Robinson v. Grand Trunk Railway Co., (1913) 47 SCR 622

Supreme Court of Canada

Robinson v. Grand Trunk Railway Co., (1913) 47 S.C.R. 622

Date: 1913-05-06

Albert Nelson Robinson (Plaintiff) Appellant;

and

The Grand Trunk Railway Company of Canada (Defendants) Respondents.

1913: April 8, 9; 1913: May 6.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Railways—Carriage of passenger—Special contract—Notice to passenger of conditions—Negligence—Exemption from liability.

P., at Milverton, Ont., purchased a horse for a man in another town who sent R. to take charge of it. P. signed the way-bill in the form approved by the Board of Railway Commissioners, which contained a clause providing that if the consignee or his nominee should be allowed to travel at less than the regular fare to take care of the property the company should not be liable for any injury to him whether caused by negligence or otherwise. R. was not asked to sign the way-bill though a form indorsed provided for his signature and required the agent to obtain it. The way-bill was given to R., who placed it in his pocket without examining it. On the passage he was injured by negligence of the company’s servants.

Held, that R. was not aware that the way-bill contained conditions.

Held, also, Fitzpatrick C.J. dissenting, that the company had not done all that was incumbent on them to bring notice of the special condition to his attention.

Judgment of the Court of Appeal (27 Ont. L.R. 290) reversed and that of the trial judge (26 Ont. L.R. 437) restored.

APPEAL from a decision of the Court of Appeal for Ontario^[1] reversing the judgment at the trial^[2] in favour of the plaintiff.

[Page 623]

The material facts are stated in the above head-note.

McKay K.C. and Haight for the appellant. The appellant could not become a party to this special contract without his assent, obtained expressly or by reasonable implication. It was not so obtained and the case is within the principle of Parker v. South Eastern Railway Co.^[3], approved in Richardson v. Rowntree^[4], and Bate v. Canadian Pacific Railway Co.^[5] See also Stephen v. International Sleeping Car Co.^[6]; Hooper v. Furness Railway Co.^[7]; Marriott v. Yeoward Bros.^[8]; Ryckman v. Hamilton, Grimsby and Beamsville Railway Co.^[9]

D.L. McCarthy K.C. for the respondents. If appellant was lawfully on the train he could only be so by the contract with the company.

The company may limit its liability for injury to a passenger through negligence. Parker v. South Eastern Railway Co.^[10]; Burke v. South Eastern Railway Co.^[11] The appellant’s assent to the limitation by the contract is clearly implied.

The fact that he did not read the conditions did not free him from their effect. Harris v. Great Western Railway Co.^[12]; Coombs v. The Queen^[13].

[Page 624]

THE CHIEF JUSTICE (dissenting).—I am very clearly of opinion that this appeal should be dismissed. The appellant was travelling on a freight train where he had no right to be except under the special agreement made with respect to the carriage of the horse of which he was presumably in charge. That special agreement contained a limitation of the company’s liability in case of accident, and I agree with the judges below who found that the company did everything that was reasonably sufficient to draw the appellant’s attention to that limitation.

DAVIES J.—The judgments below proceeded upon the assumption that the plaintiff must either have been travelling under the contract made between the owner of the horse and the railway company and that he was bound by such contract, or that he was a trespasser to whom the company owed no duty.

I think his position was not, under the circumstances of this case, one or the other.  I do not think he was travelling under and by virtue of a contract, which was made between his master and the company without any knowledge on his part of its conditions which he was not asked to sign or agree to, and which contained special clauses relating to him as man in charge of the horse not called to his attention, and of which he had no knowledge. One of these special clauses printed in the body of the contract declared the company.

to be free from liability in respect of his death, injury or damage; and whether it be caused by the negligence of the company or its servants or employees or otherwise howsoever.

It was headed “Grand Trunk Railway System”—“Live Stock Special Contract.” On the margin was written

[Page 625]

“Pass man in charge half-fare.” The plaintiff was the man in charge of the horse to be carried by the contract. A special notice on the back required the company’s agents to see that such man wrote his own name on the back of the contract. This may have been for the purposes of identification merely; but the evidence is clear that the plaintiff had not his attention called in any way to this clause by which the company attempted to contract themselves out of any liability for damages caused by their own or their servants’ negligence.

The plaintiff’s position on the car was certainly not that of a trespasser, but rather that of a licensee. The contract was not made with him or by him, and he cannot be held bound by provisions of such a startling character as the contractual exemption relied upon here unless his assent had been first obtained by his special attention being directed to the clause affecting him and his acceptance of it either expressly or impliedly.

There was nothing when this “Live Stock Special Contract” was handed to him to lead him to believe that it contained any such special exemption of liability with respect to his carriage as the one I have cited.

If the plaintiff had been told the substance of this condition respecting his carriage as man in charge, or had he read the condition and in either case had not objected, but had accepted his passage with such knowledge, he would probably have been held to have assented to the terms of the condition and been bound by it. But there not being, in my opinion, any obli-

[Page 626]

gation on him to read this “Live Stock Special Contract,” and he not having, as a fact, read it, or been invited to do so, or had his attention called to the condition with respect to himself, I cannot think he was bound by it.

The cases cited of Parker v. South Eastern Railway Co.^[14], and in the Court of Appeal^[15], and Richardson, Spence & Co. v. Rowntree^[16], amply support the conclusion that in a case like the present one, the company has not the right, under such circumstances as are here proved, to invoke a contractual exemption from liability arising out of their own or their servants’ negligence, as this contract contains.

They fail because the plaintiff, the man in charge of the horse, had no knowledge of the condition they seek to invoke against him and because their servants neglected to do what was reasonably sufficient to bring such notice to his knowledge or attention.

I would allow the appeal with costs.

IDINGTON J.—The appellant was sent by Dr. McCombe from South River to bring him from Milverton a horse purchased there by a friend, Dr. Parker, to be shipped by him from Milverton to South River.

The respondents required as a term of receiving such a shipment for a distance greater than a hundred miles, that the animal shipped should be accompanied by a man in charge of it. Hence the necessity for Dr. McCombe sending appellant to Milverton to

[Page 627]

take charge of the horse and travel on same train as it did.

Dr. Parker signed a contract of shipment as required by respondents’ agent in a form which had the approval of the Board of Railway Commissioners. He paid nothing. The charges were to be paid by Dr. McCombe. The form of contract signed by Dr. Parker expressly absolved the respondents from all liability in case of accident happening the man thus in charge of the horse.

The contract was not read by Dr. Parker, but he had the opportunity to have read it if he chose.

The respondents’ agent was present when it was signed, but nothing was said by any one as to its terms. Dr. Parker had suggested mailing it to Dr. McCombe, but the company’s agent said no, let the man take it as he might need it for identification by the conductor. Dr. Parker accordingly folded it up and handed it to appellant, who put it in his pocket without reading it and never knew what it contained until a week or so after the accident in question.

Dr. McCombe on getting it then from respondents paid the charges, which consisted of freight for the horse and half-fare for the appellant’s transportation.

There was, as result of respondents’ negligence, a collision between another train and the train on which the appellant travelled with the horse, whereby the appellant suffered serious damages for which respondents would admittedly be liable even if carrying gratuitously unless prohibited by the terms of the contract I have referred to.

There was indorsed on the back of the contract a memorandum which was as follows:—

[Page 628]

GRAND TRUNK RAILWAY SYSTEM.

LIVE STOCK.

TRANSPORTATION CONTRACT.

From............................................................................

To.................................................................................

Date.................................................................... 19     .

Shipper.......................................................................

Names of persons entitled to a free pass or reduced fare in charge of this consignment—

Agent.

NOTE.—Agents must require those entitled to free passage or reduced fare in charge of Live Stock under this contract to write their own names on the lines above.

Conductors may, in cases where they have reason to believe contracts have been transferred, require the holders to write their names hereon to compare signatures.

This contract must be punched by Conductors of each Division.

This was never filled up or signed by any one.

The question raised is whether or not a man occupying the position of the appellant put in charge of the said horse and travelling as its caretaker, is without being made expressly aware of the terms of the contract his employer had entered into, debarred by virtue thereof from all right of recovery for injury suffered by “reason of the negligence of the company’s servants or otherwise howsoever,” as the terms of exemption I have referred to put it.

In regard to this question there is some similarity between this case and the case of Bate v. Canadian Pacific Railway Co.^[17] There the signature of the passenger was got toy telling her such signing was necessary for identification. Here no signature or assent of any kind was required, but incidentally to

[Page 629]

handing appellant the contract instead of mailing it as proposed by Dr. Parker, it was stated in appellant’s presence that he might need it for identification. And as it turned out he never needed it for such purpose.

It seems to me the appellant, who was not asked to sign anything, but thus thrown off his guard, has quite as much ground to be excused as the plaintiff in that case who was induced to sign what she could not read by reason of sore or defective eyes, but did sign, though she might have insisted on the paper being read to her.

Then we have the cases of Richardson, Spence & Co. v. Rowntree^[18], following Parker v. South Eastern Railway Co.^[19], and Henderson v. Stevenson^[20], which in principle seem to cover the whole ground involved in the dispute herein by requiring knowledge on the part of those concerned of the conditions pleaded and relied upon. The appellant was invited to trust himself to the care of respondent in discharge of its duty to carry appellant safely, and it pleads something his master, but not he, agreed to.

It seems rather a startling proposition of law that an employer can of his own mere will and motion so contract that his servant shall be treated as of less value than a horse or dog shipped as freight. It seems to me to come to that if we are to uphold the judgment appealed from, for there is no fair ground on the facts to impute to appellant an assent to something he knew nothing of.

If appellant had by his occupation been shewn to be accustomed to undertake such services, there might

[Page 630]

have been some basis for inferring assent to a some thing he in fact knew nothing of, but ought to have known.

If the principle of identification is to be carried so far, where would it not extend if applied in other relations of contractors with those for whom they undertake something to be done and on behalf of those in their employment presume, without their knowledge or assent, to bind them to assume all risks?

All the appellant was concerned with was that he was to be carried safely and for aught he knew gratuitously if you will.

All he knew was that the railway company needed him to go.

Is there anybody else than railway managers and lawyers who can be conceived of as presuming that a man so sent for and invited by the company to ride upon its car in order to serve its purposes of protecting itself must know that he has agreed without recourse to be killed by the negligence of their servants “or otherwise howsoever.” Not only is that to be presumed as part of common knowledge, but also that the horse had to be paid for in such case, but not the man. Indeed, also he is supposed to know that the Railway Commissioners of Canada were such a set of humorists as to have approved thereof.

The learned trial judge by what transpired at the trial must be taken to have ‘reserved to himself to dispose of what was not submitted to the jury and he seems to have had no doubt in regard to essential facts which they were not asked in regard to and did not pass upon.

I think the appeal must be allowed with costs throughout and the judgment of the learned trial judge be restored.

[Page 631]

DUFF J.—The defendant was de facto accepted as a passenger on their train by the railway company which thereby primâ facie incurred an obligation to use reasonable care to carry him with safety. The company says that this primâ facie obligation was limited by the condition in the shipping bill. I do not understand that it was contended on behalf of the company that Dr. Parker, who signed the shipping bill on behalf of the consignee, had authority to bind the appellant by entering into an agreement on his behalf limiting this obligation. I am not required by law to hold that he had such authority and there is no evidence justifying a finding that the appellant had made him (or held him out as,) his agent in fact for that purpose. The evidence, moreover, is clear that the condition referred to was not actually brought home to the knowledge of Dr. Parker or of the appellant. In these circumstances the contention of the company is and must be that the company’s agent took reasonable steps to notify the appellant that they were accepting him as a passenger on the special terms contained in the shipping bill and that the appellant’s conduct in not perusing the bill shewed that he was content to accept the conditions without reading them; and that he must, consequently, in law be held to be bound by it. I think this contention must be rejected. The gist of it is that a normal person in the situation of the appellant would have read the bill unless he was content to abide by any reasonable conditions it might contain. I am not obliged ‘by any rule of law to say that that is so. Treating the question as a matter of fact I think it is not so. I think the appeal should be allowed and the judgment of the trial judge restored.

[Page 632]

ANGLIN J.—I am unable to discover any distinction in principle between this case and such cases as Richardson, Spence & Co. v. Rowntree^[21]; Henderson v. Stevenson^[22]; Parker v. South Eastern Railway Co.^[23]; and Bate v. Canadian Pacific Railway Co.^[24] Upon evidence warranting such a finding the trial judge held that the plaintiff was unaware of the special conditions contained in the shipping contract under which the defendants claim exemption from liability to him for personal injuries, and, if not expressly, I think impliedly, that neither the circumstances under which he received the contract nor what was done by the defendants’ agent would suffice to convey to his mind (or “to the minds of people in general”) the fact that it contained special conditions affecting him or would justify imputing to him notice of them. The learned judge says that the plaintiff had “neither notice nor knowledge” of the special terms. By this I understand him to have meant that the plaintiff had not notice of any kind, actual or constructive. As put by Mellish L.J., in Parker v. South Eastern Railway Co.^[25], at page 423:—

The proper direction to leave to the jury in these cases is, that if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew (there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions.

It is this “reasonable notice” that I understand the learned trial judge to negative in the present case

[Page 633]

by the word “notice,” which he uses in contradistinction to the word “knowledge” by which he negatives actual notice.

If, however, the learned judge did not find that the defendants had failed to do what was necessary to bring the special conditions in the shipping contract to the attention of the plaintiff, treating him as a man of ordinary intelligence and acuteness, the Court of Appeal had power to make that finding (Ont. Jud. Act, sec. 53; Ont. C.R. No. 817), and upon my view of the evidence should have made it. Our statutory duty is to render the judgment which the Court of Appeal should have given.

On the single ground that the present case is governed by the authorities above cited, and without expressing any opinion upon the other interesting points taken by the appellant, I would, with respect, allow this appeal with costs in this court and the Ontario Court of Appeal, and would restore the judgment of the learned trial judge.

Appeal allowed with costs.

Solicitor for the appellant: W.L. Haight.

Solicitor for the respondents: W.H. Biggar.