Grand Trunk Railway Co. of Canada v. Anderson, (1898) 28 SCR 541

Supreme Court of Canada

Grand Trunk Railway Co. of Canada v. Anderson, (1898) 28 S.C.R. 541

Date: 1898-06-14

The Grand Trunk Railway Company of Canada (Defendant) Appellant;

and

J.R. Anderson and Jessie McKenzie (Plaintiffs) Respondents.

1898: March 10; 1898: June 14.

Present: Taschereau, Gwynne, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Railways—Regular depot—Traffic facilities—Railway crossings—Negligence—Walking on line of railway—Trespass—Invitation—License—51 V. c. 29, ss. 240, 256, 273 (D).

A passenger aboard a railway train, storm-bound at a place called Lucan Crossing on the Grand Trunk Railway, left the train and attempted to walk through the storm to his home a few miles distant. Whilst proceeding along the line of the railway, in the direction of an adjacent public highway, he was struck by a locomotive engine and killed. There was no depot or agent maintained by the company at Lucan Crossing, but a room in a small building there was used as a waiting room, passenger tickets were sold and fares charged to and from this point and, for a number of years, travellers had been allowed to make use of the permanent way in order to reach the nearest highways, there being no other passage way provided. In an action by his administrators for damages.

Held, Taschereau and King JJ. dissenting, that, notwithstanding the long user of the permanent way in passing to and from the highways by passengers taking and leaving the company’s trains, the deceased could not, under the circumstances, be said to have been there by the invitation or license of the company at the time he was killed and that the action would not lie.

APPEAL from the judgment of the Court of Appeal for Ontario^[1] affirming the judgment of the Divisional Court^[2] which had reversed the judgment of the trial court, (Meredith C.J.,) dismissing the plaintiffs’ action with costs.

[Page 542]

On the 8th of February, 1895, one William McKenzie purchased from the railway company a return-ticket from the Village of Ailsa Craig, a station on the main line of the Grand Trunk Railway, to the City of London. He was carried safely to London, and when at that station, just before commencing the journey home to Ailsa Craig, was informed and warned by the defendant that he would not be able to reach Ailsa Craig that night, as the passenger trains on the main line had been cancelled on account of an extraordinary blizzard and snowstorm, then prevailing, having caused a blockade on the line. He, nevertheless, journeyed as far as Lucan Crossing, a station on the line of the railway, about three miles from Ailsa Craig, where the train became blocked by the storm and he there left the train and proceeded in the face of the storm to walk along the line of the railway towards the public road leading to Ailsa Craig, although warned as to the danger in doing so, and whilst walking along the road-bed between the railway tracks he was struck and killed by the engine of a freight train.

Lucan Crossing is a point where the main line of the Grand Trunk Railway crosses a line of railway, from London to Wingham by an overhead crossing, which railway, (from London to Wingham) was originally a line of an independent company, but had become part of the Grand Trunk system about ten years prior to the accident. There are platforms along each of the railway lines, and a stairway connecting them, for the convenience of passengers transferring from trains on one railway to connecting trains on the other, but no depot or station-building is maintained there, although passengers were allowed to await the arrival of trains in a room in the company’s “section-house.” The lines of railway are both fenced

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in and there is no entrance to or exit from this crossing point to any public highway, the nearest public road being a distance of twenty-five and one-third rods to the eastward, and there being also another highway to the westward, distant about one mile and forty-six rods, all the lands at the crossing being those taken and used by the defendant for the railway lines, thirty-three yards in width. The company had no agent at the crossing but tickets were sold to and from the crossing and conductors were in the habit of collecting fares in cash from residents in that vicinity travelling on these railways and these people climbed over the fences or came through the gates at their farm-crossings and passed along the line of the railway, in taking or leaving the company’s trains at the crossing. This use of the permanent way had continued for a number of years, prior to the accident.

The action was brought, under Lord Campbell’s Act, by the administrator and administratrix of deceased, and it was agreed at the trial that if there was any evidence of negligence on the part of the defendant towards the deceased which would entitle the plaintiffs to have the case submitted to the jury, judgment should be entered for the plaintiffs for $3,000. His Lordship Chief Justice Meredith who tried the case, dismissed the action. The plaintiff thereupon appealed to the Divisional Court which allowed the appeal, directed that the judgment entered at the trial should be vacated and set aside and that $3,000 be paid into court to be apportioned among the widow and children of the deceased. From this judgment the defendant appealed to the Court of Appeal for Ontario where the decision of the Divisional Court was affirmed.

It is from this judgment that the present appeal is taken.

Osler Q.C. for the appellant. The question is whether the proximate cause of the accident was

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the negligence of the deceased, or such negligence on the part of the company as would entitle the plaintiffs to have the case submitted to the jury. The first inquiry must be whether the deceased was on the line of the railway at the time of his death by the invitation, express or implied, of the company. There is no such evidence, and the deceased was not lawfully there for the following reasons:—The ticket sold to the deceased entitled him to travel only from London to Ailsa Craig, and though such a ticket might entitle him to leave the train at any regular station of the company and proceed to the highway at the company’s risk, it did not permit him to leave the train at any intermediate point at which the train might happen to stop and attempt to reach the highway unless he did so at his own risk. Lucan Crossing is not a “regular” station as understood in Parsons v. The New York Central and Hudson River Railroad Company^[3]. It is a station only to such an extent as is sufficient to satisfy the requirements of section 240 of “The Railway Act” to afford facilities for receiving and forwarding traffic arising from another railway, and though the railways at present belong to the same system, yet, at the time the crossing was built, the Wingham Branch was an independent line, and the crossing still falls within that section. The station was not placed there by the company for the purpose of receiving passengers, but only for the convenience of those changing from one line to the other; nor was there any ticket or telegraph office established there. The fact that the company sold tickets to this crossing from regular stations does not, under the circumstances, make the crossing a “regular” station. See Land v. Wilmington and Weldon Railroad Company^[4]. The deceased could not claim the right to use the

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road-bed as a way of necessity since he was warned in London that he would not be able to proceed further than Lucan Crossing and should, therefore, have left the train at the nearest regular station, but, having chosen to travel to Lucan Crossing, his attempt to reach the highway was made at his own risk.

The present case is not on a par with the case of an accident between two stations, for in the latter case the person could not be expected to foresee the accident which would detain him between the two stations, whereas in the present case he was specially warned. In any event if the deceased under the circumstances was entitled to leave the train at the crossing and proceed towards the highway he had no right to use for such purpose, except at his own risk, any part of the railway line which was dangerous by reason of the passing trains, but merely to use for that purpose that part not immediately occupied by tracks, specially as the danger on the track was greatly increased at the time by reason of the storm then raging. The trespassing that may have occurred from time to time on the part of people who wished to board the train at Lucan Crossing instead of proceeding to the nearest regular station did not give any license to the public to use the road-bed, and in any event could not apply to a person ticketed to another station; Central Rail-road of Georgia v. Brinson^[5]; Baltimore and Ohio Railroad Company v. State of Maryland^[6]. Even if the company had acquiesced in the use of the track for pedestrian purposes merely by not objecting to such use this would not be sufficient to prove a license to so use it; Carrington v. Louisville and Nashville Railroad Company^[7] at pages 544 and 546. And further, had

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there been such a license to use, the licensee in the user assumes all risk and there is no implied guarantee that the traffic of the road should not proceed in the ordinary way; Jones v. Grand Trunk Railway Company of Canada^[8]; Richards v. Chicago, St. Paul and Kansas City Railroad Company^[9]. No custom such as is claimed can be established in the face of section 273 of “The Railway Act”^[10].

Aylesworth Q.C. and McEvoy for the respondents. No means of ingress to or egress from the Lucan Crossing Station had then been provided by the defendant company, and passengers set down at that station, or taking trains there, had for many years been, with the knowledge of the company’s officers and servants and without any objection, permitted to use, and had used, the line of track and road-bed of the railway as means of getting to the nearest highways east or west of the station.

The company having established a station for passengers at Lucan Crossing, were bound to furnish a safe and reasonable means of ingress to and egress from the same. A waiting-room for passengers is provided in a building at the station, furnished with a stove and benches; the station has the usual platform and other accessories; tickets are sold to and from the station itself on the trains and at all other stations exactly as for any ordinary station upon the railway. The evidence shows that, especially on market days, there is a very considerable passenger traffic to and from the station in question, and that regular passenger trains both on the branch line and on the main line are timed to stop there. Upon these facts it was negligence on the part of the company to furnish no means

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of access whatever to the station in question, and to compel passengers to walk along the tracks of the railway in going to or departing from the station. When damage has resulted, in direct consequence of such negligence, it is actionable negligence. Oldright v. Grand Trunk Railway Company of Canada^[11]; Patterson, Railway Accident Law, secs. 251-254. Passengers were justified in using the road-bed as the only passage-way held out by the carrier as a means of entrance and exit to and from the public highways. Collins v. Toledo etc., Railroad Company^[12].

The evidence is clear that from the time the train emerged from the cutting, fifteen rods from the highway, until it had crossed the highway and struck McKenzie, the whistle was not sounded nor the bell of the engine rung, a clear infraction of section 256 of “The Railway Act”^[13]. McKenzie had no warning of the train behind him when it was at a considerable less distance from him than that which the statute fixes as the limit for the first warning to be given as an engine is approaching a highway crossing. This is alone a sufficient circumstance of negligence to support this action. The liability for damages sustained by reason of any such neglect on the part of the company’s servants is not limited to travelers upon the highway. The statute (sec. 256), declares that in the case of such neglect the company shall be liable for all damages “sustained by any person” by reason of such neglect. It was incumbent upon the defendant to exercise special care and observe special precautions in the running of trains past the station in question. The company had full knowledge that for many years it had been customary for passengers to walk along the main line of the track east and west of the cross-

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ing, using the road-bed as the only means of reaching or leaving the station. The train on which deceased travelled was a regular train, stopping at this station at the same hour every afternoon, and usually carrying several passengers to or from this station. The regular west‑bound passenger train on the main line is timed to stop at this station to make close connection with the train on which deceased travelled. Sometimes main line freight trains stop at this station to take up passengers. On this particular day, although on account of the storm, there were no passenger trains running on the main line, it was none the less incumbent on those in charge of the freight train to observe even more than ordinary precautions in passing over this portion of the main line track. Wherever a particular point on a line of railway has been used for purposes of travel by pedestrians, with the permission of the company, such circumstances enhance the duty of servants of the company to exercise caution and prudence in the operation of the road at that place. Illinois Central Railroad Company v. Hammer^[14]; Murphy v. Chicago etc. Railroad Company^[15]; Harty v. Central Railroad Company of New Jersey^[16]; Kansas Pacific Railway Company v. Pointer^[17]; Kay v. Pennsylvania Railroad Company^[18]; Pennsylvania Railroad Company v. Lewis^[19]; Daley v. Norwich and Worcester Railroad Company^[20]. In Byrne v. The New York Central and Hudson River Railroad Company^[21], it was held that where the public for a long period of time had been in the habit of crossing a railroad at a point not in a travelled public highway with the acquiescence of the railroad corporation,

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this acquiescence amounted to a license and imposed a duty upon the corporation, as to all persons so crossing, to exercise reasonable care in the running of its trains so as to protect them from injury. Where a railway company permits persons to cross its lines or premises it is bound to exercise care, and it cannot treat them as trespassers. Murphy v. Boston and Albany Railroad Company^[22]; Barry v. New York Central and Hudson River Railroad Company^[23]; Barrett v. Midland Railway Company^[24]. See also Gallagher v. Humphrey^[25]; Thomson v. North British Railway Company^[26]; Wright v. Midland Railway Company^[27]; Brown v. Great Western Railway Company^[28]. The defendants allowed deceased so to use their track, if they did not compel him to do so. He was there with their license at all events, and they had a duty imposed upon them to take care of him; they must be taken to have held out to their passenger a guarantee that he might use it with safety. See Rogers v. Rhymney Railway Company^[29], and The Dublin Wicklow and Wexford Railway Company v. Slattery^[30], especially the opinion of Earl Selborne in the latter case at pages 1187 and 1188. See also the subsequent decisions of the Court of Appeal in England in Crowther v. Lancashire and Yorkshire Railway Company^[31]; and in Coburn v. Great Northern Railway Company^[32]. At the trial the learned judge seemed to consider that the deceased by alighting at Lucan Crossing station before arriving at the terminus of his journey, and by leaving such station on foot, lost his character of passenger with the company. This view is erroneous. We contend

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that until the deceased reached a highway he was entitled, as against the defendants, to all the rights of a passenger. See Parsons v. New York Central and Hudson River Railroad Company^[33].

TASCHEREAU J. (dissenting).—I am not disposed in this case to interfere with the unanimous judgments of the Divisional Court and of the Court of Appeal.

The case is not free from doubt, but the appellants have failed to convince me that there is error in the conclusion arrived at in favour of the plaintiffs.

GWYNNE J.—I agree that the appeal should be allowed for the reasons stated by Mr. Justice Sedgewick.

SEDGEWICK J.—I am of the opinion that the judgment of the trial judge was right and that there should be judgment in this case for the defendant. It must be admitted for the purposes of this case that the provision of the Railway Act, section 256, relating to the sounding of the whistle and the ringing of the bell was not complied with, and that all persons rightfully upon the railway track as well as upon the highway crossing next to the coming train are entitled to the advantage of this provision, and the sole question to be determined in this case is whether or not the deceased Mackenzie at the time he was killed was lawfully walking upon the railway track. In other words whether he was a trespasser or a licensee or invitee of the defendant company. I have not been able to find in the record sufficient evidence to justify the findings that he was lawfully there. In the first place the Railway Act, section 273, makes it a criminal offence for any one, not having special right, to walk upon

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the railway track. And in the second place the area of the track is completely surrounded and guarded on each side by a fence and where the highways cross by cattle guards, so that not only no carriage can go upon or near the platform at Lucan Crossing but no foot passenger can do so without leaping over the fence or walking on the rails themselves.

Now the statute and these means of protection were a warning to all the world against trespassing or entering upon the roadbed. What evidence is there to shew that the deceased was on the railway track by the invitation of the company? The two highway crossings, as I understand the evidence, are one mile seventy-one and one-third rods apart. It was proved that farmers owning lands between these two crossings instead of going by the ordinary highway to the stations eastward and westward occasionally either went over the railway fences or through the gates at the farm crossings on to the railway lands along the track to the platform at the railway crossing. It was proved too that tickets were sold from various points to this crossing and that conductors were in the habit of receiving payment of fares to this point. The deceased was not one of these farmers, nor did he live in the vicinity of the crossing but at a station close to his own home more than three miles away. This I think is all the evidence tending to shew that he was rightfully where he was when he met his death.

Now this does not strike me as evidence proving licence or invitation by the railway company. Whatever the custom may be in England, and however carefully railway companies there may guard their tracks from being trespassed upon, it is a matter of common knowledge that, notwithstanding the criminal provisions of the Railway Act, people in this country living near to a railway do almost uni-

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versally walk upon the railway track, if it suits their convenience, getting at it by such means as they can, not dreaming that they are there upon the invitation of the company, but conscious all the while that they are there at their own risk and peril. The mere fact that in this country railway companies do not have officials at all points upon their line to warn off trespassers, and are not at all times alert to bring criminal prosecutions against trespassers, is no evidence of assent on their part to the violation of the law. When they surround the railway track with all the safeguards and means of protection which the statute demands, they in my view have done all that they are required to do. Nor is it any evidence that people are invited to use the railway track because of the platform at Lucan Crossing. It is admitted and there is no question as to the limited purpose of that platform, namely, for the convenience of passengers getting on or off the train at that point to use either line which crosses there. Nor is the fact that conductors were in the habit of taking pay from persons boarding the train there any evidence of invitation. Conductors would have the right to presume that they came there lawfully by means of the railway crossing. Even assuming that the class of individuals who were in the habit of getting to the platform by jumping over the fences were there by invitation of the company and were not liable as trespassers, how could the deceased take advantage of a privilege which had never been extended to him, but was confined to a class to which he did not belong? No doubt, if the public generally are in the habit of crossing a railway track at any well known particular, specified spot for their own convenience in cases such as appear in Dublin, Wicklow and Wexford Railway Company v. Slattery^[34], and that

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in the very face of the company’s officials, that would be evidence of assent and a judgment based on it might be supported. But here in the present case there is no evidence that even the usage of the farmers which is proved in the evidence, was ever brought to the knowledge of any officer of the company having authority to give a right of passage or other privilege to any portion of the public. There was no agent of the company at Lucan Crossing; no one there empowered in any way to make contracts for the company. The conductors to whom the farmers paid the fares were not supposed to know how they came to Lucan Crossing, whether by train or otherwise, and even if they did they had no authority to bind the company. In the judgment, the learned Chief Justice of the Court of Queen’s Bench, in the Divisional Court^[35], argues that inasmuch as the deceased rightfully got off the train at Lucan Crossing, and inasmuch as there was no public way from the crossing to any highway in the vicinity he had a right by necessity to walk upon the company’s track in order to reach a highway. But although he doubtless had a right during the progress of his journey to alight upon the platform yet the contract between him and the company was to carry him on to Ailsa Craig, and before he started on his journey he knew that it was impossible for him to make connection that night.

Now I am of opinion that the evidence does not support the allegation that he was an invitee of the company, and not being an invitee his representatives cannot claim the protection which the statute would otherwise have given him. In my view the appeal should be allowed and the judgment of the trial judge restored, the whole with costs.

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KING J.—I think the judgment in the court below free from error, and that this appeal should be dismissed.

GIROUARD J.—I am of the opinion that this appeal should be allowed with costs.

Appeal allowed with costs.

Solicitor for the appellant: John Bell.

Solicitors for the respondents: McEvoy, Wilson & Pope.