Oet. Li^ Cou. 40 pu. &C^ 6.] 
 
 PBOnXCXAI. CKA^T TO KJlIL.WAT — PAKTmOX OT UkKV. 
 
 Bj a feitJUMjL tkiw«k conv^Ma^aee tke G. T. R. Gol «as to li aili i 
 for a triaagalar jiicee «f lud oSacd for sale Inr tke Oatario Govov- 
 ■orty caaiaiaiig 19 aocs amd eaanvjr kalf to Oc C'P. B. Ctou, vUck wvidd 
 Bo(t tcader. TW dnisiaB ms to be Bade acmidia^ to a plu «rf tke block 
 of laad vitb a Eae dimn t kiu^fib tike cmtzte from cast to wst. tke 
 C. P. B. Gol to kave tke Bortkcn kalL Ike G. T. B. Co. acqaind tke 
 had,, bat tke G at ei aawjt icscmd Cnm tke graat two acres ia tke 
 aialbiia kaU. Ia aa actioa liy tke C. P. S. On. for ^ecifie petfonHUMe 
 of tke icraeaKat:— Held, afiimias tibe jadgawat of tke Coart of AppcaL 
 C P. Ry. Go. T. G. T. Rjr. Go, 14 Oat. LJB. 41. ITarh^aaa aad Daff. JJ.. 
 dwaratiag^ tkat tke C. P. B. Co. aas catitkd to oa^kalf of tke iaad 
 actaalljr aeqpiicd br tte G. T. B. Col aad aot oalj to tke balaacr of tke- 
 awtkua kalf &? aiaibd oa tke plaa. Ike Coart of Afpeal directed a 
 rtfe iea ce to tke liaffter ia case tke partieaeoald aot ag;rBe oa tke aode of 
 divinaa: — Held, tkat sack lefe rea e e aas aaaKcssarjr aad tke jai^.i al. 
 ■ppi Ilk d afiaiast ifcoald be varied ia Ais respcrt. 
 
 G^aad Traak Bj. Col t. Cmm. Pae. I^. Co. 39 Caa. &C.B. 339. 
 
 IjLsm ssMi m aaan ts the X.W. TEaarroanes; — Mcvi;? — RE<iCKrATios cr Gaiixr 
 — HaoBcswois lidLxvs Act. 
 
 Bt tke Art 53 Tict. c. 4. tke soppliaat rukrar cn^paav. aaoaig otkcraL 
 ««§ aatkoriKd to reedTe a graat of Dowaioa laads of CftW acres for 
 eack Hik of its raOaar, wkea (uastracted. Uader tke protieiaas of s. 3 
 tke gnmts- aere to be Bade ia tke pxopovtiaa aad avoa tke eoaditiiaa 
 fixed W tke ordef^-ia-comcQ ande ia re iper t tkereof. aad. enxpt as to 
 sack nMdiliiii. tke said gnats skoald be free giaats. sabgedt oahr to 
 tke pa jaaa t br tke vraatecs, rcspectiTvij. of tke cost of samy off tke 
 laads. aad iaeideatal cxpeaaeiL Tke Act caiae iato force oa tbe IflOi 
 of May. 1990L Oa tkat date tkcre wte ccrttaia r^alatioas ia fonae, maAe 
 «a tke 17tk September, 18S». aader tbe proii»ioas of Ae Dawaioa Laads 
 Act. vkidk pimi ded tkat all patcaU lor bads ia Uaaitoha aad tke Xortk- 
 vest Territiaies rkaald rescrre to tke Croaa all auaes aad waerak akidi 
 ■i^dk ke fo^id to exist ia sark laa«k. toffctker aitk tke aiks of railaaj 
 tu a itimttd . Tkcre «a:s Mi power to wotk tke anaK. Orders ia cooaeO 
 aafk ui iiia g tke iacae of patcats. for tke iaads ia qjaestioa. to tke sappli- 
 aat laOaajr ooaipaaT a«re passed from, tarnt to fif . accordi^p to tke 
 aa»b»i of wles of railaaj eaastraefeed. There aas ao ref e i ea ce ia tkese 
 orders to tke r^galatiaas respeetiBg tke resenatiaa off auacs aad aiiaeTals 
 of 17tk Septcaiber, 1S99:— Hdd. tihat tke r^:alatiaw reaerrii^ naes aad 
 ■iaerals ap^ied to all ^raats of laads Bade aadtr tke pnyrisiaas of tbe 
 Act. S3 Tict. c M. aad tbat tke taaimiiiiia of lefeiea c e to $ark regalatiaBs 
 ia tke ordero-ia i oaai 11 aatkoriziai^ pateats to be tssoodl did aot alfeer 
 tke poatioa 9t tbe sappliaat cnaipaar aader tke law. SeBble, tkat akera 
 PorliaaHat graats a sahsidT of farnds ia aid of tke c uartia ctifla of a rail- 
 war, aad aotkiag aore is rtatcd. tke i^raat is aMde mder ordiaaiy coa- 
 ditioa^. aad sAjeet to existiaj^ n^nlatioas cnaceraiag sack laada. 
 
 Ckl^arT- Jk Fdianatna Bj. Col t. Tke Ki^. $ Gsa. Ex. S3. 
 
 [ASraed ia 33 Caa. sCcR. C73; mersed ia [19M] A.C. 7C9L 
 Gaa. Bjr. L. Dig. — ft7. 
 
738 TITLE OF LANDS. 
 
 Pkovixcial goverxme.xt — Gbaxt of land — Validity. 
 
 The Vancouver Island Settlers' Rights Act, 1904, defines a settler as 
 a person who, prior to the passing of the British Columbia Statute, c. 
 14 of 47 Vict., occupied or improved lands situate within that tract of 
 land known as the Esquimault and Xanainio Kailway land belt with the 
 bona fide intention of living thereon, and s. 3 of said Act provides that 
 upon application being made to the Lieutenant-Governor-in-council within 
 twelve months from the coming into force of the Act, shewing that any 
 settler occupied or improved land within the said land belt prior to the 
 enactment of said c. 14 with the l>ona fide intention of living upon the 
 said lands, accompanied by reasonable proof of such occupation or improve- 
 ment and intention, a Crown grant in fee simple in sucli land shall be 
 issued to him or his legal representative, free of charge and in accordance 
 with the provisions of the Land Act in force at the time when said land 
 was first so occupied or improved by said settler. The lands within the 
 said belt had been conveyed by the province originally to the Dominion 
 for the purposes of the railway, and by the Dominion transferred to the 
 railway company, which in giving grants or conveyances of portions there- 
 of, reserved the minerals. Defendant, who held from her predecessor in 
 title, applied for and obtained a grant under said s. 3: — Held, on appeal, 
 that the railway company was entitled to be heard upon such application. 
 Held, further, that a grant issued witliout sucli opportunity being given 
 to the railway company to be heard on the application, was a nullity, and 
 that the defendant should be restrained from making use of it. Held, 
 further, that one of the conditions in the statute was that the claims of 
 applicants thereunder should be passed upon by the Lieutenant-Governor- 
 in-council, and the absence of compliance with such condition was fatal, 
 but held, further, that in the circumstances liere the defendant should be 
 permitted, on giving notice to the railway company, to proceed with her 
 application and tliat tlie Crown need not be a party to the action. 
 
 Esquimault & Nanaimo Ry. Co. v. Fiddick, 14 B.C.R. 412. 
 
 Superseding grant of railway lands — Settlers' Rights Act. 
 
 The British Columbia Vancouver Island Settlers' Rights Act, 1904, 
 directed that a grant in fee simple without any reservations as to mines 
 and minerals should be issued to settlers therein defined, and thereunder 
 a grant was made to the appellant of the lot in suit. By an Act of the 
 same legislature in 1883, land which included the said lot had been 
 granted with its mines and minerals to the Dominion Government in aid 
 of the construction of the respondents' railway, and in 1887 had been 
 by it granted to the respondents under the provisions of a Dominion Act 
 passed in 1884: — Held, that the Act of 1904 on its true construction legal- 
 ized the grant thereunder to the appellant, and superseded the respondents' 
 title. Held, also, that the Act of 1904 was intra vires of the local Legis- 
 lature. It had the exclusive power of amending or repealing its own Act 
 of 1883. The Act, moreover, related to land which had become the prop- 
 erty of the respondents, and effected a work and undertaking purely local 
 within the meaning of s. 92, subs. 10 of the B.N.A. Act. 12 B.C.R. 257, 
 reversed. 
 
 McGregor v. Esquimault & Nanaimo Ry. Co., [1907] A.C. 462. 
 
 [Commented on in Burrard Power Co. v. The King, 43 Can. S.C.R. 56; 
 Esquimault & N. Ry. Co. v. Fiddick, 14 B.C.R. 413.] 
 
 Meaning of word "land" — Reservation of siinerals. 
 
 The E. & N. Ry. Co. executed an agreement to sell certain lavls to H., 
 
TITLE OF LAXDS. 739 
 
 mhm ertcnd nte f wwiiifiiM, HHide iiwwif ta, aad faid tte p«rAase 
 ■MB^, -ht if * fi ^ • deed was ddiicnd to Turn trihick ke nfned to • e u.ft 
 ma it mmmd tte ■unenls «■ tte Ind, vkile tke agnewst was for aa 
 sale. la aa actioB br H. for ip e cile pcrfonaan of the 
 tte cn^^aaj coBtcaded tkat ia its wwy aaecB tte vninl ~1aad^ 
 va$ ahraya asrd as faaiag laad siaas tke waaals: — Hrid. Trrrrsias 
 ttlie jmlti al «rf the Su^ciae Coait <rf Biiti^ CoiaBriMa (C B.CJL 2£S», 
 Ikadhenaa, J- d ihteaUa g. tkat the coatract for sale bnag ex]Hcssed in aa- 
 —It^aaaa laagaap. aad H. haTi^ had ao aolice of aaj Rscrrations. it 
 coald Bot he nstiaded am the groaad of wsttake aad he vas catitled to a 
 dence for tpicifc perforBaaee. 
 
 Hohbs T. E^pianalt Jk XaaaiM* Rr. Cou 2» Caa. SLC.E. 4M. 
 
 [B^ed «■ ia BarMMnl L. & L Co. r. Ka^Uc Si^ar Col, ± Aha. L-JR. 
 1S3.] 
 
 EsEXXTKn jCACtsr lxsirs — EQCTr%WK ivcesest — Etfect or exbcctiox — 
 I<Axa TixLcs Act. 
 
 Flaiatiff sold eertaia laad to d rf ead a at S. aader a gjiu a ta t for sale, 
 aheigbj he tirnair catitled to a traasStr ^poa yj i. at of the agreed fmr- 
 thaar price aad ca^»liaace with stated coaditioBS. Srt hwu Beathr the 
 A tiicj a AIkH Co. rcc o i eie d a jodgaieat agaiast SL aad icgi^cTed euKU- 
 tioa ia the Bsaal for^ agaiikst^ his laad. :S., after saeh negi^tiasiaa, as- 
 sjgacd his Thtde cqaitaUe iatcnst ia sach laad to the defcadaat T JJS. The 
 legal title darlag this tiae iCBMiacd ia the phiariff- la aa actioa hr 
 ^aiatiV oadcr the eoatiact, the ABC iica a Ahell Co. dai^cd a r^ht to 
 iatervcBe as harii^ aa iateicst ia the laad BBdcr their arit of exccBtioB: — 
 Held, 111) that, han^ n«ard to tibe pnnisiaas of the Laad Titles Act, it 
 was eridcBtlr the iateBtioB d the Le^:^tBie that vrits <rf exeartioB 
 dhoaid biad oahr the ia t c ae a tt a «i i tgi ate ied ovaers <rf had, aad that the 
 esecBliaB did aot biad the cqaitahle iaterest of the dcfeadaat & £. That 
 BO lica is created bf aa exaentiaB agaiast laad. aahr saeh rights bni^ ae- 
 ^pnred as are givca bjr tike Laad Titles Art. aad vhich are aot available as 
 agaiast cqaitahle iaterests. 
 
 Cka. Pmt. Bt. Co. t. Silzer. 1± Caa. Br. Ck;. 1<6»^ 3 SJJR. ItS. 
 
 Srcanc «MnoBMXX<x — Ptbchase? arraocr 3concB — Ptblic iekhvat — 
 Wat or XBCE!«i>nT — ^Laatd Tmxs Act. 
 
 Oa the 8th October^ Yiaceat sigard pover of attoraer anthorizi^ the 
 execatiaB aad rvgistratioB of a plan of laads iadodi^ tro lots waaed by 
 hiaL, ih> a iiig a street vki^h ocevpied 33 feet ia width «rf his two lots. 
 Oa the 9th October, he hi»«elf agned to ^^ell the two kits to the Giaad 
 Traak Pacific without aav F«««rfati<n of aaj i4r<a«t or right-of-wvj over the 
 33 feet MeBtinBed ia the pwwer. Viaceat's attoraer. withoat aotice ni the 
 aale to the Graad Tkaak Facifie^ executed a ^aa which was exemtcd br 
 uth e is shewiag the street, aad the plaa was registered without aar of the 
 rigBM* of the plaa beiag aware of the a giiejia t with the Graad T^aak 
 Paofie. The street shewn oa the plaa did aot coa ua a a icate at rither cad 
 wihth, Bor was there aar outlet aarwhere to. aar hi^waj. Ia aa actioa bj 
 the Graad Trvd^ Pacifie agaiast ViaccBt for i^ecifie perfonaaace of the 
 coBtiact aad agajawt the other propertj oao e i* for the caaceDatioB of that 
 portioB of the plaa alTecti^ the two lotsr — Held. L A panel of lud ssed 
 hf the paUie, tetwaatiBg at oae ead as a oJ-de-sac, caa be a paUie h%^ 
 
T40 TITLE OF LAXDS. 
 
 way. [Bourke v. Davis, 44 Ch.D. 110, 62 L.T. 34, 38 W.R. 167.] But a par- 
 cel of lands closed at both ends cannot be a public highway: [Attorney- 
 General V. Richmond Corp., 89 L.T. 700, 68 J.P. 73, 2 L.T.R. 628, 20 T.L.R. 
 131; Bailey v. Jamieson, 1 C.P.D. 325), 34 L.T. 62, 24 W.R. 456.] 2. The reg- 
 istration of a plan approved by the municipality in which the subdivided 
 land is situate which shews as a street a parcel of land closed at both ends 
 und from which there is no outlet to any ordinary highway, does not consti- 
 tute the parcel a higliway, even though sales of land have been made accord- 
 ingly to the registered plan. Sucli a street becomes merely a private right- 
 of-way. Land Titles Act, s. 43 (g). — The land mentioned in any certificate 
 of title granted under this Act shall by implication and without any special 
 mention therein, unless the contrary is expressly declared, be subject to 
 . . . (g). — Any right-of-way or other easement granted or acquired under 
 the provisions of any A'^t or law in force in the province. 3. Tlie mere right 
 to a "way of necessity" until used or otherwise defined and located, cannot 
 be said to apply to any particular place suggested for it. 4. The last 
 clause of s. 188 of the Railway Act is intended to protect tlie railway com- 
 pany upon any agreement made by it with any ownerj no matter what 
 change of title may take place within a year and whether such change be 
 with or without notice of the company's claim, and the railway company 
 may enforce such an agreement as against any person, altliough he may be 
 a purchaser for value without notice. 5. Tlie words "set out and ascer- 
 tained" (used in s. 188), are not restricted in their meaning to the filing of 
 a plan, profile and book of reference by the railway company, which is neces- 
 sary before expropriation proceedings may be taken; and where a railway 
 company obtained an order of the Board authorizing the construction of a 
 railway according to a plan attached to the order and shewing therein that 
 portion of the land which was the subject of a contract made within one 
 year before the order and which order and plan were registered witliin a 
 year. 6. That the lands required were by such order and plan suflficiently 
 "set out and ascertained" within the meaning of s. 188, and that the con- 
 tract could therefore be enforced as against the subsequent purchasers for 
 value without notice. Vincent's agreement for purchase of land provided 
 that conveyance should be "subject to any streets or right-of-way that 
 might thereafter be laid out on said lands in order to provide exit to streets 
 south and east of the property." No right-of-way was laid out and no 
 definite locality was determined for such right-of-way.' 7. That this clause 
 did not make the title subject to the implied reservation contained in s. 
 43 (g) of the Land Titles Act. The jirovision of that section is limited to a 
 right-of-way already definitely located and fixed in some way both as to 
 place and as to persons entitled to it. 
 
 Grand Trunk Pacific Ry. Co. v. Vincent, 12 Can. Ry. Cas. 465, 2 Alta. L.R. 
 303. 
 
 Conveyance of lands affected by mortgage. 
 
 The F. Si St. J. Bridge Co., operating a work for the general advantage of 
 Canada, and to which the Railway Act applies, obtained under a special 
 Act a loan of $300,000 from the t'rovvn. for which a mortgage was duly cre- 
 ated under the said Act. iSul)si>qnently the company, under the pretence of 
 disposing of surplus land, sold some of the land so mortgaged to one of the 
 directors of the company. Held, that nothing passed under the said con- 
 veyance. 
 
 Hilyard v. The King, 16 Can. Ex. 3G. 
 
TOLLS AXD TARIFFS. 741 
 
 TOLXS AHD TAXIFraL 
 
 A. Froc^ Sates; Im 
 X. SaaaoaaUHMHK 
 & 
 
 /■riafietiaB of Bailvaj Board, see Railvaj BoardL 
 
 liea far frei^t dtu^gfs. f«r Carrkr^ of Goods. 
 
 BigialatiaB of shippiag sf stem ais affectiiig tolls aad teriSi^ aee CknL 
 
 lE tiiq ug JMta tioB rates, see Fiand and Deoeit. 
 
 Rcs:ii]at]aa of trie^;r^h rates, see Tel^iapha. 
 
 RcgiilatiaB of tdephoae rates, see Tde^oaes. 
 
 Pkaseager tid^ete. see Tickets aad Fares. 
 
 CoBtiaBoas mote, see laterehaage of l^afib 
 
 SUeet raihraj fares, see Street RaOaaya. 
 
 latereiiaii^e of TraAe betvem ^^teaoiship and railwaT «— paaies as eoa- 
 sUlaliag a ooatiBiioits route. 3 Caa. Rj. Gaa. 199. 
 
 Jarisdicttiaa «rf Board respecting joiat tarilb ia cnaaectiaa vitk iater- 
 watioaal thro^^ traffie. 13 Can. Ry. Oul C6. 
 
 DiacreCioa of carriers to fix rates to Meet eoaipetitioB of other traasporta- 
 tioa ageadeB or pMi1cet&. 13 Caa. Ry . Cas. 182. 
 
 B eg a latioa vt rates and tariffs oa tkroo^ traffic 13 Can. Ry. Ck& 35C. 
 
 BwiMss and reodeatial toils. 18 Can. Ry. Caa. 325. 
 
 Eqpializiag of rates to nect lHi»ine!£s coafitiaBa. 18 Can. Ry. Gaa. 337. 
 
 MiDia^-in-transit toD. 18 Cul Ry. Caa. 41-1. 
 
 Authority of station a^ent to create <-peeia] toil*. 19 Can. Ry. Gaa. ICa. 
 
 A. Freight Bates; In GeneraL 
 Disccnrnc^Tio^ — LniBEa mbooccts. 
 
 Upon a complaint of discriaiinatioa on lumber, ties and poles made Itimb 
 cedar it appeared that an increase had been nude in the rates on cvdar 
 pvodBCts withoat any material chaise in the rate oa i ii i am i ia himber and 
 aamilar prodiirt& Thi6 inerea:^ mas made Ivy the taibray eompaay to re- 
 tard the shipment of cedar products required for their ova use: — ^Hrid. 
 a discrimiaatiaa aithin the meanii^ of s. 233. subs. 2. The railway cmb- 
 pany acre ord e re d to cease from lerying rates on cedar prodocts ia excess of 
 the rates oa other de^rriptioBs of lumber aad their prodaeta. ""Caanaon 
 carriers ia making rates casaot arrange themi fiua i an exdasiiw regard to 
 their oam interests, but must have respect to the iaterest <rf those vho may 
 hare occasion to employ their srrrice^ and mast sobordiaate their o«rn in- 
 terests to the rules of relative equality and jestiee." 
 
 Scobell T. Kingston t Pembroke By. Co. (Gedar Lumber Products Caae|. 
 3 Can- Ry. Cas. 412. 
 
 [See a'ko Reynolds r. Western X.Y. J: Penn. Ry. Col, 1 LC. Rep. 6$^: rv^ 
 furred to in Rideau Lumber Co. t. Grand Trunk and Can. Pae. Ry. Cos., 8 
 Can. Ry. Cas. 339.] 
 
742 TOLLS AND TARIFFS. 
 
 Carload lots — Discrimination — Oiled clotuixg. 
 
 Oiled clothing when carried in carload lots is not given a carload rate 
 in the Canadian Freight Classification. Upon an application by the 
 T.O.C. Co. for a carload rating it appeared that carload shipments had been 
 made from Toronto to Halifax for fishermen's use, and it is alleged that 
 shipments might also be made to the Canadian North West for ranchers' 
 use. if the application were granted: — Held, that altliough the discrimina- 
 tion involved in the difference between C.L. and L.C.L. rating has receivcil 
 tacit assent, a shipper has not thereby the right to demand a lower rate on 
 carloads, unless possibly he can shew that the carload rate demanded would 
 l)ay reasonably for tht service and that a refusal would injure his business. 
 Upon the evidence a third class rate for carloads of not less than 20,000 
 poiuids from Toronto to Halifax, Winnipeg and Calgary and other points 
 reached by applicants was ordered. 
 
 Tower Oiled Clothing Go's, Case, 3 Can. Ry. Cas. 417. 
 
 Special concession — Subsequent increase. 
 
 A manufacturing company was granted a special low freight rate for the 
 carriage of logs to its factory, upon condition that this raw material, when 
 manufactured into finished product should be handed over for carriage to 
 the same railway. After several years, the factor}- having in the meantime 
 become sufficiently prosperous to pay a more suitable rate, the rate was in- 
 creased from 3 cents per 100 lbs. to 4 cents for the same weight. Upon ap- 
 plication by the company to the Board to have the old special rate re- 
 stored: — Held, that since the increased rate is neither luijust, unreasonable 
 nor contrary to some provisions of the Railway Act, tlie application must . 
 I)e refused. 
 
 United Factories v. Grand Trunk Ry. Co.. 3 Can. Ry. Cas. 424. 
 
 Concessions in rates — Construction material — M.vcjiiNiacv of indus- 
 trial CORPORATIONS. 
 
 Certain railway companies, members of the Canadian Freight Assn., have 
 been granting a reduction of 25 per cent in freight rates on the material for 
 construction and machinery for equipment of new industrial plant. Leave 
 is now asked from the Board to authorize the continuance of these reduc- 
 tions: — Held, that although the Board is prepared to give due effect to subs. 
 4 of s. 275 of the Railway Act, 1903, it must liave a separate and distinct 
 application in such case, so as to judge of the effect of its order upon otlier 
 industries, shippers and dealers. Application refused. 
 
 Re Canadian Freight Assn. and Industrial Corporations, 3 Can. Ry. Cas. 
 427. 
 
 Freight rates on fruit — Classification — Charges fob icing in transit. 
 On a complaint by the Association, (1) that freight rates on fruits are 
 Unreasonable and excessive; (2) that the charges for icing in transit are 
 too great. (1) By mutual agreement between the complainants and tlie 
 railway companies, certain modifications were made in the classification and 
 approved by tlie Board: (a) Apples in boxes in less than carloads, from 
 second to third class, (b) Pears in boxes and barrels, L.C.L., from first 
 to third class, and in carloads, from third to fifth class; also the following 
 commodity rates, (c) On fresh fruits (small), from the fruit districts to 
 points in Eastern Ontario, Quebec, and the Maritime Provinces, fresh fruit 
 shall be carried at fourth class rates in carloads of not less than 20,000 
 lbs., instead of third class rates, and at second class rates in L.C.L., of 10.- 
 000 lb. and over instead of first class rates; (d) And from points in On- 
 tario and Quebec to \Vinnii>eg, Portage la Prairie, and Brandon, at fourth 
 
TOLLS AXD TARIFFS. T43 
 
 clas nt^ in ear loads of not less than 20.000 lbs., instead of third class: — 
 HeW (2h th*t ti»e present ^stem of making fixed charges for ieing ears, 
 inespcctrse of tht artual cost of such serriee, is not based on sound princi- 
 ple, and must be diseoitinned ; that the actual cost of the ice and the plac- 
 id thereof in the ears shoaM not be exceeded. Pending a deeisi<» of the 
 Board a? to a reasonaUe charge, a charge of not more than $2.50 per ton 
 of 2J0OO lbs. <m the actual weight of the ice supplied was authorized. 
 
 Ontario Fruit Growers' Assn. v. Can. P»e. By. Co. (Fruit Growers' 
 Caae), 3 Cu. Bt. Cas. 430. 
 
 Rates <w sput peas — Elxpowr kaies — ^Rates os ckaix. 
 
 Untfl 27th October. 1902. split peas for export were carried at the rate fw 
 grain products f flour, rolled oat£. etc). A milling etmipany in Port Huron 
 complained to the Inter-State Commerce Commission that railways in 
 Michigan diarged a hi^ier rate, and the rate was then advanced on the 
 Grand Trunk and other railways in Canada. On local shipments the rate 
 OB sfdit peas is the same as the rate on floor. The Pea Millers' Assn. com- 
 plained of the increased rate and consequent loss of the British market: — 
 Held, that the former basis of rates must be restored. 
 
 Fte Millers' Assn. t. Canadian Railway Co's. (Pea Millers Case), 3 Can. 
 By. Cas- 433. 
 
 DlSCVUIIXATlOX BXTWEEX SHIPPEKS — RaTES OS COAL. 
 
 Application was made by the Grand Trunk Ry. Co. for authority under 
 soIk. 4. s. 275 of the Railway Act, 1903, to reduce the rate on bituminous 
 coal to Cobourg u>ed for manufactaring purpt^es by lOc per ton bek>w the 
 published rate, as they hare been in the habit of allowing in the past, on the 
 ground that certain manufacturers were unable to pay the high rate and 
 carry on business succesr-fully : — Held, that the reduction could not be 
 aUowed. The allowance of a reductimi in the freight rate on any article of 
 merriiandise to one class of shippers, and the refusal of the same rate to an- 
 other dass, is unjust discrimination, and forlndden bf a. 252. [Castle v. 
 B. t O. Ry. Co., 8 I.C. Kep. 333. approved.] 
 
 Re Grand T^runk Ry. Co. (Manufacturers' Coal Rates Case), 3 Can. Bj. 
 Ca&.43&. 
 
 rBeferred to in Brant Milling Co. v. Grand Trunk Ry. Col. 4 Can. Ry. Cas. 
 259; followed in Manitoba Dairymen's Assn. r. Dominion, etc.. Express Col, 
 14 Can. Ry. Cas. 142. 7 DXJBL S68.] 
 
 AnnrnLAKT katcs — ^axch axd kais ixsk bates — Coau 
 
 Under certain conditions rates to a point on a branch or lateral line may 
 be higher than to points on the main line, though at a less distance from the 
 junction point: but sudi rates must not be unreasonable or disprop<Htion- 
 ately higher than to nearer points <hi the main line. The plaintiff com- 
 plained that the rates on coal to Almonte from the Niagara and Detroit 
 frontiers were imreasonably high as compared with the rates to Carlettm 
 Juncti<m, Ottawa, and adjacent stations. The rate to Carleton Jimction. 
 Ottawa, and adjarnit stations is $2 per ton from the Niagara frontier, and 
 ^=2.25 from Detroit, while the rate to Almonte is 40e. higher, pmnts on the 
 lateral line frcna Carleton Junction Ageing charged on arbitrary rate above 
 the rate to Carleton Junction: — Held, that cireumstanees warrant a higher 
 rate to Afanonfce than to Carleion Junction and Ottawa; but as to the arhi- 
 
744 TOLL8 AND TARIFFS. 
 
 trary rate to Almonte on lOtli class traffic was only Ic. per 100 lbs. (20c. 
 per ton) it must not be exceeded on coal between the same points. 
 
 Almonte Knitting Co. v. Can. Pac. Ry. Co. and Michigan Central Ry. Co. 
 (Almonte Knitting Co. Case), 3 Can. Ry. Cas. 441. 
 
 [Followed in Malkin & Son v. Grand Trunk Ry. Co., 8 Can. Ry. Cas. 183; 
 Can. Portland Cement v. Grand Trunk, etc., Can. Hy. Cas. 209; Frederic- 
 ton Board of Trade v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 439; Ilunting- 
 Merritt Lnmlicr Co. v. Can. Pac. and British Colnml)ia Elec Ry. Cas. 20 
 Can. Ry. Cas. 181.] 
 
 Tolls — Sialilar circumstaxcks — Reduction for cartage — Speclal tar- 
 iffs. 
 
 The Railway Act, 1903, requires equality in the tolls charged under sub- 
 stantially similar circumstances and conditions, and forbids discrimination 
 between individuals, persons, companies and localities. S. 252. No varia- 
 tion from the authorized tariffs of tolls can be made unless under circum- 
 stances or conditions specially provided for in such tariffs or by special 
 tariffs of general application and not discriminating between different 
 localities. Ss. 261-262. For many years prior to 1904 an allowance was 
 made by the railway company to the owner of a mill distant one mile from 
 the nearest railway station, for the cost of cartage of flour and feed shipped 
 from his mill by tlie company's railway to distant points. This allowance 
 was withdrawn after the Railway Act, 1903, came into force. Tlie mill own- 
 er applied to have the allowance restored, alleging that its continuance was 
 necessary to the existence of Iiis business: — Held, that the application either 
 for a continuation of the allowance previously made, or for a change in the 
 authorized tariffs of tolls, in favour of the applicant alone, must fail. 
 [Manufacturers' Coal Rates Case, 3 Can. Ry. Cas. 438, referred to; Stone 
 v. Detroit, etc., 3 I.C. Rep. 613; Hazel Milling Co. v. St. Louis, etc., 5 I.C. 
 Rep. 57; Re Division of Joint Rates, 10 I.C. Rep. 681, followed.] 
 
 Brant Milling Co. v. Grand Trunk Ry. Co, (Brant Milling Co's. Case.), 
 4 Can. Ry. Cas. 259. 
 
 [Referred to in Crow's Nest Pass Coal Co. v. Can. Pac. Ry. Co.. 8 Can. Ry. 
 Cas. 33; followed in Montreal Produce Merchants v. Grand Trunk, etc., 
 9 Can. Ry. Cas. 232; Michigan Sugar Co. v. Chatham, W, & L. E. Ry. Co., 
 11 Can. Ry. Cas. 354.] 
 
 Rates on stone — Mileage basis — Existing industries. 
 
 In the making of rates for the carriage of freight the question of the 
 distance of haul while important to be considered is in many cases a 
 minor consideration. Where large quarries have been established and 
 capital invested for many years upon the faith of law rates for the 
 carriage of stone being given; upon application by the railway companies 
 for an increase of five cents a ton within certain areas, an application 
 was made by the operators to estal)lisli new rates upon a mileage basis 
 for points within a radius of fifty miles from the i)rincipal market: — 
 Held, that as the adoption of such a rate would destroy many existing 
 industries, and in no way reduce the price of stone to the consumer, but 
 enure very largely to the benefit of the ajjplicants, or some of them, the 
 application should be refused, and a new scale of rates as recommended 
 by the Chief Traffic Officer based upon the existing system Avas ajiproved. 
 
 Doolittle & Wilcox v. Grand Trunk & Can. Pac. Ry. Cos., (Stone Quar- 
 ry Rates Case), 8 Can. Ry. Cas. 10. 
 
 [Followed in Saint David's Sand Co. v. Grand Trunk and :^nchi.r}in 
 Central Ry. Cos., 17 Can. Ry. Cas. 279; Hagersville Crushed Stone Co. 
 
TOLLS AND TARIFFS. 745 
 
 T. ICdk^aB Gentzml By. Col^ ±2 Cu. By. Cas. M: dUthignidbfd in Pro- 
 vnoal Stow ft Si?^ Co. ▼. Can. Pac Rr. Co., 22 Cuu Rr. Ois. 411. 
 
 Fbexght kaxbs — Shokt aj» Jjosa rous — ^Discsmxxjtnox — SifxxiL, lo- 
 cal AXm JOEST ZASIFX<S. 
 
 Oa a eoaplaint to tbe Board of aajnst dun-iminauoB brrvtwii tbe 
 rates oa tekgiaph, tole|AoDe and tndlcy pol«$ and those on lumber and 
 other fHcit pradnets: — Held, f 1 » tliat the rates char^^n-d on pole$ loaded on 
 one car skall aoC be grmter than those on eonunon lonriwr as provided in 
 the special, local and joint tariffs of the railvay eompaaies. {±* That 
 oa poles so km^ as to require more than one car for their carriase the 
 railnays he authorized to charge 20 per cent higher than for on«' car. 
 (3) That poles may be exported by Canadian railway companies vith the 
 luiiirnnn of their United States eonneetions under joint rail rates 
 for gCBcnl traffic at the lumber classification. [Scobell t. Ki^stoa ft 
 Paahcake By. Col, 3 Can. By. Cas^ 412. r^emd to.] 
 
 Rideaa Lnber Co. et aL v. Grand Trunk and Can. Psc. By. Cos^ 8 
 Can. Bj. Gas. 339. 
 
 Exrorr tsaffic — Twmmvsai. chjubgesi — Comj«tition betwees oceax roars 
 
 CSKEASOXABL£XESS AXD C^JTST USCaDflSATIOX BErrXDK. 
 
 Jkpplicatiaa (li that the exporter of dieese ia Montreal should be 
 pisced upoa as favourable basis as to terminal char^pes at the port of Mon- 
 tical oa his expt^t traffic as his conqietitor vest of Montreal. (2i that 
 fn^^t tolls oa dMese should be put on a parity with tho«e on bacon. 
 (3) eoaiplaiaing of alfeged advances in freight tolls. It appeared that 
 ch ee jc may be shipped direct to transatlantic ports from Ontario points 
 via Montreal on a joint rail and ocean bill of lading, or shipment mi^t 
 be nmde on a separate rail and ocean bill of Iadia« to Montreal for stor- 
 a^ and snbisei|ocnt export. In the first case cheese shipmcats are svitchc*! 
 direct to the steamship piers, the vharfa^ and Port Warden's fees bein|r 
 ahaorfaed fay the raihray companies to meet tbe competition betveen Cana- 
 dian and United States ports and carriers. In the second case the cheese 
 is carted from the cars to the warehouse of the exporter and a^ain froaa 
 the warefaoose to the steamship piers. The Montreal exportn* is diar^ged 
 for inward carta^. i.e.. from ears to warehouse, wharfage and Port 
 Warden's fees, these two latter diarges are absorbed in tke case of his 
 westnn c«aBpetit<H-: — Held. (1) that the Montreal exporter should not 
 be placed upon a more faronraUe basis than his western competitor. (2i 
 That no c(»parisoo could be made between switching char^^es and in- 
 ward cartas charges in order to reduce the latter. thMe cartage charges 
 not shewn to be unreasonable and im justly discriminatory: the portion 
 of the complaint as to inward cartage diaries should be dismiThsed. (3* 
 But held, also that so laa« as the port charges are absorbed oa ship- 
 meats oa joint rafl and ocean bills of lading these diargcs should also 
 be absorbed oa shipmoits oa separate rail and ocean bills of ladins for 
 suhasqnent export, as the snriccs are identical in each case, and that a 
 tariff cmfaodyi^ these provisions should be filed. (4) That the ^plication 
 to pat chee ji e and bacon oa a parity should be disauned. this beii^r a phase 
 of the eompctitiaa of markets, and the railway cmnpanies have it in their 
 dtscretioa whether or not to make tolls to meet the competition of markets. 
 > 3 1 That the complaint of the advance in freight toils should be dismissed, 
 the cartage charges being really attacked and it has been shewn to be doe 
 to increased cost of service which the shipper or consignee does not pay 
 entirely but a portion is paid by the railway companies. (6| That the ap- 
 plication for refunds should be refused, being only allowed when provided 
 
746 TOLLS AND TAEIFFS. 
 
 for in the tariffs, and the Board lias no power of retroactive action. [Brant 
 Milling Co. v. Grand Trunk Ry. Co. (Brant Milling Co.'s Case), 4 Can. 
 Ry, Cas. 259; Lancashire Patent Fuel Co. v. London & North Western Ry. 
 Co., 12 Ry. & C. Tr. Cas. 79, and Lasalle Paper Co. v. Michigan Central 
 Ry. Co., 16 I.C.C. Rep. 149, followed.] 
 
 Montreal Produce Merchants' Assn. v. Grand Trunk and Can. Pac. Ry. 
 Cos., 9 Can. Ry. Cas. 232. 
 
 [Followed in British Columbia Sugar Refining Co. v. Can. Pac. Ry. 
 Co., 10 Can. Ry. Cas. 169; Can. Oil Co. v. Grand Trunk, etc., 12 Can. 
 Ry. Cas. 351; Graham Co. v. Canadian Freight Assn. 22 Can. Ry. Cas. 
 355.] 
 
 CONSTBUCTIOX TARIFFS FlUNG. 
 
 This question of the powers of a railway company to carry traffic, 
 under what are called construction tariffs, i.e., during the period of con- 
 struction, arose on a complaint respecting the tolls that the railway 
 company was charging on lumber from points in British Columbia to points 
 in Saskatchewan, situated on branch lines, still under construction. The 
 railway company submitted that these construction tariffs were a public 
 convenience, and that since the operation of the branch lines had not 
 been authorized by the Board, when the construction tariffs were issued, 
 it would have been useless to file them, as the Board would have no au- 
 thority to approve them: — Held, (1) that the tolls charged in the case in 
 question were all illegally collected in violation of the express provisions 
 of the statute. (2) That under s. 261 of the Railway Act, 1906, no rail- 
 way, or portion thereof, without the leave of the Board, could be opened 
 for the carriage of traffic other than for the purposes of construction 
 of the railway. (3) That under s. 327 of the Act, standard freight tariffs 
 must be filed, and subs. 4 of that section prohibits the company from 
 charging any toll until the provisions of the section have been complied 
 "vvith. (4) That subs. 5 of s. 314 of the Act, prohibits the company from 
 charging, levying or collecting any money for any service as a common 
 carrier, except under the provisions of the Railway Act. 
 
 Baker, Reynolds & Co. v. Can. Pac. Ry. Co., 10 Can. Ry. Cas. 151. 
 
 [Followed in Randall et al. v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 252; 
 Re Edmonton, Dunvegan & British Columbia Ry. Co., 19 Can. Ry. Cas. 
 395: Riverside Lumber Co. v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. i?.] 
 
 I'^guALizATiON — Tolls on manufacturkd pkoducts — Discrimination — 
 Competition. 
 
 Application by Winnipeg and St. Boniface manufacturers of metallic 
 shingles and siding for an order directing the railway company to equal- 
 ize the tolls on those products as compared with the tolls on the unmanu- 
 factured product. The Western manufacturers submitted that tliey were 
 subject to imjust discriminaton in competition with Eastern manufacturers 
 of the said products from the fact that the tolls were liigher on the unman- 
 ufactured product than on the manufactured product of Western Canada: 
 — Held, that as conditions hav^e changed and nuinufacturers of the said 
 ])roducts have been established in W^estern Canada, order No. 653 dated 
 July 5th, 1905, fixing the tolls complained of should l)e rescinded. 
 
 Kemp Manufacturing & Metal and Winnipeg Ceiling & Roofing Cos. v. 
 C an. Pac. Ry. Co., 10 Can. Ry. Cas. 161. 
 
 Grain tariffs — Mileage basis — Equalization. 
 On an application to direct the railway companies to equalize their 
 
TOLLS AXD TARIFFS. 747 
 
 tolls on shi y e B ts of grain fnHB tlieir Lake HaroD and Geoivian Bar 
 delators to iatnior points in Ontario and Quebee vith those charged 
 fnMB Hoatnal to the same points. The railvaj eooipaiuets hare been. 
 >ince the morement of grain from Manitoba eommemwd, charging special 
 es-lake toUs. mostly to grain milk in Ontario and Quebec and sealing 
 them down on a mileage lM;3is for a distance of SiS miles; while oa ex-water 
 shipments to the same points through Montreal. Kingston and other lower 
 lake ptMts theT hare been charging the full domestic tolls: — Held (ll, 
 that the tolls on shipments of grain from Teasels to cars between IXefwt 
 llarfaoor and Montreal, indu^ire. shall be the *»me for equiralent dis- 
 tances from all lake and river porta. (2 if That on graiB tnmshipped at 
 ports west of Montreal to points east thereof, to which throng tolls are 
 lased on arbitraries. the wceto^ portion of the tolls shall be based <» 
 St. Henry and Oatranent mileage in the case of the Grand Trunk and 
 Canadian Pacific respectirely. (Sn That railway companies shall gire 
 effect to the above two holdir^ss by filing special tariffs^ 
 
 Montreal B<wrd of Trade v. Grand Trunk and Ckn. Fae. By. Cos., 10 
 Can. Ry. Cas. 319. 
 
 Caktacc toll — Railway axd t«A5sfo«t coscfaxies — OoyiKACT. 
 
 Coimdaint that the charge for cartii^ a marble slab to the freight sheds 
 of the railway company from the premises of the oonsignor in Montreal 
 was excessive. The Diominion Transport Co. by contract with the Cana- 
 dian Pacific Ry. Co. had the sole and exclusive right to cart freight to 
 the freight sheds of the railway company in the city of Montreal for out- 
 ward shipmat. The cartage was included in the railway company's 
 fre^ht bin aand paid by the consignee at Hamilton. The company's cart- 
 age tariff approved by the Board did not include any item covering a 
 charge for carting marble slabs in Montreal : — Held. ( 1 ) that the diarge 
 for cartage was under the authority or consent of the railway company, 
 and was a toll within the meaning of subs. 30, s. i. Railway Act, amended 
 by a. 9. c 61. 8 Edw. YTI. which must be included in a tariff filed and 
 approved by the Board under subi^^ ~t. s. 314. Railway Act, amended by 
 e. 11. c. ei. S Edw. YTI. C3 4 That the railway cinnpany had no 1^1 
 right to collect the charge for cartage and an order should go declaring 
 it to be iOegiL 
 
 Stewart v. Can. Pac. Ry. Co.. 11 Can. Ry. Cas. 197. 
 
 (Fdlowed in Re Cartage Tolls, 19 Can! Ry. Cas. 3S9.1 
 
 CLASSinCATIOS — CaKTAGE TABIFrS DlTFEBEXT WEIGHTS. 
 
 Coaplaint by reason of the note to Rule 12 in the Classification requiring 
 f^fes of 1,000 lb& each, or over, to be loaded and unloaded by the owners 
 and the same exception appeared in the cartage tariffs. Rule 12 provided 
 that freight weighing 2.000 pounds or more per package must be loaded 
 and luloaded by the owners. The respondent subnutted that special xf- 
 hicles and appliances were required for moving such safes, that more 
 men were necessary, that it was an unusual service and involved uncsual 
 expense: — HekL (li that the note flavoured of different trvatment to 
 manufacturers of safes than that extended to manufricturers of machinerv. 
 and must be struck out of the classification and the cartage r^ulations 
 amended aceordi^^y. 
 
 Taylor v. Canadian Freight Jkssn.. 12 Can. Ry. Gas. 8. 
 
 CLAssmcATiox — REDrcnox — Ctrr clakswa«e — Chxxawakk. 
 
 An application to reduce the rating on cut glassware from double first- 
 class to first-class as on chinaware: — Held, (Ij that the application should 
 
748 TOLLS AND TARIFFS. 
 
 be dismissed, the reduction not having been shown to 1« in the public in- 
 terest or of l)enefit to the consumer. 
 
 Cut Glassware Importers v. Canadian Freight Assn., 12 Can. Ry. Cas. 
 10. 
 
 Classification — Minimum weight — Mixed caeloads. 
 
 An application to change Rule 2 (c) of the Canadian Classification 
 so as to permit the sliipment of mixed carloads of trunks, valises and 
 saddlery as 3rd class, subject to a minimum weijiht of 14,000 lbs. In West- 
 ern Canada, the rating now in force in the East, but subject to a minimum 
 weight of 20,000 lbs. The respondent object<>d to trunks and valises be- 
 ing placed in the saddlery list and subject to a minimum weight of 
 less tban 24,000 lbs. the minimum weight for saddlery alone: — Held, (1) 
 that trunks and valises should be added to the saddlery list for shipment 
 West of Fort William. (2) Tliat the existing minimum weight of 24,000 
 lbs. should apply. (.3) 'ihat the classification distinction under clause (c) 
 of Rule 2 should remain in force. (41 That the existing arrangement, 
 although a compromise and perbaps illogical, caused, less dislocation of 
 business and discontent among shippers than the following of a rigid 
 principle and should not be disturbed. 
 
 Lamontagne v. Canadian Freight Assn., 12 Can. Ry. Cas. 291. 
 
 Classification — Rating — Tobacco tolls. 
 
 An application for approval of Siipplement No. 1 to the Canadian Clas- 
 sification No. 15, increasing tbe rating on L.C.L. and C.L. cut and plug 
 tobacco. The applicant based the proposed increase on the value of the 
 commodity, but did not present exact information regarding values or 
 shew that otlier factors affecting classification would justify the increase. 
 The respondents submitted that the damage claims were infinitesimal, 
 the movements in and out were large and profitable, and that the risk, 
 weight, and space concerned would not justify the proposed increase in 
 the C.L. rating from 5th to 4th class, and in the L.C.L. rating of plug 
 tobacco from ;}rd to 2nd class: — Held, that while it was proper to mod- 
 ernize the terminology of the classification to harmonize with trade con- 
 ditions, such cbanges should not veil increases which must be made upon 
 their merits; that the proposed increase would mean a serious disloca- 
 tion of business and the application should be dismissed. 
 
 Canadian Freight Assn. v. Tobacco Merchants, 12 Can. Ry. Cas. 299. 
 
 Classification — Commodities — Gasoline and blauga.s — Competition — 
 Equalization. 
 
 An application to give the same rating in the classification to blaugas 
 and gasoline on tlie ground that there was competition between the two 
 commodities: — Held, (1) that tbe value of a commodity should justify 
 its rating when compared with the value of a similar commodity. (2) 
 That the ratio of the toll to the value is much higher on gasoline than 
 on blaugas. (3) That tbe pressure of the freight toll is much less on 
 blaugas, a much more valuable and claimed to be more efficient commodity 
 than gasoline. (4) That tbe heavier container used was an increase in 
 the cost of production which should not be equalized by the railway com- 
 pany when fixing the rating. (5) That the application must be dismissed. 
 
 Blaugas Co. v. Canadian Freight Assn., 12 Can. Ry. Cas. 303. 
 
 [Followed in Roberts v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 350; Water- 
 loo v. Grand Trunk Ry. Co., 24 Can.Ry. Cas. 143.] 
 
TOLLS AKD TARIFFS. 749 
 
 Locu. A3a» isnmr — Eqcauzahos — CufaiaBSTT k&xes — Toutme or imir- 
 ric- 
 
 ^jliiirarinB mder & S£3 oi tiw BaihraiT Jket, 190ft. to dballaw the pro. 
 posed immmae m the toik <■ kaj shin^d fra* Oatario and Qnehnr to 
 certam poiats ia the Uwted Statesw The RspoBdeat kad iBOCMsnl the 
 toll i cods per 100 lbs. ■nkias the local and export tolls eqioL The 
 II iiiiihai aahaitted that the oU tarilT vas aot fitiriy RwneratiTe vW« 
 the Httane of the serrice aod the cnaditiaBS mmitr vhidi it vas Radered 
 was tafccB iato aerooBt aad that the foUonri^ co Mp Jc n o t pccaliaritie^ 
 disto^uA this fraai other tialfie, fl| Movoaeat spaonfie, aot capable 
 «rf beistg ioRseea aad aot onmiia g vith aav r^vluitT a« to ToluBae: 
 «:>) ■HKCMnt affected br asages of the tnde'aad laek of tcnaiaal facili- 
 ties at the chief aMikets of the Uaited States, resolti^r ia estrnBe de- 
 txatJOB at cai« aad their diTer&na to 1 1 aaili. ^acis. It was alao snli^ut- 
 ted that thoe had beca a gnat aad afonseea ianeaae ia the cost of 
 eoBStraetiaa aad c^eiatiaa: — Held. (1) that the poiats aijtid wvie faic- 
 tora that auj^kt pmperlr be coanderad ia ■■Iriaj. wodi tT latcs bat 
 were aot icaaoM for iaoeasap the lates alreadr cslabGahed with the 
 kaowle^ge patiieiiiwd br the bwmers at traSe fwaditinai ii» That the 
 To iaii of gieanal trmttte had iaocased ataaoot pari posaa with the ia- 
 oease ia tte cost^ of coiKitrBrtiaa aad oporatioa. (3) That the preseat 
 tons acre fsirhr nmnaeratiTV aad all ttaft the traSr caa bear. (41 
 Thst an the traffic iacreaacs ^unld be disallowed, the respoadeats aot 
 hariag jutified thcwL 
 
 lIoatRal Hai- Shippers^ A^sn. t. Caaadiaa Froght ilssa, 13 Gul Rt. 
 Cm. 142. 
 
 Tkatfic — ^AnorrwKXjkL tou. — Cumatic cwjownoxs. 
 
 A p p li c a tioa to Rstxaia the respoadcat frvat aakii^ aa additioaal Amrpt 
 of 39 ccats per 100 lbs. for a iH e iti te aot alwavB perfonaed. Dori^ the 
 wiater seasoa owia* to cBiastir casHlitiais traffic roatcd to Priace Bdvaid 
 Idaad was carried by steaaer firoat Kctoo nther to Charlottcfawa or 
 Geori^etowB. What the haihaar (rf CharktteCowa was blodted with ke 
 the traffic was carried hr stcaiacr to Ceo r gtt owa thcace br rail to Char- 
 lottctowa. For the latter serriee aa additioaa] char^ of 5iO mrnts- per 
 IW Aa. was ande. hot the niap chai]^ was made wfaea the traffic wai> 
 carried bgr stealer to Chariotftetowa direct. The trooble oalr aro$e whca 
 the traffic was prepaid aad the shipper aot kaowis^ W which route the 
 tndfe waald note had to sake the higher parneat: — Hdd. flU that 
 the r e rpo ad eat nract he restraiacd frooi coDectii^ this additioaal toll oa 
 traffic mt»rmg to Isiaad poiats ria Pietoo-Cha iluttelo w i a note, aad arn^t 
 file a tariff or tariffs to naioii du$ anoatalr. satisEictorr to the Chief 
 Traffic Officer. 
 
 Halifax Board of T^de r. Caaadiaa Express^ Co. 13 Caa. St. Cas. 432. 
 
 ^TArnxvE con<OKATio:ss A3n» offkcks — Ustt ix coxraotL — ^Festjpb kaic^. 
 
 Where oae raflwaj coapaar owaia^ SI per ccat of its stork has de 
 facto cootrol trf a a uthri railwar canpaar. altho^^ ^ber are separate cor- 
 p»atioas with a separate set tii ofitera» the two coaapaaies for the par- 
 pose of fixi^r rates, ^oold be treated as oae coHpaar. 
 
 WtHc IGllia* Co. r. Caal Rat aad Kii^stoa t Paalwoke Rt. Cos_ 14 
 Caa. Rt- Ca*. 5. S DJJBL **?. 
 
 rSee WTBe HiUi^ Co. t. Caa. Pac. Rt. Oil, 14 Caa. Rr. Qkb. 8, S 
 DX.R. »S3: OliTcr-Scriai Lomlier Co. t. CaJa. Plae. aad EsqoiMlt ft Xaa- 
 aiw> Ry. C<», 17 Caa. Rr. Cas. 3*4.] 
 
750 TOLLS A^D TARIFFS. 
 
 Tolls — Reasoxarlexess — Decisions of interstate commerce commis- 
 sion. 
 
 The Board is concerned v.ith the correction and not primarily with the 
 initiation of rates. The Board nnist find its criteria of the reasonableness 
 of Canadiaan rates within C'anadn and while appreciating the regulative 
 work of the Interstate Commerce Commission (U.S.) and treating the 
 hndings of tliat Commission witli great resi)ect, will investigate for it- 
 self tlie special circumstances of all cases coming before it. [Manufactur- 
 ers' Coal Rates Case, 3 Can. Ry. Cas. 438; Canadian Oil Cos. v. Grand 
 Trunk Ry. Co., 12 Can. Ry. Cas. 350. at p. 3.)5, followed.] 
 
 Manitoba Dairymen's Assn. v. Dominion & Can. North. Express Cos., 
 14 Can. Ry. Cas. 142, 7 D.L.R. 868. 
 
 [Followed in Riley v. Dominion Express Co., 17 Can. Ry. Cas 112; Re 
 Telegraph Tolls, 20 Can. Ry. Cas. 1.] 
 
 Sajie commodity for different uses. 
 
 On further consideration of a former order allowing express companies to 
 charge higher rates on cream for domestic use than on. cream to creameries 
 for butter making, the Board held that such dual rates are anomalous and 
 inexpedient, and having already established uniform rates east of Port 
 Arthur on cream irrespective of its ultimate use, the Board in this case di- 
 rected the express companies to install a tariff west of Port Arthur on the 
 same principle. 
 
 Manitoba Dairymen's Assn. v. Dominion and Can. Northern Express Cos., 
 14 Can. Ry. Cas. 142, 7 D.L.R. 868. 
 
 Classification — C.L. rating — Gramophones and graphophones — 
 "MitsiCAi, instruments." 
 
 Gramophones and graphophones should be classified with musical instru- 
 ments and given a second-class carload rating. 
 
 Berliner Gramophone Co. v. Canadian Freight Assn., 14 Can. Ry. Cas. 175, 
 3 D.L.R. 496. 
 
 Tolls — Refining-in-transit. 
 
 The Board has no jurisdiction to regulate refining-in-transit rates except 
 wlien such rates discriminate imjustly in favour of one point against an- 
 other. 
 
 Dominion Sugar Cb. v. Canadian Freight Assn., 14 Can. Ry. Cas. 188. 
 
 Relation of rates on raw material and finished product — Equalizing 
 cost of production at various points. 
 
 Carriers are not required to adjust their rates (apart from the general 
 question of reasonableness) in such manner as to equalize cost of manufac- 
 turing i)roduction in different sections; nor is it necessary that rates on 
 raw material and finished product should be so related as to tend to that 
 result. 
 
 Dominion Sugar Co. v. Canadian Freight Assn., 14 Can. Ry. Cas. 188. 
 
 Geo<;raphical advantage — Foreign rail routes. 
 
 In considering geographical advantage as an element in rate regulation 
 the Board must recognize existing rail conditions in Canada as it finds 
 them, and as, e.g., Wallaceburg and Montreal are practically equi-distant 
 from Winnijieg by rail routes within Canada, Wallaceburg is not entitled to 
 a lower rate than Montreal by reason of geographical advantage though over 
 foreign roads its distance from Winnipeg is much shorter. 
 
 Dominion Sugar Co. v. Canadian Freight Assn., 14 Can. Ry. Cas. 188. 
 
TOLLS AXD TARLFFS. 751 
 
 T«xs FOB CABXA<aE: — ^IxcBEASE — JciusDicnox. 
 ■ Although cartage companies per se are not under the jorisdietion of the 
 Board, the charge made for cartage br railway companies is a toll under s. 
 2 (30 1 of the Kailwar Act. and must be approved by the Board. The tar- 
 iff of tolls filed by the railway cmnpanies increasing the tolls for cartage to 
 the shipping public from two coits a hundred and fift«pn cents for smalls 
 to three cents and twenty cents. respectiTely. was amended by the Board to 
 two and a half cents a hundred, and the present toll on smalls continued. 
 The increase was approved on account of the advance in the cost of horses, 
 wages and feed during the last few years. 
 Re Cartage ToUs. 14 Can. Ry. Cas. 3T2. 
 
 CtASsmcATios — Cost or traxspobtaiiox asd DiST«iBmox — Sedcctiox 
 
 rs KATIXG. 
 
 The object of a freight classification is the distribution of the cost of 
 transportation, but a refinement of it is impossible with the limited num- 
 ber of merchandise classes, and goods have therefore to be broadly grouped. 
 A reduction in the rating of the dearer c<munodities that are able to bear 
 higher carrying toll must necessarily tend to curtail the abUity of the car- 
 rier to make lower tolls, without which cheaper ccnnmodities cannot move 
 ■t a profit. 
 
 Montreal Board of Trade v. Canadian Freight Assn., 15 Ckn. Ry. Cas. 429. 
 
 Classificatiox — C-L. axd L.CJ*. Traffic. 
 
 The Board refused an application to add flannelette sheets to the dry 
 goods list of the Canadian Freight Classification at the same rating pro- 
 vided for Cotton piece goods."' viz., L.Ci. 2nd class, and CX. 4th class, 
 instead of a rating 1st class in any quantity with no C.L. rating as in 
 United States Oflfcial and Western Classifications. 
 
 Montreal Board of Trade v. Canadian Freight Asai., 15 Can. Ry. Cas. 429. 
 
 CUIfiSIFICATIOX C-L. KATIXG GbOCERV LIST. 
 
 Peanut butter, having been included in the grocery list, should be given a 
 fourth class carload rating, with jams and jellies with which it is in com- 
 V^etition. 
 
 Toronto Board of Trade t. Canadian Freight Assn., IS Can. By. Cas. 442. 
 
 FnX TAWFF TOUJS OoiU«»ITr — COXXBCTIXG CABBIEX — ^UXBEinrXKBATITB 
 
 BTSIXESS. 
 
 The Board ordered an express company to establish a nmunodity toll for 
 carriage of milk by express for delivery to a connecting express company in 
 the United States, and in so doing overruled the respondent eompany's 
 objection that it did not want the business unless at its full tariff toils, but 
 suspended operaticm of the order pending proof that a toU had been agreed 
 upon with the foreign ctHinecting carrier which would permit the carriage of 
 the commodity to its destination in the foreign country. 
 
 Farmers" Dahj and Produce Co. v. Can. Pac. Ry. Co., 17 Can. I^. Cms. 
 106. 
 
 PaWTT <»■ T(HXS — COMlfOX POIST. 
 
 The tolls on lumber from Golden, tm the main line of the Canadian Pacific 
 Ry., to prairie destinations should be put on a pari^ with the tolls fnnn 
 corresponding points <» the Crow's Nest Branch to the same destinations 
 via the same common point. 
 
 Mountain Lumber Manufaetnrers* Assn. t. Can. Fbcl By. Co. (Golden 
 ToU Case), 17 Can. Ry. Caa. 285. 
 
752 TOLLS xVXD TARIFFS. 
 
 Cr.AssiFicATiox — C.L. — Toll — IIigukst minimum weight. 
 
 The provision in tlie respondent's tariffs, west of Lake Superior, thjit 
 dilTerent commodities may be consolidated into C.L. lots at C.L. tolls, but 
 wlien these commodities in such mixture take different ratings if shipped 
 separately in straight C.L. lots, the entire mixed lot is charged the highest 
 C.L. tolls and the kighest minimum weight; (rule 2 (c) ) follows tlie prac- 
 tically luiiversal rule in freiglit classification and will not be disturbed by 
 the Board. 
 
 British Columbia Central Farmers' Institutes v. Can. Pac. Ivy. Co., 17 
 Can, Ry. Cas. 431. 
 
 Open fob traffic — Coxstruction tariff — Jurisdiction. 
 
 Under s. 261, of the Hallway Act, 1906, a section of a railway is either 
 open or not for the carriage of traffic, and the Board has no jurisdiction to 
 enlarge the Act by allowing a railway company to charge tolls under con- 
 struction tariffs during tlie ]jeriod of construction. [Baker. Reynolds & Co. 
 V. Can. Pac. Ry. Co., 10 Can. Ry. Cas. 151, followed; I^enhart v. Can. 
 Northern Ry. Co., 17 Can. Ry. Cas. {);>, referred to.] 
 
 Riverside Lumber Co. v. Can. Pac. Ry. Co.. 18 Can. Ry. Cas. 17. 
 
 [Followed in Re Edmonton Dunvegan & B.C. Ry. Co., 19 Can. Ry. Cas. 
 .305.] 
 
 Settler's effects — C.L. lot — Scope of aoext's duties — Excess charges. 
 
 Excess freight charges collected at destination in respect of a carload lot 
 of settler's effects over and above the amount quoted at the point of ship- 
 ment and on the faith of which quotation the shipment was made may be 
 recovered by the sliipper who paid tlie same under protest; the contract 
 by the railway agent for a lower rate than the ordinary one w^aa within tha 
 apparent scope of the agent's authority and being in respect of settler'* 
 effects it was permissible under s. 341 of the Railway Act, 190C, for the 
 railway to make a specific bargain to carry one lot of such goods at a re- 
 duced rate subject to the action which the Board may take under s. 341 to 
 extend or restrict the railway's power in that respect, and the low rate 
 quoted inadvertently was therefore not illegal as an unjust discrimination. 
 [Toronto V. Grand Trvmk and Can. Pac. Ry. Cos.. 11 Can. Ry. Cas. 365; 
 Toronto and Brampton v. Grand Trunk and Can. Pac. Ry. Cos. (Brampton 
 Commutation Rate Case (No. 2) ), 11 Can. Ry. Cas. 370, distinguished.] 
 
 Watson V. Can. Pac. Ry. Co., 19 Can. Ry. Cas. IGl, 20 D.L.R. 472. 
 
 Construction of tariff — Ixtention — Language. 
 
 Tariffs are not to be construed by intention. They are to be construed ac- 
 cording to their language, ^^'here a tariff prescribing certain tolls is headed 
 "machinery," although the articles contained in the item are those used in 
 connection with tanning, the same tolls are available for machinery of other 
 types such as for a pulp mill. 
 
 Spanish River Pulp & Paper Mills v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 
 381. 
 
 C.L. — Paper tarot — General order. 
 
 As a general order for milk in car loads (C.L.) would be practically or- 
 dering a paper tariff, and little or no milk would move under it, the Board 
 will not fix a C.L. toll based upon a minimum number of cans of milk. 
 The general order providing that shippers supi)ly men to assist in unloading 
 emjdy milk cans was affirmed. 
 
 Milk Shippers v. Grand Trunk, Can. Pac. etc., Ry. Cos., 19 Can. Ry. Cas. 
 383. 
 
TOLLS AXB TARIFFS. 753 
 
 GLASSIFICATiOX — EsCSTnOXJU. TOLL — GkSEMAL GOOBS — ACTVJkl. lOSSES- 
 
 GeMcal goods cammat be canied as scCSlos* effects; the exceptioaal toll 
 amUr applieo to tte actoal ponessiaas of pergoas niorui^ from the cast to 
 the vest with a riev of lirug; there, aad the preseot tariff is to be strictlj 
 enforced im this regard. 
 
 Be Settlexsr Effects. 19 Can. Rj. Ca& 3ST. 
 
 CoxMOBCnKS — Ci^A&siFicjiTiax — ^TKAFnc casntTtoss. 
 
 Im the ease of tvo comnodities.. palpwood sad brick, vhidi are both 
 tcath daas, mo^iag at a caaamoditT tolL identity of daaciication, ratin* 
 and aiaulari^ of pric« jn»tifT a s^imilar toll treatinent, mleaa th»v are 
 additioaal traffic condition^' to be coni'idefvd. »iich a« loading and coBseqnent 
 t4>fi"g povvr. [Canadian Freight Asai. \. CadveD Sand I: Gra^iel Co.. la 
 Can. Rt. Ca& 1^; Inteniatiaiwl Paper Co. r. Grand Trank, Can. Pac. and 
 Can. Northern Rj. Co». (Pnlpvood Ca^i. la Can. Rr. Ca:$. 111. folkwed.] 
 
 Ai^er cC aL T. Grand lYonk and Can. Pac. Rj. Cos^ 19 Can. Bj. Gas. 401. 
 
 Toaaatex cocrsnT — Jraisoicnoy. 
 
 The Board has no jurbdictioa orer tolls chatged bj carriers in a 
 foreign coontnr {IIJ^-A.!. The tM <n steel via. Minnesota Transfnr (St. 
 Paul), orn- the Soo Line to Moo«e Jav. and thencv by C.P.R. to Calg^arr 
 heii^ hitler than via Winnipeg to Calvary, but there bein« no differ e nc e 
 in the toil treatment in lespect oi movements in Canada as betvcen simi- 
 lar BOTcnKnts into and oat of Winnipeg and into and oat of Mooise Jav, 
 no relief can be ^ren by the Board. Complaint against freight tolls on 
 steel to be fabricated for Ividge coBstmetion. 
 
 Saskatcfaevan Bndge 4 Iron Co. t. Sault Ste. Marie Ry. Col, 19 Can. 
 Ry. Caa. 443. 
 
 Lon-EX C06T or moDCcnox — EQrAuzAnox — Go MfKim oy — ^Mabkct — 
 
 MCTDfirV VDCHT. 
 
 It is not part of the oU^atioa of carriers to eqoalize the coat of pro- 
 dartkm through lover tolls so that all may compete on an even keel in 
 the same market. Carrin^ are not justified in imposii^ tolls on the 
 mme cwmodity differing accordii^ to the «ae to vhi^ it is pot: the 
 saam inhibition attoches to a differentiation of mininmm n«ighta for the 
 »ame reason, nor are they under obligation to so adjust nuniamm vc^hto 
 as to offset any inherent diitadTantages of the basinesB. [Western Retail 
 Lamhcrmen's Assn. v. Can. Pac Rt. Co. et aL, 20 Gan. Rr. Gas. 15a. 
 foOvncd.] 
 
 Hay and Still Mfg. Cos. t. Grand Trunk and Canadian Pacific Rt. Cosl. 
 21 Can. Ry. Cas. 43. 
 
 OotOXXZATlOX HXES BKAXCH — ItoCTrrADT SCJXE. 
 
 A 'Mountain" >eale of tolls may be authoriaed fay the Board vhere the 
 raihray is a coloniiation line with but little derefepoMBt traffic and bears to 
 the trammmtiaental systems the relation of a l»anch line. 
 
 Re Edmonton. Dunr^an t British Cohunlna Rt. Go. (Mountain Scale 
 Tolls Case I. 22 Can. Ry. Cas. L 
 
 ICDCG rjf TSAXSrr — REFU^OtATOB CAXS ^ACTCAI. COSr — AXiULTSra — S*IT 
 
 Railway companies should not profit by shifHnents handled exc^>t as 
 
 canias. The toUs for in transit icing of refrigerator cars should be made 
 
 np oa the basis of the arerage actual cost of the iee and the placing 
 
 tiMn<rf upon the ears. UptHi an analysis of the diffocBt co«t factors the 
 
 Can. Ry. L. Dig. — IS. 
 
754 TOLLS AND TAEIFFS. 
 
 proposed increase in the icing tolls is not justified. [Ontario Fruit 
 Growers Assn. v. Can. Pac. Ey. Co. (Canadian Freight Assn.) (Fruit 
 Growers case) 3 Can. Ry. Cas. 430, at pp. 431-2, followed.] The tolls on 
 salt in refrigerator cars owing to the gradual development of its use in 
 coftection witli the packing industry Iiave been treated as an incident 
 of its refrigeration and it is claimed is properly included in tlie icing toll 
 therefor. The carriers have justified the toll for salt over and above a toll 
 for icing in the tariffs of tolls now in force. [Ontario Fruit Growers 
 Assn. V. Can. Pac. Ry. Co. (Canadian Freight Assn.) (Fruit Growers Case), 
 3 Can. Ry. Cas. 430, distinguished.] 
 
 Ontario Fruit Growers Assn. etc. Cos. v. Canadian Freight Assn. (Icing 
 Refrigerator Cars Case), 22 Can. Ry. Cas. 98. 
 
 Classification — Tolls — Cost of transportattox — Luxuries. 
 
 Classification must be arranged according to the ability of the various 
 articles to bear their sliare of the cost of transportation to admit of cheap- 
 er goods being carried any distance; thus luxuries which move in com- 
 paratively small quantities, are given a higher classification than indis- 
 pensables. While the present war conditions may affect tolls per se these 
 should have no bearing on classification. 
 
 HorTic Co. v. Canadian Freight Assn., 22 Can. Ry. Cas. 344. 
 
 Classification — Weights — Minimum — CoirMODiTY — Toll. 
 
 Fibre board cheese boxes, rated in the classification as fifth class with 
 a minimum weight in C.L. lots of 20,000 lbs., are entitled to the same 
 rating as wooden cheese boxes with the same minimum weight, either by 
 a change in the classification or by a commo<lity toll of general applica- 
 tion. 
 
 Canada Cheese Box Co. v. Canadian Freight Assn., 22 Can. Ry. Cas. 347. 
 
 Terminal carrier — Industriaj. railway — Status — Unjust discrimina- 
 tion — Jurisdiction. 
 
 Where no unjust discrimination is shewn among shippers, it is not 
 the function of the Board to exercise its jurisdiction by inquiring into the 
 status of connecting carriers, approving amendments and supplements to 
 the tariffs of tolls of the line carriers engaged in international trafiic for 
 the purpose of removing a terminal carrier as a participator on the 
 ground that it is of the character known in the United States as an in- 
 dustrial railway. The Essex Terminal TXx. Co. ( incorporated 2 Edw. VII., 
 c. 62), was found by the Board upon the evidence not to be an industrial 
 railway within the terms of the Industrial Railways Case, 29 I.C.C.R. 
 212. Amendments to the tariffs of line carriers engaged in international 
 traffic removing the Essex Terminal as a participating carrier therefrom 
 were suspended. 
 
 Essex Terminal Ry. Co. v. Grand Trunk, Michigan Central et al. Ry. Cos., 
 22 Can. Ry. Cas. 301. 
 
 Jurisdiction to vary or modify U.S. classification — C.L. traffic — Ex- 
 port — Parity — Classification. 
 Tlie Board has no jurisdiction to vary or modify the U.S. official 
 classification in the case of C.L. traflfic moving from a Canadian point to 
 a Canadian port, and, under s. 321 (2,3,4) of the Railway Act, 1906, the 
 only jurisdiction the Board has is when such classification is used with 
 respect to traffic to or from the United States, and the carriers, being under 
 no statutory obligation to use the classification, may, in their discretion, 
 with the leave of the Board, do so on export business from Canadian points 
 
TOLLS A2sD TARIFFS. 755 
 
 to Canadian ports ui order to assure a parity of treatment as to tolls 
 and ports in the United States, 
 ilraliam t. Canadian Freight Assn^ 22. Can. Bj. Cas. 355. 
 
 Tasiff — Misiwsaupnos op goods. 
 
 A common carrier cannot collect freight rates on "metal scrap" at a rate 
 different from that established by the Board simply because the shipper 
 innocently misdescribed the goods in the bill of lading, what was in fact 
 "metal scrap" being descriljcd as "copper ingots." 
 
 Pere Harqtiette By. Co. t. Mueller ilfg. Co.. 4S DJ..B. 468. 
 
 CiASSincxTio-s — C-L. axd L.C.L. — Valces — DisTMBtrrtSG potvtb. 
 
 Two L.C.L. classification ratings will not be granted on the same com- 
 modity differing in Talue. WTiere a C.L. classification rating from Wal- 
 laceburg; a manufacturing centre, to Winnipeg was voluntarily put in 
 by the carriers, it is only reasonable that similar ctnnmodity tolls should 
 be giTcn from Wallacebnrg to Toronto and Montreal, similar distributing 
 centres in the east. [Ledoux Co. v. Canadian Freight Assn., 12 Can. By. 
 Cas. 3 distingui^ed.] 
 
 Wallacebnrg Cut Glass Works t. Canadian Freight Assn. (Cut Glass 
 Classification Case • . 22 Can. By. Cas. 4«8. 
 
 Ice cbexu cx>xes — Classification — B-Steml 
 
 Ice cream cones should Ije given a CX. rating of third class witii a 
 minimum of 16.000 lbs. 
 
 Canadian Manufacturers Assn. v. Canadian Freight Assn., 23 Can. By. 
 Cas- 48. 
 
 CuissincATiox — CoMPETmox — Uxjrrsr DiscaoiiSAnox — CI* — Ship- 
 MEXTS — Mixes. 
 
 It would be unjust discrimination to authorize the shipment of rubber 
 !xM>ts and shoes in mi^^ed carload lots at third class tolls in competition 
 with manufacturers who have not the same privilege of mixing their 
 leather or felt boots with other leather or felt commodities which are 
 entitled to the same classification in C.I... lots. C.L. tolls are <m]j given 
 for the purpose of mixing on account of the varied nature of the goods 
 that can be mixed. Solid rubber tires with a minimum weight of 24.000 
 lb&, and pneumatic rubber tires with a minimum weight of 16.000 lbs., 
 were both rated third class. 
 
 Canadian Bubber Manufacturers v. Canadian Freight Assn., 23 Can. 
 By. Cas. 50. 
 
 KeASOXABLE rxcMEASE — Easteblt and WEi^TEKLT, 
 
 An increase in freight tolls un potatoes and turnips from points in Xew 
 Brunswick to points in Ontario and Quebec was approved by the Board, 
 with the exception that tolls west of Hamilton and Guelph should be re- 
 duced one cent upon the general basis of Sth class under the classification 
 tapered downwards for the shorter easterly haul from Xew Bnmswick in 
 (-••mparison with the longer haul from the Western Provinces. 
 
 Xew Brunswick Vegetable Growers v. Can. Pac and Temiscouata Bv. Cos 
 23 Can. By. Cas. 128. 
 
 Increase — CoMPEirnos — Misappbekensiox. 
 
 The respondent is justified in increasing the toll charged, through mis- 
 
756 TOLLS AND TAillFFS. 
 
 apprehension, on asbestos cement in a plastic form, where it is in compe- 
 tition with stove putty used for the same purpose. 
 
 Sterne & Sons v. Canadian Freight Assn., 23 Can. Ry. Cas. 171. 
 
 Mileage basis — Blanketed tolls— Competitioit, 
 
 Where tolls are blanketed, a too rigid adherence to a mileage basis, 
 tliereby giving a sudden break in the middle of a coal shipping area be- 
 tween coal mines competing with each other in a common market, is un- 
 desirable. [Galbraith Coal Co. v. Can. Pac. Ky. Co., 10 Can. Ry. Cas. 325, 
 followed.] 
 
 Great West. Byers :\Iine Coal Cos. et al. v. Grand Trunk Pacific Ry. Co. 
 23 Can. Ry. Cas. 175. 
 
 Illegal tolls — Rkfkigerator cabs — Refund. 
 
 Where the toll from the point of shipment to destination provided for a 
 heated refrigerator car, and the transportation of a messenger, a charge 
 made by the carrier for supplying additional heaters is not covered by 
 the tariff or tolls, is illegal, and refund should be allowed. 
 
 Plunkett & Savage v. Can. Pac. Ry. Co., 23 Can. Ry. Cas. 178. 
 
 Increase — Separate tolls — Slack coal. 
 
 In the decision of the Board in the 15 per cent Increased Rates Case 
 (22 Can. Ry. Cas. 49), allowing an increase on coal of 15 cents per ton, 
 there is no* separate toll for slack coal and no distinction can be made 
 in the tolls on slack lump or run of the mine coal. 
 
 Twin City Coal Co. et al. v. Can. Piic, Can. Northern and Grand Trunk 
 Pacific Ry. Cos., 23 Can. Ry. Cas. 181. 
 
 Stop-over privileges — Direct bun — Extra distance. 
 
 Where a tariff provided specific freight tolls to apply to designated 
 distances, but also provided that stop-over privileges, at a point out of 
 the direct run between shipping point and destination, should be permitted 
 on payment of a stop-over charge and an additional toll per mile of extra 
 distance, the railway company was held entitled to enforce tlie latter pro- 
 vision, and the toll specified for the mileage between shipping point and 
 destination by the circuitous route was held not applicable. 
 
 Hannah v. Grand Trunk Ry. Co., 24 Can. Ry. Cas. 123. 
 
 Reshipment — Milling in transit or analogous privileges — Discrlmi- 
 
 NATION — ^THROUGH KATK ARRANGEMENT — AMBIGUOUS TARIFF. 
 
 Tlie rates from point of reshipment chargeable on grain under tariffs 
 allowing milling in transit or analogous privileges are those effective at 
 the time of the original shipment, not those effective at the time of reship- 
 ment, luiless the tariff under which the grain originally moved clearly 
 provides otherwise. Milling, malting, storage and cleaning in transit are 
 privileges accorded to shippers by the carriers in the sense that the Board 
 cannot order them, except to prevent discrimination, but they become en- 
 forceable rights when set out in tiiriffs under which shipments are made. 
 Tariffs when ambiguous are to be construed in the case of the shipper, when 
 they can reasonably and properly be so read. Where the milling in 
 transit or analogous privileges are exercised the inbound and outbound 
 shipments are to be treated as part of the same movement, under the con- 
 tract, and subject to a through rate arrangement. 
 
 United States Growers et al. v. Canadian Freight Assn. (Milling in 
 Transit Case), 24 Can. Ry. Cas. 120. 
 
TOLLS AM) TARTFFa 757 
 
 TuMi «ff faib siMidd te nteipRtoi fitcialhr vith«mt r^ncBee t» 
 fiiwJ wtta^Oamm id cartios frmmim^ Hbam. U]Ma tke 
 «f tte Tkriff CJLCJL Xn, wUA spedfcalfy 
 paint taldiiK Torarts tolK « ^Vper at Ccffingwood ia csititied to the 
 soie tofl as » ihijuw i at Tonato am aails for csptwt to Ckiaa aad Japaa 
 Tia FMifie Oaast porta. 
 
 Tipiiial 8tod & Wli« Co. r. Gtaad Tkvak a^ Gaa. Fue. Rt. Cosl, 24 
 QuL Ify. Cks. 150. 
 
 WkKKT — U33TEXKAI. KISIS COXFJAESO^f OT IWliM A3m BAV MaTESIAI- 
 
 Tke aairosal basis ia fixii^ tirfis is the wi^ht «f the product carried, 
 a raipariaw thempfove hctvcca the t<rfl oa a carload of the prodact aad 
 the faialilj of rav auterial iM | aii e d to prodnco it is i^Hactieable. 
 
 AMph Luather Co. r. Great Xorthcn Rt. Cos, ^ Caa. 1^. Gul 17X 
 
 Oaaafoaraxs — CMJkssxncAiwas — AT*iiw»ca. 
 
 Sbdl hlsafru bci^ a traasicat article of coauacrce are aoi spccificallj 
 fswiidiil for IB the fre^ht classifieatioa. haft are c ui e i e d vheie aeciMaaiy 
 Irf 11— iwlitj tolls, these void the ~aaahigoas articles' mle of dassi- 
 Iratina, esea if biaak iHllets are assaaaed to be aaalo^oos. the cnttii^ 
 ajad aiHifina of ttm per eeat ia valiaF does aot HMke the shell biaak a 
 biOet aad eatitle it to the sted billet tolL 
 
 lapaial Mnaitiaaa Board \. Caa. Pac. Rt. Col. 24 Caa. Rt. Cul 10. 
 
 REPCSLiCAno:^ — ^RErAKA'no3c — R isirxo — JcaisDicnox. 
 
 The Board has ao jarisdietioB to order rep^Uicatioa of tariffs of taOs 
 for reparatioa parpoees oaly, bat has jarisdictioa to declare toils char^^ed 
 aace to certaia dates are esecsnve to the csteat that thcj exceed the tolls 
 ia t MuA prior thereto aad a refnad aiay be ord eted apoa the lespoadeats 
 S0 aaihilol iaii. 
 
 laipcrial Mnaitiafts Board t. Cbb. Pac. Rt. Co. ±4 Caa. Rj. Oss. 169. 
 
 See alao (A) f. 74L aad (D| pu S04. 
 
 IhSCBMrSATKKIt SlMILAB COXVmOVS — ^IjO^C« ASB SHOBT mAXTl, — ^HlCH 
 
 COST or orcsLATiox — Wati« coMrErmox. 
 The Boards of Trade of ftitiEh Coinabia Pacific Coast cities eaasplaiaed 
 that the rates leried oa aD daases of goads froas Taacoiner to iaterior 
 paiats ia British Cohmbia aad the Xorth-West TerritOTics as far east 
 as Osi^arj oa the naia liBe aad to MacLeod oa the Crow's Xe^t liae «c«e 
 discrianaatovj as a^iaiast thea. as cosapand with the rates oa west- 
 booBd tzafic froas Wiaaipe^ to the saae toritorv:— Held (In. that the 
 eridcBee as to the c«»t of operatioB aad ■aiatevaace upam didcreat see- 
 tioBs (rf the ania liae shewed that the rates fron Pacific Coast poiats 
 eastward were realhr lover thaa those fraaa Wanaipe; a e aAa ard, thaa if 
 ttcT were based apoa the proportaoaatp cspeaoe, that the aatazal fridiB^ 
 liae, or STera^ pi^Bts of ^»etii^ are as foirlr ataated. aad the eastward 
 rates lown- as rowparfd with sinlar railvaj coatpuiBes ia the XTaited 
 States, aad that the traffic oa the prairie liacs bein^ heaTier thaa ia Brit- 
 ish GolBBhia, hmer rates caa be t hi r g e d thereoa. (St That bra rates to 
 the PMific Coast are aeccssarv to enable the railwaj coaapaaies to obtaia 
 traffic IB eoaapetitioa with oeeaa «arriCTSL SaA a practice is dJatiacihr 
 aathanaed br the BailwaT Art. aad doe9 aot iavolre aajiBt discriwaa- 
 tioa, aaless the bibber rates frcot ese^s^trrm point;^ to iaterior westera are 
 
ii>t 
 
 TOLLS AND TARIFFS. 
 
 unjust or unreasonable. The mere fact that westbound rates from Win- 
 nipeg or any otlier point to an interior western point, are less than the 
 rates formed by a combination of the rates from such eastern points to a 
 Pacific point and from the latter to the interior points does not in itself 
 constitute unjust discrimination or undue preference. (3) A mere com- 
 parison of distances upon different portions of a railway for the pur- 
 ])ose of shewing that higher rates are charged for shorter distances over 
 a line with small business or expensive in construction, maintenance and 
 operation as compared witli one witli large business or inexpensive in con- 
 struction, maintenance and operation does not establish a charge of un- 
 just discrimination. To justify sucli a charge the nature of the particular 
 lines must be sliewn and that there is a material disproportion of rates 
 as against the shorter line after making due allowance for the circum- 
 stances above-mentioned. (4) A\'hen the Act to authorize a subsidy for 
 a railway through the Crow's Xest Pass, 60-61 Vict. c. 5, s. 1 (D.), was 
 passed and the railway company agreed in return for such subsidy to 
 charge lower tolls upon certain classes of goods from Fort William and 
 all ])oints east to all points west, the Kailway Act. 1888, s. 2.12. then pro- 
 hibited unjust discrimination l)etwecn localities, and Parliament should not 
 be considered as liaving authorized what would, if done otlierwise. have pro- 
 duced unjust discriminaton between localities, accordingly the rates from 
 Pacific points eastward should be proportionately reduced upon similar 
 trallic carried under similar circumstances. Held, tbat tlie complaint 
 should be dismissed, except in so far as it relates to classes of traffic on 
 which reduced rates were given tinder 00-61 Vict. c. 5, s. 1 (D. ). 
 
 i'.ritish Columbia Pac. Coast Cities v. Can. Pac. Ry. Co. (Vancouver In- 
 terior Pates Case), 7 Can. Ry. Cas. 12;'). 
 
 [Followed in Atty-(Jenl. B.C. v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 346; 
 referred to in Winnipeg Jobbers Assn. v. Can. Pac. Ry. Co., 8 Can. Ry. 
 Cas. 173; Kerr v. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 207; followed in 
 Kegina Board of Trade v. Can. Pac, etc., 11 Can. Ry. Cas. 381; Can. Oil 
 Cos. V. Grand Trunk, etc., 12 Can. Ry. Cas. 350; Re Increase in Passenger 
 and Freight Tolls, 22 Can. Ry. Cas. 49.] 
 
 AGREKMENT — RBa)UCFD KATES ON COAL — DISCRIMINATION — SIMILAR CIRCIIM- 
 8TANCES. 
 
 By an agreement made in 1807 between the applicant coal company 
 and the respondent railway comj)any, the latter agreed for valuable con- 
 sideration amongst other things to charge the former at the rate of not 
 more than six tenths of its ordinary tariff rates on all "plant" shipped 
 by the coal company over the lines of the railway company. The railway 
 company ceased to comply with the provisions of the agreement as to 
 rates on 1st May, 1907, on the ground of illegality. The coal company 
 applied for an order to compel the railway company to file a tariff of 
 such reduced rates and for a refund of all excesses charged to the ai)pli- 
 cant: — Held (]). that it was impossible to find that the consideration 
 paid to the railway company was "adequate"' for the favoured treatment. 
 (2) That other persons and corporations under similar circumstances and 
 conditions in the same district would be unjustly discriminated against 
 by a continuance of tlie reduced rates and that the agreement in that 
 respect constituted an undue or unrea.sonable preference or advantage con- 
 trary to ss. 315, 317 of the Railway Act. 1!)06. Assuming that the Board 
 had jurisdiction to make the order asked, as to which there is grave doubt, 
 
TOLUS AXD TARIFFS. 759 
 
 tke ■pfKftiiw H^ be nfiKid. [BrfienMre to Bn« MiDiBs Co. t. Gnad 
 
 T^mdk Kf. Got, 4 Cha. Rr. Ca& 239.] 
 Crow- s SSest Ftas Coy Col r. Caa. Ful Rt. Ob^ S Cam. Rr. Ck& 3X 
 [F<rflanrcd m irij^wi Baud ci Trade t. Gu. Pte. etc. 11 Caa. Rj. Gu. 
 
 389: Re Imarmse ia Pkaee^n- aad Fr«^:kt ToDs. S2 Gu. Rt. Caa. -»; 
 
 Cam. Fml Rt. Cos a^ ^aidak Rim- etc r. Jklgam Sasteim'Rj. Cou 2* 
 
 Caa. Rt. Cak 3S1.] 
 
 IHs€MaaoLxau\ — New tabots — fiicnss KikXEs. 
 
 TW Wiaajpc* Mbben^ Anooatiaa ap^ied to the Board for aa ordn- 
 dii ec ti^ tke railvaT eoaipaaT to restoie tiNt fomo- Wiaaip^ vestbooad 
 rates to tke Kooteaaj district. After the J Md jg ^t a t ia the BHtidi Colaat- 
 bia PiKilie Coast Gties t. Caa. Fmt. Rjr. Col f Vaaeoarcr latoior Rates. ~ 
 Caae/i, 7 Caa. Rj. Cka. 1±3, the coaipaB^r icaMived the dtscriwaatiaa theie 
 foaad to exist betatea localities by raisiag the Wiaaificg avstboaad rates: 
 — Bdd, tint the a^iicatiwi most ful, there bo^^ ao endcMe that these 
 rates wne csccasiTe. 
 
 Wiaaipr* JdUmts* Asm. t. Gu. Fml Ry. Co. (TKootcaaT Rate Case>.. S 
 Gu. Rt. Cos. 173. 
 
 TkJJDBBS^ TAMMTT — ^Thsocgh kaxss — DMScmDaxAXSOs — Shokt A3a LOSV 
 
 HACX — Snm^M CncmSTAXCBB. 
 
 The Wiaaipc^r Jobbers* AaoL afi^ied to the Board for aa order diicetiB* 
 the C J*.R. Col to restore the 'Enden' Tariffs pteTiowdT exisua^ ia West- 
 era Caaada, from Wiaaipe«^ as a dntrfbatii^ ccatxe Igiria* Wiaaipe* 
 traders the beaefit of the boJaace oi the Idooa^ rate oa redup^wats » 
 ia^tead of the aev tariffs reeeatlr put ia force br the railwaT mHapaaT. 
 UpoB a coaplaiat hf the Portage La Prairie Board of Trade.* the Board 
 had held that this system of traderr' tariffs. va« illegal a» livi^ aa oa- 
 jast dsscriauaatiaa aad aadiie prcfcraBce ia faToor of partiralar per<aB« 
 aad bitatia diffenat localities, aad the char«ifl^ of hi«;her toll.«^ for a 
 shorter thaa for a k^er disiaace vhexe the shorter distaaee is iarladed 
 ia the loa^iMr. The raihraj dMapaar cnai|dTii^ vith the riev takea br 
 the Board had sahstitmed the tariffs coaaplaiaed of hr the applieaats: — 
 EUd. that the applicatiioa Bn«t foil. lAe«e bnasr ao erideace apoB vhirh 
 the Board caa reduce the rates cha rwe d ia the existii^ tarife to the 
 save anas that acre paid br the faToorvd fra nader the old traders' tar- 
 iffs. The qaestioa of vhether it voold be possible to staadardixe the Oa- 
 tario Toaa Tariffs, aakia^ thea ap^ieaUe to the Wcstera Proriaces. aad 
 ahethcr the railwaT conpaaies caa or should be coaapilled to ^raat coi 
 ModitT rates out of Wiaaipe^ were referred. 
 
 Wiaaipe^ Jobbers* A^sa. t. (aa. Pbcl. Caa. Xortkra aad Grud Tmak 
 Piuific Rt. Co3l « Wiaaipe^ Rate Caseii. S Caa. Rj. Ca$ -17^. 
 
 Oos-iSACT — Discsmx^ATiox — Fsciciirr as» rASSsscxm, "ntxmc — Ra»cca» 
 
 JLSa aic™ TOUL£. 
 
 The AttoeMy-Gcwial for British Coimabia applied to the Board for 
 aa order dirccti^ the CJP.R. Oou ou the ^ronad of undue or uajust des- 
 criauuatioa to reduce the toDs oa frnght aad pa aw^ci traSe orer the 
 attia liae of railaaj ia the ProTiace aad thus ^aee it upoa the aaaic 
 fiaiouraMe coaditiaas ia respect to such toDs as are other portioas of 
 Caaada. The applicaat roateaded that nader the teruKs of oaioa («e 
 schedule to Imperial Order ia CoiiB<fii. Rii.RC pp. l((k$ et acq.. Mar 16th. 
 ISTl), aherebj Irtish CohnriMa catered Coafederatioa, there vas aa im- 
 plied contract thai the railvaT covpaar should char^pe ao hifEher tidls 
 ia oae sectioa of territOTj thaa another throush which the railway raa: 
 
T60 TOLLS AND TAKIFFS. 
 
 — Held (1), that the application must fail, the Board being unable to 
 find any such contract expressed or implied, and there being no evidence 
 of unreasonable rates or unjust discrimination. (2) That s. 17, subss. 6, 
 11 of the Railway Act, of 1879, and s. 315 of the Eailway Act, 1906, allow 
 different tolls to be charged in different localities where different circum- 
 stances exist justifying such treatment. (3) That the terms of the con- 
 traet with the Dominion Government for the construction of the C.P.R. 
 dated 21dt October, 1880, schedule to 44 Vict. c. 1, have nothing to do 
 with freight and passenger tolls in British Columbia; tlie only party who 
 could make any complaint as to tlieir nonobservance being the Govern- 
 ment of Canada. [British Columbia Pacific Coast Cities v. Can. Pac. Ry. 
 Co. (Vancouver Interior Rates Case, No. 104), 7 Can. Ey. Cas. 125, fol- 
 lowed.] 
 
 Attorney-General for British Columbia v. Can. Pac. Ry. Co., 8 Can. Ry. 
 Cas. 346. 
 
 COMPETITIOX BLANKEI- RATES — DISCRIMINATION — CiTRUS FrUITS FROM 
 
 California. 
 
 Complainants alleged that the rates charged by the respondents on ship- 
 ments of citrus fruits from points in California, United States, to Regina 
 were unreasonable as compared witli the rates charged from the same 
 points to Winnipeg and other points in Manitoba and Ontario. At the time 
 the complaint was heard the rate to Regina on citrus fruits via Kingsgate, 
 British Columbia, was $1.70 per 100 pounds made up of the full local rates 
 in United States territory with a proportional rate over the C.P.R. Before 
 the opening of the Kingsgate route the rate to Regina via Emerson and 
 Winnipeg was $1.72, when the Kingsgate route was opened tliis rate was 
 reduced to $1.60 via Kingsgate, and was afterwards raised to $1.70. On 
 account of the competition of railways and markets in the United States 
 the blanket rate to Missouri river common points from shipping points 
 in California is $1.15, and the rate to Winnipeg is $1.25: — Held (1), that 
 the advantage in rates of Winnipeg over Regina is not unreasonable. (2) 
 That the former rate of $1.60 to Regina was fair and reasonable and 
 should be restored. (3) That the respondents sliould l)e reqiiired to ar- 
 range for the publication of new tariffs with its connections from Cali- 
 fornia shipping points to Regina via Kingsgate or Emerson on basis of 
 $1.60 per 100 pounds on oranges in straight carloads, or on mixed carloads 
 of oranges and lemons, and $1.45 per 100 pounds on lemons in straight 
 carloads. 
 
 Stockton & Mallinson v. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 165. 
 
 [Distinguished in Stockton, etc. v. Dominion Express Co., 13 Can. Ry. 
 Cas. 459, 3 D.L.R. 848.] 
 
 Special siileage tariff — Competition — Grain growing territories — 
 Through shipments. 
 On a complaint to the Board that the rate on grain, grain products and 
 vegetables for local consumption from Franklin to Winnipeg was unjust- 
 ly discriminatory as compared with the rate from the same point to Fort 
 William, a much farther distance on the same goods for eastern markets: 
 — Held (1), that complaint should be dismissed. The conditions 
 affecting through shipments at through rates are such that a division of 
 through rates cannot be taken as a measure of the reasonableness of a 
 local rate. (2) The competition of other grain growing territories fixes 
 the rate on through shipments to eastern markets. (3) The rates are 
 also affected by the Crow's Nest Pass Agreement: [See British Columbia 
 
TOLLS AND TARIFFS. 761 
 
 Pacific Coast Cities v. Can. Pac. Ry. Co. (Vancouver Interior Rates Case), 
 7 Can. Ry. Cas. 125.] 
 
 Kerr v. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 207. 
 
 DlSCWMIXATIOX SiMILAB CIECUMST.\NCES — MaIS AXD BRAJVCH LINE MILE- 
 AGE — ^Low-grade toxnage. 
 
 Upon a complaint under ss. 315, 334 oi the Railway Act, 1906, by the 
 Cement Co. that the through toll of $1.50 per ton on bituminous coal from 
 Black Rock, N.Y., to Marlbank, Ont., was unjustly discriminatory and 
 unreasonable, because, (1) there should be no difference in the tolls on 
 coal to the applicants competing with similar factories receiving more 
 favourable treatment, (2) on the basis of mileage, (3) as compared with 
 tolls to other points such as Belleville and Kingston. From Black Rock 
 to Napanee, a distance of 237 miles, the coal moved over tiie Grand 
 Trunk Ry. and thence to Marlbank, a distance of 36 miles, over the Bay 
 of Quinte Ry. Out of the through toll the Grand Trunk received $1.0.j. 
 or 70 per cent., and the Bay of Quinte the balance: — Held (1), and the 
 "equality" clause of section 315 was not intended to equalize the cost of 
 production between similar competing factories, but applies only when 
 such factories were given more favourable treatment under similar cir- 
 cumstances and conditions of traffic. (2) That a comparison of mileage 
 as if both hauls were on the same railway line was not a proper method 
 of comparison, difference in traffic conditions being in general more im- 
 portant. (3) That the principle recognized in the Almonte Knitting Co. 
 case that a higher toll may be charged to points on a branch line than 
 to points on a main line, though at a less distance from the junction 
 point, applies with greater force in favour of a light traffic and low-grade 
 tonnage railway as compared with a heavy traffic and high-grade tonnage 
 railway. (4) That the toll to Marlltank cannot be compared with com- 
 pelled tolls to other points such as Belleville and Kingston, where there 
 is not effective water competition to Marlbank on traffic important in 
 amount. (5) That, upran the evidence, the toll charged is not unreason- 
 able. (6) The Grand Trunk having stated its willingness to reduce its 
 division of the through rate to $1.00 per ton, the Bay of Quinte to par- 
 ticipate in such through rate, receiving thirty per cent, the Board ap- 
 proved a rate of $1.43 per ton. f^lraonte Knitting Co. v. Can. Pac. and 
 Michigan Central Ry. Cos., 3 Can. Ry. Cas. 441, followed.] 
 
 Canadian Portland Cement Co. v. Grand Tnmk & Bay of Quinte Ry. 
 Cos.. 9 Can. Ry. Cas. 209. 
 
 [Followed in Dominion Sugar Co. v. C«n. Freight Assn., 14 Can. Ry. 
 Caa. 188; Imperial Rice Milling Co. t. Can. Pac. Ry. Co.. 14 Can. Ry. 
 Cas. 375; Western Retail Lumbermens' Assn. v. Can. Pac, Can. Northern 
 et al. Ry. Cos., 20 Can. Ry. Cas. 155; Dominion ^Millers Assn. v. Canadian 
 Freight* Assn., 21 Can. Ry. Cas. 83; Waterloo v. Grand Tnmk Ry. Co., 24 
 Can. Ry. Cas. 143.] 
 
 MaIX AXD BBAXCH LIXE TBAFFIO — SnCILAB CIBCUM8TAXCK8 DlSCBIMIJfA- 
 
 TIOX. 
 
 On a complaint that higher rates were charged from a point on a branch 
 line for a shorter distance than from points on the main line to the same 
 point thereby constituting unjust discrimination between different locali- 
 ties within the provisions of s. 315 of the Railway Act, 1906: — Held, that 
 traffic originating on a branch line is not carried to a certain point under 
 similar conditions to traffic originating on the main line carried to the 
 same point until the junction of the branch line with the main line is 
 reached. [Almonte Knitting Co. t. Can. Pac. and Michigan Central Ry. 
 
T(;i> TOLLS ASD TARIFFS. 
 
 Cos., 3 Can. Ey. Cas. 441, followed.] The rates complained of were equal 
 for a group of common points on the main line. Held, that although 
 group rates of necessity result in a certain amount of discrimination, so 
 long as such discrimination is not undue it is not unreasonable. [Desel 
 Boettcher Co. v. Kansas City Southern Ry. Co., 12 I.C. Kep. p. 222.] 
 Held, also, that the difference in the rates complained of did not consti- 
 tute undue discrimination within the dillercnt sections. 
 
 Malkin & Sons v. Grand Trunk Ry. Co. (Tan Bark Rates Case), 8 
 Can, Ry. Cas. 183. 
 
 [Followed in Fredericton Board of Trade v. Can. Pac. Ry. Co., 17 Can. 
 Ry. Cas. 439; Hunting-Merritt Lumber Co. v. Can. Pac. and British Co- 
 lumbia Elec. Ry. Cos., 20 Can. Ry. Cas. 181.] 
 
 Lumber tariff — Rea80nablenes.s — Export aisio domestic toi.i.s — Disckim- 
 
 INATIOX. 
 
 On an application to disallow the special tariffs on lumber which be- 
 came effective May 1, IDOS. and restore the tariffs previously in force, 
 removing the anomalies in tlie latter without any increase of tolls. The 
 railways submitted in justification of the increase in tolls, that these 
 were as favourable as those charged by railways in the United States 
 and compared favourably with those charged on otber building material. 
 Although lumber had increased greatly in value in the last ten years, the 
 relative increase in tolls had been comparatively small, and the cost of 
 operation and maintenance of railways had materially increased during 
 the same period: — Held (1), that speaking generally of the new tariffs 
 as a whole, the railways have justified tlie increase in the domestic tolls; 
 these tariffs should remain effective, and the application should be dis- 
 missed. (2) That the decision in this matter would not preclude any 
 one from laying a complaint against any particular toll, alleging unjust 
 discrimination or undue or unreasonable ])reference. (3) That the rail- 
 ways should be ordered to file tariffs establishing export tolls to Montreal, 
 on the whole, lower than the domestic. 
 
 Canadian Liunbermen's Assn. v. Grand Trunk, Can. Pac. and Can. North- 
 ern Ry. Cos., 10 Can. Ry. Cas. 300. 
 
 [Referred to in Canadian Lumbermen, etc. v. Grand Trimk, etc., 11 
 Can. Ry. Cas. .344; followed in Graham Co. v. Canadian Freight Assn., 22 
 Can. Ry. Cas. 355.] 
 
 Discbimination — :MiLEAr.E BASIS — Coal tolls. 
 
 On a complaint that the tolls on coal both east and westbound from 
 Lundbreck unjustly discriminated against it and in favour of Lethbridge. 
 Tlie railway company submitted that its tolls were based upon Leth- 
 bridge, the eastbound basing point and Fernie, the westbound basing point. 
 Taking Lethridge as the eastbound basing point the other coal mining and 
 shipping points were given arbitraries over or under the Ijethbridge toll 
 according to their location. This tariff of tolls has produced the following 
 anomaly as regards eastbound traffic: by a too rigid adherence to a 
 mileage basis, thereby causing a sudden break in the toll a lower toll 
 is given to Lethbridge than to Limdbreck in sliipping to a commcm des- 
 tination where the difference in mileage is very slight. In regard to west- 
 bound traffic the following anomaly exists althoiigli the distances from 
 Tx>thbridge and Lundbreck to Cranbrook are respectively 200 and 126 miles 
 the toll is only 5 cents in favour of Lundltrcck and west of Cranlirook 
 equal in amount which does not recogui/.e the favourable geographical 
 ]>(»sition of Lundbreck, and is not defensible: — Held (1), that the appli- 
 
TOLLS A^D TARIFFS. 763 
 
 otaoB AatM. be diswaBed; wijiist diaownatMa MitL kavii^ beca pravca. 
 (2)That man favaazable geographica] poeiticB and aopmor qulitr of 
 eoal are factors to be taken iato eoBsidrratiaa wbca allcgi^ najn^t dis- 
 criaainatioB. (3> Tbat tbe rmilwaj coaipaaj ahould tbMoa^blr check its 
 tariff aad otker cxplaia or ja>tit> »ny departure froa ike ba^us of tolls 
 it has estaUiahed, aad also correct the too rigid adherence to a mikap 
 faaaia. <4| That the railwaj companj should reriae aad reiss^oc its special 
 tariff froBi its LethlHidge, Crov's Nest, aad Craabrook eectioo westward 
 so as to Bttke these toUs relatirelr reasonable to the special tariff t<rfk 
 BOW in force or as ther naj be reduced from Lethbridge. 
 
 Gallwutfa Coal Co. v. Caa. Pac. Ky. Co.. 10 Caa. Rj. Cis- 345. 
 
 [Followed ia Great West. Brers lline Cos. et aL t. Grand Trunk Pacific 
 Ejr. Co., 23 Can. Kt. Cas. 175-1 
 
 JOSST TOJU.S DlSCUMi:!CATI<K!I — RcFCXBl 
 
 Cbaqtlaiats hare arisen that traffic baa, when moving on a tbroogb 
 ion been charged a higher toll than would hare been obtained frmn a com- 
 fci»ati^n> of the local tolls, an order was propooed dedaring that (a> joint 
 tariffs should not be filed which are in excess of tbe sum of the locals: 
 (b) that joint toUs at present in existence should be disallowed when 
 they exceed the sum of the locals: — Held (!''• that it is a fundamental 
 proposition, when a toll joint ot limited to points situate on one line ot 
 railwaj has eoaw into force under the RaHwar Jkct. it is. the onlj i««al 
 taU in re q pect of the traffic and between the points menti<med. {■£} That 
 the reasoBihlenmn of a toll cannot be determined aside from the ccocrete 
 conditions to which it is ai^UcaUe. (3> That the charging of a j<Mnt 
 toll in excess of the sum of the locals is prima facie unreasonaUe and 
 OBJustlj discriminatory, and the onus of disproof should in indrridual 
 Kipl lints be tm the railway or railways c onceia ed. (4> That the Board 
 whose jorisdiction is in no sense retroactiTe, cannot grant a refund where 
 a toll has become legally operatire. (5) That H is not necessary or ex- 
 pedient that the proposed Mtler should be made. 
 
 Be Joint Freight and Passenger Tariffs. 10 Can. By. Ca^. 343. 
 
 [Followed in FuUertoo etc. Co. t. Can. Pac. By. Co, 17 Can. Ry. 0»s^ 
 79; Montreal Board of Trade r. Can. Pacific, Ottawa 4 New York and 
 Intercolonial By. Cos.. 13 Can. By. Cas. C] 
 
 EXCSSSITE TOLLS — DlSCKDaXATlOX COMPETTTIOX. 
 
 Complaint of unjust discrimination against the respondent for diargii^ 
 excessive tolls. The applicant made shipments, by the respondent's line. 
 «rf orca and concentrates £rora Caribou to Skagway and from that port 
 tn dfwliaation. Skagway is an ocean port and Caribou an intermediate 
 pmnt, wImtc the applicant's mine is located, a shorter distance from 
 Skagway thaa White Horse, from which latter point the Jktlas Mining Co. 
 s competitor of the applicant, amkcs similar ahipawta. The applicant 
 complained that the tolls on his shipaMnts front Cariboa to Skagway and 
 the wharfage and ocean tolls at the latter point were so exccssire that 
 he could not operate his mine profitably, and would be compelled to shut 
 it down unless the tolls were lowered. The re^Mndent contended that on 
 account of the large amount of traffic the Atlas MiniDg Co. had con- 
 tracted to furnish their traffic was and would always be larger than that of 
 the applicant and that the preferential rates given to the Atlas Co. by 
 their contract could be justified imder sube. 3. & 31.5: — ^Held (It. that 
 it had not been |»oved that the Atlas Co. shipments were and would al. 
 ways be larger thaa those of the applicant and the respondent had not 
 
7G4 TOLLS A2sD TARIFFS. 
 
 discharged the burden placed upon it by s. 77 of proving that the rates 
 in question did not constitute an imjust discrimination. (2) That the 
 provisions of the respondent's contract with the Atlas Co. as to tolls con- 
 stituted an unjust discrimination againt the applicant. (3) That every 
 form of discrimination against the applicant must cease and he must be 
 placed upon an absolutelj' equal footing with the Atlas Co. not only as to 
 rail tolls, but as to wharfage and ocean tolls as far as the respondent is 
 able to place him. (4) That the respondent must file within thirty days 
 a tarill" giving a toll of $1.75 per ton for the applicant from Caribou to 
 Skagway as compared with the rate of $2.50 per ton for the Atlas Co. 
 from White Horse to Skagway. (5) That tariffs covering the tolls charged 
 by the respondent to the Atlas Co. must be filed within a reasonable time. 
 
 Conrad Mines v. White Pass & Yukon Ry. Co., 11 Can. Ky. Cas. 138. 
 
 [Referred to in Dawson Board of Trade v. White Pass & Yukon Ry. 
 Co. (No. 2), 11 Can. Ry. Cas. 403.] 
 
 Rice — Discrimination — Import and domestic tolls — Through ocean- 
 and-rail tolls — competition — joint tariff. 
 
 Complaint that the tolls charged on rice cleaned in the Province of Que- 
 bec and shipped from ^lontreal to other Canadian distributing points 
 unjustly discriminated against the applicant and that preferential tolls 
 were charged on rice cleaned in Great Britain or foreign countries, car- 
 ried by ocean steamships to Montreal, and there reshipped in competition 
 with the applicant. The railway companies maintained that the import 
 tolls were proportionals of through-ocean-and-rail tolls from Great Brit- 
 ain and could not fairly be compared with domestic tolls on traffic carried 
 under dissimilar circumstances and conditions: That such import tolls were 
 kept down by competition with railways in the United States. It appeared 
 that the import tolls via Montreal were lower than the lowest import tolls 
 on competing railways in the United States for the purpose of diverting 
 traffic to the St. Lawrence route and offsetting the higher marine insur- 
 ance rates charged by that route: — Held (1), that there was no ground 
 for complaint against domestic tolls on rice in carloads (C.L.) from 
 Montreal to interior points. (2) That although Canadian railway com- 
 panies have been entitled to charge higher domestic tolls than railway 
 companies in the United States with heavier traffic, the tolls on rice in 
 less than carloads (L.C.L.) were not proportionate to the differences in 
 circumstances and conditions, and should be reduced. (3) Tliat while 
 full relief could be given by granting the applicant L.C.L. commodity 
 tolls, such a change would disturb the equilibrium between Avest and east- 
 bond traffic as provided for in the international and Toronto Board of 
 Trade Rate Case, Xo. 3258, and complaints would follow. (4) That the 
 domestic tolls on rice L.C.L. should be changed from the 3rd to the low- 
 er 4th class in the Canadian Classification. 
 
 Mount Royal Milling & Mfg. Co. v. Grand Trunk and Can. Pac. Ry. 
 Cos., 11 Can. Ry. Cas. 347. 
 
 Sugar beets — Discrimination— Paeticulab circumstances — Joint tab- 
 TFF — Proportional rate. 
 
 Complaint alleging that the tolls charged by the respondent on sugar 
 beets were excessive and unjustly discriminatory compared with those 
 charged to the Dominion Sugar Co. The applicant, a foreign company, 
 purchased sugar beets from growers along the line of the respondent, agree- 
 ing to supply free seed, defray the freight charges on sound beets to ita 
 factory in Michigan, U.S., and pay therefor at a flat rate. The Dominion 
 
TOLLS ASD T.UIIFFS. 765 
 
 Sugu Co. v«s emgtged is the same hn^intrss and porrluised its sugar 
 Wefts mder au arraagemait that the growers should pay the freight 
 chaises to tke iactarf at WaDacebnig, Ontario, and be paid for the beet^ 
 on the peieaitege of aacdiaiine Batter contained in them. Thi^ latter 
 a gimutn t lesolted in a higher price for the beets than that paid bv the 
 applkaat. The respondent charged a iov toll on a mileage basis for beets 
 carried to the factory of the Dominion Sugar Co. at Wallacebnrg. but 
 charged a higher toll to the same point on beets destined to the appli- 
 cant's factory in Michigan. The respondent was only able to charge the 
 lov toll on inbonBd sugar beets fay chaigii^ a higher toll on rav sugar 
 imported for refinii^. and on the outbound refined sugar and by-prodnets. 
 The grant portion of the freight revenue of the reqmndent was derived 
 frami this si^ar traffic: — Held, (1) that there was no competition in the 
 refined ^ndnct between the two sugar companies, and the respondent 
 was not Umitii^ the market for swA product. (2» That imder the par- 
 ticular circumstances and conditions of this case there was not mjast 
 diseiimination in the tolls under s. 315 of the Railway Act, 1906. (3) 
 That under &. 33S of the Act, where tralBc moves from Caiuida to the 
 United States, it mu<t be covered by a joint tariff which could not be 
 snpeiaed ed Inr a proportional rate filed by one of the participating eom- 
 panie^k. [Brnnt Milling Co. v. Grand Tnrak Ry. Col, 4 Can. Ry. Cas. 
 2^9. at p. 2fi&, followed; Denaby Main Colliery Co. r. Manchester. ShiAdd 
 4 Lincolnshire Ry. Co.. 14 QJ).'b. 209: Pickering et aL t. London 4 North 
 %Vestem Ry. Co.1 8 Ry. 4 C. Tr. Cas. 83, at p. 108: Te3tas i Pacific Ry. 
 Col t. LC.d 162 U. S. 197. at p. 217: Savannah Bureau of Freight k Trans- 
 portation T. Louisville k Xadville Ry. Co.. 8 I.C.C.R. 377. referred to.] 
 
 Michigan Sugar Co. v. Chatham, Wallaceburg k Lake Erie %. Co.. 11 
 Can. Ry. Cas. 333. 
 
 [F<aiowed in Hudson Bay Mining Co. v. Great Xorthem By. Co., 16 Can. 
 Ry. Cas. 2^: Re Telegraph Tolk. 20 Can. Ry. Cas. L] 
 
 DrscMMiXATiox — CoMPETmox — Wholesale xsn msTwnwaiG foests — 
 
 SPECTAL TAWTTS AOEEMETT^. 
 
 ApplicatioB fay Regina Board of Trade under ss. 314. 339 of the Rail- 
 way Act, 1906, for a reduction in the tolls on classes one to ten inclusive, 
 frmn the head of the lakes to R^ina. alleginor that there was unjust dis- 
 crnuaation against the applicant in favour of Winnipeg and other points 
 in Manitoba. All tolls are fixed to the west at Fort William and Port 
 Arthur, the basing points at the head of the lakes, in competition with 
 Duluth and Minneapolis, similar points in the Cnited States. The Canadian 
 Northern Ry. Co. one of the respondents, entered into an agreement with 
 the Government of Manitoba, providing that in consideration of the guar- 
 antee of certain bonds of the respondeat It would reduce its tolls to about 
 15 per cent of its tariff tolls on all freight other than grain to Fort Wil- 
 liam and Port Arthur from points in Manitoba and vice versa. The Can- 
 adian Pacific By. Co.. the other respondent, reduced its tolls in a similar 
 manner through stress of competition. The last named respondent also 
 reduced its tolls voluntarily between the Manitoba boundary and Out- 
 more and the Crow's Nes^t : and in consideration of a subsidy to the Crow's 
 Nest Pass line from the IXominion Government agreed to reduce its tolls 
 from Fort William and points east to points west thereof. The respond- 
 ents contended that the circumstances and eonditiotts were not substan- 
 tially similar and that they were justified in charging a higher toll per 
 ton mile to R^ina than to Winnipeg, and that under the agreements 
 aboTe-mentiimed B^;ina was not entitled to the benefit of the reductitms 
 
766 TOLLS A^'i) TAKIFFS. 
 
 made by the respondents. It was also contended that the greater density 
 of traffic from the head of the Lakes to Winnipeg and other Manitoba 
 points than to Rejrina justified the lower toll basis. That Winnipeg 
 being a wholesale and distributing point had a vested riglit to tolls on a 
 lower basis than Regina: — Held, (1) that no agreements as to tolls could 
 defeat the prohibitions and obligations imposed by ss. 77, 315 of the Rail- 
 way Act. (2) That the reductions were brought about by the different 
 agreements, and not because of a greater density of traffic. (3) Tliat 
 Regina as much as Wiimipeg was a distributing point within its own zone. 
 (4) That tlie special class freight tarilis of the respondents from Fort 
 William and Port Arthur, unjustly discriminated in favour of Winnipeg 
 and other Manitoba points to the prejudice and disadvantage of Regina 
 and points west of the Manitoba boundary. [British Columbia Pacific 
 Coast Cities v. Can. Pac. Ry. Co. (Vancouver Eastbound and Westbound 
 Rate Case, or Vancouver Interior Rates Case), 7 Can. Ry. Cas. 125, at p. 
 146; Crow's Nest Pass Coal Co. v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 
 33. at p. 41. followed.] 
 
 Regina Board of Trade v. Can. Pac. and Can. Northern Ry. Cos. (Re- 
 gina Toll Case), 11 Can. Ry. Cas. 380. 
 
 lAdirmed in 44 Can. S.C.R. 328, 12 Can. Ry. Cas. 369, 45 Can. S.C.R. 
 321, 13 Can. Ry. Cas. 203; followed in Edmonton Board of Trade v. Can. 
 Pac. and Can. North. Ry. Cos., 11 Can. Ry. Cas. 3!)5; British Col. Sugar, 
 etc., Co. V. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 354; Re Increase in Pas- 
 senger and Freight Tolls, 22 Can. Ry. Cas. 49.] 
 
 DlSCRIMIXATION REDUCTION OF KATES. 
 
 The order made in the case of Regina Board of Trade v. Can. Pac. and 
 Can. Northern Ry. Co., 11 Can. Ry. Cas. 380, is also to govern rates to 
 Edmonton, and to comply with that order rates to Edmonton must be 
 reduced as asked in the complaint. 
 
 Edmonton Board of Trade v. Can. Pac. and Can. Northern Ry. Cos., 
 11 Can. Ry. Cas. 395. 
 
 Discrimination — Cigars — Cakload rating — Luxi.itv — Wholesale distri- 
 Bunxr. POINT. 
 
 Application for a carload rating on cigars shipped from Montreal to 
 Winnipeg. The applicant manufactured cigars in Montreal and shipped 
 to a distributing warehouse in Winnipeg. There was no evidence that 
 any other manufacturer in the east would ship any number of carloads 
 westward if the application was granted, but the bulk of the traffic would 
 still move L.C.L. Cigars being a luxury should not be reduced from a 
 reasonable L.C.L. first-class rating to a fotirth-class C.L. as asked for: 
 — Held (1), that if the application was granted other similar manufac- 
 turers would be unjustly discriminated against. (2) That other luxuries 
 now rated first-class would contend for similar reductions in tolls. (3) 
 That the application should be refused until the Board was satisfied that 
 a C.L. rating would result in a substantial traffic movement. 
 
 Ledoux Co. v. Canadian Freight Assn.. 12 Can. Ry. Cas. 3. 
 
 [Distinguished in Wallaceburg Cut Glass Works v. Canadian Freight 
 Assn.. 22 Can. Ry. Cas. 408.] 
 
 DISCRIMINATION — PERSONS OE LOCALITIES — DiFFEREN'nAI.S. 
 
 Application to remove the differential toll of one cent per hundred 
 pounds in favour of traffic carried to and from St. John or Portland as 
 against Halifax: — Held (1), that under s. 3 of the Railway Act where 
 its provisions and of any Special Act Avere in conflict, the provisions of 
 
TOLLS A>CD TARIFFS. 767 
 
 tbe Special Act aoat preraiL (2) That althoo^ the Board had joris- 
 dktion to prevent onjast diserinuiiatioD agaiast perw» or loealitJcs. the 
 provisian of tke Special Act, G2-63 Viet. c. a, pnTailed and the appli- 
 catioi failed. 
 
 Halifax and Halifax Board of Trade t. Grand Tmak Sy. Co^ 1± Can. 
 Rr. Cas. m. 
 
 PDaoLEtTM — Disc«nn:xAnox — VonrEnmos — Rah. axd m^attm — Moxace 
 
 MSTASCES REMISSIOX OF irSTOJIS DCTIES- 
 
 AppUcatim directing the nKpondents to cease onjuat diseriminatioB bv 
 redneiag the tolls from 66 c^nts to 56 per hundred pounds on shipments 
 <rf petralenm and its prodoets^ in C.L. lot» all rail frmn Petrolia. Ont.. 
 to Winnipeg. Man^ to enable the applicants to complete saccess^fallr with 
 their competitors in the United States and at Samia. Ont.. vho vcre 
 shippers of the same coniBKtditT to the same point bj all rail and rail 
 and vater. and on the "Toand that the toUs were unreasonable. The 
 ^ief object of the applicatloa was to reduce the tolls so as to place the 
 applicants in as advantavrous position as they had been in c<Hnpetition 
 with the Kansas shi|^iers of the same commoditr, who had been practicallr 
 prcAibited from coaun^ into Canada until titt remission of the customs 
 duties of 2| cents a ^adlon: — ^Hdd <1). that a mere comparison of mile- 
 »gc distances without consideration of the peculiar circumstances affeetin? 
 the traffic was not the final eriterioB of unjust discrijnination. (British 
 Columbia Pacific Coast Cities r. Can. Pac. Ry. Co. (Vancourer Interior 
 Rates Ckae), 7 Can. Ry. Cas. 1£5. at pp. 142. 143: Lincoln Crearoer>- v. 
 Unioa Faeifie Sj. Co.. 3 I.C.C.R. 136. at p. 160: Dallas Freight Bureau r. 
 Missouri, Kansas t Texas Ry. Co., 12 I.C.C.R. 427, followed.] i2| That 
 railways wov not required by law and could not in justice be required to 
 eqnaliir natural disadvantages such as locatkm. cost of production, and the 
 like. [Black Mountain Coal Land Co. r. .Southern Ry. Co.. 13 LC.C.R. 286. 
 followed.] (3> That it was in the discretioa of the railway wheth:>r it 
 should or should not meet the competition of markets and other railways. 
 [Montreal Produce Merchants* Assn. t. Grand Trunk and Canadian Pacific 
 Rt. Cos.. 9 Can. Ry. Cas. 232. at p. 233: British Columbia Sugar Refinii^ 
 Co. r. Can. Pac. Ry. Co.. 10 Can. Ry. Cas. 169. at pp. 171, 172: Lancashire 
 Patent Fuel Co. r. 'London t North Western Ry. Cou. 12 Ry. C Tr. Cas. 79: 
 National Refining Co. r. Cleveland. Cincinnati. Chicago k St. Louis Ry. Co_ . 
 20 I.C.C.R. 649. followed.] <4 » That it was in the discretion of the carriers, 
 whether they would meet the alleged keen competition resulting fnun the 
 remission of the customs dnti<^. but this competition did not create a pre- 
 sumption of unreasonableness in the tolls, which must be proved. [Chi- 
 cago Board of Trade v. Atlantic City Ry. Co. and New York Produce 
 Exchan<re t. New York Central k. Hudson River Ry. Co_ 20 LC.CJt. -"KM. 
 at p. 318. followed.] «.lt That the through toll complained of was made 
 np of a basing toll on Fort William, and a toD which arose in the case 
 of both Canadian Pacific and Canadian Northern Ry. Cos. from the mut- 
 ual inter-relations of government agreements and CfNnpetition arising there- 
 fmn. and was not equal to the sum of the locals. (6> That a railway has 
 in its own interest the privilege of meeting water competition, but this 
 does not entitle a shipper to demand less than normal tolls because of 
 cimipetition which the railway in its own interest did not choose to meet. 
 [Plain k Co. v. Can. Pac. Ry. Co.. 9 Can. Ry. Cas. 222, at p. 223. followed.] 
 1 7 t That tbe burden as to unjust discrimination had therefore been «~ith- 
 stood and the complaint as to unrcastmahleness of tolls had not been estab- 
 lished. 
 
708 TOLLS AND TARIFFS. 
 
 Canadian Oil Cos. v. Grand Trunk, Can. Pac. and Can. Northern Ry. 
 Cos., 12 Can. Ry. Caa. 350. 
 
 [Affirmed in 14 Can. Ry. Cas. 201; followed in Manitoba Dairymen's 
 Assn. V. Dominion & Can. North. Express Cos., 14 Can. Ry. Cas. 142, 7 
 D.L.R. 868, followed in Re Cartage Lolls, 20 Can. Ry. Cas. 1; Western 
 Retail Lumbermen's Asso. v. Can. Pac, Can. Northern and Grand Trunk 
 Pacific Ry. Cos., 20 Can. Ry. Cas. 1.55; Nanaimo Board of Trade v. Can. 
 Pac. Ry. Co., 20 Can. Ry. Cas. 224; Graham Co. v. Canadian Freight Assn., 
 22 Can. Ry. Cas. 355.] 
 
 Petroleum — Joint tariff. 
 
 The Board has power upon an application by the shipper to make a 
 declaratory order as to what is the proper tariff of tolls applicable to a 
 certain class of goods althougli no consequential relief was granted to the 
 complainant on the application, llie tariffs of tolls applicable to ship- 
 ments of petroleum and its productions from the United States into Canada 
 is the "joint tariff" of January, 1907. filed with the Board to the exclusion 
 of subsequent tariffs filed, but not sanctioned by the Board. [Canadian 
 Oil Cos. V. Grand Trunk, Canadian Pacific and Canadian Northern Ry. 
 Cos., 12 Can. Ry. Cas. 350, affirmed.] 
 
 Grand Trunk and Canadian Pacific Ry. Cos. v. Canadian and British 
 American Oil Cos., 14 Can. Ry. Cas. 201. . 
 
 [Affirmed (sub. nom. Can. Pac. Ry. Co. v. Canadian Oil Cos.), 17 Can. 
 Ry. Cas. 411.] 
 
 Discrimination — Export and local tolls — Proportional tolls. 
 
 Complaint of unjust discrimination against the respondent, alleging that 
 the tolls for export from Routhier and other points north of Nomining to 
 Montreal are excessive and bear a liigher proportion to the locals from 
 points north of Nomining than from points south of it: — Held, that the 
 export tolls to Montreal from Loranger, Hebert and Campeau must be 
 leduced to 5 cents and from Routliier and Mont Laiu-ier to 6 cents and a 
 tariff to that effect filed. [Canadian Lumbermen's Assn. v. Grand Trunk 
 and Canadian Pacific Ry. Cos. (Export Tolls on Lumber (No. 2) ), 11 Can. 
 Ry. Cas. 344, referred to.] 
 
 Cox & Co. V. Can. Pac. Ry. Co., 13 Can. Ry. Cas. 20. 
 
 Discrimination — Commodity or fifth-class rates — Competition. 
 
 Application that the tolls charged were unjustly discriminatory and that 
 they should be reduced, being unreasonable per se. The applicant submitted 
 tliat the existing commodity or fifth-class rate from Auburn in the United 
 States to points in Canada, less two cents, should be the maximum subject 
 to the qualification that wlien the rates from Welland, Ontario, to shorter 
 distance points were less than the Auburn rate they sliould apply as 
 maxima. It was alleged by the respondent and admitted by the applicant 
 that there was no movement of binder twine from Auburn into Canada: 
 — ^Held (1) (Commissioner Mclean), that since the rate from Auburn 
 was only a paper rate there could be no competition and no unjust dis- 
 crimination. (2) Held, however (the Chief Commissioner and Commis- 
 sioner Mills), that the toll was unreasonable and the Auburn rates less 
 two cents should be applied. 
 
 Welland v. Canadian Freight Asso. (Plymouth Cordage Co.'s Case), 13 
 Can. Ry. Cas. 140. 
 
 [Followed in Consumers' Cordage Co. v. Grand Trunk, etc., Ry. Cos., 
 14 Can. Ry. Cas. 222.] 
 
TOLLS AXD TARIFFS. 769 
 
 Discmuaxxnox — CoscPKrmo:!^ — Com^iomxt kates — JyTTxsATWjcAi. 
 CiAssancMioy — IscmEJksx is vxkhx. 
 Afiplatmtiam to vitlidimv and caaed a. "V of OiiMwii«ii RjulvaT €!•«- 
 ficatioa (CLRXI) Xo. 2, on tke groond Oat duppen of other daans of 
 dWoaoditieB were ■BJoatlr di»eriaunat«I mganut m fBTOO' of tike Skip- 
 pers of II— iwliliiii uder s. *^~ uid applieatioB br the respoadeats tiut 
 «^ ~D'^ shoold be extended to aaj Teigbt op to #10 in Taloe. The appli- 
 cants fruned & "'JT <rf C.R.C. Xo. 2 to nwt tbe competition of the Port 
 Oflfee Dcpaitmait npon a lar>^ qnantiihr of commodities. The respondents 
 snlvittcd fkat •. ^D" should applj to anj vid^t up to $10 in Tnlne 
 althoq^ the Post Office Department competed onljr np to five poinds in 
 wei^t. Bjr eoafcrence betwcim officers r epteiim ting the er pi e— tumfinniim 
 of Cbnadn and the United States & ~1>^ vas placed in the International 
 daanfication apfrfring to traffic carried to common points between Oinada 
 and United States' and rice Ter^: — Held (1|, that the said seetiai dmold 
 remain in the dassificntion and should not be diminated. (2) That the 
 diifrimination was not andne because it was aot caaaed bj aar initiatrre 
 of the express eompanics. (3* That under the exceptional circnmstanees. 
 the scale of rates should not be remored nithoot affinmatiTe eridenoe that 
 it va.$ not profitable to the express companies carryi^ that class of traffic. 
 (4) That if s. ~D~ aas eliminated, shippers in Canada mi|;lit be injured 
 In- very mndi lovo- rates being ehai]^ed oa traffic originati^ at pointa in 
 the United States coming to Canadian w—moa poials aad ia the aaaK car. 
 <5| That it va^ optional vitb the eapiem companies to meet the reduced 
 rates introduced bj the Post Office DepartaMat or not. and the Board had 
 no jurisdiction to order than to carrr traffic in competition nith the 
 department. 
 
 Express Traffic Assn. ▼. Canadian Manufacturers Assn. et aL. 13 Can. 
 St. CaaL 169. 
 
 [Followed in British Columbia Xevs Co. t. Express Traffic. Assn^ 13 
 Can. Ry. Cas. 176.] 
 
 *!;■»«:*■ Rm,i poa SPECIAL KATBSi ^DrSCSDCIXSTIOK PbaCTICS. 
 
 In Tirtne of an agreement with the Government of Manitoba, Talidated 
 by statutes of that province and of the Parliamoit of Canada, the Cana- 
 dian Xorthem By. Co. estaUisbed special rates for the carriage of freight, 
 etc, to pmnts in Manitoba, and the Canadian Pacific Ry. Co. reduced its 
 rates, which had been in force prior to the a g r eemen t, in order to meet the 
 competition resuHii^ therefrom. The emnplaint made to the Board by the 
 respondeat was, in efTeet. that as similar proportionate rates were not jwo- 
 vided in leapeet of freight, etc to points west of the Province of Manitoba 
 there was unjust discrimination opoating to the prejudice of shippers, 
 etc, to and from the western points. On qnestiotts «abmitted for the con- 
 sideration <rf the Su pr eme Court of Canada: — Held, that the facts men- 
 tioaed are cimunstances and conditions, within the meaning of the 
 Railway Art to be considered by the Board in determining the question of 
 unjust discrimination in regard to both railways: that such facts and cir- 
 cnmstance« are not, in law. conclusive of the question of unjust discrimina- 
 tion, bat the effect, if any. to be given to them is a question of fact to be 
 considered and decided fay the Board in its discretion. [Cf. ^fontreal Park 
 k Island Ry. Co. v. MontreaL 43 Can. S.C.R. 2X-. Regina Board ot Trade 
 V. Can. Pac. and Can. Xorthem Ky. Cos. (Regina Toll Case 4. 11 Can. 
 Ry. Cas. .^«0. affirmed.] 
 
 Can. Pac and Can. Xorthem Ry. Coi^ v. Regina Board of Trade ( Regina 
 Toll Case.. 13 Can. Ry. Ca-. e03, 4o Can. S.C-R. 32L 
 Ckn- Ry. L- Dig. — »9. 
 
770 TOLLS AND TARIFFS. 
 
 DiSCRIMIXATION — FREIGHT AND PASSENGER TRAFFIC — COMPETITION. 
 
 By s. 317 of the Railway Act, 1906, the respondent is prohibited from 
 unjust discrimination in favour of its contractors by carrying their sup- 
 plies for sale in competition with otlier merchants. The respondent should 
 cease unjust discrimination, subject to a fine of $100 for any and every 
 case of default or continuation. The Board has no jurisdiction to compel 
 the respondent to open its railway for traffic; but if it applied for permis- 
 sion to do so it must carry freight and passengers under the jirovisions of 
 the statute. 
 
 British Columbia and Allierta Municipalities v. Grand Trunk Pacific 
 Ry. Co., 13 Can. Ry. Cas. 463. 
 
 Discrimination — Merchandise and express order scales. 
 
 Application complaining that a charge of sixty-five cents for return 
 C.O.D. collection from Vancouver to Napanee, of $27 was excessive, and 
 alleging unjust discrimination. For some years the agent at the delivery 
 office of the express company, instead of, as formerly, remitting and carry- 
 ing back the cash on a C.O.D. return collection, issued an express order 
 and posted it direct to the shipper, applying the merchandise scale of 
 charges instead of the lower express order scale: — Held (1), the charge 
 was excessive and constituted imjust discrimination against the C.O.D. 
 shipper. (2) The respondent sliould frame tariffs based upon other than 
 the merchandise scale of tolls. 
 
 Boyes v. Dominion Express Co., 13 Can. Ry. Cas. 517. 
 
 Contractor's supplies — Discrimination. 
 
 The fact that the officers of a railway company that gave a contractor, 
 who was building it, a preference in the transportation of freight over 
 the road before it was opened for traffic to tl»e public by an order of tlie 
 Board under s. 261 of the Railway Act, 1906, did not have knowledge that 
 the goods transported were being sold by the contractor for his own benefit, 
 or that they were not camp and contractor's supplies necessary for the 
 construction of the road, will not relieve the company from the charge 
 of giving an unlawful preference under s. 317 of the Act, wliere no attempt 
 was made by them to ascertain if the goods transported were actually 
 necessary to the construction of the road. 
 
 Re Grand Trunk Pacific Ry. Co., 3 D.L.R. 819. 
 
 Discrimination — Competition — Dissimilar conditions. 
 
 It constitutes an vmlawful preference and discrimination, under 8. 317 
 of the Railway Act, 1906, for a railway company to carry for an inde- 
 pendent contractor over a road he is construing which had not yet been 
 opened to the public for traffic by an order of the Board under s. 261 of 
 the Act, camp and contractor's supplies other than those actually neces- 
 sary for the construction of the road, to be sold by the contractor for his 
 own benefit. 
 
 Re Grand Trunk Pacific Ry. Co., 3 D.L.R. 819. 
 
 Discrimination — Side-haul toll. 
 
 It is not unjust discrimination for a railway company to charge a side- 
 haul toll to points where there is no competition, although no such toll is 
 charged to points where competition exists. 
 
 Wylie Milling Co. v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 8, 8 D.L.R. 953. 
 
 [See Wvlie Milling Co. v. Can. Pac, etc., Cos., 14 Can. Ry. Cas. 5, 8 
 D.L.R. M9.] 
 
TOLLS AXD TARIFFS. 771 
 
 ISCSEASE — Co^UtOOITT KATES DlSCWJITXATIOy. 
 
 The Boaird allowed tariffs vhk-fa kid die effect of euMellin^ eonnnoditj 
 rates less than ^th cla»» theretofore enjoijred for manv rears on rope in 
 eaiioad l<rtj: out of Montreal upon its appearing that Montreal vas the 
 obIt point in Canada where a Ic~«^ than 5th ela&$ rate applied and that 
 there had. therefore, been nnjost discrinunatkiB in faTour of Montrval 
 against other Canadian points. [Wellaad t. Canadian Freight ^sisn. 
 (Phrmoath Corda|>e Co'& Ca^*. 13 Can. Rt. Ga& 140. foUowvd.] 
 
 Consumers' Cordage Co. ▼. Grand Tmnk and Can. Pae. Rt. Cos., 14 Can. 
 Rt. Cas. ±*i 
 
 DlSCXUCESATIOX STOP-OTKB PBIYILBGES CaSXEMS — DiFFEXEXT LOCAU- 
 
 TIB& 
 
 It is onjost diflcrinunataoB to grant £t<9-OTer pririlqies to canners in oae 
 loealitT and refuse thcai to eannos in another lonilitT. 
 
 British Canadian Canners t. Grand Trunk Rt. Co~ 14 Can. By. Ca& 346. 
 
 DiscsnirsATfox between tocAuriES — ^Tmxs — CoMVODTrr — Fifth ctju&s 
 
 HiGHES BASIS — CoMFETmOX. 
 
 The fifth elaas tolls on wire fencing fro^ Ifaintzeal. westbound bei^ on 
 a hi^icr basis than the conunoditT tolls, ob shipawnts moTing from Ontario 
 pi»ts east bound, there was unjust discriniination against the Montreal 
 naanfaeCiirer in competition with the Ontario manufacturer. The appli- 
 cntioa ot Montreal manufacturers for a reduction in tolls below the fifth 
 claAS <» shiiHBents to points on the branches north of the main line of the 
 Canadian Pacific, Montreal to T(Mti»to, and north of the Grand Trunk main 
 line. Toronto to Samia. was refused because all manufacturers ^lippia^ to 
 the Northern localities were subject to the fifth class and the Board was 
 not dealii^ with the rcanonaMeaess of the tolls, but with unjust discrimina- 
 tion against MontreaL The tolls to points midway between Montreal and 
 Toronto and to certain points at the same distance from Montreal as others 
 fran Toronto, were placed on a paritr. but to points imnKdiatefy west of 
 Montreal a reduction bdow fifth class was refused because the advantage of 
 the ahortnesB of the haul against the kti^ haul of the competii^ Ontario 
 manufii hiif i ii would result in equalizii^ the tolls. 
 
 Montreal Board of Trade v. Canadian Fre^t As^.. 14 Can. Rt. Casv 
 347. 
 
 DlSCKUfXXATIOX MUXAGE BASIS DUYEZILVT COSafODITIIS. 
 
 Puttii^ the tolls on commeal on a mileage basis bj reducing them fntHn 
 17| to 1^ per 100 Ibs^ from Montreal to Xew Brunswick points, would be 
 unjust discrimination against the Maritime millers, and these tolls ^hoold 
 not be disturbed. It did not appear that thtrre was auy such essentia] 
 difference betwem the cmnmodities com and wheat and oats as would 
 justify a higher toll basis in the case^ of com. It has not been sIk^wu 
 that either in point of watnr competition. <»- in point of conditions affecting 
 carriage, there was sudi a difference of condition as to justify the dis- 
 criwnation between the ex-lake toll on com and that on wheat, oats, and 
 barley and com should, therefore, be given the same treatment as th« 
 latter, where an ex-lake toll on it was in effect. 
 
 Montreal Board of Trade t. Grand Tmnk and Can. Fie. Rt. Cos., 14 
 On. Rjr. Cas. 351. 
 
 ItaSaaMIXATfOX BK i niUKA lOCAUTIES — ^TfflXS — ^RESCCnOX — COICPABISOX — 
 
 T<HX BASIS — East axd westbocxd — CoMFErmox. 
 An application that the alleged unjust. dis«rriminatioB in favour of East- 
 
T72 TOLLS AND TAEIFFS. 
 
 ern refineries be removed and for lower freight tolls from Vancouver to all 
 jK)ints in Alberta and Western Saskatchewan, raises the point: Is the dif- 
 ference in rate basis eaatbound over tlie mountains from the Pacific Coast 
 justifiable as compared with the rate basis from Montreal and from the 
 liead of the lakes westl)ound? whicli is part of t!ie pending Western Kate 
 Investigation, and a ruling will not be given on this particular case in 
 advance of the ruling on tlie general case. [Uegina Board of Trade v. Can. 
 Pac. and Can. Northern Ry. Cos. (Regina Toll Case), 11 Can. Ry. Cas. 
 380, referred to.] 
 
 British Columbia Sugar Refining Co. v. Can. Pac. Ry. Co., 14 Can. Ry. 
 Cas. 354. 
 
 Reasonableness of Tor.r.s — Inoke;ase — ^Volume of traffic — Cost of 
 
 0PB3ATI0N. 
 
 A toll established in tlie first instance by a carrier of its own volition 
 having remained some time in force, is presumptively reasonable, and the 
 onus is on the carrier to sliew, with reasonable conclusiveness, that changed 
 conditions or increased cost of operation justified an increase. [Laidlaw 
 Lumber Co. v. Grand Trunk Ry. Co., 8 Can. Ry. Cas. 192, at 1!)4; 
 Montreal Produce Mercliants' Assn. v. Grand Trunk and Can. Pac. Ry. 
 Cos., 9 Can. Ry. Cas. 232, at 2;!8 ; Canadian Manufacturers' Assn. v. Cana- 
 dian Freight Assn. (Interswitching Rates Case), 7 Can. Ry. Cas. 302, at 
 308, followed; Cadwell Sand & Gravel Co. v. Canadian Freight Assn. 14 
 Can. Ry. Cas. 172, re-heard and reversed.] 
 
 Canadian Freight Assn. v. Cadwell Sand & Gravel Co., 12 D.L.R. 48, 
 15 Can. Ry. Cas. 156. 
 
 [Followed in Auger et al. v. Grand Trunk and Can. Pac. Rv. Cos., 19 Can. 
 Ry. Cas. 401.] 
 
 Reason able n es s — Jurisdiction. 
 
 Under 7 & 8 Edw. VII. c. 61. s. 9, the jurisdiction of the Board is con- 
 fined to a consideration of the reasonableness of the tolls charged for the 
 services rendered. 
 
 Kelowna Board of Trade v. Can. Pac. Ry. Co., 15 Can. Ry. Cas. 441. 
 
 Reasonableness — Through tariffs — Agreement — ^Transportation by 
 
 WATER. 
 
 Wliere a railway company transports cars from the end of its line by 
 means of barges, and the cars are unloaded at the dock by a winch, and 
 then hauled by horses over spur tracks, leading to warehouses, proper 
 delivery is made at the dock, and a further charge for hauling and 
 placing cars under an agreement is reasonable, although under the tariff 
 filed with the Board through tolls are quoted from tlie point of ship- 
 ment to destination, including water transportation. 
 
 Kelowna Board of Trade v. Can. Pac. Ry. Co., 15 Can. Ry. Cas. 441. 
 
 Reasonableness — IVIeasure — Conditions of operation — Cost of Carriage 
 — Volume of traffic — Discretion of carriers — Resultant traffic 
 — Rate of profit. 
 It is entirely within the discretion of a carrier to meet the com- 
 j)etition of another carrier or not, and if it chooses to do so, when tolls 
 jire attacked as to their measure of reasonableness, not simply mileage, 
 but conditions of operation, cost of carriage and volume of traffic, should 
 be compared. Dominion Sugar Co. v. Canadian Freight Assn., 14 Can. Ry. 
 Cas. 188, at p. 192, followed. Tlie right of a carrier to consider the re- 
 sultant traffic as a reason for a lower toll on the original commodity. 
 
TOLLS ASD TARIFFS. TIG 
 
 vkeiv haaltd to poats of ^•aniactiire ca its ova liar, is veil estabirshgd, 
 aad it does aot apptmr jostifiable to take the said toll as a Beaaoane oi 
 the rea.soiiaUeBess of mhrnt nhnald he ckaised bj the nspoadeat. [HichigaB 
 Sugar Co. t. Chathaa, Wal laut h tg t Lake Erie Rr. Col, U Cam. Rj. 
 C:k& 353, at p. 3«3, f<ri]oved.] 
 Kefewa Board of Trade v. Ckn. Pke. Ry. Col, 15 Gu. Rj. Ca& 441. 
 
 Toixs — Reaso.^able^tess — Cost or nBOiHXTiD::^ — JraiSDicnox. 
 
 The Board is not coaeerard vith eqpndizii^ costs of ^odnetiaB. It 
 
 is coBeeraed with the reaaaaableaess of the tadl, aot vith the rate of 
 
 profit the applicant is laaliag- [Inperial Rice Ifillia^ Cou t. Caa. Plae. 
 
 Rt. Cou 14 Caa. Bv. Cas. 373, folknred.] 
 
 'Hadsoa Baj Mia'ta* Ca t. Great Northern Rj. Co., 16 Caa. Ry. Cu. 2»«. 
 
 [FoOoaed ia Domiaion llillcrs Assn. et. aL r. CtaadiaB Prn{:ht Aasa, 
 21 Gu. Br. Ca&. 83; Thorold t. Graad Traak Rj. Co., 24 Cu. Rj. Cas. 
 143.] 
 
 Totjjs — ^Basis — OoxMoorrr — ^DiirraExcE ts taltk. 
 
 Where the tariff' in force recognized the differeaee in valoe of itre »s 
 a basis of tolls a minimum toil oa all oce of a ralue of &25 or less vas 
 hdd to be anm:$OBaliie and aa order vas aude re«iuirii^ the carriers to 
 differentiate as to ralaes ander iS5, bj fixii^ new tolls ior oie rahwd at 
 #13 or under and ftfO or onder. 
 
 HodsoB Bar 3iinin^ Col t. Great Northern Rt. Gol. IC Can. Rj. Cas. 
 2*4- 
 
 UXJirST niSCKOtlSATIOS — ^HlGHCB TOIXS yiUJXSG TS IKAXSIT — OOKMOX 
 
 UAKKXT. 
 
 It is anjusl distriminatioa to ^ai^ a. ki^m- ■illiag-ia-traasit toD 
 am the aaaie eonunoditr moving frtaa diffovat localities by different routes 
 nader similar eirmaistaBccs and eoaditiiMs to a coMa n aon t oaiiw I ia^^ market. 
 [Ontario k Manitoba Flour 3lills r. Can. Vme. Rj. Cou. 16 Caa. Rt. Oi& 430, 
 at p. 431, lef qied to.] 
 
 Doaunion KiUers Asai. t. Cknadiaa Frr^ht Asea. (MilliB^ia-Traasat 
 Casei, 22 Gu. Rt. Cas. 125. 
 
 .Stbcuu. TtMLL — Reasonable — Rox'^n — Jcmiswcnos;. 
 
 Tbe Board refused to give a rulin« that a special toQ vhi^ had afacady 
 expired was unreasonable, where no iurtber sJiipaMnts will be nnde, aad 
 the ruling was desired M!'lelT for the purpose of claimi^ a refnad ffioai a 
 h^her toll charged on the shipment in question. [Kitish J Lti i ta a CHI 
 Col t. Can. Pae. Rt. Co., 12 Can. Rt. Gis. 327. at p. 333, foDowed; 
 British Jkmerican Uil Co. t. Grand Trunk Rt. Co. (The StofT Ca^l. 9 
 Can. Ry. Cas. ITS: Canadian Coodensin* Co. t. Can. Pae. Ry. Co., 12 Can. 
 Rt. Css. 1. referred to.] 
 
 St. Lawrevce Pulp t Lumber Corpn. v. Gan. Par. Ry. Cos 34 Can. Rv. 
 Cas. 107. 
 
 bCBUSC — 'EffBCT ox EXISTDtC COXf«ACTS — XaTTBE or TBAFnc 
 
 Xotwitfetandinfr the provision in the Railway Act that tolls may 
 be increased on thirty days' notice, the Board, in saB^iminj; an in- 
 crease. wiB take into coB^^ideratioB the effect sodi increase is likely to 
 have upoB existii^ kn^-term contrarts betvcca coasignors aad con- 
 sipiees. and wilL when necesftary. suspend the increase for a reasonable 
 period so that it shaB not fall unfairly upon the dipper ia such ca^i^^. 
 The Board, ia dealin g with aa application to iaerease toDs, will ooa- 
 
774 TOLL8 AND TAliliTS. 
 
 sider the character of the railway, the nature of the trallic carried by 
 it, average haul, average tonnage per train, and other conditions affecting 
 its traffic, as well as, the tolls charged and sanctioned upon the lines, and 
 the traffic conditions of the latter. [International Paper Co. v. Grand 
 Trunk, Can. Pac. and Can. Northern Ky. Cos. (Pulpwood Case), 15 Can. 
 Ry. Cas. Ill, referred to.] 
 
 Eastern Townships laimber Co. v. Temiseouata Ky. Co., 16 Can. Ky. 
 Cas. 260. 
 
 Unjust discbimination — Milling in transit — Participating carrikrs. 
 
 The abrogation of milling in-transit privileges, formerly allowed in 
 respect of shipments milled at points on the respondents' line in Canada 
 destined to points on or via participating lines and their connections, 
 was held not to be unjust discrimination, as it was shewn that the 
 participating carriers did not grant the privileges in question to millers 
 on their own lines under similar conditions. 
 
 Empire Flour Mills v. Michigan Central Ry. Co., 16 Can. Ry. Cas. 425, 
 
 Unjust discrimination — Milling in transit — Canadian and foreign 
 
 MILLERS CoMPKTITION. 
 
 Unjust discrimination in favour of United States milling points as against 
 Canadian milling points is not established by proof that, (in order to 
 meet the toll of United States lines and participate in the business), 
 milling-in-transit privileges and tolls are allowed over Canadian lines 
 in respect of shipments milled at the lormer points, and not to ship- 
 ments milled at the latter, where it appears that the Canadian milling 
 points can enjoy similar tolls and privileges l)y an alternative route 
 through the United States to the same destinations so that there is no 
 actual disadvantage in practice. Unjust discrimination is not a matter 
 of tolls in the abstract, and the Board is not justified in interfering on 
 that ground without an affirmative shewing that there is actual detriment 
 resulting from the existing toll adjustment. 
 
 Empire Flour Mills v. Micliigan Central Ry. Co., 16 Can. Ry. Cas. 
 425. 
 
 Reduction — Furtherance — Competition — ^Unjust discrimination. 
 
 An express company may reduce its tolls for furtherance to meet 
 the market competition of another company, but it must at the same time 
 answer any allegation of imjust discrimination as to traffic received 
 xmder substantially similar circumstances, at points to which the reduced 
 tolls do not apply. 
 
 Aylmer Condensed Milk Co. v. American Express Co., 17 Can. Ry. Cas. 
 100. 
 
 DUAI, TOLLS — UtIMATE USE OF COMMODITY. 
 
 Dual tolls, charging a higher toll on cream for domestic use than 
 on that for butter making are anomalous and inexpedient. [Manitoba 
 Dairymen's Assn. v. Dominion and Can. Northern Express Cos., 14 Can, 
 Ry. Cas. 142, followed.] 
 
 Riley v. Dominion Express Co., 17 Can. Ry. Oas, 112, 
 [Followed in Western Retail Lumbermen's Assn. v. Can, Pac, Can. 
 Northern & Grand Trunk Pacific Ry. Cos., 20 Can. Ry, Cas. 155] 
 
 Reasonableness — Similar circumstancb:s. 
 
 Tolls as arrived at in the United States are not the criteria of reason- 
 able tolls in Canada imless tlte circumstances in both cases are on all 
 
TOLLS AXD TARIFFS. i75 
 
 [llaitoka nftnyaars Ahb. t. DoamioB aad Gu. KoitWfB Ex- 
 PR9S Coa, 14 CSu. Ky. Oul 1^ foOowcd.] 
 BDcy T. IXfluaiaa Esiftca* Cos 17 Gn. By. Ci&. 112. 
 
 JZSnriAMLB TOLL. — SexITKSXD KSflTIIS. 
 
 TW toD for a letiua e J OBptr is a efaai;ge iar a sCTfiee distiiiel. froaa 
 tkat of haiiliag the ncomiag package aad the existeaee of th» toll 
 B JHtilableu 
 
 ROej T. DoMuioa Express Col, 17 Caa. Br. Cis. 112. 
 
 KxdCsrnE <x ix<xrsiT£ or BBurEar sebtics: — ^Bn.£s. 
 
 la draliag vith the qoeatiaa vhether the mles as to carriage off creaai 
 ahouU proride for ddnrenr, the Board foDovs the priacipie oi ''all or 
 wumt" «ace it is mfair aad iae^edieat to aBalse the aoe of detiveiy serriea 
 at a girea praat optioaal vith tadiridiial cott^^vees. 
 
 Bilcy T. DoaaiaioB Express Gol, 17 Caa. Br. Ca& 112. 
 
 Tou.« — C'xxe4So?cjlble — ^Tmoci&H — DmsKkx. 
 
 A thso^g^ taiU of ill per toa oa aKmldiB^ suid fraaa FoatkiB to Tonato^ 
 a *=-»—«- of 7S adla, vhemf the Gtaad Tnnk Br. Co. meaTes 78 
 ccatB aad the Niagara, St. r«thariar« ft Toraato Ry.'Co. 22 eeats. vaa 
 held aot aareasoBable. [C— adiaa Ma— iae iai e ia Aam. t. Oi—diaa 
 Fieight Amm. (Gewral latcrsvitehii^ Order), 7 Caa. Rj. On. 302. 
 foUomd.] 
 
 FoBthin GraTCl Go. t. Graad Tnnk aid Xiaeaia, St. Gathariws 4 
 Tomato ^. CoSh, 17 Gaa. Br. Cas. 248w 
 
 I'XJCST KSCaiMrXATIOS USVCE nEFEMCXCB — QcE^nOX <W TACT — COM- 
 
 nrmox bt vatcs asv ramoKJs r^wmnx^ — Compabisos — Otembxad 
 
 OB CAFTTAL CHABCES. 
 
 The Baihraj Act dots aot forhid afl decrniaatiaaB aad prrfereaees. 
 bat oalr forbida aajiBt discriaiaatiaa or aadti prefereaccv aad whe- 
 ther either oae ur the other exists ia aaj partiealar case ia a ^a uti oa 
 of fact to he decided. DLserimiaatioa i^ta e e a the tidls ia Eastcra aad 
 Westera Cawada is aot aajast, but is jtt<tified br edcctire vatcr eoB- 
 petitk», aad Iff the coa ytiU oa of UjS. Baflwaiia thiooghoat Eaatoa 
 Caaada (TW latcraatioaal aad Toroato Board of Trade Bate Gasel. 
 Toils caaaot be based apoa coaaderatioB of the poeitioB of awjnat of 
 three exijtiag^ liaes of Baihray other eonplctcd or partiallj eoaa^etcd. 
 The qaestioa is vhat tirfU are fair. irrespertiTe <rf the fiaaacii 
 of aaj of sack eoaipaaies. Bates caaaot be auide am the bans of 
 ptiB a fixed p er ee ata ge to cover overhead or capital cbai^ges (Boileaa t. 
 Pacific k Lake Erie Br. Cou 22 LC.CJL iMO. at p. C»3. foDimcd.] Where 
 the local posscajecr bosiacsa is cuadaitcd at a haai. ao redaetiaa ia the 
 raics. is justified natil the reaolt ■■ ■surtsiard off tte laipwi W w eatB ia 
 railway grades aad operatic faciliticts. vbich the By. Co. is at prescat 
 ankiag. (Plea Hillers' Aan. t. Graad Traak aad Gu. Pbcl By. Cos.. 
 (Pea Millers' Caaei. 3 Caa. By. Gss. 433: Bideaa Lonber Co. ^ aL t. 
 Graad Tmak aad Cu. Pac By. Co$^ 8 Gaa. By. GasL 339: Moatrcal 
 Board ot Trade r. Graad Traak aad Caa. Pae. By. Cos., 10 Gu. Bj. 
 Oka. 319: Mooat Boyal Milliag Co. t. Graad T^nak aad Gaa. Pac By. 
 Cba, 11 Gaa. By. Gas. 347; Moatrcal Board of Trade t. Ckaadiaa Fre^ht 
 Aam^ 14 Gaa. By. Ca& 347: lateraatioBal Paper Co. t. Graad Trnak. 
 Cmm. Fac aad Caa. Xorthcn By. Co.. (Palpvood Gisel. 15 Caa. By. 
 Gas. Ill; Lrcerpofd Cora Tndexs* Asau t. Great Wcstna By. Gol.'8 
 By. 4 Oa. Tk^. Cssl 114; PSckerii^ et aL r. Loadoa 4 Xorthaestcm By. 
 
776 TOLLS AXD TAIUFFS. 
 
 Co., 8 Ry. & Ca. Tr. Cas. 83; Castle Trawlers v. Great Western Ry. 
 Co., 13 Ey. & Ca. Tr. Cas. 145; l)escl-i?oettcher Co. v. Kansas City 
 Southern Ry. Co., 12 I.C.R. 222; Malkin v. Grand Trunk Ry. Co. (Tan 
 Bark Kates Case), 8 Can. Ry. Cas. 1S3; Commercial Club v. llatticslnirjr 
 V. Alabama & Great Southern Ry. Co., 16 I.C.C.R. 534, at p. 545; Elder, 
 ])enip8ter Steamship Co. v. Grand Trunk and Can. Pac. Ry. Cos., 10. 
 Can. Ry. Cas. 334, referred to; Great Western Ry. Co. v. Sutton, L.R. 
 4 H. L. 220, at p. 237; Niagara, St. Catharines & Toronto Uy. Co. v. 
 Grand Trunk Ry. Co. (Stamford Junction Case), 3 Can. Hy. Cas. 256 at pp. 
 259, 260; Re Canadian Freight Assn. and Industrial Corporations, 3 
 Can. Ry. Cas. 427, at p. 428; Wegenast v. Grand Trunk Ry, Co. (Brampton 
 Commutation Rate Case), 8 Can. Ry. Cas. 42; Toronto and Brampton v. 
 Grand Trunk and Can. Pac. Ry. Cos., (Brampton Commutation Rate Case 
 (No. 2) ), 11 Can. Ry. Cas. 370; Almonte Knitting Co. v. Can. Pac, and 
 Michigan Central Ry. Cos. (Almonte Knitting Co.'s Case), 3 Can. Ry. 
 Cas. 441; Canadian Oil Cos. v. Grand Trunk, Can. Pac. and Can. Northern 
 Ry. Cos., 12 Can. Ry. Cas. 350, at p. 351; Blind River Board of Trade v. 
 Grand Trunk and Can. Pa«. Ry., Northern Navigation and Dominion 
 Transportation Cos., 15 Can. Ry. Cas. Hd; Montreal Produce ^lerchants 
 Assn. V. Grand Trunk and Can. Pac. Ry. Cos., 9 Can. Ry. Cas. 232; 
 British Columbia Sugar Refining Co. v. Can. Pac. Ry. Co., 10 Can. Ry. 
 Cas. 169, at p. 171; Lancashire Patent Fuel Co. v. London & North Western 
 Ry. Co., 12 Ry. & A. Tr. 79 ; Kerr v. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 207 ; 
 Michigan Sugar Co. v. Chatham, Wallaeeburg & Lake Erie Ry. Co., 11 
 Can. Ry. Cas, 353; Regina Board of Trade v. Can. Pac. and Can. Northern 
 Ry. Cos., (Regina Toll Case), 11 Can. Ry. Cas. 380, affirmed 45 Can. 
 S.C.R. 321, 13 Can. Ry. Cas. 203; British Columbia Pacific Coast Cities v. 
 Can. Pac. Ry. Co. ( Vancouver Interior Rates Case), 7 Can. Ry. Cas. 125, 
 followed.] 
 
 Re Western Tolls (Western Freight Rates Case), 17 Can. Ry. Cas. 
 123. 
 
 [Followed in Bovvlby v. Halifax & S. W. Ry. Co., 20 Can. Ry. Cas. 231; 
 West Virginia Pulp & Paper Co. et al. v. Can. Pac. Ry. Co., 23 Can. Rv. 
 Cas. 153.] 
 
 Express — Delivery — ^Limits — ^Zones — Graduated scale. 
 
 Municipal boundaries may usually be taken as suitable limits for free 
 express delivery service, in villages towns and small cities, but not in 
 large cities where municipal boundaries are enlarged from time to time. 
 The Board established a central zone in Toronto with free pick up and 
 delivery service. Outside of the central zone, additional areas, as a toll 
 zone, were established in and about Toronto comprising any tdace within 
 half a mile from the nearest free zone limit, except the southern limit on 
 the water front. A graduated scale of charges, according to weight, 
 was fixed for delivery of parcels in the toll zone. After a year's operation 
 a report is to be made to the Board, upon which a revision of conditions 
 may be made if deemed necessary by the Board. 
 
 Toronto and Citizens Committee v. Express Traffic Assn., 22 Can. Ry. 
 Cas. 375. 
 
 Tolls — Group arranokment — Dlstance — Mileage basis. 
 
 A group toll arrangement endeavours to average distance and public 
 convenience. If each point of a group is to be singled out for special 
 treatment on a mileage basis, then tlie group disapjiears and the points 
 with the shortest mileage get an advantage in marketing, therefore the 
 
TOLL:> AND TARIFFS. 777 
 
 Uglify imtsritre vitk a grtmfim^ »na ig«j ft »nplj «■ a 
 a£ to oae portioM of tfce airiBgLft- 
 FaDcTUa LamAcr «: :^iBelr Co. t. Caa. Pae. St. On, 17 Caa. Rt. Cas. 
 79. 
 
 UsjcsT aiscxnfxxAnas — l>ESTBncixsiG — SErrxa. 
 
 It » ■■!■■& diacziBiaatiaB to Rfase to ^laat iliiliifcali^ talk; to a 
 poiat witUa tke Bcipiaa aoae «■ tlie gnmml that tke napnoifcat kad 
 ■a diraefc roatr to tke poiadt ia f uttiu a L . bat the Board caaaot order a 
 nfiai ml Ifte exren toD chai^rd. 
 
 Lekahart t. Caa. Xorthna Rr. Co. IT Caa. Rr. Ca& 93L 
 
 Discsdios — Us JT^T ms€MiMtsjaaios — CmcrcxaiaBC. 
 
 A toD obtaiai^ am oor raOwar canaot be daoaed to be aajmtlj di» 
 q iMJ a atw y samfix becaiBe a toj] oa aaolher which is pat iato effect 
 for iiiai|Mlili<n Rasoas b hinrcr, it bei^ vithia the disentiao of a earner 
 vhether it shall awct eoanpetitiaB or aot. 
 
 EdMOBtoa. Ckvor Bar Saad Gol t. Graad Tmak PaeiiSe Rjr. Co, 17 Cka. 
 Sj. GasL «I€l 
 
 fFoDoacd ia Re Pkstsea^cr Tolls. 20 Cn. Rr. Ci& ^3; Grahaa Co. 
 T. Caaafiaa Frei^ JLsa^ ±* Caa. Rr. Cma. ZmH} 
 
 Reason ABLE — Jjom — Bm b. 
 
 A toll is aan&coaable whete it is too hnr jast as noeh as ahm. it is 
 too hi^ Tolk ^Bit be rriiwshh, hari^ regard to the carrier jmst as 
 ^■eh as to the travriiB^ pabla. 
 
 Bariii^tao Beach OxHMiHn ct aL r. Hawhtoo Radial EIpt. Rt. Col. 
 ±4 Caa. R^. Ou. ». 
 
 Cs^jrsT uis€maasATHfs — DitruoiAT st^tems — Local axb atrtrnns raoo- 
 
 The didercocc ia toll lii ilial betaeea two poiaia does aot aeecs- 
 larilj- create aa aajast diseziwaatiao siaee tber are ob dilocat ^r»- 
 toH of raitaajsw Upaa eoa^arB^gr the toO am inported vood pal^ with 
 the tall oo the loeal pvodaet, aad takia^ iato eiaKidaatiiaa the ulea^ 
 iavolred aad the tcnuaal ehargH «■ the iaspovtcd protect, the Board 
 i«Bad that the toll oa the imported ptodatt was reasooaUe. 
 
 HoweR Co. T. Graad Tmak:. Ou. P»t. aad Cu. Xorthna Rr. Cbs^, 
 17 Caa. Rt. Ca& 97. 
 
 Usjr&T ntscsufncATiox — Unrtcr — ^TKAmr — Saiiciitsc axb haxbiixs 
 — Coxmrnox. 
 
 Whea it appears that, at a laip aoaibcr ti places ia Oatario. aa- 
 dtr ^ore or less similar eirmastaaccs aad coaiitiaos. ao extn char«v 
 is Made for saritchiap tralfie fnam sidia^ located b e tae ea statioacv 
 it is i^jiKt discriwaatiaa to aake aa extra charpp of S3 per car for 
 svitchiap traCe of the applicaat. a brick aaker, frost a sidii^ 2| sules 
 distaat froos a statioa. C. vho is ia lowpetitioa vith fcrick Bakers at 
 said statKML [Christie. Beaderaoa & Ga. t. Giaad Ttvmk Rr. Cou. 9 Caa. 
 Rr. Ca!^ 30±. folhynd.] 
 
 Kloa T. Graad Tmak Rr. Co. 1« Caa. Rt. Gbs. «S. 
 
 [FoUoavd ia Hepworth. ete_ Brick Co. t. Gtaad Tnnk Rf. Oil, IS Caa. 
 Rt. Oas. 9. 
 
 UsjvsT vnxmoasAWUKut — CovrcTmox. 
 
 It ia aot oaj^sk dbcriBiaatiaa to tharge too loa a toD to «ae ataiket 
 
778 TOLLS AND TARIFFS. 
 
 as compared with that to another market, when no competition exists be- 
 tween tliem. 
 
 Guest Fish Co. v. Dominion Express Co., 18 Can. Ry. Cas. 1. 
 
 Unjust discbimination — Completiox of construction — Standard 
 
 TARIFFS. 
 
 Upon a section of railway being completed and taken over by the 
 operating department the railway company should file and put in force 
 standard tariffs under s. 327 of tlie Railway Act, 1906. There is unjust 
 discrimination where an unreasonably long time elapses after completion 
 before lumber mileage tolls are put in force on sucli section. 
 
 Riverside Lumber Co. v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 17. 
 
 [Followed in Re Edmonton Dunvegan & B. C. Ry. Co., 19 Can. Ry. Cas. 
 395.] 
 
 Change of destination — "C.L."traffic in transit. 
 
 Common carriers under the jurisdiction of the Board will be allowed 
 to make a uniform charge of $3 a car, as a reasonable toll for chang- 
 ing destination of C.L. traffic in transit. 
 
 Hyde et al. v. Canadian Freight Assn., 18 Can. Ry. Cas. 40. 
 
 Unremunerative tolls — ExcF^sivE OR unfair. 
 
 The Board cannot order railway companies to put in an unremunerative 
 toll so low as to be unfairly out of line with tolls which are necessary 
 to be maintained in order to permit the continuance of satisfactory opera- 
 tion of railways, due regard being had to proper consideration of the 
 value of the commodities shipped and the services performed; it cannot 
 take into account matters of business policy and railway administration, 
 but can only inquire whether tolls are excessive or unfair. 
 
 Western Ontario Municipalities v. Grand Trunk, Michigan Central and 
 Fere Marquette Ry. Cos., 18 Can. Ry. Cas. 329. 
 
 Rfjduction — Increase — Flat blanket C.L. — ^Average revenue. 
 
 The annual statistical returns made by railway companies shewing 
 the average revenue per ton per mile of all freight movements will not 
 justify a reduction of tolls by the Board. In every case the traffic moved 
 must be of sufficient volume and the hauls of sufficient length to insure 
 proper remuneration. Without prejudice to a pending application for 
 increased tolls a flat blanket C.L. toll of 50 cents per ton for any distance 
 up to and including 50 miles on gravel was voluntarily conceeded under 
 s. 341 of the Railway Act, 1906, by railway companies concerned to aid 
 municipalities in Western Ontario in prosecuting the "good roads" move- 
 ment. 
 
 Western Ontario Municipalities v. Grand Trunk, Michigan Central and 
 Pere Marquette Ry. Cos., 18 Can. Ry. Cas. 329. 
 
 Joint tariff — Jurisdiction — Through tariff. 
 
 The Board has jurisdiction by virtue of the Railway Act, 1906, s. 26, 
 to make a declaratory order as against the carrier that rates exacted by 
 it between certain dates were illegal, although by reason of a subsequent 
 change in the authorized tariff no executive order was necessary nor was 
 any made by the Board. [Canadian Pacific and Grand Trunk Ry. Cos., v. 
 British American and Canadian Oil Cos., 47 Can. S.C.R. 155, 14 Can. Ry. 
 Cas. 201, affirmed.] S. 321 of the Act applies to all tariffs whether stand- 
 ard, competitive or through tariffs. 
 
 Can. Pac. Ry. Co. v. Canadian Oil Cos., 17 Can. Ry. Cas. 411, [1914] 
 A.C. 1022, 19 b.L.R. 64. 
 
TOLLS AXD TARIFFS. 77» 
 
 UxjfST •MSCKixrvATiox — Same c«crM*sTA:«cfcs axd cox»rnoxs. 
 
 A elaim <rf unjust dia^riminattoa, betwcB the tolls riur^cd for it- 
 liverx of trr^t at differmt poiats, soaie of vkkfc have aud others have 
 not, further ratlwaj tomiaaaitatioa before fiaally cklivenr U made, eaa- 
 Bot be »U|^ported vhoe the niT <irnuii»tan«es aad coaditKws do aot aad 
 caaaot exist. 
 
 KeloTBa Board of Trade v. Ckaadiaa Paeifie Br. CIol, li Caa. Rr. Gas. 
 441- 
 
 UsjrST MSCSniXXATION MlLUXC IX TKAXSir. 
 
 The Board, ia the e^ccreise of its jnrKdietioa to p even t najnst di^ 
 rriminatioB ha^ power to ordo- that nillia^ ia transit be alloved to 
 flour mill owners applying therefor, upon proof that cirettmatinrri aad 
 conditions with respect to the traflie from the apylicaats' aull are aah- 
 staatiallj similar to those of mills atreadr eajoyia^ aodi rate. 
 
 Ontario t Maaitoha Flour Mills t. Can.' Fac Rj. Col, 16 Can. Bj-. Gu. 
 430. 
 
 [FoDoaed ia Sodburr Brevii^ etc Co. v. Caa. Pac Rj. Co, IS Caa. Bj. 
 Caa. 410.] 
 
 BuLSasJoa^ — Cost or Fwawrcno.v — Eqcauzatiox. 
 
 The Board has no ri^t to attempt to e<iuali2e ge ogr a phical, elimatie 
 or cctmoBic eonditioBs affecting cost of pvoduetioB, bat is oaljr eam- 
 m a eJ with the reasaaaUeacss of the toll arhi«ii the carrier is aeririag 
 to coDeet far the transportotioB of a given eoaamoditT. 
 
 CaaadisB Ckiaa Ciav Co. v. Grand Trunk. Can. Pac. aad Caa. Northern 
 Kt. Cos.. 18 Can. Ry.'Cas. S47. 
 
 '(Folloved in Roberta v. Can. Pac Rv. Co.. 18 Can. Ry. Gasw 350; 
 Thorold v. Grand Trunk Ry. Co.. 24 Can. Ry. Cas. 143.] 
 
 ex. — ^USIT OF WEIGHT — DISADVANTAGES OT SnimXS — EqCAUZ^TIO^C 
 
 Cost or mooccnox. 
 
 Railway companies are not obliged to equalize the disadvaatages of 
 the shippns front the standpoint ot the eoi«t» of fvodnetioa. The basis 
 oi toll mitring SO far as the unit of weight is eoBcemed is 100 Ibsu. and 
 the t<^s vary with the weight. The Board will not require seasoned aad 
 lutseasoned wood to be carried at the same CLL. tc^. ii ic sp ec Uie of 
 weight, in order to equalize the disadvantage arising to shippers without 
 capital as oMBparcd with shippers having capitaL to do so would create 
 unjust discriminatory eonditioB& [Canadian Portland C e me nt On. v. Grand 
 Trunk and Bay <^ Qninte Ry. Co&, 9 Can. Ry. Gsa. 211: Blaugas Col v. 
 Canadian Freight As^i.. 12 Can. Ry. Cas. 303. at p. 304: British Colombia 
 News Co. V. Express Traffic Assn.. 13 Can. Ry. Caa. 176 at p. 178: Canadian 
 China CUy Co. v. Grand Trunk. Can. Pac* aad Can. Northern Ry. Cos.. 
 18 Caa. Ry. Cas. 347. folfewed.] 
 
 Roherts'v. Can. Pac, Ry. Co., 18 Can. Ry. Cas. 350. 
 
 [Followed in Thtwold v. Great Trunk Ry. Co., 24 Can. Ry. Cas. 143.] 
 
 Uxjtst M-scBntrxATiox — CownrEa tmj-s — ^THa(n:<^ ssaruEsrs. 
 
 It is not tmreasonable that the eunbined tolls on fchiptnli froiB the 
 east eontractcd to Fort William, delivered and stared tlmv, aad sabae- 
 quently shipped west should exceed those charged from the saaw caatem 
 shipping point to iht amme western destination, for the tranashippiBg 
 of which the carrio- mast aeeessarily provide facilities at Fort William. 
 as ia the latter eaae there is but one traaaactioa or coatract, whilst in 
 the former thoe are two, therefore it is not aajast diseriminatioa against 
 
780 • TOLLS AND TARIFFS. 
 
 Fort William to impose a wharfage toll on shipments to that \H)int and 
 not to exact it on througli shipments. 
 
 Fort William Board of Trade v. Can. Pac. Ry. Co., 18 Can. Ry. Gas. 401. 
 
 Unjiht uiscRTiriNATiON — Standard freight mileage tariff — Groups — 
 Density — Main and branch lines. 
 
 Difference in density of traffic as hetween main and branch lines does 
 not affect the application of a standard freight mileage tariff, therefore, 
 all points whether on a main or bi-anch line, within tlie same mileage 
 group, should be given the same toll and it is unjust discrimination to 
 make a different toll against one point of the group. 
 
 Two Creek Grain (irowers' Assn. v. (an. Pac. Ry. Co., 18 Can. Ry. Cas. 
 403. 
 
 Poultry — C.L. — Classification — Finished product. 
 
 Live poultry in car loads is not entitled to the same classification and 
 the same tolls as live stock, and in making a freight toll reshipment of 
 the finished product is always taken into consideration. Poultry ship- 
 ments move under a lower classifiiation in Canada than in the United 
 States, and third-class rating for live poultry in car loads is not unrea- 
 sonable. 
 
 Warrington, et al. v. Canadian Freight Assn., 24 Can. Ry. Cas. 155. 
 
 Unjust discrimination — Storage tolls — Competition. 
 
 The practice of railway companies in granting lower forwarding stor- 
 age tolls than the local storage tolls is not unjust discrimination, because 
 tolls which otherwise of necessity might be charged on a parity may differ 
 one from the other as a result of competitive conditions. 
 
 Port Arthur and Fort William Boards of Trade v. Can. Pac. Ry. Co., 
 18 Can. Ry. Cas, 406. 
 
 Milling -in -transit privilege — By-product — Unjust discrimination. 
 
 No instance can be found where a milling-in-transit privilege on the 
 by-product has been granted, apart altogether from the main product: 
 a brewing company, therefore, is not entitled to a milling-transit 
 privilege on the offal of malt grain carried by the respondent on its line 
 from Fort William to Sudbury, and there brewed in the applicant's brew- 
 ery. Shippers are not entitled to a milling-in-transit privilege as a mat- 
 ter of right, and its allowance in the public interest by carriers to ship- 
 pers in one section must be without unjust discrimination to shippers in 
 another section served by its line. | Koch v. Pennsylvania Ry. Co., 10 
 I.C.C.R. 675; Ontario & 'Manitoba Flour Mills v. Can. Pac. Ry. Co., 10 
 Can. Ry. Cas. 430, followed.] 
 
 Sudbury Brewing & Malting Co. v. Can. Pac. Rv. Co., 18 Can. Ry. Cas. 
 410. 
 
 Blanket tolls — Competition — Long and short hauls. 
 
 Dried fruit is carried eastward from the Pacific Coast under tariffs 
 giving a blanket toll of $1.10 from San Francisco to, e.g., St. Paul, Duluth, 
 Buffalo and New York. The same toll is applied to junction points ad- 
 jacent to the international boundary, and there is the same toll to Winni- 
 peg. The toll to Toronto is the same as to Buffalo, while Montreal has 
 the same toll in competition with New York. The toll to Fort William 
 is the toll to Duluth, plus the by-water toll from Duluth to Fort William, 
 and wharfage I'liarges at Fort William. Competition is thus more effective 
 in favour of Toronto than Fort William. There being no movement of 
 dried fniit via Winnipeg and Fort William to Toronto — the traffic moving 
 
TOLLS AND TARIFFS. T81 
 
 thnm^ r«ittcd States pants oslr — tkocfMv. tbrre its bo Tiolatiaa of 
 the hm^ aund short kud dane, a^ 31a (ai ci At Raihrav Act. IMS. aad 
 the -^JaK^ toO mijmtmtmt kas mm bcea slww to wortc detrwcatallr 
 to Fort WniiaM. 
 
 lUthias T. Cu. Plae., Gu. Xortkm ud Gnud Tnwk PiMific Rr. Ca&. 
 19 Cu. By. Caa. 410. 
 
 Coarr or ■EKiKK — CX- 
 
 UpoB the eridcaee 4^ co^t of »«nk t the Board fixed 4^1.73 per car a« 
 the proper iaU for haadliag carload frei^ft tnfie b e lac «« car \mrgf asd 
 land teaa tracks or prrrate sidinsf at Kehma. B.C. [Kriovaa Board of 
 Trade t. Cmm. Pte. Rj. Co.. 13 Caa. St. Cas. 441^ referred to.] Coa|daiBt 
 agaiMi the toU of '^±J.ilf per car nade br the reapiiirwl for haadliag 
 cars froai the dock at Kelowa to aad fwvim the varioas varehoBses^ 
 
 Kekma Board of Trade x. Can. Paci Bj. Ccw 19 Cam. Br. Cks. 414. 
 
 UxjusT atscMoasxtKts axd rsEmcxcc — Tmxmc ^toTEMEsr — ActjjiAJL 
 
 A Mcre st a tiiat as to dificreace of tofls is aofc co m* law ig i 
 the eairtfce itf oajiKt diseriaBiaalMi or vdoe prriocaee: there 
 be eridcaee of the traffic awii^g aad the tSett thereoa. aad the diMriauaa- 
 tioB anst he oae q e alii ^ actaal detrnaeat to coipiaiaaats to Make it 
 najast. 
 
 Loadoa Board of Trade Expieas Traffic A«w,, 19 Caa. Bj. Gas. 439. 
 
 I:^HiKrrio?E — D iffiunL mATio^ of veight& 
 
 A turner is aot ji^tified ia iaiposi^ toU» oa the saiae i laaMwlilj dif- 
 fcria^ accordn^ to the n:i« to vhich it t$ pat. aad the irsase iahibitioB 
 attaches to a differeatiatioa of auaianua ve^rts based oa the ase to whiA 
 the coasBoditT is pat. [RileT t. DooBiaioa Exptcas Odu 17 Caa. Br. Css- 
 112. foOoBcd.] 
 
 Westcra Betafl LaMb ei ana 's A^sa. t. Caaadiaa Piacific et aL Br. Goe., 
 30 Caa. By. Cas. 1m. 
 
 [FoDovcd ia Haj aad StiB Mf«. Co& x. Graad Traak aad Gaa. Pise. 
 By. Cos., SI Caa. Itr. Gs& 43.] 
 
 ObuglATkkxs — BcASOSABLE TOLL — RsiHrcnos — PaoFiis — MEnvrv 
 
 The oMigitioa of carriers is to charge a leasoaable toll, aad ther are 
 Bot caDed mptm. throagh the redoctioB of the UA, to gaaraatee that a 
 shipper aiQ ahrajs be able to carry oa hairiaras at a pntft, aor are car- 
 riers aader aay obligatiaa to so adjust their auaiamM atn«ht< as to 4^- 
 set SBT iah^ntat disadiaata^ics of a basiaese^ [Gsaadiaa Portlaad Ccaneat 
 Co. T.'Graad Traak aad Bay of Qaiate By. Goa.. 9 Caa. By. Css^ 309. at 
 p. 210: Caaadiaa OQ Cos. t. Grand Traak. Caa. Pke. aad Caa. Xorthera 
 By. Cos- 13 Cka. By. CasL 3-)«>. at p. 3»6: British Colaari>ia Xevs Co. t. 
 Express Traffic Af!«aL 13 Caa. Ry. Ca». 176. at p. 177, foUoved.] 
 
 Westcra Bctail Laaahei a ita's A$^ t. Caa. Pac^ ct aL Br. Cosu, 30 Caa. 
 By. CasL 1m. 
 
 [FoUoavd ia Hay aad Still Mf«. Cos. r. Graad Traak aad Caa. Pkc 
 By. Goe.. 21 Caa. By. Ca^w 43: referred to ia Donaioa MiDeT? Assa. el 
 aL T. Caaadiaa Fre^bt Ajkv.. 31 Caa. By. Cas. S3: foOoaed ia Crashed 
 Stoae etc. t. Graad Traak Ry. Co.. 33 Caa. By. Cas. 132.J 
 
 HiGHIK BASIS FOB BaAXCS A^FO L.&TEaAL UXK. WMA I K . 
 
 A sli^tly hi^Mr toll basis is jastifiaUe froai braacb aad lateral Kae 
 poiats thaa froai adjaccat naia liae pmats. [AlaMate Kaittis^ Co. r. 
 
782 TOLLS ASD TARIFFS. 
 
 Can. Pac. and Michigan Central Ry. Cos. (Almonte Knitting Co. Case), 
 3 Can. Ry. Cas. 441: Malkin & Sons v. Grand Trunk Ry. Co. (Tan Bark 
 Rates Case), 8 Caft. Ry. Cas. 183; Oyler et al. v. Dominion Atlantic Ry. 
 Co., 20 Can. Ry. Cas. 238, followed.] 
 
 Hunting-Merritt Lumber Co. v. Can. Pac. and British Columbia Elec. 
 Ry. Cos., 20 Can. Ry. Cas. 181. 
 
 Discretion — Tolls — Uxreasonablk — Terminal — Competition by water 
 — Unjust discrisiination. 
 
 If a carrier does not choose to meet water competition, the Board's whole 
 right to interfere with a toll is confined to a case where the toll charged 
 is unreasonable for the services rendered, therefore, where a carrier chang- 
 es the route of its car ferry it is not unjust discrimination for it to charge 
 a reasonable toll for the rail haul necessitated, instead of the former ter- 
 minal toll only. [Plain & Co. v. Can. Pac. Ry. Co., Can. Ry. Cas. 223; 
 Canadian Oil Cos. v. Grand Trunk, Can. Pac. and Can. Northern Ry. Cos., 
 12 Can. Ry. Cas. 350; Blind River Board of Trade v. Grand Trunk, Can. 
 Pac. Rys., Northern Navigation and Dominion Transportation Cos., 35 
 Can. Ry. Cas. 146 at p. 156, followed.] 
 
 Nanaimo Board of Trade v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 224. 
 ' [Reheard and affirmed in 23 Can. Ry. Cas. 93.] 
 
 Contract — Obligation of carrier — Adequacy of consideration. 
 
 The Board will not consider adequacy of consideration in a contract as 
 any justification for favoured treatment by a carrier of a shipper in 
 respect of tolls. [Crow's Nest Pass Coal Co. v. Can. Pac. Ry. Co., 8 Can. 
 Ry. Cas. 33, at pp. 40, 41, followed.] 
 
 Lake Superior Paper Co. v. Algoma Central & Hudson Bay Ry. Co., 22 
 Can. Ry. Cas. 361. 
 
 Reasonableness — Traffic movement — Main and branch lines. 
 
 In dealing with the reasonableness of tolls charged on a slight traffic 
 movement, the Board has recognized that under certain conditions tolls 
 to or from a point on a branch line may be higher than in the case of a 
 main line movement. [Almonte Knitting Co. v. Can. Pac. and Michigan 
 Central Ry. Cos. (Almonte Knitting Co. Case), 3 Can. Ry. Cas. 441; 
 Malkin & Sons v. Grand Trunk Ry. Co. (Tan Bark Rates Case), 8 Can. 
 Ry. Cas. 183, followed.] A somewhat higher toll basis is justifiable, where, 
 on accoimt of the urgency of the grain movement, leave is given before 
 completion to a branch line to engage in the carriage of traffic. In gen- 
 eral standard mileage tolls may properly be charged to the junction point 
 where the special mileage tolls become effective on the branch line. 
 
 Oyler et al. v. Dominion Atlantic Ry. Co., 20 Can. Ry. Cas. 238. 
 
 [Followed in Hiuiting-Merritt Lumber Co. v. Can. Pac. and British Co- 
 lumbia Elec. Ry. Cos., 20 Can. Ry. Cas. 181.] 
 
 Period of continuance — Capital — ^Investment — Commitments. 
 
 While it is proper to take into consideration the period a toll has been 
 established, the investment of capital made in the belief that such toll 
 would continue and the further commitments made, there is no property 
 in a toll, mere continuance is only one factor, its general reasonableness 
 must be considered. [International Paper Co. v. Grand Trunk, Can. Pac. 
 and Can. Northern Ry. Cos. (Pulpwood Case), 15 Can. Ry. Cas. Ill, 
 followed.] 
 
 Lake Superior Paper Co. v. Algoma Central & Hudson Bay Ry. Co., 22 
 Can. Ry. Cas. 361. 
 
TOLLS AXD TARIFFS- 183 
 
 H>Axwirr rau. — DBSBxoniEXT OF tusffh: — Eescucaxt pvorrr— Obucahox 
 
 A Uufcct toD p« m for itiiliifiBl of fzafir, witk brt tttle attntioa 
 to tht resaltaat pnfit, doa Bot ocate aa obUsaiaB to eoatmae aa nadalr 
 lovr toll basi& [lateraatiaB^ Fkpa- Col t. Graad Tmak. Can. Fftc a»d 
 Caa. Xoftkoa Bj. Goa. fPalpwood Casel, 15 Caa. Rt. CasL 111. iollovcd.] 
 
 Lake Supcriar Paper Col t. Alcona Cottial i Hodsoa Bar St. Col, H. 
 Caa. Rt. Gu. 3S1. 
 
 REJksoxjkBu:xES« — Jvmssmcnos — Cokt or raooccnox — Wdchts — 
 
 ISCBEJkSB> EFFKXEXCT OT BOUXXC STOCK — Ct-iSSfFHTAXKiS CAKKTnCC 
 
 FmrEBor cab. 
 
 The Board is ao* coaceracd vitk aqf riuiag coals of pradttioa; it» 
 jaiiodietiaa relates oahr to reasoBaklcaess «f tells. [HadaoH Bajr Miaia^ 
 Col t. Gicat Xotthera Br. Co.. IS Caa. Rt. Cisl 234. at p. 239: Caaadiaa 
 PortlaBd GeaMat, Gol t. Gnad Tnnk aad' Bajr of Qniate Bj. Cosl, 9 Caa. 
 Bt. Gaa^ aO§. at p. 211, followed.) la Snag a CJU ■iaiwa», it is ia the 
 gtaua l iatovst to ianease loadia^ ah c i efc i rraw hly possible aad 
 t heiebi iaoease the cficicaej of the rollii^ stodk. Im ■ ■ttrta of dassi- 
 ficatioa aad taOs esfaHirWd trade coaditiaBs or oU%stiaBS. '■hile aot 
 of aatEAfeitj aad coThtiiTe obsfades n the waj of duu^e. ■ ■a t he eoasid- 
 ered: it is a «nie »ti o a of j ai lj g , i a t vfcat is a ^ir neaa betae ^ tke phra- 
 eal caiTji^ poavr of the ear aad the pobUe iatenst as affected thereNy 
 aad the eoadBtioa? nadrr whick bnsiaeas is carried oa. [Westera Retail 
 L aaJmta 's A^ t. Caa. Pac Cut. Xorthera aad Grud Troak Pteeifie 
 Bx. Cos., 20 Ou. Bt. Cas. 1m. rdcnvd to.] 
 
 *Doouaioa Millers A5«». et aL t. Ckaadiaa Fre^t A^a., 21 Gml Bt. 
 Cks. S3u 
 
 UxJCST BiscannxATios — Jvutsmcnax — Refctsl 
 
 It is oajiBt discrimiaatioa. other tkia^ hei^ eqaal, to Aargc a hi^er 
 toD tiuM oae poiat of origia as compared with aaother, at practiealhr 
 the saaw diiila a fe fraa the riiag poiat of desfiaatioB. The Board has ao 
 jarisdirtiaB to direct a rrfoad of a portioa of a toD tSarged aad collected 
 uader a tariff l^aOr ia force, pfoafreal Board of Trade t. Graad TWak 
 aad Gaa. Fac. Rt.'Cos^ 14 Gaa. Rt. Cu. S3l: Dowaioa S^ar Col t. 
 Grand IVaric. Caja. FiBc_ Chathaom WaDaeelMiiw 4 Lake Erie aad Per* 
 UarfflKtte I^. Cosl. 17 Caa. Rt. Cas. 240. at p. 247. referred to.] 
 
 IGdlaad Loaber Suppers t. Graad Traak Rt. Cos 22 Gaa. B;t. Gas. 
 387. 
 
 (FoDoved ia Xaaaiao Board of Trade t. Gaa. Pac^ Br. Ool, 23 Gaa. 
 Jfy. Cas. 92.] 
 
 UxjTST wascmatrsiTio^ — Thaaxnayc or ctaair^w — CoxrEnnox or xak- 
 
 KETS — EXPOBT — PaKUT OP FOKEB. 
 
 Sabject to the p rpfi ai oBS off tibe BailaaT Act arith re s pe ct to aajnst 
 diseriaiiaatiaa, it is eatirdr arithia the diseretioai of carriers ahe thei ther 
 shaO or shaD aot fix tolls to meet the coanpetitioa of maxtets. Whea ex- 
 port sells hare beca ia^taHed the Board has directed thfir eoatiaaaaee or 
 re-estaUiEhmeat to maiataia a paritr of porta, hat Oe Board viD aot 
 direct escort toila to be put iato forte vhere ao soch tolls haw edsted. 
 IMoatreal Prodaee Merchaats A^sa. t. Graad Tnoik aad Caa. Pae. Rt. 
 CosL. 9 Caa. Rt. Caa. 232: British Cohimbia Si^gar Befiai^ Co. t. Caa. 
 Par. Bt. Col, 10 Caa. Br. Cas. 109 at p. 172; Caaadiaa Lombermea^s Assa. 
 T. Gnnd Traak. etc. Bt. Cos.. 10 Caa. Br. Ca& 306 at p. 319: Caaadiaa 
 (HI Cos. T. Graad Tnak, Caa. Pac. aad Caa. Xorthera Rt. Cos., 12 Caa. 
 
784 TOLJ.y AND TARIFFS. 
 
 Ky. Cas. 350 at p. 356; Edmonton Cloverbar Sand Co. v. Grand Trunk 
 Pacific Ry. Co., 17 Can. Ry. Caa. 95 at p. 97, followed. Britisli American 
 Oil Co. V. Grand Trunk Ry. Co. (Stoy Oil Case), 9 Can. Ry. Cas. 178 at 
 p. 184; Dominion Millers Assn. v. Grand Trunk and Canadian Pacific Ry. 
 Cos., 12 Can. Ry. Cas. 363, referred to.] 
 
 Graham Co. v. Canadian Freight Assn., 22 Can. Ry. Cas. 355. 
 
 Co^^PETITIOX by water — Un.tust discbimination. 
 
 It is not unjust discrimination nor undue or unreasonable prejudice 
 or disadvantage under ss. 315 (5), 318 of the Railway Act, 1906, for a 
 carrier to charge lower tlian normal toll from the point of shipment to a 
 destination point owing to eflFcctive water competition, than on shipments 
 from the same point to an intermediate point where such competition is 
 not effective. 
 
 Chatham et al. v. Can. Pac. Ry. Co., 22 Can. Ry. Cas. 391. 
 
 Increase — Justification — Basis — Reasons — Inadequate returns 
 — Parity — Competition . 
 Notwithstanding that standard tariffs of toll have heretofore been 
 filed witli and approved by the Board as required by s. 327 of the Railway 
 Act, 1906, and that the increased tolls proposed by the applicants to be 
 imposed under special tariffs of tolls are lower than those set out in such 
 standard tariffs of tolls, the onus is nevertlieless upon tlie ap])licants to 
 shew cause for the increase of tolls under the present special tariffs of 
 tolls wliich must prima facie be considered to have been fixed as fair and 
 reasonable. To justify increase in tolls under special freight tariffs of 
 tolls the applicants must shew that the existing tolls have been found 
 to be unremunerative ; that costs liave increased: or that conditions or 
 exigencies of traffic have changed; and only such increase will l)e authorized 
 as are just and reasonable under existing conditions. The Board found 
 that railway operating expenses had necessarily increased both per mile of 
 line and per train mile and that the percentage of increase of cost per train 
 mile between 1899 and 1914 greatly exceeded the increase of earnings 
 per train mile notwithstanding greatly increased traffic and many econo- 
 mies effected by increased locomotive power, better grades and more 
 effective loading. Having taken into consideration the position of the 
 three chief railways respectively which are subject to the Board's juris- 
 diction in Eastern Canada, the Board found that no injustice could be 
 done the shipper by selecting the actual results of tlie earnings of the 
 Grand Trunk Railway Co. as a basis of tolls; but, in so doing, the Board 
 refused to take the capital cost of the line as carried on the company's 
 books as a criterion, holding that traffic could not move under tolls fixed 
 •with reference to that cost, which included reconstruction charges, made 
 inadequate allowance for depreciation and was excessive in comparison with 
 the cost of lines recently constructed. Freight tolls in Eastern Canada 
 should not be called upon to support investments by the Grand Trunk 
 in the Grand Trunk Pacific or deficits upon operation of subsidiary lines 
 in the United States, notwithstanding that these subsidiary lines supplied 
 a large tonnage to be carried over the compaany's lines in Canada. In 
 the interest of shippers and the public, railway companies should be al- 
 lowed to charge tolls which will yield a return sufiifient to provide fa- 
 cilities and rolling stcx-k. The Board found that economies had been forced 
 upon the Grand Trunk which must result in inferior accommodation and 
 Bcrvice and which could not continue without great loss and inconve- 
 nience to the shipping and traveling public. Taking for comparison the 
 
TOLLS AXD TARIFFS. 785 
 
 capital cost n^pntrnrir of eertaia lue» rrmtlT Imilt aad alk»«rfai^ 6 pn- 
 nat as a fair interHt rvtam. the Board found that the faraiags per mile of 
 the Giaad Tmak aader e3tistiB^ tidk and conditions fell eoasiderablT short 
 of the carai^y nqniivd to proride adequate returns with referen<e to these 
 Ktaadards. T«As ia Eastern Caaada and ia We?tera Canada should be 
 lieoQ^t to a paritr. fo far as this eaa reasonahlT- be done. Loss of 
 traffic bjr reason of eoapetition of new lines, or the aeed of near lines 
 thcMsdves for traffic retnras vhich would aahe thoa setf-capportiag. does 
 not ia itaelf jaatifjr iaenasc of tsSki. Adraaees ia tolls eaaaot be al- 
 lowed si^^T bceaose the carriers require bmibct; aor eaa percenta^ in- 
 en MLi e * be aathorixed sioiplT to a^gMcat iwcane: each toll most be de- 
 terained vith regard to its rraii— ■Hff iw for serriees perfomed. On 
 the facta preseated, the Board fooad tibat ia g^wxal a case for iacreaae 
 off tolls ia Eastera Ckaada had beea anfc oat aad that iacnaaes should 
 be Bade where the differeat iadastries eould fairlj aad reaaoaahly hear 
 
 Be Eastera T<Ab, 22 Caa. Ry. Cmm. 4. 
 
 rFoDoacd ia Dooiaioa MiUns Aasa. t. Graad Truak, Osa. Pac Br. Gos^ 
 22 Gaa. Ify. Ca& 3Si3: West Tiigiaia Pulp 4 Paper Col et aL t. Cmn. Pac. 
 By. CSol. 23 Can. By. Cas. 153.) 
 
 bonusE — JcMswcnoy — Wak meastkes — I^sotattox — Ge^kkai. adtax- 
 TJcc or Casada — DiscanfrsATiox — UxaEanrxEXATiTB — Cost or 
 MATvrexAxcx: axd orssaxim. 
 The War lleasores Act, 5 Geo. T. c 2. does aot eoaf er oa the Board 
 aay jurisdictiaa to iacreaae toUs. or to advise the Govemor-in-Cooneil 
 to increase thcaa. in aid of the fiaaaees of carrins; the Board's juris- 
 dictiaa ia that regard is that pm by the Baihray Act. The Act «»-61 
 Viet, c 5. (D.> proiiding for a subsidy to the C.P.B. Co. in respect oi th« 
 '"Crow's Xest line"^ and for a limitation of frnght tolls on lines then in 
 opetatioa btiana Fort William aad poiats to the west th««of, is a 
 apedal Act withia the meaning of s. 3 of the Bailway Act, 1906. It 
 tJierefore over-aides aay prarisions of the RaUway Act incoasisteat vith 
 it and liauta i&e geaeral jmisdictioB of the Board as to toUs. The 
 Board has no power to advance t<M& on the C.P.R. within that territory 
 beyond the laarinimn fixed by the special Act. The Mabitoha statute 
 (1901, c 39> liwtiii^ tidls to be <«argcd over lines of the CXJL Sjraten 
 within that prariaee is ultra rires as r^ards the C.X.B. Cou, a Doniaioa 
 corp(»atioa: and as re^rds sabMdiary ccoipanies incorporated by the 
 province and subsequently declared to be the gen e ra l advantage of Cana- 
 da; it is aapcrseded by the Railway Act in so tar as the two are incon- 
 Hsteat. and also by 1 Edw. vn. c 53. & 3 (D. n . $o that the Board's ^entr- 
 al jniisdictifHi under the Railway Act as to tolls is not limited tx affected 
 thereby. The Board in eonsidcrii^ tolls to be antluMized declined to gire 
 effect to an agreement to limit tolls made between a railway company 
 and a prorince and confined by provincial legislation, where the com- 
 pany had afterwards passed nnd«- I>aminion jurisdiction, and tiie a g ree 
 BMBt if obserwd would either have prevented an increase of tolls necessary 
 in the pnblic interest, or resulted in discriminatory lower tolls in that 
 prorince as compared with other provinces with similar conditions. 
 [Crows Xest Pa» Coal Co. r. Can. Pac. By. Co.. 8 Can. Ry. Ca& 33. at p. 
 41: Regina Board of Trade t. Can. Pac. and Can. Xorthera By. Cos. 
 (Regiaa Toll Case), 11 Can. Ry. Cas. 3MI. at p. 391. followed.] The Board 
 can n«ther order nor eaf<»ve tolls which are unremnneratire to the csr- 
 Can. Ry. K Dig.— 50. 
 
786 TOLLS AND TARIFFS. 
 
 riers without infringing the principle of the Railway Act by denying car- 
 riers a fair and just toll. An unduly low rate constitutes an unreasonable 
 rate just as much as an vmreasonably high one and the question whether 
 a rate is unduly low or unduly high can only be determined with a 
 knowledge of the cost entailed by the service. An agreement to limit 
 tolls entered into by a railway compaany will not be enforced or regarded 
 by the Board unless made binding upon the Board by valid enactment, if 
 it is found that the tolls agreed upon are unrenunierative and improvident, 
 so that the railway cannot be properly maiatained and operated. In 
 tlie public interest, when tolls reserved by contract j)rove unreasonably 
 low in the face of chanjred conditions and increased costs, tlie tolls must 
 l)e made reasonable notwithstanding the contract. [British Columbia 
 Pacific Coast Cities v. Can. Pac. By. Co. (Vancouver Interior Rates Case), 
 7 Can. Ry. Cas. 12.5. at p. 14(). followed.] Holding that under OO-Cil 
 Victoria, c. 5, it could not increase rates beyond the maximum rates there- 
 by fixed on lines of the C.P.R. Co. in operation when that Act was passed, 
 the Board also held that to prevent discrimination the same maximum 
 should be applied to the whole system of that company as now operated; 
 and that similar rates must be applied to other railways in the territory 
 affected. The Board, having regard to increased cost of maintenance and 
 operation and finding tlie tolls therefore charged had been unremunerative 
 and insufficient to ensure a proper service, authorized the railway companies 
 concerned to submit new standard freight and passenger tariffs providing 
 for a general increase of maximum mileage tolls on a percentage basis, 
 subject to the Crow's Nest Pass agreement and statute (60-61 Victoria, 
 c. 5), and to certain provisions and exceptions set out in the judgment 
 of the Board. 
 
 Re Increase in Passenger and Freight Tolls (Increase in Rate" Case), 
 22 Can. Ry. Cas. 49. 
 
 [Followed in Montreal & Southern Counties Ry. Co. v. Greenfield Park 
 et al., 23 Can. Ry. Cas. 106; Hamilton Radial Electric Co. v. Hamilton, 23 
 Can. Ry. Cas. 114. 
 
 Measure of toll — Difi-erent schedules — REAsoxAnLENESs. 
 
 The toll charged by one carrier is not necessarily a measure of what 
 another should charge. Conversely it would appear that where different 
 schedules are voluntarily adopted the higher toll existing on one railway 
 is no conclusive measure of the toll properly chargeable for the same 
 distance by the other carrier. [Dominion Sugar Co. v. Canadian Freight 
 Assn., 14 Can. Rj'. Cas. 188, at p. 192, followed.] A consideration of the 
 tolls in themselves, as well as a comparison with those tlie Board has 
 found reasonable, shews that a toll from Hagersville to Windsor on a 65 
 cent basis is out of line, therefore a toll not exceeding 75 cents from 
 Hagersville to Windsor is reasonable. [Doolittle et al. v. Grand. Trunk and 
 Can. Pac. Ry. Cos. (Stone Quarry Tool Case), 8 Can. Ry. Cas. 10, fol- 
 lowed.] 
 
 Hagersville Crushed Stone Co. v. Michigan Central Ry. Co., 22 Can 
 By. Cas. 84. 
 
 Water competition — ^Local movement — ^Tebminai. charges. 
 
 A tariff quoting a toll from Sorel to Montreal on steel forgings "issued 
 to meet water competition." but wliich does not limit the movement un- 
 der it, covers either a local movement to Montreal or to the ship-side at 
 
TOLLS AXD TARIFFS. TS7 
 
 Iklootral for cs^oct, aad a, futkr ekuse to ewrer -trnuaal i^argesr* 
 at Moatnal caaaat be safported ndrr it. 
 
 ^■titi.^»« A Hacfatanr r. Qoriwr, Moatical 4 Sontharm R5-. Co. iSbrll 
 Foisn^ CasrK ±2 CuuRjT. Cms. 9CL 
 
 I:sc«ExsE — BEAsax fob — ^-Sntt-U»~ «Enm:x conns iiuc$ — Aix-tAH. axo 
 kah. ax» taxes tolls. 
 
 Tk Boozd Till not authorize an inmaar of ramneratiaa ia lake *md 
 rail taOB far tlie poipose <tf lesanua^ a prohibitive 'spread'* bitama then 
 aad all-«aa tolls of the suae aad other carriers b U-aim the tame poiats, 
 is order to iadoce part of the trafie to aMne all rail aad so to prvTcat the 
 all-iail toils fnmt bei^ "rat*^ by a carrier haria*^ ao lake and rail route 
 aai < W»ii i » j to participate ia the traflBr. Havia*; regard to the d e ciaio a ia 
 the BftBten Bates Case iRe Eastera Tolk. ±2 Caa. Bj. Ck& 4\, aDoviag 
 aa iaoca^e ia geaenl froght tolls east of Fort WHfiaa aad the reasaaa 
 for that dMsuaa, tibe Board held that mscaaUe iaoreaaes ia the toIlB 
 OB graia aad graia prodnrts east of Fort Williaai Aoald be alloavd. aad 
 a ppr ofe d rereed tolls accordiagiT. 
 
 Doauaioa lfill«¥ A<>sa. r. Graad Troak aad C^aadiaa fmdSc Ify. Cos., 
 22 GuL By. Caa. 393. 
 
 COMPAUSOX — 'MVKKMEST — LjJUX. 
 
 ToDs for croshed stoae <rf ^LIO aad 70 eeats per toa fitoa Barritfc?. 
 Oatario, to MoatnaL 1^ mile^. aad to Ottawa, 34 miles, rcspeetiTelT. 
 were fooad aot to be aaiea««BaUe ia iwpiri na with other tolls ia f<Hce 
 ia the saaie tcTrit4»T aad the large Mom a ia t «t riiiiihid staae thne^ 
 nader. [Doolittfe et'aL r. Graad Tmak aad Caa. Fte. B;f. Goa. (Stow 
 gnarTT ToD Case), 8 Caa. Br. Gas. 10, at p. 13, disti^alihcd.] 
 
 PTOTianal Sumw J: SapphrCoL t. Ou. PacL Bj. Col, 22 GaiL Bj. Gas. 
 411. 
 
 [Fidlowed ia Crashed Stow tU. r. Graad Traak Br. Gdl, 23 Qua. Itr. 
 Ca*. 132. 
 
 JxmsoicnfKS — ^T^lls — Ixcbease — MtrsnciFAi. agseevkstts — By-law. 
 
 Where, nado- the Act ai ineorporatioa oi a railwar eoapaaj, amaiei- 
 palitics are given power to enter iato fraachise agree^eatB aad pass 
 fraachiae Inr-laT^ aad br special Act, 7 4 8 Edw. VIL. e. 117 (D), dc- 
 daria^ soch railwar to be a work for the general adraatage of Caaada. 
 it was enacted that the prori«i4Mt$ of aaj nuaicipal br-law- rdatiag to 
 the compaaj. w agreement between it aad aar mnaieipalitT, were aot 
 to be affected, the co^paar i« boond br them, and the Board has ao pow- 
 er to increase the tolls contrarr to the t^rm? of $ach igmmiali and br- 
 laws. [Increase ia Bates Ca^e. ±2 Can. Br. CasL 49. at i^ St-^n. M- 
 lowed.] 
 
 Hamilton Badial Eke. Co. r. Hamilton, et aL. 23 Can. Br. Cas^ 114. 
 
 Trnxmc novEafEJtr — SHoanx aocTE — itasAi^s — Discacxiox — CoMrsn- 
 
 TUfS CoM3fOX MSraiCT. 
 
 It is the dntr of a rail carrier ia the iateiest of the shippers to take 
 the shorter, ^ore dirert. aK>re economic a l tariff momaeat roote. bat 
 siace onder the present ttdl sitnation the whole of the ecoooanr is obtaiaed 
 Y hw the rail carrier, the mileage via the Ladrsmith tranter oo^t to V 
 
 I red a ced to the mileage ria the E<i{aimalt transfer to Xaaaiaio. and the 
 
 > Bulei^ses of statioas served bv the Ladv^mith transfer reduced in the 
 
 I «aaie maaaer phis the milea^ from Ladrsmith to destiaatioa. The main 
 
 ^ qnestioB ia this case relates to the terminal toll whid repteseats the 
 
788 TOLLS xV:N^D TARIFFS. 
 
 toll quoted from points in eastern territory to those in western ami 
 vice versa, where tiie movement is open by water, or where the distanee 
 from water is so sliort that the combination rail and water toll is lower 
 than the regular all rail toll, the Board has invariably held that car- 
 riers, in their discretion, may or may not meet water competition or 
 competition of any form, and may elect to attempt to get business at 
 small remuneration or do without it altogether, subject to the qualifica- 
 tion that when competition is met the competitive toll should be extended 
 to all points in a common district where similar operating and traffic con- 
 ditions obtain. The volume of traffic moving by water into Xanaimo l>eing 
 very small as compared with tliat into Victoria, conditions are dissimilar, 
 there is no imjust discrimination. [Xanaimo Board of Trade v. Can. 
 Pac. Ry. Co., 20 Can. Ry. Cas. 224, reheard aand affirmed; British Colum- 
 bia News Co. v. Express Traflic A.^sn.. 13 Can. Ry. Cas. 176: Midland 
 Lumber Shippers v. Grand Trunk Ry. Co. (Pine I^th Refund Case), 22 
 Can. Ry. Cas. 387, followed.] 
 
 Nanaimo Board of Trade v. Can. Pac. Ry. Co.. 23 Can. Ry. Ca«. 92. 
 
 DiscBiMiXAnoN — Undue pbefhsexce. 
 
 A toll of 22 cents per 100 pounds on newsprint paper from Thorold, 
 Ontario, to Chicago, Illinois, U.S.A.. was not found to constitute an un- 
 just discrimination or undue preference in favor of competitors in the 
 Chicago market. 
 
 Ontario Paper Co. v. Grand Trunk Ry. Co., 24 Can. Ry. Cas. 177. 
 
 JlTBISDICTION ^AgBEEMEXTS — LeGISI.ATIOX APPBOVAI. OF BOARD. 
 
 Agreements between municipalities and a railway company do not oust 
 the jurisdiction of the Dominion Parliament and the Board in their ad- 
 ministration of the Railway Act and in tlie fixing of tolls. Inasmuch 
 as the agreements in question have not been validated by legislation and 
 submitted to or approved by the Board, and in view of the greatly in- 
 creased costs of transportation, the Board finds the increased tolls de- 
 sired by the applicant to be just and reasonable. [Re Increase in Passen- 
 ger and Freight Tolls (Increase in Rate Case), 22 Can. Ry. Cas. 49; 
 Lyons Fuel & Supply Co. v. Algoma Central Ry. Co., 23 Can. Ry. Cas. 146, 
 followed.] 
 
 Montreal & Southern Coimties Ry. Co. v. Greenfield Park, et al., 23 
 Can, Ry. Cas. 106. 
 
 Unjust discbiminatiox — Contract fixing low tolls. 
 
 Tlie Board will give no effect to a contract fixing a toll so \inreasonably 
 low and so out of proportion to the general scale, that it constitutes in 
 effect unjust discrimination in favour of one shipper a« against other 
 shippers on the respondent carrier's line. The Board ordered the respond- 
 ent to remove such unjust discrimination by filing tariffs providing for a 
 fair and reasonable toll. 
 
 Lyons Fuel & Supply Co. v. Algoma Central & Hudson Bay Ry. Co.. 
 23 Can. Ry. Cas. 146. 
 
 [Followed in Montreal & Southern Counties Rv. Co. v. Greenfield Park, 
 et al., 23 Can. Ry. Cas. 106. 
 
 Lower tolls — Competition — Haiis — Tkrmixal points. 
 
 Under 8. 315 (5) of the Railway Act. 1906. where traffic moves under 
 substantially similar circumstances and conditions, carriers are justi- 
 fied in charging lower tolls to Victoria. B.C.. an ocean terminal point, 
 for the longer haul than for the shorter haul lo Sidney. B.C., an inter- 
 
- TOLLS AND TARIFFS. 78» 
 
 mediate point, vhere Victoria, is, and Sidney is not, sabjeet to com- 
 petition. 
 
 Sidney Board of Trade ▼. Great Northern Ry. Co., 23 Can. By. Cai>. 173. 
 
 DlSCKETIOH JCMSDIcnOX — RKASOXABLE — COlfMOOITT T<MXS — Mll-E- 
 
 AGE SCALEw 
 
 The jurisdiction of the Board as to tolls concerns only their reasonable- 
 ness; no matter how much the derelopment of an industry may lie in- 
 the public interest, the Board is not authorized to be an arbiter of in- 
 dustrial or public policy and cannot strike a low toll basis, independent 
 of its reasonableness, but carriers may in their discretion install derel- 
 opment tolls. [British Columbia News Co. v. Express Traffic Assn., 13 
 Can. Ry. Cas. 178; 31asgiah ▼. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 88, at 
 p. 90; Western Retail Lumbermen's Aaen. t. Can. Pac, Can. Northern and 
 Grand Trunk Pacific Ry. Cbs., 20 Can. Ry. Cas. 1.55, at p. 158, folIowe«l.] 
 Comparing the commodity mileage scale on agricultural limestone with 
 the special commodity tolls on crushed stone, and taking into considera- 
 tion that the Tolume of traflSc of agricultural limestone to large con- 
 suming points is not comparable with crushed stone, and that the latter 
 CMnmodity has been granted low commodity tolls by the carriers in their 
 diatxetioa, it has not been established that the existing toll basis is un- 
 reasonable. [Provincial Stone k Supply Co. v. Grand Trunk Ry. Co., 
 22 Can. Ry. Cas., 411, at p. 413. followed'] 
 
 Crushed' Stone, etc. t. Grand Trunk Ry. Co.. 23 Can. Ry. Cas. 132. 
 
 C. Ccmttamoaa Bonte; Jdnt Tazifls. 
 
 COimSOCS BOCTE — .JOIXT TAKIFF — LiXE OF RAILWAY AXD WATER UXK. 
 
 A line of steamships operated by a railway company running to ports 
 reached by the line or lines of another company does not constitute there- 
 with a continuous route within the meaning of as. 266. 267 of the Railway 
 Act, 190.3. An application by the first-named company to compel the second 
 company to enter into a joint tariff with it under these sections was dis- 
 missed. Ss. 253, 271 relate solely to railway traffic, and not to traffic 
 between a line of railway and water line. 
 
 Algoma Central k Hudson Bay Ry. Co. t. Grand Tnmk Ry. Co., 5 Can. 
 Ry. Cas. 196. 
 
 IXTEBCHAXGE OF TRAFTIC — BbASCH LIXE — COXTIXCOCS BOCTE. 
 
 Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. and London (London Inter- 
 switching Caset, 6 Can. Ry. Cas. .327. 
 
 [See note of this case under Branch Lines and Sidings.] 
 
 ITTEBCHAXGE of tariff — GeXERAL IXTERSWrrCHIXG ORDER PUBUC IT- 
 
 Application for the rescission of the judgment and order of the Board 
 of July 20 and 25. 190t5, respectively (Grand Trunk Ry. Co. v. Can. Pac. 
 Ry. Co. and London, affirmed by the Supreme Court. 6 Can. Ry. Cas. 327 i . 
 and to substitute the toUs chargeable under the General Interswitching Or- 
 der of July 8, 1908: — Held, (1) that the application should be refused. 
 (2) That since the applicant was given greater facilities than it would be 
 entitled to under the General Order it should continue to pay the tolls 
 now in force. Commissioner ^lills concurred with the Chief Commissioner. 
 The Assistant Chief Commissioner, dissenting, that' railway companies who 
 had special facilities at certain points migtit then be justified in apply- 
 ing to the Board for exemption from the General Order, but that such 
 a course would be detrimental to the public interest and would weaken 
 the benefits to the public from uniformity of practice. [Grand Trunk Ry. 
 
TUO TOLLS AXU TARIFFS. 
 
 Co. V. Can. Pac. Ey. Co. and London (London Interswitohing Case), 6 
 Can. Ry. Cas. 327, afrirmed.] 
 
 Can. Pac. Ry. Co. v. Grand Trunk Ry. Co. (London Interswitching Case), 
 13 Can. Ry. Cas. 435. 
 
 [Followed in Fergus v. Giand Trunk Ry. Co., 18 Can. Ry. Cas. 42.] 
 
 Joint tariffs — Reason abi,ene.ss — Tiikough rates — Co^TI^•ro^s route. 
 
 'I'he Algoma Central & Hudson Bay Ry. Co. applied to the IJoard for an 
 order directing the Grand Trunk Ry. Co. to make a joint tariff with them. 
 'J lie .'Steamers of the applicant railway wished to obtain a joint tariff with 
 the Grand Trunk so as to compete for traflic from points in Ontario reached 
 l>y the lines of the Grand Trunk and cari-y such traffic from lake ports 
 hy their steamers to ports in Northern Ontario and vice versa reached 
 by their steamboats and railways. Tlie Grand Trunk Ry. Co. has now 
 a similar joint tariff arrangement with the Northern Navigation Co.: — 
 Held, (1) that the applicant has not proved that there is a public in. 
 terest involved, or (2) that the existing rate arrangement is unreasonable. 
 
 Algoma Central & Hudson Bay Ry. Co. v. Grand Trunk Ry. Co., 8 
 Can. Ry. Cas. 4G. 
 
 Classification — Joint tariff — Continuous route — Through rate — For- 
 eign AND Canadian carriers — Refund. 
 Application to the Board under ss. 317, 321 (Subss. 2, 3. 4), 323, 333, 
 :!34, 336, 338 of the Railway Act, 1906, to ascertain the legal rate on crude 
 oil from Stoy, Indiana, to Toronto. The Indianapolis Southern Ry. Co. 
 on whose line Stoy is a station, filed with the Board on December 19th, 
 1906, a joint tarifl" making the joint fifth-class rate twenty cents per hun- 
 dred pounds from Stoy to Toronto. Prior to January 1st, 1907, crude oil 
 had no classification, but on that date the official classification coming 
 into force in the United States placed it in the fifth class this classifica- 
 tion being used by the G.T.R. Co. Prior, however, to the coming into force 
 of this classification the G.T.R. Co. on November 30th, 1906, issued and 
 filed with the Board an "exception" refusing to honour on petroleum 
 and its products the fifth-class rate from points in the United States to 
 paints in Canada, and provided that on such traffic from frontier or junc- 
 tion points the local or special commodity rates would govern. The G.T.R. 
 Co. admitted that the joint rate was not unreasonable or unprofitable to 
 them and that the local rate was intentionally made excessive to keep out 
 oil from the United States: — Held (1). that the "exception" filed by the 
 G.T.R. Co. had no elfect and the procedure provided by the Railway Act, 
 1906, 8. 338, must govern. (2) That if a railway conijjany in the United 
 States without the approval of the connecting carrier in Canada files a 
 joint tariff in which the latter does not desire to participate, the Canadian 
 company sliould apply under s. 338 to have it disallow^ed, and if this is not 
 done then the tolls provided in such joint tariff are the only tolls that 
 can be charged until such tariff is superseded or disallowed by the Board. 
 (3) That if the Canadian railway company desires any change to be made 
 in any classification used in the United States for such joint tarift", it 
 .should apply under subs. 4, s. 321. (4) That the legal rate chargeable 
 on the shipments in question is twenty cents per hundred pounds and that 
 the G.T.R. Co. should be at liberty to refund the difference between such 
 rate and the sum colh-cted by it. 
 
 British American Oil Co. v. (irand Trunk Ry. Co., 9 Can. Ry. Cas. 178. 
 [Aflfirmed in 43 Can. S.C.R. 311; 11 Can. Ry. Cas. 118; referred to in 
 British American Oil Co. v. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 327; Can. 
 Oil Co. V. Grand Trunk, etc., Ry. Co., 12 Can. Ry. Cas. 334.] 
 
TOLLS AXD TARIFFS. 791 
 
 Thbocch tkaffic — JorsT istibxatioxai. TA»irrs — Fiixxg bt FocEiex 
 
 COltFAXT. 
 
 Under & 336 of the Baihrar Art, 1906, tviffs filed br fweiga railnv 
 companies for rates on tlirougji traffic originatinv in f<»eigB territorf, to 
 be carried br eontinoous routes ovned or operated bj tvo or niore eoai- 
 paaies fron foragn pointB to dotnuitiaas m Canada, are effective and 
 binding upon all Canadian ewnpnniea partkipati^ in tbe transportatioa, 
 ahbou^ not espreaslj assented to br the latter, and maj be enforced br 
 the Board »g^m^± such Canadian companies. Anglin, J^ contra. Per 
 ■Angfin, J. (dissenting) : The Bailvay Art requires concnrrence by the 
 seTeral conpanies intocsted as in other joint tariffs on throo^ traffic 
 mcntioaed in the Act. British American Oil Co. r. Grand 'lYnnk By. Co., 
 9 Can. By. Ca& 178, affirmed. 
 
 Grand Tnmk By. Co. t. British American Oil Co, 11 Can. By. Ca& 118. 
 43 Cmn. S.CJ!. 3li. 
 
 rFoUowed in Great Xorthcm t. Can. Xorthon By. Co., 11 Can. By. Cas. 
 4£5; referred to in British Am^ican (MI Q>. v. CJP.B. Co.. 12 Can. By. 
 Cas. 327; Can. Oil Co. r. Grand Tmnh, rtc, Co., 12 Can. By. Cas. 334.] 
 
 ThSOCGH 1«AFFIC — JorST TAKIFF — FkEIGHT AXD PASSEXGES TOIXS — CtASS 
 AXD COMMODITT TAMTFS ^BaIL AXD WATEB BOCTE — ^DlSCWiaXATlOX. 
 
 Complaint alle«:ing that the tcdls in the joint freight tariff C.B.C. Xo. 
 9, filed by the respondent for traa^ortiBg traffic by a rail and vater route 
 (known as the White Pass and Yukon Boatet from Skagway in ai«a^j^ 
 a foreign port, throogh a portim of British Colombia to White Horse in 
 the Yok(Hi Territory, by rail, and thence by water to Dawson were unrea- 
 sonable and excessire. The respaBdenfs rail and water route had four 
 months of profitable traffic during the season of narigatimi from about 
 -Inne 1st to October 1st. It was alleged that when navigation closed the 
 iocal traffic did not meet the operating expen^e?^ and the busine:»s was prac- 
 tically all throngfa traffic inbound. For the purpose of relcTant comparison 
 the grades are on the whole more favourable on the Canadian Pacific Bail- 
 v>ay*s Mountain Division than on the respondent's railway and the tolls 
 on that division are the next highest to those on the respondent's railway. 
 In both cases the business was almost all through traffic, and it was alleged 
 that the local traffic did not pay operating expenses. The Canadian Pa- 
 cific carried throng traffic throughout the year on the Mountain Division- 
 It was found imposBible to ascertain upon the evidence or by an investiga- 
 tion of the respondent's records the true cost of the railway. The respond- 
 ent offoed no evidence of physical valuation of the tmdertaking in its 
 present cmidition or of the cost of reproduction: — ^Held. (1 i that the tariff 
 C.B.C. Xo. 9, was unreasonable and excessive. (2) That thro^h joint 
 tariff toUs must be prepared and substituted for C.B.C. Xo. 9, dwwing a 
 reduction of 33| per cent on pai<«en<zer and freight traffic, these tolls to 
 be a nuLximnm to intermediate points, betwera the international boimdary 
 and White Horse, lower tolls to or from the said points not to be affected. 
 (3» That the Board has only dealt with the class tariff, but will not allow 
 a commodity tariff on ores or concmtrates unjustly discriminatory against 
 White Horse. (4* That it is equally the duty of the Board to protect 
 capital invested in the railway by its stockholders as to protect the public 
 against unjust toUs being charged by those opo-ating the railway. (5) 
 That the tolls enforced upon a railway should not be reduced if only suf- 
 ficient revenue is produced to pay the prt^ier expenses of maintenance of 
 way and equipntent, transporting of traffic, general expenses, fixed charges 
 and a fair dividend upon the capital invested. (6it That while the ton- 
 mile toll is not an infallible measure of the reasonableness or otherwise 
 
T92 TOLLS AND TARIFFS. 
 
 of a toll, it should be given due weight. [Dawson Board of Trade v. White 
 Pass & Yukon Ky. Co., 9 Can. Ry. Cas. 190, and Conrad Mines v. White 
 Pass & Yukon Ry. Co., 11 Can. Ry. Cas. 138, referred to.] 
 
 Dawson Board of Trade v. White Pass & Yukon Ry, Co. (No. 2), 11 
 Can. Ry. Cas. 402. 
 
 [Reversed in 13 Can. Ry. Cas. 527.] 
 
 JOIISfT TARIFF — FREIGHT AND PASSENGER TOLLS REDUCTION EaRNIXGS AND 
 
 OPERATING EXPENSES. 
 
 Application for rescission of the order of January 18th, 1911, reducing 
 the lolls cliarged by the respondents by one-third. By that order the 
 respondents were directed, upon through traffic from Skagway to White 
 Horse, and upon local traffic between points on the portion of the rail- 
 ways in Canada, to substitute for their existing class and passenger tariffs 
 new joint tariffs of freight and passenger tolls reduced by at least one- 
 third in each case, on the rail division of their undertaking. The respond- 
 ents shewed, by reference to statistics of their earnings and operating 
 expenses, that if the proposed reduction took effect they would be unable 
 to pay interest upon the bonded indebtedness, that no dividend could be 
 paid upon the stock and the railway would pass into the hands of a re- 
 ceiver. The respondents undertook voluntarily to make some reduction in 
 certain of the tolls charged on the freight and passenger traffic upon the 
 rail and water divisions of the undertaking. The applicants contended that 
 during the "boom" period the stockholders had been repaid in stock and 
 cash dividends all the moneys originally invested: — Held (1 ), that the re- 
 duction in tolls directed by the said order should not be made. (2) That 
 although it was of great importance that the public should be protected 
 from extortionate or unreasonable transportation charges, it was equally 
 important that capital invested in transportation companies should be 
 permitted to earn fair and reasonable dividends. (3) That carriers should 
 have the opportunity of earning not only enough to pay the interest upon 
 their bonds but also a fair return upon the actual capital invested in their 
 railways. (4) That if the stockholders had been repaid in dividends the 
 whole of the original investment that was no reason why they should not 
 continue to receive a fair return upon the capital invested. (5) That the 
 voluntary changes in the tolls might be put into effect in order to see 
 what the result would be, upon which any further intervention by the 
 Board would depend, after the next year's operations. [Dawson Board of 
 Trade v. White Pass and Yukon Ry. Co., 9 Can. Ry. Cas. 190, referred to; 
 Dawson Board of Trade v. White Pass and Yukon Ry. Co., 11 Can. Ry. Cas. 
 402, reheard and reversed.] 
 
 Dawson Board of Trade v. White Pass and Yukon Ry. Co. (No. 3), 13 
 Can. Ry. Cas. 527. 
 
 Foreign railway companies — Joint tariff — Continuous route — Through 
 
 TRAFFIC — Traffic by water. 
 The complainants alleged that the respondents, the WTiite Pass & Yukon 
 Ry. Co., were charging excessive tolls for transporting traffic by a land 
 and water route (known as the White Pass & Yukon route) from Skag- 
 way in Alaska through a portion of British Columbia to White Horse in 
 the Yukon Territory and thence by water to Dawson, Tlie respondents 
 were incorporated in England and holding all tlie stock of, owned, con- 
 trolled and operated the Pacific & Arctic, the British Columbia, Yukon and 
 the British Yukon Ry. Cos., the first incorporated by the State of West 
 Virginia, the second by the Province of British Columbia, and the third 
 by the Dominion of Canada, and also the British Yukon Navigation Co., 
 
TOLLS AXD TARIFFS. 793 
 
 ma^Aamtd to apcnte stcaiKTS <■ i^t Yvkon rircr Icmding fraa Wlute 
 Hone to Dtama:— Held {1}. that nader &. 336 of the RaOvaj Aet^ 1906. 
 Ae Board lad pomr to <»der the varioac railwaj roHpaaies aad the evm- 
 tnXSmg raOwaj to file a joiat toriff for the laad portJOB of the route fr« 
 Skmgtnj to Ulute Horse. {2} Ihat the Britiadi Yokoa St. Co. could be 
 called vpim to file a joiat tariff for tte wtiaaoaw roate froa Skagvay to 
 White Hone. (3i That the KitMh CofaaalHa Yakoa, a proTianal raH- 
 vaj wawtiag vith the RritiA Tafaai, a Doauaiai raihrar, is br s. 8 
 (b), as regards throi^ trafie carried over it, sid»jcct to the Railvav Act. 
 (4) That the Board had jnriadietioB nder a. 336 to caU npoo the 'white 
 Turn 4 Yafcoi Rt. Co. to require the Faeifie k Arrtie Rj. Co, a fore^ 
 railviqr, to cajter iato the sKessarr agrceaeats fn' filia^ a joiat tariff for 
 the nid route. (3)i That the Board itadtf oader the aaandneat to the 
 SaihraiT Act, 8 4 9 Edv. TIL c. 32, s. 11, a^ht rcqoire the Fadfie k 
 Aretie to eater iato $ach a p i eeanj ita. (C) That the mipuadiati as caa- 
 troOia^ aad operatic the tvo Caaadiaa Bv. Cos. (aatiMvitj to eoastrart 
 or opcsate aot bei^ required) are hr the said iiadiat ande subject 
 to Ae Baihraj Ad. (7) That the Board had ao jarisdietioa oter the 
 toOs «rf trafie delimed to the respoadeats at Skagwmj desdafed to Dav- 
 ioa, the water route b e ia ee a White Hoese aad D^avsoa aot bei^ part of a 
 '^eoatianons route ia Caaada" aader & 333. (8j| That uader s. 338, suIhl 
 2^ the Board had power to disallow or otherwise deal with the tolls ia such 
 joiat tariff. |9i That the qoestioa of msooaUe rates Aould be dealt 
 with after the joiat tariff has faeea filed. 
 
 Dawsou Board of Trade t. White Ps» k Yukon Rj. Co. et aL. 9 Caa. Rv. 
 Cks.190. 
 
 [Referred to ia Dawsos Board of Trade r. White Pass k Yukoa Rr. Co- 
 ll GuL Rt. Cas. 402, 13 Caa. Rr. Cks. 327; distinguished ia Residnts of 
 Maasett r. Graiad Truak PScifie Steam^ip Co- 23 Caa. R;-. Ca& 121.] 
 
 Toujs as woam nnr — Ixcbeasc i:s ratxs — Rcfttol 
 
 Ob a couiplaiat that the tolU on wood pulp should be rednccd fro^ three 
 eeats per haadred pouads ia carloads to two ccwts the latter rate haTia* 
 bcea ia force for auay rears, aad for a rebate oi tolls paid uader the 
 foraer tariff. The lailwar enapaaj subaaitted ikmt tfw iaerease was 
 justified on accou at of the iBorvased cost of fqteratiaa aad that the bnmti 
 toO did wot gin Jtai K iii a t rei e a ue to par c^ratiag expeases: — Held, upou 
 the eridenre that the iacrascd toll should be disallowed; Ow two cent iaH 
 hdmg fair aad reasouable. Held, that the iacreaaed toD beoi^ lawful 
 a cBwdia g to the tariff ia force when the caBplaiBaBt*s ikipasarts sored, 
 the Board had ao jurisdictioB to gnat a refuad. 
 
 Olarr T. Niagara, St. Cathariaes 4 Toroato Rr. Cou 9 Gsa. Br. Ossl 493. 
 
 [Betersed ia 43 Caa. S.C.R. 277. 11 Gsa. Rr. Cas. 109.] 
 
 IXTBLSATUKSAI. THBOCGH 1SAFFIC — ^ReXCCIIOX flV JOtXT KSSK. 
 
 Ob a coaiplaiat ia re s pect to a joiat tariff, betwccB the appeOaat c om 
 paaj aad the ^d^igaa Ceatral Railroad Co- under which a rate of three 
 ccBte per hundred pouads was charged oa pulpwood ia car lots for car- 
 riage from ThoroU, ia Ontario, to Suspewsioa Bridge, ia the State of Xew 
 Yoit the Board derided that the rate should be rcdoeed and ordered the 
 appdlaats to restore a joiat rate which had previonBljr posted of two 
 cents per hoadi ed pinia<tff for carriage of such goods bLtaua the poiats 
 maitioned. The ^fiAig** CcBtral Co. orer whose raihrar the goods 
 K«<i to be carried bamt the point where the apprifaotts' railwaT ande eoa- 
 acctioB with it at the intematiaBa] boundar; to the foreiga destiaatioB. 
 was Bot made a psrtr to the proceediags before the Board. Qb sj^P^al br 
 
704 T0I.L8 AXI) TARIFFS. 
 
 leave of a Judge to the Supreme Court of Canada: — Held, per Fitzpatrick, 
 C.J., and Idington and Duff, JJ., that the Board had no jurisdiction to 
 make the order. Per Girouard, Davies and Anglin, JJ. : As tlie Michigan 
 Central Co. was not a party to the proceedings, it was not competent for 
 the Board to make the order. The appeal was allowed without costs. 
 [Davy V. Niagara, St. Catharines & Toronto Ry. Co., 9 Can. Ry. Cas. 493, 
 reversed.] 
 
 Niagara, St. Catharines & Toronto Ry. Co. v. Davy, 11 Can. Ry. Cas. 
 109, 43 Can. S.C.R. 277. 
 
 [Followed in Davy v. Niagara, St. Catharines, etc., 12 Can. Ry. Cas. 
 61.] 
 
 JoiNr TARIFF — Increase ix toi-i-s — Foreign railways. 
 
 A renewal of the former application that the tolls on pulp should be 
 reduced from three cents per hundred pounds in carloads to the former 
 rate of two cents (see 9 Can. Ry. Cas. 49,3). The X.. St. C. & T. Ry. Co. 
 submitted that the increase was justified because of the increased cost of 
 maintenance and operation, that when the present proprietors took over 
 the railway changing the motive power from steam to electricity, it was 
 in a bankrupt condition, and the increase in this pulp toll, along with 
 increases of other tolls, were necessary to put it on a paying basis, but a 
 complete statement shewing a comparison of cost of operation during the 
 periods before and since the increase of tolls and other necessary informa- 
 tion as to increase in the volume of traffic was not given, and the Chief 
 Traffic Officer reported that the pulp tariff was the only one that seemed 
 to have been revised. The M.C. Ry. Co. sul)mitted that it was only getting 
 one cent of the three cent toll for a twelve-mile haul, and that its revenue 
 should not be further reduced. The applicant submitted that pulp had 
 gone down in value since last year, when the toll was increased, and that 
 on his shipments of pulp consisting of .10 per cent water, he would be 
 charged freight for 2,000 lbs., only getting paid for 900 lbs. of pulp: — 
 Held (1), that the Board had no jurisdiction to grant the application; 
 the portion of the toll charged by the M.C. Ry. Co. for services in the 
 United States being under the sole control of the Interstate Commerce 
 Commission. (2) That if the Interstate Commerce Commission was of 
 opinion that the toll charged by the M.C. Ry. Co. should be reduced, then 
 orders might be made by the two Commissions establishing a proper joint 
 tariff, and the applicant should bring complaint before the Interstate Com- 
 mission. (3) That the N.St.C. & T. Ry. Co. had not justified the increase 
 in the toll for the Canadian portion of the carriage and tlie former rate 
 should be restored. [Niagara, St. Catharines & Toronto Ry. Co. v. Davy, 
 43 Can. S.C.R. 277, 11 Can. Ry. Cas. 109, followed.] 
 
 Davy v. Niagara, St. Catharines & Toronto and Michigan Central Ry. 
 Cos. (No. 2), 12 Can. Ry. Cas. 61. 
 
 [Followed in Dominion Sugar Co. v. Can. Freight Assn., 14 Can. Ry. 
 Cas. 188.] 
 
 Joint tariff — Competition — Intermediate point — Continuous boute. 
 
 On a complaint that the Great Northern Ry. Co. charged higher tolls 
 from Nelson to Gateway, B.C., than from the same point to Fernie, B.C., 
 or Spokane, in the United States, the distance from Nelson to Fernie, via 
 Canadian Pacific short line being 197 miles, by Great Northern 476 miles. 
 The goods were shipped from Nelson (the basing point) at a toll based on 
 a combination of tolls on Spokane, thereby making a joint tariff and through 
 toll by a continuous route over Canadian and foreign lines. A joint tariff 
 at a through rate over a continuous route between Gateway and Nelson, 
 
TOLLS AXD TARIFFS- 795 
 
 B.C^ had not been filed as reciauvd (nr s. 333 of the Railwar Ad. 1906: — 
 Held, that under ». 31.3 i 5 » of the Aet. although Gatevar L> an intermedi- 
 ate point, Femie is a rompetitive point: the charpng of a hig:her local 
 toll to Gatevajr than the through toll to Femie «a» not a liolation of this 
 sabseetioa. Hdd, that under ss. 314 (5t and 335 of the Aet, the failure 
 to file a joint tariff with the Board, rendered the collection <rf tirfls ille^L 
 Bonners' Ferrr Lmriwr Col v. Great Xorthem Ry. Col, 9 Can. Rr. Cas^ 
 
 ExrOBT AXB DOMESTIC TmAFFlC — ^TUBOCCH KATC — CoMPETTnOX RaIL AXO 
 
 WATEa TOLL — LoXfi AXD SHOKT HACl. 
 
 The applicant, operating a line of steamers from St. John and Halifax, 
 in winter, and Montreal, in summer, to Puerto. Mexico, thence via the 
 Tefauantepec National Rt. Col. across the Isthmus to Salina Cruz, and 
 thence bj the Canadian Mexican Steamship line to British Columbian 
 potnta^ ajpfdied for an order directing the respondents to appix the estab- 
 lished eiqport tariff basis to eorer shipments of general maT]iandi<« and 
 eomBodities fr«n eastern Canadian points xia Montreal, Halifax and St. 
 J<du to ^itish Colombian points and that the export, or, in the alter- 
 natire, the furtherance tollsw should be apfdied in order to enable the 
 apfiiftB to ec^qiete more sneces^fullr with respondents on all rail trafBr 
 aonaa the eoatincat to points in British Columbia and that respondents 
 shovld not diarge the higher domestic toll to further their own interest 
 on shipnents &om eastern Canada to the said ocean pMts. A joint tariff 
 has not ret been prepared between the applicants and the railwar acrcRs 
 the Isthmus for freight from the said ocean ports to British Columbia, bat 
 the tolls over this route require to be approved br the Mexican Govem- 
 ■wnt, vhidi owns a half interest in the said railway. The applicants 
 salmiitted that unles? the lower export toll was applied to their Canadian 
 tralBc for British Colombia then that and tbe all-rail traffic of tbe re:^M>nd- 
 ents would go xia New York, and would be lost to the re^iondents as well 
 as the applicants. The respondents submitted on the contrarr, that if a 
 lower export toll was granted tber would lose their all-rail long haul 
 across the Continent to British Columbian points, and tbat export tolls 
 are only granted on shipments destined for British and foreign markets, 
 and not for a Canadian market : — Held 1 1 *. assumii^. but without deciding 
 that tbe Board has jurisdiction, that the application should be refused, 
 with leare to aar one interested to applj for relief, upon a different state 
 of ^ets hong Resented. 
 
 Eldo-, Dempsto- Steamship Co. t. Grand Trunk and Can. Pac. Rr. Cos., 
 10 Can. St. Cas. 3U. 
 
 [FoDowed in Great Xorthera Ry. Co. t. Can. Xorthov Rj. Co^ 11 Can. 
 Rt. Gas. 425.] 
 
 Disc«miXATiox — J<MXT TxaiFT — ^THBorcH T»AFnc — CoxTTxrors boite — 
 Local. TOLLS — ^REn.~xD. 
 An application to declare that the respondent had nnjustlj discrimi- 
 nated against crode-oil shipments from Stox. Ulinois. to Toronto, by re- 
 fusing to carry them at the legal rate of twenty cents in accordance with 
 the published tariff and Official Classification, that the re^Mmdent had 
 overcharged the applicants, and that Order No. 7093 made upon the cmn- 
 plaint of the applicants against the Grand Trunk Ry. Co. was binding 
 upon the respondent. See O Can. Ry. Cas. ITS. The Indianapolis Soutbem 
 Ry. Co. a United States carrier connecting with the respondent, published 
 a 5th class toll of twoity cents, and named the respondent as a party par- 
 ticipating in this joint tariff, ^ective January 20th, 1907, it then tiled a 
 
796 TOLLS AND TARIFFS. 
 
 Snppleniont effi-ctive October 18, 1007, and a further Supplement, effettive 
 May 14, 1908, providing that the tolls named in the above described joint 
 tariff did not apply on petroleum and its products to Canadian points, 
 but that the tolls would be on a basis of lowest combination to and from 
 Canadian gateways, and that no through tolls were in effect. The appli- 
 cants asked a declaration as to what was the legal toll during the period 
 that their shipments moved. The respondent alleged that the only claim 
 made was for a refund of the difference between the twenty-cent toll and 
 that actually cliarged: — Held (1), that the Supplement filed by the I'nited 
 States carrier had not the effect of destroying the joint tariff with its 
 through joint twenty cent rate which was in force on and subsequent to 
 January 20, 1907, and applied to the shipments in question. (2) That to 
 change a joint tariff it must be superseded by another. (3) That the 
 Board had no power to order any refund, it can only declare what the 
 legal rate was or should have been, leaving the parties to whatever re- 
 dress they are entitled to under the circumstances. [British American Oil 
 Co. V. Grand Trunk Ry. Co., 9 Can. Ry. Cas. 178, and Grand Trunk Ry. 
 Co. V. British American Oil Co., 43 Can. S.C.R. 311, 11 Can. Ry. Cas. 118, 
 referred to.] 
 
 British American Oil Co. v. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 327. 
 
 [Followed in St. Lawrence Pulp & Lumljer Corp. v. Can. Pac. Ry. Co., 
 24 Can. Ry. Cas. 107.] 
 
 Foreign railways — ^Long and short haul — .Joint tariff — Continuous 
 
 ROUTE. 
 
 On an application directing the respondent to agree and concur in a 
 joint tariff of $2.50 per ton on coal from Duluth to Winnipeg. Tlie ap- 
 plicant, a foreign railway company, had been transporting coal from 
 Duluth via Emerson in Manitoba and the Canadian Northern Ry. Co. to 
 Winnipeg at a joint tariff of $3.00 per ton. It now desires to reduce this 
 tariff to $2.50 per ton to enable it to divert the coal traffic from Fort Wil- 
 liam and Port Arthur, the Canadian lake ports, to Duluth, a similar for- 
 eign port, and thus secure the long haul from the latter port to Emerson 
 confining the Canadian Northern to the short haul from Emerson to Winni- 
 peg. The respondent had expended large sums of money in establishing a 
 plant at Port Arthur, and the Canadian Pacific Ry. Co. at Fort William, 
 to handle coal, and if this traffic was diverted it would seriously injure 
 these cities. The respondent contended that it would lose the long haul 
 of coal cars to Winnipeg, and haul instead empty grain cars: — Held (1), 
 that if the applicant filed the proposed tariff it would be disallowed. (2) 
 That there was already a reasonable through route and toll. (3) That 
 the Board, if it has jurisdiction, would only interfere in the public interest 
 to establish more than one route with a joint toll between two points. 
 (4) That the Board will not allow the Railway Act to be used to divert 
 traffic from the lines of the respondent to those of the applicant, so that 
 the applicant may obtain the revenue earned by the respondent from such 
 traffic without any benefit to the public. [Grand Trunk Ry. Co. v. British 
 American Oil Co., 43 Can. S.C.R. 311, 11 Can. Ry. Cas. 118; Can. Northern 
 Ry. Co. V. Grand Trunk and Can. Pac. Ry. Cos., 7 Can. Ry. Cas. 289 ; Elder, 
 Dempster Steamship Co. v. Grand Trunk and Can. Pac. Ry. Cos., 10 Can. 
 Ry. Cas. 334, followed; Didcot, Newbury & Southampton Ry. Co. v. Lon- 
 don & South Western Ry. Co., 10 Ry. & C. Tr. Cas. 9; In re Through 
 Passenger Routes, 16 I.C.C.R. 310: Baer Brothers v. Missouri Pacific Ry. 
 Co., 17 I.C.C.R. 225; Spring Hill Coal Co. v. Eric Ry. Co., 18 I.C.C.R. 50*8, 
 referred to.] 
 
 Great Northern Ry. Co. v. Can. Northern Ry. Co., 11 Can. Ry. Cas. 424. 
 
TOLLS AXD TARIFFS. 797 
 
 TtacBxtsmax — OrEBCHJiBGs: — Joixr takiff — Casnxoics ■octe. 
 
 Jka applkaxioB diitcetii^ tke Rspandeats to ceiae mjiKt fiaetnuBBtaoa 
 m amehaipBg oa >hi|icffii of frtit»kn» aad its pmdoeliB fnai certaia 
 poiats m the Uaitod Stetes to Toivattt, aad for «■ otdcr ptUKii hi^ V'T" 
 tolk at fiftk-daas latca ia acnadaacr vith the Uaitod Slates CMfirial 
 Chiwigratioa Kol 29, cleetne Jaaaur 1, ^907. Prior to that date pe- 
 troleaa aad its prodacts had ao das^jficatioa. bat bj this daasificatiaa 
 ther acre girca a fifth-class ratio^ The respoadcats aad their maa e it ioa» 
 ia the Uaitcd States had filed sappkaMats to pnrcat the fifth-«la» rate 
 froai applji^ to these i wiiJities aad had fruaed a joiat tariff coasift- 
 ii^ of the saa of the hMal talk chargjrd bv the 9ev«al carriers iateadii^ 
 II 1 « either that the Csaadiaa carriers should be ^vtectcd fraa the hmvr 
 oQ tolk preiailia^ ia the Uaited States, or <2t that the Guadiaa refiaer^ 
 should he protected a^ia«t the iBportataoa of crude ml froui the Uaited 
 States:— Held. (1 <i that the latter abject aas ille^; ahile lailaaT cnai- 
 puues were eatitled to fair aad rw a ae iaiite toOs <Aiqr had ao ii|Eht to $o 
 adjast theai as to protect or asast aar oae iadoslxr or sectioa of the 
 puhlit aarh as ofl refiaen. (2) That oadCT & 33C of the Raihnj Act. 
 MMt. the traSe should he eorend bjr a joiat tariff. (3» That vhea aa 
 iaitial c aiii e i had filed a tariff uader &. 33S it becauK a joiat tariff erca if 
 of the soHi of the locals aad coald aot be chaaged aaless saper- 
 bf awM&er or disallowed bjr the Board aadcr sl 339. (4) That the 
 Its to the Tarkms tariffs could aot haw Ifte effect of a joiat tariff 
 because aar of the tolls could he rhiaged bnr the participatii^ carriers at 
 tibar optiau. (a I That siacr the Uaited States Offidal Clasf^ificatioa Xo. 
 29 aas used, wittoat aar order or directioa of the Board. eontruT to the 
 pnrnsioBS of siri^ 4 ^ s^ 321 of the EaiHraj JUt it mas biadiap on the 
 re y d e ato uatil a upusukd or digalloacd as above stated (3«. (6) That 
 petroleuH aad its pradodta ihoald hare (wea ^ven a fifth-class rati^ at 
 the tit the ihipt a< ii ia questioa mvi-cd. [British Jknericaa Ofl Co. t. 
 Ghaad Tnaii Rjr. Cou, 9 Cka. Rt. Cksl 17& aad Graad Traak Bj. Co. t. 
 BritiA ABHiieaa (HI Cou, 43 Caa. S.C.R. 311. U Caa. Rj. Ga& US, le- 
 fencdtOL] 
 
 Chaadiaa OO Co. r. Graad Traak aad Caa. Pac Rt. Cos.. 12 Caa. Rr. 
 Chs.334. 
 
 DcscaniEXATiox — CmuiouiTT bate — Thuocch lajunc — Ttmacs c&aanx8L 
 Applieatioa directii^ the respoadeats to tedacc their coaaMMlitT rate oa 
 «Q aad its prodacts froa 35 ceats per boadnd pooads to 22 ceat$: fiuw 
 '—T'-g poiats ia the Uaited States. ^ Pan!, etc to Wiaaipc;^: or a pwpo t- 
 tioaate ndactioa to poiats bevviBd Wiaaipe^ ia Maaitofaa, Sa$JEatche«aa 
 aad AAerta aot to exceed the rates froai Fort WiUian to the sane poiat^i. 
 The conamditT- rate fnmi ihe ba^^ii^ poiats ia the Uaited States. St. PaoL 
 cte^ aad froai th««» in Caaada. Fort Willian and Port Arthur to Wiaai- 
 peg. is 35 ceats per haadnd pouad&. throu^ eouqietitioB. hut fron the 
 Caaadiaa faasia^r points to othn* poiats ia llaaitoba. Sasfcatchevaa aad 
 Alberta it is lower thaa froa those ia the Uaited States. The appliouts 
 «a1»niitted that the rioBaioditj rate froai St. Paul should be lovend or the 
 rate froni Fort Williaai raispd so that a |»oportioaate rednctioa would 
 rtt^ult in their faronr to «e$t«Ta points bcrond Wiaaipe|r as a^inst trafie 
 Tia Fort Wilfiaa^ ptesnaBaUr ia coapetitioa aith oil rrfiaers ia castera 
 Canada. The reapoudcats sabautted that sorb a redoctioa or raisia^ of 
 rates to Wiaaipc;^ aad poiats veist thereof would be najust disrriaiiaatioa 
 ia ^Toor of the af^firaats aad wald divert the traflbr to forei^ coui- 
 petiag railvars. The r«poadeats farther sahmitted that they were eoabled 
 
7i)8 TOLLS AXD TARIFFS. 
 
 to lower tliose rates because a single-line liaul for substantially similar 
 distance has advantages over a two or more line haul, its net revenue is a 
 unit coming to it alone, while in the latter case the net revenue must be 
 subdivided between the participants in the carriage: — Held, that the Board 
 had no jurisdiction to order a reduction in rates from initial points in the 
 United States and the application must be dismissed. [Can. Northern Ry. 
 Co, V. Grand Trunk and Can. Pac. Ry. Cos. (Muskoka Rates (No. 2) ), 10 
 Can. Ry. Cas. 139, at pp. 147, 148, followed.] 
 
 Continental, Prairie & Winnipeg Oil Cos. v. Can. Pac, etc., Ry. Cos., 13 
 Can. Ry. Cas. 156. 
 
 [Followed in Shippers by Express v. Can. North., etc., Ry. Cos., 14 Can. 
 Ry. Cas. 183; Fullerton, etc., Co. v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 
 79; Saint David's Sand Co. v. Grand Trunk and Michigan Central Ry. Cos., 
 17 Can. lly. Cas. 279; Ucst Virginia Pulp & Paper Co. et al. v. Can, Pac. 
 Ry. Co.. 23 Can. Ry. Cas. 153.] 
 
 Through traffic — Foreign express companies — Initial carrier — Local 
 
 AND through tolls JoiNT TIlROllill TARIFFS. 
 
 Application for a joint through tariff of tolls from points in the United 
 Stales contiguous to Spokane to Regina, Sask., of $2 per 100 lbs. on ber- 
 ries, small fruit, and vegetables: — Held (1), that under s. 336 of the Rail- 
 way Act, 1906, the Board had no jurisdiction to order the initial foreign 
 carrier to file or concur in joint tariffs at the request of the applicant. 
 (2) Thai while the Board could not require the foreign carrier to either 
 file or concur in filing joint tariffs, it might require the respondent to file 
 same if the foreign carrier concurred and vice versa if such joint tariffs 
 were thought by the Board to be fair and reasonable. (3) That since the 
 foreign carrier had not concurred, and the difference in toll was such that 
 it would be unfair to require the Canadian carrier to accept all the shrink- 
 age necessary to bring the toll down to $2; this application must be re- 
 fused: [Stockton and Mallinson v. Can. Pac. Ry, Co., 9 Can. Ry. Cas, 165, 
 distinguished.] 
 
 Stockton et al. v. Dominion Express Co., 13 Can. Ry. Cas, 459, 3 D.L.R, 
 848. 
 
 Latitude in regulating rates — Board — Express tolls over two or jiore 
 LINES — Sum of the locals. 
 
 Traffic handled by two or more companies over connecting lines may 
 well bear a heavier toll than if handled bj' one only and where two com- 
 panies charged tolls equal to the sum of the locals over their respective 
 lines, the Board refused to interfere in the absence of proof that the 
 charges were excessive, notwithstanding that a lower through rate had 
 formerly been charged when one oxjjress company operated over both lines. 
 
 Shippers, etc. v. Can. Northern, etc., Hy. Cos., 14 Can. Ry. Cas. 183. 
 
 Through tolls — Increase — Joint tariffs. 
 
 Joint tariffs increasing the through tolls on i)ulpwood from shipping 
 points in Eastern Canada to manufacturing points in the Eastern States 
 of the United States were autliorized by the Board. The proposed through 
 tolls on pulpwood wliich were not attacked as luireasonable per se through 
 being lield down by water competition, and biitig lower than the tolls 
 between the same points on other rough forest products ( in force some 
 time without complaint) may fairly be considered reasonable. The right 
 of the carrier to consider the resultant traffic as a reason for the lower 
 toll on the original commodity wbere liauled to points of manufacture on 
 the carrier's line is well established. [Michigan Sugar Co. v, Chatham, 
 
TOLLS AND TAKIFFS. 799 
 
 WallanlNUs t Lake Erie By. Col, 11 Can. By. Cks. 353, foUowd.] Wlhexv 
 the carrier redmrd tlie local tiAs oa tke ra«r material erva lover tkaa oa 
 fiiwood, haTia^ t^ a^onuMv of tlw meeamd kaal of tbe pulp or paper 
 pradaete, aad mder tte scdbednks ia forte prior to September 2, 191±. the 
 fruparijkms a«eraiag to the Caaadiaa carriers fnm th i oa ^ dupncats 
 io tlw Uaited States axe lower thaa the tolls paid fay Caaadiaa auaofac^ 
 tarers, tihere is ao aajast diaeriwaatiaa a^iast tWir foivi^ eompetitxM^. 
 the tolls for Caaadiaa delircry beia^ based oa the resoltaat traffic. Ia 
 the a p p uttkiaa aeat of the through tolU betveea two or three aad. ia «OBie 
 cases foor carriers, it is reasoaabie that the joiat ttroo^ tirfl^ should be 
 oa a higiher 1m?js thao f<M' >i^i]ar distaaccs oa the liae of a sia*le eoanpaay. 
 (Ooatiaental Prairie t. Wiaaipcir Oil Cos. t. Caa. Fae. et aL Ry. Cos^ 13 
 Gsa. B;y. Cas. L5«. foUoved.] No atteatioa aeed be paid to the coasider- 
 atiaa that the tcdl chai;^ed upoa the rav attterial should he aach as vonJd 
 I <■!■ 1 1 < the reaourecs of the eonatry. If tke toll is aa iw|wiifw i oae. aith 
 vhidk Ae Board is aloae coaferaed. there is ao reasoa vhy it shoald be 
 allowed to staad beeaoi* the foreign ■ttaafaetuier absorbs the iacrea-w 
 jaiitead ni the Caaadiaa jMrodueer. 
 
 lateraatioBa] Paper Col t. Graad Tntak. ete^ By. Cos. (Pnlp«w>d C&9e(. 
 15 Caa. By. Cas. 111. 
 
 [Beferred to ia Ea^tera Towaships Loai^ba- Co. t. Tewseousta By. Cou. 
 IC Caa. By. Ca& ±60; foUoved ia As^er et aL r. Graad Tmak aad Caa. 
 Pac By. Co*. 19 Can. Ry. Cas. 401: West Virwiaia Pulp k Paper Col, et 
 aL T. Caa. Par. By. Cou 23 Caa. By. Cas. 133.] 
 
 SdsxssBcsG TAMMFF — CosncoiMiT — MnFaor 
 
 Uader a. 338 af the BaUaay Aftt, IMS, tiw Boaid is aot a 
 
 «f saperaeaaioa, hat has the right to e xeicijM e d iac ie th m 
 
 judguMt uf the f■ets^ aad thercupoa to disalloar a 
 
 declare the fonaer joiat tariff to be still ia foree. 
 
 Bobertaoa t. Caa. Pike. By. Co., 17 Ouiu By. Caa. 1«8. 
 
 ■JfMXT TOtX£ — BEASOXABLE^nsS. 
 
 The Board. foUoviag the General latersvitehiag Order, approved a 
 joiat toll of oO ceats per toa oa saad o«-er a distaace of 1?3 aiiln (3 wles 
 over M.C.B. aad 9.3 miles over G.T.B.) fnosa the saad pit to Merrittoa, 
 subject to a miaiaraB weight of fiOjOOO lbs. [Doolittle et aL t. Graad 
 Tmak aad Can. Par. By. Cos. (StoiH' Quarry Toil Case), 8 Caa. By. Ca&. 
 10, at p. 13; CootiDeatal. Prairie aad Wiaaipe^ Ofl Cos. t. Caa. Pke. By. 
 Co.. 13 Caa. Ry. Cas. 1^6. at p. 133-. Caaadiaa Vaaufacturere' Jkssa. t. 
 Caaadiaa Freight Assa. (General laterswitchiag Order », 7 Caa. Br. Caa. 
 302. followed.] 
 
 Saiat. David's Saad Col ▼. Graad T^raak and Michigaa Central Bv. Co<.. 
 17 Caa. By. Caa. 279. 
 
 DiFFEBEXCE IX TOLLS OB QrAXTfTIES — C-L AXD L.CX.. l&lFnc — ^TkJ>rV 
 
 While it is justifiable to bajv differences in a toD oa <iuaatity as hetveea 
 C It. aad L.C.L. traffic aioTcvieat. it is not justifiable to make a difference 
 ia a toll based oa the distiaction between ear-load and traia-load nore- 
 meats. 
 
 Saiat Dtavid's Sand Col t. Grand Trunk and Hk^igan Ceatral By. Ca>. 
 17 Caa. By. Cas. 279. 
 
 Cp^^bttcsc cabkiexs — Jorvr. Ijocal wn xkt tolls. 
 
 The Board refused to redaee the tolls oa the rr prmdrnt power e o m - 
 
SOO TOLLS AAT^D TAEIFFS. 
 
 pany's line, on account of its extraordinary operating conditions, but made 
 a reduction in the respondent railway company's toll by following the 
 practice in Eastern Canada, where connecting carriers having no joint 
 tolls, each takes one cent from its local toll, subject to a minimum net 
 toll. [Fullerton Lumber & Shingle Co. v. Can. Pac. Ky. Co., 17 Can. Ry. 
 Cas. 79. distinguished.] 
 
 Stoltze Mfg. Co. V. Can. Pac. Ry. and Western Canada Power Cos., 17 
 Can. Ry. Cas. 282. 
 
 coxxectixg carriebs — separate legal entities — construction toll — 
 Through bill of lading. 
 
 When two connecting carriers are separate legal entities, and the former 
 operates and tariffs the latter as a separate property, the latter is under 
 no obligation to put a construction toll of the former into effect on its 
 line, but the shipper is entitled, on a through bill of lading to the benefit 
 of the through toll to the point of delivery. [See Wylie Milling Co. v. 
 Can. Pacific and Kingston & Pembroke Ry. Cos., 14 Can. Ry. Cas. 5.] 
 
 Oliver-Serim Lumber Co. v. Canadian Pacific and Esquimalt & Nanaimo 
 Ry. Cos., 17 Can. Ry. Cas. 324. 
 
 Through local and joint tolls — Division — Unreasonable — Jurisdic- 
 tion. 
 
 The Board has no jurisdiction over the tolls for the transportation of 
 commodities by carriers in a foreign country, and a joint toll in excess 
 of the sum of the locals being prima facie unreasonable, it is within its 
 jurisdiction to direct that a Canadian carrier should not, as its division 
 of a through toll, exceed its local. [Re Joint Freight and Passenger 
 Tariffs, 10 Can. Ry. Cas. 343; Continental Prairie and Winnipeg Oil Caa. 
 v. Can. Pac. et al. Ry. Co., 13 Can. Ry. Cas. 156 at p. 161, followed.] 
 
 Fullerton Lumber & Shingle Co. v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 
 79. 
 
 [Distinguished in Stoltze Mfg. Co. v. Can. Pac. Ry. and Western Can- 
 ada Power Cos., 17 Can. Ry. Cas. 282.] 
 
 Joint — Local — Legal. 
 
 It is a fundamental principle that when a toll, joint or limited to points 
 situate on one line of railway, has come into force under the Railway Act, 
 it is the only legal toll in respect of the traffic and between the points 
 mentioned. 
 
 Montreal Board of Trade v. Can. Pac. Ottawa & New York and Inter- 
 colonial Ry. Cos., 18 Can. Ry. Cas. 6. 
 
 Joint — Sum of the locals — Unreasonable— Unjust discrimination. 
 
 To change a joint toll in excess of the sum of the locals is primA facie 
 unreasonable and unjustly discriminatory, and the onus of disproof should, 
 in individual complaints be on the carrier or carriers concerned. [He .Toint 
 Freight and Passenger Tariffs, 10 Can. Ry. Cas. 343. followed.] 
 
 ^lontreal Board of Trade v. Can. Pac, Ottawa & New York, and Inter- 
 colonial Ry. Cos., 18 Can. Ry. Cas. «.] 
 
 Interchange of TBAFtnc — Initial carrier — Long IIai-t.s. 
 
 The general principle followed by the Board in dealing with applica- 
 tions for interchange of traflic is that the initial carrier is entitled to 
 the long haul on its lines subject to the limitation tliat the resultant route 
 is reasonable and practical, and involves no back haul on increased cost to 
 the public. North Bay is a point at which the respondent should inter- 
 
TOLLS \SU TAIOFFS. 801 
 
 rbu^ uafte vitk tW »ffiSamL. {Cam. Xovtherm Rj. Col t. Grand Trmk 
 ud Caa. PSki Bt. Cogw (MvJkoka Sates Ckae, Xos. 1 aad 2), 7 Cam. Rj. 
 CasL 289, 10 CaL Rr. Gn. ISI. fallowed: Great Xorthera Rr. Col t. 
 Caa- Xorthera Rt. Col 11 Caa. Rr. 0«. 4*4. rcfcnvd t».] 
 
 Caa. XortWra' Rr. Col t. Grand Trvak Ry. Co. «Xortk Bar Case), 2* 
 Can. Rj. Ca& 84. 
 
 JoCVr TOLLS — SiXCLE JXXE. 
 
 A joiaft toD of 47 ttats per tarn (3 eeata over tke a^ie liae kaiil toO) 
 vas cstaUi^wd on coal over tke MkUsaa Centnl and Xiagaza, S(L Catka- 
 riaes i: Toroato Rt. Ghl bum tke Xiagara fraatier to St. GatlMiiaes aad 
 ad jacoi poiais, ia' tlK fnpoctiaK of 27 cnU to tke ^lirfc^^a Gortial and 
 :a» cods to tfce Xiagara, St. C alhaiia e a 4 Tocoato I^. Go. 
 
 Xia^ra, SL GatlMrnes 4 Ttevate By. Co. t. Oiaadiaa Retail Coal A^a.. 
 ±1 Caa. Rt. Casw 28. 
 
 TKAJrnC — JOCTT TOUJI — SfWOAM. FBBCST TABIFTS — DlSCSnO^A- 
 
 The nhit of Hit Aei tt tkat tiafie waarimg om tktr liaes of tvo or 
 ■war aurriers ^all be foiiMhrid aad eanied as t faoa j Bk traSe «■ oae hDl 
 of laiiafe: aad not tihat loeal toils shall be filed as psaportioaab and t^ 
 tiaBe —ud aader s^arate biDa. Tbe Artj is cast apoa tbe carrien to 
 cstabfiA joiat tolls for sarik traficL TUs datr eaa be eaioceed aader s. 
 334 af flK RaiiaaT Act, IMS, and tbe Board vill not approve ^erial 
 freigjbt iariSB ia coarftraTcatioa of tkis priaci^ aade for tbe purpoce of 
 canxiag^ oak «p>riil arraageaKate betaaia carriers aad iadiTidaaL skippers 
 Special freigbt tarifls aad coHandi^ toOs pcrauttcd br tbe Act are jo»t 
 as aack sabject to tbe fwiniiMii idatiag to cqnalitT aad to joiat toll 
 ■ovcBHsts a?^ are tbe or^iaal staadard tariffs. Artificial or aajasthr 
 diserianaatorT tolls laBst aot be Bade ia order to take awaj froaa distri- 
 batiag poats or BaaafiaetnriBp ccatrcs tbe aataral adraata^es of tbetr 
 p«iigiipbii.il titaatioa: atw to faToon- a BaaafartBrvr ia oae localitT 
 agaiart bis luiapiiittH- ia aaotbcr. Traffir Bia»t be Moved oa tbe tarifi» 
 filed — BO BMre aad ao less: and tibese tariffs Btt$t be frw of aajast di»- 
 CTiwaatiaa aad coaiplr aot obIt aritb the •eBcral seetioBs. bat. ia caaes 
 ahne applicable, vitb tbe joiat traJBe sectioas of tbe Act. The Board 
 disaDoaed as coBtrary to Sa. 33S(3i. 333 aad 337 of tbe Act a qtecial 
 frei^t tariff fikd by a carrier to corer carria^ of a specified coaoaoditT 
 o«vr its ova liaes . Toroato to R^iaa oalj. where tbe toll vas Made 
 applicable oalr to wbip^ats ori^iaati^ at Saraia (oa aaotber railvaji. 
 aad vas leis tbaa the toll br staadard tariff fnaa cither Saraia or ToroBto 
 to Wiaaipcw. aa iateitdiite poiat. The Board vill aot ghne effect to aa 
 appfieatioB to coa ipel a railvaT coBpaar to file a tariff fixi^ lover rates 
 tbaa tbe tariff ia force, aaleas tke erriittiag tariff be ih* va to be aareasoa- 
 able. Tbe priaciple that larger ^[Baatities auT be carried at taOs propor- 
 tioaately lover tbaa tkooe for jMilirr foaatities of tbe aaae ceaiModitT 
 is p r o pqr l r reeogaiaed ia fihe law taD apfvored for C J^ as agaiast L.CX. 
 ihipfats; bat it AnBM aot be etieBded, as aar fortbn- applicati«B of it 
 voold haadirap the oBaller dealer ia cot p e titi uB with tbe larger. 
 
 Imperial oa Go. T. Gaaadiaa Freifbt Asa_ 20 Can. Rr. Gas. 171. 
 
 •locsT ToiJ-s — Srai or the locals — I^cbel^^^c — Tmaftsc 
 
 Tbe railvaT cwpaaie» baTiag filed caarrHatin— of a large aaahor of 
 
 joiat tariffs, tbe effect bein^ to iaercase Udls hgr BahililBli^ the hbs af 
 
 tbe local toils far tke joiat tolls fioraeriy ia force, tW Board 
 
 that tbe actioB vas objectioasble aad voald Bot be aDowad. 
 
 Caa. Rt. L. Dig.— SI. 
 
802 TOLLS AND TAKIFFS. 
 
 ly, after a hearing, it directed that the joint tolls and service be maintained 
 and that the companies should file joint tariffs setting out tolls based 
 upon the increase authorized by the Board in Re Eastern Tolls, 22 Can. 
 Ry. Cas. 4. 
 
 Can. Freight Assn. v. Montreal Board of Trade, 22 Can. Ry. Cas. 88. 
 
 Division of through Toll — No test of rkasoxableness — Local toll. 
 
 The through toll or the division of the throuj-h toll between two points 
 is not necessarily a test of the reasonableness of the local toll to an inter- 
 mediate point. 
 
 Lake Superior Paper Co. v. Algoma Central & Hudson Bay Ry. Co., 22 
 Can. Ry. Cas. 361. 
 
 [Followed in Can. Pac. Ry. Co. and Spanish River, etc., 22 Can. Ry. 
 Cas. 381.] 
 
 International Traffic — Joint — Throigii — Local — Continuous Route. 
 
 The rule that a joint or througli toll between any -two points properly 
 filed is tlie only legal toll in respect of the particular traffic between such 
 points, applies also to international traffic, where a joint tariff of tolls 
 for a continuous route has been filed for part of the distance, the through 
 toll for the continuous route plus the local toll to the point beyond the 
 end of the continuous route is the only toll that can be charged. 
 
 General Traffic Service Co. v. Can. Pac. Ry. Co., 22 Can. Ry. Cas. 372. 
 
 Joint tolls — Local — Mail order busin&ss — Distributing points. 
 
 Lower or joint tolls will not be granted to a retail dealer, in a distant 
 point (such as Winnipeg), seeking to do a mail order business (L.C.L. 
 lots) tlirough a well-established distributing point (such as Edmonton, 
 848 miles from Winnipeg), into territory tribntory thereto (tlie Peace 
 River Country), which would give the shipper a toll lower tlian tlie local 
 toll at the distributing point (Edmonton). [Re Western Tolls (Western 
 Tolls Case), 17 Can. Ry. Cas. 123, at p. 15G; Re Edmonton, Dunvegan & 
 B.C. Ry. Co. (Mountain Scale Tolls Case), 22 Can. Ry. Cas. 1, referred to.] 
 
 Newman v. Edmonton, Dunvegan & B. C. Ry. Co. ( Winnipeg-Ednionton 
 Mail Order Case), 22 Can. Ry. Cas. 399. 
 
 Joint tariff — Continuous route traffic — Movement— -Foreign coun- 
 try — Reduction — Refund. 
 
 Under s. 336 of the Railway Act, 1906, a joint tarifl* of tolls must be 
 filed covering a continuous route traffic movement from a point in a foreign 
 country into Canada wliere a through toll is attacked as being unreason- 
 able because it is in excess of the sum of the locals the Board has juris- 
 diction only so far as to direct a reduction for tlie future, but possesses 
 no power to direct a refund of a portion of the toll charged. 
 
 Security Traffic Bureau v. Can. Northern Ry. Co., 22 Can. Ry. Cas. 414. 
 
 Initial Carrier — Routing — Lowest combination. 
 
 A shipment of household goods, originating at Kingsville, consigned to 
 Bridgeburg, Ontario, was delivered by the Windsor, etc., Co. to the C.P.R. 
 Co. at Lake Shore Junction, and by that line delivered to the G.T.R. 
 Co. at London — the initial carrier, without instructions from the owners 
 having chosen a route at a higher toll than that available via Michigan 
 Central Ry. from Lake Shore Junction to Bridgeburg, and being under 
 obligation, in the absence of specific instructions as to the routing of its 
 
TOLLS AXD TARIFFS. SOS 
 
 ovB liaes, to stsd the goods fMirard oa the l oiat toil fnwliiBitiiw mTuI- 
 akie^ Aowld sake •Ajmetimmt accordia^. 
 
 Sadair t. Wndsv, Ibaex t Lake 9M>re Bapid Ry. Col, IS Cam. Bj. 
 Gu. 344. 
 
 OoXCrBBKSOi — SCTSXSBEB OK AI&&IJU1VEB TQIX. 
 
 Under a. 338 (1) 4rf the Raihny Att, 1906. w> joint toD can be dis- 
 i ^ ar ded Iqt tiM carriers nDtil it has bwn sopeiseded or diaalloved bjr the 
 Board. If the carriers desire to pt nbei fmm tamemmmtt in JMBit toDs 
 they anst »Pfij to the Board makiag out a ease joatifri^ the exteasioa 
 of swh iciieL ' 
 
 Be Joiat Tolls aad ConcnrraMC^ 19 Caa. Br. Cms. 379. 
 
 TrTTTimoT — ]:vnx5ATioxAi. jmst tasifts — UorEHEjrrs. 
 
 As a auttcT of practic« the Board in the pa^t has dealt with iatema- 
 tieaal joint tariffs hariB^ regard to the outward novement only, and 
 wprakint: gcncnDT it ha? not interfered in anj war with anr tariff pr>af>- . 
 criy filed nnder the practice prerailing in the United States direrthr applv- 
 ing to a joint nMvrenMnt into Canada. 
 
 Amger et aL t. Grand Trunk and Can. Far. Br. Gos- 19 Can. Br. Cas. 
 40L 
 
 [FoDowvd in West Vir]^inia Palp 4 Paper Co. et aL r. Caa. Pac Bj. Co. 
 23 Can. Br. Cas. 153w] 
 
 CO AABf l lA C «♦*— IMWS, — ShOKTEST BOCTES. 
 
 C onnecti ng carriers should route shipaamts of rvgetahles and frait via 
 the shortest possible aileage rootcs and file appropriate tariff? ot toll5. 
 
 SiMJlkaf rn Faraers Institate t. Can. Pte. and Great Northern Bt. 
 Cos., 24 Can. Bt. Cas. 12a. 
 
 ComiEvrvsG CJUBIEBS — ^Thmktch tuxs — DmsioN — Reshifmext. 
 
 The drrisioa of the throogh toll as between connecti^ carnrrs on hanis 
 over two or BK»re lines is a matter of domt itie concern, and so lo^ as the 
 throi^ toD » not vnm.«onable. it does not HMtter to the pafalic how it 
 is divided. [ContinevtaL Prairie t Winnip^ Oil Cos. r. Can. Pae. Rj. 
 GoL el aL, 13 Gu. Bt. Cas. 1-56 at p. 159; Manitoba Dtairymen's Asa. V. 
 DonunioB and Ckn. Xorthem Exprests Cos.. 14 Can. Bj. Cas' 142 at p. 14S: 
 Intenataoaal Paper Co. t. Grand Tmnk. Can. Pae. and Can. Xorthen Bj. 
 Goa. (Pnlpwood Casex. 15 Can. Bt. Cas. Ill: Blind Birer Board of Trade 
 T. <^aad Tmnk. Can. Pae. Br.. Xorthem XaTiaation and Dominion IVans^ 
 portatiM Cosw la Can. Bt. Ca?. 14£: Re W^tem ToDs (Western T<rfls 
 Case). IT Can. Bt. Casv 1±3 at p. 203: Dominion Sn^iar Co. t. Grand 
 Trunk. Can. Pae. Chatham. WaHaceborg 4 Lake Erie and Pere Marvfaette 
 Br. Cos., 17 Can. Bt. Cas. 231. at p. 239 Irriieard. IT Can. Rj. Cas. 240 
 at p. 24t( : Ai^er Jt Son. and D'Anteoil Lnmber Co. t. Grand Tmnk and 
 Can. Pae. Br. Co^.. 19 Can. Br. Cas. 401 ; Be Easton Tolls (Eastern Tolls 
 Ca«e>, 22 Can. Br. Cks. 4, followed.] Coasideri^ the tolls appivped oa 
 analogoos forcist products on single line haals, whoe the twx> Ganadian 
 carriers hare no reshipment adrantages and ictcnatA accming therefrom, 
 an increase in tolls of 1 cent per 100 lbs. oa polpwood fromi territorr west 
 of Ifoatreal ria Ottawa or St. Polrcarpe Jet. to Blame's Point » aoi 
 nnreasaaaUe. 
 
 West Viiginia Pulp 4 Paper Co. et aL v. Can. Pae. Bt. Co., 23 Can. 
 Bt. Cas. 1»3. 
 
804 TOLLS AXD TAPJFFS. 
 
 D. Competitive Tariffs. 
 See also (B) p. 757. 
 
 Special rates on bottles in carloads — Foreign competition — ^Reduc- 
 tion, 
 
 Bottles in carloads were formerly carried from Wallaceburg to Toronto, 
 Hamilton, Berlin and Montreal at special rates less than the regular basis 
 of fifth-class. Upon the IJailway Act, lOO;}, coming into force on Ist 
 February, 1904, these special rates were increased. The Sydenham Glass 
 Company applied for the restoration of the former special rates. It 
 aiipt-arod that at the present rates the Glass Company cannot maintain 
 its position in the Iionie market against foreign competition: — Held, that 
 the rates sliould be reduced to the following scale, viz., to London 8 cents, 
 to Toronto, Hamilton and Berlin 13 cents, to Montreal 23J cents. 
 
 The Sydenham Glass Company Case, 3 Can. Ry. Cas. 409. 
 
 Cooperage stock local deliveky and kxport — Llmber — ^Mileage tariffs 
 — Competition. 
 
 The complainants object to tlie increase in the rates on cooperage stock 
 between points in Eastern Canada, and more especially to the increase 
 from Wallaceburg and other Western Ontario points to Montreal for local 
 delivery and for export: — Held, that rates on cooperage stock should not 
 exceed rates on common luml)er according to the mileage lumber tariffs 
 of the railways, but such rates when specially reduced on account of water 
 competition, etc., need not necessarily apply to cooperage stock. From 
 jioints in Western Ontario to Montreal, the maximum rate for local de- 
 livery was fixed upon the evidence at 16^, cents, and for export, including 
 '"terminal," at 18 cents per hundred pounds. 
 
 Sutherland — Innes Co. et al. v. Pere Marquette. Michigan Central, et 
 al. Ry. Cos. (Cooperage Stock Rates Case). 3 Can. Ry. Cas. 421. 
 
 Excessive tolls — Water competition — Shorter and longer distances. 
 
 On a complaint to the Board under s. 315 (5) of the Railway Act. 1906, 
 that the rate on a sliipment of apples from Picton to Smith's Falls was 
 excessive as compared with the rate from Picton to Ottawa; Smith's 
 Falls being an intermediate point located on the Rideau Canal and the 
 distance from Picton to Smith's Falls being shorter than the distance from 
 IMcton to Ottawa: — Held (1), that the complaint should be dismissed, 
 the rate to Ottawa being a conii)elled rate based on water competition. 
 (2) That a shipper could not demand less than normal rates on account 
 of water competition which a railway company, in its own interest, did 
 not choose to meet. 
 
 Plain V. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 222. 
 
 [Followed in Can. Oil Co. v. Grand Trunk, etc., 12 Can, Ry, Cas, 351; 
 Xanaimo Board of Trade v. Can. Pac, Ry. Co,, 20 Can, Ry. Cas, 224, 231,] 
 
 Sa(iAR tolls COMPETITIOX EQUALIZATION. 
 
 Application for an order directing respondents to reduce the tolls on 
 sugar from Vancouver to Winnipeg and otlicr Manitoba points, so as to 
 equalize them with the tolls charged l)y tlie Pere Marquette Ry. Co. on the 
 same commodity from Wallacel)urg, Ontario, to the same points: — Held, 
 that it is entirely within the discretion of one railway company whether 
 it will meet the competition of the lolls charged by another, and the ap- 
 plication must be refused. [Montreal Produce ^lercliants' Assn. v. Grand 
 Trunk and Can. Pac. Ry. Cos.. 9 Can. Ry. ('as, 232, at p. 240: Lasalle 
 I'aper Co. v. Michigan Central Ry. Co,, 16 I,C.C. Rep. 149, at p. 150; 
 
TOLLS AXD TARIFFS. S0-> 
 
 Lancashire Patent Fuel Co, t. London & Xortk-Westem Ry. Co., 12 Ry. 
 k C. Tr. Cas. 79, followed. Written arguments were submitted by the 
 complainant and the railway company.] 
 
 British Columbia Sugar Refining Co. t. Can. Pac. Ry. Co., 10 Can. Ry. 
 Cas. 169. 
 
 [Followed in Can. Oil Cos. t. Grand Trunk, etc, 12 Can. Ry. Cas. 351; 
 Dominion Sugar Co. v. Freight As<n., 14 Can. Ry. Cas, 1S8; Graham 
 Co. V. Canadian Freight Asj>n.. 22 Can. Ry. Cas. 355.] 
 
 TOIXS ^EXPOBT — DoMiSTIC — ^WaTER COMPKTITIO.X. 
 
 Complaint of noncompliance with order No. 10328 directing the respond- 
 ents to file tariffs of tolls on lumlier to M<mtreal for export *'which in gen- 
 eral shall be lower than the tolls on lumber to Montreal.'' The tolls in 
 dispute were those from Ottawa district and certain points in the Province 
 of Quebec. The former Ottawa domestic toll was proportionately lower 
 than some of the other tolls in the Province of Quebec on account of water 
 competition. The former export toll from that district was. generally 
 speaking, one cent lower than the domestic tolL Under the new tariff 
 these tolls were made the same except in two cases. The respondents ex- 
 plained that the tolls for export from points in the Province of Quebec 
 not controlled by water competition were controlled by market conditions 
 in Montreal which were regulated by shipments from the Ottawa district: 
 — Held ill. that the words "in general" were put in Order Xo. 10528 in- 
 toitionally Ijecause the Board could not in every case require the export 
 toll to be lower than the domestic, even if. in certain individual cases, th« 
 former tolls might, or might not, have licen reasonable. (2i That the 
 tolls from the Ottawa di»trict were low in comparison with other tolls and 
 tht- respondents should not be required to make a still lower toll for export 
 than the domestic toll. (3| That from points in the Province of Quebec 
 north and east of Montreal not affected by water competition of the Ot- 
 tawa river the tolls for export should be reduced $o that the same differ- 
 ence should exist between the present as existed between the former do- 
 mestic and export tolls. [Canadian Lumbermen's Assn. v. Grand Trunk 
 et al. Ry. Cos.. 10 Can. Ry. Cas. 306, referred to.] 
 
 Canadian Lumbermen's Assn. v. Grand Trunk and Can. Pae. Ry. Cos. 
 (Export Tolls on Lumber (No. 2| K H Can. Ry. Cas. 344. 
 
 [Referred to in Cox * Co. v. Can. Pac. Ry. Co.. 13 Can. Ry. Cas. 20] 
 
 CakijOad ratixg — Commodity toli-s — Light axd bulky coMMODmE.s — 
 
 COMPETTriOX. 
 
 An application for a reduction in the minimum carload weight of toasteii 
 com flakes from London to points west of Port Arthur and Fort William. 
 The applii-ant's shipments to points in l^^trm Canada were covered by a 
 special tariff on the basis of a minimum weight of 20.0(X) pounds per car. 
 On western shipments the applicant made no complaint as to the clas< 
 rating, but contended that the minimum carload weight should be redue>><l 
 from 30.000 to 24.000 lbs. per standard 36-foot car. The applicant dealt 
 only in toasted com flakes, a light and bulky commodity which never got>s 
 abov« 15.000 lbs. per car, contended that he was subject to unfair com- 
 petition with regard to similar dealers in grain products and cereals, who 
 by mixing other commodities brought the carload weight up to 30.000 lbs., 
 but still remained under the same class rating as the applicant. The 
 respondent submitted that a minimum carload weight was fixed to corres- 
 pond with the loading capacity of a standard car and provided for a uni- 
 form rating to all kindred articles; that carload rating and minimum 
 wciglit were inseparably connected, and the combination of the two would 
 
80G TOLLS AXD TARIFFS. 
 
 result in a fair and equitable carload toll. In oases of this kind the re- 
 Bpondent established a commodity toll at a higher class or toll with a 
 minimum approximating to the actual carload weight, thus insuring to the 
 carrier the same earnings as would be obtained from the carriage of com- 
 modities of the same class. The applicant stated that his western ship- 
 ments were nearly all C.L., but the Chief Traffic Oflker of the Board re- 
 ported that in practice there was no C.L. rating, the L.C.L. rating applying 
 on any quantity shipped to Western Canada: — Held, that without changing 
 the rating the minimum carload weight for a standard car of flaked or 
 cooked cereals should be reduced so as not to exceed 24.000 lbs. 
 
 Uattle Creek Toasted Corn Flake Co. v. Canadian Freight Assn., 12 Can. 
 Ity. Cas. 11. 
 
 Tolls on gas house coke — Increase — Competition. 
 
 An application complaining of an advance in the freight tolls on gas 
 house coke from lilack Rock to Hamilton, and other Ontario points. The 
 respondent increased the tolls on coke on the Canadian end of the haul 
 from 50 cents per ton to 80- cents and from 80 cents to $1.00 from Black 
 Rock to Hamilton and Toronto respectively. The Consumers' (4as Co. 
 claimed that on account of having to pay 5^ cents per ton duty and 60 
 cents freight tolls from the Suspension Bridge to Toronto on bituminous 
 coal from which coke is manufactured, they were at a disadvantage of 
 $1.13 per ton in competition witii the Buffalo Gas Co. They had therefore 
 asked that the tolls from Toronto to Hamilton and Brantford l)e lowered 
 to meet the tolls of the Buffalo Gas Co. from Buffalo to the same points. 
 Instead of complying with this request the respondents had increased the 
 Buffalo-Hamilton coke toll by 30 cents per ton: — Held, that nothing was 
 shewn justifying this increase, and these increases nuist be cancelled and 
 the old tolls restored. 
 
 Myles V. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 289. 
 
 Tolls on grain — Discrimination — Special joint tolls — Competitiox. 
 
 A complaint that the increase in the tolls in the special and coinj)ctitive 
 joint freight tariffs on grain and grain products in C.L. lots to points in 
 the iMaritime Provinces, were imjustly discriminatory. The railways stat- 
 ed that there were three kinds of tolls in these tariffs which might be 
 denominated as (a) Special joint tolls or "normal"' tolls, (b) Competitive 
 joint tolls, (c) Competitive joint ''furtherance" tolls. The so-called "nor- 
 mal" tolls are lower than the other class tariffs and cover the bulk of the 
 rail points in the ^laritime Provinces. The present basis of the "normal" 
 tolls develops from the arrangement arrived at between the railways and 
 the Dominion Millers' Assn. in 1005. The Chief Traffic Officer reported 
 that the normal tolls were in accordance with this agreement: — Held (1), 
 that the increase in the competitive joint tolls and competitive joint "fur- 
 therance" tolls was due to lessened competition, and that it was within 
 the discretion of the railways to vary these tolls within the limits fi.xed 
 by the "normal" tolls provided such increases were not unjustly discrim- 
 inatory, which had not been shewn in this case. (2) That in shipments 
 cast of Montreal of grain |)roduct8 the same arbitraries should be applied 
 from Montreal as are applied by the Canadian Pacific in arriving at 
 through rates from Fort William. (3) That if competition forces the 
 tolls of a railway below its normal basis, it follows that when the compe- 
 
TOLLS AXD TARLFFS. 807 
 
 titi— is ]^ cAeetxTv tke lailva j aaj Wii^ its talk ap wort cIoskIt to 
 
 lEIkis* A^au T. Gna^ Tnndc ud Csjl Fk. ^. C41&, 1± Cu. 
 Kj. GM.3SS. 
 
 rFolloned ia Dnwaioa Siiear Col t. Gu. Frr%|^ Asbl, 14 Caa. fijr. 
 Ca& 1«S: Bavftnr t. Halifax A S. W. R]r. Co. 2» Caa. Kj. OfcSw 231; 
 Bc^iaa Bmri mi'TnAt t. Caa. Fml Bj. Cou ±f Caa. Rj. Cas. SISl] 
 
 3£acL&zi3ns A2ca pexicoicals — Comrtitiox — DiscauoxATiox. 
 
 Appiiratina dimtia^ tW respoadeat to cstaUiah a iat taD of oae ceat 
 per poaad «■ ■■j^aiiai i aad periodical fraat VaaoMncr to oat-of-4taf«a 
 dealers ia niMptliliiia wUh the Post OSr» DepartaHat. TW icspoadeadt 
 laJMitlid aad tke appliraat adaitted tkat at tke preseat tiaw ikoe voald 
 aot be vmr iMKh profit to the carrier ia tlw i ipiiiaMBliI toll applied 
 for: — ^Heid f 1 •. tkat it «a» eatirelr ia tke discrvtiaa oi the nspoadeat 
 viwther coaiprtitioa sfcoald be Met or aot. (2« Tkat tbe Rmid bad ao 
 jariadietiaa to respire tbe respoadeat to cater iato aaj sadi coaipetitiaa. 
 (3> Tbat tbe ri^bt to a leasoaable profit to tbe carrier as veil as to tbe 
 tbippci mmU be rcco^iaEd. (4)f That it » tbe patier of the Raihnj JUt 
 thai, a^bject to the prohibitiaa of aajast diieiiwiaitiii then shoaldL ia 
 the fMir iatenist, be eiasticil^ ia tidl ■iliaf^ 13 n That the Baud aaa^ 
 aot jartified ia o idciiag the fisj^ of « ipiiiiolil tolls -ciaee it has aot 
 bcca established that the talk charged are nuvasoBable. [Expres Traf- 
 iie Asaa. r. Caaadiaa liaaaiact«rex» As^ aad Boards of Trade of Toroato. 
 Uoatrcal aad Wiaaipe^ 13 Caa. Rt. Caa. Ifi9: Florida Frait aad V^rta- 
 Ue Col v. Atlaatie Caa;st Liae Rr. Col, 17 LC.C.R. Sm, foUoaed.] 
 
 IhitKh Coiaariiia Xe«s Col ▼. Expren TnJfie Assl. 13 Caa. Rt. Ga& 
 17&. 
 
 [FoOoacd ia Uas^iah r. Caa. Far. Rr. Col^ IT Caa. Rt. Cas. S$: Roberts 
 r. Caa. Fte. Rr. Co_ IS Caa. Rt. GasJ 330: Wcstera Retail L aa al aita 's 
 As». T. Cam. Pac Caa. Nortbera aad Graad Traak Parifir Rr. C«&. ^ 
 Caa. Ri. Cas. 1m: Soathera Alberta Har Groaers t. Caa. FaCL Rt. Cou 
 il Caal Rt. Cas. ±3S: Xaaaiao Board of Trade t. Gaa. Paci Rt. Cou 23 
 Caa. Rt. Ca& 92: Cra^heid Stoae. etc-, t. Graad Traak Rt. Col 23 Caa. 
 Rjr. Cak IS: Waterloo t. Graad Traak Rt. Ga, 24 Caa. 1^. Ca&. 143.] 
 
 Tmxm OS ixrwaca — CotmiEnmos — BMrnrcrms. 
 
 Appfieatioa directia^ the nspoadcat to ehai]«e the saae tolk oai tte 
 appticaats* iibip^ atat ftoaa Fort WiDiaa to Taacoonr as acre chajpd 
 thrir eaapetifeaes ia Kiti^ Colaadhia ddppiap ia the oppoote directioa. 
 The appticaats alleged that somie fwmlilii ii ra r h as fi»t^ dear ctedar. 
 sa^ doors. ete_ beari^ a Si ceat Vaacaarcr-Fort Uillia^ tofl naw iato 
 coaipetitkHi with thea ia the Fort WiUiaa Maiket. Thcx eiaiaacd tikat 
 the Vaacaaver-Fort Wilfiaa toll o< 45 ccats per 100 lis. oa* the cheap s««t 
 hnAer saeh as fir. hnalock. larch, spraee^ aad coanaia cedar ^oald be 
 applied to hardwood laari be i aad flooria^ froH Fort William to Vaaeoarer 
 ahich aoa- vas chai]ged 80 ccats per 100 pooads. The regpoadeat sat cit- 
 ted that the aoraal tandier toD aas the dear cedar toll of m ccats per 100 
 pooads:— Held 1 1 ). that terdaood loori^ shoald aot hare the mae rat- 
 iag: as cheap soft iBabcr, bna^ a aaoae ralaabie coaaBoditT aith the cx- 
 c eptiaa of fir. (2) Ihat this, b oa e ^ cr. did aot jastiff so great aa erist- 
 ic diSereawe aiid a ton of w ccats per 100 fiiwilii ahoald be established 
 fro^ Fort William to Vaacoarer c ia aaa i w poi at s. 
 
 SeamMB, Keat Oil t. Caa. Flac Rt. C&, 13 Gaa. %. Gas. 4201 
 
8US TOLLS AXD TARIFFS. 
 
 Reasoxabi.exess — Increase of previously existing rates — Onus. 
 
 Where special circumstances have operated for a time, e.g., effective 
 water competition, to induce a carrier to give a low rate, the burden of dis- 
 proving unreasonableness is not necessarily upon the carrier wlicii tlie rate 
 is subset] ucntly increased. 
 
 Dominion Sugar Co. v. Canadian Freight Assn., 14 Can. lly. Cas. 188. 
 
 Foreign road — Tolls and rates — Reasonableness. 
 
 A carrier is not obliged to meet a lower rate made bj- a competing for- 
 eign road, and failure to meet it is not necessarily evidence of the unreason- 
 ableness of tlu>, higher rate. [Davy v. Niagara, St. Catharines & Toronto 
 and Michigan Central Ry. Cos., 12 Can. Ry. Cas. (51 ; Dominion ^lillers' 
 Assn. V. Grand Trunk and Can. Pac. Ry. Cos., 12 Can. Ry. Cas. 363; 
 Canadian Portland Cenu>nt Co. v. Grand Trunk & Bay of Quinte Ry. Cos., 
 9 Can. Ry. Cas. 209; British Columbia Sugar Refining Co. v. Can. Pac. Ry. 
 Co., 10 Can. Ry. Cas. 169, followed.] 
 
 Dominion Sugar Co. v. Canadian Freight Assn., 14 Can. Ry. Cas. 188. 
 
 [Followed in Hudson Bay Mining Co. v. Great Northern Ry. Co., 16 
 Can. Ry. Cas, 254; Hagersville Crushed Stone Co. v. ]Michigan Central 
 Ry. Co., 22 Can. Ry. Cas. 84.] 
 
 All rail and lake and rail — Routes — Competition — Discrimination — 
 
 East and westbound. 
 
 The tolls for the lake and rail route being on a competitive basis and 
 the all-rail route eastbound liaving the advantage of one cent over the 
 rail portion of tlie route westbound to Winnipeg there was no unjust dis- 
 crimination. The Board is concerned with seeing that tolls are on a rel- 
 atively equal basis. It is not its fimction to equalize costs of production 
 and upon the evidence a case for reduction in tolls was not made out. 
 [Canadian Portland Cement Co. v. Grand Trunk and Bay of Quinte Ry. 
 Cos., 9 Can. Ry. Cas. 209, followed.] 
 
 Imperial Rice Milling Co. v. Can. Pac. Ry. Co., 14 Can. Ry. Cas. 375. 
 
 [Followed in Hudson Bay Mining Co. v. Great Northern Ry. Co., 10 
 Can. Ry. Cas. 254.] 
 
 Competition by water. 
 
 In the case of a compelled toll based on water competition, it is the priv- 
 ilege of a carrier, in its own interests, to meet water competition, but it is 
 not the privilege of the shipper to demand less than normal tolls because 
 of such competition which railway in its discretion does not choose to meet. 
 [Plain V. Can. Pac. Ry. Co., 9 Can. Ry. Cas. 223; Canadian Oil Cos. v. 
 Grand Trunk Can. Pac, and Can. Northern Ry. Cos., 12 Can. Ry. Cas. 350, 
 followed.] 
 
 Blind River Board of Trade v. Grand Trunk, etc., Cos., 15 Can. Ry. Cas. 
 146. 
 
 [Followed in Dominion Sugar Co. v. Grand Trunk, etc., Ry. Cos., 17 Can. 
 Ry. Cas. 231; Nanaimo Board of Trade v. Can. Pac. Ry. Co., 20 Can. Ry. 
 Cas. 224; Bowlby v. Halifax & S. W. Ry. Co., 20 Can. Ry. Cas. 231; Boards 
 of Trade of Montreal and Toronto et al. v. Canadian Freight Assn., 21 
 Can. Ry. Cas. 77; West Virginia Pulp & Paper Co. et al. v. Can. Pac. Ry. 
 Co., 23 Can. Ry. Cas. 153.] 
 
 Carriers — Discretion — Competition by water — I^njust discrimination. 
 The Board has on many occasions decided that the extent to which car- 
 riers may meet water competition, as long as there is no unjust discrim- 
 
TOLLS AXD TARLFFS. 809 
 
 illation, is vitluii their ovu discretion. [Canadian Lombermai's Asaai. t. 
 Grand Trunk, et aL Ry. Cos.. 11 Can. Rr. Cas. 306, foUowvd.] 
 
 Canadian Lnmbermai's Assn. and Montreal Board of Trade v. Grand 
 Trunk, et aL Rt. Cos., 17 Can. Rt. Cas. 102. 
 
 CaBBIEBS DbCBETIOX — REDrCTIOX OF TOIXS CoMPErmOX BT WATEB — 
 
 UxjrST DISCElMtXATOX. 
 
 Carriers mar. in tlieir di$eretion. meet effeetire water competition from 
 one point to other points by reducing their toll?, and it is not unjun dis- 
 crimination for them to charge higher tolls from another point having a 
 limited efficiency in such competition to these points. [Blijid River Board 
 of Trade v. Graud Trunk et al. Cos.. 15 Can. Ry. Cas. 146. folloved.] 
 
 Domini<m Sugar Co. v. Grand Trunk, Can. Pac, Chatham. Wallaeeburg 
 i Lake Erie and Pere Marquette Ry. Cos., 17 Can. Ry. Cas. 231. 
 
 [Followed in West Virginia Pulp t Paper Co. et al. v. Can. Pac. Ry. 
 Col, 23 Can. Ry. Casw 153. J 
 
 Tolls-— Rn>rcTiox — Coyipprmox bt wateb — rxjrsr discbimixjitiox. 
 
 A carrier by rail may be justified in reducing tolls from one point to an- 
 other to meet <Hfective water competition between those point<, notwith- 
 standing that the lowered toll appears discriminatory a& again^^t a third 
 point, which is not affected by such competition, and which is therefore 
 subject to higher tolls, but a continuance of the competitive toll, after the 
 water competition ceases or is suspended (e.g.. in winter), constitutes un- 
 just discrimination against such third point. [Dominimi .Sugar Co. v. 
 Grand Tnmk. et al. Ry. Cos., reheard and reversed: Montreal Board of 
 Trade v. Grand Trunk and Can. Pac. Ry. Cos., 14 Can. Ry. Cas. 351 -. Blind 
 River Board of Trade v. Grand Trunk et aL Cos., 15 Can. Ry. Cas. 146, 
 followed.] 
 
 Dominion Sugar Co. v. Grand Trunk. Canadian Pacific et al. Ry. Cos., IT 
 Can. Ry. Cas. 240. 
 
 [Followed in West Virginia Pulp k Paper Co. et al. t. Can. P»c Rv. 
 Co., 23 Can. Ry. Cas. 153. 
 
 CXJTST DISCBIMIXATIOX COMPtTlTIOX BT WATEB. 
 
 Where the underlying principle of competition by water affects the 
 whole toll structure, a point unaffected by such competition is not unjust- 
 ly discriminated against in not receiving as favourable tolls as points that 
 are affected. 
 
 Cowichan Ratepayers Assn. t. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 39a. 
 
 THBOrGH litPOBT CoMPETITIOX — FOBEIGX POBTS AXD CABBIEBS. 
 
 Where china clay from Cornwall. England, for Canadian delivery, moves 
 under through bills of lading at a through toll to the point of destination, 
 any change advancing the rail carriers' import toll representing part of 
 the through movement would result in the Canadian carriers not being 
 able to hold the business in eompetition with foreign ports and rail car- 
 riers quoting a lower through toll, and where the point of production of 
 the Canadian product is from 60 to SSO miles further than Montreal from 
 the majority of the western destination^, and a two line haul has to be 
 employed as against one. the Board will not make the local joint toll from 
 the point of Canadian production equal to the Montreal import toll to the 
 sime points of destination. 
 
 Canadian China Clay Co. v. Grand Trunk, Canadian Pacific and Can. 
 Northern Ry. Cos., 18 Can. Ry. Cas. .%I7. 
 
 [Followed in Roberts ▼. Can. Pac Ry. Co., 18 Can. Ry. Gas, 350.] 
 
810 TOLLS AE^D TxVRIFFS. 
 
 Discretion — Competition by water — ^Normal tolls. 
 
 It is in the carrier's discretion whether it will meet water competition, 
 and it is not the privilege of the shipper to demand less than normal tolls 
 because of such competition, which the carrier in its own interest does not 
 choose to meet. [Plain v. Can. Tac. Ily. Co., Can. Ry. Cas. 222; Blind 
 River Board of Trade v. Grand Trunk et al. Cos., 15 Can. Ry. Cas. 146, 
 followed.] Where the carrier is subject to efTcctive water competition in 
 varying degree, and also to potential water competition it is in its discre- 
 tion whether it shall meet it and the fact that it has met the competition 
 at one point does not place it under any obligation to meet it at another 
 point nor is the toll as it is put in to meet sucli competition to one point 
 a necessary meanure of the toll to another. [Dominion Millers' Assn. v. 
 Grand Trunk and Canadian Pacific Ry. Cos., 12 Can. Ry. Cas. 363, at p. 
 368; Re Western Tolls (Western Tolls' Case), 17 Can. Ry. Cas. 123, at pp. 
 161, 162, followed.] 
 
 Bowlby V. Halifax & South Western Ry. Co., 20 Can. Ry. Cas. 231. 
 
 Discretion — Routes — Water competition. 
 
 Rail carriers engaged in the business of transportation via a rail and 
 water route in competition with an all-water route may, in their discre- 
 tion, meet water competition if they see fit, and may also determine the ex- 
 tent to which tliey shall meet it, and the Board cannot interfere with the 
 tariff of tolls filed. [Blind River Board of Trade v. Grand Trunk et al. Cos., 
 15 Can. Ry. Cas. 146, followed.] 
 
 Boards of Trade of Montreal and Toronto et al. v. Canadian Freight 
 Assn., 21 Can. Ry. Cas. 77. 
 
 Water competition — Effective and less effective. 
 
 It is not contrary to the Railway Act that carriers should meet water 
 competition in a measure when it is effective and afterwards meet it in a 
 less degree when it is less effective. 
 
 Dominion Canners et al. v. Canadian Freight Assn. (Canned Goods Tolls 
 Case), 22 Can. Ry. Cas. 312. 
 
 Discretion — Water competition. 
 
 Carriers may in their discretion meet water competition by reducing 
 tolls; they may also in their discretion restore tolls to a normal basis when 
 water competition ceases. [Dominion Millers Assn. v. Grand Trunk and 
 Can. Pac. Ry. Cos., 12 Can. Ry. Oas. 363, at p. 368, followed.] 
 
 Regina Board of Trade v. Can. Pac. Ry. Co., 22 Can. Ry. Cas. 315. 
 
 Reduction — Water competition — Increase to normal. 
 
 Tolls reduced by a railway company to meet water competition may, at 
 the discretion of rail carrier, be brought up more closely to the normal 
 level when water competition becomes less effective. [Dominion ilillers 
 Assn. v. Grand Trunk and Can. Pac. Ry. Cos., 12 Can. Ry. Cas. 363, at p. 
 368; Re Western Tolls (Western Freight Rates Case), 17 Can. Ry. Cas. 
 123, at pp. 123, 124, 159, 166, followed; Canadian Oil Cos. v. Grand Trunk 
 et al. Ry. Cos., 12 Can. Ry. Cas. 350, at p. 351; Blind River Board of 
 Trade v. Grand Trunk et al. Cos. 15 Can. Ry. Cas. 146; Boards of Trade 
 of Montreal and Toronto and Canadian Manufacturers Assn. v. Canadian 
 Freight Assn., 21 Can. Ry. Cas. 77, referred to.] 
 
 Boards of Trade of Western Cities and Canadian Manufacturers' Assn. 
 y. Canadian Freight Assn., 22 Can. Ry. Cas. 324. 
 
TOLLS AXD T.UtlFFS. 811 
 
 Wateb covrKtmos — Jhscmmos — Reasoxable — Uxjcsr MsccimxATiox 
 — ex. — ^TevroKAKT kedcctios. 
 
 A carrier i$ not obIi»nl to meet vatrr competition, and is free in its dis- 
 errtioB to take out iov eompetitire tolls provided there t$ no nnjnst dt»- 
 ciiauaation. and the toUs made effective are reasonable in themsdTe^. 
 The Board refused to rei^tore a toll on rice in carloads (60.000 Ib& min- 
 imum i of 65 cents per 100 lbs. from Vanconver and Victoria to Toronto 
 and Montreal points, in place of a toll of 73 cents 1 30.000 lbs. minimum t . 
 temporarilr rrdoced on account of vater competition. 
 
 31artin k Robertson and Imperial Rice Millin* Co. t. Canadian Fiei^t 
 Assn., 24 Can. Rt. Cas. 141. 
 
 E. TBiw*»Hchiiig; I>f uiugi. 
 See ako (B) p>. 757: Intercliange at Traffic 
 
 Dekccsace chabges — Staxdabd tariff — Reasoxabuctess. 
 
 Bt the tariff of tolls approred br the Gov«iior-in-«oiuieiI iad0' Ae 
 Railvar Act. 1^^. railwajr companies were aotliorixed to cfaai^ higher 
 Urfls than br a speeial tariff filed onder tlie Railwav Act. 1903, vUefa 
 spcrifically provided for car service or demurrage charges. The latter 
 were also recognired bv the classification rules antkoriaed Inr the Board 
 and in force at the time in question: — Held, that the eompaar not having 
 sou^t to diarge the maximum tolls approved bv tlie Goremor-in-conneil 
 (of the nature of a standard tariff*, must be understood as having ae- 
 eqttcd the goods for carriage at lowest rates conditional upon its right 
 to make a charge for demurrage. Held, that the rate charged was prima 
 foeie reasonable and that no order should be made against tlie railwav 
 companv. 
 
 DntUe T. Grand Trunk Rr. Co., 4 Can. Rv. Cas. 304. 
 
 [A]qMwed in Robinson v. Can. Xmahem Rv. Co., 19 Man. L.R. 306.] 
 
 GoMrtTiiivi: axd xoxcompetitive traffic — IxTERswncnisG — -Jorvr tar- 
 iff — Reftxiil 
 Upon complaints bv shippers and consionees at various points as to 
 tW practice of adding to the tariff rates of the railwav companr carrying 
 to a particular place the switdiing charge of another companv to which 
 tiie traffic is traasfared for carriage and deUverr at another point in or 
 near the same place, and in eases of sudi tansfer absorbing these extra 
 eharges where the traffic wiginates at ctHupetitive points iLe^ competitive 
 traffic), while adding the charges when the point of origin is noncom- 
 petitiue «L e.. noncompetitive traffic) : — Held (1|. that a railwav com- 
 panv's tariffs to and from particular places should, in the absence of indi- 
 cation to the contrary, be read as covering only traffic originating at and 
 for delivery upon its own tracks and connecting sidings within its own 
 terminals, and not as including traffic originating at or for delivery at or 
 near the same places upon the lines of another carrier, (it That a rea- 
 sonable additional rate should be payaUe for switching (i^e., the service 
 far the short carriage on receipt or delivery*. (3« That while the com- 
 pany carrying such traffic for the kms distance should not be obliged to 
 absorb the whole of such switching charge, it may not necessarily be d»- 
 harred from absorbing the whole of sw-h diargcs. provided this does not 
 involve irajust diserimination or preference and in case of co mp e titi ve 
 traffic it may do so. (4) Held, also, that two such companies may be 
 required to treat sod traffic as joint traffic and to establi^ traffic there- 
 iar under the RaUway Act, 190G, s. 333. and the joint rate may be less 
 than the sum of the two rates, and each or one of the emnpanies reqaired 
 
S12 TOLLS A:SD TAIUFFS. 
 
 to accept less than its full rates. It had long been the practice of two 
 railwiiy companies to absorb switching charges in respect of traffic upon 
 tlieir respective lines to and from Toronto received or delivered on the 
 line of tlie other (in respect of nonconip >titivc freight). Without any 
 cliange of tariffs this practice was recently abandoned and the switching 
 charges added to the regular tariff rates. This practice, it was shewn, 
 originated upon the construction of the junior company's lines into 
 Toronto, when it had to receive or deliver its traffic wholly or mainly 
 upon the tracks of the senior company and was practically compelled to 
 bear the switching charges therefor. As the junior company established 
 and enlarged its terminals, and acquired industrial sidings, the senior 
 company followed the same practice. Upon complaint being made of this 
 change and an application for a refund of such charges: — Held, that 
 although the continuance of the |)ractice afl'orded some evidence of its 
 reasonableness it was not conclusive, that an exception could not be made 
 in the case of Toronto, that the two companies were not bound to con- 
 tinue the practice and all claims for refunds should be disallowed. [Lan- 
 ing-Harris Coal & Grain Co. v. A. T. & S. F. R. Co., 12 I.C.C. Rep. 479; 
 Leonard v. CM. & St. Pr. Co., 12 I.C.C. Rep. 492; London Interswitching 
 Case, 6 Can. Ry. Cas. 327, followed.] T'pon the report of the Chief Traf- 
 fic Officer the Board fixed the basis of such joint switching rates and 
 ordered, dividing noncompetitive tralfic into two classes, that (1) for 
 switching performed upon orders of the sliipjier or consignee after the 
 shipment has reached the terminal of the contracting carrier, the addi- 
 tional toll should not be more than 20 cents per ton for any distance not 
 over 4 miles, with a minimum of $3 and a maximum of $8 per car, the 
 whole of such charge being paid by the shipper or consignee; and (2) 
 where the traffic is so consigned by the shipper as to indicate and involve 
 switching service by another company at the time of shipment then the 
 consignee or shipper should only be cliarged with 50 per cent of such 
 charges. An order of the Board defining "Interswitching" and "Contract- 
 ing Carrier" and embodying the above basis was issued. 
 
 Canadian Manufacturers Assn. v. Canadian Freight Assn. (Interswitch- 
 ing Rates Case), 7 Can. Ry. Cas. 302. 
 
 [Followed in McMahon v. Canadian Freight Assn., 16 Can. Ry Cas 
 230; Fonthill Gravel Co. v. Grand Trunk, etc. Ry. Cos., 17 Can. Ry. Cas. 
 248; St. David's Sand Co. v. Grand Trunk and Michigan Central Ry. Cos., 
 17 Can. Ry. Cas. 279; Re General Interswitching Order. 19 Can. Ry. Cas. 
 376; referred to in Laidlaw Lumber Co. v. Grand Trunk Ry. Co., 8 Can, 
 Ry. Cas. 192; distinguished in Anchor Elevator, etc. v. Can. North., etc, 
 Ry. Cos., 9 Can. Ry. Cas. 175; inapplicable in Red Mountain Ry, Co. V. 
 ( olumbia & West. Ry. Co., 9 Can. Ry. Cas. 224.] 
 
 Intkbswitchixg ciiabges — Refixd. 
 
 Charges for interswitching collected prior to 1st September, 1908, 
 although paid under protest, cannot be recovered back. [Canadian Manu- 
 facturers' Assn. v. Canadian Freight Assn., 7 Can. Ry. Cas. 302, referred 
 to. Dominion Concrete Co. v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 514, 
 followed.] 
 
 Laidlaw Lumber Co. v. Grand Trunk Ry. Co., 8 Can. Ry. Cas. 192. 
 
 IXTERSWITCHING CHARGES — TUBOIGH RATE StOPOVEB PBIVILEGE — INTER- 
 MEDIATE AND TERMINAL POINTS — REFUND. 
 Upon a complaint to the Board that excessive interswitching charges 
 were made by the C.P.R, Co. for the transfer of cars from the line of the 
 C.X.R. Co. to the elevators of the complainants. The complaints arose 
 
TOLLS AXD TARIFFS. 813 
 
 with reference to traffic originating upon the lines of the C^^. to be 
 carried bj them at a throngfa rate to Fort William or Port Arthur when 
 delivered in transit to the elevators of the complainants upon the stop- 
 over privil^e of 1 cent per 100 pounds: — ^Held (1>, that the interswUch- 
 ing M^er of Jnlv 8th, 1908, did not apply, that the charge of S->.OA per 
 car made by the C.P.R. for interswitehing was reasonable and tariffs 
 should be filed accordingly. (2) That the CNJt. could not be called upon 
 to absorb any of this charge, the provi^^ioni^ of the inter>wit<-hing order 
 of July 8th. 1908. only applying to terminal and not to intermediate points. 
 (3) That refunds in exees? of the charge of $5.00 already paid could 
 not be directed, the railway companies charging the tolls called for in 
 their tariff. [Canadian Manufacturers* Assn. v. Canadian Freight Assn. 
 (Joint Switching Rates Case). 7 Can. Ry. Cas. 302. distinguished.] 
 
 Anchor Elevator k, Warehousing and Northern Elevator Cos. v. Can. 
 Northern and Can. Pac. Ry. Cos.. 9 Can. Ry. Cas. 175. 
 
 [Followed in Taylor and Canadian Flour Mills Co. v. Canadian Parifie 
 et aL. Ry. Cas., 19* Can. Ry. Cas. 264.] 
 
 IxTE«SWITCniXG CHABGES TnEOlCH rSEIGHT TEAFTIC RCDrcTIOX OF 
 
 TOIXS — HiGHEK GKADE OKE. 
 
 The R3I. Ry. Co. applied to the Board for a variation of its order fixing 
 the tolls to be paid them for interswitcfaing services performed on through 
 traffic of ore from the Le Roi Mines to the 'transfer trade" of the C. k 
 W. Ry. Co. The Board bad on the application of the Columbia and 
 Western fixed at $3.50 and suh»equently reduced to $3.00. oer carload, the 
 tolls for interswitching paid to the Red Mountain. The variation to raise 
 the toils was sought on the ground that higher grade ore should pay a 
 higher toll and a less movement of cars was not so profitable as a larger: 
 — Held (It. that the application should be refused, the conditions not 
 Iiaving changed and the car movement considered when the order was made. 
 |2» That the order must be held to have been properly made and the ted Is 
 to be fair and proper until the contrary was conclusively shown. (3) 
 Held, further that the application could not be entertained because the 
 proprietors of the Le Roi Mines who were interested parties, had not been 
 notified. (4) That the Columbia and Western should absorb any increase 
 in the tolls charged for interswitching. (5) That the general interswitch- 
 ing order of 8th July, 1908. Canadian Manufacturers' Assn. t. Canadian 
 Frei^t Aasn ( Joint Switdd^ Rates Caso, 7 Can. Ry. Cas. 302. does 
 not cover the present case. 
 
 Red Moimtain Ry. Co. v. Columbia t Western Rt. Cc, 9 Can. Rt. Cas. 
 224. 
 
 Thbocgh KATE — Devuekage chabge — Stop-ove« CHAKGE — RE-VSOXABLE 
 KATE. 
 Upon a complaint against a charge of one cent per hundred pounds 
 made by the Canadian Pacific Ry. Co. on grain and grain product> in car- 
 load lots consigned to Cartier "for orders" and a like charge made by the 
 Crand Trunk Ry. Co. on lumber and forest products in carloads from 
 British Columbia consigned to Samia Tunnel "for orders." It appeared 
 that the railway companies had previously made no charge for this stop- 
 over privilege, except a per diem charge of 25 cents a day for the first 
 48 hours' delay and the usual charge for demurrage of $1 per day on cars 
 delayed over 48 hours, and shippers were allowed to ship freight at a 
 through rate to a certain intermediate point and there await further 
 instructions from the consignee as to final point of destination: — Held 
 (1), that the tariff imposing the additional stop-over charge of 1 cent per 
 
814 TOLLS ASD TAKIFFS. 
 
 hundred pounds should be disallowed. (2) That this stop-over privilege 
 was originally taken into consideration as an element in fixing a reason- 
 able per diem rate and that a stop-over charge of 25 cents per diem per 
 car for the first 48 hours, and tlie car service toll of $1 a car for each 
 additional 24 hours be substituted for the charge complained of. 
 
 Montreal Board of Trade and Fullerton Lumber Co. v. Can. Pac. and 
 Grand Trunk Ry. Cos. (Cartier Stop-over Case), 9 Can. Ry. Cas. 227. 
 
 Switching and handling traffic — Competitive plants — Equality. 
 
 Application of the railway company to fix the toll for switching and 
 handling traffic to and from the respondents' spur, two and a half miles 
 north of Hespeler. Tlie applicants relied on a similar order made in the 
 case of the Pilon spur on the Canada Atlantic Ry. near Casselman, where 
 an additional charge of $3.00 per car was allowed, on the increased cost of 
 construction, on the increased cost of operation on account of grade, and 
 that tlie $3.00 per car which the respondents liad paid under protest did 
 not cover cost of operation. The respondents contended that they were 
 not bound by the Pilon order, of which they had no notice, there was a 
 discrimination of $6.00 per car as compared with free service to competi- 
 tive plants between stations on the line from Guelph to Gait: — Held, that 
 under s. 315 (4) of the Railway Act, 1906, it is required that all com- 
 petitive industries should be treated alike. Held, that the railway company 
 were not entitled to make an extra charge for switching services. 
 
 Grand Trunk Ry. Co. v. Christie, Henderson & Co., 9 Can. Ry, Cas. 
 502. 
 
 [Followed in Pilon v. Grand Trunk Ry. Co., 16 Can. Ry. Cas. 433, 
 Hepworth Silica Pressed Brick Co. v. Grand Trunk Ry. Co., 18 Can. Ry. 
 Cas. 9.] 
 
 Interchange switch — Interswitching charges. 
 
 An application by the town of Brampton for an order directing the rail- 
 way companies to provide and construct an "interchange switch" at the 
 intersection of the lines of the said railway companies. The traffic officers 
 of the Board reported that the railway companies had very few joint 
 tariffs, so that if a firm located on the tracks of one company, desired to 
 ship or receive traffic to or from points on the line of the other, it had 
 either to team the traffic to the station of the other or pay the two local 
 rates to the nearest junction point where the interchange could be made, 
 that although this traffic originated at a common point the railway com- 
 panies refused to absorb the tolls cliarged for interswitching competitive 
 traffic, but if the interchange switch was establisl>e<l the traffic in ques- 
 tion would then necessarily become strictly competitive and the provisions 
 of the General Interswitching Order, 7 Can. Ry. Cas. 302, would apply 
 automatically ; the traffic which might be interchanged if the connection 
 was made was estimated at from 150 to 200 cars: — Held (1), that tlie 
 business situation justifies the order for this connection. (2) That it is 
 the duty of railway companies, within reason, to furnish interchange facili- 
 ties to shippers at the point of intersection of their respective lines. 
 
 Brampton v. Grand Trunk and Can. Pac. Ry. Cos. (Brampton Inter- 
 change Case), 10 Can. Ry. Cas. 173. 
 
 Private siding and warehouse — Freight sheds — Toll for switching — 
 
 Refund. 
 
 A railway company after placing a carload of freight at the consignee's 
 
 warehouse desired to inspect its contents, but this was objected to by the 
 
 consignee. The company then returned the car to its freight sheds and 
 
TOLLS AXD TARIFFS. 815 
 
 after iaapeetim witified tke eonsi^we tint tk car vas rtmtw for drfircrjr 
 at lis om traiing track, «r wofuld be pheed at his wmrdMmse wpoa paj- 
 Meat of Oe tofl for svitfUi^ or ""aevr delnvrr.'' The eonsisaee hariag 
 paid the taO •pfXki lor its refoad, eoatadiag that iaspeetioa should take 
 phirr before ddiiwf, that it vas i a c uate aieat for ias]iedti(H to be nade 
 at his prirate warehoose aad the eonpaBT had ao ri^t to use his pn^icrtT 
 for its ovm purposes. The coapaajr snbniitted that iaspertioB of carhiads 
 at private warAoi»es vas recogaiird ia the dassifieatiou aad vas a 
 praefiee foDovcd for the piotcctioB of shimicrs. that it vas also a sari^ 
 of tiaw aad eaafaled the campaaj to auke quick deUrerr: — ^Hdd (1), that 
 BO dtfaife rule could be laid dova as to the poiat at vhich ia^ectioa 
 dould take {dace. <2f That although a nilvar eanpaaj. nader suhs. i 
 of 3. 400 of the Bailvaj AtU 190S, has the r^t to nake ia^ectian, it 
 has BO rif:bt to nfe {M-ivate propoty for that purpose to the detriawnt or 
 i a e ua reaieiKe of the ovacr. (3|) That if a carload oi freight after haTiag 
 heoi pliod at a private vardouse, or oa a private ndiag. is reaored bj a 
 lailvaT coapaar for the purpose of iaspectiau, it should be retnraed vith- 
 out an' toD bei^ rharj^ed to the cousigaee for tte iircaKB t. 
 Gotti^ T. Caa. Pae. Rjr. Co., 10 Cka. iEr. Ck& 149. 
 
 IxnxsviTCHrxG cHJJtCfis — SnsoAL cosDiaonT tammft — Gexxkai. rmz- 
 svnrHTxe oanfia. 
 
 Am application to dirvet the r^poadcvt to absorb the iatersvitchia^ 
 ihiif.1 collected br the- C.X.R. Co. for the transfer <rf cars of pi^ iron 
 vithin its jrard at Fort Arthur to the lines of the rvspandnrt. The appli- 
 cant sufamttcd that under & 2 of the General Intersvitcbii^ Order of :Sth 
 Jnhr. 190S 17 Can. Rt. Ca&. p. 332 1. the entire intersvitchi^ chat^pe 
 should be absorbed. The rtKEpondent alk^ed that the lov toll jtivm bjr 
 the special eHUBodi^ tariff of 14th Oetofan^. 1909. vas on condition that 
 IQw applicant vould ship summer aad vintcr br its lines, that vhca such 
 taxilT vss anangcd nothii^ vas said about the qncstioa of svitehii^. and 
 the respondent vas not avaie that the a]^icant*s plaat vas located on the 
 Une of the CJXJL and ttat such ^^vitchii^ vould be neeesaaxj: — Hdd 
 (1), that the ^peeial conuaoditr tariff vent into foree subject to tibe terms 
 of the Gc«HaI Interfvitchia^ Ordo-. and no silence ou the qfuestion of 
 switching could take the traffic out fraan under its prorisons. (Hi That 
 lAe trafie feD under s& 4 aad 8 of the GeMral Order and the respondent 
 should ahsorii oae^Mlf of the Port Jirthur i nte i s v it ching chaz^ge. 
 
 Atikokaa Iran On. T. Gu. Fte. By. Col, 12 Can. By. Cks. C 
 
 Fkttt cowoihttes — CoMopuriiox or cisloads — Sior-ovix pbitilisxb — 
 TsnarcH kaxss — Joxarr ■octe. 
 
 For a aumlicr of jcars carriers carried a certain fruit eoamoditj to 
 eonecutratkm points for storage, inspection or completi«i ot carload aad 
 leaUpawnt at a rednetion of one-third ci the local tolls, the cmulMnation 
 of these tolls ia and out not to be less than the throng t<ril froas the 
 first shippii^ poiat to final destination plus 2 cents per 100 Iba., and if 
 to the eaneentration point a jont route had to be used, the reduelMm 
 applied fmhr to the portion of the eamingit that the carrier l eee i re d tram 
 the seeond banl or reshipnaent from that point, the Taihrars not hariag^ 
 satisfactorily justified vithdraving the comfdetion of carload eoneesoon 
 and restricting the storage aad iaspection pririkges to carloads, an order 
 should be made dii ed Lli^ that the former arra ngem ent should be re-ealab- 
 lished. 
 
 SiBMoe Fruits and Ontario Fruit Groveraf Aaa. t. Grand Trunk aad 
 Can. Fac By. Coa, 14 Caa. By. Ca& 370. 
 
810 TOLLS AXD TARIFFS. 
 
 Demurragk — Adjustment — Long and short haul. 
 
 The long and short haul clause, s. 315 (5) of the Railway Act, 1906 is 
 superior to any toll in any tariff approved by the Board which conflicts 
 therewith. Where freight tolls demanded by a carrier are proved to be 
 incorrect, the consignee is not properly charged demurrage because he 
 refuses to unload until the freight tolls are adjusted. A toll which vio- 
 lates a provision of the Eailway Act is unlawful even if shewn on a filed 
 tariir. Where, therefore, a toll of 12 cents jn-r 100 lbs. was charged on a 
 carload of logs from Warren, Mich., to Tilbury, Ont., and at the same time 
 there was a special toll of 5^ cents from Utica, Mich., to Tilbury. Warren 
 being an intermediate point, the toll of 12 cents is illegal by the long and 
 short haul clause, s. 315 (5). 
 
 Canadian Handle Mfg. Co. v. Michigan Central Ry. Co., 21 Can. Ry. 
 Cas. 12. 
 
 Cab service rules — Demurrage tolls — Retroactive — Refund — Unjust 
 discrimination. 
 
 Tariffs are not retroactive, and carriers can only collect for the trans- 
 portation of traffic the tolls authorized and in force at the time of ship- 
 ment. No charge for demurrage as sucli is included in any ordinary trans- 
 portation toll, consequently the car service demurrage toll in force at the 
 time of arrival of cars at destination may be charged by the carrier. Under 
 the car service rules, demurrage tolls in force in 1912-13, where the con- 
 signee was in default from December 15, 1912, to March 31, 1913, he Avas 
 subject to the penalty fixed by the filed tariff of demurrage tolls effective 
 December 15, 1912, to March 3], 1913 (higher tlian $1 per day), but de- 
 murrage tolls on cars on and after Marcli 31, 1913, must be reduced to tlie 
 $1 per day toll basis, irrespective of the date transportation commenced 
 or when tlie right to collect demurrage first accrued. 
 
 Security Traffic Bureau v. Canadian Freight Asso., 21 Can. Ry. Cas. 57. 
 
 Demurrage — Switching orders — Traffic — iTurisdktion — Comity of na- 
 tions. 
 
 Contracts made in the United States for the carriage of C.L. Traffic 
 passing from one point to another in the rnited States through Cana- 
 dian territory are luider the control of the Interstate Commerce Commis- 
 sion, and the Board (having regard to international comity) will not make 
 an order as to demurrage charged for delay of such traffic in Canada, when 
 no Canadian interest is involved, where the effect of such order would be 
 to nullify a previous order of the Interstate Commerce Commission on 
 the same subject-matter. 
 
 American Coal & Coke Co. v. Michigan Central Ry. Co., 17 Can. Ry. 
 Cas. 256. 
 
 [Affirmed in 21 Can. Ry. Cas. 15.] 
 
 Operation — Movements — Long and short — Tolls. 
 
 Under the General Interswitching Order No. 4988 (July 4, 1908) (see 
 7 Can. Ry. Cas., p. 332), the carrier that has the right or obligation to 
 perform the interswitching service is entitled to the interswitching toll 
 applicable to any distance within four miles, however short it may be, 
 so long as the toll is not graduated according to distance. 
 
 Brampton Milling Co. v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 337. 
 
 Zones — Redistribution. 
 
 It is a principle of tariff making to break the toll groups at fiag stations 
 
TOLI-S AXD TARIFFS. SIT 
 
 or imiiBpafrtant points as far as practicable. Acting npon tliis priBciple. 
 tke Board rcfiticd an a]^Iicatioa to distrflmte the zones in rapandcats' 
 OtT of HaaiUm fcnnnals, vHkbi vkkh ntn%«ritclung tdlB of 1 ct. and 
 1| eta. per 100 Dw. leiiy e Ui frfy preraOed. 
 
 Steel Co. of Canada t. Toronto, Hamilton t Buffalo Br. Col, 18 Can. Br. 
 Css. 339. 
 
 SrOrOU'EB rCIVILEEXS: VrmTHCMWCK OBDCBS — ^EXTSA TOLL. 
 
 A ^op-over privil^e of li hour* after arrival at Carticr is wliiif ■! 
 time for a trader to deride vliere to send lus frun. vad an extra toll sfconld 
 be pnid for ears remaininv on liand vaitii^ for furtheranee orders after Htf 
 explratioB of that pniod. 
 
 Can. Par. Bj. Co. v. Montreal Con Exrban^ Assn., 19 Can. By. Cas. 
 
 IxTCKSvircHixc — ^MnxiXG ns t*xxstt FsirnLscE. 
 
 Tte tM fw the Billing in tran^ privikge does not indnde the toll 
 for intersTitchinv Beccsseary to take tlie traffic frooi the line of one 
 railvar company to another. [Anchor Elerator Wareboani^ and XiKth- 
 cn Elevator Co«^ v. Can. Xortbem and Can. Pac. By. Cos.. 9 Can. By. Cas. 
 ITS. folfeved.] Complaint a^ain^ the charge made by the respondoit. Pere 
 MarqpHtte BJL Co.. for interswitddn^ from the transfer track betveea 
 the lines of the rrirpomirnts to the complainants' mills in additioa to the 
 charpr for miBiig in traasit privile^ aiade by the respoadeat Canadian 
 Pacific By. Co. 
 
 Taylor and Canadian Floor llills Co. t. Can. Pac and Ptee 3larqiiette 
 By. Cos.. 19 Can. By. Ca&. HM. 
 
 GKStMAL rvnSBSTnCKI3(G OBBia — BflECXA-nTE OBOEB. 
 
 The Goieral Inters«itehing Order is not a mandatory ordo* ivqniring 
 intersvitcfaii^ vberevcr possible, hot nwrdy a rcgiiilative order fixing ttdls 
 to be charged vhen interswitching aerrice is performed. 
 
 Be General Intersvitching Order. 19 Can. By. Cas. 376. 
 
 Caktack eqcauzatiox — ScBsmrnriox fob ixtckswitchixc 
 
 Cartage equalization, and the substitution of cartage for intcrsvitehiBg 
 are no* wholly prohibited by par. 11 of the Geaeral IntnswitAii^ 
 Order (|Xol 4988, July 8. 1908, 7 Can. By. Caa. p. 332>. but are per- 
 miwiihle so loa^ as the carrier complies with its oUigations under a. 
 315 of the Bailvay Act, 1906. to observe equality in its treatment of ship- 
 pers, and also sets out the free service in a clear and definite tariff pub- 
 lished in accordance with the Act. [Canadian llanniactams Asai. v. 
 Canadian Freight Assn.. General Inter»witchi^ Order, 7 Can. By. Cas. 
 302. followed.] 
 
 Be General Interswitching C»rdcr, 19 Can. By. Gas. 376. 
 
 Destcbba^ — IxspBcnos — Dd-at — Caaada gkaix act. 
 
 Carriers are entitled to recover d^urrage tolls feu* detentiaB of equip- 
 ment owii^ to delay in inspection of grain by Govemsmnt officials, and 
 the shipper has the right undn^ the Canada Grain Act, 2 Geo. V. c. 27, 
 s. 71, to recover from the inspector f<H- neglect or refusal to inspect. 
 The latter are li^le to shippers under &. 71 for neglect or refusal to ftr 
 such inspection. 
 
 TtKonto Board of Trade v. Canadian Freight Asaa. (Grain Inspection 
 Casek, 22 Can. By. Cas. 93. 
 
 Can. By. L I>ig.-^2. 
 
818 TOLLS AXD TARIFFS. 
 
 Switching — Special — General — Spurs. 
 
 The Board disallowed a toll of $2 for switching and spotting movements 
 on spurs more than 1,000 feet in length of cars loaded with coal, without 
 expressing any opinion on the general question of fixing a limit for 
 free switching service. 
 
 Premier Coal Co. v. Canadian Freight Assn. (Switching Tolls Case), 22 
 Can. Ry. Cas. 123. 
 
 Agreement — Spur — Cars — Unremunerative — Interswitciung. 
 
 The Board is not bound, nor may the provisions of the Railway Act 
 be defeated, by an agreement between two railway companies respecting 
 tolls. A provision in an agreement made in 1901 between two railway com- 
 panies, whereby the former in consideration of tlie latter undertaking to 
 build a spur from its line to a pulp mill, agreed to build a connection 
 between the two lines and switch loaded and empty cars for the latter 
 company at $1.50 per loaded car, was abrogated by the Board in 1917, 
 the tolls being found unremunerative, and the regular interswitcliing 
 charge of 1 cent per 100 lbs. applied under the General Interswitching 
 Order No. 4988. [Crow's Xest Pass Coal Co. v. Can. Pac. Ry. Co., 8 Can. 
 Ry. Cas. 33; Lsike Superior Paper Co. v. Algoma Central & Hudson Bay 
 Ry. Co., 22 Can. Ry. Cas. 361, followed. Fergus v. Grand Trunk Ry. Co., 
 18 Can. Ry. Cas. 42, distinguished.] 
 
 Can. Pac. Ry. Co. and Spanish River Pulp & Paper Mills v. Algoma 
 Eastern Ry, Co., 22 Can. Ry. Cas. 381. 
 
 Switching — Wharfage. 
 
 Upon complaint made against a charge of one per cent per 100 lbs. with 
 a minimum of $5 per car for switching from boat to rail at Port Arthur, 
 the carrier pointed out that the toll was the usual one for interswitching, 
 except that the minimum was $5 instead of $3, also, that there was a 
 greater service provided because in ordinary switching the carrier that 
 does the work merely takes a loaded car from one point to another, 
 whereas in the case under discussion the carrier must place its empty 
 car, load it, and then switch it to destination. The Board held that 
 the charge was reasonable whether taken by itself or in connection with 
 a wharfage charge of 2i cents per 100 lbs., imposed for other services and 
 facilities. 
 
 Fort William Board of Trade v. Can. Pac. Ry. Co., 19 Can. Ry. Cas. 
 392. 
 
 Cartage — Service of facility — Line haul. 
 
 Under the Railway Act, 1906, cartage is not a railway service or facility, 
 although by the interpretation clause, s. 2 (30), "toll" includes charges 
 for cartage, it is not included in any tariff of tolls approved by the Board 
 for line haul. The question of who should pay cartage is a matter of 
 contract between the consignor and consignee and the Board should 
 not attempt to interfere between them. [Sowcrby v. Great Northern Ry. 
 Co., 60 L.J.Q.B. 467, 65 L.T. 546; Stewart v. Can. Pac. Ry. Co., 11 Can. 
 Ry. Cas. 197, followed.] 
 
 Re Cartage Tolls, 19 Can. Ry. Cas. 389. 
 
 [Reheard and affirmed in 24 Can. Ry. Cas. 80.] 
 
 Delivery — Switching — Destination — Refund. 
 
 A carrier is bound to have a place of delivery for traffic destined to a 
 point to which it has quoted a tariff of tolls free from the imposition of a 
 
TOLLS AND TAREFFS. 819 
 
 svitchii^ toO oa dipper or ca as i g t* , tberefoiv. am order aaj p> per- 
 Bittng the iippiwifcrt to icfmd tke mamtjs it has colfeeted indrr thor 
 svitcUB^ cwdJtJBM at the point ib ^pp^^tiaaL 
 
 Giaia Gromcr B.C. Agimtj r. Caa. Xortbcra Rr. Col, 23 Cm. Rv. Cas. 
 1«. 
 
 IXTSBSTITCHEXC PUBUC IXTEBEST — JlSTinCATlOX ^ToiXS — CoiUapiTT 
 
 AS» Cl-AS* COMPITITIOX USC OF TEXMI5ALS LtSV. TSAFTIC IXTEB- 
 
 CHA3CGX1 
 
 The aaiy jitsti&ratioB tor «-abjeftiB^ tlie facilities of one carrier to the 
 of aBoth«T is the poUir iatei«»t, aad ordtrs as to iaterswitiehiier 
 ■4 be used for the parpctfe of caaUii^ oae carrier to take fivaa 
 aaathrr aet oalr the ose of it^ teraiaak bat liae trafic Where therrfore 
 the shipp e i eqiresalT re^inp« inter^w itchii^ from tcaia tzacka, and the 
 laiernritchiBS carricT b eipupped aad actnallr leadj. ia aceordaace vith 
 tts pahBuhrd tariffs ot tolls to carrr to destiaatioa aad to afford the saaw 
 d e lit e it aad furilities itself. <»- throa^ its c o a a ec ti oas. or br iatcrswiteh- 
 iag. at the saaie to!I as the conpetiag carrier, the iatcrsaitchi^ carrio- 
 ■hoald be allowed to ciiar*c-. ia»tead of aa iata^vitchiii^ toll, the appro- 
 priate toll of its published eJa^TS or conaMMli^ tariff to the poiat of ia- 
 tcr^aage, vhich toil dwold be nade aa additioaal ehai^ agaia^t the 
 shipaeat. proii ded hoverer. that ia <ase of iaifaire to place ears ai&Ia a 
 tcasoaable tiaie. ordiaarT iBter«aitclu^ tolls oaly should »fipfy. 
 
 Be Iatcx«vitchiaig Serrice^ 24 Caa. Br. C&& ^i. 
 
 Bates axd AccojiuaaATias. 
 
 Two qioestioBs aiii»t be foaad ia ^voor of the applieaat before the 
 writ of p t er uga tiTc anadaams caa istMKi FiisL. has the applieaat a ^ecifie 
 le^al right to the perforaaaee of soae datr br the respoadeat; aad, 
 seeoad, vill the a^tlicaat aithoat the bcaefit of the vrit be 1^ vithoat 
 cffeetaal rumdj * Where the applieaat wiafchl a —-"»■—- to eoapd the 
 Graad Traak Br. Co.. porsnaat to & 3 of their Art, of l ac or p ot a tioa. It 
 Vict, c 27 ID.*, to raa a traia coataiaii^ third-dass carriages, aad to 
 povxt the aplicaat to traTd thereia oa parmcat of a fwe aot exeecdii^ 
 oae peaar a mile: — Held, that the applieaat had aa adeqnate reawdy 
 aader the prorisioas of the Railvay Act, 1903 (ss. S. 23. 23, -U. 214. 2»4. 
 bn^ qieriallT rpfcrred tof. aad that rv^wdj could be aiore coaveaicBtiT 
 applied aad execnted under the dirrrtioB aad soperrisioa of the Board 
 thaa br the Court: and the applicatioa was refa&ed. 
 
 Re RobertMB aad Grand Trunk Rr. Col. 6 Caa. Bj. Gas. 490, 14 OXJK. 
 497. 
 
 [See Rofaertsoa r. Graad Truak Rr. Col. « Caa. Rr. Cas. 494.] 
 
 ThIBI»-CIA£5 rA.S$C3CEBS TwO CESr irtXXTI FABE. 
 
 S. 3 of the Act of lacorpotatioa of the Grand Trunk Rr. Co.^ IS Vkt. 
 c 37 (D.) caactiag that the fare or charge for each third-ciaflB psii [i rngji t 
 br anr train oa the said railwar. shaO aot exceed oae pi aaj uuiiacj r 
 per each mile trardcd. aad that at kast oae train hariag ia it third- 
 cla:$<^ carriage^ AaB raa everr day iLran«bont the lei^th of the liae, has 
 aot beea r^ealed either exprv^>Iy or br iaiplication br >nk«equeBt gearral 
 raHnaj kgislatiaa. aad is «till in forev. Cpoa aa applicatioB aader 
 Sw 2C of the Railvar Jkct. 19ii6. the Board made aa order l e qai r i ag the 
 compaar to run ererr dar thioa^hont the length of its line betaeea Moat- 
 real aad Toronto at lea^ one traia hariag ia it third-class carriages, aad 
 
820 TOLLS AXD TARIFFS. 
 
 forbidding it to charge third-class passenger fares at more than two cents 
 per mile, and directing it to amend its special tariffs accordingly. 
 
 Robertson v. Grand Trunk Ry. Co., 6 Can. Ry. Cas. 494. 
 
 [See Ro Robertson and Grand Trunk Ry. Co., 6 Can. Ry. Cas. 400, 14 
 0,L.R. 497; affirmed in 39 Can. S.C.R. 506, 7 Can. Ry. Cas. 267.] 
 
 TlIIBD-CLASS FARES. 
 
 The legislation by the late Province of Canada and the Parliament of 
 Canada since the enactment of s. li, c. 37, 16 Vict. (D), in 1852. has not ex- 
 jiressly or by implication repealed the provisions of that section requiring 
 third-class passenger carriages to be run every day upon the line of the 
 G.T.R. between Toronto and Montreal, on which the fare or cliarge for each 
 tliird-class passenger shall not exceed one penny currency for each mile 
 traveled. 6 Can. Ry. Cas. 494, affirmed. 
 
 Grand Trunk Ry. Co. v. Robertson, 7 Can. Ily. Cas. 2G7, 39 Can. S.C.R. 
 506. 
 
 Special bates — Delegates to coxvkntiox — Standaru passenger tariff 
 — Recovery of amount ovekpaid. 
 
 A railway company agreed with a lodge to give reduced excursion rates, 
 provided a certain number took advantage of them; but these rates were 
 not approved by the Board under the Railway Act, 1906, s. 331. On the 
 return trip the railway company refused to grant the reduced rate and 
 collected full fare. In an action to recover the amount overpaid: — Held 
 (following Lees v. Ottawa & New York Ry. Co., 31 O.R. 567), that not- 
 withstanding the absence of approval of the rate under s. 331 of the 
 Railway Act, the amount overpaid could be recovered. 
 
 Grand Lodge of Knights of Pythias v. Great Northern Hy. Co., 7 Can. 
 Ry. Cas. 263, 6 West. L.K. 425. 
 
 Through bates — Joint tariffs — Continuous roitk — Competitive and 
 noncompetitive points. 
 
 The C.N.R. Co. applied to the Board for an order under s. 317 of the 
 Railway Act, 1906, directing the Grand Trunk and the Canadian Pacific 
 Ry. Cos. to provide facilities for passengers desiring to travel from or 
 through points on lines of the respondent companies, or either of them, to 
 points on the lines of the applicant and its connections and to issue 
 tickets at through rates accordingly, the application covering points in 
 Canada and the L'nited States. The object of the application was to ol)lige 
 the respondent companies to transfer to it at Toronto passengers desiring 
 to reach the Muskoka district which is served by the lines of the three 
 companies. The applicant has no connections east or west of Toronto, 
 but Toronto may be reached from the United States by steamer from the 
 Niagara frontier during the summer months. As to competitive points: 
 — Held ( 1 ) , that it has not been shewn that any "obstruction is offered 
 to the public desirous of using such railways as a continuous line of com- 
 munication" within subs. 4 of s. 317. (2) That the arrangement l)etweeu 
 the respondents has not been shewn to constitute an undue or an unreason- 
 able preference as against the applicant nor to be the public disadvantage. 
 (3) That a change for the pecuniary In-nefit of the applicant is not, of 
 itself, a sufficient reason for granting the application. Without deciding 
 that 8. 317 applies only to noncompetitive points: — Held (1). tliat joint 
 fares and rates should be established on joint traffic from noncompetitive 
 
TOLLS AXD TARLETS. 821 
 
 pmats destned to points eammon to tlie appUeaa^s and re^oBdoits' liaes. 
 (2) Tlat the otbcr Tcqneets in the applkatiaB ahoald be refused. 
 
 On. Nortfaeni Oatario Br. Co. t. Gnad Trunk and Oul Pac Bj. Cos. 
 (Mmdroira Bates Case), 7 Can. Bt. Gas. 3W. 
 
 [Beferred to in Can. Xorthem By. Co. v. Grand Trunk, etc By. Co?.. 
 10 Can. By. Cas. 139: followed in Great North. By. Co. t. Can. Northern 
 By. Co., 11 Can- By. Cas. 4±5; Can. Northern By. Co. t. Grand Trunk By. 
 Co. iSarth Bay Case», 20 Can. By. Ca& M.} 
 
 CoiOCrTATlOS TICKETS — ^UtJCST MSCSIMIXATIOX. 
 
 Upon an application to the Board for am order directing the G.T.B. Co. 
 to issue eonunntation tickets as veil betvcen Toronto and Brampion 
 as betveen the same point and Oakrille. Brampton being within -^^go of a 
 mile of the distance from Toronto to Oakrille, bat on a different line: 
 it was eontaided that the pa aigwgcf fares between the said points eon- 
 statuted an imjnst discrimination or undue pr e f eie n ee in foTottr of Oakviilc 
 and against Brampton, and that the onus lay <m the railway company by 
 s. 77 of the Bailway Act. 1906, to show that it did not exist: — Held <1 1. 
 that under s. S41 the raflway company was within its rights in issuin;; 
 suA reduced fare tickets between Toronto and Oakrille. (f • That tht^ 
 Implication most be refused. Ctakville not having profited at the expense of 
 Brampton. ( 3 j A railway company has the right under the Bailway Act to 
 diatrnuaatioB between points and is only required to prove itself free 
 from unjust discrimination or undue preference. 
 
 Wegenast r. Grand Trunk By. Co. I Brampton Commutation Bate Case), 
 8 Can. By. Cas. 42. 168. 
 
 [Followed in Toronto and Bramptmt t. Grand Trunk, etc. By. Cos., 11 
 Can. By. Cas. 370.] 
 
 OoMinrrATiox tickets. 
 
 The Board under s. 55 of the Bailway Act. 1906. stated for the opinion 
 of the Supmne Court the following question: Is s. 341 of the Act con- 
 trolled, modified or affected by s. 77. or any other section of the Act, and 
 if so to what extent* — Held, Davies. and Anglin. J.J., dissenting, that the 
 provisions of s. 77 of the Act do affect the issue <rf eomauitation tickets 
 under s. 341. 
 
 Toronto and Brampton t. Grand Trunk etc. By. Goe. (Brampton Com- 
 mutation Bate Case. No. 2) 11 Can. By. Cas. 36.J. 
 
 [Followed in Massiah t. Can. Pac. By. Co., 17 Can. By. Cas. S8; Wood 
 T. Can- Pac. By. Co.. IS Can. By. Cas. 365: Re Telegraph Tolls. 20 Can. By. 
 Oss. 1; distinguished in Wat^ t. Can. Pac. By. Co.. 19 Can. By. Cas. 161. 
 
 UxjirST DISCBIMLXATIOX COMMITATION TOLLS Pe«SOXS OB IjOCAUriES 
 
 Fixed kadius. 
 Application by the town of Brampton under ss. 315. 318. 323 of the 
 Bailway Act. 1906. for orders directing the G.T.B. Co. to cease unjust 
 discrimination between Brampton and other localities in commutation tcdls, 
 to provide pn^wr commutation tolls and to disallow the present toD. 
 .\pplieation by the city of Toronto under ss. 77, 315. 323 of the Act for 
 orders directing the G.T.B. and C.P.B. Cos. to cease unjust discrimiaatioB 
 between the city of Toronto and surburban mtmicipalities in l eg aid to 
 eonunntation tolls, and fix ccmmntation tolls within a certain radius of 
 the city. Counsel for the town of Brampton rHied upon the proeeedin«s 
 upon the former application reported in Wegenast v. Grand Trunk By. Co. 
 {Brampton Commutation Bate Case>. S Can. By. Cas. 42. Counsel for 
 the city at Toronto contended that the Board dioald be guided in fixing 
 
822 TOLLS AND TARIFFS. 
 
 the radius to which commutation tolls should api)ly by the distances of 
 surburban points wliich now have them from Toronto; that there is 
 unjust discrimination in certain suburban points further away being 
 granted tliese tolls and others nearer being refused them and in the dis- 
 tance from Montreal to suburban points to which such tolls are now 
 extended. The railway companies contended that the granting of com- 
 mutation tolls was within their discretion, being authorized by the Rail- 
 way Act to discriminate between persons or localities: — Held (1), that 
 aHirmative evidence must be presented to shew unjust discrimination be- 
 tween persons or localitites, although the onus is on the railway com- 
 panies to disprove it. (2) That the application of the town of Brampton 
 must be refused for the reasons given in Wogenast v. Grand Trunl< I'y. 
 Co., 8 Can. Ky. Cas. 42. (3) That unjust discrimination not having been 
 shewn, the application of the city of Toronto must be refused. (4) That 
 no evidence was given of the stations in the vicinity of Montreal to whicli 
 commutation tolls were granted, or of tralhc in the case of eitlier city. 
 [VVegenast v. Grand irunk l>y. Co. (Brampton Commutation Rate Case), 
 8 Can. Ry. Cas. 42, followed.] 
 
 Toronto and Brampton v. (Jrand Tnmk and Can. Pac. Ry. Cos. ( Brampton 
 Commutation Rate Case (No.2) ), 11 Can. Ry, Cas. 370. 
 
 [Followed in Massiah v. Can. Pac. Ry. Co.. 17 Can. Ry. Cas. 88; 
 Wood v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 36o.] 
 
 TlIIKD CLASS lAKES. 
 
 S. 3 of 10 Vict. c. 37 (Province of Canada) is not inconsistent with or 
 iinpliedly repealed by the Dominion Railway Act, 6 Edw. VII. c. 42. 
 Accordingly the appellants are bound to carry tliird-class passengers for 
 tlie fare of a penny per mile, and to provide one train every day with 
 tliird-class carriages between Toronto and Montreal. 
 
 rjrand Trunk Ry. Co, v. Robertson, 9 Can. Ry. Cas. 149, [1009] A.C. 
 325. 
 
 StARDARD passenger and special freight tariffs — DEFIC lEXT CAR SERVICfc' 
 
 — Passenger facilities. 
 Complaint that the respondent corporation charged excessive passenger, 
 freight and express tolls, and did not furnish suflicient car service and 
 passenger facilities. Tlie respondent corporation operate a railway and 
 collieries; own large areas of irrigated lands and towns lots, and is the 
 result of amalgamation of the Alberta Ry. & Coal, Canadian North West 
 Irrigation, St. Mary's River Ry. Alberta Railway & Irrigation Companies. 
 Counsel for the respondent contended that the tolls should not be reduced 
 and greater facilities furnished, because the railway and irrigation works 
 did not pay, and the land and coal areas covered tlie deficits. The Can- 
 adian Pacific Ry. Co. recently acquired a controlling interest in the re- 
 spondent corporation, and will probably operate its railway: — Held (1), 
 that there was no evidence that the railway did not pay. (2) That the 
 respondent corporation be reiiuired to file within a specified time (a) 
 standard passenger tarifls charging three cents per mile and one-sixth loss 
 for round trip tickets, (b) special tarifi's of freight rates between all tlic 
 stations on a basis that shall not exceed those of the Canadian Pacific 
 for the same or similar distances and on the same commodities, (c) a 
 special tariff of class rates not higlier than the same tariJT of the Canadian 
 Pacific Ry. for the same or the nearest e<]uivaUMit distances, and (d) 
 express tariff of tolls as required by s. 3r)0 of the Railway Act, 1900. (3) 
 That the complaints relating to the respondent's express service and charge 
 should stand for disposition until the general express enquiry is dealt 
 
TOLLS AND TAKLFFS. 823 
 
 vh^ (4) Thatt the complaiBi as to deficient ear service aad paascoger 
 ja^-jljtif* Bay be renewed if necessary at the expiration of six months. 
 Carlton Board of Trade t. Alberta Er. t Irrigation Co., 9 Can. ^. 
 Ca-s. 214. 
 
 THBOt'cn TOtUS JotVT TAUFFS CoSTIXT"OCS BarfC IXTEEXATIOSAI. 
 
 DOCXDAKT. 
 
 After tlie judgment of the Board on a previoos application (Can. North- 
 ern Rt. Co. T. Grand Trunk and Can. Pae. Ey. Cos., 7 Can. Rt. Ca*. 389), 
 for the granting of facilities uder s. 317 of the Raflvaj Act. 1906, 
 vbereln- the applicant and respoadort companies vere directed to issue 
 joint tariffs of p ajiuaigu t<dls upon joint traffic intercha^ed bcAveoi said 
 companies fran n<inii>m|wlillii points to points ctHnmon to applicant's 
 and respondents* lines, a further ^^icatkm was made for the filing hy the 
 resptmdcnt eomiMnies of tariffiB from fnmtier paints in the United States to 
 BoacompelitiTe punta on the applicant's line: — Hdd, refusing the ap- 
 pUcatioB (1), that the Board has no jurisdietion over rates charged bnr 
 railnajs from points in the United States up to the International boundarr. 
 {it That the Board has jurisdiction the \aj moment the traffic cro<aes 
 the International boundary, vhether it ia a diriding point on land or 
 vater. 
 
 Can. Northern Ry. Co. v. Grand Trunk and Can. Pac^ By. Ooe. (Mo^oka 
 Rates Case*. lU Can. Ry. Cas. 139. 
 
 [F<dh»ired in Continental, etc. Oil Co. r. Can. Pac, etc., Ry. Co.. 13 Can. 
 Ry. Cas. Ia6; Can. Xorthen Ry. Co. t. Grand Trunk Ry. Co. (Nwth 
 Bay Gaaei. 20 Can. Ry. Ca& »4.]' 
 
 UsJTST DiscmiESATios — TmAxs»orTATiox or passexgebs — ExcrBsiox 
 
 FABE^. 
 
 Application to prt^bit the respondent from charging 25 c«nts for Tisdng 
 railway certificates entitling per^^ms attending meetings to return to their 
 homeB without payment of a return fare and to reduce the number oi 
 persons entitled thereto from 300 to 2o0 or 200. To avoid confusion, errors 
 and more serious faults, the principal railway and steamship companies 
 operating in Canada formed the respondent association with an office in 
 Montreal, maintained in part l^ this 2»-omt diarge: and officials being 
 HNit to the different society meetings for the purpose of ris^jig the cer- 
 tificates of the members. In the tariff filed with the Board the statonent 
 appeared that a fee of 23 cents was charged to defray the expenses of the 
 special agent fis^i^ the certificates — it was shown that there was a yearly 
 deficit in the expenses of the office which was made up by eoatributions 
 froon the railwaj cumpanies. members of the respondent association. The 
 applicant contended that the charge of 23 ecats was not a toll under s. 
 O of c. 61 of 7 & 8 Edw. V1I„ and that members traveling a short distance 
 were imjustly discriminated against in favour of those traveling a longer 
 distance bv being compelled to pay such charge: — Held (li. that anch 
 charge was a toD or charge made in connection with the transportation of 
 |iaiinn^iiu and that it was covered by the tariff filed by the respondent. 
 (3> That the Board has no jurisdiction to compel the respondent to issue 
 excursion rates or fix the number or persons entitled thereto. Commissioner 
 HcLean, diaseating in part: The 25 cmt charge as described in the tariff 
 did not fan within the definition at tolls ine^61,s.9of7ft8 Edw. YIL 
 
 Canad i a n Fraternal Asai. v. Canadian P aswgtii Assn., 13 Can. Ry. 
 Ca& 178. 
 
 [Ffrflowed in Boy t. Canadian Passenger Asagn., 17 Can. Ry. Cas. 3S0.} 
 
824: TOLLS AXD TARIFFS. 
 
 Jurisdiction — Tolls — RroucTiON. 
 
 Under ss. 77, 315, 341 of the Railway Act, 1906, the Board has no juris- 
 diction to compel a railway company to issue reduced tolls to farmers at- 
 tending agiicultural conventions, or to any other class of the community. 
 It is entirely within the discretion of the carriers whether they will do so 
 or not, and for the Board to do so would be unjust discrimination against 
 other classes of the community. [Canadian Fraternal Assn. v. Canadian 
 Passenger Assn., 13 Can. Ky. Cas. 178, followed.] 
 
 Roy V. Canadian Passenger Assn., 17 Can. Ry. Cas. 320. 
 
 Unjust discblminatiox — Traffic policy — Competitiox. 
 
 It is vmjust discrimination for the respondent, from considerations of 
 traffic policy, to extend the advantage of the competitive toll to points 
 Avhere competition does not exist. 
 
 Fredericton Board of Trade v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 433, 
 
 Reversed 17 Can. Ry. Cas. 439, 21 D.L.R. 790. 
 
 Unjust Discrimixatiox — TiiRoroii ticket — Mileage basis — Competition 
 — Intermediate and terminal points. 
 
 Under s. 315 of the Railway Act, 1906, unjust discrimination does not 
 exist where there is actual competition at the initial and terminal points 
 reached by railway lines, and the potential choice of a passenger at an 
 intermediate point whereby he may elect to buy a through ticket for 
 the whole distance between the initial and terminal points, cheaper than 
 one on a mileage basis from such intermediate point to the terminal point, 
 spreads the effect of competitions over the whole journey. The general 
 scope of s. 315 makes it clear that the Board is empowered to recognize 
 the existence of competition and its effects, therefore, when it is satisfied 
 that such competition exists, it may allow a lower toll on the section of 
 railway where the dissimilar circumstances and conditions created by 
 such competitions exist. [Malkin v. Grand Trunk Ry. Co. (Tan Bark 
 Tolls Case), 8 Can. Ry. Cas. 183, at pp. 186, 187; Almonte Knitting Co. v. 
 Can. Pac. and Michigan Central Ry. Cos. (Almonte Knitting Co. Case), 
 3 Can. Ry. Cas. 441, followed; Fredericton Board of Trade v. Can. Pac. Ry. 
 Co., 17 Can. Ry. Cas. 433, reheard and reversed.] 
 
 Fredericton Board of Trade v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 439, 
 21 D.L.R. 790. 
 
 Discretion — Commutation — ^Unjust discrimination. 
 
 Within the limits of the standard passenger toll per mile, railway com- 
 panies have discretion to vary the toll under certain conditions, that dis- 
 cretion may be exercised by the granting of commutation tolls to one 
 point and not to another, such difference in the treatment of different 
 places is not necessarily unjust discrimination, and in the absence of 
 affirmative evidence of actual discrimination, resulting in the positive det- 
 riment to a place to which such tolls are refused, the Board will not in- 
 terfere. [W^enast v. Grand Trunk Ry. Co., 8 Can. Ry. Cas. 42; Toronto 
 and Brampton v. Grand Trunk and Can. Pac. Ry. Cos., 11 Can. Ry. 
 Cas. 370, at pp. 374, 375; British Columbia News Co. v. Express Traffic 
 Assn., 13 Can. Ry. Cas. 178, followed.] 
 
 Massiah v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 88. 
 
 Commutation — Cancellation — Standard passenger toixs. 
 
 For many years the respondent company sold ten trip tickets between 
 Quebec and St. Catherine station for $4 and similar tickets to other sub- 
 urban points. Upon these tickets being cancelled the Board refused an 
 application for their re-establishment. No contract was shewn with any 
 
TOLLS AXD TARIFFS. S±5 
 
 of Oe iffliiBPlii vte hntk ■■■■n cottasics at St. Crt tuim^ tkat if 
 tihcae «CR lalrtBifciJ •■ tke fiae off the nuhrar ther wtmM fonwr *tc« 
 One ten tr^ tickctsL It is ■* vdl-aetfltd friMipIr that a railwaT c«mb- 
 fOf viD Mat he ardmd to cstaUiih ftimafcii tds les tku its alaad- 
 mmA foO vikw it caa he ^e«a that aa aadK or ■a i m t—Mff ^Uuimc 
 or advaatap* has hem gi»»« to aay paitiedar duwiiptiaa af tzaSe or 
 tibit ijil I' i jaiiailiiM ha:» heea ihiaa to cant hitacia Jifct e a t h»- 
 
 Bran T. Q mhtt 4 Lake St. Joha Ry. Ool, IS Claau Rr. €me^ Se. 
 
 SBoar usK cosoKunaBS — Duubluocs. 
 
 TW Bai]w»r Jict doiB aot require caniets to mmet ^ort liae UHB|Mtitiaa 
 if thcT do aot dedre to do ml [Edaoatoa donr Bar Saad Cou t. Giaad 
 Inafc Fteifie Rj. Co, 17 Caa. Ry. Gn. 99, frikiBcd.] 
 
 Re Pkne^er ToO^ 2» Cka. Rt. Ca& S23L 
 
 G. Btoctzic Raflwaifm. 
 Fashdbczb FiiBBS — AFTwarjkL OF TJLBrr KT pjksc ciwnnwaoHaoML 
 
 Ihe Oatario RailaaT aad llaairipal Boaid, lyoa aa afplirati— hy tte 
 Boaid of Tvade aboitraaaed, aade aa order nHM|W.ni^ tihe laicKaatiaaal 
 RaHaaj Co. oaai^ aad o^'natii^ aa decttic raihraj ahag the haiA of 
 the Xiagara lifcr from Qa temrt oa to Chi^paaa, aad iacoipoiated hjr S^ 
 Tict. c 9C (Oat.) to ramfify viOi s. 171 of the Oatark* RaiHraj .Act, 
 ISM^ h|r amptia g a fiw ccat cmA Cue for WMn r iia g paase^gos for aar 
 fsiaace aot eseccdaag three aiies. etc: — HaMr l e t e taiag lAe order uS 
 Ae BoaiC that the coa^aajr tmme withn «h& 3 off &. 171, fraridia^ 
 that -this aKtioB AaU matt apphr to a eoapaaT ahoae tariff far fmMumgLt 
 imns is cdbjcct to the a p|gma l of aaj miMMiiiiiiiMii i ia vhoai are vested 
 aaf laifc or laads oaacd bjr the Ctwn for the aae of the pohlK ot the 
 Ptariacc of Oataiio;"^ aad. s. 171 ki^ thw CTrhadfd, that the Board 
 had ao ponnv. oa aa ap p lic a tia« rarh as aas Bade ia this case, to direct 
 what Cms the coapaajr doald chaz]^. The cCect «C the iacorporatiaa 
 KBlD the CoMpaaics Art of s^ 11 of the Raifrajr Act of Oataxio. R5LO. 
 1M7. c 17i^ aas aot to atragate dane 32 of the agreeHeat with the Coa- 
 ■■■iwi 1 1 for the Qaeea Tictoria Xiagava Falb Furfc, act oat as schedale 
 B ta tte C— paaint Act. Thej Aamli W read ta^dAer ia aach a aaj 
 aa ta ^vc cCect to both: aad nadia^ thea aM s ahj e etia g the eoaofaa^ 
 tariV to Oe appronl of both the i imwiiiiii— i ii aad tte Lieat. Govoaar- 
 for the Board wi fetit a t ed therefor) aas aot iaeoaaitaot with 
 of flbe parties. 
 
 Re Xioigara FaDs Board of l^ade aad lateraatiaaal Rj. Cik, 10 Gu. 
 Ry. Oi& 8, 9D OJLR. 117. 
 
 %ci«MPAr jks io iCTcnAL a&TEs — Uxjrsr wacmDusjarnKs:. 
 
 A cwp a a r o pei atia g. sahfert to Doaaiaioa aathoritr. a txaannj thinfh 
 sevoal aaaicipalitics ad jaccat io tte citr of Moatnal, aad harni^ cna- 
 arrtiiM i aad trafie arraagescats with a povriaeial tnaiwaj ia that ditr. 
 catcrcd iato aa a gWAia t ^der statatonr aathorittjr with erne of the an- 
 airipalities w h mhji. ia coasideratioa «rf special privilcseB coace Jtd la iv- 
 ^ard to the aae of stncts, etc hnwcr rates of paniii a^.i i fures woe ^raat- 
 cd to pcrsoas a m ug the txaararajr thereia, for txaa^ortatiaa to aad from 
 the citj-. thaa to d mi a nw of the ad joiaiag maairipality with which thexv 
 was ao sach ag i uial . (^ the heori^ of a cnaiplaiat, aDcgn^ aajact 
 tieeriBiaatiaa ia leopcrt to fans, the Board iciased to take the agm 
 iato coBsideratioa whca Ic a d e iwl ia eiidcaee to jwtifr the vnati^ 
 the special rates aad oedend the cospaaj, appellaatSv to faniA the 
 
826 TOLLS AXD TARIFFS. 
 
 service to persons using the tranuvaj^ in both municipalities at the same 
 rates of fare. On an appeal, by leave of the Board, in respect of the 
 propriety of overlooking the contract, submitted as a question of law: — 
 Held, Davies and Anglin, JJ., dissenting, that, as the existence of the con- 
 tract was one of the elements bearing upon the decision of the question 
 of substantial similarity in circumstances the Board should have admitted 
 the evidence so tendered in regard to the agreement in consideration of 
 which the special rates of fares had been granted. 
 
 Montreal Park & Island Ry. Co. v. Montreal, 11 Can. Ry. Cas. 254, 43 
 Can. S.C.R. 256. 
 
 [Referred to in Can. Pac, etc. Ry. Cos. v. Regina Board of Trade, 13 
 Can. Ry. Cas. 203, 45 Can. S.C.R. 321.] 
 
 Unuehtaking — ^Value — Operation — Change i^n system — Cost — Increase 
 — Capital charges — Revenue. 
 
 The London & Port Stanley Ry., a steam railway recently operated by 
 electricity in a densely populated part of Ontario, may be taken as shew- 
 ing in the highest degree, tlie economies of electric railway operation. 
 To provide for capital charges on the value of the undertaking, and cost 
 of change in the system of operation, as well as for the large increases 
 in wages of employees and costs of supplies, an increased revenue is 
 necessary in order to operate the line as a commercial venture, without 
 loss to the owners or depreciation in the property. Accordingly the 
 ])assenger toll of 2} cents per mile was increased by 15 per cent, and 
 tlie toll on coal by 15 cents per ton, as in the case of steam railways. 
 The Board will extend similar relief to any otlier electric line whose 
 operation and financial condition require it. [Re Eastern Tolls (East- 
 ern Toll Case ) , 22 Can. Ry. Cas. 4 ; Re Increase in Passenger and Freight 
 Tolls (Increase in Rates Case), 22 Can. Ry. Cas; 49, followed.] 
 
 Re London & Port Stanley Ry. Co., 24 Can. Ry. Cas. 160, 
 
 H. Telegraph Tolls. 
 Filing tariffs — Unjust discrimination — Press despatches. 
 
 Application by the Western Associated Press for reduction of rates 
 charged by the respondents for press despatches, alleging an unjust dis- 
 crimination in favour of the respondents' customers. The rates charged 
 from points in Eastern Canada to respondents' customers were one cent 
 per word for day service and one-half cent per word for night service, 
 subject to a rule that those rates are "special for publication at point 
 addressed in one newspaper only." The rates charged to the applicants for 
 the same service were one and one-half cents for day and three-quarters 
 of a cent for night despatclies: — Held (1). that the rate made for one 
 class, a single newspaper, should not be arbitrarily applied to another 
 class, an association of newspapers; the different rates not being in them- 
 selves unreasonably high. (2) That telegraph companies are brought un. 
 der the jurisdiction of the Board by 7-8 Edw. VII. c. 61, Part 1. and their 
 , tariffs must be approved by it under s. 314 (5) of the Railway Act. 1906. 
 (3) That these tariffs must be so framed as not to work unjust dis- 
 crimination against the applicants, or any other person or association, 
 engaged in like work. (4) That s. 315 would have no application whatever, 
 unless the traffic (press despatches) in question passed over the same 
 portion of the telegraph line from start to finish" (5) That under s. 
 9 of 7-8 Edw. VII. c. 61, the definition of "toll" or "rate" has equal ap- 
 plication to railway, telegraph and telepiione coinj)anies. 
 
 Western Associated Press v. Can. Pac. Ry. and Great Nortiiweslern 
 Telegraph Cos., 9 Can. Ey. Cas. 482. 
 
TOLLS AXD TAKEFFS. S2T 
 
 CxjrsT vnscKonyATios — ^^Tbcss srvcixLS." 
 
 The Board held that an nerease from 25 to 50 omts per 100 vords ia 
 trle^raph tolls for ~pres« speeiaU" in the Maritime ProTinee*, vfaile the 
 former rate of 25 cents was eontinned in Ontario and Qoriwe vas prima 
 brie an nnjnst discriminati<» agaimat the Maritime Provincrs and in the 
 afe«nce of eiidence of special c li c um stanees jostifring the difference in 
 rate ordered the former rate to be restored. 
 
 Canadian Press t. Great Xorthwestem. etc^ Tek^raph Cos^ 14 Can. 
 Kr. Cas- 151. 
 
 USKEMrXEBATlTE BCSIXESS P«E&S SEXTICE. 
 
 The - Board refused to order telegraph companies to provide special 
 tolls for press service similar to tolls provided by another lelejrraph com- 
 pany under special agreement when it appeared that the objecting com- 
 panies had not sought the press business or provided the neeessary fa- 
 cilities for it, and that it vonld be nnremnnerative. 
 
 Canadian Press v. Great Xorthwestem. etc. Telegraph Cos.. 14 Can. 
 Ey. Ca*. 151. 
 
 Reasonable — Service — Simiuuk — Compakisoxs — lyFttmiiAXivE — Xorr cox- 
 
 CXUSIVE. 
 
 In determining what are reasonable tolls for telegraph messages in 
 Canada, the tolls charged for similar services in the United States may 
 be taken into consideration, but these c<Mnparisons are merely informa- 
 tive, not eoDcIusive. [Canadian Oil Cos. v. Grand Trunk etc. Ry. Cosw, 
 12 Can. Ry. Cas. S55: Manitoba Dairymen's Assn. v. Dominion and Cana- 
 dian Northern Express Cos.. 14 Can. Ry. Cas. 142. followed.] 
 
 Re Telegraph Tolls, 20 Can. Ry. Cas.'l. 
 
 Stattiobt <mhjgatiox — UxjrsT oiscBiMtSATiox — Zones — Anoilalt. 
 
 The Great Northwestern Tel^raph Co. is under statutory obligation 
 (45 Vict, c 93, & 14), not to exceed a toll of twenty-five cents for ten 
 words, and one cent for each additional word, on ail messages between 
 points in Ontario. Qnebee. Nova Scotia aand New Brunswick. The con- 
 tinuance, under statutory obligation, of a twoity-five cent tel^rnph toll 
 within Ontario. Quebec. Nova Scotia and New Brunswick, while higher 
 tolls are charged in other zones, is no evidence of undue discrimination or 
 undue preference: nor does the anomaly created, by these uniform low 
 tolls within a very large zone, justify the Board in establishing the same 
 itrfls. or equally large zones, elsewhere. 
 
 Re Telegraph TcJls. 20 Can. Ry. Cas. L 
 
 UxjrST DISCBl MI NATION TeST IS INJIBT TO IXDIVIDrAI. OK IjOCAUTT. 
 
 The ultimate test of discrimination is to be found, not in a difference 
 of tolls, but in the question whether as a result of this diffemee injury 
 is caused to an individual or a locality. [^lichigan Sugar Co. v. Chatham. 
 Wallacebnrg t Lake Erie Ry. Co., il Can. Ry. Cas. S5.S-. Wegenast v. 
 Grand Trunk Ry. Co. (Brampton Conidiutation Rates Case^. S Can. Ry. 
 Cas. 42, affirmed: Toronto and Brampton v. Grand Trunk and Can. Pac. 
 R. Cos. (Brampton Commutation Rates Case, No. 2), 11 Can. Ry. Cas 
 370, followed.] 
 
 Re Tek^raph Tolls, 20 Can. Ry. Cas. 1. 
 
 Distance — Basis — Fbeight — Pole .\ni» wne unes — Mileage — Zones. 
 
 The element of distances is a much less im'«>rtant factor in fixing 
 telegraph tolls than in fixing tolls for freight, though the cost of the 
 
8l>8 tolls AM) TARIFFS. 
 
 pole line mileage and wire line mileage has some influence. In Rail- 
 way transportation, increase of distance means increase of hauling cost, 
 whereas telegraph transmission is practically instantaneous, the increase 
 of plant investment is localized and tlie cost factor does not vary (so far 
 as actual transmission is concerned ) , with the movement of the particu- 
 lar message. Therefore freight tolls generally speaking may properly be 
 made on a distance basis (the zone system being adopted only under 
 special circumstances as a result of competition of markets or water com- 
 petition) ; but it is more convenient and is in fact a matter of practical 
 necessity to adopt a zone system in fixing telegraph tolls. [VVestern On- 
 tario Municipalities v. Grand Trunk, Michigan Central & Pere Marquette 
 Ry. Cos., 18 Can. Ry. Cas. 329. at pp. 332, 334, referred to.] tliough 
 distance is not so directly nor so largely a factor in the cost of telegraph 
 .service as of railway transportation it is by no means entirely negligible; 
 it should be considered in fixing zone areas and tolls should be based on 
 distance to a greater extent than tliey have been in the past. 
 
 Re Telegraph Tolls, 20 Can. Ry. Cas. 1. 
 
 [Followed in Town of the Pas v. G.N.W. Telegiaph Co., 22 Can. Ry. 
 Cas. 402.] 
 
 Through tolls — Rkasonableness of tolls charged. 
 
 Tlve division of a through toll as between companies is primarily an 
 inter-company matter and does not directly concern the public; provided 
 the total toll is reasonable. The value of a telegiaph service, as evidenced 
 by the extent to which it receives public patronage, is not a safe criterion 
 of the reasonableness of the tolls charged for it, though the public may 
 be willing to pay these tolls rather than be deprived of it. In a general 
 enquiry into the tarifl" of tolls of telegraph companies the Board took 
 into consideration, so far as ava,ilable, the value of the plant employed, 
 the cost of construction or reproduction and equipment of the several 
 telegraph lines, the right-of-way and the facilities afforded them by rail- 
 way companies, the proportion of railway business to commercial business 
 over lines owned or operated by railway companies, the relations gen- 
 erally between telegraph companies and railway companies, the dis. 
 tances covered, the volume of business done in the past, the prospects for 
 future business, the probability of increased competition, the cost of 
 operation and the gross and net returns and promulgated an amended 
 table of reasonable maximimi tolls upon the zone s,vstem based on a trans- 
 continental toll of .$1. [British Columbia News Co. v. Express Traffic 
 Assn., 13 Can. Ry. Cas. 176, at p. 177, referred to.] 
 Re Telegraph Tolls, 20 Can. Ry. Cas. 1. 
 [Followed in The Pas v. G.N.W. Telegraph Co., 22 Can. Ry. Cas. 402.] 
 
 General scheme — Development .stage — Isolation — Particular section. 
 
 The Board has recognized that while in general telegraph tolls must be 
 looked at from the standpoint of a general scheme, yet where business is 
 in a development stage the i.->->lation of the telegraph line and the particu- 
 lar facts of the particular section should be considered. [Re Telegraph 
 Tolls, 20 Can. Ry. Cas. 1, at i)p. 18, 21, 31, 58, 50, followed.] 
 
 The Pas v. G.N.W. Telegraph Co., 22 Can. Ry. Cas. 402. 
 
 I. Telephone Tolls. 
 Business toll — Residential toll. 
 
 Complaint that a toll of $45 for the rental of a telephone in a nurses 
 residence, used also as her office, was excessive and not justified by the 
 
TOLLS AXl) TARIFFS. 829 
 
 Tht coapluBaat Bscd tW tekplMiae at ker r eri J ffr for 
 tke pipgnrt «< hrr Iwiiiiwiii or ftvfeKiaa as a avrse aad vas chained 
 tke ki^er or bnnfwM toD latfcer tkaa tke lover or rrriiiwrtwl toU. It 
 ■ffiaiiil tlwt her banKSS use of the tdefkomt MwmgtA aboat oace a 
 ««ck: — Held (1), tfaUt the c<«piaiaaBt vas mm ia the aasp po^itioB as 
 a aukacrOer «ho has a tekphoae at his plaw of b«lsiBe^$t$ and aaother ax 
 h» madtmtt, aad the eoaplaiat Bii$t be disaabscd. *i'» That a tele- 
 fikame ia the icrideBce ci a bosiBeitt or pinhfioail ana vho has ao oAte 
 telephoae is properlj char^ the bastaess tidL inesfcctnc 4rf the aaoont 
 
 Barlj r. BeU TdlepfaoM Col. 11 Caa. Rt. Ca^ 190. 
 
 [FoOomd ia Medim<'hinun-kal Soeiety t. B«^ Triephow Cou IS Caa. 
 Rr. Cas. 2«7: Nevaua t. BeU T«lephoM> Co, 17 Caa. Rv. Cas. ill-l 
 
 LoxG msTx^cK cox^tmox — Oin«»r3s» axo i>hm. sm i«AFric. 
 
 Aa an»lkatioa nader sab& ^of&4ofi48 Edv. VIL e. SI, Railaaj 
 Act aBHadaaeat, directii^ the nspoadnrt to proride k^ dtstaaee am- 
 met&m aith the srstems of the appUcaats: — Held (1 ), that it U the dxtr 
 «f the Board ia ^raati^ the af^licatiaa to protect iaiestcd capital of the 
 (2» That the coanectiaB dcaicd «ho«ld be prwridcd bj the 
 at the expesae of the ap^ieaats for oae jnear. (3) That for 
 traJBc (ijt.. call^ or^iaatiag am hteal liaes* the a^ilicaat shall 
 paj the Rspaadeat fiftea ccats for each haie diataare call ia additiaa to 
 the re^alar kia^ di^taare tariff of the respoadeat, aad that then shafl 
 be ao chaijse apoa the iabooad traffic ([ije., the calls ori^iaatia^ vpoa the 
 laapoadeat's sratc^n. 
 
 Rnnd Tdephoiie (o«. t. Bdl Teiephow Co- It Caa. Bt. Ca;«. 319. 
 
 LscsEASB — PmariM basis fob ftxtxc. 
 
 Vahwhlc as cost of r^faeoaeat but be oader certaia coaditioB^ as a 
 basis of toll reguIatioB, aevertheicse. the cwipsay beiap ia aa adwttcdhr 
 sati^sctarT poiatioa fiaaanaUy. it vonU be aaacvessarj for it. ia order to 
 j a tUft aa iaenase <rf toOs ia specified territoix. to ahev that the excha^?e» 
 iipmliag ia the territory aJfectcd had aot c«atribiited their proper pro- 
 portioa to the j^eaeral l er e a ar* aad Rserrcs of the eoapaay aad failii^ 
 aach proof aj^licatioa for leave to iacraue vas refused. The bordea 
 beii^ oa the party attacking the exi^tia^ toD to make out aa alfirBatiTT 
 case, aa attack opoa the rvasoaaUeaeas per se of ejdsti^ tolls failed vhere 
 it appealed that the retnra earaed oader theas was appareatly about 
 8lSS per ceat oa the book value of the piaat. Prepaxatioa for fatare 
 aeeds aad rmdiaeK to serre are leqnisites of pwper wwaage^wat of a 
 paUie ntility corporstioa. aad adraatafeoos to preseat as wU as to 
 prospertire u^er^ of the ivrricit. and it t» proper to coasider thK^e eleaseats 
 ia ilxiii^ tolls, vbea deteratiaiag vbether the raloe of idle piaat shall 
 be iadoded ia the aaMNmt oa vhich fair retara should be aHovcd. With 
 rt^vard to depiveiatiaa. the pe*«eata|pr or cnaipoate life basis as com- 
 pared aitb the settiajf aside of aa arbitrary aaaaal a^HNiat per iastrn- 
 lacat has both tbe saaAioe of basiaess experieaee aad the approval of 
 rcgulatiTc triboaaK aad either the strai^t liae or the «i»*r™g faad 
 Method Bay be Oscd. A soeatific basi^ for d istiilwui oa of hn^ distaace 
 l e ie a u e as belacca the liacs oriji:iaatia<ff or teraiiBatin;^ tbe nes$a^ aritb- 
 ia a city, aad tike Kaes tra»«inittia^ it beyond, is at present naattaiaable. 
 aad to the eicteat of the aadefiaed mkIs outside the city, it is nafair ia 
 fixii^ toDs to attribute to city terriKwy as reTeane tbe total loa^ distance 
 of the conpaay ori^nated and teraiiaated ia the dty regardless 
 
830 TOLLS \^D TARIFFS. 
 
 of such additional costs. Tliere is no necessary connection between free 
 exchange limits and civic limits; when untrammelled by arrangements 
 already made by the company it is a question of distance and of par- 
 ticular facts; and where the conipan}- liad extended its flat toll applicable 
 within the city, to certain territory outside, it was in the absence of cir- 
 cumstances to justify the discrimination ordered to extend the same toll 
 to all territory within an equal distance from its main exchange. The 
 existence of excess mileage does not in itself constitute unjust discrinii- 
 natiou, but where the conditions of telephone transmission up to the limit 
 of the free area of an exchange are the same, it is unjust discrimination 
 to treat the man living beyond this area and within the exchange territory 
 in a diflerent manner, from the man living inside this area; that is to 
 say, he should have the same free mileage allowed, and excess mileage 
 sliould be charged only on the portion of the subscriber's line located be- 
 yond the boundary of the free mileage zone. [Winnipeg Jobbers' & Ship- 
 pers' Assn. V. Can. Pac, Can. Xortlierii and (Jrand Trunk Pacific Ry. Cos., 
 8 Can. Ry. Cas. 175, at p. 182, followed.] It is not the function of the 
 Board to order that specified apparatus ^ijiould be continued or discontin- 
 ued unless the efticiency of the service is involved. 
 
 Montreal V. Bell Telephone Co., 15 Can. Ry. Cas. 118. 
 
 [Followed in Newman v. Bell Telephone Co., 17 Can. Ry. Cas. 271.] 
 
 AxxEXATioN — Exchange limits — Extra mileage. 
 
 Upon the annexation of the district of North Toronto on 1st January, 
 1913, to the city, application was made to have the tariff of telephone tolls 
 in force witliin the Toronto Exchange limits (i.e., the limits of the city 
 on Ist January, 1911) extended to the annexed territory. Subscribers out- 
 side said limits were charged extra mileage of $5.00 per quarter mile or 
 fraction thereof, computed from a point three-quarters of a mile distant 
 from the nearest exchange. The nearest exchange to North Toronto is 
 the North Exchange in the city, one and three-quarter miles south of the 
 soutlicrn boundary of North Toronto, with which telephones in Nortli 
 Toronto continued to be connected. The circumstances and conditions af- 
 fecting the telephone service in North Toronto were found to be dissimi- 
 lar from those existing within the Toronto Exchange limits, and the ap- 
 plication was refused except as to the computation of extra mileage, which 
 was changed to commence at what was the limits of the city on Ist Jan- 
 uary, 1911, instead of at a point three-quarters of a mile from the North 
 Exchange of the city, following the Montreal Telephone Tolls Case, 15 Can. 
 Ry. Cas. 118. 
 
 Toronto v. Bell Telephone Co. (North Toronto Telephone Tolls Case), 
 15 Can. Ry. Cas. 142. 
 
 [Reheard and affirmed in 17 Can. Ry. Cas. 2(53.] 
 
 Bl KIXKSS TELEPHONE — SPECI.\L TOLL. 
 
 A telephone company is justified in charging a business toll for a 
 telephone used by a doctor at his residence. Tlie Board approved the dis- 
 continuance of a special toll intermediate between the residence and busi- 
 ness toll subject to tlie completion of existing contracts. [Bayly v. Bell 
 Telephone Co., 11 Can. Ry. Cas. 190, followed.] 
 
 Medico-Chirurgical Societv of :Montreal v. Bell Telephone Co., 16 Can. 
 Ry. Cas. 267, 
 
 Service — Circumstances and coxnnTON.s — New exchange — Voltjmk of 
 
 BUSINESS, 
 
 Where it apiJeared that certain changes with regard to the territory 
 
TOLLS AXD TARIFFS. 831 
 
 Ak i^nki i a Ivaxiagp IwlBdiB* am 
 to 7.^00. am ianwue ia Oe wmahtr «f 
 froa iT3 to «S9, the cstaUisiMnt of sfcicial J eliwks hnr tlMr 
 |Min" i>gfi aad «■ ncnoBV n the ■■dbtr df pliciM of h am a riBB , tike Bouii 
 foaai (^Bt tte endcaee was aot a a gmai to wamat it ia coHn^ to aajr 
 other iiiMlaiiiia thaa tloet fnnmOw naclvd tint to he carititledl to the 
 <itv taD, die ciieaBitaiHes aai luwiilawii of the t i tltyhnar hrianw ia 
 the fteniiaKy ia ^pestioa ^boaU be sadh *t to wanaat the cstaUi^hMtat 
 fSsAamge, aad that the trfcyhnap hajjaraw ia the te niuwt ia 
 jet saifitMarthr lai^ to aanraat the Board ia orderii^ 
 tlna to he dbM. {Totoato v. Bed Tdephfloe Co. « Xottib Toraato T e lephe a e 
 ToD One), la Caa. Rr. Cas. I-t*. r^ktmri aad afiiawd.1 
 
 IWnato T. Bcfl Tdephoae Col fXorth Tomato Tilffhnaf tbO Cftse^f, 17 
 Cka. Rjr. C)a& :3». 
 
 l4esG ais^TxsKcc co>\i!jl'im»x — CoMrgysiTwwr. 
 
 The Boavi, aadfcr 7 A: 8 Edv. TIL c. «1. a. 4 {3|. fscd the tm^ of 
 UMpaiialiiM apaa vhich aa iaih|iiaJiai loeal teleyhnae coaipaay shoaU 
 have kavv to cstahGtsh a caaaecfiaa with the iiiiiiaiAal for loa^ 4is- 
 taaee aercice as ioBiawsz Jto aaaaal chai^ far (1| n aa y a irf havii^ 
 ■at. ejceeediap 230 sakcrihns, $1M; (3} eoaqaaies h aiiag escccdia^ 2S» 
 aa hwr ibtis aad aot e« t« dia|g M0 sahsctihers. 4@M: <(3» UBa|aaii r har- 
 ia^ exondiai^ CM sahaofteis. iftSOO: aad a iryriBl chai;^ of tea tvut» each 
 «aj ia a d dili u a to the ha^ dktaacs Amrge of the rerpnaJrat, of vhi4 
 chu;^ tte latter AaO nsceiw 7 ceafa aad the a pf il i c aa t 3 ceats. 
 
 fairpradfat Tcl rp h oa e Cou t. Bd Telpfhnar Co. |T!dephaae CaaawtMM» 
 Ckaelt. 17 Cka. Br. Ca^^ ms. 
 
 [ABnard ia b^-ersoa Tdcphoae Co. t. Bdi Te l e p haae Cou 3S Cu. Rj 
 Ohl IKl 31 DXJB. 49.] 
 
 Base lotx — ^Issobease: — PKOfjurr toll, amkjl — Pjucrr lccb — Excess iole- 
 
 Whtxe it has hem the caitoa to alhwr putr liae cahecxAas. so sit- 
 aated that thej nast paj rsrcs» auka^ tolkv. a tcdartiaB of oae^flh oa 
 the hase talL a dtseaatiaaaace of this ndartioa is aot jastified oa At 
 graaad that a chaa«e of tidk ia the prinux toQ area ordered hr the 
 Board nadnvd oftHulete partr liae serriw aithia that area. Oa order 
 of the Boaid encadia^ the pii—ij tofl area is aot *■ »>{< ay jaiitiBratina 
 far aa iaoeaae ia aulco^ toils to adbsenbers «itaat«d In .nil l&at ana. 
 rHaatnal t. BdD Tdephoae Col «3fdatreal Tdephoae ToDCkael, IS Caa. 
 Rj. Cas. lis, foDoavd.] 
 
 SemimMM t. BeU Teiephoae On, IS Cm. Jfy. Cas. 271. 
 
 [Folloacd ia Xotiv Dmmt des .^toges t. BeO Te l ep h oa t Cbu. 17 Caa. Rr. 
 Cml 277.] 
 
 Brsnnss — Rii:^cntc3CE — ^AaoirxT or r«a». 
 
 A tdephoae ia the hoase of a nli*iom waa ity is properhr chai;^ 
 
 Oe hasiacas toO. [Xeaana t. BdD Tekphoae Oiu 1« Caa. Rt. Ca& 271. 
 foOoacd.) 
 
 Xotre Dsae des.Jkages t. B«il Tekphoae Co., 17 Cka. Er. Cas. 277. 
 Bcsi^mss TosjL — Bt ^-iamn K. 
 
 Cader the prariaoas of a. 313 of the RaifaaT Act, 190S, a der^jmaa i« 
 eatitled to be Aai^ed tihe rei i dea te t«dl aad aot the haaaeH loU far the 
 we of the teieiAaae iastalled ia his tcsidcaee. 
 
 Aeaoches t. BeO Tdephoae Col, IS Caa. Ry. Cs^ 322. 
 
832 TOLLS AND TARIFFS. 
 
 Business and kesidentiai. toll — Amount of user. 
 
 A telephone in the residence of a market gardener and fruit raiser, 
 who has no office telephone, is properly charged the business toll irrespec- 
 live of the amount of user. [Bayly v. Bell Telephone Co., 11 Can. Ry. 
 (.as. 190, followed.] 
 
 Newman v. Bell Telephone Co., 16 Can. Ry. Gas. 271. 
 
 [Followed in Notre Dame des Anges v. Bell Telephone Co., 17 Can. Ry. 
 Cas. 277.] 
 
 Other line — Mutuality — Agreement. 
 
 Under an agreement between telephone systems imposing "another line" 
 charge in addition to the long distance tolls of the Bell Co. "each party 
 to receive its own charge and the party on whose line the call originates 
 shall collect and be responsible for such charge, provided, however, that 
 tlie Bell Co. shall not be obliged to collect and be responsible for the pro- 
 prietor's charge if the proprietor fails to collect a like charge on messages 
 originating on the proprietor's system," the obligation in respect of the 
 "other line" charge is mutual, that is to say, if the Bell Co. is asked 
 to collect the charge of the applicant company in respect of the message 
 originating on the Bell Co's. line the applicant company must similarly 
 collect in respect of a message originating on its own line and this obli- 
 gation attaches to all calls. 
 
 Ernesttown Rural Telephone Co. v. Bell Telephone Co., 18 Can. Ry. 
 Cas. 325. 
 
 [Followed in Joliette Telephone Co. v. Bell Teleplume Co., 21 Can. Ry. 
 Cas. 443.] 
 
 Jurisdiction — Tolls — Connections — Long distance — Local. 
 
 The Board has jurisdiction to order connection and fix tolls for long 
 distance business, but it has none in the case of connection for local busi- 
 ness. [Bell Telephone Co. v. Falkirk Telephone Co., 20 Can. Ry. Cas. 256, 
 followed.] In the case of connecting teleplione companies it is the duty 
 of both companies to collect the full amount for long distance tolls and the 
 company should not absorb its share of the through long distance toll. 
 [Ernesttown Rural Telephone Co. v. Bell Telephone Co., 18 Can. Ry. Cas. 
 325, followed.] 
 
 Joliette Telephone Co. v. Bell Telephone Co., 21 Can. Ry. Cas. 443. 
 
 JuHisDicTioN — Additional tolls — Use of long distance connection — 
 Competition. 
 
 The Board has power under the Railway Act. 1906, and amendments, 
 to authorize an additional toll to the estal)lished tolls of a telephone com- 
 pany for the use of its long distance lines; to order compensation for loss 
 in local exchange business occasioned by giving independent comj)anies 
 long distance connection; to authorize payment of a special toll by com- 
 peting companies obtaining long distance connection, thougli not 8ul)ject- 
 ing noncompeting companies to a like toll. [Independent Telephone Co. v. 
 Bell Telephone Co., 17 Can. Ry. Cas. 266, affirmed.] 
 
 Ingersoll Telephone Co. v. Bell Telephone Co., 22 Can. Ry. Cas. 135, 53 
 Can. S.C.R. 583, 31 D.L.R. 49. 
 
 ^Iaximum tolls — Semi-pubuc telephones — Agreement. 
 
 An agreement between a municipality and a telephone company fixing 
 the maximum tolls to be charged for a residence or business telephone does 
 not prevent the telephone company, subject to the provisions of the Rail- 
 way Act, from filing its tariff of tolls with the Board covering the tolls 
 
TOLLS AXD TARIFFS. S33 
 
 to be chained for other forms of teleph<»e serrice. snrli as semi-public, and 
 girii^ soA serrice to the pablie. 
 
 Mace and Ottawa t. Bell Telephone Co^ 2S Can. By. Gas. 137. 
 
 Eqcauzahox — Base asea — Coix-box (w attended — UxjrsT discmmtxa- 
 
 TIOX. 
 
 It is mjnst discrimination for a public utilitr campanr, whose tolls 
 should be equalized according to the serrices rendered, to diarge double 
 the ton at the attended station for local calls compared with the toll at 
 the coin-box booth, both being public telephones. The Board ordered the 
 res]iaiideBt to equalize its tolls for local calls by fixing a toll for local 
 iiMi «jMgm on a '^two-number basis" from public telephones inside the base 
 .toll area at five cents, and outside thereof at toi coits. 
 
 Lemienx v. Bell Telephone Co.. 2Z Can. Br. Caa. 1-LL 
 
 J. Rebates and B«fimds. 
 See also Brandi Lines. 
 
 Rates ox coxckete blocks — Staxdard tabiits. 
 
 The Dominion Concrete Co. onnplained to the Board that there was an 
 unjust discrimination in favour of bricks as against concrete blocks in 
 the freight rates charged. After these rates had been satisfactorilj ad- 
 justed and those on concrete blocks reduced the companT applied to the 
 Board for a refund of the difference between the higher and the reduced 
 rate:— Held, that under ss. 323, 3£7. 401 of the Railway Act. 1906. the 
 Board has no power to make a retroactive alteration in a tariff and grant 
 rriiates and refunds of tolls which have been chained. 
 
 Donlnion Concrete Co. r. Can. Pac^ Rt. Co.. 6 Can. Rt. Cas. 514. 
 
 [Followed in Laidlaw Lumber Co. t. Grand Trunk Rt. Co., 8 Can. Rt. 
 Cas. 192.] 
 
 Toujs fok cakkiage of gooos — ^Bt-law rrxise bates — Reasoxajblexess. 
 
 An action by plaintiff as liquidator of the Canada Coal t Ry. Co.. to 
 recover an amount claimed from the defendant campany for car rental, 
 etc. Defendant pleaded by way of offset, a claim for repayment of over- 
 charges for the carriage of coal made by the company in liquidatitm. The 
 evidence shewed that the Joggins Ry. Co., predecessors in title of the 
 Canada Co., passed a by-law which was approved by the Govemor-in- 
 council fixing the rate per ton for the carriage of coal over their line, 
 and that the Canada Co. subsequently passed a by-law increasing the rate, 
 and that the defendant company were charged tolls as fixed by the latter 
 by-law, although it had never received a sanction of the Govemor-in-coun- 
 cil and they claimed to be entitled to recover the difference between the 
 two amounts: — Held, that the Inr-law passed by the Joggins Co. relating 
 to the tolls to be taken by that company, was not a regulation affecting 
 the road and running with the property, and was not binding uptm their 
 successors in title. Held. al<«. that the Canada Co. was not liable to 
 refund moneys paid to them for the carriage of goods simply because they 
 had failed to secure the approval of the Govemor-in-council to the by-law 
 fixing the rates. Hdd, nevertheless, that the trial Judge should have al- 
 lowed an amendment applied for on the trial, intoided to raise the ques- 
 tion of the reaaonablniess of the rates taken, and that the appeal must be 
 allowed and a new trial ordered on this ground. 
 
 Rodger t. Mlnndie Coal Co., 8 Can. Ry. Cas. 424, 32 N.S.R. 210. 
 Can. Rt. L. Dig.— ^. 
 
834 TOLLS AND TAIUFFS. 
 
 Sbizubb fob unpaid tolls — Termixation of carrif.r's liex — Demand- 
 Conversion. 
 
 By 8. 345 of the Railway Act, 1906, a railway company may, instead 
 of proceeding by action for the recovery of tolls upon yooils carried, "sei/e 
 the goods for or in respect whereof such tolls arc payal)lc, and may de- 
 tain the same until payment thereof," etc: — Held, that a railway company 
 are not, by tliis enactment, given a lien on property carried, to such an ex- 
 tent and of so general and wide an application as to allow them to re- 
 take goods which have been delivered, and as to which the ordinary carrier's 
 lien has terminated ; the section does nothing more than confirm and esttib- 
 lish the carrier's lien ; there is the right to seize and detain, but the right 
 must be exercised and enforced before there is an absolute and uncon- 
 ditional delivery of the goods to the consignee. Semble. that in this case 
 there was not a sufficient demand for the tolls due to the defendants, on 
 account of which they seized goods which they had previously delivered to 
 the consignee, the demand being for a gross sum, including a sum for tolls. 
 Held, also, that tlie defendants, having converted the goods, were liable 
 for damages; and the measure was the value of the goods. 
 
 Clisdell v. Kingston & Pembroke Ry. Co., 9 Can. Ry. Cas. 73, 1 O.L.R. 
 169. 
 
 Contract — Carrier by w^ater — Compulsory payment. 
 
 An agreement was completed in Canada with an American steamship 
 company to carry oats from a port in Ontario to one in the United States, 
 "at the rate of 2} cents per bushel," and the master of the vessel, as agent 
 of the steamsliij) company, accepted the cargo as measured by weight on 
 the Canadian standard of 34 pounds to the bushel, and so indicated on the 
 bills of lading signed by him at the port, which stated "rate of freight as 
 per agreement": — Held, (Magee, J., dissenting), that the Canadian stand- 
 ard and not the American standard of 32 pounds to the bushel was to be 
 applied to the contract. Where, on delivery by vessel of cargo, freight 
 in excess of the amount due was paid as demanded, without ])rotest 
 Held, that nevertheless such payment was not voluntary, since, if it had 
 not been made, expenses for storage, with possibly demurrage and loss 
 by reason of nondelivery to purchasers, would have been incurred; a>id 
 the excess paid was recoverable by action. A contract by telegram is 
 made at the place where the telegram of acceptance is sent from. 
 
 Melady v. Jenkins Steamship Co., 9 Can. Ry. Cas. 78, 18 O.L.R. 2.)1. 
 
 Wrong-billing — Excessive tolls — Refund. 
 
 On an application to recover damages for the company's alleged neg- 
 ligence in way-billing a skiff to the wrong address, and charging excess 
 tolls for sending it in a roundalxmt course to its proper destination, it 
 being in dispute who was responsible for the erroneous way-billing: — 
 Held, that the Board had no jurisdiction to entertain the complaint; the 
 complainant must he left to her rights in the Courts. Held, that the 
 Board could only investigate the error in computing the express tolls of 
 the company, but as tiie company offers to refund the excess the Board 
 should not interfere. 
 
 Rogers v. Canadian Express Co., 9 Can. Ry. Cas. 480. 
 
 Refund — Mistake — Published Tariffs — Unjust discrimination. 
 
 Application for a refund for an overcharge on a carload shipment of 
 evaporated milk, alleged to be due to a mistake of the respondent's agent. 
 The applicants, under the impression that there was a special commodity 
 
TOLLS AND TARIFFS. 835 
 
 tariff of 9S eeats per hmdred ftmmds oa a ■i»iw buis of 30^000 pooads 
 per tarkwd, paid the b«^t as estiauted bf the re^poadcBt's aseat ob 
 that baai&. Sa ha e q aeatly the applicaats l ee a re d a debit aote for ^$91.67 
 fwnm ihar rtmag m rr* m Ym n ta uv a. wniing vitk what thej had almdr 
 paid, $S80 aecvdi^ to the published special cnwoditr tariff of A* ecat« 
 per hmdred poinds on a aiiiuaiiB Imu^Is of -MJOOO pooads per car: — 
 Held, (1} that the applkation for a refnad amft be ivfasrd. the a^ieaats 
 hariag Bade the initial error of a^isaBui^ that the ■iaiaraai earhwd 
 weight aas 30,000 pooads. vbieh thej cooU haw a^tuded bf fTatiaiag 
 the paUuhed tariffs. |2| Tbat if the ab i p ta t had OMred at the lower 
 toll it auuld hare been aa unlawful rariatioa fraai the poblished tariff. 
 (31 That the graatii^ of a refnad wonM aim be nalawfal aad w^t 
 eoBSfitnte oajast diserimiaation in faroor of the applieaats as against 
 oOer ahi|qperB paji^ apoa the ba«i$ of the poUiahcd tariCk. 
 
 Caaadiaa Condeasia* Co. r. Can. Pt. Rt. Col, li Caa. Rj. Gu. 1. 
 
 OvsmcuxEGK — Mistake — RErrxn. 
 
 A|^icatioa for a refund of an orervhar^ae oa the traasprntatioa bjr 
 water of a shipBcat of carbide from Vancourer to Albemi, B.C., aad for 
 a reiBburseBeat of expense in obtaining redress: — ^Hrid 111. that the 
 Board bad jnrisdictioni under & I of the Act, over the <har)ges for trans- 
 portation br water when such traasport ii uader the eoatnrf of a railway 
 caaapaar. 1(2)1 That the Board could oalr deelare the o«crchar)ge iUc^^L, 
 harii^ ao jurisdictioa to order a refnad ia a case of ■tirtake {Z} Tbat 
 the Board has aot set a prvtedeat b^ md e iia g re iMbuin eawt of expease 
 ia oMaiaiag redress, but that acaas shonJd be adopted i^ raUwar cob- 
 paaies to reetifr plaia and palpable errors kadi^ to overcharges and 
 that if this is aot doae it nutr be aeeesnry for the Board to eoaqiel rail- 
 way coBpaaies to reiBburae those iarurriag expcane ia M»il«r cases. 
 
 Carrie v. Caa. Pac Ry. Co., 13 Can. Ry. Ca&. 31. 
 
 Fbockt tolus — Rebatc AcngrwirvT — ^Bt-uhws to rrx roixs Arrmamm sr 
 IjBxrmxjkXT-GanxsiM-TS-tXHrxaL. 
 
 The rdiate a g re em cat upoa freight charges betweca a railway eo^nay 
 aad a forwarder. Bade ia the ab$eace of a by-law or of a resolutica of 
 the shareholders of the coBpany at a general Beetii^ aad approv-ed by 
 the Lieateaaat-Goi-craor-in-coancil. violates the ^ohibitioB cBbodied ia 
 art. 0607 ei seq. 1LS.Q. 1909. t$ c«n:«e<qncBtly anil aad void aad kares the 
 forwarder without redrewK. 
 
 Kenaedy r. Qnebee k Lake St. Joha Rr. Co_ 14 Caa. Rr. Cas. 133. 39 
 Que. S.C. $44. 
 
 IRerersed ia 21 Que. K.B. .S3. 14 Caa. Ry. Ca«. 1C1: affinaed ia the 
 result. Qnebee 4 Lake St. John Ry. Co. r. Kennedy. 17 Can. Rr. Ca^. 291. 
 15 D±JL 400.] 
 
 PBDTIXCIAI. &&ILWATS FKEIhHT TOLLS REKATE M^MBEME^fT POWEX OF 
 
 mMECTomsi. 
 An agre e ment b et w c rn a prorimrial railway c«Bpany aad a shipper 
 whervbr a rebate is allowed upon freight tolls is not a riolation of -%rt. 
 3172, RJ&Q. 18SS. fArt. 66U7 4< ^f9^. RJS.Q. 1909 «. nnles? it entails an un- 
 due prefe r e n ce or adranta^r. Hence, if entered into for special reaaoiH 
 eg., the obligatioa of the lurwarder to ship all bis prodnrts over rach 
 railway, to himself pay the cost of loading aad unloadi^. etc the agrve- 
 Bcat is presuBed to be lawful, until it i$ shewn to conceal aa iajustice. 
 (2) The directors of the cnniiany. without being «f«(ially authorized there- 
 
Sae TOLLS ASD TARIFFS. 
 
 to by the shareholders, have the power and capacity to enter into the 
 aforesaid agreement. 
 
 Kennedy v. Quebec & Lake St. John Ry. Co., 14 Can. Ry. Cas. 161, 21 
 Que. K.B. 85. 
 
 [Affirmed in the result, Quebec & Lake St. Jolin Ry. Co., 17 Can. Ry. 
 Cas. 291, 15 D.L.R. 400.] 
 
 Pbovincial railways — Frkiuht tolls — Rkbate agreeme.xt — Anti-rebate 
 Act (Que.). 
 
 An agreement between a provincial railway company in Quebec and a 
 shipper, whereby a rebate is allowed upon freiglit tolls, is not necessarily 
 a violation of the Anti-Rebate Act, Que. 1900 (art. 6(507 et seq., R.S.Q. 
 1909), although it stipulates that tbe shipper is to give tlie railway all his 
 shipments, where the rebate is granted in res[)ect of other valuable consid- 
 erations moving from the shipper, such as the assumption of the task of 
 loading and unloading; and a railway company which has received tolls 
 paid to it on the faith of such an agreement made prior to the passing 
 of the Anti-Rebate Act cannot set up the statute in answer to the shipper's 
 action for recovery of rebates where the rebates are not shewn to consti- 
 tute an unjust discrimination, particularly where the tolls paid had not 
 been authorized by any provincial order-in-council. [Kennedy v. Quebec & 
 Lake St. John Ry. Co., 14 Can. Ry. Cas. 161, 21 Que. K.B. 85, affirmed in 
 the result.] 
 
 Quebec & Lake St. John Ry. Co. v. Kennedy, 17 Can. Ry. Cas. 291, 48 
 Can. S.C.R. 520, 15 D.L.R. 400. 
 
 Railway directors — Rebate agreements with shippers. 
 
 The directors of a provincial railway in Quebec, without being specially 
 authorized thereto by the sbareholders, have the power to enter into an 
 agreement with a shipper to grant him rebates upon freight charges in 
 return for valuable consideration rendered on his part, where no inijust 
 discrimination results therefrom. [Kennedy v. Quel)ec & Lake St. John 
 Ry. Co., 14 Can. Ry. Cas. 101, 21 Que. K.B.'So, affirmed in the result.] 
 
 Quebec & I^ke St. John Ry. Co. v. Kennedy, 17 Can. Ry. Cas. 291, 48 
 Can. S.C.R. 520, 15 D.L.R. 400. 
 
 Refund — Jurisdiction — Cancelled tariff. 
 
 The Board has no power to authorize a refund from a toll propcrlv 
 quoted under a tariff duly filed. However, under s. 338 of the Railway 
 Act, a joint tariff cannot be cancelled without a new one being filed in 
 substitution thereof, and a railway who charged a toll under a cancelled 
 joint tariff, Avas authorized to make a refund of the difference between 
 sucli toll and that chargeable imder the substituted tariff. 
 
 Quebec Central Ry. Co. v. Dominion Lime Co., 19 Can. Ry. Cas. 281. 
 
 Carriage of traffic before opening of railavay — Re^^und. 
 
 The carriage of traffic (other than for construction purposes) before 
 the railway has been autliori/ed to be opened therefor, under s. 261 of tlie 
 Railway Act, 1906, is illegal, and no legal toll or tariff applies to such 
 traffic. Refunds apply where the railway company, performing a legal 
 service, charges a greater toll than allowed by appropriate tariff on file 
 
TRAIX SERVICE. 837 
 
 vith tlie Baud. [Baker, JStejmiUs 4 Col t. Oul Psc Bt. Co, 10 Caa. Br. 
 Cu. lal, Mkmvd.] 
 
 Randan t>t aL r. Can. Pae. Br. Co^ 17 Can. Bj. Cas. 233. 
 
 [Followed in Be Edmonton, Dnnv(»an k B.C. Bj. Co„ 19 Can. Br.-CasL 
 395: (^ilrie Flour Milk Col t. Can. Pac Bf. Co, 2a Cu. By- Cas., 47 
 DiJL 226u 
 
 TBACK. 
 See Bails and Boadbed. 
 
 TRAFFIC. 
 
 See Sandaj Tra^; Interribange of Traffic 
 TVaSe agrcemeats, see Carriers of Goods. 
 Op^ui^ road for traflfe, see Bailvav Board. 
 
 Coxsixrcnox ptMoo — Dctt to T«A:xsporr gexexaixt. 
 
 A railway eompanr cannot lavfnllj eany passei^ers orer a road HkMt 
 Ins not been <^ned for traffic by an order 4^ the Board under 9. SCI of 
 Hk Baibrar Act. 1906. except laboarers employed in tlie co mti uc ti u n 
 thoeof. 
 
 Be Grand Tnmk Pacific Br. Co.. 3 DX.B. 819. 
 
 TRAIN. 
 Definition of train, see Signals and Wamia^s. 
 
 TRAIN SERVICE. 
 See Cars; Street Railways. 
 
 PaSSKSGSX SEKTICE — COXTSACT WITH GoT^tXliEVf — BwEJum — Waivix. 
 
 9f an a g r etnie nt the plaintiffs wcxe to lease tbeir line 4^ raHwmj to the 
 dciadants upon the condition, inter alia, that the defendants voold ran 
 a passenger train each way each day between stations A and B. The 
 lease was not executed, but the defendants wmt into possession of and 
 operated the line. The plaintiffs alleged in their biD that at the time of 
 the agreement, as was known to the deft-vdants. they were under contract 
 with the Government of New Brunswick to run a passenger train each way 
 each day between A and B. but the contract was not set out in fnlL In 
 1897 a lease was executed by the plaintiffs and defendants by which it mas 
 prorided that the defendants would run a paascBger train caie way cniA 
 day between A and B. ~and if and wh«neTer it may be necessary to do ao 
 in order to exonerate the [plaintiffs] from its liability to the GoraniMnt 
 of New Brunswick then the [defendants] will run at least <»e train carry- 
 ing passengers each way each day." On July 31. 1S99. the Attomcy-GcB' 
 eral of New Brunswick gave notice to the plaintiffs that their contract 
 with respect to running a passenger train each way each day between A 
 and B must be enf<»ced. but no furtbor proceedings with respect to the 
 matter were taken hjr the Government, tbon^h the defendants continaed to 
 run a paiww mgt i tr^n bnt one way each day. It did not appear whether 
 the notice of the Attorney-General might not have been given at the plain- 
 tiff's irt^aTfr On a motion fiv an interlocutory mandatory injunction in 
 this salt which was broi^it to compel the defendants to run a p a.sse n g i'r 
 train each way each day be ta een A and B.: — Held, that no case was made 
 
838 TllXm SERVICE. 
 
 out for relief by mandatory injuiiption, whicli will only be granted where 
 necessary for the prevention of serious damage, and that the question 
 raised was merely one of pecxuiiary damages between the plaintiff;^ and 
 defendants, for which the defendants were well able to account to the 
 plaintiffs, and which by the lease of 18!)7 the plaintiffs had agreed to 
 accept in event of their liability, if any, to the Government, and that it 
 did not appear that such liability had arisen. 
 
 Tobique \'alley Ry. Co. v. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 2S2, 2 
 N.B. Eq. 195. 
 
 Second-class passen(iki! — Accommodation — Smoking cab. 
 
 A railway passenger holding a second-class ticket is entitled to reason- 
 able accommodation of the kind usually furnished to passengers of that 
 class and cannot be compelled to travel in a smoking Qar. .Jiulgmcnt of 
 Britton, J., aflirmed. Osier, and Garrow, JJ.A., dissenting as to the con- 
 clusions of fact. 
 
 Jones V. Grand Trunk Ry. Co., 4 Can. Ry. Cas. 418, 9 O.L.R. 723. 
 
 Want of air brakes — Passk.ngek train. 
 
 There is no common -law liability for negligence on the part of a carrier 
 by reason of a train not being furnished with air l)rakes as required by the 
 Railway Act, liX)^], s. 211, where the train is not a passenger train, and 
 the accident not occurring through the want of brakes, but by reason of 
 the engine driver's failure to see and act on the conductor's signal. 
 
 Muma V. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 444, 14 O.L.R. 147. 
 
 Dangerous platform. 
 
 Where passengers are impliedly invited by a railway company to make 
 use of a platform as a means of access to the railway cars, it is the duty 
 of the railway company to have the platform in a reasonably safe condi- 
 tion at all points, or parts where such passengers are entitled to be or 
 stand ; consequently where the plaintiff sustained injuries by attempting 
 to board a passenger car of the defendant railway company by falling over 
 the unprotected end of the platform, the night iKMng dark and the plat- 
 form bady lighted, without any carelessness or contributory negligence 
 on her part: — Held, by Stuart, J., that the company were liable for negli- 
 gence in not having the platform in a reasonably safe condition; and sem- 
 ble, that it made no difference whether the platform were well lighted or 
 not. Circumstances to bf considered in estimating damages for personal 
 injuries, etc., discussed. Per Curiam: — While an act or a circumstance 
 under ordinary conditions may not con.stitute negligence, under other cir- 
 cumstances or in other conditions it may amount to negligence, or in other 
 words that there may be negligence in the combination: — Held, therefore, 
 tliat the combination of circumstances in this case, namely, a long night 
 train drawn up at a .short platform inadequately ligiited, so that passen- 
 gers attempting to board the train were not free from danger of accident, 
 constituted actionable negligence on the part of the railway company. 
 Judgment of Stuart, J., atlirmed. 
 
 Swan V. Can. Northern Ry. Co., Can. Ry. Cas. 2(51, 1 Alta. L.R. 427. 
 
 Railway in coihse ok co.nsi ruction. 
 
 Upon an application for an order to compel the railway company to in- 
 stitute and o])erate an adequate daily first-class ])asscnger service on its 
 line between Winnipeg and iMlmonton dining the period of construction: 
 —Held (1), that under s. 2G1 of the Railway Act. 1000, the Board has no 
 jurisdiction to open a railway for the carriage of traflic or other than for 
 
TRAIX SERVICE. 839 
 
 the purpose? off coastruetioB. until af^liratioa kas beea made- tkntpfor bj 
 ikt railwatT ctmnjmuv. {it That sincr the GoTcmiaait by the proTUioBS 
 of the $pmal Art iiKorporatinv the Grand Trmk Pacific Rt. Co. (4 4^ 5 
 £dv. VU- c. 9S), has power to fix br order-in-coaBcQ the date of the com- 
 pletJOB f^ the railvaj, it maj be that the Board cannot open the railwar 
 nntil snA order i> ia w i ed, the special Act overriding: the Railway Act under 
 a. 3 of the latter Art. 
 
 Central Saakatdkewaa Boards of Trade r. Grand Trunk Pacific Rt. Cou 
 10 Can. Ry. Gas. 135. 
 
 [Referred to in HaailtMi t. Toronto^ Haaulton t Buffalo Ry. Co.^ 17 
 Can. Ry. Cas. 353.] 
 
 TUfE TABUES' RbGCXAK STATIOXS ^IjOfSBIAXE HAXIHXJCC OT M ASKET rSOD- 
 
 Gnnplaint by the New Westminaltr aad Sorr^ Boards ot Trade that 
 the respondent railway company started its iiiBinR train at S a. m. in- 
 stead of 7 A. M.. as tanBtrtj, and did not stop at all regular and fiag »ta- 
 tioBa; and other stoppii^ fdafees on the GuidiOB Branch or tiansia' cars 
 ctMtaining aarfcet prodnee from its aain line to the market place immir- 
 diatdy upon the arriral of its train at New Westminster. The respond- 
 ent nmde the changes complained <rf so that its trains ahould arrive at 
 Xev WestminstcT and Vancouvo- on schedule tinK. The a^^ieants con- 
 tended that farmers living on the Port GnichoB Brandi by these dbanges 
 were either c<HnpelIed to stop daily shipments of milk and otho- farm 
 produce to the Xev Westminster mauket or, if able to do so. their ship- 
 ments arrived too late: — Held (li. that upon the evidence and the nqiort 
 of the Chief Operating Officer the re^ondcat should be required to start 
 its trains from Port Guichoa at 7 a. m., stopping &s formerly at all reg- 
 ular and Hag stations and other stepping places between Port Guich<m 
 and doverdale. ( f i That its yard engine should be used to transfer ears 
 containing market produce to the market inuaediately on the arrival of 
 respasdent's trais at New Westminster. 
 
 Xew Westminster and Surrey Board of Trade v. Great Xorthera Bj. Co., 
 11 Can. Ry. Ca& 324. 
 
 DlTTT TO OrCX VESTUCUe BOOKS AT STATIOXS. 
 
 It is the duty of a railway company operating a vcstibuled passenger 
 train to open the vestibule door of the day coach at whi^ 
 nuiy expect to alight at their points ci destination, or to direct the 
 gin as to the mode of exit, so that they may get <^ the train while it is 
 ■'*«»«*™g at the station. \%liere a raihray company negligently omitted to 
 open the TcstHmle door of a day coach on arrival at a pa;£seBger's destina- 
 tion and the passenger, in his t^orts to get off the train, went to the next 
 coach to find an open vestibule from which to alight, and the train was. 
 by that time, pnllii^ away from the station at a speed of three or four 
 auks an hour, there was nothing in the rate at which the train was pro- 
 ceeding to make it manifestly dangerous for the plaintiff to attempt to 
 get off, and such course on his part was not contributory negl^ence. 
 [Knth T. Ottawa k Xew York Ry. Co., 5 OJ*JL 116, 2 Can."Ry. Cas. 26, 
 allied.] Where a railway company n^ligently closes a pnsaenger's na- 
 tural means of getting off a train, without notice to him. such mmpany is 
 guilty of negligence in starting the train b^<H% the pa jaeag er has snf- 
 jicient time to get off by the means iie adopts, provided sodi means be 
 nasoaable. Where the negligence of a railway company, operating a 
 |i«iinnjgif train, forced a passenger into an emergency as to getting off 
 the train at his destination, the fact that the means or method of exit 
 
S40 THAm SERVICE. 
 
 which he, in such emergency, adopts, is not the wisest possible under the 
 circumstances, does not necessarily imply contributory negligence on his 
 part. 
 
 McDougall V. Grand Trunk Ry. Co. (Ont.), 14 Can. Ry. Cas. 316, 8 
 D.L.R. 271. 
 
 Passenger and fkeight earnings. 
 
 In answer to complaints that a railway company during a period of 
 depression has decreased and impaired the passenger service upon one of 
 its local lines forming part of its system, the company submitted figures 
 showing a deficit as a result of the operations of its system as a whole 
 within the province. It appeared, however, that the earnings of the local 
 line in question shewed a decrease in the passenger traffic but there had 
 been an increase in its freight earnings, resulting in net increase, the 
 Board held that the local line should not be blamed for the deficit on the 
 system generally (due to the operation of lines which could hardly be 
 said to have passed beyond the construction stage) that the former pas- 
 senger service should be restored, and it so ordered. 
 
 Re Trenton, Maynooth & Bancroft Line, 19 Can. Ry. Cas. 268. 
 
 Obligation to bun train — Unremunebative earnings — By-law — ^Bonus. 
 
 Where the total freight and passenger earnings on a section of railway 
 are unremunerative, the Board will not order the former train service to 
 be restored, but where, under a by-law of the municipality, in consideration 
 of a bonus of $5,000, the railway company's predecessor in title undertook 
 to run a train from Sydenham to Harrowsmith in the forenoon and one 
 back in the afternoon every week day, and if the company should at any 
 time hereafter "fail to . . . run said train, they can only do so upon 
 repaying said bonus of $5,000 to said municipality," it was lield that this 
 obligation was not met by running a train leaving Sydenham at 1.59 a.m. 
 and arriving at Harrowsmith at 2.09 a.m., and that the bonus must I*" 
 repaid unless the morning service was restored. 
 
 Loughboro v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 276. 
 
 Unremunerative service — Volume of traffic. 
 
 Ordinary local trains should stop at stations where there is a sufficient 
 volume of traffic to call for additional train service, as the operating con- 
 ditions and control of operations are entirely different and distinct from 
 through express trains. It is no answer to such a claim that the existing 
 service is unremunerative. 
 
 La Salle v. Can. Pac. and New York Central Ry. Cos., 20 Can. Ry. Cas. 
 190. 
 
 [Followed in Oakville v. Grand Trunk and Can. Pac. Ry. Cos., 22 Can. 
 Ry. Cas. 433.] 
 
 Earnings — Average 
 
 Where the gross earnings per passenger train mile on a passenger train 
 between Lachute and Montreal are not only much below the average return 
 of the whole system, but are also below the average costs of the system, 
 the Board would not be justified in directing that an additional passenger 
 train should be put into service between the same points. 
 
 Massiah v. Can. Pac. Ry. Co., 18 Can. Ry. Cas. 358. 
 
 [Followed in Crushed Stone etc. v. Grand Trunk Ry. Co., 23 Can. Ry. 
 Cas. 132.] 
 
TRATST SERVICK S41 
 
 TrmxAHJE — Chaxce — ^Prsuc roxTE^nsiscE. 
 
 Pahlie eoanaieMx does not dniind tke nstontiaa of u. foraer tnae- 
 tmbit, mhen tke laflvmy eoBtpuj kas jvsfified the Amagt m it br skewing 
 thaut tke cartjr asQ arrncs at tke pant ia tpigstioi, as usual, carlv in the 
 ■MMaiag; and its tiaias br leaTii^ Ike piHat of departure, later, ia the 
 ■osai^, serve tke taai e a iaKc oi tke trsTeling poUie In- fiwhiiag tken 
 to ■■!» doae eaaaeetia^ from larioos points vitk tke later BMMaaig 
 
 nctoa Board of Trade t. Gul Xortkora Ontario Rf . Go, IS Guu By. 
 Gia.3(X 
 
 UsrjrsT wtstmntrsATto^ — Pebso^s ok uocjusties — PassExcsx EAanxeSu 
 
 Tke Board is not jastificd ia ditectii^ additMaal poiiiwnjiti scrriee vkere 
 Oe po .HM ngu tzaia nile earain^ -would be oae-kaU of the paiiiii mn i train 
 ■lie east of operatiaa in tke abeowe <rf aarjr eridrarr of anaHarity of eoa- 
 ditioBs and of aJbnatiTe evidence that tke diffcraee in paiiiiiw,n6ii tiain 
 serriee has resoltcd tkat persms and localities located oi oae seetaoa of 
 nulwaj bare profited at tke expense of tkoee on anotker wrtion so as to 
 sbev OB jttst dttcrimination. [Toroato and Braaiptaa t. Grand Tnmk and 
 Can. Par. Rj. Cos. (Btaniptan CaauBotatiaa Bates Ckse> (Nol 2|, U Gaa. 
 Bt. Ca& 370, i<rikmcd.] 
 
 Wood T. Caa. PSw. By. Gol, 18 Caa. Bj. Gas. 3^. 
 
 IbLK T«Ainc — Goxcssnox — CxJtrsr msckucesaxio^. 
 
 Tke Board refmed to direct the ]^eviaaslr oosting pa jwgiLi train serr- 
 iee to be reslUxcd vbere a duuge Bade in sack service iqion tke opening: 
 of a new statim at Xortk Toronto relieved tke congation «i traflic' at tke 
 CnaoB Station, but incidentallT involved nnloading Bilk at West Toronto 
 ipi*w^ of Plarkdale, ia tke Ci^ of Toeonto, tke ^ange appearii^ to be in 
 tte poUie interest and to iavoive no unjust diseriasination or nnfaimcas 
 in tke treatment of the partienlar interests prejndicialhr affected. 
 
 Harris t. Caa. Pae. Br. Co. 21 Gu. Br. Gas. 31. 
 
 GOSXECnOXS DlSBCFTIOX — IXCO-^tKAlKXCX. 
 
 Upon an applicatian for better traia serriee. tbe Board declined to sake 
 aa «Mder vrkere it speared tkat tke propotsed ckaa^ woold disrupt tke 
 earisting a c ke dnl e of eonnectians, came hmger waits at aamt ju nrii on poata, 
 heeak con a c cti ons at otkers, and result in increased inconvenience to per- 
 sons asins the line wko were not parties to tke a^lication. 
 
 Uassena S^ii^ r. Grand T^unk Bt. Gol, 21 Gaa. Bp. Ga& 31. 
 
 Milk imsmc — Mixed txjutts. 
 
 Tke Board rrfnsed to order a carrier to give pnnii<n^n traia soriee on 
 a nulk traia vrken it appeared tkat tke milk trafie kad wiginallr been 
 carried on a mixed train, Xo. 81, and bad been transferred to a spedal 
 'milk traia ia vrAa tkat Xo. 81 mi^t ma as a passenger train onlj aad 
 tke pa awnger service be tiicrebj improved. 
 
 Masfcna Spiiags r. Grand Tnmk ^. Co.. 21 Caa. Br. Ga& 34. 
 
 ELscmc KaiLwax — Slbibkxx sexucc. 
 
 Suborfcaa popnlatioasw nsoallr dependent on eiectric raihrars for ia- 
 gres$ aad q;res to and froaa large eities. sboold kave a satiaiaetoij train 
 service. Wkere ao traia stopped at Greenfidd Plark. a station on an eleir- 
 trie raOwar (9.46 wks from Montreal) betvreen Swl6 a.m. and 3^8 pm. 
 
842 TRAIN SERVICE. 
 
 the Boiird ordered anotlier train, passing at 10.15 a.m. for Montreal, to 
 stop at Greenfield Park. 
 
 East Greenfield Park v. Montreal & Southern Counties Rv. Co.. 21 Can. 
 Ry. Cas. 208. 
 
 Steam and electric lines— Business. 
 
 Where respondent steam lines have been paralleled by electric lines, 
 which have taken practically all the business, and ordering the respondent 
 to give an increased service, might secure a better service from the electric 
 line, such an order would not be justified in the public interest, where this 
 could only be done at an unjustifiable cost and entail a continuing loss to 
 the respondent. 
 
 Hamilton v. Grand Trunk Ky. Co. (Burlington Beach Case). 21 Can, 
 Ry. Cas. 211. 
 
 COMl'ETITION — Loss OF BEVENUE — DIVERSION OF TRAFFIC — REASONABLE — ■ 
 
 Circuitous route — .Torxr route. 
 
 It would not be reasonable to compel a carrier to operate its train serv- 
 ice in connection with a competing carrier and thus lose revenue by the 
 diversion of its traffic to its competitor, if it can handle it as well, or rea- 
 sonably as well, over its own lines. When a carrier is not giving a rea- 
 -sonable train service, owing to its route being circuitous and unnecessarily 
 long, the traffic must move on the joint route unless the lines of the single 
 route aff"ord a reasonable and practicable one, especially when the time 
 allowed between trains is insufficient to do business at a distributing centre 
 and return the same day to the point of departure. 
 
 Cole et al. v. Can. Northern Ry. Co., 22 Can. Hy. Cas. 429. 
 
 Agreement — Joint section — Traffic — Through — Passenger and freight 
 — LocAi- — Station — Intermediate — Jurisdiction. 
 By agreement between the Grand Trunk and Canadian Pacific Ry. Cos., 
 May 13, 1896, confirmed by 59 Vict. c. 6 (C), the Canadian Pacific were 
 given a lease for a period of 50 years of the joint use of the Grand Trunk 
 line between Hamilton Junction and the city of Toronto, known as the 
 "Joint Section." By the 16th clause of the agreement, the Canadian Pa- 
 cific agreed to do through passenger and freight business over the joint 
 section, but not local business between either Hamilton or Toronto and sin 
 intermediate station on the joint section. Oakville is a town on the joint 
 section, with a population of over 3,000 inhabitants, about 21 miles west of 
 Toronto. Many of its residents have tlieir offices or places of business in 
 Toronto. For many years the Grand Trunk Ry. Co. gave a fairly satis- 
 factory suburban service between Oakville and Toronto, until in January, 
 1917, the 11.45 p.m. train out of Toronto was discontinued to economize 
 fuel, and the Canadian Pacific voluntarily agreed to stop its 7.15 p.m. 
 train out of Toronto for BiifTalo. In June, 1917, the Grand Trunk re- 
 established its 11.45 p.m. train and discontinued it again in September, 
 1917. The Canadian Pacific being unwilling, the Board ordered its 7.15 
 p.m. train out of Toronto to stop at Oakville. Assistant ( hief Commis- 
 sioner: — The confirmatory Act is not a special Act within the meaning of 
 s. 3 of the Railway Act, but merely validated a private arrangement be- 
 tween two railway companies and does not make any enactment affecting 
 the general public. Commissioner McLean: — The confirmatory Act is a 
 special Act within the meaning of s. 3 of the Railway Act, but there is no 
 t(uch repugnancy between the provisions of the special .Act and the Rail- 
 way Act as to oust the jurisdiction of the Board in matters of train serv- 
 ice. [Grand Trunk and Canadian Pacific Ry. Cos. v. Toronto (Viaduct 
 
TRAIX SERVICE. 84?. 
 
 Caivi, 11 Can. Br. Ca<. 3$. at p.. 39: La Sjlle t. Caa. Par. mmd Xev Yoik 
 Cmtnil Br. Ca»_ 2(» Caa. Br. Ca&. 190. at pp. 192, 193. f<dlo««L] 
 
 tJakrOfe r. Grand Trunk ami Can. Par. By. On. (Haniltoa J<oint Ser- 
 tioo. Oakrille Caaei, 22 Caa. Bj. Ca& 433. 
 
 [Brheard aad rrrerscd ia 2a Can. Bt. Gbsl] 
 
 Bl'N^HAC TIM£ RESTWtATIOX— FrmtHia TCAIXS SCFFlCnCST ACCOMMOOA- 
 
 nox Foa PAs$E\e£ss. 
 
 la ricw of tli« fact tliat it has be» found impossibfe to set hack the 
 mnnia* time of train G.T.B. No. S9. tearing Toronto at 3.45 pan. and that 
 train G.T.B. No. 7 formerir tearing Toronto at 11.4a pjn. ha^ been re- 
 stored, the Board cannot coa^istmtlj order any fnrthcT train sMxire to or 
 froB Oakrillc. as the tiains are muonaUr spaced and safieicnt for the 
 accoaiaodatMMi of pnwayin and the pmioos order to stop the C.P.B. 
 train should be reseiadML [Qakville t. Grand Trank and Can. Par. By. 
 Co.. 22 Can. By. Cas. 433. rrheard and reversed.] 
 
 Can. Par. By. Co. r. OakriUe and Grand Tronk By. Cou 24 Can. By. 
 Ck*. 375. 
 
 AmaqiCAXK — ^Tkaffic keqcxkcmextS' — ^Agkeemext. 
 
 A DoMaioa Art derlarinv a railway eompanys undertaking to be a 
 ■ wk for the general adraataiie of Canada does not disrhar^e its covenant 
 to aaintain a railway scnice suffirient and ad<equate for the requirenMats 
 of traffic nadnr an agrccaent with the Crown as represented by the Pror- 
 iace of Nora Scotia or dis^arge «- affect the rig:hts of the prorince to 
 « afo rre it, the Board has juriadictiaa nader s. 26 A of the Railway Art. 
 1906, to catotain a suauaary ap|djcatioa by the prorince to oifcrce the 
 ■g,n 1 11 nl. or ia the altematire the proriace nay brin^ an artioa in the 
 pnniaeial Coarts. 
 
 Nmth Queas Board of Trade r. Halifax t South Western By. Co., 20 
 Can. By. Cas. 187. 
 
 OnUGATIOX to FTSXISH SESVICE WHICH TSAFFIC DEMAXIIS. 
 
 The obli^tioB of carriers is to fnraish such serrice as the traffic de- 
 ■■adu. but not to treat it as special train noreawat and require a guar- 
 satee of a eertaia anariwr of ears to be handled. 
 
 Oyler ct aL r. DoHinicM Atlantic By. Co- 20 Can. Rj. Cas. 23S. 
 
 Costs or otkbatiox — EAaxiscs — IjMiTen sekticz. 
 
 Where the costs of operation between two points are Back hi^iho- than 
 tke eraiags the Board will limit the train serrice to a amreacat of 
 tralBc aot waorr than once a week. 
 
 New WestKiastcr Board of Trade r. Great Northern By. Co., 23 Can. 
 By. Cas. 58. 
 
 IXCBCASE rs laAFFIC — CTKTAIUIEST — ^^AB«T OX BfSIXES®." 
 
 As traffic inereases. traia serrice must be increased, bat em where 
 business is decreasing;, kach auaiBUia traia serrice as will enable the 
 neceaearr and ordinary hmiaeaB of the country to be carried on shoaM 
 be girm. 
 
 I^hbrid«e Board irf Trade et aL r. Can. Pkc. By. Co. (Alberta Train 
 Serrice Case«. 24 Can. Br. Cas. 34. 
 
 BBVKxrBS — BKsnrxKaATirK — Jratsoicriox — ^Mi-xicipai, Aca ujtKX Ts — Br- 
 
 LAWS. 
 
 L'ado^ the cstahiiahed practice, train aerrice without su^ cash leaun- 
 
S44 TRESPASS. 
 
 erative revenues as will enable the t-airier to continue its operations cannot 
 be ordered by the Board under the Railway Act, but in view of municipal 
 by-laws and agreements confirmed bj' s. 10 of 7 & 8 Edw. VII. c. 117 (D.), 
 the Board can only exercise in the present instance the jurisdiction which 
 enables it to order tliat the by-laws sliould he carried out by furnishing the 
 train service stipulated for therein, even thou<;h such service cannot be 
 furnished except at a loss to the company. [Hamilton Radial Elec. Ry. 
 Co. V. Hamilton et al., 23 Can. Ry. Cas. il4, followed.] 
 
 Burlington Beach Commission v. Hamilton Radial Elec. Ry. Co., 24 
 Can. Ry. Cas. 39. 
 
 Stop — Toli^ — Commutatiox — Eakmngs — Ixconvemexcb — Connections, 
 
 The applicant having accepted on its express train in question the re- 
 spondent's tickets issued at specially low commutation tolls to Oakville, 
 out of which it only receives a fraction of the earnings, and the emergency 
 which justified the previous order having ceased, it is inequitable that the 
 applicant should be forced to continue the train service stop, or that larger 
 numbers of passengers who pay for their transportation at a higher toll 
 should be inconvenienced and their connections jeopardized. 
 
 Can. Pac. Ry. Co. v. Oakville and Grand Trunk Ry. Co., 24 Can. Ry. 
 Cas. 375. 
 
 TRANSFER COMPANIES. 
 See Carriers of Goods; Limitation of Liability. 
 
 TRAUMATIC NEURASTHENIA. 
 Damages for injuries causing nervous disorder, see Damages. 
 
 TRESPASS. 
 
 See Trespassers. 
 
 Trespass to lands in consequence of construction of raliway, see Expro- 
 priation. 
 
 Annotations. 
 
 Damage resulting from the exercise of corporate powers, and the right 
 of recovery. 6 Can. Ry. Cas. 365. 
 
 Measure of special damage, see Damages (F). 
 
 SUBVEYOBS CUTTING TREES ACTION FOB DAMAGES IN RUNNING TRIAL LINE. 
 
 If damages are occasioned to a landowner by the exercise of the powers 
 conferred on a railway company by the Railway Act and there is no negli- 
 gence in the mode of exercising such powers, the person injuriously af- 
 fected is limited to the provisions of the Act for compensation. But if 
 there is negligence in such exercise of statutory powers, or if damages are 
 unnecessarily infiicted, then an action will lie and the complainant is not 
 limited to the remedy given by the arbitration clauses of the Act. The 
 plaintiff's claim was for damages for cutting down trees in his grove 
 through which the defendants were making a survey for a trial line for a 
 proposed branch of their railway, but the possibility of running the trial 
 line through the grove without cutting down the trees by making a rec- 
 tangular detour around it was not raised at the trial and the trial Judge 
 did not pass upon it: — Held, per Richards and .Mathers, JJ., that the 
 plaintiff, who had been nonsuited at the trial, was entitled to a new trial 
 to determine whether the line could not have been run in the manner sug- 
 
TRESPASS. MB 
 
 gesAed. At the aev triaU oidered the Cammtj Court Jnd^ *S>u Bonsaitcd 
 tW fiMimtia mho appealed to Hm Cbnt of AfftmL HdL tkat the eridtacv 
 jjfc gmed tkat it vas mBMesanr to rat don the trees for tte porpoiv of 
 rvBaii^ tlw reqiiired trial liar and tint tlie plaiatiir was entitled to rp- 
 corer in the action, aod that juigmtmt should he eateivd for him for $2jO 
 dif get and coot of both tiials and both appeals.. 
 
 Barrett t. Cub. Par. Rj. Cou 16 Ham. L.£. ^9, ^<. 6 Can. Br. Ga& 
 3% 364. 
 
 KxomxDGe of kel%5oxabl£ chsek of LjLn — Xotick nsscsixik. 
 
 A txrspasser on lands is to be dealt with as hari^ notiee or kaowled^ 
 that the owner of the land will try to use it in anr reasonable and usual 
 war whidk anr be piofilaUe to him, and is aeoowntahie liar daaages ae- 
 connnglT. [10 Halsbuiy's Laws of Ei^:land 317, dlseBssed; Llonr t. Dart- 
 Bonth, 30 XJS.R. ±»S. speuallr referred to.] 
 
 Maraon t. Grui.1 Trunk Pac-. By. Co. (Aha.), 14 Can. Rj. Ou. 36, 1 
 DX.R.830. 
 
 [Followed in LaraUee t. Can. Xorthern Bj. Co, 4 DXJS. 376.] 
 
 set Tenea and Cattle Guards, 
 •enerally. ace Carriers of P aasengei a; Cnaumg Injuries; 
 and Cattle Guards; Street RaiIwaT& 
 
 TRTAT. 
 Pfandiwg and Praetiee. 
 
 III.TIMATE ITEGXIGEHCE. 
 See Xegli ^enic ; Eaplofees; Street Bailwajs; Carriers ot Faascngers. 
 
 VHDEBPASS. 
 flee Fara Ckvsdn^ 
 
 UMJUST DISCROflHATIOS'. 
 
 A» affeetii^ dassifieation of tariffs, see XoUs and TariCa. 
 la s^pKing cars, see Cars. 
 
 VENUK. 
 See Pleadi^ and PraHice. 
 
 VEBSICT. 
 See Pkadin* and Practice. 
 
 VESSTIBUI^E CAXi. 
 See Carriers of 
 
 VIADUCT. 
 See Bridges; Hig^waj Gmaainga. 
 
846 WAREHOUSES, YARDS AND WORKSHOPS. 
 
 VOLENS. 
 
 See Employees: Pleading and Practice. 
 
 WAREHOUSES, YARDS AND WORKSHOPS. 
 
 Municipal bonus on condition of nonremoval of worksiiops, see Railway 
 Subsidy. 
 
 Liability of company as warehouseman, see Baggage. 
 
 Railway yard — Injury to visitor — Licensee — Damages. 
 
 The plaintiff's son Avas given leave by a yardmaster of the defendant's 
 to learn in the railway yard the duties of car checker, with the expectation 
 that if he became competent he would be taken into the employment of the 
 defendants in that capacity, and he was free to devote as much or as little 
 time to acquiring the necessary knowledge as he saw lit. While he was in 
 the railway yard a few days after this permission had been given he was 
 killed by an engine of the defendants which was running through the rail- 
 way yard without the bell being rung though the rules of the defendants 
 required this to be done: — Held, that the deceased was a licensee and not 
 Ji trespasser; that the defendants were bound to exercise reasonable care 
 for his protection ; and that the omission to give the warning was negli- 
 gence Mhich made them liable in damages for his death. The Court being 
 of opinion, however, that damages of .$8,000 allowed by the jury were 
 excessive, ordered that there should be a new trial unless the plaintiff 
 should consent to accept .$l,r)00. 
 
 Collier v. Michigan Central Ry. Co., 27 A.R. (Ont.) 630. 
 
 [Referred to in Renwick v. Gait Street Rv. Co., ]1 O.L.R. 158, 12 O.L.R. 
 35.] 
 
 Statutory oniaGATioi* — Enforcement by municipality — Prohibition 
 against removal of "workshops." 
 
 Upon a motion made by the plaintiffs, pursuant to leave given in the 
 judgment reported in 1 O.L.R. 480, for leave to amend by claiming a rem- 
 edy against the defendants by virtue of the prohibition contained in s. 37 
 of 45 Vict. c. 67 (Ont.), providing that "the workshops now existing at 
 the town of Whitby, on the Whitby section, shall not be removed by the 
 consolidated company (the Midland Ry. Co. of Canada) without the con- 
 sent of the council of the corporation of the said town": — Held, that this 
 section imposed an obligation upon the Midland Ry. Co. for the benefit of 
 the plaintiffs, who were entitled to maintain an action thereon in their 
 own name; and by virtue of 56 Vict. c. 47 (D.), amalgamating the Mid- 
 land Co. with the defendants, and clause 3 of the agreement in the sched- 
 ule to lliat Act, the plaintiffs could maintain an action against the de- 
 fendants for damages for any breach of tlie obligation committed by the 
 Midland Ry. Co. before, or by th<' defendants since, the amalgamation: and 
 the plaintiffs should be allowed to amend and to have judgment for such 
 damages as they were entitled to. Held, also, that "the workshops now 
 existing" meant the buildings used as workshops; and damages could not 
 be assessed on the basis of tlie prohibition being against the shutting down 
 of or reducing the extent of the work carried on in the workshops. 
 
 Whitby V. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 276, 3 O.L.R. 536. 
 
 Duty as to safety and case. 
 
 The obligation resting upon a railway company as the owner or occupier 
 of a building to which the public is invited to commit themselves or their 
 property is to have the structure in a reasonably safe condition so far as 
 
WAREHOUSES, YARDS AXD WORKSHOPS. 847 
 
 ihe e\erci§« of reastwaUe care and ddO can make it so. [Pollock on Tort>. 
 ?^tli rd-, pp. 508, 512, referred to; see ako Underbill on Torts. 9tli ed_ p. 
 171.] 
 
 Gonn T. Cam. Pat Ry. Co., 1 DJ^R. ±3±, 48 CXJ. 153, 2* Man. L.R. 3±. 
 
 StAKLK iUXXnTMODATIOX F0« HOBSES. 
 
 \Vbere a. raihray company i$ tJbe owner or ocenpier of a stable, and 8iq»- 
 plics staliie accommodation and feed fcM- liorses at a fixed sum per day, tot 
 vitlMnt giving tlie excloaire me of any part of tlie stable, it i$ under oUi- 
 Ration to see tbat tbe stable- is in a rea.$onabIy safe conditimi ^o far as tke 
 exociae of reasonable care and skill can make it so and tbis obUf^tkm 
 sohuats notwithstanding tbat tbe bor^es were fed and cared for by their 
 owMT. [Francis t. CockrelL L.R. 5 Q.B. .501: and Stewart t. Cobalt, 19 
 O.L.R. 667, applied; see also annotation to tbis case.] 
 
 Gunn T. Can. Pae. Ry. Co_ 1 J)±JL 232, 48 CivJ. 153, ±2 Man. I*.R. 32. 
 
 LlABtUTT AS WASEHOCSEVJLX — GoODS IX CAS OX StDIXG DbSBCE OP CASE. 
 
 A railway company is in tbe position of a wareiioiisemaB in respect of a 
 carload lot in bond beld on a siding after arrival at destination where tbe 
 iMMing of tbe car is snbjeet to dfmarrage cbarges nntil tbe eoasigBee shall 
 ifoii the contents; tbe onus is upon tbe railway to shew affirmativdly 
 that it had exercised reasonaUe care in an actitm for nondelivery of the 
 goods which were lost from tbe car while under demorrage and bad prob- 
 ably been stolen. 
 
 Great West Supply On. ▼. Grawl Trunk Pacifie Ry. Col, 19 Can. Ry. Cks. 
 347, 23 DiJL 780. * 
 
 WaBKHOCsmsx — CasstBsswm — ^each op coxt«act — ^Thcft. 
 
 Whore it was a part of the eontraetnal obligation between the eonsignee 
 ci a car load of c^-mrat and the railway, in respect of its wardbonsing 
 dnti^ that tbe railway should keep tbe car on tbe bonded spur line, as in 
 fact it was bound under customs regulati<ms to do until tbe customs duties 
 were paid, but the railway, without authority, removed tlw car to another 
 track, from which its contents were stolen, tbe raUway campmnj is liable 
 for the loss- [Lilly v. Doubleday, 7 Q.B.D. 510. followed.] 
 
 Great West Supply Co. v. Grand Trunk Pacifie Ry. Co., 20 DX.R. 774. 
 
 Wakehocsejiex — Bkeach of costkact — ^Loss op ooods — Ofekatiox or 
 
 KATLWAT LlMITATIOX OF ACTIOS. 
 
 Where the railway company, in breach of its emitraet as a wardioaae- 
 maa, used its rolling stock and its employees to put the goods warehoused 
 with it in a place where, under the terms of the contract, thev ^lonld not 
 have been put. tbe resultant loss is not one occaai<med by "tbe operation 
 of the railway^ within s. 242 of the Railway Act, 1906. and is not banvd 
 by faUure to bring suit within one year. [Can. Xorthem Ry. Co. v. Robin- 
 son, [1911] JLC. 745, referred to.]' 
 
 Great West Supply Co. v. Grand Trunk Pacifie Ry. Co., 20 Di.R. 774. 
 
 WATCHBCEN. 
 See Highway Crossing; Railway Crosisings: Crossing Injuries. 
 
 WATER PIPES. 
 See Wires and Poles. 
 
848 WATERS. 
 
 WATERS. 
 
 Power of Dominion Parliament to regulate Provincial foreshore and 
 liarbour, sec Constitutional Law. 
 
 Damage caused by waters, see Nuisance. 
 
 Navigable river — Eights of riparian owners — Obstruction — Damages. 
 
 (1) A riparian owner on a navigable river is entitled to damages against 
 a railway company although no land is taken from him, for the obstruction 
 and interrupted access between his property and the navigable waters of 
 the river, viz., for the injury and diminution in value thereby occasioned 
 to his property. (2) The railway company in the present case, not liaving 
 complied with the provisions of 43 & 44 Vict, ( Que. ) , c. 43, s. 7, subs. 3 & 
 5, the appellant's remedy by action at law was admissible. 12 Q.L.R. 205, 
 reversed. 
 
 Plon v. 1,'^orth Shore Ry. Co., 14 Can. S.C.R. 677. 
 
 [In this case the Privy Council affirmed the judgment of the Supreme 
 Court. See 14 App. Cas. 612. At p. 614, it, is stated that Strong, 
 J. dissented from the judgment of the Court. This is an error: Strong, 
 J. concurred with the majority of the Court in allowing the appeal. 
 See Bigaouette v. North Shore Ry. Co., 17 Can. S.C.R. 363. Applied 
 in Montreal v. iMontreal Brewing Co., 18 Que. K.B. 405; referred to 
 in Audet v. Quebec, 9 Que. S.C. 342; Ontario & Quebec Ry. Co. v. 
 Valli^res, 36 Que. S.C. 358; relied on in Sandon Water Works and Light 
 Co. V. Byron N. White Co., 35 Can. S.C.R. 321; applied in Chaudi6re Ma- 
 chine & Foundry Co. v. Canada Atlantic Ry. Co., 33 Can. S.C.R. 14 ; The 
 Queen v. Barry, 2 Can. Ex. 348; Saunby v. London Water Commissioners 
 [1906] A.C. 110; Vancouver v. Can. Pac.Ry. Co., 23 Can. S.C.R. 17; Water 
 Commissioners of London v. vSaunby, 34 Can. S.C.R. 659; approved in 
 Arthur v. Grand Trunk, 22 A.R. (Ont.) 89; distinguished in Clair v. 
 Temiscouata Rj'. Co., 37 N.B.R. 614; followed in Barter v. Sprague's Falls 
 Mfg. Co., 38 N.S.R. 216; Bigaouette v. North Shore Ry. Co., 17 Can. S.C.R. 
 363; Smith v. Public Parks Board, 15 Man. L.R. 258; referred to in Ban- 
 natyne v. Suburban Rapid Transit Co., 15 Man. L.R. 19; Barter v. Sprague's 
 Falls :Mfg. Co., 38 N.B.R. 216; Can. Pac. Ry. Co. v. Parke, 6 B.C.R. 14, 16; 
 McArthur v. Northern & Pacific, etc., Ry. Co., 17 A.R. (Ont.) 86; Wood 
 V. Atl. & N.W. Ry. Co., 2 Que. Q.B.-355; relied on in The King v. Mc- 
 Artliur, 34 Can. S.C.R. 577; Winnipeg v, Toronto Gen. Trusts, 19 Man. 
 L.R. 427.] 
 
 Diversion of water — Order of railway commission. 
 
 The direction by the Board of work to be done and its approval of plans 
 and of the tariff of rates as provided by the Railway Act, 1906, is a condi- 
 tion precedent to the right to maintain an action confessoire by the owner 
 of liiglier lands against a railway company with a federal charter, owner 
 of the lower lands, to compel it to- receive water diverted thereto and for 
 damages for its refusal to do so. 
 
 Blais V. Grand Trunk Ry. Co., 39 Que. S.C. 230. 
 
 Access to harbour — Constrtction of embankment — Ripabian rights. 
 Application by landowners that in case the respondents' plans were 
 filed for approval, authorizing the respondent to construct a solid embank- 
 ment across the entrance to Market Cove, the rights of the parties located 
 thereon should be protected. The respondent had already by the construc- 
 tion of a solid embankment cut off all access from the harbour of Prince 
 Rupert to all points around the cove or bay: — Held (1), that these appli- 
 cants by taking leases of lots abutting on the cove acquired access to the 
 
WATERS. 849 
 
 water and riparian rights. (2) That the statement of the re^MHideDt when 
 withdrawing the location plans that the embankment was constructed on 
 their own lands was untrue, but even if the respondents had title to the 
 said lands it had no right to constroet its railway without approval of the 
 route map bv the Minister and the location plans bv the Board. (3) That 
 the applicants* lands and business had been damaged and injured bj the 
 wrongful and illegal acts of the resptmdent. (i) That there was no neees- 
 sitT for the embankment and no reascm existing why a means of access in- 
 ward and outward should not hare been left. (5i That the respondent 
 must leave an opening in the embankment at least 30 feet wide. 
 
 Rochester r. Grand Trunk Pac Bv. Co., 13 Can. Ry. Cas. 421. 
 
 [Afiiraed in 15 Can. Ry. Cas. 306.] 
 
 ROCTE A3n» LOCATION PtAXS OssntlCTlOX TO SATIGATIOX. 
 
 Where a railway company, in the professed exercise of its powo^ as a 
 raQway company and without the approval of the route by the Minister 
 aad of the location plans and works by the Board, has oonstrueted a solid 
 filling aerosB navigable waters, the Board, under the provisions of s& 230, 
 233. coupled with subss. (hi and (i) <rf s. 30 of the Railway Act, 1906. has 
 jurisdiction to order the demolition of the works so constructed. [Roch- 
 ester V. Grand Trunk Pacific Ry. Co., 13 C^n. Ry. Cas. 421, affirmed.] 
 
 Grand Trunk Pacific Ry. Co. V. Rochester, 15 Can. Rv. Cas. 306, 4S Can. 
 S.C-R. 238. 
 
 SCBFACE WATEK — DeFIXCTISG AXD DIVKSTtXC IXjrUT TO ADJOIXTSG LAXIJS. 
 
 A defendant railway company is liable for damage caused to the plain- 
 tiff, an adjoining owner, by deflecting and diverting the course of the sur- 
 face water so as to make it flow over the plaintiff's land, and for bringing 
 water on the defendant's own lands and then discharging it on to the 
 plaintiff's land, to his injury; and the statutory powers, in furtherance of 
 the objects for which the defendant company was incorporated, do not. by 
 implicatitm or otherwise, empower it so to carry on its operations as to 
 cause damage to adjoining owners by deflecting or diverting such surface 
 waters to the injury of adjoining lands. [Rylands v. Fletcher. L-R. 3 HX. 
 330, applied.] 
 
 Xiles V. Grand Tnmk Ry. Co., 15 Can. Ry. Cas. 73, 9 D.LJL 379. 
 
 WaTBB ASn WATEB SIGHTS DaMS. 
 
 Statutory powers of expropriation in the incorporating statute of a 
 power company are to be strictly construed so as not, by mere general 
 words authorizing expropriation for the danuning of a river, to deprive the 
 public of rights theretofore existing unless a clear l^slative intention to 
 abrogate public rights is disclosed in the statute. (Per Ritchie, J.) 
 
 MUler T. HaUfax Powct Co. (X.S.), 13 DX.R. 844. 
 
 XATtTKAI. WATB»COl'«SE — DEFECTnTE CCXVEBT — OBSTBCCTIOX OF FtOW. 
 
 The construction of a culvert by a power company in a negligent man- 
 ner, whereby it interferes with the flow of a natural watercourse, giving 
 rise to the flooding of the abutting lands, will render the company liable 
 for damages occasioned thereby. [L'E^perance v. Great Western Ry. Co., 
 14 U.C.Q.B. 173, distinguisheiL] 
 
 MeCrimm<» v. British Columbia Elec Ry. Co., 19 Can. Ify. Caa. 329, 24 
 DX.R. 368. 
 
 XOXTTOAL STSEAM ObSTKCCTIOX OF 5AVIGATIOS ^RaILWAT BBJCD6K. 
 
 The Fraser River in its upper waters, although nontidal, is a 
 V Can. Ry. K Dig.--54. 
 
850 WEEDS. 
 
 and public highway, which the public has the right to freely use the water- 
 courses thereof for the purpose of navigation, an obstruction of which by 
 the erection of a bridge by a railway company will render the latter liable 
 in damages. 
 
 ^ort George Lumber Co. v. Grand Trunk Pacific Ry. Co., 24 D.L.R. 627. 
 
 WEEDS. 
 
 As causing fires on railway, see Fires. 
 
 Weeds causing injury to employee working on track. 
 
 For a railway company to permit grass and weeds to grow on a side 
 track is not such negligence as will make it liable to compensate an em- 
 ployee who is injured in consequence of such growth while on the side 
 track in the course of his employment. G B.C.R. 561, affirmed. 
 
 Wood V. Can. Pac. Ry. Co., 30 Can. S.C.R. 110. 
 
 [Applied in Hill v. Granby Consol. Mines, 12 B.C.R. 125; Jamieson v. 
 Harris, 35 Can. S.C.R. 639; referred to in Canada Woollen Mills v. Trap- 
 lin. 35 Can. S.C.R. 448; Center Star v. Rossland Miners' Union, 11 B.C.R. 
 205; Warmington v. Palmer, 8 B.C.R. 349.] 
 
 Liability of railways to remove combustible material from right-of- 
 way. 
 
 It is the duty of a railway, under c. 91 of R.S.N.S. 1900, to clear from 
 off the sides of its roadway, where it passes through woods, all combustible 
 material, such as grass, ferns, bushes, or other material, by careful burning 
 at a safe time, or otherwise, whenever they become combustible. 
 
 Schwartz v. Halifax & S.W. Ry. Co., 14 Can. Ry. Cas. 85, 4 D,L.R. 601. 
 
 [Affirmed in 11 D.L.R. 790, 47 Can. S.C.R. 590.] 
 
 WHARVES AND FERRIES. 
 
 WHABF insufficiently lighted — No GATE OR CHAIN FeRRY, 
 
 Grand Trunk Ry. Co. v. Boulanger, 1886. See Can. S.C.R. Dig. 1893, p. 
 733. 
 
 Ferryman — Liability as common carrier. 
 
 To render a person liable as a common carrier he must exercise the busi- 
 ness of carrying as a public employment, and must undertake to carry 
 goods for all persons indiscriminately, and hold himself out, either ex- 
 ])ressly or by course of conduct, as ready to engage in the transportation of 
 goods for hire as a business, not merely as a casual occupation. There- 
 fore, the owner of a boat propelled by oars and rowed for hire across a 
 river from time to time, by employees usually occupied in other ways, does 
 not fall within the definition of a common carrier. 
 
 Roussel V. Aumais, 18 Que. S.C. 474. 
 
 Negligent management of ferry — Injury to passenger. 
 
 Where a ferry was under the control and management of a municipal 
 corporation and accepted, in payment of the fare of a traveler M, a coupon 
 attached to his railway ticket, the corporation was held liable for injuries 
 to M. caused by the negligence of the officers of the boat where, finding 
 the mooring chain down on approaching the wharf, and thinking it safe to 
 land, M. fell through the space between the wharf and the boat, which was 
 
WIRES AND POLES. 851 
 
 ■at tkoi mounL M. «as hdd wit gniltr of eoatribafcoiy mtf^Ug mB t . 25 
 XjaS. 31& affimed. 
 
 l^tvr, cte^ of St. Jolui t. HeDimmld^ 14 Cu. S.C.R. 1. 
 
 [Obsemd in Collins t. St. JohiK. 38 N3.R. 92; refared to m Omm t. 
 Wmup^, 19 Man. I^R. ±13.] 
 
 WIRELESS TELEGRAPHY. 
 See Tekgrm^s. 
 
 Ain> POLE& 
 
 A. ^juifsa Vf wnits mm 
 
 S. BrectaoB; Ciiilafci 
 See Stnet Railvajs. 
 
 F uf M ' * <rf eoBipasies to oeet poles oa kiglivajrs. see Corporate Powos; 
 Street SailvaTs. 
 
 Piaetiee of Board as to Senior and Jamw Sole. 22 Can. Rj. Ca& 1S& 
 Wires crossed Inr railvaj-^ i£ Can. Rr. Gas. US. 
 fm-wmiim^ of vires and pole>^ ±4 D.l1r. 669. 
 
 A. Injuxies ty ^Rzcs aad Poles. 
 AoaBEsrr kesclxexg fbom cost.&ct of elbctuc wibeSc 
 
 A stieet railvaj coaapanT is not gniHy oi ne«:lignMe in failii^ to take 
 steps to prereat tdepboae vires erossiii^ above its troDeT vire from tarn 
 ing ia eaataet, if bsoken. vitk tke trolley wire, nnless it be at soow place 
 kwnni to be esperiallj dangaons. Per Jfvlbne, CJ. Sadi ^ihire hy a 
 street railvar companT is evideBee of negligeBee to go to the jorr. TW 
 escape oi electricitr from vires su^eaded over streets tbroogh aaj otber 
 vires that mar come in contaet vi1& thea most be prerented so far as it 
 can be done br tbe esereise of reasonaUe care and dil^ence, and tbe defend- 
 ants ^HNild bare put np guards snch as were shevn to be in use t«tj gen- 
 eraDr in the United States and England to prerait sneb accidents. Per 
 MatkCTs, J. The Court being equally divided the appeal from the Coontjr 
 Coart jury's verdict in favour of the plaintiff vas dismissed. 
 
 Hinmaa t. Winnipeg Elec. Street Ry. Co.. 16 Man. L.R. 16. 
 
 POVEB COMFAXT RaILVAT LAXDS PtBUC HKHWATS l51IK3CXnT. 
 
 A povcr company applied under sl 194 of the Railway Act. 1903. to 
 place wires for the transmissiou <rf electric power of high voltage across 
 the lands of a railway company: — Held, that the power company should 
 i mt ^ ^ m it m the railway company from all loss or injury arising from the 
 piaciaig of tmdk wires across its right-of-way or the trananission of dee- 
 trie power thereon, except where the loss was directly attributable to the 
 ■t^Ugtaw. of the railway company, its agents or eaqrioyees. Upoa it sab- 
 sequ e a t l T ai^ieariiig, however, that the tnasausooa lines were constraeted 
 aloa^ l^hways under provincial authority in reelect of which highways 
 tke railway company had merely the right of cnnsing. Held, that the 
 pu»€i company stands in the position of a telrphoae eiMBpany. as in Na- 
 tkaal Td^hoae Co. v. Baker (l)g93 > . 2 Ch. 186. and the tramway ecnpany 
 lefcrred to in Eastern k South African Telegraph Co. v. Capetown Tram- 
 way Cos. [1902:. -^C. 381. HehL also, that the power companr should be 
 required to be respaaeiUe only for injuries arising from the BegUgeaee of 
 
852 WIRES AND POLES. 
 
 itself or its servants or agents, and in respect thereof the railway company 
 needs no protection bj' an order of the Board. 
 
 Can. Pac. and Can Northern Ry. Cos. v. Kaministiquia Power Co., 6 
 (an. Ptv. Cas, 160. 
 
 JllKCTltlC RAILWAY — PoWER LIXE — PrOTECTIOX. 
 
 A company incorporated by provincial statute to construct an electric 
 railway through the town of Essex built its line on a street under the 
 authority of a municipal by-law which provided that its poles and wires 
 should not interfere with any then existing poles or wires of any other 
 person or company. The railway works were, by Dominion Act, declared 
 to be for the general advantage of Canada. The company's wires and poles 
 when constructed interfered with existing telegraph, telephone and electric 
 light poles and wires (the latter belonging to one N. erected under an 
 agreement with the town ) and created danger by the escape of electrical 
 current therefrom: — Hold, that if the railway and power line were con- 
 structed before the passing of the Dominion Act no order was necessary 
 to authorize their subsequent maintenance and use, but if not, then leave 
 was required under ss. 235, 2.'>7. Qu:er.e, if part only of the work was 
 done before the Act and part afterward. Assuming that the work was 
 hiwfully done before the passing of the Dominion Act the lioard has power 
 under s. 238 to require tlie company to execute such works or take such 
 measures as appeared to tlie Board best adapted to remove or diminish the 
 danger. An agreement having been made with the approval of the Board 
 for the use by N. of the company's poles for carrying his wires, order ac- 
 cordingly, the company being ordered to pay the costs of the proceedings. 
 
 Xaylor v. Windsor, Ej^sex & l^ake Shore Rapid Ry. Co., 8 Can. Ry. Cas. 
 14. 
 
 COXSTBTJCTION OF TELEPHONE LINES — INJURY TO TREES — RIGHTS OF PRIVATE 
 PROPERTY OWNERS. 
 
 That the ownership of lands adjoining a highway extends ad mediiun 
 f'llura vise is a presumption of law only which may be rebutted, but the 
 presumption will arise though the lands are described in a conveyance as 
 bounded by or on the highway. Gwynne, J., contra. In construing an 
 Act of Parliament, the title may be referred to in order to ascertain the 
 intention of the Legislature. The Act of the Xova Scotia Legislature, 50 
 Vict. c. 23, vesting the title to highways and the lands over which the same 
 pass in the Crown for a public highway, does not apply to the city of Hali- 
 fax. The charter of the Xova Scotia Telephone Co. authorizing the con- 
 struction and working of lines of telephone along the sides of, and across 
 and under, any public highway or street of the city of Halifax, provided 
 that in working such lines the company should not cut down nor mutilate 
 any trees: — Held, Taschereau and Gwynne, JJ., dissenting, that the owner 
 of private property in the city could maintain an action for damages against 
 tbe company for injuring ornamental shade trees on the street in front of 
 his property while constructing or working the telephone line, there being 
 nothing in the evidence to rebut the presumption of ownership ad medium, 
 or to shew that the street had been laid out under a statute of the province 
 or dedicated to the public before the passing of any expropriation Act. 23 
 N.S.R. 509, reversed. 
 
 O'Connor v. Nova Scotia Telephone Co., 22 Can. S.C.R. 276. 
 [Referred to in Washington v. G.T. Ry. Co., 28 Can. S.C.R. 188.] 
 
 'Jelephone pole — Injury to person biding on highway. 
 
 A person driving on a public highway who sustains injury to his person 
 
WIRES AND POLES. 853 
 
 and propertT bv the carriage coining in contact vith a telephone pole law- 
 fullr placed there, cannot maintain an action for damages if it dearly ap- 
 pears that his horses wore nmning awar, and that their violoit^ uncon- 
 trollable speed was the proximate cause of the accident. In an action 
 against the city corporatitm for damages in such a case the latter vas 
 ordered to pay the costs of the telephone company brought in as a third 
 party, it being shewn that the company placed the pole where it was law- 
 fully, and by authority of the MNrporation. 
 
 Bell Telephone Co. v. Chatham, 31 Can. S.C.R. 61. 
 
 [Referred to in Ereritt t. Raleigh, 21 O.L.R. 91; Holden T. Tarmouiii, 
 5 OUR. 579.] 
 
 ESCATATIOX OS PC^UC STBEET — IXSrFFlCIEXT UGHT AXD raOTBCTIOX. 
 
 The defendant company made an excavation across a sidewalk on a public 
 street, in the city of Halifax, for the purpose of laying cables underground. 
 The excavation was protected after working hours by a number of barrels 
 with plank laid across the tops from one to another. Plaintiff, while 
 panging alcmg the sidewalk, after dark, in the absence of the watchman, 
 fell into a portion of the excaratJon, from which the barricade had been 
 remoTed after it had been placed in position, and was sererely injured. 
 The evidence given at the trial shewed that the barrier erected was of a 
 frail and insufficient diaracter. and that the place was insufBciently lighted, 
 and that if it had not been for the want of care on the part of defendant 
 in these particulars, the accident would not have happened: — ^Held, that 
 plaintiff was entitled to a verdict, and that defendant's appeal must be 
 dismissed with costs. 
 
 Cox V. Nova Scotia Telephone Co., 35 N.S.R. 14«. 
 
 lXjr«T BT HLBCTWCTTT — COSTACT OF TKLBFHOXE WISE WTTH POWEB WISE. 
 
 A telephone company empowered to erect its poles and wires on a street 
 upon which the poles and wires of an electric power line are already strung 
 is under a duty to string the telephone wires at a safe distance frmn tha 
 power wires, and where a telephone lineman is killed by the telephone 
 wires with which he was working becoming charged by contact with an 
 electric wire which had sagged low by the settlement or bending of the 
 electric company's poles not resulting from any negligence on the part of 
 the electric company, the proximate cau«e of the injury is the negligence 
 of the telephone company and not of the electric company, althoi^b the 
 latter had taken no precautions to guy win*s or otherwise to obviate the 
 effect of such sagging. [Englehart v. Farrant. [1897] 1 Q.B. 240: Mc- 
 Dowell V. Great Western Ry. Co.. [1902] 1 K.B. 61S: Dominion Natural 
 Gas Co. V. Collins, [1909] A.C. 640, and Lothian v. Richards, 12 C.L.R. 
 165, referred to.] 
 
 Roberts v. Bell Telephone, etc, Co., 10 DX.R. 459. 25 O.W.R. 428. 
 
 Highway — Low wises — Obstbcctios — Ncisaxce. 
 
 Rural telephone wires so placed that a person driving on to the highway 
 with a load of hay has to stoop when passing under them, constitute an 
 obstruction in the highway and amount to a nuisance: where the position 
 of the wires is the proximate cause of an accident the owner or trustee 
 of the system is liable for damages under the Fatal Accidents Act; the 
 fact that the line was erected and continued under statutory authority is 
 no bar to the action. 
 
 3iagiU V. Moor^ 41 DXJi. 78. 
 
854 WIKES AND POLES. 
 
 Injury by wibes in streets. 
 
 The effect of conferring statutory authority upon an electric power com- 
 pany to erect poles and power wires on a highway is that, apart from neg- 
 ligence, the company is obsolved from the rule that any one who, for his 
 own purposes, collects or keeps anything likely to do mischief if it escapes, 
 is prima facie answerable for all the damages wliich are the natural con- 
 sequence of its escape. [Fletcher v. Ilylands, L.R. 1 Ex. 205, and Rylands 
 V. Fletcher, L.R. 3 H.L. 330, considered; National Telephone Co. v. Baker, 
 [181)3] 2 Cli. 186, and Eastern & South African Telegraph Co. v. Capetown 
 Tramways Co., [1902] A.C. 381. referred to.] 
 
 Roberts v. Bell Telephone Co. and \\ ostern Counties Elec. Co., 10 D.L.R. 
 459, 24 O.W.R. 428. 
 
 B. Erection; Crossings. 
 
 Telephone wires crossing electric railway — Protective works — Junior 
 and senior company. 
 
 The Board has no jurisdiction under ss. 237, 238 of the Railway Act, 
 190G, to order the junior company at a crossing, where the wires of a 
 telephone eompanj"^ are carried over an electric railway, to bear the cost of 
 certain changes in the construction of the lines of the senior company and 
 of certain protective appliances rendered necessary by reason of the con- 
 .struction and operation of the railway of the junior company, where such 
 alterations were made by the senior company without having previously 
 obtained an order from the Board for the making of tlie same. 
 
 Bell Telephone Co. v. Windsor, Essex & Lake Shore Rapid Ry. Co., 8 Can. 
 Ry. Cas. 20. 
 
 Wires bene.\tii tracks — Question of law — Leave to appeal. 
 
 On an application for leave to appeal to the Supreme Court from an 
 order of the Board permitting the Montreal Light, Heat & Power Co. to 
 erect, place and maintain its wires beneath tlie tracks of the Montreal 
 Terminal Ry. Co.: — Held, that, as only a question of jurisdiction and not 
 of law was involved, the application must be refused. 
 
 Montreal Terminal Ry. Co. v. Montreal Light, Heat «t Power Co., 10 
 Can. Ry. Cas. 133. 
 
 Telephone wires — Leave to cross — Protective measures. 
 
 Application by the Bell Telephone Co. under s. 246 of the Railway Act, 
 1906, and s. 5 of 7-8 Edw. VII. c. 61, for an order restraining the Nipissing 
 Power Co. from crossing the wires of the applicant between Powassan and 
 North Bay along the highway, known as the Nipissing road, with their 
 liigh tension wires, until permission of the Board shall have been ob- 
 tained: — Held (1), that the order should be granted; the provision for 
 protective measures being in tlie public interest. (2) That under s. 246 
 of the Railway Act, power companies are required to obtain leave from the 
 Board, before crossing railways with their wires, in order that the wires 
 may be properly guarded. (3) That under the broad provisions of s. 5, 
 of the amending Act, 7-8 Edw. VII. c. 61, it is reasonable that the provi- 
 sions of s. 246 should apply to a telephone system, as well as to a railway 
 line. (4) When a provincial company desires to cross with its line, the 
 line of a Federal company, subject to the jurisdiction of the Board, it must 
 obtain leave from the Board before it will be allowed to do so. 
 
 Bell Telephone Co. v. Nipissing Power Co., 9 Can. Ry. Cas. 473. 
 
WIRES AXD POLES. S5a 
 
 ; vuBB — IssTAff %rfos rx sckvat — GukHc SET akahox at mab.- 
 
 iriwre a. (fade aqwnlMai las kon oidend aad a otr Mml im hvmtird 
 ia tke paUie iaterat, so as to go ■■da- ikt lalhraj liae bjr sabwaj, a 
 trirpkne coa^aajr fcariaig oinWad wins oa tW street i» aot catitlcd ta 
 mtvnv caaiyeasatiaB froM tW railaay or tkr ■nakipalitj tor the e nifmw 
 of ■oriap aad rriocatii^ the teJrpknae liae. 
 
 BeU TckphoM Co. t. Caa. Pae. Rr. Cou Grand Tnmk Rr. Col aad To- 
 loafto (Bmek Atcbof i^iriiwaT Ck««-». 14 Caa. Bj. Ca& 14. i D.LJL 2»«. 
 
 EtXCmC UGKI AS9 TKLSraOXK. TOSS IXSTTAIXAIIO^C VS SCW^T. 
 
 Wlwrr grade separatioa has bcca orinvd aad citr streets are lowered, 
 ia the pahlie iat^nest, so as to go aadcr the raUvar liacs bj sabvmjs, pob- 
 lie ■tili^ cwifiaaw * haviag teiephnt aad cletUi c Vt^t otvrhead vires 
 «■ the Atmta dhnald hear the catire expesse of potti^ these aires vader- 
 graaad exeept thor hiag dtrtaare tdephoae wires whiirh Bay be earned 
 WCTh ead. .[Bell Tdtpkame Co. r. Graad Tranlu Caaadiaa PSaeiie Br. Cos^ 
 aad Tanarto (Brock ATeane Sobwaj Casej), 14 Caa. By. Casw 14, s'dJLJL 
 ^97, firihiwcd.] 
 
 Tomato Electric; etc t. Caa. Pae. By. Co. et aL (North Tomato Grade 
 SeparafioB Case*, 15 Caa. Rr. Ck& 309. 
 
 ELEinaicnT — Ttsrs jLsn rxsTBcnox. 
 
 Aa deetrie power emMpaay striagiag its wires bjr sd alato r i aathontr 
 i^oa the poblir streets at a tiaie whea ao other wires were there, is aader 
 ao datr to iaqpect the wim periodically for the p«rpo«e of seeiag that ao 
 other wires had sabseq^catlj bee^ placed ia too elose prauarhtx to their 
 owa wires aad ao aroidi^ iajarics which m^t reiMilt to pa»BS haad- 
 lia^ the dead vires of aaother conpaa j ahoald the latter hrro»« barged 
 tgr deae coatact with the power wires. 
 
 Baberts t. Bell Tdephoae. etc Co&, 10 DX.R. 439. 24 O.WJi. 42S. 
 
 Dasisrcnox or mriLmcst, ar ms — Lacs or satkit devicbs. 
 
 X cgl i gcace softcicvt to reader aa electric eoaipaaj liable far the de- 
 stractioa of a baildiag froB fire origiaatiag froas aa deetrie cnrrcat of 
 ■Imih ■■By high nritage beiag carried ap«a wires leadiag iato the boild- 
 ia^ May properly be iaferred fron the fact that several hoars bdore the 
 fire the coaipaays hi^ Tohage wires beca^ cioaa e d with low poteatial 
 senice wires oa the sane poles, which tronUe bad beeB corrected piiM* 
 to the fire; where it also appeared that the ase of a siB|de safety derice 
 by the electric enipaay oa Ifte pole armrest the boildiag voold have pre- 
 TCBted the a lwo ra a Uly high evrreat cateriag it, aad that the deetrical 
 iastallatioB fcr the serrice of the buiaul baildiag va£ aot defective. 
 
 HcElaoa t. British Colnabia Ekci Bj. Ga, 12 DX.B. 6T.x 
 
 i&^noa A3» jjrsnm — CoxsrarcnoK — Highwat caoi^tXGs — ^Bight-<hf--wat. 
 Where the wires of a telepboae ct^paay i niaiiiag the liae of a railway 
 I'laafay, which t» chaagiag its ^rstem of operatiaa froa steaai to d ec- 
 trici^, icqpdre to be raised, the railvay beii^ aeaior ia coa^tmctiaa. the 
 tdephoae waapaay — f bear the cost of raisiag its wires where the fee 
 of the property em — ad b ia the raflvay coatpaay. bat at bigbvays where 
 the oalf ri^kt of the railvay eoatpaay is to ctoob with its tradbty the td- 
 cphoae coMfaj is seaior with its coastraetioa to the raOway eoaapaay's 
 wires aad the latter aast bear fte cost of raioBg tihc td- 
 
856 ^YIRES AND POLES. 
 
 ephone wires. [Hamilton Street Ry. Co. v. Grand Trunk Ry. Co. (Kenil- 
 worth Avenue Crossing Case), 17 Can. Rj'. Cas. 393, followed.] 
 
 London Railway Commission v. Bell Telephone Co., 18 Can. Ry. Cas. 435. 
 
 EASE.AfENT — OVKRUEAD AXD UNDEBGBOUXD WiRES AND PIPES. 
 
 The practice of the Board has been to allow the right-of-way of railway 
 companies to be crossed by the construction overhead or underground of 
 lines of wires or water-pipes and other pipes without compensation, the 
 Board's order merely creates an easement which can be cancelled or varied 
 as occasion may require from time to time. 
 
 Maritime Telegraph & Telephone Co. v. Dominion Atlantic Ry. Co., and 
 Baird v. Can. Pac. Ry. Co., 20 Can. Ry. Cas. 213. 
 
 Jurisdiction — Power wires crossed by highway. 
 
 Under s. 247 of the Railway Act, 1900, the Board has no jurisdiction to 
 authorize a highway to be constructed under tlie wires of a power company. 
 
 Coleman v. Toronto &, Niagara Power Co., 20 Can. Ry. Cas. 258. 
 
 Erection of poles on street — Compliance with act of incorporation — 
 "Along the side" of the higway. 
 
 Where a pole was erected as required by the Act of incorporation of the 
 company under the direction and supervision of the proper municipal 
 authorities, and did not interfere with the public right of traveling on or 
 using the street, its erection between the drain or gutter and the centre 
 line of the street is a compliance with the statutory requirment that the 
 pole must be erected '"along the side" of the highway. 
 
 Mclsaac v. Maritime Telegraph & Telephone Co., 50 N.S.R. 331. 
 
 Wires along highways — Underground — Public utilitt coiiPANY — Ju- 
 risdiction. 
 
 Under s. 247 (g) of the Railway Act, 1906, the Board only has jurisdic- 
 tion to direct that wires be placed underground and to abrogate the right 
 of a public utility company to carry its wires along highways on poles. 
 The Board cannot order that poles and wires be moved from one street to 
 another or that wires be placed in cables or upon a designated line of poles. 
 Such a company, however, has at all times the right to remove its pole line 
 from a street and an order from the Board to place its wires underground 
 does not prevent it from exercising such right. 
 
 Chatham v. G.N.W. Telegraph and Bell Telephone Cos., 21 Can. Ry. 
 Cas. 183. 
 
 Telegraph wires — ^Underground construction — Urban development. 
 
 Where urban development has reached such a stage that the city wires 
 and poles are being placed underground, the Board will order telegraph 
 companies to adopt underground construction for their wires at their own 
 expense, or where the work is done by the municipality, and ducts may l)e 
 rented from it, then upon such terms or rental as may be agreed upon be- 
 tween the parties. 
 
 Montreal v. Can. Pac. and G.N.W. Telegraph Cos., 24 Can. Ry. Cas. 226. 
 
 WITNESS. 
 See Pleading and Practice. 
 
 Examination — ^Leading questions. 
 
 In examining one's own witness, leading questions must not be put to 
 the witness on material points, but are proper on points that are merely 
 
WITNESS. 857 
 
 introductory and form no part of the substance of tlie intiuiry. The rule 
 against leading one's own witness will be relaxed wJu're nonleadiiig ques- 
 tions fail to bring the niiiul of the witness to the precise point on which his 
 evidence is desired, and where it may fairly be supixised that tliis failure 
 arises fi'om a temporary inability of the witness to remember. (Dictum 
 per Beck, J.) 
 
 Maves v. tirand Truid< Pad tic lly. Co., It) Can. Ey. Cas. 9, 14 D.L.K. 70. 
 
 WORKMEN'S COMPENSATION. 
 
 See Employees. 
 
 WORKS FOR GENERAL ADVANTAGE OF CANADA. 
 
 See Constitutional Law; Kxjtropriation ; Kailway Crossings. 
 
 WORKSHOPS. 
 
 See Warehouses, Yards and \\ orkshops. 
 
 YARDS. 
 
 See Warehouses, Yards and Workshops. 
 
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