Phelan v. Grand Trunk Pacific Railway Co., (1915) 51 SCR 113

Supreme Court of Canada

Phelan v. Grand Trunk Pacific Railway Co., (1915) 51 S.C.R. 113

Date: 1915-02-02

Thomas Perry Phelan (Plaintiff) Appellant;

and

The Grand Trunk Pacific Railway Company (Defendants) Respondents.

1914: November 3, 4; 1915: February 2.

Present: Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.

Railways—Operation—Equipment—Coupling apparatus—Duty to provide and maintain—Protection of employees—Inspection—“Inevitable accident”—Negligence—Findings of jury—Evidence—Common employment—Conflict of laws—“Railway Act,” R.S.C., 1906, c. 37, s. 264—Construction of statute—Vis major.

A car attached to a fast-freight train arrived at a station on the railway, in Saskatchewan, during a cold night in the winter; it was equipped with an approved coupling device, as required by section 264(c) of the “Railway Act,” R.S.C., 1906, ch. 37, and, on the arrival of the train, it had been inspected according to the usual practice and no defect was then found. When the train was being moved for the purpose of cutting out the car, the uncoupling mechanism failed to work and, in consequence, 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 damages, 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. On appeal from the judgment of the Court of Appeal for Manitoba setting aside the verdict and entering judgment for the defendants:—

Held, per Fitzpatrick C.J. and Davies and Anglin JJ.—The obligation resting upon the company, both under the statute and at common law, was discharged by 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

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regard to unusual conditions not perceivable by the ordinary methods of inspection.

Per Davies and Anglin JJ.—Viewed as a finding upon a question of fact, the verdict of the jury upon the technical question as to the system of inspection should be set aside as being against evidence. Jackson v. Grand Trunk Railway Go. (32 Can. S.C.R. 245); Jones v. Spencer (77 L.T. 537); Metropolitan Asylum District v. Hill (47 L.T. 29); Jackson v. Hyde (28 U.C.Q.B. 294); and Field v. Rutherford (29 U.C.C.P. 113), referred to.

Per Anglin J. (Idington J. contra).—The defence of common employment, although taken away by legislation in the Province of Saskatchewan, where the injuries were sustained, was available as a defence in the courts of Manitoba, where the action was brought. The “Halley” (L.R. 2 P.C. 193) referred to.

Judgment appealed from (23 Man. R. 435) affirmed, Idington and Duff JJ. dissenting.

Per Idington and Duff JJ, dissenting.—Section 264 of the “Railway Act” imposes upon railway companies the absolute and continuing duty not only to provide, but also to maintain in efficient use the apparatus thereby required; where it is shewn that the apparatus failed to operate, when used, the onus is upon the railway company, in an action under section 386 of the “Railway Act,” to shew that there had been a thorough inspection thereof made to ascertain that it was in efficient working order before the train was moved. Johnson v. Southern Pacific Co. (25 S.C. Repr. 159) referred to.

APPEAL from the judgment of the Court of Appeal for Manitoba[1], setting aside a verdict for the plaintiff and the judgment entered at the trial, by Curran J., and dismissing the plaintiff’s action.

The circumstances of the case are sufficiently stated in the head-note and the questions in issue on the present appeal are discussed in the judgments now reported.

F. B. Proctor for the appellant.

C. H. Locke for the respondents.

The Chief Justice.—I am of opinion that this appeal should be dismissed with costs.

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The car-coupler was of a type which complied in all respects with the requirements of the statute and had been approved of by the Master Car Builders’ Association. It did not work on the occasion in question because of an obstacle created by unusual climatic conditions that could not be detected by the ordinary methods of inspection which were reasonably sufficient to ensure the employees of the company against accidents, and there was nothing special in the circumstances which required extra precautions to be taken.

I agree with the Court of Appeal in the conclusion that in fact the car-coupler was effective and the inspection adequate and, therefore, that the company was, in the circumstances, without fault.

Davies J.—Two contentions were urged by Mr. Proctor why the judgment of the Court of Appeal, directing judgment to be entered for the defendant, should be reversed. One was that section 264 of the “Railway Act” casts an absolute and unqualified duty upon railway companies to provide and cause to be used on all trains modern and efficient apparatus, appliances and means, inter alia,

(c) to securely couple and connect the cars composing the train, and to attach the engine to such train with couplers which couple automatically by impact, and which can be uncoupled without the necessity of men going in between the ends of the cars;

and the other was that, under the findings of the jury, the plaintiff was entitled at common law, irrespective of the statute, to a judgment for the damages awarded.

The question as to the proper construction of section 264 is a most important and far reaching one. I am, however, not able to accept the suggested interpretation as the true one.

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The statutory duty so far as regards sub-section (c), with which only we are concerned, consisted in providing car-couplers which would couple automatically by impact and which would uncouple without the necessity of men going in between the cars.

In all of the cases provided for in the section the statutory duty went beyond that imposed by the common law; but I am not prepared, as at present advised, to hold that it imposed the absolute or unqualified duty contended for, involving obligations which neither skill, care or absence of negligence, could avail to avoid.

In the present case, however, the defendant did not obtain any finding from the jury as to a breach of their statutory duty and, in the absence of such a finding, his contention must fail.

On the common law liability of the company invoked by the plaintiff, the only findings of the jury were that the defendant company was guilty of negligence and that this negligence was “through lack of proper inspection.”

This express finding negatives any other negligence on the defendants’ part.

I am unable to find any evidence warranting the jury’s finding. We have the express evidence of Neill, who at the time of the accident was defendants’ car-inspector at Melville, and of Couchman, who was plaintiff’s witness, that on the arrival of the train on the night of the accident an inspection was made by them one on each side of the train with a lantern and the couplers of each car were inspected from the outside and that there were no visible signs of snow or ice on the couplers, or other evidence to cause any

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suspicion as to their not being all right and in good order.

It must be borne in mind that the jury did not find any defect in the coupler. As a matter of fact, after the accident occurred, the discovery was made that the coupler did not work. It was at once taken off and opened and examined by Neil, who states that he found it nearly filled with ice which, he surmised, had fallen on the outside of the coupler in the shape of snow which had melted and dropped into the coupler and that, after the ice was removed, he found it “worked fine” and was in first-class condition.

The uncontradicted evidence is that the coupler was a standard one approved of by the Master Car Builders’ Association and one of the best on the market.

The truth is, that there was nothing the matter with the coupler itself, but that, owing to climatic conditions, it had become partially filled with ice, which prevented its proper working and that its condition was not detected until after the accident happened, when it was taken apart by Neil, and could not be detected by such an outside examination as good railway practice called for and as was made by Neil and Couchman.

The system of inspection as made by Neil and Couchman was approved of by Mr. Cowan, general car foreman of the Canadian Northern Railway Company, and other experts as good railway practice. All the experts agreed that any pulling of the cars apart to inspect the couplers was impracticable, and that the inspection sworn to alike by Neil and Couchman was the only practicable one.

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No witness gave evidence of anything omitted by these inspectors which ought to have been done by them and if the jury, in the absence of evidence, drew inferences as to what should have been done in addition to what was done they should have stated what these inferences were and not put their finding in the vague and unsatisfactory language they used.

There was much discussion as to the meaning and effect of their finding “through lack of proper inspection.” There is an air of delightful vagueness and uncertainty about it amply justified by the absence of any evidence.

I am willing to accept the interpretation offered by appellant of its meaning as a possible one and as meaning that a proper inspection would have revealed the unworkable condition of the coupler. But surely that which was wanting in the inspection as made should have been stated in the finding. All the experts agree that it was a good and proper inspection and several suggestions made to them of a possibly better inspection were stated to be impracticable.

Under these circumstances, in the total absence of any evidence to support the finding and because of its vagueness and uncertainty, I would dismiss the appeal and confirm the judgment of the Court of Appeal with costs.

Idington J. (dissenting).—The appellant acting as a brakesman and switchman in respondent’s yard in Melville, in Saskatchewan, on the 19th January, 1912, in a shunting operation conducted after dark, when on top of a car to be cut out of the train and kicked into a siding, was thrown to the ground by reason

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of the car, instead of responding to the intended kick and moving onward, remaining attached to the train. The violent unexpected jerk which appellant thus got and brought him to the ground was, he alleges, the result of another man who was assisting in the intended operation having failed to raise the coupling pin of the car and thereby disconnect it from the moving train when brought to a halt. The man detailed to raise said pin did his duty by pulling upon the lever which was intended to uncouple the cars at the given signal, but he failed because the pin was so jammed in from some cause or other that his pull produced no effect.

It is not seriously denied that all this happened and was in truth the cause of appellant’s fall to the ground when the cars ran over his arm and resulted in it having to be cut off at the shoulder.

The jury found a verdict of negligence against respondent by answering questions submitted by the learned trial judge and assessed the damages at six thousand dollars. One of these questions was: “If so in what did this negligence consist”? The answer was: “Through lack of proper inspection.”

The learned trial judge upon this and other answers entered judgment for the appellant. The respondent herein then appealed to the Court of Appeal for Manitoba which, by a majority of three to two, reversed said judgment and dismissed the action.

The meaning of this verdict is, to my mind, the only serious difficulty in appellant’s way to success, and to understand it we must, as in all such cases of an enigmatical sort of verdict, look at the proceedings at the trial and the course thereof and especially the

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learned trial judge’s charge and other indications of what the parties, in truth, were engaged in trying.

When we do that in this case there cannot be much doubt of the meaning of the jury’s verdict.

The respondent’s counsel at the close of the case moved for a nonsuit. In doing so he said:—

I suppose the most my learned friend could wish to shew is that this man was injured by reason of a coupler failing to work. There is no question that is the reason this accident occurred. The plaintiff expected it to open and it did not open, and he charges that we are liable in damages because it did not open. Now, he has to go farther than that.

Then he proceeded to argue on the evidence as to the inspection of the coupler in question and urged that no more could be desired and hence no actionable negligence shewn.

Thereupon the learned trial judge asked: “What about the statutory duty? To which counsel replied thus:—

The statutory duty is met by this Climax Coupler, which is a standard coupler. The statute was never intended to insure workmen against any latent defect.

Next morning, the court having adjourned, the learned judge ruled that the common law duty and the duty cast upon the defendant by the “Railway Act” were sufficient to satisfy the present onus and that they ought to take into consideration the whole case,

In charging the jury he dealt with every phase of the case and directed the jury that there was a common law duty of the employer to provide proper materials and a proper place to work in, and after enlarging upon that, pointed out the requirements of the “Railway Act” in respect of automatic couplers at length.

He then said:—

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The next question for you to consider is, have they maintained that coupler in a satisfactory working condition so as to ensure the highest degree of efficiency from it in order to carry out in actual practice the protection to life and limb as defined by the statute; in order to avoid the necessity of men going in between the cars to couple and uncouple them and when men are operating on the cars the levers can be drawn by some one on the ground? There is no question about it on the evidence here that that coupler did not work when Ault attempted to cut off the car on that night.

And, thereupon, he proceeded with some detail to deal with the evidence bearing thereupon and the kind of inspection it presented.

It seems to me that the return of the jury to this charge and the questions submitted must be read as assuming that the facts admitted by every one are to be taken for granted and that if the law imposes the duty upon respondent of maintaining the coupler in efficiency, whether inspected or not, then, regardless of inspection, there was negligence, but if there was anything further needed they found that there had been no proper inspection.

The first question thus raised is as to the nature and extent of the obligation imposed by section 264 of the “Railway Act” upon respondent.

This section is under the caption “Operation, Equipment and Appliances for Cars and Locomotives.”

It enacts:—

264. Every company shall provide and cause to be used on all trains modern and efficient apparatus, appliances and means —

and then follow (a) and (b), not concerning us, and (c), which is as follows:—

(c) To securely couple and connect the cars composing the train, and to attach the engine to such train, with couplers which couple automatically by impact, and which can be uncoupled without the necessity of men going in between the ends of the cars.

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Is this rigid requirement observed by supplying a coupler that in fact was, and had been, no one knows how long, absolutely useless for any purpose?

We are not told when it was last fit for use. The counsel for respondent at the trial seemed to assume that having furnished a coupler of an approved type its duty ended, and that the onus rested upon the appellant to demonstrate all else relative thereto and its inefficiency if so in fact and, above all, the negligence that had produced such inefficiency.

I do not think such is the law to be found in this enactment. We must look at section 386 of the “Railway Act,” which gives the right of action in express terms as well as imposing penalties.

I incline to the opinion that the statute, in light thereof, is to be read just as the plain language of these sections expresses and clearly implies. No excuses are permitted. No exception is expressed. Why should we read something of that kind into the Act when not there?

In the view I thus suggest of the meaning of this statute there is an end of all the many contentions of the respondent. But it is not necessary to adhere to such view to maintain the judgment of the trial judge.

Taking much lower ground and, for argument’s sake, assuming the rule applicable to cases resting upon the common law obligations of the employer or, indeed, upon some statutes by their provisions implying analogous modifications of the rigid rule (which I suggest this one lays down) that upon the careful and prudent inspection of a competent officer, reasonably finding the requirements of the law had been observed, yet an accident might occur for which the

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master could not be held liable, how far does that carry the defence herein?

This car formed part of a train made up at Fort William, in Ontario, but how long before the nineteenth of January, on the evening of which it came into the Melville yard, no one seems to know, or, indeed, to have cared.

It travelled in its last stages at least through weather conditions that shewed a temperature of twenty to twenty-five degrees below zero. The coupler was filled with ice and snow. It was so solidly frozen that it was only after the man responsible for its inspection at the Melville yard had taken it apart that he was able to discover what was the matter.

It is suggested by some of the witnesses that it probably was next to the engine, though apparently not there at its coming into the yard.

It appears such a situation, or where steam might reach it and get frozen, or dropping of water from eaves of a building or car, or in other ways such as by a snow storm and snow melting, the condition found might have been produced. It is admitted by the witnesses who ought to know that such things do happen.

There was ample evidence before the jury from which men of sense exercising common local knowledge might well have said all these things might, from its history, have happened to this car since it had got placed in train No. 91 at Fort William. And how much further east it had travelled from, without any inspection, no one knows.

Are we to say, as matter of law, that the most cursory sort of examination, under such circumstances, of Mr. Neill by the aid of his lantern watching, I infer,

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only for breakages, not for the workability of this coupler and failing to test it by hammer or otherwise, is the sort of examination a jury are debarred from finding fault with? Are we to tell men of sense who do condemn it, that they are expressing an opinion which nine out of twelve reasonable men cannot properly pronounce?

I cannot think such is the law or that the excuses given, I care not by whom, in regard to the use and inspection of a piece of mechanism which the jurors possibly understood quite as well as the witnesses and, under the circumstances, could appreciate better than lawyers, must be held valid.

The excuses given for not making a better inspection seem to me most frivolous. And there is evidence from which the jury might well have discarded some of the evidence upon which respondent must rely to establish this defence.

The radical error, I repeat, in what has been put forward is the assumption that the, burden rested upon the appellant, when in law the burden rested on respondent, to shew some reasonable grounds for being discharged from its statutory obligation.

There is a case of Johnson v. Southern Pacific Co.[2], upon a similar statute in which it was contended that because on the engine and the dining car, respectively there in question, which needed coupling, there was a good coupler affixed, but the two couplers were not of the same make or kind, though each in its way was excellent. They could not be made to work automatically or together without a man going in between the engine and the car to make

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them couple. It was argued even up to the Supreme Court of the United States that the statute had been fully complied with.

The argument there failed and this contention ought equally to fail.

I quite agree with the Chief Justice in the Court of Appeal when he answers all the exaggerated consequences suggested by some to frighten others, as to making a more thorough inspection, that all that was needed was to see that before an operation such as involved herein was attempted the car to be dealt with should be so thoroughly examined as to make sure that the coupler would work and that there existed no need for severing each car in a whole train.

I may add that the kind of inspection supposed to be made by men like Mr. Neill, doing what he was doing, was no doubt for the purpose of seeing that nothing was broken and hence make sure that the car would not uncouple and become a source of danger to the train or other trains by such uncoupling.

The operation in question was of an entirely different character and for another purpose and needed the full assurance that the coupler would uncouple.

Again it is urged that the statute is only for the protection of the man operating the coupler. I do not think so. It was designed, whatever its origin, to provide for the safety of all concerned in working on a train on which that might come into play, and it is in this connection that a distinction may be possibly drawn between the degrees of obligation imposed in relation to those directly and indirectly concerned, that induces me to put the disposition of this case upon the lower ground I have taken.

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I may say the case just cited furnishes a contention somewhat analogous to that made here, but which failed there.

Another contention was set up herein before us, though not presented in the courts below, and that was that the law of Manitoba must govern and, by that, the negligence involved in failing to inspect was that of a fellow-servant and, hence, the doctrine of common employment applied and as the action rests upon the common law or statute, must fail.

Unfortunately for the argument the accident took place in Saskatchewan where the doctrine was abrogated in 1900 by an ordinance, chapter 13, section 2, which is copied into the “Judicature Act” of 1907, now found in R.S. Sask. of 1909, and is in section 31 thereof, which is as follows:—

31. The law to be administered in this province as to the matters next hereinafter mentioned shall be as follows:—

and of its numerous declarations of the law, one is this:—

14. It shall not be a good defence in law to any action against an employer or the successor or legal representative of an employer for damages for the injury or death of an employee of such employer that such injury or death resulted from the negligence of an employee engaged in a common employment with the injured employee any contract or agreement to the contrary notwithstanding.

The objection that it only applies to actions in the Supreme Court is not tenable, indeed is neither justified by the terms or implications of the enactment.

This objection in any event, even had the law not been changed, would only apply to the common law aspect.

The statute that imposes the duty in question herein rests it upon such express ground that its non-observance can in any aspect only be excused by something which defendant must set up and prove.

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The appeal should be allowed with costs here and below and judgment of the trial court restored.

Duff J. (dissenting). — This was an action in which the respondent, the Grand Trunk Pacific Railway Company, was charged with the violation of section 264 of the “Railway Act” in respect of which reparation was claimed under sub-section 2 of section 3.86 of the same Act. The first mentioned section provided in so far as relevant to this case:—

Every company shall provide and cause to be used on all trains modern and efficient apparatus, appliances and means—

* * * * *

(c) to securely couple and connect the cars composing the train, and to attach the engine to such train, with couplers which couple automatically by impact, and which can be uncoupled without the necessity of men going in between the ends of the cars.

The material parts of section 386 are as follows:—

386. Every company required by this Act—

(a) to provide and cause to be used on its trains modern and efficient apparatus, appliances and means, for the secure coupling and connecting of the cars and the engine composing the train,

* * * * *

which fails to comply with any requirement of this Act in that behalf shall forfeit to His Majesty a sum not exceeding two hundred dollars for every clay during which such default continues.

2. Every such company shall also be liable to pay to all such persons as are injured by reason of the non-compliance with such requirements * * * such damages as they are legally entitled to.

For the purposes of this appeal it must be taken as having been established that the appellant was injured by reason of the fact that the coupler connecting two of the members of one of the trains of the respondent company on which the appellant was working at the time was not in such a condition that it could be “uncoupled without the necessity of men going in between the ends of the cars.”

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On the questions of law involved the conclusions I have reached are as follows.

I think the duty imposed by section 264 “to provide and cause to be used” modern and efficient apparatus, appliances and means is a continuing duty. I also think that the clause,

with couplers that couple automatically by impact and which can be uncoupled without necessity, etc.,

while it grammatically qualifies the verbs “couple” and “connect,” designates an essential attribute of the “apparatus, appliances and means” to be employed for connecting the different members of the train, and that it is a requirement of the statute that the apparatus so employed shall fall within the description contained in that clause. It follows, I think, that the duty to “provide and cause to be used” efficient apparatus, etc., whether it is to be regarded as absolute or qualified duty, involves the duty to maintain the coupling apparatus in such a state that it will fulfil the condition of being capable of being uncoupled as provided by sub-section (c).

The next point is whether the duty imposed by this section is an absolute or qualified duty, and if qualified, what is the nature of the qualification? In the first place it seems to me to be too clear for argument that the common law doctrine of common employment cannot be imported as a qualification. I think that does not require discussion.

In the next place I do not think the absolute language of the statute can be read as importing only a duty to see that ordinary care is taken for the providing and maintaining the apparatus required. I think it may be assumed that the legislature was satisfied

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that the requirements of the section were not impracticable or, at all events, that any suggestion to the contrary had been fully met by the provision contained in sub-section 7. On the other hand I think there is sufficient ground, having regard to the fact that section 386 provides for a penalty for non-compliance, for thinking the legislature did not intend to punish every case of non-compliance, then the circumstances bring it within the category of those cases which, in the language of lawyers, fall under the head “inevitable accident.” That is my view of the construction of the section. I may add, however, that what I am about to say with regard to the evidence would be equally conclusive in favour of the appeal if the proper view were that the duty imposed was a duty that the company could discharge by seeing that all ordinary measures had been taken to provide and maintain the appliances mentioned.

In either view it seems clear that the failure of the coupler to work cast the burden of explanation upon the defendant company; and in this view, which appears to have been the view of the learned trial judge himself, the jury ought to have been told that the fact that the coupler failed to work cast upon the company the onus of proving in fact such circumstances as would support a defence of “inevitable accident,” or at least the burden of shewing that ordinary care had been taken in the providing and maintaining of the coupling apparatus. The jury might have awarded a verdict in favour of the appellant because they were not satisfied with the company’s explanation of the accident, as, for example, being doubtful on proper judicial grounds whether the facts were being fairly and fully disclosed to them; or, on the other hand, they

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might have found that in some particular there had been a failure to perform the duty to exercise due care. The jury have found plainly enough that there was negligence. There was, they say, a negligent failure to inspect. I do not see how (subject to the point I am about to mention) it is possible on the evidence before us to refuse to give effect to this verdict. The learned trial judge was obviously dissatisfied with the evidence of several of the witnesses called on behalf of the company, and I do not think we can possibly say that the jury were not entitled to reject that evidence. The only point upon which I have had any doubt is whether or not there ought to be a new trial. The objection taken by Mr. Dennison that the learned trial judge did not in his charge bring to the attention of the jury the elements in the company’s case which it would be their duty to consider was certainly not without substance; but in view of the opinion of the majority of the court that the appeal should be dismissed it is unnecessary to consider that point.

Anglin J. — Although I was unavoidably prevented from hearing the conclusion of the argument in this case, I understand that it is the desire of the parties that J should take part in the judgment.

In my opinion this appeal should not succeed. In answer to the question, “In what did the negligence of the defendants consist?” the only finding of the jury is “Through lack of proper inspection.” All other charges of negligence preferred by the plaintiff have thus been negatived. Andreas v. Canadian Pacific Railway Co.[3].

As is pointed out by Perdue J.A.:—

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Failure to inspect was not in itself the direct cause of the accident. There must have been something wrong with the coupler which caused it to fail and the jury have made no finding as to this.

As put by Osier J.A. in Schwoob v. Michigan Central Railroad Co.[4]:—

Want of inspection, unless there was some existing defect which inspection would have disclosed, is not defect, or, by itself, negligence.

Three suggestions are made in regard to the cause of the failure of the coupler to operate—that there was a defect in it due either to original vice, or to a state of disrepair, or that the failure was due to the presence of ice in the cup or chamber.

The finding of lack of proper inspection is consistent with the existence of any one of these conditions. It is impossible to say which of them the jury had in mind. Indeed, the appellant himself suggests that the jury may have had in view some defect in the engine, which, it is said, was leaking steam. This possibility only serves to shew how inconclusive and unsatisfactory the finding really is.

There is not a tittle of direct evidence either of original defect or of a state of disrepair. The coupler is shewn to have been one of the best on the market — a standard appliance and such as admittedly met the requirements of section 264(c) of the “Railway Act.” The only indirect evidence of anything being wrong with it is that afforded by the fact of its failure to work. That might be due either to a defect of the mechanism or to the presence of ice or snow, and does not, therefore, in itself, afford any proof of the existence of either condition. The only direct evidence in the record upon this point is that of Neill, who says that, on subsequent examination made by him, ice was found in the cup or chamber in quantity sufficient

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to account fully for its failure to operate and that on the removal of this ice the coupler “worked fine.” He also says that it was not worn and that every part of it was in first-class condition. This evidence is uncontradicted. If it may be assumed that in this particular the jury dealt with the case upon the evidence, it may perhaps be inferred that they meant to find that a “proper inspection,” before the accident occurred, would, if made, have disclosed the presence of the ice afterwards found by Neill. They have not so found, however, and their finding is consistent with their having proceeded on an assumption of some entirely different defect which, on inspection, would have been discovered.

But assuming that the presence of the ice in the coupler is what they thought “proper inspection” would have detected, there are other serious difficulties in the way of sustaining their verdict. There is no evidence as to the “history” of the car carrying the refractory coupler for any period preceding the accident — nothing to shew when it was coupled to the adjoining car — nothing to enable us to say when the coupler had last been operated — nothing to inform us to what weather conditions it had been exposed —nothing to exclude the view that on the last occasion when the car should have been inspected, prior to its arrival at Melville, the coupler was free from ice and in perfect order. The car had arrived in the Melville yards forming part of a fast freight train only a short time before the accident and had been inspected. It is, therefore, against the sufficiency of this inspection that the jury must be taken to have pronounced.

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The evidence as to the inspection actually made at Melville is given by the men who made it — Neill and Couchman. Their evidence is that they inspected the cars forming the train according to instructions. They and a number of other fully qualified railway men in the employment of the defendants and in that of other railway companies testify that the inspection which is sworn to have been made is the only kind of inspection that is practicable in the case of a train stopping en route. This evidence is uncontradicted. It is not within the province of jurymen to constitute themselves experts on such a technical question of proper railway practice and, without any evidence to warrant such a course and against all the evidence before them, to find that the method of inspection prescribed is improper. Jackson v. Grand Trunk Railway Co.[5]. If the verdict means that the system of inspection was improper, viewed as a finding upon an ordinary question of fact it should be set aside, not as being against the weight of evidence, but as being against the evidence; Jones v. Spencer[6]. As Lord Herschell puts it, at page 538:—

I cannot myself say * * * that the jury have found their verdict upon the evidence.

Viewed as a finding upon a matter of technical knowledge it is still less defensible. Managers of Metropolitan Asylum District v. Eill[7]; Jackson v. Hyde[8]; Fields v. Rutherford[9].

But it is contended that the jury may have meant that the inspectors were negligent and did not carry out their instructions. It is admitted by every witness

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who gave evidence on the subject — although they say that it is of rare occurrence — that ice such as is said to have been found in the coupler in question might be there without any trace of its presence being visible on the outside of the coupler. The men who made the inspection both say:—

There were no visible signs to shew that there was anything wrong with that coupler.

They examined it again after the accident and by visual inspection could still see nothing wrong. The yard foreman, Taylor, corroborates them on this point. Ault, the plaintiff’s fellow-workman, called by him as a witness, says the same thing. The evidence of these witnesses is uncontradicted. Neill swears that the condition afterwards found by taking the coupler apart could not have been discovered by the inspection which it was his duty to make and which he and Couchman both say they actually made.

But negligence of Neill and Couchman in the actual inspection, if found, and properly found, would not have sufficed to sustain the verdict at common law, because the defence of common employment, although taken away by legislation of the Province of Saskatchewan, in which the accident happened, is available in the Province of Manitoba in which the action has been brought. The “Halley”[10]. The findings are insufficient to warrant a judgment under the “Workmen’s Compensation Act.”

The Court of Appeal for Manitoba has deemed it a proper exercise of their discretion and within their power to direct the entry of judgment for the defendant dismissing the action instead of ordering a new

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trial. No objection to this course is taken by the appellant. Upon this question of practice I am not disposed to interfere.

I am, for these reasons, of the opinion that the verdict for the plaintiff was properly set aside and that the judgment dismissing the action should be affirmed.

Appeal dismissed with costs.

Solicitor for the appellant: Geo. A. Elliott.

Solicitor for the respondents: Alex. Hutcheon.