Supreme Court of Canada
Mitchell v. Canadian National Railway Co., [1975] 1 S.C.R. 592
Date: 1974-02-12
Steven Mitchell, an infant by Vincent D. Mitchell, his guardian ad litem, and the said Vincent D. Mitchell (Plaintiffs) Appellants;
and
Canadian National Railway Company (Defendant) Respondent.
1973: November 26, 27; 1974: February 12.
Present: Ritchie, Spence, Pigeon, Laskin and Dickson JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION
Negligence—Occupiers Liability—Breach of duty to warn licensees of unusual risk—Railway Act, R.S.C. 1970, c. R-2, s. 214(1)(a)—Contributory Negligence Act, R.S.N.S. 1967, c. 54.
The infant appellant, aged nine, had decided to toboggan at a place accessible from a path along a railway embankment. The well trod path inside the railway right of way was in general use. There was encrusted snow on the path and the area was slippery. The child tripped on a shrub or bush protruding above the surface of the icy embankment, on the right of way, and slid down into the way of a train. The trial judge treated the injured boy as a licensee and found that there had been no negligence on the part of the railway company. The Appeal Division supported the findings of fact at trial but thought that the injured boy was a trespasser.
Held (Ritchie J. dissenting): The appeal should be allowed.
Per Spence, Laskin and Dickson JJ.: A number of the findings of the trial judge were conclusions of law rather than findings of fact alone. What is missing from the consideration by the Courts below is necessary concern with the condition of the path and of the embankment lying close to the tracks as this was a travelled area. There was a foreseeable risk of harm especially to children. The absence of warning given by a sign or otherwise is enough to establish liability. Mere knowledge of likely danger is no longer any
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more exonerative of a licensor than of an invitor and the duty of care once established on the facts is not dissolved merely because the person to whom the duty is owed knows that he may be exposing himself to some danger.
Per Pigeon J.: There is no basis for holding that the railway company was under a duty to make this path across the railway embankment safe for pedestrians or to warn them of the danger involved in using it. The cause of the mishap was that the boy ventured too close to the edge of the track.
However, the railway company had not kept its property properly fenced as required by s. 214(1)(a) of the Railway Act, R.S.C. 1970, c. R-2. The breach of this statutory duty to fence establishes the liability of the company subject to the contributory negligence of the injured boy in venturing too close to the edge of the embankment.
Per Ritchie J. dissenting: The danger in this case was obvious rather than concealed and I can find no breach of duty on the part of the occupier and therefore no room for an apportionment of fault under the Contributory Negligence Act, 1967, R.S.N.S., c. 54, unless it has been proved that the accident resulted from a breach by the railway company of a statutory duty to fence. Section 214(1)(a) of the Railway Act, R.S.C. 1970, c. R-2 was designed for the protection of cattle rather than people. The statutory duty to fence has therefore no application to the present case.
[Paulsen v. C.P.R. (1963), 43 W.W.R. 531; Brisson v. C.P.R. (1969), 69 W.W.R. 176, affirmed (1969), 70 W.W.R. 479; British Railways Board v. Herrington, [1972] A.C. 877; Pannett v. P. McGuinness Ltd., [1972] 3 All E.R. 137; London Graving Dock Co. Ltd. v. Horton, [1951] A.C. 737; Letang v. Ottawa Electric Ry. Co., [1926] A.C. 725; Campbell v. Royal Bank of Canada, [1964] S.C.R. 85; Osborne v. London and North Western Railway Co. (1888), 21 Q.B.D. 220; Brown v. B. & F. Theatres Ltd., [1947] S.C.R. 486 referred to].
APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division dismissing an appeal from a judgment of Dubinsky J. at trial. Appeal allowed with costs, Ritchie J. dissenting.
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L.A. Bell, Q.C., and H.E. Wrathall, for the appellants.
T.W. Toward, and J.L. Brean, for the respondent.
RITCHIE J. (dissenting)—I have had the advantage of reading the reasons for judgment of my brother Pigeon and those of Mr. Justice Laskin (as he then was).
I am in full agreement with the careful analysis made by my brother Pigeon of the circumstances surrounding this accident, having particular regard to his reliance on the plans, Exhibits 2 and 4, showing the fork in the path traversed by the appellant, and I agree also with Mr. Justice Pigeon’s conclusion, based on this analysis, that:
I cannot find any basis for holding that the railway was under a duty to make the path across its right of way safe for pedestrians or to warn them of the danger involved in using it. The bank was only 7 feet high. The passing train was therefore in full view. The noise of the steel wheels on the rails could not be appreciably attenuated by such a small depression. The danger of coming close to the passing train was quite obvious. The additional danger due to the icy snow was also quite obvious and attributable to natural causes.
I am also in agreement with the trial judge and with Laskin J. (as he then was) in finding that under the circumstances young Mitchell was a licensee, and in my view this status carried with it a duty on the part of the respondent occupier which was limited to warning him of concealed dangers. The converse of that proposition, of course, is that there is no duty to a licensee in respect of obvious dangers. The nature of this common law duty has been discussed in many cases and I refer particularly to Fairman v. Perpetual Investments Building Society at pp. 83 and 95.
In this Court in the case of City of Ottawa v. Munroe, the grandchild of a tenant of certain
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premises was found to have been a licensee and, after referring to the Fairman case, Mr. Justice Rand observed, at p. 761, that:
… under the general duty implied in law from the circumstances …, the landlord is responsible to such a person only as to a licensee, that is, one entering by the authority of the tenant takes the premises as he finds them, subject to protection against concealed dangers or traps. It is obvious that, here to the tenant as well as to her licensee there was no trap or hidden danger. What is complained of is simply certain parts of the structural design which the landlord saw fit to give to the washroom. On that state of things, the tenant could not have found any claim against the landlord, nor could an adult licensee.
Is the child in any better position? The only ground upon which this can be suggested is that what is apparent to the tenant may be a trap or an allurement to the child.
The cases of Greisman v. Gillingham, per Hughes J. at pp. 381 to 384 and Hambourg v. The T. Eaton Co. Ltd., at p. 438, are to the same effect and I take this to be a statement of the duty of an occupier to a licensee as recognized by this Court.
The finding of Pigeon J., with which I agree, that the danger in this case was obvious to the infant appellant appears to me to negative any suggestion that the accident was occasioned by conditions amounting to “a trap or an allurement to the child”.
This common law duty has been recently reviewed in Fleming on The Law of Torts, 4th Edition (1971) at p. 397 where it is said:
The licensor’s responsibility relates only to concealed dangers or traps. These are not quite identical with ‘unusual’ dangers, the term used in relation to invitees. All concealed dangers are of course unusual, but (as already noted) dangers may be unusual though
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not concealed. The present category is clearly the narrower.
Briefly, a licensee cannot complain of dangers that are known to him or obvious. If he fails to notice the danger, the question arises nowadays whether his claim is altogether defeated or only reduced. According to old definitions, antedating apportionment, a danger was considered obvious if observable by a person taking reasonable care. Now however, a finer distinction must be drawn: If the danger was one which the occupier justifiably assumed the licensee would see, he is not in breach of duty at all. However, if the licensee was lulled into a false sense of security by the misleading appearance of safety, his negligence in not detecting the trap will merely be treated as contributory negligence, which will reduce but no longer defeat his claim.
I do not think there is any suggestion that the appellant in the present case was “lulled into a false sense of security by the misleading appearance of safety”.
It was suggested in argument that the case of British Railways Board v. Herrington, should be regarded as effecting a change in the nature of the common law duty owing by an occupier to a trespasser and therefore to a licensee, but like Mr. Justice Coffin, who delivered the reasons for judgment on behalf of the Appellate Division in the present case, I do not think that the elaborate reasons for judgment delivered by the various members of the House of Lords in Herrington’s case serve to alter the test which has long been recognized in this country and to which I have made reference.
The facts in Herrington’s case alone serve to distinguish it from the present one. There an electrified railway line ran between two stretches of meadow and park land which were open to the public as property of the National Trust. The highly charged line was dangerous in itself and in the view of at least some members of the
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Court, it was a concealed danger in the sense that it might well not have been apparent to children. It was under these circumstances that the House of Lords found a duty upon the occupier to take reasonable steps to enable trespassers to avoid contact with “the lethal danger” on its property. I do not think that either Herrington’s case or the case of Pannett v. P. McGuinnes Ltd. are to be treated as having changed the law of Canada so as to seize occupiers of land with a duty to warn licensees of danger on their property entailing foreseeable risk of harm where both the danger and the risk are obvious to the licensee as well as to the occupier.
I agree with Laskin, J. that if a duty of care arises towards the licensee it is not to be dissolved on the ground that he knew he was exposing himself to some danger, but it appears to me that the basic inquiry is whether the circumstances gave rise to any duty at all on the part of the occupier. In the case of Campbell v. Royal Bank of Canada, the appellant was found to have been an invitee on the bank premises and accordingly one to whom the occupier owed a duty to warn her against any unusual danger. The key finding made by Mr. Justice Spence in that case, where he spoke on behalf of the majority of the Court, in my opinion was that the “state of the floor in that bank on that afternoon constituted an unusual danger” (the italics are my own), and he proceeded to find that the respondent bank had failed to show such knowledge on the part of the appellant “as to leave the inference that the risk had been voluntarily encountered.” If there had been no finding of “an unusual danger” in that case, no question of voluntary assumption of risk or contributory negligence could have arisen because there would have been no breach of duty to the invitee. Similarly in the present case, agreeing as I do with my brother Pigeon’s
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analysis of the facts and his conclusion that the danger was obvious rather than “concealed”, I can find no breach of duty on the part of the occupier and therefore find no room for an apportionment of fault under the Contributory Negligence Act, unless it can be said to have been proved that the accident resulted from a breach of statutory duty by the railway company in failing to fence the right-of-way in the village of Eastern Passage.
Turning now to the application of sections 214(1)(a) and 336 of the Railway Act to the circumstances here in question, I note first that the fencing provisions of s. 214(1)(a) were neither pleaded nor argued at trial or on appeal and formed no part of the submission made in the factum of the appellant in this Court, so that the questions of whether or not these provisions are designed for the protection of human beings in urban areas, and whether or not the absence of the prescribed fencing caused or contributed to the accident fall to be considered for the first time in this Court. Although the matter might have been more clearly established if the question had been raised at trial, I am nevertheless in agreement with Laskin J. that the evidence does not justify a finding that the failure to fence caused the accident. This would normally be the end of the matter, but I think it desirable, in light of the decision of the Supreme Court of Alberta in Paulsen v. C.P.R., which is fully discussed in the reasons for judgment of my brother Pigeon, to express my view of the duty imposed upon the railway by the provisions of s. 214(1)(a).
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Section 214(1)(a) occurs in that part of the Railway Act, R.S.C. 1970 c. R-2 which is entitled: “Fences, Gates and Cattle-guards”, and these same words appear as a marginal note to the section which reads as follows:
214. (1) The company shall erect and maintain upon the railway
(a) fences of a minimum height of four feet six inches on each side of the railway;…
I do not think that this subsection can be considered in isolation, and it is to be noted that the two sections which immediately precede it are concerned with farm crossings and the protection of livestock thereon and that the remaining subsections of s. 214 ((2) to (5)) deal with cattle guards and the prevention of cattle and other animals from getting onto railway lands. With the greatest respect for the views expressed in the Paulsen case, which appear to be shared by my brother Pigeon, these sections appear to me to be directed towards the protection of cattle rather than human beings. This construction appears to me to be assisted by a consideration of the provisions of s. 249(1) (formerly 212(1)(a) of the Railway Act, which reads as follows:
249. (1) No train shall pass at a speed greater than ten miles an hour in or through any thickly populated area of any city, town or village, unless the track is fenced or properly protected in the manner prescribed by this Act, or unless permission is given by some regulation or order of the Commission.
In my opinion this section recognizes the existence of thickly populated areas where there is no fencing of any kind required by s. 214(1) and it provides for the reduction of speed in such areas as an alternative safety precaution. There can, in my view, be no other reason for prescribing the speed limit established by the section which is expressly designed for the protection of people in thickly populated areas just as fencing is required for the protection of cattle and other animals by s. 214.
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It is interesting to note that, although the Paulsen case treats the provisions equivalent to s. 214(1)(a) as applicable in urban areas, there is also a finding that the speed of the train in that case was greater than ten miles an hour contrary to s. 249(1) (then s.312) and it was found by the trial judge and confirmed by the Court of Appeal that if the train had been travelling at ten miles an hour it “would have stopped well short of the boys” who were injured in that case. In the present case, of course, there is an express finding that the speed was under ten miles an hour and that there was no breach of s. 249(1) and this is one distinguishing feature between the two cases.
In finding that s. 214(1)(a) was designed for the protection of cattle rather than people, I find support in the case of C.N.R. v. Laterreur in the Quebec Court of King’s Bench (Appeal Side). The headnote writer in that case drew the conclusion from the reasons for judgment that:
There is no obligation on the part of the appellant company, under the Railway Act, to fence its right of way of crossing in cities.
and in the course of his reasons for judgment, Galipeault J. observed:
Section 274 of the Railway Act (now s. 214)(R.S.C. 1927, c. 170) requires that a railway company shall erect and maintain fences of a minimum height of 4'6” on each side of the railways, swing gates in such fences at farm crossings, means of protection on each side of the highway, at every highway crossing.
Subsection (3) is to the effect that such fences, gates and cattle-guards shall be suitable and sufficient to prevent cattle and other animals from getting on the railway lands.
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It would appear, by this last-mentioned subsection, that the said fences and gates are required by the Act as means of protection for cattle.
Mr. Justice Letourneau appears to share the same view as he says, at p. 225:
So that, even supposing that the obligation of erecting fences of a minimum height of 4'6″ on each side of the railway, as provided for in s. 274 of the Railway Act (R.S.C. 1927, c. 170) could be applied to cities and towns, when s. 309 of the law specifically fixes the speed of trains where there are no fences, one is forced to acknowledge that in the present instance, this would not have prevented these children or young men, for whom it was a trifling matter to board a moving train, from doing so.
In the case of Brisson v. C.P.R., Mr. Justice Hunt, although bound by the decision of the Court of Appeal of Alberta in Paulsen v. C.P.R. supra, nevertheless observed that if he had not been so bound he would not have come to the same conclusion, and in the course of his reasons for judgment he had this to say:
It is important to consider the setting of sec.277 in the Act. The two preceding sections deal exclusively with farm crossings, and the following section provides that farm crossing gates are to be kept closed. In my view, to be consistent with its setting in the Act, sec.277 is limited to providing protection to and against cattle and other animals normally encountered in farming areas, and has no application to protection to or from human beings.
I am bound to say that, were it necessary to the decision in the present case, I would adopt the views expressed by Mr. Justice Hunt.
For all these reasons, which are in great measure in accord with those of the learned trial judge and the Appeal Division of the Supreme Court of Nova Scotia, I would dismiss this appeal with costs.
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PIGEON J.—On February 5, 1971, the infant appellant, then nine years old, lost a leg when he fell down the icy embankment of the railway right of way into the path of a passing freight train. It was around 4 p.m. With some friends he intended to go tobogganing at a brook nearby. This was on the same side of the railway as his parents’ home. There was a path leading there. It came out of a wooded area alongside the railway right of way and led to the brook. The right of way is 99 feet wide with the track in the centre. The level of the rails is some 7 feet lower. The banks are cut steeply starting some 25 feet from the centre leaving a level area of about equal width on top. There were several sizeable trees (about 6″ in diameter) along the railway right of way and the path to the brook was just a few feet inside. At the point where the path came out of the wooded area, there was a fork and another path went obliquely across the railway line towards Howard Avenue.
The trial judge said:
With all due regard to the strong contrary view in this case, and after most anxious and careful study of the facts, since the case began, I am satisfied, and I have reference in particular to the evidence of Mr. Langis and Mr. Campbell, I am satisfied and find as a fact that the spot where Steven came to grief was approximately one hundred and seventy-five feet to one hundred and eighty feet from the southern, so-called, side of the Howard Avenue crossing.
Furthermore, and again with great respect for contrary opinion, I am satisfied and find as a fact that Steven was run over by a hopper car, which at the time of the unfortunate happening was, I hold, number 13 from the engine. Assuming that the length of a car was approximately fifty feet, it perforce follows from my finding herein, that I also hold that at the time of the tragic mishap, the engine in this case was some six hundred and fifty feet away from the accident scene, and well beyond Howard Avenue.
These findings were upheld by the Appeal Division and, in my view, no good reason has been shown for interfering with them. It must
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now be pointed out that survey plans Ex. 2 and 4 show the fork in the path at 250 feet from the centre of Howard Avenue. As it is 66 feet wide, this put the fork at 217 feet from the southern side, so-called. The path from the fork towards the railway line is shown on the plan as reaching the top of the bank a little more than 30 feet nearer Howard Avenue. This means that the trial judge reached the conclusion that the young boy had fallen down the bank from that point. He obviously could not have slid down the bank due to a fall along the path to the brook as this was on level ground over 20 feet from the edge of the bank. But, as he said, he was only about a foot from the edge of the bank when he fell. This, of course, explains why he slid down and reached the track.
I cannot find any basis for holding that the railway was under a duty to make the path across its right of way safe for pedestrians or to warn them of the danger involved in using it. The bank was only 7 feet high. The passing train was therefore in full view. The noise of the steel wheels on the rails could not be appreciably attenuated by such a small depression. The danger of coming close to the passing train was quite obvious. The additional danger due to the icy snow was also quite obvious and attributable to natural causes. The speed of the train had nothing to do with this accident and it does not matter whether the 10-mile per hour speed limit was obeyed as found in the Courts below or disregarded as appellants contend. The clear cause of the mishap is that the boy instead of staying in the path leading to the brook, ventured so close to the edge of the bank that when he tripped, he fell down.
This does not dispose of the case because consideration must now be given to the failure of the railway company to keep its right of way properly fenced. At the date of the accident, there were only a few old fence posts and remnants of wire instead of a fence of a minimum height of 4′6″ as required by s. 214 (1)(a)
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of the Railway Act. Does this violation of a clear statutory duty result in liability by virtue of s. 336? On this question, the following cases were referred to: Grey Coach Lines v. C.P.R.; Paulsen v. C.P.R.; Colonial Coach Lines v. C.P.R.; Brisson v. C.P.R..
In the last mentioned judgment, Hunt J. had to deal with a case of a young boy who was injured when attempting to board a moving freight train. Following other cases, he had no difficulty in holding that such a boy would not have hesitated to climb a fence and therefore, the absence of fencing could not be said to be a cause of the accident. It does not appear to me that this is a similar case. The young boy did not intend to go on the track. He fell when walking or running close to the edge of the bank. In the absence of any fence clearly delimitating the area to which access was prohibited, the railway right of way was largely open to the public and freely accessible, so much so that there was a well worn path. I do not think it is reasonable to presume that if there had been a fence as required by law, the children going to the brook for amusement would have climbed that fence and trespassed on the railway property instead of walking outside.
In my view, the majority in the Manitoba Court of Appeal properly came to the conclusion in the Paulsen case that the logical reason for the requirement of fencing in urban areas is the protection of people as well as animals. In that case, the victim was quite young, being only 27 months old, it was therefore not difficult to hold that a fence ought to have protected him. The conclusion reached in that case as to the scope of the liability of railways for accidents due to the absence of a proper fence is at variance with the opinion of the Ontario
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Court of Appeal in the Grey Coach Lines case. I cannot agree with the latter view founded as it is on a consideration of the history of the legislation. I can see no justification for narrowing the scope of the present provisions of the Railway Act by consideration of the more limited scope of previous enactments. The provisions respecting liability due to insufficient fencing which were applicable in Grand Trunk Railway Company v. James were clearly limited in scope. They were soon after replaced by enactments that are broadly worded. I can see no reason for not applying them as comprehensively as they are worded. I agree with what Schultz J.A. said in Paulsen (at p. 525):
The sweeping changes in regard to fencing made by parliament in 1903, 1910 and 1911 not only made fencing, in effect, obligatory on the railway company but, as I have indicated, the limitation of claims for damages to animals disappeared. Having regard to the enlargement made by parliament in the requirements for fencing, it seems reasonable to infer that by deleting the limitation clause parliament had some definite and specific purpose. That purpose was to make sec. 294 (now sec. 392) applicable and thereby provide for liability for any breach of the Act by a railway company.
The trial judge made a finding that the injured boy “was of an age that we could talk without absurdity of his contributory negligence”. In my view, such negligence was involved in his venturing close to the icy bank when a train was passing. In Colonial Coach Lines, the Ontario Court of Appeal felt that a change in the law governing liability for damage caused by stray animals ought to be taken into account in assessing the consequences of the breach of the statutory duty to fence. Similarly, it seems to me that there would be no justification for not apportioning such liability in accordance with the Contributory Negligence Act, as this Court
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did in respect of an occupier’s liability in Brown v. B. & F. Theatres Ltd.
I would allow the appeal, set aside the judgements below and remit the case to the trial Court for the assessment of damages and for entry of judgment for the appellants upon such assessment in an amount equal to one half thereof. The appellants are entitled to their costs throughout.
LASKIN J.—This appeal concerns an alleged liability of the respondent railway company for a serious injury suffered by the infant appellant, then 9 years of age, who lost a leg when he tripped on a shrub or bush, protruding above the surface of an icy embankment on the railway company’s right of way, and slid down the embankment into the path of a passing freight train. The trial judge, Dubinsky J., dismissed the action brought on the infant’s behalf against the railway company, and in the light of his findings of fact he decided not to assess damages. The Appeal Division of the Supreme Court of Nova Scotia supported the findings of fact at trial and held that the trial judge had properly concluded that, treating the injured boy as a licensee, no liability attached to the railway company. The appellate Court thought, however, that the boy was a trespasser, in which case there was, a fortiori, no liability. In my opinion, the findings of fact, which I have no reason to reject, do not lead to the legal conclusion arrived at by two Nova Scotia Courts, and I would impose liability upon the respondent.
The railway right of way was 99 feet wide, running north-south in the vicinity of the accident, which occurred at about 4 p.m. on Febru-
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ary 5, 1971 at a point about 175 to 180 feet south of the east-west Howard Avenue public crossing in the Nova Scotia village of Eastern Passage. The injured boy lived on Howard Avenue east of the railway right of way, and following his return from school in the afternoon of February 5, 1971 he decided to go tobogganing with some friends near or on a pond which could be reached by a fork to the left from a path along the railway embankment. At or about the point where the infant plaintiff tripped and fell down the embankment the path led to a “Y”, the fork to the left going off the railway right of way towards the pond and the continuation of the path on the right of way going down to the tracks.
The distance from the middle of the tracks to the easterly edge of the right of way was just under 50 feet. At one time there had been a fence to mark that easterly limit, beyond which there was a treed area, but the fence had ceased to exist at the time of the accident save for a few posts and some strands of page wire, and there was a well-trod path inside the easterly, limit of the right of way which had been in general use. There was no sign at the northern entrance to the path, which was behind the houses on the southern side of Howard Avenue, to indicate the railway right of way or to warn members of the public either not to use it or of any danger in doing so. The land level at the place where the accident occurred formed an embankment which was about 8 feet above the railway tracks and fell at a sharp angle to the snow-covered and frozen-over ditch below. Witnesses put the distance from the easterly edge of the tracks to the top of the embankment at between 23 and 25 feet, and there was also evidence that the distance from the top of the embankment to the tree line outside the railway right of way was about, 15 feet. There was encrusted snow on the path and there is no doubt that the area was slippery because of its icy condition.
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The freight train, which was passing at the time the infant plaintiff slipped and fell down the embankment, consisted of a locomotive and 37 cars, most of them loaded, and was proceeding from a refinery in a northerly direction over an 18 mile course to the city of Dartmouth, of which Eastern Passage was a suburb lying to the south-east. The train crew were all in the engine cab, and not only did they not see the infant plaintiff and his equally young companions but they were unaware of the accident until the train was close to Dartmouth, learning of it by radio message.
The trial judge’s material findings of fact were the following. The injured plaintiff fell and was run over at about 175 to 180 feet south of the Howard Avenue crossing. The car which ran over his leg was a hopper car, which was the thirteenth car from the engine. Since each car was about 50 feet long, it would follow that the locomotive had already passed the crossing when the accident occurred. The trial judge also found that the engineer had not failed to ring the bell and sound the train whistle as the train approached the crossing. The train was there for the children to see and they should have seen it, and the trial judge rejected their testimony that they neither saw nor heard it. There was a further finding that the speed of the train at the material time was not over seven miles per hour, and thus within the statutory prescription as to speed in the circumstances.
There were a number of other findings of the trial judge to which I must refer, being more conclusions of law than findings of fact alone. He concluded, not without doubt, that the injured boy was a licensee rather than a trespasser, and also that the boy was of an age at which he could be charged with contributory negligence. Again, he found that it was not actionable negligence that there was no member of the train crew in the caboose and, further, that there was nothing in the facts to support
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any finding of negligence against the railway company. Factually, he found that there was no trap or allurement for any of the children who were on the path on the railway’s right of way on the day of the accident.
In my view, what is missing from the consideration of this case by the Nova Scotia Courts is necessary concern with the condition of the path and of the embankment lying close to the tracks, having regard to the undisputed fact that it was a travelled area, although within the railway right of way. It was an area open to young as well as to old, being neither fenced off against intrusion at the time nor the subject of any prohibitory or warning sign either at the entrance to the right of way south of Howard Avenue or at any point up to the forking of the path. There was evidence that a representative of the railway company had conducted a safety program in schools in the district, including schools in Eastern Passage, in the spring of 1969. The program included a film, and was directed to children between the ages of six and twelve to warn them of the danger of coming on to railway property. I do not regard this evidence as having any bearing either on the railway company’s liability in the present case or on contributory negligence on the part of the injured boy.
As argued in this Court, the question of liability of the railway company was considered by counsel as turning on certain provisions of the Railway Act, R.S.C. 1970, c. R-2, either alone or in conjunction with common law principles of actionable negligence. The sections on which submissions were made were the following:
208. The company shall in constructing the railway make and maintain suitable water pipes, flumes, ditches and drains along each side of, and across and under the railway, to connect with water pipes, flumes, ditches, drains, drainage works and watercourses upon the lands through which the railway
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runs, so as to afford sufficient outlet to drain and carry off the water, or to convey the water supply, and so that the then natural, artificial, or existing drainage, or water supply, of the lands shall not be obstructed or impeded by the railway.
214. (1) The company shall erect and maintain upon the railway
(a) fences of a minimum height of four feet six inches on each side of the railway;
(b) swing gates in such fences at farm crossings of the minimum height aforesaid, with proper hinges and fastenings; and
(c) cattle-guards, on each side of the highway, at every highway crossing at rail level with the railway.
(2) The railway fences at every such highway crossing shall be turned into the respective cattle-guards on each side of the highway.
(3) Such fences, gates and cattle-guards shall be suitable and sufficient to prevent cattle and other animals from getting on the railway lands.
(4) The Commission may, upon application made to it by the company, relieve the company, temporarily or otherwise, from erecting and maintaining such fences, gates and cattle-guards where the railway passes through any locality in which, in the opinion of the Commission, such works and structures are unnecessary.
(5) Where the railway is being constructed through enclosed lands, the company shall, by fencing its right-of-way before any existing fences are taken down or by other effective means, prevent cattle or other animals escaping from or getting upon such enclosed lands or from one enclosure to another or upon the property of the company by reason of such construction or of any act or thing done by the company, its contractors, agents or employees.
219. Every company shall cause thistles and all noxious weeds growing on the right‑of‑way, and upon land of the company adjoining the railway, to be cut down or to be rooted out and destroyed each year, before such thistles or weeds have sufficiently matured to seed.
248. (1) When any train is approaching a highway crossing at rail level the engine whistle shall be sounded at least eighty rods before reaching such
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crossing, and the bell shall be rung continuously from the time of the sounding of the whistle until the engine has crossed such highway.
(2) Where a by-law of an urban municipality prohibits such sounding of the whistle or ringing of the bell in respect of any such crossing or crossings within the limits of the municipality, the bylaw shall, if approved by an order of the Commission, to the extent of the prohibition relieve the company and its employees from the duty imposed by this section.
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249. (1) No train shall pass at a speed greater than ten miles an hour in or through any thickly populated area of any city, town or village, unless the track is fenced or properly protected in the manner prescribed by this Act, or unless permission is given by some regulation or order of the Commission.
(2) No train shall enter any highway crossing at rail level in any thickly populated area of any city, town or village at a speed greater than ten miles an hour, unless such crossing is constructed and thereafter maintained and protected in accordance with the orders, regulations and directions of the Commission, in force with respect to such crossing, or unless permission is given by some regulation or order of the Commission.
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336. Any company that, or any person who, being a director or officer thereof, or a receiver, trustee, lessee, agent, or otherwise acting for or employed by such company, does, causes or permits to be done, any matter, act or thing contrary to this or the Special Act, or to the orders, regulations or directions of the Governor in Council, or of the Minister, or of the Commission, made under this Act, or omits to do any matter, act or thing, thereby required to be done on the part of any such company, or person, is, in addition to being liable to any penalty elsewhere provided, liable to any person injured by any such act or omission for the full amount of damages sustained thereby, and such damages are not subject to any special limitation except as expressly provided for by this or any other Act.
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370. (1) The company shall incur a penalty of eight dollars if, when any train of the company is approaching a highway crossing at rail level,
(a) the engine whistle is not sounded at least eighty rods before reaching such crossing; and
(b) the bell is not rung continuously from the time of the sounding of the whistle until the engine has crossed the highway.
(2) The company is also liable for all damage sustained by any person by reason of any failure or neglect to so sound the whistle or ring the bell.
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In the view I take of this case, I need not dwell on either s. 208 or s. 219 or on s. 248 or s. 370(1) or (2). There was no violation of any of them, and no question of causality arises in respect thereof. Again, in view of the trial judge’s finding as to speed, concurred in by the appellate Court, I am unable to see how the appellants can rely on s. 249. This leaves for consideration s. 214 which does not appear to have been pressed until the case reached this Court, and the common law of negligence. Section 336 is, of course, relevant if s. 214 is applicable here.
Section 214 of the Railway Act, formerly s. 277, was considered by the Manitoba Court of Appeal in Paulsen v. C.P.R. There, a 27 month old boy lost a leg when struck by a freight train after he had wandered on to the unfenced railway right of way. Liability was imposed upon the railway company at trial on the grounds of (1) excessive speed in a thickly populated area when the railway right of way was not fenced, as required by the then s. 312(1), now s. 249(1), and (2) failure to fence as required by the then s. 277. It was held that these breaches of statutory duty caused the injury and that s. 392, now s. 336, gave a cause of action against the railway company. On appeal, the majority of the five-judge Court, Guy J.A. alone dissenting,
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supported the trial judge’s finding that the failure to fence was a cause of the accident and also held that s. 277 applied for the protection of people as well as to keep cattle or other animals off the railway tracks. Schultz J.A., with whom Monnin J.A. concurred, saw a connection between ss. 277 and 312 so as to warrant an interpretation of the former, in the light of the history of the predecessors of those provisions, that extended its protection to people, especially in urban areas where no cattle or other stock would ordinarily be found.
The trial judge in Paulsen had found that the presence of a fence would have hindered or delayed the toddler and held the breach of statute to be accordingly causative of the injury. He also held that the infant, being a trespasser, could not have recovered at common law. The Court of Appeal majority spurned the contention that the injured boy was disentitled to recover by reason of being a trespasser. In their view, liability was statutory, and the status of the injured person would go to contributory negligence according to his age, or even to exoneration of the railway company if the injured person was the sole author of his misfortune.
Paulsen was urged as exhibiting a principle applicable to the present case in so far as the duty to fence, under what is now s. 214, was held to be for the protection of people as well as stock. I note that in Brisson v. C.P.R. Hunt J. of the Manitoba Queen’s Bench would have taken a restricted view of the now s. 214 if he was not bound by the decision in Paulsen, but he distinguished Paulsen because the eight year old boy who lost a foot in the Brisson case
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suffered the injury in trespassing on the railway right of way and trying to board a moving freight train. It was his conclusion that even if there was a statutory duty to fence and a breach thereof, the statutory liability of the railway company did not arise unless the breach of duty resulted in the injury to the boy and that was not the case. On appeal, Monnin J.A. for the Court agreed that the boy was a trespasser, that the absence of fencing, if required, was not a cause of the accident and that Paulsen was distinguishable on its facts: see (1969), 70 W.W.R. 479.
I refrain from deciding in the present case whether s. 214 is as extensive in scope as the Paulsen case holds. Even if the absence of a fence could be said to have a bearing on the liability of the railway company for the accident which occurred, it could only be by way of enlarging the scope of the duty owed by the respondent to persons on its right of way. Since the trial judge held that the injured boy was a licensee, so that he was on the path with the tacit permission of the respondent, a conclusion with which I agree, nothing is added by resting on the failure to fence unless it can be said, for the purposes of the statutory liability under s. 336, that that failure was the cause of the accident. I do not think that can be said here.
The trial judge’s factual determination that there was no trap or allurement is of no consequence because there was no suggestion that the injury to the infant plaintiff resulted because the boy was in a forbidden area outside of that where he had tacit permission to be. No question of trap or allurement therefore arises. The relevant inquiry then, apart from any statutory duty owing to the boy or to others who might reasonably be expected to be on the railway
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company’s right of way in the particular area, is as to the nature of the duty owing by the respondent at common law to a person in the position of the injured plaintiff in respect of the condition of the right of way. Germane to this inquiry are, of course, the proximity of the path to the tracks lying below the embankment and the sharp drop from the edge to the ditch below leading to the tracks.
In determining the scope or extent of the duty, the icy condition of the path and of the embankment is also a material consideration. The classification of the injured plaintiff by the trial judge as a licensee does not, in my opinion, exclude the liability of the railway company as licensor when there is awareness of the use of the path, its proximity to the tracks and the fact that winter freezing would create an icy and slippery condition. This would result in a foreseeable risk of harm, especially to children, beyond any risk that could be said to arise in seasons other than winter. A warning sign would have been a prudent measure at any time of the year, considering the little inconvenience and expense to the respondent to provide one. But be that as it may, the heightened danger that the area presented when it was icy and consequently slippery, having regard as well to protruding shrubs, laid a duty upon the respondent to warn persons off the path or at least to alert them to the risk of using it in such circumstances. Admittedly, no warning was given by a sign or otherwise. This failure is enough to establish liability unless there is exoneration in the trial judge’s finding against the children when they testified that they neither saw nor heard the train, or exoneration in the fact that they knew that they were on icy and slippery ground that was close to the tracks.
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I am the less reluctant to find an actionable breach of a duty of care in the present case when I consider how broadly other courts in sister jurisdictions have viewed the duty owing by an occupier to children, even where they are classified as trespassers. British Railways Board v. Herrington and Pannett v. P. McGuinness Ltd. are illustrative English cases dealing with liability to trespassing children, a situation to which the Occupiers’ Liability Act of 1957 does not apply. In appraising the American case law, Prosser on Torts (1971, 4th ed.), at p. 366 states that “child trespasser law is merely ordinary negligence law”, and that “in any case where the child could recover if he were a trespasser, he can recover at least as well when he is a licensee or an invitee on the premises”.
In my opinion, the finding against the injured plaintiff on whether he saw or heard the train and his awareness of the icy condition of the path go to contributory negligence on his part. I do not think it is any longer proper to hold that mere knowledge of likely danger is any more exonerative of a licensor than of an invitor. Long before the House of Lords decided London Graving Dock Co. Ltd. v. Horton, the Judicial Committee in a Canadian appeal, Letang v. Ottawa Electric Ry. Co., had held that mere knowledge of the danger by an invitee was not enough to absolve an invitor of liability where such knowledge fell short of voluntary assumption of risk. The holding in the Horton case to the contrary was not followed by this
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Court in Campbell v. Royal Bank of Canada, where Spence J., speaking for the majority, referred at p. 99 to the fact that “the defendant has failed to show such knowledge as to leave the inference that the risk had been voluntarily encountered”, citing the Letang case and Osborne v. London and North Western Railway Co. at p. 223.
I regard it as wrong in principle to dissolve a duty of care that arises on the facts of a case merely because the person to whom the duty is owed knows that he may be exposing himself to some danger, and especially so when there is applicable apportionment legislation. It has been held by this Court that such legislation is as applicable to occupier’s liability as to other cases of liability founded upon negligence: see Brown v. B. & F. Theatres Ltd.
In the present case, I would apportion fault equally. It follows that the appeal should be allowed, the judgments below set aside and the case remitted to the trial Court for the assessment of damages and for entry of judgment for the appellants upon such assessment, subject to the apportionment indicated. The appellants are entitled to their costs throughout.
Appeal allowed with costs, RITCHIE J. dissenting.
Solicitors for the appellants: Mclnnes, Cooper & Robertson, Halifax.
Solicitor for the respondent: T. Winton Toward, Moncton.
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