Supreme Court of Canada
Canadian Northern Railway Co. v.
Diplock, (1916) 53 S.C.R. 376
Date: 1916-05-25
The Canadian
Northern Railway Company (Defendants) Appellants;
and
Norman Diplock (Plaintiff)
Respondent.
1916: May 10; 1916: May 25.
Present: Sir Charles Fitzpatrick C.J. and
Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE SUPREME COURT OF
SASKATCHEWAN.
Railways—Negligence—Ejecting trespasser from
moving train—Imprudence—Liability for act of servant.
As a train was moving away from a station,
where it had stopped, the conductor ordered a brakesman to eject two
trespassers from it. On proceeding to do so the brakesman found a man stealing
a ride upon the narrow ledge of the engine-tender and, in a scuffle which
ensued, the plaintiff, who was on the edge of the ledge but was not seen by the
brakesman owing to the darkness was pushed off the train and injured. In an
action for damages, the jury found that the brakesman had been at fault in
attempting to eject the man whom he saw while the train was in motion and that
it was "dubious" whether he was aware of the presence of the
plaintiff in the dangerous position.
Held, per Fitzpatrick
C.J. and Idington and Anglin JJ. (affirming judgment appealed from (9 West.
W.R. 1052)), that the reckless indifference of the brakesman, in circumstances
in which he ought to have been aware of the presence of the plaintiff, was a
negligent act for which the railway company was liable.
Per Davies and
Brodeur. JJ. dissenting.—As it was not shewn by the evidence nor found by the
jury that the brakesman was aware of the presence of the plaintiff in a
dangerous position the plaintiff, being a trespasser, could not recover damages
against the company for the injuries he sustained.
APPEAL from the judgment of the Supreme Court
of Saskatchewan,
affirming the judgment entered
[Page 377]
at the trial by Elwood J., on the findings of
the jury, in favour of the plaintiff for damages assessed at $1,730 with costs.
The circumstances of the case are stated in
the head-note.
O. H. Clark K.C. for the appellants.
Chrysler K.C. for the respondent.
The Chief
Justice.—The questions submitted to the jury are so
involved and so numerous as to lead necessarily to unsatisfactory results. They
do not, however, appear to have been objected to.
From the answers we must assume the following
facts are found: (a) that plaintiff, stealing a ride on the
company's train, sought refuge on the ledge of the tender with the witness
Thacker; (b) that the brakesman Wagner knew that both men were on the
team when it started from the station; (c) that, instructed by the
conductor to put them both off, he went forward and ordered them both off; (d)
that Wagner, without any attempt at investigation to ascertain the relative
positions of the men, shoved Thacker off and in so doing shoved the plaintiff
off also; (e) that the reasonable and probable result of Thacker being
put off was that plaintiff would go also and that the speed of the train made
it dangerous to put the men off at the time.
Both plaintiff and Thacker were trespassing,
but, although the general principle is that a man trespasses at his own risk,
it is undoubted that in this instance it was the duty of the railway officials
when aware of the presence of the two trespassers not to put them off in such a
manner as to endanger their safety. Section 281 of the "Railway Act,"
although
[Page 378]
not directly in point here, is an application of
this general principle, particularly when read with the instructions of the
company that the train should be stopped before putting anybody off.
Whether, in the circumstances, Wagner was acting
within the scope of his employment in view of the evidence is doubtful, but the
point was not raised either here or below and he apparently thought that he had
the authority of the conductor. Vide Hutchins v. London City Council.
There is no doubt that on the findings of the
jury, and there is ample evidence to support them, unnecessary violence was
used towards Thacker and his removal from the train in the circumstances
endangered his safety. If the accident had happened to Thacker there would be
little doubt that he would have his recourse against the company. Now, as to
the plaintiff, Wagner had reason to believe that both men were together,
otherwise he would not have ordered them both off. And in shoving Thacker off
the train improperly he caused the injury of which plaintiff complains. If
Wagner Was acting within the scope of his employment, and this apparently is
not denied, plaintiff must succeed. The principle of law is that a tort-feasor
must be assumed to have contemplated and be liable for all those injuries which
result from the wrongful act together with such incidents as a reasonable man
might in the circumstances have expected to result in the ordinary course of nature.
Fletcher v. Smith,
in 1877, at pages 787, 788; Ratcliffe v. Evans. The rule of the
ordinary course of nature and probable consequences "is after all only a
guide to the exercise
[Page 379]
of common sense." And the jury have found
on the evidence that the fall of plaintiff from the train was the reasonable
and probable consequence or result of the violence used improperly to eject
Thacker. When we consider the dark night, the narrow ledge on which both men
stood, the unnecessary violence of Wagner's attack on Thacker and his knowledge
of the plaintiff's presence somewhere on the ledge, the finding of the jury
must be sustained.
I would dismiss with costs.
Davies J. (dissenting).—This is an appeal from a judgment of the Supreme
Court of Saskatchewan affirming the judgment for the plaintiff entered by the
trial judge on the findings of the jury. Mr. Justice Newlands dissented on the
ground that the plaintiff was one of two trespassers stealing rides upon the
railway train and that the trespasser's only right in such cases is that
the railway company must not wilfully
injure him or unnecessarily and knowingly increase the normal risk by
deliberately placing unexpected dangers in the way
and that it had not been proved or found by the
jury that the company or its servants had done so.
The admitted facts are that the plaintiff and
one Thacker were stealing rides upon the appellant's railway and were
discovered by the conductor while the train stopped at Hanley Station, a small
side station on the railway line. The conductor ordered them off the train and
they got off and walked across the track to the east side and hid themselves
behind some box cars there. The plaintiff says that as soon as the train began
to move he and Thacker climbed on again between the tender of the engine and
the baggage car, Thacker going ahead, and that when he (Diplock)
[Page 380]
got up, Thacker had already taken up a position
alongside of the ladder which ran down the centre of the back of the tender and
that he was standing on the ledge of the tender. He says:
Thacker was holding on to the ladder and he
(Diplock). was holding on to the hand-rail at the outside.
His position was either on the ledge of the
tender or on the steps leading to it. The only light there was what was shining
out of the car door. The brakesman says he only saw "just one man" on
the back of that tender, that he "did not know that the other man was on
the outside on the west side" and that he "did not see him at the
time."
Now whether the plaintiff was actually upon the
ledge holding on the hand-rail or was on the step and so holding is uncertain.
The jury did not find that he either saw or should have seen him though they
answered the question whether he should have investigated where Diplock was
before shoving off Thacker in the affirmative. Answering the question of fact
"whether Wagner knew that Diplock was in the position he was" they
say "dubious." The question whether he should have investigated and
found out is one of law, not of fact for the jury. The facts as stated by the
brakesman are that, when he opened the door of the baggage car, he saw only one
man on the ledge, that he called to him and asked him to come in the car; that
the man refused, and he (Wagner) grappled with him and pushed him off. It may
well be that if Thacker who was seen by Wagner and pushed by him had been
injured the company would under the findings of the jury as to the dangerous
rate of speed of the train have been liable to him in damages. But how can that
liability arise with respect to a trespasser whose presence there the brakesman
did not
[Page 381]
know of ? The jury were unable to find that
Wagner knew that Diplock was in the position he was. Without such a finding, it
is impossible for me to hold that the company should be held liable.
Plaintiff was a trespasser. He was trespassing
at his own risk. The company was undoubtedly under a duty not wilfully to
injure him. But how could they be said to have wilfully injured him when they
did not know of his presence there? It is said they must be held to have known
because the conductor told the brakesman there were two men stealing a ride and
to put them off. But the brakesman swears that when he went to put them off he
only saw one man and did not see the other. The jury cannot have
disbelieved him or they could not have found it was. "dubious"
whether Wagner knew that Diplock was in the position he was if the knowledge of
Diplock's position at the time he pushed Thacker off was known to Wagner, the
brakesman, there might be a very strong contention made that the company was
liable for damages to Diplock for any injuries he sustained on the ground that
he had been wilfully injured by Wagner's improper and illegal action. But he
could only recover in cases where there was either wilful injury caused to him
or where the deliberate action of one of the company's servants placed
unexpected dangers in his way. The company could not be held liable to a
trespasser for the mere negligence of their servants. There must be much more
than negligence. There must be deliberate or wilful wrongful action causing the
injuries complained of.
If Wagner did not know and, in the absence of a
finding to the contrary, we should accept the evidence that he did not, then no
such responsibility arises.
I am quite at a loss to understand how it can be
[Page 382]
successfully argued that because the brakesman
was told to go and put off two men who were stealing rides and in discharging
that duty he found only one man that he was bound before putting that one off to
institute a search for the other. He may well have assumed that when he gave
the order to the man he did see to get off the other man whom he did not see
obeyed it. But whether that be so or not he neither saw nor knew of the
presence of, the other man (the plaintiff) and therefore owed him no duty.
The law on the subject of the liability of a
railway company is laid down by the Judicial Committee of the Privy Council in
the case of Grand Trunk Railway Co. v. Barnett, at page 369, as
follows:—
The railway company was undoubtedly under a
duty to the plaintiff not wilfully to injure him; they were not entitled,
unnecessarily and knowingly to increase the normal risk by deliberately placing
unexpected dangers in his way, but to say that they were liable to a trespasser
for the negligence of their servants is to place them under a duty to him of
the same character as that which they undertake to those whom they carry for
reward. The authorities do not justify the imposition of any such obligation in
such circumstances. A carrier cannot protect himself against the consequences
which may follow on the breach of such an obligation (as for instance, by a
charge to cover insurance against the risk), for there can be no contracts with
trespassers; nor can he prevent the supposed obligation from arising by keeping
the trespasser off his premises, for a trespasser seeks no leave and gives no
notice.
The general rule, therefore, is that a man
trespasses at his own risk. This is shewn by a long line of authorities, of which
Great Northern Ry. Co. v. Harrison,
Lygo v. Newbold
and Murley v. Grove,
are familiar examples.
Accepting this law and applying it to the
findings of the jury and the facts as admitted, I am of opinion that the appeal
should be allowed and the action dismissed with costs.
[Page 383]
Idington, J.— The respondent and one Thacker were stealing a ride on
appellant's train. When, as it was starting, the conductor said to the
brakesman, Wagner,
There are two men on the end of the car; go
and put them off.
It was at night time. The men were standing on
the ledge of the tender next the baggage car. Wagner proceeded to the place
indicated and tried ineffectually to get Thacker into the baggage car and then
said to him "well get off" and gave him a shove which had the desired
effect.
The jury find the train was then moving at a
speed such as to make it dangerous for him to alight. The result upon
respondent of the shoving of Thacker by Wagner appears in the answers to the
questions, as follows:—
1. Q. Was the plaintiff injured by the
wheels of the C.N.R train passing over his feet? A. Yes.
2. Q. How did he get under the train? A.
Result of being pushed.
(a) Q. Did Wagner assault Thacker by
kicking or pushing? A. Yes.
(b) Q. Where was Diplock when Wagner
attacked Thacker? A. On ledge of tender, west of Thacker.
(c) Q. Was the reasonable and probable
result of Wagner kicking or pushing Thacker that Diplock would be pushed off
the train? A. Yes.
(d) Q. Did Diplock fall off the train as a
result? A. Yes.
(e) Q. Was that the cause of his injury? A.
Yes.
(f) Q. Was Wagner's conduct towards Thacker
adopted with the object of putting Thacker off the train? A. Yes.
(g), Q. If yes, was Wagner acting in course
of his employment? A. Yes.
(h) Q. Did Wagner know that Diplock was in
the position he was? A. Dubious.
(i) Q. If he did not know, should he have
investigated to find out where Diplock was before he shoved or kicked Thacker?
A. Yes.
The other questions and answers relevant to the
issues involved in these are as follows:—
[Page 384]
(m) Q. Was the speed of the train when
ordered to get off such as to make it dangerous for him to alight? A. Yes.
(n) Q. Did Wagner know it was dangerous, or
should he have known, having regard to all the circumstances? A. Yes.
(o) Q. Was the conduct of Wagner reasonable
and proper? A. No.
(p) Q. Was Wagner, in ordering Thacker and
Diplock off the train acting in the course of his employment? A. Yes.
The finding of the jury as to the rate of speed
of the train shews it was an unlawful assault and battery that was thus
committed upon Thacker by Wagner. As a legal result thereof he and his
employers are liable for the consequences thereof to others.
This is not a case of negligence in which other
considerations might have been involved as in Grand Trunk Railway Company v.
Barnett,
so much discussed in the case.
. It is the law involved in the well known squib
case Scott v. Shepherd,
that should be our guide herein subject to the qualifications to be found
as the result of later development of the law resting upon the principle laid
down in that case.
The above question (c) and answer thereto seems
to me to cover all that need concern us as to these qualifications.
The undisputed terms of the conductor's order
indicated to the brakesman that there were two men at the place where the
scuffle was had and that both were to be dealt with. Thus the answer of the
jury was amply justified by the facts.
The questions of wilfulness and actual accurate
knowledge of how these men stood though much discussed below and in argument
here and held by the jury "dubious" seems to me beside the question.
Assuming in such case the brakesman had, as I
[Page 385]
imagine probable, authority to arrest Thacker
and hand him over to the police as a trespasser and had been merely discharging
that lawful duty, when a scuffle ensued as result of Thacker's resistance, and
the respondent had as part of the consequences accidentally been knocked off
the car and injured he, as a trespasser, could have had no remedy.
I assume in stating the law thus that there had
been in such supposed case no undue violence on the part of the brakesman and
that he had been duly and properly discharging his duty to arrest and keep
Thacker in charge.
I desire only to illustrate the wide difference
that exists between the case of a man doing an unlawful act and that of a man
doing a perfectly legal act.
In the latter case knowledge and wilfulness
might have a very important bearing in determining the consequences of what one
so placed should be held liable for in a way that is not open to him doing an
unlawful act to urge on his behalf.
There was much made in argument, and by the
learned judge who dissented in the court below, of the inconsistent nature of
the questions first put and later by reason of the learned trial judge putting
the following question:—
(j) Q. If Diplock jumped from the train and
was not shoved off did he jump because of any order or command of Wagner? A.
Yes.
If there had been nothing else in the case than
this question and some others following it evidently related thereto or
intended to be so there would have to be a new trial to determine the fact of
whether Diplock in fact did jump in obedience to what was said and was not
pushed off for strangely enough there was no question put to elicit the fact.
[Page 386]
The putting of such an hypothetical case and
getting an answer thereto leads nowhere.
However, the whole of these academic questions
relative to an assumption of jumping off are rendered harmless as they are
needless by the express answer to the second question and others I have quoted.
I think the appeal should be dismissed with
costs.
Anglin J.—Very reluctantly, because of the unmeritorious features of the
plaintiffs case and because I realize and appreciate the grave dangers and
difficulties to which trainmen are exposed in dealing with such characters as
the plaintiff and his companion, Thacker, when stealing rides on trains, I have
reached the conclusion, that this appeal cannot succeed. A perusal of the
record has left me under the impression that, if trying it without a jury, I
should not improbably have dismissed the action on the ground that it had not
been satisfactorily shewn that the plaintiff was injured as a result of what
took place between the brakesman, Wagner, and Thacker. But findings of the jury
which have not been seriously attacked establish that the plaintiff was pushed
or forced off the defendant company's train, while it was travelling at a speed
which made it dangerous for him to alight, as the result of an attempt made by
Wagner, in carrying out orders of the conductor, to force the plaintiff's
companion Thacker off the train.
I fully agree that if Wagner had not had reason
to believe that the plaintiff, Diplock, was in the narrow and admittedly
dangerous space between the tender of the engine and the baggage car, when he
pushed or shoved Thacker, no liability to Diplock would have been incurred. The
plaintiff was a trespasser and liability to him would not arise from any mere
negligence.
[Page 387]
But the railway company's employee was not on
that account
entitled unnecessarily and knowingly to
increase the normal risk by placing unexpected danger in his way.
Grand Trunk Railway v. Barnett,
at page 369.
The jury has not found that Wagner knew
"that Diplock was in the position he was." They have found that
"he should have investigated" to find where Diplock was before he
"shoved or kicked Thacker." Wagner's evidence is that, as the train
was about to leave Hanley Station, the conductor said to him,
There are two men on the end of the car; go and
put them off.
He immediately proceeded to do so. He opened the
door of the baggage car and saw Thacker standing on a ledge at the back of the
tender. He could see only one-half of the back of the tender. The light was
weak and uncertain. He says he did not know that the other man was on the west
side and that he could not see him. Although he "assumed" there were
two men there, he did not take any steps to locate the second man. He did not
concern himself about him.
Reading the jury's findings in the light of this
evidence, I understand them to mean that, although Wagner did not see Diplock
and did not know his exact position, he had reason to believe that he was
somewhere in the narrow space between the tender and the baggage car and acted
on that assumption, and that in failing to look for him before wrongfully
dealing with Thacker in a way which necessarily increased the risk to anybody
else in the perilous position in which he had reason to believe the plaintiff
might be, he had disregarded the right which even
[Page 388]
a trespasser has that he should not be wantonly
or recklessly exposed to unnecessary risk by one who has reason to believe that
his acts will have that effect. The duty of a common carrier to a trespasser is
thus stated by Bailey J. of the Supreme Court of Illinois in Chicago,
Burlington and Quincy Railroad Co. v. Mehlsack, at
page 20:—
His duty rests merely upon the grounds of
general humanity and respect for the rights of others, and requires him to so
perform the transportation service as not wantonly or carelessly to be an
aggressor towards third persons whether such persons are on or off the vehicle.
An, observation of Lord Robson, at page 371 of
the report of Grand Trunk Railway Co. v. Barnett, is apt to mislead.
Referring to the speech of the Earl of Halsbury in Lowery v. Walker, at page 13 he quotes His
Lordship as having said that
the word "trespasser" would have
carried the learned counsel for the defendant ail the way he wants to get
i.e., one would
infer from the use made of this passage, to the conclusion of non-liability:
But the rest of Lord Halsbury's sentence was
to a somewhat difficult and intricate
question of law upon which various views might be entertained.
In the same case Lord Shaw of Dumferline had
pointedly withheld his assent to the pronouncements of Darling J. and
Vaughan-Williams L.J., in the lower courts, as to immunity for injuries caused
to mere trespassers.
Wagner, though aware of Diplock's probable
presence in a position of peril, seems to have allowed himself to be carried
away by excitement, caused, no doubt, by Thacker's successful resistance to his
efforts to draw him within the baggage car and, with reckless
[Page 389]
indifference to the consequences either to Thacker
or to Diplock, tried to push the former off the train. His attitude towards
Diplock is probably correctly expressed in his answer
I did not bother my head about him.
Under these circumstances I think the verdict
and judgment for the plaintiff should not be disturbed.
Brodeur.J. (dissenting).—The jury in their verdict have not found that the
brakesman Wagner knew that the respondent, Diplock, was in the position he was
in when Wagner tried to push Diplock's companion off the car. Diplock had no
business to be on the car of the appellant company; he was even stealing a ride
at the time.
The Privy Council in the case of Grand Trunk
Railway Co. v. Barnett,
has decided that
although the common carriers are under a
duty to a trespasser not wilfully to injure him, they are not liable to him for
mere negligence and that as the accident was due to the negligence of the
carrier's servants and not to any wilful act the trespasser was not entitled to
recover.
Applying that decision to the present case I
find that the plaintiff respondent was not wilfully injured because the jury
have been unable to state in their verdict whether the brakesman knew that
Diplock was there.
I think the appeal should be allowed and that
the action should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Borland,
McIntyre, McAughey & Mowat.
Solicitors for the respondent: Bence,
Stevenson & McLorg.
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